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2002 DIGILAW 217 (GAU)

Ratna Roy v. State of Tripura and Ors.

2002-05-22

B.B.DEB

body2002
B.B. DEB, J- In this writ petition under Article 226 of the Constitution of India, the petitioner challenged the letter of recommendation bearing No. F.66(l)-TPSC/94 dated 14.2.2001 by which the Tripura Public Service Commission, respondent No. 2 recommended the name of respondent No. 5, Shri Santanu Bhattacharjee for being appointed to the post of Assistant Professor, College of Teacher Education in the subject "Education". 2. The grievance of the petitioner is that pursuant to the advertisement No. 1/2000 dated 3.3.2000, floated by the respondent No. 2, the petitioner applied for the post of Assistant Professor, College of Teacher Education for the category of post - "Education". The petitioner did not get any interview/call letter at all, but surprisingly came to learn that the respondent No. 2 recommended the name of the respondent No. 5 for the post of Assistant Professor, College of Teacher Education in "Education". Hence she filed this writ petition on 28.2.2001 challenging the said impugned recommendation dated 14.2.2001. 3. Rule was issued by this Court vide order dated 1.3.2001 and in the connected Civil Misc. application No. 81 of 2001, this Court prevented the State of Tripura from issuing any letter of appointment in favour of the respondent No. 5 for the post of Assistant Professor, College of Teacher Education in the subject "Education". 4. The respondent No. 5 moved another Civil Misc. Application bearing No. 170 of 2001 seeking vacation of the interim order passed earlier and this Court vide order dated 19.4.2001 vacated the interim order of stay allowing the State respondents to appoint the respondent No. 5 to the aforesaid post, but the appointment would be subject to the result of the main writ petition. It was further ordered by the Court directing the respondent No. 2 Tripura Public Service Commission to conduct an interview of the petitioner and to "send an intimation by registered post with A.D. to the petitioner intimating her the date, time and venue for interview", but the result of the interview of the petitioner had been ordered to be kept in a sealed cover with the respondent No. 2 and to produce the same before the Court as and when called for. 5. The petitioner thereafter sought leave of the Court for amendment of the writ petition and the said petition has been registered as Civil Misc. 5. The petitioner thereafter sought leave of the Court for amendment of the writ petition and the said petition has been registered as Civil Misc. Application No. 227 of 2001 and this Court allowed the amendment vide order dated 11.6.2001. 6. By way of amendment, the petitioner averred that the respondent No. 5 is not eligible for the post of Assistant Professor in the subject "Education" as per the minimum qualification prescribed in the advertisement. According to the amended writ petition, the respondent No. 5 did not obtain minimum marks of 50% in his B.A. (Pass) Examination which is an essentially required qualification eligibility as per the advertisement, yet the respondent No. 2 not only entertained the application of the respondent No. 5 but also recommended his name for the post of Assistant Professor in Education in violation of the eligibility criteria. 7. The respondent No. 2, Tripura Public Service Commission in its counter-affidavit contends that on scrutiny of the candidates it was found that the petitioner, respondent No. 5 and one Shri Dipankar Paul satisfied the eligibility criteria pursuant to the advertisement for the post of Assistant Professor in Education and accordingly interview/call letters had been sent to all the eligible candidates under Certificate of Posting" calling upon them to "appear in the interview (Personality Test)" before the respondent No. 2 on 31.1.01, and all except the petitioner appeared in the interview and on the basis of the performance assessed, the respondent No. 2 recommended two candidates, one in the discipline of Geography and another in Education. The respondent No. 5 was recommended for the discipline of "Education". Simultaneously, the names of the candidates who were called for interview for the posts of Assistant Professor had been notified in the notice board of the office of the respondent No. 2, Tripura Public Service Commission. 