RIMA SANTRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Heard learned advocates for the parties.

(2.) In this writ application, the petitioner has challenged the panel dated 30.7.97 relating to the post of Assistant Teacher in Philosophy of the concerned school. It is contended by the petitioner that since the petitioner was qualified with M.A. degree and a training qualification B.Ed., the petitioner got higher marks for academic qualification qua marks for academic qualification as allotted in favour of the respondent No. 7, who has no training qualification B.Ed. It is submitted that since the petitioner got higher marks in academic qualification in comparison to the respondent No. 7, the authorities concerned, that is the selection committee illegally allotted more marks for oral interview and class demonstration to cover the difference of marking in academic qualification in which the petitioner's position was higher. It is further contended that the appointment of the respondent No. 7 was not valid as such appointment was given on a holiday, that is Sunday and there was no scope of joining of respondent No. 7. In a nutshell it is the grievance of the petitioner against allotment of marks by the selection committee with reference to oral interview and class demonstration. This writ application has been opposed by filing affidavit by respondent No. 7, the first empaneled candidate who is working in the school in question as well as the Managing Committee of the school. As per direction of this Court, the District Inspector of Schools concerned has placed the records, namely, the score sheets. On perusal of the score sheets, it appears that the petitioner secured 38.31 marks for academic qualification, whereas the respondent No. 7 got 32.16 marks. Hence, there was a difference of 6.15 marks so far as the academic qualification is concerned. Upto this point, the petitioner is right in her case that she got higher marks in academic qualification. From the records, it further appears that in the oral interview and class demonstration wherein 10 marks were allotted in total, the respondent No. 7 secured 9.6 marks, whereas the petitioner got 2.7 marks, Herein also, the petitioner's contention that in oral interview and class demonstration higher marks were allotted to the respondent No. 7 is also satisfied. From the records it further appears that the petitioner could not be successful to remain in the panel. 3 candidates who are empaneled in the selection process got higher marks than the petitioner in total. Hence, the only question is whether marks allotted in favour of the respondent No. 7 in oral interview and class demonstration could be said by this Court as illegal and arbitrary action. Another question is whether this Court would be able to decide the matter sitting in the writ jurisdiction where subjective satisfaction of the merits of the respective candidates were adjudged and thereby marks were allotted by the valid selection committee and expert body. It is settled legal position now that when a selection is made on subjective satisfaction of the merits of the candidates, and more particularly marks are allotted in the oral interview the same cannot be the subject matter of challenge in a writ proceeding. Since the writ Court has no material before it to judge the matter, as the writ Court was not present when the interview was held, it is the selection committee who on the basis class demonstration and oral interview when considered a candidate better in comparison to another, their findings cannot be disturbed by the writ Court, as the writ Court neither has any expertise nor there is any scope to adjudicate the matter as it relates to the subjective satisfaction of the selection committee in respect of oral interview. Had it been a case of written test and allotment of marks, surely there was scope for verification of the necessary papers by another body. Once the selection committee has already selected a candidate by allotting marks, and when allotment of marks by which the petitioner could not be placed in the panel relates to class demonstration and oral interview, the writ Court cannot pass any decision by quashing the impugned decision as reached by the selection committee. Reliance in this connection may be placed to the judgment in the case of Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Union of India reported in 1993 supple Vol. 4 SCC 441 wherein the Apex Court held that Court would not venture to assess the merit or apprise it. In the writ application, the petitioner has not made all the members of the selection committee as parties. Selection was made by the members of the selection committee who were 5 in numbers. The grievance of the petitioner that the selection committee allotted more marks in oral interview is in fact a grievance relating to malafide and biased attitude of the members of the selection committee. Once any allegation is made to this effect relating to the members of the selection committee those members are required to be parties in the proceedings so that they may get an opportunity to oppose the same so far as malafide action as alleged. In absence of them, the Court cannot decide the question of malafide as the same would be violative of the principles of natural justice. It is true that the petitioner has made the selection committee as a party, but so far as the case of malafide and bias is concerned, a body corporate cannot represent the individual members. Malafide always relates to personal action and reaction of the individual concerned. Hence in case of malafide and bias attitude, individual persons who are members of a body corporate are required to be made parties, otherwise the Court cannot interfere in such a situation. It has already been decided by the Apex Court in the case of Dr. J.N. Bhanavalikar v. Municipal Corporation of Delhi & Anr., reported in 1995 supple, Vol 4 SCC 89 as well as in the case of J.K. Misra v. Union of India, reported in (1997)6 SCC 228 that against whom malafide is alleged, they must be impleaded as parties. Further, on the question of malafide, it has been settled law by different judgments of the Apex Court that a positive foundation must be there in the pleading and that too with reference to the individual persons concerned, making them as parties so that question of malafide can be adjudicated. It has been held by the Apex Court that no interference could be drawn with reference to the allegation of malafide on the basis of insinuation and vague suggestion. Reliance may be placed to the case of State of Madhya Pradesh & Ors. v. Nandlal Jaiswal & Ors., reported in (1986)4 SCC 566 (paragraph 39) and the judgment in the case of Rajendra Roy v. Union of India, reported in (1993)1 SCC 148. Hence, having regard to the legal position this Court also cannot consider the question of malafide by the members of the selection committee as now urged on behalf of the petitioner. Selection committee members are not parties at all and there was no basic foundation with as sufficient pleadings relating to malafide action by them or alleging such action by name against the respective members of the selection committee. Furthermore, in respect of a decision of any expert body, the Court will not interfere unless the malafide action and bias attitude is alleged with specific allegation. Reliance may be placed to the judgment in the case of Nilima Misra v. Harinder Kaur Paintal & Ors., reported in (1990)2 SCC 746. For the interest of the school, it is the expert body who will judge the merit of the candidates concerned. Once the selection committee considered the same and prepared the panel, the decision of such academic body should not be interfered with by the Court. Reliance may be placed to the decision in the case of the Chancellor & Anr. v. Dr. Bijayananda Kar & Ors., reported in (1994)1 SCC 169. It has been further held by the Apex Court in Dalpat Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan & Ors., reported in (1990)1 SCC 305 that Court would not substitute the relative merits of the candidates. Having regard to the settled law in this field, I am afraid to interfere with the decision as made by the selection committee. So far as the point alleged by the petitioner that on a holiday, the respondent No. 7 joined in the post in question, and accordingly his appointment is illegal and that violated the order of status quo as passed by this Court is now not at all tenable by applying the doctrine of res judicata. In the appeal preferred by the respondent No. 7 challenging the order dated 2.2.2000 passed in this writ application, the Appeal Court in M.A.T. No. 421 of 2000 held:

(3.) Once there is an order regarding appointment by holding that Kakali's appointment was proper, by the Division Bench of this Court, this point cannot be reagitated further at the hearing of the writ application by applying the aforesaid principle of resjudicata. Hence, having regard to all the legal positions, I am not inclined to interfere with the impugned decision in the writ application. Accordingly, this writ application stands dismissed, but without any order as to costs. Urgent xerox certified copy of the order, if applied for, be supplied expeditiously. Application dismissed