Institutional Integrity overrides Individual Integrity however travesty of justice is abhorred by the legal fraternity
Prayer for consideration to the exertion of the provisions of Article 218 of the Constitution of India, on the admitted position of incapacity to administer the rule of law in holding the Constitutional post for dispensation of justice, by the Hon’ble Justice Abhijit Gangopadhyay, High Court at Calcutta
Monday, 05 September 2022
To,
1. The Hon’ble Chairman
Rajya Sabha, 6 Maulana Azad Road,
New Delhi-110011
2. The Hon’ble Speaker
Lok Sabha, 17, Parliament House,
New Delhi-110001
Both through:
The Hon’ble Chief Justice of India
Service through:
The Secretary General,
Supreme Court of India,
Tilak Marg, New Delhi-110001.
Your Excellency
In Re: Prayer for consideration to the exertion of the provisions
of Article 218 of the Constitution of India, on the
admitted position of incapacity to administer the rule of
law in holding the Constitutional post for dispensation of
justice, by the Hon’ble Justice Abhijit Gangopadhyay,
High Court at Calcutta
Ref: An application under Article 226 of the Constitution of India, registered as W. P. A. 7907 of 2019, now pending before the Hon’ble High Court at Calcutta and the deliberate failure on the part of the Hon’ble Division Bench in abstaining to adjudicate on the Appeal registered as M. A. T. 924 of 2022 and C. A. N. 1 of 2022 arising therein, in order to cater to the media trial that is underway.
I have neither any personal animosity nor any personal axe to grind, but as a practicing Advocate at the High Court at Calcutta, I am espousing the cause of a 60% (sixty) percentage victimized disabled person, viz., Mr. SUPRIYO SARKAR, who could only participate in the Teacher Eligibility Test-2014 held in the year 2015 in the State of West Bengal, after being given the assistance of an amanuensis, but without examination of any record, the Hon’ble Justice Abhijit Gangopadhyay, had named, shamed, defamed and condemned Mr. SUPRIYO SARKAR, in the eyes of the society and also taken away his source of livelihood without any trial and thus I have to espouse such cause inasmuch as despite submitting written notes of Arguments / Convenience Notes, there has been an instance of abrogation of constitutional obligations by the Hon’ble Division Bench, the Appellate forum, in abstaining from adjudication of the legal issues raised in order to cater to the media trial being held alongside.
The prevailing atmosphere of gaining media attention by the judiciary, seeks to ignore the core factual aspects and in the instant matter, the same can be summarised as follows:
(a) National Information Centre [NIC for short] was engaged to conduct the Teacher Eligibility Test-2014 (TET-2014 for short) by the State of West Bengal but the examination was held in the year 2015;
(b) The privity of contract between National Information Centre [NIC] for retention of answer scripts of examinees could not obviously be in the knowledge of Mr. SUPRIYO SARKAR, but the Law in this regard has been settled by the Hon’ble Supreme Court as reported at (2011) 8 Supreme Court Cases 497 [In re: Central Board of Secondary Education and Another vs. Aditya Bandhopadhyay and Others]
paragraph 54 onwards;
(c) Hon’ble Justice Abhijit Gangopadhyay on June 13th, 2022 after 7 (seven) years had entertained the writ petition W. P. A. 7907 of 2019 and despite making the National Information Centre, a party respondent therein but deliberately did not direct it to file a report as to whether it had retained the OMR (Optical Mark Reading) answer scripts of some 23 lakhs examinees who had given the examination TET-2014 held in the year 2015;
(d) Optical Mark Reading (OMR for short) is a feature adopted for recognition by Computers of the answer scripts which can only be in whole numbers and not in fractions;
(e) The total marks in TET-214 were 150 and thus qualifying marks of 55 (fifty five) percentage for reserved / physically handicapped persons could either be 82 out of 150 or 83 out of 150;
(f) Mr. SUPRIYO SARKAR despite obtaining 82 marks out of 150, was erroneously declared as unsuccessful and as such he applied for obtaining his answer-scripts in the year 2017 under the Right to Information Act, 2005, wherefrom he found out that two answers to questions were wrong in terms of authoritative texts in the subject matter and as such he filed an application under Article 226 of the Constitution of India, before the Hon’ble High Court at Calcutta, registered as W. P. 13681 (W) of 2017 (but now would be renumbered as W. P. A. 13681 of 2017 and is still pending as per High Court Status Report), and had it serviced on all respondents therein, the West Bengal Board of Primary Education realised its mistake and rectified the same by publishing the name of Mr. SUPRIYO SARKAR exclusively in a letter bearing memo No. 2884 (40) / BPE / 2017 dated 04.12.2017 issued by the Hooghly District Primary Boardand since the pending writ petition W. P. 13681 (W) of 2017 ( but now would be renumbered as W. P. A. 13681 of 2017) would be of academic interest alone and as such was not pursued any further;
