Calcutta High Court (Appellete Side)
Sahim Hossain & Ors vs The State Of West Bengal & Ors on 13 September, 2023
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 34 of 2022
Sahim Hossain & Ors.
Vs.
The State of West Bengal & Ors.
With
WP.ST 35 of 2022
Amit Sikdar & Ors.
Vs.
The State of West Bengal & Ors.
With
WP.ST 42 of 2022
Tanmoy Dutta & Ors.
Vs.
State of West Bengal & Ors.
With
WP.ST 48 of 2022
The Public Service Commission & Ors.
Vs.
Sahim Hossain & Others.
For the Petitioners : Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
in WP.ST 34 of 2022 Mr. Subir Sanyal, Adv.
WP.ST 35 of 2022 Mr. Dyutimoy Paul, Adv.
WP.ST 42 of 2022 & for Mr. Akash Dutta, Adv.
the Respondent in Mr. Dibyendu Chatterjee, Adv.
WP.ST 48 of 2022
For the Petitioners in : Mr. Abhratosh Majumder, Adv.
WP.ST 48 of 2022 Ms. Shraboni Sarkar, Adv.
For the PSC in : Ms. Shraboni Sarkar, Adv.
WP.ST 34 of 2022
WP.ST 35 of 2022
WP.ST 42 of 2022
For the State in : Mr. S. N. Mookherjee, AG
WP.ST 34 of 2022 Mr. Tapan Kr. Mukherjee, Ld. A.G.P.
Mr. Pinaki Dhole, Adv.
Mr. Somnath Naskar, Adv.
For the State in : Mr. S. N. Mookherjee, AG
WP.ST 42 of 2022 Mr. Tapan Kr. Mukherjee, Ld. A.G.P
WP.ST 48 of 2022 Ms. Sangeeta Roy, Adv.
For the Added : Mr. Jayanta Kr. Mitra, Sr. Adv.
Respondents Mr. Kamalesh Bhattacharya, Adv.
Mr. Anindya Bhattacharya, Adv.
For the Respondent : Mr. Pratik Dhar, Sr. Adv.
Nos. 14 to 103 in Mr. Ritwik Pattanayak, Adv.
WP.ST 34 of 2022
Hearing Concluded on : August 28, 2023
Judgement on : September 13, 2023
DEBANGSU BASAK, J.:-
Scope
1. Four writ petitions have been heard analogously as
they emanate from the same order dated March 29, 2022
passed by the West Bengal Administrative Tribunal in OA 11
of 2021, OA 105 of 2021 and OA 150 of 2021.
2. By the impugned order, the Tribunal has refused to set
aside the recruitment process conducted by the West Bengal
Public Service Commission for the post of Sub- Inspector in
the Subordinate Food and Supply Service, Grade III, under
Food and Supplies Department, Government of West Bengal,
2018. The Tribunal has however held that, persons belonging
to a reserved category who took the benefit of age relaxation
could not be placed in the unreserved category. The Tribunal
has directed the preparation of fresh panels for the unreserved
and the reserved categories in such context.
3. For the sake of convenience, the parties in the four
writ petitions can be categorized as Public Service
Commission, State, successful candidates who have been
given appointment, successful candidates who are yet to be
given the appointment, and unsuccessful candidates.
4. Writ petition at the behest of the Public Service
Commission has been registered as WPST 48 of 2022 while
those of the unsuccessful candidates have been registered as
WPST 34 of 2022, WPST 35 of 2022, and WPST 42 of 2022.
Contentions of unsuccessful candidates
5. It has been contended on behalf of the unsuccessful
candidates that, once reserved category candidates have taken
the benefit of age relaxation given to such category of
candidates, they cannot be treated as same as unreserved
category candidates. It has been contended that, unreserved
category candidates did not obtain any benefit of age
relaxation. Reserved category candidates have been granted
age relaxation and those candidates belonging to the reserved
category who had taken the age relaxation can no longer be
treated at par with the unreserved category candidates.
6. It has been contended on behalf of the unsuccessful
candidates that, question No. 87 was wrong and that all 4
options to such answer were wrong. The written examination
process had provided for negative marking of 0.33 marks in
case of a wrong answer. Question No. 87 had therefore
affected the unsuccessful candidates along with others. It has
also been contended that question No. 36 was also wrong.
Therefore, according to the unsuccessful candidates, they are
entitled to receive full marks in respect of question No. 36 and
87 in the written examination as they had attempted those
answers. The unsuccessful candidates had not been provided
with the key answers prior to the publication of the result of
the written examination and no process for obtaining
feedbacks from the candidates was exercised.
