Calcutta High Court (Appellete Side)
Sandip Singha And Ors vs The State Of West Bengal And Ors on 10 April, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
WPA 13677 of 2010
Sandip Singha and Ors.
Vs.
The State of West Bengal and Ors.
With
W.P.A. 14366 of 2010
Prodip Kumar Guchait and Ors.
Vs.
The State of West Bengal and Ors.
With
W.P.A. 8072 of 2012
With
With CAN 4 of 2024
Tamal Goswami and Ors.
Vs.
The State of West Bengal and Ors.
For the Petitioner in Mr. Sarwar Jahan, Adv.,
(WPA 13677 of 2010 & : Ms. Anulekha Bera Maiti, Adv
WPA 8072 of 2012)
For the Petitioner in : Mr. Sudeep Sanyal, Sr. Adv.,
(WPA 14366 of 2010) Mr. Snehasis Jana, Adv.,
Mrs. T. Das, Adv.
Mr. Chandrachur Lahiri, Adv.
For the DPSC, Paschim Medinipur: Mr. Aurobinda Chatterjee,Senior Adv.,
Mr. Ranjan Saha, Adv.
For the State: Mr. Mrinal Kanti Ghosh, Adv.,
Mr. Karti Chandra Kapas, Adv
2
Hearing concluded on: 02.04.2025.
Judgment on: 10.04.2025.
PARTHA SARATHI SEN, J. : -
1. Since in the instant three writ petitions the subject matters of
challenge are identical and since common questions of facts and laws are
involved, the instant three writ petitions are taken up together for hearing
and this Court thus proposes to dispose of the instant three writ petitions
by passing a common judgement.
2. In the instant three writ petitions the writ petitioners have prayed
for issuance of appropriate writ/writs against the respondents/authorities
more specifically against respondent Paschim Mednipur District Primary
Council (herein after referred to as the said ‘council’ in short) and its
functionaries for cancellation of the selection procedure for appointment
of primary teachers pursuant to the revised notification as published in
the year 2009 by the said council.
3. In course of hearing Mr. Jahan, learned advocate appearing on
behalf of the writ petitioners in WPA 13677 of 2010 at the very outset
draws attention of this Court to paragraph 6 of the said writ petition. It is
argued by Mr. Jahan that from the later part of the said paragraph 6 it
would reveal that five candidates were placed in the final panel as
published by the said council though the said five candidates could not
qualify in the written examination and were thus not selected for
interview. It is further submitted by Mr. Jahan that in the affidavit-in-
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opposition as filed by the said council as affirmed on 19.11.2015 it has
been practically admitted by the said council that due to some data base
error of one M/S UMC Technologies Pvt. Ltd. (who were entrusted with
the responsibility to publish the result of 2009 examination by the said
council) some mistakes cropped up for which some results were not
correctly reflected in the website in respect of the result of 2009
examination.
4. Mr. Jahan also draws attention of this Court to the supplementary
affidavit as affirmed on 08.02.2017 by the writ petitioner no.4 in
connection with WPA 13677 of 2010. It is submitted by Mr. Jahan that
from the said supplementary affidavit dated 08.02.2017 the following
illegalities and/or irregularities have been noticed by the writ petitioners
namely:-
a. A good number of candidates have been awarded excess
marks by manipulating ENM marks,
b. A good number of candidates have been awarded higher
marks by way of manipulation in the average marks obtained
by them in Madhyamik or equivalent examination.
c. Several candidates have been selected who are of over age i.e.
more than 40 years as on 01.01.2009.
d. Some candidates belonging to Schedule Castes category have
been empanelled adding higher marks in their academic
qualification disobeying the rules of the said examination.
4e. Several candidates have been selected in the Scheduled Tribe
category though they do not belong to the Scheduled Tribe
category.
f. In the category of Exempted Candidates excess marks have
been awarded by manipulating ELM marks.
5. At this juncture Mr. Jahan draws attention of this Court to the
counter affidavit as filed on behalf of the said council in connection with
WPA 13677 of 2010 and as affirmed on 17.06.2019. It is submitted by Mr.
