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2013 DIGILAW 518 (CAL)

Sankar Prosad Sahoo v. State of West Bengal

2013-07-29

TARUN KUMAR DAS

body2013
JUDGMENT The subject matter of challenge in this appeal is a judgment and order dated 13th February, 2013 passed by brother Dr. Sambuddha Chakraborti J by which the writ petition was dismissed. 2. The facts and circumstances of the case briefly stated are as follows:- There was a vacancy for a para-teacher in Geography in the Chaknarayanbati Kumarendranath Smriti Madhyamik Siksha Kendra. Advertisements were published for filling up that vacancy inviting application. No response was initially received. In the circumstances advertisements were resorted to for the second time. In response thereto two candidates applied namely the writ petitioner and the respondent no.9. The writ petitioner is a graduate from the Calcutta University. The respondent no.9 is a graduate from the Vidyasagar University. Both of them had Geography as their combination subject at the degree course level. The writ petitioner had secured 50% marks in Geography whereas the respondent no.9 had secured 48% marks in Geography. Both of them participated in the selection process. The respondent no.9 was selected. The writ petitioner raised his objection with regard to such selection and presented the writ petition, inter alia, on the ground that in order to defeat the candidature of the writ petitioner the authorities had resorted to oral interview which was not warranted by the selection procedure. The learned trial Court dismissed the writ petition holding that the writ petitioner was not entitled to raise the question after he had participated in the selection process. 3. Aggrieved by the order the writ petitioner has come up in appeal. 4. Mr. Ghosh, learned Advocate appearing for the respondents no. 4 & 5 drew our attention to annexure ‘R-4’ to the affidavit-in-opposition affirmed by Shri Ashok Kumar Sahoo on behalf of the respondents no. 4 & 5 in order to show that at the oral interview the writ petitioner got only 4 marks out of 10, whereas the respondent no.9 secured 8 marks out of 10. He submitted that on the basis of performance at the oral interview the respondent no.9 was selected. 5. Mr. Bagchi, learned Advocate appearing for the respondent no.9 frankly submitted that his client has not disputed the rule which does not require any oral interview. But he submitted that on a point of law the writ petition is bound to be dismissed and therefore no interference is called for. 5. Mr. Bagchi, learned Advocate appearing for the respondent no.9 frankly submitted that his client has not disputed the rule which does not require any oral interview. But he submitted that on a point of law the writ petition is bound to be dismissed and therefore no interference is called for. The point of law, according to him, is that the writ petitioner cannot be permitted to challenge the process after he has participated therein. He in support of his submission relied upon four several judgments in the cases of Om Prakash Shukla vs. Akhilesh Kumar Shukla and Ors. reported in AIR 1986 SC 1043 ; Madan Lal & Ors. Vs. State of Jammu and Kashmir & Ors. reported in AIR 1995 SC 1088 , University of Cochin vs. N.S. Kanjoonjamma & Ors. reported in 1997(4) SCC 426 and Utkal University vs. Dr. Nrusingha Charan Sarangi & Ors. reported in 1999(2) SCC 193 . 6. Mr. Ghosh, learned Advocate appearing for the respondents no. 4 & 5 also adopted the submissions of Mr. Bagchi on the aforesaid point of law. 7. Mr. Bhattacharyay, learned Advocate appearing for the State drew our attention to the rules for selection which provide, inter alia, as follows:- “All the applications shall be duly received and entered into a register to be maintained by MC, group-wise showing the name, address, highest educational qualification and date of submission of application. After the last date of receiving application is over the applications should be divided into four bunches one for each group. The applications shall then be scrutinised to see whether the subjects in the group for which the candidate has applied for was taken at the graduation level by the applicant. The valid applications then shall be arranged according to highest qualification and highest number (in aggregate) obtained and a panel shall be prepared. The panel shall then be published in the notice board of the proposed MSK. The Managing Committee shall thereafter engage on contract, the candidate appearing at the top of each group of candidates. Model form of contract has been provided along with the guidelines.” 8. Mr. Bhattacharyay added that the rules do not, in fact, provide for any oral interview as would appear from the relevant portion of the rules quoted above. 9. The Managing Committee shall thereafter engage on contract, the candidate appearing at the top of each group of candidates. Model form of contract has been provided along with the guidelines.” 8. Mr. Bhattacharyay added that the rules do not, in fact, provide for any oral interview as would appear from the relevant portion of the rules quoted above. 9. This is not in any case in dispute that there was no scope for any oral interview on the basis of the rules already indicated above. 10. It is therefore fairly established that the Managing Committee deviated from the rules and resorted to a procedure which was not warranted for the purpose of selection of a candidate. It is also proved that the writ petitioner secured better marks than the chosen candidate at the graduation level. Therefore the submission made by Mr. Das, learned Advocate appearing for the appellant, that the procedure so adopted de hors the rules was solely for the purpose of defeating the candidature of the writ petitioner is not improbable. The authorities have also failed to justify the step. 11. Only thing which now requires consideration is whether the writ petitioner is estopped from raising the point before a Court of Law. On the basis of general principle it is difficult to see how can it be said that the theory or doctrine of estoppel became operative in the facts and circumstances of the case. The necessary ingredients of the theory of estoppel are as follows:- a) A representation either express or implied must have been made by the party. b) The other side must have acted on such representation to his detriment or must have altered his position. 