7. It has been contended on behalf of the unsuccessful
candidates that, the criteria for tiebreak in cases where equal
aggregate marks were obtained by the candidates were not
disclosed prior to the commencement of the selection process
or even before the holding of the written examination or the
interview. The Public Service Commission had published a
note with regard to the result dated March 4, 2021. Therefore,
the prescription of tiebreak had been introduced subsequent
to the Written and the Personality Test.
8. The unsuccessful candidates have questioned the
maintainability of the writ petition at the behest of the Public
Service Commission. It has been contended on their behalf
that, being a recommending body, Public Service Commission
has no right to file a writ petition. Reference has been made to
another recruitment process involving the appointment to the
post of Police Constable, West Bengal (Male), 2019 and the
merit list for recommended candidates in respect thereto
which was cancelled by the Tribunal on the ground of
violation of the reservation policy. Tribunal had directed
similar measures to be taken as done in the present case.
State and Public Service Commission had accepted such
direction. Having accepted such direction of the Tribunal, it
was no longer open to the Public Service Commission to assail
the impugned order of the Tribunal.
Contentions of the Public Service Commission
9. Learned senior advocate appearing for the Public
Service Commission has contended that, his client issued an
advertisement bearing No. 26/2018 dated August 25, 2018 for
recruitment to the post of Sub- Inspector in the Food and
Supplies Service, Grade III under Food and Supplies
Department, Government of West Bengal. He has pointed out
the salient features of the advertisement including the
concessions that had been stipulated for the reserved category
candidates. He has pointed out the manner of selection. He
has contended that, a Written Test of the qualified candidates
had been proposed to be held and was actually held.
Subsequently, a interview had also been held.
10. Learned senior advocate appearing for the Public
Service Commission has drawn the attention of the Court to
the provisions of the West Bengal Scheduled Caste and
Scheduled Tribes (Reservation of Vacancies in Services and
Post) Act, 1976 and particularly to sections 4 and 5 thereof.
He has drawn the attention of the Court to the government
memorandum bearing No. 378-F dated January 10, 1997, and
the decision of the Full Commission dated August 21, 2018 on
the subject of Preparation of Merit List for Relaxed Standard.
11. Learned senior advocate appearing for the Public
Service Commission has relied upon All India Reporter 1964
Supreme Court 179 (Devadasan versus Union of India)
and the dissenting judgement therein. He has relied upon
1976 Volume 2 Supreme Court Cases 310 (State of Kerala
versus N M Thomas), 1992 Supp (3) Supreme Court Cases
217 (Indra Sawhney and Others vs. Union of India and
Others) and the amendment inserted to Article 335 of the
Constitution. He has relied upon 2007 volume 8 Supreme
Court Cases 785 (Rajesh kumar Daria versus Rajasthan
Public Service Commission and others), 2010 Volume 3
Supreme Court Cases 119 (Jitendra Kumar Singh and
another versus State of Uttar Pradesh and others), 2019
Volume 16 Supreme Court Cases 129 (B. K. Pavitra and
others versus Union of India and others) and 2022 volume
4 Supreme Court Cases 1 (Neil Aurelio Nuns (OBC
Reservation) and others versus Union of India) in support
of his contention that, a candidate who obtained age
relaxation but participated in the selection process with the
unreserved category can be considered and placed in the
unreserved category merit wise.
12. Learned senior advocate appearing for the Public
Service Commission has contended that, the Tribunal
misconstrued and misapplied the ratio of 2019 Volume 7
Supreme Court Cases 383 (Niravkumar Dilipbhai
Makwana versus Gujrat Public Service Commission and
others ). He has contended that, the embargo placed by the
State of Gujarat in the selection process under consideration
in that case is not obtaining in the present case and as such
the ratio is not attracted to the facts of the present case.
13. Learned senior advocate appearing for the Public
Service Commission has contended that, his client took
necessary measure for the typographical error in option D of
Question No. 87 after the wrong was detected. Moreover, none
of the writ petitioners had raised any objection with regard to
the wrong answers key during the examination as well as after
the examination and prior to the publication of the merit list.
He has contended that, writ jurisdiction cannot be invoked to
examine the correctness of the answer.
14. Learned senior advocate appearing for the Public
Service Commission has contended that seniority amongst two
or more candidates involved in a tie would be broken taking
into account the seniority in age amongst them as well as
their performance at the Personality Test. In this regard, he
has referred to the Full Commission Decision dated March 20,
2007.
Contentions of State
15. Learned Advocate General appearing for the State has
contended that, the action of the Public Service Commission is
including candidates of the reserved category who had availed
of age relaxation in the unreserved category cannot be faulted.
