Calcutta High Court (Appellete Side)
Kaushik Mallick vs West Bengal College Service Commission ... on 13 August, 2010
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Md. Abdul Ghani
F.M.A. 695 of 2010
With
C.A.N. 4260 of 2010
Kaushik Mallick
Versus
West Bengal College Service Commission & Ors.
For the Appellant : Mr. Soumya Mazumdar
Mr. Dinabandhu Dan
Mr. Dipankar Ghosh
For the Respondent Nos. 5 & 6 : Mr. Arabinda Bhattacharyya
Ms. Sujata Sarkar
For the College Service
Commission : Mr. Pulak Ranjan Mondal
Heard On: 21.07.2010 & 02.08.2010
Judgment On: 13.08.2010.
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PRANAB KUMAR CHATTOPADHYAY, J.
The appellant herein applied for the post of Lecturer in Non- Government affiliated colleges of West Bengal pursuant to an advertisement published in the newspaper by the respondent-West Bengal College Service Commission. The said appellant had also exercised option for appointment in any affiliated college in the territory of West Bengal.
The respondent-College Service Commission prepared and published a merit panel of successful candidates wherein the name of the appellant was mentioned against Serial No. 64 in respect of Calcutta University, Serial No. 52 for Burdwan University and Serial No. 26 in respect of North Bengal University. It is the specific case of the appellant that less meritorious candidates were appointed in the affiliated colleges superseding the appellant herein. It has been specifically urged on behalf of the appellant that the respondent-West Bengal College Service Commission recommended less meritorious candidates who were placed below the appellant herein in the merit panel for appointment in the affiliated colleges in West Bengal.
The appellant herein, however, participated in the subsequent selection process conducted by the West Bengal College Service 3 Commission in the year 2003. It is the specific stand of the appellant that he was unaware of the fact that the less meritorious candidates in the merit panel were illegally recommended by the West Bengal College Service Commission for appointment to the affiliated colleges superseding the rightful and legitimate claim of the said appellant who secured higher position in the merit panel.
Mr. Soumya Majumder, learned Counsel representing the appellant submitted that the said appellant never thought that the West Bengal College Service Commission being a statutory authority would allow illegal supersession by recommending less meritorious candidates who were placed below the appellant herein in the merit panel for appointment to the post of Lecturer in the affiliated colleges in West Bengal. In any event, after coming to know of the aforesaid fact, the appellant herein filed a writ petition before this court challenging the illegal action of the respondent-West Bengal College Service Commission. The said writ petition was finally disposed of by the impugned judgment and order under appeal passed by the learned Single Judge of this court on March 12, 2010 whereby and whereunder the said learned Judge dismissed the writ petition on merits.
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On examination of the impugned judgment and order under appeal passed by the learned Single Judge we find that the respondent-West Bengal College Commission categorically denied before the learned Single Judge that during the lifetime of the panel appellant herein was superseded by any candidate of lesser merit. The learned Single Judge specifically held that the allegation of the appellant regarding supersession by persons of lesser merit could be decided only during the lifetime of the panel and since the life of the panel expired on September 7, 2001, no relief can be granted to the appellant at present.
Mr. Pulak Ranjan Mondal, learned Counsel representing the respondent-West Bengal College Service Commission submitted that the merit panel was finalised in September 8, 2000 and the said panel remained valid till September 7, 2001 in terms of Regulation 8(3) of the West Bengal College Service Commission (Manner of Selection of Persons for Appointment to the posts of teachers including Principals) Regulations, 1980. Mr. Mondal further submitted that the appellant herein applied for the post of Lecturer in response to the subsequent advertisement published by the West Bengal College Service Commission in the year 2003 and appeared for interview before the said Commission by abandoning and/or waiving his rights in relation to the previous panel published in the year 2000. According to the learned Counsel of 5 the respondent-College Service Commission, appellant herein cannot claim any right for appointment to the post of Lecturer in view of inclusion of his name in the merit panel prepared in the year 2000 since the life of the said panel expired on September 7, 2001. The learned Counsel of the respondent-College Service Commission also submitted that no relief can be granted to the appellant herein due to the expiry of the life of the panel before filing of the writ petition in the year 2007. Mr. Mondal specifically urged before this court that no direction can be issued by this court for recommending the name of the appellant for appointment to the post of Lecturer in any college after expiry of the life of the panel in question.