12. In the present case we are unable to find any representation either express or implied made by the writ petitioner unless it can be said that by participating in the interview he affirmed impliedly that the interview was in accordance with the rules. There is nothing to show that the attention of the writ petitioner was drawn by the respondents No. 4 and 5 to the fact that the selection procedure did not provide for an interview. Therefore it is the respondents No.4 and 5 who were not only guilty of willful suppression but also the selection procedure was violated by them. There is nothing to show that the attention of the writ petitioner was drawn by the respondents No. 4 and 5 to the fact that the selection procedure did not provide for an interview. Therefore it is the respondents No.4 and 5 who were not only guilty of willful suppression but also the selection procedure was violated by them. Therefore they cannot claim any equity against the writ petitioner nor did they suffer any prejudice. The respondent no. 9 was not entitled to be selected as per the selection procedure. Therefore he cannot claim any equity either. It is well-settled that equity will tilt in favour of law and not in favour of violation thereof. In applying the theory of estoppel regard should also be had to the fact that there is an equally important canon of law that consent cannot confer jurisdiction. Therefore the theory of estoppel does not apply to the facts and circumstances of the case. 13. The next thing for consideration is whether the writ petition can be dismissed on the basis of any of the judgments cited by Mr. Bagchi which we shall now presently consider. 14. The judgment in the case of Om Prakash Shukla (supra), according to us, has no manner of application. What had happened in that case was that the selection process had been upset by the High Court on the ground that the selection process conducted otherwise than on the basis of the Rules of 1947 as amended in 1969 was bad. Whereas the Apex Court came to the conclusion that the Rules of 1950 held the field and the selection conducted in accordance with the Rules of 1950 was perfectly justified. The views adopted by the Supreme Court to be found in paragraph 21 of the judgment are as follows:- “…..it has to be held that there was no effective substitution of the 1950 Rules brought about by the 1969 Amending Rules. The 1950 Rules should therefore be held to be operating even in the year 1981. Hence the examinations held according to them cannot be held to be bad.” 15. In the aforesaid facts and circumstances of the case Their Lordships held in paragraph 23 that the reliefs should not have been granted to the writ petitioner because the writ petition was filed after he had realised that he was not likely to succeed in the examination. In the aforesaid facts and circumstances of the case Their Lordships held in paragraph 23 that the reliefs should not have been granted to the writ petitioner because the writ petition was filed after he had realised that he was not likely to succeed in the examination. It is in these fact Their Lordships gave weightage to the fact that he had participated in the interview without any protest. Had the authorities conducted the selection on the basis of inapplicable rules the mere fact that the writ petitioner had appeared at the interview would not have made any difference. Therefore this judgment supports the view taken by us. 16. The second judgment in the case of Madan Lal (supra) is equally of no relevance. It is true that in the aforesaid case the grievance was somewhat identical that the members of the selection committee had deliberately chosen persons of their choice by giving more marks to them but the distinguishing fact is that the selection committee in that case was lawfully constituted and oral interview had been taken pursuant to the rules. In the present case oral interview was not taken on the basis of any rules. On the contrary the rules do not provide for any oral interview. If the rules provide for selection of a candidate only on the basis of the marks obtained by him at the graduation level it is not for the managing committee to devise its own rule and thereby introduce scope for underhand activities. The interview held otherwise than in accordance with law is itself bad and therefore the selection was bad and that defect cannot be obliterated by merely saying that the writ petitioner had appeared at such interview. 17. The third judgment in the case of University of Cochin vs. N.S. Kanjoonjamma & Ors. (supra) is equally of no relevance for the purpose of deciding the case in hand. Our attention was drawn to the paragraph 4 of the judgment by Mr. Bagchi. In paragraph 4 of the judgment itself Their Lordship opined “procedure was correctly followed”. Had the procedure been correctly followed in this case we would not permit the writ petitioner to raise the grievance. 18. The fourth judgment in the case of Utkal University (supra) is on a point of waiver. Mr. Bagchi. In paragraph 4 of the judgment itself Their Lordship opined “procedure was correctly followed”. Had the procedure been correctly followed in this case we would not permit the writ petitioner to raise the grievance. 18. The fourth judgment in the case of Utkal University (supra) is on a point of waiver. Mr. Bagchi drew our attention to paragraph 9 of the judgment from which it appears that the objection was raised on the ground of bias. What happened in that case was that one of the members of the selection committee was in an organisation of magazine, of which the selected candidate was the editor. Another member of the selection committee was in the editorial board of that magazine. The allegation of bias in that case was rejected on the ground that these facts were already known to the participants and they never objected to the constitution of the selection committee or with regard to presence of those two persons. It was therefore held that the objector had waived his right. In the case before us neither Mr. Bagchi nor Mr. Ghosh nor Mr. Bhattacharyay has pointed out that the fact that the interview was not required by the rules was made known to the writ petitioner before his participation. There is thus no question of any waiver because waiver can operate only against a known right. 19. All the submissions made by the learned Advocates have thus been disposed of. We are of the opinion that the order under challenge for the reasons already indicated cannot survive and is therefore set aside. 20. In the result the selection and the consequent appointment of the respondent no.9 are both set aside. We were minded to grant the circumstantial relief by directing the authorities to appoint the writ petitioner. But there is no prayer to that effect. Following the prayers the authorities are directed to advertise the vacancy once again and to select a candidate in accordance with the law. 21. The appeal and the connected applications are thus disposed of. Urgent xerox certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.