Calcutta High Court (Appellete Side)
Sri Rabindra Nath Majhee vs Sri Bijoy Chatterjee & Ors on 8 February, 2012
Author: Soumen Sen
Bench: Ashim Kumar Banerjee, Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present :
The Hon'ble Justice Ashim Kumar Banerjee
-And-
The Hon'ble Justice Soumen Sen
F.M.A. No. 1074 of 2009
Sri Rabindra Nath Majhee
Vs.
Sri Bijoy Chatterjee & Ors.
For the Appellant : Mr. Pratik Dhar
Mr. Sarwar Jahan
For the School : Mr. Subir Sanyal
For the Writ Petitioner/Respondent : Mr. Biswarup Bhattacharjee
Mr. Tarun Kumar Das Mr. Vivekananda Bausi For the State : Mr. Tapan Kumar Mukherjee Additional Government Pleader.
Mr. Nilotpal Chatterjee
Heard on : 31.01.2012, 01.02.2012,
02.02.2012
Judgment on : February 8, 2012
Soumen Sen, J.:-The affection for the son if had resulted in a favouratism thereby leading to biasness in the selection of the appellant for the post of a clerk in Jhapra High School is the issue before us.
The learned Single Judge set aside the entire panel on the ground that the writ petitioner performed far better than the appellant both in the academic as well as in the type-writing examination and the appellant excelled the writ petitioner only in the oral interview and that explains why or how did he excel. The fact that the appellant was treated with undue favour writ large on the marks given to him in respect of oral interview. The learned single Judge also found that the writ petitioner held a master degree and was better qualified than the appellant who was not even a graduate.
The learned Single Judge has considered the academic records of the respective candidates and found that the awarding of marks in the viva-voce test is quite unusual having regard to the other marks obtained by him in the said selection test.
The post concerned is that of a clerk and a non-teaching post. A Selection Committee was formed by the Managing Committee of the School in terms of the resolution dated July 11, 2008. The Secretary of the School is the father of the appellant. He was part of the Managing Committee and participated in the meeting of the Managing Committee dated July 11, 2008 for the purpose of constituting the Selection Committee.
The members of the Selection Committee were selected in the said meeting. The Managing Committee has approved the name of the experts. The Secretary issued the appointment letter to such experts and other members of the Selection Committee. This Selection Committee so constituted, evaluated the candidates and submitted a panel of the candidates in which the name of the appellant was placed in the first position. The appellant stood first in the said selection by reason of his marks obtained in the viva-voce test. The marks obtained in the viva-voce test made up for the deficiencies caused in the other two tests, namely, the academic score and type-writing. The panel was placed before the Managing Committee of the School for approval. This time also the Managing Committee consisting of the said Secretary upon consideration of the panel submitted by the Selection Committee forwarded the said panel to the District Inspector of Schools for approval. In the said panel, the name of the appellant was placed in the first position. The appellant scored highest mark and became first in the said panel and the same was accepted by the Managing Committee. The Secretary participated in the said meeting which considered and approved the decision of the Selection Committee. The Managing Committee appears to have blindly accepted the recommendation of the Selection Committee disregarding the academic qualifications of the respective candidates and ignoring the fact that the writ petitioner passed his Higher Secondary Examination in the first division, an honours graduate and held a master degree whereas the appellant had only passed higher secondary in the second attempt. The presence of the Secretary in the said meeting is something which is more than what meets the eyes.
The learned Single Judge has proceeded on the basis of the awarding of marks by the Selection Committee in the viva-voce test, keeping in mind that the appellant is the son of the Secretary and set aside the said selection process on the ground of bias.
There are other features in the matter which along with the factors mentioned in the judgment, also lead to the same conclusion.
It is not in dispute that the appellant is the son of the Secretary of the respondent school. In all the major decisions, commencing from the formation of the Selection Committee till the approval of the list submitted by the Selection Committee, the said Secretary played a pivotal role. The Secretary did not recuse himself from the said process of selection since a man of ordinary prudence would have done so in the facts and circumstances of the case.