He has contended that, a relaxation in age limit is merely to
enable the reserved category candidates to compete with the
general category candidate. At the time when the concession
was availed of, the open competition had not commenced.
According to him, competition on merit commences only after
all the candidates who had fulfil the eligibility conditions
including that of age are permitted to sit in the written
examination. He has contended that, grant of age relaxation
does not result in a relaxation in the standard for selection
based on the merit of the candidate in the Written Test and
the interview.
16. Learned Advocate General for the State has contended
that, the view taken by the Public Service Commission is a
plausible view and must not be interfered with. Moreover, the
unsuccessful candidates had participated in the recruitment
process without objection. They had taken a chance to get
themselves selected. Only after they had found themselves
unsuccessful that they filed the petitions before the Tribunal.
17. Learned Advocate General appearing for the State has
contended that, Public Service Commission is an independent
constitutional body established under Article 315 of the
Constitution of India. Public Service Commission is not
subservient to the directions of the government unless such
directions are impermissible by law. The unsuccessful
candidates have cited an instance with regard to recruitment
process conducted by the West Bengal Police Recruitment
Board in support of their contention that, merit list should be
reworked in the manner as directed by the Tribunal. He has
contended that, there cannot be any estoppel against the law.
Moreover, challenge to the order of the Tribunal in the
recruitment conducted by the West Bengal Police Recruitment
Board is pending before the High Court.
Contentions of the successful candidates who were
appointed
18. Learned senior advocate appearing for the successful
candidates who were appointed has contended that, age
relaxation is not a concession or lowering down the standard
of the competition. The recruitment process had provided for
age relaxation in order to enable the reserved category
candidates to participate in the competition. Thereafter, the
competition itself had been uniformly applied for everyone.
The act of enabling a candidate to participate in the
competition is not the same thing as granting concession by
lowering down the standard of competition for reserved
category candidates. He has relied upon Jitender Kumar
Singh (supra) and 2015 volume 16 Supreme Court Cases
778 (Ajitkumar P. And others versus Remin K. R and
others) in this regard.
19. Learned senior advocate appearing for the successful
candidates who were appointed has submitted that, when two
plausible views are permitted, the recruiting authority can
choose one of the same. In the facts of the present case,
Public Service Commission had taken a view which it applied
uniformly. Therefore, such a decision should not be upset by
the Court.
20. Learned senior advocate appearing for the successful
candidates who were appointed has submitted that the best
candidate amongst the unsuccessful candidates who had filed
the writ petitions received less mark then all the answering
respondents. None of the unsuccessful candidates had
received higher than the successful candidates.
Contentions of successful candidates who are yet to join
21. Learned senior advocate appearing for the successful
candidates but are yet to join, has referred to the West Bengal
Scheduled Caste and Scheduled Tribes (Reservation of
Vacancies in Services and Post) Act, 1976. He has contended
that, Public Service Commission did not commit any error in
preparing the merit list of the unreserved category taking into
consideration the merit of candidates irrespective of the
category they belong to, in view of Section 4 (2) of the Act of
1976. He has contended that, the unsuccessful candidates
had participated in the selection process throughout without
any objection. According to him, more than 7 lakh candidates
had appeared in the written examination. He has adopted the
contentions of Public Service Commission as well as those
advanced on behalf of the successful candidates who were
given the appointment.
Findings
22. Public Service Commission had issued an
advertisement bearing Advertisement No. 26/2018 dated
August 25, 2018 for recruitment to the post of Sub- Inspector
in the Subordinate Food and Supplies Service, Grade III under
Food and Supplies Department, Government of West Bengal.
The number of vacancies that had been declared to such post
was 957 comprising of 454 in the unreserved category, 98 in
the OBC-A, 69 in the OBC-B, 208 in the Scheduled Caste, 58
in Scheduled Tribe, 20 in MSP, 40 in Ex-Service Men and 40
in Ex-Service Men (SC).
23. The salient features of the selection process for the
post as has been laid down by the advertisement dated August
25, 2018 can be summarized as follows: -
(i) the recruitment would be made on the basis of a
competitive examination
(ii) the competitive examination would consist of Written
Test (MCQ Type) followed by Personality Test
(iii) Public Service Commission would in their discretion fix
the qualifying marks in the Written Test, Personality Test
also in the aggregate
(iv) age of the candidate must not be below 18 years and
not more than 40 years as on January 1, 2018
(v) the upper age limit would be relaxable/relaxed by 5
years for SC and ST candidates and by 3 years for OBC
"Non-Creamy Layer" candidates
(vi) the SC/ST candidates were not required to pay any fee
for the purpose of participation in the examination
24. The records made available to Court suggest that,
11,06,359 candidates had applied in the selection process for
participation out of which 7,83,440 appeared in the Written
Test held on January 27, 2019.
