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Mahboobur Rahman Vs. Public Service Commission, West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 45 (W) of 1970
Judge
Reported inAIR1972Cal348
ActsConstitution of India - Article 226
AppellantMahboobur Rahman
RespondentPublic Service Commission, West Bengal and ors.
Appellant AdvocateSyed Ataunnabi, Adv.
Respondent AdvocateP.K. Sengupta and ;Pabitra Kumar Basu, Advs.
DispositionApplication dismissed
Excerpt:
- .....or that it was above the law in any manner. under the existing constitution, our country is ruled by rule of law which affords no sanction for exercise of arbitrary powers by authorities set up thereunder. if the commission fails to act bona fide or if it acts arbitrarily -- as was the ex parte allegation on the writ petition -- this court possess ample power to make the commission amend. as it appears from the facts set out hereinafter the commission has now pleaded reasons for excluding the petitioner but unfortunately the commission failed to appreciate that thp reasons should have been disclosed to the applicant at the proper time before he came to this court or when the notice of the writ petition was given to the respondent. had that been done there may not have been any.....
Judgment:
ORDER

Anil Kumar Sen, J.

1. This Rule was Issued on a Writ petition. This Rule could not have been issued but for the unreasonable conduct on the part of the Public Service Commission, West Bengal,

2. Petitioner Is a member of the West Bengal Junior Educational Service and is the lecturer of Arabic at the Calcutta Madrasa. He is an examiner of Arabic in the M. A. Examinations of the University of Calcutta. On October 25. 19G8, the respondent Commission, invited applications from eligible candidates for the post of the Principal, Calcutta Madrasa, a cadre post in the West Bengal General Educational Service. In the advertisement It was set out that one of the essential Qualifications is a first class master's degree or a doctorate degree with first class honours or second class master's degree of an Indian University in Arabic or equivalent. The petitioner does not possess any master's degree from any Indian University but he claims that he obtained the higher diploma of the faculty of Theology from the Ajahar University. Cairo which is equivalent to the requisite First Class M. A. degree of an Indian University. The petitioner applied to the respondent in answer to the aforesaid advertisement inviting candidates. His application was filed on November 18, 1968 with necessary requisites. By a memo dated March 17, 1969 the peti-tioner was called to appear for an interview before the respondent on April 7, 1969. But by a further memo dated April 2, 1969 such interview was postponed until further communication in the matter. Unfortunately petitioner got no further communication but he came to know that fresh interview letters for the said post were being issued in favour of other candidates. Thereupon on August, 6. 1969 the petitioner made a representation to the respondent requesting the respondent to allow him to appear at the postponed interview which was fixed on August 11, 1969. The respondent gave no reply to this representation but the interview for the other candidates were held on August 11, 1969.

3. On these facts on October 7, 1969, the petitioner moved this court with the present Writ petition on an allegation that though eligible and once called for an interview the respondent had wrongfully and arbitrarily excluded the petitioner from the interview and as such from an opportunity for being considered for such appointment. This court did not issue any rule on the writ petition when it was entertained but directed a notice of the application to be served on the commission which was duly served. Thereafter the application was adjourned from day to day but the respondent refused to appear or answer the allegations made in the writ petition. No step was taken to enlighten this court under what circumstances the petitioner who was once selected and called for an interview was subsequently excluded therefrom. Accordingly, on January 2, 1970 this court had no other alternative but to issue a rule on the uncontroverted statements made in the writ petition.

4. Mr. P. K. Sengupta who along with Mr. Pabitra Kumar Basu is now appearing on behalf of the respondent informs this court that it is after a long persuasion that he could impress upon the commission that an affidavit-in-opposi-tion to the rule should be filed disclosing the circumstances in which the petitioner was excluded from the interview. According to Mr. Sengupta such persuasion was necessary as the respondent thought it unnecessary to file any answer to the petition itself on the ground that the commission is not answerable for its conduct.