Jahan that though in the said counter affidavit the said council had
denied the allegations as made in the supplementary affidavit dated
08.02.2011 by the writ petitioner no.4 but such denials are evasive one
and no documents have been annexed with the said counter affidavit to
show correctness of the panel as prepared by the said council in respect
of the persons whose names have been mentioned in the said
supplementary affidavit. Mr. Jahan further draws attention of this Court
to page no.27 of the said counter affidavit dated 17.06.2009 being a copy
of a memo dated 14.09.2018 whereby and whereunder the Chairman of
the said council had stated the following:-
“They mainly pointed out about Hundred (100) candidates of the panel
who were given higher marks than the actual one in the academic
score which is quietly true.”
6. It is thus submitted by Mr. Jahan that the illegalities and/or
irregularities as made by the said council while preparing the said panel
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are apparent on the face of record and thus it is a fit case for grant of
appropriate relief/reliefs as prayed for by the writ petitioners.
7. Mr. Jahan further submits that identical relief/reliefs may be
granted to the writ petitioners in WPA 8072 of 2012.
8. While adopting the argument as advanced by Mr. Jahan, Mr.
Sanyal, learned Senior Counsel appearing on behalf of the writ petitioners
in WPA 14366 of 2010 at the very outset draws attention of this Court to
page no.58 of the writ petition being WPA 14366 of 2010 vis-à-vis to page
no.9 of the supplementary affidavit of the writ petitioners as affirmed on
22.11.2011 in connection with WPA 14366 of 2010. It is submitted by Mr.
Sanyal that on comparative study of the aforesaid two pages it would
reveal that complete result of the said recruitment examination was
published in the newspaper on June 15, 2010 whereas one Tara Shankar
Chopra was given appointment by the Chairman of the said council on
June 09, 2010 i.e. prior to the publication of the result. Mr. Sanyal again
draws attention of this Court to page no.35 of the writ petition being a
copy of the advertisement with regard to the recruitment examination of
2009. It is submitted by Mr. Sanyal that from Clause 1 of the said
advertisement it would reveal that several numbers of vacancies have
been declared for the post of Assistant Teacher of the Primary School in
different categories namely; Unreserved, Scheduled Castes, Scheduled
Tribes, Other Backward Class, Exempted Categories, Ex-servicemen and
Physically Challenged. It is submitted by Mr. Sanyal that from page nos.
58 to 69 of the writ petition being the copies of the list of successful
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candidates of the said examination as published by the said council it
would reveal that the said result has been published without disclosing
the categories under which the said successful candidates belonged to. It
is thus submitted on Mr. Sanyal that on account of such glaring illegality
and/or irregularity in the result as published by the said council the
recruitment examination for the year 2009 may be cancelled.
9. Mr. Sanyal further requests this Court to make a comparative study
of page nos. 70 and 75, 71 and 76, 73 and 78 and 74 and 79 of the writ
petition in WPA 14366 of 2010. It submitted by Mr. Sanyal that on
comparative study of the said pages it would reveal that a good number of
candidates who were not selected for interview were however finally
selected.
10. It is argued by Mr. Sanyal that in the affidavit-in-opposition of the
said council as affirmed on 05.10.2010 in WPA 14366 of 2010 the said
council had practically admitted such mistakes. It is further submitted by
Mr. Sanyal that though the said council have taken a specific plea that
they have rectified the mistakes but the said affidavit-in-opposition
contains no documents showing any rectifications as have been indicated
in the writ petition being WPA no.14366 of 2010. It is further argued by
Mr. Sanyal that as against the supplementary affidavit of the writ
petitioner no.4 as affirmed on 22.11.2011 in WPA no.14366 of 2010 no
exception has been filed by the said council.
