Calcutta High Court (Appellete Side)Shukdeb Maiti vs The State Of West Bengal & Ors on 20 February, 2023Author:T.S. SivagnanamBench:T. S. Sivagnanam,Hiranmay BhattacharyyaItem No.2.\n\n               IN THE HIGH COURT OF JUDICATURE AT CALCUTTA\n                    CONSTITUTIONAL WRIT JURISDICTION\n                               APPELLATE SIDE\n\n\n                              HEARD ON: 20.02.2023\n\n                            DELIVERED ON: 20.02.2023\n\n\n                                    CORAM:\n\n                 THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM\n                                       AND\n          THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA\n\n\n                                 WPST 47 of 2022\n                                      With\n                             I.A. No.CAN 1 of 2022\n\n                                 Shukdeb Maiti.\n                                      Vs.\n                        The State of West Bengal & ors.\n\n\nAppearance:-\n\nMr. Uday Narayan Betal,\nMr. Partha Sarathi Mondal                     ....       for the petitioner.\n\nMr. S. N. Mookherjee, ld. A. G.,\nMr. Tapan Kr. Mukherjee, ld. A.G.P.,\nMr. Sanjay Basu,\nMr. Piyush Agarwal,\nMs. Shrivalli Kajaria,\nMs. Debdooti Dutta                            ...... for the respondents.\n                                           2\n\n\n\n\n                                    JUDGMENT(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)1.      The    writ   petition    had   been    filed    by    one   Shukdeb    Maiti\n\npraying for issuance of a writ of mandamus to show cause as to\n\nwhy the order dated 15th February, 2022 passed by the learned\n\nTribunal in O.A. No. 606 of 2021 shall not be set aside and / or\n\nquashed and thereby direct the respondent authorities to appoint\n\nthe applicant to the post of Medical Technologist (Lab) Grade -\n\nIII by allowing full marks for possessing the qualification of\n\nM.Sc.    MLT    as    essential   qualification         as    well   as   marks    for\n\nexperience as per the notification / advertisement issued by the\n\nrespondents / department.2.      The    writ   petition    was   heard    by     the   Division     Bench   on\n\nvarious dates, it would suffice to note that during the course\n\nof hearing, the Division Bench was of the prima facie opinion\n\nthat there were glaring errors in the selection process.                       It may\n\nnot be necessary for us to advert into the various orders passed\n\nby the Division Bench from time to time. Suffice to note the\n\norder dated 13th July, 2022.3.      Before we go into the said order, one other order passed by\n\nthe Division Bench, which needs to be referred is the order3dated 6th July, 2022.   On going through the order, we find that\n\ncertain strong observations had been made, though prima facie in\n\nnature about the selection process.   The respondents have filed\n\nI.A. No.CAN 1 of 2022 to recall/modify/clarify the order dated\n\n6th July, 2022 primarily on the ground that incomplete records\n\nwere placed before this Court, which led to certain adverse\n\nobservations being made by the Division Bench in its order dated\n\n6th July, 2022.4.   In the latter part of this order, we shall deal with I.A.\n\nNo.CAN 1 of 2022.   Reverting back to the order dated 13 th July,\n\n2022, from which we find that the petitioner was directed to\n\npoint out the discrepancies in the manner in which the selection\n\nwas conducted with a request to the learned Advocate General to\n\ntake necessary instructions on the errors and / or discrepancies\n\ndisclosed by the petitioner through his learned counsel.5.   The learned counsel for the petitioner has disclosed such\n\nerrors and the learned Advocate General has personally examined\n\nthe same and the outcome of such exercise has been brought on\n\nrecord in the form of a supplementary affidavit filed by the\n\nappropriate authority of the respondents / department.     From the\n\ndiscrepancies, which were pointed out by the petitioner and upon\n\nthorough verification by the learned Advocate General, it is4found that the case of the writ petitioner has to be accepted\n\nand   he   is    to   be   awarded   15     marks      for    possessing    the       M.Sc.\n\nqualification. Similar exercise was done in respect of the other\n\ncandidates as well and it is found that 8 candidates in the\n\n"Unreserved" category and 1 candidate in the "ST" category are\n\nalso qualified for being appointed.                    In such circumstances, it\n\nis to be seen as to what is the nature of order and direction\n\nthat has to be issued in this writ petition.6.    We are conscious of the fact that the present proceeding is\n\nnot in the nature of a public interest litigation as there is a\n\nbar   in   entertaining      a   public     interest         litigation    in    service\n\nmatters.        The writ petition challenges an order passed by the\n\nlearned    Tribunal        before    whom       the    writ    petitioner       was     the\n\napplicant projecting his individual grievance. Earlier, a set of\n\n7 candidates had approached this Court by filing an application\n\nin I.A. No.CAN 2 of 2022 by which they sought for addition of\n\nparties to the writ petition and claimed that they also should\n\nbe declared as successful in the selection process.7.    The Division Bench by order dated 5th August, 2022 dismissed\n\nI.A. No.CAN 2 of 2022 on the ground that in the writ petition,\n\nthe applicants cannot be added as parties nor their cases can be\n\nconsidered       as   they   have    to   file        an   independent     application5before      the   learned     Tribunal.        In     the     given     facts   and\n\ncircumstances, a workable solution needs to be found so that the\n\nselection process is completed by rectifying the defects and\n\ndiscrepancies     so   that   all   the       candidates,     who     are   rightful\n\nentitled to be selected are appointed to the said post.8.    In our view, the order dated 5th August, 2022 dismissing\n\nI.A. No.CAN 2 of 2022 will not strictly be a bar for this Court\n\nto take a holistic view in the matter, more particularly, in the\n\nlight of the order passed by the Division Bench dated 13 th July,\n\n2022 and the exercise that was done by the learned Advocate\n\nGeneral, which has yielded certain results.9.    Therefore, in our view, ends of justice would be met if a\n\ncomprehensive order is passed in this writ petition so as to\n\ncover the discrepancies of all candidates, though it is the writ\n\npetitioner, who was the only candidate, who had only approached\n\nthe learned Tribunal by way of an application.10.   The    discrepancies,    which      have      been    now   ascertained   and\n\nagreed to be rectified by the respondents cannot be strictly\n\nconstrued to be a case of any nepotism or any cherry picking but\n\nappears to be mistakes committed by the selecting authorities\n\neither due to improper verification or conducting an exercise\n\nwithout due application of mind.611.   In any event, the selection authority is bound to take\n\nutmost care to ensure that the rights of the candidates, who are\n\nentitled to be selected are in no manner jeopardised by their\n\ninaction or their failure to take note of the relevant facts or\n\non account of non-application of mind.12.   Be that as it may, now that the discrepancies have been\n\nfound out and it is admitted by the respondents that not only\n\nthe petitioner, but 8 candidates of the "Unreserved" category\n\nand 1 candidate of the "ST" category are all qualified to be\n\nappointed    to   the    said   post.     Therefore,     we     are    inclined   to\n\nissued the following orders / directions.13.   As    observed     earlier,   the       order   dated    5th    August,   2022\n\ndismissing I.A.No.CAN 2 of 2022 will not strictly come in the\n\nway of this Court issuing general directions so as to cover all\n\nthe candidates as this order will not only be comprehensive but\n\nwould meet the ends of justice.14.   In the light of the admitted facts as placed before this\n\nCourt in the form of a supplementary affidavit, there will be a\n\ndirection    to    the     respondents        to   select     and     appoint     the\n\npetitioner and other 8 candidates in the "Unreserved" category\n\nand 1 candidate in the "ST" category, whose names have been\n\ndisclosed in the supplementary affidavit.                     Their appointments7shall take effect from 10th July, 2020 and for the purpose of\n\ncalculating their length of service, the said date shall be\n\nreckoned.        However, for the purposes of monetary benefits, it\n\nshall    be   only      with    effect    from     the    date    on     which    they   are\n\nappointed and joined the respective post.15.     It is submitted by the learned Advocate for the petitioner\n\nthat    since    the     entire    process        has    taken    thus    long     and   the\n\ncandidates on being appointed and after having joined the post\n\nsince notional benefit has been given with effect from 10 th July,\n\n2020, they will be entitled for two increments.                            This position\n\nneeds no clarification as our order clearly states that the\n\nappointments shall take notional effect from 10th July, 2020,\n\ni.e.    the     length     of     service     of        the    respective        candidates\n\nincluding the petitioner shall be reckoned from 10th July, 2020\n\nfor all purposes except for pay and allowances as the petitioner\n\nand the other candidates are not entitled for any salary for the\n\nperiod for which they have not worked.16.     In the light of the above orders, I.A. No.CAN 1 of 2022 is\n\nallowed and the prima facie observations made by the Division\n\nBench in the said order shall stand vacated.17.     The     above    direction        shall     be        complied    with     by    the\n\nrespondents       /     department       as   expeditiously         as     possible      but8preferably within a period of three weeks from the date of the\n\nreceipt of the server copy of this judgment and order.18.   There shall be no order as to costs.19.    Urgent photostat certified copy of this order, if applied\n\nfor, be furnished to the parties expeditiously upon compliance\n\nof all legal formalities.(T.S. SIVAGNANAM, J)\n\n\n\nI agree,\n\n                                     (HIRANMAY BHATTACHARYYA, J.)\n\n\n\nNAREN/PALLAB(AR.C)