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2018 Supreme(Cal) 971
IN THE HIGH COURT AT CALCUTTA
SHEKHAR B. SARAF, J.
Prolay Naskar - Appellant
Versus
The State of West Bengal & Ors - Respondent
W.P. No. 3967(W) of 2018
Decided On : 11-10-2018
Advocate Appeared:
For the Petitioner: Mr. Biswarup Biswas Ms. Moumita Mondal
For the Respondent:Mr. Partha Sarathi Sengupta, Senior Advocate Ms. Atasi Ghosh
For the State : Mr. Supriyo Chattopadhyay Ms. Iti Dutta
The weightage given to the viva-voce component in a selection process must be determined by experts and should not fall upon the courts to pronounce upon the correct weightage unless it is proved that exaggerated weightage has been given malafide and with oblique/motive.
Headnote:
The Calcutta High Court, in this case, delves into the legality of a selection process for the post of Assistant Teacher in English at a minority institution school. The petitioner, an unsuccessful candidate, challenges the selection process, alleging that the weightage given to the viva-voce component was excessive and arbitrary, violating the ratio of the Supreme Court judgment in Ashok Kumar Yadav. The court examines the relevant precedents and principles governing the allocation of marks for viva-voce tests and the doctrine of precedents. It also considers the applicability of writ jurisdiction to minority institutions within the framework of Article 30 of the Constitution of India.
Fact of the Case:
The petitioner, an unsuccessful candidate in the selection process for the post of Assistant Teacher in English at a minority institution school, challenged the selection process, alleging that the weightage given to the viva-voce component was excessive and arbitrary, violating the ratio of the Supreme Court judgment in Ashok Kumar Yadav.
Finding of the Court:
The court held that the weightage given to the viva-voce component was not excessive or arbitrary, considering the nature of the post and the need to assess the candidate's personality and maturity. It also held that the larger bench judgment of Ashok Kumar Yadav and subsequent judgments of smaller benches of the Supreme Court were not in conflict, and that the subsequent judgments had to be followed by the High Court. Furthermore, the court held that the petitioner, being an unsuccessful candidate, was estopped from challenging the selection process in the absence of any evidence of malafide or arbitrariness. Lastly, the court held that the minority institution school was not subject to writ jurisdiction in the facts and circumstances of the case.
Issues: 1. Whether the weightage given to the viva-voce component was excessive and arbitrary, violating the ratio of the Supreme Court judgment in Ashok Kumar Yadav? 2. Whether the larger bench judgment of Ashok Kumar Yadav prevails over the subsequent judgments of smaller benches of the Supreme Court? 3. Whether the petitioner, being an unsuccessful candidate, has a right to approach the writ court to challenge the selection procedure? 4. Whether the minority institution school is subject to writ jurisdiction within the framework of Article 30 of the Constitution of India?
Ratio Decidendi: 1. The weightage given to the viva-voce component must be determined by experts and should not fall upon the courts to pronounce upon the correct weightage unless it is proved that exaggerated weightage has been given malafide and with oblique/motive. 2. When there are two reconciling matters passed by the court on the same point of law, then one needs to see if the later smaller bench decisions have taken the larger bench into consideration. If yes, then it is mandatory for the High courts to follow the subsequent smaller bench decision. 3. An unsuccessful candidate who had gone through the selection process knowing fully well the percentage of marks allocated in the selection process is estopped and precluded from questioning the above selection process, the only exception being when the petitioner is able to demonstrate lucidly that the action taken by the Selection Committee was not done in good faith and was a result of bias or ulterior motive. 4. The autonomy granted to a minority institution by the Constitution does not automatically give a right to the institution to act in an unfair manner. The High Court under Article 226 of the Constitution has the duty to examine whether the appointments made by a minority institution are done in a fair and reasonable manner and to check whether there has been any violation of the right of a individual by not adopting fair procedure.
Final Decision: The writ petition was dismissed.
JUDGMENT :
SHEKHAR B. SARAF, J.
1. The present writ petition is filed by the petitioner assailing the impugned panel dated October 16, 2017, prepared by the Selection Committee and approved by the Managing Committee of Raghabpur St. Paul’s High School (hereinafter referred to as “concerned school”), Post Office – Nepal Runj, District – 24 Parganas (South), for the post of Assistant Teacher in English subject (Pass) with B. Ed. (hereinafter called the said post).
2. The chronological facts leading to this writ petition are as follows:
(a) A post of teacher for English subject (pass category) with B. Ed. had fallen vacant in Raghabpur St. Paul’s High School. For the purpose of filling up the said post the Managing Committee of the said school invited applications by advertisement published in the “Asian Age” and “Ajjkal” newspaper on August 20, 2017. The aspiring candidates having requisite qualifications applied for the said post. 16 persons were present in the interview including the petitioner which was scheduled to be held on October 16, 2017. The Selection Committee prepared the panel on the basis of marks for educational qualification, class demonstration and interview/viva-voce. The Selection Committee fixed 35 marks for educational qualification, 15 marks for class demonstration and 10 marks for viva-voce out of 60 marks.
(b) The members of the Selection Committee after conducting the class demonstration and viva voce individually awarded marks for each of the above components and upon aggregation, the final panel was chosen by them and the same was handed over to the Managing Committee of the said school. The Managing Committee duly approved the said panel.
(c) The panel figured in the following manner:
| Position | Names | Marks obtained |
| 1st position | Mr. Raj Kumar Mistry | Out of 60 obtained 45.4 marks |
| 2nd position | Miss Preeti Arpona Gomes | Out of 60 obtained 44.2 marks |
| 3rd position | Mr. Ananda Paul | Out of 60 obtained 42.5 marks |
(d) The Managing Committee of the said school issued appointment letter in favour of the 1st empanelled candidate namely Mr. Raj Kumar Mistry, the private respondent No. 6 herein. The petitioner has challenged the said selection process and the impugned panel dated October 16, 2017 in the present writ petition.
3. Mr. Biswarup Biswas, Advocate appearing on behalf of the writ petitioner submitted that the petitioner appeared for the interview for the post of Assistant Teacher of English in the concerned school on 16th October 2017 and in spite of receiving the highest marks in the academic qualifications was not selected. His main argument was that the concerned school had allotted more marks for the viva voce in complete disregard to the ratio of the Supreme Court judgment in Ashok Kumar Yadav –v- State of Haryana & Ors. reported in 1985 (4) SCC 417[Coram: Y.V. Chandrachud, C.J. and P.N. Bhagwati, Amarendra Nath Sen and V. Balakrishna Eradi, JJ.] His arguments centred around the following issues:
(a) The viva-voce component being more than 12.2% the entire selection process was vitiated and was malafide and arbitrary as per the ratio of Ashok Kumar Yadav (supra);
(b) The larger bench judgment of Ashok Kumar Yadav (supra) prevails over the subsequent judgments of smaller benches of the Supreme Court;
(c) Unsuccessful candidates have a right to approach the court to challenge the selection procedure;
(d) Minority institutions are subject to writ jurisdiction within the framework of Article 30 of the Constitution of India.
4. With respect to the first argument, petitioner argued that the Managing Committee of the said school issued appointment letter in favour of the 1st empanelled candidate, Mr. Raj Kumar Mistry, the private respondent no. 6 despite the fact that he had obtained lesser marks in academic qualifications than the petiti
