Calcutta High Court (Appellete Side)
Md Samim Akhtar Khan vs State Of West Bengal And Ors on 9 November, 2022
Author: Aniruddha Roy
Bench: Aniruddha Roy
11 to 20 09.11.2022
Sc Ct. no.22
WPA 9245 OF 2022
with
IA NO: CAN 1 OF 2022
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Md Samim Akhtar Khan Vs State of West Bengal And Ors.
with WPA 20291 OF 2022
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Shibu Kundu Vs State of West Bengal And Ors.
with WPA 10076 OF 2022 with IA NO: CAN 1 OF 2022
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Jiarul Hoque Vs State of West Bengal And Ors.
With WPA 10080 OF 2022 with IA NO: CAN 1 OF 2022
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Rahul Vs State of West Bengal And Ors.
with WPA 18582 OF 2022
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Ranajit Kr. Sarkar Vs State of West Bengal And Ors.
With WPA 18583 OF 2022
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Nitish Kumar Das Vs State of West Bengal And Ors.
With WPA 18592 OF 2022
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Debasis Saha Vs State of West Bengal And Ors.
2With WPA 18594 OF 2022
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Debasish Mandal Vs State of West Bengal And Ors.
With WPA 10075 OF 2022 with IA NO: CAN 1 OF 2022 Saimuddin Sk Vs State of West Bengal And Ors.
With WPA 19418 OF 2022
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Sk Abbas Ali And Anr Vs State Of West Bengal And Ors.
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Mr. Firdous Samim Ms. Gopa Biswas Mr. Ali Ahsan Alamgir Ms. Mousumi Hazra..
.... For the Petitioners in WPA 9245 of 2022, WPA 10076 of 2022, WPA 10080 of 2022, WPA 18592 of 2022, WPA 10075 of 2022, WPA 19418 of 2022.
Mr. Prosenjit Mukherjee Ms. Madhurima Sarkar.
.... For the Madrasah Service Commission Mr. Bhaskar Prasad Vaisya Mr. Arindam Chattopadhyay.
.... For the State in WPA 9245 of 2022 Ms. Chaitali Bhattacharya Mr. Subhendu Roy Choudhury.
.... For the State in WPA 20291 of 2022 Mr. Biswabrata Basu Mallick Mr. Sayan Ganguly.
.... For the State in WPA 10076 of 2022 3 Mr. Sirsanya Bandyopadhyay Ms. Tapati Samanta.
.... For the State in WPA 10080 of 2022 Mr. Sajal Kr. Pandit .... For the State in WPA 18583 of 2022 Mr. Md. Galib Mr. Sutanu Chakrabarti.
.... For the State in WPA 18592 of 2022 Mr. Biswabrata Basu Mallick Mr. Sanjib Das.
.... For the State in WPA 18594 of 2022 Mr. Biswabrata Basu Mallick Mr. Sayan Ganguly.
.... For the State in WPA 10075 of 2022 Mr. Bhaskar Prasad Vaisya Mr. Ranjan Saha.
.... For the State in WPA 19418 of 2022 Re : WPA 19418 OF 2022
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Sk Abbas Ali And Anr Vs State Of West Bengal And Ors.
Since identical issues are involved in all the above writ petitions, the order to be passed in this writ petition shall govern all the writ petitions.
The challenge of the writ petitioner pertains to wrong answer keys in the subject of Physical Education in respect of the Question Nos. 2, 3, 21, 24, 26, 33, 35, 40 and 49 as mentioned in paragraph 14 of this writ petition. The Question Series Code is "B".
The petitioners are the participants in the Sixth State Level Selection Test (AT) (Physical Education) held in 2013. Pursuant to the earlier orders dated 4 September 8, 2022 and September 20, 2022, the respondent nos. 2 and 3 file its affidavit report, affirmed on November 3, 2022 containing the opinion of two experts on the relevant subject.
In WPA 19929 of 2022 an order was passed by this Court on November 7, 2022 wherefrom it would appear that the original reports of the experts contained in the sealed envelops were directed to be kept with the Registrar General of this Court in her safe custody as the names of the experts should not be divulged at this stage, as submitted by Mr. Mukherjee, learned counsel for the Madrasah Service Commission. Accordingly the reports are kept likewise.
The series of writ petitions are there. All such writ petitions involve ultimately the answer keys to the said questions mentioned above. In some of such writ petitions may be a few of them and in some of such writ petitions may whole of them.
Today the series of writ petitions except the said WPA 19921 of 2022 are in the list and are taken up for hearing. On instruction, Mr. Mukherjee, learned counsel for the West Bengal Madrasah Commission submitted that the experts' opinion of the said two experts, whose reports are kept in the safe custody of the Registrar General, were part of the team of the selection process as they were the members of the team of the paper 5 setters of the relevant subject, i.e. Physical Education for the self-same selection process/examination.
