Calcutta High Court (Appellete Side)
A Challenge To The vs Unknown on 22 June, 2020
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Protik Prakash Banerjee
W.P. No. 26115 (W) of 2016
Sujata Chakraborty and Others
--v--
State of West Bengal and Others
For the Petitioners : Mr. Haradhan Banerjee, Sr. Adv.,
Ms. Manideepa (Paul) Roy, Adv.
For the State : Mr. Narayan Bhattacharjee, Adv.,
Mr. Prabir Kr. Roy, Adv.
For the West Bengal : Mr. Pulak Ranjan Mondal, Adv.,
College Service Mrs. Bandana Das, Adv.,
Commission Mr. Subhrangshu Panda, Adv.
Heard on : July 1, 2019, July 25, 2019, August 2,
2019 and August 9, 2019.
Judgment Reserved on : August 9, 2019.
Judgment Delivered on : June 22, 2020.
PROTIK PRAKASH BANERJEE, J.:
1. This is a writ petition which has changed its colour during its pendency, like the proverbial chameleon. Initially it was a writ petition seeking a consideration of the case of the petitioners regarding selection afresh in the post of Assistant Professor (Sanskrit) by the West Bengal College Service Commission by calling for written examination and further for not giving effect to the selection process advertised by the advertisement No. 1/2015. It was naturally at the instance of unsuccessful candidates.
2. However, as I have indicated above the writ petition changed its hue after an application for amendment was taken up after completion of affidavits in the original writ petition. By such amendment a challenge to the vires of regulations No. 1 and 6 of the West Bengal College Service Commission (Manner of Selection of Persons for Appointment to the posts of Assistant Professors, Principals and Librarians and Re-recommendation of Assistant Professor) Regulations, 2012 (hereinafter referred to as "Regulations of 2012") were challenged. Consequential reliefs were prayed for by amendment. According to the petitioners these regulations are the repository of arbitrariness which has rendered them ultra vires the Constitution of India more particularly Articles 14 and 16 of the Constitution of the India.
3. When the matter was first mentioned before this Court for hearing the learned Senior Advocate appearing for the petitioners submitted that the affidavits were completed even in respect of the amended petition. This is according to the order dated June 14, 2019. However, it appears that the college Service Commission had not filed any opposition and so I granted further leave on July 1, 2019 to the College Service Commission to file its affidavit.
4. Mr. Mondal appearing on behalf of the College Service Commission, at the outset challenged the maintainability of the writ petition for the following reasons:-
a. The writ petition raises questions in respect of a process of selection where the writ petitionersare unsuccessful candidates. .
b. Whether the said questions could be raised by unsuccessful candidate in the process of selection who after full notice and knowledge of the advertisement and the regulations appeared in the interview without being called for a preliminary written test? This is, in fact, a part of the writ petitioners' challenge, that there is no canalization when a written test will be held first and then an interview, or only interview will be held, without any preliminary written test, based on the eligibility criteria as advertised Implied in such submissions, are the catena of cases where it has been held that an unsuccessful candidate, after participating in a process of selection and failing therein, cannot turn around and challenge the process of selection, having waived his right to do so, and being estopped. Tracing these objections to their source, we shall find that they are based on a waiver by the unsuccessful candidate of his right, in respect of those things which he knew or was deemed to have known at the time he participated in the process of selection. If he could show that the part of the selection procedure complained of was not a part of what he knew or should have known at the time when he participated in such process, then of course the question of waiver would not arise.
c. Whether the writ petitioners have joined together separate causes of action without the leave of the Court? This is not permissible since each writ petitioner has a separate legal right and despite there being no common order alleged to have been passed against all of the petitioners, the several causes of action have been joined together without leave of the Court.
d. There are no pleadings that the writ petitioners form a homogeneous class or how they form such a homogenous class which pleading alone, would have allowed all the writ petitioners to maintain the writ petition as a class action without requiring the leave of the Court.
e. Lastly, he takes the joint that the writ petition is in effect a challenge to a decision of an expert body without alleging mala fides.
