Calcutta High Court (Appellete Side)
Sri Kamalaksha Gangopadhyay vs The State Of West Bengal & Ors on 23 December, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
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Form No.J (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Pratap Kumar Ray.
And
The Hon'ble Justice Md. Abdul Ghani
W. P.S.T. No.536 of 2009
Sri Kamalaksha Gangopadhyay
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. L. K. Gupta
Mr. S. Ghosh
For the respondent No.4 : Mr. Milan Chandra Bhattacharya
Mr. Sulagna Bhattacharya
Mr. Gautam Pathak Banerjee
For the State respondent : Mr. Amal Baran Chatterjee
Mr. Swapan Kumar Chatterjee
For the P.S.C. : Mr. Amalendu Mitra
Heard On: 8.12.2011, 19.12.2011, 21.12.2011
Judgment On : 23rd December, 2011.
Pratap Kumar Ray, J:
Assailing the order 7th July, 2009 passed in O.A. No.2543 of 2006 by West
Bengal Administrative Tribunal, this writ application has been filed. Selection
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made by the West Bengal Public Service Commission for recruitment to the post
of Principal, Government College of Art & Craft and subsequent action of the
State of West Bengal appointing the writ petitioner, who was a lecturer in the
field of Commercial Art of that College at that time, to the post of Principal,
Government Art & Craft College, Kolkata, became the subject matter of challenge
before the learned Tribunal in the original application filed by Monoj Kumar
Sarkar, the respondent No.4 of this writ application, who at the material time
was acting as Principal-in-Charge, Government Art & Craft College, Kolkata.
In the original application selection of writ petitioner was assailed on the
grounds of non-fulfillment of essential qualification by the present writ petitioner,
Sri Kamalaksha Gangopadhyay, namely, Artist in the field of Fine Arts, adequate
administrative experience, teaching experience, the age bar parameters and on
bias attitude of one of the members of the selection committee who acted as
adviser in selection process and who was erstwhile Principal of the said College,
in favour the writ petitioner, and merit of writ petitioner to hold the post of
Principal by making comparative analysis of applicant's superior merit than writ
petitioner satisfying all essential qualifications in terms of recruitment rule
including the desirable qualifications prescribed under the said rule. Parties
exchanged their respective affidavits before the learned tribunal below. Learned
tribunal allowed original application on holding lack of sufficient administrative
experience by writ petitioner, the first empanelled candidate, who was
recommended by Public Service Commission, the bias attitude in favour of writ
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petitioner by one of the members of the selection committee who was erstwhile
Principal of the said College and on major point of non-mentioning of desirable
qualification in the vacancy advertisement, made by the Public Service
Commission, though under the recruitment rule desirable qualification is
specifically identified as a qualification for the said post. The present writ
petitioner whose selection and appointment was under challenge, admittedly was
holding the post of lecturer in Graphic design, a post in Commercial Art and not
in fine Arts group, in the said College at the material time. His teaching
experience and work field were dealt with adversely by the learned tribunal by a
lengthy discussion of the issue on taking note of recruitment rules namely
recruitment rules regulating the recruitment to the post of Principal of said
college which is in the West Bengal Senior Educational Service, framed by the
Hon'ble Governor in exercise of the power conferred by the proviso to Article 309
of the Constitution of India, hereinafter for brevity, referred to as 'recruitment
rule', the advertisement issued by Public Service Commission being
advertisement No.4/2005 inviting applications from the eligible candidates of fine
Arts field and desirable qualification which is specified in qualification head for
the said post in the said recruitment rule. This point that in the vacancy
advertisement issued by the Public Service Commission, West Bengal, the
desirable qualification was not mentioned and was omitted intentionally, was not
pleaded by the applicant of original application, but subsequently at the time of
hearing and argument, as it appears from the judgement of learned Tribunal
below, this point was answered by respective parties and Tribunal dealt with that
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point which became the major decision making point to reach the impugned
order passed by the learned Tribunal. The impugned order reads such:-
" This is an application under
Section-19 of the Administrative Tribunals Act, 1985, filed at the instance of
present petitioner, Manoj Kumar Sarkar, praying for a direction against the
Respondent Authority to give appointment to the petitioner in the post of
Principal, Government Art and Craft College, Kolkata, canceling the one man
panel, with a further prayer for not to give appointment to Shri Kamalaksha
Gangopadhyay, Respondent No. 3 in the post of Principal, Government Art
and Craft College, Kolkata.
The short facts leading to the filing of this application are as under:-
The applicant was appointed in the post of 'Lecturer' in Fine Arts and
Indian Painting in West Bengal Educational Services in Government Art and
Craft College, Kolkata in the year 1982. He was confirmed in the said post
with effect from 1985, and he was elevated to the post of Assistant Professor
with effect from 1990.
Applicant was further elevated to the post of Reader in the said college
with effect from 1998, and he became the Head of the Department in
Drawing and Painting (Western Style) on and from 14th July, 1992, and he
also acted as in-charge in Drawing and Painting (Western Style) as a senior-
most teacher in the department from 16th May, 2002. He also acted as an
Officer-in-Charge of the same college in absence of the Principal, and at last,
by virtue of Government Order dated 22-09-2004, he was acting as Officer-
in-Charge in the same college with full financial power of the Principal in
addition to his normal duty as a Reader, and since then he was acting as an
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Officer-in-Charge in the same college till Private Respondent No. 3 was
appointed as a Principal of the said College.
The post of the Principal of the college being vacant, Government of
West Bengal approached the Public Service Commission to take steps for
recommendation in terms of the Recruitment Rules in force, and accordingly,
one advertisement was made on 19-02-2005 for the post of Principal,
Government College of Art and Craft, Kolkata in West Bengal Educational
Service, and accordingly, the applicant also applied for the said post, and he
was already acting as Officer-in-Charge with full financial power of the
Principal in the same college by virtue of Government order and has gained
adequate administrative experience. Accordingly, the applicant on
02.08.2006 appeared before the four judges'' committee with all papers, and
from a reliable source, he came to learn that he has secured highest mark in
the interview, and he being the senior-most teacher in the college and having
best qualification and administrative experience among other 06 candidates
who also appeared at the interview, he was expecting to be selected in the
said post. But unfortunately, from the reliable source, he came to learn that
one Shri Kamalaksha Gangopadhyay, one of the junior teachers of the same
college was going to be appointed as a Principal of Government Art and Craft
College, Kolkata, ignoring the norms and procedures of selection.
It has further been alleged by the petitioner that though the applicant
is having best qualification and experience than other candidates, who
appeared in that selection process, yet, unfortunately, ignoring his claim an
(ordinary qualified person has been empanelled presumably for the reason
that none of the judges of the committee was the ex-principal of the same
college and relation between him and the said member was not at all very
good, while at the same time, he was having a very cordial relation with Shri
Kamalaksha Gangopadhyay, for which Shri Gangopadhyay was illegally
preferred ignoring the claim of the petitioner. Consequently, the petitioner
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has approached this Tribunal with the prayers, as mentioned in the
application.
This application, however, has been resisted by the State Respondents
as also by the Private Respondents by filing separate replies, wherein they
have denied all the material allegations contained in the application.
It has, inter-alia, been contended on behalf of the State Respondents
in their reply that Public Service Commission being an autonomous body,
they enjoy freedom in the matter of selection in terms of the extant rules.
In the instant matter, the Public Service Commission did nothing in
contravention of the rules and regulations, as they conducted interview of
the candidates for the aforesaid post of Principal having due regard to the
recruitment rules, prescribed for the said post, and subsequently
recommended the name of Shri Kamalaksha Gangopadhyay, and the State
having no nexus to such process of selection, they prayed for dismissal of
this application.
P.S.C. Respondent also, in their reply, has categorically denied the claim of
the petitioner, as made in the application.
It has, inter alia, been contended on their behalf that 07 candidates,
who fulfilled all the essential advertised qualifications and experience, were
called for interview on 02.08.2006 including the present petitioner, and in
fact, the petitioner did not secure highest mark in the interview, and as such,
his name was not recommended for the said post.
It was further alleged that, the candidates were called for interview on
the basis of the advertised essential qualification and experience, and as
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Shri Kamalaksha Gangopadhyay secured highest mark in the interview,
hence, he was recommended for the post of Principal.
It has further been alleged by them that performance at the interview
is the main criteria to get recommendation for direct recruitment, and as
Private Respondent No. 3 performed better that the applicant in the
interview, as such, he was recommended further Principal.
It has further been alleged by them that the purpose of Commission is
to ensure selection of best available person to avoid arbitrariness and
nepotism, and once the Commission determines the norms of examination,
and recommends a list of successful candidates to the Government on the
basis of such norms, the Commission cannot re-open the selection process
and lower down the norms at the instance of the Government.
It was further alleged on their behalf that the acquisition of aspersion
of selection by the Public Service Commission is absolutely baseless,
untenable, and without any valid cogent grounds.
It was further contended that since the candidature of Shri
Kamalaksha Gangopadhyay was adjudged best among all other interviewed
candidates on the interview provided by the Committee members, as such,
he was recommended to the post of Principal, Government Art and Craft
College, Kolkata on his securing the highest mark at the interview. So,
according to them, there being no illegality, no interference by this Tribunal is
necessary.
The Private Respondent, by filing a reply, has also denied the
allegations, made by the petitioner in his application. it has, inter-alia, been
contended on his behalf that the Public Service Commission, West Bengal
being an autonomous body, it enjoys much freedom and power in the matter
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of selection and the Commission is being aided and advised by experets
with technical knowledge, experience, and high academic qualification in
their respective specialist skill, and since in the connected matter, the Public
Service Commission has acted in accordance with the rules and regulations,
there is no reason, whatsoever, for interference by this Tribunal, as it cannot
be held with certainty that outstanding results in the various examinations
would be the only criteria to select a candidate, and if that be so, then there
is no need for interview, and in course of interview, candidates has to project
himself with his proven activities, and that would be adjudged by the
Selection Committee, and ultimately they are the final authority to take the
decision, and since it was not a promotional post, the selection committee
though it fit to select the respondent No.3 in the aforesaid post, and since
there is no infirmity in the connected matter, no interference is necessary.
Hence, they pray for dismissal of this application.
Now, the only question which we are called upon to decide here is as
to whether the petitioner is entitled to the reliefs, as prayed for or not.
We have heard the Ld. Counsel representing the parties at length. We
have also perused the materials available on record with meticulous care.
Indeed the Public Service Commission has been empowered by the
Constitution among other things for recruitment to State posts and Services
through Arts. 320 & 321. It accordingly enjoys considerable freedom in
conduct of its affairs relating to recruitment but it is settled legal position that
its actions are not above law or beyond judicial scrutiny.
In the instant case the Government approached the Commission for its
recommendations in terms of Recruitment Rules for the vacant post of the
Principal of the Government College of Art and Craft, Kolkata. Accordingly,
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an advertisement appeared in the newspapers on 19.2.2005, issued by the
P.S.C inviting applications from the suitable candidates for the post.
The post of the Principal Government College of Art and Craft Kolkata
is included in West Bengal Senior Education Service. The recruitment Rules
for the post, under Article 309 of the Constitution of India were notified on
the 20th May, 1986 vide notification No.329-Ed(T)/4A-43/83. The Rules
provide as follows:-
NOTIFICATION
In exercise of the power conferred by the proviso to article 309 of
the Constitution of India, and in supersession of the rules published with this
Department Notification No. 366-Edn (T), dated the 10th April, 1974 and No.
