Sariful Ansari vs State Of West Bengal & Ors.

Krishna Rao, J

Inspite of several directions of this Court, the respondent nos. 4 and 5 neither appeared before this Hon’ble Court nor have filed their affidavit-in-

opposition by enclosing documents as directed by this Court and thus this court has no other alternative but to proceed with the case against the

respondent nos. 4 and 5.

(1) The Secretary Nagara Nirada Devi Adibasi School (H.S.), District Murshidabad published a notice for appointment of a Clerk (General),

Madhyamik pass equivalent with type writing 30 words in English.

(2) The name of the petitioner was also sponsored by the Employment Exchange, Lalbagh and accordingly the Secretary of the school vide letter dt.

27.12.2008 requested the petitioner to appear before the Selection Committee of the School on 20.01.2009 at 10.30 A.M along with all original

certificates and mark-sheets at the time of interview.

(3) The petitioner had appeared before the Selection Committee and had also participated in the typing test held on 20.01.2009.

(4) On completion of the interview process a Evaulation Sheet was prepared by the Committee on 20.01.2009 wherein the name of the petitioner is

appearing at Sl. No. 43 and the position of the petitioner has been ranked as second and the name of the respndent no. 8 is placed at Sl. No. 35 and

the position of the respondent no. 8 has been ranked as first.

(5) On 16.02.2009, the petitioner had submitted a representation before the District Inspector of School on the allegation that after taking money and

without considering the candidature of the petitioner the school authorities are going to appoint ineligible persons and requested for taking appropriate

steps.

(6) In the mean time the petitioner came to know that the respondent no. 8 who had typed only 15 words in typing test out of three/four paragraphs as

dictated in the typing test had stand first whereas the petitioner who had typed 26 words out of the said paragraph stand second. The Secretary of the

Managing Committee who was one of the member of the Selection Committee allotted 2.8 marks to the respondent no. 8 and had allotted only 0.30

marks to the petitioner in the typing test.

(7) As the authorities have not taken any action on the representation submitted by the petitioner and being aggrieved by the marks allotted to the

respondent no. 8 in the typing test, the petitioner has filed the instant writ petition.

(8) Mr. Subir Sanyal, Ld. Advocate appearing for the petitioner contended that after vacancy notice issued by the School Authority, the petitioner had

applied for the post of Clerk in the said school and the school authorities have also issued a letter to the petitioner as sponsored candidate of the

Employment Exchange to appear in the selection process on 20.01.2009.

(9) The Counsel for the petitioner submitted that the petitioner had participated in the selection process. The specific allegation of the petitioner is that

in the typing test conducted by the committee, the petitioner has typed the following paragraph:

“Initial investigation by the Registrar of Companies into the Satyam Scam has revealed large-scale selling of Company shares by institutional

investors just days ahead of Ramalin.â€​

(10) The Counsel for the petitioner further submitted that the respondent no. 8 has also participated in the typing test and has typed the same which is

as follows:

“Initial investigation by the Registrar of computer into the scalm has large-scale selling ofâ€​

(11) The Counsel for the petitioner submitted that the petitioner has typed one paragraph of four lines containing about 26/27 words and the petitioner

has not committed any mistake wherein the respondent no. 8 had typed only two lines containing 15/16 words that too several mistakes but while

awarding marks of the typing test, Shri Amar Mondal Secretary of the Managing Committee of the school who was also the member of Selection

Committee had awarded 0.30 marks to the petitioner wherein the said member has awarded 2.8 marks to the respondent no. 8 which clearly proves

favouritism malafide action on the part of the member of Selection Committee.

(12) The Counsel for the petitioner further submitted that the panchayat nominee who was also one of the members of Selection Committee had

allotted 2 marks each to the petitioner and respondent no.

The expert member allotted 0.25 marks to the respondent no. 8 and 2.8 marks to the petitioner in the typing test.

(13) The Counsel for the petitioner submitted that only to accommodate the respondent no. 8 and to debar the petitioner to appoint as Clerk in the said

school, with the malafide intention had awarded more marks to the respondent no. 8 then the petitioner though the petitioner has typed better then the

respondent no. 8.

