Calcutta High Court (Appellete Side)
Chanchal Kumar Patra vs The State Of West Bengal & Ors on 20 September, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : DIPANKAR DATTA, J.
W.P. No. 19779 (W) of 2014 Chanchal Kumar Patra Vs. The State of West Bengal & ors.
with W.P. No.14553 (W) of 2014 Ranjit Karmakar Vs. The State of West Bengal & ors.
For the petitioner : Mr. Golam Mastafa, Advocate,
in W.P. 19779 (W) of 2014 Mr. S. N. Sinha Ray, Advocate.
For the petitioner : None
in W.P. 14553 (W) of 2014
For the respondents 1-3 : Mr. Amal Kr. Sen, Advocate,
in W.P. 19779(W) of 2014 Mr. Mirza Kamaruddin, Advocate.
For the respondents 5 & 9 : Mr. B. Bhattacharya, Advocate,
in W.P. 19779(W) of 2014 Mr. Sanjib Seth, Advocate
and the respondent 4 Mr. Atis Kumar Biswas, Advocate.
in W.P. 14553(W) of 2014
For the respondent 7 : Mr. Debjit Mukherjee, Advocate,
in W.P. 19779(W) of 2014 and the Mr. Dipanwita Ganguly, Advocate.
respondent 5 in W.P. 14553(W) of
2014
Hearing concluded on : June 24, 2016
Judgment on : September 20, 2016
1. A process of selection for appointment on the post of clerk in Jujersha P.N. Manna Institution (hereafter the school) culminated in appointment of Shri Pravash Naskar (hereafter Pravash) on such post. Such selection and appointment have been challenged in these two writ petitions by Chanchal Kumar Patra (hereafter Chanchal) and Ranjit Karmakar (hereafter Ranjit). Chanchal and Ranjit were also aspirants for the said post of clerk but ultimately did not figure in the panel of three candidates that was prepared by the selection committee.
2. This round of litigation initiated by Chanchal and Ranjit has been preceded by previous rounds of litigation before the writ court as well as the writ appeal court. Reference to all such proceedings is not considered necessary for the purpose of decision on these two writ petitions. Suffice it to note that although the prior permission to fill up the post of clerk in the school was issued in the year 2000, the selection process under challenge has flowed from an advertisement dated April 3, 2014. The basic ground on which the selection of Pravash has been challenged is that of a perceived bias of the members of the selection committee that has rendered the selection process vitiated.
3. It is noted that the panel that was prepared by the selection committee with Pravash figuring at the top position was forwarded to the concerned district inspector of schools, who approved the same on July 11, 2014. Based on such approval, Pravash was offered appointment on July 14, 2014 and he immediately joined on that day.
4. By an interim order dated July 18, 2014 passed on Chanchal's writ petition, a coordinate Bench had restrained the district inspector of schools from approving the appointment of Pravash till July 31, 2014 or until further orders, whichever is earlier. Such interim order has since been continued till the disposal of the writ petition by a subsequent order. The consequence of such order has been that despite rendering service, Pravash has not received any remuneration in lieu thereof.
5. It has been alleged by Chanchal in his writ petition that on the date interview was conducted in connection with the selection process i.e. May 14, 2014, Pravash being a member of Panchla Panchayat Samity was also the Shiksha Karmadhyakshya of such panchayat samity and that two of the selectors comprised in the five-member selection committee were none other than Abdul Jalil, Sabhapati of the panchayat samity (hereafter Abdul) and Binoy Koley, nominee of the panchayat samity in the managing committee of the school (hereafter Binoy), and who was functioning as its secretary.
6. Chanchal has expressed real danger of bias by reason of the fact that Pravash, Abdul and Binoy being part of the same panchayat samity acted with a common evil design of securing an appointment for Pravash. Paragraph 12 of the writ petition contains the relevant allegation and for better appreciation is set out below:
"12. The petitioner has learnt that one Pravas Naskar son of Bishnupada Naskar of village and Post Office Beldubi, P.S. Panchla District Howrah, Pin-711 322 has been placed first in the panel. Such placement of Pravas Naskar in the first position is wholly illegal in as much as Pravas Naskar is a member of Panchla Panchayat Samiti and Shiksha Karmadhyaka of the Panchayat Samiti. In the selection committee Abdul Jalil being the Sabhapati of the Panchayat Samiti was the member, Binoy Koley a Panchayat Samiti Nominee of the school is the Secretary of the Managing Committee of the school. So Abdul Jalil, Binoy Koley and Pravas Naskar are in league with each other and as such the placing of Pravas Naskar in the first position of the panel is wholly illegal."