5. Mr. Mondal further relates upon the case of Dhananjay Malik and Others--v--State of Uttaranchal and Others [2008(4) SCC 171 paragraphs 7 and 9] and Madras Institute of Development Studies and Another--v--K. Sivasubramaniyan and Others [2016(1) SCC 454 Paragraphs 9, 13, 14, 15 and 16] on the question of the unsuccessful candidate being estopped from challenging the result of the selection on any ground after having participated in the selection process without any demur or objection; he also relies upon Basavaiah (Dr.)--v--Dr. H.L. Ramesh and Others [2010(8) SCC 372 paragraphs 21, 23 and 25] on the point that the selection was made by an expert body and no allegation of mala fides have been made which alone could allow the writ Court to go into the matter and such selection should not lightly be interfered with in the writ jurisdiction.
6. Mr. Haradhan Banerjee learned Senior Advocate appearing for the petitioner has taken several points of which appear to be an answer to at least two of the points taken by the West Bengal College Service Commission. Mr. Banerjee submitted the following as his grounds of challenge to the process of selection order dated 1st July, 2019:-
a) The regulation that is at page 53 of the writ petition violates Article 14 of the Constitution of India by giving too un-
canalized a power in the name of discretion to the Commission. He submits that there are no conditions given when the Commission shall proceed to interview instead of holding a written examination before the interview;
b) That the entire process of selection is arbitrary since in order to make a selection broad based and to get the best candidates it is important to have the widest possible test which cannot be possible by an oral interview;
c) Variable standards have been adopted by the Commission for earmarking in terms of Regulation VII. All the academic records have been provided to be factor but while in 2012 M Phil qualification was being marked, in 2015 M Phil qualification was not being marked and, therefore, these petitioners who have the qualification of M. Phil and Ph.D are suffering;
d) The process of selection through interview (after written test) was highly whimsical since for the purpose of assistant professor (Sanskrit) only one minute or less was given to each of the petitioners in order to favour some candidates for extraneous consideration;
e) Oral interview has not been videographed which is lack of transparency on the part of the respondents.
7. Mr. Banerjee has relied upon the judgment in the case reported in Raj Kumar and Others--v--Shakti Raj and Others [AIR 1997 Supreme Court 2110] to show that there is no question of estoppel operating against their fundamental rights on the basis of which the challenge of vires of regulations 1 and 6 above have been levelled. However, the said judgment is capable of being distinguished because it is in respect of a fact situation where the State took a step after the selection test which the candidates could not have known about when they wrote the tests. I am at one with Mr. Banerjee that there can be no question of waiver of or estoppel against the enforcement of a fundamental right or even the Constitution of India. This is the law laid down since at least Olga Tellis and Others--v--Bombay Municipal Corporation and Others [AIR 1986 SC 180] and reiterated in a Bench decision in Sisters of St. Joseph of Cluny-- v--State of West Bengal and Others [2016 (3) CHN (Cal) 716. Of course, as pointed out by Mr. Mondal, if the facts of the case show that it is inequitable to enforce a fundamental right by including reason of long and/or unexplained delay or for the birth of third party rights, which will be affected if such enforcement is done and estoppel ignored, the Writ Court may choose not to enforce the fundamental right of the writ petitioner [see Amrit Lal Berry--v-- Collector of Central Excise, New Delhi and others reported in 1975(4) SCC 714].
8. Therefore, it seems to me that the answer to the question whether the petitioners are estopped from raising these objections depend upon whether they have made out a good case of the Regulations of 2012 and/or any of them being ultra vires Articles 14 and 16 of the Constitution of India thereby showing that their fundamental rights have been violated. At the same time, whether allowing the said fundamental rights to be enforced would be inequitable or not, would depend upon the fact situation. Let me deal with both these aspects after I have dealt with the objections to maintainability on the basis of misjoinder of causes of action and/or joining several causes of action.
