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2001 DIGILAW 242 (CAL)

Dhruba Kumar Tewari v. State of West Bengal

2001-04-26

Prabir Kumar Samanta

body2001
JUDGMENT Prabir Kumar Samanta, J. These two writ petitions are taken up for disposal in presence of the learned Advocates for the respective parties. 2. The learned Advocate appearing on behalf of the concerned respondent School Service Commission produced the records relating to this case. The same are kept on record. 3. The dispute in both these two writ petitions is related to the selection in the post of Assistant Headmaster of Khudiram Pally Sukanta Smriti Vidyapith, P.O. Islampur, Dist. Uttar Dinajpur. It appears from the records of these two writ petitions that Sri Dhruba Kumar Tewari has better Academic records all through out than Sri Swapan Kumar Majumdar the other writ petitioner. More particularly said Dhurba Kumar Tewari is an Assistant Teacher with 10 years experience, whereas said Swap an Kumar Majumdar is an Assistant Teacher with less than 10 years experience. From the records of the West Bengal Regional School Service Commission (Northern Region), it is also evident that said Dhruba Kumar Tewari was awarded 29 marks on the basis of his academic records and experience as per the relevant rules whereas said Swap an Kumar Majumdar obtained 26 marks on such consideration. As per the relevant rules 5 marks have been reserved for viva-voce/personality test (interview). The records as produced by the respondent School Service Commission revealed that it selected said Sri Swapan Kumar Majumdar who had 3 marks less in total on the basis of his educational qualification and experience in teaching by allotting him 4.67 marks out of 5 marks reserved for the aforesaid viva voce/personality test (interview) while said Sri Dhruba Kumar Tewari was allotted only 1.33 marks in the said viva voce test. This raised the dispute. 4. Swapan Kumar Majumdar filed the writ petition for a direction upon the school authority to issue an appointment letter in his favour on the basis of the said selection made by the respondent School Service Commission while said Dhruba Kumar Tewari challenged the said selection on the ground of mala fide and the vice of manipulation. 5. Mr. Amal Baran Chatterjee, learned Advocate appearing on behalf of the petitioner upon reference to the decision reported in AIR 1997 SC, page 2083 (University of Cochin vs. N.S. Kanjoonjamma) contended that the petitioner namely Sri Dhruba Kumar Tewari having participated in the selection process was estopped from challenging the selection made by the said committee. 5. Mr. Amal Baran Chatterjee, learned Advocate appearing on behalf of the petitioner upon reference to the decision reported in AIR 1997 SC, page 2083 (University of Cochin vs. N.S. Kanjoonjamma) contended that the petitioner namely Sri Dhruba Kumar Tewari having participated in the selection process was estopped from challenging the selection made by the said committee. The aforesaid Supreme Court decision was on a question whether the procedure for selection was correctly followed by applying the relevant provisions of the Rules. It was held that when advertisement was made for special recruitment of the Schedule Castes and Tribes is the posts reserved for them, then application of general rules for the purpose of selection and/or non-mention of special recruitment rules for the purpose of selection of such schedules castes and tribes candidates did not vitiate the process for selection. In that context it was held that the parties having participated in such selection process where the general rules were made applicable for the purpose of selection cannot challenge the said selection process by saying that it was not by way of special recruitment process, after being unsuccessful in the selection process. To be more precise the process of selection has not been challenged in this writ petition by the said Dhruba Kumar Tewari . The challenge is against the vice of manipulation in the selection but not the process. 6. Mr. Chatterjee next relies on a decision reported in AIR 1990 SC, page 434 (Dalpat Abassheb Solumke vs. Dr. B.S. Mahajan). The Supreme Court in the said decision held that whether a candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the experience on the subject. The court having no such expert knowledge in the matter can interfere with the decision of the selection committee only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved mala fides affecting the selection etc. The said decision therefore made it, clear that the court can interfere with the selection by the selection committee, if the mala fide motive of the selection committee affecting the selection is established in the eye of law. 7. Mr. The said decision therefore made it, clear that the court can interfere with the selection by the selection committee, if the mala fide motive of the selection committee affecting the selection is established in the eye of law. 7. Mr. Anupam Chatterjee, learned Advocate appearing on behalf of Mr.Dhruba Kumar Tewari on the other hand relied on a decision reported in AIR 2001 S.C. page 152 (Praveen Singh vs. State of Punjab) which laid down in paragraph 9 of the said report as under:- "Does it say that interview should be only method of assessment of the merits of the candidates? The answer obviously cannot be in the affirmative. The vice