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2017 DIGILAW 791 (CAL)

Mijanur Rahaman v. Md. Mostafa Forhad Hossain

2017-09-20

BISWANATH SOMADDER, MIR DARA SHEKO

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JUDGMENT : Biswanath Somadder, J. : In Re: CAN 7179 of 2017 1. After considering the submission made by the learned advocate for the appellants/applicants and upon perusing the instant application, it appears that sufficient cause has been shown in order to explain the delay in filing of the appeal and as such, the delay is condoned. 2. The application for condonation of delay, being CAN 7179 of 2017, is accordingly allowed. In Re: MAT 1189 of 2017 with CAN 7180 of 2017 3. By consent of the parties, the appeal is treated as on day’s list and taken up for consideration along with application for stay. 4. The instant appeal has been preferred by only four of the nine added respondents in a writ proceeding against the judgment and order dated 7th April, 2017, passed by a learned Single Judge in W.P. 26826 (W) of 2015 (Md. Mostafa Forhad Hossain & Ors. Vs. The State of West Bengal & Ors.). 5. The writ petition was moved by three petitioners before the learned Single Judge challenging the selection process for the post of Executive Assistants of Gram Panchayats and Panchayat Samities in the district of Cooch Behar. On 5th December, 2013, an advertisement was issued by the office of the District Magistrate, Cooch Behar, inviting applications for filling up of thirteen anticipated vacancies in respect of the posts-in-question. On 26th August, 2014, in a meeting of the District Level Selection Committee, it was resolved that the answer scripts would be evaluated by following a negative marking system by deducting one mark for every three wrong answers. This pre-supposes that the questions would have a multiple choice of answers of which one has to be selected by the candidate. It was further resolved that the answer scripts would be checked through a competent agency. Instructions to the candidates made it clear that the assessment of answer papers would be made by Optical Mark Reader (OMR) machine. On 21st September, 2014, the written examination was held. Much after the examination was over, i.e., on 12th September, 2015, a decision was taken by the committee for recruitment that the answer scripts would be checked by certain officials. It was made clear that they would not be checked by OMR machine. Primarily, on this factual background, the writ petitioners filed the writ petition. Much after the examination was over, i.e., on 12th September, 2015, a decision was taken by the committee for recruitment that the answer scripts would be checked by certain officials. It was made clear that they would not be checked by OMR machine. Primarily, on this factual background, the writ petitioners filed the writ petition. The matter was heard upon exchange of affidavits and the learned Single Judge after considering the respective contentions of the parties and the judgments cited came to the following conclusion: “In fact, the question in this case is not about a candidate challenging the Rules of a selection or recruitment process after participating therein. The grievance of the candidates is that after their participation in the written test, the rules or terms and conditions in which the selection was to be conducted have been changed to their detriment. The negative marking system was not followed. In stead of the papers being marked by OMR machines the papers were physically checked. To my mind, the principle of law which the Supreme Court of India has tried to reiterate in the above decision is that a candidate participating in a selection or recruitment process under given conditions or rules, cannot after being unsuccessful turn around and challenged them. The rule of estoppel prevents him from doing so. But this is quite different if after participating in the selection or recruitment process, the candidate discovers that the terms and conditions, rules or norms have been changed. The process is vitiated. 6. In fact, Y.V. Rangaiah & Ors vs. J. Sreenivasa Rao & Ors., reported in (1983) 3 SCC 284 and P. Mahendran and others Vs. State of Karnataka and others, reported in AIR 1990 SC 405 cited by Mr. Chaturvedi, are more applicable in this case. 7. The Supreme Court of India in this case held that the terms and conditions, rules or norms etc. for selection cannot be changed after initiation of the selection process which is usually the date of publication of advertisement for inviting applications. 8. It is quite clear that the selection process in question was not conducted in a free and fair manner. The entire selection process is set aside by this court. 9. The State respondents are directed to initiate a fresh recruitment process, within six weeks of communication of this order, by publication of an advertisement. 10. 8. It is quite clear that the selection process in question was not conducted in a free and fair manner. The entire selection process is set aside by this court. 9. The State respondents are directed to initiate a fresh recruitment process, within six weeks of communication of this order, by publication of an advertisement. 10. I make it clear that all those persons, who were eligible on 5th December, 2013 and applied, will continue to be eligible to participate in the selection process. 11. The interim order is superseded by this order. 12. This writ application is, accordingly, disposed of.” 13. On behalf of the appellants, it has been contended that unsuccessful candidates had challenged a selection process and they had no right in law to do so. 14. In answer to the Court’s query, the learned advocate representing the State submits that they have accepted the verdict of the learned Single Judge and have initiated a fresh recruitment process. 15. As such, a question that comes up for consideration is whether the appellants (being four of the nine added respondents in the writ proceeding) could be termed as “persons aggrieved” or have any existing legal right for the purpose of restoring the selection process which has been scrapped. 16. The process of successful selection in respect of any recruitment process culminates in issuance of either a letter of appointment or an offer letter for appointment in favour of the successful candidate. No legal right accrues in favour of any person to invoke the Constitutional writ jurisdiction of this Court under Article 226 before issuance of such letter of appointment or an offer letter for appointment by the concerned authority. In this context, one may take notice of a judgment rendered in the case of Reboti Mal & Ors. Vs. The State of West Bengal & Ors., reported in 2012 (5) CHN (CAL) 171. 17. The ratio of the above judgment is clearly applicable in the facts and circumstances of the instance case. The reason is, the appellants were mere participants in the selection process as much as the writ petitioners were. The writ petitioners have been successful before the learned Single Judge since their contention with regard to changing of the rules or terms and conditions in which the selection was to be conducted was effected to their detriment had been upheld. The reason is, the appellants were mere participants in the selection process as much as the writ petitioners were. The writ petitioners have been successful before the learned Single Judge since their contention with regard to changing of the rules or terms and conditions in which the selection was to be conducted was effected to their detriment had been upheld. The concerned authority of the State has accepted the order of the learned Single Judge. The appellants – in such a fact situation – cannot be said to have any locus standi – following the ratio of the judgment of this Court in Reboti Mal’s case – since they have not been issued either any letter of appointment or for that matter, even an offer letter for appointment. 18. For such reasons as stated above, the appeal and the application for stay are liable to be dismissed and are accordingly dismissed.