Arup Bhattacherjee & Ors vs Kamakhya Prasad Bandyopadhyay & Ors on 20 May, 2010

[Cites 17, Cited by 0]

Calcutta High Court (Appellete Side)

Arup Bhattacherjee & Ors vs Kamakhya Prasad Bandyopadhyay & Ors on 20 May, 2010

Bench: Pratap Kumar Ray

                                       1



               IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                             (APPELLATE SIDE)
Present:

The Hon'ble Justice Pratap Kumar Ray.
                And
The Hon'ble Justice Mrinal Kanti Sinha.

                         W. P. S.T No.400 of 2009
                         Arup Bhattacherjee & Ors.
                                   Versus
                  Kamakhya Prasad Bandyopadhyay & Ors.
                                    With
                         W. P. S.T No.542 of 2009
                            State of West Bengal
                                   Versus
                 Sri Kamakhya Prasad Bandyopadhyay & Ors.

For the petitioners          : Mr. L. K. Gupta
                               Mr. D. Saha Roy
                               Mrs. Vaswati Chakraborty
                               Mr. Suddha Satta Banerjee

For the respondent Nos.1 & 2 : Mr. Milan Chandra Bhattacharya

For the respondent Nos.4 & 5 : Mr. Amalendu Mitra Heard On : 9.3.2010, 30.10.2009, 4.3.2010, 12.8.2009, 29.01.2010, 27.01.2010, 16.09.2009.

Judgment On : 20th MAY, 2010.

Pratap Kumar Ray, J:

These two writ applications W.P.S.T. No.400 of 2009 and W.P.S.T. No.542 of 2009 arose out of challenge of common order dated 22nd April, 2009 passed in Original Application No. 1456 of 2001 by the West Bengal Administrative Tribunal. Those have been heard analogously.

The writ application W.P.S.T. No. 400 of 2009 was filed by the private respondents of said Original Application, whose appointments were cancelled by the learned Tribunal below.

Other writ application W.P.S.T. No. 542 of 2009 was filed by the State respondents whose decision appointing the said private respondents was set aside.

The writ application W.P.S.T. No.400 of 2009 is taken up first for adjudication and order as to be passed herein would be applicable to the second writ application W.P.S.T. 542 of 2009.

Assailing the order dated 2nd April, 2009 passed in O.A. No.1456 of 2001 by the West Bengal Administrative Tribunal, this writ application has been filed by the private respondents of the said original application, being total six in numbers. By the impugned order in this writ application, learned tribunal below had set aside and quashed the entire selection process and directed to take de-

novo steps to select candidates for the post of Assistant Engineer (Mechanical/ Electrical) afresh by holding competitive examination following the relevant rules for selecting the candidates and to complete such selection process within one month from the date of judgement. The applicants of the original application were allowed to participate in such selection process subject to their eligibility. The impugned order passed by the learned Tribunal reads such:-

" This is an application under Section -19 of the Administrative Tribunals Act, 1985 filed at the instance of present petitioners, Shri Kamakshya Prasad Bandyopadhyay and another, praying for a direction against the Respondents to forbear from giving effect to the impugned selection process, initiated through Memo dated 04/04/2000 for appointment to the post of Assistant Engineer (Mechanical/Electrical) under Public Health Engineering Directorate, and also to forbear the Respondents from granting permanent status to them in the post of Assistant Engineers together with prayer for cancellation of the aforesaid impugned selection process, and to allow these two petitioners to participate in the fresh selection process by holding fresh selection process and interview for appointment to the post of Assistant Engineers under direct recruitment category.

The short facts leading to the filing of this application are as under :- Applicant No. 1 obtained a degree of Bachelor of Mechanical Engineering in first class in 1991 from Jadavpur University. Applicant No. 2 also obtained a degree in Bachelor of Mechanical Engineering in first class in 1985 from Jadavpur University. The aforesaid degree was acquired by bot of them when both of them were working as Sub-Assistant Engineer (Mechanical) under Public Health Engineering Directorate from 01/03/1974 and 16/10/1973 respectively, as at that point of time they were Licentiate Mechanical Engineer, passed in 1968 and 1969 respectively.

Public Service Commission published an advertisement No. 08/93 H(ii) on 12/06/1993, inviting application from the eligible candidates for filing up the four posts of Assistant Engineer in West Bengal Public Health Engineering Service in Mechanical and Electrical stream, and out of which, two belong to General category, and one was reserved for Scheduled Caste Category, and another was reserved for Scheduled Tribe Category.

On the basis of the requisition sent by the Department of P.H.E. on 15th April, 1993, the department forwarded the name of the applicant No. 2 4 on 10th September, 1993, and the name of the applicant No. 1 on 24th September, 1993 respectively.

Applicants, however, did not receive any letter of interview from the concerned authorities. Thereafter, applicants with others moved a Writ petition before the Hon'ble High Court, which was subsequently transferred to the West Bengal Administrative Tribunal and re-numbered as T.A. No. 1118 of 1996. The aforesaid T.A. was, however, disposed of by this Tribunal on 13th January, 1998, whereby the aforesai d application was dismissed by this Tribunal.

Being aggrieved by and dissatisfied with the aforesaid judgment and order, the applicants filed one W.P.S.T. No. 76 of 1998, and the said W.P.S.T. application was, however, disposed of by the Hon'ble High Court on 08/09/1998 with a direction upon the State Respondents, specially, Respondent No. 3 to take steps to select the candidates for the post of Assistant Engineers (Mechanical/Electrical) afresh by holding competitive examination for filing up of those two vacancies from General category. Direction was also issued that such process of selection shall be completed as early as possible, preferably within 6 months from the date of that order. The aforesaid judgment was appealed against before the Hon'ble Apex Court by the Added Respondent as also by the State Respondents, and the Hon'ble Apex Court dismissed the S.L.P. on 28/01/2000.

Thereafter, by issuance of the Memo dated 08/03/2000, the appointments made in favour of the Respondent Nos. 4 to 8 as Assistant Engineer (Mechanical/Electrical) were terminated, and they were directed to relinquish charge not later than 31/03/2000. But, simultaneously, to such termination, the aforesaid Respondents were again appointed as Assistant Engineers, borne in the cadre of West Bengal Public Health Engineering Service (Mechanical/Electrical) under Public Health Engineering Directorate on contract basis for a period of 6 months only or till the receipt of fresh recommendation of the Public Service Commission 5 for direct recruitment to those posts, whichever is earlier, and their contractual appointments were extended from time to time.

Respondent No. 2, by issuing a Memo dated 04/04/2000, intimated the Secretary, of P.H.E. Department that the Public Service Commission has decided to go ahead for the process of selection de novo strictly in accordance with the order passed by the Hon'ble high Court, and in the present selection the number of candidates should be 08 (eight) in all (5 for General Category, 2 for S.C. Category, 1 for S.T. Category) as was reported to the Commission for being filled by direct recruitment at the material point of time, and by the said Memo, the Respondent No. 2 further asked the Secretary, P.H.E. to return the original application No. 4 to 8 who were earlier recommended for appointment on the basis of the selection made on 1994.

By memo dated 21/09/2000, applicants were summoned by the P.S.C. to participate in a written test, scheduled to be held on 24/10/2000 against the Commission's advertisement No. 8 of 1993 and in pursuance of the order passed by the Hon'ble Court. But, despite serious difficulty in their place of work, the applicants had to appear in the written test on 24/10/2000, and in the aforesaid process, about 49 candidates in total appeared in the preliminary written test, and on the basis of the result of the said test, 17 candidates including the applicants were interviewed in batches, and thereafter, Public Service Commission recommended 7 candidates for appointment to the 7 temporary posts of Assistant Engineer (Mechanical/Electrical).

Thereafter, by Memo being No. PHE /Estt/2072/2E-83/2001 dated 23/08/2001, contractual appointment of the Private Respondents were terminated, and simultaneously those Private Respondents were appointed on regular basis as Assistant Engineers through Memo No. PHE /Estt/2072/2E-83/2001 dated 23/08/2001, and those Private Respondents were allowed to continue in spite of specific stipulation to the effect that such engagement shall stand extinguished upon receipt of fresh 6 recommendation, and such continuance depicted unprecedented favour showered upon the Private Respondents by the Department.