48-Edn (T) dated the 10th January, 1976, the Governor is pleased hereby to
make the following rules regulating the recruitment to the post of Principal,
Government College of Art and Craft, Calcutta, in the West Bengal Bengal
Senior Educational Service, namely
RULES
The method of, and the qualifications required for, recruitment to the
post of Principal, Government College of Art and Craft, Calcutta, in the West
Bengal Senior Educational Service, shall be as detailed below :-
1. Method of recruitment ;_ By selection (direct recruitment)
2. Qualifications :- The qualifications required for the post shall be
as follows :-
a) Essential ;-
i) The candidate must be an artist who has distinguished
himself in one or more branches of Fine Arts, such as
paint sculpture and graphic art with knowledge of art in
general and with specialized know ledge of Indian art;
ii) (a) five years' teaching experience a reputed school of art,
(b) adequate administrative experience
(iii) a pass in Matriculation or Higher Secondary Examination
its equivalent
(iv) Knowledge of Bengali-Spoken and with evidence of
having outstanding ability in and through grasp of the
subjects or original contribution in the field of any
discipline of Arts and Crafts active experience in
conduction significant research work.
(b) Desirable :
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(i) Research publication or exhibition of painting/drawing;
(ii) General knowledge of different crafts and their technical
and practical bearings.
Note : Qualifications relaxable at the discretion of the West Bengal . Public Service
Commission for candidates of outstanding merit.
It was, however, argued by the ld. Lawyer for the applicant that the
advertisement issued by the P.S.C did not contain the full text of the notified
Recruitment Rules, as detailed above.
A copy of the advertisement, which appeared in the newspapers, has been
filed by the applicant along with his application. the relevant extract of the
advertisement, reads as follows-
"PUBLIC SERVICE COMMISSION, WEST BENGAL
Advertisement No.4/2005
(1) ............................................................ ...................
(2) PRINCIPAL, GOVERNMENT COLLEGE OF ART 7 CRAFT, KOLKATA IN
WEST BENGAL SENIOR EDUCATION SERVICE.
......................................................................................
QUALIFICATIONS: Essential (I) Candidate must be an artist who has distinguished himself in one or more branches of Fine Arts, such as painting, sculpture and graphic art with knowledge of art in general and with specialised knowledge of Indian Art (ii) (a) Five years' teaching experience in a reputed school of art (b) dequate administrative experience (iii) a pass in Matriculation or Higher Secondary Examination or its equivalent (iv) Evidence of having outstanding ability in and thorough grasp of subject or original contribution in the filed of any discipline or Art and Craft or active experience in conducting significant research work (v) Knowledge of Bengali-spoken and written.
NOTE: Qualifications relaxable at Commission's discretion for candidates of outstanding merit.
............................................................................................................... ........................................................................... INSTRUCTIONS:
(1)......................................................................................................... ........................................................................... (2) The qualifications prescribed in the advertisement are as per the notified recruitment rules issued by Government. 3. All the degrees/diplomas mentioned in the advertisement must have been obtained from recognized University/Institutions. 4. The prescribed 'essential qualifications' are the minimum and mere possession of the same does not entitle applicants to be called in for the interview. Where the number of applications received in response to the advertisement is large and it is not convenient or possible for the Commission to interview all the applicants the Commission may restrict 11 the number of candidates for interview to a reasonable limit on the basis of qualifications and experience higher than the minimum prescribed in the advertisement or on the basis of a screening tests".
It is seen, that as contended by the Ld. Lawyer for the applicant 'Desirable' part of the qualifications, which appears at (b) (I) (ii) of the notified Recruitment Rules has not found place in the advertisement issued by the P.S.C. It is missing altogether for the advertisement.
The Ld. Lawyer for the Applicant further contended that this omission was deliberate and designed to help the Private Respondent who, it was alleged, lacked the requisites demanded by the omitted part of the qualifications. It was argued that the process of selection was thus vitiated from the very beginning.
The Ld. Lawyer for the P.S.C. during his oral submission attributed the omission to cost cutting measures. But we are afraid that this submission needs to be brushed aside as the incremental cost of adding three-four lines would not have burdened the P.S.C. or the State to take such a decision, in a matter involving compliance of statutory rules.
A more serious explanation for the omission, which emerged from the arguments advanced in the case, is probably the misplaced perception or belief on the part of P.S.C. authorities that the Commission's discretionary power allowed them to exercise such an option. Hence, it was deemed fit to relax the notified Recruitment Rules by omitting 'Desirable' part of qualifications in this case.
A note to the Recruitment Rules, as notified, does provide 'QUALIFICATIONS RELAXABLE AT COMMISSION'S DISCRETION FOR CANDIDATES OF OUTSTANDING MERIT". Plainly this discretionary power can come into play only after the receipt of applications in pursuance of the advertisement in favour of a candidate of outstanding merit. It can not be quoted or used for varying or modifying the prescribed recruitment rules in any way.
There has been no logical or credible explanation from the P.S.C. for this omission. On the other hand it has been submitted by the P.S.C. all along that the seven candidates who were called for interview fulfill all the advertised Essential Qualifications.
It is an admitted fact that Rules of recruitment for the impugned post were notified following constitutional norms and procedures of Art 309 of the Constitution. Position of law on this issue is well settled. Rules, once notified, under Art 309 can not be varied or modified except through due procedure to be followed in accordance with law.
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We allow this matter to rest here for the present and will revert to this later after having a look at the selection process followed by the P.S.C. in this case.
According to the affidavit filed by the P.S.C. both the Applicant and the Private Respondent fulfilled the "advertised essential qualification and experience" and both were interviewed on the same day by the same Selection Board.
Both were the teaching staff of the Government College of Art and Craft at the material time, the applicant was a Reader and the Officer-in- charge of the College and the Private respondent was holding the post of a Lecturer.
The learned lawyer for the applicant has, however, argued rather forcefully that there is a gulf of difference in the qualifications and the experience of the two. He has submitted a chart showing a comparative position in terms of experience, qualifications and suitability of the Applicant and the Private Respondent.
Apparently the applicant is far more experienced having joined the West Bengal Senior Education Service way back in the year 1982 as lecturer in the self same institution and then moving up as an Assistant Professor in 1990. He was later elevated to the post of Reader in 1998. He was also working as the Head of the Department and functioned, in absence of a regular Principal, as the Officer-in-charge of the College. In fact he was officiating in that position, with full financial powers of the Principal, at the material time, in addition to his normal duty as Reader in the College.
On the other hand the respondent was appointed as a lecturer of the College in 2000 and was confirmed as lecturer in 2005 with retrospective effect from 2003.
On the qualification and experience front too, there is wide variance between the two candidates, it has been alleged by the Applicant.
In fact the learned lawyer for the applicant has argued that the Applicant was miles ahead of the Private Respondent in terms of his professional expertise, reputation and achievements.
He had also questioned the basic eligibility of the Private Respondent for the post of the Principal in terms of his experience and qualifications. It Was argued that Essential Qualifications required 'adequate administrative experience', and in case of the Private Respondent this condition was not met satisfactorily.
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It is argued that Private Respondent joined as lecturer of the College only in 2000 and had not completed the requisite number of years of Service if the fact of his confirmation in Service only in 2003 is taken into account. He also questioned his basic qualifications in terms of his Diploma in Graphic Design Art and Commercial Art. It was contended that commercial art is not included as part of what has been mentioned in the Recruitment Rules as one or more branches of Fine Arts. It was further argued that in the Government College of Art & Craft, Kolkata, there is no diploma in Graphic Design & Art, which is claimed by the Private Respondent as having acquired. Applicant's allegations have gone mostly uncontroverted except the one relating to eligibility minimum experience of 5 years.
Be that as it may, we would not like to get into these details in this case. 'this rightfully is the domain of the Public Service Commission. The Commission is charged with the responsibility of satisfying itself that the candidates participating in the selection process are duly qualified in terms of the extant Recruitment Rules. As an expert body the P.S.C. has expertise and resources to do so.
However in the face of the submissions made by the applicant and taking into account the averments of the respondents we are obliged to look into the selection process followed by the P.S.C. in this case.
The selection file was called for and scrutinized by us. The interview for the post was held on 02.08.2006. The following were the members of the Interview Board-the Chairman P.S.C. as Chairman of the Board, the Director of Public Instruction as a representative of the Department of Higher Education., Shri Bijan Choudhury eminent artist and Vice-President Rajya Charukala Parshad as expert Adviser; and Shri Biman Bihari Das Retired Principal Government Art College also as expert Adviser.
As part of the procedure the candidates were tested orally of the seven candidates for interview one did not appear.
As per note-II the file, it was suggested that in the Interview Board "Items like (ii) (b) viz. Adequate administrative experience and items (iv) viz. Outstanding ability ............ significant research work of the advertisement clause may be tested"
The items mentioned above relate only to the Essential Qualifications of the notified Recruitment rules. There is no mention of any part of Desirable qualifications but these are faithful to the advertised qualifications. We thus find that during the interview, the Board assessed the relative merits of the candidates on the basis of abridged and unauthorised modified Recruitment Rules which were advertised by the P.S.C for the post. The P.S.C thus 14 persisted, during the entire process of selection, with the fiction that the advertised rules were the Recruitment Rules for the post of Principal Government College of Art & Craft.
We looked for details of comparative assessment done by the Hon'ble members of the Board for testing the candidates on various attributes demanded of the candidates as per the Recruitment Rules.
From the record available in the file, it has not been possible to decipher the methodology adopted by the Interview Board to judge the relative merits of the candidates interviewed.
We understand the Board collectively assessed the relative merits and awarded aggregate marks to the candidates.
Private respondent has been awarded the highest marks by the Board.
The ld. Lawyer for the respondents had contended that as decided by the apex Court in Madan Lal and others vs. state of J&K and others [(1995) 3 SCC 486] assigning of separate marks under different heads was not necessary. A careful reading of the judgement would, however, show that the ratio of the case does not apply in this case but some of the observations are germane to the issue before us. We therefore, look into the details of the case.
In this case the petitioners had challenged the process of selection of Munsifs in the State of Jammu & Kashmir, undertaken by Jammu & Kashmir Public Service Commission, pursuant to an advertisement notice inviting applications in 1992. The selection of successful respondents had been challenged on diverse grounds. The selection process had written examination as well as viva voce test. Those who qualified in the written test were called for the interview. This viva voce test was conducted under Rule 10 of Civil Service (Judicial) Recruitment Rules 1967. The petitioners contended though they did well in the viva voce test, they were unfairly excluded through the viva voce test to favour the private respondents. So far as Rule 10(1) (b), interpretation of which was under dispute, is concerned it did not provide for any separate assessment of marks for candidates at viva voce examination faculty wise, that is on intelligence, general knowledge, etc., listed in the said rule. On the contrary, it appeared that as per the said rule, while conducting viva voce examination the Committee had to keep in view the main object of assessing such candidates in the light of the guidelines given therein. In other words, the Interviewing Committee had to keep in view the overall performance of the candidates at the oral interview and while doing so their intelligence, general knowledge, personality, aptitude and suitability had to be kept in the centre. The rule merely lays 15 down the object of assessing such candidates in the viva voce examination. It was a general guideline given to the Interviewing Committee members.
