KAMALAKSHA GANGOPADHYAY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Assailing the order 7th July, 2009 passed in O.A. No. 2543 of 2006 by West Bengal Administrative Tribunal, this writ application has been filed. Selection made by the West Bengal Public Service Commission for recruitment to the post of Principal, Government College of Art & Craft and subsequent action of the State of West Bengal appointing the writ petitioner, who was a lecturer in the field of Commercial Art of that College at that time, to the post of Principal, Government Art & Craft College. Kolkata, became the subject matter of challenge before the learned Tribunal in the original application filed by Monoj Kumar Sarkar, the respondent No. 4 of this writ application, who at the material time was acting as Principal-in-Charge, Government Art & Craft College, Kolkata. In the original application selection of writ petitioner was assailed on the grounds of non-fulfillment of essential qualification by the present writ petitioner, Sri Kamalaksha Gangopadhyay, namely, Artist in the field of Fine Arts, adequate administrative experience, teaching experience, the age bar parameters and on bias attitude of one of the members of the selection committee who acted as adviser in selection process and who was erstwhile Principal of the said College, in favour the writ petitioner, and merit of writ petitioner to hold the post of Principal by making comparative analysis of applicant's superior merit than writ petitioner satisfying all essential qualifications in terms of recruitment rule including the desirable qualifications prescribed under the said rule. Parties exchanged their respective affidavits before the learned tribunal below. Learned tribunal allowed original application on holding lack of sufficient administrative experience by writ petitioner, the first empanelled candidate, who was recommended by Public Service Commission, the bias attitude in favour of writ petitioner by one of the members of the selection committee who was erstwhile Principal of the said College and on major point of non-mentioning of desirable qualification in the vacancy advertisement, made by the Public Service Commission, though under the recruitment rule desirable qualification is specifically identified as a qualification for the said post. The present writ petitioner whose selection and appointment was under challenge, admittedly was holding the post of lecturer in Graphic design, a post in Commercial Art and not in fine Arts group, in the said College at the material time. His teaching experience and work field were dealt with adversely by the learned tribunal by a lengthy discussion of the issue on taking note of recruitment rules namely recruitment rules regulating the recruitment to the post of Principal of said college which is in the West Bengal Senior Educational Service, framed by the Hon'ble Governor in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, hereinafter for brevity, referred to as 'recruitment rule', the advertisement issued by Public Service Commission being advertisement No. 4/2005 inviting applications from the eligible candidates of fine Arts field and desirable qualification which is specified in qualification head for the said post in the said recruitment rule. This point that in the vacancy advertisement issued by the Public Service Commission, West Bengal, the desirable qualification was not mentioned and was omitted intentionally, was not pleaded by the applicant of original application, but subsequently at the time of hearing and argument, as it appears from the Judgement of learned Tribunal below, this point was answered by respective parties and Tribunal dealt with that point which became the major decision making point to reach the impugned order passed by the learned Tribunal. The impugned order reads such:

(2.) This writ application has been filed assailing said order of the learned tribunal below on many grounds namely (I) in the original application since non-publication of desirable qualification by the Public Service Commission in the advertisement was not pleaded learned Tribunal travelled beyond pleading, (ii) Experts (Advisors) in the field when selected the writ petitioner and when no objection was raised about constitution of the Expert (Advisory) Committee but acceptance of the same by appearance, the respondent No. 4 waived his right to challenge selection made (ill) an un-successful candidate cannot assail the selection process applying the principle of estoppel and waiver (iv) no pleading that any prejudice suffered by any of the candidates for the said post due to non-publication of desirable qualification in the advertisement, hence omission to publish it was not so fatal breach to quash the entire selection process directing de-novo selection after proper advertisement.

(3.) Affidavit-in-opposition of the writ application was filed by respective parties namely, the respondent No. 4, the original applicant of the Tribunal application and by the Public Service Commission and affidavit-in-reply was filed by the writ petitioner. This Court directed production of records by the Public Service Commission and in terms of direction records relating to selection process was produced.