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2007 DIGILAW 237 (CAL)

DIPAK MAHATO v. STATE OF WEST BENGAL

2007-03-29

JYOTIRMAY BHATTACHARYA

body2007
( 1 ) PURSUANT to the direction passed by the Hon'ble Appeal Court in FMA no. 2376 of 2004, the hearing of this writ petition was taken up afresh, after remand. ( 2 ) THE petitioner being a second empanelled candidate has challenged the selection of the private respondent No. 9 for the post of "sahayak" in the gram Panchayat of Hensla. ( 3 ) A serious question regarding maintainability of this writ petition was raised by Mr. Dutta, learned Advocate, appearing for the respondent No. 9, on the ground that when a candidate appears at the examination without protest and subsequently not found to be successful In the examination, he cannot maintain the writ petition for challenging the selection process and/or the illegalities on the part of the authorities concerned regarding selection of candidate. ( 4 ) THE said question was raised in the following background : - there are eight Gram Panchayats under Arsha Panchayat Samity in the district of Purulia. There is a post of Sahayak in each Gram Panchayat: A selection process was initiated by the then selection authority for filling up the post of Sahayak in each of those eight Gram Panchayats under Arsha panchayat Samity. ( 5 ) THE name of the petitioner was sponsored by the concerned employment Exchange for the post of "sahayak" in the Hensla Gram panchayat. The name of the respondent No. 9 was not sponsored for the post of Sahayak in the said Gram Panchayat. His name was, however, sponsored for the post of "sahayak" in respect of another Gram Panchayat under the said panchayat Samity. ( 6 ) THE petitioner was called upon to participate in the selection process for the said post, by a letter issued by the Block Development Officer on 15th december, 2000 being annexure 'p-3' to this writ petition at page 25. The selection process consists of both written test and interview. The written test was scheduled to be held on 30th December, 2000 and the oral test was scheduled to be held on 31 st December, 2000. The petitioner appeared in the written test held on 30th December, 2000 and in the interview held on 1st january, 2001. No interview was held on 31 st December, 2000 as the date of holding of such interview was subsequently shifted to 1st January, 2001. The petitioner appeared in the written test held on 30th December, 2000 and in the interview held on 1st january, 2001. No interview was held on 31 st December, 2000 as the date of holding of such interview was subsequently shifted to 1st January, 2001. ( 7 ) THE petitioner has specifically alleged that though the name of the respondent No. 9 was not sponsored by the concerned Employment Exchange for the post of "sahayak" in Hensla Gram Panchayat, but still then the said respondent was allowed to participate in the selection process. The petitioner has further alleged that though the said respondent did not appear in the interview, but still then the said respondent was ultimately selected for the said post, in April, 2002,. e. , almost 16 months after the date of holding the test. ( 8 ) AN appointment letter was issued in favour of the petitioner on 12th April, 2002. Medical examination was conducted for ascertaining the physical fitness of the said respondent on the very same day,. e. on 12th april, 2002. The said respondent also joined his service on the very same day. ( 9 ) THE long silence on the part of the selection authority regarding selection of such candidate is very much suspicious. The issuance of the appointment letter, holding of medical examination and allowing the said despondent to join on the very same day are much more suspicious than the long silence on the part of the other respondents so far as the selection of the respondent No. 9, is concerned. ( 10 ) APART from these suspicious circumstances, the petitioner also pointed out that the selection process had not been conducted by following the guidelines contained in the Memo dated 8th January, 1999 issued by the deputy Secretary to the Government of West Bengal. The relevant part of the said guideline which has not been followed by the selection authority is as follows : - " (b) If a block level selection committee makes arrangement to hold written examination for more than one post of Sahayak simultaneously, before or at the time of written examination, options will be obtained from each candidate as to in which Gram Panchayat, he or she wants to serve. They should be clearly intimated that the option once exercised is final or binding and cannot be changed under any circumstances. They should be clearly intimated that the option once exercised is final or binding and cannot be changed under any circumstances. On the basis of such options and the results of the written examination, the list of candidates eligible for