Anirban Dasgupta v. The State Of Tripura And ORS

IN
THE
HIGH
COURT
OF
TRIPURA
A
G
A
R
T
A
L
A
W.P(C)
No.269
of
2015





Shri
Anirban
Dasgupta,


   




   

    
  


 !!Petitioner
-
V
e
r
s
u
s
-
1.
The
State
of
Tripura,

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 2.
Engineer-in-Chief,
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 3.
The
Secretary,

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 4.
The
Chairman,

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 *  
              


 

 5.
The
Joint
Secretary,
 

  "  *  %

 *  
              


 

 6.
Shri
Debasish
Naha,



% 
  +(

 *+ 



*
 ,

 - 
 

[2]  .
/$ 011234 7.
Shri
Shibabarata
Bardhan,

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 /$011442 !!!!Respondents
B
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 E "The
Commission
received
representation
from
Sri
Biswanath
Majumder
on
01.06.2015
and
from
Sri
Debasish
Naha
on
04.06.2015
respectively.
After
re-verification
of
the
documents,
the
Commission
was
satisfied
that
both
the
candidates
possessed
the
requisite
qualifications
and
experiences
at
time
of
submission
of
their
applications
and
also
confirmed
that
there
was
no
additional
acquired
qualification
or
experiences
after
the
last
date
of
submission
of
the
application
for
the
post
of
Financial
Controller.
Therefore,
subsequently
they
were
added
in
the
eligible
list.

So,
the
Commission
considered
them
eligible
for
interview
and
issued
call
letters
in
favour
of
them
on
04.06.2015
and
09.06.2015
respectively.
Hence,
in
total
the
number
of
eligible
candidates
raised
from
11(eleven)
to
13(thirteen)
numbers."

 
    


     

          
  

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 E "1(one)
representation
received
from
Sri
Biswanath
Majumder,
S/O-
Late
Rudra
Narayan
Majumder
regarding
for
reconsideration
for
the
post
of
Financial
Controller
under
the
Public
Works
Department,
Govt.
of
Tripura,
reference
Commission's
Advt.
No.09/2014
(item
No.1)
dated
22.07.2014
which
may
kindly
be
seen
vide
flag-A.
On
scrutiny
of
the
Tabulation
sheet
it
appears
that
Sri
Biswanath
Majumder,
being
Sl.
No.22
is
ineligible
as
per
Commission
Note
No.8.
Now
Sri
Majumder
submitted
supported
documents
for
the
aforesaid
post
and
requested
to
the
Commission,
his
case
may
be
considered
for
interview
to
the
post
of
Financial
Controller.

In
view
of
the
above,
the
file
may
be
placed
before
the
authority
for
kind
decision
in
this
regard."



[7] [4]
   28  484;342:  '  
* "E "Sri
Biswanath
Majumder
has
submitted
experience
certificate
afresh
where
it
is
clearly
mentioned
that
he
possess
experience
in
accounts
and
audit
which
is
as
per
R/R."
/  34  4;4;342:   
 * " 


;' 

 E "Another
1(one)
representation
received
from
Sri
Debasish
Naha,
S/O-
Dulal
Ch.
Naha
regarding
for
reconsideration
for
the
post
of
Financial
Controller
under
the
Public
Works
Department,
Govt.
of
Tripura,
reference
Commissions
Advt.
No.09/2014
(item
No.1)
dated
22.07.2014
which
may
kindly
be
seen
vide
flag-B.

On
scrutiny
of
the
Tabulation
sheet
it
appears
that
Sri
Debasish
Naha,
bearing
serial
No.28
is
ineligible
as
per
Commission
Note

No.8.
Now
Sri
Naha
submitted
supporting
documents
(Departmental)
for
the
aforesaid
post
and
requested
to
the
Commission,
his
case
may
be
considered
for
interview
to
the
post
of
Financial
Controller.

In
view
of
the
above,
the
file
may
be
placed
before
the
authority
for
kind
decision
in
this
regard."