It has again been alleged that though the services of the aforesaid 6 Private Respondents were terminated as per the solemn judgment and order dated 31/03/2000, they were again re-appointed on 01/04/2000 on contract basis , and all of them were offered monthly gross salary of Rs.13,000/- per month, which is almost equal to the last pay drawn by Shri Ashish Kumar Naskar, and such situation clearly depicts the attempt of favouritism shown to the Private Respondents by the Department of Public Health Engineering by not only continuing to grant the financial benefits simultaneously, which they were enjoying before termination.

It has therefore been contended on behalf of the petitioners that ignoring the direction of the Hon'ble Court, passed through judgment, present selection process was conducted by inclusion of the Private Respondents who did not even obtain a berth in the said written test, but was summoned for interview, and ultimately, the Private Respondents were accommodated, and such clandestine action by the Respondents cast a clear stigma upon the selection process. Hence, they have come up with this application praying for the reliefs, mentioned at the outset.

This application, however, has been resisted by the State Respondents, Private Respondent, as also by the P.S.C. Respondents by filing separate replies denying all the material allegations contained in the application, filed by the petitioner.

It has, inter-alia, been contended by Respondent No. 2 and 3 (P.S.C. Respondents) that pursuant to the order and direction, passed by the Division Bench of Hon'ble High Court at Calcutta dated 08/09/1991 for setting aside the selection made by the Commission earlier, steps were taken to make selection afresh for appointment to the said post in compliance with the solemn order, and accordingly preliminary written test followed by an interview was held, and 7 (seven) candidates were recommended for recruitment to the post of Assistant Engineer 7 (Mechanical/Electrical) under the Public Health Engineering Department from the candidates selected on the basis of the marks secured at the preliminary written test and interview taken together, as per the selection procedure, followed by the Commission.

It has further been alleged that it was quite open to the Commission to prescribe minimum qualifying marks, which the candidates must obtain at the written test before becoming eligible for viva-voce test. But more obtaining minimum qualifying marks at the viva voce test, if any, does not by itself take any one in the final merit list, and as the applicants failed to obtain the required merit position on the basis of the marks obtained in the preliminary written test and the interview taken together, their names could not be recommended by the Commission.

The Commission, in order to select the best candidates, duly considered the candidature of the applicants along with other candidates with usual fairness. But unfortunately, they did not come under the zone of consideration for selection as per record as also due to merit rating.

It has further been contended on behalf of the Respondents that in terms of the direction of the judgment of the Hon'ble High Court at Calcutta, a preliminary written test, followed by interview, was held strictly in accordance with recruitment rules, and 7 (seven) candidates were recommended for selection to the post of Assistant Engineer (Mechanical/Electrical under the Public Health Engineering Department, who were selected on the basis of the marks secured at the preliminary written test and interview as per normal selection procedure of the Commission. Consequently, it has been submitted on their behalf that since there is no merit in the allegation, the application filed by the petitioner should be rejected.

Respondent No. 1 and 2 in their joint reply has also denied the material allegations contained in the application, filed by the petitioner.

It has, inter-alia, been contended on behalf of the aforesaid Respondents that on a requisition to fill up some post of Assistant 8 Engineer (Mechanical/Electrical) under Public Health Engineering Department, vide letter No. PHE /Estt/574/2E/31/93 dated 15/04/1993, the Public Service Commission, West Bengal was requested to recommend the names of the candidates, and accordingly, Public Service Commission authority recommended the names of 6 (six) candidates for appointment to the post of Assistant Engineer (Mechanical/Electrical). Some of such persons who were not called for an interview, filed an application before this Tribunal, and their application being dismissed, they moved the Division Bench of the Hon'ble High Court, and the Division Bench of the Hon'ble High Court was pleased to set aside the order of the Tribunal, passed on 08/09/1999, and the selection of the candidates for the post of Assistant Engineer was set aside, and direction was issued to take steps to select candidates for the post of Assistant Engineer afresh by competitive examination.

It has further been alleged that Public Service Commission took steps for fresh recruitment, and accordingly, the names of the departmental candidates were called by the Public Service Commission, West Bengal. The written examination was held on 24/10/2000, and a merit list was prepared, and the applicants were also called for an interview, and the final selection was made by the Public Service Commission after taking interview, and on the basis of the recommendation of the Public Service Commission, appointment letters were issued to the selected candidates, and since the applicants did not qualify in the interview, they were not selected.

It has also been contended on behalf of the aforesaid Respondents that to solve the problem of the department and to meet the exigent situation, proposal was mooted to create 6 (six) regular posts, recommended by the Public Service Commission, ands the 6 candidates, who served under the Public Health Engineering Department for more than 3/4 years and acquired experience, were appointed to 6 (six) super- numerary posts, proposed to be created, and, thereafter, taking advice of 9 the Ld. Advocate General and the concurrence of the Finance Department, appointed those 6 (six) candidates on temporary basis in the interest of public service for a period of 6 (six) months only or till the receipt of the fresh recommendation of the P.S.C. to those posts, whichever is earlier, and in giving such appointment, no motive or malice was there, far less for ignoring the direction of the Court.

It has further been contended on behalf of the aforesaid Respondents that in terms of the direction issued by the Division Bench of the Hon'ble High Court after publishing advertisement, written test was held and interview was taken and on the basis of the recommendation made by the Public Service Commission, West Bengal, appointment letter were issued to the selected candidates by the Department, and unfortunately the applicants did not qualify in the said selection procedure, and as such, they were not selected and appointed.

It has therefore been contended on behalf of the aforesaid Respondents that since there is not merit in the case of the petitioners, the same should be rejected.

It has also been contended on behalf of the Private Respondents that pursuant to the direction of the Hon'ble High Court, fresh selection was made by the Public Service Commission, following the extant rules of the department, and they being successful, they were recommended by the Public Service Commission authority, and on the basis of that recommendation, Government has appointed them, and the application filed by the petitioners have been made on distorted and imaginary submission to mislead this Tribunal, for which, there is no reason for entertaining and allowing the application. Hence, they have also prayed for dismissal of this application.

Now, the only question which we are called upon to decide here is as to whether the petitioners are entitled to the reliefs, as prayed for or not.

We have heard the Ld. Counsel representing the parties before us. We have also perused the materials available on record with meticulous care.

By this application, the petitioners before us have challenged the selection process, initiated through Memo dated 04/04/2000 for appointment to the post of Assistant Engineer (Mechanical/Electrical) under Public Health Engineering Directorate, with a further prayer to cancel the appointments of the Respondents Nos. 4 to 10 of this application, and to conduct fresh selection by holding fresh written test and by allowing the applicants to participate in the selection process for the said post of Assistant Engineer (Mechanical/Electrical) under the direct recruitment category.

Initially, the petitioners, pursuant to the advertisement No. 8/93 dated 12-06-1993 of Public Service Commission, applied through proper channel for direct recruitment by competitive examination. Petitioners were, however, not called for interview, and the Assistant Engineers (Mechanical/Electrical) were selected only through an interview, after a screen test on the plea of public exigency.

Challenging the aforesaid selection process, petitioners filed one application under Article-226, which was transferred to this Tribunal as per the provisions of the Administrative Tribunals Act, 1985, and the said application was re-numbered as T.A. No. 1118 of 1996. The said application, however, was dismissed by this Tribunal on 13-01-1998 by its judgment, and against that, one W.P.S.T. No. 76 (W) of 1998 was filed by the petitioners before the Hon'ble High Court, which was eventually disposed of on 08/09/1999 holding inter-alia that Rule-6 (a) provided for competitive examination in respect of direct recruits 60% of total post of Assistant Engineers (Mechanical/Electrical) with an enabling position that the Governor may fill up in the exigency of a public service vacant post of Assistant Engineers (Mechanical/Electrical) in the direct recruitment quota by selection through Public Service Commission, West Bengal, after 11 advertisement and interview, instead of by a competitive examination. But since in the said case there was no order of the Governor, allowing the Public Service Commission to select candidates by advertisement and interview only in the exigency of public service, it was held by the Hon'ble Court that Public Service Commission was therefore incompetent to select candidates for direct recruitment on that basis, and eventually the Hon'ble High Court allowed the application, and the entire selection process to the post of Assistant Engineers (Mechanical/Electrical) was set aside, and the Respondent No. 3 i.e., the Public Service Commission authority was directed to select the candidates for Assistant Engineers (Mechanical/Electrical) afresh by holding competitive examination for filing up the two vacancies from the General Category, with an indication that the process of selection should be completed as early as possible, preferably within 6 (six) months from the date of the order.

Challenging the aforesaid judgment and order, the State moved a S.L.P. before the Apex Court, which was ultimately disposed of on 28/01/2000.

Public Service Commission authority thereafter initiated a selection process on 4th April, 2000 for the post of Assistant Engineers (Mechanical/Electrical) under Public Health Engineering Directorate in the West Bengal Public Health Engineering Service by way of advertisement, as also by sending a requisition with a request to the Secretary, Public Health Engineering Department to return the original applications of the 7 (seven) candidates, who were recommended by their office letter No. 958 - PSC/ (IVA) dated 19th December, 1994 and No. 103-PSC (IVA) dated 23rd February, 1996 on the basis of the selection made in 1994.

In the order of the Hon'ble High Court, there was direction for selection of the candidates for Assistant Engineers (Mechanical/Electrical) afresh by holding competitive examination for filling up two vacancies from the General Category with further indication that the said selection process 12 should be completed as early as possible, preferably within 6 (six) months from the date of the order.

Taking cue from the aforesaid direction of the Hon'ble High Court, serous challenge has been thrown by the petitioners regarding the impugned selection process initiated through Memo dated 04-04-2000, alleging firstly that through direction was given by the Hon'ble High Court for filling up two vancancies in the General Category, but in the aforesaid selection process, total number of vacancies were 8 (5 General Category, 2 Scheduled Caste, and 1 Scheduled Tribe). Secondly, the Commission though made advertisement in the newspaper regarding selection to the aforesaid post, yet, by the letter, issued dated 04th April, 2000, they made a request to the concerned department to return the original applications of the 7 (seven) candidates, who were recommended by them earlier in connection with earlier appointment on the basis of the selection made by them in 1994, though in the order of the Hon'ble High Court, there was no such direction for doing the same.

It was therefore contended on behalf of the petitioner that regarding the impugned selection process, there has been extreme collusion and convenience with the then P.H.E. authority, and the P.S.C. in giving appointments to those persons, whose appointments stood terminated by the order of the Hon'ble Court.

It was further contended on behalf of the petitioners that in initiating a selection process at material point of time, normally the P.S.C. authority or any other authorities were competent to take into consideration the number posts lying vacant, and this may be more than the initial declared vacancy. But, in a situation when the earlier selection stood terminated, then the P.S.C. authority had no occasion to enhance the number of vacancies without taking leave from the Hon'ble Court, and they had also no occasion to ask the concerned department to send the original application of the 7 (seven) candidates, earlier selected by them, and the above two facts taken together would clearly reveal that they acted in 13 convenience and collusion with the P.H.E. Directorate to accommodate the earlier selectees, whose appointments were cancelled in terms of the order of the Hon'ble Court.

Moreover, it was also contended on behalf of the petitioners that the concerned Directorate, after the cancellation of the previous selection, had no authority to continue in the post. But, curiously enough, they were accommodated by the concerned Directorate and the Department by way of accommodating them on contract basis in terms of the Regulation-7 of the West Bengal Public Service Commission (Exemption from Consultation) Regulations, 1955, which were extended from time to time, till it was terminated on 08-03-2000 after the Special Leave Petitions, filed by the State, was dismissed, and curiously enough, the services of the aforesaid selectees were subsequently regularised on the basis of the so called recommendation of the West Bengal, Public Service Commission, which has been impugned before this Tribunal by this application.

Against the aforesaid contention, it was contended on behalf of the Public Service Commission authority that they initiated the impugned selection process only on the basis of the direction, issued by the Hon'ble High Court, wherein they were directed to select the candidates for Assistant Engineers (Mechanical/Electrical) afresh by holding competitive examination for filling up 02 (two) vacancies from the General Category candidate with further direction that it has to be completed as early as possible preferably within a period of 6 (six) months from the date of the order.

Pursuant to the said direction, the fresh selection process was initiated for filling up the post of Assistant Engineers(Mechanical/ Electrical) by way of advertisement , as also by sending requisition to the Secretary, Public Health Engineering Department to return the original applications of the 7 (seven) candidates, who were recommended by their office letter No.958-P.S.C(IVA) dated 19th December, 1994, and No.103- P.S.C(IVA) dated 23rd February, 1996 on the basis of the selection, made in 14 the year 1994, and the Commission, in order to select the best candidates, duly considered the candidature of the applicants with other candidates with usual fairness, but since the applicants did not come within the zone of consideration for selection, as per record, due to merit-ranking, they were not selected for the aforesaid post, and according to them, there was no illegality.

The State Respondents have also contended that no illegality could be brought to the notice of this Tribunal by the applicants, and the Public Service Commission authority, after conducting the selection process afresh in a fair and transparent manner, recommended the names of the 7 (seven) candidates, after holding preliminary written test, followed by interview, which were held strictly in accordance with recruitment rules. And since the aforesaid selection were made on the basis of the marks secured at the preliminary written test and interview as per normal selection procedure in a fair and transparent manner, no interference by this Tribunal is necessary.

We have given our anxious consideration with regard to the submissions made on behalf of the parties before us, including the private respondents, who also alleged that they were selected on the basis of a transparent and fair procedure, and as such, no interference should be necessary.

We have also looked into the entire materials on record. In fact, the earlier selection process was set aside, which was held by the competent authority, pursuant to the advertisement No.8/93, and the said judgement was delivered by the Hon'ble High Court on 8th September, 1999, wherein direction was issued to take steps to select the candidates for the post of Assistant Engineers (Mechanical/Electrical) afresh by holding competitive examination by filing up two vacancies from the General Category with a direction to complete the same as early as possible, preferably within 6 (six) months from the date of the order.

But, in initiating the selection procedure afresh, in all, 08 (eight) vacancies were included [05 (five) from General Category, 02 (two) from Scheduled Caste Category, 01 (one) from Scheduled Tribe Category], for which, however, no leave was obtained from the Court by the Public Service Commission authority or by the concerned department, though they were also parties to the earlier proceeding.

Furthermore, though the Public Service Commission authority initiated a selection procedure afresh, but again without taking leave further from the Hon'ble High Court, they made a request to the Secretary, Public Health Engineering Department for sending the name of the 7(seven) candidates, who were earlier recommended by them on the basis of the selection made in the year 1994, but for doing the same, they also did not care to take the leave of the Hon'ble High Court or any other Court.

This shows extreme exuberance and extraordinary zeal on the part of the Public Service Commission authority in making the selection of the candidates, who were earlier recruited by them as per selection procedure, quashed by the Hon'ble Court.

Had it been a normal selection procedure, in that, the Public Service Commission authority and the departmental authority were certainly competent to include the subsequent vacancy, which had taken place prior to the actual commencement of the selection process, but here, since there was a pin-pointed direction of the Hon'ble High Court for filling up 02(two) posts from the General Category, in a situation like this, without taking leave from the Court, they were not justified by enhancing the number of the selected posts, nor they were permitted to send the requisition once again for obtaining the applications of the selected departmental candidates, who were selected by them earlier. These two extreme facts, taken together show that the Public Service Commission authority was also, to some extent, biased in conducting the aforesaid selection process, and in our view, they have transgressed the periphery and the limits, imposed by the Hon'ble High Court in its judgement.

Normally, a selection procedure should not to be disturbed by any Court of law, unless irregularities and illegalities are brought to the notice of the Court. But herein the situation is somewhat different, as in the present case, the earlier selection having been set aside by the Hon'ble High Court, and the Hon'ble Court having issued some specific direction, the Public Service Commission authority ought to have been careful before crossing the parameters/peripheries set down by the Hon'ble Court in conducting the selection afresh, and in conducting the selection, the Public Service Commission authority did not even care to obtain the leave of the Hon'ble Court or of any other Court crossing the periphery of the limitations, imposed by the Hon'ble Court in terms of the judgement. So, taking into account the aforesaid situations into consideration and the action taken on behalf of the Public Service Commission authority with regard to the fresh selection, and assessing the same on the basis of the materials available on record, we are rather constrained to accept the contention of the applicants that the Public Service Commission authority has conducted the aforesaid selection process with utmost collusion and connivance with the Public Health Engineering Directorate to again select the previously selected persons by them.