Hon'ble Court opined that in the case of recruitment to the posts of Munsif, he was required to work at the grassroots level of State Judiciary. For candidates aspiring to be appointed in such a judicial office, apart from the written test, his overall performance at the oral interview is more important and consequently the split-up of marks under various subheads at oral interview of such a candidate may not be strictly necessary unless the concerned rule regulating such a viva voce test expressly provided to that effect. As we have seen earlier Rule 10(1) (b) did not so prescribe and hence it was open to the members of the Committee to make an overall assessment of the interviewed candidates keeping in view the various factors for such assessment as laid down by the said rule.
It was, therefore, held that the members of the Interview Boards had during the viva voce test judged the candidate on the basis of their intelligence, general knowledge, personality, aptitude and suitability as required by Rule 10(1) (b) of the Recruitment Rules.
The Hon'ble Court further observed that no bias was alleged against any of members who made the selection. It cannot therefore be said that Rule 10 (1) (b) was violated by the Interview Committee while conducting viva voce test. We quote, "the contention is in the realm of mere suspicion having no factual basis. It has to be kept in view that there is not even a whisper in the petition about any personal bias of the Members of the Interview Committee against the petitioners. They have also not alleged any malafides on the part of the Interview Committee in this connection. Consequently, the attack on assessment of the merits of the petitioners cannot be countenanced. It remains in the exclusive domain of the expert committee to decide whether more marks should be assigned to the petitioners or to the respondent concerned."
In the case before us, the situation is different. The Applicant has alleged bias in the Application itself. The issue has been agitated through affidavits and arguments too. It is alleged that one of the judge was the ex- principal of the same college.
The applicant has thus alleged bias specifically on part of the last named member of the Board. It is not disputed that he was the Principal of the Art and Craft College when the private respondent was appointed lecturer of the College in 2000. There is nothing unusual about that. It only assumes some significance when one considers the arguments of the Ld. Lawyer of the Applicant that the respondent joined as lecturer at the age of
48. We find nothing wrong in that also as the lateral entry into academics after experience of working in the private sector is a legitimate aspiration. 16 The argument of the learned lawyer, however, is that the said expert was instrumental in his recruitment in the College in 2000 in his tenure as the Principal, and was now biased in favour of the respondent to get him appointed as the Principal of the College. This may or may not be true. This only confirms prior acquaintance. If true, the bias in this case is basically not so much against the Applicant but more in favour of getting a particular person being appointed to the post. We purpose not to get into this any further as it could not have been possible for the P.S.C. to be aware of any such apprehension at the time of appointment of the said gentleman as an expert advisor. If there was any such doubt in the mind of the applicant he should have protested earlier if not at the time of interview at least immediately thereafter. We would traverse a little further and record our belief that the said gentleman could have voluntarily dissociated himself from the Interview Board in the facts and circumstances of the case.
Ld. Lawyer for the Respondents have argued that the applicant having participated in the selection procedure he is estopped from alleging procedural irregularities after his having not been successful. In this connection they have cited Supreme Court decision in University of Cochin Vs. N.S. Kanjoonjamma and others [(1997) 4 SCC 426].
In this case, the University of Cochin adopted certain recruitment rules viz. Recruitment Rules 14 to 17A of the Kerala State and Subordinate Service Rules. To understand its relevance and applicability in our case we reproduce part of the judgement cited in reference.
"It is not in dispute that Rules 14 to 17-A having specifically been adopted by the aforesaid Resolution of the Syndicate and approved by the University, the power of the University to adopt the Rules has not been challenged. The aforesaid Resolutions do indicate that the University has properly made Rules 14 to 17-A applicable in relation to the recruitment of non-teaching staff to the University in certain posts, viz. Class I, Class III and Class IV. In furtherance thereof, the Vice-Chancellor was authorised by the Syndicate to advertise the posts and constitute a Selection Committee for recruitment of the candidates. In furtherance thereof, a Committee was constituted. Advertisement came to be made. It is seen that when the general rules have been made applicable there is no necessity by the University to make a special reservation rule for special recruitment. Therefore, the non- mention of the special recruitment in the Resolution is of little consequence. As seen, the Syndicate adopted the Rules in relation to the non-teaching staff of the University. As a consequence, the advertisement came to be made for special recruitment of the Scheduled Caste and Scheduled Tribes to the posts reserved for them. In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure. That apart, we have already held that procedure was correctly followed and 17 therefore, the omission to mention in the advertisement that it was a special recruitment is of no consequence. The further finding of the High Court related to Proviso 1 Rule 4 which provides that when duly qualified candidates are available, the appointment shall be made of them. In other words, if duly qualified candidates are not available, and then advertisement could be made for selection. That rule is applicable to the general recruitment. But with reference to the special recruitment of the candidates belonging to the Schedule Caste and Scheduled Tribes, Rules 14 to 17-A stand attracted. In addition, as seen earlier, the advertisement came to be made as early as on 22.4.1982 by which time the Resolution of the Syndicate was not adopted, the same having been adopted on 7.3.1982. So, Rule 4 is inapplicable to the special recruitment advertised on 1.10.1981. Therefore, the later Resolution applying Rule 4 has no retrospective effect."
Thus the facts of this case are different from the above cited case and the ratio of the judgement is not applicable in this case.
It has also been contended on behalf of the respondents, citing Apex Court judgement in the case of Madan Lal vs. State of Jammu & Kashmir & Others [1995 Vol. 3 SCC 486 para 9] that after participating in the selection process and/or knowing well the selection procedure before selection the candidate cannot challenge the selection process. As mentioned earlier, this case relates to the Jammu and Kashmir Public Service Commission's selection procedure for filling the posts of Munsif in the State of Jammu and Kashmir under Jammu and Kashmir Civil Service (Judicial) Recruitment Rules, 1967. The Commission conducted first the written examination and then viva voce test. The petitioners had challenged and alleged certain irregularities in the procedure adopted for viva voce test vis a vis the provisions of Recruitment Rule 10(1) (b) of the Recruitment Rules.
In the case before us, the recruitment Rules notified under the Constitutional provisions does not provide any rules on the procedure to be followed for the selection. The P.S.C had also not notified any procedure or guideline for the selection. We have narrated the facts and circumstances of case earlier. Taking those into account we hold that the ratio of the case(supra) could not apply here.
It was the prerogative of the P.S.C to devise and follow an appropriate selection procedure to recruit the best candidate for the post. The selection procedures to be followed by the Commission were not known to the candidates nor were they informed at any stage about the attributes to be judged during the interview. As such we find another case cited by the P.S.C respondents viz. Union of India & Anr. vs. V.V.N. Chandra Sekhran & Ors. [1998 Vol.3 SCC 694 para 13] does not help the respondents, the facts and the circumstance being different.
18
In the cited case it was not disputed that candidates were made aware of the procedure for promotion before they set for the written test and before they appeared before the Departmental Promotion Committee.
In the case before us however only disclosure made by the P.S.C. as per available records is provision in the advertisement that in case of receipt of large number of applications P.S.C. may restrict number of candidates called for interview to a manageable number on the basis of prescribed qualifications or on the basis of a screening test. The number of applications received was only 7 and P.S.C. found no scrutiny was required for the purpose of calling candidates for interview beyond ensuring that the minimum essential qualifications were met by all of them.
But this throws up an important question. What indeed were the prescribed qualifications for this selection?
We have already observed earlier the material omission in the advertisement issued by the P.S.C. It may be argued that the omission was not material. In that case even its inclusion would not have affected the result of the Interview any way and the action of the P.S.C. would have been only a minor irregularity to be overlooked.
Let us look at the omitted part. It reads as follows-
(b) Desirable :
(i) Research publications or exhibition of painting/drawing;
(ii) General knowledge of different crafts and their technical and practical bearings.
Clearly these are important attributes in the selection of the best candidates when there are at least two of them meeting the test of minimum prescribed qualifications.
And now consider the nature of allegations and the diverse background of the contending candidates in terms of their qualifications, in terms of their experience both teaching as well as administrative. Let us examine all this against the background of requirement of the job statutorily expressed in terms of qualifications required both essential and desirable.
We have no hesitation in holding the said omission as material omission in this case.
What's surprising; however is that the same advertisement goes on to inform the intending candidates that Qualifications mentioned in the advertisement were the notified Recruitment Rules. In the advertisement, it is INSTRUCTION 2 which explicitly makes this declaration. We quote :- 19
"INSTRUCTIONS (1) ... ... ... .... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ... ...
3. The qualifications prescribed in the advertisement are as per the notified recruitment rules issued by Government."
We have seen, however, that the factual position is different. The advertised Rules were not the notified Rules. We could have thought it is a mistake. But P.S.C. at no stage said so. We have found no satisfactory answer from the P.S.C. on this score.
It will not be out of place to mention here Hon'ble Apex Courts views on power and responsibility of the Public Service Commission. In Inder Prakash Gupta vs State of J & K and Others [(2004) 6 SCC 786: 2004 (3) SLR 658 (SC)] while dealing with J & K Public Service Commission Conduct of Business and Procedure Rules 1980 held as follows-
"The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Commission to meet the constitutional requirement for the purpose of discharging its duties consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action."
Further -
"While going through the selection process the Commission, however, must scrupulously follow the statutory Rules operating in the field. It may be that for certain purposes, for example, for the purpose of short listing it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with statutory Rules. It can not take any action which per se would be violative of the statutory Rules or make the same inoperative for all intent and purposes."
At one place in its Reply the P.S.C. has rightly affirmed that " it is essential to inform that the mode of recruitment as provided in by the Rules have been made by the appropriate Government authority in consultation with the Commission as required by Article 320 (3) (6) of the Constitution of India. The purpose of Commission is to ensure selection of best available person to avoid arbitrariness and nepotism. Once the Commission determines the norms for an examination and recommends list of successful candidate or candidates to the Government on the basis of such norms, the Commission can not re-open the selection process and lower down the norms at the instance of the Government. The process of selection against existing and anticipated vacancies does not create any right to be appointed to the 20 post. It is held by the Hon'ble Apex Court that the qualification as per recruitment rules must be fulfilled and further the qualification laid down in the recruitment rules cannot be challenged."
P.S.C. was, therefore, well aware of the correct legal position and statutory limitation on its authority and power on any change being brought about in the notified Recruitment Rules.
In the case before us, it has been confirmed in the Reply, filed by the P.S.C., that candidates have been interviewed with reference to the advertised essential qualification and experience only. A scrutiny of the selection file confirms this position.
This however, amounts to varying or modifying the Recruitment Rules framed and notified under Article 309 have statutory force and can be amended only by a Rule or Notification duly made under Art. 309 [ Nagarjan B.N. v. State of Mysore, AIR 1966 S.C. 1942]. By no stretch of imagination can we hold that this was within the discretionary power of the P.S.C. It was argued by the PSC respondent that in view of Apex Court judgment in case of Neelima Mitra v. Dr Harinder Kumar Pental [1992 SC 1402 para 32 ] that Court should have due regard to the opinion expressed by the expert committee and its recommendations. Rightly so, but in the instant case the comparative evaluation of the candidates has been done by the selection committee on the basis of advertised Rules of Recruitment which are at variance with Rules of Recruitment notified under Art. 309. Applying the ratio of the Apex Court (supra) judgment we find that selection is in contravention of statutory rules. Per se P.S.C. had no authority to take only one part of the Recruitment Rules and completely ignore the other.
The selection was thus vitiated and is liable to be set aside. Before proceeding further we would however like to get deeper into the submission made by the private respondent in this case to satisfy ourselves that decision we take is just and proper.