     34  '  #
 * "  E "Sri
Debasish
Naha
has
submitted
an
incomplete
application
form
which
his
eligibility
could
not
be
ascertained.
Now
he
has
submitted
experience
certificate
issued
by
appropriate
authority
and
his
work
experience
is
as
per
R/R
eligibility
of
Sri
Naha
may
kindly
be
decided.' 
 '
 *4;4;342: [5]


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'

* @ Om
Prakash
Shukla
vs.
Akhilesh
Kumar
Shukla
and
others   AIR
1986
SC
1043,
Madan
Lal
and
Others
vs.
State
of
Jammu
and
Kashmir
and
Others,
  (1995)
3
SCC
486,
Chandra
Prakash
Tiwari
and
Ors.
vs.
Shakuntala
Shukla
and
Ors,
   (2002)
6
SCC
127
 Ramesh
Chandra
Shah
and
Ors.
vs.
Anil
Joshi
and
Ors.,
  
AIR
2013
SC
1613.



[12]    '    
  

 * 


 

 
[7]
/Madan
Lal
and
Ors.
Vs
State
of
J
&
K  1995(3)
SCC
486 ( 
'
E "9.
...
It
is
now
well
settled
that
if
a
candidate
takes
a
calculated
chance
and
appears
at
the
interview
then,
only
because
the
result
of
the
interview
is
not
palatable
to
him
he
cannot
turn
round
and
subsequently
contend
that
the
process
of
interview
was
unfair
or
Selection
Committee
was
not
properly
constituted.

10.
Therefore,
the
result
of
the
interview
test
on
merits
cannot
be
successfully
challenged
by
a
candidate
who
takes
a
chance
to
get
selected
at
the
said
interview
and
who
ultimately
finds
himself
to
be
unsuccessful."
/
Chandra
Prakash
Tiwari
&
Ors.
Vs.
Shakuntala
Shukla
&
Ors.

,
  
(2002)
6
SCC
127,
 (  
'
E "34.
There
is
thus
no
doubt
that
while
question
of
any
estoppel
by
conduct
would
not
arise
in
the
contextual
facts
but
the
law
seem
to
be
well
settled
that
in
the
event
a
candidate
appears
at
the
interview
and
participates
therein,
only
because
the
result
of
the
interview
is
not
'palatable'
to
him,
he
cannot
turn
round
and
subsequently
contend
that
the
process
of
interview
was
unfair
or
there
was
some
lacuna
in
the
process."


/
Ramesh
Chandra
Shah
Vs.
Anil
Joshi
reported
inAIR
2013
SC
1613,
the
Apex
Court
held
as
follows
:
"24.



[13] Single
Judge
and
the
Division
Bench
of
the
High
Court
committed
grave
error
by
entertaining
the
grievance
made
by
the
respondents."
[8] 6 "
  


  
 0 

"    #    
 


  
 
     

  
   

"



)  * '
*#  
  "#(    

    
  " 



 /

   6 " 
  
 
.
C
 Reid
vs.
Secretary
of
State
for
Scotland  1991 All
ER
481
'  
 "   '  (
 

'  )   * ' 
     (   *  ' * '  
'* '"  
 
 .

 
 (  Heinz
India
Pvt.
Ltd.
and
Anr.
vs.
State
of
U.P.
and
Ors,
   (2012)
5
SCC
443,
' ')  * '
" 
 "
  A      5  * 

(  E
"60.
The
power
of
judicial
review
is
neither
unqualified
nor
unlimited.
It
has
its
own
limitations.
The
scope
and
extent
of
the
power
that
is
so
very
often
invoked
has
been
the
subjectmatter
of
several
judicial
pronouncements
within
and
outside
the
country.
When
one
talks
of
'judicial
review'
one
is
instantly
reminded
of
the
classic
and
oft
quoted
passage
from       

              

   

  !,
where
Lord
Diplock
summed
up
the
permissible
grounds
of
judicial
review
thus:
Judicial
Review
has
I
think
developed
to
a
stage
today
when,



[14] without
reiterating
any
analysis
of
the
steps
by
which
the
development
has
come
about,
one
can
conveniently
classify
under
three
heads
the
grounds
on
which
administrative
action
is
subject
to
control
by
judicial
review.
The
first
ground
I
would
call
'illegality',
the
second
'irrationality'
and
the
third
'procedural
impropriety'.
By
'illegality'
as
a
ground
for
judicial
review
I
mean
that
the
decision-maker
must
understand
correctly
the
law
that
regulates
his
decision-making
power
and
must
give
effect
to
it.
Whether
he
has
or
not
is
par
excellence
a
justiciable
question
to
be
decided,
in
the
event
of
dispute,
by
those
persons,
the
judges,
by
whom
the
judicial
power
of
the
State
is
exercisable.

