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2003 DIGILAW 512 (GAU)

Chanchal Rakshit v. State of Tripura

2003-11-14

TINLIANTHANG VAIPHEI

body2003
JUDGMENT Tinlianthang Vaiphei, J. 1. After hearing the learned counsel for both the parties this writ petition is being disposed of at the admission stage. 2. The facts of the case, in brief, are that the respondent No. 2 by Annexure-1 issued an advertisement dated 14.11.2001 in a local daily inviting applications from bonafide Indian nationals and permanent residents of Tripura for several posts including one post of Garden Assistant (Class-III non-Gazetted) at Serial No. 9 of the said advertisement. The qualifications for the said posts are that the candidates must have passed the Madhyamik Examination or any other equivalent examination for which preference would be given to those who have knowledge of Agro-Climatic Situation of Tripura. The age limit prescribed for all categories of posts including the post of Garden Assistant was to be between 18 to 37 years as on 01.11.2001. It was also provided in the advertisement that maximum age limit was relaxable by 5 years in case of Scheduled Caste and Scheduled Tribe and Government employees. The petitioner submitted his application in the prescribed form along with attested copies of certificates and documents required on 19.11.2001 to the respondent No. 2. The petitioner states that apart from fulfilling of all essential qualifications prescribed in the advertisement, he also possess certificate of experience in Gardening issued by the North Eastern Electrical Power Corporation, a certificate in Horticulture Examination 1993, issued by the University of Calcutta, certificate of experience in Gardening issued by the Rubber Board dated 16.11.2001, certificate of experience in Gardening issued by Horticulturist (West), Govt. of Tripura dated 26.02.2001 vide Annexures-10, 11, 12 and 13. The petitioner further states that a substantial number of candidates appeared in the interview for the single post of Garden Assistant on 18.05.2002 and the interview board consisted of the respondent Nos. 2, 3 and 4 but without any person having qualification, experience or specialisation in horticulture, even though such experts are included in the Board for interviewing the candidates for the post of Computer Assistant and Vehicle Supervisor. It is the further contention of the petitioner that there was no candidates except him who had educational qualification i.e., one year certificate course in horticulture of the University of Calcutta besides having substantial knowledge of Agro-Climatic Situation of Tripura and outstanding knowledge and experience in horticulture especially in floriculture and gardening. It is the further contention of the petitioner that there was no candidates except him who had educational qualification i.e., one year certificate course in horticulture of the University of Calcutta besides having substantial knowledge of Agro-Climatic Situation of Tripura and outstanding knowledge and experience in horticulture especially in floriculture and gardening. The petitioner also states that being a science graduate and also having a satisfactory academic career he reasonably and legitimately expected that he would be selected and appointed to the post of Garden Assistant. It is also the case of the petitioner that when he was waiting for his appointment, he came to learn from news item published in the local daily 'Dainik Sambad' in its issue dated 13.10.2003 that the respondent No. 5 was appointed to the said post through nepotism even though he was aged 17 years and 7 months. It is also the case of the petitioner that the said news items also alleged that the respondent No. 5 was so appointed as his uncle was employed in the Tripura Legislative Assembly Secretariat and he was an influential leader of Employees Association. The same allegation was also made in 'Syandan Patrika', another Bengali daily of Tripura. It is also contended by the petitioner that the allegation appearing in the aforesaid news items remain unrefuted by the respondents. The petitioner also contends that he came to know that the respondent No. 5 passed Madhyamik Examination but did not have any education or training in gardening or horticulture or any experience in the line. According to the petitioner the selection of the respondent No. 5 was made without any authority of law and by means of nepotism or favouritism and as such his selection/appointment be cancelled. 3. The respondent Nos. 2 to 4 contested the writ petition by filing their counter affidavit. Similarly, the respondent No. 5 also resisted the writ petition by filing his counter affidavit. In their counter affidavit, the respondent Nos. 3. The respondent Nos. 2 to 4 contested the writ petition by filing their counter affidavit. Similarly, the respondent No. 5 also resisted the writ petition by filing his counter affidavit. In their counter affidavit, the respondent Nos. 2 to 4 state that for the purpose of selection of candidates for the post mentioned in the advertisement (Annexure-1) the Hon'ble Speaker of the Tripura Legislative Assembly constituted a selection board consisting of the Deputy Speaker, who was to act as Chairman of the Board, the Secretary of the Tripura Legislative Assembly Secretariat as a Member Secretary, the Joint Secretary of the Tripura Legislative Assembly Secretariat as Member and the Deputy Secretary of the Tripura Legislative Assembly Secretariat as Member. It was also ordered that the selection committee could include an expert whenever deemed necessary by the said Board. The respondents categorically deny that the Board was not constituted of persons having qualification, experience or specialisation in Horticulture. It is contended by the