Calcutta High Court (Appellete Side)
Public Service Commission & Another vs Abdul Haque & Others on 3 November, 2016
Author: Tapabrata Chakraborty
Bench: Nishita Mhatre, Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Nishita Mhatre
&
The Hon'ble Justice Tapabrata Chakraborty
WPST No.67 of 2016
Public Service Commission & Another
Vs.
Abdul Haque & Others
And
WPST No.82 of 2016
Public Service Commission & Another
Vs.
Sekhar Das
And
WPST No.83 of 2016
Public Service Commission & Another
Vs.
Joy Banerjee
And
WPST No.84 of 2016
Public Service Commission & Another
Vs.
Amrita Sanyal
And
WPST No.85 of 2016
Chairman, PSC & Another
Vs.
Munmun Sahu
And
WPST No.86 of 2016
Chairman, PSC & Another
Vs.
Suprasanna Roy
And
WPST No.87 of 2016
Chairman, PSC & Another
Vs.
Rathin Biswas
And
WPST No.88 of 2016
Public Service Commission & Another
Vs.
Moumita Mitra
And
WPST No.90 of 2016
Chairman, PSC & Another
Vs.
Soumyadip Chakraborty
And
WPST No.91 of 2016
Public Service Commission & Another
Vs.
Ashis Kumar Saha
And
WPST No.92 of 2016
Public Service Commission & Another
Vs.
Chanchal Sen
And
WPST No.93 of 2016
Public Service Commission & Another
Vs.
Banani Das
And
WPST No.94 of 2016
Chairman, PSC & Another
Vs.
Snehashis Mondal
And
WPST No.95 of 2016
Public Service Commission & Another
Vs.
Sangita Datta
And
WPST No.135 of 2016
Joy Banerjee & Ors.
Vs.
State & Others
And
WPST No.113 of 2016
Banani Das
Vs.
State & Others
For the Public
Service Commission : Mr. Pradip Kumar Roy,
Ms. Shraboni Sarkar,
Mr. Debasish Karmakar.
For the Writ Petitioner in WPST No.135
of 2016 & Private Respondents in WPST
Nos.83, 86 & 90 : Mr. Kallol Basu,
Ms. Juin Dutta Chakraboty,
Mr. Kaushik Bhatta.
Petitioner in-person
in WPST No. 113 of 2016 : Ms. Banani Das.
For the State in WPST Nos. 67,
88, 90, 92, 94 & 113 of 2016 : Mr. Joytosh Majumdar,
Mr. Pinaki Dhole.
For the State in WPST
No.84 of 2016 : Mr. Tapan Kumar Mukherjee,
Mr. Nilotpal Chatterjee.
For the State in WPST
Nos.85, 88, 90 & 92 of 2016 : Mrs. Chaitali Bhattacharya,
Mr. Tapas Ballav Mondal.
For the State in WPST
No.83 of 2016 : Mr. Sadhan Kumar Halder,
Mr. Zakir Hossain.
For the Private Respondents
No.1-4 in WPST No.67
of 2016 & for all the Private
Respondents in, 92 &
94 of 2016 : Mr. Prabal Mukherjee,
Mr. Suhrid Sur.
For the Private Respondent
in WPST No.95 of 2016 : Mr. Kishore Dutta,
Mr. Hiranmoy Bhattacharyya,
Mr. Tanmoy Mukherjee.
For the added Respondent
Nos. 5-13,16 &18 in
WPST No.67 of 2016 : Mr. Sirsanya Bandopadhyay,
Mr. Arka Kumar Nag.
For the Respondents in
WPST Nos. 82,84, 88, 91
& Respondents No.11-13
in WPST No.113 of 2016 : Mr. Masud Karim.
For the Respondent in
WPST No.85 of 2016 &
Private Respondent in
WPST 113 of 2016 : Mr. Biswabrata Basu Mallick,
Mr. Kishalaya Sarkar.
For the Respondent No.14
in WPST No.67 of 2016 : Mr. Swagata Bhattacharyya,
Mr. Sunil Kumar Roy.