11. In course of his submission Mr. Sanyal places his reliance upon the
following reported decisions namely:-
7
“i. Karnataka Rare Earth and Anr. vs. Senior Geologist,
Department of Mines and Geology and Anr. reported in (2004) 2
SCC 783;
ii. Bharat Singh and Ors. vs. State of Haryana and Ors.
reported in (1988) 4 SCC 534;
iii. Citi Bank N.A vs. Standard Chartered Bank and Ors with
Canara Bank and Ors. vs. Citi Bank N.A and ors reported in
(2004) 1 SCC 12;
iv. Union of India and Ors. vs. O. Chakradhar reported in (2002)
3 SCC 146;
v. Veerendra Kumar Gautam and Ors. vs. Karuna Nidhan
Upadhyay and Ors. reported in (2016) 14 SCC 18; and
vi. Mukul Kumar Tyagi vs. State of U.P with Rajiv Kumar And
Ors. vs. State of U.P and Ors. and Ravi Prakash and ors. Vs.
State of U.P and Ors. reported in (2020) 4 SCC 86.”
12. It is further submitted by Mr. Sanyal that the writ petitioners in
WPA no.14366 of 2010 ought not to be deprived of the reliefs as prayed
for on account of delay if there be any, since such delay is not attributable
to the writ petitioners and the delay if there be any, occurred on account
of the multiplicity of the business of the court which is founded upon the
maxim Actus Curlae Neminem Gravabit- An act of the Court shall prejudice
no man. In this regard reliance was placed upon the reported decision of
Bharat Damodar Kale and Anr vs. The State of Andhra Pradesh
reported in (2003) 8 SCC 559.
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13. Mr. Sanyal thus submits that it is a fit case for issuance of
appropriate writ/writs for quashing of the entire selection procedure of
2009.
14. Per contra, Mr. Chaterjee, learned senior advocate appearing on
behalf of the said council at the very outset draws attention of this Court
to the writ petition being WPA 13677of 2010. It is submitted by him that
undoubtedly the instant three writ petitions have been filed at the stage of
selection. Drawing attention to paragraph nos.6 to 9 of WPA 13677 of
2010 it is submitted by Mr. Chatterjee that the writ petitioners in WPA
13677 of 2010 had alleged some illegalities and/or irregularities on the
part of the said council in respect of the selection of candidates.
15. At this juncture Mr. Chatterjee draws attention of this Court to
order dated 22.06.2012 as passed by a Co-ordinate Bench in connection
with WPA 13677 of 2010. It is submitted by Mr. Chatterjee that pursuant
to the order dated 22.06.2012 the photo copy of the panel as has been
published by the said council was supplied to the writ petitioners in WPA
13677 of 2010. At this juncture Mr. Chatterjee also draws attention of
this Court to the supplementary affidavit of the writ petitioner no.4 in
WPA 13677 of 2010 as affirmed on 08.02.2017. It is submitted that in
paragraph nos. 7, 8, 9, 10, 11 and 12 the writ petitioners have pointed
out some alleged illegalities and/or irregularities on the part of the said
commission while preparing the panel. It is submitted by Mr. Chatterjee
that from the averments of the said supplementary affidavit dated
08.02.2017 it would thus reveal that the alleged irregularities and/or
9
illegalities according to the writ petitioners in WPA 13677 of 2010 were
limited to certain number of candidates belonging to several categories. It
is thus submitted that in view of such, the writ petitioners in all the
aforementioned three writ petitions cannot pray for cancellation of the
entire recruitment process in absence of any materials to show that the
entire recruitment process has been vitiated by not placing the successful
candidates in the selection panel.
16. It is further submitted by Mr. Chatterjee that from the pleadings of
the aforementioned three writ petitions it nowhere reveals that the writ
petitioners have obtained qualifying marks. It is submitted by Mr.
Chatterjee that final panel for the said selection process has been
prepared in respect of those successful candidates who have not only
obtained qualifying marks obtained but also have obtained cut off marks
for selection. It is further argued by Mr. Chatterjee that since after receipt
of the copy of the entire panel the writ petitoners in WPA 13677 of 2010
have already identified the alleged illegal and or irregular selection of the
candidates by the said council in the year 2010 there cannot be any
justification on the part of this Court to make a roving enquiry in respect
of the correctness of the said panel in connection with the said
recruitment process in absence of any material on record.