Furthermore, another factor may be taken into consideration that though the earlier selection was cancelled by the Hon'ble Court canceling the selection of the private respondents, yet, even after that, they were allowed to continue in the post in the garb of meeting the exigency of the department, as they were all accommodated by way of temporary appointment on contract basis in terms of Regulation-7 of West Bengal Public Service Commission (Exemption from Consultation) Regulation, 1995 and the same was extended from time to time till it was terminated on 08.03.2000, after the S.L.P petition was dismissed, and again by the fresh selection, which is now impugned before this Tribunal, the same set of persons were recommended for appointment and in fact they were appointed. So, taking into consideration the aforesaid admitted facts and 17 circumstances and the action taken by the concerned department, even after quashing of the earlier selection procedure and issuance of positive direction, by the Hon'ble High Court fixing certain peripheries we have no other alternative than to hold that the impugned selection process is vitiated by the high-handed and collusive action taken by the Public Service Commission authority in connivance with the then Public Health Engineering authority.

So, that being the position, going by the facts and circumstances of the case, we are to conclude that the impugned selection process is illegal for violating the positive direction of the Hon'ble High Court regarding selection of the candidates for the post of Assistant Engineers (Mechanical/Electrical) afresh under respondent No.1 The aforesaid impugned selection process is thus quashed and set aside.

Respondent No.3, however, is at liberty to take fresh steps to select the candidates for the post of Assistant Engineers (Mechanical/Electrical) afresh by holding competitive examination in terms of the relevant extant rules for selecting the candidates, and such process, if undertaken, would have to be completed with utmost expedition, preferably within a period of one year from the date of this judgement.

The applicants, if otherwise eligible, be also allowed to participate in the aforesaid selection process.

The application be and the same is thus disposed of accordingly on contest but without costs in the circumstances of this case.

Plaint copy of this judgement be given to the parties.

               Sd/- S. S. Ahuja                        sd/- P. K. Biswas
               Member (A)                              Chairman."

This case has a checkered history. The applicant respondent Nos.1 & 2, assailing the selection process initiated in terms of advertisement No.08/93H(II) 18 published on 12th June, 1993 inviting applications from eligible candidates to fill up the post of Assistant Engineer in West Bengal Health Engineering Services in mechanical and electrical wing relating to the declared vacancy of two general category, one reserved Schedule Caste category and another for Schedule Tribe category, moved the Tribunal unsuccessfully in T. A. No.118 of 1996 (a transferred writ petition) and the matter came up before the High Court in the writ petition W.P.S.T No.76 (w) of 1998 for adjudicating the issue. Admittedly the applicants/respondents of the present writ application, are members of the general category and they applied for consideration of their merit for the post of Assistant Engineer under the recruitment rule issued vide notification No.PHE/Establishment/410/Health-2E-294/85 dated Calcutta the 20th February, 1988 for the post of Assistant Engineer (Mechanical/Electrical) relating to 60% of the total posts reserved under direct recruitment quota, irrespective of the fact that they were holding the feeder post in the Public Health Engineering Directorate. Their main grievance in the earlier writ application W.P.S.T No.76 (W) of 1998 was to this effect that the written examination procedure to fill up the vacancies under direct recruitment quota being 60% of total posts, were not followed. Relevant portion of rule for filling up of the vacancy of Assistant Engineer as per said notification read such:

"6. Assistant Engineer (Mechanical/Electrical) ;

(a) 60% of the total posts of Assistant Engineer (Permanent and temporary taken together) shall be filled up by direct recruitment on the results of a competitive examination to be conducted by the Public Service Commission, West Bengal provided that the Governor 19 may fill up in the exigencies of the Public Service vacant posts of Assistant Engineer in the direct recruitment quota by Selection through Public Service Commission, West Bengal after advertisement and interview instead of by a competitive examination.

(b) The remaining 40% of the total posts of Assistant Engineer (Permanent and temporary taken together) shall be filled up by promotion from amongst the confirmed sub-Assistant Engineers (Mechanical)/Sub-Engineers (Electrical/Electrical Supervisor) by selection through the Public Service Commission, West Bengal subject to the provision of Sub-rule (d) below : Provided that if on any occasion suitable departmental candidates for promotion are not available, the State Government may in its discretion fill up a post in the promotion quota by direct recruitment through the Public Service Commission, West Bengal in the manner stated in Sub-rule (a) if in the interest of Public Service such post cannot be kept vacant.

(c) Qualifications for direct recruitment Essential A degree in Mechanical/Electrical Engineering of a recognised University or equivalent qualifications.

One year's post-graduate practical training or study or research or practical engineering experience.

Age : Not more than 27 years on the 1st January of the year of advertisement, the age limit being relaxable in the case of a candidate who has been in the employment of the Central or the State Government or in Statutory Bodies recognised for the purpose by Government and are not out of such employment for more than a year on the said date to the extent of the actual period spent continuously in such employment.

No candidate will be allowed to take more than three chances. The departmental candidates are eligible to apply provided they fulfil the requisite qualifications.

(d) In order to be eligible for promotion to the rank of Assistant Engineer a Sub-Assistant Engineer/Electrical Supervisor in the regular establishment under Public Health Engineering Directorate, West Bengal.

(i) He must render a minimum of 10 (ten) years' continuous service as a Sub-Assistant Engineer/Electrical Supervisor in the regular establishment under Public Health Engineering Directorate, West Bengal.

(ii) He must be confirmed in the post of Sub-Assistant Engineer/Electrical Supervisor.

(iii) He must pass an examination to be conducted by the Public Service Commission, West Bengal which will be of the same standard as the Professional Examination referred to in Chapter VI of the Services (Training and Examination) Rules, West Bengal; provided that a Sub- Assistant Engineer/ Electrical Supervisor who has rendered a minimum of 8 (eight) years' service including temporary service in a post of Sub-Assistant Engineer/Electrical Supervisor in the regular establishment shall be eligible for appearing at the said examination."

Said writ application of 1998 was allowed by quashing and setting aside the selection process, on the reasoning that written examination was not held.

Two separate judgements were delivered by the Division Bench, one by Ruma Pal, J (as His Lordship then was) and another by S. N. Bhattacharjee, J (as His Lordship then was). Those judgements read such:

"Ruma Pal J. : The petitioners are all sub-Assistant Engineers in the Mechanical Division of the Public Health Engineering Directorate. One of their grievances before the West Bengal Administrative Tribunal was that 21 they had been wrong denied the right to participate in an interview held by the State Public Service Commission in November 1994 for appointment to the post of Assistant Engineers (Mechanical) in the Directorate. Their writ application which was filed in December 1994 was transferred to the Tribunal under the Administrative Tribunals Act, 1985. An interim order was passed on 30th September 1996 directing the respondents not fill any more posts of Assistant Engineers till the disposal of the application. The application was ultimately dismissed by the Tribunal on 13th January 1998.

As the facts of the case have been fully set out in the judgment of my Learned Brother S.N. Bhattacharya, J., it is not necessary to set out the same in extenso again. Only those facts which are relevant to the particular issue which I wish to address viz. the process of selection by the Public Service Commission, are briefly noted.

The arbitrariness in the process followed by the Public Service Commission (PSC) in the selection of Assistant Engineers (Mechanical) is evident from the outset.

Application for appointment to the post of Assistant Engineer in the West Bengal Public Health Engineering Service were called for in an advertisement published on 12th June 1993. The advertisement provided for minimum qualifications which each of the Petitioners fulfilled. The advertisement also provided :

"The prescribed essential qualifications are minimum and more possession of the same dos not entitle candidates to be called in for interview. Where the number of applications received in response to the advertisement is large and it will not be convenient or possible for the Commission to interview all those candidates, the Commission may restrict the number of candidates for interview to a reasonable limit on the basis of qualifications and experience higher than the minimum prescribed in the advertisement or by holding a screening test."

It is clear that the PSC had not provided for the holding of a competitive written examination at all.

The Recruitment Rules of the Public Health Directorate framed under Article 309 of the Constitution of India on 20th February 1998 provided inter alia for appointment to the post of Assistant Engineers (Mechanical/Electrical). The rule provided for 60% appointment by direct recruitment and 40% by promotion from amongst Sub-Assistant Engineers (Mechanical/ Sub-Engineers (Electrical)/Electrical Supervisor by selection through the State Public Service Commission. We are here concerned with the 60% direct recruits. The relevant extract of the rule reads :

6. (a) 60% of the total posts of Assistant Engineer (Permanent and temporary taken together) shall be filled up by direct recruitment on the results of a competitive examination to be conducted by the Public Service Commission, West Bengal provided that the Governor may fill up in the exigencies of the Public Service vacant posts of Assistant Engineer in the direct recruitment quota by Selection through Public Service Commission, West Bengal after advertisement and interview instead of by a competitive examination.

