JUDGMENT
1. Both the appeals have been preferred against a common judgment and order whereby and whereunder the learned Single Judge has set aside the appointment of one Sri Shyama Prosad Mandal who is the appellant in the appeal being M.A.T. No. 4751 of 2005 and the writ petitioner (respondent No. 1 in M.A.T. No. 4751 of 2005) viz. Smt. Sampa Ghosh was directed to be appointed by the learned Single Judge.
2. The writ petition was filed by Sampa challenging formation of the panel prepared on 29th June, 2005 for the purpose of appointment to the post of Clerk-cum-Typist under Mathurapur- I Panchayat Samity, District- 24-Parganas (South) and further to initiate fresh selection process involving the same set of candidates for the said post of Clerk-cum-Typist under Mathurapur-1 Panchayat Samiti. Therefore, the challenge was basically against formation of the panel. The learned Single Judge after hearing the parties and considering the materials placed before him found that the selection process, particularly the viva voce test was vitiated with mala fide and bias.
3. The fact of the case made out by the writ petitioner was that the writ petitioner was not initially called for the selection process, viz. for taking written test followed by viva voce as her name was not sponsored by the Employment Exchange. She came to this Court with writ petition and got an order enabling her to participate in the selection process. Written test was held amongst all the candidates followed by viva voce test. The writ petitioner was successful in the written test and it appears that Selection Committee after short listing the candidates, invited the writ petitioner as being a successful candidate to take part in the viva voce test.
4. The writ petitioner though in the writ petition has stated that there was irregularity and illegality in the syllabi of the written test, however, participated in the same and became successful. According to us, there cannot and could not be any grievance because despite the variation in the syllabi, she became successful. Moreover, it appears from the judgment and order of the learned Single Judge that legality and validity of the assessment of the written test of the writ petitioner was not seriously argued as there could not be any occasion to argue because the writ petitioner was successful. The entire focus was on the question of taking viva voce test of all the candidates before the Selection Committee.
5. The learned Counsel for the State appellant argued for three days and today was the date fixed for his further argument, but he could not be available today to advance argument. What he argued during the last three days is that the learned Single Judge should not have set aside the appointment holding that the entire selection process is bad. The learned Single Judge has no power to set aside the appointment, as simply he has no jurisdiction to do so.
6. We agree with this contention that the learned Single Judge has no power ordinarily to set aside the appointment or ask the department to appoint someone in a case like this. When the learned Single Judge found that the viva voce test was vitiated with mala fide and bias, he should have set aside the panel only which was formed taking into consideration of the performance of the candidates in the viva voce test.
7. The learned Counsel for the State appellant further contends that in this case there was no bias at all as the viva voce test was fixed in the chamber of the concerned S.D.O. The appointment was made by the. B.D.O. and all the candidates participated. Along with the other candidates, the respondent/writ petitioner Sampa also participated and having found herself unsuccessful, has challenged the selection process and she is estopped from doing so. She had taken a chance and her chance being unsuccessful, she has come up with this mala fide application. His further contention is that the learned Single Judge without assessing the correct state of affairs has unkindly held that the selection process is bad and appointment was made in hot haste. He submits that the viva voce test was held on 29th June, 2005 and the appointment was made on 30th June, 2005.
8. The letter issued by the B.D.O. as noted by the learned Single Judge was issued after the viva voce test was over and the appellant Shyama Prosad was given appointment on the following day. Actually, the letter issued by the B.D.O. for medical examination was sent after the selection process was over on the same day. Therefore, it is not correct to say that this letter was written in a premeditated manner or with a prejudged mind that the appellant Shyama Prosad would be appointed. Under such circumstances, this appointment should not have been cancelled nor the panel itself.
9. Mr. Majumdar appearing for the appellant Shyama Prosad submits that there is no serious challenge regarding the written test and he further contended that the judgment and order of the learned Single Judge is seriously flawed as while holding the selection process bad on the one hand, the learned Trial Judge has granted relief to the writ petitioner/respondent Sampa with a direction for her appointment basing on the same viva voce procedure. The learned Single Judge has exceeded his jurisdiction to that extent. If the findings of the learned Trial Judge is accepted to be the correct proposition of law and assessment of fact then right course of action should have been to allow the Panchayat Samiti to hold fresh viva vice test and not by way of giving appointment in favour of the writ petitioner/respondent Sampa.
10. The learned Counsel for the respondent/writ petitioner Sampa contends that the learned Trial Judge has granted appropriate relief by giving appointment in favour of his client as from the records it transpires that choice of Shyama Prosad in the selection process was vitiated with bias and mala fide. It is quite apparent that favouritism was there at large and that was showered in favour of Shyama Prosad alone and no one else. Learned Counsel for the respondent/writ petitioner further contends that the selection process to the extent of selection and choice of his client being the second successful candidate is justified and lawful. It is very difficult to swallow this piece of submission as when it has been found by the learned Trial Judge that the viva voce test was vitiated with mala fide and bias and it was done in hot haste, then no one can get the benefit of such an illegal thing.