17. At this juncture Mr. Chatterjee draws attention of this Court to the
counter affidavit of the respondent no.3 as affirmed on 17.06.2009 in
WPA 13677 of 2010. Attention of this Court is also drawn to paragraph
nos.4 of the said counter affidavit vis-à-vis to the different annexures to
10
the said counter affidavit at page nos.20, 24, 25, 27, 28 and 31 to 33. It is
argued by Mr. Chattterjee that in paragraph 4 of the said counter affidavit
dated 17.06.2019 the respondent no.3 categorically stated that after
initial publication of the panel on 24.04.2010 the said council received
several complaints and on enquiry it was found that there was some
inadvertent mistakes and accordingly a correct list after rectification of
the mistakes was published on 17.05.2010 and 18.05.2010 in the notice
board of the said council and in the website of the said council
respectively.
18. It is submitted further by Mr. Chatterjee that from the said counter
affidavit dated 17.06.2019 it would reveal that after obtaining a copy of
the supplementary affidavit of the writ petitioner no.4 dated 08.02.2012
in WPA 13677 of 2010 a five men committee was constituted and the said
committee thereafter prepared a report/chart indicating some
irregularities in the panel published on 24.04.2010. It is further
submitted by Mr. Chatterjee that the said report of the committee was
forwarded to the office of the Commissioner of School Education and
thereafter the said office of the Commissioner of School Education
directed the Chairperson of the said council to review the chart prepared
by said council as first published on 24.04.2010 and after reviewing a
rectified chart was prepared as has been annexed in page nos. 31 to 33 of
the said counter affidavit dated17.06.2019.
19. It is further submitted by Mr.Chatterjee that the said corrected
report of the Chairman of the said council was subject matter of challenge
11
in WP 19133 (W) of 2010 wherein a Co-ordinate Bench of this Court by its
judgement and order dated 04.03.2011 dismissed the said writ petition
holding that the said Court was satisfied with the explanation given by
the council in connection with the said report as submitted before it. In
course of his argument Mr. Chatterjee also draws attention of this Court
to page no. 12 of WPA 13677 of 2010 vis-à-vis page no.24 of the counter
affidavit of the respondent no.3 dated 17.06.2019. It is submitted by Mr.
Chatterjee that the subject matter of selection of one Mamata Shit, one
Soham Kundu, one Pradipta Das, one Santu Dhar and one Ananya
Singha whose names have been mentioned at paragraph no.6 of WPA
13677 of 2010 were also the subject matter for consideration in WP
14650 (W) of 2010 before another Co-ordinate Bench of this Court and
the said Co-ordinate Bench of this Court by its judgement and order
dated 07.02.2020 found no merit with regard to the allegations as
levellled against the said five candidates and thus the said writ petition
was dismissed.
20. It is further submitted by Mr. Chatterjee that the instant writ
petition is liable to be dismissed on account of non-joinder of necessary
and proper parties in view of the fact that even after receipt of the copies
of the alleged defective panel from the said council, the writ petitioners
have made no attempt to make the persons as party-respondents whose
names have been mentioned in the supplementary affidavit dated
08.02.2017 and who according to the writ petitioners in WPA 13677 of
12
2010 have been illegally and/or irregularly selected in the said
recruitment process.
21. In course of his argument Mr. Chatterjee further draws attention of
this Court to order dated 26.07.2019 as passed by a Co-ordinate Bench of
this Court while dealing with the instant three writ petitions. It is
submitted on behalf of the said council that pursuant to the order dated
26.07.2019 the respondent nos. 3 and 4 had filed an affidavit as affirmed
on 20.08.2019.
