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2016 DIGILAW 99 (TRI)

Shibabrata Bardhan v. Anirban Dasgupta

2016-04-06

DEEPAK GUPTA, S.C.DAS

body2016
ORDER : Deepak Gupta, J These three writ appeals are being disposed of by a common judgment since they all arise out of one writ petition [WP(C) No.269 of 2015] disposed of vide judgment dated 18.12.2015 delivered by a learned Single Judge of this Court. 2. The undisputed facts of the case are that Advertisement No.09/2014 was issued by the Tripura Public Service Commission (hereinafter referred to as TPSC) on 22.7.2014 inviting applications for 3 permanent posts of Financial Controller(Group-A Gazetted) 1 reserved for Scheduled Tribe and 2 in the open category under the Public Works Department, Govt. of Tripura. The appellant writ petitioner Anirban Dasgupta was one of the applicants. Private respondents Debasish Naha and Shibabrata Bardhan were also applicants to the posts. As per the advertisement the essential qualifications were as follows : “Educational and other qualifications : Essential : Chartered Accountant or its equivalent qualification from a recognized University with a minimum of 4(four) years experience in the Audit & Accounts Branch of any Government Department/ Government undertaking/Public Sector Unit. OR Master of Business Administration (MBA) or its equivalent qualification from a recognized University with minimum of 2(two) years experience in Audit & Accounts Branch of any Government Department/Government undertaking/Public sector Unit Desirable : (i) Experience in Accounting procedure in PWD/CPWD/CPUs’/State PSUs’ etc. in Tally – Software. (ii) Knowledge in Bengali.” The last date for submission of application was 23.8.2014. 3. On 27.5.2015 the TPSC published a list of eligible candidates and only 11 candidates were found eligible. The name of the petitioner appears at Sl. No.8 of this list and the name of respondent No.7 Sri Shibabrata Bardhan appears at Sl. No.6 of the list. After this list was prepared it appears that respondent No.6 Sri Debasish Naha, on 04.6.2015, sent an application to the TPSC enclosing herewith his experience certificates. It appears that the name of Sri Debasish Naha was not found to be eligible because he had not enclosed any certificate to show what was his experience. The TPSC took note of the experience certificates and permitted Sri Debasish Naha and one other gentleman Sri Biswanath Majumder to file their experience certificates and they were then called for interview. Interviews were conducted on 13.6.2015 and thereafter on 06.7.2015 a notification was issued wherein the names of respondent Nos.6 and 7 were shown as the selected candidates. 4. The TPSC took note of the experience certificates and permitted Sri Debasish Naha and one other gentleman Sri Biswanath Majumder to file their experience certificates and they were then called for interview. Interviews were conducted on 13.6.2015 and thereafter on 06.7.2015 a notification was issued wherein the names of respondent Nos.6 and 7 were shown as the selected candidates. 4. Thereafter Anirban Dasgupta filed WP(C) No.269 of 2015 and the main ground of challenge was that the applications filed by the private respondents were not complete and that the TPSC had illegally permitted the private respondents to appear in the interview. It was alleged that since they were ineligible to appear in the interview they could not have been selected. In the writ petition there was no specific allegation against respondent No.7 Sri Shibabrata Bardhan but the allegation qua Sri Debasish Naha was that he had not submitted a complete application initially and that he had wrongly been permitted by the TPSC to submit the experience certificates more than one year after the last date for filing of application. The writ petition was contested. The stand of the TPSC was that since the respondent No.6 was an in-service candidate he had in terms of the guidelines submitted an advance copy to the TPSC and that the department had later sent the second copy. An impression was given as if the second copy also contained the experience certificate. As far as respondent No.7 is concerned, there was no specific allegation against him other than a general allegation that he was unfit to hold the post of Financial Controller. The learned Single Judge after hearing the parties by the impugned judgment has set aside the appointment of both respondents 6 and 7 and has further directed that fresh selection be done to select the candidate for the post Financial Controller. We may mention that the learned Single Judge has rightly held that mala fides are neither alleged nor proved in the case. The main ground on which the writ petition was allowed is that the TPSC could not have permitted the respondents 6 and 7 to have added documents to their applications after the last date for filing the application form was over. Aggrieved by this judgment these three writ appeals have been filed. 5. The main ground on which the writ petition was allowed is that the TPSC could not have permitted the respondents 6 and 7 to have added documents to their applications after the last date for filing the application form was over. Aggrieved by this judgment these three writ appeals have been filed. 5. Writ Appeal No.5 of 2016 has been filed by Sri Shibabrata Bardhan who was respondent No.7 in the writ petition. In this case, the main argument of Mr. S Deb, learned senior counsel is that there was no allegation and no material before the learned Single Judge to come to the conclusion that respondent No.7 had not filed a complete application. He submits that there is not a single document on record to even remotely indicate that Shibabrata Bardhan’s application was incomplete or that it was allowed to be completed after the last date of submission of documents. Writ Appeal No.6 of 2016 has been filed by Sri Debasish Naha. On his behalf it is contended by Mr. S M Chakraborty learned senior counsel that writ petition was not maintainable since from the date of interview i.e.13.6.2015 till the select list was issued on 10.7.2015 the petitioner had raised no objection with regard to Debasish Naha appearing in the interview. His second limb of the argument is that Debasish Naha was an in-service candidate. He had applied for the requisite experience certificates but these were issued to him only after the last date of submission of documents and since these were issued to him after the last date obviously he could not have furnished them with his advance copy. He submits that as soon as he came to know that his name has been rejected his client submitted an application on 04.6.2015 that he should be called for the interview. It is also submitted by Mr. Chakraborty that his client should not suffer because admittedly, he has long experience and even if certificate was not issued this is a minor error which could have been corrected at a later stage. Sri Anirban Dasgupta has filed Writ Appeal No.13 of 2016 and the challenge on behalf of Anirban Dasgupta is mainly to the final direction of the learned Single Judge that fresh selection be made on the basis of a fresh advertisement. Ms. Sri Anirban Dasgupta has filed Writ Appeal No.13 of 2016 and the challenge on behalf of Anirban Dasgupta is mainly to the final direction of the learned Single Judge that fresh selection be made on the basis of a fresh advertisement. Ms. R Purkayastha, learned counsel appearing on behalf of the writ petitioner, submits that fresh selection should be made but it should be limited to those people who had applied pursuant to the notification issued on 22.7.2014 and fresh applicants should not be permitted to apply. It is also submitted by Ms. Purkayastha that the entire process of selection was bad since the TPSC had not awarded marks properly in the written interview and marks were awarded only for general knowledge on a lump sum basis without dividing the marks subject wise. Another argument urged by Ms. Purkayastha is that Debasish Naha obtained his MBA degree only in July/August, 2013 and in terms of guideline No.14 only his experience after obtaining MBA degree could have been counted and this experience on the last date of filing of applications which is 23.8.2014 could not have been more than one year. 6. At the outset, we may deal with Writ Appeal No.5 of 2016 filed by Sri Shibabrata Bardhan. We have no doubt in our mind and in fact this fact is not disputed by any of the other counsel appearing in the case that the application of Sri Shibabrata Bardhan was complete in all respects and the TPSC has not given him any extension of time or any leeway to file additional documents. It appears to us that the learned Single Judge mainly noted the facts of Sri Debasish Naha and somehow was under the impression that the case of Sri Shibabrata Bardhan was similar to that of Sri Debasish Naha. This is not a fact. Shibabrata’s application was complete in all respects and he has not been granted any extension. Extension has only been granted to two persons; one to Sri Debasish Naha and another is Sri Biswajit Majumder who is not a party in the present proceedings. Therefore, we have no hesitation in holding that the finding of the learned Single Judge setting aside the selection of respondent No.7 is totally erroneous. Extension has only been granted to two persons; one to Sri Debasish Naha and another is Sri Biswajit Majumder who is not a party in the present proceedings. Therefore, we have no hesitation in holding that the finding of the learned Single Judge setting aside the selection of respondent No.7 is totally erroneous. It is not based on any evidence or material whatsoever and it appears that this finding was given because somehow the learned Single Judge missed to see the original file of the TPSC. Be that as it may, as far as the appeal is concerned, during the course of the appeal none of the opposing counsel would point out any defect in the application of Shibabrata Bardhan respondent No.7. Consequently, his appeal has to be allowed. 7. We now come to the appeal of Sri Debasish Naha being Writ Appeal No.6 of 2016. Before dealing with the appeal we may make reference to some of the guidelines which have admittedly been issued by the TPSC and are published on its website. We expect that candidates who apply for posts advertised by the TPSC visit the TPSC website and follow the guidelines and the rules published on the website. 