Calcutta High Court (Appellete Side)
Shyamal Kumar Das vs The State Of West Bengal & Ors on 8 December, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
M. A. T. 1159 of 2010
with
CAN 7791 of 2010
Shyamal Kumar Das
Vs.
The State of West Bengal & Ors.
2.2010
l.25.
Ms. Husn-Ara-Begum
--- for the Appellant/Respondent
Mr. Saibal Acharya Mr. Jakir Hossain Mr. Sudip Sarkar
----for the Respondents.
Pratap Kumar Ray, J:
Heard learned Advocates appearing for the parties. While hearing the stay application we are of the view that the appeal could be disposed of along with the stay application. Since all contesting parties are appearing before us the appeal is taken up as on day's list for final disposal by dispensing with all formalities. Appeal and stay both are taken up for hearing. The impugned order dated 26th July, 2008 passed in W. P. No. 3275 (W) of 2008 reads thus:
"With the consent of the parties, the application for vacating the interim order filed by the respondent no.7 be treated as affidavit-in-opposition to the writ application. The affidavit-in- opposition to the above application filed by the petitioner be treated as affidavit-in-reply in the writ application. Let the affidavit-in-reply to the affidavit-in-opposition filed by the petitioner to the application for vacating the interim order be treated as supplementary affidavit to the affidavit-in- opposition filed by the respondent no.7 to the writ application. The writ application is taken up for final disposal with the consent of the parties.
This writ application is directed against the selection of the respondent no.7 for the post of Sahayak under Balarampur-I Gram Panchayat within Cooch Behar district.
A written examination took place on December 30, 2001 for selection of a candidate for appointment to the aforesaid post. The petitioner and the respondent no.7 participated in the above written test amongst other eligible candidates. Oral test took place on January 14, 2002 and January 16, 2008 in connection with the selection process in question.
After participating in the above selection process, the petitioner came to know that the respondent no.7 participated in the selection process under reference without possessing the minimum requisite qualification as required under the Recruitment Rules for appointment of Sahayak in Gram Panchayat certain conditions of service thereof (Annexure - P/3 at page 19 to this writ application).2
According to the petitioner, the respondent no.7 did not possess the requisite qualification of at least three continuous years' of working experience in the nature of clerk of clerk-cum-typist in a Panchayat.
The respondent no.7 does not dispute that the respondent no.7 secured less than 50 per cent marks in Madhyamik Pariksha (Secondary Examination) held in 1981. But he possessed the working experience of at least three continuous years' of working in the nature of clerk or clerk- cum-typist in a Panchayat on the basis of the certificates dated July 1, 1993, April 13, 1998 and May 2, 1998 annexed to the affidavit-in-opposition and the supplementary affidavit thereto.
The learned counsel appearing for the respondent no.7 relies upon the decision of Madan Lal & Ors. - vs. - State of Jammu & Kashmir & Ors. reported in AIR 1995 SC 1088, Union of India & Ors. - vs. - Bikash Kuanar reported in (2006) 8 Supreme Court Cases 192 and Trivedi Himanshu Ghanshyambhai - vs. - Ahmedabad Municipal Corporation & Ors. reported in (2007) 8 Supreme Court Cases 644.
I have heard the learned counsels appearing for the respective parties at length and I have considered the facts and circumstances of this case on the basis of the materials available on record. Admittedly, the Recruitment Rule in question prescribes the qualification for an eligible candidate to participate in the selection process for appointment to the post of Sahayak in a Gram Panchayat as under:-
"(e) Qualification : Minimum educational qualification is passed Madhyamik or equivalent examination having secured at least fifty percent marks in aggregate, of any recognized University/Board /Council. The requires of securing at least fifty percent marks in Madhyamik or equivalent examination relaxable when a candidate having passed Madhyamik or equivalent examination, has in addition at least three continuous year working experience in the nature of Cerk or Clerk-cum-Typist in a Panchayat of and their.
Knowledge of Type Writing shall be a desirable qualification."
