Calcutta High Court (Appellete Side)
( Mithun Thandar vs State Of W.B. & Ors.) on 3 December, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
03.12.2018
02
RP Ct.10 WP 9486 (W) of 2018
( Mithun Thandar vs. State of W.B. & Ors.)
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CAN 7986 of 2018
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CAN 7984 of 2018
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CAN 8052 of 2018
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CAN 8802 of 2018
Mr. Samim Ahmed, Adv.
Mr. Nepesh Majhi, Adv.
.... For the Petitioner
Mr. Jayanta Banerjee, Sr. Adv.
Mr. Ashish Kumar Chowdhury, Adv.
Ms. Indrani Patra, Adv.
.... For the Added Respondent
Mr. Bhaskar Prasad Vaisya, Adv.
Mr. Suman Dey, Adv.
.... For the State Mr. Joyotosh Majumder, Ld. Govt. Pleader Mr. T.M. Siddiqui, Adv.
Mr. Suman Sengupta, Adv.
Mr. K.K. Bandyopadhyay, Adv.
Mr. Sagnik Chatterjee, Adv.
.... For the SSC I have considered the submissions made by the learned Advocates for the parties today. Mr. Siddiqui has produced the records showing the publication of the merit list which he submits is pursuant to the provisions of Rule 12 and its relevant sub-rules of West Bengal School Service Commission (Selection for Appointment to the Post of of Teachers for Classes IX and X in Secondary and Higher Secondary Schools) Rules, 2016. Mr. Ahmed submits that 2 this is not in terms of sub-rule 6 of Rule 12 of the said Rules. His specific case is that the merit list as published does not show the marks obtained by the candidates in each category in terms of Part B of Schedule II to the said Rules on the basis of which the evaluation of merit of an empaneled candidate is made. He refers to the judgment of the Hon'ble Supreme Court in the case of Vijoy Kumar Pandey--v--Arvind Kumar Rai and Others reported in (2013) 11 SCC 611 at paragraph 11, where transparency of the process of selection and publication of panels have been laid down by the Apex Court. He submits that without the said marks for written test, academic and professional qualifications for each candidate being recorded in the merit list, the details become devoid of particulars allowing any person to ascertain by looking at it why someone was empaneled, and someone was not. He relies upon paragraph 9 of the writ petition to show that this was part of the challenge to the panel.
Mr. Siddiqui on the other hand points out that the principal reason why the original interim order was passed stopping the process of recruitment, was because Mr. Ahmed had taken the point that the number of vacancies in the Physically Handicapped category for orthopedically disabled persons had been reduced though this was a vacancy governed by a roster. Because of this the general or other categories of candidates were suffering, on the 3 reasoning that increase of the vacancies for the physically handicapped had to affect the general category. However, he submitted that on the last occasion he had relied upon the records produced by the writ petitioner as also records produced by his client, the School Service Commission, to demonstrate that the number of vacancies of physically handicapped candidates had gone up, though the number of orthopedically handicapped candidates had gone down. He reminded the court that he had explained this by showing the initial list of vacancies was subject, under the rules of 2016, to be revised and a final list of vacancies published, showing how death or retirement had increased the number of vacancies, and even if it was held that the vacancies in a particular class of physically handicapped candidates could not have been shown to have decreased before filling it, that cannot be a reason for keeping the entire recruitment process, which affected others, in abeyance indefinitely. He further pointed out that Mr. Ahmed's client had applied only in the physically handicapped category, in the orthopedically handicapped class, and therefore, by no stretch of argument could any interim order passed on his petition stop the recruitment in other categories or classes. He reminded the court that it was on this point that I had directed that CAN 8052 of 2018 taken out by the School Service Commission for modification or variation or recalling of my interim order was to be treated as an 4 Affidavit-in-Opposition to the writ petition, and the Affidavit-in- Opposition to CAN 8052 of 2018 affirmed by Mr. Ahmed's client treated was to be treated as an Affidavit-in-Reply to the main writ petition. He protested, that the point about the merit list not being in consonance with Rule 12 was not a part of the attack when the interim order was made, or the above order treating the application as an Affidavit-in-Opposition was passed. His client has not got a chance to file a substantive Affidavit-in-Opposition to the entire writ petition.