Hearing is concluded on : 29.09.2016.
Judgment On : 3rd November, 2016.
Tapabrata Chakraborty J. :
The judgment passed by the learned Tribunal on 10th February, 2016 is under challenge in all the writ petitions and as common questions of law and fact are involved, all the writ petitions have been heard analogously.
Shorn of unnecessary details, the facts are that for appointment to the posts in West Bengal Legal Service, the Public Service Commission of West Bengal (hereinafter referred to as PSC) published an advertisement No.07/2013 inviting applications from eligible candidates to fill up 50 vacancies [23- unreserved, 10- schedule caste, 06- schedule tribe, 05- backward class (category -'A'), 03- backward class (category -'B') and 03-physically handicapped (low vision-01 and hearing impaired-02)]. Pursuant to the said advertisement, 606 candidates applied and they were called for the written test which was held in the month of December, 2013. Amongst the said 606 candidates, 92 candidates were selected for personality test which was held in the month of December, 2014. Prior thereto, a full Commission meeting was held in the chamber of the Chairman, PSC on 19th September, 2014, wherein it was, inter alia, decided that excepting West Bengal Civil Services (Executive) etc. Examination and West Bengal Judicial Services Examination, in all cases of recruitment examination qualifying cut-off mark will be fixed at all stages for all categories as in selection cases. In terms of the said resolution, the personality test was conducted and subsequent thereto, a common merit list was published by PSC containing names of 606 candidates. PSC also published a communication in its official website indicating the cut-off mark fixed in respect of the selection process and on the basis of the same, 20 candidates from general category and 3 candidates from schedule tribe category were recommended for appointment vide memorandum dated 16th March, 2015. The State Government partly accepted such recommendation and granted appointment to 13 candidates in general category and 3 candidates in schedule tribe category after conducting police verification and medical examination.
Challenging the said selection process candidates, namely, Snehashis Mondal (OA-437/2015); Abdul Hoque (OA-429/2015); Sangita Dutta (OA-807/2015); Chanchal Sen (OA-412/2015); Amrita Sanyal (OA-413/2015; Moumita Mitra (OA-414/2015); Sekhar Das (OA-415/2015); Ashis Kr. Saha (OA-416/2015); Munmun Sahu (OA- 436/2015) and Rathin Biswas (OA-470/2015) [he had prayed for preparation of a separate panel for the post of schedule caste category candidates amongst other reliefs] had prayed for recasting the panel prepared by the Commission on the basis of the marks obtained by them in their written and personality test without taking into account the cut-off mark for the personality test which was subsequently applied by the PSC. The candidates, namely, Joy Banerjee (OA-1128/2015); Soumyadip Chakraborty (OA-1182/2015); Suprasanna Roy (OA-1183/2015) including the applicant Banani Das (OA-1274/2015) have prayed for necessary directions on the law department for allowing them to join the service in view of their selection as intimated by the PSC, WB. The said applications were clubbed together and heard analogously by the learned Tribunal and the judgment was delivered on 10th February, 2016 which is under challenge in the present writ petitions.