By
'irrationality'
I
mean
what
can
by
now
be
succinctly
referred
to
as
'Wednesbury
unreasonableness'.
It
applies
to
a
decision
which
is
so
outrageous
in
its
defiance
of
logic
or
of
accepted
moral
standards
that
no
sensible
person
who
had
applied
his
mind
to
the
question
to
be
decided
could
have
arrived
at
it.
Whether
a
decision
falls
within
this
category
is
a
question
that
judges
by
their
training
and
experience
should
be
well
equipped
to
answer
or
else
there
would
be
something
badly
wrong
with
our
judicial
system....
I
have
described
the
third
head
as
'procedural
impropriety'
rather
than
failure
to
observe
basic
rules
of
natural
justice
or
failure
to
act
with
procedural
fairness
towards
the
person
who
will
be
affected
by
the
decision.

This
is
because
susceptibility
to
judicial
review
under
this
head
covers
also
failure
by
an
administrative
tribunal
to
observe
procedural
rules
that
are
expressly
laid
down
in
the
legislative
instrument
by
which
its
jurisdiction
is
conferred,
even
where
such
failure
does
not
involve
any
denial
of
natural
justice."
66.



[15] Court.
In
all
such
cases
judicial
examination
is
confined
to
finding
out
whether
the
findings
of
fact
have
a
reasonable
basis
on
evidence
and
whether
such
findings
are
consistent
with
the
laws
of
the
land.


 "#$  % &$ ' ()) (  )
 $$* +$  !#     "#$ ' )   ((
 $# ,$+ -$*$  $# . 

/# ,$0  ' "

1  2222 49.
We
may
while
parting
with
the
discussion
on
the
legal
dimensions
of
judicial
review
refer
to
the
following
passage
from
Reid
v.
Secretary
of
State
for
Scotland
(1999)
1
All
ER
481
HL),
which
succinctly
sums
up
the
legal
proposition
that
judicial
review
does
not
allow
the
Court
of
review
to
examine
the
evidence
with
a
view
to
forming
its
own
opinion
about
the
substantial
merits
of
the
case.
'Judicial
review
involves
a
challenge
to
the
legal
validity
of
the
decision.
It
does
not
allow
the
court
of
review
to
examine
the
evidence
with
a
view
to
forming
its
own
view
about
the
substantial
merits
of
the
case.

It
may
be
that
the
tribunal
whose
decision
is
being
challenged
has
done
something
which
it
had
no
lawful
authority
to
do.
It
may
have
abused
or
misused
the
authority
which
it
had.
It
may
have
departed
from
the
procedures
which
either
by
statute
or
at
common
law
as
a
matter
of
fairness
it
ought
to
have
observed.
As
regards
the
decisions
itself
it
may
be
found
to
be
perverse
or
irrational
or
grossly
disproportionate
to
what
was
required.

Or
the
decision
may
be
found
to
be
erroneous
in
respect
of
a
legal
deficiency,
as
for
example,
through
the
absence
of
evidence,
or
of
sufficient
evidence,
to
support
it,
or
through
account
being
taken
of
irrelevant
matter,
or
through
a
failure
for
any
reason
to
take
account
of
a
relevant
matter,
or
through
some
misconstruction
of
the
terms
of
the
statutory
provision
which
the
decision
maker
is
required
to
apply.
But
while
the
evidence
may
have
to
be
explored
in
order
to
see
if
the
decision
is
vitiated
by
such
legal
deficiencies
it
is
perfectly
clear
that
in
case
of
review,
as
distinct
from
an
ordinary
appeal,
the
court
may
not
set
about
forming
its
own
preferred
view
of
evidence.'



