Calcutta High Court (Appellete Side)
Rahul Pati And Another vs State Of West Bengal And Others on 7 April, 2017
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W.P. No. 494 (W) of 2017
Rahul Pati and Another
Vs.
State of West Bengal and Others
For the petitioners : Mr. Gouranga Das, Advocate
Mr. Z. Haque, Advocate
Mr. Kapil Chandra Sahoo, Advocate
For the respondent no. 3 : Mr. Abhrotosh Banerjee, Advocate
Mr. Ayan Banerjee, Advocate
Mrs. Reshmi Ghosh, Advocate
For the State respondents : Mr. Amal Kumar Sen, Advocate
Mr. Sabyasachi Mondal, Advocate
Heard on : 11.01.2017, 13.02.2017, 28.02.2017,
14.03.2017.
Judgement on : 07.04.2017
Sambuddha Chakrabarti, J.:
Pursuant to an advertisement issued by the Managing Director, South Bengal State Transport Corporation (the Corporation, for short), i.e., the respondent no. 3 herein, the petitioners applied for the post of conductors. Both of them appeared at the interview.
The petitioners, however, were not included in the panel. According to them, the panel amongst others contained 18 candidates who had been selected for the category of died-in- harness. In the advertisement there is no mention for any appointment from the said category; but the authorities without following the proper procedure selected the respondent nos. 4 to 21 in regular process and, therefore, their selection and subsequent appointment were bad and not binding upon the petitioners. Moreover, the respondent nos. 22 and 23 are not fit for the post of conductors, but the authorities without verifying their documents appointed them and it should be set aside. The respondents without considering the fact that the petitioners were working as conductors under the said Corporation for the last 2 to 3 years appointed respondent nos. 22 and 23.
The petitioners, therefore, prayed for a writ in the nature of mandamus commanding the respondents to rescind the notice dated January 15, 2016 and consequently, the result published by the Corporation and for other reliefs.
The private respondents did not contest the proceeding neither did they file any affidavit.
The Managing Director of the Corporation filed a report in the form of an affidavit to the allegations made in the writ petition. It has, inter alia, been stated therein that the Government of West Bengal issued a memo dated February 14, 2014 for the engagement of drivers, conductors and mechanics on contractual basis for different transport corporations. The Government accorded approval to the Corporation for engagement of 165 conductors on contractual basis. The Corporation had filled up some of the posts of conductors in the year 2014. After this there were 68 vacancies for the posts of conductors on contractual basis. The Corporation, thereafter, published an advertisement in different newspapers for filling up those posts for an initial period of 3 years with a consolidated pay of Rs. 8,500/- on contractual basis.
According to the procedure fixed by the Government for conductors it was prescribed that the candidates will be shortlisted on the basis of the descending order of marks obtained in Madhyamik or equivalent examination. After that viva voce for 100 marks was to be conducted from amongst the shortlisted candidates followed by a physical fitness test which will have disqualifying effect for unsuitable candidates.
It has been very specifically mentioned that the last date for submission of application was on February 1, 2016. Nineteen (19) female candidates who had submitted their applications earlier for employment in died-in-harness category were also called in the interview in terms of the decision of the Board in its 142nd meeting on November 4, 2015 in the exempted category. It may be pointed out that the dependants of the employees who died-in-harness are included in the exempted category as per the relevant Government Order, dated August 21, 2002.
The Interview Board adjudged the suitability of the candidates and allotted marks individually. A merit list was prepared and the same was published in the official website of the Corporation. Subsequently, letters of appointment were also issued with a direction to the report to the office of the Corporation at Durgapur on December 20, 2016.
The report further disclosed that the list had been prepared as per 100 points roster in terms of the Government notification. There are categories from which no candidate could be found and, therefore, these posts were kept vacant.
Eighteen candidates, i.e., the pro-forma respondents belonged to the died-in-harness category. The Corporation has never given out that it was a merit list of successful candidates or a performance-based list. These candidates under the Exempted category have been clubbed and placed at the top. The only reason for keeping their names ahead of all male candidates was that they were female candidates under the banner of Exempted category. They all prayed for employment on compassionate ground and they were taken into consideration according to the decision of the Corporation Board in its meeting on November 4, 2015.
Since the pro-forma respondents are females who are to perform their duties in long and medium distance buses, the Corporation decided certain measures to be taken for their safety and effective performance. In Calcutta State Transport Corporation (CSTC) some female conductors are performing their duties satisfactorily and many other transport corporations in different parts of the country have been successfully utilizing the services of female conductors in various routes.
The Report specifically mentions that the mode of selection was only allotment of marks in the interview as per the guideline of the Government prescribed in the Government Order dated February 14, 2014. As per the Government guideline a candidate for the post of conductor must possess a valid conductor's license. All the shortlisted candidates including those belonging to the die- in-harness category possessed the valid license. The female candidates did not possess one year experience as conductors. However, considering their hardship and the special category to which they belonged the Corporation relaxed the experience criteria since it was decided that they would be imparted adequate training after their induction for at least one month before placement. The Corporation had given due weightage of having valid license as well as one year experience of the candidates at the time of scrutinizing their candidature for the posts of conductors in respect of all candidates except those female candidates who did not have the previous experience of performing duty as conductors. They were considered as candidate under the Exempted category as per the decision of the Corporation Board.
The petitioners have filed a reply to the Report, largely reiterating their initial stand in the writ petition. According to them these female candidates were included in the interview list as general candidates but the concerned authority subsequently treated them as Exempted category candidates. Therefore, they prayed for quashing the entire panel comprising the 68 candidates as the respondents had allegedly acted in violation of the principles of natural justice. The advertisement failed to mention the number of posts reserved for the Exempted category and other category candidates and subsequently in their report the concerned authority mentioned the category of reserved posts. A question has been raised about the competence of the Board of the Corporation to take a decision to declare the candidates who had filed their application before as exempted category candidates. They have referred to a notification dealing with the manner of appointment on compassionate ground to Group -'C' and Group -'D' posts. The advertisement never mentioned that the candidates applying for compassionate appointment would be treated for these posts and that a certain number of posts would be reserved for them. Therefore, the authorities went beyond the advertisement and any decision on the part of the authority to consider such candidates as Exempted category is bad in law and the respondents did not have any such power.
It has been the further contention of the petitioners that if marks had been properly awarded these female candidates could never qualify for the posts as they had never applied for the said post and had no experience certificate and conductor license. Since in the Report the authority concerned admitted that the panel was not prepared on the basis of merit the petitioner alleged that it has been done merely to give advantage to the female candidates. The advertisement having clearly stated that the candidate must possess one year's experience certificate as a conductor the panel or the merit list is not in accordance with the advertisement and should be set aside and be recast after deleting the names of the candidates who have no experience certificate. In their places the names of the petitioners should be included. They have also contended that the respondent nos. 22 and 23 have no experience as per the concerned advertisement.
The petitioners are prayed for setting aside the panel prepared.
In support of their contentions the petitioners relied on the case of Promod Kumar Vs. U.P. Secondary Education Services Commission and Others, reported in (2008) 7 SCC 153, for a proposition that when qualification for holding a post have been laid down under a statute any appointment in violation thereof would be a nullity. The Supreme Court expressed its concern that appointments were being offered by the authorities of the State without verifying the fact whether the degrees possessed by the candidates were valid or not. It was an ad hoc appointment. Why despite the same, the Supreme Court observed, the appellant was allowed to obtain degree from another university was not known. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute or statutory rules would be void. An illegality cannot be regularized.
