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2005 DIGILAW 571 (CAL)

RAGHAB CHANDRA DESHMUKH v. STATE OF WEST BENGAL

2005-08-26

GIRISH CHANDRA GUPTA

body2005
Girish Chandra Gupta ( 1 ) THE writ petitioner has challenged the recruitment process on two grounds:- (a) That the Respondent No. 6, who has been recruited was above age and did not, therefore, conform to the eligibility criteria. (b) That the recruitment process was vitiated by bias because the Respondent No. 7 was the ex-officio Chairman of the Block Level selection Committee and the appointment was given to her husband, the Respondent No. 6 herein. ( 2 ) IT has not been disputed by anyone that the Respondent No. 7 was, in fact, the ex-officio Chairman of the said Selection Committee nor is there any dispute that she is the wife of the Respondent No. 6. There is, however, a defence of confession and avoidance sought to be taken very faintly in the affidavit of the Respondent No. 7. The plea of confession and avoidance is to be found in sub-paragraph (1) of Paragraph 4 of the affidavit affirmed by one smt. Sabnam Begum on 28th April, 2005, which reads as follows :-"4 (f) That according to the Recruitment Rules the Sabhapati of the Panchayat Samity is the Chairman of Block Level Selection committee. I being the Sabhapati of the Shyampur-ll Panchayat samity was the Chairman of the said Selection Committee at the initial stage, but I have restrain myself from any meeting and/or action of the selection Committee from that moment the Respondent No. 6 being my husband allowed to appear before the selection process pursuant to the solemn order passed by this Hon'ble Court on 24. 5. 2000. " ( 3 ) THERE is, however, no definite indication nor any proof as to from which stage she withdrew herself from the selection process. The undisputed fact is that requisition was sent to the employment exchange concerned on 26th December, 1999. Candidates were sponsored on the basis of the aforesaid requisition and written examination was scheduled to be held on 8th July, 2000. The answer scripts were examined prior to 15th September, 2000. On the basis of the result secured by the candidate in the written examination, a list of five candidates was prepared in which the name of the respondent No. 6 and the petitioner appeared. Thereafter, the Selection committee met on 15th September, 2000, for the purpose of fixing an oral interview. This meeting was held on 15th September, 2000. On the basis of the result secured by the candidate in the written examination, a list of five candidates was prepared in which the name of the respondent No. 6 and the petitioner appeared. Thereafter, the Selection committee met on 15th September, 2000, for the purpose of fixing an oral interview. This meeting was held on 15th September, 2000. From the resolution disclosed by the Respondent No. 7 dated 15th September, 2000, it appears that she did not participate in the deliberation held on 15th september, 2000. Considering the fact that she herself has not disclosed in her affidavit the date from which she refrained from participating in the selection process and considering further that she herself disclosed the resolution dated 15th September, 2000, which goes to show that she was not presiding over the meeting, then it can safely be concluded that she stopped taking part in the selection process on 15th September, 2000. By that time the written examination had been conducted, results had been obtained and a list of five candidates, who had secured marks on the higher side, had been prepared. The submission that she did not participate in the selection process is, therefore, belied by her own statement and the documents disclosed by her. The fact that the Respondent No. 7 was the selector and the fact that her husband, the Respondent No. 6, was the selectee in the ultimate process is enough to vitiate the entire proceedings. It is well settled that a well-founded apprehension of bias is enough and no actual bias need be established because the principle is that justice should not only be done, it should also appear to have been done. This principle was also extended to administrative matters. If any authority is required for the view that I have taken, reference can be made to the case of Ashok Kumar yadav and Ors. v. State of Haryana and Ors. reported in 1985 (4) SCC 417 para 18, wherein the following view was expressed. This principle was also extended to administrative matters. If any authority is required for the view that I have taken, reference can be made to the case of Ashok Kumar yadav and Ors. v. State of Haryana and Ors. reported in 1985 (4) SCC 417 para 18, wherein the following view was expressed. "there can be no doubt that if a Selection Committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the Selection Committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. " ( 4 ) IN the case of Dr. (Mrs.) Kirti Deshmankar. v. Union of India reported in 1991 (1)SCC 104 admission of the candidate to a post-graduate course was set aside because the mother-in-law of the candidate was in the selection committee. ( 5 ) THEREFORE, the first point urged by the learned Advocate, for the writ petitioner, is accepted. ( 6 ) THE second point is with regard to the age. Admittedly, the requisition contains a condition with regard to age as follows :-"6. Age : 18 to 37 years upper age limit relaxable in the case of scheduled castes, scheduled tribes, other backward classes and exempted categories of candidate as per rules and others of the Govt. in the Labour Department and backward class welfare Department as in the case may be. " ( 7 ) IT is not in dispute that the Respondent No. 6 was born on 3rd february, 1958. Therefore, as on the