[16] [9] /Air
India
Ltd.
vs.
Cochin
International
Airport
Ltd.,
   (2000)
2
SCC
617,
  (   


E

"7.........But
the
State,
its
corporations,
instrumentalities
and
agencies
are
bound
to
adhere
to
the
norms,
standards
and
procedures
laid
down
by
them
and
cannot
depart
from
them
arbitrarily.
Though
that
decision
is
not
amenable
to
judicial
review,
the
Court
can
examine
the
decision
making
process
and
interfere
if
it
is
found
vitiated
by
mala
fides,
unreasonableness
and
arbitrariness.
The
State,
its
corporations,
instrumentalities
and
agencies
have
the
public
duty
to
be
fair
to
all
concerned.

Even
when
some
defect
is
found
in
the
decision
making
process
the
Court
must
exercise
its
discretionary
power
under
Article
226
with
great
caution
and
should
exercise
it
only
in
furtherance
of
public
interest
and
not
merely
on
the
making
out
of
a
legal
point.
The
Court
should
always
keep
the
larger
public
interest
in
mind
in
order
to
decide
whether
its
intervention
is
called
for
or
not.
Only
when
it
comes
to
a
conclusion
that
overwhelming
public
interest
requires
interference,
the
Court
should
intervene."
[10]
 / Noble
Resources
Ltd.
vs.
State
of
Orissa
and
Anr.,
  AIR
2007
SC
119,
 ( 
 ' ' '
E
"28.

Although
the
scope
of
judicial
review
or
the
development
of
law
in
this
field
has
been
noticed
hereinbefore
particularly
in
the
light
of
the
decision
of
this
Court
in
%! " $$  !#(supra),
each
case,
however,
must
be
decided
on
its
own
facts.
Public
interest
as
noticed
hereinbefore,
may
be
one
of
the
factors
to
exercise
power
of
judicial
review.
In
a
case
where
a
public
law
element
is
involved,
judicial
review
may
be
permissible.

%3 !#$#  & $#$ $$#.' ()) 1  14 $#5% $$6$ $# . 7$ +$ /$    $#.' ]
.
2222



[17] 30.
Another
field
where
judicial
review
is
permissible
would
be
when
mala
fide
or
ulterior
motives
is
attributed.
In

$ 8#$ $#  !# ,$ $ +$   "#$!#$#.:
(1997)
1
SCC
738
,
this
Court
held:
'...We
are
of
the
considered
opinion
that
it
was
not
within
the
permissible
limits
of
interference
for
a
court
of
law,
particularly
when
there
has
been
no
allegation
of
malice
or
ulterior
motive
and
particularly
when
the
court
has
not
found
any
mala
fides
or
favouritism
in
the
grant
of
contract
in
favour
of
the
appellant....'

It
was
further
held:
'Therefore,
though
the
principle
of
judicial
review
cannot
be
denied
so
far
as
exercise
of
contractual
powers
of
government
bodies
are
concerned,
but
it
is
intended
to
prevent
arbitrariness
or
favouritism
and
it
is
exercised
in
the
larger
public
interest
or
if
it
is
brought
to
the
notice
of
the
court
that
in
the
matter
of
award
of
a
contract
power
has
been
exercised
for
any
collateral
purpose.
But
on
examining
the
facts
and
circumstances
of
the
present
case
and
on
going
through
the
records
we
are
of
the
considered
opinion
that
none
of
the
criteria
has
been
satisfied
justifying
Court's
interference
in
the
grant
of
contract
in
favour
of
the
appellant....'"

 "
  * 

 


   "
   

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[13]

       6
   &#
  


 Dr.
Amit
Sharma
vs.
State
of
J
&
K
and
others > )     4140342:  28833424?'. % <7 


*
 
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[14]

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[19]   . 
  
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[20]

  '    

      * ' '
   '# 

;0  " #       # .   % '  (   (  
" *  $;    * 
 
#'
   '  
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  @   
     
   "

   
  

  

       

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    '  %
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" (  

    


     (     
 #   
   #    

 / Ashok
Kumar
Yadav
and
Others
vs.
State
of
Haryana,
   AIR
1987
SC
454, ( "
**    
    
     "  *  %


 


E "Before
we
part
with
this
judgment
we
would
like
to
point
out
that
the
Public
Service
Commission
occupies
a
pivotal
place
of
importance
in
the
State
and
the
integrity
and
efficiency
of
its
administrative
apparatus
depends
considerably
on
the
quality
of
the
selections
made
by
the
Public
Service
Commission.
It
is
absolutely
essential
that
the
best
and
finest
talent
should
be
drawn
in
the
administration
and
administrative
services
must
be
composed
of
men
who
are
honest,
upright
and
independent
and
who
are
not
swayed
by
the
political
winds
blowing
in
the
country.
The
selection
of
candidates
for
the
administrative
services
must
therefore
be
made
strictly
on
merits,
keeping
in
view
various
factors
which
go
to
make
up
a
strong,
efficient
and
people
oriented
administrator.
This
can
be
achieved
only
if
the
Chairman
and
members
of
the
Public
Service
Commission
are

 

[21] eminent
men
possessing
a
high
degree
of
calibre,
competence
and
integrity,
who
would
inspire
confidence
in
the
public
mind
about
the
objectivity
and
impartiality
of
the
selections
to
be
made
by
them.
We
would
therefore
like
to
strongly
impress
upon
every
State
Government
to
take
care
to
see
that
its
Public
Service
Commission
is
manned
by
competent,
honest
and
independent
persons
of
outstanding
ability
and
high
reputation
who
command
the
confidence
of
the
people
and
who
would
not
allow
themselves
to
be
deflected
by
any
extraneous
considerations
from
discharging
their
duty
of
making
selections
strictly
on
merits.
Whilst
making
these
observations
we
would
like
to
make
it
clear
that
we
do
no
for
a
moment
wish
to
suggest
that
the
Chairman
and
members
of
the
Haryana
Public
Service
Commission
in
the
present
case
were
lacking
in
calibre,
competence
or
integrity."

   '  )
#     " *  %


     
     ' 

  [16]
 ) 
  ")   
 
 "
       



  # 
  A
  




 


 * &'   #  
 
    # 
* / Raj
Kumar
and
Ors.
Vs
Shakti
Raj
and
Ors.,
  
(1997)
9
SCC
527,
 (


'
E "16.
.........
It
is
true,
as
contended
by
Shri
Madhava
Reddy,
that
this
Court
in
$#$!$   $  7$#9


 1 '  "

: ) and
other
decisions
referred
therein
had
held
that
a
candidate
having
taken
a
chance
to
appear
in
an
interview
and
having
remained
unsuccessful,
cannot
turn
round
and
challenge
either
the
constitution
of
the
Selection
Board
or
the
method
of
selection
as
being
illegal;
he
is
estopped
to
question
the
correctness
of
the
selection.
But
in
his
case,
the
Government
have
committed
glaring
illegalities
in
the
procedure
to

 

[22] get
the
candidates
for
examination
under
1955
Rules,
so
also
in
the
method
of
selection
and
exercise
of
the
power
in
taking
out
from
the
purview
of
the
and
also
conduct
of
the
selection
in
accordance
with
the
Rules.
Therefore,
the
principle
of
estopped
by
conduct
or
acquiescence
has
no
application
to
the
facts
in
this
case."
[17]

  # 
Nar
Singh
Pal
Vs
Union
of
India
and
Ors.,
  
(2000)
3
SCC
588,
  (   
 '
E "......
Fundamental
Rights
under
the
Constitution
cannot
be
bartered
away.
They
cannot
be
compromised
nor
can
there
be
any
estoppel
against
the
exercise
of
Fundamental
Rights
available
under
the
Constitution.
As
pointed
out
earlier,
the
termination
of
the
appellant
from
service
was
punitive
in
nature
and
was
in
violation
of
the
principles
of
natural
justice
and
his
constitutional
rights.
Such
an
order
cannot
be
sustained."
[18]


  *   "
* 
 
     

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"
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;70



[23]

 
  A 
  
 
2 7 3 

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/*   

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"  

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