Mr. Mukherjee submits that these two examiners being experts on the subject, their opinion was obtained in terms of the directions of this Curt. Such opinion of such two experts cannot be challenged or questioned any further by the writ petitioners. The writ petition may be proceeded on the basis of the said opinion of the said two experts. In support Mr. Mukherjee had relied upon the judgments of the Hon'ble Supreme Court In the matter of : Pramod Kumar Srivastava -vs.- Chairman, Bihar Public Service Commission, Patna and Others reported at (2004)6 SCC 714 and In the matter of :
Ran Vijay Singh -vs.- State of U.P. reported at (2018)2 SCC 357. He submitted that if a statute, rule or regulation governing the examination permits revaluation of an answer-sheet or scrutiny of an answer-sheet as a matter of right, then only the authority conducting the re- examination may permit it. The Court should presume the correctness of the key-answers and proceed on that assumption. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
Mr. Ali Ahsan Alamgir, learned advocate and Mr. Firdous Samim, learned advocate appearing for the writ petitioners submit that the opinion given by the two experts being part of the team of the paper setters on 6 the self-same subject for the self-same examination cannot be taken into account and the same shall have to be sent for an opinion of an independent expert on the subject not at all connected with the self-same examination process, at the choice of this Court.
Considering the rival submissions made on behalf of the parties and upon perusal of materials on record, it appears to this Court that, the two experts, the original reports of whom are kept in sealed envelops and lying with the safe custody of the Registrar General, being part of the team of the paper setters of the relevant examination process for the self-same subject and for the self-same examination, cannot be taken into cognizance by this Court on the elementary principle of law that a person cannot be a judge of his own cause.
In the matter of Ran Vijay Singh (supra) the learned Judge hearing the writ petition had personally examined the disputed answers relating to the subject questions with his personal knowledge and came to a conclusion. This is not a fact in the case in hand.
In the matter of Promod Kumar Srivastava (supra) it was a simpliciter case of revaluation of the answer-book, which is also not a case in the facts of the case in hand.
On these two scores, the judgments relied upon by Mr. Mukherjee are clearly distinguishable and the ratio 7 decided by the Hon'ble Supreme Court in those two judgments were on a different sets of facts.
In the facts of the instant case, the Madrasah Service Commission accepted the previous direction of this Court directing to furnish an expert's opinion in respect of the disputed answers of the questions. Such directions were never challenged and on the contrary were accepted and duly complied with and acted upon by the West Bengal Madrasah Service Commission.
Inasmuch as, this is not a case for revaluation or scrutiny of any answer-sheet. The challenges thrown by the writ petitioners are more fundamental in nature in these writ petitions, challenging the correctness of the answer-keys in respect of the questions indicated above.
In view of the foregoing reasons and discussions, this Court is of the firm view that, the answer-keys in respect of the questions indicated above must receive attention of an independent expert on the subject and such an expert must give his/her valued opinion in respect of the correctness of the answer-keys in respect of the questions indicated above. Such opinion of the independent expert shall be accompanied by with his/her affidavit.
Accordingly the Head of the Department of Physical Education of the North Bengal University is requested to give such expert opinion in the form of an affidavit as directed above. Such affidavit shall be filed on 8 or before November 23, 2022 upon a copy being furnished to the West Bengal Madrasah Service Commission and the writ petitioners in WPA 19418 of 2022. Such writ petitioners then shall furnish copies of the said affidavit to the learned advocates on record for the other writ petitioners mentioned above.
In each of the writ petitions mentioned above, the reports filed by the West Bengal Madrasah Service Commission in compliance with the direction of the Court are taken on record.
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Re: WPA 9245 OF 2022
with
IA NO: CAN 1 OF 2022
-------
Md Samim Akhtar Khan
Vs
State of West Bengal And Ors.
with WPA 10076 OF 2022 with IA NO: CAN 1 OF 2022
-------
Jiarul Hoque Vs State of West Bengal And Ors.
With WPA 10080 OF 2022 with IA NO: CAN 1 OF 2022
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Rahul Vs State of West Bengal And Ors.
with WPA 10075 OF 2022 with IA NO: CAN 1 OF 2022 Saimuddin Sk 9 Vs State of West Bengal And Ors.
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The connected amendment applications appearing in the list are taken up for hearing. The amendment applications are filed by the writ petitioners.
The respondents pray for time to file their respective affidavits in the said applications.
In view of the above, the respondents shall file their respective affidavits-in-opposition to each of such amendment application on or before November 20, 2022; affidavit-in-reply, if any, shall be filed by November 24, 2022.
ACO A photocopy of this order shall be placed in the records of each of these writ petitions.
ACO The writ petitions shall appear along with the amendment applications for further consideration on November 28, 2022 under the heading "For Orders".
(Aniruddha Roy, J.)