Subhendu Banerjee vs Shovan Kumar Ruj

S.P. Talukdar, J.—The instant appeal being M.A.T. No 789 of 2005 is directed against the judgment and Order dated February 23, 2005 passed by the learned Single Bench of the Hon''ble Court in W.P. No. 9052 (W) of 2003.

Grievances of the Appellants may briefly be stated as follows:

Respondents No. 1, Shovan Kumar Ruj, as Petitioner, filed a writ application wherein he alleged that the present Appellants who are the selected candidates do not have the requisite qualification in terms of Clause (b) of the essential qualifications mentioned in the advertisement.

The controversy relates to selection by the authority concerned being the Victoria Memorial Hall to the post of Conservation Assistant. An advertisement was published in the newspapers in July 2002 inviting applications from Indian nationals for filling in vacancies in different categories of post in Victoria Memorial Hall. The writ Petitioner applied for the post of Conservation Assistant on July 29, 2002. He duly mentioned his academic qualifications and the percentage of marks obtained by him as also the fact that he underwent training from national Archives of India, Delhi for ''Care and Conservation of books manuscripts and archives.'' Though he satisfied the requirement, he did not get any interview call letter and for that, he filed an application under Article 226 of the constitution before the High Court being W.P. No. 6060 (W) of 2003. The matter was moved on January 11, 2003 before the Hon''bie Justice Bhaskar Bhattacharya it was submitted on behalf of the authorities that as it was not possible for them to call all the 227 Applicants, a Screening Committee was constituted and the said Committee screened only 19 candidates. The authorities were directed to file affidavit-in-opposition and the writ Petitioner filed an affidavit-in-reply thereto.

After hearing Learned Counsel for both the parties the Hon''bie Judge was pleased to record that His Lordship was satisfied that the Petitioner had made out a strong prima facie case and the authorities were directed to allow the Petitioner to participate in the interview for the post of Conservation Assistant.

Pursuant to such direction given by order dated April 23, 2003, the Petitioner was called for interview and he appeared before the Interview Board on April 24, 2003. Having regard to the nature of questions asked at the time of interview, the Petitioner could feel that such Selection Committee was determined to act in an arbitrary manner. Petitioner could learn that Serial No. 4 and 72 are the candidates of Mr. Chittaranjan Panda, one of the Members of the Interview Board and they have already been selected and the interview was a mere eye wash.

The Petitioner by his letter dated April 28, 2003 submitted a representation before the Governor of West Bengal stating therein the kind of maltreatment he was subjected to at the time of interview. He also indicated that though he was the only eligible candidate and in spite of his good performance, he would not be selected.

The writ application filed by the Petitioner was again taken up for hearing on May 7, 2003 and the Learned Judge disposed of the matter with liberty to the Petitioner to make proper application. The Petitioner was not informed about result of the interview in spite of his writing a letter to that effect. The short listed 19 candidates, who appeared in the interview along with the Petitioner, did not have requisite qualification and none of them was eligible for being appointed to the post of Conservation Assistant. The Petitioner, thereafter, filed another writ application being W.P. No. 7956 (W) of 2003 on 16.05.2003 challenging the decision of the Selection Committee. The said application was taken up for hearing by Hon''ble Justice Bhaskar Bhattaeharya on May 23, 2003. The said application was also dismissed with liberty to the Petitioner to make a fresh application challenging the legality and validity of the panel prepared by the Selection Committee for the post of Conservation Assistant.

