Calcutta High Court (Appellete Side)
Pallab Chakraborty vs The State Of West Bengal & Ors on 14 September, 2017
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4.09.17
Srimanta
05(S/L)
W. P. No. 21433 (W) of 2017
Pallab Chakraborty
-Vs.-
The State of West Bengal & Ors.
Mr. Ekramul Bari,
Mr. Hafizur Rahaman.
...for the Petitioner.
Mr. Joytosh Majumder,
Mr. Pinaki Dhole,
Mr. Rajat Dutta.
...for the State Respondents.
Let the affidavit-of-service filed in Court today be kept with the record. The petitioner is aggrieved by an order dated July 11, 2017 passed by the Director of Health Services, i.e. the respondent no. 2. By the said order the appointment of the petitioner to the post of Medical Technologist has been terminated with immediate effect.
Pursuant to an advertisement issued by the West Bengal Health Recruitment Board the petitioner applied for the post of Medical Technologist (Laboratory) Grade - III. The essential qualification for the post was a Higher Secondary Examination or its equivalent with physics, chemistry and biology and two years' diploma course in laboratory technology recognized by the Government of West Bengal. The petitioner was allowed to appear at the recruitment process and was successful. He joined Basirhat District Hospital on April 13, 2017.
Subsequently when on verification of his results it was detected that the petitioner was not eligible for the post, the respondent no. 2 had terminated his service.
2It appears from the order impugned that upon verification of the relevant testimonials including the educational qualification of the petitioner it was found that he did not have the essential qualification required for recruitment to the post he applied for as prescribed in the rules and mentioned in the advertisement. The West Bengal Health Recruitment Board had cancelled the candidature of the petitioner on the ground that the essential eligibility criteria for holding the post was not fulfilled by him as he had passed the Higher Secondary Examination with subjects other than those required as per the advertisement.
The respondent no. 2 had specifically mentioned that the West Bengal Health Recruitment Board had informed him that it was mentioned in the advertisement that a candidate's admission to any examination or interviews would only be provisional, subject to determination of his or her eligibility in all respects. If at any stage even after the issue of the letter of appointment a candidate was found ineligible his candidature might be cancelled without further reference to him. The case of the petitioner had since then been reviewed in the light of the terms and conditions and it was found that the petitioner was lacking the essential qualification for being so appointed.
Mr. Bari, the learned Advocate for the petitioner, submits that he did not have physics, chemistry and biology as his subjects in the Higher Secondary Examination but he had qualified in the diploma in the medical technology with usual subjects which are taught in the said course. Therefore, the same may be 3 treated as equivalent to the physics, chemistry and mathematics required in the Higher Secondary Examination.
The petitioner is further aggrieved that the letter of termination had been issued to him without giving him an opportunity of being heard.
The fact, however, remains that the petitioner, as per the advertisement pursuant to which he applied, was not eligible for the post. The petitioner did not have any of the subjects as mentioned as compulsory in his Higher Secondary course. It appears that the petitioner had appeared at the Higher Secondary Examination from the commerce stream whereas the requirement was a candidate qualifying the examination from the science stream with biology as a subject. It does not appear that these subjects were taught at the diploma course for medical laboratory technique by the concerned University. The subjects the petitioner had to study were entirely different from those mentioned in the advertisement.
If a person is ineligible to apply for a certain post merely because he had applied and had been selected by mistake does not confer on him any right to hold the post, even when his ineligibility to hold the post had been detected in course of subsequent verification of documents and credentials. A mistake of the authorities confers no right on an appointee. In the case of State of Rajasthan - Vs.- Hitendra Kumar Bhatt, reported in A.I.R. 1998 S.C. 91, the Supreme Court held that an ineligible person cannot claim to continue in service merely because he was appointed provisionally.
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The petitioner cannot argue that the subjects taught at the diploma course are equivalent to the subjects an applicant is required to have at the Higher Secondary level. It may be taken note of that the advertisement specifically mentioned that a candidate must have to have either a Higher Secondary Examination with the subjects as mentioned therein or its equivalent and a diploma in medical technology. Therefore, any qualification which could be equivalent to the Higher Secondary Examination might be taken into consideration. The subjects in the medical technology could never be considered as equivalent to the subjects mentioned for the Higher Secondary Examination. Otherwise, the diploma in medical technology becomes equivalent to Higher Secondary Examination.
The petitioner sought to argue that if any opportunity had been given to him he could have convinced the authorities that the subjects he had studied at the diploma level were equivalent to the subjects which an eligible candidate was to have at the Higher Secondary level. It has been already found that such a claim is without any substance. Moreover, the question of equivalence arises only when there is any doubt about whether a degree awarded by a University or an examining body is equivalent to the same degree awarded by another examining body or teaching institution. Had the case of the petitioner been such that he had passed the Higher Secondary Examination from an examining body with some subjects which could be considered at par with physics, chemistry and biology, the question of equivalence might arise. The subjects such as anatomy, physiology, serology, pathology, i.e. some of the subjects he had to study at the 5 diploma level, could not be sought to be equated with the Higher Secondary qualification, as equivalence is always made between degrees of the same standard.
