Calcutta High Court (Appellete Side)
Atanu Chakraborty & Ors vs The State Of West Bengal & Ors on 9 June, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A. 3116 of 2013
With
CAN 7190 of 2012
Atanu Chakraborty & Ors.
versus
The State of West Bengal & Ors.
For the Writ Petitioners/ : Mr. Robilal Moitra,
Appellants Mr. Tulsidas Maity,
Mr. Uday Shankar Chattopadhyay.
For the State-Respondents : Mr. Sadhan Roy Chowdhury,
Ms. Reshmi Ghosh.
For the Howrah District : Mr. L.K. Gupta,
Primary School Council Mr. Subir Sanyal,
Mr. Bhaskar Baisya,
Mr. Ratul Biswas.
Judgement On : 09-06-2014.
Jyotirmay Bhattacharya, J. : This mandamus appeal is directed against the judgement and/or order passed
by a Learned Single Judge of this Court on 22nd June, 2012 in W.P.No. 9739(W) of 2012. The relief claimed in the writ
petition was not granted by the Learned Trial Judge.
The writ petition was rejected by the Learned Trial Judge by holding, inter alia, that it was rightly held by the
Government by its order dated 21st June, 2012 that the written test and interview held by the selection authority be
treated as cancelled. The Learned Trial Judge also held that no prejudice will be caused to the writ petitioners as they
were permitted to participate in the fresh selection process which was directed to be completed within a time bound
period. The Learned Trial Judge, while disposing of the writ petition, granted liberty to the writ petitioners to challenge
the said order of the State Government passed on 21st June, 2012 in accordance with law, if they are so advised.
The legality and/or propriety of the said order of the Learned Trial Judge of this Court is under challenge in
this Mandamus Appeal at the instance of the writ petitioners/appellants.
Let us now consider the merit of this appeal in the facts of the instant case.
The writ petitioner/appellants were all aspirants for the post of Assistant Teachers in primary schools under
Howrah District Primary School Council. They offered their candidature for participating in the selection process on
the basis of the advertisement published in daily newspaper in the year 2009. They passed the written examination
conducted by the District Primary School Council, Howrah and also appeared before the Selection Committee in the
oral test which was held in the year 2010.
The writ petitioners complained that the panel which had been prepared by the selection authority was not
finally approved by the respondent no.2, viz., the Director of School Education, West Bengal. As such they moved the
said writ petition seeking issuance of a writ of mandamus commanding the respondents, to publish and/or notify the
panel finally and the same be approved by the respondent no.2 viz., the Director of School Education so that the
selected candidates may be appointed as primary teacher in different primary schools within the district of Howrah as
against the sanctioned and/or approved vacancies as indicated in annexure 'P5' to the writ petition. A writ in the nature
of certiorari for transmission of the entire records relating to the said selection process to this Court, was also prayed
for.
In course of hearing of the said writ petition, the decision of the State Government for cancelling the
recruitment examinations conducted by different Primary School Councils including Howrah District Primary School
Council was placed by the learned counsel appearing for the State-respondents before the Learned Trial Judge. The
Learned Trial Judge considered the said report and ultimately held in the impugned order that the State Government
was justified in cancelling the recruitment examination conducted by the District Primary School Council, Howrah. In
fact the said writ petition was dismissed by the Learned Trial Judge by approving the said decision taken by the
Principal Secretary to the Government of West Bengal on 21st June, 2012.
Mr. Moitra, Learned Advocate appearing for the appellants submits that since the said decision for
cancellation of the recruitment examinations, taken by the State Government on 21st June, 2012 was produced before
the Learned Single Judge in course of hearing of the writ petition, his clients did not get sufficient opportunity either to
controvert or to challenge the said decision of the Government effectively before the learned Trial Judge.
Be that as it may, it may be mentioned herein that while disposing of the said writ petition, His Lordship
granted liberty to the writ petitioners to challenge the said decision of the Government in accordance with law, if so
advised.
Mr. Moitra however submits that since the legality and/or correctness of the said decision of the State
Government was approved by the Learned Single Judge of this Court in the impugned order, the appellants/petitioners
were advised to challenge the impugned order by filing an appeal. According to Mr. Moitra, since the said decision of
the Government was approved by the Trial Court, there was hardly any scope for challenging the said decision of the
Government by filing a writ petition before the Writ Court. Mr. Moitra, thus contends that in exercise of the liberty
granted to his clients by the Learned Single Judge, the instant appeal has been filed by his clients for challenging the
legality of the decision of the State Government.