The possibility of the said respondent influencing the members of the Selection Committee during the selection process, and, subsequently, persuading the Managing Committee in accepting the recommendation of the Selection Committee cannot be ruled out. The Managing Committee was not obliged to accept the recommendation of the Selection Committee blindly and should have independently applied its mind to the results of the selection submitted before it for taking a final decision in the matter. There is nothing on record to show that the Managing Committee, in fact, deliberated on the issue with regard to the selection made by the Selection Committee and mechanically approved the panel of three candidates without having a discussion as to whether the appellant having a better qualification could have been given a preference over others.
The Managing Committee took the resolution approving the panel on August 4, 2008 and the Secretary of the School immediately wrote a letter to the District Inspector of School for approval. The said approval was given on 26th August, 2008 and appointment was given to the appellant on 27th August, 2008.
In deciding a case of bias, it is very difficult to establish actual bias. Bias is not a galloping horse running down the Red Road that would make him so visible that having a look at it, the bias could be established. Whenever a situation arises, like the nature we are considering, it must depend upon the "likelihood of bias" that may result from the series of events and the person against whom bias is alleged whether he is in a position to influence the minds of others so as to obtain a favourable result in his favour. It is these collation of facts put together in a given case assist the Court in arriving at a conclusion about involvement of bias in a particular decision.
Bias is not a defined personality nor a visible object which by its fits and starts reveal itself instantaneously. It is shapeless. It is the result of examination of a conduct which is propelled by an intention to influence the decision in favour of someone very close to the heart and in the process to remove the other deserving contestants from the fray. The case of actual bias is far and between. It needs to be tested on the wholesome principle that justice should not only be done but should also appear to have been done as well.
Mr. Pratik Dhar, the learned Counsel appearing on behalf of the appellant refers to the following decisions for the proposition that mere involvement of the Secretary in the meeting of the Managing Committee in which the Selection Committee was constituted and subsequent meeting where the recommendation of Selection Committee was approved does not constitute bias:
1) 1985(4) SCC 417, Paragraph 18 (Ashok Kumar Yadav & Ors. Vs. State of Haryana & Ors.)
2) 2003 (1) C.L.T. 115 Paragraph 2 (Rima Santra Vs. State of West Bengal & Ors.) It was further argued that the members of the Selection Committee were not made parties and in absence thereof, the learned Judge ought not to have set aside the selection process since the members of the Selection Committee were not given any opportunity to deal with the allegations made against them with regard to bias. In this regard the following decisions were cited:
1) 2004(12) SCC 390 (Medley Minerals India Ltd. Vs. State of Orissa & Ors.)
2) 1990(1) SCC 305 (Dalpat Abasaheb Solunke & Ors. Vs. Dr. B.S. Mahajan & Ors.) Paragraph 7,8,9 On the aspect that the result has to be considered as a whole and since a candidate is required to be assessed in respect of the criteria and of which viva-
voce test is a part of it obtaining higher marks in viva-voce by itself cannot vitiate the selection process, the following decisions were relied upon:
1) 2010(12) SCC 576 (Manish Kumar Shahi Vs. State of Bihar & Ors.) Paragraph 10
2) 2008(4) SCC 171 (Dhananjay Malik & Ors Vs. State of Uttaranchal & Ors.) Paragraph 8
3) 1990(1) SCC 305 (Dalpat Abasaheb Solunke & Ors. Vs. Dr. B.S. Mahajan & Ors.) Paragraph 12
4) AIR 1995 SC 1088 (Madan Lal & Ors. Vs. State of Jammu & Kashmir & Ors.) Paragraph 16
5) An unreported decision in FMA 77 of 2002 (Dilip Das Vs. Manas Kumar Adhikari & Ors.) decided on 20th April, 2004.
The learned Counsel for the appellant refers to Rules 16 and 25 of the Management Rules as modified upto 2008 and the definition of the Selection Committee, appointing authority as well as the composition of Selection Committee to demonstrate that the participation of the Secretary either at the stage of constitution of the Selection Committee or issuance of the letter to the members of the Selection Committee and participation in the meeting of the Managing Committee accepting the recommendation of the Selection Committee by itself does not vitiate the said selection process since the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005 requires the said Secretary to discharge of such functions. The learned Counsel has relied upon the following rules of the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005: -
"2(p). "Secretary of the school authority" in relation to a School, means the secretary of governing body, managing committee, ad hoc committee or any other body, by whatever name it is called, which is charged with the management of the affairs of the school and includes the Administrator of the school;
2(r). "selection committee" means the selection committee referred to in rule 6 for selection of a candidate for the post of Librarian or Clerk or Group-D staff in the school;
3. Appointing authority.- (1) In relation to the appointment of a non- teaching staff, the school authority shall be the appointing authority. (2) Nothing in sub-rule (1) shall be construed as holding the Drawing and Disbursing Officer of a school as the appointing authority.
4. Qualifications.- (1) No person shall be appointed by a School authority as a Librarian or Clerk or a Group-D staff in the school, unless the person -
(a) is a citizen of India;
(b) has completed the age of eighteen years and has not completed the age of thirty-seven years on the first January of the year in which the requisition is made to the employment exchange for sponsoring by the employment exchange names of the candidates:
Provided that for a candidate belonging to a reserved category of a candidate who is a member of the family of a deceased teacher or non-
teaching staff, the upper age-limit shall be such as is specified for such a candidate in the relevant Government Order.
6.(1)(b) for the selection of a Clerk or a Group-D staff in a school, the selection committee shall consist of the following: -
(i) Headmaster, (ii) Secretary of the school authority;
Provided that if the Headmaster and the Secretary of the school authority are one and same person, the President of the school authority shall be the member of the selection committee;
Provided further that nothing in the last preceding provision shall be applicable in case there is an Administrator of the school
(iii) Headmaster of a school in the same sub-division as the school for which the Clerk or the Group-D staff is to be selected is situated, and
(iv) A nominee of the Panchayet Samity or Municipal Corporation or Municipality or Notified Area Authority as the case may be:
Provided that no person who is a staff of a school shall be nominated as the nominee.
Explanation: For the purpose of this sub-rule, "recognized" means recognized or established by or under law.
(2). The Headmaster referred to in sub-clause (iii) of clause (a) of sub-rule (1) and in sub-clause (iii) of clause (b) of sub-rule (1) shall be selected by the school authority.
(3) The expert referred to in sub-clause (iv) of Clause (a) of sub-rule (1) shall be called in by the school authority.
(5)(a). No person who is related, by blood, marriage or adoption, to a candidate to be interviewed by a selection committee shall act as a member of the selection committee.
9(7)(a). The selection committee shall, within fifteen days from the date of the interview, prepare a panel and submit the same to the appointing authority.
(b) The appointing authority shall, within fifteen days from the date of submission of the panel by the selection committee, examine the panel and, along with all relevant papers, submit the same to the District Inspector of Schools for his approval.
(c) The Dist. Inspector of Schools shall, within one month from the date of receipt of the panel, convey his decision thereon."
The learned Counsel has also relied upon the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969, Rule 16 and Rule 25 whereof are reproduced hereinbelow:
"16.(1) Meeting of the Committee - A meeting of the Committee shall be called by the Secretary at least once in every two months except during the vacation and not less than seven days' notice of such meeting shall ordinarily be given.
(2) The Committee shall inter alia review the teaching, learning issues and academic performance of each class in the meeting. (3) Minutes of the meeting shall be carefully documented and retained by the Head of the Institution being the Secretary or the Joint Secretary of the Committee.
(4) Inspectors of schools, while visiting the schools, shall inspect the minutes of the meeting, and if he observes therein any deficiencies with respect to teaching, learning issues and academic performance in the school, he shall take appropriate action to ensure the remedial measures necessary for removing such deficiencies."
"25. Duties of the Secretary and Joint Secretary -
(1) Under the direction of the Committee, the Secretary shall carry on correspondence with the proper authorities on behalf of the Committee.
He shall also keep a record of the proceedings of the meetings of the Committee in a book maintained for the purpose. The record of each meeting shall be confirmed at the subsequent meeting.