Assembly respondents that it was not mandatory for the Board to include an expert and that when the petitioner did not make any protest against the composition of the Board and after he participated in the interview he cannot now challenge the composition of the Selection Board. In so far as the interview for Computer Assistant is concerned, the Board in its wisdom though it fit to engage an expert in the subject of computer and as such a computer expert was included in the Board. In any case, it is submitted by the respondent Nos. 2 to 4 that non-inclusion of an expert in the selection board did not violate any rules of recruitment and cannot vitiate the selection made by the Board on that count. The respondent Nos. 2 to 4 also vehemently deny that there was no candidate except the petitioner who had educational qualification as alleged by the petitioner. It is submitted by the respondent Nos. 2 to 4 that in terms of the advertisement preference would have its role only when other things are equal and since the petitioner was not found suitable for the post, no preference should be given to him by reason of his possessing certificate of gardening etc. It is submitted by the respondent Nos. 2 to 4 that in terms of the advertisement preference would have its role only when other things are equal and since the petitioner was not found suitable for the post, no preference should be given to him by reason of his possessing certificate of gardening etc. It is also denied by the said respondents that the respondent No. 5 was not 17 years and 7 months as alleged by the petitioner or in the said news paper but had completed 18 years of age at the time of filing the application for the post. The said respondents also annexed the Admit Card said to belong to the respondent No. 5 in which his date of birth was recorded as 05.01.1980, vide Annexure-R/2. The said respondents also deny the allegation of the petitioner that they were influenced by a person (uncle of the respondent No. 5) without even disclosing the name of the said person and/or the post he holds. The said respondents categorically deny that there was any external influence in the matter of selection of the Garden Assistant. The said respondents also point out that the allegation made by the petitioner are too general or sketchy and that proper foundation has not been laid by him to make out a case of malafide or bias. The respondent Nos.2 to 4, therefore, prays that the writ petition may not be admitted and the same be dismissed at the admission stage. 4. The respondent No. 5 in his counter affidavit more or less supported the position of the respondent Nos. 2 to 4. He admits that he is the son of the elder brother of Sri Sajal Lodh, Assistant Caretaker of Tripura Legislative Assembly Secretariat, who is the Secretary of the Assembly Secretariat Local Committee of the Tripura Government Employees Association, but he denies that his appointment was made at behest of the said Sri Sajal Lodh. 5. Heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. S.R. Dey, learned counsel for the petitioner. I have also heard Mr. S. Deb, learned senior counsel, assisted by Mr. D.C. Nath, learned counsel for the respondents. 6. 5. Heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. S.R. Dey, learned counsel for the petitioner. I have also heard Mr. S. Deb, learned senior counsel, assisted by Mr. D.C. Nath, learned counsel for the respondents. 6. In the course of hearing, the learned senior counsel for the petitioner does no long press the case of the petitioner that the respondent No. 5 was under age in the light of the Admit Card produced by the respondents vide Annexure-R/2. Therefore, this point need not detain us further. The contention of the learned senior counsel for the petitioner is now confined to 3(three) points, namely, in respect of bias, nepotism and favouritism in the selection of the respondent No. 5, secondly, in respect of the composition of the Selection Board in which an expert in gardening was not included and thirdly, in respect of failure to give preference to the petitioner, who has knowledge of a Agro-Climatic Situation of Tripura. 7. In so far as the question of bias is concerned, the Apex Court in State of Punjab v. V.K. Khanna and Ors., reported in (2001) 2 SCC 330 has laid down the test of bias in para-8, which is reproduced thus :- 8. The test, therefore, is an to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise. 8. In the instant case the allegation of the petitioner is that one Sri Sajal Lodh, the uncle of the respondent No. 5 is an employee of the Tripura Legislative Assembly Secretariat and also an influential leader of the Employees Association and as such the selection board recommended the respondent No. 5 at the behest of the said Sri Sajal Lodh. It is an admitted position that the said Sri Sajal Lodh is not a member of the Selection Board. It is an admitted position that the said Sri Sajal Lodh is not a member of the Selection Board. That being the position, the question is whether a reasonable man would in the aforesaid circumstances infer that there is a real danger of Sri Sajal Lodh influencing the selection of the respondent No. 5 for the post of Garden Assistant or whether the apprehension of the petitioner of likelihood of bias in the instant case can be said to be fanciful apprehension. Apart from the fact that the said Sri Sajal Lodh is not even a member of the Selection Board, the petitioner has not stated how and in what manner such an employee belonging to the lower strata of the Assembly Secretariat would/could have exercised effective influence upon the members of the Selection Board, who are holding highly responsible posts in the Assembly secretariat. The law is settled that general allegation of malafide without any definite evidence therefore cannot be said to be a sufficient assertion worth acceptance in accordance with the law. There must be a positive evidence available on record in order to invalidate the decision making process of selection board on the ground of bias. In that view of the matter, I am not satisfied that the petitioner has established the case of bias in the selection of the respondent No. 5 or of his non-selection to the post of Garden Assistant. 