viva voce shall be prepared separately for such post of Sahayak. During viva voce the committee will comprise, among other members, the Pradhan of the Gram Panchayat to which the post relates. For preparation of final panel, the combined total number obtained in written examination and viva voce for each candidate shall be considered. " ( 11 ) THE petitioner alleges that though selection test was taken for ail the vacant posts in eight Gram Panchayats simultaneously, but still then no option was invited from the participating candidates. That apart, list of the candidates eligible for viva voce was not prepared separately for each post of "sahayak" on the basis of the option from the participating candidates. ( 12 ) UNDER such circumstances, the petitioner claims that the selection was made without following the extant Rules and/or guidelines issued by the government in this regard. Thus, the selection which was so made without following the guidelines should be declared as nullity. ( 13 ) THE petitioner further claims that even the confirmation of appointment was given to the said respondent No. 9 on 16th April, 2003 w. e. f. 11th April, 2003 in violation of the interim order of injunction passed by this court on 12th June, 2002 whereby the respondents were directed not to give any effect and/or further effect to the appointment given to the said respondent no. 9 until further order of this Court. ( 14 ) ACCORDINGLY, the petitioner filed this writ petition challenging the impugned selection process. ( 15 ) MR. Dutta submitted that though initially the Employment Exchange did not sponsor the name of his client for the post of Sahayak in Hensla Gram panchayat, but his name was sponsored in respect of the same post in another gram Panchayat under the same Panchayat Samity. Subsequently, however, the respondent No. 9 applied before the Chairman of the selection committee for allowing him to participate in the selection process in Hensla Gram panchayat and such prayer of the said respondent was allowed by the authority on 29th December, 2000. On the basis of the said application, the respondent no. Subsequently, however, the respondent No. 9 applied before the Chairman of the selection committee for allowing him to participate in the selection process in Hensla Gram panchayat and such prayer of the said respondent was allowed by the authority on 29th December, 2000. On the basis of the said application, the respondent no. 9 was allowed to participate in the selection process as will appear from the admit card issued to the respondent No. 9 under Roll No. Arsha-118. ( 16 ) THE said respondent further claims that he appeared in the written test as well as in the interview on the date as mentioned in the said admit card and ultimately he was selected for the said post. The said respondent thus claims that when he was selected for the said post in due process, the petitioner being an unsuccessful candidate, cannot challenge his selection by filing this writ petition. ( 17 ) TO support preliminary objection regarding maintainability of this writ petition on the ground as indicated above, Mr. Dutta relied upon the following decisions of the Hon'ble Supreme Court: - (i) Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. reported in (2002)6 SCC 127 , (ii) Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. reported in 1986 (supple.) SCC 285, (iii) University of Cochin v. N. S. Kanjoonjamma and Ors. reported in (1997)4 SCC 426 , (iv) Madan Lal and Ors. v. State of J and K. and Ors. reported in (1995)3 scc 486 . ( 18 ) RELYING upon the said decisions, Mr. Dutta submitted that since the petitioner participated in the selection process and took a chance, he cannot challenge the selection process by filing this writ petition when he found that the result of the said selection process is not palatable for him. ( 19 ) ACCORDINGLY, the respondent No. 9 prayed for dismissal of this writ petition. ( 20 ) LET me now consider the submissions of the learned Counsel of the respective parties. ( 21 ) IT is no doubt true that an unsuccessful candidate who took a chance by participating in the selection process without any protest, cannot maintain a writ petition for challenging the legality of the selection process and/or the irregularities in the process of formation of the selection committee. The decisions which were cited by Mr. Dutta laid down the aforesaid principles almo. The decisions which were cited by Mr. Dutta laid down the aforesaid principles almo. st in the same tune. ( 22 ) LET me now consider as to how far the principles laid down in the said decisions apply in the facts of the instant case. Principle laid down in a particular set of facts is applicable to a case involving similar facts and circumstances. If facts are dissimilar, principles laid down in the earlier decisions cannot be applied as a ratio in the subsequent cases. ( 23 ) BEFORE proceeding