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2020 DIGILAW 60 (CAL)

Sukhen Sen v. State Of West Bengal

2020-01-15

RAJASEKHAR MANTHA

body2020
JUDGMENT 1. This matter was heard yesterday and today. 2. The petitioners were the applicants for Group-C and Group-D post in the Rampurhat College under the Burdwan University. Posts were advertised pursuant to a newspaper insertion on October 14, 2015. The last date for receipt of applications was in November 7, 2015. It was specifically mentioned in the insertion in the vernacular newspaper that the applications should be received only by way of registered post. 3. The petitioners participated in the selection process and were unsuccessful. The petitioners claim that during the selection process which involved Written Test and Viva- Voce examination, they came to know and found that three candidates who were close to the Principal of the Rampurhat College were going to be favoured. They further claim that the said three persons were eventually selected and issued appointment letters. They rushed to the Court immediately on January 18, 2016. 4. The actual meeting of the Selection Committee was held on January 19, 2016 and the appointment letters were issued on January 20, 2016. The petitioners submit that they are entitled to challenge the selection process notwithstanding participation in the same relied upon a judgment of a Division Bench of this Court in F.M.A. 823 and 1285 of 2013 decided on October 12, 2018 in the case of Mriganka Mondal & Ors. vs. Asitabha Das & Ors. In essence what has been held by the Division Bench that a candidate who participated in the selection process is best placed to challenge the same and is indeed entitled to do so if he comes across anomalies and illegality subsequent to the selection process. This Court, therefore, entertains the writ application. 5. The first ground for challenging the selection process is that the applications have been received and processed by the College that were received by ordinary post and this is contrary to the advertisement for the selection process made in the vernacular newspaper. 6. The learned Counsel for the College Authority submits orally as well as on affidavit that the English version of the advertisement entitled the College Authority to receive applications even by ordinary post and by hand. There was a resolution of the College to this effect. This Court does not find a very serious infirmity in the acceptance of applications in the manner that the College has done. There was a resolution of the College to this effect. This Court does not find a very serious infirmity in the acceptance of applications in the manner that the College has done. The same by itself cannot vitiate the selection process as the petitioners have been allowed to participate therein, three of whom have been called for Viva-Voce. 7. The next ground urged is that the marks stipulated for the Viva-Voce examination are more than one-third of the total marks. In the resolution of the Selection Committee, it appears that about 20 marks have been fixed for Viva-Voce examination and 30 marks for the Written Test. The petitioners submit that the same is in violation of the dicta laid down by the Honble Supreme Court in the celebrated decision of Ajay Hasia & Ors. vs. Khalid Mujib Sehravardi & Ors. reported in (1981) 1 SCC 722 and Asok Kumar Yadav vs. State of Haryana reported in AIR 1987 SC 454 . Reliance is placed at paragraph 21 of the Ajay Hasia & Ors. vs. Khalid Mujib Sehravardi & Ors. decision (Supra) thereof which is set out hererunder. '21. So far as the third ground of challenge is concerned, we do not think it can be dismissed as unsubstantial. The argument of the petitioners under this head of challenge was that even if oral interview may be regarded in principle as a valid test for selection of candidates for admission to a college, it was in the present case arbitrary and unreasonable since the marks allocated for the oral interview were very much on the higher side as compared with the marks allocated for the written test. The marks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview came to 33 1/3% of the total number of marks taken into account for the purpose of making the selection. This, contended the petitioners, was beyond all reasonable proportion and rendered the selection of the candidates arbitrary and violative of the equality clause of the Constitution. This, contended the petitioners, was beyond all reasonable proportion and rendered the selection of the candidates arbitrary and violative of the equality clause of the Constitution. Now there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness. It may be pointed out that even in Peeriakaruppans case (supra), where 75 marks out of a total of 275 marks were allocated for the oral interview, this Court observed that the marks allocated for interview were on the highside. This Court also observed Miss Nishi Maghus case (supra): 'Reserving 50 marks for interview out of a total 150does seem excessive, especially when the time spent was not more than 4 minutes on each candidate'. There can be no doubt that allocating 33 1/3 of the total marks for oral interview is plainly arbitrary and unreasonable. It is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the Indian Police Service, where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination, constituting only 12.2% of the total marks taken into consideration for the purpose of making the selection. We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained. We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained. But we do not think we would be justified in the exercise of our discretion in setting aside the selections made for the academic year 1979-80 after the lapse of a period of about 18 months, since to do so would be to cause immense hardship to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and, moreover, even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position' 