8. We may make reference to guideline Nos.6, 7 and 14 which read as follows : “6. Filled in application must reach the Secretary, Tripura Public Service Commission, Agartala, West Tripura on or before the last date of submission of application as indicated in the advertisement for the post(s). Application received after last date of submission of application will be summarily rejected. 7. Applications incomplete in any form or defective or containing statements which are incorrect or false or if there is any suppression of facts are liable to be summarily rejected. No correspondence or queries from applicants will be entertained. 14. Where a number of years of experience is prescribed as an item of qualification, experience would mean only experience gained in full time employment after acquiring minimum academic qualifications including training, if any.” We also may refer to the portion of instructions under the heading of “Do’s” especially instruction No.8 which reads as follows : “8. If you are employed, apply through proper channel or attach a ‘No Objection on Certificate’ from your employer for the post applied for. If you are employed, apply through proper channel or attach a ‘No Objection on Certificate’ from your employer for the post applied for. However, in former case, you must submit an advance copy of application along with copies of all required certificates/documents directly to the Commission and another copy(photocopy of the filled in application) through proper channel.” A perusal of the guideline No.6 clearly indicates that the filled in application must reach the Secretary, Tripura Public Service Commission on or before the last date of submission of application indicated in the advertisement. Applications received after the last date of submission are to be summarily rejected. A perusal of guideline No.7 shows that if an application is incomplete in any form or defective then also the application shall be summarily rejected and no correspondence or queries form applicants will be entertained in this regard. Instruction No.8 under “Do” requires that if a person who is already under employment wants to apply for a post advertised by the TPSC he can follow one of two methods. The first is that he can obtain a “No Objection Certificate” from his employer and then submit the application along with the “No Objection Certificate”. This has obviously to be done by the last date for submission of application. The second option available to such an employee is that he may, instead of obtaining a “No Objection Certificate”, submit an advance copy to the TPSC complete in all respects and thereafter provide a photocopy of this application to his employer who in turn will send it to the TPSC through proper channel. 9. As far as the present case is concerned, Sri Naha applied by submitting an advance copy. He at that stage had not submitted any “No Objection Certificate” and therefore, the procedure which he followed was of submitting an advance copy. We have perused the record of the TPSC. Admittedly, the advance copy does not contain any certificate to certify that the petitioner has two years experience. It is true that in the application form the petitioner has stated that he has more than two years experience in audit and accounts but there is no certificate as required in this regard. We also perused the copy sent by the department. It is only a photostat copy of the advance copy and even with this copy there was no such certificate with regard to experience. We also perused the copy sent by the department. It is only a photostat copy of the advance copy and even with this copy there was no such certificate with regard to experience. It is only after the TPSC issued a notification on 27.5.2015 notifying the list of eligible candidates Sri Debasish Naha woke up and then moved an application to the TPSC that he had certificates in this regard and these certificates may be taken on record and he may be permitted to appear in the interview. This application was filed on 04.6.2015 and along with the application Sri Debasish Naha has produced a number of certificates showing his experience. 10. The first is a certificate issued on 20.8.2014 by the Executive Engineer DWS Division, Udaipur, Gomati District, Tripura. Another is a certificate issued on 03.01.2015 by the Dy. Director, Department of Audit, Agartala, Tripura. Another certificate has been issued on 31.5.2010. This was issued by the Executive Engineer, Public Works Department, Santirbazar Division, South Tripura. Another certificate was issued on 31.8.2013 by the Executive Engineer, DWS Division, Kumarghat, Unakoti, Tripura. The last date for submission of documents was 23.8.2014. This clearly shows that the story of Debasish Naha that these certificates were not available with him is totally false. Other than the certificate issued on 03.01.2015 all the other certificates were available with him and there is no explanation worth the name why these certificates were not attached with the advance