11. We are totally in agreement with the findings of the learned Trial Judge that the interview was held with hot haste and with a predetermined mind that Shyama Prosad would be given appointment. It is very clear from the documents annexed to the affidavit-in-opposition, as correctly found by the learned Trial Judge that the date of interview was fixed on 29th June, 2005 and indeed on that date it was held and appointment was given on 1st July, 2005. It appears from a letter of the B.D.O. which was signed on 29th June, 2005, Shyama Prosad was asked to be examined by the medical officer as to his fitness. In the affidavit-in-opposition of the State appellant it has not been explained at what point of time the letter dated 29th June, 2005 was singed by the B.D.O.
12. From the documents we find that the interview had taken place at about 12 O’clock in the noon on 29th June, 2005. Ordinarily, even if it was proceeded with a speed, which is very unusual in our system, the decision for medical examination could not be taken unless the viva voce test was over and the panel was formed and the first candidate was chosen. In the affidavit-in-opposition of the State it has not also been explained as to the time of issuance of the letter for medical examination dated 29th June, 2005. In the grounds of memorandum of appeal the State appellant has not seriously challenged the aforesaid fact finding of the learned Trial Judge. So, we have no option but to accept such findings. We hold that the viva voce test was held with mala fide and predetermined mind, otherwise the B.D.O. would not have prepared and issued the letter and signed the letter of medical examination on 29th June, 2005 on the date of holding of interview itself.
13. We accordingly, approve the findings of the learned Single Judge but we cannot put ourselves in agreement with the relief granted by the learned Trial Judge. When the panel was found to be formed on the basis of a vitiated viva voce test, such panel cannot be accepted as a decision making process and consequently the appointment could not be granted based on the same.
14. We, therefore, set aside and cancel the panel formed. Naturally, the appointment in favour of Shyama Prosad is also cancelled as rightly done by the learned Trial Judge. But the direction for appointment in favour of the writ petitioner/respondent Sampa is not also approved by this Court. When the panel has been found to be an illegal one, Sampa cannot get advantage, being the second candidate, of the said vitiated panel. One cannot approbate and reprobate. While the panel has been challenged in order to get an order of cancellation of appointment on the one hand the Court cannot be asked to retain the panel for the appointment in her favour taking advantage of the provision of Rule. The provision of the Rule enabling the authority concerned to appoint the second candidate applies in a case when the panel is found otherwise valid and legal, but that is not the case here.
15. We, thus, have no option but to ask the department concerned to hold the viva voce test afresh and that will be confined to the candidates who were chosen as successful candidates in the written test and this shall be done this time by forming a lawful body of Selection Committee. We make it clear that absence of any of the members of the Selection Committee will render the selection process and assessment of the viva voce test illegal. This shall be done within a period of fortnight from the date of communication of this order and after issuing a letter for taking fresh viva voce test, giving at least seven clear days time to the candidates.
16. Now, the question is, what rules relating to constitution of Selection Committee is to be followed. In this case, there is a clear and positive finding against the B.D.O. who demonstrated his favouritism and biasness in favour of Shyama Prosad. Under the old rules, the S.D.O. and the B.D.O. must be the members of the Selection Committee and in their absence; no Selection Committee could be formed. In fact the B.D.O. has been described to be the Member-Secretary of the Selection Committee.
17. During pendency of this matter, we find that a new rules relating to formation of Selection Committee has been enacted on 6th January, 2006 whereby and whereunder the following officials are to form the Selection Committee for taking viva voce test:
(1) Executive Officer, Zilla Parishad/Mahakuma Parishad – Chairman, (2) District Panchayats and Rural Development Officer – Member-Secretary, (3) Adhyaksha of District Council/Mahakuma Parishad – Member, (4) One Karmadhyaksha or Member of the Zilla Parishad/Mahakuma Parishad belong to SC/ST Community to be nominated by the Sabhadhipati of Zilla Parishad/Mahakuma Parishad -Member, (5) One Karmadhyaksha of the Zilla Parishad/Mahakuma Parishad to be nominated by the Sahbhadhipati of Zilla Parishad/Mahakuma Parishad-Member, (6) One S.D.O. of the District to be nominated by the concerned District Magistrate – Member, (7) Secretary of the concerned Zilla Parishad/Mahakuma Parishad – Member.
18. By another order dated 18th January, 2006 it has been made clear by the Government that the recruitment process against the posts in the establishment of Gram Panchayats, Panchayat Samitis and Zilla Parishads which was started by the previous Recruitment Committee shall be entrusted to this newly constituted District Level Selection Committee for completion of remaining process of Recruitment. It has been further clarified that the previous recruitment Committee shall, therefore, hand over the relevant documents in respect of the recruitment process conducted by them to the newly constituted District Level Selection Committee for completion of the process forthwith.
19. It is again made clear in the last paragraph of the said order as follows:
If the written test was conducted by the previous Recruitment Committee, the remaining part of recruitment process viz. oral test etc. will be completed by the newly constituted District Level Selection Committee.
20. Therefore, it is evident that viva voce test in this case can very well be held by the aforesaid newly constituted Selection Committee. We, therefore, direct the Panchayat Samiti to arrange for the viva voce test of those candidates, as observed earlier, constituting the new Selection Committee and not by the Committee as was formed under the old rules.
21. Both the appeals are, thus, disposed of. There will be no order as to costs.