The petitioners next relied on an unreported judgment of this court in the case of Smt. Kaberi (Dutta) Santra and Others Vs. State of West Bengal and Others, dated November 21, 2014 passed in W.P. No. 10192 (W) of 2013. There the objection taken to the maintainability of the writ petition on the ground that unsuccessful candidates of a recruitment process cannot complain after having participated in it without demur, was rejected. The private respondents in that case, the learned Judge observed, failed to demonstrate that the petitioners took a chance of selection despite being aware of the fact of the former's ineligibility to participate. The learned Single Judge observed:
"The allegation here is that the selection is vitiated because of consideration of ineligible candidates for appointment and the process is tainted with illegality. If a process of selection results in selection and appointment of ineligible candidates, one wonders who else apart from the candidates who are deprived perceivably to make room for such ineligible candidates can question the process. The decisions cited by Mr. Chakraborty are distinguishable because the candidates there had taken a chance of selection and had approached the courts after realizing that they would not be successful, which is not the case here. Credible information about the ineligibility of the private respondents was received much after they were appointed. There can hardly be any doubt that this writ petition at the instance of the petitioners, despite they not being empanelled, is maintainable."
Mr. Das also relied on another unreported judgment of this court in Nomita Das (Nayak) Vs. State of West Bengal and Others, dated June 7, 2013 passed in W.P. No. 8999 (W) of 2013. There the court found that the petitioner was ineligible for the post she applied for but the private respondent was also ineligible in terms of the concerned notification. A learned Single Judge, therefore, held that though the petitioner had locus standi to move the writ petition as she was ineligible to appear in the selection process as the State had brought it to the notice of the Court that the private respondent 2 was ineligible, the appointment of the private respondent was set aside and quashed.
In course of hearing, I called for the records of the case. It appears from the said record that the Joint Secretary to the Government of West Bengal by his communication dated February 14, 2014, intimated the Managing Director of the Corporation that the State Cabinet in its meeting held on February 11, 2014 had approved engagement of 165 conductors for the concerned Corporation on contractual basis as per terms and conditions mentioned in the said letter for the operation of the buses. For the post of a conductor, the qualification and experience were that the candidate must have passed Madhyamik or equivalent examination from any recognized Board, must possess a valid conductor license issued by the Licensing Authority and experience for working as a bus conductor for a minimum period of one year as on January 1, 2014. The qualification about physical standard mentioned the height to be at least 5' 2".
Subsequently, the concerned Corporation published an employment notice inviting applications inter alia to fill up 68 posts of conductors for an initial period of three years on contractual basis. It was specifically mentioned that the existing reservation rule of State Government would be applicable. The qualifications for the post of conductors was identical with the one communicated to the Chairman of the concerned Corporation only with the modification that the experience was made to be as on January 1, 2016.
At the 142nd meeting of the Corporation Board, held on November 4, 2015 one of the agenda was to examine the proposal of death-in-harness cases. The Board observed that 55 posts of conductors and 7 posts of drivers were vacant wherein die-in- harness cases could be considered who fulfilled the eligibility criteria. It was unanimously resolved that the female candidates who fulfilled the criteria could be engaged as conductors on contract on no work no pay basis.
From the records produced in Court including the categorywise merit list of candidates one thing is clear that none of the petitioners qualified for the posts from General Category. In the categorywise merit list, the petitioner no. 1 was 124th and the petitioner no. 2's position was 429 in the relevant category. Selection was madeup to serial no. 25. As such, the petitioners were unsuccessful candidates for the posts they had applied.
However, one aspect of the matter needs a closer examination, i.e., engagement of candidates from the die-in- harness category as conductors who apparently did not have the requisite experience to be so appointed.
It may be mentioned that experience for working as a bus conductor for a minimum period of one year and possession of a valid conductor's license issued by the Licensing Authority were essential qualifications for being appointed as a conductor. The nature of the requirement may be understood from the use of the word must in the advertisement making possession of such qualification a mandatory one.
