Calcutta High Court
Gopal Sinha vs Palas Sarkar on 13 September, 2006
Equivalent citations: 2007(1)CHN42
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
JUDGMENT Ashim Kumar Banerjee, J.
1. Before we enter into the subject controversy we would be failing in our duty if we do not discharge the unpleasant task of resolving the controversy on a comment made by Coordinate Bench.
2. On perusal of the order impugned it appears that the another learned Judge while disposing of another writ petition made a comment on the order of the Co-ordinate Bench. The comment was as follows:
The seed of nepotism in appointment is ingrained and blessed by this Court.
3. We have gone through the subject controversy as recorded by the learned Judge in the order impugned. The learned Judge in the order impugned took such comment most seriously. It appears that His Lordship was pained by such remark as the remark was made on the order passed by the same learned Judge being His Lordship. We fully share the shock and pain His Lordship had after going through such comment made by a Coordinate Bench. The other learned Judge, in our view, probably had overlooked that the reason for making such comment was unwarranted as the fact on the basis of such comment was made was perhaps unknown to the learned Judge while passing the initial order on which such comment was made. At the same time we sincerely feel that while delivering the judgment and order impugned His Lordship showing his magnanimity and maintaining sobriety for which we, the Judges as a class are known for, should have used restraint while making comment on the order of another learned Judge. With deepest regard we have for Their Lordships we feel that both of them should have used much restraint in making those comments. The learned Judge while delivering the judgment and order impugned spent few pages on this score. This could have been avoided in a modest way.
4. We, however, feel that this controversy must rest at this stage and we do not wish to deliberate on such issue any more.
Facts Of The Case:
5. Plassey Mira Balika Vidya Niketan in the district of Nadia needed a clerk to be appointed in the school following the recruitment process. The school authority asked the local employment exchange to sponsor names of the eligible candidates. One Palas Sarkar, respondent No. 1 (hereinafter referred to as "Palas") was sponsored by the employment exchange. He was called for interview. He participated in the selection process and placed at serial No. 2 in the panel by the school authority. The first empanelled candidate was one Sri Gopal Sinha, the appellant abovenamed (hereinafter referred to as "Gopal"). He was not sponsored by the employment exchange. He approached this Court by filing a writ petition being W.P. No. 5402 of 2001 and obtained an order permitting him to appear at the interview to be held on April 24, 2001. Such order was passed by the learned Judge on April 17, 2001 wherein His Lordship disposed of the writ petition by directing the school authority to prepare die panel in accordance with the merit. When Palas came to know about such fact he approached this Court by filing writ petition being W.P. No. 14488 of 2001 challenging the candidature of Gopal as, according to him, the order passed in W.P. No. 5402 of 2001 permitting Gopal to appear at the interview should be quashed and set aside and he being the second empanelled candidate should be given the appointment. It was alleged that Gopal was the son of the President of the Managing Committee of the concerned school. His father was not only the President of the Managing Committee but also the Assistant Inspector of School, Nadia who was nominated by the Government in the said school committee as Government nominee. Hence, selection of Gopal was vitiated by illegality and irregularity. The writ petition being W.P. No. 14488(W) of 2001 came up before another learned Judge. His Lordship by an order dated October 8, 2001 disposed of the writ petition by observing that since Gopal was allowed to participate at the interview pursuant to an order passed in first writ petition by another learned Judge (the learned Judge who passed the order impugned herein) Palas should apply for review of the said order dated April 17, 2001 permitting Gopal to appear at the interview by filing a fresh writ petition. His Lordship relied on the decision reported in AIR 1963 SC Page 1909 Shivdeo Singh v. State of Punjab.
6. The third writ petition was filed by Palas being W.P. No. 831 of 2002 which was disposed of by judgment and order dated August 21, 2002 impugned in this appeal. The learned Judge quashed the appointment of Gopal and directed Palas to be appointed in his place. Being aggrieved by the judgment and order of His Lordship dated August 21, 2002 the present appeal was filed by Gopal.
Sequence Of Events:
7. On April 17, 2001 Gopal obtained order in W.P. No. 5402 of 2001 to appear at the interview scheduled to be held on April 24, 2001. From the xerox copy of the order it is seen that the date "24" was scored through and "29" was put. After the date the words "or another subsequent date" was put in. According to the original record these words were penned through. The learned Judge initialed at the mergin in proof of the corrections made therein. Such corrections not only included penned through the words "or any other subsequent date " but also change of date and other minor corrections. The certified copy produced by Gopal at the time of interview, however, did not have the marking of striking out the word "or any other subsequent date". As a result, school authority allowed Gopal to appear at the interview although not held on the scheduled date.
8. Panel was prepared by a selection committee in which Gopal's father was not a party as he was not a member of the selection committee. In the panel Gopal was placed at serial No. 1 whereas Palas was placed at serial No. 2.
