Swapan Kumar Maity vs The State of West Bengal & Ors.

One post of a clerk in Madanmohanchak Chowdhury Institution, which became vacant around 2006, is sought to be filled up. On 23rd February, 2006 the authorities granted permission to fill up this post. At that time the West Bengal Schools (Recruitment of non-teaching staff) Rules, 2005 were inforce. The selection involved allotment of marks in the following manner: for the certificate of passing Madhyamik Examination or equivalent: 10 marks, type writing skills: 5 marks and interview: 5 marks.

Now, for this solitary post two candidates, Swapan Kr. Maity the writ petitioner and Avik Kr. Chowdhury the respondent No. 8 are fighting with each other tooth and nail for over 10 years. Exhibition of their typewriting skill has become as keenly contested as an Olympic race where every millimetre and every milli second is kept track of to adjudge the winner. All this for just 5 marks; all this for testing type writing ability which is only a small part of the job of a clerk, as I have learnt. To make it more ridiculous this type of typing skill as stated by Mr. Chaitali Bhattacharya for the state, is assessed on typing using a manual type writer. Writ after writ have been preferred in these ten years. Orders galore have been made by this court but still the contest for this post between these two persons, continues.

I will skip some part of the history of the litigation.

In a writ application filed by the respondent no. 8 (WP 13825 (W) of 2009), this court by an order dated 8th April 2010 directed the respondent authorities to accept the panel send to the District Inspector of Schools, Paschim Medinipore within a period of two weeks from the date of communication of this order. The writ petitioner filed an appeal from this order before a Division Bench of this court (MAT 622 of 2010) which allowed the appeal on 23rd December, 2011 and directed the concerned authority to take a fresh typing test which was to be restricted among the top three candidates. Further directions were given to the respondent authorities for finalisation of the panel after conduct of the typing test. The private respondent preferred a Special Leave Petition before the Supreme Court of India against the judgement and order of the Division Bench dated 23rd December, 2011 which was rejected by the said court on 9th April, 2012.

A fresh typing test was held on 1st April, 2012 under the aegis of the District Inspector of Schools, Paschim Medinipore. The petitioner stood first in the panel. This panel was approved by the District Inspector of Schools, Paschim Medinipore on 9th July, 2012. The Additional District Inspector of Schools (SE) Kharagpur Sub-Division, Paschim Medinipore issued a memo dated 31st October, 2012 appointing the petitioner as a clerk with effect from 12th July, 2012.

It seems that even before the panel was approved by the District Inspector of Schools the respondent No. 8 got wind of the result. He filed another proceedings before this court (WP 8328 (W) of 2012), Avik Kr. Chowdhury v. State of West Bengal & ors. On 24th April, 2013 this court allowed withdrawal of that application with leave to file a fresh one on the self-same cause of action. On 22nd August, 2013 another writ application filed by the respondent no. 8 (WP 17575 (W) of 2013) Avik Kr. Chowdhury v. State of West Bengal and Ors. was also dismissed with similar liberty. A third proceeding was instituted by him (WP 12306 (W) of 2014) Avik Kr. Chowdhury v. State of West Bengal and Ors. This writ challenged the typing test held further to the order of the Division Bench presided over by Mr. Justice K.J. Sengupta. The respondent no. 8 complained before this court that although he had made less mistake than the writ petitioner herein, he was given less marks in typing, 1.875 against 4.5 marks received by the petitioner and it was because of this difference that the writ petitioner got the post. Mr. Justice Datta on 17th December, 2014 directed the Commissioner of School Education West Bengal to re-assess the typing sheets and come to a proper finding. On the basis of his finding the panel would have to be recast if necessary by the Managing Committee of the Schools and sent to the District Inspector of Schools for his approval.

Certain very important things have to be borne in mind. The Division Bench ordered a fresh typing test. Therefore, the keen competition between the writ petitioner and private respondent was to be confined to 5 marks only. Mr. Justice Datta directed the Commissioner ''to take an appropriate decision as to who between the petitioner and the eighth respondent had performed better at the typing test. In the process, the Commissioner may on examination of the typing sheets record the marks to be given to each.''

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''If the Commissioner arrives at a decision that it was not the eight respondent but the petitioner who should have been placed at the top of the panel, he shall give his reason s and issue necessary directions to the managing committee of the school for recasting of the panel and forward the panel to it. ''

Therefore, the Commissioner had more than one option. He could not order a re-test. He could see the typed sheets and take a decision himself or he could take any appropriate decision on consideration of the records. Let us see what he did. He quoted some instructions and guidelines for evaluation of typing skills of the candidates in the West Bengal Public Service Commission. I do not think that he made any mistake in following this standard. The full marks obtainable in the test were set at 100. For accuracy, 75 were earmarked, for speed 20 marks and for display 5 marks. Accuracy was assessed on the basis of major mistakes, minor mistakes and omission.

In the test conducted further to the order of the Division Bench the petitioner and the respondent no. 8 got the following marks out of 20 marks.

Sl No. Name Academic attainment Viva-voce Type writing Total Remarks

01 Avik Kumar Choudhury 4.75 4 1.875 10.625 2nd

02 Swapan Kumar Maity 5.03 2 4.5 11.53 1st

On the basis of re evaluation made by the Commissioner, the result was as follows:

Sl No. Name Academic attainment Viva-voce Type writing Total Remarks

Avik Kumar Choudhury 4.75 4 2.2 10.95 1st

Swapan Kumar Maity 5.03 2 2.65 9.68 2nd

Now, you will find that in typewriting Swapan Kumar Maity, the writ petitioner got higher marks than the private respondent in both the evaluations.

Now, on comparison of both the results you will also find that the writ petitioner has higher marks in academic attainment also. It is only on the basis of a difference of 2 marks in viva-voce that the 8th respondent was declared as the selected candidate by the Commissioner of School Education in his impugned decision dated 23rd November, 2015.

This court is stupefied as to how a simple typing test for selection of a clerk can engage so much time and energy of the administration and the court. That too when only 5 marks for typing were involved. Did not the Commissioner of School Education think, when he was given the discretion to take his decision that whatever may have been the reason, the writ petitioner was employed in the post since 2012'' In the selection test he got much higher marks than the private respondent. Even when the typing result was reassessed by the Commissioner the writ petitioner''s marks were higher. His academic attainment was better. Assessment of typing cannot be made by any scientific method capable of obtaining the same result all the time. What is a major mistake or minor mistake or omission is always subjective, in as much as the categories of mistakes cannot be closed. The respondent No. 8 was only surging a little ahead of the petitioner by virtue of his marks in viva-voce. When this was the situation should not have the School Commissioner in the above circumstances, acting reasonably, exercised his discretion in favour of the writ petitioner'' Instead of exercising his discretion reasonably as he was asked to do by this court he tried to act like a machine and constitute himself as the Selection Committee. The Commissioner was never given the power of a Selection Committee by this court but was required to exercise his power as Commissioner, reasonably and in a just manner. He has failed to do so.

In those circumstances, the impugned decision of the Commissioner of School Education West Bengal dated 23rd November, 2015 is set aside. I direct the respondents to allow the petitioner to continue functioning in the post of the clerk in Madanmohanchak Chowdhury Institution in terms of the appointment letter of the District Inspector of Schools written on 9th July, 2012 and the formal appointment letter dated 31st October, 2012. This appointment is confirmed by this court and the writ application accordingly allowed.

Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.