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Judgment
The petitioner is aggrieved that his candidature for the post of Fishery Field Assistant has been rejected.
The petitioner is a 65% hearing-impaired candidate. The petitioner had participated in the recruitment process initiated by Advertisement No. 10 of 2023 by the Public Service Commission, West Bengal, on 27.09.2023.
Mr. Chowdhury, learned Advocate appearing for the petitioner, has made the following submissions in support of his case:
a)The petitioner is entitled to the recruitment as there were two posts (PwBD-UR) reserved for hearing-impaired and low vision/vision-impaired candidates.
b)Of these two vacancies which were advertised, only one has been filled up by a candidate who is visually impaired.
c)The other vacant post continues to remain vacant as there was no other suitable person found for appointment to such post.
d)The petitioner had successfully cleared the screening test and had appeared for the interview.
e)In the interview, the petitioner had obtained 25 marks out of 100, which is 25%.
f)The petitioner ought to have been appointed as the post remains vacant.
g)The Commission had the liberty of further relaxing the qualifying marks if a sizable number of posts in the reserved category remain unfilled.
h)Since one of the two posts remains unfilled, 50% of the vacancies remain, on account whereof the Commission ought to have exercised this liberty and recruited the petitioner to the vacant post.
Mr. Choudhury, places reliance on the decision of the Hon’ble Supreme Court of India reported in (2000) 1 SCC 81 (Haridas Parsedia Vs. Urmila Shakya & Ors.), particularly paragraph 18.
In view of the afore-stated, the petitioner claims entitlement to be appointed and recruited for the post of Fishery Field Assistant.
Ms. Piyali Sengupta, learned Advocate appearing for the Public Service Commission, has made the following points:
a)The cut-off/qualifying mark for the interview is 30%, and anything below that is a disqualifying mark.
b)The petitioner, having obtained 25%, is not per se qualified or entitled to be appointed, even if there is a vacant post.
c)The Commission did not find any cogent reason to lower the qualifying marks for the petitioner and thereby secure his appointment.
d)The same has also been reflected in the report filed by the Commission, which is taken on record.
I have heard the learned Advocates for the parties and considered the documents and the decisions relied upon by them.
The first and foremost issue is whether the petitioner has a right which he can enforce by way of this writ-petition.
It is not in dispute that the petitioner secured 25 marks, which is 25%. This is below the qualifying mark of 30%. Hence, on a bare perusal of the terms and conditions of Advertisement No. 10 of 2023, the petitioner is not qualified.
The petitioner seeks to draw a right from a discretion which has been given to the Commission in the said advertisement. This discretion is set forth hereunder:
“The Commission will, however, have the liberty of further relaxing the qualifying marks, if sizable numbers of posts in reserved category remain unfilled.”
Clearly, the Commission has the liberty, which implies that it may opt to relax the qualifying mark/score on a particular condition. This particular condition being the sizable vacancy in the post continuing after the appointment.
Thus, even if there is a sizable vacancy, the Commission is bestowed with mere discretion on whether it will relax the qualifying mark or not. This discretion does not fructify into a right in favor of a candidate who is otherwise unsuccessful.
Had the discretion been exercised by the Commission in favor of another person in the same category, it could tantamount to discrimination (at best) against the petitioner.
However, it has been admitted by the appearing parties that there has been no such discretion exercised discriminatorily against the petitioner.
It has, however, been argued, though there is nothing on record to support the same, that a similar relaxation has been given to candidates of a different category (Sports Quota) in which the Commission has relaxed the qualifying mark. The particulars of such relaxation and as to under what circumstances and on what parameters such relaxation was made, is not before this Court. There is no person from the Sports Quota challenging such relaxation either on the ground of arbitrariness or discrimination.
The petitioner, being in the unreserved category for hearing-impaired and low-vision candidates, cannot seek parity with a discretion which has been exercised by the Commission in another category.
In so far as the decision of the Hon'ble Supreme Court of India relied upon by the petitioner is concerned, the dictum there is clear and unequivocal. It merely spells out the manner in which a liberty that has been granted can be exercised. This liberty has to be exercised by way of a general administrative order or a special administrative order, which has been clarified therein. It does not say that if a discretion has been given to an authority, the authority has to exercise such discretion. If it had to exercise it and was forced to, it would not remain a discretion anymore.
A liberty is quite different from an act which has to be mandatorily performed by an authority.
It is true that the post will remain vacant. However, merely because a post will remain vacant will not bestow any right on the petitioner to claim appointment to the same, even if he has not fulfilled the benchmark criteria set forth in the advertisement.
The petitioner has failed to establish any right to be appointed to the vacant post since he has not obtained the benchmark qualifying mark in the interview.
In the circumstances aforesaid, I do not find that any right of the petitioner has been violated or breached by any act of commission or omission on the part of respondent nos. 3 & 4.
In view of the aforesaid, the writ-petition fails and WPA/15605/2026 is accordingly dismissed. No order as to costs.
Urgent Photostat Certified Copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.