The qualifications for direct recruitment specified in the rules were :

(C)      Qualifications for direct recruitment :
         Essential :

A degree in Mechanical/Electrical Engineering of a recognised University or equivalent qualifications.

Desirable :

One year's post-graduate practical training or study or research or practical engineering experience."

These rules were reproduced in the Recruitment Rules framed in 1994.

Rule 6 (a) quoted above categorically provides for direct recruitment on the result of a competitive examination to be conducted by the PSC unless the Governor allowed direct recruitment by selection through PSC only after advertisement and interview. Admittedly, no order had been passed by the Governor allowing the PSC to select candidates only by advertisement and interview. The PSC was therefore incompetent to select candidates for direct recruitment on that basis.

The submission of the respondents is that since the petitioners had applied pursuant to the advertisement they could not complain that no competitive examination was held. In my opinion, the petitioners cannot be expected to have any knowledge of whether or not the Governor had exercised powers under Rule 6 (a) of the Recruitment Rules before they applied. It would be unreasonable to expect this or them. They cannot as a result be debarred from raising the issue.

The Governor's power under Rule 6 (a) is limited by the "exigencies of the Public Service". There is no case of any exigency made out by the PSC. The requisition to the PSC had been sent by the Department of Health and Family Welfare for appointment of Assistant Engineers (Mechanical) on 15th April 1993. The advertisement was issued on 12th June 1993 and the interviews were held in the end of November 1994 almost a year and half later. The PSC has affirmed an affidavit in which it was said that the reason for doing away with the competitive examination was because the syllabi for the competitive examinations were yet to be finalized. This was no reason for doing away with the competitive examination altogether particularly given the time frame within which the PSC had acted.

The second reason give by the PSC is even more difficult to comprehend. It was said that on the last few occasions it had received a few hundred applications for the post of Assistant Engineers (Civil) and :"

"As it would not have been feasible to interview such a large number of candidates, the Commission held preliminary Written Test to screen and 24 restrict the number of candidates for interview for the post of Assistant Engineer (Civil)"

This clearly shows that even when there were hundreds of applications, the PSC held a written test for screening the candidates. But this course of action was not followed in the case of Assistant Engineers (Mechanical) although the PSC has said that for the two general vacancies only 127 applications had been received. No reason is forthcoming why the course of action which was followed in the case of Assistant Engineers (Civil) was not followed in the case of Assistant Engineer (Mechanical).

The written examination has always been considered to be a satisfactory method of objectively assessing comparative merits of candidates even for the purpose of screening or selection. It also pre-empts any allegation of arbitrariness or bias. The Supreme Court in Ashok Kumar Yadav and Ors. vs. State of Haryana and Ors. : (1985) 4 SCC 417 allowed the PSC to short list the candidates on the basis of the results of the written examinations.

As far as candidates for the post of Assistant Engineer (Mechanical), the PSC conducted the screening only on the basis of academic attainments. The PSC has said that "as experience was not an essential qualification for the post, no weightage was given on that count". Incidentally each of the petitioners have more than 20 years experience in the field. According to PSC as the petitioners did not satisfy the assessment level fixed which was calculated on their academic record, they were not called for the interview.

This was not a rational method of screening candidates at all. More so in this case, where the recruitment rules themselves provide experience as a desirable qualification for direct recruitment to the post of Assistant Engineer. The PSC erred in proceeding on the basis (as stated in their affidavit) "that there was no provision in the recruitment rules for giving extra weightage to have over the other candidates. To have assessed the present 25 ability of the candidates on the basis of academic qualifications was to confuse past achievement with contemporary merit. That experience is a relevant criteria for short listing candidates has been held by the Supreme Court in the case of Madhya Pradesh Public Service Commission vs. Navnit Kumar Poddar and Ors. : (1994) 6 SCC PSC has relied on Rule 18 of the West Bengal Public Service Commission Rules or Procedure 1982 to justify its action. In my view Rule 18, far from justifying the Commission's actions, underlines the illegality of the procedure followed, Rule 18 provides:

18. The commission may at its discretion call for interview a limited number of candidates either in case of promotion or of selection after advertisement. Such preliminary selection will be made on a scrutiny (i ) of confidential character rolls in case of promotion and (ii) of the stated qualifications and experience in case of selection.

In undertaking the preliminary selection for short listing the candidates therefore the PSC had to take into consideration not only the stated qualifications but also experience in the case of direct recruits.

For the reasons aforesaid I have no hesitation in concurring with the decision of my Learned Brother that the writ application must be allowed and the entire selection process to the post of Assistant Engineer (Mechanical/Electrical) set aside.

Let xerox plain copies of this order duly countersigned by the Assistant Registrar (Court) be made available to learned Advocates appearing for the parties on usual undertakings."

"Justice S. N. Bhattacharjee :-

In this writ application filed by petitioner nos. 1, 2, 3 and 4, the judgment and order of the Tribunal dated 13.1.98 in T.A. No. 1118 OF 1996 has been under challenge before us.

The Petitioners are Sub-Assistant Engineers (Mech./Elec.) under Respondent No. 2. All of them initially were appointed in temporary posts and were subsequently made permanent. Petitioner No. 1 entered into service on 21-12-67 and was made permanent on 22-12-82, Petitioner No. 2 joined on 10-01-72 and was made permanent on 01-4-88. Petitioner No. 3 joined on 16-10-73 and became permanent on 01-06-79. Petitioner No. 4 also joined on 11-11-71 and was confirmed with effect from 01-06-79.

Their next promotional post is Assistant Engineer (Mech./Elec.). Under the statutory rules of recruitment and conditions of service (Annexure Á'), sixty per cent of the total posts of the Assistant Engineer shall be filled up by direct recruitment on the results of a competitive examination through Public Service Commission (in short P.S.C.), West Bengal and forty per cent by departmental promotion on recommendation by P.S.C. The names of the Petitioners were recommended by the Department for more than once but the Petitioners did not get promotion as P.S.C. declined to recommend. Pursuant to the advertisement No. 8/93 dated 12-06-93 of P.S.C., the Petitioners applied through proper channel for direct recruitment by competitive examination. Fourteen vacancies in the rank of Assistant Engineer (Mech./Elec.) one of which was reserved for S.C. and one for S.T. , were notified. The petitioners, however, were not called for interview. The Petitioners made representations to the Department as also to Respondent No. 3, but in vain. The Assistant Engineers (civil) were selected through a process of preliminary written examination but Assistant Engineers (Mech./Elec.) were selected only through interview after a screening test on the plea of exigency o Public Service. The Petitioner's further allegation is that the department showed undue favour to Sri Chinmoy Ghosh, Bejoy Narayan Sinha and Subol Chandra Mondal by promoting them as Assistant Engineers from the work Charged Establishment without recommendation of the P.S.C. but such undue favour was not bestowed on the and as such the petitioners were discriminated against.

The petitioner having got no opportunity for promotion despite their service for about two decades in the same post, filed a writ petition before the High Court challenging the selection process conducted by Respondent No. 3 and against the discriminatory treatment by respondents 1 & 2 in the matter of granting departmental promotion.

Refuting the allegation of discriminatory treatment respondent nos. 1 and 2 contended that the applicants 1 to 4 could not be selected for promotion to the post of Assistant Engineer as they could not be found suitable for such posts within the aforesaid promotion Quota of forty per cent. The Government of West Bengal in 1974 took a policy decision that work charged Staff with a minimum ten years continuous service would be absorbed in regular establishment against vacancies and also by creation of extra post in regular establishment with abolition of equal number of posts in the Work Charged Establishment and accordingly memorandum bearing No. 4026-F dated 22nd April, 1974 was issued by Finance Department. Shri Chinmoy Ghosh, Bejoy Narayan Sinha and Subol Chandra Mondal got the benefit of said circular and they were qualified Assistant Engineer in Work Charged Establishment while the petitioners are Sub-Assistant Engineers who cannot be equated to those Work Charged Assistant Engineers.

The respondent nos. 3 and 4 in their affidavit-in-opposition stated that it was made clear in the Advertisement dated 12.6.1993 that direct recruitment may also be made by interview after advertisement in the exigencies of public service. Syllabi for competitive examinations are yet to be finalised. The Commission received a few hundred applications for the posts of Assistant Engineer (Civil). As it would not have been feasible to interview such a large number of candidates, the Commission held preliminary written test to screen and restrict the number of candidates for interview for the post of Assistant Engineer (Civil). In the case of recruitment to the post of Assistant Engineer (Mech./Elec.) no such occasion has arisen. For obvious reasons the Commission had to restrict 28 the number of candidates for interview to a reasonable limit. In the circumstances, in the instant case a Career assessment of each of the applicants was made by the Commission. An experience was not an essential qualification for the post, no weightage was given on that count. The petitioners on the basis of their academic attainments failed to satisfy the assessment level fixed by the Commission for being called to interview. As there is no provision in the recruitment rules for giving extra advantage or weightage to the petitioners over other candidates, the said petitioners along with 91 such other candidates were not called for interview.