(2) The Joint Secretary shall perform such duties as may be assigned to him by the Committee and shall perform the duties of the Secretary in the case of continued absence of the Secretary and during casual vacancy caused by death, resignation or removal of the Secretary." The said argument was elaborated by Mr. Subir Sanyal, the learned Counsel appearing on behalf of the School. It is the contention of the school that whatever the Secretary has done, it was by reason of the mandate of the Management Rules, namely rules 16 and 25 as also in terms of the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005. Mr. Sanyal submitted that by reason of the mandate enshrined in such rules, the said Secretary is the only authority who can discharge such functions and by applying the principle of doctrine of necessity, the imputation of bias has to be ruled out. Mr. Sanyal relied upon the following decisions in this regard:
1) 2008 (4) SCC 619 (Sadananda Halo & Ors. Vs. Momtaz Ali Sheikh & Ors.) (paragraph 49)
2) 2009(4) SCC 516 (Jyotish Kaiborta & Ors. Vs. State of Assam & Ors.) (paragraph 17-20)
3) 2009(1) SCC 337 (Reference Under Article 317(1) Of The Constitution Of India, In Re) (Paragraph 26)
4) A.I.R 2006(3) SC 276 (Rukmani Ammal Vs. Jagdeesa Gounder) (Paragraph 13-16) The writ petitioner and the respondent State, on the other hand, supported the judgment and highlighted unusual features in the process of selection which we have already noted in the earlier paragraphs.
The large number of decisions that have been cited on this aspect are clearly distinguishable on facts and in our respectful reading none of the decisions come to the aid of the appellant.
It is a selection to the post of a clerk in a village school. The resolution that was adopted by the Managing Committee on 11th July, 2008 prepared a list of experts out of which one expert to be appointed and the rest are the Headmasters, the Teacher-in-charge and a Panchayat nominee. It is true that by the said resolution, teacher-in-charge was brought in in the place of Secretary in view of the candidature of the appellant who is the son of the Secretary. The appointment of the experts and the all other members forming the Selection Committee were overseen by the Secretary. The Selection Committee prepared a list of 20 candidates who appeared before the said Selection Committee and submitted a panel of three candidates to the Managing Committee for approval. The Managing Committee approved the said panel and forwarded the names of the three candidates to the D.I. for approval. The said resolution also records that the Secretary is required to issue the appointment letter in favour of the appellant since he has secured the first position in the panel. The Managing Committee as we have discussed earlier blindly approved the panel prepared by the Selection Committee. The Managing Committee surprisingly selected the appellant on the basis that he secured the highest mark disregarding the fact that the difference in mark on the basis of which he secured the first position was solely on the basis of the unusual marks obtained in the viva voce test. This meeting was also attended by the father of the appellant as the Secretary of the Managing Committee. While the participation of the Secretary in the said process sought to be justified and watered down by referring to the relevant rules and on the principle of doctrine of necessity but the "invisible hand" of the Secretary in steering the name of his son is apparent and clearly demonstrable from the documents disclosed in this proceeding. If the doctrine of necessity is applied then there was no reason for the Secretary to recuse himself from the Selection Committee. It was a mere eyewash. The mere exclusion of the Secretary from the Selection Committee while pursuing other course to secure the selection of the son for the said post is quite clear and apparent and the record would speak for itself.
The principle of bias in the matter of selection of candidate by an administrative body was considered by Hon'ble Supreme Court in the case of Ashok Kumar Yadav & Ors. Vs. State of Haryana & Ors. reported in 1985 (4) SCC 417 in paragraph 16 which is reproduced hereinbelow:
16. We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court."
The appellant and the school would submit from taking cue from paragraph 18 of the said report would submit that even in such matters relating to selection of candidates by Public Service Commission, the Hon'ble Supreme Court held that when two or more members of a Public Service Commission are holding a viva-voce examination, they are functioning not as individuals but as the Public Service Commission. However, the related member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. In this case the Secretary actively participated in the two most crucial meetings concerning the said selection without recusing himself at all.
Sometimes, the bias is also equated with favouratism. In a given case although no imputation of actual bias can be deduced from the facts but on the wholesome principle that no man can be a judge in his own cause decision must be sacred as held in Dimes Vs. Grant Junction Canal Co. Proprietors (1852 (3) HLC 752). There are instances where although a person may not be automatically disqualified from hearing a matter or participating in a proceeding but in a case where involvement of the person concerned could lead to the promotion of a cause in which the said person or authority concerned has some involvement with one of the parties.
P.P. Craig in his Administrative Law (5th Edition) referred to certain confusions in the development of laws relating to the test for bias. The learned author was of the opinion that there has been considerable confusion concerning the test for determining bias in cases other than those concerning pecuniary interest. The learned author commented that two tests have been espoused by the Court that of "real likelihood of bias" and "reasonable suspicion of bias". After noticing the confusion that existed in England, the learned author suggested that tests adopted in Porter case reported in 2002 A.C. 357 should be adopted and the general test for bias will be that as laid down in Porter. The test adopted in Porter was whether having regard to the relevant circumstances as ascertained by the Court, the fair minded and informed observer having considered the facts would conclude that there was a "real possibility" that the Tribunal was biased.
The four pillars of the test of bias are "real likelihood", "real danger", "reasonable suspicion" and "real possibility", these are the expressions formulated by the Judges to find out whether a decision is tainted by bias. The English Judges have chosen one or more of the aforesaid expressions as a test of bias.
The aforesaid test of bias has its ups and downs as noticed by the celebrated author of Administrative Law, Sir William Wade. The 8th Edition of Wade's Administrative Law edited by Sir William Wade and Christopher Forsyth noticed and referred to such development at page 456, relevant portion whereof is reproduced hereinbelow:
"In many cases both tests led to the same result, since 'likelihood' was given the meaning of possibility rather than probability. For if there was no real possibility of bias, no reasonable person would suspect it. But other judicial statements, more naturally, equated 'likelihood' with 'probability', so that the two tests became different, and courts confronted with them felt obliged to elect between them. In 1954 a Divisional Court, after reviewing authorities, decided firmly in favour of real likelihood. But in 1968 the Court of Appeal decided equally firmly in firmly in favour of reasonable suspicion, although Lord Denning MR interwove this with the other test, saying:
Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough... There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'the judge was biased'.
This decision reasserted 'justice must be seen to be done' as the operative principle. But 'it left a legacy of some confusion' in 'a somewhat confusing welter of authority'."
The House of Lords in R. Vs. Gough reported in 1993 AC 646 affirmed that "real likelihood" test though preferring to state it in terms of "real danger" so as to emphasize that "the Court is thinking in terms of possibility rather than probability of bias". Lord Goff in his judgement said:
"The test, as so stated, gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose.
And later he added:
I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time."
The learned authors opined that "In thus substituting the opinion of the court for Lord Denning's 'reasonable people' the House of Lords has made the test more objective."
MP Jain & SN Jain in their principles of Administrative Law (6th Edition) opined that in all common law countries including India the test of bias is "objective test of real likelihood" or "real possibility of bias".
The "real danger" test did not find favour in some commonwealth countries like India as noticed by Wade in his Administrative Law (supra).
In India, the recent view appear to have in favour of "a real danger of bias". In Lalit Kumar Modi Vs. Board of Control For Cricket in India & Ors. reported in 2011 (10) SCC 106, the Hon'ble Supreme Court in Paragraph 40 held that a mere apprehension of bias cannot be ground for interference and there must exist "real danger of bias". The view was expressed following the earlier views expressed by the Constitution Bench in M.P. Special Police Establishment reported in 2004 (8) SCC 788. The Constitution Bench in Paragraph 14 of the decision dealt with the question of bias in the context of sanction to prosecute the ministers and in paragraph 14, the Court observed as follows:
"14. ... The question in such cases would not be whether they would be biased. The question would be whether there is reasonable ground for believing that there is likelihood of apparent bias. Actual bias only would lead to automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. The principle of real likelihood of bias has now taken a tilt of 'real danger of bias' and 'suspicion of bias'."
The Hon'ble Supreme Court has since taken note of the development of law in England in relation to the test of bias.
The ground of challenge with regard to predetermination of issue and/or bias is not only confined to the case of a Tribunal but also to local bodies. The exceptions to the doctrine of bias are necessities and if there are statutory exceptions or waiver. This doctrine of necessity was being pressed by the appellant and the respondent school to support the selection of the appellant. It is argued that the Secretary is the authority to issue the said letters in terms of the resolution of the Managing Committee and in such circumstances, he is only person authorized to act and, accordingly, imputation of bias cannot be made against the said Secretary. In short, it was argued that the normal rule against bias will be displaced in the circumstances whether the individual whose impartiality is called in question, is the only person empowered to act.