Though we find some substance in such contention of Mr. Moitra, but we feel that until and unless the writ
petition is amended and the legality of the said decision of the Government taken on 21st June, 2012 is challenged
comprehensively and the reliefs are not suitably moulded in the changed scenario, the petitioners may not be given the
reliefs which they presently claim in this appeal.
Let us now consider the merit of the present appeal in the light of the submissions made by the learned counsel
of the respective parties.
Selection procedure is dealt with in Rule 9 of the Primary Teachers Recruitment Rules, 2001. Presently, we
are concerned with Rule 9(8), Rule 9(9) and Rule 9(10) of the said Rules as challenge with regard to the recruitment
process primarily centers round the preparation of the panel and/or approval thereof by the concerned authorities and
this chapter is dealt with in Rule 9(8) Rule 9((9) and Rule 9 (10) of the said Rules.
Rule 9 (8) provides that after the process as laid down in Rule 9 sub-rule (7) i.e., holding of written test and
oral test are completed, the Selection Committee is required at first to prepare a panel of candidates under General
Category only with all the General, Scheduled Caste, Scheduled Tribe and Other Backward Classes candidates and
shall be arranged serially according to their merit. This is required as the number of Scheduled Caste, Scheduled Tribe
and Other Backward Class candidates qualifying on merit for appointment to any unreserved vacancy in a service or
post in any establishment to be filled up by direct recruitment shall not be deducted from the quota reserved in service
or post for such candidates.
It is also provided therein that thereafter the Selection Committee shall prepare separate panels for Scheduled
Caste, Scheduled Tribe and Other Backward Classes candidates in the respective category as per statutory reservation
rules, from amongst the remaining candidates of such categories.
It is further provided therein that for the candidates belonging to Exempted Category, Ex-Servicemen and
Physically Handicapped (PH) Category, a separate panel shall be prepared for vacancies reserved for the respective
categories and additional panel of 5% of General, Scheduled Castes, Scheduled Tribes, Other Backward Classes,
Exempted Category, Ex-Servicemen and Physically Handicapped candidates shall be prepared in the same manner as
referred to above in Rule 9, sub-rule (7).
It is also provided therein that the additional panel for General category shall not include candidates from
Scheduled Caste, Scheduled Tribe, Other Backward Classes category.
We are not presently concerned with the rest of the provisions of the said sub-Rule as presently there is no
challenge with regard to violation of the remaining part of the said sub-Rule in the present appeal. As such the
significance of rest part of the said Rule is not discussed herein.
Rule 9 (9) of the said Recruitment Rules provides that after preparation of panel as per Rule 9 (8) of the said
Recruitment Rules, all the panels so prepared shall be placed in the meeting of the Council for passing and the total
number of eligible candidates included in the panel shall be the same as the number of vacancies plus 5% of such
existing vacancies.
Rule 10 of the said Recruitment Rules deals with approval of the panel. It provides that the panel, after being
passed in the meeting of the Council, shall be sent in triplicate to the Director with all necessary papers for approval.
On receipt of such panel passed by the Council, the Director is required to satisfy himself that the rules and the
procedures in this respect have been followed and thereafter may approve the panel. Such approval, if made, shall be
communicated to the Council immediately, provided that if in the opinion of the Director, there are defects and/or
mistakes in the panel in observing the rules and the procedure, he shall point out the defects and/or mistakes in the
passed panel and ask the Council to rectify the defects and/or mistakes and to submit the revised panel to him for his
approval.
These are the stages which panel is required to be passed through for approval of the panel by the Director.
Elaborate submissions are made by the learned counsel appearing for the appellants with regard to impugned
decision taken by the State Government for cancellation of the recruitment tests. He points out that such decision was
taken by the Government on the basis of the report submitted by the investigating team constituted by the Government
for investigating into various complaints regarding preparation of the panel. He thus, invites us to consider the report
of the investigating team and to decide as to whether the State Government was justified in cancelling the recruitment
test on the basis of such a report of the investigating team. By referring to the said report, he contends that in course of
holding investigation into the irregularities alleged to have been committed in the process of preparation of the panel,
some minor irregularities in the process of preparation of panel were detected by the investigating team. By referring to
the said report of the Investigating Team, it is submitted by Mr. Moitra that the irregularities which were detected by
the Investigating Team were of such nature which could have been rectified by the Selection Authority. He further
submitts that since the possibility of preparation of revised panel after rectification of the defects in it, as suggested by
the Director, was not ruled out by the investigating team, the Principal Secretary to the Government of West Bengal
was not justified either in cancelling the entire recruitment examination conducted by the District Primary School
Council, Howrah or in issuing direction for holding fresh written recruitment examination de novo.