(g) School Education Department, Government of West Bengal, Notification No. 285-SE (EE) /P / 10M-6/09 (Pt)- 24thJuly 2012, published in the Kolkata Gazette, Extraordinary, Monday August 13, 2012, amending certain provisions of the West Bengal Primary School Teachers Recruitment Rules, 2001, provided for publication of an Additional panel, but the validity of the Notification was till March 31st, 2014, whereas the TET-2014 instead of being held on or before March 31st, 2014, were actually held in the year 2015;
(h) Article 162 of the Constitution of India, provides for certain provisions that can be taken by the State in absence of law;
(A) Solemn order dated 13.06.2022 in W. P. A. 7907 of 2019:
[Website copy of the solemn order as downloaded from the official website is annexed hereto and marked as “Annexure A-1”
Apart from the issue of non-joinder as a party respondent and nonservice of the matter upon the person SUPRIYO SARKAR and thereby to the affectation with the imposition of the penalty of adverse civil consequences thereof, the order dated 13. 06. 2022 in W. P. A. 7907 of 2019 further inter-alia suffers from:
1. The Hon’ble Justice Abhijit Gangopadhyay on the strength of a Supplementary Affidavit at paragraph 2 of the order dated 13. 06. 2022 held that SUPRIYO SARKAR, inter-alia that “who was not a qualified candidate in TET was named in the second panel and got appointment but also other candidates totalling to 68 candidates in the district of Hooghly have been given appointment by publishing the second panel or the additional panel” though there is no finding as to what could be the TET qualification;
2. The Hon’ble Justice Abhijit Gangopadhyay held at paragraph 4 of the order dated 13.06.2022 that “in the first place there was no provision in the relevant law for publication of a second panel”.
3. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 5 of the order dated 13.06.2022 further inter-alia held “the second panel published in respect of every district [may be by similar letter bearing memo No. 2884 (40) / BPE / 2017 dated 04.12.2017) is declared a wholly illegal and void ab initio for want of such provisions of publishing a second panel these 269 candidates who have been given appointment through the said illegal and void second panel are to be immediately terminated by the Board by issuing letters intimating that they shall cease to be teachers of primary schools with immediate effect and the concerned District Inspector of Schools (Primary Education) shall not pay any salary to them from tomorrow onwards.”……………. “The salary they have received in the meantime is to be refunded by them but for that separate order will be passed at a subsequent stage.”
4. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 6 of the order dated 13.06.2022 on 13.06.2022 in respect of W. P. A. 7907 of 2019 had been pleased to direct “I direct the petitioner to add NIC as a party respondent in this proceeding in course of the day and to communicate this order to them.”
5. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 7 of the order dated 13.06.2022 has been pleased to take judicial notice of the fact that “Here the President of the West Bengal Board of Primary Education is an elected member of West Bengal Legislative Assembly who has returned from his constituency as a candidate of the political party which is the ruling party of this State.”
6. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 8 of the order dated 13. 06. 2022, reiterates “In view of the illegality committed in respect of the second panel (termed as Additional Panel, by the Secretary of the Board) which is wholly illegal and giving illegal appointment to 269 candidates by a queer method unknown to law, I direct the Central Bureau of Investigation (‘CBI’, for short) to start investigating by registering a case immediately against the Board and start interrogating the President of the West Bengal Board of Primary Education, Dr. Manik Bhattacharya and the Secretary of the said Board Dr. Ratna Chakraborty Bagchi, the Secretary of the said Board as party respondents and they are to go to the CBI office at Nizam Palace by 5:30 p.m. today to face interrogation.”
7. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 9 of the order dated 13. 06. 2022 further held “It is made clear that if they do not cooperate with CBI, CBI shall have every liberty to interrogate them after taking them into custody.”
8. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 10 of the order dated 13. 06. 2022 further directed “CBI shall contact NIC immediately to seize the database of the TET 2014 candidates published by the West Bengal Board of Primary Education by tomorrow (14.06.2022) and to submit a short report in this court of the registration of the case, initiation of the interrogation of the two persons added today in this proceeding (named above) and taking into custody of the database of the TET, 2014 candidates day after tomorrow at 2 p.m.” LAW AS IT STOOD TILL 31. 03. 2014
(1) School Education Department, Government of West Bengal, Notification No. 285-SE (EE) /P / 10M-6/09 (Pt)- 24thJuly 2012, published in the Kolkata Gazette, Extraordinary, Monday August 13, 2012, amended certain provisions of the West Bengal Primary School Teachers Recruitment Rules, 2001, the salient features of the same are as follows:
For rule 6, the substitutions were provided and the statutory Note 2 thereunder provided as follows:
The persons having qualification of Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks or graduate (irrespective of marks obtained therein) or equivalent without 2-year Diploma in Elementary Education (by whatever name known) or 4-year Bachelor of Elementary Education (B.El.Ed.) or 2-year Diploma in Education (Special Education) shall also be legible for appearing in the Teacher Eligibility Test (TET) to be conducted for appointment of primary school teachers in the State upto 31st March, 2014…….
for rule 9, substitution (2) The Teacher Eligibility Test (TET) shall be held as per guidelines issued from time to time by the National Council for Teacher Education and a person who will score 60% or above in the Teacher Eligibility Test (TET) examination shall be considered as Teacher Eligibility Test (TET) passed provided relaxation upto 5 % marks shall be allowed to the candidates belonging to the reserved categories, such as SC/ST/OBC/ PH/EC. (3) Teacher Eligibility Test (TET) shall be held in 100 marks …….
(4) …….
(5) ……
(6) (a) The Selection Committee shall prepare a district wise merit list out of 100 marks as specified in Table A of candidates appeared at the for interview under Unreserved Category comprising of the names of the candidates belonging to General Category, Scheduled Caste Category, Scheduled Tribe Category, OBC Category-A, OBC Category-B and PH Category serially according to descending order of merit as per existing vacancy medium wise.
(b)……
(7) An additional panel of 5% of General, Scheduled Castes, Schedule Tribes, OBC Category-A and OBC Category-B, Exempted Category, ex Servicemen and Physically handicapped candidates shall be prepared in the same manner as referred to in sub-rule (b):…
[A website copy of the Notification as downloaded from the website is annexed hereto and marked with letter “Annexure A- 2”.]
EXAMINATION OF TET-2014 HELD IN YEAR 2015 when no law was in force then the provisions of Article 162 of the Constitution of India alone could come into force. The Examination TET-2014 was held for 150 marks and not for 100 marks, thereby making both marks obtained for 83 as well as 82 out of 150 marks to be cut-off marks as 55% inasmuch as the computer marks in whole numbers and not in fractions and marks 82 out of 150 marks is 54.666 percentage that would be equivalent to 55 percentage.
POST THE YEAR 2015, on and from March 2nd, 2016, the West Bengal Primary School Teachers Recruitment Rules, 2016 came into None of the law as it stood was either discussed or decided in the solemn order dated 13.06.2022 passed in W. P. A. 7907 of 2019 now pending, but not only adverse civil consequences of taking away the right of livelihood of the SUPRIYO SARKAR was imposed without trial, but declarations of law being illegal were made.
APPARENTLY, Hon’ble Justice Abhijit Gangopadhyay has declared Article 162 of the Constitution of India, as UNCONSTITUTIONAL and ILLEGAL in the circumstances.