(14) The Counsel for the petitioner further submitted that if a glaring illegality in the selection procedure is demonstrated before the Court affecting

one’s right protected by Articles 14 and 16, an unsuccessful candidate if he can prove to the satisfaction of the Court that such glaring illegality

could not have been known to him before the selection process was complete and he came to know of the same after completion of the selection

process, legitimately question the selection process. In support of his contention the Counsel for the petitioner relied upon the judgment reported in

(2014) 1 CLJ (CAL) 17 (Jayshree Ghosh â€"Versus- State of West Bengal).

(15) The Counsel for the petitioner further submitted that the decision of the Selection Committee can be inferred with such illegality or patent material

irregularity in the constitution of the committee or its procedure vitiating the selection, or proved malafide effecting the selection. In support of his

submission the petitioner relied upon the judgment reported in (1990) 1 SCC 305 (Dalpat Abasaheb Solunke & Other â€"Vs- Dr. B.S. Mahajan &

Ors.).

(16) The Counsel for the petitioner further contended that it has to be ensured that the examiner who make the evaluation of answer papers are really

equipped for the job. The paramount consideration in such cases in the ability of the examiner. In support of the contention the petitioners relied upon

the judgment reported in (2007) 1 SCC 603.

(17) The Counsel for the petitioner submitted that as the Selection Committee have not assessed the marks of the petitioner in the typing test properly

and had prayed for referring the matter back to the Committee for reassessing the marks in the typing test so as to enable the petitioner to get an

appointment to the post of Clerk in the said school.

(18) Mr. Jahar Lal Dey, Ld. Advocate representing the respondent nos. 1, 2 & 3 submitted that even if in case it is found that an illegality has been

committed for awarding marks, the matter cannot be referred back to the authority for awarding correct marks. He has further submitted that if it is

found illegal, the said selection process is to be set aside.

(19) The Counsel for the respondent nos. 1, 2 & 3 has further submitted that the petitioner has annexed the Evaluation sheets of the Selection

Committee as well as the typing test conducted by the Committee but the petitioner has not explained as to how the petitioner has obtained the said

documents which is confidential in nature. The Counsel for the respondent nos. 1, 2 & 3 has submitted the petitioner has committed gross illegality by

producing the confidential documents by relying upon the same in the writ petition without any explanation.

(20) The Counsel for the respondent contended that it is settled law that in case of setting aside the appointment given to the appointed candidates, as

new vacancy has arises in view of the order of setting aside the appointment with effect from the fact of such order and in such situation fresh

vacancy should be declared in accordance with prevailing Rules. It is further submitted that in the instant case the recruitment process was initiated as

per Rule 2005 but if this court set aside the selection process Rule of 2009 will come into play as in the mean time Rule 2009 is notified. In support of

his contention the respondent relied upon the judgment reported in (2010) in WBLR (Cal) 527 (Motin Khan â€"Vs- the State of West Bengal) and

(2011) 3 CLJ 1 (Tulsi Roy -Vs- Krishanu Roy & Ors.).

(21) Mr. Usof Ali Dewan representing the respondent No. 8 contended that the selection was made not only on the basis of the marks of typing test.

The Selection Committee has taken into consideration of the marks obtained in the Madhyamik exam, typing test and viva voce.

(22) The Counsel for the respondent relied upon the Evaluation sheet wherein it is crystal clear that the respondent no. 8 had obtained total 575 marks

in Madhyamik exam i.e. 71.87 % and the Selection Committee has taken 10 % of the total mark which comes to 7.187 % whereas the petitioner has

obtained total 509 marks in Madhyamik exam i.e. 63.62 % and 10 % of the said marks is 6.362.

(23) The Counsel for the respondent no. 8 further submitted that the respondent no. 8 had obtained total 3.85 marks in type writing and viva voce

wherein the petitioner has obtained 3.40 marks and as such the total marks of the respondent no. 8 was 7.187+3.85= 11.037 whereas the total mark of

the petitioner was 6.362+3.40=9.762. Relying upon the said marks, the respondent submitted that the respondent no. 8 has obtained higher marks than

the petitioner and thus, Selection Committee has not committed any illegality.

