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2017 DIGILAW 6 (CAL)

In Re, Santu Chongder v. State of West Bengal

2017-01-03

NISHITA MHATRE, TAPABRATA CHAKRABORTY

body2017
JUDGMENT : 1. The subject matter of challenge in the instant appeal is an order dated 1st July, 2015 passed by the learned Single Judge in W.P. 12124 (W) of 2015. 2. Mrs. Lala (Sengupta), learned advocate appearing for the appellant submits that responding to an employment notification dated 26th May, 2014, the appellant applied for participation in a selection process for appointment to the post of a Night Guard under the District Judgeship of North 24-Parganas. The appellant appeared in the written test on 17th August, 2014 but thereafter he was not called for the interview. By an application dated 15th December, 2014 made under the provisions of the Right to Information Act, 2005 (hereinafter referred to as the said Act of 2005) the appellant sought for information as regards the cut off marks fixed for appearing in the interview and as regards the marks awarded to him in the written test. By a letter dated 20th December, 2014 the appellant was informed that candidates who secured less than 13.5 marks in the written test were not called for the interview and that the appellant secured 25.5 marks in the written test. The appellant made a further application under the said Act of 2005 on 13th February, 2015 with a request to supply the answer sheet. By a letter dated 16th March, 2015 the appellant was supplied the answer sheet, a perusal of which would reveal that though the appellant had been given correct answer to 37 questions, the examiner had remarked that the appellant had given only 27 correct answers and 3 wrong answers. In spite of having secured much higher marks than the cut off, the appellant was illegally denied participation in the interview. Aggrieved thereby the appellant made a representation on 20th May, 2015 and the same was considered in a meeting of the reconstituted recruitment committee (hereinafter referred to as the said committee) on 5th June, 2015 and it was found that there were some mistakes in correction and accordingly a decision was taken that the appellant's answer script should be reassessed. Pursuant to such direction the appellant's answer script was reassessed and by a memorandum dated 12th June, 2015 it was intimated that the appellant had obtained 34 marks in the written test instead of 25.5 marks. Pursuant to such direction the appellant's answer script was reassessed and by a memorandum dated 12th June, 2015 it was intimated that the appellant had obtained 34 marks in the written test instead of 25.5 marks. The said memorandum was again placed in the meeting of the said committee on 17th June, 2015 and as in the midst thereof the writ petition was filed, the committee did not take any final decision. The memorandum dated 12th June, 2015 was placed before the learned Single Judge and upon considering the submissions made on behalf of the respondents to the effect that the appellant's name will be put in the wait-listed category at an appropriate position taking into consideration that he is deemed to have got ten marks in viva voce, the writ petition was disposed of with a direction upon the respondent no.3 to ensure that the appellant's name is placed in the correct position as a wait-listed candidate for the post of Night Guard. 3. Drawing the attention of this Court to the answer sheet, Mrs. Lala (Sengupta) submits that a perusal of the same would further reveal that question nos. 29 and 32 were not properly marked. The correct answer to question no.29 would be option (B) and the correct answer to question no.32 would be option (A) and though such options were marked by the appellant, she was not awarded appropriate marks pertaining to the said questions. In support of such contention reliance has been placed upon extracts from Wikipedia. Grant of appropriate marks in the said questions would have increased the total marks of the appellant in the written test to 37. In the event 10 marks allotted for interview is added to 37 marks as obtained in the written test, the total comes to 47.5 marks and such marking brings the appellant within the zone of appointment since the last candidate appointed under general category secured 44.17 marks in total. 4. She further submits that for such erroneous marking and laches attributable to the respondents, the appellant cannot be made to suffer and accordingly she prays for issuance of necessary direction upon the respondents to appoint the appellant in an appropriate vacancy. 5. The contention of the appellant to the effect that the authorities have not granted appropriate marks to him in question nos. 5. The contention of the appellant to the effect that the authorities have not granted appropriate marks to him in question nos. 29 and 32 could not be disputed on behalf of the respondents, however, it was submitted that there is no vacancy in the post of Night Guard to accommodate the appellant. By an order dated 5th October, 2016, this Court directed the learned advocate appearing for the respondents to file an affidavit detailing the Group-'D' vacancies existing in the Judgeship of North 24-Parganas. Pursuant to such direction affidavits have been filed by the respondent nos. 3 and 5. From the said affidavits, it appears that presently there exists an unreserved vacancy in the post of Peon (Group-'D') under the Judgeship of North 24-Parganas. 6. In the affidavit filed by the respondent no. 3, a resolution dated 7th July, 2015 adopted by the said committee pursuant to the order passed by the learned Single Judge has also been annexed which reveals that a revised waiting list was prepared granting 34 marks to the appellant in written test and 10 marks for interview and the appellant was placed at serial no.6. The said revised waiting list clearly shows that the last candidate appointed under general category secured 44.17 marks in total. Had the appellant been correctly marked in the written test, he would have secured 47 marks in total and would have come within the zone of appointment. Furthermore, the impugned order has been passed on the basis of the submission made on behalf of the State respondents to the effect that "the petitioner's name will be put in the wait-listed category at an appropriate position taking into consideration that he is deemed to have got ten marks in viva voce and thus has obtained an aggregate of 44 marks". Pursuant to the said order the respondents themselves have granted 10 marks to the appellant in the interview. Having not filed any application for modification or any appeal against the said order, the respondents cannot detract and insist that the appellant has to appear in a fresh interview. 7. Records reveal that the writ petition was filed before this Court prior to expiry of the lifetime of the panel. Had the appellant been given correct marks in the written test, he would have come within the zone of appointment. 7. Records reveal that the writ petition was filed before this Court prior to expiry of the lifetime of the panel. Had the appellant been given correct marks in the written test, he would have come within the zone of appointment. For the laches on the part of the respondents and for incorrect marking of the answers by the respondents, the appellant cannot be made to suffer. The mistakes committed by the respondents were initially not disclosed. Upon availing a copy of the answer sheet, in response to an application made under the said Act of 2005, the appellant for the first time came to learn that he had been incorrectly marked. With the consequential efflux of time, the candidates who have already been appointed had continued to work for a substantial period and it would be iniquitous to disturb their appointment at this juncture. The appellant has the appropriate qualification for the post of Peon (Group-'D') which is presently lying vacant under the District Judgeship of North 24-Parganas. In the said conspectus of facts, principle of fair play and balance of equities demand that the appellant should be accommodated in the existing vacancy without disturbing the appointments already granted to the candidates in response to the advertisement of the year 2014. 8. Accordingly, the impugned order dated 1st July, 2015 is set aside and the respondents are directed to appoint the appellant in the post of Peon under the Judgeship of North 24-Parganas within a period of four weeks. 9. It is made clear that this order has been passed in the peculiar facts and circumstances of the case and the same would not be treated as a precedent. 10. With the above observations and directions, the appeal and the stay application are disposed of. 11. There shall, however, be no order as to costs. 12. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.