8. While amendment was allowed, the respondents were asked to file additional counter-affidavit, if so advised. Thereafter, further time was allowed to furnish additional counter-affidavit vide order dated 18.7.2001, but the respondent No. 2 did not file any additional counter-affidavit, but on 4.4.2002 the respondent No. 2 filed a supplementary affidavit. The said supplementary affidavit only contends that the respondent No. 5 is an Honours Graduate in Education and placed in "Second Class". 9. Thereafter, further time was allowed to furnish additional counter-affidavit vide order dated 18.7.2001, but the respondent No. 2 did not file any additional counter-affidavit, but on 4.4.2002 the respondent No. 2 filed a supplementary affidavit. The said supplementary affidavit only contends that the respondent No. 5 is an Honours Graduate in Education and placed in "Second Class". 9. The respondent No. 5 filed separate counter-affidavit claiming himself to be disqualified and eligible for the post of Assistant Professor in the discipline of "Education" according to the advertisement issued by the respondent No. 2, Tripura Public Service Commission. 10. The respondent No. 1, State of Tripura and its officials, respondent Nos. 3 and 4 filing separate counter-affidavit contend that the respondent No. 2, Tripura Public Service Commission is only competent to scrutinise the eligibility of the candidates applied for the post and having conducted interview, the respondent No. 2 recommended the names of two persons, one for the discipline of "Education" and another for "Geography" vide memo, dated 14.2.2001. 11. Upon hearing the learned counsel for the parties and on perusal of the respective pleadings ard annexures appended thereto, the Court is called upon to examine and decided the following two points :- (!) Whether the petitioner was allowed the opportunity to appear in the interview for the post of Assistant Professor, College of Teacher Education in the subject "Education"? and (ii) Whether the respondent No. 5 is eligible in accordance with the requirement of the advertisement issued by the respondent No. 2, Tripura Public Service Commission for the post of Assistant Professor, Education? 12. From the advertisement dated 3.3.2000 (Annexure-3 to the writ petition) it appears that the qualifications required for the post of Assistant Professor in all the disciplines had been prescribed as under:- "Essential qualification:- a) School Final, Madhyamik or its equivalent a(i) Higher Secondary - 50 (fifty) (old Course/P.U.) percent marks b) Higher Secondary (10+2 stage or its equivalent. An average of both (a) to (b) c) B.A./B.Sc./B.Com. (pass) - 50 (fifty) per cent marks. B.A./B.S.C./B.Com (Hons.) - 2nd Class. d) M.A./M.Sc./M.Com.-At least 55 (fifty five) percent marks. e) M.Ed. Degree or equivalent of any recognised University (Only for College of Teacher Education, Tripura, Agartala). f) Knowledge of Bengali both written and spoken. Desirable qualification:- 1. An average of both (a) to (b) c) B.A./B.Sc./B.Com. (pass) - 50 (fifty) per cent marks. B.A./B.S.C./B.Com (Hons.) - 2nd Class. d) M.A./M.Sc./M.Com.-At least 55 (fifty five) percent marks. e) M.Ed. Degree or equivalent of any recognised University (Only for College of Teacher Education, Tripura, Agartala). f) Knowledge of Bengali both written and spoken. Desirable qualification:- 1. M.Phil, or Ph.D. Degree in relevant subject." In Clause 7 of the advertisement, it is prescribed that "selection may be made by interview or written examination/test or both at the discretion of the Commission". There is no stipulation in the advertisement how the interview/call letters would be issued or how the eligible candidates would be informed of the date, time and venue of the interview. 13. Mr A.C. Bhowmik, learned counsel appearing on behalf of the petitioner submits that at no point of time the petitioner received any information either by registered or ordinary post any call letter/interview card informing her the date, time and venue of the interview/ suitability test though she had been eagerly awaiting the same. 14. Mr S. Deb, learned senior counsel being assisted by Mr S. Deb (Jr.), learned counsel for the respondent No. 2, Tripura Public Service Commission submits that the interview cards were issued to all the eligible candidates including the petitioner under "Certificate of Posting" on 12.1.2001, but the token proof of "Certificate of Posting" has not been annexed