Mr. Roy, learned advocate appearing for PSC submits that a perusal of averments made in the original applications would reveal that there is, in fact, no challenge against the entire selection process. The applicants have, in fact, prayed for recasting the merit list on the basis of the total marks obtained in the written test and personality test excluding the cut-off mark specified towards personality test and the aggregate marks. According to him, a composite reading of the said Rules of 2007, the scheme and syllabus as annexed to the advertisement and the resolution dated 19th September, 2014 would reveal that PSC was conferred the discretion to fix qualifying marks at all stages for all categories and to prepare the final merit list on the basis of the total marks obtained in all the written papers and in the personality test. In exercise of such discretion as conferred, PSC adopted a resolution towards fixation of cut-off mark in written test, in personality test and also upon the aggregate marks. Fixation of such cut-off mark thus does not amount to any change in the criteria of the selection in the mid- stream. Cut-off mark was required to be fixed at all stages of selection in order to assess the candidates' intelligence, general knowledge, personality, aptitude and suitability. It was never alleged that PSC had acted in a malafide manner or that the purpose behind such specification of cut-off mark in written test, personality test and in the aggregate was indicative of any intent to exclude the meritorious candidates. The selection as conducted by PSC does not suffer from any vice of arbitrariness or unreasonableness. It is well settled that there cannot be any hard and fast rule regarding the precise weight to be given to the personality test as against the written test. It may vary from service to service according to the requirement of the service, the age group from which the selection is to be made and a host of other factors. It is essentially a matter for determination by experts. The Court does not possess the expertise to pronounce upon the procedure adopted by PSC which is a constitutional and an independent authority. It secures efficiency in the public administration by selecting suitable and efficient persons for appointment to the services. It has to perform its functions and duties in an independent and objective manner uninfluenced by the dictates of any other authority. It is not subservient to the directions of the government. Where the advice and recommendation of PSC is not acceptable, the reasons for such non-acceptance have to be laid before the legislature of the State. In the instant case the State authorities, at the inception, accepted the recommendation of PSC and completed medical test and police verification of all the candidates selected but subsequently only 13 general category candidates and 3 schedule tribe category candidates were given appointment. Such part acceptance of PSC recommendation by the State authorities and that too without disclosure of any reason is not sustainable in law. Mr. Roy further argues that having unsuccessfully participated in the process of selection without any demur, the said candidates are estopped from challenging the selection criteria.
In support of his arguments, Mr. Roy has placed reliance upon the judgments delivered in the cases of Dhananjay Malik & Ors. -vs- State of Uttaranchal & Ors, reported in (2008) 4 SCC 171,Union of India & Ors. -vs- S. Vinodh Kumar & Ors., reported in (2007) 8 SCC 100, Om Prakash Shukla -vs- Akhilesh Kumar Shukla, reported in AIR 1986 SC 1043, Shankarasan Dash -vs- Union of India, reported in 1991 AIR 1612, Barot Vijay Kumar Balakrishna & Ors. -vs- Vinay Kumar Dasrathlal & Ors, Banking Service Recruitment Board Madras
-vs- V. Ramalingam and Ors., reported in (1998) 8 SCC 523, Yogesh Yadav -vs- Union of India, Manjeet Singh UDC & Ors.etc -vs- Employees State Insurance, Rajeev Sharma -vs- The State of H.P. & Ors., reported in AIR 2006 HP 83,Dr. Keshav Ram Pal -vs- U.P. Higher Education Services, reported in AIR 86 SC 597, Anzar Ahmed
-vs- State of Bihar, reported in (1994) 1 SCC 150, D.V. Bakshi & Ors.
-vs- Union of India & Ors., reported in AIR 93 SC 2374, Madan Lal & Ors. -vs- The State of Jammu & Kashmir, reported in 1995 AIR 1088, Sk. Abdul Haque -vs- State of West Bengal & Ors., Mrs. Asha Kaul & Anr. -vs- State of Jammu & Kashmir & Anr., reported in (1993) 2 SCC 573.
Mr. Kallol Bose, learned advocate appearing for the petitioners in WPST 135 of 2016 submits that PSC has conducted the selection process in strict consonance with the provisions of the said Rules of 2007. Drawing the attention of this Court to the said Rules, he submits that the examination was of two successive parts. Part-1 was the written test and part-II was the personality test. The said Rules provided that a limited number of candidates, selected in order of merit on the results of the written test will be called for the personality test and that PSC was also conferred the discretion to fix qualifying in the aggregate. In reasonable exercise of such discretion, cut-off mark was specified at all stages of selection with the intent to eliminate the less meritorious candidates. There is no allegation to the effect that such cut-off mark was fixed with any oblique purpose. The sole purpose was to select the most meritorious candidates strictly on the basis of merit and taking into consideration the nature of work attributable to the posts sought to be filled up and in furtherance of such object the resolution dated 19th September, 2014 was adopted in consonance with the said Rules which left options open for PSC to choose the best procedure. As such the learned Tribunal erred in law in observing that PSC changed the rules of the game in the midway and deviated from the provisions of the recruitment rules.