At the time of hearing of the said application it was submitted on behalf of the authorities that appointment letters had already been issued and the selected candidates had joined in the service. The selected candidates did not have the combination as specified in the advertisement and as such, their higher qualification should not have been taken into consideration. It was alleged that though the Petitioner was the fittest candidate amongst those who appeared for interview on April 24, 2003, he was not selected and this was in violation of Article 16 of the Constitution. The Petitioner further alleged that the authorities acted in a vindictive manner by not selecting him for the post of Conservation Assistant. The authorities failed to consider that the candidates must have the essential qualification according to the advertisement and non-selection of the Petitioner for the post of Conservation Assistant in spite of the fact that he was the fittest candidate of all was clearly in violation of Article 14, Article 16 and Article 300A of the Constitution. The Petitioner in such circumstances filed a further writ application challenging the panel allegedly prepared by the Selection Committee after taking interview of the candidates who did not have essential qualification as per Notification in the Employment News for the week 20-26 July, 2002 for the post to Conservation Assistant in Victoria memorial Hall. The appointment given to the candidates on the basis of the recommendation of the Selection Committee was f further challenged and prayer was made for directing the authority concerned to appoint the writ Petitioner in the post of Conservation Assistant.

The said writ application was allowed by the Learned Single Bench of this Court and by the judgment and Order dated February 23, 2005 the Learned Single Bench held that the selection for the post of Conservation Assistant was vitiated by irregularity as well as by illegality and the appointment given to the Respondents No. 19 and 20 to the writ application was quashed and set aside.

Being aggrieved by and dissatisfied with the said judgment and Order dated February 23, 2005 the present Appellants preferred the instant appeal wherein they clamed that the Learned Single Judge failed to consider the matter in its proper perspective and was not justified in quashing the appointment given to the present Appellants.

Learned Senior Counsel Mr. Aninda Mitra, appearing for the Appellants first invited our attention to the employment advertisement published in the, Employment News 20-26 July, 2002. The relevant advertisement is as follows:

Conservation Assistant :-- Scale Rs. 4,500-125-7-7,500+ usual allowances as admissible. Number of Vacancies : 02 (Two). Nature of Reservation : Unreserved. Age : Not to exceed 35 years as on July 1, 2002. Qualification : Essential; a) A Bachelor Degree in Science from a recognized university with Chemistry and Physics or Chemistry and Zoology, b) Conversant with various or repair-namely, chiffoning, tissuing, lamination, deacidification, cleaning and restoration of documents etc. including equipment and preservation needed for conservation.

It was submitted that the expression used in (b) of the said advertisement is significantly different from what was essentially required in respect of certain other posts. The expression ''conversant with'' and not working experience, as required for some other posts, certainly has a different impact in the backdrop of the present case. It was, according to Mr. Mitra, deliberate and conscious act on the part of the authorities. He explained the expression ''conversant with'' by referring to various dictionary meanings and there, Mr. Saktinath Mukherjee, learned Senior Counsel appearing for the Victoria Memorial Hall, joined him. Mr. Mukherjee then added that experience can be objectively demonstrated and ascertained whereas it is a matter of subjective satisfaction while assessing as to whether a candidate is conversant with a particular subject/thing/process or not.

In response to this, learned Senior counsel Mr. Kalyan Bandopadhyay, appearing for the contesting Respondent, contended that the relevant advertisement leaves no scope for any confusion or controversy. The expression ''conversant with'' is, no doubt, seldom used. It was contended by Mr. Bandopadhyay that the said expression is required to be read in the context of ''essential''.

Reference was made to the various dictionaries while attempting to explain the said expression. After taking into consideration the various meanings, we think the most appropriate, if not exact, meaning is ''familiar with'', ''acquainted''.

In Bouvier''s Law Dictionary, volume-I, Page-668, the word ''conversant'' has been given the meaning of "one who is in the habit of being in a particular place is said to be conversant there, barnes-162. Acquainted; familiar."

The New Lexicon Webster''s Dictionary, Page-213, gives the meaning of the word ''conversant'' as "well acquainted, familiar, conversant with politics-informed about, he is quite conversant with the matter."

The Shorter Oxford English Dictionary, Volume-I,

Page 387, gives the meaning of the word ''conversant'' as follows:

Dwelling habitually or frequently in a place

Having familiar intercourse with

Occupied in--having to do with

Versed in; familiar with

Frequently occurring; familiar

The composition of the Interview Board, as could be gathered from the materials available on record, is as follows:

Sri Nand Kishore, Accountant General of West Bengal;

Sri B.P. Singh, Secretary to the Government of India, Department of Culture.