22. At this juncture Mr. Chatterjee requests this Court to compare page
nos. 5 to 9 of the said affidavit of the respondent nos. 3 and 4 dated
19.08.2019 with page no.35 of the counter affidavit of the respondent
no.3 as affirmed on 17.06.2019. It is submitted that from page no.35 of
the counter affidavit it would reveal that cut off marks for unreserved
candidates in the said recruitment process was 28.56 while in respect of
scheduled castes category the said cut off marks was fixed at 24.18. It is
further submitted by Mr. Chatterjee upon instruction that cut off marks
in respect of other backward class candidates were fixed at 28.06 and cut
off marks in respect of scheduled tribes was fixed at 22.96. It is submitted
that from page nos.5 to 7 of the affidavit of the respondent nos. 3 and 4
as affirmed on 20.08.2019 it would reveal that none of the writ
petitioners, particulars of whom have been mentioned at page nos. 5 to 9
of the said affidavit dated 20.08.2019 achieved the requisite cut off marks
in respect of their respective categories. Mr. Chatterjee thus submits that
the present writ petitioners have got no locus to challenge the said
13
selection process since none of the writ petitioners could achieve the cut
off marks. In this regard Mr. Chatterjee places his reliance upon the
reported decisions of Trivedi Himanshu Ghanashyambhai vs.
Ahmadabad Municipal Corporation and Ors. reported in (2007) 8 SCC
644. It is further argued by Mr. Chatterjee that in none of the instant writ
petitions a case has been made out by the writ petitioners that because of
grant of excess marks to the empanelled candidates the present writ
petitioners have been left out and/or deprived.
23. Drawing attention of this Court to the affidavit-in-reply of Sumanta
Roy (the writ petitioner no.4 in WPA 13677 of 2010) as affirmed on
01.07.2019 it is submitted by Mr. Chatterjee that in such affidavit-in-
reply evasive and wild allegations have been made against the said
council. It is thus submitted that for the reason stated hereinabove the
entire selection process which is the subject matter of challenge in the
instant three writ petitions ought not to be cancelled. It is also submitted
by Mr. Chatterjee that none of the reported decisions as cited by the writ
petitioners in connection with WPA 14366 of 2010 has got any relevance
in connection with the facts and circumstances as involved in the instant
writ petitions and the reported decisions are thus distinguishable.
24. In course of his reply Mr. Sanyal appearing on behalf of the writ
petitioners in WPA 14366 of 2010 submits before this Court that from the
affidavit of the said council it would reveal that there was no basis of
fixing cut off marks and therefore the question of locus of the present writ
petitioners to file the instant three writ petitions ought not to be
14
questioned. Drawing attention to the order dated 24.04.2019 as passed in
connection with the instant three writ petitions it is further submitted by
Mr. Sanyal that delay if there be any, occurred at the instance of the said
council and therefore the writ petitioners cannot be held to be responsible
and thus the writ petitioners ought not to be deprived of the reliefs as
prayed for merely on the ground of delay.
25. Before entering into the factual aspects of this case this Court at
the very outset proposes to look to the reported decisions as cited on
behalf of the writ petitioners in WPA 14366 of 2010.
26. In the reported decision of Karnataka Rare Earth (supra) the
Hon’ble Supreme Court had occasion to deal with the doctrine of actua
curiae neminem gravabit. In doing so the Hon’ble Court expressed that the
said doctrine was not confined in its application only to such acts of the
court which was erroneous but the said doctrine is applicable to all such
acts as to which it can be held that the court would not have so acted had
it been correctly approved by the facts and laws. It has been further held
that when on account of an act of the party, persuading the court to pass
an order, which at the end is held as not sustainable, has resulted in one
party gaining advantage which it would not have otherwise earned, or the
other party has suffered an impoverishment which it would not have
suffered but for the order of the court and the act of such party, then the
successful party finally held entitled to a relief, assessable in terms for
money at the end of the litigation ,is entitled to be compensated in the
15
same manner in which the parties would have been if the interim order of
the court would not have been passed.
27. In the reported decision of Bharat Singh (supra) the Hon’ble
Supreme Court has distinguished the pleadings and the evidence in a
trial with those of in a writ proceeding. It has been held by the Hon’ble
Supreme Court that before a trial court in course of pleading the facts
and not evidence are required to be pleaded, however in a writ petition or
in the counter affidavit not only the facts but the evidence in proof of such
fact are required to be pleaded and also required to be annexed to it.