8. The learned Counsel for the College relied upon a very recent decision of the Honble Supreme Court in the case of Manish Kumar Shahi vs. State of Bihar & Ors. reported in (2010) 12 SCC 576 . In the said decision, the learned Counsel for the College relied upon paragraphs 9 and 16 which are stated as follows. '9- The question whether the marks prescribed for viva voce test/interview are excessive and selection made in accordance with the criteria like the one specified in Rule 14 read with Appendix C and Para (vi) of the advertisement issued by the Commission has been considered by this Court in several cases including those upon which reliance has been placed by the learned counsel for the petitioner. Although no straitjacket formula has been judicially evolved for determining whether the prescription of a particular percentage of marks for viva voce test/interview introduces an element of arbitrariness in the process of selection or gives unbridled power to the recruiting authority/agency to select less meritorious candidates, by and large, the courts have not found any constitutional infirmity in prescribing of higher percentage of marks for viva voce test/interview for recruitment to judicial services, administrative services and the like.' '16 . We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioners name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. reference in this connection may be made to the judgments in Madan Lal vs. State of J&K, Marripati Nagaraja vs. Govt. of A.P., Dhananjay Malik vs. State of Uttaranchal, Amlan Jyoti Borooah vs. State of Assam and K.A. Nagamani vs. Indian Airlines.' 9. The aforesaid decisions of Ajay Hasia (Supra) and Asok Kumar Yadav (Supra) have been duly considered. Therefore, it appears that the principles of Ajay Hasia & Ors. vs. Khalid Mujib Sehravardi & Ors. and Asok Kumar Yadav vs. State of Haryana (Supra) 10. have been put in perspective and there is in fact no straight jacket formula or conclusive law that mere stipulation of marks more than one-third for a Viva-Voce examination in the selection process would vitiate the same and expose such selection process to the vices of arbitrariness. The arguments of the petitioners in this regard, therefore, cannot be accepted by this Court. 11. The petitioners would lastly rely upon the resolution of the Selection Committee and submit that the minutes of meeting dated November 23, 2015 indicate the presence of four persons and the same has been signed at the bottom by only two persons. He would, therefore, argue that the basic quorum of the Selection Committee was not available. This Court finds from a plain look at the copy of the resolution annexed to a supplementary affidavit that there are four persons who have put their signatures in the first part of the resolution. There are signatures of two persons i.e. the President, Governing Body, Rampurhat College and the Teacher-in-Charge at the end of the resolution. 12. This Court finds from a plain look at the copy of the resolution annexed to a supplementary affidavit that there are four persons who have put their signatures in the first part of the resolution. There are signatures of two persons i.e. the President, Governing Body, Rampurhat College and the Teacher-in-Charge at the end of the resolution. 12. Since, this Court finds four distinct handwritings in different pens in the first part of the resolution, this Court is of the view that there were, in fact, four persons present in the meeting. The signatures of only two persons at the bottom of the resolution will not negate the fact that four persons were present in the meeting. 13. The normal practice of only names of persons present being recorded in the first part of a resolution and the signatures of all persons required to be put in at the end of the resolution is not universally followed. The same cannot, therefore, by itself render the meeting illegal. 14. The other decisions relied upon by the petitioners as regards the illegality in the selection process and have no manner of application in the facts of the instant case. 15. This Court finds that the selection of the candidates has been approved by the Director of Public Instruction a year after the selection and during the pendency of the writ application. 16. This Court notes with anguish that the Director of Public Instruction has acted like a post office and has mechanically dealt with the approval process and has not examined as to whether the selection process has also been followed scrupulously by the College. This is vital as the approval of the DPI would entitle the selectees to State funded scales of pay. It is quite possible that in view of the pendency of the instant writ application, the matter has been left by the Director of Public Instruction to this Court. Such practice needs to be revisited by the Director of Public Instruction. It is ordered that, henceforth the Director of Public Instruction shall, at the time of approval of selection made by a College within his jurisdiction, shall examine as to whether the selection process has been taken place transparently and in accordance with the relevant rules in this regard. 17. It is ordered that, henceforth the Director of Public Instruction shall, at the time of approval of selection made by a College within his jurisdiction, shall examine as to whether the selection process has been taken place transparently and in accordance with the relevant rules in this regard. 17. Since this Court has found the grounds raised by the learned Counsel for the petitioners to be unacceptable, the selection process as well as the approval of the Director of Public Instruction in the facts of the instant case are not interfered with. 18. The instant writ petition being WP 975 (W) of 2016 is hereby dismissed. 19. This Court appreciates the strenuous and sincere efforts put in by Mr. Lahiri, for the petitioners in conducting the instant matter. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties.