The appellants in MAT 85 of 2023 and MAT 124 of 2023 ventilate a common grievance. The appellants applied before the Hon’ble Single Bench by filing CAN 8 of 2023 praying for being added as party respondents to the writ petition, being WPA 13700 of 2021.
By the Order impugned dated 11th of January, 2023 their application, being CAN 8 of 2023, was rejected by the Hon’ble Single Bench. The Order impugned dated 11th of January, 2023 reads as follows:-
“Court No. 17
11.01.2023
(ADSL 1)
(S. Banerjee)
CAN 8 of 2023
Setab Uddin& Ors.
Vs.
The State of West Bengal & Ors.
in
WPA 13700 of 2021
Twelve persons have filed this addition of party application, being CAN 8 of 2023 in WPA 13700 of 2021. On mentioning this matter has been brought in the list by publishing one supplementary list. A copy of the supplementary list published is kept on record.
In respect of this addition of party application I find the only one paragraph for adding them as party is paragraph 9 which is as follows:
“The applicants states that since the instant proceeding has been initiated in relation to the recruitment process being the first SLST wherein the applicants have participated and has been recruited, and their names have been published in the official website, they are necessary parties to the proceeding and should be given appropriate opportunity to represent themselves.”
In the application containing 15 paragraphs there is no other paragraph which says about addition of party as necessary parties.
The principle as to who is the necessary parties in a matter is well settled. A party is a necessary party in whose absence no effective decree (or final order) can be passed in a proceeding.
Here neither it has been shown nor do I find any reason why the final order cannot be passed by this court in the writ application without the presence of the applicants. Again, why the writ petitioner being the dominus litis will be compelled to litigate against a person against whom he does not want any relief.
Hence, though the learned advocate for the applicants wanted orders on both prayers (a) and (b), I do not find any merit in this application for addition of party and before adding them as parties there is no question of passing any order, as has been prayed in prayer (b).
In my view, this application has been made to disturb the proceeding wholly which is going on in this court where the corruption committed by a large number of high officials against whom prima facie cases are there for which they are in custody now.
Therefore, I dismiss this application with a cost of Rs. 1/-(Rupees one only) which is to be paid to the learned advocate for the petitioners.”
The appellants submit that the said Order dated 11thJanuary, 2023 is most unjust. The appellants accordingly seek Leave to Appeal with the prayer to supply them all pleadings connected to WPA 13700 of 2021. The appellants submit that as a consequence of the Order dated 11thJanuary, 2023 and, on the basis of earlier Orders dated 14thDecember, 2022, 22nd December, 2022 and 23rdDecember, 2022, also passed in WPA 13700 of 2021, the respondents/ the West Bengal Central School Service Commission (for short, the Commission) has published a Notice dated 29thDecember, 2022.
The said Notice dated the 29thof December, 2022 gives the details of 952 candidates who appeared for the First State Level Selection Test, 2016 (for short, the 1stSLST, 2016) for the posts of Assistant Teachers for Classes IX and X. The names of the appellants appear with others in the said Notice which, at its Preamble, states as follows:-
“In compliance with the direction of Hon”ble Justice Abhijit Gangopadhyay, High Court, Calcutta, dated 14.12.2022, 22.12.2022 and 23.12.2022 in WPA 13700 of 2021, the details of 952 candidates along with copies of their OMRs (as received from Central Bureau of Investigation) in connection with 1st State level Selection Test for the posts of Assistant Teachers (except Hill Region), for classes IX-X, 2016 has been published in the website of West Bengal Central School Service Commission on 29.12.2022.”
The appellants therefore submit that on a joint reading of all the Orders passed by the Hon’ble Single Bench in WPA 13700 of 2021 (supra), it would appear that the names of all the candidates appearing in the Notice dated 29thof December, 2022(supra) are imminent to be struck off thereby terminating their services in schools throughout the State.
The reason for such action is the discovery of a hard disc by the Central Bureau of Investigation (CBI) from the premises of one NYSA at Gaziabad. NYSA was the agency commissioned by the Commission to supervise and tabulate the OMR sheets used by examinees to the said 1st SLST, 2016.