9. While it is true that several individual causes of action have been joined, without seeking this court's leave, and while it is also true that there is no necessary pleading that the petitioners form a homogeneous class who are equally affected by the regulations impugned, these are highly technical objections as to matters which amount to curable defects. I mean by that these can be cured by a simple leave of the Court, whereas to deny such leave would mean that the Court will be clearing its docket in the matter of a challenge to the constitutionality of regulations affecting the fundamental rights of the petitioners to livelihood through public employment, on the basis of mere curable technicalities. Since misjoinder of causes of action is not fatal to a proceeding and after all procedure is the hand maiden of justice and if the Writ Court cannot relax procedural rules to decide a substantial question of law then it will be a mockery of the right of judicial review, I am of the opinion that this is a case where the technical defects ought to be cured. Accordingly, Mr. Banerjee's clients are allowed to put in deficit Court fees for the other writ petitioners within two months from the date of uploading of this order. Leave is granted to the petitioners to join their several causes of action in one petition under Article 226 of the Constitution of India, subject to such deficit court fees being put in. If they are not deposited within the time mentioned above, this leave and direction shall stand cancelled, and the writ petition dismissed against all but the first writ petitioner.
10. The selection process entails, according to the regulations, the following:-
"The Secretary of the Commission shall arrange for proper scrutiny of every application against an Advertisement and for interview of persons for selection in terms of Section 7.
Provided that the Commission may, at its discretion call for interview of short-listed applicants after preliminary selection on the basis of qualifications and experience as stated in the Advertisement, or hold a written examination of all eligible applicants and may, thereafter, call for interview a sufficient number of candidates in order of their merit on the results of examinations for final selection."
11. The controversy revolves around the exercise of discretion by the commission whereby it can call for an interview of short listed applicants after preliminary selection on the basis of qualification and experience as stated in the advertisement or hold written examination of all eligible applicants and may call for interview sufficient number of candidates in the merit list. The State which framed these Regulations as a piece of subordinate legislation did not lay down the conditions which would have to be fulfilled for candidates to asked to sit for a written test whereafter interview would be held, and also when, without the written test, applicants could be called for interview straightway. In other words, though a discretion was vested in the Commission, the Regulations did not specify when it would be exercised in a particular way. Regulations in terms did not specify when the commission shall exercise their discretion in a particular manner: when the commission will call short listed candidates for interview and when they will wait until the result of the written test before calling someone for interview have not been specified. The petitioner submitted this is an exercise of un-canalized power which renders the discretion arbitrary to the violation of the Article 14 of the Constitution of India.
12. As far back as in 1966, Hon'ble Supreme Court was pleased, in the judgment in the case of Hari Chand Sarda--v--Mizo District Council and Others reported in AIR 1967 SC 829, to hold that a provision which leaves an unbridled power to an authority cannot in any sense be characterized as reasonable, and in that case, where the authority was granted an arbitrary and un-canalized power to refuse to grant a license or its renewal according to its sweet will, the Regulation was held to be ultra vires Article 19(1)(g) and therefore, void.
13. I must say that Mr. Banerjee appears to be in the right so far as his submissions as to arbitrary and uncanalized discretion are concerned. This certainly is an assertion sufficient to invoke the violation of his clients' fundamental rights under Article 19(1)(g) of the Constitution of India as also the right to be considered fairly in the matter of public employment, which are parts of Articles 16 and 15 read with Article 14 of the Constitution of India. In such view of the matter, the petitioners are held to have made out a case of violation of their fundamental rights, against which there can neither be estoppel nor waiver and hence the objections raised by the Commission that these objections raised by unsuccessful candidates cannot be entertained, are answered accordingly and negated, since there can be no estoppel against or waiver of a fundamental right.
