Biplab Ghosh vs The State Of West Bengal & Ors.

The Petitioner was the applicant before the West Bengal Administrative Tribunal (‘Tribunal’ for short) in O.A. No.398 of 2023. The Original Application was filed seeking quashing of the panel list of selected candidates in the recruitment process for appointment of fire operators in the West Bengal Fire Services.

The petitioner’s name did not figure in the panel list. The petitioner thus, sought relief in the form of direction upon the respondent authority to declare the petitioner eligible as an OBC-B Candidate for the post of Fire Operator, based on a certificate in support of such claim being obtained and submitted belatedly.

The Tribunal found no merit in the petitioner’s claim and accordingly disposed of the original application without passing any orders. The OA No.398 of 2023 filed by the writ petitioner was disposed of by the Tribunal by an order dated 13.08.2024. The same is put to challenge in the present writ petition.

One Advertisement No.15 of 2018 was published by the Public Service Commission, West Bengal (‘PSC’ for short) inviting applications in the prescribed format from candidates desirous of participating in the recruitment process for recruitment of Fire Operator in the West Bengal Fire Services, subject to fulfilment of the eligibility criteria specified therein.

The recruitment process comprised of a written examination, Physical Measurement Test, Endurance Test and Personality Test to be conducted by the Commission. The candidates who qualified in the written examination were to be called for the physical measurement test. Candidates successful in the physical measurement test were to appear in the endurance test, and those who qualified the endurance test were to be called for the personality test.

Clause-9 of the Advertisement specified that candidates must fulfil the essential qualifications by the closing date. Clause-7(C) of the Advertisement stipulated that SC, ST, OBC or persons with disability and the certificates, to be relied upon by the candidates “must be obtained within the closing date of receipt of applications and no claim in this regard will be entertained afterwards”.

The petitioner applied as an OBC-B candidate for consideration in the recruitment process. He successfully participated in the earlier stages of the recruitment to reach the stage of interview, which was scheduled on 15.01.2021. The petitioner appeared for the interview. Prior to the interview his documents were verified when it was discovered that his OBC-B certificate was issued on 29.03.2019, though the closing date for submission of applications was 03.07.2018.

In the meantime, and after the physical measurement/endurance test, a list of 5375 candidates was published without disclosing marks obtained by such candidates and also without declaring any cut-of-marks. Thereafter, a final list was published by the PSC. Since the result did not contain individual marks obtained by the candidates, some candidates aggrieved by the final list filed an Original Application before the Tribunal. Various other allegations were raised by the candidates, including an allegation that candidates who applied as general category were shown selected in the merit list under the reserved category. The Tribunal passed various orders in the original application (O.A. No.170 of 2021).

The Tribunal finally directed the PSC to disclose the individual marks of the candidates and publish the fresh list including the OMR Sheet to ascertain whether there was any discrepancy, illegality, lack of transparency and fairness in the recruitment process. The Tribunal’s orders were complied. The Tribunal ultimately dismissed the OA No.170 of 2021, by a judgment and order dated 28.02.2022.

The order of the Tribunal was put to challenge by those candidates in W.P.S.T No. 44 of 2022. The writ petitioners therein made several allegations against the beneficiaries of the recruitment process, including submission of certificate issued after the last date for submission of application forms, in support of reservation. After considering the entire issue the Co-ordinate Bench passed directions in order dated 23.12.2022 passed in WPST 44 of 2022.:

Accordingly, a provisional merit list dated 03.03.2023 was published wherein the petitioner was considered as an unreserved (UR) candidate since he did not submit OBC-B Non-Creamy Layer (NCL) certificate issued before the date of closure for submission of applications as contemplated under the Advertisement No.15/18. The petitioner’s name figured in the provisional merit list at serial no. 178. There was a remark against the petitioner’s name in the following terms:

From the provisional merit list, it is apparent that the petitioner secured 64.67 marks in the grand total. While publishing the provisional merit list the PSC invited objections in respect of the provisional merit list from the candidates. Objections were received from various candidates. The Commission’s decision on the objections was uploaded on the website of the Commission on 06.04.2023 vide Memo No.170 PSC (Selection).