Mr. Mondal referred to and relied on an unreported Division Bench judgment of this court whereby two appeals being M.A.T. 3940 of 1999 (West Bengal College Service Commission vs. Dr. Sunil Chandra Mondal & Ors.) and M.A.T. 3941 of 1999 (West Bengal College Service Commission vs. Dr. Niranjan Saha & Ors.) were disposed of upon observing that there could be no occasion for any appointment out of the panel in question after expiry of the life of the said panel. Mr. Mondal also submitted before this court that the writ petition was not maintainable due to expiry of the life of the panel since the said appellant ceased to be an 6 empanelled candidate when the writ petition was moved before this court.
Opposing the claim of the appellant, learned Counsel of the respondent-College Service Commission further submitted that the appellant herein came to know about the alleged discrimination in relation to the recommendation of the names before 22nd April, 2002 since by the letter dated 22nd April, 2002 said appellant drew the attention of the Chairman of the College Service Commission towards the aforesaid discriminatory treatment which has been subsequently mentioned by the learned Advocate of the appellant in the written representation dated 8th September, 2006. Mr. Mondal did not enlighten this court about the fate of the aforesaid representation dated 22nd April, 2002. However, the grievance of the appellant was admittedly, not redressed. Even assuming there has been some delay in approaching this court, delay alone is no ground for denying relief in a clear case of discrimination and violation of fundamental rights as enshrined under Articles 14 and 16 of the Constitution of India.
The respondent-College Service Commission could not furnish any valid reason for not recommending the name of the appellant for appointment to the post of Lecturer in any college even though the candidates of lesser merit placed in the merit panel below the 7 appellant herein were recommended for appointment. Mr. Mondal strenuously argued that the appellant herein had waived and/or abandoned his right on the basis of the merit panel published in the year 2000 by his conduct on account of his participation in the subsequent selection process.
The learned Counsel representing the private respondents virtually adopted the arguments advanced on behalf of the respondent-College Service Commission. The learned Counsel of the private respondents specifically submitted that the appellant herein erroneously waived and/or abandoned his right and, therefore, subsequently cannot claim enforcement of such abandoned right in a court of law. According to the learned Counsel of the private respondents, the appellant had virtually waived his rights by conduct.
The learned Counsel of the private respondents referred to and relied on a judgment of the Supreme Court in the case of Krishan Bahadur vs. M/s. Purna Theatre & Ors. reported in 2004 (2) CLJ (SC) 177.
The learned Counsel of the private respondents also submitted that merely empanelment of the appellant cannot and does not give any right to claim appointment. The learned Counsel of the private 8 respondents relied on the following judgments in support of the aforesaid argument:
1) AIR 1994 SC 736 [State of Bihar & Ors. vs. The Secretariat Assistant, Successful Examinees Union 1986 and Ors.]
2) 1996 (1) CLJ 425 [State of West Bengal vs. Manoranjan Mondal & Ors.]
3) AIR 1991 SC 1612 [Shankarsan Dash vs. Union of India] The principal question that falls for consideration before us is whether the West Bengal College Service Commission committed any illegality by not recommending the name of the appellant for appointment to the post of Lecturer to any affiliated college in the territory of West Bengal in view of his position in the merit panel. The other important issue which requires consideration is whether the principle of waiver, estoppel and acquiescence can apply in the present case when there is no conscious relinquishment of any known right by the appellant.
It is not in dispute that the West Bengal College Service Commission prepared the merit panel on assessing the merits of the candidates and arranged the names of the successful candidates serially according to the merit. Therefore, the candidates placed below the appellant in the merit panel should be considered as less meritorious.
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In the present case, appellant has challenged the legality and/or validity of the action of the respondent-College Service Commission in the matter of recommending the names of the less meritorious candidates for appointment to the post of Lecturer superseding the appellant herein who was undisputedly, placed in the higher position in the merit panel as a more meritorious candidate. In view of expiry of the life of the panel, appellant herein cannot be remediless inspite of detection of the illegality committed by the respondent-College Service Commission.
In the case of Purushottam vs. Chairman, M.S.E.B. and another reported in (1999) 6 SCC 49, Hon'ble Supreme Court observed:
"4.................................The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant's right to be appointed to the post has been illegally taken away by the employer......................................."
It has been argued on behalf of the learned Counsel of the respondent-College Service Commission that the appellant herein had submitted a defective application form and, therefore, he was not eligible for being recommended. The aforesaid stand, however, was not taken in the affidavit-in-opposition filed before the 10 learned Single Judge and also in the affidavit-in-opposition subsequently filed by the respondent-College Service Commission in connection with the Stay application.
Furthermore, the name of an ineligible candidate cannot be placed in the merit panel whereas the respondent-College Service Commission admittedly, included the name of the appellant in the merit panel. However, no valid reason has been assigned on behalf of the respondent-College Service Commission for not recommending the name of the appellant for appointment to the post of Lecturer inspite of mentioning the name of the said appellant in the merit panel. The respondent-College Service Commission could not recommend the names of the candidates empanelled below the appellant in the merit panel for appointment to the post of Lecturer superseding the claim of the appellant herein being a more meritorious candidate.