further, I must point out that here is a case where the petitioner has challenged the selection process on the ground of mala fides on the part of the selection authority in the process of such selection and also on the ground of non-observance of the Rules and guidelines framed by the Government in the process of such selection. Here, challenge does not rest on unreasonable fixation of the guidelines for such selection and/or irregular formation of selection committee. ( 24 ) ADMITTEDLY, the name of the respondent No. 9 was not sponsored by the concerned Employment Exchange for the post of "sahayak" in Hensla gram Panchayat. The name of the said respondent was sponsored in respect of the post of "sahayak" for another Gram Panchayat under the same Panchayat samity. The respondent No. 9 applied before the Chairman of the selection committee for allowing him to participate in the selection process for the post of "sahayak" in Hensla Gram Panchayat and his prayer was allowed by the concerned authority on 29th December, 2000, as will appear from annexure 'r-3' to the affidavit-in-opposition. ( 25 ) THOUGH the prayer of the respondent No. 9 for allowing him to participate in the selection process for the said post in Hensla Gram Panchayat was accepted by the concerned authority on 29th December, 2000 but still then, the call letter and/or the admit card was issued in favour of the said respondent by the concerned authority on 15th December, 2000,. e. 14 days before the date when permission was granted to the said respondent for participating in the selection process in Hensla Gram Panchayat. ( 26 ) SMELL of suspicion started spreading from this juncture. e. 14 days before the date when permission was granted to the said respondent for participating in the selection process in Hensla Gram Panchayat. ( 26 ) SMELL of suspicion started spreading from this juncture. ( 27 ) THE petitioner claims that the said respondent did not appear in the interview and such statement of the petitioner is also corroborated by the chairman of the selection committee as will appear from the supplementary affidavit filed by the petitioner enclosing therein the certificate issued by the chairman of the said selection committee supporting such claim of the petitioner. The said respondent No. 9 though denied such allegation of the petitioner evasively, but did not controvert the certificate given by the Chairman of the selection committee as referred to above by filing any affidavit to the sa'id supplementary affidavit filed by the petitioner. ( 28 ) MR. Dutta initially tried to impress upon this Court by submitting that the statements made by the petitioner in the supplementary affidavit could not be dealt with by his client, as copy of the said supplementary affidavit was not served upon his client. Subsequently, however, when it was pointed out by mr. De that the copy of the supplementary affidavit was served upon the said respondent long back and even the copy of the supplementary affidavit was included by the said respondent in the paper book prepared by him in connection with the appeal against the earlier order passed by this Court by which the writ petition was disposed of earlier, then Mr. Dutta withdrew the allegation regarding non-service of copy of the said supplementary affidavit upon his client. ( 29 ) THE certificate given by the Chairman of the selection committee as above, clearly indicates that the respondent No. 9 did not participate in the interview, but still then he was selected long after holding of such test. Long silence for about one year and four months from the date of holding of such test on the part of the concerned authority, is also very much suspicious. The subsequent events regarding issuance of appointment letter, holding of the medical test on the said respondent and reporting for duties all on a same date shows that appointment was given in a very hush hush manner creating much more suspicion in the minds of the Court. The subsequent events regarding issuance of appointment letter, holding of the medical test on the said respondent and reporting for duties all on a same date shows that appointment was given in a very hush hush manner creating much more suspicion in the minds of the Court. ( 30 ) THE respondent No. 9 failed to dispel such doubts and suspicion from the minds of the Court. The State respondents have not filed any affidavit to controvert the aforesaid allegation of the petitioner. The State respondents even have not produced the score-sheet of the respective candidates to prove that the said respondent No. 9 participated in the interview and he was selected for the said post as he scored highest marks in the said test. ( 31 ) MR. Dasgupta, learned Advocate, appearing for the State respondents, also in his usual fairness submitted that the guidelines regarding recruitment to the post of Sahayak in the Gram Panchayats