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2000 DIGILAW 583 (CAL)

Sushmita Roy v. State of West Bengal

2000-11-27

PRATAP KUMAR RAY, SATYABRATA SINHA

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Judgment Sinha, J.: 1. These three writ applications and the applications for addition of parties were taken up for hearing together and are being disposed of by this common judgment. 2. The petitioners in W.P.S.T. No. 834 of 2000 and W.P.S.T. No. 835 of 2000 were the applicants before the learned Tribunal. The petitioners in W.P.S.T. No. 941 of 2000 have filed this writ application before this Court on the ground that their interests would be adversely affected if some order is passed in the other connected writ applications as admittedly they are the successful candidates. Having regard to the order proposed to be passed by us it is not necessary to state the fact of the matter in a great details. Suffice it to point out that in the year 1993, the State of West Bengal had made an advertisement as regard 80 vacant posts of Medical Technologist (Laboratory). In the advertisement no mode and manner of selection of candidates had been specified. However, according to the State itself, the following procedure had been adopted :- "5(b). In the year 1995, the Department of Health had been suffering in their work schedule of said laboratory work and investigation were being delayed causing great predicament and hardship to the patients due to non-availability of Medical Technicians, as 80 such posts were lying vacant. Despite various constraints, the Department wanted to fill in the said vacancies considering the distress of the patients, expeditiously. It may be noted that 'besides the Government Hospitals these technologists are also required in Primary Health Centres, all Medical Teaching Colleges and Government Blood Banks. (c) A huge number of eligible candidates about 4000 for only 80 vacancies. posed a problem for selection and the Government ultimately decided to make an arrangement for written examination in order to screen the candidates and. those who got eligible (qualifying) marks, would be called for interview for selection in the posts of Medical Technologist. The written examination was held in accordance with law. In the said written examination all eligible candidates including the petitioners, in compliance with the order of Hon'ble Justice S.B. Sinha on 27.1.96 in C.O. No. 12464(W) of 1995, were allowed to sit. After the examination, the answer papers of all the candidates were examined and. marks were allotted. The written examination was held in accordance with law. In the said written examination all eligible candidates including the petitioners, in compliance with the order of Hon'ble Justice S.B. Sinha on 27.1.96 in C.O. No. 12464(W) of 1995, were allowed to sit. After the examination, the answer papers of all the candidates were examined and. marks were allotted. According to total marks obtained by each and every candidates, it was scrutinised whether the candidate obtained qualifying marks and those who obtained such qualifying marks, their names were published. Those candidates who belonged to exempted category their qualifying marks is 40 per cent out of total marks of 50, i.e., 20. Any person who obtained below the qualifying marks of 20 was not called for oral interview for selection of the post. (d) The Government had constituted a Selection Committee for the purpose of Selection of Medical Technologists (Laboratory) through oral examination and interview. The said Committee was consisting of Additional Director of Health Services, Assistant Director of Health Services, P.A. to Director of Health Services. Besides the aforesaid, the Committee was conferred with the Right to co-opt other members in the Committee as and when it would be necessary. The Additional Director of Health Services (Administration) as Chairman of the said Committee, in exercise of the said power to co-opt members, subsequently, do-opted the Joint Director of Health Services as Member. Two experts, viz., Professor and Head of the Department of Pathology, Calcutta Medical College and Professor and Head of the Department of Pathology, R.G. Kar Medical College were invited by the Committee in the oral examination. (e) The total marks in the oral interview was allotted 50, the distribution of which was as follows :- (i) Oral question on the subject 30 (ii) Personality and General Behaviour 15 (iii) Academic Qualification 5 50 (f) Written examination was held for the purpose of screening and only to specify the number of eligible candidates who obtained qualifying marks in screening for the purpose of interview for selection for the post. The marks obtained in the written examination has got nothing to do with selection of candidates for the post, nor the same is 'a contributory factor. A number of candidates were selected as per decision of the Selection Committee on the basis of marks obtained in the oral examination/interview. The marks obtained in the written examination has got nothing to do with selection of candidates for the post, nor the same is 'a contributory factor. A number of candidates were selected as per decision of the Selection Committee on the basis of marks obtained in the oral examination/interview. The Selection Committee forwarded a rank wise merit list prepared on the basis of marks obtained by the candidates awarded by the Selection Committee in the interview. Accordingly, a panel for appointment of the candidates was prepared on the basis of the list of the Selection Committee." 