Sri Sanjiv Mittal, Director, Department of Culture, Government of India;

Sri S.P. Singh, Director (Conservation) National Museum, and

Sri Chittaranjan Panda, the Secretary and Curator of Victoria Memorial Hall.

Referring to such composition, it was argued by Mr. Mitra that in the absence of mala fide, there is no reason for the Court to interfere in the matter of appointment. He submitted than the appointment in question was made in 2003 and there can be no reason for disturbing the same at this stage.

Mr. Mitra, thereafter, relying upon the decision in the case of(1) Rain Sarup v. State of Haryana and Ors. submitted that appointment even it held to be irregular may not be void. Relevant portion of the decision of the Apex Court; in the said case may be reproduced as follows:

We are of the view that the appointment of the Appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years'' experience of the working of labour laws in any one of the three capacities mentioned in Clause (1) bf Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised.

It was argued that the fact that the present Petitioners/Appellants have already worked as Conservation Assistant and have acquired experience for two years cannot also be lost sight of.

Referring to the decision in the case of Shri Parvez Qadir Vs. Union of India (UOI), , it was submitted by Mr. Mitra, Learned Counsel appearing for the Appellants, that there can be various methods of selection and it is not for the Court to lay down which of the methods has to be adopted for adjudging suitability as long as the norms are relevant to the adjudging of the suitability of officers to be recruited.

Mr. aninda Mitra, learned Senior Counsel, appearing for the Appellants, contended that it is necessary to keep in view the twilight zone, of Court''s interference in appointment to posts requiring technical experience. The Supreme Court in the case of Dr. M.C. Gupta and Others Vs. Dr. Arun Kumar Gupta and Others, held that "When selection is made by the Commission aided and advised by experts having technical experience and high academic qualification in the specialist field, probing teaching/research experience in technical subject, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegation of mala fides against them. It would normally be prudent and safe for the courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it, the court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Article 226. Even then the court, while enforcing the rule of law, should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted. If the recommendations made by the body of experts, keeping in view the relevant rules and regulations, manifest due consideration of all the relevant factors, the Court should be very slow to interfere with such recommendations.

Mr. Saktinath Mukherjee, learned Senior Counsel, appearing for the Victoria Memorial authorities submitted that short listing of candidates is permissible. He contended that the contesting Respondent having participated in the interview, cannot challenge selection on merit. Mr. Mukherjee then submitted that the Respondent could challenge if he was not aware of the background of the present Appellants. He referred to the decision in the case of 1981 (1) CLJ 305 Union of India through the General manger. Eastern Railway and Ors. v. S.N. Chatterjee and Ors. in support of his contention that in the present case the Respondent had previous opportunity to raise objection effectively and that having not been done, he cannot be permitted to ventilate grievance in that regard subsequently.

Our attention was drawn to the decision in the case of (1998) 3 SCC. 699 Union of India and Anr. v. N. Chandrasekharan and Ors. wherein it was held that selection procedure being made known the candidate before selection, unsuccessful candidate is not entitled to challenge it afterwards. The Supreme Court in the said judgment observed that "judicial wisdom is judicial restraint. Generally matters of policy have little adjudicative disposition."

Mr. Saktinath Mukherjee, thereafter, contended that the present contesting Respondent cannot be permitted in the backdrop of the present case to challenge the propriety by filing a writ application and thereby to just take a chance. Mr. Mukherjee further reminded us that judicial review does not mean by any stretch of imagination an ''appeal'' before the Writ Court.

It was then submitted by Mr. Mukherjee that ''short listing'' is a part of the selection process and this cannot be grudged if such short listing is done in a reasonable and rational manner. In this context, he referred to the decision in the case of Madhya Pradesh Public Service Commission Vs. Navnit Kumar Potdar and another, with other cases. In the said case the Apex Court held that short listing is a part of the selection process and where selection is to be made solely on the basis of interview, it is necessary to fix limit of candidates to be called for interview on some rational and objective basis.