25. Public Service Commission had fixed ratio of the
candidates to be called for the Personality Test as 1:3.
Accordingly, Public Service Commission had fixed the cut-off
marks in respect of the 8 categories of candidates. Public
Service Commission in terms of the ratio so fixed had sent up
the following number of candidates in respect of each
categories: -
Catgory Cut-off Marks Candidates to be
Interviewed
UR 79.6671 1369
PH - -
(SC)
Total 3024
26. A total number of 3,024 candidates had participated in
the Personality Test. Reserved category candidates (SC, ST,
OBC-A and OBC-B) who had failed to secure marks obtained
by the last qualified candidate in the unreserved category but
achieved sufficient marks in their respective categories in
order to appear for the Personality Test, were granted the
relaxation at the time of appearance at the Personality Test.
27. Reserved category candidates who had secured higher
or equal marks when compared with the marks obtained by
the last qualified candidate in the unreserved category in the
Written Test were accommodated in the unreserved category.
28. Reserved category candidates who had secured higher
or equal marks compared to the marks obtained by the last
qualified candidate in the unreserved category in the Written
Test but could not secure equal or higher marks in aggregate,
compared to the last qualified candidate in the unreserved
category in aggregate, were not accommodated under the
unreserved category but adjusted against the respective
reserved categories.
29. In the selection process in question, Public Service
Commission has placed candidates belonging to the reserved
category in the unreserved category where the reserved
category candidates had obtained higher or equal marks in
aggregate in comparison to the unreserved category
candidates. Therefore, in the ultimate merit list recommended
for appointment, candidates belonging to the reserved
category had found place in the unreserved category by dint of
their marks obtained in the selection process.
30. Placement of reserved category candidates in the
unreserved category has been set aside by the Tribunal in the
impugned order on the strength of the ratio of Niravkumar
Dilipbhai Makwana (supra). The Tribunal has held that, the
principle of Jitender Kumar Singh (supra) was not attracted
to the facts of the present case.
31. Niravkumar Dilipbhai Makwana (supra) has
considered the issue of whether a candidate who availed of an
age relaxation in a selection process as a result of belonging to
a reserved category can thereafter seek to be accommodated
in/or migrated to the general category or not. Jitender
Kumar Singh (supra) as well as Ajithkumar P. (supra) has
been considered therein. It has noticed the policies of the
State of Gujarat appearing from circular dated January 29,
2000 and July 23, 2004. It has held that, the appointments in
the reserved category were governed by the aforesaid policies
of the State. It has held that, authorities affecting direct
appointments are required to give effect to such policy
decisions of the State at the time of the recruitment process. It
has interpreted the 2 circulars of the State of Gujrat to mean
that a candidate who availed of age relaxation in the selection
process as a result of belonging to a reserved category cannot,
thereafter, seek to be accommodated in or migrated to the
general category seats. With regard to Jitender Kumar Singh
& Another (supra) it has noticed that, the State of Uttar
Pradesh instructions were different to those of the State of
Gujarat on such aspect. Consequently, it has held that, the
principles laid down in Jitender Kumar Singh & Another
(supra) was not applicable.
32. It would be apposite to refer to paragraphs 22 to 26 of
Niravkumar Dilipbhai Makwana (supra) in this regard,
which are as follows: -
"22. Article 16(4) of the Constitution is an enabling
provision empowering the State to make any provision or
reservation of appointments or posts in favour of any
backward class of citizens which in the opinion of the
State is not adequately represented in the service under
the State. It is purely a matter of discretion of the State
Government to formulate a policy for concession,
exemption, preference or relaxation either conditionally or
unconditionally in favour of the backward classes of
citizens. The reservation being the enabling provision, the
manner and the extent to which reservation is provided
has to be spelled out from the orders issued by the
Government from time to time.
23. In the instant case, the State Government has framed
policy for the grant of reservation in favour of SC/ST and
OBC by the Circulars dated 21-1-2000 and 23-7-2004.
The State Government has clarified that when a relaxed
standard is applied in selecting a candidate for SC/ST,
SEBC category in the age-limit, experience, qualification,
permitting number of chances in the written examination,
etc., then candidate of such category selected in the said
manner, shall have to be considered only against his/her
reserved post. Such a candidate would be deemed as
unavailable for consideration against unreserved post.