The defence taken by the Corporation in the Report, affirmed by its Managing Director, was that the last date for submission of applications for the posts of conductors was fixed on February 1, 2016 and after scrutiny about 1382 candidates were found eligible. Nineteen female candidates had submitted their candidature earlier for employment in died-in-harness cases and they were also called for interview in terms of the decision of the Corporation Board in the 142nd meeting held on November 4, 2015 in the Exempted Category as the dependants of employees who had died- in-harness are also included in the Exempted category.
Thus one thing stands out very clearly that these candidates did not apply pursuant to the advertisement. Out of the nineteen candidates eighteen female candidates have been placed at the top from serial number 1 to 18. Even if what was uploaded in the website was not a merit list or a list based on performance in the interview, that does not by itself resolve the issue. A far more important question is begging to be addressed in this writ petition.
Were these female candidates eligible to be appointed? Were they eligible to be considered at all? Could the respondent Corporation relax the qualification and employ them? These three and other related issues have been clubbed together; for, they have a common answer which is entirely in the negative.
Even if it sounds like a cliché it is worth at times reminding ourselves certain age-old adages, no matter how trite they might otherwise appear, lest the underlying principles are not lost in the oblivion, partly due to the shortness of human memory but largely ascribable to the propensity to ignore the tenets according to convenience of circumstances. Thus, it is often forgotten that an appointment must strictly be in terms of the qualifications including experience indicated in the advertisement. When the Report mentioned that out of the total number of applicants 1382 candidates were short-listed and found eligible, the Managing Director must have meant that these are the candidates who had the requisite qualification. If that be so how could the eighteen candidates be included in the select list? The Report of the Managing Director specifically says that the Corporation had given due weightage to having valid conductor's license as well as one year experience as on January 1, 2016 at the time of scrutinizing their candidature for the posts of conductors except for those female candidates who did not have any previous experience of performing duty as a conductor and they were considered under the Exempted category. But considering their hardship and the special category to which they belonged the Corporation relaxed the experience criteria since it was decided that they would be given adequate job training after induction for at least one month before their placement.
It appears from the proceedings of the 142nd Board meeting that the matter was considered as the 4th item and it was unanimously resolved by the Board that the female candidates who fulfilled the eligibility criteria of a conductor could be engaged on contract on no work no pay basis.
Thus, the decision to take in the female candidates without experience entirely runs against the decision of the Corporation Board taken in its 142nd meeting. If the Corporation wants to justify the appointment of these candidates in terms of the decision taken by the Corporation Board they must have overlooked that the Board did not give them any unbridled authority or a free hand to recruit the candidates from died-in-harness category by relaxing eligibility criteria. On the contrary, the specific requirement of fulfilling the said criteria was twice mentioned in the resolution taken in respect of the said issue. Although the Report mentions that the Corporation had relaxed the eligibility criteria in respect of these candidates, the records as produced in the Court do not contain any such decision taken for relaxation. This leads to two possibilities, viz. either the statement on oath is not correct or complete record relating to recruitment of conductors was not produced in Court.
Mr. Banerjee submitted that these are all the records relating to the recruitment process. If that be so, the inescapable conclusion is that there was no decision taken to relax the qualification, at least not recorded in the documents produced. Even if any such decision had been taken they must have to be reckoned as a decision without an authority. The law on the point is very well-settled that any recruitment in deviation or in derogation of qualification mentioned is an arbitrary exercise of power. If the essential qualifications had already been laid down in the communication dated February 14, 2014, how could the Corporation deviate from the same? It may be mentioned that the employment notice also mentioned the requirement of experience of working as a bus conductor for a minimum period of one year as a qualification which one must possess. And the employment notice did not contain any provision for relaxation neither did any of the resolutions of the Board contain any decision about relaxation. In the case of Swaran Lata Vs. Union of India, reported in (1979) 3 SCC 165, the Supreme Court held that no relaxation in the qualification can be made where the advertisement has duly been issued, inviting applications and persons possessing qualifications as advertised are available and submitted their applications. The Supreme Court decided in the case of Shianda Hasan Vs. State of U.P., reported in AIR 1990 SC 1381 that absence of power to grant relaxation in the statutory rules will not prevent the authority from relaxing qualifications if it has expressly reserved such power in the advertisement inviting applications. Neither of the contingencies has been satisfied in the present case.
