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2013 Supreme(Cal) 708
IN THE HIGH COURT AT CALCUTTA
Dipankar Datta, J.
Jayasri Ghosh
vs.
The State of West Bengal & ors.
W.P. No. 16005 (W) of 2012
Decided on: October 9, 2013
For the petitioner: Mr. Anjan Bhattacharya, Ms. Paromita Jati, Mr. Soubir Banerjee
For the respondent no.1: Mr. Debansu Basak, Ms. Paromita Pal
For the respondents no. 2 to 5: Mr. Siddhartha Banerjee
A glaring illegality in the selection procedure affecting one’s right protected by Articles 14 and 16 can be questioned by an unsuccessful candidate, even if he/she took a chance of selection, if he/she can prove that such glaring illegality could not have been known to him/her before the selection process was complete.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 14 - EQUALITY - APPOINTMENT ON GROUP C POST - PROCESS SERVER - ILLEGALITY IN SELECTION PROCEDURE - ESTOPPEL BY CONDUCT/ACQUIESCENCE/WAIVER - NOT APPLICABLE - APPOINTMENT TO BE OFFERED.
Fact of the Case:
The petitioner, who applied for the post of process server, was not offered appointment despite being shortlisted, as the selection panel included candidates who had applied for Group D posts. The petitioner challenged the selection process, alleging that it was illegal and violated her right to equality under Article 14 of the Constitution.
Finding of the Court:
The court held that the inclusion of candidates who had not applied for the post of process server in the selection panel was a glaring illegality and that the principle of estoppel by conduct/acquiescence/waiver could not be applied to deny relief to the petitioner.
Issues: 1. Whether the respondents were justified in allowing candidates who did not apply for the post of process server to compete with those who did apply therefor and to prepare a panel including the former, and in the process to sideline the petitioner from the track of public employment in the judgeship of Murshidabad? 2. Whether the court of equity by application of the principle of estoppel by conduct, acquiescence and or/waiver, ought to deny relief to the petitioner based on the authorities cited by Mr. Banerjee?
Ratio Decidendi: 1. The court held that the post of process server is a Group C post, as per the West Bengal Services Revision of Pay and Allowances Rules, 2009 (ROPA Rules). 2. The court held that the Committee of Registrars acted illegally and in excess of their jurisdiction by allowing candidates who had not applied for the post of process server to be considered for appointment on such post. 3. The court held that the petitioner was not aware of the decision of the Committee of Registrars and could not have known that the District Recruitment Authority was considering candidates who had not applied for the post of process server. 4. The court held that the decisions cited by the respondents were distinguishable on facts and could not be applied to defeat the claim of the petitioner.
Final Decision: The writ petition was allowed, and the petitioner was directed to be offered appointment on the post of process server, subject to verification of her antecedents and other legal formalities.
1. The Registrar General, High Court, Calcutta and Chairman of the Committee of Registrars, issued employment notification dated July 6, 2011 inviting applications from eligible candidates for filling up various vacant posts in the several district judgeships of the state. In respect of the judgeship of Murshidabad, the posts of, inter alia, process server and peon/nightguard/farash (Group D) were sought to be filled up. The number of unreserved vacancies on the posts of process server and peon/nightguard/farash were 4 and 27 respectively. The employment notification stipulated the educational qualification in respect of Group D category. The candidates were required to have a class VIII pass certificate from any recognised school or recognised madrasah or any other recognised equivalent institution. Regarding the mode of selection, it was further stipulated that the candidates would be required to take a written examination and on the result thereof, those who are short-listed would be called for personality test. The final panel would be prepared on the basis of the total marks obtained in the written examination and the personality test.
2. The petitioner offered her candidature for the post of process server. She took the written examination and was selected for the personality test. On the basis of her performance in the written examination as well as the personality test, her name figured in the final panel at serial no.6. However, to her utter surprise, she found that the candidates whose names figured at serial nos. 1, 3, 4 and 5 had applied for the post of Group D staff. Since the number of unreserved vacancies was 4 only, she was ultimately not offered appointment.
3. Feeling aggrieved thereby, the petitioner has invoked the jurisdiction of this Court under Article 226 by presenting this writ petition dated July 23, 2012.
4. Mr. Bhattacharyya, learned advocate representing the petitioner, contended that the respondents acted illegally and in excess of their jurisdiction by including in the panel candidates who had never applied for appointment on the post of process server. Attention of the Court was drawn to the final panel to show that only the candidate at serial no. 2 had applied for the post of process server. According to him, preparation of a single panel for different categories of posts has resulted in unequals being treated as equals, thereby offending the guarantee of equality enshrined in Article 14 of the Constitution. He, thus, prayed for an order on the respondents to offer appointment to the petitioner.
5. Mr. Banerjee, learned advocate representing the respondents 2 to 5, first referred to the affidavit-in-opposition of the respondent no. 2 wherein the decision adopted in the meeting of the Committee of Registrars constituted in terms of the resolution of the Administrative Committee of this Court dated January 6, 2011, duly ratified by the Full Court, had been annexed. He submitted that the judgeship of Murshidabad had raised certain queries. One of the questions was whether those candidates who had opted for Group D posts without specifying the nomenclature of the posts given in the notification may be considered for both posts of process server and peon/nightguard/farash or not. It was clarified that the candidates opting for Group D posts without specifying the nomenclature of the posts given in the notification may be considered for process server as well as peon/nightguard/farash or otherwise by the respective District Recruitment Committee. While clarifying as to whether the pay scale of the process servers and the other Group D category posts is different, it was observed that the pay scale of the process servers and the other Group D category posts may be determined by the respective District Recruitment Committee. It was, accordingly, contended that there was no mala fide intention to prepare one final panel containing the names of the successful candidates who had applied either for