His case is that he fulfilled all the essential qualifications and was awarded the highest marks in the interview. His name was then recommended to the Government by the P.S.C. and accordingly he has joined the post of the Principal. According to his ld. Lawyer it was the duty and obligation of the P.S.C to check if the private respondent possessed the minimum qualifications prescribed for the post this was done by the P.S.C. The selection Board then adjudged him to be best candidate and there was no illegality involved. Regarding bias it was argued that the applicant should have protested there and then. Having not done so, he is estopped to tale up this issue now.
21
In this connection, ld. Lawyer cited case of Kanjoonjamma vs. v. Vasudevan in favour of the applicant being estopped from making allegations after participating in the selection process. We have already looked into this case and held otherwise while dealing with arguments advanced by the ld. Lawyer for the P.S.C respondents, being respondent No.2. It is also well settled that estoppel principle is inoperative in case of statutory violations.
It has been also argued by the ld. Lawyer for the private respondent that there is no whisper in the advertisement that outstanding candidate will be given preferences, even if it were so it was not necessary that candidate with higher qualification be selected. He cited Supreme Court Judgement in quoted in Secretary Department of Health vs. Dr. Anita Puri and Others [1997 1 LLJ 110 para 7] in his favour.
In this case the appellant had approached the Apex Court by special leave against the judgement of the Punjab and Haryana High Court passed in Civil writ petition No.688 of 1993. The writ petition had been filed challenging the selection made by the Public Service Commission for the post of Dental Officers inter alia on the ground that the selection had been made arbitrarily and is contrary to the positive terms of the advertisement indicating preference to be given to higher dental qualification. It was stipulated in the advertisement that preference would be given for higher dental qualification and the minimum qualification for the post was B.D.S. Respondent No.1 who had the qualification of M.D.S claimed entitlement to be selected on the basis of higher qualification. It was also pleaded that the Public Service Commission acted arbitrarily in awarding 20 marks out of 100 marks for viva voce, 20 marks for general knowledge and only 2 marks for higher qualification. The private respondents who contested the proceedings filed their counter-affidavit stating therein that in the absence of any statutory rule governing the mode of selection for the post of Dental Officer, an expert body like Public Service Commission had awarded different marks and evaluated the respective merit of all the applicants and finally selected the meritorious one and, therefore, it cannot be said to be arbitrary. It was also urged that the selection thus made by the Public Service Commission is not amenable to the writ jurisdiction of the High Court. The Division Bench of the Punjab and Haryana High Court came to hold that under the advertisement in question, persons having higher qualification of M.D.S form a class by themselves and therefore, they were entitled to be selected for the post on the basis of their qualification and the Public Service Commission acted against the spirit and intention of the appointing authority who has laid down the minimum qualification for the job and indicated preference for higher qualification. By referring to the meaning of the expression 'prefer' in different dictionaries, the High Court also held such persons having preferential qualification are entitled to be selected and appointed unless they are otherwise held to be not suitable. The High Court also further came 22 to the conclusion that the awarding of different marks by the Public Service Commission is arbitrary and irrational. With these conclusions the writ petition having been allowed and Public Service Commission having been directed to forward the names of the respondents, the State went up in appeal to the Apex Court.
With this background we now quote from the judgement of the Hon'ble Court.
"The question then arises is whether a person holding a M.D.S qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified persons automatically is entitled to be selected and appointed. In adjudging the suitability of a person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate through out his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extra-curricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S qualified person like respondent No.1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualified person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed."
We are afraid these observations do not help the Private Respondents the way the Ld. Lawyer has sought to uphold the selection. The fact and circumstances of our case are totally different.
On the other hand the observations of the Hon'ble Court strengthen our determination held so far. Keeping these observations in our view we can draw the following conclusions for guidance in this case.-
1. The applicant can not claim to be appointed as the Principal of the Arts and Craft College Kolkata merely because he is better 23 qualified and has greater experience. But he has right to be considered for the appointment in terms of his qualifications and experience.
2. Apart from the notified Rules of Recruitment there being no statutory rule or guideline issued by the Government to the P.S.C. for the purpose of evaluation of merit of the respective candidates the Commission has the sole authority and discretion to evolve a suitable matrix to judge the relative merit and fitness of the candidates and then make a selection in accordance with such evaluation. The Commission as an expert body has to ensure that this evaluation passes the test of not being arbitrary. But in the case before us, as observed earlier, there is a glaring anomaly, in so far as the advertisement issued by the P.S.C. is concerned. There has been a material omission in the qualifications advertised for the post which in effect is tantamount to amendment of the notified Recruitment Rules for this selection. This has rendered the whole exercise of this selection to the post as null and void as the said act of the Commission was without jurisdiction.
The Hon'ble Apex Court in its judgment in Liladhar vs. State of Rajasthan [A.I.R. 1981, SC 1777] had opined that - " the object of any process of selection for entry into a Public Service is to secure the best and most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and essential Public Service' The set of requirements specified under the Desirable part of the Qualifications were integral part of the Rules of Recruitment, notified by the State to secure the best and the most suitable person to the post of Principal of Government College of Art and Craft Kolkata.
We are unable to hold that discretionary power conferred by the Recruitment Rules to allow relaxation of norms in case of candidates of outstanding merit empowered the P.S.C to obliterate the Desirable Qualification altogether from the notified recruitment Rules to make this selection.
We, therefore quash and set aside the selection made by the Public Service Commission on the basis of the advertisement issued by the P.S.C for recruitment to the post of Principal Government College of Art & Craft, Kolkata.
24
The appointment of respondent No.3 to the post of Principal, Government Art & Craft College, Kolkata is hereby quashed and set aside.
We further issue direction on the Commission to initiate the process of selection afresh in accordance with law and complete it within a period of six months from the date of communication of this order.
The candidates who applied earlier would be given an opportunity to participate in the selection process subject of course to their eligibility in terms of the notified Recruitment Rules and age would not be a bar in case any of them being selected.
P.S.C would be free to choose experts to judge the relative merit of the contending candidates but no outside experts associated with the selection process should have been associated previously with the Arts and Craft College kolkata in regular teaching or non-teaching assignment.
Thus, ordered, the application before us is disposed of, on contest but without any order as to costs."
This writ application has been filed assailing said order of the learned tribunal below on many grounds namely (i) in the original application since non- publication of desirable qualification by the Public Service Commission in the advertisement was not pleaded learned Tribunal travelled beyond pleading. (ii) Experts (Advisors) in the field when selected the writ petitioner and when no objection was raised about constitution of the Expert (Advisory) Committee but acceptance of the same by appearance, the respondent No.4 waived his right to challenge selection made (iii) an un-successful candidate cannot assail the selection process applying the principle of estoppel and waiver (iv) no pleading that any prejudice suffered by any of the candidates for the said post due to non- publication of desirable qualification in the advertisement, hence omission to 25 publish it was not so fatal breach to quash the entire selection process directing de-novo selection after proper advertisement.
Affidavit-in-opposition of the writ application was filed by respective parties namely, the respondent No.4, the original applicant of the Tribunal application and by the Public Service Commission and affidavit-in-reply was filed by the writ petitioner. This Court directed production of records by the Public Service Commission and in terms of direction records relating to selection process was produced.
On perusal of writ application, respective affidavits of the parties in the writ application as well as tribunal application and also taking note of the records as produced, this Court invited learned Advocates to address on following new points (i) whether the letters dated 8th March, 2005 and 11th March, 20005 which were part of the records of Public Service Commission, written by writ petitioner Kamalaksha Gangopadhyay to the Director of Public Instruction, Higher Education Department, Government of West Bengal, prior to filing his application to Public Service Commission in terms of advertisement, seeking favourable consideration of his candidature, could be considered as canvassing to select him for the post of Principal of the said college when it appears from the note sheet and record of the Public Service Commission that concerned Director of Public Instruction to whom letters were delivered by the writ petitioner was present in the meeting of the interview Board as a Government representative in terms of 26 invitation of the Public Service Commission under rules of procedure Clause 5 sub Clause (c) ? (ii) Whether on the date of advertisement of the post in the newspaper inviting applications by the Public Service Commission namely on 19th February, 2005, the writ petitioner qualified himself with essential qualification and 5 years teaching experience in fine Arts field, in a reputed School of Art, when admittedly his initial appointment as lecturer was in Graphic Design (Applied Art) in Commercial Art field, by order of Governor dated 6th December, 2000 effective from 7th February, 2000 giving retrospective effect by the notification dated 6th December, 2000 ? (iii) Even if the point about omission to publish desirable qualification in the advertisement on breach of recruitment rules, was not pleaded in the pleading of original application, but when parties advanced their arguments before the learned Tribunal on that point upon having proper opportunity of hearing, whether Tribunal was justified lawfully to consider that issue and to pass a judgement on that point? (iv) Age relaxation issue whether was rightly considered in terms of recruitment rules which stipulates that age could be relaxable for candidates having exceptional high qualification and for persons holding substantive appointment in teaching branch of education department and whether age relaxation was done by the Public Service Commission lawfully as per rule ? (v) Assessment of merit by allotting identical marks by the Chairman and other two experts (Advisors), whether will create a suspicion in the mind of Court that selection was made with pre-determined mind and mechanically without considering merits of the respective candidates 27 and on that score whether it has attracted principle of fairness and reasonableness doctrine?
The aforesaid questions earlier framed by the Court and respective parties advanced their arguments in details including written notes of arguments.
So far as question No.1 namely canvassing in any form which will disqualify a candidate as stipulated in the advertisement issued by the Public Service Commission, West Bengal, is applicable to disqualify the writ petitioner from his appearance before the selection committee constituted by the Public Service Commission is dealt with now.
If you trace the history of the word 'canvas' the meaning of the word canvassing used in the advertisement as a dis-qualification clause of a candidate could be understood properly. The word 'canvas' has been discussed in Concise Oxford English Dictionary, Eleventh Edition by Catherine Soanes and Angus Stevenson published from Oxford University Press which read such:
" The word canvas came into Middle English, via Old Northern French canevas, from the Latin name for hemp, cannbis: hemp is the raw material traditionally used in making canvas, and is also the source of cannabis itself. The noun canvas(earlier spelled with a double-s) is also linked with the verb canvass, which originally meant 'toss in a canvas sheet' (a practice carried out both in fun and as a punishment); canvass then came to mean 'assault, attack' or 'criticize' and later 'scrutinize in order to reject invalid votes', from which developed the modern sense, 'solicit votes'."28
Here in the instant case the word canvassing is an action to canvass in present participle form from the root verb canvass. The meaning of the word canvas which is frequently used in election matter is to solicit vote from voters. Hence, the disqualification clause canvassing as used in the advertisement could mean to solicit favour of a candidate in the post in question relating to his selection. Admittedly, writ petitioner before 12th March, 2005 which is date of filing of his application to the Public Service Commission in proper form approached Director of School Education, West Bengal. This officer is head of the Directorate of Higher Education Department and the concerned College and the appointees therein are under his administrative control.
To deal with that issue letters as sent by the writ petitioner prior to filing of his application to Public Service Commission are relevant. Those letters read such:-
"11th March, 2005 To The Director of Public Instruction Higher Education Department Govt. of West Bengal Bikas Bhavan, Salt Lake, Kolkata.
(Through Proper Channel) Dear Sir, Sub: Intimation regarding my application for the post of Principal, Govt. College of Art and Craft, Calcutta.
