Calcutta High Court (Appellete Side)
Kalpana Pramanik (Dutta) vs State Of West Bengal & Ors on 1 December, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 1689(W) of 2017
Kalpana Pramanik (Dutta)
-Vs.-
State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Rabilal Moitra, Sr. Adv.
Mr. Tulsi Das Maity, Adv.
Mr. Pradip Kr. Ghosh, Adv.
For the State : Mr. Tapan Kr. Mukherjee, Sr. Adv.
Mr. Arindam Chatterjee, Adv.
For the respondent No. 7 : Mr. Narayan Chandra Bhandary, Adv.
Heard On : 06.02.2017, 14.03.2017, 23.03.2017, 13.04.2017, 27.04.2017, 11.05.2017, 06.07.2017, CAV On : 27.07.2017 Judgment On : 01.12.2017 Arijit Banerjee, J.:-
(1) The undisputed facts of the case are as follows.
(2) Pursuant to a public notice inviting applications for appointment to a post of Para-Teacher of Gulbag High Madrasah (in short 'the said Madrasah'), the petitioner (hereinafter referred to as 'Kalpana') applied. Kalpana was called for interview which she attended. On 5 October, 2004, the Madrasah authorities submitted the panel prepared by the Selection Committee to the Pradhan Chandrabhag Gram Panchayat which in turn submitted the same to the District Project Officer (in short 'the DPO'), Howrah for necessary approval. The DPO approved the name of Kalpana for appointment. On 1 March, 2006, the Secretary of the said Madrasah issued a letter of appointment engaging Kalpana as an Addl. Para-Teacher of the said Madrasah.
Kalpana joined the said Madrasah on 8 March, 2006. (3) On 25 September, 2006, the respondent no. 7 (hereinafter referred to as 'Abha') who was the second empanelled candidate, filed a writ petition being WP 22403(W) of 2006 challenging the engagement of Kalpana, contending that she had obtained 19.92 marks whereas Kalpana had obtained 18.26 marks and as such she should have been appointed and not Kalpana. The said writ petition was heard on various dates before a learned Judge of this Court and was finally disposed of by a judgment and order dated 7 October, 2013 whereby the writ petition was allowed by directing the authorities to give appointment to Abha.
(4) Kalpana's appeal against the said order being MAT 34 of 2014 was disposed of by the Hon'ble Division Bench by an order dated 5 February, 2015, the operative portion whereof reads as follows:-
"The controversy would relate to selection of a para-teacher. The appellant would claim she stood first as certified by the Headmaster whereas the private respondent would claim she was rightly selected as would appear from the mark sheet disclosed by the Project Officer. The issue must be resolved by thorough independent enquiry to be conducted by the District Magistrate. The District Magistrate is also asked to take further steps in terms of the investigation report and undo the wrong, if any, already committed. The order of the learned Single Judge is set aside and is substituted by the above direction."
(5) On 1 June, 2015, the District Magistrate (in short 'the DM'), Howrah, being the respondent no. 2 herein, passed an order wherein he recorded a finding that Abha should have been the first empanelled candidate instead of Kalpana and hence she was the proper candidate for the purpose of appointment as Para-Teacher in subject History in the said Madrasah. By the said order he withdrew the approval of Kalpana as Para-Teacher with immediate effect and referred the matter to the School Education Department for clarifying whether Abha could be granted appointment in view of the change of policy regarding appointment of Para-Teachers.