contained in the memo dated 8th January, 1999 as contained in annexure 'r-2' to the affidavit- in-opposition filed by the respondent No. 9 has not been followed in the instant case. Mr. Dasgupta further submitted that no separate list for eligible candidates for viva voce test was prepared on the basis of the results of the participating candidates in the written test. Mr. Dasgupta further submitted that option was not taken from the respective candidates in terms of the said guidelines. ( 32 ) NONE of the decisions cited by Mr. Dutta fit in, in the facts of the instant case, as the challenge in those cases was restricted either with regard to the constitution of the selection board or relating to the wrong application of the method of selection. Under such circumstances, it was held by the Hon'ble supreme Court in those citations that unsuccessful candidates cannot challenge the selection process. As such, those line Of cases have no application in the instant case. Here, neither the defect in constitution of selection committee nor wrong application of the modalities for such selection has been challenged in the instant case. The front of challenge herein is completely different as indicated above. Mala fides and/or undue favouritism on the part of the selection committee and non-observance of the extant Rules and Guidelines are the primary complaint in the instant case. The front of challenge herein is completely different as indicated above. Mala fides and/or undue favouritism on the part of the selection committee and non-observance of the extant Rules and Guidelines are the primary complaint in the instant case. ( 33 ) IN my view, the decision of the larger Bench of the Hon'ble Supreme court in the case of Rajkumar v. Shakti Raj reported in AIR 1997 SC 2110 is applicable in the facts of the instant case. The relevant part of the said decision is set out hereunder : - "16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board but after the examinations were conducted under 1955 Rules and after the results were announced it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter the selection committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri madhava Reddy, that this Court in Madan Lal v. State of J and K (1995)3 scc 486 : (1995) AIR SCW 1109 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turned round and challenge either the constitution of the selection board or the method of selection as being illegal; he is estopped to question the correctness of the selection, But in his case, the Government have committed glaring irregularities in the procedure to get the candidates for examination under 1995 Rules, so also in the method of selection and exercise of power in taking out from the purview of and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts of the instant case, thus, we consider that the procedure conferred under 1995 Rules adopted by the Government or the committee as well as action taken by the Government are not correct in law. " ( 34 ) CONSIDERING the aforesaid facts and circumstances, this Court has no hesitation to hold that the impugned selection was made without following the guidelines issued by the Government in this regard. This Court has also no hesitation to hold that the selection was not free and fair. " ( 34 ) CONSIDERING the aforesaid facts and circumstances, this Court has no hesitation to hold that the impugned selection was made without following the guidelines issued by the Government in this regard. This Court has also no hesitation to hold that the selection was not free and fair. Confirmation of appointment of the respondent No. 9, granted by the concerned authority in violation of the interim order passed by this Court proves mala fidies on the part of the concerned respondent who with a definite intention to select a man of their choice proceeded in total disregard of the selection procedure. ( 35 ) ACCORDINGLY, the impugned selection is quashed. The appointment which was illegally given to the respondent No. 9 without following the guidelines issued by the Government in this regard stands quashed. The concerned authority is, thus, directed to hold a test afresh in conformity with the guidelines as contained in the Memo of 1999 as referred to above by giving opportunity to all the eligible candidates who participated in the said selection process. The entire process for such selection should be completed positively within a period of twelve weeks from the date of communication of this order. ( 36 ) IN view of the fact that five years have elapsed from the date when the selection process was concluded and many of the candidates became ineligible, as on date, because of the age-bar, this Court makes it clear that the concerned authority will permit the candidates who participated in the said selection process earlier by relaxing the age-bar. The writ petition, thus, stands allowed. .