Thus, there must be sufficient indication either in the statutory rules or in the relevant advertisement that the authority reserved the power to relax of qualification. In the absence of such power either in the advertisement or statutory rules the respondents could not relax the requisite qualification in case of a class of selected candidates. Plainly speaking the selection committee lacked this power to take such a decision on its own.
The Managing Director in the Report has spoken of the decision taken to offer employment to these female candidates considering the hardship and special category to which they belonged by relaxing the experience criterion. A very pertinent question is again begging for an answer: who had taken this decision? The Board or the Selection Committee? At which stage? Where is the reflection of the same in any of the minutes of the proceeding produced in the Court? The relevant sentence in the report of the Managing Director of the Corporation has been used in the passive voice without indicating the subject of the sentence. The report mentioned "it has been decided...." By whom and when? At least the Board did not take such decision in its 142nd meeting. On the contrary it had taken just the opposite decision that in order to be considered eligible for the posts of conductors the candidates belonging to the die-in-harness category must fulfill the eligibility criteria. Thus, the only unavoidable conclusion is that the un-named subject of the closely guarded sentence has not only the no authority to relax the qualification but it also went against the decision of the Corporation Board. Could he or they do it? The answer is far too obvious to seek.
In the case of Maharashtra SRTC Vs. Rajendra Bhimrao Mandve, reported in (2001) 10 SCC 51, the Supreme Court observed that the rules of the game, meaning thereby the criteria for selection, cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. The effect of relaxation or altering is to lay down a qualification by the Selection Committee according to their own consideration. As decided in P.K. Ramachandra Iyer Vs. Union of India, reported in (1984) 2 SCC 141, that if such a power is claimed it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. In Umesh Chandra Sukhla Vs. Union of India, reported in (1985) 3 SCC 721 it was observed that the Selection Committee does not possess any inherent power to lay down its own standard in addition to what is prescribed under the rules. It may be mentioned that both addition and relaxation to and from the rules, as the case may be, are instances of deviation from the prescribed requirements. In the case of Secretary, A.P. Public Service Commission Vs. B. Swapna and Others, reported in (2005) 4 SCC 154, the Supreme Court had occasion to observe that courts cannot abdicate their functions of ushering in a society based on rule of law. Once it is established that the selection committee did not have the power to relax the essential qualification the entire process of selection so far as the selected candidates are concerned gets vitiated. The power to relax must be clearly spelt out and cannot otherwise be exercised.
The authority of the selection committee to relax the criteria for eligibility has been mentioned with reference to various cases in the preceding paragraph. Both the Report in the form of an affidavit as well as records produced in the Court are silent about at whose instance such relaxation of eligibility criteria in respect of the female candidates have been done. By process of elimination and by applying the presumption drawn from the sequence of events it may be taken that after the selection committee had met the select list was uploaded and published containing the names of the female candidates from the died-in-harness category and, without anything more, the irresistible and unrebutted presumption would be that the selection committee must have taken such a decision to relax the eligibility criteria in respect of a class of candidates for other posts without any valid authority so to do.
This must necessarily lead one to a still more fundamental issue, i.e., whether any decision could be taken to consider the cases of candidates under the died-in-harness category for filling up the vacant posts of bus conductors. Whether the decision taken by the Corporation Board in its 142nd meeting can be held to be a valid one to consider the cases of those 18 female candidates. The Report of the Managing Director of the Corporation makes one thing abundantly clear that these candidates did not apply pursuant to the advertisement or the employment notice issued by the Corporation. They had earlier submitted their applications for employment in died-in-harness category but in spite of it they were called for interview. They must have made a general application for appointment on compassionate ground after the death of their respective predecessors-in-interest who were former employees of the Corporation. Not to speak of other modes of recruitment through Employment Exchange etc., when recruitment is made through an advertisement inviting applications for certain post or posts, in the absence of any provision either in the statutory rules or the advertisement to consider outside candidates who had not applied for a particular post, the authority cannot exercise the power and consider the non-applicants for that particular post as that will be against the underlying principle contained in Article 16 of the Constitution of India. Such a procedure, if adopted, without any power being conferred on the appointing authority or any indication for the same in the advertisement will definitely have the effect of denying equal opportunity in matters of employment to those who had applied for the post and had the requisite qualification. Even the decision of the Corporation Board will not be a justification for offering employment to those who had never applied for the posts.