to justify the actual posting of the interview letters as stated to be on 12.1.01. It is the responsibility of the respondent No. 2 to ensure the receipt of interview/ call letter by the eligible candidates. In the advertisement nowhere it was mentioned that the candidates were required to collect the date of interview from the notice board of the respondent No. 2, Tripura Public Service Commission. Presuming the interview letters having been sent under "Certificate of Posting" unless the same reached to the addressee, the liability would continue with the sender because of the fact that in such a situation the postal authority has been acting as an agent of the sender and not of the addressee. 15. Presuming the interview letters having been sent under "Certificate of Posting" unless the same reached to the addressee, the liability would continue with the sender because of the fact that in such a situation the postal authority has been acting as an agent of the sender and not of the addressee. 15. Under the aforesaid, I am convinced to hold that the respondent No. 2 failed to communicate the date, time and venue of the interview to the petitioner and in this way, the petitioner was deprived of her legitimate right to be interviewed for the post she applied for and that undoubtedly vitiated the process of selection. 16. Revert back to the allegation of lack of eligibility of the respondent No. 5, Mr Bhowmik, learned counsel for the petitioner submits that the respondent No. 5 did not complete B.A. (Hons.), but he passed B.A. (pass) course in first phase and subsequently, he obtained the Honours in isolation while the petitioner completed the B.A. (Hons) at a single phase and as such in case of the petitioner the required qualification, among others, would be "B.A. (Hons) with Second Class" and in case of the respondent No. 5, the earned qualification in "B.A. (Pass) with 50% marks" and then "Honours with Second Class." 17. On the other hand, Mr S. Deb, learned senior counsel for the respondent No. 2, Tripura Public Service Commission submits that both the petitioner and the respondent No. 5 are holders of "B.A. (Hons.) Degree" and placed in "First Class" and "Second Class" respectively and as such both were found to be equally eligible. 18. The certificate issued by the Tripura. University on 7.8.95 reveals that the petitioner "Smti Ratna Roy obtained the Degree of Bachelor of Arts (Three-year course) with Honours in this University at the Annual Examination in the year 1991, and that she was placed in the First Class in Education". In case of the respondent No. 5, the certificate in identical language is available which transpires that the respondent No. 5 "Santanu Bhattacharya obtained the degree of Bachelor of Arts (Three-year Course) which Honours in this University at the final examination in the year 1992, and that he was placed in the Second Class in Education". In case of the respondent No. 5, the certificate in identical language is available which transpires that the respondent No. 5 "Santanu Bhattacharya obtained the degree of Bachelor of Arts (Three-year Course) which Honours in this University at the final examination in the year 1992, and that he was placed in the Second Class in Education". The certificates of both the petitioner and the respondent No. 5 appear to be in the same wordings, but the marksheets of the petitioner and the respondent No. 5 demonstrate different aspects of the matter. 19. From the marksheet bearing serial No. 014916 for B.A. (Part-I Honours) Examination), 1990, it appears that the petitioner obtained marks 151 in Political Science out of 300, 150 marks in Psychology (including practical) out of 300 and she obtained 242 marks in Honours papers in "Education" out of 400. The marksheet of the petitioner bearing serial No. 4431 for Part II (3-Year honours) Examination, 1991 represents that she obtained 256 marks in remaining four Honours papers out of total 400 and was declared "Honours in First Class". From the aforesaid two marksheets, one of B.A. (Part-I Hpnours) Examination, 1990 and another B.A. Part-II (3-Year Honours) Examination, 1991, it appears that the petitioner obtained "First Class in Education (Hons)". The marksheet bearing serial No. 000126 of BA. (part-I Honours) Examination, 1988 demonstrates that the respondent No. 5 obtained 114 marks in Political Science in three papers out of total 300 marks, 151 marks in three papers