Several correspondences made between the Director of School Education and the Chairman of the concerned
District Primary School Council were brought to our notice by Mr. Moitra to support his contention that since the
Director of School Education who was the ultimate approving authority was of the view that the defect in the panel
could be rectified and direction having been given to the District Primary School Council, Howrah for preparation of
such revised panel after rectifying the defects in it as per the findings of the investigating team and for submission of
the same with all relevant authenticated testimonials of the empanelled candidates to the Director for re-checking and
for approval of the panel, the Chairman alone ought not to have suggested for cancellation of the panel and thus the
State Government, according to him, was also not justified in cancelling the entire recruitment examination on the
basis of the complaint of the Chairman of the District Primary School Council, Howrah alone which ultimately became
the sheet anchor of the Government to support its impugned decision.
It is contended by Mr. Motira that under the extant Recruitment Rules, preparation of the panel is required to
be made by the Selection Committee and the same is required to be passed by the council and as such Chairman alone
cannot take any decision in this regard.
He thus submits that since no such decision for cancellation of panel was ever taken either by the Council or
by the Director, the State Government ought to have ignored the complain of the Chairman of the Howrah District
Primary School Council who had no authority to take any independent decision on his own. Thus he ultimately invited
us to set aside the Government's decision for cancellation of the recruitment examinations inasmuch as such decision
was taken by this Government on the basis of such recommendation of a non-statutory body.
It is rightly pointed out by Mr. Moitra that under Rule 9 (8) of the said Recruitment Rules, the Selection
Committee is required to prepare the panel and after passing of the panel by the Council, the panel is required to be
considered and approved by the Director.
As such, we find substance in the submission of Mr. Moitra that the Chairman alone cannot take any decision
either for passing any panel or for cancellation of the panel.
Here, of course, we find from the records that the Chairman has not taken any decision either for passing of
the panel or for refusing to pass any panel. The Chairman simply pointed out some irregularities committed in the
process of preparation of the panel and brought those irregularities alleged to have been committed to the notice of the
State Government for taking the ultimate decision in this regard.
Section 100 of the West Bengal Primary Education Act, 1973 deals with the authority of the State Government
to cause enquiry to be made by any person with regard to the Board or a Primary School Council in matters connected
with primary education or any matter with respect to which the sanction, approval, consent or order of the State
Government is required by or under the Act.
Section 107 of the said Act provides that notwithstanding anything contained in Section 106 or elsewhere in
the said Act, the State Government may - (a) issue any notification or order for carrying out any of the purposes of the
Act for which the Government does not consider it necessary to make rules, or (b) issue any notification or order, not
inconsistent with the provisions of the Act, in place of making rules under the Act if that Government considers it
necessary so to do.
By virtue of such power given to the State Government under the said Act, we hold that the State Government
is not incompetent to hold an enquiry into the allegations pointed out by the Chairman of the said Council regarding
commission of the alleged irregularities in the process of preparation of the panel.
Accordingly, we cannot hold that the State Government exceeded its jurisdiction in holding an enquiry for
finding out as to whether the said panel was correctly prepared by the concerned authority or not. We feel that the
State Government should keep constant vigil over the selection process so that the deserving candidates are not
excluded from the selection process by way of manipulation and/or for any extraneous consideration.
The irregularities as pointed out by the Chairman in his letter dated 16.04.2012, addressed to the Director are
of such nature, which in our view, could not have been received lightly by the Government. As such we hold the
Government took a fair decision for investigating into the complaint made by the Chairman regarding preparation of
the panel.
As we have earlier pointed out that after the process as laid down in sub-Rule (7) of Rule 9 of the said
Recruitment Rules i.e. holding of written test and/or oral test are completed, the Selection Committee at first prepares
the panel of the candidates. Such panel is required to be considered and passed by the Council and after such panel is
passed, the Director is required to consider the said panel and it may either approve the said panel after being satisfied
about the correctness or legality of the said panel or may refer it back to the Council for certain rectification and re-
submission thereof for its approval.
Keeping in mind the aforesaid scheme of the Rules, we have considered the materials on record to test the
legality of the impugned decision of the Government.
The materials on record which are placed before us do not demonstrate
that any panel, in fact, as contemplated under sub-Rule (8) of Rule 9 of the said
Recruitment Rules has been prepared by the Selection Committee. From the
correspondences disclosed in the writ petition as well as in the stay application
filed in connection with this appeal, we find a reference regarding preparation of
draft panel. No material has been produced before us to demonstrate that any
panel as contemplated under Rule 9 (8) was prepared by the Selection
Committee and the same was passed by the Council. As a matter of fact,
occasion for placing the panel before the Council for its consideration and/or its
passing has not matured as no final panel as contemplated under Rule 9(8) was
prepared by the selection committee till date.