(6) On 22 July, 2015 Kalpana filed a contempt application being CPAN No. 1337 of 2015 alleging wilful violation of the Hon'ble Division Bench order dated 5 February, 2015. On the same date Abha filed a writ petition being WP No. 28264(W) of 2015 for implementation of the order passed by the District Magistrate on 1 June, 2015. I am told that the said writ petition is still pending in this Court. (7) On 9 December, 2015 Kalpana filed a writ petition being WP 29518(W) of 2015 challenging the order dated 1 June, 2015 passed by the DM. I am told that the said writ petition also is pending but has become infructuous in view of subsequent orders being passed. (8) On 9 January, 2017, the DM, Howrah passed another order apparently in compliance of the Hon'ble Division Bench order dated 5 February, 2015. By the said order the DM held that Abha had secured 19.92 marks whereas Kalpana had secured 18.26 marks. He came to such a finding by re-constructing a fresh compilation sheet based on the score sheets of each of the members of the Selection Committee. He recorded in his order that Abha can be offered the post of Para- Teacher in History in the said Madrasah. It is this order which is under challenge in the present writ application. Just for completing the factual matrix be it recorded that the contempt application filed by Kalpana being CAPN No. 1337 of 2015 was dropped by the Hon'ble Division Bench by an order dated 13 January, 2017 in view of the fact that the DM had already passed the order dated 9 January, 2017. Contention of Kalpana:-
(9) Mr. Rabilal Moitra, learned Sr. Counsel appearing for Kalpana referred to two different copies of score-sheets at pages 41 and 48 of the writ petition. As per the document at page 41 (interview sheet) Kalpana secured 18.26 marks and Abha secured 19.92 marks.
However, as per the document at page 48, Abha secured 17.42 marks whereas Kalpana's marks are unchanged. Learned Senior Counsel submitted that the panel prepared in accordance with the document at page 48 of the writ petition was duly approved by the DPO and then also by the Addl. DM (Development), Howrah, Karmadakhaya, Howrah Zilla Parishad, the District Inspector of Schools (SE), Howrah and the PMIS Coordinator, SSA, Howrah as would appear from page 73 of the writ petition. However, the DM while passing the impugned order completely ignored the fact that the said panel was approved by all the relevant authorities.
(10) Learned Sr. Counsel further submitted that the DM ignored the specific stand of the DPO recorded in his affidavit filed in connection with WP 22403(W) of 2006 that the panel which is at page 41 of the present writ petition was never submitted to the Office of the DPO by the authorities of the said Madrasah and it was the panel at page 48 of the present writ application that was submitted to the Office of the DPO for approval. In the supplementary affidavit filed by the DPO in the present writ petition, the same stand has been taken, submitted Mr. Moitra. Learned Sr. Counsel submitted that the panel at page 41 of the writ petition has been prepared subsequently and is of no value. (11) Mr. Moitra then submitted that the DM failed to appreciate that once the panel was sent by the Madrasah authority and the same was verified and approved and acted upon by issuing engagement letter in favour of Kalpana, the Madrasah authority become functus officio and could not have sent the score-sheet at page 41 which was prepared subsequently to suit the purpose of Abha. He submitted that had the score-sheet at page 41 been a genuine document, there was no occasion and no reason for the Madrasah authority to send the score- sheet at page 48 for approval. Mr. Moitra prayed for quashing of the DM's order dated 9 January, 2017.
Contention of the State:-
(12) Learned Counsel for the State made his submission on the basis of an affidavit-in-opposition affirmed by the DPO read with a supplementary affidavit affirmed by the DPO on 17 May, 2017. In paragraph 2(i) of the A/O, the DPO stated, inter alia, that the score sheet at page 48 of the writ petition was never forwarded by the said Madrasah for approval and the State respondents are not aware of the existence of such a second score sheet. The score sheet at page 41 of the writ petition was sent by the Madrasah for approval. However, such statements have been sought to be corrected by filing the supplementary affidavit wherein it has been stated that there was a mistake in paragraph 2(i) in the A/O originally filed and the relevant portion should read as 'as far as the score sheet at page 41 of the writ petition is concerned, the same was never forwarded by the said Madrasah for approval and the answering respondents are not aware of existence of such a second score sheet and hence the same was not acted upon by the State respondents for the purpose of approval.' (13) Thus, although initially the stand of the State was that the score sheet at page 41 was forwarded by said Madrasah for approval, by filing the supplementary affidavit, the State has changed its stand and has contended that it was the score sheet at page 48 of the writ petition that was sent for approval. It was further stated in the affidavit-in-opposition of the DPO that subsequent to the order of the DM, Howrah, dated 1 June, 2015 Kalpana is no more working as Para-
Teacher in the said Madrasah. The further stand of the DPO is that Abha can be offered the post of Para-Teacher in History in the said Madrasah subject to orders of this Court.