7. The managing committee of the school and Binoy, impleaded as respondents 5 and 9 respectively in the writ petition of Chanchal, jointly filed an affidavit-in- opposition sworn by Binoy. Paragraph 12 of the writ petition of Chanchal has been dealt with by the respondents 5 and 9 in their affidavit-in-opposition. It is reproduced below:
"29. In response to the statement made in paragraph No. 12 I deny and dispute all statements made therein save and except which are matters of record and which are specifically admitted by me and I say that after publication of result of the interview everyone became aware of the position of the panel and it was revealed that the respondent No. 7 has become first eligible and empanel candidate for the post in question and after receiving such information the petitioner intentionally and purposefully raised allegation that appointment of Pravash Naskarw (sic Naskar) on the plea that Pravash Naskar is the Sikhakormadokho to the concerned panchayat samity though there is no bar or predicament to the effect that all Sikhakormadokho of the panchayat samity can not be an eligible candidate for any post of clerk in any school, where that Sobhapati of the Panchayat Samity is a member of selection committee and Panchayat Somity nominee is the secretary of the managing committee. If further say that taking advantage of the consequences the petitioner is raising some baseless allegations without any piece of evidence and that to even after publication of the result of the interview in which the petitioner took part as a contesting candidate accepting all this aforementioned situation without raising any prior objection to that effect. However, it is pertinent to point out herein that the petitioner was raising allegation regarding the nepotism and favoritism and transaction of money prior to the interview naming some other candidates and immediately after publication of result he turned towards the respondent No. 7 with all his allegation only because he has become unsuccessful."
8. Paragraph 29 of the affidavit-in-opposition has been dealt with by Chanchal in paragraph 11 of his affidavit-in-reply reading as under:
"11. That as regards statements and allegations made in paragraph 29 of the said opposition I repeat and reiterate the statements and allegations made in paragraph 12 of the writ petition and any statement and allegations made contrary thereto and/or inconsistent therewith are denied by me.
I deny that the petitioner intentionally and purposefully raised allegations. I deny that there is no bar or predicament that a sikshakarmadhakya of a Panchayat Samiti cannot be an eligible candidate for the post of clerk. But the question is not of bar, but of propriety and fairness in a selection process.
From the chain of events the collusion and favouritism are apparent.
Shri Benoy Koley being the Trinomul Congress candidate and nominee of Panchala Panchayat Samiti was selected as Secretary of the Managing Committee of the school. Sk. Abdul Jalil as a Trinomul congress candidate became the Sabhapati of Panchla Panchayat Samiti and was a member of the selection committee. Probash Naskar as a T.M.C. candidate became the member of Panchla Panchayat Samiti and Siksha Karmadhakhya and participated in the selection of clerk in the school and he was selected. Naturally the collusion, nepotism and favouritism amongst the trio is apparent.
After the selection was over the petitioner learnt of the chain of events and nepotism and favouritism.
That before interview or at the time of interview petitioner did not know about such leogue (sic league) of the trio and as such there was no scope of raising objection. After the interview was over, later on the petitioner learnt about the conspiracy amongst the trio and raised objection.
I deny that I accepted the situation. When after the interview was over I learnt of the illegality in the selection of respondent no. 7 naturally I raised objection.
Save as aforesaid as save what are matters of record I deny all the allegations and statements made in paragraphs under reply.
The petitioner craves leave of the Hon'ble Court to produce, refer and rely a letter dated 3.2.2012 of Susil Adhikary and Gulsan Mallick whereby and whereunder T.M.C. party issued whip for election of Sri Benoy Koley as Secretary of Jujersa P.N. Manna Institution if necessary, at the time of hearing of the case which the petitioner recently got possession from the colleagues of Sri B. Koley."
