IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon’ble Justice Hiranmay Bhattacharyya
WPA 23102 of 2018
With
I.A. No. CAN 1 of 2019 (Old No. CAN 11321 of 2019)
Md. Rabiul Sk. & Ors.
versus
State of West Bengal & ors.
With
WPA 5463 of 2019
Iswar Chandra Mahata & Ors.
versus
State of West Bengal & ors.
With
WPA 5470 of 2019
Abdus Salam Ansari & Ors.
versus
State of West Bengal & ors.
with
WPA 5479 of 2019
Murari Mohan Mandal & Ors.
versus
State of West Bengal & ors.
with
WPA 21720 of 2019
Niladri Jana & Ors.
versus
State of West Bengal & ors.
For the Petitioners : Mr. Bikash Ranjan Bhattacharyya,
….. learned Senior Advocate
Mr. Dibyendu Chatterjee,
Mrs. Jhuma Chakraborty,
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Mr. Pritam Majumdar,
Mr. S. Ghosh
…….advocates
For the Council : Mr. Bhaskar Prasad Vaisya,
Mr. Nilay Baran Mandal,
Mr. Sagnik Chatterjee ,
Mr. Pinaki Bhattacharya
……..advocates
For the Board : Mr. Subir Sanyal,
Mr. Ratul Biswas ……..advocates
For the State : Mr. Ranjan Saha ……..advocate
Reserved on : 18.01.2023
Judgment on : 23.03.2023
Hiranmay Bhattacharyya, J.:-
1. This batch of writ petitions were heard analogously as identical
questions of law and fact are involved and have been taken up
together for disposal.
2. WP No. 23102 (W) of 2018 was heard as the lead case and for the
sake of convenience the pleadings of the respective parties of the
said writ petition is narrated in a summarised form hereinafter.
3. The petitioners have challenged the selection process conducted by
the West Bengal Board of Primary Education (for short “the Board”).
Pursuant to the Notification issued by the Board on 26.09.2016,
applications were invited for filling up the posts of Primary Teachers
in schools under different District Primary Schools Councils (for
short “DPSC”) in the State of West Bengal. The petitioners have
prayed for issuance of a writ of mandamus to command the
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authorities to set aside the entire selection process and to prepare
the panel of successful candidates in accordance with the
Reservation Policy.
4. The petitioners have alleged that the Board has not followed the
Reservation Policy while conducting the selection process. It has
been further alleged that Rule 8(5) of the West Bengal Primary
School Teachers Recruitment Rules 2016 (for short “the 2016
Rules”) has been violated. It has been also alleged that the cut off
marks for getting empanelled under the Reserved category was
higher than the cut off marks for being empanelled in the
unreserved category which could not have been possible unless
there was irregularity or illegality in the selection process.
5. Board contested the writ petition by filing affidavit-in-opposition
denying the material allegations contained in the writ petition. It
has been specifically stated that the writ petition has been affirmed,
filed and moved long after exhaustion of panels and appointments
of the empanelled candidates being made. It was stated that the
writ petition is liable to be dismissed for not impleading the
appointed candidates who are necessary parties. It was specifically
stated therein that Rule 8(5) of the 2016 Rules was strictly followed
including preparation of alternative set of panel as required under
Rule 8(5)(iv) of the said Rules. It was also stated therein that
additional panel as required under Rule 8(6) of the 2016 Rules was
also prepared.
6. Mr. Bhattacharya, learned Senior Counsel assisted by Mr.
Chatterjee appearing for the petitioners contended that the
Reservation Policy has not been followed by the Board. He further
contended that those candidates who have obtained higher marks
than the candidates under the general category ought to have been
empanelled in the general category which has not been done by the
concerned authorities. According to the learned Senior Counsel for
the petitioners if such practice had been followed then the cut off
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marks for getting empanelled under the reserved category ought to
have been much lower. He further contended that Rule 8(5) of the
2016 Rules has been violated by the concerned authorities and in
course of his argument he drew the attention of the Court to the
documents annexed to the writ petition.
7. Mr. Sanyal, learned counsel representing the Board seriously
disputed the contentions raised by the learned Senior Counsel for
the petitioners. He contended that the writ petitions should fail for
non-joinder of the appointed candidates who, according to Mr.
Sanyal, are necessary parties to this writ petition. He further
contended that the Reservation Policy was duly followed and Rule
8(5) of the 2016 Rules was also strictly followed. Mr. Sanyal
concluded by submitting that a co-ordinate Bench while dealing
with a bunch of writ petitions being WP No. 6894 (w) of 2017 in the
case of Monika Das and ors. vs. The State of West Bengal & ors. and
other writ petitions delivered a judgment on 10.12.2019 deciding
identical issues and the said decision having attained finality, a
fresh challenge to the self same selection process on identical
grounds should not be entertained.