For the aforementioned reasons, we are unable to accept that the appellant was ineligible for being recommended. In the event, there was any defect in the application form submitted by the appellant herein then the respondent-College Service Commission could not include the name of the appellant in the merit panel. 11
It has been submitted on behalf of the respondent-Commission that the appellant herein did not exercise option for three Universities and five Districts as required under Clause 8(B) of the prescribed application form. The said Clause 8(A) and (B) are set out hereunder:
" 8. Option for University and District :
A. ANY AFFILIATED COLLEGE IN THE TERRITORY OF WEST BENGAL - Yes/No B. If 'No' to A, State the name(s) of the University(s) and District(s) opted for :"
The appellant herein struck out the word 'No' against Clause 8(A) and, therefore, the said appellant was not required to exercise option for three Universities and five Districts in terms of Clause 8(B) of the application form.
In the aforesaid circumstances, it cannot be said that the appellant herein was not entitled to be recommended for appointment due to non-mentioning of the names of the three Universities and five Districts in terms of Clause 8(B) of the application form.
From the aforesaid facts, it is clear that the appellant herein would have been automatically recommended for appointment 12 to the post of Lecturer in any affiliated college in the territory of West Bengal had the respondent-College Service Commission not committed gross illegality by recommending the less meritorious candidates. The aforesaid illegality committed by the College Service Commission cannot be allowed to perpetuate by this court under any circumstances.
In order to do substantial justice to a citizen this Court should take every possible step. In the present case, appellant herein cannot suffer injustice due to expiry of the life of the panel since during the life time of the said merit panel, appellant herein did not know that the less meritorious candidates were illegally recommended by the respondent-College Service Commission for appointment to the post of Lecturer superseding the rightful and legitimate claim of the appellant herein.
Exhaustion and/or expiry of the life of the merit panel cannot be a ground to defeat the rightful and legitimate claim of the appellant since the respondent-College Service Commission by their illegal acts frustrated the very object of preparing the merit panel by recommending the less meritorious candidates superseding the appellant herein who secured higher position in the merit panel as more meritorious candidate. The action of the respondent-College Service Commission in this regard cannot be 13 approved by this Court. The appellant herein could not be superseded by any candidate of lesser merit under any circumstances and the College Service Commission by doing so has committed serious illegality which cannot be sustained in the eye of law.
In the present case, undisputedly, the private respondents namely, the respondent Nos. 5 and 6 were placed below the appellant herein in the merit panel being less meritorious candidates. The respondent-College Service Commission illegally recommended the aforesaid private respondents for appointment to the post of Lecturer in the affiliated colleges in the territory of West Bengal without recommending the name of the appellant who secured higher position than the aforesaid respondents in the merit panel. On account of the aforesaid illegal action on the part of the respondent-College Service Commission appellant herein has suffered serious prejudice since the said appellant has not yet been recommended for appointment to the post of Lecturer whereas the less meritorious candidates like the private respondents have been appointed to the post of Lecturer in the affiliated college pursuant to the recommendation of the respondent-College Service Commission.
14In the aforesaid circumstances, the appellant cannot be remediless only on the ground of expiry of the life of the panel. The appellant had no control on the respondent-College Service Commission and the aforesaid illegal action on the part of the respondent-Commission came to the notice of the appellant afterwards. Therefore, it cannot be said that the appellant herein waived his right by appearing at the subsequent selection test in the year 2003. The appellant cannot be said to be conscious about the waiver of his right since the said appellant had no knowledge regarding recommendation of the less meritorious candidates like the private respondents herein by the respondent-Commission for appointment to the post of Lecturer.
For the aforementioned reasons, we are unable to approve the decision of the learned Single Judge and set aside the impugned judgment and order under appeal passed by the said learned Judge. Since a considerable time has already lapsed we are not inclined to disturb the settled position by issuing any direction to the respondent-College Service Commission and/or the concerned College to remove the less meritorious candidate from service and appoint the appellant in place of the said less meritorious candidate who was admittedly, placed below the appellant in the merit panel.
15In view of the aforesaid special circumstances, we direct the respondent-West Bengal College Service Commission to recommend the name of the appellant for appointment to the post of Lecturer in any affiliated college in the territory of West Bengal against the next available vacancy.
With the aforesaid directions, both the appeal and the connected Stay Application stand disposed of. In the facts and circumstances of the present case, there will be, however, no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] MD. ABDUL GHANI, J.
I agree.
[MD. ABDUL GHANI, J.]