28. In the reported decision of Citi Bank N.A (supra) the Hon’ble
Supreme Court has dealt with the provisions of Section 114(g) of the
Indian Evidence Act.
29. In the reported decision of O. Chakradhar (supra) the Hon’ble
Supreme Court expressed the view that in a proceeding where the subject
matter of selection is under challenge, the nature and the extent of
illegalities and/or irregularities committed in conducting a selection shall
have to be scrutinized in each case so as to come to a conclusion but
future course of action to be adopted in the matter.
30. In the reported decision of Veerendra Kumar Gautam (supra) the
Hon’ble Supreme Court adopted the same view as has taken by it in the
reported decision of O. Chakradhar(supra).
31. In the reported decision of Mukul Tyagi (supra) the Hon’ble
Supreme Court held that the cause of action arises in favour of the writ
16
petitioners in a judicial review only when the persons who do not fulfill
the essential qualifications were included in the select list.
32. In the reported decision of Trivedi Himanshu (supra) the Hon’ble
Supreme Court held that the candidates who are unsuccessful in the
examination and whose names did not figure in the merit list, it was not
open to them to challenge the said selection list.
33. Keeping in mind the aforementioned legal aspects, if I look to the
factual aspects of this case it reveals from page no.58 of the writ petition
in WPA 14366 of 2010 that the publication of the selected panel was
made on 15.06.2010. It further appears that WPA 14366 of 2010 was filed
on 07.07.2010 whereas WPA 13677 of 2010 was filed on 25.06.2010.
Admittedly WPA 8072 of 2012 was filed on 18.12.2012 i.e. after two years
but this Court finds no delay in filing WPA 13677 of 2010 and WPA 14366
of 2010. Since identical question of facts and laws are involved in the
instant three writ petitions the delay in filing WPA 8072 of 2012 does not
appear to be very crucial.
34. In course of argument attention of this Court is drawn to the
various orders as passed by different Co-ordinate Benches in order to
arrive at a logical conclusion of the instant three writ petitions and in
compliance of such orders affidavits-in-opposition, affidavits-in-reply,
supplementary affidavits, exception to such affidavits, even counter
affidavits have also been filed by the respective parties to the instant three
writ petitions.
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35. Though Mr. Chatterjee in course of his argument was very vocal
with regard to the delay of the writ petitioners in filing affidavits this
Court finds not much merit in such submission in view of the fact that
delay in reaching at a logical conclusion of the instant three writ petitions
if there be any, cannot be said to be attributable to the writ petitioners
solely.
36. In course of hearing Mr. Jahan, learned advocate appearing on
behalf of the writ petitioners in WPA 13677 of 2010 and WPA 8072 of
2012 and Mr. Sanyal, learned Senior Advocate appearing on behalf of writ
petitioners in WPA 14366 of 2010 have strenuously argued with regard to
the alleged discrepancy in the panel as published on 15.06.2010 as well
as with regard to the alleged illegal and/or irregular selection of
candidates by the said council in respect of the recruitment process in
question. Since the alleged discrepancy and/or illegalities and/ or
irregularities have been canvassed in the foregoing paragraphs of the
instant judgement, this Court finds no reason to recapitulate the same all
over again in order to avoid repetition.
37. Admittedly by an order dated 22.06.2012 as passed in connection
with the instant three writ petitions the said council was directed to
supply photocopies of the panel and the other documents to the writ
petitioners. Pursuant to such order the copies of the said panel along with
supporting documents have been supplied to the writ petitioners. On
10.12.2014 the writ petitioners in WPA 13677 of 2010 affirmed a
supplementary affidavit and filed the same before the Court indicating
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various discrepancies in the said panel. On perusal of the counter
affidavit of the respondent no.3 in WPA 13677 of 2010 as affirmed on
17.06.2019 it reveals that it is the case of the said council that after
publication of the said panel the said council received various complaints
with regard to the correctness of the said council and thereafter an
enquiry was caused where some inadvertent mistakes were pointed out. It
is the further case of the said council that the said council thereafter
approached the Commissioner of School Education for rectifying the
mistakes and after obtaining necessary permission rectification was done
and rectified panel was published in the notice board of the said council
as well as in their website on 17.05.2010 and 18.05.2010 respectively.