8. With regard to Paragraphs 6.8 to 6.10, I say that a list of successful 240 candidates, forwarded by the Selection Committee, a panel was prepared on the basis of merit list of selected candidates and appointment were given from the said panel from two categories, viz., general category and reserve category. I further say that Sri Sudip Roy obtained 40 marks out of 50 in the interview and the Selection Committee, on the basis of merit decided his rank as "11th'. 3. Before the interview was held, the petitioners of W. P. C. T. No. 835 of 2000 filed an application before the learned Tribunal on 25th July, 1996 which was marked as O. A. No. 459/96, inter alia praying that the oral examination/interview due to be held on 1.8.96 be stayed and the records of the case be called for. 4. However, interview was held in between 1.8.96 and 20.8.96. Another application being O.A. No. 8345 of 1993 giving rise to W.P.C.T. No. 834 of 2000 was flied in the month of August 1999 wherein it was alleged that though the written examination was held in August 1995 and, thereafter, interview was held and completed by August 1996, the respondents had not published the list of selected candidates whereas the respondents had empanelled 450 candidates and were in the process of issuing appointment letters to those persons who were successful candidates both in written examination and oral examination. It appears that the learned Tribunal directed the respondent to publish the list of the candidates who succeeded both in written and oral examinations. In O. A. No. 8245 of 1999, a supplementary affidavit was filed alleging :- "Question paper was xeroxed by the xerox machine which is lying in the chamber of Director of Health Service....... at that material point of time Dr. In O. A. No. 8245 of 1999, a supplementary affidavit was filed alleging :- "Question paper was xeroxed by the xerox machine which is lying in the chamber of Director of Health Service....... at that material point of time Dr. Samir Roy was the Director of Health Service... ..who is the father of Sri Sandip Roy, a proforma respondent in the original application. That a good member of candidates including. Sri San dip Roy proforma respondent got copy of question paper before examination (written) and such candidates are relatives of Officers and/or Clerks/Class IV Staff and other category staff of the Dept. of Health and Family Welfare. All the candidates including Sandip Roy also awarded high marks in alleged oral examination." 5. It was also prayed that the respondents be directed to produce the panel as also the relevant records. Affidavit-in-Opposition was filed by the respondents sometime in February 2000. The learned Tribunal having regard to the stand taken by the respondents and upon taking into consideration the various decisions of the Apex Court in the case of (1) Ajay Hasia v. Khalid Mujib Sheravardi reported in 1981(1) SCC 722 , and (2) Raj Kumar v. Shakti Raj reported in 1997(9) SCC 527 , came to the conclusion that the entire selection process is vitiated in law. The learned Tribunal, inter alia, held : (1) The respondents could not have excluded computation of the marks obtained by the candidates in the written examination. (2) The process of selection was otherwise not in accordance with law: The learned Tribunal held : "From our discussions as made above, we decide that a fresh merit list should be prepared of all the candidates by adding the marks obtained by them in both the written test and in the oral test excluding those who are already in service. In the oral test 40 % was fixed by the committee as pass marks. This standard of 40% should be applied on the total marks as pass marks. Appointments should be given from the fresh panel so prepared in order of merits subject to reservation rules to the candidates to fill up the vacant posts. Age will be no bar to their appointment but every appointment will be subject to medical examination report and police verification report. All the appointments should be given within a span of four months from 1st day of July, 2000." 6. Age will be no bar to their appointment but every appointment will be subject to medical examination report and police verification report. All the appointments should be given within a span of four months from 1st day of July, 2000." 6. No writ application has been filed against the aforementioned judgment and order of the learned Tribunal either by the State of West Bengal or by the selected candidates. As indicated hereinbefore, a fresh writ application has been filed by some of the selected candidates, namely. Sushmita Roy and others which was marked as W.P.S.T. No. 941 of 2000 before this Court. 