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2019 DIGILAW 568 (CAL)

Sushil Kumar Das v. State of West Bengal

2019-05-03

ABHIJIT GANGOPADHYAY

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JUDGMENT : 1. This is an application by a Group-D staff of a College namely Sundarban Mahavidyalaya, in Kakdwip, District South 24-Parganas, for his appointment in a Group-C post in the said College. The petitioner has prayed for a direction on the College authority for allowing him in the interview. The interview has already been held and a person has been appointed in that post but the cause remains as the petitioner has also challenged the recruitment process. 2. From the pleading of the parties it is found that for recruitment in the post of Clerk the College published an advertisement dated 7th September, 2016 laying down the maximum age limit for the candidates as "not exceeding 40 years" but immediately thereafter on 8th September, 2016 withdrew the age specified and stated that the age of the candidate as on 1st September, 2016 should be as per Rule of Government of West Bengal instead of "not exceeding forty (40) years". The petitioner has no reason for being aggrieved by such change. He had filed his application for the post of Clerk (lower division) pursuant to the advertisement published in the Times of India dated 7th September 2016 and participated in the recruitment process. 3. After the submission of the application for participating in the recruitment process for appointment in the Group- C post of the College, the petitioner apprehended that the admit card would not be issued to him by the College authority and filed for issuance of admit card one writ application being W.P. 26873 (W) of 2016 which was disposed of on 28th November, 2016 as admit card had already been issued to him. 4. The petitioner has made out his case on the basis of a Government Order bearing No. 924-Edn(CS) dated 26th November, 2007 wherein it is stated that duly qualified candidates working for at least five years as regular employees in Group-'D' category in a Non-Government College in the State may be considered for appointment to the posts of Group- C category of that College along with the candidates sponsored by the Employment Exchange provided such candidates fulfil the conditions of eligibility for recruitment for the said post. By the said Government Order it was also declared that for such consideration (of Group-D employee in the Group-C post) age shall be no bar. 5. By the said Government Order it was also declared that for such consideration (of Group-D employee in the Group-C post) age shall be no bar. 5. I do not find any grievance of the petitioner in this respect as the college expressed no intention to violate this Government Order. 6. The petitioner has also based his case on the Calcutta University First Statues 1979. In chapter XIII in the said statues under the heading 'promotion' in Statute 6(c) it is laid down that: "In the case of filling up of vacancies in the posts referred to in Sub-Clause (ii) of Clause (a) of Statue 3, efficient and experienced members of the lower subordinate staff having the requisite qualifications shall get preference over others". (Emphasis mine). 7. Sub-Clause (ii) of Clause (a) of Statue 3, of the chapter XIII speaks about Ministerial Staff which includes Assistant Clerk, Library Assistant, Laboratory Assistant, etc. 8. The petitioner states that he works in the College as a Library Bearer from 20th January, 1995 and he is eligible for getting preference over others for promotion in the Group-C post for which recruitment process was initiated by the College by issuing advertisement dated 7th September, 2016. 9. The petitioner's allegation is, he was not selected by giving preference in violation of the said statues of Calcutta University. He also challenged the advertisement for recruitment and the recruitment process and alleged that with ill motive and ill intention he had been excluded in the recruitment process after the stage of written examination and appointment was not given to him. 10. The petitioner appeared in the written examination on 3rd December, 2016. 11. He wrote a letter to the College authority for furnishing him the result of the written examination as call letters for interview were being issued from 6th February 2017 to others. In reply the College authority intimated the petitioner that the list of short listed candidates in the written test had already been published in the College website, wherefrom the petitioner came to learn that 14 candidates were short listed and he was not within those short listed candidates. 12. The petitioner has made allegation that the Calcutta University First Statues 1979, was not followed by the College and he was not given preference over others as has been mentioned in Statue 6 (c) of chapter XIII of the above mentioned statutes. 13. 12. The petitioner has made allegation that the Calcutta University First Statues 1979, was not followed by the College and he was not given preference over others as has been mentioned in Statue 6 (c) of chapter XIII of the above mentioned statutes. 13. The College authority being the Principal/Teacher-in-Charge and the Governing Body of the College have filed an affidavit-in-opposition wherein it has been stated that in the Governing Body meeting of the College resolution was taken for the purpose of selection of candidates by way of written test of 30 marks of interview of 20 marks. The qualifying marks in the written test was fixed as 12. There was no illegality or irregularity in short listing and continuation of in the recruitment process. The written test was held on 3rd December, 2016 and call letters were issued to 48 candidates including the petitioner for the written test out of which 28 candidates appeared. Out of the said 28 candidates 14 candidates got 12 marks or above and they qualified in the written test. The petitioner got 11 marks in the written test and was not qualified. 14. The document showing issuance of call letters, the attendance sheets of the candidates in the written examination and the document showing marks obtained by the candidates have been disclosed as annexures in the affidavit-in-opposition. 15. It has been submitted by the said respondent that as the petitioner did not secure qualifying marks (i.e. 12 marks) he was not a short listed candidate and therefore the question of giving the preference to him does not arise as question of preference can be given only when the claims of all candidates who are eligible are taken for consideration and when they are equally placed. The petitioner is not equally placed with the short listed candidates and the preference could not be given to him being an unsuccessful candidate in written test. The answering respondents in paragraph 24 of the affidavit-in-opposition has stated that the petitioner made an application under the Right to Information Act 2005 for supply of copy of the answer script to him which was supplied to him by the College and after receiving the photocopies of the answer script he could not raise any allegation of awarding less marks to him than he was entitled to, in the written test. The writ petitioner had dealt with this statement made in affidavit-in-opposition in paragraph 12 of his affidavit-in-reply but has not denied or disputed the statement by making any statement to the contrary. Only denial have been made that too by saying that he was denying and disputing the statements save and except what were maters of record. Thus there is no denial of the statement of the College as to supply of answer-script and awarding of marks to the petitioner. 16. The writ petitioner after participating in the selection process, for participating wherein he even filed one writ application for issuance of admit card to him, cannot challenge the selection process including the notification for filling up the vacancy. 17. In the case of Om Prakash Shukla -verus- Akhilesh Kumar Shukl, (1986) Supp1 SCC 285 the Supreme Court held that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. Here, after being unsuccessful in the written test the petitioner has challenged the selection process and has only taken a calculated chanced as has been held by the Supreme Court in Madan Lal s case, (1995) 3 SCC 486 and in such cases also Courts would not interfere. 18. In respect of the preference, in A.P. Public Service Commission versus- YVVR Srinivasulu, (2003) 5 SCC 341 the Supreme Court has observed as follows: "The word "preference" is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all-round merit, if had to be adjudged in that manner only, there is no justification for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The suitability and all-round merit, if had to be adjudged in that manner only, there is no justification for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. The "preference" envisaged in the Rules, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weight age to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority merit wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection". 19. In Sher Singh -versus- Union of India, (1984) 1 SCC 107 the Supreme Court has held that "The expression "preference" amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence one over the other. It signifies that other things being equal, one will have preference over the others". 20. In this case the petitioner being an unsuccessful candidate is not equal with the short listed candidates who were successful in the written test and therefore preference could not be and was not given to the petitioner. 21. It signifies that other things being equal, one will have preference over the others". 20. In this case the petitioner being an unsuccessful candidate is not equal with the short listed candidates who were successful in the written test and therefore preference could not be and was not given to the petitioner. 21. From the facts and circumstances as discussed above I find that the petitioner does not have any case at all for challenging the recruitment process and for claiming preference and I do not find any merit in the writ application. The writ application is dismissed.