Shivakant Prasad, J.@mdashThe instant appeal is directed against the judgment and order dated 20.6.2014 passed by the learned Single Judge dismissing the writ petition filed by the petitioner/appellant being W.P. No. 201 (W) of 2008.
2. The subject matter of challenge in the writ petition is the illegal selection of the post of Assistant Headmaster of the Respondent School and the illegal appointment of the Respondent No. 6 therein.
3. By an order dated 03.5.2006 passed in W.P. 10607(W) of 2006 filed by the petitioner/appellant, the Director of School Education (DSE), West Bengal, was directed to dispose of the representation dated 21th April, 2006 of the petitioner/appellant and by his order dated 11.12.2007, DSE rejected his contentions and issued direction on District Inspector of Schools to approve the said appointment of Respondent No. 6 as Assistant Headmaster of the School w.e.f. 12.5.2006.
4. The said decision of the Director of School Education was under challenge in the said writ petition.
5. The ground taken in the writ petition was that (1) the Selection Committee for the said post had been constituted illegally by the Managing Committee at the behest of the Respondent No. 6, who was the Teacher-in-Charge of the School at the relevant time, by deliberately excluding the Teachers'' representative in the Managing Committee, Sri Himangshu Majumdar, who ought to have been automatically included in the Selection Committee under the applicable G.O. dated 10.7.2002 as both the other teachers'' representatives in the Managing Committee - namely, Vidyasagar Ghosh and Anuj Barun Sarkar, were candidates for the said post. The Writ Petitioner alleged, all written representations submitted by the concerned teachers'' representatives in this regard to the authorities were ignored.
6. It is contended by the petitioner/appellant that the only reason for the deliberate exclusion of Sri Himangshu Majumdar from the Selection Committee was, in fact, to pave the way for selection of the Respondent No. 6 in the subject post of Assistant Headmaster as will be seen from the facts stated below:
(i) That the academic record of the Respondent No. 6, is extremely poor. As a matter of fact, at least 3 of the 9 candidates who had applied for the said post, including petitioner, had superior academic record than the Respondent No. 6 and accordingly as per the guidelines laid down in the G.O. dated 10.7.2002, each of them had a clear advantage of 4 (four) points over the Respondent No. 6 so far as academic record and experience is concerned. A comparative chart of the academic record of the Respondent No. 6 is given below:
7. It is further pointed out that the comparative statements prepared by the petitioner on the basis of presumptive marks awarded for the Personality Test, it will be established that because the edge that the petitioner and the two other candidates namely, Anuj Baran Sarkar and Vidyasagar Ghosh had over the Respondent No. 6, the only means of ensuring his selection in the subject post was to confine the Selection Committee to three members and hand-pick the Expert and that is the only reason why Sri Himangshu Majumdar was excluded from the Selection Committee.
8. In the second fold submission, it has been pointed out on behalf of the petitioner that the petitioner did not appear in the purported interview held on 21.01.2006 in protest of illegal constitution of the Selection Committee, although he was issued a call letter for the interview, and instead, by his letter dated 28.01.2006, drew the attention of the Respondents to the illegalities vitiating the selection.
9. In the third-fold submission on behalf of the petitioner, it is stated that it would appear from the Agenda No. 3 contained in the notice dated 26.11.2005 convening a meeting of the Managing Committee on 06.12.2005 that it has been changed from "Miscellaneous" to "Selection Committee formation" by and/or at the instance of the Respondent No. 6. It is contended that the exercise has been necessitated by the fact that although on 06.12.2005, there was no discussion on the subject of constitution of the Selection Committee for the subject post of Assistant Headmaster and the same was accordingly not part of the agenda for the said meeting, in the resolution book, it has been untruly recorded that there was discussion on the subject and a resolution was, in fact, passed, finalizing the names of all the members of the said Selection Committee except the "expert".
10. It is urged that even assuming but not admitting that a resolution was indeed passed on 06.12.2005 finalizing the names of all members except expert of the said Selection Committee, the constitution of such Selection Committee is wholly illegal being vitiated by the presence and participation of the Respondent No. 6 admittedly an aspirant for the said post in the deliberation of the said meeting. As a matter of fact, the said Respondent No. 6, Sri Bibekananda Biswas, has also signed on the resolution book on 06.12.2005 to record his presence at the said meeting.
11. In the meeting of the Managing Committee held on 14.12.2005 the constitution of the Selection Committee was finalized with the selection of the expert member, when Sri Bibekananda Biswas and Sri Kapilananda Biswas said to be his twin brother were absent and are not the signatories to the resolution of the said meeting.
12. The Respondent No. 6 contested the said writ petition by filing affidavit-in-opposition denying all material particulars made in the writ petition, however, none of the other Respondents filed any affidavit to the writ petition. The said writ petition was heard by the learned Judge and by the impugned judgment dated 20.6.2014, the Ld. Judge was pleased to dismiss the writ petition, brushing aside all the contentions raised by the petitioner and also disposed of the writ petition filed by the Respondent No. 6, being W.P. No. 20170(W) of 2008 praying for release of salary as Assistant Headmaster without any order, merely recording that such payment has already been made.
13. On being aggrieved by and dissatisfied with the judgment impugned, writ petitioner/the appellant herein preferred this appeal on the grounds, inter-alia that at the meeting of the Managing Committee held on 14.12.2005, one of the teachers'' representatives namely Anuj Baran Sarkar had strongly opposed the move to induct him into the Selection Committee for the subject post of Assistant Headmaster as he intended to apply for the same and had submitted a written letter of protest on 15.12.2005 itself, placing on record his intention to apply for the post by the letter dated 15.12.2005 and erroneously held that Sri Sarkar had expressed his intention to apply for the post for the first time only on 23.12.2006 long after his name was included in the Selection Committee.
14. We find on the record that name of Sri Sarkar as teacher representative was proposed by Sri Swapan Kumar Sikdar in the meeting held on 06.12.2005 and the resolution taken in the said meeting was signed by Sri Anuj Baran Sarkar, Himangshu Mazumdar and Vidya sagar Ghosh with other members present in the meeting. It is true that Sri Anuj baran Sarkar by representation dated 15.12.2005 expressed his intention to apply for the post of Assistant Head Master of the School instead on 23.12.2005 as is depicted from the judgement impugned. We are of the view that such error may have cropped up through inadvertence but it does not mean that entire judgement suffers from the infirmity.
15. On behalf of the writ petitioner/appellant another ground taken is that the Ld. Judge failed to appreciate that since the said Anuj Baran Sarkar had opted out of the Selection Committee as early as on 15.12.2005, even assuming that he did not object to his inclusion at the Managing Committee meeting on 14.12.2005, and since the second teachers'' representative, Vidyasagar Ghosh, was also an aspirant for the said post, there was no reason for the non-inclusion of the third Teacher'' Representative Himangshu Majumdar, in the Selection Committee, the interview being scheduled only on 21.01.2006 as under the Recruitment Rule, inclusion of one Teachers'' Representative is mandatory and the explanation of the school authority as recorded in the order of DSE and accepted by the Ld. Judge was perfunctory and wholly unsatisfactory.
16. The teachers'' representatives in the Managing Committee - both jointly or individually-submitted numerous representations to the Secretary of the Managing Committee and also the D.I. of Schools concerned, complaining of the deliberate exclusion of the teachers'' representative in the Selection Committee but such representations went completely unheeded and the Ld. Judge too, chose to ignore the said fact.
17. It is further contended that the entire maneuver of excluding the Teachers'' Representative from the Selection Committee was engineered by the Respondent No. 6 himself in his capacity as Teacher-in-Charge of the school to pave the way for his selection as Assistant Headmaster as he had full control over other members of the committee and was confident that they would award him full marks in the interview to enable him to overcome his deficiency in academic record.
18. The observation of the Ld. Judge that by not participating in the interview, the petitioner has waived his right to challenge the selection process is contrary to the settled law regarding waiver, acquiescence and estoppel. We are unable to agree on this count as the appellant has no locus standi even to challenge the selection process and the learned Judge is substantially correct in his finding.
19. The earlier writ petition filed by the petitioner being W.P. No. 10607 (W) of 2006 having been admitted and disposed of by this Hon''ble Court order dated 03.5.2006, by referring the matter to the Director of School Education, the point of delay, if any, had lost all force. It is well depicted from record at page 73 of the paper book that no representation had been submitted by the petitioner before 21.4.2006 although the interview had taken place on 21.01.2006.
20. This is admitted fact that the petitioner was absent from duty for 10 days during which the interview was held on 21.01.2006, without any application for medical leave who deliberately did not appear in the interview despite his knowledge about such interview, ergo, he waived his right to question the process of selection of the Assistant Head Master and the finding of such fact made by the Director of School Education cannot be faulted with.
21. That apart, no prejudice is caused to the appellant as he cannot be selected as Assistant Head Master of the school automatically after refusing to appear in the interview for appointment to such post. Submission put forth by the appellant go to show that he has tried to espouse the cause of Himangshu Majumdar and of Anuj baran Sarkar although they have not come forward before the Hon''ble Court to ventilate their grievances even they are not the parties to this case.
22. Further contention on behalf of the appellant is that the Ld. Judge did not deal with the issue of bias vitiating the selection process, including the constitution of the Selection Committee and approval of the panel prepared by such committee, as raised by the petitioner in the Supplementary Affidavit filed by him.
23. It is pointed out that the Ld. Judge failed to appreciate that the Respondent No. 6 and/or his twin brother Kapilananda Biswas should have recused themselves from participating in vital meetings of the Managing Committee where the constitution of the Selection Committee for the subject post was finalized and the panel prepared by the said Selection Committee was approved for the same reason. It is contended that as a matter of fact, even from the high marks awarded to the Respondent No. 6 in the interview notwithstanding his poor academic record, the assessment made by members of the Selection Committee were biased and the entire exercise at their behest was intended solely to enable the Respondent No. 6 to top the panel by passing academically more meritorious candidates and the Ld. Judge erred in ignoring the said fact.
24. It is submitted that the Ld. Judge should have, therefore, allowed the writ petition filed by the petitioner/appellant herein by setting aside the selection and appointment of the Respondent No. 6 as Headmaster of the School and ought to have passed direction on the Respondent No. 6 to refund the salary and allowances paid to him as Assistant Headmaster upon his selection and appointment in the said post being declared illegal and set aside.
25. Now, the point for decision is as to whether the judgment impugned in tenable in law and in fact.
26. It is expedient on our part to reproduce the order passed by the Director of S.E. as under for appraisal:
"In compliance with the order of Hon''ble High Court, Calcutta as passed by the Hon''ble Justice Soumitra Pal on 03.5.2006 in W.P. No. 10607(W) of 2006 the matter was taken up for final hearing on 24.4.2007 by intimating all concerned vide office Memo No. 251/1(5) - LS dated 08.3.2007 after successive hearing on 08.8.2006, 14.11.2006 and 07.02.2006 of the matter for disposing of the representation of the petitioner filed on 21.4.2006 as was directed thereon in the said judgment dated 03.5.2006. Swhri Ashim Kumar Halder, Learned Advocate for the School Authority, Shri Ranajit Chatterjee, Learned Advocate for the petitioner, Shri Shibdas Bhattacharyya, Additional District Inspector of Schools (SE), Bangaon Sub-Division and Shri Subhas Chandra Giri, Assistant Inspector of Schools (SE), North 24-Parganas were present and heard.
The instant writ petition was filed challenging the legality of the constitution of Selection Committee in present of appointment of Assistant Headmaster at the Bongaon Kabi Keshblal Vidyapith (H.S.) for which the interview was held on 21.01.2006 after receiving the prior permission issued by the District Inspector of Schools (SE), North 24-Parganas vide its No. 1219/G dated 10-11-2005.
Learned Advocate for the petitioner submitted that the main contention of the writ petition was that the Selection Committee for appointment of Assistant Headmaster was formed with three members instead of five as it required as per recruitment rules. Actually in the said Selection Committee there was no Teacher''s Representative at all. He also added that Sri Anuj Sarkar, Shri Himangshu Majumder and Vidyasagar Ghosh were the teacher representatives of the duly constituted Managing Committee of the School. Shri Anuj Sarkar and Shri Vidyasagar Ghosh, being the applicant for the post of Assistant Headmaster, it is obvious that Shri Himangshu Majumder would have to act as the Teacher Representative. But upon Himangshu Majumder a false trick was made by the authority concerned by sending the blank envelop to him so that he could not know the date of the interview and made his presence in the Selection Committee. Mr. Himangshu Majumder wrote several letters to the Teacher in-charge as well as to the Secretary of the School for giving the information about the date of the interview so that he may present as Teacher Representative in the Selection Committee, but no fruitful result was resulted.
The Learned Advocate for the school authority submitted in details as to why there were three members in the Selection Committee instead of five. His clarifications were as follows:-
1) Teacher-in-Charge of the School was himself a participant in the interview for the selection of Assistant Headmaster. So, his name was not included in the Selection Committee.
2) The Teacher Representatives Shri Anuj Sarkar and Shri Vidyasagar Ghosh were also the participants in the interview for selection of Assistant Headmaster of the School. Actually what had been happened was that Shri Anuj Sarkar was first selected to act as T.R. in the Selection Committee since he was a non-applicant and accordingly the meeting dated 6-12-2005 took the decision to constitute the Selection Committee with the following persons:
Shri Nilratan Biswas-Secretary
TIC being applicant-Vacant
TR--Shri Anuj Sarkar
Guardian Representative--Sri Sevak Ghosh
Expert--will be settled in the next meeting to be held on 14-12-2005.
It may be mentioned here that in the said meeting of 6-12-2005, all the three Teachers'' Representatives were present.
On 14-12-2005, when the name of the expert was selected, all the three Teacher''s representatives were even present and decision was taken unanimously who will at as the members of the Selection Committee wherein still then Shri Anuj Sarkar''s name was selected as the Teacher''s Representative (i.e. T.R.)
But on 23-12-2006, Shri Anuj Sarkar expressed his willingness to appear at the interview for filling up the post of Assistant Headmaster and the Secretary allowed Shri Anuj Sarker to appear at the said interview as well as decision was taken to keep the place of TR vacant since constitution of Selection Committee with three members is valid. Moreover since the interview date was selected already, the prayer of Himangshu Biswas to act as T.R. was not considered for the reason that the entire proceedings should be changed then.
The charge of sending blank envelop is quite baseless because Shri Himangshu Biswas was all along present in the meeting of the Managing Committee for Selection of Expert, selection of date of interview etc. He himself had even put his signature also in the meeting Register. So it is obvious that he knew all the pros and cons of the interview.
Regarding protest of illegal constitution of the Selection Committee Sri Debraj Sarkar''s submission of writ petition seems to be incorrect as because there are no signification shown by him in his writ petition and annexure that he remained absent in the interview due to illegal constitution of the Selection.
Sri Debraj Sarkar i.e. the petitioner herein was absent in the school due to his illness with effect from 18-01-2006 to 27-01-2006 (10 days) and due to that he remained absent in the interview though he was well aware that the date of interview was on 21-01-2006. So, it seems that the petitioner has lost his rights to challenge the Selection procedure as well as to claim for the post of Assistant Headmaster.
The Learned Advocate for the petitioner quoting the paragraphs 15 and 16 of the instant writ petition further submitted that his client i.e. the petitioner came to know that Respondent No. 6 had filed a writ petition being No. 3477 (W) of 2006 and had obtained an order on 6-3-2006 directing the District Inspector of Schools (SE), 24-Parganas (North) Barasat to take a decision regarding the approval of the panel dated 21-01-2006 prepared for the post of Assistant Headmaster of the school concerned within a period of four weeks. But on or about 17-04-2006 the Respondent Additional District Inspector of Schools (SE), Bongaon Sub-Division wrongly and illegally approved the said illegal panel in question acting on the basis of the said referred order of the Hon''ble Court dated 6-3-2006 in W.P. No. 3477(W) of 2006 although there was no mandatory direction on any statutory Respondent to approve the said panel.
The Additional District Inspector of Schools (SE) Bongaon submitted that the order of the Hon''ble Court dated 06-3-2006 was binding upon the Respondent No. 3 in W.P. No. 3477(W) of 2006 i.e. the District Inspector of Schools (SE), 24-Parganas (North). So, the submission of the Learned Advocate for the petitioner is not correct that the approval of the said panel had wrongly been accorded by him. Actually the panel had been approved by him as per instruction of the District Inspector of Schools (SE), North 24-Parganas vide Memo No. 353/H (Law) dated 13-4-2006 in view of the said order of the Hon''ble Court dated 6-3-2006 with the condition as was imposed thereon by the said instruction of the said District Inspector of Schools after verification of all papers of the panel which were found in order. The representative of the District Inspector of Schools (SE), North 24-Parganas also admitted the fact. The Additional District Inspector of Schools (SE), Bongaon Sub-Division on query further submitted that the guidelines for recruitment of Assistant Headmaster as laid down in Govt. Notification No. 1628-GA dated 10-7-2002 have been observed here by the School Authority in preparing the panel in question and after satisfying about the same as in order by verification of all papers, the office had approved the panel under Memo No. 442/G dated 18-4-2006. However, two conditions were imposed in the Memo No. 442/G dated 18-4-2006 that the appointment letter to the 1st empanelled candidate cannot be issued by the school authority till completion of the Assembly Election and the fate of the approved panel will abide by the result of the Writ Petition being No. 1122(W) of 2006. Those two conditions were given in terms of Memo No. 694-GA dated 07-4-2006 of the Director of School Education, West Bengal and Memo No. 353/H(Law) dated 13-4-2006 of the District Inspector of Schools (SE), 24-Parganas (North).
All the documents and papers were produced including the Writ Petition, the representation of the petitioner dated 20-4-2006/21-4-2006 and the contents of the Court''s Judgement have been perused and recorded. Submissions of all were also noted. The rule 3(D) of the Notification No. 1628-GA dated 10-7-2002 prescribes that--
"A panel shall be prepared with average of marks awarded by each of the members of the Selection Committee in his/her individual score-sheet with signature. If any of the members wants to keep his/her option reserved, he/she shall submit a blank sheet containing names etc. of the candidates and duly signed by him/her and average shall be calculated on the marks awarded by other members. The panel shall be prepared in presence of at least 3(three) Members out of 5(five) Members of the Selection Committee and the panel should be signed by all these Members."
So, considering the rule 3(A) of the said Notification in addition it cannot be said that the formation and function of Selection Committee is beyond the prescribed rule. Moreover, it appears from records that the awarding of marks has even been satisfied the Additional District Inspector of Schools (SE), Bongaon and for the reason, the panel has been approved by him. Therefore, nothing is found wrong in approving the panel. It also appears from the approved panel being Memo No. 442-G dated 18-4-2006 that the three empanelled candidates are as follows:
Under the circumstances, I am of the opinion that the above approved panel vide Memo No. 442-G dated 18-4-2006 is a right one together with its both the imposed conditions and there is no cogent reason to set aside it. Since the Memo No. 442/G dated 18-4-2006 is a right one and the panel is to be valid for one year from the date of approval, the school Authority should have to act accordingly. Here the last vote casting day of Assembly Election in West Bengal was 08.6.2006. School Authority had submitted written statement that they had issued appointment letter to the Respondent No. 6 herein i.e. the 1st empanelled candidate on 28-4-2006 after the completion of election in the Bongaon Assembly Constituency and the candidate had joined on 29.4.2006. It is not expected. Because, the last cut off date of casting vote was on 08-5-2006 and the School authority cannot issue appointment letter prior to 08-5-2006. But it is admitted fact that the school had did it and the first empanelled candidate has been serving his duties in the post as the Assistant Headmaster of the school from 29-4-2006. Since the counting date of votes in the General Assembly Election of West Bengal was on 11-05-2006 and the first empanelled candidate ought to have joined in his post after the completion of the Election date in terms of order No. 694-GA dated 7-4-2006.
Considering all pros and cons of the case and real happening in the school, the Additional District Inspector of Schools (SE), Bongaon is directed to approve the service of the first empanelled candidate with effect from 12-5-2006 who has been serving the post after joining on 29-4-2006. There will be no need to issue appointment letter further to the incumbent in that respect by the School Authority. The said authority will have to submit the papers of approval of appointment in this regard only to the Additional District Inspector of Schools (SE), Bongaon, if those papers have yet not been submitted for the purpose. However, it should be pertinent to mention here that this will abide by the result of the Writ Petition being No. 1122(W) of 2006, if not decided already or on the line if it has been directed otherwise in the meantime. The Status of the incumbent concerned i.e. Respondent No. 6 herein should have to be considered as the Assistant Teacher of the School for the period from 29-4-2006 to 11-5-2006.
Petitioner''s representation is considered. But no relief can be given.
The matter is thus disposed of.
All concerned be informed accordingly."
27. Before dealing with the issue in this appeal it would be apt to refer to a decision of
"It is needless to emphasis that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."
28. In a decision of
29. Learned Counsel for the appellant has referred to a decision of Rabindranath Majhee Vs. Bijoy Chatterjee reported in 2012 (2) CHN (Cal) 43 passed by this Hon''ble Court in which case the question for determination in the appeal was whether a person''s affection for his son had resulted favoritism in the selection of the appellant for the post of a Clerk. It was held that the Secretary ought not to have participated in the meeting in which the final decision was taken with regard to the selection of the candidate. The recusal of the Secretary would not have invalidated the decision or would not have resulted in an "administrative impasse". There is likelihood of apparent bias and the selection is suspected having strong "suspicion of bias". The marks given in viva-voce was quite unusual and gives a clear unmistakable impression. In that decision the Hon''ble Court was pleased to consider the principle of natural justice regarding bias dealt with vividly in Paragraph 11 and 12 as under:
"11. In deciding a case of bias, it is very difficult to establish actual bias. Bias is not a galloping horse running down the Red Road that would make him so visible that having a look at it, the bias could be established. Whenever a situation arises, like the nature we are considering, it must depend upon the "likelihood of bias" that may result from the series of events and the person against whom bias is alleged whether he is in a position to influence the minds of others so as to obtain a favourable result in his favour. It is these collation of facts put together in a given case assist the Court in arriving at a conclusion about involvement of bias in a particular decision.
12. Bias is not a defined personality nor a visible object which by its fits and starts reveal itself instantaneously. It is shapeless. It is the result of examination of a conduct which is propelled by an intention to influence the decision in favour of someone very close to the heard and in the process to remove the other deserving contestants from the fray. The case of actual bias is far and between. It needs to be tested on the wholesome principle that justice should not only be done but should also appear to have been done as well."
30. Taking the cue from the very decision, it is submitted on behalf of the appellant that in the case in hand, too, the twin brother of the Respondent No. 6 is the member in the School Committee. Now, we have to appraise on the materials on record as to whether the Selection Committee was biased towards the Respondent No. 6 to select him for the post of Assistant Headmaster of the School by virtue of the presence of the said twin brother namely Kapilananda Biswas.
The principle of bias in the matter of selection of candidate by an administrative body was considered by Hon''ble Supreme Court in the case of
"16. We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should incapacitated from sitting." The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court."
31. It is clench principle of administrative law relating to principle of natural justice that when the pillars of the test of bias are "real likelihood," "real danger," "reasonable suspicion" and "real possibility," these are the expressions formulated by the Judges to find out whether a decision is tainted by bias. But at the same time in a decision of
In Paragraph 38 of the cited decision the Hon''ble Apex Court observed in the following lines:
"The doctrine of necessity is a common law doctrine, and is applied to tide over the situations where there are difficulties. Law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over."
32. We have respectfully gone through the decisions cited above. In the decision of Rabindranath Majhee Vs. Bijoy Chatterjee (Supra) the Secretary taking part in the selection process was the father who selected his son for the post of clerk whereas in this particular case, as alleged Sri Kapilanand Biswas, the twin brother of the Respondent No. 6 was not present in the meeting held on 06.12.2005 and 14.12.2005, when the constitution of Selection Committee was finalized except the Expert, although, the Respondent No. 6 was present who was not opted as a member in the said committee as Teacher-in-Charge because he was aspirant for the post of Assistant Head Master of the school and both of them had not participated in the meeting dated 14.12.2005 when the Selection Committee was finalized with selection of the Expert member. Therefore, the argument that there has been personal affection favouring Respondent No. 6 for his appointment as Assistant Headmaster with the influence played on the Selection Committee cannot be accepted and in that view of the matter the decision of Rabindranath Majhee Vs. Bijoy Chatterjee reported in 2012 (2) CHN (Cal) 43 is quite distinguishable from the facts and circumstances of the instant case and so also the unreported decision of coordinate Court of this Hon''ble High Court passed in MAT No. 1399 of 2011 with CAN No. 9646 of 2011 in case of the Secretary, Dhadalibar High School and Anr. Vs. State of West Bengal and Ors. and as such, in our humble opinion the decision cited (supra) are not apposite to the instant case.
33. Reference to a decision of
"9. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful."
34. In
The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal.
35. Keeping in view the above principle of law in respect of personal biasness, we are pleased to observe that the writ petitioner Debraj Sarkar by his letter dated 28.01.2006 raised allegation to the illegal formation of the Selection Committee for the appointment of Assistant Headmaster in Bongaon Kabi Keshablal Vidyapith, Bongaon, only after the formation of the Selection Committee by virtue of resolution dated 14.12.2005 and for reconsideration of the matter and to arrange for fresh recruitment procedure to appoint the Assistant Headmaster.
36. It is admitted that though Appellant/Petitioner had applied for the said post but he did not appear in the interview to protest against the selection process, including constitution of the Selection Committee which had prepared a panel with the Respondent No. 6 in the first position. The representation submitted by Himangshu Majumdar to the Respondents pointing out the aforesaid facts was also made on 24.01.2006, the date of purported panel was prepared to the post of Assistant Headmaster approved by the Managing Committee with both the selected candidate alleging that his brother attended the meeting. But the minutes of the meeting dated 06.12.2005 shows that in the said meeting it was discussed that the Selection Committee for the post of Assistant Headmaster except the expert as in which the Selection Committee was to constitute members namely (1) Nilratan Biswas, (2) TIC to be left vacant as the TIC Sri Bibekananda Biswas himself was aspirant for the post of Assistant Headmaster (3) Sri Sebak Ghosh was taken as the Guardian''s representative., (4) Anuj Baran Sarkar was taken as Teacher''s representative and the three names were to be proposed as the expert members in the next meeting and the Secretary was entrusted to do the endeavor.
37. It also appears that the constitution of the Selection Committee was not completed in the meeting dated 06.12.2005 and Bibekananda Biswas''s presence in the meeting as a Teacher-in-Charge was for the disposal of the other agenda which were taken in the said meeting. The twin brother of the Respondent No. 6 was not present and is not a signatory to the resolution taken at the meeting.
38. It appears from the Minutes of the Meeting of the Managing Committee dated 14.12.2005 that the constitution of the Selection Committee were finalized with the selection of the expert member. It is clear from the Minutes of the Meeting that in the said meeting TIC Sri Bibekananda Biswas, the Respondent No. 6 herein recused from being member of the Selection Committee as he was aspirant for the post of Assistant Headmaster and Sri Nilratan Biswas, Secretary of the School was entrusted for doing the needful for the selection process of Assistant Headmaster and for inviting application for the said post. Three names of the expert--(1) Sri Sukumar Debnath, Headmaster of Kalitala Biswabandhu Siksha Niketan, (2) Smt. Parul Sanyal, Headmistress of Subhasnagar Gourisundari Balika Vidyabithi and (3) Sri Aniruddha Bhattacharya, Headmaster of Gopalnagar Haripada Institution were named amongst them one was to be expert and the next date was fixed on 21.1.2006 for holding interview for the appointment of the post of Assistant Headmaster and all these minutes of resolution of the Managing Committee were duly taken in presence of Sri Anuj Baran Sarkar and Sri Himangshu Majumdar who were through and through present in the said meeting without any ire.
39. Ergo, argument on behalf of the Appellant that the entire selection, including the formation of the Selection Committee and the approval of the illegally prepared panel by the Managing Committee, are vitiated by bias and liable to be quashed and set aside on this ground alone has no leg to stand.
40. It has been rightly considered by the Director of School Education in his order dated 11.12.2007 that as per the rule 3(A) in conjoint reading with the rule 3(D) of the said Notification No. 1628-GA dated 10.7.2002, it cannot be said that the formation and function of Selection Committee is beyond the prescribed rule.
41. That apart, the result of the interview test on merits cannot be successfully challenged by a candidate who did not take part at the said interview despite opportunity given to him to prove his suitability for the post of Assistant Headmaster, ergo, we hold that the appellant has no legal right to maintain the writ application.
42. In view of what has been discussed above and after having given an anxious consideration to the facts and circumstances of the instant case and having considered the judgement impugned, we are of the opinion and accordingly hold that when an appointment is not made de horse the rules, the same cannot be held a nullity. In such an eventuality we do not find any ground to interfere with the impugned judgement.
43. In the result, appeal fails.
44. Urgent certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.
A.K. Banerjee, J.
I agree.