application submitted to the TPSC. We are in agreement with the finding of the learned Single Judge as far as Debasish Naha is concerned that the TPSC had no business to permit him to file documents after the last date of filing application is over. It is by now well settled law that the rights of the parties in such matters are determined on the last date of filing applications. If an application is incomplete or does not contain all the necessary documents then even as per the guidelines of the TPSC they have to be summarily rejected. We are, in fact, shocked and surprised to see the manner in which the TPSC has permitted these documents to be taken on record almost one year after the last date of submission of application was over. 11. We are, in fact, shocked and surprised to see the manner in which the TPSC has permitted these documents to be taken on record almost one year after the last date of submission of application was over. 11. There may be some cases where there is some lack of clarity on an issue and if there is lack of clarity the matter can be clarified but non-filing of certain documents is not lack of clarity. If documents are required to be filed they must be filed. If the application says that certificate for experience and qualifications have to be filed then any application which does not contain the said documents is an incomplete application which cannot be considered and must be rejected. Such an error cannot be allowed to be corrected after the last date of submission of application is over. Another aspect of the matter is that even in those cases where due to lack of clarity or otherwise if the interviewing body feels that a large number of applicants have been mislead and therefore, they should permit them to submit documents then such authority is duty bound to issue either a public notice or should send letters to all other applicants whose applications have been rejected on similar grounds that their applications are incomplete and permit them also to submit their applications. Article 14 of the Constitution of India requires that every citizen has to be treated equally. This equality becomes meaningless if the other applicants are not informed that the TPSC or the interviewing body wants to relax the conditions. If any relaxation has to be given then all should be informed about such relaxation. We have, therefore, no hesitation in upholding the finding of the learned Single Judge that the TPSC did not act in accordance with law while permitting Sri Debasish Naha to file the certificate of experience at a later stage. 12. We next come to the argument raised by Mr. S M Chakraborty that the writ petitioner was silent from the date of interview till date of selection. We find no merit in this objection whatsoever. The right of the petitioner is affected only after the select list was issued. If Debasish Naha had not been selected the petitioner would have had no objection whatsoever. S M Chakraborty that the writ petitioner was silent from the date of interview till date of selection. We find no merit in this objection whatsoever. The right of the petitioner is affected only after the select list was issued. If Debasish Naha had not been selected the petitioner would have had no objection whatsoever. This is not a case where the petitioner has challenged the process of interview or saying that interviews should not have been conducted. Here the petitioner is urging that a person whose application was not complete has wrongly been appointed whereas his application should have been rejected summarily. Therefore, we reject this argument. 13. Coming to the next argument of Mr. Chakraborty that the petitioner should not suffer for the fault of the department. We are not at all in agreement with this submission. As pointed out above, except for one certificate all the other certificates had been issued before 23.8.2014. The petitioner now wants to put the shoe on the wrong foot and submits that it is the department which is at fault. He does not even have the courage to say to this Court that he had these certificates much prior to the date but for one reason or the other he could not submit these certificates. In fact, the conduct of the petitioner is deplorable and he has tried to mislead the Court by stating that the experience certificate only became available much after the last date of submission of application was over. 14. We now come to the appeal of the writ petitioner Sri Anirban Dasgupta being Writ Appeal No.13 of 2016. As far as the argument of Ms. R Purkayastha with regard to the marking by the TPSC is concerned, we will not permit her to raise this argument. We find that this argument was not raised before the learned Single Judge. There is no discussion on this argument before the learned Single Judge. This argument has not even been raised in the writ petition though some reference to this has been made in the rejoinder. Furthermore, this matter having not been urged before the learned Single Judge we cannot permit it to be raised in this appeal. 