This is to inform you that with reference to the Public Service Commission's recent advertisement (No. 4/2005 published in the Anandabazar Patrika on 19.02.2005). I am applying for the above mentioned post.29
Hope you'll find it ordinate and comply with. I thank you anticipating your consideration.
Faithfully yours (Kamalaksha Gangopadhyay) Lecturer, Graphic Design/Applied Art Government Colleger of Art and Craft, Calcutta 28 Jawaharlal Nehru Road, Kolkata- 700 016.
8 March, 2005 To The Director of Public Instruction Higher Education Department Govt. of West Bengal Bikas Bhavan, Salt Lake, Kolkata.
(Through Proper Channel) Dear Sir, Sub: Intimation regarding my application for the post of Principal, Govt. College of Art and Craft, Calcutta.
This is to intimate you that with reference to the Public Service Commission's recent advertisement (No. 4/2005 published in the Anandabazar Patrika on 19.02.2005) for the above mentioned post. I am interested and would like to offer myself as a candidate.
With over 5 years of experiences and a faculty member in my present institution, a silent and recognized contributor to various solutions and embarkments of the academic restructuring and administrative affairs, one key person in support of the leadership. I have been performing as an instrument to the upwardness and every single achievement, developmental issue and event management by count, all during this period within all crises of the institution. For the benefit and survival of this institution I have been devoting time and ability tirelessly besides regular teaching monitoring and initiating the pupils to an education compatible to cyber millennium.
Within the framework, and at the cost of my individual outlook expertise, knowledge earned through long dedicated professional background has enriched the institution to induct new blood in the vein of the department and the institution as well that I belong to and am responsible for.30
Now, as a first step in exploring the possibilities of the mentioned post of the Principal. I offer myself as an aspirant with all desiredness.
As the in-charge of an important department like Graphic Design and Applied art in this institution, I brought a focus on quality, a new behavioural updating and communication approach towards professionalism and exposure with the industries on my personal endeavour. Furthermore, I work well with others, and I am experienced in project management.
I would appreciate your keeping this inquiry confidential Hope you'll find it ordinate and comply with. I thank you anticipating for your consideration.
With regards.
Yours faithfully (Kamalaksha Gangopadhyay) Lecturer, Graphic Design/Applied Art Government College of Art and Craft, Calcutta Those letters are in the file of the Public Service Commission, copy of which was served to the learned advocates for the respondent No.4 and the writ petitioner respectively. It is the submission of Mr. Gupta, learned senior Advocate for writ petitioner that letters were sent following the office procedure on submission of application and as the Director of Public Instruction, is the head of the Higher Education Department, it was sent through proper channel. He further submits that the writ petitioner had no knowledge that said officer would be asked to represent the Government in the interview Board by the Commission.
The West Bengal Public Service Commission Rules of Procedure, 1982 provides under clause 5 sub clause (c) that Public Service Commission may request an officer of appropriate rank ordinarily not below the rank of Joint Secretary or head or additional head of the Directorate nominated by Government to represent 31 the Department/Directorate for which recruitment is made. The relevant clause 5 sub clause (c) read such:
"5(c) In the said Interview Board the Commission may request an officer of appropriate rank ordinarily not below the rank of Joint Secretary or Head or Additional Head of the Directorate nominated by Government to represent the Department/Directorate for which recruitment is made."
The submission of learned senior Advocate Mr. Gupta is not legally tenable as from the records as produced by the Public Service Commission, it appears that there was no endorsement that those letters were sent through proper channel and also there was no endorsement of the office of the Director of Public Instruction, Higher Education Department that those letters were processed through the said directorate to reach the office of Public Service Commission. It appears on face of documents that those letters were directly handed over to the Director of Public Instruction who placed those letters before the interview Board. The contents of the letters speak a volume about canvassing by the writ petitioner for his selection in the post of Principal. From the respective affidavits, the documents, and advertisement, it does not appear that the application of departmental candidate was required to be processed through the department. It was an open advertisement by the Public Service Commission inviting applications from different persons who would qualify qualification under the rule. In the application of respondent No.4 and the writ petitioner as produced by Service Commission, there is no endorsement that those were processed through departmental channel. The original application of the writ petitioner as produced 32 by the Public Service Commission, it appears that said application dated 12th March, 2005, was filed to the Public Service Commission directly and the office of commission endorsed No.9 in the top of the application on receiving the same on 12th March, 2005. Hence, submission of learned Advocate of writ petitioner fails.
Beside such, those letters cannot be considered as application in terms of advertisement, since application was required to be filed in proper format detailing information under different clause. The advertisement issued by Public Service Commission stipulates a clause being clause No.14 to this effect "canvassing in any form will disqualify the candidates". Even if it is assumed that writ petitioner had no knowledge that the Director of Public Instruction would assist the interview Board as a Government representative, still then it will come under the purview of canvassing, even in a situation that Director of Public Instruction was not requested to assist the interview Board as a Government nominee. A letter to the head of the department requesting him to consider his case when the gentleman applied in the post of Principal under Higher Education Department, itself ex-facie will disqualify the candidate to appear in selection process on ground of canvassing. Besides such, from the factual scenario it appears that the Director of Public Instruction was present in the interview Board constituted by three members namely the Chairman of the Public Service Commission and other two experts (Advisors) and assisted the Board. There were four persons present in the interview board, namely, the Chairman, two experts, amongst which one was the ex-Principal of the College against whom allegation of 33 bias pleaded by the respondent No.4 in the original application categorically and the Director of Public Instruction. In the advertisement it is categorically mentioned that canvassing in any form would disqualify the candidate. In view of language used in the letters seeking consideration of his candidature favourably in the letters dated 8th March, 2005 and 11th March, 2005, it is clear case of canvassing for his selection in the post in question and more particularly when Director, Public Instruction to whom those letters were sent placed those letters personally to the interview Board. Resultant effect disqualified the writ petitioner to be selected for a post of Principal, a post in Higher Education Service. This point No.1 accordingly is answered against the writ petitioner by holding that he was disqualified on ground of canvassing, which goes to the root of the matter.
So far as point No.2 is concerned, it could be answered by application of the recruitment rule. Recruitment rule dated 20th May, 1986 as notified, is a rule framed in exercise of the power conferred by the proviso to Article 309 of the Constitution of India. This rule provides the method of recruitment, qualifications and other conditions. The said rule read such:
"Government of West Bengal Bengal Education Department Technical Branch No. 329-Edn(T) Dated Calcutta, the 20th 4A-43/83"
NOTIFICATION 34 In exercise of the power conferred by the proviso to article 309 of the Constitution of India, and in supersession of the rules published with this Department Notification No. 366-Edn (T), dated the 10th April, 1974 and No. 48-Edn (T) dated the 10th January, 1976, the Governor is pleased hereby to make the following rules regulating the recruitment to the post of Principal, Government College of Art and Craft, Calcutta, in the West Bengal Bengal Senior Educational Service, namely RULES The method of, and the qualifications required for, recruitment to the post of Principal, Government College of Art and Craft, Calcutta, in the West Bengal Senior Educational Service, shall be as detailed below :-
1. Method of recruitment ;_ By selection (direct recruitment)
2. Qualifications :- The qualifications required for the post shall be as follows :-
b) Essential ;-
iii) The candidate must be an artist who has distinguished himself in one or more branches of Fine Arts, such as paint sculpture and graphic art with knowledge of art in general and with specialized know ledge of Indian art;
iv) (a) five years' teaching experience a reputed school of art,
(b) adequate administrative experience
(v) a pass in Matriculation or Higher Secondary Examination its equivalent
(vi) Knowledge of Bengali-Spoken and with evidence of having outstanding ability in and through grasp of the subjects or original contribution in the field of any discipline of Arts and Crafts active experience in conduction significant research work.
(b) Desirable :
(iii) Research publication or exhibition of painting/drawing;
(iv) General knowledge of different crafts and their technical and practical bearings.
Note : Qualifications relaxable at the discretion of the West Bengal . Public Service Commission for candidates of outstanding merit. Age :- Between 35 and 50 years on the 1st January of the year of advertisement, relaxable for candidates possessing exception high qualifications and for persons holding substantive applicant in the teaching branch of the Education Department, Government of West Bengal.
By order of the Governor Sd/- A.K. Chatterjee 35 Secretary to the Govt. of West Bengal No. 3259/1 (1)- Edn (T) Copy forwarded to the Director of Public Instruction, West Bengal , for information and necessary action.
Calcutta, Sd/-M. Bhattacharyya
The 20th May, 1986, Deputy Secretary.
No. 329/2 (1)- Edn (T)
Copy forwarded to the Secretary, Public Service Commission, West Bengal , Bhabani Bhawan, Alipore, Calcutta- 27 with reference to correspondence resting with his letterr No. 1092 PSC (S & R) / 1R- 38/72 dated 12-2-86 for information.
Calcutta, Deputy Secretary
The 20th May, 1986
22nd
Under the head "essential qualification", Rule 2 clause (a) sub clause (i) provides that candidate must be an Artist who has distinguished himself in one or more branches of fine art such as painting, sculpture and graphic art with knowledge of area in general and with specialized knowledge of Indian arts. The writ petitioner initially was a probational appointee in the post of lecturer of the said Art College in graphic design which is applied art in commercial field and not within the field of fine arts. The writ petitioner in support of his qualification submitted only one diploma in graphic design. Diploma in graphic design is within the domain of commercial art and not fine art, which is admitted by learned Advocate of writ petitioner, so the gentleman lacked essential qualification as mentioned in the recruitment rules and also in the advertisement. The learned Advocate for the petitioner however, intended to 36 submit that subsequently he made different works in fine art field which was considered by the interview board. This argument will not satisfy the essential qualification clause which mandates that artist must be of one or more branches of fine art. Graphic design is not within the domain of fine art but it is within the domain of commercial art. For mere work in the fine art without any diploma or without any basic qualification, there is no question of fulfillment of essential qualification. Similarly teaching experience of five years relates to experience as Teacher in fine Art field. Admittedly petitioner is a teacher of Commercial Art. Hence, he did not satisfy essential educational qualification as well as teaching experience.
So far as point No.3 is concerned the desirable qualification is also a qualification mentioned in the recruitment rules which specified under Rule 2 clause 1 (b) to this effect:-
"Qualifications :- The qualifications required for the post shall be as follows :-
(b) Desirable :
(i) Research publication or exhibition of painting/drawing;
(ii) General knowledge of different crafts and their technical and practical bearings."
This desirable qualification was not mentioned in the advertisement. Learned Tribunal considered that issue at length and passed the judgement on taking it as a major breach. The recruitment rule was framed under constitutional provision of Article 309 and it cannot be varied or modified by the 37 Public Service Commission, who is a recommending body. The State Government, the appointing authority, while directing Public Service Commission to select a best meritorious candidate for the said post categorically had informed by the communication dated 28th October, 2004 that service commission must advertise the vacancy detailing essential qualification and desirable qualification in terms of recruitment rule notified under notification No.329/Edu(T) dated Calcutta 20th May, 1986. The relevant requisition of the Government reads such:-
"Government of West Bengal Higher Education Department Appointment Branch Bikash Bhavan, Salt Lake, Kolkata-91 REQUISITION FORM FOR ADVERTISEMENT
1. Name of the post and service Principal in WBSES
2. No. of vacancies (anestimate of probable future vacancies should also be given) 1 One Qualification: In terms of this Deptt.
A) Academic and experience : Notification No.329-Edn(T) dt. 20.5.1986
(ii) Desirable Do
B) Age (The prescribed lower Between 35 and 50 years on
and/or Upper age limit the 1st January of the year of
should be clearly indicated) advertisement. Relaxable by 5
years for SC/ST candidates &
3 years for B.C. candidates.
Whether the age limit is Age is relaxable for persons
relexable in any case other holding substantive
than appointment under the
teaching branch of Education
Deptt., Govt. of West Bengal
Bengal........ Also relaxable for
exceptionally highly qualified
candidates.
38
Signature of the Appropriate Authority
Sd/- Jawhar Sircar, IAS
Principal Secretary
Higher Education Department
Government of West Bengal
Since on record all materials came before the learned Tribunal and parties advanced their respective arguments and got proper opportunity of hearing, the question as raised by Mr. Gupta Senior Advocate, on behalf of the writ petitioner that learned Tribunal traveled beyond pleading by considering the said issue, has no legal basis and substance. There is no doubt that Court/Tribunal as a general principle should travel on the basis of pleading of the parties, but there is no embargo before any Court or Tribunal to consider any issue which will crop up from the records and thereby to direct the parties to answer the question. Every Court has liberty to frame question for effective adjudication of the issue and for ends of justice to deal with that point by giving opportunity of hearing to the parties. Reliance is placed to the judgement passed in the case V. K. Majotra v.
Union of India reported in (2003) 8 SCC 40 para 8; Som Mittal v. Government of Karnataka reported in (2008) 3 SCC 574, a judgement of three Judges Bench. In Som Mittal(supra) the apex Court held in paragraph 11 to this effect that for necessity to decide an issue not raised by the party, Court may do so after notifying the parties, so that they can argue on such issue.
In V. K. Majotra (supra), the Apex Court held that additional point not pleaded, could be raised by the writ Court subject to providing of opportunity of 39 hearing to the affected parties, but it should be in rare cases when facts and circumstances require such.
In the instant case, the parties got opportunity to argue on that point and records were considered by the learned Tribunal. In view of admitted position, we are not finding any merit to consider the argument of learned Senior Advocate Mr. Gupta. Hence, question No.3 is answered against the writ petitioner.
So far as point No.4 is concerned about age relaxation issue, it appears from the recruitment rule and the advertisement issued by the Public Service Commission that candidate must be within the age range of 35 to 50 years, on 1st January of the year of advertisement and it could be relaxable for candidates possessing exceptional high qualification and for persons holding substantive appointment in the teaching branch of Education department.
From the application of the writ petitioner, it appears that there is an endorsement by the clerk that the writ petitioner was over age by 2 years 1 month. This age was required to be relaxed by the proper body. Rule provide age relaxation clause. Since the Public Service Commission is the selecting body, obviously such age relaxation to be done by the Public Service Commission. Public Service Commission is constituted by many members, as such any decision for age relaxation for consideration of the candidature of a candidate who is over age, is required to be taken by the commission itself as a body. 40 Records of the commission has been produced wherefrom it appears from official note sheet that there was no such decision by Commission relaxing over age of the writ petitioner by taking a decision in a meeting of whole body. Only there is a noting in the note sheet in the secretary level that age relaxation issue should be approved, but there is no such approval by the Commission itself, save and except one endorsement while recommending the name of the writ petitioner that over age was relaxed. That will not satisfy the condition stipulated in the recruitment rule as well as in the advertisement. Recruitment rules mandates that candidate must be of exceptional high qualification. There is no such opinion expressed by the commission to that effect. Further more there is no such endorsement by the commission itself namely the entire body who constituted the commission by assigning reason of age relaxation. The relevant note sheet from the Public Service Commission as produced read such:-
"Advt. No.4(2)/2005 Name of the post -Principal, Government College of Art & Craft, Kolkata in W.B.Sr. E.S No. of vacancies- 1 (One) [Unreserved] Pay : Rs.16,400/- - Rs.22,400/- with higher initial pay of Rs.17,300/-.No. of application received- 11
No of belated application - 1 [application No.11] Closing date for receipt of application- the 18th March, 2005 No of SC/ST/BC/PH candidates- 3 S.C & 1 B.C candidates In response to commission's advertisement No.4(2)/2005 for rectt. To a permanent post of principal, Government College of Art & Craft, Kolkata in W.B.Sr.E.S, 11 applications have been received. All those applications along with their precis are placed below for perusal.
On scrutiny, it appear that the candidate bearing appl. No.6 fulfils the advertised qualifications. He is straightway eligible for interview.41
Two candidates bearing application nos.3 & 9 are over aged but exceptionally well qualified. Applicant No.3 lacks E.Q (ii) (b) i.e., adequate administrative experience but it appears that he is a candidate of outstanding merit. So they may be called to interview.
Candidate bearing appln. No.10 also lacks E.Q (ii) (b) but may be called to interview as it appears that he is also a candidate of outstanding merit. It may be mentioned here that the S.C certificate issued in favour of the candidate dated 16.4.1984 by the then Dist. Magistrate of Midnapore, Sri Amit Kiran Deb, is not in proper format.
So if approved, a total of 4 candidates may be called to interview.
The cases of the candidates bearing appln. nos. 1,2,4,5, 7 & 8 may be passed over as they did not fulfil the requisite advertised qualification. [appln. No.2 & 5 are also over aged]. The case of the remaining candidate bearing appln. No.11 may be passed over also as his application came too late.
For the purpose of interview a board may be constituted and date and time of interview be fixed. An adviser may be chosen from the list of advisers placed below. The name of the Govt. representative is yet to be known. A reference may be made to the Higher Education Deptt. In this regard.
For orders.
Sd/- Illegible 19.5.2005.
" Notes from pg 3 ante This is in relation to selection against one unreserved vacancy in the post of Principal for Govt. College of Art & Craft, Kolkata in W.B.S.E.S. against Advt. No.4(2)/2005. The scale of pay for the post if Rs.16,400 - 22,400/- with higher initial pay of Rs.17,300/-.
The age clause in the advertisement is ' Between 35 ad 50 years on 1.1.2005, relaxable for candidate possessing exceptionally high qualifications for persons holding substantive appointment in the teaching branch of the Education Department, Government of West Bengal'.
It appears that following 7 (seven) candidates appear to fulfil the advertised qualifications:-42
Application nos. 3 (prov.), 4, 5 (OA), 6 (SC), 8 (Prov.), 9(OA) & 10(SC)= 7 candidates, 3 candidates may be called provisionally due to reasons shown in detail at 'P' on page 5 ante. As regards application No.11(SC), it appears that the date stamp on the application shows that the application had been received in our office on 30.3.2005, although the closing date for receipt of application was 18.3.2005. However, the date of submission of application by the candidate below the declaration shows to be 12.3.2005.
The Commission may either consider it as a belated application and pass over his candidature, or its eligibility for being called to interview may be judged by the Commission. As regards teaching experience of the candidate it appears that he is serving at a Government Institute, viz. Shyampahari Govt. Primary Teachers' Training Institute as an Art & Craft Teacher since 5.8.1999. If on consideration of his date of submission of application as 12.3.2005 the Commission agrees to accept his candidature for this post, he may also be called to interview along with 7 candidates mentioned over leaf as he fulfils other qualifications required for the post.
The above suggestion being approved, in all, 8 candidates are required to be called to interview. Item (ii) (b) viz. ' adequate administrative exp.' And item (iv) viz. 'outstanding ability ....... Significant research work' of the advt. May be treated at the Interview Board.
The candidature of remaining 3(three) candidates who do not fulfil all the requirements of the advertisement may be passed over.
Candidates may be selected for which an Interview Board may be constituted, date and time fixed and list of advisers at fg. 'A' below 2(two) Advisers may be selected.
Principal Secretary, Higher Education Department may also be requested to depute an appropriate officer not below the rank of Joint Secretary as his nominee in the Interview Board.
For approval and orders.
Sd/- K. Roychoudhury, Secretary 8.12.05 Notes prepage and above.
The matter of selection of candidates through interview of the post of Principal, Government College of Art & Craft, Kolkata in W.B.S.E.S has been pending since long due to certain reasons viz. Finding out list of experience as also the time constraints for holding the interview. Altogether there are 11 applications. All the applications are placed along with the file. In terms of the advertisement No.4(2)/2005 candidates 43 bearing aplication No.3 (prov.) No.4, No.5 (OA), No.6(SC), No.8(prov), No.9 (OA) and No.10 (SC). Altogether 7 candidates may be called to interview, if approved. Candidature of application No.11(SC) has been received after the expiry of the due date of closing and hence may not be accepted. Items like
(ii) (b) viz. Adequate administrative experience and item (iv) viz. Outstanding ability ...... significant research work of the advertisement clause may be tested at the interview board. Since the post is in West Bengal Senior Education Service in the scale of 16,400-22,400 with higher initial pay of Rs.17,300/-, Hon'ble Chairman may like to hold the interview himself. Hence, an Interview Board may be constituted some time after the first week of July as convenient to the Chairman. Two advisers from the list placed at flag 'A' may kindly be chosen for the interview. Secretary, Higher Education Department would be asked to remain present in the interview.
Post Title :Principal, Government College of Art & Craft, Kolkata in
W.B.S.E.S
Pay Scale : Rs.16,400/- - Rs.22,400/-
Vacancy : 1 (Unreserved)
Advertisement No. 4/2005
_______________________________________________________________ There were 7 (seven) eligible candidates of whom 2 (two) were overage (applications nos.5 & 9). They were allowed to appear for the interview by age relaxation in view of their holding substantive appointment in the teaching branch of the Education Department, Government of West Bengal in accordance with the age clause of the advertisement.
2. Interview was held on 2.8.2006 with Shri Biman Das, Retired Principal, Government Art College and Shri Bijan Choudhury, Eminent Artist and Vice President, Rajya Charukala Parshad acting as advisers. Dr. S.S. Sarkar, Director of Public Instructor was the Government Representative.
3. Of the 7(seven) candidates called for interview Shri Akhilendu Bhowmik (Application No.5) did not appear.
4. The candidates were graded as below:-
Sl. Applicati Name Marks No. on No. obtained 1. 3 Gopal Prasad Mandal 50 2. 4 Sudip Saha Unfit 3. 5 Akhilendu Bhowmik Absent 4. 6 Manoj Kumar Sarkar (S.C) 54 5. 8 Gautam Kar 51 6. 9 Kamalaksha Gangopadhyay 65 44 7. 10 Subimalendu Bikas Sinha (S.C) 44
5. The Interview Board recommended Shri Kamalaksha Gangopadhyay (Application No.9) for the unreserved post of Principal, Government College of Art & Craft, Kolkata in the W.B.S.E.S. His name may be forwarded to the Government.
6. The Interview Board also empanelled the following candidates in order of merit as shown below:-
i) Shri Manoj Kumar Sarkar (S.C) (Appln. No.6)
ii) Shri Gautam Kar (appl.n No.8)
iii) Shri Gopal Prasad Mandal (Appln. No.3).
7. The above 3 (three) names need not be sent to the Government at this stage.
Sd/- Illegible Members Sd/- Shri S. N. Nandi Sd/- Dr.C.R. Maity Sd/- M. M. Alam Sd/- Shri B. Sarkar"
On bare reading of those it is clear that age relaxation issue was not considered by the Public Service Commission, a body, constituted with so many members prior to interview of candidates and even thereafter. The point of age relaxation is accordingly answered against the writ petitioner which touches the eligibility point to appear before the interview board.