Contention of Abha:-
(14) Appearing for the private respondents Mr. Bhandari, learned Counsel submitted that the score sheet at page 48 of the writ petition is a suspect document which contains unauthorized interpolations.
There are handmade corrections which are not authenticated. The document at page 41 is the correct score sheet, according to which, Abha secured the highest mark amongst the empanelled candidates. He submitted that the order passed by the DM which is under challenge in the present writ application, was so passed after considering the individual score sheets and the same does not warrant any interference.
(15) Learned Counsel heavily relied on the observations of this Court in the judgment and order dated 7 October, 2013 whereby WP 22403(W) of 2006 was disposed of. In particular, learned Counsel relied on the following observations of the learned Judge which read as follows:-
"I have carefully considered the submission made by the learned Counsel appearing for the writ petitioner as well as for the State. It appears from the document produced that assessment disclosed by the District Project Officer is not correct. There was some signature. However, the assessment- sheet which was disclosed by the writ petitioner in his affidavit-in-reply which was attested by the then headmaster of the school is without any interpolation and it appears to be a correct one. A comparison of both the evaluation-sheet would show that the manufactured one as disclosed by the District Project Officer showing lesser mark in favour of the writ petitioner on relevant subject. The attested copy of the evaluation sheet shows that the writ petitioner got 4.5 marks but in the manufactured document lesser mark i.e. 2.88 was given. In the attested copy of the evaluation sheet it appears that the writ petitioner secured 2.88 marks in General Knowledge whereas the manufactured document shows only 2 marks.
However, at the time of preparation of the manipulated evaluation sheet the total number was kept same as appearing in the attested evaluation sheet. In both cases 19.92 marks were recorded. Subsequently this was struck off and 17.42 mark was written. First position was struck off then second was written by hand. All those corrections and awarding of marks were done without any signature of the examiner and/or selection committee members who were selecting the candidates and/or preparing the panel.
In my considered view, the District Project Officer for unknown reason proceeded on a manipulated sheet without asking any explanation for the authorities why this type of correction was made and why there was no signature against such correction. Therefore, there is no doubt in the mind of this Court that the evaluation sheet was manipulated for doing some favour to the respondent no. 7 who was appointed most illegally and unfairly."
(16) Mr. Bhandari finally submitted that pursuant to the DM's order dated 9 January, 2017, the DPO, Howrah has issued an order dated 17 January, 2017 directing the Headmaster of the said Madrasah to give appointment to Abha. This was followed by another order of the DPO dated 27 January, 2017. However, in view of the interim order of this Court the said orders could not be given effect to. Mr. Bhandari prayed for dismissal of the writ petition.
Court's View:-
(17) The sole question that arises in the facts of this case is, between Kalpana and Abha, who obtained more marks in the selection process?
The confusion has been created by the existence of two versions of the score sheet. As per the score sheet at page 41 of the writ petition, Abha obtained 19.22 marks and Kalpana secured 18.26 marks. As per the score sheet at page 48 of the writ petition Abha obtained 17.42 marks and Kalpana obtained 18.26 marks. Kalpana claims that the score sheet at page 48 is the genuine score sheet which was sent to the DPO's office for approval and on the basis thereof the panel was prepared wherein Kalpana was shown as the first empanelled candidate. Abha contends that the score sheet at page 41 is the authentic score sheet. In the score sheet at page 48 Abha's marks have been tampered with and 17.42 have been shown as Abha's marks. She contends that such alteration and/or interpolation is completely unauthorised and was made to favour Kalpana and show her as the first empanelled candidate.