date of requisition, he was already 41 years 10 months old approximately, that, is to say, he was already age-barred even on the date of requisition issued by the recruitment authority. ( 8 ) THE learned Advocate, appearing for the Respondent No. 6, submitted that he was enrolled on 23rd June, 2000, as an exempted category candidate in the records of the employment exchange concerned. ( 8 ) THE learned Advocate, appearing for the Respondent No. 6, submitted that he was enrolled on 23rd June, 2000, as an exempted category candidate in the records of the employment exchange concerned. He has also produced a xerox copy of that certificate at the hearing although the same was not annexed to the affidavit-in-opposition filed by him. Mr. Jha, the learned Advocate, appearing for the Respondent No. 6, relying on a judgment of the Apex Court in the case of Ashok Kumar Sharma v. Chancier Shekher, 1993 Supp (2) Supreme Court Cases 611, submitted that although the requisite eligibility was not there on the date the post was advertised, it is enough if the requisite eligibility is obtained on the date of interview. He relied on paragraph 15 of the judgment wherein Their Lordships opined as follows :-"the appellants were fully qualified on the dates of the interview and taking into account the generally followed principle of Rule 37 in the State of Jammu and Kashmir, we are of the opinion that the technical view adopted by the learned Judges of the Division Bench was incorrect and the view expressed by the learned Single Judge was, on the facts of this case, the correct view. " ( 9 ) MR. Sanyal, the learned Advocate, appearing for the writ petitioner, submitted that the law cited by Mr. Jha, appearing for the Respondent No. 6, has been dissented by the Apex Court in a review petition in the self-same matter which is reported in 1997 (4) SCC 18 . He drew attention of this Court to paragraph 6 of the said case which reads as follows :-"the review petitions came up for final hearing on 3. 3. 1997. We heard the learned counsel for the review petitioners, for the State of jammu and Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1. 9. 1995 is concerned, we are of the respectful opinion that majority judgment (rendered) by Dr. T. K thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as, the last date for filing the applications, the eligibility of the candidates shall have to be Judged with reference to that date and that date alone, is a well-established one. T. K thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as, the last date for filing the applications, the eligibility of the candidates shall have to be Judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications afterthe prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualification, by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha chaturvedi v. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appearforthe interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R. M. Sahai, J. (and the Division Bench of the High Court)was right in holding that the 33 respondents could not have been allowed to appear for the interview. " ( 10 ) HE also drew attention of this Court to a subsequent judgment of the Apex Court in the case of Bhupinderpal Singh and Ors. v. State of Punjab and Ors. reported in 2000 (?) SCC 262. " ( 10 ) HE also drew attention of this Court to a subsequent judgment of the Apex Court in the case of Bhupinderpal Singh and Ors. v. State of Punjab and Ors. reported in 2000 (?) SCC 262. He drew my attention to Paragraph 14 of that judgment wherein Their Lordships opined as follows:-'it was pointed out on behalf of the several appellant-petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. " ( 11 ) MR Jha, appearing for the Respondent No. 6, was not also in a position to show any provision of law which entitles a candidate enrolled in exempted category to be recruited in a vacancy advertised for the general category. He also did not draw attention of this Court to any provision of law under which the exempted category candidate was entitled to any exclusion or any relaxation in the matter of age. Therefore, even assuming that he was an exempted category candidate, that would not really benefit the writ petitioner in any manner whatsoever. The bar fell in his way and he was clearly ineligible. None the less he was appointed. One possible reason why he was appointed is the first ground advanced by the writ petitioner, already dealt with above. ( 12 ) ALTHOUGH these were the two points raised by Mr. Sanyal for the purpose of assailing the appointment made in favour of the Respondent No. 6, he also drew attention of this Court to the fact that on 20th December, 1999 the Selection Committee issued the requisition. The date when the candidates were sponsored is not available on the records, but it must have been done within a reasonable time thereafter. The date when the candidates were sponsored is not available on the records, but it must have been done within a reasonable time thereafter. Admittedly, the Respondent no. 6 was not sponsored by the employment exchange. He moved a writ petition which was registered as A. S. T. No. 1974 of 2000 and subsequently was renumbered as W. P. No. 8864 (W) of 2000 (Syed Julfikar v. State of west Bengal and Ors. ). He obtained an interim order on 24th May, 2000. The interim order reads as follows:-"in view of the urgency as pleaded in the petition, requirement of rule 27 of the writ Rules be dispensed with. Let this matter appear before the appropriate regular Bench one week after the Summer Vacation. Meanwhile, the petitioner shall be allowed to take part in the interview along with other eligible candidates provided the petitioners fulfils the