It is relevant to mention here that despite the remark recorded against his name in the provisional merit list dated 03.03.2023 that he was being considered as an unreserved candidate because the OBC-B Certificate submitted by him was issued after the closing date of advertisement, the writ petitioner did not submit any objection.

The final list of selected candidates was also notified on 06.04.2023.

Thereafter, the writ petitioner filed the original application. He sought quashing of the final list dated 06.04.2023 and direction for treating his candidature as an OBC-B candidate on the basis of OBC-B (NCL) certificate issued after the closing date of applications. The Tribunal did not entertain the petitioner’s plea.

It is submitted by the learned Advocate for the applicant/writ petitioner that the OBC-B (NCL) certificate dated 29.03.2019 was issued prior to the date of physical efficiency test and the interview. The certificate merely certified an existing fact regarding the petitioner being a member of the OBC-B category. The certificate did not confer the reservation category claimed by the writ petitioner, but merely corroborated such fact regarding petitioner’s eligibility as an OBC-B category candidate. The certificate was of a date prior to publication of the provisional merit list, therefore, there was no scope for the PSC to ignore the same, and deprive the petitioner benefit of reservation as an OBC-B category candidate.

In this connection learned advocate for the writ petitioner relied upon the decision of the Hon’ble Supreme Court of India in the case of Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board & Anr., reported in (2016) 4 SCC 754. He submits that the Apex Court in the said judgment rendered after considering various earlier judgments of the Hon’ble Apex Court held that the OBC candidate petitioner therein were entitled to submit the OBC certificate before the provisional selection list was published, to claim a benefit of reservation of OBC category.

He submits that the issue settled by the Apex Court in the case of Ram Kumar Gijroya (supra) was subsequently referred to a larger bench by the judgment of the Hon’ble Supreme Court of India in the Case of Karan Singh Yadav vs. Government of NCT of Delhi & Ors., reported in (2024) 2 SCC 716. Despite reference to a larger bench the judgement in the case of Ram Kumar Gijroya (supra) holds the field as till date the judgment was not interfered with, nor is there any stay. Decision in the case of Ram Kumar Gijroya (supra) is binding on this court. In support of such submission he placed reliance on a decision of the Hon’ble Supreme Court of India in the case of Ranjnish Kumar Rai. Vs. Union of India & Ors. Reported in (2023) 14 SCC 782. He therefore, submits that the OBC-B (NCL) certificate submitted by the petitioner, though issued after the cut off date, but before publication of provisional merit list, was required to be considered in support of the petitioner’s claim as an OBC-B (reserved category) candidate. The petitioner’s OBC status existed independent of the date of issuance of the certificate. This status (OBC-B) was required to be considered; and the petitioner could not have been treated as an unreserved category candidate.

Learned Advocate for the Commission, on the other hand submits that the law as regards eligibility of a candidate for the purpose of a recruitment process, by now stands settled. The eligibility is required to be considered with reference to the last date for submission of applications stated in the advertisement. In this connection she relied upon the decision of the Apex Court in the case of Dr. M.V Nair vs. Union of India & Ors. reported in (1993) 2 SCC 429. The judgment of the Apex Court states the law that suitability and eligibility have to be considered with reference to the last date for receiving application, unless, of course, the advertisement itself specified another date.

In the present case Clause 7 (c) read with Clause 9 of the Advertisement No.15 of 2018 leaves no ambiguity in this regard. The requirement of eligibility, and certificate/s in support of eligibility prior to the closing date for submission of application was explicit in the advertisement. Since the petitioner’s OBC-B (NCL) certificate is much after the closing date for submission of applications, the PSC rightly did not consider the petitioner to be an OBC-B (NCL) Category candidate.