(24) The Counsel for the respondent further submitted that the recruitment process was carried out in terms of the Rule of 2005. The respondent has

relied upon Rule 6 (b) of Rule 2005 wherein for the selection of a Clerk or a Group - D staff in a school, the Selection Committee consists of

following:

“(i) Headmaster,

(ii) Secretary of the school authority:

Provided that if the Headmaster and the Secretary of the school authority are one and same person, the President of the school authority shall be the

member of the selection committee:

Provided further that nothing in the last preceding proviso shall be applicable in case there is an Administrator of the school,

(iii) Headmaster of a school in the same sub-division as the school for which the Clerk or the Group D staff is to be selected is situated, and

(iv) a nominee of the Panchayat Samiti or, in absence of the Panchayat Samiti, a member of the school authority:â€​

(25) The Counsel for the respondent has further relied upon Rule 9 (2) of Rule 2005 wherein allotment of marks for selection of a Clerk in a school is

prescribed which are as follows:

“(2) (a) For selection of a Clerk in a school,-

(i) full marks for possessing the Certificate of passing Madhyamik examination (or equivalent) shall be 10 marks;

(ii) full marks for possessing the skill of typewriting shall be 5 marks;

(iii) full marks for the interview shall be 5 marks.

(b) The marks to be awarded to a candidate for possessing the Certificate of passing Madhyamik Examination (or equivalent) shall be computed by

multiplying full marks for possessing that Certificate by the percentage of marks obtained by the candidate in the Madhyamik Examination (or

equivalent).â€​

(26) The Counsel for the respondent no. 8 further submitted that there is no ambiguity with regard to Constitution of Selection Committee as well as

allotment of marks as the respondents have acted in accordance with the Rule 2005.

(27) The Counsel for the respondent no. 8 further submitted that the petitioner participated in the selection process along with the other candidates

without any demur or protest but only when the petitioner came to know that he is an unsuccessful candidate in the selection process has filed the

instant writ application and thus the writ application is not maintainable. In support of the contention, the counsel for the respondent no. 8 relied upon

the judgment reported in AIR (2009) SC 3240 (K.A. Nagamani â€"Vs- Indian Air Lines & Ors.). The Counsel for the respondent no. 8 further

submitted that it is not the duty of the Court to hear appeal over the decision of the Selection Committee and to scrutinize the relative merits of the

candidates. In support of his contention, the Counsel for the respondent no. 8 relied upon the judgment reported in AIR 1990 SC 434 (Dalpat

Abasaheb Solunki â€"Vs- Dr. B.S. Mahajan). The Counsel for the respondent also relied upon the judgment passed by the Delhi High Court in WP

(C) 314/2016 dated 15.02.2016 (Moti Kumari â€"Vs- Secretary General Supreme Court of India).

(28) The Counsel for the respondent no. 8 further contended that the Selection Committee has not committed any error and have acted in accordance

with law and as such no interference is required and the writ petition filed by the petitioner is liable to be dismissed.

(29) Having heard the Ld. Advocates for the parties and on considered the materials available on record.

(30) While issuing the notification for filling up the post of Clerk (General) under Nagara Nirada Devi Adibasi School (H.S), it is contended that the

candidate should have Madhyamik pass equivalent with type writing 30 words per minute in English. After the notification and after receipt of the

applications from the eligible candidates, the respondents have constituted a Selection Committee and the Selection Committee conducted interview

along with typing test on 20.01.2009. In the typing test, the petitioner had typed four lines consisting of 26 words. The respondent no. 8 had typed two

lines consisting of 15 words.

(31) After conducting interview and typing test all the three members of the Selection Committee have awarded their separate marks in typing test as

well as viva voce.

(32) Sri Amar Mandol who is the Secretary of the School Authority and the member of the Selection Committee had awarded 2.8 marks to the

respondent no. 8 in typing and had awarded 0.30 marks to the petitioner in the typing test. The expert i.e. the Head Master of KCK High Madrasah

had awarded 0.25 marks to the respondent no. 8 in the typing test and had awarded 2.8 marks to the petitioner in the typing test. The nominee of the

Panchayat Samiti who is also one of the members of the Selection Committee has given 2 number each to the petitioner as well as the respondent no.

8 in the typing test.

(33) The Committee members while giving the number in the typing test failed to appreciate that as per the vacancy notice issued by the School

Authority for appointment of Clerk in the said school, the type writing should be 30 words per minute but neither the petitioner nor the respondent no. 8

have typed 30 words per minute. From the record of the typing test it reveals that the petitioner has typed about 26 words and the respondent no. 8

had typed 15 words and as such both of the candidates have not fulfilled the criteria as notified in the vacancy notice but the members of the Selection

Committee have provided their respective marks.