He further argues that the State did not object to the modus operandi of the selection process as adopted by PSC and conducted medical test and police verification of all the selected candidates but subsequent thereto appointment was restricted to only 13 candidates in general category and 3 candidates in schedule tribe category. Such fragmented acceptance of the recommendation of PSC is untenable in law. PSC is a constitutional body and in the event of any disagreement it is incumbent upon the State authorities to disclose the reasons. Reliance has been placed upon the judgments delivered in the case of Dr. H. Mukherjee -vs- Union of India and others and in the case of B. Ramakichenin Alias Balagandhi -vs- Union of India and others, reported in (2008) 1 SCC 362.
Mr. Swagata Bhattacharyya, learned advocate appearing for the respondent no.14 in WPST 67 of 2016 adopts the submissions made on behalf of PSC and submits that the State respondents have already appointed 13 candidates under general category from the merit list and that 4 candidates in the merit list have already availed appointment in judicial services. There was no infirmity in the procedure adopted towards selection of the successful candidates including the respondent no. 14 and in the absence of any specific challenge against the advertisement and in the absence of any allegation that there was wide spread infirmities in the selection process, the same cannot be set aside. Reliance has been placed upon the judgment delivered in the case of Union of India and others
-vs- Rajesh P.U., Puthuvalnikathu and another, reported in (2003) 7 SCC 285.
Ms. Banani Das, appearing in person, submits that PSC had conducted the selection process in strict consonance with the said Rules of 2007. A composite reading of the Rules would reveal that there were specific provisions towards specification of cut-off mark at all stages of the selection. Such cut-off mark was fixed for the purpose of screening and selecting the most meritorious candidates. The advertisement had not been challenged by the unsuccessful candidates. They, in fact, want that the merit panel should be recast ignoring the cut-off mark as stipulated towards personality test and the aggregate. PSC has the expertise to assess the suitability of a candidate and it enjoys the prerogative to set the standard of evaluation and the Court cannot sit in appeal over such selection. On the date of advertisement itself the candidates were aware that selection would be on the basis of written test and personality test and strictly on the basis of merit. To ascertain such merit and suitability PSC stipulated cut-off mark in all the stages of the examination in consonance with the provisions of the said Rules. Having participated in both the examinations and having failed to succeed the candidates cannot turn back and challenge the same. She further submits that 90% of marks was apportioned for written test and 10% of marks was apportioned for personality test and such apportionment was reasonable and the cut-off mark specified at the three stages of selection was uniformly applied category wise. Placing reliance upon the judgment delivered in the case of Asha Kaul (supra) she submits that the State authorities could not have accepted the recommendation of PSC partly. Apart from the judgments delivered in the cases of Lila Dhar (supra), Anzar Ahmed (supra), Madan Lal (supra) reliance has been also placed upon various other judgments delivered dealing with the proposition of law as regards fixation of cut-off marks and shortlisting and as regards the issues discussed in the judgments upon which reliance has been placed on behalf of the PSC authorities.
Mr. Prabal Mukherjee, learned advocate appearing for the private respondents in WPST 67 of 2016, WPST 92 of 2016 and WPST 97 of 2016 submits that the said Rules of 2007 did not prescribe any minimum mark or cut-off mark to be secured by the candidates in the personality test and also in the aggregate. PSC had no power to exclude the names of the candidates, who could not secure the said cut-off mark in the personality test and also in the aggregate as set by PSC, in the midst of the selection process. The additional condition towards specification of cut-off mark in personality test does not find any place in the Rules of 2007 and as such, PSC had, in fact, acted beyond the provisions of the said Rules of 2007 and such action has maligned the entire selection process. PSC has acted beyond its jurisdiction and has set up its own procedure in a most illegal and malafide manner. By the impugned resolution dated 19th September, 2015, PSC brought into effect new provisions and modified the selection process and deviated from the stipulation made in the advertisement which tantamount to "change of the rules of the game after the game is over". In support of such contention, reliance has been placed upon the following judgments delivered in the case of Durgacharan Misra -vs- State of Orissa and others, reported in (1987) 4 SCC 646 and in the case of Ramesh Kumar -vs- High Court of Delhi and another, reported in (2010) 3 SCC 104 and in the case of Hemani Malhotra -vs- High Court of Delhi, reported in (2008) 7 SCC 11.
