Calcutta High Court (Appellete Side)
Soukat Zaman vs The State Of West Bengal & Ors on 7 October, 2024
Author: Amrita Sinha
Bench: Amrita Sinha
07.10.2024
Court No. 14
Sl. No. 01
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P.A. 16271 of 2024
Soukat Zaman
-versus
The State of West Bengal & Ors.
Mr. Sudipta Dasgupta
Ms. Dipa Acharya
...For the Petitioner.
Mr. Sirsanya Bandopadhyay
Ms. Tapati Samanta
...For State.
Mr. Subir Sanyal
Mr. Dwarikanath Mukherjee
Mr. Ratul Biswas
Mr. Kaushik Chowdhury
...For WBBPE.
Affidavit of service filed in Court today is taken on
record.
The cause of action for filing the instant writ petition
arose after steps were taken by the West Bengal Board of
Primary Education (hereinafter referred to as 'the Board')
to act in terms of the order passed by the Court in WPA
7907 of 2019 (Ramesh Malik & Ors. vs. The State of West
Bengal & Ors.).
The brief facts of the case are as follows:
The petitioner participated in the Teacher Eligibility
Test, 2014 held by the Board in the year 2015. An
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appointment notification for recruitment of primary school
teachers was published by the Board on 26th September,
2016. Candidates who were TET qualified were eligible to
participate in the said recruitment process.
In response to the said notification, the petitioner
applied for the post of Assistant Teacher and he was called
in the interview. Though the petitioner participated in the
interview but he never got to know the fate of the
recruitment process. He was under the impression that
had he been successful in the interview, then he would
have been notified by the Board. As there was no
communication from the end of the Board, the petitioner
was under the impression that he was unsuccessful in the
recruitment process and he did not proceed with the
matter any further.
In compliance of an order dated 23rd September,
2022 passed by this Court in WPA 7907 of 2019 (Ramesh
Malik & Ors. vs. The State of West Bengal & Ors.), the
Board published a list of recommended candidates on 28th
November, 2022 along with breakup of their scores. On a
perusal of the said list the petitioner noticed several
discrepancies. He made an application under the Right to
Information Act seeking information with regard to the
breakup of his marks obtained in the recruitment process.
On receipt of the information from the Board the petitioner
discovered that several candidates who secured less marks
than him were given appointment.
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A further list of recommended candidates was
published by the Board in the month of May, 2023
wherefrom the petitioner found out that he secured more
marks than the persons empanelled in the said list.
The petitioner contends that as he got more marks
than some of the other empanelled candidates in the same
category, he ought to be considered for appointment.
It is the specific case of the petitioner that the Board
did not publish any panel in respect of the 2016 selection
process in terms of the West Bengal Primary School
Teachers Recruitment Rules, 2016 hereinafter referred to
as 'RR, 2016'. On account of non publication of the merit
list as per Rule 8 of RR, 2016, the petitioner did not have
the information with regard to his position in the panel.
The petitioner came to learn about the marks allotted to
him only after information was supplied under the Right to
Information Act.
The petitioner vehemently contends that the Board
adopted corrupt practice in not publishing the panel in
accordance with the Rules. The aforesaid illegality of the
Board came to light only after direction was passed by the
Court for publication of the merit list.
The petitioner relies on the order passed by the
Hon'ble Supreme Court on 7th July, 2023 in Petitions for
Special Leave to Appeal (C) nos. 13024-13026 of 2024
(Tuhin Kumar Haldi & Ors. Vs. Priyanka Naskar &
Ors.).
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Reliance has also been placed on the order dated 4th
September, 2023 passed by the Hon'ble Division Bench in
a bunch of appeals first of which is MAT 1109 of 2023, IA
no. CAN 2 of 2023 (Dipankar Singha & Ors. Vs. Union
of India & Ors.).
The petitioner further relies on the order dated 5th
September, 2022 passed by a Coordinate Bench of this
Court in WPA 5505 of 2022 (Soham Roy Choudhury &
Ors. Vs. The State of West Bengal & Ors. and the order
dated 14th March, 2022 passed by the Hon'ble Division
Bench in MAT 1309 of 2019 with CAN 1 of 2020 (Ajmail
Hoque vs. The State of West Bengal & Ors.).