The denial of service to be rendered by SUPRIYO SARKAR to enable his reinstatement with full salary would be in consonance with the dictum of the Hon’ble Apex Court at paragraph 22 as reported at (2013) 10 Supreme Court Cases 324 [In re: Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) & Others].
[Convenience Note in MAT 924 of 2022 as submitted by the undersigned is annexed hereto and marked with letter “Annexure A-3”]
[Addendum to Convenience Note in MAT 924 of 2022 as submitted by the undersigned is annexed hereto and marked with letter “Annexure A-4”]
[2ndAddendum to Convenience Note in MAT 924 of 2022 as submitted by the undersigned is annexed hereto and marked with letter “Annexure A-5”].
[Website copy of the solemn judgment dated September 2nd, 2022 passed in MAT 924 of 2022 as downloaded from the official website is annexed hereto and marked with letter “Annexure A- 6”].
(B) Solemn order dated 15.06.2022 in W. P. A. 7907 of 2019
1. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 1 of the order dated 15.06.2022, records
“Central Bureau of Investigation (CBI) has filed a report, which is kept on record, which I have perused.”
2. The Hon’ble Justice Abhijit Gangopadhyay at paragraph 2 of the order dated 15.06.2022, records “Dr. Upendra Nath Biswas, Ex-Additional Director of CBI and also Ex-Minister of State Government from 2011-2016 has appeared and has made certain suggestions as to proper conduct of the investigation by CBI.”
3. That neither in the solemn order dated 13.06.2022 in W. P. A. 7907 of 2019 nor is there any acknowledgement by the Hon’ble Justice Abhijit Gangopadhyay in the solemn order dated 15.06.2022, that it was the Hon’ble Justice Abhijit Gangopadhyay that had requested the aforesaid Dr. Upendra Nath Biswas to be personally present on 15.06.2022 before the Hon’ble Justice Abhijit Gangopadhyay to give suggestions for proper conduct of the investigation by CBI, the only legal inference for this sudden appearance of the aforesaid Dr. Upendra Nath Biswas was from the end of the Learned Counsels for the Petitioners in W. P. A. 7907 of 2019 and none else, that resulted in the cause of justification by the Hon’ble Justice Abhijit Gangopadhyay to record “also Ex-Minister of State Government from 2011 to 2016.”
4. The expertise of the aforesaid Dr. Upendra Nath Biswas is very much debatable inasmuch as in respect of matters relating to Prevention of Corruption Act, 1988, the concept of Court Monitored Investigation changed with the codification of Central Vigilance Commission Act, 2003, enacted pursuant to the directions of Hon’ble Apex Court as reported at (1998) 1 Supreme Court Cases 226 (in re: Vineet Narain and others vs. Union of India and Others)]; [Website copy of the solemn order dated 15. 06. 2022 in W. P. A. 7907 of 2019 as downloaded from the official website is annexed hereto and marked with letter “Annexure A-7”.]
(C) Solemn Order dated 17. 06. 2022 in W. P. A. 7907 of 2019
The Hon’ble Justice Abhijit Gangopadhyay at inner page 2 of the solemn order dated 17.06.2022 records interalia “(Learned Senior Advocate Mr. Bikash Ranjan Bhattacharya for the petitioners have requested the learned counsel for CBI Mr. Billwadal Bhattacharyya to reconsider the name of K.C. Risinamol for replacing her by some other officer of similar rank)”
Further on at inner page 3 of the solemn order dated 17. 06. 2022
“the Hon’ble Justice Abhijit Gangopadhyay records inter-alia “Learned Counsel for CBI has stated that regarding the third named Officer of CBI he would talk to Mr. Bhattacharya and will also talk to his client for taking appropriate decision in this regard.”
LEGAL INFERENCE:
The Learned Senior Advocate Mr. Bikash Ranjan Bhattacharyya for the Petitioners is influencing the investigating process on the failure of the Hon’ble Justice Abhijit Gangopadhyay to take judicial notice of the fact that Mr. Bikash Ranjan Bhattacharyya, is a Hon’ble Member of the Parliament (Rajya Sabha) and belongs to a political ideology that is opposed to the political ideology of the ruling regime in the State but in the impugned solemn order dated 13. 06. 2022, the Hon’ble Justice Abhijit Gangopadhyay did not refrain from taking judicial notice of the fact that Mr. Manik Bhattacharya, the President of West Bengal Board of Primary Education, belonged to the political regime in power in the State of West Bengal. The entire investigation is thus not prosecution in accordance with law but PERSECUTION.