5. In my view the stand taken by the commission cannot but be regretfully disapproved and it is really unfortunate that a responsible authority should have behaved in this manner. It is undoubtedly true that the commission has got its independent iurisdiction and in exercising its discretion or deciding matters left to its individual judgment the commission is not answerable to anyone including this court. This court was quite aware of this position and consequent limitation of its own Iurisdiction even when the writ petition was entertained. But the commission should not have thought that it had been invested with powers to act arbitrarily or that it was above the law in any manner. Under the existing Constitution, our country is ruled by rule of law which affords no sanction for exercise of arbitrary powers by authorities set up thereunder. If the commission fails to act bona fide or if it acts arbitrarily -- as was the ex parte allegation on the Writ Petition -- this court possess ample power to make the commission amend. As it appears from the facts set out hereinafter the commission has now pleaded reasons for excluding the petitioner but unfortunately the commission failed to appreciate that thp reasons should have been disclosed to the applicant at the proper time before he came to this court or when the notice of the writ petition was given to the respondent. Had that been done there may not have been any occasion to issue a rule. This court finds absolute lack of propriety on the part the respondent commission in taking the view that it is not answerable at all to this court.

6. An affidavit has since been filed by the commission wherein all the allegations referred to hereinbefore made by the petitioner are admitted by the commission except the fact that the higher diploma of the Cairo University has not been considered by the commission to be equivalent to a First Class M. A. degree of an Indian University. According to this affidavit the petitioner was no doubt called for an interview on the earlier occasion on a short list prepared which was not final and which was later revised. On such revision the petitioner was found not to be possessing the minimum academic qualification and as such he was excluded from the interview.

7. The learned Advocate for the petitioner comments that it is strange that the commission could have called for interview candidates even before finally scrutinising the applications for the eligibility of the candidates, so that even after once being called for interview a candidate can later be excluded from such interview. In my view the learned Advocate is justified in making this comment on the facts of this case. But even if the petitioner had on one occasion been called for an interview without real eligibility, that would not confer any legal right on him. So if this court finds that he was rightly excluded on the ground of in-eligibility, this court would be unable to render any assistance to the petitioner.

8. The learned Advocate appearing in support of this rule has contended that the higher diploma of the Cairo University should have been accepted by the commission to be equivalent to a First Class M. A. degree of an Indian University. Much reliance has been placed by him on the fact that the petitioner is being appointed an examiner in Arabic for the M. A. Examination by the Calcutta University. But the commission does not consider such a diploma to be equivalent to a M. A. degree far less a First Class M. A. degree. In the absence of any official equation of the diploma with a M. A. degree of the Indian University, the matter must lie within the judgment of the commission itself to adjudge whether the higher diploma of the Cairo University is equivalent to M. A. degree or not The petitioner may have been appointed an examiner of Arabic by the University of Calcutta for the M. A. Examination but the commission is not bound to act on the wisdom of the University of Calcutta nor is the learned Advocate right in his contention that this court has any iurisdiction to adjudge the same by itself or sit in judgment over the decision of the commission. Therefore as it now appears from the affidavit-in-opposition filed at last that though the petitioner was called for interview at one stage he was later excluded on just grounds. The commission might not have acted properly in once inviting the petitioner to an interview without proper verification of the application but that would not prevent the commission from rectifying its own error at a subsequent stage. All that the commission should have done -- as this court expects the commission to do -- the commission should have Informed the petitioner at least in answer to his representation, the reason for his exclusion. Had the commission done, so. it would have saved the trouble of this court and the unnecessary expenses both by the petitioner and by the commission itself.

9. On the reasons as aforesaid this application must be held to have no merits and the rule is accordinyly discharged. But in view of the facts set out hereinbefore I hold the commission liable for the costs incurred by the petitioner and I direct the commission to pay the costs, hearing fee being assessed at ten gold mohurs.

10. Let a copy of this order be forwarded to the Chairman, of the Public Service Commission. West Bengal.


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