It has been submitted that appointment to
candidates from the 2016 recruitment process is still being
made in the year 2024. The conduct of the Board implies
that the panel, which was to be valid only for a period of
one year from the date of its approval, has not expired.
It has been fervently pleaded that there has been no
intentional delay or laches on the part of the petitioner in
approaching the Court. It is only after the petitioner got to
learn about the direction passed by the Court that he
sought for information under the Right to Information Act
and the illegality came to light. As the panel in question
had not been published in accordance with the Rules,
there is no question of expiry of the said panel. The
conduct of the Board implies that the panel is still valid.
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Prayer has been made to direct the Board to revisit
the panel of primary teachers prepared in respect of the
recruitment process 2016 and to set aside all illegal
recruitments made to candidates who secured less marks.
The prayer of the petitioner has been strongly
opposed by the Board. Learned advocate representing the
Board submits that the entire selection process of the year
2016 has been set aside by the Court. Appeal preferred
against the said order is pending consideration before the
Hon'ble appeal Court. If the order of the Hon'ble Single
Judge is upheld in appeal, then the grievance of the
petitioner will be redressed.
It has been submitted that no further appointment
from the said panel can be given at present because there
is no existence of the panel at all. According to law, a
panel remains valid only for a period of one year from the
date of its publication. The petitioner being well aware that
he was not empanelled in the list of recommended
candidates admitted and accepted such position and did
not raise any grievance. After nearly seven years from the
date of publication of the panel, the petitioner cannot be
permitted to question the legality and validity of the same.
It has been contended that the petitioner is a fence
sitter and he ought not to be permitted to take the benefit
of the outcome of the order passed by the Court in a
different writ petition filed by a third party. The petitioner
did not initiate any proceeding during the lifetime of the
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panel. The petitioner also did not approach the Court
within the period of one year from the disclosure of the
breakup of marks in terms of the direction passed by the
Court.
Further contention of the Board is that the Rule
does not require publication of the panel along with the
breakup of marks. The panel published by the Board
disclosed the roll numbers, names, category, medium, the
break up and the total marks obtained by the candidates.
No further information is required to be disclosed.
Prayer has been made to dismiss the writ petition on
the ground of delay and laches.
In support of the aforesaid submission learned
advocate for the respondent Board relies on the following
judgments delivered by the Hon'ble Supreme Court in the
matter of State of Bihar & Ors. Vs. Md. Kalimuddin &
Ors. reported in (1996) 2 SCC 7, Haryana Financial
Corporation & Anr. Vs. Jagdamba Oil Mills & Anr.
reported in (2002) 3 SCC 496, Padma Sundara Rao
(dead) & Ors. Vs. State of T.N. & Ors. reported in (2002)
3 SCC 533, Ali Hossain Mandal & Ors. Vs. West
Bengal Board of Primary Education reported in 2024
SCC Online SC 1189 and Union of India vs. Ibrahim
Uddin & Anr. reported in (2012) 8 SCC 148.
I have heard the submissions made on behalf of
both the parties and perused the documents placed before
the Court.
At the time of preparation of the judgment it
revealed that certain facts and figures are to be brought on
record for proper adjudication of the instant lis. The steps
taken by the Board for preparation of the panel and
adhering to the procedure of selection as laid down in RR,
2016 are required to be perused prior to taking a decision
in the matter. It is required to be ascertained as to whether
the Selection Committee prepared separate council wise
panels as per the procedure laid down in RR, 2016.
Rule 8(9) of RR, 2016 mentions that even after
recruitment, at any stage, if it is detected or proved that a
candidate achieved success by way of unfair means or by
suppression of some material facts, his/her appointment
shall summarily be cancelled. Specific grievance of the
petitioner is that candidates securing lesser marks have
been provided appointment ignoring the claim of the
petitioner who secured more marks.