15. Ms. Purkayastha made reference to guideline No.14 which we have quoted herein above. This argument has not even been raised in the writ petition though some reference to this has been made in the rejoinder. Furthermore, this matter having not been urged before the learned Single Judge we cannot permit it to be raised in this appeal. 15. Ms. Purkayastha made reference to guideline No.14 which we have quoted herein above. A bare perusal of this guideline clearly shows that where a number of years of experience is prescribed as an item of qualification, experience would mean only experience gained in fulltime employment after acquiring minimum academic qualifications including training. In the present case there are two types of qualifications prescribed; one is qualification of Chartered Accountant and in this case there has to be 4 years experience in audit and accounts branch of any Government Department, Government Undertaking/Public Sector Unit and the second qualification is MBA with a minimum of 2 years experience in audit and accounts branch of any Government Department, Government Undertaking/Public Sector Unit. It is obvious that in the case of Chartered Accountants they have to in terms of guideline No.14 have four years experience after obtaining their qualification of Chartered Accountant and in case of those having MBA degree the experience should be 2 years after obtaining the MBA degree. On the last date of submission of applications Debasish Naha definitely did not have 2 years experience post his MBA degree. 16. Mr. P Dutta and Mr. S M Chakraborty submitted that this 2 years is not necessarily post MBA degree. It urged on behalf of the TPSC by Mr. Dutta that they have followed the RMP Rules which do not lay down that the experience should have been post obtaining the academic qualifications. We are not at all in agreement with this submission. The TPSC does not prescribe the qualifications. It has to follow the qualifications prescribed under the rules. In guideline No.14 it has been specifically mentioned that where a number of years of experience is prescribed as an item of qualification experience would mean only the experience gained after acquiring minimum academic qualifications. Therefore the experience, if any, gained before acquiring the minimum academic qualification cannot be taken into consideration. The TPSC has to follow its own guideline. We are, in fact, shocked that the TPSC should have taken such a stand. Therefore the experience, if any, gained before acquiring the minimum academic qualification cannot be taken into consideration. The TPSC has to follow its own guideline. We are, in fact, shocked that the TPSC should have taken such a stand. We expect a Constitutional body like the TPSC to be fair and to admit a mistake if they committed one. We, therefore, have no hesitation in holding that Debasish Naha was not even qualified on the last date of submission of applications since on that date he did not have 2 years experience after obtaining his MBA degree. 17. We now come to the last submission of Ms. R. Purkayastha that the order of the learned Single Judge quashing the entire selection is incorrect and the selection should be limited to the persons who applied in pursuant to the advertisement No.09/2014 issued on 22.7.2014. We are partly in agreement with this submission but not wholly. As held by us above, respondent No.7 is not at fault at any stage. Further, as held by us above, the writ petitioner is not entitled to challenge the method of interview because that was not an issue raised in the writ petition, it was not argued before the learned Single Judge and therefore, we cannot permit it to argue in this appeal. We cannot in the absence of any pleadings in this behalf give a finding that the process of interview was improper or illegal. As has been held by the learned Single Judge, there was no allegation of mala fide and there was no discussion whatsoever questioning the manner of awarding the marks in various events. We therefore, fail to see whey the why the entire interview process should be set aside. If Debasish Naha has been selected wrongly the person next in merit has to be selected. 18. In view of the above discussion, we dispose of the appeals in the following terms : (i) The order of the learned Single Judge is partly set aside and his order setting aside the selection of respondent No.7 is itself set aside and we uphold the selection of the respondent No.7. (ii) That the order of the learned Single Judge directing that fresh advertisement be issued and fresh selection be made is also set aside. (ii) That the order of the learned Single Judge directing that fresh advertisement be issued and fresh selection be made is also set aside. (iii) We direct the TPSC on the basis of the merit list prepared to recommend the name of the person next in the merit list but it is made clear that since we have set aside the selection of Sri Debasish Naha on the ground that his application was wrongly entertained no such offer of appointment need be issued to Sri Biswajit Majumder even if he be the person next in the merit list since his case is identified to that of Sri Debasish Naha. All the three writ appeals are disposed of accordingly. No costs.