9. Abdul has filed a separate affidavit-in-opposition. Paragraph 12 of the writ petition of Chanchal has been dealt with by him in paragraph 13 reading as follows:
"13. In response to the statement made in paragraph No. 12 I deny and dispute all statements made therein save and except which are maters of records and which are specifically admitted by me and I say that after publication of result of the interview everyone became aware of the position of the Panel and it was revealed that the respondent No. 7 has become first eligible and empanel candidate for the post in question and after receiving such information the petitioner intentionally and purposefully raised allegation that appointment of Probash Naskar is wholly illegal on the plea that Probash Naskar is the Sikhakormadokho to the concerned panchayat samity though there is no bar or predicament to the effect that all Sikhakormadokho of the panchayat samity is not a (sic) eligible candidate for any post of clerk in any school, where that Sobhapati of the Panchayat Samity is a member of selection committee and Panchayat Somity nominee is the secretary of the managing committee. I further say that taking advantage the consequences the petitioner is raising some baseless allegations without any piece of evidence and that to (sic) even after publication of the result of the interview in which the petitioner took part as a contesting candidate accepting all this aforementioned situation without raising any prior objection to that effect. However, it is pertinent to point out herein that the petitioner was raising allegation regarding the nepotism and favoritism and transaction of money prior to the interview naming some other candidates and immediately after publication of result he turned towards the respondent No. 7 with all his allegation only because he has become unsuccessful."
10. Pravash too has filed an affidavit-in-opposition. Paragraph 12 of Chanchal's writ petition is dealt with by him in the following words:
"9. With regard to the statements made in paragraph 12 of the said application this deponent does not admit of the correctness thereof save what are matters of record. This deponent submits that it has not been mentioned, when the petitioner came to learn about the first position of this deponent and all are mere allegation. This deponent categorically submits that this deponent has done his level best and ultimately became first in the panel. The allegations made out in the paragraph under reply are totally cock and bull story. This deponent reserves his right to make appropriate submission at the time of hearing of this application."
11. Bare perusal of the aforesaid extracts would reveal the evasive denials put forward by Binoy. The material allegations that Abdul was the Sabhapati of the panchayat samity and that he (Binoy) was a member of the managing committee of the school in the capacity of panchayat nominee, have not been denied. What would be the result of such evasive denial would be discussed at a later part of this judgment and order.
12. Abdul's affidavit also makes interesting reading. While stressing that there is no bar for an incumbent Siksha Karmadhakshya to apply for the post of clerk and panchayat members being on the selection committee, the point of bias which is at the crux of the controversy has been ignored altogether.
13. Pravash has also not denied his close association with Abdul and Binoy.
14. The document referred to in the last sub-paragraph of paragraph 11 of Chanchal's reply was brought on record by him by filing a supplementary affidavit. It appears therefrom that two individuals, of whom one signed as an "MLA", had issued a whip to the effect that Binoy had been nominated by a political party for the post of secretary of the managing committee of the school and that in the office bearers' elections to be held on February 5, 2012, all party workers were urged to elect Binoy as the secretary.
15. An affidavit-in-opposition on behalf of the respondents 5 and 9 to such supplementary affidavit has been filed, sworn by Binoy. In such affidavit a technical plea has been raised that the signatories of the document have not identified their respective signatures and, therefore, the document has no legal basis.
16. Mr. Biswarup Bhattacharya, learned advocate on behalf of the respondents 5 and 9 and Mr. Debjit Mukherjee, learned advocate appearing for Pravash vehemently argued that merely because of the presence of Abdul and Binoy in the selection committee, the process of selection did not stand vitiated.
17. According to Mr. Bhattacharya, reasonable likelihood of bias was considered as a possible ground for invalidating a selection earlier; however, there has been a significant change in the law regarding bias and in this connection reliance was placed by him on the decision of the Supreme Court reported in (2011) 10 SCC 106 (Lalit Kumar Modi v. Board of Control for Cricket in India). He contended that a mere apprehension of bias cannot be a ground for interference and there must exist "real danger of bias". Such view was expressed following the earlier views expressed by the Constitution Bench of the Supreme Court in its decision reported in (2004) 8 SCC 788 (M.P. Special Police Establishment v. State of M.P.).