8. Heard the learned advocates for the parties and perused the
materials placed.
9. It is not in dispute that the selection process initiated vide
Notification of the Board dated 26.09.2016 got culminated by giving
appointment to a large number of candidates in the posts of
primary school teachers under different DPSCs throughout the
State. The writ petitioners have sought for setting aside the entire
selection process and for preparation of a panel in accordance with
the Reservation Policy. In a writ petition wherein the process of
selection has been challenged and since a large number of
candidates have been appointed pursuant to the said selection
process, this Court is of the considered view that a right stood
vested upon the candidates who have already been appointed and
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such appointed candidates are necessary parties to this writ
petition as there is every possibility that their rights may be
adversely affected by any order that may be passed in this
proceeding.
10. After going through the decision in the case of Monika Das (supra),
this Court finds that the selfsame selection process was also under
challenge in the writ petitions which were decided by the co-
ordinate bench and more or less identical issues were raised
therein.
11. The Co-ordinate Bench in the case of Monika Das (supra) after
noticing several decisions of the Hon’ble Supreme Court as well as
Rule 12 read with Rule 53 of the Rules governing applications
under Article 226 of the Constitution held that the writ petitions
must fail for non-joinder of the appointed candidates either in their
individual capacities or in a representative capacity. The Co-
ordinate bench held thus-
“15. Firstly, it is not in dispute that pursuant to the selection process
that was initiated by issuance of Notification dated 26th September,
2016, a panel of successful candidates was prepared and
appointments have been given to a huge number of candidates in
posts of primary school teachers under different DPSCs. If the
petitioners' prayer is allowed, the appointments of such candidates
will have to be set aside. In other words, such candidates would be
badly affected if an order is passed as prayed for by the petitioners.
This makes such candidates necessary parties to the instant writ
applications. Any person who may be adversely affected by an order
which may be passed in a legal proceeding is a necessary party to
such proceeding. Without hearing him no effective order can be
passed. An order passed without hearing a necessary party is a
nullity and has no binding effect.
16. In this connection one may refer to the decision of the Apex Court
in Khetra Basi Biswal -Vs.- Ajaya Kumar Baral & Ors., 2004 (100)
FLR 6 = (2004) 1 SCC 317. Although the order that was passed in
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that case by the Hon'ble Supreme Court was in exercise of power
under Article 142 of the Constitution, there is clear pronouncement in
the judgment and order that procedural law as well as substantive
law both mandate that in the absence of a necessary party, the order
passed is a nullity and does not have a binding effect.
17. In State of Orissa & Anr. -Vs.- Binode Kishore Mohapatra, AIR
1969 SC 1249, the Union Government had prepared a seniority list
with which the writ petitioner was aggrieved and accordingly the writ
petitioner challenged such list. The matter ultimately reached the
Hon'ble Supreme Court. It was urged by Learned Attorney General
that all the officers who were likely to be affected by the decision of
the writ petition had not been impleaded as parties to the petition.
The Hon'ble Supreme Court accepted the contention that in the
absence of such officers, who were necessary parties, the writ
petition could not succeed. The Hon'ble Supreme Court referred to its
decision in Padam Singh Jhina -Vs.- Union of India, Civil Appeal
No.405 of 1967 wherein speaking for the Court, Shah, J. had
observed:
"But we are unable to investigate the question whether there
has been infringement of the rules governing fixation of
seniority, for a majority of those who were placed above the
appellant in the seniority list are not impleaded in the petition
before the Judicial Commissioner and are not before this
Court. It is impossible to pass an order, assuming that the
appellant is able to convince us that a breach of the rules
was committed, altering the list of seniority, unless those
who are likely to be affected thereby are before the Court and
have an opportunity of replying to the case set up by the
appellant."
The Hon'ble Supreme Court observed that this is a salutary rule and
should be followed.
18. The petitioners contended that a very large number of candidates
were given appointments and it was practically impossible to
implead all of them as respondents in the writ petition. This is not an
acceptable explanation. The petitioners could have and should have
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impleaded a few of the candidates who were appointed, in
representative capacity. Rule 12 of the Rules governing applications
under Article 226 of the Constitution framed by this Court
contemplates institution of a writ petition in a representative
capacity. A petitioner may institute a writ petition seeking to
represent other persons also who according to him would be similarly
interested in the subject matter and result of the writ petition.
