Assistant Teacher Recruitment: Calcutta HC Slams State For Unilaterally Reducing Aspirant's Original Score, Orders Appointment With Retrospective Benefits

Brief Facts of the Case

The writ petitioner as an intending candidate applied for the Post of Assistant Teacher in Bengali (Pass), pursuant to the Notification issued by the respondent authority. However, the petitioner did not receive any call for interview or the personality test.

After one year to the examination, the petitioner sought informations regarding the marks awarded to the petitioner in subject test (Section B) along with the concerned answer scripts and the marks of the candidate who obtained least marks of the candidate, who was called for personality test. After being denied such information before finalization of the merit list, the petitioner again sought for the information after the completion of the selection process.

It was found that the petitioner had secured 16 marks in academic and 39 marks in the subject test aggregating to 55 marks, whereas the last candidate with the lowest marks who was called for the personality test secured 56 marks in aggregate. Upon collecting the photocopies of the answer scripts, it was observed that the original marks obtained by the Petitioner in each question was scrolled through or over written and was changed or reduced to a lesser number without any comment, initial or signature of the examiner concerned. The entries on the top sheet had also been reduced and altered likewise and thus, reducing the total marks in subject test to 39 out of 60 from the original 43 out of 60.

Being aggrieved by such state action, the Petitioner filed the instant Writ Petition.

Submission of the Counsels

The counsel for the petitioner submitted that such scrolling through or over writing in order to change marks of an applicant was not permissible as per law West Bengal Central School Service Commission (Selection of person for Appointment to the Post of Teacher) Rules, 2007 or the West Bengal School Service Commission Act, 1997.

The State submitted that checking of marks of each answer and its positing on the top sheet was done by the scrutinizer and he or she was authorized to make correction for any over marking and under marking to any answer, if so required. It was also submitted that the signature of the scrutineer was clearly visible on the top sheet of the answer script.

Decision of the Court

At the outset, the Court observed that in most of the answers the original marks secured by the petitioner were scrolled through and were reduced and no comment, signature or initial of the examiner concerned was available. Thus, there was a possibility that scrolling out of the original number was done after the signatures of the evaluator or examiner and the scrutineer were put in on the top sheet filled up with the original numbers.

The Court also took note of State's conduct in avoiding the RTI applications filed by the Petitioner seeking necessary information and production of the answer scripts. While condemning such state action the Court noted that such actions gave rise to a reasonable apprehension and doubt, to the mind of the court, as to the bona fide exercise of discretion by the Respondent parties.

Referring to the fundamental right of freedom to practice any profession, or to carry on any occupation, trade or business, the Court noted:

"Slightest illegality, unfairness, mala fide and arbitrary exercise of its authority by the State should be construed to be as an intolerable Act on the part of the State, if it infringes a fundamental right of a citizen. The primary duty of a constitutional court exercising power and jurisdiction under article 226 of the Constitution of India is to correct any error or illegality or mala fide and any arbitrary act committed by the state authority and in such regard it can be safely be said that, the constitutional court does so in exercise of its overwhelming plenary powers."

The bench reiterated that a Constitutional Court, in the exercise of its high prerogative writ jurisdiction, can and should intervene in a prudent manner whenever and wherever an illegal, or arbitrary exercise of power and discretion by the State authority is discovered, without overstepping any statutory framework duly framed under the law. While relying on A.P. State Financial Corporation vs M/s Gar Re-Rolling Mills and Anr., the Court held

"The reliefs granted by a constitutional court in exercise of its high prerogative writ jurisdiction under Article 226 of the constitution is equitable in nature. The writ court shall exercise such equitable jurisdiction judiciously, to afford complete justice to the parties."

The Court observed their is obvious absence of provision conferring power to review or re-examination or over-marking or under-marking of the answer script of a candidate, by an evaluator/examiner or a scrutineer. Such power being substantive in nature, it needs to be expressly created in relevant acts or rules. In absence of such express provision, such substantive power cannot be inferred. Hence, the resolution for re-evaluation was set aside as being ultra-vires to the relevant statutes. The alterations of original numbers in the answer script were also set aside and quashed and consequently stood reversed to its original numbers for being legally unsustainable.

Case Title : Ujjal Mandal Vs. The State of West Bengal & Ors.

Citation: 2022 LiveLaw (Cal) 281 

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