The Mirror Image captured from the said hard disc was sent by CBI to the Commission. Upon comparison of its records with the Mirror Image of the marks obtained from the hard disc, the Commission found that the marks of the said 952 candidates have been manipulated. To be precise, the marks of the 952 candidates have been inflated much beyond the marks shown to have been received by them as collected from the hard disc.
The appellants have argued that they have been working in schools for nearly five years. Therefore, to face the imminent prospect of losing their jobs without receiving a hearing before the Hon’ble Single Bench is unknown to law. The appellants assert that the Hon’ble Single Bench completely erred by not treating them as necessary parties to the writ petition. The appellants point out that since Rule 17 of the West Bengal School Service Commission (Selection for Appointment To The Posts of Teachers for Classes IX and X in Secondary and Higher Secondary Schools) Rules, 2016 (for short, the 2016 Rules), inter alia, allow the Commission to withdraw any recommendation at any stage for appointment in service of a school pursuant to qualifying in the SLST, they apprehend that the Hon’ble Single Bench having found the action of the Commission to have recommended them on the basis of allegedly manipulated marks, with the publication of the Notice dated 29thDecember, 2022(supra) the next step would be loss of their jobs.
With the invocation of Rule 17 (supra) the appellants stand to be visited with civil consequences. The appellants assert that since they stand to be terminated from their jobs they must be heard before such drastic action takes effect.
Relying on 2022 (Online) SC 1570 (at Paragraphs 28, 29), the appellants submit that the proposition is well settled that the party having a direct nexus with the subject matter of the adjudication is required to be heard. Paragraphs 28 and 29 (supra) read as follows:-
“28. The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with “reasonable probability” influence the decision of the authority must be disclosed. A one-sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted is grave prejudice to officers whose careers are directly affected as a consequence.
29. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hall mark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case to case level and at an institutional level. However, this is not to say that all information must be disclosed in the public. Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of non-disclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm.”
Next, the appellants in MAT 244 of 2023 and MAT 245 of 2023 are aggrieved respectively by Order dated 8th February 2023 in WPA 2967 of 2023,In Re: Gopinath Bhanja and Others vs. The State of West Bengal and others and; Order also dated 8th February, 2023 in WPA 25380 of 2022,In Re: Subhamay Bhunia and others Vs. The State of West Bengal and Others, both Orders passed by a concurrent Hon’ble Single Bench.
For the benefit of this discussion the two Orders in the two writ petitions are reproduced below:
“W.P.A. 2967of 2023
GopinathBhanja& Ors.
-Vs-
The State of West Bengal & Ors.
Affidavit-of-service filed on behalf of the petitioners be kept with the record.
Mr. Anindya Lahiri led by Mr. Arunava Ghosh, for the petitioners, submits that the deficit Court Fees has already been put in. The petitioners participated in the 1st State Level Selection Test, 2016 for the recruitment in the post of Assistant Teacher for Class IX and X.
A Co-ordinate Bench of this Court directed investigation by the C.B.I into the allegation of huge malpractices adopted in the said selection process.
The said investigating agency, in course of investigation retrieved the original OMR Sheets of the candidates who participated in the said selection process from the Server of NYSA, an agency engaged by the Commission for scanning and evaluation of OMR sheets of the written answer scripts of all the candidates pertaining to the said selection test.
On recovery of the marks of the candidates from the server of the Commission which was the basis of the appointments, it was found that the appointments were given by manipulating marks.
A Co-ordinate Bench passed a direction in W.P.A 13700 of 2021 to upload the recovered OMR sheets in the Website of the Commission and in compliance of the said direction, the Commission under a notice bearing Memo no.1729/L3718/CSSC/ESTT/2022 dated December 29, 2022 has uploaded the said retrieved OMR sheets, names of such candidates with their respective roll numbers in its Website.
The petitioners in the instant writ petition, inter alia, have challenged the legality of the said notice.
It appears from record that the investigating agency has registered four Criminal Cases on the commission of such offence.
The R.C. Case No. 0102022 A0003 under Sections 120B, 420 of the Indian Penal Code, 1860 and Section 7 of Prevention of Corruption Act, 2018 dated April 7, 2022 relates to the selection process in which the petitioners participated. The said case is pending before the designated Court.
Mr. Lahiri, learned advocate for the petitioners submits that so long it is not proved in the criminal proceeding that the OMR sheets recovered by the investigating agency are manipulated, the publication of the impugned notice infringes the right of the petitioners guaranteed under Article 20 of the Constitution of India, besides since there is no presumptive value of those retrieved OMR sheets, no action can be taken on the basis of said materials. He prays that the impugned notice be recalled.
Dr. Patra, learned Counsel for the Commission submits that the Commission after thorough check, became sure that the uploaded OMR sheets are manipulated, the instant writ petition is a desperate attempt for the petitioners to stall the process of removing the illegally appointed candidates.
The petitioners are not claiming that the OMR sheets uploaded in the Website of the Commission against their names and roll numbers are their OMR sheets, as according to Mr. Lahiri such stand is self-incriminating, then obviously question crops up, what is the cause of action for the petitioners to get a declaration that the OMR sheets published under the impugned notice are not conclusive and those are subject to proof upon following due process of law.
The writ petition does not disclose any cause of action for such declaration.
The civil consequence of the malpractices adopted in the selection process, in which the petitioners participated is recalling and/or cancellation of the recommendations for appointment of the undeserving candidates in terms of the relevant rule, which has no nexus with the penal consequence of such malpractices as such the civil consequence cannot be detained for the pendency of the criminal proceeding initiated for the said malpractices. The petitioners since are aiming to forestall the said civil consequences till a decision in the criminal proceeding is arrived at, they are not entitled to the declaration as prayed for.
The writ petition, for the reasons discussed above fails, consequently W.P.A. 2967 of 2023 is dismissed without any order as to costs.
Since no affidavit-in-opposition has been invited, the allegations made in the writ petition are deemed to have been denied by respondents.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.”
“W.P.A. 25380 of 2022
Subhamay Bhunia& Ors.
-Vs-
The State of West Bengal & Ors.
This Court by the order dated February 02, 2023 directed the Commission to file affidavit disclosing the modality to be adopted by the Commission to exercise its power under Rule 17 of the West Bengal School Service Commission (Selection for Appointment to the Posts of Teachers for classes IX and X in Secondary and Higher Secondary Schools) Rules, 2016(hereinafter referred to as the “said Rules of 2016” in short). Dr. Patra, learned counsel for the Commission files the affidavit, as directed. Let it be kept with the record.
The relevant paragraphs of the said affidavit is quoted herein below:
“4. In reply to the above I submit as follows regarding the steps contemplated to deal with the candidates whose OMR marks (as evaluated originally with the initial model answer key) do not match with the SSC server data:
i) First, it is respectfully submitted that the marks of 15 candidates were increased by 1 in compliance with an order of the Hon”ble Court (WP No. 15579 of 2018), and hence, if the above-mentioned mismatch is equal to 1 in case of such candidates, the difference is legitimate. Therefore, the number of mismatched OMR is 937.
ii) ii) Second, in respect of the 937 candidates, it is found that the mark differences vary from 1 to 53. Considering the large number of cases to be handled, it is respectfully submitted that SSC proposes to move from the most palpable and severe irregularity to the least severe irregularity, that is, from the case where the marks difference is 53(fifty three) to the case where the mark difference is 1 (one). In the latter case, it is respectfully submitted that further due diligence is called for, and 3 SSC will deal with such cases at the end.
The following table illustrates the actual number of candidates for whom invoking of Rule 17 would be applicable.
Non-joining 2
In the system 803
(i) Sub total 805
The following table illustrates the actual number of candidates for whom invoking of Rule 17 would not be applicable
Not Recommended 121
Expired and 4
resigned
Sub-judice in other 1
Court
Rule 17 already 6
applied
(ii) Sub-total 132
Grand Total 937
5. As regards the procedure to be followed by Commission, the exercise will be carried out in phases as mentioned in paragraph 4(ii) above. It is further respectfully submitted that calling the candidates for a hearing is not necessary under Rule 17, as the cancellation notice itself is in the form of a reasoned order, and the decision of the Commission is final in this regard. Rule 17 does not provide for giving any hearing and contemplates rectification of wrong recommendations on the basis of records.
6. The Commission undertakes to initiate the process in seven days” time. However, it is not possible to fix a time frame for total disposal of the 805 cases”.
Mr. Joydip Kar, learned Senior Counsel, appears on behalf of Smt. Pritisha Das whose name is appearing under paragraph “9(3)” of the writ petition and it has been alleged that her OMR sheet is manipulated.
Mr. Kar submits that civil right of his client would be affected if the Commission is allowed to exercise its power under Rule 17 of the said Rules of 2016 to recall and/or cancel the recommendation without affording her an opportunity of hearing. The argument is pre-matured.
The Commission in its affidavit since has given an undertaking to initiate the process of exercising its power under Rule 17 of the said Rules of 2016 within seven days, it is expected that it would be able to report a positive outcome of such drill on the adjourned date.
Matter to be listed on February 15, 2023 at 10.30 A.M.
Parties to act on the server copy of this order downloaded from the official website of this Court.”
By filing applications for Leave to Appeal challenging the two Orders dated 8th February, 2023 (supra), the appellants in MAT 244 of 2023 and MAT 245 of 2023 submit that the data recovered from the hard disc of NYSA at Gaziabad is yet to be proved beyond doubt and the criminal investigation by the CBI is pending. Furthermore, the original OMR sheets of the 1st SLST, 2016 have been admittedly destroyed by the Commission. Hence, doubts still exist in comparing the data claimed to be now available with the Commission with the Mirror Image of the data recovered from the hard disc.
Since the Commission has already adopted a course of action before the Hon’ble Single Bench and the issue is sub-judice, no purpose will be served by presenting their grievance before the Commission. It is submitted that if the Order dated 8th February, 2023 is allowed to prevail, the appellants as well as the Writ Petitioners in WPA 2967 of 2023 shall lose their employment without being heard first.
The appellants rely upon (2011) 2 SCC 258 (at Paragraphs 80 and 82) in support of the proposition that the concept of natural justice is to be appreciated in the context of the facts of each and every case. It is submitted that in a scenario where the appellants imminently stand the prospect of losing their jobs, the Hon’ble Single Bench could not have expressed a conclusive opinion at the threshold on the comparable position of the OMR sheet marks without further and appropriate inputs from the forensic examiners.
Relying on 1963 Supplementary (I) SCR 676 = AIR 1963 SC 786 at Paragraph 7, the appellants submit that there can be no dispute with the proposition that a necessary party is one without whom no effective order can be made. Therefore, MAT 244 and 245 of 2023 be heard before the civil consequences unleashed by the Orders dated 8th February, 2023 (supra) take absolute effect.
In both the set of appeals (supra), the Commission relies on a Report on Affidavit submitted before the Hon’ble Single Bench in connection with WPA 13700 of 2021. The Report at its relevant paragraphs reads as follows:-
“3. On 06.02.2023, in course of the hearing of the instant writ application, the Hon”ble Court was pleased to direct the Learned Advocate appearing on behalf of the Commission to file a report in the form of an affidavits to the modality to the adopted by the Commission to exercise its power under Rule 17 of the West Bengal School Service Commission (Selection for Appointment to the Posts of Teachers for classes IX and X in Secondary and Higher Secondary Schools) Rules, 2016 to cancel and/or withdraw such recommendation in respect of the candidates so mistakenly recommended and the time necessary to complete such exercise though no formal order was passed to that effect.
4. In reply to the above I submit as follows regarding the steps contemplated to deal with the candidates whose OMR marks (as evaluated originally with the initial model answer key) do not match with the SSC server data:
i) First, it is respectfully submitted that the marks of 15 candidates were increased by 1 in compliance with an order the
Hon”ble Court (WP No. 15579 of 2018), and hence, if the above-mentioned mismatch is equal to 1 in case of such candidates, the difference is legitimate. Therefore, the number of mismatched OMR is 937.
ii) Second, in respect of the 937 candidates, it is found that the mark differences vary from 1 to 53. Considering the large number of cases to be handled, it is respectfully submitte4d that SSC proposes to move from the most palpable and severe irregularity to the least severe irregularity, that is, from the case where the marks difference is 53 (fifty three) to the case where the mark difference is 1 (one). In the latter case, it is respectfully submitted that further due diligence is called for, and SSC will deal with such cases at the end.
The following table illustrates the actual number of candidates for whom invoking of Rule 17 would be applicable.
|
Non-joining |
2 |
|
In the system |
803 |
|
(i) Sub total |
805 |
|
The
following table illustrates the actual number of |
|
|
Not Recommended |
121 |
|
Expired and resigned |
4 |
|
Sub-judice
in other |
1 |
|
Rule 17 already applied |
6 |
|
(ii) Sub-total |
132 |
|
Grand Total |
937 |
5. As regards the procedure to be followed by Commission, the exercise will be carried out in phases as mentioned in paragraph 4(ii) above. It is further respectfully submitted that calling the candidates for a hearing is not necessary under Rule 17, as the cancellation notice itself is in the form of a reasoned order, and the decision of the Commission is final in this regard. Rule 17 does not provide for giving any hearing and contemplates rectification of wrong recommendation on the basis of records.
6. The Commission undertakes to initiate the process in seven days” time. However, it is not possible to fix a time frame for total disposal of the 805 cases.
7. This affidavit is being affirmed herewith in compliance with the leave granted on 06.02.2023. However, the Commission craves leave to file its affidavit-in-opposition dealing with the allegations made in the writ applications was directed by the order dated 14.12.2922, if necessary.”
In the light of such Report (supra), the Commission takes the stand that the process of comparing the marks is in motion. It is submitted that Rule 17 (supra) permits the Commission to take steps suo motu for cancelling any recommendation in the event discrepancies in the marks of the candidates are detected at any stage. The Commission submits that the discrepancies discovered and placed before the Hon’ble Single Bench by way of the Report (supra) in WPA 13700 of 2021, culminate in invocation of Rule 17(supra) under Orders of the Hon’ble Court.
By way of Reply the appellants also rely upon 2014) 10 SCC 473 to argue the proposition that the Mirror Image of the OMR data being compared by the Commission is an electronic record which is subject to admissibility under Section 65 B of the Indian Evidence Act, 1872. It is submitted that there is no material before the Hon’ble Single Bench to show that the Commission is relying on an electronic record which is found to be admissible under the Evidence Act, 1872. Till admissibility of the electronic evidence is proved, the Hon’ble Single Bench ought not to order any drastic action against the appellants.
Placing their submissions, the State respondents draw the attention of this Court to the orders of the Hon’ble Single Bench and particularly to the Order dated 23rd December, 2022 in WPA No. 13700 of 2021. The said Order reads as follows:
“22.12.2022
BP
Sl 722
Court No. 17
WPA 13700 of 2021
With
CAN 1 of 2022
CAN 2 of 2022
SetabUddin& Ors.
Vs.
The State of West Bengal & Ors.
Mr. Firdous Samim, learned advocate for the petitioners has mentioned this matter alleging that the School Service Commission has published the OMR sheets on the direction that was given yesterday in a manner whereunder all persons interested cannot see the OMR sheets. Unless the candidates” 14 digit roll numbers and dates of birth are put in a portal, his/her OMR sheet cannot be seen. I find it extremely surprising because this action of Commission is not transparent and they are denying the view of the OMR sheets and numbers obtained by one particular candidate who appeared in the recruitment process for getting employment in classes IX and X of different 2 schools. According to the CBI report, these 952 OMR sheets are manipulated and the marks have been tampered by the officials of the then School Service Commission.
In the adoption of such system of putting the roll numbers and dates of birth of an illegally appointed candidate for seeing his/her OMR sheet, I find lack of transparency on the part of the West Bengal Central School Service Commission. Why such OMR sheets would not be seen by all interested person without having the roll number and the date of birth of a candidate?
I direct the Secretary of the School Service Commission to appear personally before this court at 12 noon today to explain the reasons for making the process non-transparent.
Learned advocates for the School Service Commission are present. I direct them to intimate forthwith the Chairman and also the Secretary of the Commission the order of this court as to personal presence of the Secretary at 12 noon.”
It is submitted that since there is a clear reference by the Hon’ble Single Bench to persons interested in the adjudication, the Hon’ble Single Bench has implicitly recognized the position that such persons interested have the right to ventilate their stand before the Hon’ble Court.
On behalf of the writ petitioners/ the respondents to both the set of appeals, it is submitted that the present applications filed by the appellants seeking Leave to Appeal are premature. It is argued that natural justice is not a straitjacket formula. It is further argued that no termination of jobs has as yet taken place. The appellants merely apprehend termination. Therefore at this stage, they cannot have a cause before the Hon’ble Single Bench.
The cause may arise in the event they are actually terminated. As on date the cause before the Hon’ble Single Bench involves only the Commission. The Commission is required to answer with regard to the discrepancies in marks as emanating from comparison of the OMR sheets data.
By way of further reply to the stand taken by the writ petitioners/ respondents (supra), the appellants rely upon a Supplementary Affidavit in MAT 85 of 2023 and also upon CAN 2 of 2023, which is an application for appropriate orders filed in MAT 245 of 2023. Both the Supplementary Affidavit and CAN 2 of 2023 (supra) enclose a Notice dated 13th February, 2023 issued by the Commission. The appellants submit that the Commission has clearly announced its intention to cancel the recommendation of 618 candidates out of 952 candidates. It is thus submitted that with the Notice dated 13th February, 2023, a clear scenario of termination from their jobs has been made out. Accordingly, the appellants must be heard before termination takes effect.
MAT 85 of 2023 and MAT 124 of 2023
Having closely heard the parties and perusing the materials placed, this Court is required to first address the pari materia issues raised in the identical appeals being MAT 85 of 2023 and MAT 124 of 2023.
This Court finds that under the provisions of Rule 17 of the 2016 Rules (supra), the Commission enjoys a predominant role to ultimately decide on the validity of its recommendations. Rule 17 does not provide for any opportunity to be heard. Rule 17 has also not been challenged in this set of appeals. Rule 17 reads as follows:
“17. Cancellation or Withdrawal of Recommendation
If prior to or after recommendation or during the course of selection process, it is found that any candidate concealed or suppressed or misrepresented or made false declaration in his /her application or at any subsequent stage or any mistake or fault committed by the Commission in granting recommendation wrongly to any candidate in contradiction to the provisions of the Act, Rules or other conditions as may be laid down, such candidate will be treated as disqualified and his/her recommendation will be cancelled and/or withdrawn at any stage and further his/her appointment, if any, shall stand terminated/cancelled and in such cases the decision of the Central Commission shall be final. Further the Central Commission may also take steps to fill up such post(s) from Waiting List within the validity period of the Panel and Waiting List, by issuing suitable direction to the concerned Regional Commission.”
This Court therefore cannot find any visible infirmity in the reasoning of the Hon’ble Single Bench to allow the Commission to take steps by invoking Rule 17. Before Court, the appellants, even if arguably added as parties, cannot ventilate a right larger than the right of the Commission to act under Rule 17.
In a scenario therefore, when the appellants cannot claim an absolute right to be heard under the statutory Rules, the only principle to which the appellants can fall back upon is of natural justice. Natural justice, not being a straitjacket formula, now requires to be assessed by this Court with regard to the extent of its application to the appellants in MAT 85 of 2023 and MAT 124 of 2023.
Although it is trite that the electronic evidence relied upon by the Commission is subject to scrutiny under the Evidence Act, at the same time with the Commission placing its findings in aid of Rule 17 before the Hon’ble Single Bench, in the absence of a right larger than that of the Commission, the appellants cannot insist upon being individually heard. It is also an admitted position that the appellants have never denied that the OMR sheets generated data, as relied upon by the Commission does not pertain to them or, in other words, is not their OMR sheets.
While it may be `facile to argue that in a Temple of Justice, no devotee(read litigant) is normally turned away from its doors, at the same time every Temple functions under a set of norms/procedure. Therefore, to the mind of this Court notwithstanding the overwhelming nature of the evidence against the appellants as well as the statutory position emanating from the application of Rule 17, the appellants, who claim to be identically situated, although do not enjoy an absolute right to be individually heard may, at the highest, be granted a representative right of hearing.
As observed by Lord Atkin, in General Council of Medical Education and Registration of the United Kingdom Vs. Spackman ( 1943 Vol.2 All England Law Reports page 337 at page 341) that “convenience and justice are often not on speaking terms”, the two can be married for the ends of justice in the facts of this case by granting the appellants a representative right of hearing before the Hon’ble Single Bench guided by the procedure envisaged under Order 1 Rule 8 of the Code of Civil Procedure.
Leave to Appeal stands accordingly granted.
CAN 8 of 2023 stands thus returned to be placed before the Hon’ble Single Bench for appropriate and independent consideration.
MAT 85 of 2023 with CAN 1 of 2023 with CAN 2 OF 2023 and MAT 124 of 2023 with CAN 1 of 2023 stand accordingly disposed of.
MAT 244 of 2023
Next, in MAT 244 of 2023 along with its connected application, the Order of the concurrent Hon’ble Single Bench dated 8th February, 2023 in WPA 2967 of 2023 is under challenge.
Unlike in MAT 85 of 2023 and MAT 124 of 2023, the present appellants have not applied before the Hon’ble Single Bench in WPA 2967 of 2023 to be added as parties. The present appellants however claim to be adversely affected by the Order dated 8th February, 2023 issued in respect of similarly circumstanced writ petitioners who filed WPA 2967 of 2023.
The opening paragraphs 2 and 3 of CAN 1 of 2023 as filed in MAT 244 of 2023 read as follows:
“2. The appellants states that in view of the orders which are being passed in W.P.A. No. 25380 of 2022 (Subhamay Bhunia & Ors – Vs- The State of West Bengal & Ors.) which they have come to know from similarly circumstanced candidates, the appellants have approached this Hon”ble Court for ventilating their grievances in respect of the proceeding which is being conducted behind their back.
3. The applicants state that they have been constrained to approach this Hon”ble Court in view of the social stigma which they have been made to face without the due process of law, even prior to facing any trial before the appropriate Court”
To the mind of this Court, the arguments advanced by the appellants relying on Section 65-B of the Evidence Act and Rule 18(5)(d) of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009 (for short, the 2009 Rules) are, prima facie, not adequate to overwhelm the reasoning reflected from the Order dated 8th February, 2023 in WPA 2967 of 2023 (supra) holding, inter alia, that the appellants have been unable to plead a cause in support of their prayer for a declaratory relief since they are not claiming that the OMR sheets uploaded on the Website of the Commission against their names and roll numbers are their OMR sheets.
Further, with reference to Rule 18(5)(d)(supra) of the 2009 Rules, it is trite that the Commission is not devoid of jurisdiction to take steps in the process of identifying the source and nature of the misrepresentation attached to the recruitment process.
Similarly, the requirement of proof under Section 65-B of the Evidence Act, having regard to the particular nature of proceedings, is a requirement which can be satisfied at an appropriate stage and is not fatal but curable (see In Re: Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Others; 2020) 7 SCC 1, at Paragraphs 51, 52 and 53).
In the light of the aforesaid discussion, although Leave to Appeal stands granted and MAT 244 of 2023 shall be heard, however, no interim reliefs can be granted.
Let Affidavit-in-Opposition be filed within four weeks. Reply two weeks thereafter.
Liberty to mention.
MAT 245 of 2023
With reference to MAT 245 of 2023, the appellants claim to stand in an identically circumstanced position as the appellants in MAT 244 of 2023(supra). However, by the Order impugned dated 8th February, 2023 passed in WPA 25380 of 2022 (In Re: Subhamay Bhunia and Ors. vs. The State of West Bengal and Ors.), the Hon’ble Single Bench has, inter alia, found the arguments advanced on behalf of the Writ Petitioners that their civil rights stand to be affected in the event the Commission is allowed to proceed under Rule 17 of the 2016 Rules, to be “premature”.
To the mind of this Court, the template of logic applicable to MAT 85 of 2023 and MAT 124 of 2023 (supra), applies with commensurate force to MAT 245 of 2023. Admittedly, the Hon’ble Single Bench has not conclusively adjudicated WPA 25380 of 2022 unlike WPA 2967 of 2023 (supra).
Neither the appellants in MAT 245 of 2023 were parties before the Hon’ble Single Bench, nor have their rights crystallised before the Hon’ble Division Bench in this appeal. The appellants therefore, in their hurry to skip a forum, cannot be allowed to ventilate a cause without a conclusive adjudication.
At the same time, since the appellants claim to be equally circumstanced as the writ petitioners in WPA 25380 of 2022, they are permitted to apply in representative capacity guided by the Principles of Order 1 Rule 8 CPC to be added as parties in WPA 25380 of 2022 for appropriate and independent consideration by the Hon’ble Single Bench.
MAT 245 of 2023 with CAN 1 of 2023 and CAN 2 of 2023 stand thus disposed of.
All parties to act in terms of the copy of the order downloaded from the official website of this Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