24. Now, let us consider the judgment in Jitendra Kumar
Singh [Jitendra Kumar Singh v. State of U.P., (2010) 3
SCC 119 : (2010) 1 SCC (L&S) 772] . In this case, this
Court was considering the interpretation of sub-section (6)
of Section 3 of the U.P. Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994 (for short "the 1994 Act") and the
Government Instructions dated 25-3-1994. Sub-section (6)
of Section 3 of this Act provided for reservation in favour
of Scheduled Castes, Scheduled Tribes and Other
Backward Classes which is as under:
"3. (6) If a person belonging to any of the categories
mentioned in sub-section (1) gets selected on the basis of
merit in an open competition with general candidates, he
shall not be adjusted against the vacancies reserved for
such category under sub-section (1)."
25. The State of U.P. issued Instructions dated 25-3-1994
on the subject of reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Groups in the
Uttar Pradesh Public Services. Last line of these
instructions is as under:
"It shall be immaterial that he has availed any facility
or relaxation (like relaxation in age-limit) available to
reserved category."
26. On consideration of sub-section (3) of Section 6 of the
1994 Act and the Instructions dated 25-3-1994, this Court
held that grant of age relaxation to a reserved category
candidate does not militate against him as general
category candidate if he has obtained more marks than
any general category candidates. This judgment was
based on the statutory interpretation of the 1994 Act and
the Instructions dated 25-3-1994 which is entirely
different from the statutory scheme under consideration in
the instant appeal. Hence, the principle laid down
in Jitendra Kumar Singh [Jitendra Kumar Singh v. State
of U.P., (2010) 3 SCC 119 : (2010) 1 SCC (L&S) 772] has
no application to the facts of the present case."
33. Jitender Kumar Singh and Another (supra) has
considered the issue as to whether the relaxation in fee and
upper age limit of 5 years in the category of OBC candidates
would fall within the definition of reservation to exclude
candidates for open competition on the seats meant for the
General Category candidates. It has considered such issue in
the light of the policy decision of the State of Uttar Pradesh. It
has considered UP Public Service (Reservation for Schedule
Caste Schedule, Tribe and Other Backward Class) Act, 1994
in particular Section 3 and Section 8 thereof. It has observed
in paragraph 71 of the report that, concession falling within
Section 8 of the Act of 1994 cannot be said to be relaxation in
the standard prescribed for qualifying in the written
examination. It has observed that, Section 8 clearly provides
that that State Government may provide for concession in
respect of the fees in the competitive examination or interview
and relaxation in upper age limit.
34. Jitender Kumar Singh and Another (supra) is prior
in point of time than that of Niravkumar Dilipbhai
Makwana (supra) and both have proceeded after holding
that, Article 16 (4) of the Constitution is an enabling provision
empowering the State to make provision or reservation for
appointments to post in favour of any backward class of
citizen which in the opinion of the State is not adequately
represented in the service under the State. It has proceeded to
adjudge the policy decision of the State governing the
reservation and apply the same in the selection process
impugned therein.
35. In Jitender Kumar Singh and Another (supra),
policy decision of the State of Uttar Pradesh as embodied in
the Act of 1994 and the instructions issued by the State of
Uttar Pradesh have been considered to return a finding that
relaxation in age and exemption from payment of fees to
reserve category candidates would not affect the right of such
candidates to be considered in the unreserved category in the
order of merit. Niravkumar Dilipbhai Makwana (supra) has
however, on consideration of the policy of the State of Gujarat
held that, reserve category candidates cannot be permitted to
contest in the unreserved category seats when they obtain
concessions with regard to age or fees.
36. Therefore, we have to consider the issue as to whether,
reserve category candidates in the State of West Bengal can
compete in the unreserved category seats after obtaining
concessions with regard to age and fees in the light of the
policy decision of the State of West Bengal.
37. Provisions of Section 4 of the Act of 1976 and Section 5
of the Act of 2012 have therefore assumed significance in the
facts of the present case and they are as follows :-
Section 4 of the Act of 1976
"4. (1) After the commencement of this Act all
appointments to services and posts in an
establishment which are to be filled up by direct
recruitment shall be regulated in the following
manner, namely, --
(a) subject to the other provisions of this Act
twenty-two per cent of the vacancies shall be
reserved for candidates belonging to Scheduled
Castes and six per cent for candidates belonging to
Scheduled Tribes, in the manner set out in Schedule I.
Provided that the State Government may, from
time to time, by notification in the Official Gazette,
increase the percentage so, however, that the
reservation shall not exceed twenty-five per cent, in
the case of Scheduled Castes and ten per cent in the
case of Scheduled Tribes.
Provided further that different percentages may
be fixed by the State Government for different districts
in accordance with the percentages of population of
Scheduled Castes and Scheduled Tribes in such
districts.
