Phani Bhusan Mondal vs State Of West Bengal & Ors

Rajasekhar Mantha, J

The name of the petitioner in the cause list be corrected suitably.

The writ petitioner is aggrieved by the order dated November 3, 2008 that he was not empanelled for selection to the post of Lecturer in B.Ed. College in the Calcutta University Zone where the declared vacancies under the reserved categories were admittedly 24 in total and 14 in the Scheduled Caste Category.

The facts of the case are stated as follows:‐

In the year 2007, an advertisement was issued by the West Bengal College Service Commission for recruitment to the posts of Lecturers in B.Ed. Training Colleges. One of the qualifications for the posts was that the candidate was required to have a Post‐Graduation in a subject as also Master's degree in Education. The said process of recruitment could not be finalized. However, in the year 2008, the Commission issued another advertisement where under even persons with B.Ed. degree and masters in any subject were entitled to apply for the same post and the process of recruitment under the two advertisements was clubbed.

The petitioner who is in the S.C Category applied under the second advertisement since he only had bachelor of education degree and a master in other subject. One of the terms contained in the advertisement that a selected candidate would have to complete his Master's degree in Education within a period of two years of the recruitment.

The process of selection involved a total of marks allotted on the basis of academic qualifications and marks obtained in interview/viva‐ voce.

A final list of eight empanelled candidates for Calcutta University category was prepared and published in the Scheduled Castes category and one person in the O.B.C. category. The petitioner did not feature in such panel.

He complained to the authorities through the SC and ST Commission and received a reply to the effect that the process of recruitment was made after screening of candidates based on the method subject in their respective B.Ed. curriculum.

The writ petitioner would advance a two‐fold argument before this Court. Firstly, that the vacancy position was about 25 in the reserved category of which 14 were for Scheduled Castes candidates.

The petitioner himself is a Scheduled Caste candidate. The Commission, according to the petitioner, acted illegally in empanelling only eight persons as against 14 vacancies. He would next argue that the selection and categorization of candidates based on the method subject in the curriculum and the B.Ed. courses undergone by them was alien to the advertisement and hence was illegal and arbitrary.

The writ petitioner would rely upon firstly a judgment of the Supreme Court in the case of (R.S. Mittal vs. Union of India) reported in (1955) 2 SCC 230 particularly in paragraph 10 thereof.

"10. The Tribunal dismissed the application by the impugned judgement on the following reasoning:

(a) The selection panel was merely a list of persons found suitable and does not clothe the applicants with any right of appointment. The recommendations of the Selection Board were directory and not mandatory and were not therefore enforceable by issue of a writ of mandamus by the Court.

(b) The letter of Ministry of Home Affairs dated 8‐2‐1982 which extends the life of panel till exhausted is not relevant in the present case. In the circumstances the life of the panel in this case cannot go beyond 18 months and as such expired in July 1989.

It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."

The petitioner would next rely upon a decision of the Supreme Court in the case of (East Coast Railway and Anr. Vs. Mahadev Appa Rao and Ors.) reported in (2010) 7 SCC 678.

"14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. if any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.

Black's Law Dictionary describes the term "arbitrary'' in the following words :

"Arbitrary.‐ 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law.

(Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious."

In the answer to the writ petitioner, Counsel for the Commission would submit as follows:‐

That the petitioner at all material times knew that methodology was an integral part of the B.Ed. course undertaken by a candidate.

There are admittedly three compulsory papers in the B.Ed. course and one subject paper and two method papers apart from four practical papers. It is further submitted that a candidate having studied and qualified in a particular method paper while pursuing the B.Ed. degree is deemed capable of teaching only such method/subject.

It is in furtherance of this knowledge that the petitioner in his first application against the column subject had stated B.Ed. and in the form to be filled up before the interview, had stated Bengali as his method/subject.

In substance the Commission would argue that the petitioner at all material times aware of the application of selection and/or categorization of Lecturers based on method system which method was the one in which they were trained and had obtained the B.Ed. degree. It is, therefore, argued by the Commission that the petitioner having fully known of the method of selection, cannot turn around subsequently after failing to qualify, or being empanelled, question as to why the method subject based process of categorization and/or selection was adopted by the Commission.

Reliance is placed by the Commission on the decision of the Supreme Court in the case of (Madras Institute of Development Studies vs. K. Sivasubrananiyan) reported in (2016) 1 SCC 454. The relevant Paragraph No. 13 and 17 are set out herein below:

"13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.

"17.In Manish Kumar Shahi v. State of Bihar[(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256], this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16)

"16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not 1[(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] entitled to challenge the criteria or process of selection. Surely, if the petitionerʹs name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

The Commission also placed reliance on the decision in the case of Chandigarh Admn. Vs. Usha Kheterpalwaie reported in (2011) 9 SCC 645; the relevant paragraph is set out herein below:

It is now well settled that it is for the rule‐making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. (See J. RangaSwamy v. Govt. of A.P. [(1990) 1 SCC 288 : 1990 SCC (L&S) 76] and P.U. Joshi v. Accountant General [(2003) 2 SCC 632 : 2003 SCC (L&S) 191] .) In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of PhD is unreasonable."

This Court has carefully considered the rival contentions and arguments of the parties.

In so far as the first point that is raised, this Court is of the view that merely because 24 vacancies have been announced, the State is not bound to fill up such vacancies. The Commission is only required to recommend 14 candidates under S.C category and may recommend a for lesser number of persons if it does not find suitable persons based on the criteria to be applied. It is held that the Commission as well as the State has discretion to empanel and appoint lesser number of candidates if suitable number of candidates are not found against all posts advertised.

The second argument of the petitioner is that the method subject in the B.Ed. degree applied as criteria of selection not having been stipulated in the advertisement cannot be imported by the Commission and the selection process is invalid needs to be addressed.

The Commission's averment in the Affidavit‐in‐Opposition has not been denied in the affidavit‐in‐reply that the method subject of a candidate while obtaining the B.Ed. degree would be a crucial factor in determining his eligibility for becoming a Lecturer in a Teachers' Training College.

The same could not only deemed as common/public knowledge but can also be imputed as being to the special knowledge of the petitioner in view of specific averments made in the writ application.

Such averments are inter alia that he had applied for Lecturer in the Bengali subject in the Teachers' Training Institute under the Calcutta= University. This is also repeated and reiterated in other portions of the writ application and is also found in the form filled up by the petitioner before the interview process.

The Court also finds it rather curious to note that the petitioner has mentioned B.Ed. against the column 'subject' in his initial application. This Court's mind is not free from doubt that the same has been made deliberately to leave a vagueness to enable the petitioner undue leverage in the selection process.

The petitioner, therefore, cannot turn around and deny knowledge of the method/subject in the B.Ed. course as the criteria for selection. No special mention needs to be made in the advertisement to this effect, although the Commission and the State could have been better placed to have stipulated more clearly advertisement to this effect.

The propositions in the decision cited by Mr. Sanyal are apt but cannot be applied in the instant case.

The decisions cited on the part of the Commission being Madras Institute of Development Studies case (supra) and Chandigarh Admn case (supra) clearly has application in the facts of the case. This Court does not find any arbitrariness or impropriety in the selection process on the part of the Commission or the State in this regard. For the reasons stated hereinabove, the writ petition must fail and is hereby dismissed.

There will be no order as to costs.