9. In so far as the grievance of the petitioner regarding non-inclusion of an expert in the Selection Board is concerned, there is no provision in the Recruitment Rules requiring the inclusion of an expert in the Selection Board. The counter affidavit of the respondents Nos. 2 to 4 state that the Selection Board could include an expert whenever considered necessary. In other words the question of inclusion of an expert in the Selection Board is left to the Selection Board and there is no mandatory rule to include an expert in the Selection Board. Secondly, the petitioner had already participated in the interview conducted by the Selection Board without any protest and he cannot now question the composition of the Selection Board. Therefore, his contention on that score cannot be accepted. 10. Secondly, the petitioner had already participated in the interview conducted by the Selection Board without any protest and he cannot now question the composition of the Selection Board. Therefore, his contention on that score cannot be accepted. 10. It is next contended by the learned senior counsel for the petitioner that the petitioner is the only person having substantial knowledge of Agro-Climatic Situation of Tripura and has outstanding knowledge and experience in horticulture, specially in floriculture and gardening besides having substantial knowledge of Agro-Climatic Situation of Tripura and there was no candidate except him who has certificate course in Horticulture from the University of Calcutta. His contention is that other things being equal in terms of the advertisement, he should have been given preference since he has knowledge of Agro-Climatic Situation of Tripura. In Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors., reported in the Apex Court has considered the meaning of the word "preference" and has held as follows :- 'The word "preference" is capable of different shades of meaning taking colour from the context, purpose and object of its use under the Scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all-round merit, if had to be adjudged in that manner only, there is no justification for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. The "preference" envisaged in the Rules, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. The "preference" envisaged in the Rules, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification to, and demonstrate their superiority merit-wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection. 11. From the above, it is clear that in order to get preference, it must be shown that the claims of all candidates who are eligible are taken for consideration and that any one or more of them are found equally positioned. It is only after determining that all the candidates are found equally positioned that it is permissible to use the additional qualification as a tilting factor in favour of the petitioner vis-a-vis others in the matter of actual selection. 12. In the instant case, it is for the petitioner to prove that he and other candidates are standing on similar footing and are equally positioned in so far as the qualification etc. are concerned, but he has not placed any materials before this court to show that he and other candidates are equally positioned. It is not possible from the materials supplied by the petitioner to come to the conclusion that the other candidates including the respondent No. 5 are not possessing higher qualification than the petitioner. are concerned, but he has not placed any materials before this court to show that he and other candidates are equally positioned. It is not possible from the materials supplied by the petitioner to come to the conclusion that the other candidates including the respondent No. 5 are not possessing higher qualification than the petitioner. Apart from making an omnibus statement that except the petitioner there was no candidate who had educational qualification and experience for the post concerned, no materials have been furnished by the petitioner to show that at least he is equally positioned with the other candidates including the private respondent to preference. In that view of the matter, it is not possible to hold that the respondent No. 5 and the petitioner are not equally positioned. Accordingly, this court is not in a position to decide that the petitioner was entitled to be given preference over the other candidates. 13. It is a settled law that judicial review is directed against the decision making process and not against the decision itself and that the court in exercise of the power of judicial review cannot interfere in the decision making process of the administrative authority unless it can be shown that the decision making process suffers from the vice of irrationality, illegality or procedural impropriety. It is also settled law that when there can be two possible views, the writ court must upheld the views of the administrative authority. The instant case cannot be said to be one in which the decision making process of the Selection Board is tainted with irrationality, illegality or procedural impropriety or bias. 14. For the reasons stated above, this writ petition is devoid of merit and is hereby dismissed at the admission stage. However, in the facto and circumstances of the case, there shall be no order as to costs.