9. After coming to know of the said fact Palas immediately approached this Court by filing the writ petition being W.P. No. 14488 (W) of 2001. This came up for hearing before another learned Judge who after recording the fact that Gopal was the son of the President of the Managing Committee and Assistant Inspector of School observed that His Lordship though satisfied that the appointment was vitiated by illegality was not in a position to quash the same unless and until the order permitting Gopal to participate at the interview was set aside.
10. The issue of striking out words "or any other subsequent date" however did not surface before His Lordship. This came out at a later stage which we shall discuss hereinafter.
11. Pursuant to the liberty granted by His Lordship Gopal filed writ petition being W.P. No. 831 of 2002. That incidentally came up for hearing before the same learned Judge who originally passed the order permitting Gopal to appear at the interview. The said writ petition was heard and disposed of by the order impugned dated August 21, 2002 by His Lordship.
Judgment and Order of the learned Single Judge impugned herein:
12. Analysis of His Lordship's judgment is as follows:
(i) His Lordship took a serious view of the matter in view of the comment made by the other learned Judge while disposing of W.P. No. 14488 (W) of 2001.
(ii) His Lordship called for the original records of W.P. No. 5402 of 2001 and W.P. No. 14488(W) of 2001 and kept the same in safe custody. His Lordship also called back the original certified copies made over to the panics pursuant to the application made by them to the Court. Upon examining the certified copies as well as the original record His Lordship was of the view that the certified copy produced by Gopal was tampered as the mark of penned through was significantly absent in the certified copy which was produced before the school authority.
(iii) His Lordship sent the records to the police authority for having the same examined by the forensic experts.
(iv) The police authorities ultimately gave a report to the Court that no tampering was found.
(v) Despite such report being obtained from the appropriate police authorities His Lordship was of the view that since the original certified copy did not contain such mark Gopal must have adopted some mechanism to get such marking erased from the said certified copy and this was a fraud committed by Gopal and he must suffer for the consequence.
(vi) On the issue of influence His Lordship was not convinced with the argument advanced by Palas on that score. His Lordship elaborately dealt with that aspect by holding that since father of Gopal was not involved in the selection process such ground was not available to Palas. Such argument was rejected by His Lordship.
(vii) Although His Lordship was not satisfied with the argument of Palas on the issue of irregularity in the selection process because of his relationship with the President of the Managing Committee His Lordship ultimately quashed the appointment of Gopal after holding that he committed fraud by tampering the certified copy.
(viii) His Lordship ultimately directed the school authority to replace Gopal by Palas by quashing the appointment of Gopal.
Contention of the appellant. Gopal:
13. Mr. Arunava Ghosh, learned Counsel appearing for Gopal, the appellant abovenamed contended as follows:
(i) The main plunk of the argument of Palas to the effect that appointment of Gopal was vitiated by irregularity and illegality because of his father's influence was negated by the learned Judge and once such argument was negated there was no occasion for His Lordship to quash the appointment of Gopal.
(ii) There was no proof of tampering found out by the appropriate expert. Hence, the learned Judge should not have quashed appointment on such plea.
(iii) Neither any fraud was alleged by Palas in his writ petition nor the same was found out by the investigating agency so appointed by His Lordship. Hence, the order of quashing the appointment of Gopal was not justified.
(iv) No appeal or cross-objection was filed by Palas against the part of the order by which his contention that the selection committee was influenced, was rejected by His Lordship. Having not done so Palas was not entitled to get the benefit of the appointment as the other part of the judgment could not be sustained.
Contention of the respondent, Palas:
14. Mr. Amal Baran Chatterjee, learned Counsel appearing for Palas contended as follows:
(i) Since Palas was sponsored by the employment exchange, Gopal was not entitled to participate at the interview in view of Special Bench decision in the case of Debasish Dutta reported in 1998, VolumeII, Calcutta Law Journal, Page 1.
(ii) Since the recruitment rule provided for appointment through employment exchange there was no occasion for the Court to allow Gopal to participate at the interview and his selection was vitiated by illegality.
Our view on the controversy:
15. On analysis of the judgment and order impugned and considering the rival contentions of the parties two issues, in our view, are germane herein to decide this appeal:
(i) Whether on the relevant date the Court was right in permitting Gopal to participate at the interview considering the law prevalent at that point of time so decided by this Court as well as by the Apex Court.
(ii) Whether the learned Judge was justified in quashing the appointment of Gopal on the ground of fraud although the investigating agency so appointed by His Lordship found no interpolation on the certified copy produced by Gopal before the interview board.