Mr. Kishore Dutta, learned advocate appearing for the private respondent in WPST 95 of 2016 submits that by stipulating the cut- off mark in the personality test, PSC has clearly acted in derogation to the said Rules of 2007. No discretion was conferred and no elbow space was given to PSC for specification of any cut-off mark at the stage of the personality test or in the aggregate. PSC could not have acted beyond the statutory rules. Merit has been compromised due to stipulation of such cut-off mark in personality test and in the aggregate. The candidate, namely, Sangita Dutta, who had secured the second highest marks in the written test had been denied selection and appointment since she could not secure more than the cut-off mark as stipulated in personality test. Upon adding the marks obtained in written test and personality test Sangita obtained 508.5 which is more than 100 marks above the aggregate marks of the last candidate selected under general category. The process adopted by PSC has severely affected the meritorious candidates, in fact, merit has been compromised. Reliance has been placed upon the following judgment delivered in the case of Raj Kumar & Ors. etc. -vs- Shakti Raj & Ors. etc., reported in AIR 1997 SC 2110 (para 6).
The learned advocate appearing for the private respondents in WPST Nos.82, 84, 88 and 91 of 2015 submits that the said respondents cannot be treated to be unsuccessful candidates inasmuch as had there been no specification of any cut-off mark in personality test they would have come within the zone of selection. There is nothing in the advertisement, the syllabus, the scheme, the recruitment rule of 2007 to show that PSC had the authority to stipulate any cut- off mark in the personality test. In the absence of such provision, PSC could not have stipulated any cut-off mark for personality test. Such action is ex-facie derogatory to the provision of the said Rules. Furthermore, the purported decision to incorporate a cut-off at all stages of selection was adopted of PSC after commencement of the examination process.
Mr. Banerjee, learned advocate appearing for the respondent nos.5 to 13, 16 and 18 in WPST 67 of 2016 submits that they were not made parties to the original application before the learned tribunal though they were selected and appointed in the month of October, 2015. Due to such non-impleadment, the said respondents did not get any opportunity to appear and contest the matter before the learned Tribunal. The decision taken by the learned Tribunal in the absence of necessary parties is a nullity in the eye of law. Their impleadment in the writ petition before this Court does not remedy such defect and on the said ground itself the impugned judgment is liable to be set aside been violative of the principles of natural justice. The respondents' right would be infringed only in the event the entire selection process is set aside inasmuch as even if the merit list is recast, the said respondents, on merit, would remain within the zone of selection and appointment. The said respondents by dint of their merit have been selected and appointed and such selection and appointment cannot be touched and cannot be frustrated at this stage when most of them have even appeared in departmental examinations after appointment to the concerned posts. PSC, in exercise of the discretion conferred by the statutory rules, stipulated the cut-off mark at all stages of selection with the intent to select meritorious and competent persons to the posts concerned. A strict procedure has been adopted to screen the candidates so that bad waters do not creep in the service and there is no infirmity in the process warranting interference of this Court.