The argument on the doctrine of necessity loses its force when one looks into the initial minute of appointment of the members of the Selection Committee and the minute by which the Managing Committee accepted the panel prepared by the Selection Committee. In both the meetings, the Secretary should have recused himself. It was only after a decision is taken with regard to the composition of the Selection Committee in the same meeting, the Managing Committee thereafter records that the Selection Board would be constituted by the teacher-in-charge in place of the Secretary. The Secretary ought not to have participated in the meeting in which the final decision was taken with regard to the selection of candidates. The Secretary is disqualified from determining in the matter of appointment of the Selection Committee or taking a decision on the basis of the recommendation of the Selection Committee since it could always be contended that he may be or may fairly be suspected to be biased. The recusal of the Secretary would not have invalidated the decision or would not have resulted in an "administrative impasse" which normally are the situations where the doctrine of necessity might step in.
The doctrine of necessity has since been considered in a fairly recent decision of the Hon'ble Supreme in Lalit Kumar Modi Vs. Board of Control For Cricket in India & Ors. reported in 2011 (10) SCC 106 in paragraph 38 of the said report, the Court observed as follows:
"38. The doctrine of necessity is a common law doctrine, and is applied to tide over the situations where there are difficulties. Law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over."
As we have noticed that is not the case here.
The instant case there is likelihood of apparent bias and the selection is suspect having strong "suspicion of bias".
The decision cited on the ground that the parties to the Selection Committee were not made parties also is unsustainable in view of the affidavit filed by the Secretary on behalf of the Managing Committee as also on behalf of the Headmaster of the school. While dealing with the allegations made in the writ petition, the Secretary defended his action as well as the members of the Selection Committee and affirmed the paragraphs of the affidavit as true to his knowledge. Whatever, the doubts that one could have with regard to the involvement of the Secretary in the matter of selection process, has been completely removed by the said affidavit of the Secretary read with the documents disclosed in the petition. Accordingly, the decisions relied upon by the appellant and the school with regard to the absence of parties in the proceeding falls to the ground. On the same reasoning also the decision with regard to the viva-voce test, does not assist the appellant at all. If the foundation goes, the entire edifice must fall. In our considered view, the marks given in the viva-voce test is quite unusual and gives a clear unmistakable impression that the deficiencies are sought to be covered up in the viva-voce test.
In view of the aforesaid, the appeal fails. The order of the learned Single Judge in setting aside the selection is sustained.
The selection to the post will now be governed by the law laid down by the Full Bench in 2011(2) CHN (Cal) 1021 (Tulsi Roy Vs. Krishanu Roy) where the applicability of Rules of 2009, the Division Bench held in the manner following:
"21. We do not for a moment dispute with the Broad proposition of law that if the process of selection has already been initiated, it should be finished in accordance with law that it stood at the time of initiation of process even if a new law has come into force in the meantime. However, such principle cannot have any application to a case where the process of selection was complete, an appointment was given, the appointed candidate joined service but subsequently, such appointment was found to be vitiated and the appointment given based on such selection has been set aside by an order of the Court. In such a case, on setting aside the appointment given to the appointed candidate, a new vacancy will arise in view of the order setting aside the appointment with effect from the date of such order. In such a situation, in our opinion, a fresh vacancy should be declared in accordance with the Rules of 2009 as if such vacancy has occurred on the date, the earlier appointment has been set aside and the post concerned should not be treated to have been lying vacant during the period when the person found to be illegally appointed by the Court worked. It is needless to mention that such a person illegally appointed whose appointment is set aside by the Court will be entitled to the remuneration for the said period so long his service was not terminated by the virtue of the order passed by Court. On termination of the service by the order of the Court, a fresh vacancy should accrue."
In view of the aforesaid fresh selection process should be held under Rule 2009. The order of the learned single Judge, however, is modified to the above extent. There shall be no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertakings.
(Soumen Sen,J.) I agree:
(Ashim Kumar Banerjee)