Similarly, a petitioner may implead a person as a respondent in a
representative capacity to represent the interest of others who may
be similarly situate as the impleaded respondent and may be
adversely affected by the order that may be passed in the
proceeding. Further, Rule 53 of the said Rules provide that the
provisions of the Code of Civil Procedure, 1908 will apply to
applications under Article 226 of the Constitution in so far as the
same can be made applicable. Order 1 Rule VIII of the Code of Civil
Procedure provides for institution of suits in representative capacity.
By reason of Rule 53 of the said Rules, the provisions of Order 1 Rule
VIII are attracted to a writ application. For instituting a writ
application in a representative capacity, the petitioner needs to obtain
leave of the Court. No such prayer was made by the petitioners in the
present case nor such leave was obtained otherwise. A few of the
appointed candidates have been impleaded as respondents, not in a
representative capacity, but in their individual capacities. Hence, the
writ petitions must fail for non-joinder of necessary parties.”
12. Upon perusal of the writ petition this Court finds that the appointed
candidates were neither impleaded in their individual capacities nor
in representative capacities. Leave to institute the writ petition in
representative capacity was also not sought for. Therefore, the
aforesaid finding of the Co-ordinate Bench is squarely applicable to
the case on hand. This Court accordingly holds that the writ
petitions must fail for non-joinder of necessary parties.
13. The writ petitioners have made bald allegations that the Reservation
Policy was not followed. However, the learned counsel for the writ
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petitioners has failed to demonstrate as to how the Reservation
Policy was violated. Therefore, this Court is not inclined to accept
such contention of the writ petitioners.
14. The principal ground for challenging the selection process is that
Rule 8(5) of the 2016 Rules has not been followed. Rule 8(5) of the
2016 Rules reads as follows-
"(5) The Selection Committee shall prepare separate
Council-wise panels as per procedure below:-
(a) Firstly, the Selection Committee shall segregate all
eligible candidates applying for earmarked vacancies as
mentioned in Note 7 to rule 6, from other successful
candidates;
(b) Secondly, the Selection Committee shall prepare the
following panels for the successful candidates who have
applied for non-earmarked vacancies
(i) a panel of all selected candidates in a district, namely,
unreserved Category comprising of the names of the
candidates belonging to General Category and reserved
candidates of Scheduled Caste Category, Scheduled
Tribe Category, OBC Category-A, OBC Category-B and
PH Category serially according to descending order of
merit as per existing vacancies medium wise;
(ii) a panel of selected reserved category candidates in a
Council, namely, Scheduled Castes, Scheduled Tribes,
OBC Category-A, OBC Category-B and Physically
Handicapped (PH) candidates in the respective category
as per statutory reservation rules, from amongst the
remaining candidates of such categories, serially
according to descending order of merit as per existing
vacancies medium wise;
(iii) a panel of selected candidates belonging to Exempted
Category, Ex-servicemen and Physically Handicapped
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(PH) in a Council, separate panels category wise, for
vacancies reserved for the respective categories;
(iv) an alternative set of panel of selected candidates for
each category in a Council serially according to
descending order of merit as per existing vacancy
medium wise;
Note 1.- Such an alternative set of panel of selected
candidates for each category in a Council shall be
prepared for the purpose of providing option to the
reserved category candidates during counselling to opt
for posting as per position in unreserved category or as
per position in the reserved category.
Note 2.- Separate sets of panels for all selected
candidates applying for earmarked posts as mentioned
in Note 7 to rule 6 shall be prepared in accordance with
the procedures mentioned in clauses (i) to (iv) of sub-rule
(b)."
15. In the affidavit of the Board it has been stated in details how Rule
8(5) was followed by the concerned authority. It was specifically
stated therein that the eligible candidates were divided into two
sections namely trained and untrained and also that the candidates
were segregated into earmarked and non earmarked vacancies. The
affidavit further states that two sets of panels one on merit basis
and the other on the basis of merit amongst the caste/category wise
candidates in terms of Rule 8(5) of the 2016 Rules were also
prepared. The said affidavit also speaks about preparation of an
alternative set of panel as required under Rule 8(5)(iv) of the 2016
Rules and an additional panel in terms of Rule 8(6) of the 2016
Rules. The said affidavit further disclosed as to how counseling was
conducted.
16. The said affidavit further stated that a reserved category candidate
whose name figured in the General category as well as reserved
category might exercise his/her option for the panel where his/her
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name might be in a higher position for exercising his/her right to
obtain the benefit of being posted in a nearby school of his choice
as prescribed under Note 1 to Rule 8(5)(iv) of the 2016 Rules.