of Education out of total 3000 marks and he obtained 70 marks in four papers in English Honours out of total 400 marks and he was declared plucked with a noting "Eligible for compartmental in ENGP". From the marksheet bearing serial No. 009378 of B.A. (Two Year Pass) Examination, 1989, it appears that the respondent No. 5 passed three papers in English securing 108 marks out of total 300 marks as a pass course subject and as a result, he was declared "B.A. Pass". Subsequently, he appeared in the Honours Examination in Education and the marksheet bearing No. 012305 of B.A. (Part-I Honours) Examination, 1991 reveals that he obtained 202 marks in four honours papers in Education out of 400. Subsequently, he appeared in the Honours Examination in Education and the marksheet bearing No. 012305 of B.A. (Part-I Honours) Examination, 1991 reveals that he obtained 202 marks in four honours papers in Education out of 400. The marksheet bearing No. 2303 for B.A. (Part II (3-Year Honours) Examination, 1992 represents that the respondent No. 5 completed the remaining four Honours papers in Education and secured 238 marks out of total 400 marks and he was declared "Honours in Second Class". 20. From the aforesaid analysis of the marksheets of the petitioner and the respondent No. 5, it appears that the petitioner passed "B.A. (Honours)" and was placed in "First Class" while the respondent No. 5 initially passed "B.A. (Pass)" and subsequently "B.A. (Honours)" and was placed in "Second Class". The manner in which the respondent No. 5 completed the Honours course, is commonly called "Special Honours". The person who completed Honours at a time and the person who completed Pass Course first and thereafter, Honours Course cannot be equated. 21. Having Anticipated the aforesaid prevailing practice of awarding Honours and Special Honours, the advertisement prescribed the minimum required marks of 50% in case of B.A./B.Sc./B.Com (Pass) and Second Class in case of B.A./B.Sc./ B.Com. (Hons). Therefore, according to my considered opinion, the petitioner's eligibility would be determined with reference to her obtaining marks or Class in B.A. (Honours) only while in case of the respondent No. 5 his eligibility must be assessed with reference to the marks he obtained in B.A. (Pass) and thereafter, his marks or Class in B.A. (Honours). 22. The respondent No. 5 obtained (114 + 151) = 265 marks in two pass subjects out of 600 in the B.A. (Part-I Honours) Examination, 1988 and he obtained 108 marks in English Pass subject out of total 300 in B.A. (Two Year Pass) Examination, 1989, thus the respondent No. 5 obtained total marks 373 out of 900 and thus his percentage of marks in B.A. (Pass) comes to less than 41% (40.14%). 23. This being the position, I am constrained to hold that the respondent No. 5 failed to qualify the eligibility criteria as he did not obtain 50% marks in B.A. (Pass) Examination. 24. 23. This being the position, I am constrained to hold that the respondent No. 5 failed to qualify the eligibility criteria as he did not obtain 50% marks in B.A. (Pass) Examination. 24. The respondent No. 2, Tripura Public Service Commission for reasons best known to it failed to take care of the aforesaid requirement of qualification eligibility of respondent No. 5 and as such the entertainment of the candidacy of the respondent No. 5 appears to be contrary to the advertisement, as a result, the impugned memo, dated 14.2.2001, issued by the respondent No. 2 recommending the name of the respondent No. 5 for being appointed to the post of Assistant Professor in Education is inconsistent with the eligibility criteria fixed by the respondent No. 2 itself and as such the same is liable to be and is hereby quashed. 25. In the result, the writ petition is allowed. The recommendation of the name of the respondent No. 5 for being appointed to the post of Assistant Professor, Education is hereby quashed. Consequently, if any order is issued by the respondent No. 1 appointing the respondent No. 5 to the post of Assistant Professor in Education at College of Teacher Education, is hereby quashed. The Tripura Public Service Commission, respon4eri¥ No. 2 is directed to open the result of the* petitioner kept under sealed cover pursuant to the order of this Court dated 19.4.2001 in C.M. Application No. 81 of 2001 and acting upon the result do the follow up action accordingly within 45 (forty five) days. No order as to costs.