As such, we cannot hold that the draft panel which was so prepared, could
have been placed before the Director for his further consideration.
This is one side of the present dispute which clearly demonstrates that
recruitment tests were cancelled at a point of time when no final panel was
prepared by the Selection Committee. Let us now consider the other side of the
dispute regarding the justification of cancellation of the selection tests by the
Government.
when the State Government after holding an investigation through an investigating team and after considering
the report submitted by such investigating team, found that the draft and/or additional panel were not prepared
correctly the Principal Secretary to the Government of West Bengal, in our view, did not commit any illegality in
cancelling the draft panel and/or by directing a fresh selection to be conducted de novo as we find that the magnitude
of such irregularities in the preparation of panel as pointed in the report of investigating team, was so high, where
possibility of excluding the deserving candidates from being selected for such appointment cannot be ruled out
altogether.
To find out the correctness and/or justification of such conclusion which was drawn by the Principal Secretary
to the Government of West Bengal, we have also considered the report submitted by the Investigating Team appearing
at page 42 of the affidavit-in-opposition filed by the Howrah District Primary School Council wherefrom we find that
the Council even failed to supply 266 answer scripts as well as 16 O.M.R sheets for re-evaluation of their performance.
It was also mentioned in the report that after re-evaluation of the answer scripts and O.M.R sheets the numbers
obtained by the candidates were changed and as a result, their respective positions in the draft panel were also radically
changed. Number of candidates whose position would be lowered in the draft panel after re-evaluation was 1127. It
was thus, apprehended that many of the deserving candidates might have been ousted from the draft panel. Several
other irregularities were pointed out by the Investigating Team in the said report.
Transparency should be maintained in the field of public employment. Flawless recruitment process should
be maintained so that not a single deserving candidate is singled out and non-deserving candidate gets berth due to
favoritism of the employer and/or those who are connected with the selection process. However, where the number of
participating candidates are numerous, some kind of unintentional mistakes of the authority concerned who are
connected with recruitment process, can be ignored when such irregularities in the process do not affect the selection
process at large. But here, in the present case, we, after considering the report of the investigating team, cannot came
to the conclusion that the magnitude of irregularities committed in the selection process is not so high where such
irregularities can be condoned. Even the answer scripts of some of the candidates are untraceable. Who knows as to
whether many of them might have been ultimately successful or not. They cannot be singled out from the selection
process. Again, separate test cannot be held for them as by holding a separate test for them, uniformity in the selection
process cannot be maintained.
In addition thereto, it is pointed out by Mr. Gupta, learned senior counsel appearing for the Council that even
the ratio 1:5 which is mentioned in Rule 9(4) of the said Recruitment Rules for the purpose of inviting the candidates
for appearing in the oral test, has not been maintained in the present case. He points out that altogether 14962
candidates were successful in the written test and there were 1826 vacancies for which the selection process was
initiated. By referring to Rule 9(4) of the said Recruitment Rules, Mr. Gupta points out that by maintaining the ratio as
mentioned in the said Rule, 9130 candidates were required to be called in the interview but only 8500 candidates were
called in the interview. According to him for non-observance of the mandatory provision of Rule 9 (4) of the said
Recruitment Rules, the selection process was also vitiated.
We find substance in such contention of Mr. Gupta. We thus, hold that the State Government did not commit
any illegality in cancelling the recruitment examination for the reasons as mentioned in the order dated 21st June, 2012
and also in the light of the report of the Investigating Team as mentioned above.
As such, we do not find any reason to interfere with the impugned order. The impugned order thus stands
affirmed. Interim order, if there be any, stands vacated.
The Council is thus, directed to complete the entire selection process in terms of the order passed by the
Principal Secretary to the Government of West Bengal on 21st June, 2012 as early as possible and positively within a
period of three months from the date of communication of this order, so that the selection process can be completed
without any further delay.
The appeal thus stands dismissed.
Later
After delivery of this judgement, Mr. Moitra, learned senior counsel appearing for the writ
petitioners/appellants prays for stay of operation of the order which was opposed by Mr. Gupta, learned senior counsel
appearing for the Council.
However, we grant stay of operation of the order for a period of three weeks from date for enabling the
appellants to decide the next course of action.
Re: CAN 7190 of 2012 (Stay)
In view of dismissal of the appeal in the manner as aforesaid, no further order need be passed on the stay
application. The stay application being CAN 7190 of 2012 is thus deemed to be disposed of.
Urgent photostat certified copy of this order, if applied for, be furnished to
the applicant as early as possible.
(JYOTIRMAY BHATTACHARYA, J.)
Ishan Chandra Das, J. :
I agree.
( ISHAN CHANDRA DAS, J. )