The writ petition was thereafter transferred to the newly constituted West Bengal Administrative Tribunal for adjudication.

The Tribunal dismissed the application of the petitioners on the following findings :-

(i) the petition suffers from non-joinder of the necessary parties as Chinmoy Ghosh and S.N. Sinha were not impleaded in the present case although they would be adversely affected by the judgment,

(ii) the Tribunal does not find any wrong in the action of the respondents whereby the three officers, Chinmoy Ghosh, Bijoy Narayan Sinha and Subol Chandra Mondal were appointed to the post of Assistant Engineers of regular Establishment from the post of Work Charged Assistant Engineers in pursuance of the Finance Departments Memo No. 4026-F/dated 22-04-74 without consulting the Commission.

(iii) the procedure adopted by the Commission is quite fair and reasonable.

(iv) The decision of the Supreme Court in AIR 1994 SC 1808, AIR (1996) 10 SCC 371 and (1996) 7 SCC 118 are not applicable in the instant case.

This order has been impugned before us in the instant writ application for judicial review.

The facts of this case are not disputed before us.

The relevant rules for appointment of Assistant Engineer (Mech./Elec.) by direct recruitment as annexed to the writ petition run thus :-

Assistant Engineer (Mechanical/Electrical) :

a) 60% of the total posts of Assistant Engineer permanent and temporary taken together shall be filled up by direct recruitment on the results of a competitive examination to be conducted by the Public Service Commission, West Bengal provided that the Governor may fill up in the exigencies of the Public Service vacant posts of Assistant Engineer in the direct recruitment quota by selection through Public Service Commission, West Bengal after advertisement and interview instead of by a competitive examination.

b) The remaining 40% of the total posts of Assistant Engineer (permanent and temporary taken together) shall be filled up by promotion from amongst the confirmed Sub-Assistant Engineers (Mechanical/Sub-Assistant Engineers Electrical or Electrical Supervisor) by selection through the Public Service Commission, West Bengal subject to the provision of sub-Rule (d) below : Provided that if on any occasion suitable departmental candidates for promotion are not available, the State Government may in its discretion fill up a post in the promotion quota by direct recruitment through the Public Service Commission, West Bengal in the manner stated in sub-Rule (a) if in the interest of public service such post cannot be kept vacant.

c)    Qualification for direct recruitment :
      Essential   :

A degree in Mechanical/Electrical Engineering of a recognised University or equivalent qualifications.

Desirable :

One year's post-graduate practical training or study or research or practical engineering experience.

Age :

Not more than 30 years on the 1st January of the year of advertisement, the age limit being relaxable in the case of a candidate who has been in the employment of the Central or the State Government or in Statutory Bodies recognised for the purpose by Government and are not out of such employment for more than a year on the said date to the extent of the actual period spent continuously in such employment (emphasis mine).

No such candidate will be allowed to take more than three chances. The departmental candidates are eligible to apply provided they fulfil the requisite qualifications.

The points raised before us are : (1) whether the Public Service Commission had jurisdiction or authority to select candidates only through interview without holding competitive examination on the plea of exigencies of public service unless such exigency is not decided by the Governor ; (ii) the selection held by the Commission on the basis of marks obtained in earlier examinations without considering experience as a constituent of qualification was arbitrary and discriminatory. (iii) whether a writ can be issued directing the respondent nos. 1 and 2 to grant the petitioner's departmental promotion to the rank of Assistant Engineers (Mechanical/Electrical) following precedents of Assistant Engineers of Work Charged Establishment.

The above points are not res integra. The Apex Court has laid down the law in the following decisions :-

(i) In the case of J & K Public Service Commission & Ors. vs. Narendra Mohan and Others, reported in AIR 1994 SC 1808, the Apex Court held.

"It is well selected law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instruments cannot be and should not supplement the law, but would only supplement the law"

In the said decision it has been further held by the Supreme Court, "Moreover, when the rules prescribed direct recruitment ever eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment inviting applications for recruitment to fill up in notified vacancies is consistent with the right to apply for by qualified eligible persons and consideration of their claims to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution."

ii) In the case of Durga Charan Mishar -vs.- State of Orissa and Others, reported in (1987) 4 SCC 646 the Supreme Court held.

"In this case in the recruitment for Judicial Officer of Orissa, the Commission did not select the candidate who obtained 30% marks at the viva-voce test with an aggregate of 500. The candidates with less number of aggregate marks were, however, selected. The commission stated that it has taken a decision that the candidate to be suitable for the post of Munsif who secured at least 30% marks at the viva-voce test and that decision taken on the advice of the High Court Judge present at the viva- voce test."

Apex Court has further held, " Minimum qualifying marks cannot be prescribed by the selecting body in the absence of such a provision in the statutory rules.

Admittedly, the Governor did not invite that in the instant case there was exigency of public service for holding interview instead of competitive examination before the advertisement or thereafter. The Commission itself 32 decided to hold interview instead of competitive examination in the exigencies of public service.

The facts and circumstances of the case will also show that the Commission had no such exigency for selecting candidates for holding interview instead of written test. The advertisement was published on 12-6- 93 and interview was held from 22-12-94 to 25-11-94 i.e., one year and five months after the publication. So, there was no urge for expeditious filling up of vacancies. The Commission has contended that the syllabi are not yet prepared. There is no such indication in the official filed as the decision to call for interview in a limited number on the basis of a screening test was taken at the very initial stage after the receipt of applications. Moreover, there was enough time to prepare syllabi during the period of 17 months since advertisement. The question also arises at to how the preliminary written test was held in the civil discipline in the absence of syllabus for Civil Engineers. There is no indication from the affidavits of the respondents or from the official files produced before us that syllabus for Civil Engineer was at all prepared. The argument in favour of short listing in the wing of Mechanical/Electrical Engineer offered in their affidavits also appears to be fallacious and self-contradictory. It has been stated therein that in civil discipline a few hundreds of applications were received for 14 vacancies but in case of Mech./Elec. Engineer as many as 127 applications were received for filling up for 2 posts. We do not find any rationale behind the adoption of two different procedures in the selection process in two cases. Applications to the tune of 127 do not at all justify the selection through the process of interview instead of regular competitive examination in accordance with the statutory rules. The statutory rules made under Article 309 of the Constitution of India have the statutory force and the Public Service Commission has no authority to override the provisions of statutory rules by evolving a procedure contrary to such statutory rules.

The learned counsel appearing for the respondents cited a decision in Madhya pradesh Public Service Commission -vs- Navnit Kumar Podder & Ors. reported in (1994) 6 SCC 293 where four posts of Presiding Officer, Labour Court, 188 applications were found to be eligible possessing minimum qualifications of five years' practice as advocate as required under Section 8 (iii) ( c ) of M.P. Industrial Relations Act and State P.S.C. decided to call for an interview only those 71 candidates who had completed 7 ½ years' practice as advocate. The High Court held the Commission cannot ignore the statutory requirement for filling up post and cannot opt a criteria whereby candidates fulfiling the statutory requirements are eliminated for being called for interview. The Apex Court held that where selection is to be made purely on the basis of interview, if the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the commission or the selection board has no option but to make short list of such applicants on some rational and reasonable basis. This case is distinguishable from the instant case. The statutory provision in appointing Presiding Officer of Labour Court in the case mentioned above did not require Governor's satisfaction as to the existence of the exigency. In the case before us, the statutory provision clearly indicates that the Governor may fill up in the exigencies of Public Service interest vacant posts through Public Service Commission by interview instead of competitive examination.