Provided also that in respect of the West Bengal
Civil Service (Judicial), the percentage shall be ten for
Scheduled Castes and five for Scheduled Tribes;
(b) fees, if any, prescribed for any examination
for selection to any service or post shall not be
charged in the case of candidates belonging to the
Scheduled Castes or the Scheduled Tribes;
(c) the members of the Scheduled Castes and the
Scheduled Tribes shall be entitled to a concession of
five years over the prescribed maximum age limit for
appointment to any service or post.
(2) The member of any Scheduled Caste or
Scheduled Tribe candidate qualifying on merit for
appointment to any unreserved vacancy in a service
or post in any establishment to be filled up by direct
recruitment shall not be deducted from the quota
reserved in such service or post for such candidate
under sub-section (1)."
Section 5 of the Act of 2012
"5. After the commencement of this Act, all
appointments to services and posts in establishments
which are to be filled up by direct recruitment shall be
regulated in the following manner, namely,--
(a) subject to the other provisions of this Act, ten
per cent of the vacancies shall be reserved for
candidates belonging to the Other Backward Classes
denoted as "Other Backward Classes Category A"
category and seven per cent of the vacancies shall be
reserved for candidates belonging to the "Other
Backward Classes Category B" category of the Other
Backward Classes in the manner set out in Schedule
III
Provided that the State Government may, from
time to time, by notification in the Official Gazette,
increase the percentage in the manner that the overall
reservation for the Scheduled Castes, the Scheduled
Tribes and Other Backward Classes shall not exceed
fifty per cent
(b) the members of the Other Backward Classes
qualifying on merit in an open competition on the
same standard as of the unreserved candidates for
appointment to any unreserved post in a service or
post in an establishment to be filled up by direct
recruitment shall not be adjusted against the quota
reserved in such service or post for such candidate
under sub-section (a).
Explanation.--For the purpose of this Act, Other
Backward Classes Category A shall mean the "More
Backward Classes" and the Other Backward Classes
Category B shall mean the "Backward Classes"."
38. With regard to relaxation of age for candidates
belonging to the Backward Classes, State has issued a
memorandum bearing No. 378-F dated January 10, 1997
which is as follows: -
"The question of granting relaxation of upper age limit
to the candidates belonging to Backward Classes for
recruitment to all post and services under the
Government or in Semi Government Organisations
has been under consideration of the Government for
some time past.
2. After careful consideration of the matter in all its
aspects, the Governor is pleased to decide that the
candidates belonging to the Backward Classes as
specified for the purpose of the West Bengal
Commission for Backward Classes Act, 1993 by
issuing notification in that behalf shall be entitled to
relaxation of three years over the prescribed upper
age-limit for direct recruitment to any service or post
under the government of West Bengal, the Local and
Statutory Authorities constituted under any State Act,
Corporations in which not less than 51 % of the paid
up share capital is held by the State Government,
Universities, Colleges affiliated to the Universities,
Primary, Secondary and Higher Secondary Schools
and other educational institutions which are owned or
aided by the State Government and in the
establishments in Public Sector.
3. This order will take immediate effect."
39. Public Service Commission in its Full Commission
meeting held on August 21, 2018 and extended meeting on
August 30, 2018 has taken the following decision with respect
to "Preparation of Merit List for Relaxed Standard": -
"It has been further decided by the Commission that
the candidates who will avail relaxed standard of any
reserved category at any stage i.e. in written
examinations/interview etc. they will be considered
only for the merit list for that particular category."
40. Sub-Section (1) of Section 4 has prescribed the
quantum of reservation for SC and ST in vacancies to be filled
up by direct recruitment. Section 4 (1) (b) and (c) of the Act of
1976 has provided that, no fees shall be charged from any
candidate belonging to the SC/ST, participating in a selection
process to any service or post and they shall be entitled to
concession of 5 years over the prescribed maximum age limit.
Section 4 (2) of the Act of 1976 has prescribed that, a member
of any SC/ST candidate qualifying on merit for appointment to
any unreserved vacancy in a service or post in any
establishment which has to be filled up by direct recruitment
shall not be deducted from the quota reserved in such service
or post for such candidate under Sub-section (1) of Section 4.
41. Section 5 (a) of the Act of 2012 has prescribed the
quantum of reservation for OBC classes in vacancy to be filled
up by direct recruitment. Clause (b) of Section 5 of the Act of
2012 has prescribed that any member of OBC qualifying on
merit in an open competition on the same standard as of the
unreserved candidates for appointment to any unreserved
post in a service or post in an establishment to be filled up by
direct recruitment shall not be adjusted against the quota
reserved in such service or post for such candidate under
Clause (a).
