Calcutta High Court (Appellete Side)
Salim Akter vs Union Of India & Ors on 26 April, 2018
Author: I.P. Mukerji
Bench: Md. Mumtaz Khan, I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I.P.Mukerji
Hon'ble Mr. Justice Md. Mumtaz Khan
FMA 500 of 2017
Salim Akter
Vs.
Union of India & Ors
For the appellant :- Mr. Debabrata Saha Roy
Mr. Indranath Mitra
Mr. Pingal Bhattacharyaa
Mr. Subhankar Das
For the Respondents :- Mr. P.S Biswas
Mr. Ujjal Kumar Roy
Judgement On :- 26.04.2018
I.P. MUKERJI, J.
In 2012 an advertisement was published by the Staff Selection Commission for recruitment of suitable candidates for the post of Constable (GD) in Central Police Organisations (CPOs) and Rifleman (GD) in Assam Rifles. The application had to be submitted online. The appellant says that he duly submitted applications for all the posts advertised. The application form was duly filled up submitted and accepted online. The appellant was granted registration. Having qualified in the physical test the appellant was asked to take part in the written test to be held on 22nd April, 2012. He qualified in the written examination obtaining 47 marks. Thereafter, on 7th August, 2012 he appeared before the Medical Board for detailed medical examination. He passed the fitness test.
The appellant says that till the beginning of 2012 he did not hear from the Staff Selection Committee. He approached a member of Parliament. He was kind enough to forward the appellant's request to the Commission. It answered the letter of the member of Parliament by stating that since the border code had not been stated by the appellant his candidature was not considered.
The appellant is a resident of Nadia district in West Bengal which shares its border with Bangladesh.
The appellant visited the office of the Regional Director and told him that this omission had been noticed at the time of medical examination. The respondents gave him the opportunity to correct the mistake there. The appellant had availed of it by entering the two digit border code '36'. The appellant felt that having got 47 marks he was entitled to get employment in one of the four forces, BSF, CRPF, ITBPF and Assam Rifles, in as much according to him as the total marks of the last selected candidates in each of these forces was less than 47. He argued that the omission to mention border code in the application form was not a fatal defect at all. The application form had been accepted online. The residential address of the appellant in Nadia district would point at the fact that the appellant's border code was 36. Furthermore, during his medical examination, he was allowed to fill up the code. Aggrieved by this action of the respondents the appellant filed a writ application (WP 27871(w) of 2015, Salem After Vs. Union of India and ors.) in this court. On 2nd December, 2015 this Court called for an explanation in the form of an affidavit as to why the appellant was not considered even after he was asked to fill up the border code in a sheet handed over by the medical officer during his examination. That writ application came up for hearing on 18th February, 2016 when it was disposed of by an observation that having obtained 47 marks the appellant qualified for appointment in the general category for the ITBPF recruitment. The Staff Selection Committee was directed to consider the appellant's candidature in the said force, subject to his compliance with all formalities.
In that writ application W.P. No. 27871 (W) of 2015, the respondents contended that the appellant had obtained 47 marks. The only force where he could have come into the zone of consideration was ITBPF where 47 was the lowest mark obtained by a qualified candidate. But the appellant had not indicated this force in his choice. This court upon consideration of the relevant rules observed that where no choice had been made by a candidate, "their candidature was considered by fixing A,B,C,D,E,F as their order of preference" or BSF, CISF, CRPF, SSB, ITBPF and Assam Rifles in descending order of preference. By its order dated 18th February, 2016 this court directed the Staff Selection Commission to consider the case of the appellant. No other issue was raised before the court although the record says that at different points of time the respondents took different points of defence. Once they said that for non-supply of the Border District Code in the application form the appellant was disqualified. On another occasion they said that the appellant had not indicated his choice of force. Had he done so he would have been considered for the ITBPF. If a point in defence is not taken but ought to have been taken and the matter decided on merits, the rules of issue estoppel operates. That point cannot be urged in another proceeding or in a later proceeding between the same parties. It is closed by the decision. The decision becomes res judicata (see explanation III and IV of the Section 11 of the Code of Civil Procedure).