of manipulation, we are afraid cannot be ruled out. Though interview undoubtedly a significant factor in the matter of appointments. It plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. Obviously it is an important factor but ought not to be the sole guiding factor since reliance thereon only may lead a 'sabotage of the purity of the proceedings'. A long catena of decisions of this court have been noted by the High Court in the judgment but we need not dilate thereon neither we even wish to sound a contra note. In Ashok Kumar's case. Ashok Kumar Yadav vs. State of Haryana, (1985) 3 Serv LR 200: ( AIR 1987 SC 454 : 1986 Lab IC 1417), this court however in no uncertain terms observed. There can therefore be no doubt that the viva voce test performs a very useful function in assessing the personal characteristics and traits and in fact test the man himself and is therefore, regarded as an important tool along with the written examination." 8. In view of the aforesaid principles laid down by the Supreme Court, the question boiled .down to the point that whether the selection made in this case by the Selection Committee, could be said on the materials on record, was free from the vice of manipulation. 9. The post of an Assistant Headmaster in a school is basically a teaching post which is furthermore evident from the fact that out of total 35 marks only 5 marks have been reserved for viva voce/personality test (interview) and rests 30 marks are allotted on the basis of academic qualifications and teaching experience. 9. The post of an Assistant Headmaster in a school is basically a teaching post which is furthermore evident from the fact that out of total 35 marks only 5 marks have been reserved for viva voce/personality test (interview) and rests 30 marks are allotted on the basis of academic qualifications and teaching experience. It is also desirable that a person with better academic records should always be appointed in a teaching post unless there is some significant impediment in the personality of such a candidate. The records as produced by the respondent School Service Commission clearly indicated that there was a clear difference of 3 marks between the two out of the allotted 30 marks for educational qualifications and teaching experience. These difference of 3 marks in 30 marks which is 10% of the marks for educational qualifications and teaching experience were sought to be wiped out by allotting almost 5 marks i.e., 100% of the marks reserved for viva voce/personality test (interview) to said Sri Swap an Kumar Majumdar. A difference of 10% marks in educational qualifications and teaching experience is hard to believe, could be supplemented by any other qualities that may appear in viva-voce test which did not make room for class room teaching demonstration. Wiping out of this difference of 10% mark in educational qualification and teaching experience in a viva voce/personality (interview) test cannot therefore be said to be free from the vice of manipulation, particularly when the said Selection Committee in the score sheets as produced by the learned Advocate for the School Service Commission, did not record any extraordinary characteristics of personality, intelligence and/or anything else of Sri Swapan Kumar Majumdar. Thus allotment of almost full marks in such test therefore cannot be said to be free from any vice and/or manipulation by the selection committee. I, therefore, do not feel inclined to give credence to such allotment of marks in the said test by the selection committee. The same is therefore set aside. 10. Thus allotment of almost full marks in such test therefore cannot be said to be free from any vice and/or manipulation by the selection committee. I, therefore, do not feel inclined to give credence to such allotment of marks in the said test by the selection committee. The same is therefore set aside. 10. Since, this court had neither the occasion nor the expertise to determine what particular marks should be allotted to the candidates in such an interview, so this writ petition is further disposed of by directing the Director of School Education, West Bengal to refer the cases of the aforesaid two candidates namely Dhruba Kumar Tewari and Swapan Kumar Majumdar along with one other namely Subrata Kumar Banerjee who had also been included in the panel of selected candidates to a Selection Committee of any other School Service Commission other than the Northern Region as may be found deem fit and proper by him for holding their interviews for a viva-voce/ personality test as per the rules and for preparation of a panel in order of merits on the basis of total marks obtained by them. It is made clear that the marks as obtained by them in the selection process held by the said School Service Commission, Northern Region on the basis of their educational qualification and teaching experience shall not be interfered with. These candidates will be interviewed only for the purpose of allotment of marks out of 5 marks reserved for the same. The said Director of School Education will see that the selection as above is completed within a period of two months form the date of communication of this order. 11. These two writ petitions are accordingly disposed of. 12. If urgent certified copy of this order is applied for by the parties, the same should be given expeditiously. Writ petitions disposed of with directions.