Calcutta High Court (Appellete Side)
Sasanka Sekhar Roy vs Union Of India & Ors on 15 September, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
15.09.2016
Item No.1
ad
W.P.C.T 200 of 2016
Sasanka Sekhar Roy
Vs.
Union of India & Ors.
Mr. Indrajit Bhattacharyya....... For the petitioner
Mr. Anirban Dutta ....... For the respondents
The instant writ petition has been preferred challenging the judgment dated 1st July, 2016 passed by the learned Tribunal in O.A 350/00557/2016.
Records reveal that responding to an employment notice no.04/2014 dated 1st November, 2014, the petitioner herein applied for the post of Health and Malaria Inspector Group III. The petitioner was called for a written test on 8th February, 2015 and he duly participated in the same but his name was not included in the provisional merit list. Seeking some information pertaining to the selection process, the petitioner made an application under the Right to Information Act, 2005 (hereinafter referred to as the said Act of 2005). The same was replied to by a letter dated 15th April, 2016. Alleging that he has not been given the appropriate marks and has been illegally ousted from the zone of consideration, the petitioner approached the learned Tribunal but the petitioner's application was dismissed by the judgment impugned in the instant writ petition.
Mr. Bhattacharyya, learned advocate, appearing for the petitioner submits that the reply given in response to the application under the said Act of 2005 was served upon the petitioner on 28th April, 2016 and that as such the same could not be annexed to the original application filed prior thereto on 4th 2 April, 2016 and the learned Tribunal did not consider the submissions made on behalf of the petitioner placing reliance upon the said reply. The quantification of marks allotted to the candidates, who were placed in the merit list, is dubious since such quantification cannot be arrived at on the basis of the fractional deduction of marks for negative answers. The non-stipulation of cut-off marks in Clause 8.08 (Recruitment Process) in the employment notice has vitiated the selection process. The roll numbers of the candidates incorporated in the merit list are suspiciously close to each other which gives rise to a reasonable apprehension in the mind of the petitioner that proper procedure was not followed by the respondents. The learned Tribunal erred in law in rejecting the petitioner's claim on the sole ground that having participated in the selection process, the petitioner cannot turn back and challenge the same without taking note of the glaring irregularities in the selection process. The petitioner was not granted appropriate marks and was illegally ousted from the zone of consideration. In support of such contention reliance has been placed upon an unreported judgment delivered in the case of Bishnu Biswas & Ors. -vs- Union of India (Civil Appeal Nos.4255-4258 of 2014) on 2nd April, 2014.
Per contra, Mr. Dutta, learned advocate, appearing for the respondents disputes the contention of the petitioner and submits that the reply given to the petitioner in response to his application under the said Act of 2005 was placed before the learned Tribunal at the time of hearing and the submissions made on the basis of the said reply were duly considered. The contention of the petitioner is based upon mere surmises and there is no material on record to show that 3 there had been any error in quantification of marks or that the petitioner was not granted appropriate marks. The selection process was conducted in strict consonance with the rules and that in OBC category, the first three candidates obtained 61.50, 50.00 and 48.50 marks respectively and in the waiting list the marks obtained by the last empanelled candidate was 45.23 whereas the petitioner secured only 38.44 marks. Being aware of Clause 8.08 (Recruitment Process) in the employment notice, the petitioner participated in the selection process. A candidate having taken a chance to appear in the written test and having remained unsuccessful, cannot turn round and challenge the selection process as being illegal. In support of such contention reliance has been placed upon an unreported judgment delivered in the case of Madras Institute of Development Studies and Anr. -vs- Dr. K Sivasubramaniyan & Ors. (Civil Appeal No.6465 of 2015 arising out of S.L.P (Civil) No.9266 of 2012) on 20th August, 2015.
Heard the learned advocates appearing for the respective parties and considered the materials on record. Indisputably the petitioner applied on the basis of the employment notice dated 4th December, 2015 and participated in the selection process. He secured 38.44 marks whereas the marks obtained by the last candidate in the waiting list was 45.23. It would be explicit from the judgment impugned that the reply furnished to the petitioner on 28th April, 2016 in response to his application under the said Act of 2005 was duly considered by the learned Tribunal. The contents of Clause 8.08 (Recruitment Process) in the employment notice were within the knowledge of the petitioner at the time of participation in the selection process. There is no infirmity in the finding that having taken a chance to appear in the written test and having remained unsuccessful, the petitioner cannot turn round and challenge the same. The principle of estoppel by conduct of acquiescence applies to the facts in this case. A selection process 4 cannot be challenged on the basis of mere suspicion and presumption and the judgment delivered in the case of Bishnu Biswas (supra) is also distinguishable on facts inasmuch as in the same the Court arrived at a finding that the authorities had changed the rules subsequent to the written test.
The learned Tribunal, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the judgment impugned. The scope of judicial review is very narrow and limited and such jurisdiction should be exercised sparingly and only in appropriate cases where the judicial conscience of the Court dictates. The impugned judgment does not suffer from any jurisdictional error or any substantial failure of justice or any manifest injustice warranting interference of this Court.
For the reasons discussed above, we do not find any reason to interfere with the judgment impugned and the writ petition is, accordingly, dismissed.
There shall be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities as expeditiously as possible.
(Nishita Mhatre, J.) (Tapabrata Chakraborty, J.)