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2016 DIGILAW 100 (CAL)

Saheba Khatun v. State of West Bengal

2016-02-01

SANJIB BANERJEE

body2016
JUDGMENT : The facts pertaining to the matter have been recorded in two previous orders and do not call for any repetition. In brief, it may be noticed that the petitioner was engaged as an anganwadi worker on January 19, 2010. The writ petition was instituted since the petitioner’s engagement stood terminated by a notice of December, 2, 2015 on the basis of a letter dated November 26, 2015 issued by a Joint Secretary to the State Government addressed to the District Magistrate, Purba Medinipur. The petitioner’s engagement was terminated without any prior notice to the petitioner. An affidavit has been filed by the concerned Joint Secretary where it has been indicted that the exercise of revisiting the marks obtained by the candidates at the written examination for anganwadi workers under the general category for Nandigram–I in Purba Medinipur was undertaken pursuant to an order of May 2, 2012 passed on WP No.17156 (W) of 2011. The operative part of the relevant order called upon the Principal Secretary in the Department of Women and Child Development and Social Welfare, Government of West Bengal, “to cause a thorough enquiry into the matter in order to detect the irregularities in the selection process … Once the irregularities are detected, the Principal Secretary shall issue suitable orders/directions for corrective and remedial action”. The State says that pursuant to such order, the marks obtained by the candidates in course of the written examinations conducted in 2009 were required to be revisited. The State refers to a letter dated March 15, 2013 issued by the concerned Sub-Divisional Officer to the Additional District Magistrate (Try), Purba Medinipur annexing a new list based on the verified results. It is necessary to see the words of the relevant letter and how the list appended thereto was described therein: “Apropos the memo nos and reference cited above, Top Sheets and Decoded Sheets containing marks of the 101 empanelled candidates for the post of Anganwadi Karmi of Nandigram-I I.C.D.S. Project were recalculated and scrutinized and the merit list is as follows- …” Pursuant to the direction issued on January 20, 2016, the original documents have been produced in Court today. All the papers of the 101 candidates have been produced in original in Court including those of the petitioner herein and of one Kakoli Giri. All the papers of the 101 candidates have been produced in original in Court including those of the petitioner herein and of one Kakoli Giri. To emphasise on the mode of the re-calculation and scrutiny, it must be remembered that the letter of March 15, 2013 referred to the marks in the “Top Sheets and Decoded Sheets” being re-calculated and scrutinised. From the 101 papers produced in Court, more than ten of the papers do not indicate the marks assigned to the individual answers on the top sheets. A closer scrutiny of the objective part of the written examination reveals that for the same erroneous answer furnished by three different candidates, the marks awarded range from the minimum of zero to the maximum of five. Several of the papers produced in Court show overwriting in the top sheets with corresponding changes in the answerscripts themselves. For example, there are several papers where the original marks allotted against the relevant answer were struck out and fresh marks indicated; and the same corrections appear in the top sheet. Ordinarily, it is not unknown for an examiner to award a particular set of marks for a particular question and strike it out to allot a different set of marks; but the striking out of the original marks or the overwriting would be reflected in the answerscript and may not necessarily be reflected in the top sheet since the top sheet ought to be prepared after the correction of the paper when the act of assessment is completed. In several cases, corrections have been carried out in the top sheets with corresponding changes in the marks awarded in the answerscripts, which arouse an element of suspicion. Thus, notwithstanding the order of May 2, 2012, the inquiry that was conducted was restricted to the re-calculation of the marks, though such re-calculation may not have been confined to the top sheets but may have involved the opening of the answerscripts to ascertain the individual marks allotted against the individual questions. It is also apparent that the “thorough enquiry” did not involve a re-scrutiny of the answers. On the basis of the exercise undertaken by the respondent authorities, it appeared that the petitioner herein had been allotted ten additional marks. It is also apparent that the “thorough enquiry” did not involve a re-scrutiny of the answers. On the basis of the exercise undertaken by the respondent authorities, it appeared that the petitioner herein had been allotted ten additional marks. It is evident from the top sheet of the petitioner’s answerscript that there was an arithmetical error made by the examiner and instead of the petitioner’s total being reflected as 55, it was mistakenly indicated