Calcutta High Court (Appellete Side)
Abu Raihan & Ors vs The State Of West Bengal & Ors on 5 January, 2023
Author: Aniruddha Roy
Bench: Aniruddha Roy
05.01.2023
Sl.No. 6
Ct.No. 22
Amalranjan
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WPA/10086/2022
Abu Raihan & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Uday Sankar chattopadhyay
Mr. Suman Sankar chatterjee
Mr. Santan Maji
Ms. Trisha Rakshit
Ms. Subhaya Das
...for the petitioners
Mr. Bhaaskar Prosad Vaisya
Mr. Ranjan Saha
...for the State
Mr. Prosenujit Mukherjee
Ms. Madhurima Sarkar
...for the Madrasah
Service Commission
Affidavit of service filed in court today, is
taken on record.
There are 9 writ petitioners they were the
aspirants in the State Level Selection Test, 2013
for the subject Physical Education for seeking an
appointment in the Madrasah for the post of
Assistant Teacher.
Pursuant to the directions made by this
court, the respondent nos. 2, 3 and 4 had filed
its report in the form of an affidavit affirmed on December 5, 2022 dealing with the contention of the writ petitioners as contended in the writ petition.
2The first fold of challenge of the petitioners was that the advertisement for the selection process was issued in 2013 whereas the final selection process came to an end in 2021. The petitioner contended that the vacancy position published or issued in terms of Rule 9(1) of the West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Persons for Appointment and Transfer to the Posts of Teacher and Non-Teaching Staff) Rules, 2010, (for short, the said 2010 Rules), showing the vacancy position could not be same when the final panel of the selection process was published after about 8 years therefrom in 2021. It was submitted that, the vacancy position must have been increased which was not published by the respondent Commission in terms of Rule 9(3) of the said 2010 Rules. It was further contended on behalf of the petitioners that had there been the total vacancy position published as in 2021, the petitioners would have a chance for being selected.
The second fold of submission on behalf of the writ petitioners was referring to Annexure P-2 to the writ petition, the final panel of the merit list was published for the successful candidates without any break up of marks and 3 only by mentioning their respective ranks. It was then submitted that, in absence of discloser of such break up of marks of the successful empanelled candidates the unsuccessful candidates did not get a chance and opportunity to adjudge their position in the selection process.
Mr. Prosenjit Mukherjee, learned advocate appearing for the West Bengal Madrasah Service Commission referred to a few paragraphs from the report, which are quoted below:
"7. That the deponent states that all the petitioners could not obtain the minimum cut off marks (75) for entering into the zone of consideration for the post of Physical Education (Pass). The total marks obtained by the petitioners (written, academic qualification and personality test) are as follows:
Name of the Total Marks
Sl. Petitioners (Written,
No. academic
qualification and
personality test)
1. Abu Raihan 72.975
2. Nakul Chandra Dhar Admit card not
given in Writ
petition
4
3. Debasis Saha 73.25
4. Saimuddin Sk 72.45
5. Susanta Karak 73
6. Bidhan Karak 74.25
7. Ranjit Kumar Sarkar 73.95
8. Pankaj Biswas 73.5
9. Pintu Saha 73.75
8. That the deponent further states that there is no scope of publication of break up of marks neither after the result of written examination nor after the completion result of personality test neither in terms of Rule 18 nor in terms of Rule 22 and Rule 23 of Rules of 2010. The Hon'ble Division Bench considering the mandamus appeal bearing MAT No. 1018 of 2019 rejected the prayer for publication of break up of marks till the preparation panel.
13. That the deponent states the Mehebub Hossain having below 45% marks in the Higher Secondary examination was allowed to participate in the selection process only on the ground that the candidate Mehebub Hossain submitted participation certificate in different Games & Sports at the time of the application and due to such 5 Games & Sports Certificate the relaxation has been given to him as an eligible candidate. The Petitioners have alleged regarding the selection of Mehebub Hossain who got rank 45 but the said Mehebub Hossain is not a party as the private respondent in the instant writ petition."
Mr. Mukherjee, learned advocate then submitted that, the advertisement for the selection process inviting the aspirant candidates to participate in the selection process was published in due compliance with Rule 9(1) of the said 2010 Rules. He also submitted that the necessary vacancy list in terms of Rule 9(3) was also published at page 21 to the said report. He submitted that, in any event the writ petitioners did not come within the consideration zone as would be evident from the above quotation and the qualifying marks and the last cut off marks for being considered in the considered zone was 75 whereas each of the writ petitioners secured less than that. He then submitted that the writ petition is totally devoid of merit and is liable to be dismissed.
Rules 9(1) and 9(3) of the said 2010 Rules are quoted below:
6
"9. Vacancy(ies). - (1) Report of vacancies.- The district Inspectors of Schools (SE) or any other authorized officer as my be entrusted by the Commission in writing, shall prepare a report regarding the number of vacancies in approved/sanctioned posts which exist(s) or is/are expected to occur within the 1st day of January next ensuing, and shall furnish the same to the Commission at least 15 days before the date of publication of the advertisement.
3. Updating of vacancies. - The Commission shall finally update the number of vacancies occurred and to be occurred within the 1st January next ensuing of the year of advertisement post/subject, medium, category, and gender-wise as well as district-wise, if required, before the publication of the result of written test."
Considering the rival contention of the parties and considering the materials on record it appears that from a combined and harmonious reading and construction of Rules 9(1) and 9(3) of the said 2010 Rules the vacancy position should be published taking the cut off date being 7 January 1st of the next ensuing year. In the instant case, the selection process was notified in the year 2013 and as such the cut off date for issuing the vacancy list should have been January 1st, 2014 and not beyond that. Therefore, the Commission had not committed any error on its part in publishing the vacancy position taking the cut off date as January 1st, 2014.
From the report filed by the Commission, as quoted above, it further appears to this court that, in any event none of the petitioners had secured the total cut off marks 75 or above and as such they could not come within the consideration zone. Since, the aspirant candidates could not come within the consideration zone they could not have claimed any right in their favour in respect of the said selection process.
For those foregoing discussions and reasons this writ petition is wholly devoid on merits.
Resultantly, this writ petition WPA 10086 of 2022 stands dismissed without any order as to costs.
8Urgent certified photo copy of this order, if applied for, be given to learned advocates for the parties upon compliance of all requisite formalities.
( Aniruddha Roy,J. )