14. Of course, that a good case has been made out for violation of a fundamental right is not the same as saying the fundamental right shall be enforced. It is here that the argument of inequitable conduct comes in. Let us see now how far we can accept the argument that the stand of the writ petitioner is inequitable. Admittedly the petitioners applied for the post of Assistant Professor (Sanskrit) after having full notice and knowledge of the regulation of 2012 including Regulations 1 and 6 thereof and had gladly rushed to the interview on the basis of their qualifications and fulfilment of their eligibility criteria, without waiting for any written test and only when their names did not appear in the merit list did they come up to the Writ Court; then too they did not challenge the constitutionally of the Regulations but sought that the selection process they had themselves rushed to participate in, not be given effect to. It was only after affidavits that they sought to amend the writ petition to incorporate the challenge to the vires of the regulations which alone made their petition maintainable as demonstrated above. Therefore, I have no hesitation in holding that the conduct of the writ petitioners, taken as a whole shows that they were acting inequitably even while approaching a court of equity as such as this one, and such conduct cannot be rewarded with an order of enforcement of their fundamental right, which they knowingly did not invoke. If today the regulations are struck down, then for the interest of a miniscule minority the rights of the majority, (being over 700 people who had participated in the selection process) would be ignored. Therefore, this is a fit case where the Writ Court should chose not to exercise its extraordinary jurisdiction to come to the aid of such writ petitioner.
15. So far as the other points raised are concerned the question of the process of selection being arbitrary, I find that it is essentially a challenge to the oral interview. Mr. Banerjee impugned the oral interview process mainly on the ground that only on a minute or less was given to each of the petitioners to favour some other candidates for extraneous consideration. However, at paragraph 25 of the writ petition the original allegation was of non-application of mind by the members of the interview body and not that the petitioner were given hardly one minute or less for extraneous consideration; thus, the argument made by the learned senior counsel if the writ petitioners is not consistent with the pleadings of his clients and is, therefore, rejected. Mr. Banerjee of course relied upon the judgment in Ajay Hasia--v--Khalid Mujid Sehravardi and others reported in AIR 1981 SC 487 to contend that an oral interview of 2 or 3 minutes was held to be bad.
16. Mr. Mondal, however, points out that in that case despite deprecating the practice of oral interview method as a supplementary test for ascertaining the suitability of the candidates the Hon'ble Supreme Court was pleased to hold that it was not as irrational or irrelevant as would vitiate the entire selection process. Since mala fides have not been alleged the lack of videography cannot be held to be a factor vitiating the selection process to the extent of the entire proceedings being cancelled. I respectfully agree with the ratio of Ajay Hasia (supra) that holding of an oral interview and that it comprised a very short time or the lack of its videography are not so irrational or unreasonable as would require the entire selection process to be cancelled.
17. Finally there remains only the question of whether highly qualified petitioners with Ph.d were arbitrarily ignored in favour of those having lower qualification being M.Phil. I have gone through the advertisement and I find that the entry level qualification for an Assistant Professor is post graduate degree; both M.Phil and Ph.D are post graduate degrees and therefore, for the purpose of considering eligibility as a class, in view of the advertisement,in interviewing them together no wrong has been committed and if a person having M.Phil does a better job impressing the interview board and can teach better than someone with Ph.D, the interest of the students would be subserved better, by recruiting the M.Phil rather than the Ph.D. There is no unreasonableness or scope of interference on this aspect especially since an expert body has considered one person better than another and there is no allegation of mala fides, as has been held in Basavaiah (Dr.)(supra). The better teacher may not have a better degree, but as long as the candidate has the essential entry level qualification, his selection over the more qualified petitioner cannot be faulted.
18. I have held that the selection process gives uncanalized discretion to the Commission. Yet, I have not held the Regulations of 2012 to be ultra vires as a whole and I have not passed any order striking down Regulations 1 and 6 due to the inequitable conduct of the writ petitioners and the belated stage when they challenged the vires. Accordingly, the writ petition is dismissed. There shall be no order as to costs.
19. Before parting with this case I must express my gratitude to the Registry and the staff who have made it possible for electronic dissemination to this judgment because despite the judgment having been prepared long back, due to the pandemic and its consequent fall out, until the technical expertise had been brought to bear upon the system of virtual courts presently obtaining, the judgment could not be delivered.
(PROTIK PRAKASH BANERJEE, J.)