Biswanath Somadder, J.@mdashThe writ petitioner being aggrieved by the selection process adopted by the respondents authorities for the post of ASHA worker at Gokulpur Gram Panchayat situated in the district of Purba Medinipur applied before the Pradhan of the said Gram Panchayat under the Right to Information Act, 2005, seeking certain information regarding the panel prepared for the post-in-question and the marks obtained by all candidates who participated in the selection process. Upon obtaining such information, she found that based on the aggregate score of marks obtained on the basis of academic result and the marks obtained in viva-voce, she ought to have been placed a higher position than the private respondent No. 8, in the panel prepared for the post-in-question. Thus, she filed the instant writ petition based on the information obtained under the Right to Information Act. 2005. According to the learned Advocate for the petitioner, the private respondent No. 8 had obtained 385 marks in the Madhyamik Examination which translates to 34.22 marks out of 80 marks allotted against academic result. The private respondent No. 8 secured 13.50 marks out of 20 marks allotted for viva-voce. Thus, by calculation, the private respondent had secured a total of 47.72 marks. On the other hand, the writ petitioner had obtained a total of 367 marks in her Madhyamik Examination which translates to 32.62 marks on account of her academic result and 16 marks for viva-voce. Thus, the writ petitioner obtained an aggregate score of 48.62 marks, which is higher than the aggregate score of the private respondent No. 8. who had secured a total of 47.72 marks.
2. When the writ petition was initially moved an order was passed directing the respondent authorities to produce the records of the case pertaining to the advertisement issued on 24th June. 2010. for the post-in-question on the following date of hearing. However, the same was not produced on the adjourned date and, thereafter, direction for filing of affidavits was passed and ultimately the matter has been placed under the heading "For Final Disposal" upon exchange of affidavits.
3. In the affidavit-in-opposition filed by the Block Medical Officer of Health, Gonara BPHC, District - Purba Medinipur, being the respondent No. 6, it has been stated that the private respondent No. 8 had appeared in the Madhyamik Examination in March, 1988, and passed in all groups but got compartmental in the Science Group. In the subsequent year, i.e., 1989, the private respondent No. 8 cleared her Science Group upon obtaining 181 marks. Thus, on an aggregate, the respondent No. 8 had obtained 453 marks out of 900 marks in her Madhyamik Examination and not 385 marks, as alleged by the writ petitioner. This statement, however, appears to be totally contrary to the information obtained by the writ petitioner under the Right to Information to Act from the Pradhan of the concerned Gram Panchayat Such information which has been annexed to the writ petition clearly indicates that the private respondent No. 8 had secured 385 marks in her Madhyamik Examination. In a copy of the application form of the private respondent No. 8 which has boon annexed to the affidavit-in-opposition, it appears that she had stated very clearly of having obtained 385 marks in her Board Examination (i.e., Madhyamik Examination). She has also stated the details of her marksheet which clearly indicates that she was a compartmental candidate. The marks of 453 appears to be subsequently written in a different handwriting after scoring out 385 marks, which was written earlier. In the affidavit-in-opposition the respondent No. 6 has also annexed a copy of the admit card issued by the West Bengal Board of Secondary Education (hereinafter referred to as the Board) in favour of the private respondent No. 8 to allow her to appear in the compartmental Madhyamik Pariksha (Secondary Examination) 1989. The respondent No. 6 has also annexed copies of two marksheets issued by the Board in favour of the private respondent No. 8. One of the marksheets discloses her unsuccessful attempt in clearing the Board Examination held in March, 1988. In that mark sheet she is shown to have obtained the following marks in the various groups : In Work Education Group she had obtained 68 marks, in the Language Group she had obtained 121 marks, in the Science Group she had obtained 85 marks and in India by Her People Group she had obtained 83 marks. Thus, on aggregate she had obtained a total of 357 marks. No marks were added to her aggregate score on account of marks obtained in additional subject since she had not even obtained pass marks in the additional subject. The other mark sheet appears to have been issued by the Board in respect of the marks obtained by the private respondent No. 8 in the compartmental examination held in the year. 1989, where she appears to have obtained 181 marks in the Science Group and was declared to have passed in ''P'' division.
4. Learned Advocate for the petitioner submits that it would appear from the records itself that the private respondent No. 8 had been unsuccessful in the Madhyamik Pariksha held in March, 1988, wherein she had obtained an aggregate score of 357 marks and it was only after adding 181 marks, which she obtained in her compartmental examination held in the next year, i.e., 1989, could she enhance her aggregate to 453 marks. In contrast, the writ petitioner had cleared her Madhyamik Examination in the very first attempt and obtained 367 marks in aggregate. In order to determine the relative merit of the two, the respondent authorities should have factored in the unsuccessful first attempt of the private respondent No. 8 before allotting her an aggregate of 453 marks, which she never obtained in a single attempt.
5. In this context, learned advocate for the petitioner has relied on a judgment of this Court rendered in the case of
26. A candidate taking the Secondary Examination conducted by the said Board is not permitted to reappear in any subsequent examination conducted by it if he/she clears the examination. Therefore, in a given case, if a candidate, otherwise meritorious, unfortunately secures poor marks, say 42% marks, he cannot improve his/her performance by taking part in any subsequent examination. His/her fate is sealed once and for all and in future, he/she has to compete for public employment based on the poor marks obtained by him/her at the Secondary Examination. Clearing the examination in the first attempt with very low marks becomes a curse for him. He/she has to bear its consequence for the rest of his/her life.
27. On the contrary, if a candidate secures pass marks in all but one of the groups, he/she is declared a compartmental candidate and in order to clear the Secondary Examination he/she is entitled to reappear in the following year''s examination as a compartmental candidate. He/ she has the entire year to study on the subject in which he/she has failed. As a result of studying the same subject over again, he/she is provided with a golden opportunity of clearing the examination. Obviously, in such a case, a candidate would stand a better chance of improving his/her performance in the following year''s examination. If the marks obtained by him/her in both the attempts are consolidated, he/she would, in all probability, steal a march over a candidate whose example has been given in the preceding paragraph. In his/her case failure becomes a boon in disguise.
28. Would it be fair, just and proper to treat these candidates at par? This Court does not think so. Selection of a candidate who clears the Secondary Examination in two or more attempts in preference to a candidate who clears the examination in the first attempt would amount to giving a premium for failure. A candidate clearing the examination in the first attempt would thus be treated with unequal and deprived of equal opportunity of public employment, which would be contrary to constitutional values.
6. The observations of the Court, as reproduced hereinabove, leaves no manner of doubt that a failed candidate who is given an opportunity to clear his/her examination in the following year as a compartmental candidate cannot be equated with a meritorious candidate who clears his/her Board examination in one single attempt and cannot improve her academic score having sealed his/her fate upon being successful in the examination. although obtaining lower marks in aggregate than a candidate who obtains higher marks on two attempts.
7. In such facts and circumstances as stated above, this writ petition is allowed and the panel prepared for the post-in-question by the Gokulpur Gram Panchayat based on the interview dated 25th April, 2010, stands quashed. The respondent No. 6, being the Block Medical Officer of Health, Gonara BPHC, Purba Medinipur, shall take steps to direct the respondent No. 7 to prepare a fresh panel based on the observations made hereinabove and send the same to the said respondent No. 6 for grant of approval in accordance with law. Needless to mention, if any appointment has been given to the private respondent No. 8 (who has been duly served, but has not entered appearance) for the post-in-question, such appointment shall stand automatically cancelled in view of this order. The entire exercise, in terms of this order, shall be completed by the respondent No. 6 as expeditiously as possible, preferably within a period of eight weeks, but not later than twelve weeks from the date of communication of a photostat certified copy of this order.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