(34) On perusal of the same it appears from the record that the Secretary of the Managing Committee of the school who is also the member of the

Selection Committee had intended to cover up by the process of allotting higher marks in typing test as well as in viva voce to the respondent no. 8

wherein the fact remains the respondent no. 8 had typed only 15 words i.e. also with several mistakes.

(35) None of the committee members have considered that both the candidates failed to type 30 words per minute as required in terms of the vacancy

notice.

(36) For the above reasons the recommendation of the Selection Committee for appointment of the respondent no. 8 in the post of Clerk, by ignoring

the fact that the respondent no. 8 had typed only 15 words with several mistakes and had not typed 30 words per minute awarded 2.8 marks to the

respondent no. 8 ignoring the fact that the petitioner has typed 26 words but had awarded only 0.30 marks is arbitrary, unreasonable, discriminatory

and perverse.

(37) Now the question raised by the respondents whether this Court can interfere with the selection process wherein the fact remains that the

petitioner had participated in the selection process and after came to know he is unsuccessful in the selection process had challenged the same

process in the instant writ application.

(38) It is settled law that a Process of Selection cannot be challenged by an unsuccessful candidate by pointing out certain irregularities in the selection

process. In the instant case, though the petitioner had appeared in the selection process but subsequently the petitioner came to know that though the

petitioner has typed much better than the respondent no. 8 and the said fact was also brought to the notice of this Court in the writ application by

annexing the typing test document of the petitioner as well as the private respondent being page 37 & 38 (Annexure P/7) in which it is crystal clear

that the petitioner had typed four lines containing 26 words whereas the private respondent had typed two lines containing 15 words but in spite of the

said facts, the Secretary of the Managing Committee of the School who was also the member of the Selection Committee had provided 2.8 marks to

the respondent no. 8 and had provided 0.30 marks to the petitioner.

(39) From the record it also brought to the notice of this Court that as per the vacancy notification the typing should be 30 words per minute but none

of the candidate has typed 30 words per minute. The said fact was also not considered by the Selection Committee.

((40) The decision reported in (1990) 1 SCC 305 (Dalpat Abasaheb Solunki â€"Vs- B.S. Mahajan) and (1997) 9 SCC 527 (Raj Kumar â€"Vs- Shakti

Raj) it has been held that glaring illegalities in the selection procedure be demonstrated before the Court, the principle of estoppels by conduct or

acquiescence would have no application.

(41) In the instant case also the Selection Committee had committed glaring illegalities by awarding higher marks to the respondent no. 8 though it is

admitted that the respondent no. 8 has typed only 15 words with several mistakes wherein the petitioner has typed about 26 words. The selection

Committee have also failed to consider that the minimum criteria for typing is 30 words per minute but none of the candidate has typed 30 words per

minute and thus the ratio of the judgment has referred supra is squarely applicable in the instant case.

(42) For the aforesaid reason, the selection process for appointment of Clerk in the Nagara Nirada Devi Adibasi School (H.S.), dated 20.01.2009 is

set aside and quashed.

(43) As per the judgment passed by three Judges of this Court reported in (2011)3 Cal.LJ 1(Tulsi Roy - versus- Shri Krishna Roy & Ors.) where due

to pendency of the court proceedings challanging the process of selection as illegal, for any reason, no appointment was made but the proceedings for

selection remain stayed and the court ultimately passes direction for selection after advertising the process should restart from that stage and should

be completed in accordance with the old Rule. In the instant case this court vide order dt. 05.05.2009 the question of maintainability raised by the

respondents was rejected and had stayed the entire selection process including appointment till the adjudication of the instant application.

(44) In view of the above the respondent authorities are directed to complete the selection process for appointment of Clerk in the said school from

the stage of conducting interview and typing test a fresh accordance with law within a period of eight weeks from the date of communication of this

order.

(45) WPA 3717 of 2009 with CAN 1 of 2019 (Old CAN No. 5762 of 2019) is stand disposed of.

Parties shall be entitled to act on the basis of a server copy of the Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.