Calcutta High Court (Appellete Side)
Safiqual Islam vs The State Of West Bengal & Ors on 21 December, 2016
Author: C. S. Karnan
Bench: C. S. Karnan
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice C.S. Karnan.
W. P. No. 32119 (W) of 2014
Safiqual Islam
Versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Rabi Sankar Chattopadhyay,
Mr. Souvik Dutta.
For the Board : Mr.Subir Kumar Sanyal
Mr.Ratul Biswas
Heard On : 20.09.2016
Judgment on : 21.12.2016.
C. S. Karnan, J.:
The brief facts of the case is as follows:-
The petitioner has been constrained to invoke the Extraordinary Writ Jurisdiction of this Hon'ble Court in order to ventilate his grievances and to mitigate his sufferings at the hand of the respondents. The impugned action on the part of the respondent authorities in not issuing appointment letter in favour of the petitioner for the post of assistant teacher in primary school despite getting higher marks than the last appointed candidates in respect of Teachers Eligibility Test 2012 has left the petitioner with no other option but to take out the present writ application.
The petitioner passed the Madhyamik Examination in the year 1989 and the petitioner passed the Higher Secondary Examination in the year 1991. It is stated herein that the petitioner passed the B.A(Part-I Honours) Examination in the year 1993 from the University of Calcutta. It is further stated that the petitioner obtained the degree of Master of Arts from the Netaji Subhas Open University in the year 2007, accordingly, a certificate was issued in favour of the petitioner to that effect. It is further to be mentioned that the petitioner belongs to "Molla Community" which is recognised as a Backward Class (OBC-A), accordingly, caste certificate was issued in favour of the petitioner.
The petitioner states that the petitioner having the requisite qualification and within the prescribed age has participated in the Teachers Eligibility Test 2012 conducted by the West Bengal Board of Primary Education for the post of Assistant teacher in Primary School and the petitioner performed satisfactorily.
The petitioner made an application on 23rd December, 2013 under the Right to Information Act 2005 to the Information Officer, West Bengal Board of Primary Education thereby seeking the respondent authorities to show the petitioner the copy of the OMR answer sheet of the petitioner in respect of the Teachers Eligibility Test 2012.
The Secretary of the Board vide memo no.1248/BPE/2014 dated 6.2.2014 replied to the petitioner's aforesaid application dated 23rd December, 2013 thereby asking the petitioner to deposit Rs.500/- towards requisite cost of production of copy of OMR sheet as sought for by the petitioner, accordingly petitioner made a demand draft in favour of the respondent and the said demand draft was duly received by the said Board. The petitioner states that a copy of the OMR answer sheet of the petitioner in respect of the Teachers Eligibility Test 2012 was given to the petitioner on 10th July, 2014 by the Secretary of the Board wherefrom it appears that the petitioner has obtained 41 marks in the Teachers Eligibility Test 2012. The petitioner made an application on 7th August, 2014 under the Right to Information Act, 2005 to the Information Officer, West Bengal Board of Primary Education thereby seeking information with regard to the marks obtained by the last appointed candidate in unreserved category and related OBC category in the Teachers Eligibility Test 2012 conducted by the West Bengal Board of Primary Education for the post of Assistant Teacher in Primary School.
The petitioner states that the Secretary of the West Bengal Board of Primary Education by memo no.4259/BPE/2014 dated 19.8.2014 intimated the petitioner that the application of the petitioner reached the Board after the expiry of the alleged last date i.e. after 23.12.2013 for receiving such applications which is contrary to the spirit of the Right to Information Act 2005. It is pertinent to point out herein that the respondent authorities relied upon notification no.1860/BPE/2013 dated 10.12.2013 but the copy of the said notification was not provided to the petitioner although it is a settled law that when any authority takes any decision curtailing the rights of any person by relying upon any document, such document should be provided to the affected party.
Since the information as sought by the petitioner under the Right to Information Act 2005 was not provided to the petitioner, thus, the petitioner preferred a statutory appeal before the Appellate Authority on 28.8.2014 thereby seeking information with regard to the marks obtained by the last empanelled candidate in unreserved category and OBC male category in the Teachers Eligibility Test 2012 conducted by the Board.
The petitioner states that the Secretary of the West Bengal Board of Primary Education again by memo no.4470/BPE/2014 dated 12.9.2014 intimated the petitioner that the application of the petitioner reached the Board after the expiry of the alleged last date i.e after 23.23.2013 for receiving such applications which is contrary to the spirit of the Right to Information Act 2005.