18. Written notes of argument have been filed on behalf of the respondents 5 and 9 by Mr. Bhattacharya. There are certain factual assertions in such notes which do not form part of the joint affidavits-in-opposition that have been filed by the respondents 5 and 9 dealing with the writ petition as well as the supplementary affidavit. Since such factual assertions are not on oath, the Bench has considered it inappropriate to consider the same.
19. Mr. Mastafa, learned advocate for Chanchal placed reliance on the decision of the Supreme Court reported in (2016) 1 WBLR (SC) 25 (Tanvi Sarwal v. Central Board of Secondary Education) in support of his argument that as the selectors in this case were nothing but a mindless few who had sought to highjack the process of selection for selfish personal gains along with an unscrupulous beneficiary thereof and consequently the impugned selection stood grossly vitiated, the same is liable to be set aside.
20. Reliance was also placed by Mr. Mastafa on the decisions reported in AIR 2006 SC 258 (State of Orissa v. Mohd. Illiyas), AIR 1999 SC 3558 (Chandra Kishore Jha v. Mahavir Prasad) and 2009 (2) CLJ (Cal) 482 (Alok Kumar Maity v. State of West Bengal).
21. In support of his contention that a selection process is required to be fair, transparent and merit based and that certainty and clarity are vital to the acceptability of a recruitment process, Mr. Masatafa contended that Abdul and Binoy were favourably disposed towards Pravash and partial against all other candidates. Reference was made by him to the marks obtained by the various candidates to buttress the contention that Pravash stole a march in the oral test and this could not have been possible for the other three selectors being also influenced by Abdul and Binoy to select Pravash by any means.
22. Mr. Sen, learned advocate for the State produced the records of selection and contended that the district inspector of schools while approving the panel must be deemed to have applied his mind and acted according to law. However, in his usual fairness, Mr. Sen conceded that in the absence of the point of bias being raised before the district inspector as a ground for invalidating the panel, he may not have adverted attention to such issue.
23. The parties have been heard and the pleadings/counter pleadings perused.
24. This Bench's understanding of the law touching the point of bias based on its reading of the decisions reported in (2013) 16 SCC 116 (Union of India v. Sanjay Jethi), (2012) 4 SCC 653 (N. K. Bajpai v. Union of India), (2010) 13 SCC 427 [Oryx Fisheries (P) Ltd. v. Union of India] and (1987) 4 SCC 611 (Ranjit Thakur v. Union of India), is this.
25. It is axiomatic that when a selection committee, comprising of several members, assembles to select an individual for recruitment on a post, it has the authority to decide on the relative merits/demerits of the aspirants before them. The ultimate decision must be preceded by consideration of the credentials of each candidate, which must be objective and free from bias.
26. Free from bias would connote absence of conscious and unconscious prejudice to any of the aspirants. When there is an allegation of bias in respect of a member of such a board or body constituted for selection, it has to be seen as to whether there is a reasonable ground for believing that a selector was likely to have been biased. In other words, whether there is substantial possibility of bias animating the mind of a member against the aggrieved party. The reasonable apprehension must be based on cogent materials and the question of bias would obviously arise depending on the facts and circumstances of each case. It cannot come into existence by reason of an individual's perception based on a figment of imagination. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression could be formed that the decision is dented and affected by bias.
27. In N. K. Bajpai (supra), the Supreme Court has held in paragraph 48 as follows:
"48. **** Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories i.e. suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action with reference to the facts and circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial chastisement but if it falls in the latter, it would hardly affect the decision, much less adversely."
28. While dealing with a complaint of the present nature, the celebrated observation of Lord Hewart in the decision reported in (1924) 1 K.B. 256 (R. v. Sussex Justices), that "It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".
has also to be borne in mind.
29. Bias means a pre-disposition to decide for or against one party without proper regard to the true merits of the dispute. There have been cases where proceedings have been nullified on application of the test of 'real likelihood' of prejudice. 'Real likelihood' is an apprehension of a reasonable man apprised of the facts and not the suspicion of capricious persons.