The other grievance of the petitioner that he had not been given any opportunity of being heard also is not a very convincing ground for entertaining the writ petition in the facts of the present case. The admit card made it very clear that candidates would have to satisfy themselves about their own qualifications since the applications were made on-line. It was specifically mentioned in the advertisement that should any statement be there in the application which had been subsequently found to be incorrect a candidate's selection would be liable to cancellation and even if appointed to a post on the results of the examination the appointment would be liable to be terminated. It was further mentioned that a candidate should note that his or her admission to the examination or interview will be deemed to be provisional one subject to the determination of his or her eligibility in all respects. If at any stage even after the issue of letter of appointment a candidate was found ineligible for admission to the examination his or her candidature would be cancelled without any further reference to him or her.
This has been specifically mentioned in the order of termination as contained in the advertisement. But in the advertisement, annexed to the writ petition, there was no mention of such provisions, raising the doubt about the validity of the observations made in the letter of termination. Mr. Majumder, the learned Government Pleader, has provided a complete advertisement from which 6 it appears that the advertisement runs into five pages and only two pages have been annexed to the writ petition which do not contain such stipulations. Let a copy of the said advertisement be kept with the records.
It will be saying less that the petitioner annexed an incomplete advertisement to the writ petition. It was made with a purpose to suppress the factors disentitling the petitioner from raising the issue which has been sought to be made in the writ petition. It has been made with a purpose to hold back from the consideration of the Court the stipulations contained in the advertisement itself empowering the authority to cancel or terminate an appointment in case upon verification of records he is found to be lacking in eligibility criteria in any of the respects. I find a certain method in not annexing the complete advertisement without giving any reason for the same. On the contrary in the sub-paragraph of paragraph 3 of the writ petition the petitioner has stated that photocopy of the advertisement as issued by the West Bengal Health Recruitment Board is annexed and marked with the letter P-2. There is no indication that he is annexing only part of it and the portion which have not been annexed are very crucial for deciding the fate of the case. I have no hesitation to hold that by suppressing the very material particular from the Court the petitioner not only wanted to steal a march upon the Court but it was an attempt to practise fraud upon it.
If the petitioner's conduct is not a praiseworthy one the stand taken by him about the non-compliance of the principles of natural justice have also no podium to stand on.
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The Court should not insist upon the compliance of the principles of natural justice when it is not likely to lead to a result other than that which has been reached by the authorities already. Thus, in a case where on the face of it compliance with the principles of natural justice would not have led in a different conclusion, it should not be insisted upon. Natural justice is an obedient servant but a dangerous master. Very frequently in the process of compliance with the principles of natural justice a very important focus is lost. It is not the case of the petitioner that he had actually passed the Higher Secondary Examination with the relevant subjects but by mistake the authorities has mentioned subjects other than those. In the writ petition also the petitioner has not been able to make out how the compliance of the principles of natural justice would have advanced his case.
Hearing in all cases may not be insisted on when the facts conclusively emerge from the records of the case. The onus heavily lies on the petitioner to establish that had natural justice been followed it would have led to a result other than that reached by the authorities. It has been held in R. -Vs.- Secretary of State for Home Department, Ex P. Mughal, reported in (1973) 3 All ER 796, that the rules of natural justice should not be allowed to be exploited as a purely technical weapon to undo a decision which does not in reality cause substantial injustice. It cannot be stretched too far, at least not to its illogical limits. In Bharat Barrel and Drum Manufacturing Co. -Vs.- L. K. Bose, reported in A.I.R. 1967 S.C. 361, the Supreme Court warned that natural justice unbound is as bad as its being kept out of bounds. In State of Madhya Pradesh -Vs.- R. P. 8 Sharma, reported in A.I.R. 1996 S.C. 2665, the Supreme Court cautioned that the principles of natural justice should not be stretched to the ridiculous edge of opportunity at every stage. It must be pragmatically allowed fruitful play to meet the given fact situation.
A litigant cannot come to Court and ask for compliance with the principles of natural justice when it will be an empty formality to direct the respondents so to do. It is not the case of the petitioner that he had actually the qualification. It is his case that he might have been able to convince that his qualification could be considered as equivalent. I have already shown that in order to establish equivalence between the two degrees there must be an equivalence of the status of the two degrees. And moreover the petitioner did not ask for the same at the time of making the application. Now that his service has been terminated he cannot come to show that Higher Secondary is equivalent to diploma in medical technology.
I thus not only find no merit in the writ petition but I find that the petitioner has come with very tainted hands in providing only a truncated copy of the advertisement. The part of the advertisement which was not annexed to the writ petition contains stipulations which, if annexed, were to go against the interest of the petitioner.
The writ petition is dismissed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings. 9 (Dr. Sambuddha Chakrabarti, J.)