Calcutta High Court (Appellete Side)
Asoke Ghoshal Choudhuri vs The State Of West Bengal & Ors on 18 March, 2016
W.P. No. 30806 (W) of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Asoke Ghoshal Choudhuri
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Durga Prasad Dutta, Advocate
Mr. Souvik Sen, Advocate
For the State : Mr. Pantu Deb Roy, Advocate
Mr. Subrata Guha Biswas, Advocate
For the Respondent No. 3 : Mr. Amitava Chaudhuri, Advocate
Mr. M. Chaudhuri, Advocate Ms. Annesha Kar Gupta, Advocate For the Respondent Nos. 4 & 5 : Mr. B.M. Goswami, Advocate For the Respondent No. 6 : Mr. S. Ghosh, Advocate For the Respondent No.7 : Mr. M.M. Das, Advocate Mrs. Reshmi Rehman, Advocate Hearing concluded on : March 8, 2016 Judgment on : March 18, 2016 DEBANGSU BASAK, J.:-
The petitioner has challenged the promotion of the respondent nos. 6 and 7 to the post of Accountant and Cashier of the college. According to the petitioner, he is senior to the respondent no. 7. The appointment to the posts of Accountant and Cashier has to be undertaken on the basis of seniority. The two posts are promotional in nature. The petitioner had participated for the selection for both the posts. He has been unfairly denied the promotion.
It has been contended on behalf of the petitioner that, the panel for the selection process was not appropriately constituted. The first statute of the university has been relied upon in support of such contention. Reliance has also been placed on 1988 (Supp.) Supreme Court Cases page 562 (State of Andhra Pradesh & Anr. v. Dr Mohanjit Singh & Anr.) as well as 2013 Volume 12 Supreme Court Cases page 179 (State of Uttaranchal & Anr. v. Shiv Charan Singh Bhandari & Ors.) in this regard.
It has been submitted on behalf of the college authorities that, the petitioner had participated for two posts unconditionally. He has been unsuccessful. As an unsuccessful candidate he cannot be allowed to challenge the selection process. Reliance in this regard has been placed on 2008 Volume 4 Supreme Court Cases page 171 (Dhananjay Malik & Ors. v. State of Uttaranchal & Ors.) and 2006 Volume 6 Supreme Court Cases page 395 (K.H. Siraj v. High Court of Kerala & Ors.). The college authorities have also produced the records being the minutes of the Governing Body dealing with the appointment.
On behalf of the respondent no. 6 it has been submitted that, the petitioner was given initial appointment on August 21, 2000 as that of the respondent no. 6. The respondent no. 6 has been promoted to the post of Accountant. Therefore, there is no infirmity in the promotion of the respondent no. 6.
On behalf of the respondent no. 7 it has been contended that, the petitioner having participated in the selection process cannot be allowed to challenge the same. In support of such contention reliance has been placed on 1986 (Suppl.) Supreme Court Cases page 285 (Om Prakash Shukla v. Akhilesh Kumar Shukla & Ors.), 1995 Volume 3 Supreme Court Cases page 486 (Madan Lal & Ors. v. State of J & K and Ors.), 2006 Volume 6 Supreme Court Cases page 395 (K.H. Siraj v. High Court of Kerala & Ors.) and 2007 Volume 11 Supreme Court Cases page 522 (Marripati Nagaraja & Ors. v. Government of Andhra Pradesh & Ors.).
Om Prakash Shukla (supra), Madan Lal & Ors. (supra), K.H. Siraj (supra), Marripati Nagaraja & Ors. (supra) and Dhananjay Malik & Ors. (supra) have held that, a candidate who has participated in a selection process without protest is estopped from challenging such selection process. The challenge made by the petitioners in such matters was found not sustainable as they had participated unconditionally.
The reliefs sought for by the petitioner are founded upon the contention that the selection process is flawed and that the selection process has not been correctly implemented. A situation may arise where a candidate participating in the selection process discovers subsequent to his participation that the selection process stands vitiated by fraud or arbitrariness or capricious exercise of power or biasness. A candidate who is able to demonstrate, establish and substantiate such allegation in a Court of law cannot be held to be remediless on the plea of estoppel. It is one thing to say that he had participated knowing fully well the alleged irregularities and another to say that subsequent to his participation he has discovered the illegalities. The fact situation in each case has to be seen to adjudge whether the candidate concerned had participated knowing the illegalities and, therefore, estopped from challenging the same or that the candidate has discovered the illegality subsequently and, therefore, entitled to the reliefs. A situation may arise where the petitioner could have discovered the illegalities if he had acted prudently. Such petitioner should not be entertained. However, a person who has discovered the illegalities subsequent to his participation and had no means to discover it despite due diligence prior to his complaint cannot be said to be remediless if he otherwise substantiates his allegations. He is entitled to urge that the authorities have acted arbitrarily in the selection process or that the rules of the selection process were not followed or were misapplied to favour a particular person or to deny him a fair competition.
The Selection Committee ought to have consisted of five members. The nominee of the University was not present at the time of the interview. The first statute does not provide for a quorum of the meeting of the Selection Committee. In the instant case, admittedly four member of the Selection Committee took the interview. The candidature of the respondent nos. 6 and 7 for promotion was approved in such a meeting.
The petitioner herein is senior by at least six years than the respondent no. 7. The petitioner was appointed on August 21, 2000. The respondent no. 6 was also appointed on such dated. The respondent no. 7 was however appointed on July 17, 2006. The two posts of Accountant and Cashier are promotional posts. The seniority of the candidates is one aspect. One of the essential aspects that is required to be taken into consideration, apart from seniority, is the attendance, performance of duties in the post that the candidates were working.
The college authorities have produced the minutes of the meeting in which the candidature of the petitioner and the respondent nos. 6 and 7 were considered. The minutes does not speak of the seniority of any of the three persons being taken into consideration. The minutes also does not take into account the attendance or the performance of the persons concerned at their respective posts. So far as the respondent no. 7 is concerned, the conduct of the respondent no. 7 on ad hoc basis at an officiating post has been taken into consideration. Her performance at her post has not been dealt with.
In my view, the authorities are required to take into consideration the requirements as laid down in the relevant regulations of the candidates concerned and then look into the performance of such person in the ad hoc posts that they had been assigned to.
The contention on behalf of the college authorities that, the essential qualification of a B.Com Graduation is required for an appointment of an Account and Cashier is misplaced. The two posts are offered on promotion. The Government Circular referred to on behalf of the college authorities relates to direct recruitment and would have no application for the purpose of considering promotion.
In such circumstances, the writ petition succeeds. W.P. No. 30806 (W) of 2015 is allowed. The appointment of the respondent nos. 6 and 7 are quashed. The authorities are directed to consider the appointment on promotion as undertaken by them afresh strictly in accordance with law. It is excepted that the authorities will complete the process within six weeks from the date of communication of this order to them. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
[DEBANGSU BASAK, J.]