eligibility criteria including age and education. The petitioner will be entitled to appear at the interview along with other eligible candidates even without his name being sponsored by the Employment exchange. The petitioner is directed to serve copies of this writ application upon the respondents and shall file an affidavit of service on the next date of hearing. In default thereof, the interim order will stand vacated. In any benefits is derived in terms of this order, this interim order will stand set aside and/or cancelled. The respondents are given liberty to apply for vacation and/or variation of this order upon notice to the petitioners. " ( 13 ) BASED on this order, the Selection Committee straightway allowed the Respondent No. 6 to appear at the written examination without satisfying themselves as to whether the petitioner fulfilled other eligible criteria as laid down in that order dated 24th May, 2000. Nothing has been disclosed before this Court to show that any exercise was made by the Selection Committee to ascertain the eligibility of the writ petitioner. Surprisingly, the State/ respondents in their affidavit affirmed by one Nimai Chand Sau have denied that "the Respondent No. 6 appeared before the Selection Committee as a non-sponsored candidate and he also over aged and the Selection Committee considered his name as an exempted category though the said post has been reserved for general category as alleged or at all. Surprisingly, the State/ respondents in their affidavit affirmed by one Nimai Chand Sau have denied that "the Respondent No. 6 appeared before the Selection Committee as a non-sponsored candidate and he also over aged and the Selection Committee considered his name as an exempted category though the said post has been reserved for general category as alleged or at all. " ( 14 ) THE aforesaid denial is to be found at page 8 of the affidavit of nimai Chand Sau. The aforesaid sentence quoted from the affidavit of Nimai chand Sau, would go to show that the case of the State is that the respondent No. 6 was not a non-sponsored candidate whereas nothing has been disclosed to show nor is it even the case of the Respondent No. 6 himself that he had been sponsored by the Employment Exchange concerned. It has also been denied by the State that the Respondent No. 6 was overaged although no such case was run even by the learned Advocate, appearing for the Respondent No. 6. They have also denied the fact that the name of the Respondent No, 6 was considered as a candidate belonging to exempted category. But there is no indication as to how could the Respondent no. 6 be recruited except under exempted category. ( 15 ) THIS Court was informed that the writ petition filed by the Respondent no. 6 wherein the interim order was passed on 24th May, 2000 is possibly still pending ; but the learned Advocate is not sure as to what happened to that writ petition or whether that writ petition is still pending or has been dismissed. Obviously, the purpose of the Respondent No. 6 had been served and thereafter he was no longer concerned with the fate of that writ petition, realizing little that the interim order would vanish once the petition is dismissed. ( 16 ) ON the whole, a very dismal picture is presented by the facts and circumstances of this case. The employment was given at the cost of the state exchequer to the husband of a people's representative and there is no justification whatsoever for such an act of nepotism perpetrated at the cost of the State and the citizens who had a legitimate expectation that the appointment shall go to the deserving candidate. The employment was given at the cost of the state exchequer to the husband of a people's representative and there is no justification whatsoever for such an act of nepotism perpetrated at the cost of the State and the citizens who had a legitimate expectation that the appointment shall go to the deserving candidate. Here is a case which shows that all the requirements of law and fair play in administrative action were thrown to the winds. ( 17 ) MS. Rina Banerjee, learned Advocate, appearing for the Respondent no. 7, submitted that the writ petitioner participated in the interview. After he has become an unsuccessful candidate, it is not open to him to turn around and allege that the selection process itself was vitiated. In support of her argument, she relied on a judgment of the Apex Court in the case of Madan lai and Ors. v. State of Jammu and Kashmir and Ors. reported in AIR 1995 sc 1088 . She relied on the following portion of the judgment:-"it is now well-settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or selection Committee was not properly constituted. In the case of Om prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043 , it has been clearly laid down by a Bench of three learned Judges of this court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. " ( 18 ) SHE, however, could not draw attention of this Court to anything on the record which would go to show or even to suggest that the writ petitioner was aware at the time when he appeared at the interview along with the respondent No. 6, who was also appearing at the examination, that he was the husband of the Sabhapati of the Panchayat Samiti and Ex-officio chairman, Block Level Selection Committee. Therefore, the judgment cited by the learned Counsel has no manner of application. Therefore, the judgment cited by the learned Counsel has no manner of application. She also relied on a judgment in the case of Government of West Bengal v. Tarun Kumar Roy and Ors. reported in 2004 (1) SCC page 341. She relied on Paragraph 34. In paragraph 34 Their Lordships opined as follows :-"para. 34-The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate Courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a Court of law. " ( 19 ) IT would appear from the aforesaid paragraph that the delay was for 16 years. In that case, even in those facts Their Lordships did not refuse to give any relief on the basis of delay but because other persons would have been prejudicially affected who were not parties to that proceeding. ( 20 ) IN the present case, the appointment was made on September 29, 2000. After ascertaining the facts and circumstances of the case as far as the writ petitioner is concerned, he presented a petition before the Tribunal in the year 2002. The Tribunal by its order dated June 15,2004 held that the writ petitioner should seek his remedy before the High Court. He, thereafter, presented this writ petition on 9th August, 2004. I, therefore, do not find that there has been any delay in presenting the writ petition. Moreover, why after all, is delay a ground for refusing to grant relief? The Tribunal by its order dated June 15,2004 held that the writ petitioner should seek his remedy before the High Court. He, thereafter, presented this writ petition on 9th August, 2004. I, therefore, do not find that there has been any delay in presenting the writ petition. Moreover, why after all, is delay a ground for refusing to grant relief? The answer is that where there has been an inordinate delay in presenting the writ petition, the other side may be justified in saying that there has been acquiescence on the part of the petitioner; he has accepted the position and because of this, that where there is delay, the Court sometimes is reluctant to grant any relief. In the facts of the case, nobody can say that there has been any acquiescence on the part of the petitioner or that he has accepted the wrong done to him. ( 21 ) IN so far as the judgment in the case of Madan Lal v. State of jammu and Kashmir and Ors. is concerned, I may hasten to add that it is not even true that the writ petitioner has come up before this Court after he lost in the interview. His case is that he was second in the panel and the prospect of his being appointed was spoiled because the Respondent No. 6 being the husband of the Respondent No. 7 was chosen. It is an admitted position that the petitioner was second in the panel prepared by the authority as would appear from the affidavit of the Respondent No. 7 affirmed on 28th april, 2005 which reads as follows :-"page 6 (i)-That it appears from the records that the panel for the post of Peon of Shyampur-ll Panchayat Samity was prepared on the basis, of merit of written and oral examination and the Respondent no. 6 was secured the first position of the panel and the petitioner secured the second position. Accordingly the appointment was given to the Respondent No. 6 vide Memo No. 1150 dated 29. 9. 2000 and subsequently the Respondent No. 6 joined the post of Peon of shyampur-ll Panchayat Samity. " ( 22 ) THE only point raised by Mr. 6 was secured the first position of the panel and the petitioner secured the second position. Accordingly the appointment was given to the Respondent No. 6 vide Memo No. 1150 dated 29. 9. 2000 and subsequently the Respondent No. 6 joined the post of Peon of shyampur-ll Panchayat Samity. " ( 22 ) THE only point raised by Mr. Mutsuddi, the Counsel, for the State respondents, was that the contents of the affidavit affirmed by Smt. Shabnam begum, the Respondent No. 7 herein, that the writ petitioner was holding the second position in the panel was contrary to the records. She submitted that the records have been disclosed which would go to show that the writ petitioner was nowhere in the panel. The Respondent No. 7 is the Sabhapati of the Panchayat Samity, Ex-officio Chairman of the Block Level Selection committee. She has affirmed her affidavit, true to her knowledge, on the basis of the records that the petitionerwas second in the panel. The records produced by them depict a different picture. The utter contradiction leaves no manner of doubt that these respondents have been acting hand in glove. The affidavit filed by the Respondent No. 7 was affirmed on 28th April, 2005 whereas the affidavit of Sri Sau was affirmed on 8th July, 2000. Therefore, some attempt on their part to rectify the damage cannot be ruled out altogether. ( 23 ) BE that as it may, I have already held that the two grounds for challenge are sound both in fact and in law. This writ petition succeeds. The appointment of the Respondent No. 6 to the post of Peon in Group 'd' in shyampur-ll Panchayat Samiti is, thus, vitiated and is cancelled. The respondents are directed to readvertise the post. I have not directed that the appointment be given to the writ petitioner because there is a contradiction between the statement of the Respondent no. 7 and the records disclosed by the State. I am satisfied that the things were handled illegally. Therefore, I have set aside the appointment; but I am unable to give any relief to the petitioner except that his age shall not be a bar. His age as on the date of 28th December, 1999 when the requisition was made by the Selection Committee shall be taken into consideration as and when the post shall be readvertised. Therefore, I have set aside the appointment; but I am unable to give any relief to the petitioner except that his age shall not be a bar. His age as on the date of 28th December, 1999 when the requisition was made by the Selection Committee shall be taken into consideration as and when the post shall be readvertised. The writ petitioner shall be entitled to apply and appear at the interview. There shall be no order as to costs. Urgent xerox certified copy of this order, if applied for by the parties, be delivered to them.