Mr. Majumder, learned advocate appearing for the State respondents submits that PSC cannot act in derogation to the recruitment rules. In the said Rules of 2007, there is no provision to the effect that cut-off mark is required to be specified in personality test and in the aggregate. There is also no provision to that effect in the advertisement and the scheme. Candidates were invited to participate in the selection process disclosing the conditions of the examination. Such conditions were sought to be modified by PSC by virtue of the resolution dated 19th September, 2014 and that too in the midst of the selection process. The said resolution was not even communicated to the participants. PSC has acted without jurisdiction and in a whimsical manner without adhering to the statutory rules. After recommendation was made by PSC, the State authorities scrutinised the records and appointed only those candidates who were successful in terms of the provisions recruitment rules and the advertisement and whose names would remain in the selected list, even in the event of recast of the recommended list, in future. There is no infirmity in such steps taken by the State respondents as the State is not bound by the recommendations of the PSC. In support of such contention reliance has been placed upon the judgments delivered in the case of Joginder Pal and others -vs- State of Punjab and others, reported in (2014) 6 SCC 644 and in the case of Union of India and others -vs- Rajesh P.U., Puthuvalnikathu and another, reported in (2003) 7 SCC 285 and in the case of Dr. Krushna Chandra Sahu and others -vs- State of Orissa and others, reported in (1995) 6 SCC 1 and in the case of Bedanga Talukdar -vs- Saifudaullah Khan and others, reported in (2011) 12 SCC 85.
In reply, Mr. Roy, learned advocate appearing for PSC submits that the entire selection process was conducted upon due consultation with the State authorities and even in the meeting of the Commission held on 19th September, 2014 the Joint Secretary of Law and Joint Secretary of Establishment were personally present. They did not raise any objection whatsoever as regards the decision to incorporate cut-off mark at all stages of the examination. Upon part acceptance of PSC recommendation, the State authorities cannot change their stand. Furthermore, the denial to accept such recommendation was nothing but an afterthought. Such action of the State authorities is not sustainable in law.
Heard the learned advocates appearing for the respective parties and considered the materials on record.
For adjudication of the lis involved in the instant writ petitions the extracts of the West Bengal Legal Service (Recruitment) Rules, 2007 (hereinafter referred to as the said Rules of 2007), the advertisement together with the scheme and syllabus and the document disclosing the cut-off mark need to be quoted as follows:
1. The cut-off mark to qualify for appearing in the personality test was fixed as follows :-
I. General - 346.5 out of 900 marks - 38.5%;
II. BC-A - 288 out of 900 marks - 32%;
III. BC-B - 324 out of 900 marks - 36%;
IV. SC - 270 out of 900 marks - 30%;
V. ST - 252 out of 900 marks - 28%.
The qualifying mark in personality test was set as follows :-
I. General - 40 being 40% of total 100 marks;
II. BC-A - 38 being 38% of total 100 marks;
III. BC-B - 38 being 38% of total 100 marks;
IV. SC - 35 being 35% of total 100 marks;
V. ST - 30 being 30% of total 100 marks.
The highest and lowest marks in aggregate obtained by the candidates recommended against unreserved vacancies were as follows :-
I. Highest - 494.5 - aggregate (out of 1000);
II. Lowest - 403 - aggregate (out of 1000).
The highest and lowest marks recommended against ST vacancies were as follows :
I. Highest - 367 - aggregate (out of 1000);
II. Lowest - 329 - aggregate (out of 1000).
2. The West Bengal Legal Service (Recruitment) Rules, 2007;
Rule 2 : Method of recruitment.- By direct recruitment on the results of written examination, followed by a personality test to be conducted by the Public Service Commission, West Bengal. Employees serving under Government of West Bengal with requisite qualifications are also eligible to apply. Rule 5 : Rules and syllabus for the examination.- The rules and syllabus for the examination shall be as detailed in the Schedule appended to these rules.
SCHEDULE The examination will comprise two successive parts:-
Part - I Written Examination;
Part - II Personality Test.
Part II. Personality Test.- The Personality Test will be of 100 marks.
For this purpose, a limited number of candidates, selected in order of merit on the results of the Written Examination will be called.
Final merit list will be prepared on the basis of the total marks obtained in all the written papers and in the personality test.
N.B. - (1) The Public Service Commission, West Bengal shall have the discretion to fix qualifying marks in the aggregate.
(2) The standard of examination in Law Papers will be that of L.L.B. Degree of the Calcutta University. (3) All papers must be written either in English or in Bengali except Paper I.