So far as question No.(v) is concerned, it appears from the records that in the respective score sheets marks as allotted by respective three members in the interview Board, namely the Chairman of the Public Service Commission, the ex-
principal of the College who was an expert and another expert Sri Chowdhury, relating to all candidates who appeared in the interview Board on 2nd August, 2006, except Sudip Saha, were identical. Sri Sudip Saha was marked as unfit by 45 the Chairman, but he was granted 20 marks by other two members. From the documents as produced namely, the score sheets, it further appears that there are over writing in the marking by two expert members.
It is expected that Public Service Commission should act fairly, reasonably and without any bias and should recommend a best candidate to the post of Principal of said College in Higher Education service cadre. Public Service Commission is constituted by the constitutional provision. Accordingly, it should discharge its constitutional function taking note of constitutional provision and they should not be biased to anybody. The establishment of Public Service Commission, for the purpose of selecting candidates for public office of the Central and/or State Government, is with an idea that independent merit selection to be done for recommending best candidate, so that best merit is utilised for public service. Regarding action of Public Service Commission and its working functional gravity, exhaustively was dealt with by Apex Court. "Spoil system principle" as was prevalent in the USA was discussed to assess working defect of Commission in the case State of Bihar V. Upendra Narayan Singh & Ors. reported in 2009(5) SCC 65. The relevant portion of said report reads such:-
"Spoils system-A bird's eye view
33. in the 17th and 18th centuries a peculiar system of employment prevailed in America. Under that system, leaders of the political party which came to power considered it to be their prerogative to appoint their faithful followers to public offices and remove those who did not support the party. The system was developed min New York and Pennsylvania more than elsewhere, largely because of the existence min those States of a large body of apathetic non-English 46 voters. In New York, the ill-devised council of appointment had much to do with the growth of this system. In the Federal Government, Jefferson implemented this system to a large extent. The prescription of a four-year term for various offices considerably increased appointment of political faithful to public offices and positions. The politicians who surrounded Jackson brought this system to its full development as an engine of party warfare. Since then it became a regular feature in every administration.
36. President Rutherford B. Hayes was enamoured of reform and began to use competitive examinations as a basis for appointments. In 1881, a spurned office-seeker shot and killed President James A. Garfield. His death provoked further public outcry for civil service reform and paved way for passage of a Bill introduced by Senator George H. Pendleton of Ohio. His Bill became the Civil Service Act of 1883 and re-established the Civil Service Commission. The Act rendered it unlawful to fill various federal offices by the spoils system. Since then, much has been done to avoid the evils of the system. Federal civil service legislation has been greatly expanded. Many municipalities and States have made training and experience as a condition precedent for appointment to public offices.
38. With a view to insulate the public employment apparatus in independent India from the virus of spoils system, the framers of the Constitution not only made equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen but also enacted a separate part i.e. Part XIV with the title "Services under the Union and the States". Article 309 which finds place in Chapter-I of this part envisages enactment of laws by Parliament and the State Legislatures for regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Proviso to this article empowers that President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and the Governor of a State or such person as he may direct in the case of services and posts and in connection with the affairs of State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts till the enactment of law by the appropriate legislature.
39. Article 311 which also finds place in the same chapter gives protection to the holders of civil posts against dismissal, removal or reduction in rank by an authority subordinate to the one by which they are appointed. This article also provides that an order of dismissal, removal or reduction is rank can be passed only after 47 holding an inquiry and giving reasonable opportunity of hearing to the affected person.
40. The provisions contained in Chapter II of Part XIV relate to Public Service Commissions. Article 315 mandates that there shall be a Public Service Commission for the Union and a Public Service Commission for each State. Article 320(1) casts a duty on the Union and the State Public Service Commissions to co9nduct examinations for appointments to the services of the Union and the State respectively.
41. Clause (3) of Article 320 makes consultation with the Union Public Service Commission or the State Public Service Commission, as the case may be, mandatory on all matters relating to methods of recruitment to civil services and for civil posts, on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers, on all disciplinary matters of a State in a civil capacity, including memorials or petitions relating to such matters, on any claim by or in respect of a person who in serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of the State, on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award. This clause also casts a duty on the Public Service Commissions to advise on any matter referred to them by the President or the Governor.
42. However, the hope and expectation of the framers of the Constitution that after independence every citizen will get equal opportunity in the matter of employment or appointment to any office under the State and members of civil services would remain committed to the Constitution and honestly serve the people of this country have been believed by what has actually happened in last four decades. The Public Service Commissions which have been given the status of constitutional authorities and which are supposed to be totally independent and impartial while discharging their function in terms of Article 320 have become victims of spoils system.48
43. In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service Commissions but with the passage of time appointment to these high offices became personal prerogatives of the political head of the Government and men with questionable background have been appointed to these converted positions. Such appointees have, instead of making selections for appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors totally unmindful of their constitutional responsibility. This is one of several reasons why most meritorious in the academics opt for private employment and ventures.
45. Thousands of cases have been filed in the courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by the virus of spoils system in different dimensions and selections have been made for considerations other than merit. "
From said report, it appears that already it is in anxious notice of judiciary that the Public Service Commission, being a constitutional body, when requires to perform its function fairly, reasonably, properly and independently, is acting as an agent of the Government to satisfy its mentor, the Political party in power. On perusal of score sheets, despite legal position that allotment of marks by the interview board cannot be the subjective consideration for merit review, it is explicit ex-facie due to fact of identical marking by respective three members of interview board that decision making process to select a particular candidate was earlier decided prior to interview and thereby in interview Board by showing marks in score sheet in said manner, selection process was completed. The Court 49 of law in such situation will not shut eyes refusing judicial scrutiny. The score sheets of three persons who were in the interview board read such:
"List of candidates called to interview for recruitment to a permanent unreserved post of Principal, Govt. College of Art and Craft, Kolkata in W.B. Senior Educational Service. Pay : Rs. 16,400/- Rs. 22,400/- with higher initial pay of Rs. 17,300/-. Age and qualifications relaxable. A panel will also be prepared. N.B. : Eq. (ii) (b) and (iv) may kindly be tested by the Board.
Date & Time of Interview : The 2nd August, 2006 at 11-30 a.m. & 2-30 p.m. Hon'ble Chairman 1 3 Gopal Prasad Mandal 50 2 4 Sudip Saha Unfit 3 5 Akhilendu Bhowmil Absent 4 6 Manoj Kumar Sarkar (SC) 54 5 8 Goutam Kar 51 6 9 Kamalaksha Gangopadhyay 65 7 10 Subimalendu Bikas Sinha (SC) 44 Sd/- Chairman "List of candidates called to interview for recruitment to a permanent unreserved post of Principal, Govt. College of Art and Craft, Kolkata in W.B. Senior Educational Service. Pay : Rs. 16,400/- Rs. 22,400/- with higher initial pay of Rs. 17,300/-. Age and qualifications relaxable. A panel will also be prepared. N.B. : Eq. (ii) (b) and (iv) may kindly be tested by the Board.
Date & Time of Interview : The 2nd August, 2006 at 11-30 a.m. & 2-30 p.m. Adviser Sri Das 1 3 Gopal Prasad Mandal 50 2 4 Sudip Saha 20 3 5 Akhilendu Bhowmil X 4 6 Manoj Kumar Sarkar (SC) 54 5 8 Goutam Kar 51 6 9 Kamalaksha Gangopadhyay 65 7 10 Subimalendu Bikas Sinha (SC) 44 Sd/- Sri Das 50 "List of candidates called to interview for recruitment to a permanent unreserved post of Principal, Govt. College of Art and Craft, Kolkata in W.B. Senior Educational Service. Pay : Rs. 16,400/- Rs. 22,400/- with higher initial pay of Rs. 17,300/-. Age and qualifications relaxable. A panel will also be prepared. N.B. : Eq. (ii) (b) and (iv) may kindly be tested by the Board.
Date & Time of Interview : The 2nd August, 2006 at 11-30 a.m. & 2-30 p.m. Adviser Sri Choudhury 1 3 Gopal Prasad Mandal 50 2 4 Sudip Saha 20 3 5 Akhilendu Bhowmil 4 6 Manoj Kumar Sarkar (SC) 54 5 8 Goutam Kar 51 6 9 Kamalaksha Gangopadhyay 65 7 10 Subimalendu Bikas Sinha (SC) 44 Sd/- Sri Choudhury Now we have to deal with the judgment passed by the learned Tribunal below. It appears that tribunal allowed original application filed by the respondent No.4 herein, on considering two points namely bias action by one member of the interview board who was an ex-Principal of the College and secondly that in the advertisement desirable qualification was deleted on breach of recruitment rules. So far as bias is concerned, it appears from the records that though the gentleman against whom biased attitude was pleaded in the pleading, but he was not made as a party in the application. But issue in his absence could be dealt with in the angle of malice in law by identifying the whole selection body's action. Malice in law is a legal principle which could be applied to identify the issue when there is an action of decision making body without following fairness, reasonableness and transparency principle. As already discussed that 51 writ petitioner approached present Director of Public Instruction whose presence was sought for in interview board, prior to filing of his application in the service commission and in the interview board one ex-Principal of the College was present against whom it is alleged favouritism for writ petitioner to select him.
Malice in law does not require to be proved in angle and in identical degree of appreciation in case of malice in fact. "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite, it is a deliberate act in disregard to the rights of others". The above words are quoted from paragraph 12 of the judgement passed in the case State of A.P vs. Gobordhan Lal Pitti reported in (2003) 4 SCC 739 which has been relied upon in the case West Bengal State Electricity Board vs. Dilip Kumar Ray reported in (2007) 14 SCC 568. Conceptual theory of malice in law and its ingredients analysis, have been noticed by the Apex Court recently in the case Kalabharati Advertisement vs. Hemant Vimal Nath Nari Chania & ors. reported in (2010) 9 SCC 437. Para 25 of which read such:
"25. The State is under obligation to act fairly without ill will or malice-in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an 52 oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla, S.R. Venkataraman v. Union of India and W.B. SEB V. Dilip Kumar Ray)."
In the instant case though there is a technical defect non-adding the concerned ex-Principal who was in the interview board as a party in the proceeding against whom allegation was made, but still from the records it is reflected that the members of the interview board did not act fairly, properly and reasonably to make proper selection of a candidate on merit. The Public Service Commission was determined to select the writ petitioner which is explicit from different documents and acts namely (i) letters canvassing to the Director of Public Instruction who was in the interview board (ii) age relaxation point not processed as per law by commission as a body (iii) the essential qualification that candidate should be an artist of fine art branch though was not satisfied but writ petitioner was allowed to appear in selection process (iv) desirable qualification was omitted in the advertisement on breach of recruitment rule and the State Government's direction. (v) merit review of respective candidates was not done taking note of relevant factors. Hence, we may fairly conclude that selection process was unfair, unreasonable and not transparent to lead the result 'malice in law'.
53
So far as omission of desirable clause from the advertisement the learned Tribunal below has considered the issue at length. Since there is a recruitment rule framed under Article 309 of the Constitution of India, nobody can deviate from the recruitment rules. The desirable qualification was not published in the advertisement which breached recruitment rule and also Government's requisition which categorically stipulated to follow the recruitment rule in strict sense by advertising the essential qualification and also the desirable qualification as per recruitment rule. It is a settled legal position that any breach of recruitment rule goes to the root of the matter, particularly the qualification issue which cause a resultant effect to make selection process void.