Learned Senior Counsel, Mr. Saktinath Mukherjee, also echoed the submission made by learned Senior Counsel Mr. Aninda Mitra that in absence of positive allegation of mala fide on the part of the Selection Committee, there could hardly be any justification for any interference by this Writ Court. Drawing attention of the Court to the composition of the Selection Committee which undoubtedly comprises of persons with high academic qualifications and holding very important posts, it was contended that such a Committee cannot ordinarily be expected to have acted in a mala fide manner.

On the other hand, learned Senior Counsel, Mr. Kalyan Bandopadhyay, appearing for the contesting Respondent No. 1 submitted that the peculiar feature of the present appeal is that the Appellants are the selected candidates whose appointment was challenged by filing a writ application and not the authority concerned being the Victoria Memorial Hall. He submitted that there is no scope for widening the field of controversy. In this context Mr. Bandopadhyay invited attention of the Court to the orders passed by the Learned single Bench of this Court in connection with the earlier writ applications.

It appears that in response to W.P. No. 6060 (W) of 2003 which was the first writ application filed by the present Respondent the Learned Single Bench by order dated April 23, 2003 directed the authority concerned to permit the present contesting Respondent to appear for the interview for the post in question. Thereafter, by order dated May 7, 2003 the Learned Judge held that as he had not been selected even after participating in the interview, the writ application became infructuous and there was no scope for investigating the selection process in that writ application. It was, however, observed that the present Respondent was free to take appropriate action if he was dissatisfied with the decision of the authorities. It is true that thereafter the present Respondent filed the writ application challenging the selection of the two candidates. Mr. Bandopadhyay submitted that the process of selection is virtually an act of a quasi judicial authority and there must be objective factors.

Drawing attention of the Court to the relevant advertisement, It was submitted that the expression ''conversant with'' requires to be read in the context of ''essential'' qualification. The authorities must have intended that the candidates should be associated with or familiar with or engaged in or experienced with "various processed or repair namely, chiffoning, tissuing, lamination, deacidification, cleaning and restoration of documents etc. including equipment and preservation needed for conservation."

Mr. Bandopadhyay then attempted to assail the selection process by submitting that there was hardly any supporting material for one and nothing concrete for the other of the selected candidates. He referred to the observation made by the Learned Single Bench that "the Respondent No. 19 did not produce any credential at all in support of Clause (b). The Respondent No. 20 produced documents in respect of Clause (b) which are irrelevant."

It was then contended that the present Appellants could not produce any satisfactory material or document before the authorities in support of their claim that they satisfied the requisite qualification as per the relevant advertisement.

Mr. Bandopadhyay referred to the decision in the case of AIR 2003 SCW 4519 K. Vinod Kumar v. S. Palanisamy and Ors. while submitting that the Selection Board is free to devise its own procedure provided it satisfies tests of reasonableness.

Mr. Bandopadhyay contended that in absence of any supporting material in order to substantiate the claim that the present Appellants are conversant with certain work, as advertised, they cannot be given any preferential treatment even if they have better educational qualification. Relying upon the decision in the case of AIR 1992 SCC 1945 Bhagirathdan v. State of Rajasthan and Ors. and Himmat Singh v. State of Rajasthan and Ors. it was submitted that a better educational qualification does not obviate the need for the prescribed practical experience.

Out attention was drawn to the decision in the case of Sunil Kumar Goyal Vs. Rajasthan Public Service Commission, , while mentioning about the : scope of interference by the Court in the matter of selection of candidates. In the said case it was observed that mere occasional appearance in Court while acting as Legal Assistants for a Government department does not satisfy the requirements of three years minimum practice at the Bar for being qualified to join judicial service.