7. The learned Counsel for the parties are not in a position to state before us whether the said writ petitioners were parties before the learned Tribunal or not. It has also been pointed out as to whether those persons who had been appointed during the pendency of the application before the learned Tribunal or at least some of them were added as parties or not. Probably, they were not and as such they have aha not been impleaded before us as party respondents. Furthermore, one of the application being O.A. No. 459 of 1996 was filed as far back as on 25.7.96, i.e., much prior holding of the interview and as such at that point of time the question of impleading the successful candidates does not arise. In any event, as it appears from W.P.C.T. No. 834 of 2000 that an interim order was passed to the effect that all actions taken upon completion of the purported selection process would abide by the result of the application, the appointees were not required to be impleaded as parties. We may further notice that such a question had not been raised before the learned Tribunal nor the matter had been decided on the basis thereof. Before us the learned Counsel for the respondents in W.P.C.T. No. 834 of 2000 and W.P.C.T. No. 835 of 2000 as also the applicants for intervention submit that the learned Tribunal erred in issuing the aforementioned direction, inasmuch as, having regard to the various decisions of the Apex Court, the entire selection process ought to have been set aside. The learned Counsel contends that even if such direction could be issued: the same ought to have been done in terms of the judgment of the Apex Court. The learned Counsel is correct. The learned Counsel contends that even if such direction could be issued: the same ought to have been done in terms of the judgment of the Apex Court. The learned Counsel is correct. The finding of the learned Tribunal to the effect is that the marks obtained by the successful candidates in the written examination has not been taken into consideration at all which vitiated the selection process. See: (3) Parveen Singh v. State of Punjab, JT 2000 (Supp) SC 526. Further argument has been advanced that against 80 posts 450 candidates could not be empanelled and out of them 240 candidates could not have been selected for appointment. Such action on the part of the Respondent-State is evidently bad in law. It has further been pointed out that even 100% roster has not been maintained. 8. Having heard the learned Counsel for the parties, we are of the opinion that the question as to whether those candidates who had been appointed would be allowed to continue or not, must be considered afresh by the learned Tribunal. The learned Tribunal has not assigned any reason far less cogent or sufficient reasons as to why those who had been appointed by the State of West Bengal during the pendency of the writ application and pursuant to the order passed by the learned Tribunal could have been permitted to be continued. We would like to point out to the learned Tribunal that if the entire selection process was vitiated in law, the question of allowing some persons who had been appointed owing to some situation could not have been allowed to continue only on the basis of sympathy alone. It further appears to us that the question as to whether 40% marks should have allotted in the oral test or not should have also fallen for consideration before the learned Tribunal having regard to the various decisions of the Apex Court. 9. If the grievance of the petitioners to the effect that 100% roster has not been maintained the same has also been fallen for consideration before the learned Tribunal. 10. Before the learned Tribunal. the clients of Me. Roy, learned Counsel, who are the petitioners in W.P.S.T. No. 941/2000 may also be heard, inasmuch as, they are the selected candidates. The writ petitioners would appear before the learned Tribunal whereupon, they would be impleaded as parties in the pending application. 10. Before the learned Tribunal. the clients of Me. Roy, learned Counsel, who are the petitioners in W.P.S.T. No. 941/2000 may also be heard, inasmuch as, they are the selected candidates. The writ petitioners would appear before the learned Tribunal whereupon, they would be impleaded as parties in the pending application. The writ application being W.P.S.T. No. 941/2000 filed by Sushmita Roy and others cannot be entertained by this Court at the first instance having regard to the decision of the Apex Court in the case of (4) L. Chandra Kumar v. Union of India & Ors. reported in 1997 (3) SCC 261 . 11. Any other persons who have been appointed may also file an application for impleading themselves as parties before the learned Tribunal. 12. For the reason aforementioned. the State shall disclose the names of the persons who may be impleaded or at least some of them may be impleaded in their representative capacity in view of the decision of the Apex Court reported in (5) AIR 1985 SC 167 . 13. For the reason aforementioned, these applications are disposed of with the aforementioned direction. Having regard to the fact that the applications are pending for a long time, we would request the learned Tribunal to dispose of the matter at an early date and preferably within a period of two months from the date of communication of this order. The applications for addition of party are allowed. Ray, J.: I agree. S. K. G.