It is further submitted that the provisional merit list dated 03.03.2023 was published by the Commission in compliance with orders passed by the co-ordinate bench in WPST 44 of 2022. The judgment of the Co-ordinate Bench contained a specific direction that the list was to be published after scrutinizing the certificates to ensure that certificates are in conformity with the condition of the advertisement, i.e., issued by a competent authority on or before the closing date for submission of online applications i.e., 03.07.2018. The provisional merit list was accordingly published, inviting objections from the participating candidates. The opportunity was thus given to all, including the petitioner to submit his objection. However, the petitioner chose not to avail of such opportunity to raise an issue regarding remarks against his serial no.178 in the provisional merit list which excluded his OBC-B Certificate issued after the closing date of advertisement, and treated him as an unreserved category candidate. The petitioner chose not to make any objection in this regard. Thus, the Commission issued the final list of selected candidates on 06.04.2023. The petitioner therefore, is estopped from challenging the final list of selected candidates dated 06.04.2023.

It is further submitted by the learned Advocate for the Commission that after publication of the list of selected candidates on 06.04.2023, 1442 (one thousand four hundred and forty two) candidates were declared successful. Appointment letters were issued to 1417 (one thousand four hundred and seventeen) candidates, out of which 1343 (one thousand four hundred and forty three) candidates joined the post of fire operator. The police verification report in respect of 16 (sixteen) candidates is yet to be received from the concerned police authority. The recruitment process therefore has attained finality and several 3^rd party rights have accrued in the meantime. Therefore, the respondents relied upon an order dated 28.09.2022 passed by a three judge bench of the Hon’ble Supreme Court of India, finally disposing of the case of Karan Singh Yadav vs. Govt of NCT of Delhi & Ors. in SLP (C) 14948 of 2016.

It is submitted that Three Judge Bench took note of the length of time after cancellation of the petitioners’ candidature to conclude that it was not possible to grant any substantial relief to the appellant therein. A similar circumstance arises in the present case. In fact, in the present case apart from lapse of considerable length of time after rejection of the petitioner’s candidature in the provisional list dated 03.03.2023, another vital fact is that the petitioner chose not to seek any remedy against judgment dated 23.12.2022 passed by a Co-ordinate Bench in WPST No. 44 of 2022; nor did he avail the opportunity of filing objections and thus acquiesced to the situation. Thereafter, large number of 3^rd party rights of accrued. Therefore, the petitioner cannot be granted any relief.

We have considered the rival submissions of the parties, the citations relied upon, and also perused the record.

There is no dispute that the advertisement contemplated submission of the certificate before the last date for applications; that the petitioner’s OBC-B (NCL) certificate was issued after the cut-off date for application, but before the date fixed for PET. There is also no dispute that submission of the certificate thus was in contravention of the condition of the advertisement explicit from clause 7 (c) and clause 9 of the advertisement. Despite such circumstances whether the petitioner is in a position to place reliance on decision of the Apex Court in the case of Ram Kumar Gijroya (supra) and Ranjnish Kumar Rai (supra), is an issue required to be considered with reference to the facts and circumstances of the present case.

The present case, does not involve only limited issue regarding submission of OBC certificate, issued after the last date for submission of applications; and before the publication of the provisional list.

In the present case several candidates alleged large scale illegality in the recruitment process by filing OA NO.170 of 2021 and writ petition bearing no. WPST 44 of 2022. The co-ordinate Bench of this court, considering the grievance raised by the writ petitioner’s therein directed a scrutiny to ensure that certificate submitted in support of the claim of reservation was issued by a competent authority, on or before the closing date for submission of online applications i.e., 03.07.2018. As a result of such a scrutiny conducted pursuant to direction issued by the co-ordinate bench the provisional list dated 03.03.2023 was published wherein the petitioner’s name was figuring at serial no.178 with a remark, extracted above that since his certificate was issued after the closing date of advertisement he was being considered as a general (unreserved category) candidate.