Mr. Bandopadhyay further referred to the decision in the case of 1983 (3) SLR 495 P.K. Ramchandra Iyer and Ors. v. Union of India and Ors. as well as other matter, wherein it was held that "Undoubtedly, the Court must look with respect upon the performance of duties by experts in the respective fields. However, the task of ushering a society based on rule of law is entrusted to this Court and it cannot abdicate its functions."

The facts and circumstances of the present case may now be analysed in the context of the above discussed legal position. In fact, the position of law is quite well settled and the various judicial pronouncements referred to by the Learned Counsel for the parties clearly indicate that this Court in exercise of its power under Article 226 of the Constitution can very well interfere in the matter of selection of a candidate to a particular post but such power is to be exercised with reasonableness and caution. In the present case nothing specific was alleged by the writ Petitioner before the Learned Single Bench so as to suggest that the authority concerned acted in a mala fide manner. Allegation of bias or arbitrariness on the part of the authorities was never attempted to be focused in a manner which could raise doubt as to the Impartially on the part of the authorities or rationality of the procedure adopted in the matter of selection.

From the materials on record we find that the post of conservation Assistant was advertised in a manner which was significantly different from some other posts. Instead of looking for ''experience'' it seems the authorities only wanted to have candidates who apart from having the requisite qualification as per the advertisement was conversant with certain specified type of work. We accept the contention that the use of the expression ''conversant with'', was conscious and deliberate act on the part of the authorities and there could be no scope to find fault with the same. This is more so when the contesting Respondent herein duly participated in the selection process may be, by virtue of order of the High Court. The Respondent accordingly was quite aware of the fact that the authorities were not concerned about ''experience'' for the past of Conservation Assistant.

It follows from the discussion as made earlier that law permits short listing of candidates particularly when selection is made on the basis of interview. This aspect has already been dealt with. It is not perhaps necessary to mention once again that there is no specific allegation of mala fide against any particular individual or any authority involved in the selection process.

Mr. Aninda Mitra, learned Senior Counsel, appearing for the Petitioners, seems to be perfectly justified in submitting that in absence of such allegation of mala fide, this Writ Court can have hardly any reason to interfere in the matter of selection.

The Materials on record clearly reveal that the Curator while dealing With the qualification of the two successful candidates applied mind as to their familiarity with certain kinds of work and activities in terms of the advertisement. It is neither possible nor desirable on the part of the Writ Court to explore and analyses as to how far the Curator was justified in making his assessment in that regard. This being a matter of subjective satisfaction, there is not much of scope to challenge it.

Moreover, the grievances of the Petitioner before the Learned Single Bench did not reflect such a mystery that there was any need for unveiling the same. The writ Petitioner being the contesting Respondent herein could not establish any ground to the satisfaction of the judicial conscience of this Court so as to hold that the selection in question was made in a biased or arbitrary manner.

Learned Senior Counsel, Mr. Saktinath Mukherjee, appearing for the Victoria Memorial hall, submitted that the selected candidates have been working in the organisation for quite sometime after their selection in 2003. Mr. Aninda Mitra, learned Senior Counsel, appearing for the Appellants, submitted that during this period the said candidates have gathered further experience and have also undergone training. No doubt, these are the factors which i.e. also required to be taken into consideration.

Mr. Kalyan Bandopadhyay, learned Senior Counsel, appearing for the contesting Respondent, contended that the Appeal Court can only interfere if it is found that the order under challenge is not reasonable. According to him, it is not for this Court to analyse the factual aspects. But in the facts and circumstances of the present case, we are of the opinion that there was no inherent fault in the manner of selection so as to justify any interference by the Writ Court. We are unable to share the views of the Learned Single Judge and accordingly, the order under challenge deserves to be set aside.

Accordingly, the present appeal being M.A.T. No. 789 of 2005 be allowed on contest and the impugned judgment and Order dated February 23, 2005 passed by the Learned Single Bench of the Hon''ble Court in W.P. No. 9052 (iv) of 2003 be set aside. This also disposes of the application being C.A.N. No. 2316 of 2005.

No order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties after due compliance with the legal formalities.

Aloke Chakrabarti, J.

I agree.