30. Although there has been no direct allegation against the other three selectors who comprised the selection committee, it is impossible to assume whether Binoy and Abdul (while acting collectively being on the board of selection), had or had not in any manner influenced the other three selectors in ensuring that Pravash figures at the top pf the panel. The test can never be as to whether a bias has actually affected the decision, but whether a non-selectee would reasonably apprehend that a bias attributable to a member or members of the selection committee might have operated against him in the final decision.
31. Relationship, personal friendship, professional or employment relationship, personal hostility etc. are recognized grounds on which law courts have proceeded to nullify a decision between parties on the ground of real likelihood of bias. That Abdul, Binoy and Pravash owe allegiance to the same political party has not been disputed. That Abdul and Pravash were part of the same panchayat samity, has further not been disputed. It has also not been disputed that Binoy was inducted in the managing committee of the school as a nominee of the panchayat samity, of which Abdul and Pravash were members. Since Chanchal has alleged personal bias, all these factors taken together definitely point towards a real danger of bias operating in favour of Pravash and against Chanchal and the other aspirants for the post.
32. It cannot be gainsaid that 'being biased' is a state of mind. Chanchal in his writ petition sufficiently hinted at the mind-set of Abdul and Binoy ~ that they were favourably disposed towards Pravash because he was their colleague in a particular political party and they acted together to ensure that Pravash gets the job of a clerk, thereby rendering fairness in the selection process for public employment a casualty. Apart from justice not having been seen to be done, and there being a real danger of bias affecting the fairness of the selection process, the versions of Abdul and Binoy in their respective counter affidavits do not at all inspire confidence. Evasive denials are no denials and the allegations levelled against Abdul and Binoy must be deemed to have been accepted by them.
33. The other contention of Mr. Mastafa merits acceptance in a modified form. Mr. Mastafa is right in his contention that there were several candidates who scored more marks than Pravash on the basis of their educational qualifications and that Pravash stole a march over them by obtaining maximum marks in the oral test. It is not within the province of the writ court to assess the relevant merits/demerits of the aspirants, which is a work entrusted to the selectors. The fact that Pravash was awarded 4.6, 4.3, 4.7, 4.8 and 4.6 by the selectors separately out of 5 (five), could either mean that Pravash had acquitted himself creditably in the interview or that Abdul and Binoy might have influenced the other selectors in awarding high marks in his favour so that he could steal a march over the other aspirants. In the absence of any cogent material, it would be inappropriate to assume with certainty in favour of the latter but that Abdul and Binoy were there on the selection committee for testing the merit of Pravash, by itself, having a favourable disposition towards Pravash, is sufficient to arrive at the conclusion that justice was not manifestly seen to have been done.
34. It is immaterial, as suggested by Mr. Mukherjee, that none of the other empanelled candidates have felt aggrieved. The process has to be fair and not tainted, and any one who does not receive a fair treatment in course of the process of selection may, having regard to the facts and circumstances of each case, have locus standi to question such process. The present selection process stinks of a putrefying odour of bias and cannot be saved merely because the empanelled candidates have not challenged it.
35. For the reasons aforesaid, the selection process leading to appointment of Pravash as clerk in the school is held to be vitiated because real danger of bias has played a significant role in his selection and non-selection of the others, including Chanchal. The process is a nullity and, accordingly, stands set aside with the consequence that approval of the panel by the relevant district inspector of schools and consequent appointment of Pravash also stand set aside.
36. Since Pravash continued to discharge duty as clerk without approval of his service, there is no question of releasing any payment in his favour. Consequence of the interim order disentitled Pravash to any remuneration and he could have temporarily quit his job awaiting decision on these writ petitions and looked for greener pastures; however, he chose to render service which in the circumstances has to be treated as voluntary service. That apart, Pravash being the beneficiary of an illegal process, equity also does not incline this Bench to make any order for payment in his favour.
37. The vacancy on the post of clerk in the school shall immediately be reported to the School Service Commission having jurisdiction for following the law and making appropriate selection and recommendation.
38. Although none had appeared for Ranjit on the date the judgment was reserved, the writ petition has not been dismissed for default and the judgment and order passed in Chanchal's writ petition shall also govern Ranjit's writ petition.
39. The writ petitions stand disposed of without order for costs.
Photocopy of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. No.14553 (W) of 2014.. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)