17. The said affidavit also explained the reasons as to why the cut off
marks for getting empanelled in the reserved category was much
higher than the cut off marks for getting empanelled in the general
category by stating specifically that the candidates who had
obtained better marks than the candidates empanelled in the
general category preferred their positions in the merit wise panel of
the respective reserved categories which resulted in higher cut off
marks in reserved category than General Category.
18. Such positive factual assertion in the affidavit of the Board has not
been controverted by production of documents by the petitioners.
The learned counsel representing the petitioners also could not
demonstrate before this Court that the procedure followed by the
Board as stated in their affidavit is contrary to the 2016 Rules.
19. The writ petitioners have failed to demonstrate as to how their legal
right has been infringed while conducting the selection process by
the concerned authorities. It has been alleged that there were
irregularities in preparation of the panel which is the subject matter
of these writ petitions. When the writ petitioners have alleged
irregularities in the preparation of the panel in question, it is for
them to prove such allegations by production of sufficient materials
before this court to support their case as the relevant materials are
available in public domain.
20. The writ petitioners have annexed some documents in the writ
petition which, according to them, are the list of empanelled
candidates. The petitioners have not disclosed the source
wherefrom they have collected the said documents which have been
annexed to this writ petition. That apart the said documents, in the
considered view of this Court are not at all sufficient to arrive at a
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conclusion that there are irregularities and/or illegality in the
preparation of the panel.
21. The writ petitioners instead of producing sufficient materials which
are available in the public domain to prove their allegations have
sought for a direction upon Board to produce the records pertaining
to the said selection process. The writ court is not expected to make
a roving enquiry by directing the Board to produce the voluminous
records pertaining to the selection process when the petitioners
have failed to make out any case before this court for production of
the records pertaining to the selection process.
22. The co-ordinate bench in the case of Monika Das (supra) also
refused to direct the Board to produce the records. The co-ordinate
bench on the prayer for production of the records pertaining to the
selection process held thus-
“19. Secondly, the primary ground for challenging the
selection process is that Rule 8 (5) of the 2016 Recruitment
Rules has been violated in preparing the panel of successful
candidates. Apart from such bald allegation, no material
particulars have been furnished in support of such
allegations nor any documentary evidence has been
disclosed in support of such contention. Copies of the
documents enclosed to the writ petition do not inspire
credence and in any event do not advance the case run by
the petitioners. In the affidavit-in- opposition filed on behalf of
the West Bengal Board of Primary Education it has been
explained as to how Rule 8(5) of the 2016 Rules has been
scrupulously adhered to and Learned Senior Counsel
appearing for the Board has also explained the same to me in
course of his submission. The petitioners wanted the Court to
direct the Board to produce the entire records pertaining to
the selection process. I was not and am not inclined to do so.
The records are voluminous. It would be practically an
impossible task for the Writ Court to delve into such records
and ascertain as to whether or not the panel under challenge
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has been prepared violating the recruitment rules. This would
entail adjudication of highly disputed questions of fact which
the Writ Court is ill-equipped to do.
20. It is not in doubt that the High Court while exercising
power of judicial review under Article 226 of the Constitution
can issue a writ of certiorari calling for the records of a
particular case and upon consideration of such records quash
the order challenged in the writ application. However, such a
writ would be issued ordinarily only when serious factual
disputes are not involved and on a bare perusal of the
records, the Court can come to a decision one way or the
other.
However, if consideration of the records would involve the
Writ Court in adjudicating disputed questions of fact, the Writ
Court would ordinarily not issue such a writ of certiorari. A
writ remedy is a discretionary remedy and this is a
discretionary rule that the Writ Court generally follows. The
present case, in my opinion, is not one where merely by
looking at the records the Court would be able to come to a
conclusion, this way or that way. Separate panels have been
prepared for each of the districts. If the prayer of the
petitioners for issuance of a writ of certiorari is allowed, the
Writ Court would have to convert itself into a fact finding trial
Court which cannot be countenanced.”
23. This Court finds no reason to take a different view on such issue
with that of the co-ordinate bench. For such reason, this Court in
course of hearing was not inclined to allow such prayer of the
petitioner for production of records and is of the view that there
was/is no necessity for a direction to produce the records in the
facts of this case.
24. The petitioners have failed to demonstrate before this Court that
they have a legal right to be appointed. Therefore, no legal right of
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the petitioners can be said to have been infringed by the action of
the respondent authorities.
25. For all the reasons as aforesaid all these writ petitions are liable to
be dismissed and the same accordingly stand dismissed. Connected
application also stands disposed of accordingly.
26. There shall be, however, no order as to costs.
27. Urgent photostat certified copies, if applied for, be supplied to the
parties upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
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