38. In course of hearing Mr. Chatterjee, learned Senior Advocate
appearing on behalf of the said council draws attention of this Court to
page nos. 28 to 33 of the counter affidavit dated 17.06.2019 as filed in
connection with WPA 13677 of 2010 as discussed earlier and in course of
his submission Mr. Chatterjee pointed out that while publishing the
selected panel for the first time some mistakes cropped up due to wrong
awarding of ENM marks in respect of certain number of candidates which
had been rectified by the said council after obtaining necessary
permission from the Commissioner of School Education of West Bengal.
39. This Court has meticulously gone through the entire materials as
placed before this Court including the supplementary affidavit as filed in
connection with WPA 13677 of 2010 as affirmed on 10.12.2014, the
counter affidavit of the respondent no.3 as affirmed on 17.06.2019 as well
19
as the affidavit-in-reply of the writ petitioner no.4 in WPA 13677 of 2010
as affirmed on 18.07.2019.
40. Admittedly while filing the instant three writ petitions, the writ
petitioners have indicated certain discrepancies in the said panel and
while filing supplementary affidavit (s) after receipt of the copy of the said
panel the writ petitioners have also indicated some more discrepancies in
respect of certain candidates as have been discussed in the foregoing
paragraphs.
41. On careful scrutiny of the counter affidavit of the respondent no.3
dated 17.06.2019 it reveals to this Court that necessary steps have been
taken by the said council for rectification of the mistakes of the panel as
published on 15.06.2010 after taking due permission from the
Commissioner of School Education. It further appears to this Court that
in support of such contention the said council has annexed certain
documents with their counter affidavit dated 17.06.2019. It appears to
this Court that it is the case of the said council that in most of the cases it
was found that ENM marks were wrongly posted in the panel but the
calculation of awarding marks were correct. It further reveals the it is the
case of the writ petitioners that in case of two or three candidates there
occurred mistake in awarding correct academic scores which is why the
position of one Jafar Ali Khan and one Samit Manna in the said panel
were altered while in case of one Mina Rani Das her name was excluded
from the panel.
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42. On perusal of the affidavit-in-reply dated 01.07.2019 as filed by writ
petitioner no.4 in WPA 13677 of 2010 it appears to this Court that though
the writ petitioners have denied the contention of the said council as
made in its counter-affidavit dated 17.06.2019 but the writ petitioners
have failed to indicate any other illegalities and/or irregularities in the
said panel after rectification.
43. It thus appears to this Court that the alleged illegality and/or
irregularity and/or discrepancy in the said panel is/are limited to certain
candidates only. Sufficient materials have been placed before this Court
by the council that after noticing the said discrepancy a revised panel was
prepared and published by the said council removing such discrepancy.
44. In course of his argument Mr. Sanyal though contended that the
said council has got no power and/or authority and/or review its own
decision this Court finds no force in such submission in view of the fact
that the said council after noticing some discrepancies made a positive
effort to rectify such mistakes. No case has been made out by the writ
petitioners that on account of rectification of such mistakes a serious
prejudice has been caused to the writ petitioners especially when
sufficient materials have been placed before this Court on behalf of the
said council that the writ petitioners before this Court had failed to
achieve either the qualifying or the cut off marks.
45. At this juncture this Court proposes to look to the reported decision
of O. Chakradhar (supra) wherein the Hon’ble Apex Court expressed the
following view:-
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“8. In our view the nature and the extent of illegalities and
irregularities committed in conducting a selection will have to be
scrutinized in each case so as to come to a conclusion about future
course of action to be adopted in the matter. If the mischief played is
no widespread and all pervasive, affecting the result, so as to make it
difficult to pick out the persons who have been unlawfully benefited or
wrongfully deprived of their selection, in such cases it will neither be
possible nor necessary to issue individual show cause notices to each
selectee. The only way out would be to cancel the whole selection.