as 65. There is no doubt, on the basis of the petitioner’s assessed answerscript, that the petitioner was mistakenly shown to have obtained 65 marks instead of 55 that she earned on her merit. The question that arises in the circumstances is whether an employee, even a person engaged on contract basis by a State or an instrumentality of the State, may be removed from the position upon a scrutiny of the recruitment process some five or six years after obtaining the employment or the engagement. The ancillary question is whether the petitioner should, at least, have been informed prior to the petitioner’s contract being terminated of the ground for her proposed termination. It must be appreciated that just as almost every one commits mistakes, every process has some errors which may accidentally give a benefit to some and inadvertently deprive others of their due. As long as a process is conducted by humans, there has to be some latitude for human error. If a person has been engaged or employed for several years and it is later discovered that the original engagement or appointment was erroneous, the person may not necessarily be removed from the position unless it is discovered that the error was induced by such person or a fraud or such deliberate act had been committed. There is no allegation in the present case of the petitioner having done anything wrong to be awarded 65 instead 55 in the written examination that she took. It appears that one Nadira Khatun and another Fatma Begum @ Pratima Sahoo had instituted individual petitions complaining of the faulty selection process to recruit anganwadi workers in 2009. Since an order was passed on May 2, 2012 on Fatma Begum’s petition, the respondents say they undertook such exercise which culminated in the petitioner’s engagement being terminated in December, 2015, though neither Nadira Khatun nor Fatma Begum stood to gain as a result of the exercise. Since an order was passed on May 2, 2012 on Fatma Begum’s petition, the respondents say they undertook such exercise which culminated in the petitioner’s engagement being terminated in December, 2015, though neither Nadira Khatun nor Fatma Begum stood to gain as a result of the exercise. From the list appended to the affidavit in opposition, it is evident that neither Fatma Begum nor Nadira Khatun would get the engagement but two others who were not originally included in the top 30 would, upon the revised results, be eligible for appointment. The two persons who may now be found to have been eligible for the appointment in 2009, had not come to Court complaining of their arbitrary or illegal exclusion from the list. The two petitioners who came to Court and on whose petitions orders were passed have been found not to be eligible for engagement even after the scrutiny. In such circumstances, the respondent authorities ought to have been more rational and slightly diffident in terminating the engagement of the petitioner who had continued in the post for nearly six years and who cannot be blamed for the erroneous increase in the marks awarded to her. Indeed, as the previous orders notice, the petitioner was not even given an opportunity to explain anything before she was served a notice of termination. The respondents say that pursuant to the previous orders passed on this petition, the petitioner has been reinstated and the petitioner continues to be engaged on contract basis as an anganwadi worker. In the circumstances aforesaid and particularly since the respondents do not attribute any ill motive or wrongdoing to the petitioner in the petitioner being erroneously allotted ten additional marks in the written examination conducted in the recruitment process in the year 2009, the impugned notice of December 2, 2015 is set aside and the petitioner will be permitted to continue in her post in accordance with law. Since neither Fatma Begum nor Nadira Khatun, the persons who complained of the faulty recruitment process, stand to gain from the inquiry and scrutiny conducted by the respondent authorities in pursuance of the order dated May 2, 2012, no injustice would have been occasioned to any person upon the petitioner being permitted to enjoy the benefit of the mistake that resulted in the petitioner being awarded the contract in the first place. It is also observed that mere recalculation of the marks awarded to each candidate may not have been the appropriate “thorough enquiry” that was called for. If the inquiry was to be thorough, the method of assessment may also have been looked into and it is evident from a casual peek into some of the papers that the same erroneous answer has been differently rewarded in the cases of different candidates. In view of it being evident that the respondent authorities and the concerned Joint Secretary had not been vindictive in taking any steps against the petitioner and that they acted on their understanding of the order of May 2, 2012, the action of the relevant persons need not be looked into any further nor do such persons or their action call for any severe criticism. WP 30348 (W) of 2015 is allowed as indicated above, but without any order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.