3. The contents of the advertisement No.07/2013 along with the scheme and syllabus towards the West Bengal Legal Services Examination, 2013 (hereinafter referred to as the said Examination of 2013) :
Part-II. Personality Test.- The Personality Test will be of 100 marks. For this purpose, a limited no. of candidates selected in order of merit on the results of the written examination will be called. Final merit list will be prepared on the basis of the total marks obtained in all the written papers and in the Personality Test.
The Public Service Commission, West Bengal shall have the discretion to fix qualifying marks in the aggregate.
The standard of examination in the Law papers (Compulsory and Optional) will be that of the L.L.B. Degree of the Calcutta University. All answers must be written either in English or in Bengali except in Paper-I. In all the answer papers of the Final Examination due credit will be given for proper economy of words combined with clarity and effectiveness of expression and originality of approach.
From the provisions of the said Rules of 2007 it is explicit that PSC had no jurisdiction to specify any cut-off mark for personality test. Under the said Rules, the Commission was required to prepare a list of candidates approved by it for appointment to the service and that the list of selected candidates should be arranged in order of merit on the basis of the aggregate marks finally awarded to each candidate in written as well as in viva voce test. The contents of the advertisement, the syllabus and scheme do not reveal that the candidates were notified about any specification of cut-off mark prior to the examination. From the contents of the resolution dated 19th September, 2014 it is explicit that on the said date PSC decided that "excepting West Bengal Civil Services (Executive) etc. Examination & West Bengal Judicial Services Examination, in all cases of recruitment examination qualifying cut-off marks will be fixed at all stages for all categories as in Selection cases". Thus, PSC included an additional criterion of selection after commencement of the selection process. PSC could not have at its whim, at any point of time and without notice to the candidates, fixed cut-off mark for personality test. As such we do not find any infirmity in the observation of the learned Tribunal to the effect that PSC "had changed the rule of the game in the midway and also deviated from the provision of the Recruitment rules" and that the PSC "has exceeded its brief keeping the State in the dark about the introduction of cut-off marks in the Personality Test".
The rider in the said Rules to the effect that PSC shall have the discretion to fix the qualifying marks in the aggregate has to be read pertaining to the vacancies. The aggregate is the last stage of selection and is restricted to the number of vacancies unlike the first stage of selection being the written test where the cut-off is relatable to the ratio of the vacancies with the number of candidates who apply pursuant to the advertisement. The scheme underlying the said Rules does not lead to any conclusion to the effect that obtaining of cut-off mark in the viva voce and in the aggregate was the sine qua non before the PSC could proceed to make its recommendation in favour of a candidate for appointment to the service. Adoption of such method by PSC had led to exclusion of meritorious candidates. To cite an instance, one Shri Arindam Chakraborty, who secured 513 marks in the aggregate was ousted from the zone of selection and appointment since he was only 2 marks short of the cut-off fixed in personality test though in the aggregate he had secured 113 marks more than the last empanelled candidate in general category. Due to specification of such cut-off mark, in spite of there being vacancies, no schedule caste, other backward class 'A' category and 'B' category candidates were recommended [except two BC - 'A' candidates in general category, namely, Md. Jonny Ul Haque Mullick and Md. Samim Alam]. To cite a further instance, one BC - 'A' category candidate, namely, Abdul Hoque was not selected and empanelled though he had scored above the cut-off mark in written test and in the personality test, since he failed to secure the cut-off mark in the aggregate.
In exercise of its authority conferred by the Constitution, State has framed the said Rules of 2007 to constitute a State Legal Service. In the absence of any challenge against the said Rules we are not called upon to scrutinise the same. Furthermore, what would be the need of the State and how an administration shall be run is within the exclusive domain of the State. The power of judicial review in such matters is very limited. The superior judiciary ordinarily would not interfere in a matter involving a policy decision.
It is well settled that the selectees do not have any legal right of appointment subject, inter alia, to bona fide action on the part of the State. Such principle stands reflected in the cases of Shankarsan Dash (supra), Asha Kaul (supra) and Rajeev Sharma (supra). There is also no dispute as regards the proposition of law that the object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job avoiding patronage and favouritism as reflected in the cases of Lila Dhar (supra), Dr. Keshab Ram Pal (supra), Anzar Ahmed (supra) and D.V. Bakshi (supra). In the instant case there is no allegation of malafide or that the merit list has been prepared in an arbitrary manner based on extraneous considerations.