(18) I have gone through the documents on record carefully and in particular pages 41 and 48 of the writ petition which are the two versions of the score sheet. At page 48 the marks of Abha and one Barnali Bhowmick have been altered. There is no initial below or next to the alteration. There is no indication as to who made such alteration and whether such person had the authority to make such alteration. Although, the said document appears to be signed by various persons including the Teacher-in-Charge and Secretary of the said Madrasah, it is impossible to ascertain as to whether the alteration in the said score sheet was done before the same was signed by the various persons who have put their signatures on the said document. The score sheet at page 41 is also signed by the Teacher- in-Charge, Secretary and Headmaster of the said Madrasah. As per this document Abha should have been the first empanelled candidate. (19) The different stands taken by the DPO in her affidavit-in- opposition and her subsequent supplementary affidavit has added to the confusion. Her original stand in the affidavit-in-opposition was that the score sheet at page 41 of the writ petition was sent by the Madrasah for the approval of the DPO. However, in the supplementary affidavit she has stated that the score sheet at page 41 was never forwarded by the said Madrasah for the approval of the DPO. It appears to me that it was the score sheet at page 48 that was sent by the said Madrasah for approval of the DPO since, logically speaking, had the score sheet at page 41 been sent for approval, Abha would have been shown as the first empanelled candidate in the panel that was approved. However, the first name in the approved panel is that of Kalpana and that could have been only on the basis of the score sheet which is at page 48.
(20) However, this does not answer the question as to which of the two score sheets is genuine and authentic. This question cannot be answered by the Writ Court in the exercise of jurisdiction under Art. 226 of the Constitution. Hence, the Hon'ble Division Bench by the order dated 5 February, 2015 passed in MAT 30 of 2014 had directed the DM to resolve the issue through an independent enquiry. It appears that pursuant to such order, the DM, Howrah, had directed the Sub-Divisional Officer (in short 'the SDO'), Sadar, Howrah to enquire into the matter. Based on the enquiry report of the SDO the DM passed an order dated 1 June, 2015 holding that Abha should have been the first empanelled candidate and therefore, the rightful candidate for the post of para-teacher in subject History in the said Madrasah. Consequently, the DM, Howrah withdrew the approval of Kalpana as para-teacher with immediate effect.
(21) Presumably, because such order was passed by the DM on the basis of the enquiry report submitted by the SDO and not after independent enquiry made by him, Kalpana filed a contempt application which was subsequently dropped by the Hon'ble Division Bench as recorded above.
(22) Subsequently, the impugned order was passed by the DM, Howrah. The impugned order was passed after giving an opportunity of hearing to all concerned including the Madrasah Authorities, Kalpana and Abha who were present with their respective learned Advocates at the hearing. In view of the two inconsistent versions of the score sheet, the DM ignored both and reconstructed a fresh score sheet based on the individual score sheets (attested by the concerned member) of each of the members of the selection committee. As per the freshly re-constructed score sheet, the DM observed that Abha was in the first position by securing 19.92 marks and Kalpana was in the second position with 18.26 marks.
(23) In my opinion, the exercise undertaken by the DM, Howrah was the only way to resolve the dispute in hand. The finding arrived at by the DM is a finding of fact based on cogent and relevant materials i.e., the individual score sheets of the members of the selection committee, duly authenticated by the respective members. The decision was arrived at by the DM after giving an opportunity of hearing to all the concerned parties, in full observance of the principles of natural justice.
(24) It is settled law that the Writ Court is not concerned with the decision of an authority but what falls for scrutiny before the Writ Court is the decision making process. So long as the decision has been arrived at on the basis of some material and in compliance with the principles of natural justice and the decision is not arbitrary or perverse or Wednesbury unreasonable or patently contrary to the law of the land, the High Court in exercise of its power of judicial review will not interfere with the decision. Although the power of the High Court under Art. 226 of the Constitution is very wide, it is a discretionary power and such discretion has to be exercised judiciously to undo patent injustice to an aggrieved party. A Writ Court will not act as a Court of appeal and interfere with a finding of fact unless the same is patently absurd.
(25) In the present case, the procedure adopted by the DM in finding out who out of Kalpana and Abha should have been the first empanelled candidate, is completely reasonable. The impugned order has been passed after following the principles of audi alteram partem. None of the views that would prompt a Writ Court to interfere with an impugned order is present in the instant case.
(26) In view of the aforesaid, I see no reason to interfere with the order under challenge in the present writ petition. The writ petition fails and is dismissed without any order as to costs. (27) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.) Later:
After judgment is delivered, prayer is made by learned Counsel for the petitioner for stay of operation of the judgment and order. Such prayer is considered and refused.
(Arijit Banerjee, J.)