I find no justification for the Corporation to consider the female candidates belonging to died-in-harness category who had applied for other employments before the publication of the advertisement, for the posts of conductors when they did not have the requisite eligibility criteria. The justification offered in the report affirmed by the Managing Director hardly provides a satisfactory answer to the decision taken by them. The reason for the deviation from the fundamental principle of service jurisprudence has been a consideration of their financial hardship. This is just no answer to the decision taken by the Corporation. Appointments are offered on compassionate ground only to help the family of the concerned applicant tide over financial hardship that it faces after the death of the sole breadearner. But they could be accommodated to any other post where their qualification matched. It was not necessary that they should be appointed as conductors when admittedly they did not satisfy the necessary eligibility criteria. The effect of appointing eighteen such non- applicant candidates was that equal number of persons having the requisite qualifications were excluded. If the Corporation Board had decided to consider the applicants applying under die-in- harness category there was nothing preventing them from mention the same in the advertisement that selection process would not be restricted to applicants only or in respect of a certain category the qualification was relaxable. Nothing of them was made known to the prospective applicants. On the contrary, applications were invited for 68 bus conductors when actually the Corporation had already decided to employ eighteen candidates from the died-in- harness categories. Therefore, the number of vacancies ought to have been mentioned as 50 in the advertisement.
These are some of the points on which appointment of eighteen candidates who do not satisfy the eligibility criteria, is liable to be quashed. Mr. Banerjee appeared very helpless in trying to defend such appointments and virtually conceded that it was not the ideal step taken by the respondents.
Still another issue requires to be answered i.e., whether the selection of eighteen candidates is liable to be set aside at the instance of the petitioners who were not included in the select list and, thus, were unsuccessful for the posts of conductors. Reference has already been made to the case of Smt. Kaberi (Dutta) Santra (Supra), where a leaned Single Judge of this Court had held that there can hardly be any doubt that the writ petition at the instance of the petitioners despite their not being empanelled is maintainable. It matters little that the two petitioners do not come within the zone of consideration for maintaining their application. The Supreme Court had decided in the case of District Collector and Chairman, Viziana Garam Social Welfare Residential School Society Vs. M. Tripura Sundori Devi, reported in (1990) 3 SCC 655 that when an appointment is made in disregard of a particular qualification it is not a matter only between the appointing authority and the appointee concerned. This amounts to a fraud on public to appoint the persons with inferior qualification in such circumstances. No court should be a party to the perpetuation of the fraud.
When such glaring improprieties are brought to the notice of the court, to remain silent for a court would amount to abdicating its duty to establish the rule of law. The other order of the learned single Judge in the case of Namita Das (Nayak) (Supra) also lends support to the view that appointment of an ineligible person should be set aside, irrespective of whether the petitioners have the locus to maintain the writ petition.
In such view of it, the writ petition is disposed of by directing the respondents to recast the panel by excluding therefrom the eighteen candidates who had applied under the died-in-harness category and improperly included in the select list. The Corporation shall publish a fresh panel consisting of the eligible candidates. The case of the petitioners cannot be considered as their ranks are miles away from the last candidates found eligible.
It is made clear that this order shall not stand in the way of the respondents' offering employment to the private respondents to posts for which they fulfill the eligibility criteria in accordance with law.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee