Shilpi Bhattacharya v. The Union Of India And ORS
IN THE HIGH COURT AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR] *** WP.CT/33/2023 Smt Shilpi Bhattacharya Vs.
The Union of India and others Mrs. Anjili Nag ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents July 27, 2023 [SR] Item No.2 The present writ petition has been preferred challenging an order dated 7th July, 2023 passed by the learned Tribunal in an Original Application, being OA No.351/00873/2023/AN. By the said order, the learned Tribunal refused the applicant's prayer to restrain the respondents from proceeding with the selection process for the post of Post Graduate Teacher (Biology). Mrs. Nag, learned advocate appearing for the writ petitioner submits that there are two vacancies in the concerned post.
The Recruitment Rules for filling up the said post clearly specify the essential qualification to be a Master Degree from a recognized university in the concerned subject and a Bachelor Degree in Education from a recognized university. The petitioner fulfills such essential qualification. However, in the notification issued by the respondents for filling up the concerned post, a clause being clause 20 has been inserted, which reads as follows: '20. All educational qualifications should be obtained in the chronological order. Qualifications mandatory for pursuing further higher studies should invariably in sequential years and weightage of marks shall be worked out accordingly. No weightage of marks is allowed for overlapping qualification/degree/diploma etc.'
She submits that in view of the said clause 20, the respondents are not considering the petitioner's candidature since she has not obtained the qualifications in chronological and sequential manner. Such clause towards consideration of
degrees only in chronological and sequential manner being contrary to the Recruitment Rules is a nullity in law. In support of such contention, reliance has been placed upon the judgments delivered in the cases of State of Punjab and others vs. Anita and others, reported in 2015(2) SCC 170 and Ranajit Kumar Meher vs. State of Orissa and others, reported in 2017 (4) SCC 568. According to Mrs. Nag, the petitioner has thus made out a prima facie case and in the event she is considered to be ineligible in view of the said clause 20, she would suffer irreparable loss and injury and as such she prays for an interim protection.
She submits that in the Original Application, the petitioner prayed for an interim order to restrain the respondents from appointing any candidate to the concerned post till the disposal of the said application or to direct the respondents to keep one post of PGT (Biology) vacant till the disposal of the said application. The learned Tribunal erred in law in refusing both the prayers.
Per contra Mr.Chakraborty, learned advocate appearing for the respondents, submits that a person having participated in the selection process being conscious of the conditions incorporated in the vacancy notification, cannot turn back and challenge the selection process. The requisite qualifications required for the concerned post have been clearly specified in the notification and the same is not contrary to the Recruitment Rules and that as such the petitioner is not eligible for the post. When the matter was last heard, we directed Mr. Chakraborty to take instruction as to what would be the petitioner's marks if weightage is not granted in terms of clause 20 and if weightage is granted. Today, Mr. Chakraborty placed before us a computation sheet from which it appears that if weightage is granted then the petitioner would be entitled to 74.85 marks and if weightage is not granted, she would be entitled 45.53 marks. Let the written instruction, as placed, be kept on record.
From the provisional marks statements, as published, the highest marks that has been awarded is 72.84 marks and if weightage is granted then the petitioner would be entitled to
74.85 marks. Thus, if found eligible, the petitioner may come within the zone of consideration.
The main issue which would arise for consideration in the Original Application is whether in terms of clause 20 of the notification, the petitioner is at all eligible to participate in the selection process.
In view thereof, we direct that steps, if any, taken by the respondents during pendency of the Original Application shall abide by the result of the Original Application. The respondents would be at liberty to continue with the selection process and to give appointment in the two vacancies. However, in the appointment letter to the second candidate, the respondents shall incorporate a clause to the effect that 'this appointment is subject to the result of the Original Application being OA/351/00873/2023/AN'.
In our opinion, a protection to the above effect would not cause a greater loss and prejudice to the respondents than the loss and prejudice the absence thereof is likely to cause to the petitioner.
The order of refusal of interim order dated 7th July, 2023 is modified to the above extent.
The respondents are directed to file their reply to the Original Application within two weeks from date; rejoinder thereto, if any, be filed within a week thereafter. The period fixed above towards exchange of affidavits is peremptory. Upon exchange of affidavits, the parties would be at liberty to mention the matter before the learned Tribunal for expeditious disposal.
The writ petition being WP.CT/33/2023 is, accordingly, disposed of.
Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.
( Tapabrata Chakraborty, J. ) ( Raja Basu Chowdhury, J.)