It is settled law that Government even by exercising executive power under Article 162 of the Constitution of India cannot breach the recruitment rule framed under Article 309 of the Constitution of India. Reliance is placed to judgement passed in the case B. N. Nagarajan & Ors. v. State of Kerala reported in AIR 1979 SC 1676, a judgement of three Judges Bench which has been relied and applied in the case Secretary of State of Karnataka v. Uma Devi -III reported in (2006) 4 SCC 1, a judgement of constitution bench. Paragraph 5 of the B. N. Nagarajan(supra) read such:
"When rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive power of the Government under Article 162 thereof in contravention of the rules............ what could not be done under three sets of rule as they sought, would thus be achieved by a executive fiat and such a course is not permissible because any act done in the exercise of the executive 54 power of the Government as already stated cannot override rules framed under Article 309 of the Constitution of India."
The same view reechoed in the case A. Umarani v. Registrar, Co-operative Society reported in (2004) 7 SCC 112. The same principle of law is applicable in the instant case though the factual issue was regularization in those cases. It is also a settled legal position that statutory rule cannot be modified or altered by executive instruction. Reliance is placed to the judgement passed in the case Punjab State Warehousing Corporation Vs. Manmohan Singh reported in (2007) 9 SC 337(para 12 at pages 340-41 of SCC) which read such:-
"Further more, when terms and conditions of the services of an employee are governed by the rules made under a statute or the proviso appended to Article 309 of the Constitution of India laying down the mode and manner in which the recruitment would be given effect to, even no order under Article 162 of the Constitution of India can be made by way of alterations or amendments of the said rules. A fortiori, if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India, the same cannot be done by way of a circular letter."
The apex Court while dealing with the said case relied upon the case State of Uttaranchal v. Alok Sharma & Ors. reported in (2009) 7 SCC 647. In the instant case the ratio decidendi of the aforesaid two judgments are squarely applicable. Here Public Service Commission a body constituted in terms of the Constitution and concerned act, had no power even alike to the power under Article 162 of the Constitution of India as available to the State Government, to pass any executive decision, as such, Public Service Commission being a recommending body for selecting a candidate was bound to follow the 55 recruitment rules in terms of direction of the appointing authority, the State Government and no breach was permissible.
It is also a settled legal position that a statutory body must perform its function within the contour of Statute. Reliance is placed to the judgement passed in the cases Meera Sahni v. Left. Governor of Delhi & Ors. reported in (2008) 9 SCC 177, Union of India v. International Trading Company & Anr. reported in (2003) 5 SCC 437, Ram Deen Maurya (Dr.) v. State of U.P & Ors. reported in (2009) 6 SCC 735 (para 41) wherein reference made to the judgement Dhananjoy Reddy vs. State of Karnataka reported in (2009) 4 SCC 9. The root cases of Taylor vs. Taylor reported in (1875) 1 Ch. D 426, Nazir Ahmed v. King Emperor reported in AIR 1936 Privy Council 253, were relied upon in those cases. The author Earl T. Crowford in the book The Construction of Statutes, 1940 edition, by Thomas Law Book Company, has dealt with the point by holding that the statutory body must act in terms of the statute. Relevant paragraph read such:
"195. Express Mention and Implied Exclusion (Expressio Unius Est Exclusio Alterious. - As a general rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another thing. If therefore logically follows that if a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect. If the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited."56
The same view considered in the case Moniuruddin Bapari vs. The Chairman Municipal Commissioner, Dacca reported in AIR 1949 Calcutta 20. Identical view expressed in the case Bhavnagar University v. Palitana Sugar Mills Ltd. reported in (2003) 2 SCC 111, in the case S. R. Tewari vs. The District Board, Agra reported in AIR 1964 SC 1680. It is a basic statutory principle of administrative law that a statutory body must act within the periphery of statutory provision. An individual may perform all actions except those as are prohibited by law, whereas a statutory body requires to act always with reference to its actions specified and identified in a statute. Here Public Service Commission is a body constituted under the West Bengal Public Service Commission Act to select a best candidate in public service on the basis of requisition as to be made by the State Government following recruitment rules existing in the field. Public Service Commission had no choice to omit desirable qualification which is a qualification specified in the recruitment rule for appointment of the concerned post. Hence, their action omitting desirable qualification in the advertisement goes to the root of the matter by breach of the recruitment rules. Hence, the subsequent action of selection became void ab initio.
Learned Senior Advocate Mr. Gupta for the petitioner however, intended to justify that non-publication of desirable qualification in the advertisement did not prejudice anybody as interview board considered desirable qualification while selecting the candidate for the post in question. From the records produced by 57 the Public Service Commission, it does not appear that interview board considered desirable qualification. Only thing appears from the records that all members of the interview board totaling three in number allotted identical marks to the respective candidates who appeared. The question of prejudice principle as has been argued by learned Advocate for the writ petitioner is not applicable in the instant case, since it is not at all a question of prejudice, but it is a question of breach of recruitment rules framed under Article 309 of the Constitution of India and the breach of conditions stipulated in requisition made by the State Government, an appointing authority, to publish advertisement in the manner as per rule by mentioning notification number and date of rule. Public Service Commission, a recommending body, had no power to do anything contrary to the requisition made by appointing authority directing to follow rule and the terms and conditions of the recruitment rules. The action of service Commission is required to be performed in terms of statutory provision and its function is controlled by the statute namely the West Bengal Public Service Commission Act, where there is no provision granting power to relax and/or omit any qualification contrary to the recruitment rule. It is a settled legal position that a statutory body must perform its duty within the framework of the statute and it cannot travel beyond that. Case laws earlier discussed.
It appears from the records further that essential administrative experience also was not looked into and considered in its proper perspective for a post of Principal. The respondent No.4 was appointed as a lecturer of Art College long 58 back and was promoted to respective higher posts in the service ladder. He worked as Principal-in-charge and gained adequate administrative experience for the post, whereas writ petitioner simply was a lecturer for 5 years at the time of filing application. It is true that Court of law will not make any merit review of selection but within the domain of judicial review if any fact explicitly leads to non-compliance of fairness and reasonableness concept, surely the Court of law will take judicial notice to reach a conclusion under scanner of judicial review. In the instant case an experienced teacher in the field of fine art having teaching experience of so many years including administrative experience working as Principal-in-charge and in other side a teacher of commercial art having an experience of 5 years only, hence adjudication in the field of administrative experience an essential qualification was not at all fairly dealt with and considered by Service Commission, which fact satisfied action arbitrary and unreasonable whereby decision making process is attracted by principle of reasonableness and fairness doctrine. Hence, we are of the view that action of Public Service Commission and Interview Board selecting writ petitioner was arbitrary, unreasonable, unfair and tented with malice in law.
Having regard to the aforesaid findings and discussion, we are not findings any merit in this writ application to interfere with the impugned order passed by the learned Tribunal below quashing the entire selection process, recommendation by Commission, as well as appointment of the writ petitioner in the post of Principal of concerned college and thereby directing de-novo selection 59 with eligible candidates by constituting a separate interview board wherein no person who was attached with the Art College should remain, except modification of order on denovo selection process, as ordered below.
It appears from the argument of the parties that the respondent No.4 would retire on 31st January, 2012. For ends of justice if we do not consider the present position of his service status to expedite selection process, his long fight assailing selection of the writ petitioner will be nothing but a paper fight without any result. Hence, selection process should be completed immediately within the time frame. Having regard to such situation, we are directing West Bengal Public Service Commission to constitute an interview board following rule 5(iv) of West Bengal Public Service Commission Rules of Procedure by constituting members of service commission, experts and government nominee who earlier were not in the selection process on or before 30th December, 2011 positively. The State Government and particularly Principal Secretary, Higher Education Department, Government of West Bengal is also directed to send one representative who was not present in earlier interview board before 30th December, 2011 to the Public Service Commission. The Public Service Commission particularly the Chairman will take all steps to fix up the interview date and to complete it on or before 7th January, 2012 and he will take steps to advertise vacancy as per recruitment rule relating to essential and desirable qualification by fixing last date of submission of applications 4th day of January, 2012. Since the vacancy earlier was advertised by advertisement No.4/2005 in different newspapers having State 60 wide publication and in view of shortage of time this Court directs the Public Service Commission to make necessary advertisement by stating that same is in continuation of advertisement No.4/2005 and by mentioning only the essential qualification and desirable qualification with a note that other condition will follow as per earlier advertisement. The Secretary, Public Service Commission is directed to send the advertise materials as to be published to the Department of I& C.A, Government of West Bengal forthwith. The Principal Secretary of the said department and/or the concerned officer dealing with the issue will take steps to publish the advertisement in four daily newspapers of wide publication, two Bengali namely Ananda Bazar Patrika and Bartaman and two English newspaper The Statesman and the Times of India indicating time last date of filing application. The candidates who earlier applied and whose applications as per rule are entertainable for consideration satisfying all conditions and qualifications as per rules need not to apply afresh and age will not be bar for them if one of them is selected for the post and thereby service commission will recommend the name of a best meritorious candidate to the State Government by 10th January, 2012. The State Government is directed to consider the recommendation within 3 days thereafter from the date of receipt of the recommendation which to be sent by Special Messenger by the Public Service Commission, so that Hon'ble Governor may pass appropriate appointment letter to the best meritorious candidate on or before 15th January, 2012. 61
The Tribunal has set aside the appointment of writ petitioner to the post of Principal which we have not disturbed and as a result thereof during pendency of writ application another Teacher has been appointed as Principal-in-charge. Since the respondent No.4 earlier was Principal-in-Charge prior to issuance of appointment letter in favour of the writ petitioner which now stand quashed, State Government namely Principal Secretary, Higher Education Department is directed to allow the respondent No.4 to continue as Principal-in-Charge forthwith till the selection process, recommendation and appointment issue is completed as per direction of the Court. Necessary order to be passed by State Government forthwith.
Before parting with the matter, we are constrain to say that the manner and fashion in which the Public Service Commission has dealt with the selection process of a candidate of Higher Educational Service is not appreciable. There is lack of transparency in view of inclusion of many new documents not attached in the file of the Public Service Commission, but produced in the Court by Public Service Commission annexing those in the file. As already discussed Public Service Commission is a body constituted under the Constitution of India to recommend proper and meritorious candidate in public service and their duty is to act independently. The conduct of the Public Service Commission in this case is alike in the nature of mis-behaviour on their part. It is expected Public Service Commission may discharge its function properly.
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Having regard to the gravity of the post which is Principal, Government College of Art and Craft, in West Bengal Senior Educational Service, it is desirable that in terms of recruitment rule issued under notification No.329- Edn.(T) dated Kolkata 20th May, 1986, proper marking system should be introduced on different sub-heads of the qualifications, both essential and desirable, so that arbitrary marking at random by allotting identical marks by the members of the interview board including the experts could be avoided to secure and safeguard the selection process transparent.
With the aforesaid findings and observation and by modification of the Tribunal's order to the extent as discussed above the writ application stands disposed of.
(Pratap Kumar Ray, J.) I agree, (Md. Abdul Ghani, J.) 63 LATER:
Since Public Service Commission and State Government are represented, the order will be effective from this date. There is no necessity of further communication.
The ordering portion of this judgement, if applied for, be given to the learned advocates appearing for the parties.
(Pratap Kumar Ray, J.) (Md. Abdul Ghani, J.)