Mr. Roy, learned advocate appearing for PSC has placed reliance upon the judgments delivered in the cases of Dhananjay Malik (supra), Om Prakash Shukla (supra), Madan Lal (supra) in support of the proposition of law that having unsuccessfully participated in the process of selection without any demur, the candidates are estopped from challenging the selection criteria. The said judgments have no manner of application in the instant lis since the applicants, who approached the learned Tribunal praying for direction towards appointment, were not unsuccessful candidates since their names stood incorporated in the final merit list but were denied recommendation by PSC upon application of an additional criterion fixed towards selection subsequent to commencement of the selection process.
The judgments delivered in the cases of S. Vinodh Kumar (supra), Barot Vijaykumar Balakrishna (supra), Banking Service Recruitment Board (supra) also do not support the contention of PSC in as much as in the said judgments the cut-off mark fixed was not in derogation to the statutory rules governing recruitment. In the case of Barot Vijaykumar Balakrishna (supra), the Hon'ble Supreme Court distinguished the earlier judgments delivered in the cases of K. Manjusree vs. State of Andhra Pradesh & another, reported in (2008) 3 SCC 512 and in the case of Himani Malhotra vs. High Court of Delhi reported in (2008) 7 SCC 11 opining inter alia that in view of omission of specification of cut-off mark for viva voce in the advertisement, the Commission rightly fixed the cut-off mark for viva voce and notified the candidates called for interview. The judgments delivered in the cases of Yogesh Yadav (supra) and Manjeet Singh (supra) also do not support the contention of PSC inasmuch as the same were delivered in the backdrop of non-stipulation of cut-off mark in the advertisement. It had been the consistent view of the courts that PSC is a recommendatory body and that it is bound to act in terms of the statutory rules. In the cases of Dr. H. Mukherjee (supra) and B. Ramakichenin Alias Balagandhi (supra) no different view has been taken by the Court.
The facts involved in the instant lis are, however, almost identical to the facts involved in the case of Durgacharan Misra (supra), as relied upon on behalf of the state respondents. In the said case the statutory rules provided for a written test followed by a viva voce test. The petitioner therein could not find a place in the merit list though the candidates securing less number of aggregate marks than that of the petitioner were selected and the petitioner was not recommended as he failed to secure the cut-off mark stipulated by the Commission in the viva voce test. The Court held that in the absence of prescription of cut-off mark in viva voce in the statutory rules, the Commission had no power to prescribe the minimum standard at viva voce test for determining suitability of the candidates.
It is well settled that what can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. The learned Tribunal, upon dealing with all the factual issues arrived at specific findings in consonance with the judgments of the Hon'ble Supreme Court and we do not find any error in the judgment impugned. The process of selection commenced in the 2013, the candidates participated in the same and the select list was published almost one year thereafter and out of a total of 90 candidates, whose names featured in the said select list, recommendation was issued in favour of only 23 candidates upon stipulating cut-off mark in the personality test and also in the aggregate pursuant to a decision adopted subsequent to commencement of the selection process and as a consequence thereof meritorious candidates succumbed to the procedural rigmarole and in the contextual facts any direction to conduct the selection process afresh would add to the misery of those candidates who would have been recommended and appointed had no such rider towards stipulation of cut-off mark in personality test and also in the aggregate been applied by PSC.
In our opinion fixation of cut-off mark by PSC in personality test and upon the aggregate marks, arrived at upon adding the marks obtained by the candidates in the written test and the personality test, is not sustainable in law. 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 petitions are, accordingly, dismissed.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, J.) Later After the judgment is pronounced, Mr. Roy, the learned Counsel appearing for the Public Service Commission seeks a stay of the same.
In view of the reasons stated in the judgment, the stay is refused.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, J.)