The screening test in this case was also not held for on a rational and reasonable basis. It appears from the official file and the affidavits-in- opposition that 91 candidates and the 4 petitioners were not called for interview as they failed to satisfy the standard of screening test held on the basis of marks obtained by the candidates in school final/madhyamik , higher secondary examinations and in Bachelor degree. Admittedly in screening test the experience was not counted and no weightage was given to the experience of the candidates on the ground that the statutory rules do not regard experience as a desirable qualification. Having excluded 34 experience as a constituent of overall qualifications respondent No.3 proceeded to hold screening test only on the basis of marks obtained in different board and University examinations upto Bachelor degree. The petitioners passed the Secondary and Higher Secondary examinations 30 years ago and they put in service in the engineering field for about 20 years. Their vast experience in the field of engineering having not been counted, the marks obtained by them in 30 years hence were compared with those who passed in more recent years. The defect inherent in this system of comparison was overlooked by the Commission. The system of marking not being uniform in different universities and the standard of awarding marks also not remaining static in course of 30 years in a particular university, such comparison cannot be held to be a reasonable and rational basis of selection. The experience was actually not excluded as a desirable qualification from the statutory rules inasmuch as such experience will be reflected in the competitive examination, otherwise age- relaxation was meaningless. If the candidates are not given any scope for exhibiting their knowledge and skill acquired by long years of experience in course of their service under the departments and marks obtained in examination held in different years be the only criterion the provision for relaxation of age to the extent of the actual period spent continuously in such employment becomes otiose. Such procedure of selection runs counter to the law declared by the Supreme Court and the norms of short listing laid down in J&K Public Service Commission & Ors. (supra). We are, therefore, unable to agree with the finding of the learned Tribunal that the decision of Supreme Court in the above case is not applicable to the present case.

The Commission (respondent No.3) by holding screening test actually prescribed the minimum qualification marks for being called for interview whereas the statutory rules required that the candidates having the minimum qualification would be eligible to sit for competitive examination for the post of Assistant Engineer. Such fixation of minimum qualifying 35 marks for being called in interview could not be fixed by the Commission as a selecting body without the knowledge and sanction of the appropriate authority. in doing that the Commission(respondent No.3) acted contrary to the law laid down by Supreme Court in Durgacharan Mishra vs. State of Orissa & Ors. (supra).

It was pointed out from the official file that two candidates were recommended subsequently and in all six candidates were recommended for the post of Assistant Engineer(Mech./Elect.). The names of those two additional candidates are Nilanjan Saha and Anirban Majumdar. These two posts were not advertised for. These two vacancies did not arise before the commencement of the process of selection. This point was not raised before the Tribunal which also had not the occasion to consider the same. This being a new point, we cannot take up for decision while exercising the power of judicial review. We only like to point out to the latest decision of Supreme Court in case of Birender S. Hooda v. State of Haryana reported in (1999) 3 SCC 696 which has softened the rigorous of its earlier decisions in Ashoke Kr. & Ors. vs. Chairman, Banking Service Recruitment Board & Ors. reported in AIR (1996) SC 976 and also in Hoshiar Singh v. State of Haryana reported in (1993) Supp. 4 SCC 377. In its latest decision Supreme Court has permitted the vacancies accruing subsequent to the advertisement to be filled up provided the Government takes a policy decision to that effect and issues such instruction by circulars to the Commission. In the words of the Apex Court, "when a policy has been declared by State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission are not contrary to the Rules, the respondents ought to follow the same." Moreover, if the selection process is held to be bad in law the panel of successful candidates prepared in the same process will also suffer from the same infirmity.

It is, therefore, evident that the selection process conducted by the Commission (respondent No.3) in respect of two posts in the general 36 category of Assistant Engineering (Mech/Elec.) under advertisement No.8/93 dated 12.6.93 militates against the law laid down by the Apex Court in the aforesaid decision. Such selection process cannot be sustained and the same is liable to be set aside.

We are, however, not inclined to consider the legality or otherwise of the appointments given to Sri Chinmoy ghosh, Bejoy Narayan Sinha and Subol Chandra Mondal in view of the relevation that they were appointed in terms of the Finance Department's Memo No.4027-F/dated 22.4.74 on the basis of a Government policy decision to abolish Work Charged, Establishment and that they were already working as Assistant Engineers under Work Charged Establishment. The petitioners alleged that those appointments were illegal but such undue favour has not been shown to them by the department. Even if that be so, we cannot direct the authorities to bestow similar undue favour upon the petitioners by perpetuating the illegality and no writ can be issued in that direction. We also do not agree with the finding of the Tribunal that the application was bad for non-joinder of the parties on the ground that those three officers have not been impleaded although they would be affected by the judgement. It may be noticed that the petitioners did not pray for issuing any writ for canceling their appointments. The prayer of the petitioners was confined to the issuance of a writ directing the authorities to appoint them in similar manner. This prayer has been rejected by us.

In the result, the writ petition is allowed. The order of the Tribunal impugned before us is set aside. The selection of the candidates for the post of Assistant Engineers(Mech./Elec.) under respondent No.2 in pursuance to the advertisement No.8/93 is hereby set aside. Respondent No.3 is directed to take steps to select the candidates for Assistant Engineer(Mech./Elec.) afresh by holding competitive examination for filing up the two vacancies from general category. Such process of selection should be completed as early as possible preferably within six months from the date of this order. There will be no order as to costs.

Sd/- S. N. Bhattacharjee, J"

From the judgement delivered by the Division Bench in the said writ application, it appears that Ruma Pal, J (as His Lordship then was), concurred with the decision of S. N. Bhattacharjee, J (as His Lordship then was). As such the direction given by the Division Bench so far as filling up the vacancy also could be considered as guiding factor to decide the present writ application.

The ordering portion of the Division Bench is to this effect:

" In the result, the writ petition is allowed. The order of the Tribunal impugned before us is set aside. The selection of the candidates for the post of Assistant Engineers(Mech./Elec.) under respondent No.2 in pursuance to the advertisement No.8/93 is hereby set aside.

Respondent No.3 is directed to take steps to select the candidates for Assistant Engineer(Mech./Elec.) afresh by holding competitive examination for filing up the two vacancies from general category. Such process of selection should be completed as early as possible preferably within six months from the date of this order. There will be no order as to costs."

After the selection process, so far as selection of two general category candidates, was set aside and quashed, though there was no necessity of terminating the service of other candidates selected from Schedule Caste category or Schedule Tribe category, however, the State respondent terminated the service of all appointees and subsequently for exigencies of the work appointed them on contractual basis.

It appears from the records that subsequently the Public Service Commission declared eight vacancies by publishing those vacancies. Amongst 38 said eight vacancies, two general category vacancies, which were subject matter of lis in earlier writ petition, were included in the subsequent selection process as initiated after the judgement of the Division Bench was delivered. Out of said eight vacancies as declared, five posts were earmarked for general category. In the instant case we are concerned about the selection of general category candidates as the applicants/respondents appeared as candidates of "general category" and for that reason they cannot raise any grievance about selection made in favour of reserve category candidates.

Regarding five general category vacancies declared which was inclusive of earlier two vacancies of general category for which de-novo selection process was directed to be made by the Division Bench in earlier writ application as referred to above, Learned Tribunal below held in the order under challenge before us that as per the normal selection procedure, Public Service Commission authority and the departmental authority, were competent to include subsequent vacancies which had taken place prior to actual commencement of the selection process.

The relevant portion of the judgement reads such:

"Had it been a normal selection procedure, in that, the Public Service Commission authority and the departmental authority were certainly competent to include the subsequent vacancy, which had taken place prior to the actual commencement of the selection process, but here, since there was a pin-pointed direction of the Hon'ble High Court for filling up 02(two) posts from the General Category, in a situation like this, without taking leave from the Court, they were not justified by enhancing the number of the selected posts, nor they were permitted to send the requisition once again for obtaining the applications of the selected departmental candidates, who were selected by them earlier. These two extreme facts, taken together show that the Public Service Commission authority was also, to some extent, biased in conducting the aforesaid selection process, 39 and in our view, they have transgressed the periphery and the limits, imposed by the Hon'ble High Court in its judgement."

But the Learned Tribunal made a rider of such opinion to this effect that as in earlier proceeding only two vacancies of general category were directed to be considered holding de-novo selection process, the Public Service Commission and the departmental authority had no jurisdiction to add other new vacancies in the selection process of 2004 without taking leave of the Hon'ble High Court. In adjudicating the original application, Learned Tribunal below, practically considered that aspect as a major factor to hold that there was a breach of the judgement and order passed by the High Court in earlier writ application. We cannot substitute our views in the angle as advanced by the Learned Tribunal below.