The petitioner has been constrained to file a writ petition before the Hon'ble Court vide W.P 29825 (W) of 2014 (Md. Safiqual Islam-vs-The State of West Bengal & Ors) assailing the impugned action on the part of the respondent authorities in issuing the impugned memo no.4259/BPE/2014 dated 19.8.2014 as well as the memo no.4470/BPE/2014 dated 12.9.2014 thereby not providing the information to the petitioner as sought for by the petitioner under the Right to Information Act 2005 on alleged ground as stated herein.
After filing the aforesaid W.P.29825(W) of 2014 (Md. Safiqual Islam-vs.-The State of West Bengal & Ors), the Secretary of the Board has issued the memo no.4687/1(2)/BPE/2014 dated 18.11.2014 thereby informing the petitioner that in the general category last appointed candidates have obtained 39.35 marks and in OBC-A category last appointed candidates have obtained 36.94 marks and in OBC-B category last appointed candidate has obtained 39.26 marks, thus, it is apparent that despite getting 41 marks in Teachers Eligibility Test 2012, the petitioner has not been given the appointment in the post in question whereas the candidates who have got lesser marks than the petitioner have been favoured with the appointment accordingly, preferred interference of this Hon'ble Court is highly warranted.
It is submitted that the petitioner has obtained 41 marks in the Teachers Eligibility Test 2012 and from the aforesaid memo no.4687/1(2)/BPE/2004 it appears that in general category last appointed candidates have obtained 39.35 marks and in OBC-A category last appointed candidates have obtained 36.94 marks and in OBC-B category last appointed candidates have obtained 39.26 marks, thus, it is apparent that despite getting higher marks than the last appointed candidates, the petitioner has not been given the appointment in the post under reference, accordingly, kind intervention of this Hon'ble Court is highly warranted.
It is submitted that the respondents being the state authorities are under obligation to conduct selection process fairly but in the instant case the respondent authorities with an ill-motive to protect the interest of their favoured child have selected huge number of candidates who have got even lesser marks than the petitioner in the recruitment process in question, thus, the action of the respondent authorities are arbitrary, whimsical and violative of Article 14 and 16 of the Constitution of India, thus, the same is not sustainable in the eyes of law.
On behalf of the respondents no affidavit-in-opposition has been filed. The learned counsel appearing for the petitioner submits that the petitioner has made an application under the Right to Information Act to the authorized officer and sought the petitioner's answer sheet in respect of the Teachers Eligibility Test for the year 2012, the same was not furnished, hence, the petitioner made an application to an Appellate Authority who also had not provided the said particulars. The petitioner had obtained pass marks in the Teacher Eligibility test, subsequently the petitioner had participated in the interview, who had obtained 41% marks and he belongs to OBC-B category. The cut off marks for the said category being 39.26% but the petitioner had obtained 41%, as such he is a successful candidate. Therefore, he is entitled to receive an appointment order but the same was not provided by the respondent Board. The learned counsel further submits that the petitioner belongs to the Minority Community by language and religion and he comes under OBC-B category. Further no one is employed from his family either by the State or by the Central Government nor does the family have the finance to start a business.
The highly competent counsel further submits that the respondents have wilfully and deliberately not provided the petitioner's marks particulars and copy of the marks sheet. However, the respondents had given a reason that the petitioner made an application under the Right to Information Act after the expiry of the last dated i.e 23.12.2013. The vague answer provided by the respondents in order to avoid an appointment as a teacher in the Education Board. Hence, the learned counsel entreats the Court to provide suitable direction to issue an appointment letter in favour of the petitioner.
The learned counsel appearing for the respondents submit that the petitioner had obtained 41% marks, as such he was not a successful candidate since the minimum marks 60% in Teachers Eligibility Test for the year 2012. Further, the petitioner made an application under the Right to Information Act to the Inspection Officer as well as the Appellate Authority on 7.8.2014 and 28.8.2014 respectively i.e. after the expiry period dated 23.12.2013. Therefore, the particulars sought for by the petitioner is not maintainable. However, the petitioner was not a suitable candidate as per the Teachers Eligibility Test.
Considering the facts and circumstances of the case, arguments advanced by the learned counsels on both sides and on perusing the annexed documents of the above Writ Petition, it reveals that the general category candidate cut off marks is 39.35%. The OBC-A category, the last appointed candidates cut off marks is 36.94% and in OBC-B category the last appointed candidates cut off marks is 39.26%. The respondents herein have not furnished the cut off marks of the petitioner since the marks particulars are available on the file of the respondent. As such there is lack of service on the part of the respondents, therefore, in the interest of justice and in order to maintain the balance of convenience (social justice) this Court directs the respondents to issue an appointment letter as a Primary Teacher to the petitioner within a period of four (4) weeks from the date of receipt of this order. Accordingly the writ petition is disposed of.
Urgent Xerox certified copy of this judgment, if applied for, be supplied to the learned advocates appearing for the parties.
(C.S. Karnan, J.)