The Recruitment Rules specify that panel is required
to be prepared according to descending order of merit as
per existing vacancy, medium wise. Had the panel been
prepared according to the descending order of merit, a
candidate securing lesser marks could not have been
selected or offered appointment ignoring the right of the
candidate securing more marks. The allegation of the
petitioner implies that the preparation of the panel may
not have been appropriate. To ascertain as to whether the
panel was prepared correctly, the same is required to be
verified and scrutinized.
According to Rule 9 of the RR, 2016 the panels, after
being prepared, shall be accorded approval by the Board
and thereafter, shall be sent to the respective District
Primary School Councils. According to Rule 19 of RR,
2016 an approved panel shall remain valid normally for
one year from the date of approval by the Board. The
validity of the panel may be extended by the Board by six
months at a time, but the total period of extension shall
not exceed for a period of one year.
The date when the panel was approved by the Board
is significant because the period of validity of the panel
depends on such date. An opportunity ought to be given to
the Board to place on record the date on which the subject
panel was approved by the Board so that the date of expiry
of the panel can be calculated therefrom. Whether the
validity period of the panel was extended after its initial
approval by the Board is also required to be ascertained.
An argument has been advanced by the learned
advocate representing the Board that though there is a
requirement for preparation of the panel, but there is no
legal requirement to publish the same.
The Court is not inclined to accept such submission
made on behalf of an authority conducting public
recruitment examination. The panel is a list comprising of
candidates enlisted according to descending order of their
merit. The manner in which the merit of the candidates is
to be assessed is laid down in RR, 2016.
A candidate who appears in a competitive public
recruitment examination has every right to know his/her
position in the merit panel. From the position a candidate
holds in the panel he can assess his own credibility and
merit. A candidate aspiring for a public job can take
recourse to reformative/corrective steps to improve him to
better his position in the subsequent examination in which
he may participate.
There is a cut throat competition for securing a
Government job. Difference in marks of two successive
candidates is marginal. Position of a candidate in the merit
panel depends upon the marks awarded by the Selection
Committee. If the merit list is not published disclosing the
marks, then a cloud of suspicion grows in the mind of the
aspirants. Series of litigations follow from one Court to the
other resulting in enormous delay in finalization of the
recruitment process. The institutions suffer for want of
employees. Productive service period of the employees,
who are ultimately appointed, gets reduced. Those
employees rush to Court to seek notional service benefit as
the delay in issuance of their appointment letter was not
attributable to them. This way there is no end to the legal
battles which crop up.
The examination conducting authority should
maintain absolute fairness and transparency in the entire
recruitment process. The very purpose of holding an open
public examination is to select the best available
candidate. Compromising with the merit of a candidate for
providing appointment goes against the interest of the
institution. The organization suffers immensely if less
meritorious candidates are selected bypassing the better
ones. The entire recruitment process turns out to be a
farce. Sanctity of the recruitment process is to be
meticulously maintained.
An authority under Article 12 of the Constitution
cannot afford to act in an arbitrary manner. The authority
is legally bound to act fairly and in the manner prescribed
in law.
Moreover, the Board has not given any reason for
keeping the merit panel under wraps. For what good
reason will the marks obtained by a candidate in a
competitive examination be held back. The competitors
should know how they have fared in the examination and
the outcome of the effort that they have given to secure the
job. There should not be any doubt in their minds that
they have been deprived illegally. Every aspirant should
get a fair chance to compete and emerge successful. It is
only then that the institution or the organization will
prosper.
The Court is of the considered opinion that the merit
panel disclosing breakup of marks obtained by the
candidates ought to be published in public recruitment
examination unless there is a specific bar to do so.
As the subject recruitment process has been set
aside by the Court and the same is pending adjudication
before the Hon'ble appeal Court, as such, to avoid any
conflict of decision, the Court would like to decide the
instant writ petition only after perusing facts and figures
from the end of the Board.
The Board is directed to file affidavit in opposition
within 8th November, 2024; reply, if any, by 18th
November, 2024.
The affidavit shall disclose the manner of
preparation and publication of the panel, date of
approval of the panel, date of extension of the validity
period of the panel, if any, and all other steps taken in
connection with the subject recruitment process.
List the matter for hearing in the combined
monthly list of December 2024.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties upon compliance of usual
legal formalities.
( Amrita Sinha, J.)
