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2014 DIGILAW 98 (CAL)

Debkumar Baidya v. State of West Bengal

2014-02-07

SAMBUDDHA CHAHRABARTI

body2014
JUDGMENT : Dr. Sambuddha Chahrabarti, J. 1. Pursuant to an advertisement published in a Bengali Daily, the petitioner applied for the post of Guard of Gour Mohan Sachin Mandal Mahavidyalaya in the district of South 24-Parganas. He was requested to appear at the written examination on May 13, 2012 at Sonarpur Mahavidyalaya within the same district. 2. The petitioner alleges that he smelt nepotism and by a letter dated this he raised objection about the future appointment of Kausik Paik which he, allegedly learnt from the reliable source. According to him the interview would be an eye-wash. 3. The further case of the petitioner is that he had obtained the highest marks in the written examination and the selected candidate i.e. respondent No.6 obtained 19 marks and the successful candidate had been disproportionately awarded marks at the interview in order to cover the shortfall in the written examination. According to the petitioner the College authorities have not maintained the transparency in the matter of selection and the selection of the said Kausik Paik was known to him in advance and as such by the writ petition he has prayed for cancellation of the selection of the respondent No.6 and for other reliefs. 4. Thus the basic allegations of the petitioner are two in number. The candidate whose selection was apprehended has been selected and from this the petitioner has concluded that the knowledge which had come to him had been materialised and secondly the College Authorities had practised nepotism and in spite of his request did not keep any video recording of the interview. 5. I practically find no merit in either of the stands taken by the respondents. The allegations made in the affidavit-in-reply by the petitioner are not to be taken into account as very serious objection which has been raised against the College Authorities about the reception of these allegations to which the answering respondents could not, give any reply. 6. The sheet-anchor of the petitioner's case is the objection raised by him only two days before the interview that the respondent No.6 was going to be appointed. The objection is silent about how he arrived at the conclusion and what was the source of his information. This is necessary to assess the nature of the apprehension. Instead what I get is a vague statement as reliable source from whom he has come to know of it. The objection is silent about how he arrived at the conclusion and what was the source of his information. This is necessary to assess the nature of the apprehension. Instead what I get is a vague statement as reliable source from whom he has come to know of it. He should have identified the source and should have mentioned in the writ petition. Nonetheless his apprehension matched with the final selection. Koushik Paik has eventually been selected. But without any positive allegation in any manner it will be inappropriate to set aside his selection for the concerned post merely because the petitioner made an objection. 7. It may so happen that some people may raise an objection about the selection of a candidate whom they considered to be the best. Merely because an objection has been raised or an apprehension has been expressed does not necessarily mean that the petitioners apprehension is a justifiable one. The letter written by the petitioner had nowhere stated the basis of the apprehension. Without such details a protest in anticipation must be held to be without any basis and speculative in nature. It may be a simple co-incidence that the candidate whose names were taken has been selected. But this by itself does not mean that the petitioner had been able to establish any alleged act of nepotism against the authorities. 8. The allegations about lack of transparency in the nature of interview process is also not substantiated by the petitioner. On the contrary, it has been submitted by the learned advocates appearing for the petitioner as well as the College authorities that for the answer scripts of the written examination an external examiner was appointed and the learned advocate for the respondents-College authorities, on instructions, had submitted that on the interview board the member from outside college had participated. This goes against the possibility of any nepotism inasmuch as the college was less likely to have appointed an external examiner if they had really wanted to indulge in any foul play. 9. It is true that the petitioner got 21, the highest marks in the written test. But from these it cannot be necessarily concluded that the successful candidate was deliberately awarded more marks to cover up the short-fall in the written examination so that he may appear to be the most successful in aggregate. 10. Mr. 9. It is true that the petitioner got 21, the highest marks in the written test. But from these it cannot be necessarily concluded that the successful candidate was deliberately awarded more marks to cover up the short-fall in the written examination so that he may appear to be the most successful in aggregate. 10. Mr. Das, learned advocate for the petitioner submits that his client has been discriminated against by the College authorities which will be evident from the fact that his marks had been the highest in the written examination. Lineal extension of the argument is that in the interview also awarding of marks must have to follow the pattern of marks followed in the written test. In other words, he who has secured the highest marks in the written test is necessarily have to get the highest in the interview as well and if any variation is noticed a foul play must be smelt by an unsuccessful candidate. Such a view obviously cannot be accepted. Then interview is reduced to a mockery. 11. In the unreported judgment in the case of Partha De Sarkar v. West Bengal University of Animal and Fishery Sciences & Ors., in G.A.No. 1492 of 2012, a Division Bench of this Court by judgment and order dated 19th 2012 had observed in the facts of that particular case that when candidates securing high place in the written test are placed in the viva-voce behind a candidate by 140 positions in the written test it creates severe doubts in the minds of the Court. The observation in the said judgment cannot be applied to the facts of the present case. As is well settled, a judgment is an authority on what it decides and not what can be inferentially deduced from it. This is not a case where a candidates occupying 146 position in the written test has superseded the candidate occupying first or the second position. The difference of marks in the written examination between the petitioner and the respondent No.6 was only 5 marks and in them there were two or three other candidates only. Only because the petitioners marks in the written examination was the highest does not mean that the same pattern of awarding was to be or required to be necessarily be followed even in the interview or otherwise the interview will be subject to scrutiny. Only because the petitioners marks in the written examination was the highest does not mean that the same pattern of awarding was to be or required to be necessarily be followed even in the interview or otherwise the interview will be subject to scrutiny. There is also no pleading in the writ petition which supports the case of the petitioner about the lack of transparency. 12. Mr.Mukhopadhaya the learned advocate appearing for the College Authorities had relied on the case of Vijay Sanyal v. State of Punjab., reported in AIR 2003 SC 4023 , for a proposition that normally it is not for the Court to sit in judgment over assessment of marks and in particularly in the absence of any mala fide or extraneous consideration attributed and established. 13. In the case of Subhash Chandra Verma & Ors. v. State of Bihar & Ors reported in AIR 1995 SC 904 , the Supreme Court had held that 50 % marks for the viva-voce and 50% for the academic performance should be the criteria. Based on these the respondent-College authorities argued that for interview 20 out of 50 was set apart which cannot be said to be excessive. That apart, in that case it was also decided that normally High Court should have appointed an expert body and obtained its opinion because in the academic matters the Courts do not have the necessary expertise. 14. In the case of Durga Devi & Anr. v. State of H.P & Ors., reported in (1997) 4 SCC 575 the Supreme Court had held that the concerned State Administrative Tribunal had fallen in an error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability of appointment which is the function of the selection committee. 15. Mr. Mukhopadhaya has further relied on the case of Dalpat Abasaheb Solunke etc. etc. v. Dr. B.S. Mahajan etc. etc., reported in AIR 1990 SC 434 where the Supreme Court has very clearly held that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinise relatives merits of the candidates. That is to be done by the Selection Committee which has the expertise on the subject. The Court has no such expertise. That is to be done by the Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on the limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. 16. It does not appear that the petitioner has been the least successful in establishing these criteria. Merely because he raised an objection on the basis of some information received from an undisclosed source gives him no right to challenge the appointment of a successful candidate. 17. I find no merit in the writ petition and the same is dismissed. In the facts and circumstances of the case, there will be no order as to costs. 18. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.