Motive behind the irregularities committed also has its relevance.”
46. In the reported decision of Veerandra Kumar Gautam (supra) the
Hon’ble Apex Court held thus :-
“In this context, it will be worthwhile to refer to the decisions relied
upon by Mr. Jitendra Mohan Sharma, learned senior counsel who
appeared for the intervenors viz., the decisions reported in O.
Chakradhar (supra) and Krishan Yadav [(1994)4 SCC 165]. The above
decisions fully support the stand of the private respondents that when
the whole process of selection is challenged, individual cases are of no
consequence.”
47. In considered view of this Court if the reported decisions of O.
Chakradhar (supra) and Veerandra Kumar Gautam (supra) are
considered in the perspective of the instant three writ petitions, it appears
to this Court that the alleged mischief are not widespread and all
pervasive and therefore it would be not very difficult to pick out the
persons who have been allegedly benefitted or deprived in the said
selection process on account of alleged illegality and /or irregularity
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committed by the said council. On the contrary it appears to this Court
that the discrepancies as noticed by the said council in awarding ENM
marks were subsequently rectified and to that extent sufficient materials
have been placed before this Court.
48. It further appears to this Court that in respect of selection of
candidates namely; Santu Dhar, Ananya Singha, Mamata Shit, Pradipta
Das and Soham Kundu two Co-ordinate Benches of this Hon’ble Court in
two earlier round of litigation did not interfere with the said selection
process basically on the ground of absence of any element of mala fide on
the part of the said council as well as on account of the corrective
measures as taken by the said council to rectify the mistakes which
occurred inadvertently.
49. This Court thus considers that in absence of any cogent materials
this Court should not take any contrary view as already taken by two
separate Co-ordinate Benches where the selection of the aforementioned
five candidates under the same selection process were challenged.
50. In course of his argument Mr. Chatterjee had placed sufficient
materials to substantiate that none of the writ petitioners in the instant
three writ petitions had obtained either qualifying marks or cut off marks
in respect of their respective categories. Though Mr. Sanyal, learned
Senior Advocate in course of his reply disputed such contention of Mr.
Chatterjee but no materials could be placed before this Court from the
side of the writ petitioners to substantiate that fixing of cut off marks in
respect of different categories of candidates were wrong.
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51. This Court further finds that the writ petitioners are also
unsuccessful in establishing as to how the writ petitioners were deprived
of getting place in the said panel especially when the said council under
cover of its affidavit as affirmed on 20.08.2019 in WPA 13677 of 2010 had
clearly indicated the marks obtained by the writ petitioners in the written
test (both subjective and objective), interview score, extracurricular
activities including total marks in respect of their respective categories
namely; UR, SC, ST,OBC, etc. At this juncture I propose to look to the
relevant portions of the reported decision of Trivedi Himanshu (supra)
wherein the Hon’ble Supreme Court held thus:-
“16. As noted herein earlier, Respondents 2 and 3 who had filed the
writ petition before the High Court, challenging the appointment of the
appellant were themselves unsuccessful in the examination, even
though they claimed that they had passed the written examination
but failed in the interview. Since the names of Respondents 2 and 3,
who were the writ petitioners before the High Court, did not figure in
the merit list, in our view, it was not open to them to challenge the
said selection list and the appointment of the appellant before the
High Court.”
52. The other reported decisions as cited from the side of the writ
petitioners in WPA 14366 of 2010 in considered view of this Court, are
distinguishable from the facts and circumstances of the present case.
53. In view of the discussion made hereinabove this Court thus finds
that the writ petitioners of the instant three writ petitions have miserably
failed to make out a case for obtaining the reliefs as prayed for.
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54. This Court thus considers that the instant three writ petitions are
devoid of any merit and are thus liable to be dismissed.
55. As a result WPA 13677 of 2010, WPA 14366 of 2010 and WPA 8072
of 2012 along with CAN 4 of 2024 are hereby dismissed.
56. There shall be however no order as to costs.
57. Urgent photostat certified copy of this judgement, if applied for, be
given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.)