The petitioner was therefore, denied consideration of his certificate by the provisional list dated 03.03.2023 published in compliance with the decision of the Co-ordinate Bench in WPST 44 of 2022. Petitioner did not avail any remedy in respect of the directions contained in the judgment dated 23.12.2022 passed by the Co-ordinate Bench in WPST No.44 of 2022. Simultaneous to publications of provisional list in compliance thereof, objections were also invited from candidates, which opportunity also the petitioner chose not to avail. The issue of his candidature being considered as an unreserved candidate in the provisional list dated 03.03.2023, thus attained finality. Accordingly, the petitioner was considered as an unreserved category candidate at the time of issuance of the final list of selected candidates.

If at all the petitioner was aggrieved by exclusion of the OBC-B (NCL) certificate relied upon by him, he was required to submit his objection against the same after publication of the provisional list on 03.03.2023, wherein he was denied benefit of his OBC-B (NCL) certificate. Having failed to do so and having failed to seek any remedy in respect of the judgment dated 23.12.2022 passed in WPST 44 of 2022 there is no scope for the petitioner to assail the consequential final list dated 06.04.2023 before the Tribunal, or before this co-ordinate Bench.

There is also another aspect of the matter that in absence of challenge to the base order being the provisional list, wherein the PSC held the OBC certificate issued after the closing date to be inadmissible, there was also no scope for the petitioner to challenge the consequential final list of selected candidates dated 06.04.2023. In support of our such conclusion we are fortified by a decision of the Hon’ble Supreme Court of India in the case of Amarjeet Singh & Ors vs. Devi Ratan & Ors. reported in (2010) 1 SCC 417 and another decision of the Apex Court in the case of Edukanti Kistamma & Ors. Vs. Venkaareddy & Ors. reported in 2010 (1) SCC 756.

Another vital fact and circumstance arising for consideration in the present case is accrual of 3^rd party interest of a large number of the competing candidates who were declared successful after a thorough scrutiny conducted pursuant to directions in WPST 44 of 2022. Appointment letters were already issued to them.

In view of such development which were not objected to, or challenged by the petitioner, the relief claimed in O.A for quashing of the final list of selected candidates, if allowed would lead to grave prejudice to the vested 3^rd party rights of nearly 1400 candidates, who have since been appointed in the same recruitment process. We therefore find force in reliance placed by the learned advocate for the respondent on final order dated 28.09.2022 passed in the case of Karan Singh Yadav (supra). The present writ petitioner therefore, in our opinion is not in a position to seek relief of quashing of the final list of selected candidates dated 06.04.2023.

The decision of the Co-ordinate Bench, relying on which the provisional list dated 03.03.2023 and final list of selected candidates dated 06.04.2023 was published is binding on this court. The concept of binding precedents of a decision of a co-ordinate bench therefore, does not permit this court to grant a relief, the effect of which would be to sit in appeal over the decision of the coordinate bench in WPST 44 of 2022.

Such a course is not open to this court. In this connection our conclusion is fortified by a decision of the Hon’ble Supreme Court of India in the case of State Through Central Bureau of Investigation vs. Hemendhra Reddy & Anr., reported in (2023) 16 SCC 779 where the Hon’ble Apex Court reiterated the settled legal proposition regarding judgment of a Co-ordinate Bench being binding on the other bench. The Apex Court in that case was considering this aspect of the matter where the Co-ordinate Bench of the High Court virtually sat in appeal over the judgment of another Co-ordinate Bench and took a contrary view. We consider it profitable to reproduce paragraph 89 of the Judgment:

The decision of the tribunal impugned in the present petition, therefore, requires no interference in exercise of extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India in favour of the writ petitioner.

The appeal is dismissed.

Urgent certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities.

I agree.