42. Both the Act of 1976 and the Act of 2012 have
prohibited deduction of the quota fixed for reservation in
respect of SC, ST and OBC candidates, in the event reserved
category candidates succeed on merit in the unreserved
category. In other words, both the Act of 1976 and the Act of
2012 contemplate and have provided for a situation where
reserved category candidates, participating in the selection
process can be placed in the merit list in the unreserved
category and their placement in the unreserved category will
not hamper the quota fixed for the reserved category.
43. The Full Commission decision of the Public Service
Commission with regard to preparation of merit list for relaxed
standard, has to be construed and understood in the light of
the provisions of the Act of 1976 and Act of 2012 prevailing in
the State of West Bengal relating to reservation for SC, ST and
OBC candidates. When so done, until and unless a reserved
category candidate obtains any relaxation of standard in the
process for ascertainment of merit in the selection process
such candidate can and should be placed in the unreserved
category in the order of merit, if he so qualifies, in the State of
West Bengal without hampering the quota for the resumed
category.
44. Relaxation in age and fees cannot be construed to be
obtaining a benefit in the course for ascertainment of merit of
a candidate. It is merely an enabling provision to enable
designated section of the society, an opportunity to complete.
Facilitating a designated section of the society to partake in a
selection process cannot be equated to grant of privilege
during ascertainment of merit in the selection process such
relaxation given at the preliminary stage has no relevance
for the determination of merit of candidate. Ajithkumar P.
(supra) has held that, relaxation of concession given at the
preliminary stage cannot have any relevance in determining
the merit of a candidate.
45. State of West Bengal has not issued definite circulars
as that of the State of Uttar Pradesh as noted in Jitender
Kumar Singh (supra) permitting unreserved category
candidates to be placed in the reserved category after reserved
category candidates obtained age and fee relaxation. Nor has
the State of West Bengal issued any circular akin to that of
the State of Gujarat as noted in Niravkumar Dilipbhai
Makwana (supra). However, the Act of 1976 and the Act of
2012 in respect of the State of West Bengal has granted age
relaxation to the reserved category candidates. The Full
Commission has understood the two Acts of the State
Legislature with regard to grant of relaxation on account of
age and fees and the memorandum dated January 10, 1997 in
a particular way and such understanding appears from the
minutes of the meeting held on August 21, 2018 extended on
August 30, 2018. Such minutes of the Full Commission has
been understood by the Public Service Commission to mean
that, reserved category candidates can be placed in the
unreserved category in accordance with merit. They had
applied such understanding uniformly across all selection
processes conducted by them as will appear from the affidavit
filed by them before the Tribunal.
46. Relaxation in age and fees for reserved category
candidates does not mean that any advantage has been
granted to the reserved category candidates so as to dis-entitle
them to be considered in unreserved category in accordance
with merit, particularly when this State did not prohibit the
same. The Public Service Commission has followed the
procedure as has been noted in paragraphs 27, 28 and 29 of
judgement. No material has been placed before us to suggest
that the procedure adopted by the Public Service Commission
or its understanding of the provisions of statute governing the
field, the memorandum of the State dated January 10, 1997
and the Full Commission decision, prohibits the Public
Service Commission to undertake such an exercise or to treat
the candidates participating in the selection process in the
manner it did.
47. The view that the Public Service Commission has
taken in conducing the selection process is a plausible view.
This plausible view had been applied in all selection processes
undertaken by them. The view taken by the Tribunal in the
impugned order has upset the long standing view of the Public
Service Commission. In the event, the authorities have taken a
view which is plausible then, Courts are slow to interfere
therewith.
48. In the facts and circumstances of the present case,
relaxation with regard to age and fees had been granted in
view of the provisions of the two statutes governing the field
the memorandum dated January 10, 1997 and the decision of
the Full Commission. No other benefit had been extended to
any of the reserved category candidates such as relaxation in
the qualifying marks or otherwise. After grant of concessions
as are statutorily required, to the reserved category
candidates, they have not been extended any further facility
when they were being considered for the purpose of placement
in the unreserved category, merit wise. Reserved category
candidates have been placed in the unreserved category if they
had succeeded, on merits, after they had competed with the
unreserved category candidates in the same Written Test and
after appearing in the Personality Test.
49. In such circumstances, we are of the view that, since
the reserved category candidates should have been placed in
the unreserved category having taken no benefit in the
selection process excepting those which have been extended
to them under the statute and since, there being no
prohibition for the reserved category candidates being
considered merit wise in the unreserved category, after they
take the statutory relaxation that they are entitled to, the
Tribunal erred in upsetting the plausible view taken by the
Public Service Commission. Tribunal had read a prohibition
akin to one obtaining in the State of Gujarat when for this
State no such prohibition exists.