Therefore, unless he possessed the working experience as specified in the Recruitment Rule in question he could not be allowed to participate in the selection process in question as eligible candidate. No material is produced before this Court to show that the respondent no.7 produced even a single certificate before the respondent authority in support of his claim that he had possessed at least three continuous years' working experience in the nature of clerk or clerk-cum- typist in a Panchayat. Working experience in different programme or in different capacity should not be equated with the qualification prescribed in the Recruitment Rules in question. Therefore, admittedly, the respondent no.7 was not a person eligible to participate in the selection process in question.
I do not find that the challenge to the selection process can be ignored on the ground of filing this writ application after the selection process was over. Because the petitioner filed this writ application after knowing that the respondent no.7 was not possessing the requisite qualification.
I do not find that the decision of Madan Lal (supra) is applicable in this case because it was held in that decision that the assessment of relative merit in the oral test could not be re-examined in course of judicial review. In the decision of Bikash Kuanar (supra) the Hon'ble Supreme Court came to the conclusion that no illegality had been brought to the notice of the Court. In the matter of Trivedi Himanshu Ghanshyambhai (supra) the Hon'ble Supreme Court found that the appellant did possess the experience.
3In view of the discussions made hereinabove, this writ application is allowed. The selection of the respondent no.7 for the post of Sahayak under Balarampur-I Gram Panchayat within Cooch Behar district stands quashed and set aside.
This writ application is, thus, disposed of accordingly.
There will be, however, no order as to costs."
Having regard to the impugned order and the pleading made by the respondent/appellant before us, it appears that the only point of waiver and estoppel was taken in assailing the selection process after participating in such selection process by the writ petitioner. There is no doubt about applicability of the principle of estoppel and waiver so far as the challenge of any selection process, after appearing in such selection process but there is an exception of that principle which has been considered by the Apex Court in the case of Raj Kumar & Ors. v. Sakti Raj & Ors., reported in (1997)9 SCC 527, a judgment of three Judges Bench, where in para. 16 the court held that no waiver or estoppel principle has applicability if the selection process is challenged on the ground of violation of the recruitment rules. The Raj Kumar (supra) distinguished the earlier views expressed in Madan Lal & Ors. v. State of Jammu and Kashmir & Ors., reported in (1975) 3 SCC 586, a judgment of two Judges Bench. The relevant paragraph 16 of the said judgment reads as:
"Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J & K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in this case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."4
From the judgment under appeal it appears that the learned trial judge came to a positive finding that the qualification prescribed in selection of a candidate in the post of Sahayika in the Gram Panchayat was breached by selecting respondent no.7 and the selection committee committed gross illegality. The breach as was observed and founded by the learned trial judge is lack of three years continuous working experience in the nature of clerk or clerk-cum- typist in a Panchayat and knowledge of type writing. Admittedly the appellant who was respondent no.7 before the writ court, was not qualified with 50% marks in aggregate in Madhyamik Examination. As such she was required to fulfil relaxability clause of working experience of continuous three years working as clerk or clerk-cum-typist. The appellant intended to satisfy the learned trial judge by referring some certificates which were not considered by the learned trial judge as working experience in the nature of clerk or clerk-cum-typist in the Panchayat. In view of the aforesaid clear finding of the learned trial judge and the material placed before us, we are of the view that writ application was maintainable and waiver and estoppel principle had no applicability to challenge the selection process.
Considering the aforesaid findings and observations we are not finding any illegality or irrationality in the judgment under appeal before us. The order of the learned trial judge accordingly stand confirmed. The appeal and the stay application stand dismissed accordingly.
Before parting with the matter since a judgement has been referred to after pronouncement of the judgment, we think it should be dealt with. The learned Advocate for the appellant has referred the judgment reported in (2009)12 SCC
267. That judgment is a judgment under Article 142 of the Constitution of India and that judgment only deals with the power of the Supreme Court under Constitution of India. The same has no applicability.
Urgent certified photocopies of this order, if applied for, shall be given to the parties subject to compliance with all requisite formalities.
(Pratap Kumar Ray, J.) 5 I agree.
(Mrinal Kanti Sinha, J.) rnr.