16. Let us now discuss the first issue. Prior to 1996 appointment in educational institutions in case teaching and non-teaching staff were guided by the respective recruitment rules which provided for recruitment through employment exchange. Some of the schools in addition thereto also advertised the vacancy in newspaper to get best possible candidate appointed. In the case of Excise Superintendent reported in 1996, Volume VI, Supreme Court Cases, Page 216 three-Judges Bench of the Apex Court observed that in case of vacancy the appointing authority must make wide publicity in media giving opportunity to all eligible candidates to participate in the selection process. The Apex Court observed that the choice of selection by restricting it through the sponsored candidates sent by the employment exchange was not the right approach as the persons although eligible for the post would be debarred from participating in the selection process. Following the said decision hundreds of writ petitions were filed before this Court asking for permission to participate at the interview. The issue again came up before this Hon'ble Court. A Special Bench constituted for the said purpose in the case of Debasish Dutta reported in 1998 Volume - II, Calcutta Law Journal, Page - 1 decided that such procedure as explained in Excise Superintendent (supra) would be applicable only when there was no recruitment rule. If the recruitment rule provides for a particular process to be followed such procedure must be followed. The issue did not rest there. After Debasish Dutta the Apex Court in the case of Abani Mahato 2000, Volume IX, Supreme Court Cases, Page 525, as also in the case of Kishore Kumar Pati 2000, VolumeIX, Supreme Court Cases, Page 405 once again sustained the appointment given to the candidates who participated in the selection process with a permission given by the Court relying on the Excise Superintendent (supra). The controversy again came up before me while sitting singly in the case of Prahallad Maji reported in 2001, Volume1, Calcutta High Court Notes, Page 229. After considering the law as decided by this Court as well as by the Apex Court as on that date I held that the ratio decided in Debasish Dutta (supra) was no more good law as it had been over ruled by implication by the Apex Court in the case of Kishore Kumar Pati (supra) and Abani Mahato (supra).
17. The issue was again sent to a larger Bench in the case of Rabindra Nath Mahato reported in 2005, Vol-III, Calcutta High Court Notes, Page 337 where a subsequent decision in the case of Abu Taher unreported decision in Civil Appeal No. 1203 of 2001 was considered and the Special Bench once again held that the candidates who were not sponsored by the employment exchange were entitled to have an order from this Court permitting them to appear at the interview although not sponsored by the employment exchange. Such view is again indirectly negated by the Apex Court in a recent decision in the case of Uma Devi Secretary, State of Karnataka v. Uma Devi.
18. The order in the subject-matter permitting Gopal to participate at the interview was passed on 24th April, 2004 when Kishore Kumar Pati and Abani Mahato were holding the field. Hence, the learned Judge was right in passing the said order permitting Gopal to participate at the interview and the submission to the contrary made on behalf of Palas is rejected. The law as of today would not, in our view, guide the situation when Gopal was permitted to appear at the interview. The law prevalent on that date would be the relevant law to decide the subject controversy.
19. On the second issue we are of the view that the learned Judge himself reposed confidence in the State machinery having expertise on the subject to investigate upon the allegation of fraud. Such investigating agency by their report informed that there was no interpolation on the certified copy. The learned Judge should have given the benefit of doubt to Gopal before quashing his appointment being his means of livelihood. His Lordship might be right in holding that the certified copy did not have the true reflection of the original order. I cannot restrain myself to share my experience on the subject issue. When we correct and sign our orders specially in light blue ink in most of the xerox copies such corrections do not appear. It is perhaps because of insufficient exposure of light while making xerox copies out of the original. The subject controversy might be victim of such defect in the mechanism.
20. Let us now consider what benefit Gopal could obtain by such fraudulent activity. Once the learned Judge passed an order permitting him to appear at the interview such order was based upon the decision in the case of Excise Superintendent (supra). Once the authority was asked to allow the writ petitioner to appear at the interview confining the said order for a particular date only would be an unreasonable restriction imposed upon the petitioner as the school authority might for any reason decide to postpone the selection process on a particular date and hold the same on a subsequent date for which it might not be possible for the writ petitioner to approach this Court again to have a second order. That was not the idea behind the order permitting the writ petitioner to participate at the interview.
21. The matter can be viewed from another angle. An unemployed youth commg to know that a selection process was being conducted by an authority may rush to Court asking for permission to participate in such process. It may not be possible for him to know the exact date on which the interview would be held as the appointing authority may or may not assist him by providing such information. Hence, in our considered view once the Court allows an unemployed youth to participate at the interview no restriction should be imposed with regard to the date of interview. In die instant case the interview was held on a subsequent date. Gopal appeared at the interview. He was selected by the selection committee and was placed at serial No. 1. The learned Judge elaborately went through the allegation of influence and rejected such allegation of Palas. Significantly, Palas did not prefer an appeal from that portion of the judgment rejecting his contention on that score. Once His Lordship came to such a decision that the allegation of influence was meritless quashing the appointment of Gopal and replacing him by Palas, in our view was not the right approach.
Result-
23. The appeal succeeds. The order of the learned Single Judge dated August 21, 2002 impugned herein is quashed and set aside. W.P. No. 831 of 2002 would stand dismissed. There would be no order as to costs.
24. Urgent xerox certified copy would be given to the parties, if applied for.
25. The operation of this judgment and order would remain stayed till 15th November, 2006.
Tapan Mukherjee, J.
26. I agree.