Besides, he drew my attention to the prayers made in the writ petition and also CAN 8802 of 2018 seek recasting of the panel with the names of the writ petitioners included in it, instead of in the waiting list as present, and that prayer (a) of the application is for furnishing of the details in terms of the said rules to the petitioners and then granting the relief, substantially as in prayer (a) of the writ petition. He distinguished a prayer for cancellation or quashing of the panel as being procedurally ultra vires for allegedly not being in consonance with the said Rules, that is to say, in the manner prescribed, and a prayer for recasting. According to Mr. Siddiqui, the prayer for recasting could only be made if there was any error, arithmetical or otherwise, apparent on the face of the panel/merit list, which showed that it was to be recast rather than quashed. Mr. Siddiqui reiterates that Mr. Ahmed's client has not demonstrated 5 what is the error in tabulation or preparation of the merit list for which it is to be recast including the writ petitioners in it, rather than quashing it, even on the basis of the allegations contained in the writ petition. He says that otherwise this would become a roving inquiry when the writ court would have to exercise certiorari jurisdiction to find out whether there is any such error and if so, what it is. He distinguishes the decision of the Hon'ble Supreme Court in Vijoy Kumar Pandey's case (supra) by pointing out that in that case, there was no panel prepared or published in case of public employment and that a little difference in facts makes a lot of difference in the value of a decision as a precedent.
I am at one with Mr. Siddiqui that the said decision does not apply in the present case except as a general proposition relating to transparency in recruitment for public employment. Whether the the marks on the basis of which merit was evaluated is to be read in as a detail to be published in the merit list, in terms of Rule 12(6) of the said Rules of 2016, to subserve such transparency will naturally have to be decided, but not when there is no prayer for quashing of the panel or merit list in the absence of such details. That will, perhaps be an exercise to ensure that in the future there is such publication if I ultimately hold that it is to be so read into Rule 12(6) aforesaid. I am also at one with Mr. Siddiqui that since the total number of vacancies for the posts of physically handicapped 6 persons has increased in the final list, as opposed to the first list before the date of publication of the advertisement, in terms of Rule 8(3)(b) and Rule 8(3)(a) respectively and this is not prejudicial to the physically handicapped category as a whole, though it still does not answer the question how, without recruitment, the number of vacancies for physically handicapped persons with orthopedic disability could have gone down, without fresh recruitment, transfer or admission of erroneous reporting. This issue must be decided when I adjudicate the case finally. However, it must be admitted that when the dispute boils down to how three vacancies for orthopedically disabled persons could be reduced to only one, in the final list published under Rule 8(3)(b) of the said Rules of 2016, it would be manifestly unfair, unreasonable and unjust to stay the recruitment process of all empaneled candidates as a whole, including for those candidates who are not competing for physically handicapped category.
In fact, that is what Mr. Jayanta Banerjee, learned Senior Advocate, appearing for the applicants in CAN 7986 as added parties (General Candidates) has contended.
Mr. Ahmed on behalf of the petitioner, submits that he has not seen the records relating to how reduction happened so far as the physically handicapped-orthopedically challenged persons are concerned.
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After having considered all the above matters, since it will take time to deliver the judgment, I believe that the original interim order should be modified to the extent which follows, so that for a reduction of three vacancies for physically handicapped category candidates in the class of orthopedically disabled to merely one, the thousands of candidates including those empaneled, may not suffer.
The respondent authorities shall carry on the process of selection and/or recommendation and appointment in accordance with law in respect of general category candidates as also all candidates excepting that they would keep three vacancies reserved in the physically handicapped-orthopedically challenged/disabled category which shall inure to the benefit of the petitioners if they ultimately succeed in the writ petition. The School Service Commission shall make available copies of the records produced today as also on earlier occasions before me showing how the increase of total vacancy in the physically disabled category occurred but why the physically handicapped-orthopedically challenged category came down and shall also supply the records showing the reason why there was a difference between the initial list under rule 8(3)(a) and the final list under Rule 8(3)(b) so far as that category of physically handicapped vacancies is concerned, to the Advocate-on-Record of the petitioner. The School Service 8 Commission shall also make available the details of marks obtained by the candidates empanelled in the written test, for the professional and academic qualification to Mr. Ahmed through the Advocate-on- Record of the petitioner without prejudice to the rights and contention of Mr. Ahmed's clients upon paying cost of the copy and preparation of the same.
I fully expect and hope that the exercise of selection and recruitment shall be completed as expeditiously as possible and that the supply of records as above shall be made before the returnable date. The matter shall appear on the first Tuesday in February, 2019 as Specially Fixed For Orders, for further consideration.
(PROTIK PRAKASH BANERJEE, J.) 9