There is no doubt that for two vacancies of general category, the applicants/respondents approached the writ Court earlier and was successful to have an order in their favour to this effect that selection process for two general category posts should be completed de-novo following recruitment rule, but that does not mean that High Court by earlier judgement debarred the Public Service Commission not to take into account other vacancies as matured to be filled up before proceeding with de-novo process of selection of two general category vacancies in terms of order of the High Court. In fact the total five vacancies of general category were declared taking note of earlier two vacancies of general category and additional three new vacancies created in the meantime. The 40 applicants/respondents knowing very well of such declaration of vacancies by advertisement as published, did not oppose inclusion of other three new vacancies and they participated in the selection process to test their fate. We are of the view that by enhancing the total number of vacancies to five in lieu of two as was the subject matter of the lis in earlier writ proceeding, service commission did not commit any illegality. As per the selection procedure and norms, the same is permissible and Tribunal held accordingly. No challenge has been made assailing the said finding of the Tribunal by the applicants/respondents by filing any writ application in this High Court alleging that under the recruitment procedures of service commission there was no scope to consider all vacancies as would be available prior to completion of the selection process for consideration of the candidatures of candidates on merit by taking note of total vacancies of posts occasioned prior to the date of selection process. Besides such, if we apply the question of prejudice theory, the respondents/applicants did not suffer any prejudice due to such increase of total number of vacancies of general category to five. As per order of the High Court if the selection process was made confined only with reference to the two vacancies, their chance of success would have been less than the chance of success with reference to more number of vacancies. As such, practically declaration of more vacancies was beneficial to them and they were not prejudiced in any manner. Hence, there was no breach of Article 14 and 16 of the Constitution of India. As from the findings of the Learned Tribunal below it appears that five vacancies of general category were duly declared by advertising the vacancies and inviting applications from the eligible 41 candidates, there was no breach of the earlier order of the High Court. Had it been a case that despite the order of the Division Bench passed in earlier writ application as referred to, service commission advertised only one vacancy for general category, then surely it would have been a direct breach of the order of the High Court as the High Court directed completion of selection process relating to two general category vacancies for which the writ application was moved by the writ petitioner therein. Since service commission enhanced the vacancies, the contention raised by the applicants/respondents and the findings made by the Learned Tribunal below that there was breach of the order of the High Court as earlier passed, has no basis on that score.

The findings of the Tribunal that as earlier selectees and the appointees whose appointments were cancelled subsequently got a contractual appointment as such there was element of bias in the selection process, is not legally sustainable. For exigencies of work, the government/employer is always at liberty to engage any person by way of contractual appointment and such contractual appointment cannot be a ground of bias element to vitiate the selection process.

Appearance of them in the selection process also did not vitiate the selection process.

The records have been produced by the service commission wherefrom it appears that the present applicants/respondents got lower marks and as such they could not reach the required position in the panel for their appointment with 42 reference to five vacancies of general category candidates. The applicants/respondents knowing very well about the total number of vacancies when participated in the selection process and thereby became unsuccessful, cannot assail the selection process.

So far as bias and malafide action is concerned by the Public Service Commission as alleged and about the findings of the Learned Tribunal below to that effect, we are of the view that Learned Tribunal was wrong to decide the issue in that angle for more than one reasons. It appears from the records that no members of Public Service Commission and no individual member of the departmental authority have been added as party respondent in the matter in the original application alleging bias and malafide action against them. The bias and malafide action is a mental phenomenon and it requires to be rightly pleaded in the application. Unless and until there is a proper foundation of malafide action against the persons concerned by making him as a party in the proceeding, there is little scope to adjudicate the said issue. Further more when malafide point is urged in any pleading, onus lies to the persons who alleges such to prove the malafide action in the strict sense. It is a settled legal position of law that there must be firm foundation of facts pleaded and established relating to malafide action and no inference of malafide could be drawn on the basis of mere insinuation and vex suggestion. Said view expressed in the case Rajendra Roy v.

Union of India & Ors. reported in (1993) 1 SCC 148. It is also a settled legal position of law that against whom a malafide action is alleged, he must be added 43 as a party in the proceeding, to satisfy the principle of natural justice. Reliance is placed to the case J. N. Banavalikar v. M. C. Delhi reported in (1995) Suppl 4 SCC 89, I. K. Mishra v. Union of India reported in (1997) 6 SCC 228. In a recent judgement passed in the case Jasbir Singh Chhabra & Ors. v. State of Punjab & Ors. reported in (2010) 4 SCC 192, in paragraph 34 the Apex Court discussed about the burden of prove on charge of malafide as well as pleading and evidential value thereof which read such:

"34. It is trite to say that while exercising power of judicial review, the superior courts should not readily accept the charge of malus animus laid against the State and its functionaries. The burden to prove charge of mala fides is always on the person who moves the Court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to mala fides and the courts should resist the temptation of drawing dubious inferences of mala fides or bad faith on the basis of vague and bald faith on the basis of vague and bald allegations or inchoate pleadings. In such cases, wisdom would demand that the Court should insist upon furnishing of some tangible evidence by the petitioner in support of his/her allegations".

Hence, having regard to the fact that there was no positive pleading against any individual person alleging malafide action, Learned Tribunal below, was wrong to reach a finding of bias and malafide action.

From the records before us as produced it appears that the original applicants/respondents were already reached their superannuation stage prior to the order passed by the Learned Tribunal directing to process the selection de-

novo by canceling all appointments. This fact was not brought to the notice of the Learned Tribunal below. The original applicants before the Learned Tribunal got 44 their promotional berth to the post of Assistant Engineer prior to their superannuation and after working in the post of Assistant Engineer which is the concerned post of the present lis, they retired from service. Hence, the order of the Learned Tribunal if is considered in the angle of the present fact when the applicants/respondents retired prior to the order passed by the tribunal holding promotional post of Assistant Engineer, the answer would be that there was no necessity of passing any order in the manner as passed by the Learned Tribunal below directing de-novo selection process canceling the appointments made through a selection process completed in the year 2004. At the present moment, if the order of the Tribunal is confirmed, the original applicants/respondents will not be benefited in any way, as they will not get any chance for appearance further and more so when they have already retired from service prior to the order passed by the Tribunal on having elevation of their berth from lower feeder post to Assistant Engineer post. Hence, there was no justification of passing impugned order by the Learned Tribunal due to superannuation of applicants from service. The original application practically became infractuous as soon as the original applicants were promoted to the post of Assistant Engineer from the departmental promotional quota, namely 40% of vacancies of the total posts, in the organisation.

Beside such, it is a settled legal proposition of law that a person when participated in the selection process and thereby has been unsuccessful, has no legal right to challenge the selection process. Reliance is placed to the judgement 45 passed in the case Union of India v. S. N. Chandrasekharan & Ors. reported in (1998) 3 SCC 694. Applying the principle of estoppel, the Apex Court held that even challenging the rule, the unsuccessful candidates are not entitled to move any lis. Reliance is placed to the judgement passed in the case Dhananjoy Malik v. State of Uttaranchal & Ors. reported in (2008) 4 SCC 171 wherein reliance made upon earlier view expressed in the case Mohanlal v. State of Jammu & Kashmir reported in (1995) 3 SCC 486 and Marripati Nagaraja v. Government of Andhra Pradesh reported in (2007) 11 SCC 522. Same view reiterated by the Apex Court in the case K. N. Nagamani v. Indian Airlines & Ors. reported in (2009) 5 SCC 515 wherein the earlier case Madanlal(supra) and judgement passed in the case Chandra Prakash Tiwari v. Shakuntala Shukla reported in (2002) 6 SCC 127, were relied upon.

Considering those legal aspects as discussed and having regard to the findings of the Learned Tribunal, I am of the view that order of the Learned Tribunal is not legally sustainable and original applicants had no case to challenge the selection process relating to five vacancies of general category with reference to which proper advertisements of the vacancies were made and the original applicants appeared in the selection process unsuccessfully. The issue of allotment of less marks to them, cannot be the subject matter of any adjudication as allotment of marks by written test and interview, is within the domain of subjective assessment of merit of a candidate by the service commission to prepare panel of candidates on merit.

Considering those findings and observations, I am of the view that the impugned order of the tribunal, is not legally sustainable and it is thus set aside and quashed. Writ application W. P. S. T No.400 of 2009 is allowed to that extent.

The writ application W.P.S.T. No. 542 of 2009 as has been filed by the State of West Bengal assailing the said common order dated 22nd April, 2009 passed in Original Application aforesaid is allowed on the basis of the aforesaid findings and reasonings.

Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties.

(Pratap Kumar Ray,J.) I agree, (Mrinal Kanti Sinha, J.)

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