In obedience to the direction of this court made on 18th February, 2016 the Commission duly made a decision in the matter on 4th March, 2016 in the following terms:
"5. WHEREAS, the Commission in compliance with the said directions of the Hon'ble High Court, carefully considered the candidate of the petitioner for the ITBPF under unreserved (UR) category for general vacancy type for the State of West Bengal subject to the rules as to a tie as may be applicable; and,
6. WHEREAS, the Commission finds that the petitioner obtained 47 marks which was equal to the marks obtained by the last selected candidate viz. Shri Shanku Shekhar Manna bearing Roll No. 4413007233 for selection to the ITBPF (post code E), the Commission in this case used tie criteria the procedure for resolution of which is laid down in the notice of the said recruitment published in the Employment News dated 03.12.2011 and in the Commission's website (http://ssc.nic.in) which is reproduced below.
7. WHEREAS both the last selected candidate and the petitioner obtained the same 47 marks in the written examination for the said recruitment, the Commission compared the marks obtained in Part-A of the Written Examination in accordance with the procedure for resolution of tie criteria stipulated in the Notice of the Recruitment as stated hereinabove; and,
8. WEHREAS, the last selected candidate of the same recruitment viz. Shri Shanku Shekhar Manna bearing Roll No.4413007233 obtained 21 marks in Part-A of the Written Examination, the petitioner obtained 17 marks in Part-A of the Written Examination the petitioner obtained marks less than the last selected candidate for the ITBPF; and,
9. WHEREAS, the Commission carefully considered the candidature of the petitioner Shri Salim Akter for the ITBPF equitably in common with all other similarly circumstanced candidates for the aforesaid recruitment subject to the rules as to a tie as applicable, and now found that the petitioner did not finally qualify in the ITBPF under Unreserved (UR) category for General Vacancy Type for the State of West Bengal in the aforesaid recruitment as per the tie criteria stipulated in the Notice of the recruitment by reason of the fact that the petitioner obtained lower marks in Part-A of the Written Examination than the last selected candidate for ITBPF; now,
10. THEREFORE, the petitioner is hereby communicated the aforesaid information in compliance with the directions of the Hon'ble High Court, Calcutta vide Order dated 18.02.2016 in WP No.27871 (W) of 2015."
There was a tie between the last selected candidate Shanku Shekher Manna and the appellant. Both got 47 marks. The tie was resolved applying the applicable rules by giving preference to Part-A marks. By this process Shanku Shekher Manna got more marks than the appellant. His selection was affirmed.
The second writ W.P. No. 5629 (W) of 2016 challenged this decision. It also added one more issue that had the Border District Code of the appellant been accepted he ought to have been selected in the special quota. At the time of moving the second writ application (WP 5629 (W) of 2016, Salim Akter v. Union of India and Ors.), for some reason it was not pointed out to the court that the said issue had not been raised in the earlier writ. Therefore, in the order of 29th March, 2016 admitting the writ this issue seems to have been entertained by the court. The decision in the earlier writ was confined to whether the appellant would have got selected on getting 47 marks in the general category in any of the forces, particularly ITBPF. The court by its order dated 18th February, 2016 directed the respondents to make a decision accordingly. Therefore, by the said judgement and order this plea of special category candidature was permanently closed by the rules issue estoppel and res- judicata. What was left to the court in the second writ was to decide whether the Commission had adjudicated the matter properly. In our opinion the Hon'ble first court has very rightly opined that there was no infirmity in the said order. We affirm that decision by adding that the commission correctly applied the rule relating to tie and come to the conclusion that since the appellant got lesser marks in part-A of the selection examination, than Shanku Shekhar Manna, he would get preference over the appellant.
Accordingly this appeal is dismissed. The impugned judgement and order dated 15th July, 2016 is affirmed.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I Agree.
(Md. MUMTAZ KHAN, J.) (I.P. MUKERJI, J.) LATER:
Judgment in the above appeal was made ready a little before the recent cease work called by the lawyers of this Court. It was not placed for judgment because of the cease work. The lawyer aggrieved by the judgment might not have been able to be present to ask for stay of operation thereof. The application for a certified copy of the order may not have been submitted in time.
However, as the cease work continued without any prospect of the Court resuming its normal functions in the foreseeable future, on and from 5th April, 2018 these matters were placed in the list "For Judgment".
Nevertheless, judgment was not delivered, hoping that the cease work would end.
This Court is of the opinion that it is high time to deliver the judgment in the interest of the parties and in the interest of justice. A judgment in the above appeal has been delivered today (26.04.2018).
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.) (Md. MUMTAZ KHAN, J.)