50. In such circumstances, we set aside the impugned
order of the Tribunal directing re-working of the merit list by
deleting the reserved category candidates from the unreserved
category. We allow the writ petition of the Public Service
Commission being WP.ST 48 of 2022, without any order as to
costs.
51. So far as the other three writ petitions are concerned,
we have not found any merit with regard to the contentions
raised by the unsuccessful candidates. The Tribunal has
considered the issue with regard to incorrect answer and
correctly accepted the contention of the Public Service
Commission that, the same affects all the candidates and not
just the unsuccessful candidates. The unsuccessful
candidates had participated in the selection process without
any protest and took their chance with regard thereto. The
unsuccessful candidates had qualified in the written
examination and became unsuccessful only after the
interview. They should therefore not be allowed to turn around
to challenge the written examination.
52. The Tribunal has correctly negated the contention of
the unsuccessful candidates with regard to the cut off marks
being fixed subsequent to the commencement of the selection
process. In the facts of the present case, fixing a cut off mark
prior to the commencement of the written examination would
have affected the selection process itself. The total number of
applicants in the selection process vying for the total vacancy
of 957 posts were 11,06,359. Total number candidates who
had appeared in the written examination was 7,83,440.
Therefore, Public Service Commission had correctly taken the
stand that, fixing a prior cut off mark for the Written Test may
have been either too high or too low and in either of the two
eventualities, the Public Service Commission might have faced
a problem of excess candidates or lack of candidates. Going by
the ratio of 1:3, Public Service Commission had fixed the cut
off mark in respect of each of the categories of the candidates
participating in the selection process so that for every vacant
post in each category at least three candidates were available
for the Personality Test. Subsequent to the written
examination, such cut off mark had been uniformly applied
against the respective categories. We have not found any
illegality with regard thereto. The process had been
undertaken in a transparent manner and no candidate had
suffered any prejudice with regard thereto. Significantly, the
unsuccessful candidates had qualified in the written
examination and were called for the interview and participated
therein. Therefore, their complaint that cut off marks for the
written examination had not been fixed prior to the
commencement of the selection process is of no substance.
53. The Tribunal has correctly negated the contentions
with regard to the procedure for tiebreak adopted by the
Public Service Commission in the selection process. Public
Service Commission had adopted a procedure of granting
preference to candidates obtaining higher marks in one of the
examinations in preference to the other and also taking into
consideration the age of the respective candidates involved in
the tiebreak. This procedure had been uniformly applied
across all candidates.
54. Ordinarily, an issue of maintainability should have
been decided first but in the facts and circumstances of the
present case, the issue of maintainability raised at the behest
of the unsuccessful candidates is not founded purely on law
but is a mixed question of fact and law. According to the
unsuccessful candidates, State had accepted the prescription
of the Tribunal with regard to preparation of the merit list in
other selection process and therefore, Public Service
Commission cannot take a stand contrary to that of the State.
In support of such contention, instance of the State accepting
such prescription in another selection process has been cited.
55. Learned Advocate General has clarified that, such
prescription of the Tribunal spoken of on behalf of the
unsuccessful candidates is under challenge before a
coordinate bench. Therefore, it cannot be said that, State or
Public Service Commission has accepted the prescription of
the Tribunal in a different selection process and is seeking to
take a different stand herein.
56. Before the Tribunal, in addition to all other
contentions, Public Service Commission had taken the stand
that, the preparation of the merit list, as done in the instant
selection process, was in tune of the usual procedure adopted
by the Public Service Commission in respect of other selection
processes also. The Tribunal has held by the impugned order
that, such a procedure adopted by the Public Service
Commission did not have the sanction of law and in fact
contrary to the law as understood by the Tribunal. Public
Service Commission has a different view of the law as
enunciated by the Tribunal in the impugned order. Therefore,
it cannot be said that, Public Service Commission cannot
assail the order of the Tribunal before this Court.
57. No law has been placed before us to suggest that,
Public Service Commission suffers from any legal prohibition
from filing a petition under article 226 of the Constitution
assailing an order of the Tribunal.
58. In such circumstances, the contention of the
unsuccessful candidates with regard to the maintainability of
the writ petition at the behest of the Public Service
Commission has no merit.
59. In view of the discussions above, WP.ST No. 34 of
2022, WP.ST No. 35 of 2022 and WP.ST 42 of 2022 are
dismissed without any order as to costs. WP.ST 48 of 2022 is
allowed again without any order as to costs. All connected
applications are disposed of accordingly.
[DEBANGSU BASAK, J.]
60. I agree.
[MD. SHABBAR RASHIDI, J]