[Website copy of the solemn order dated 17. 06. 2022 in W. P. A. 7907 of 2019 as downloaded from the official website is annexed hereto and marked with letter “Annexure A-8”.]
(D) Solemn Order dated 20.06.2022 in W. P. A. 7907 of 2019
(1) The Hon’ble Justice Abhijit Gangopadhyay at paragraph 3 of the solemn order dated 20. 06. 2022 deliberately does not traverse beyond Rule 7 of the West Bengal Primary School Teachers’ Recruitment Rules, 2016 inasmuch as the Hon’ble Justice Abhijit Gangopadhyay shows his aversion to take into consideration that under Rule 8, Sub-Rule (6) of the West Bengal Primary School Teachers Recruitment Rules, 2016, the concept of “Additional panel” does exist.
[Website copy of the solemn order dated 20. 06. 2022 in W. P. A. 7907 of 2019 as downloaded from the official website is annexed hereto and marked with letter “Annexure A-9”.]
(E) Solemn Order dated 21. 06. 2022 in W. P. A. 7907 of 2019
(1) At inner page 2 of the solemn order dated 21. 06. 2022, the Hon’ble Justice Abhijit Gangopadhyay records
“Mr. Manik Bhattacharya is present in court today.
He has been asked some questions which have been answered and recorded verbatim. …. I asked him some questions under Section 165 of the Indian Evidence Act, 1872 and asked the parties to cross-examine the witness if they so desire. ….. However, Mr. Bikash Ranjan Bhattacharya, learned senior advocate for the petitioners, has submitted that he will keep his right reserved to cross- examine him after receiving the affidavits if assets, as has been directed by this Court.”
[Website copy of the solemn order dated 21. 06. 2022 in W. P. A. 7907 of 2019 as downloaded from the official website is annexed hereto and marked with letter “Annexure A-10”.]
LAW AS IT STANDS
(i) The Role of the Hon’ble Courts when exercised under Section 165 of the Indian Evidence Act,
1872 is applicable to only WITNESSES as envisaged thereunder;
(ii) An accused under Section 4 (2) of the Oaths Act, 1969, can only be examined as a witness when he introduces himself as a Defence Witness in course of trial;
(iii) In the instant matter the investigation is yet to be completed and trial has not begun before the
competent court.
(iv) Article 20 (3) of the Constitution of India creates the embargo in favour of an accused and Section 4 (2) of the Oaths Act, 1969, protects the interest of the accused in this regard. Institutional Integrity overrides Individual Integrity and absence of elementary knowledge of law would be discernible from the aforesaid discussion.
In the event an average Indian has a life expectancy of 60 years, then Mr. SUPRIYO SARKAR, whose case the undersigned is espousing, has a reduction by 60% (sixty percentage) inasmuch as, the person has to send brain impulses for coordination of his body at-least 60 (sixty) times more than a normal person and today Mr. SUPRIYO SARKAR is aged about 30 years and may not live beyond 36 years.
The Hon’ble Division Bench, when approached by SUPRIYO SARKAR impugning the order dated 13. 06. 2022, in M.A.T. 924 of 2022, abstained from adjudication in abrogation of its constitutional obligations by discussing and distinguishing, if any, to the legal issues as had been raised through written arguments / convenience notes.
The undersigned having a premonition that the Hon’ble Division Bench, may abstain from adjudication, had sent through email to the office of another Constitutional Authority, the Learned Advocate General for the State of West Bengal, for the sake of record.
The paralysis of mind, exhibited by the Hon’ble Division Bench in its judgment dated September 2nd, 2022 in M. A. T. 924 of 2022, is most reprehensible and apparently bespeaks of absence of judicial conscience.
I am statutorily bound to admit that a judge of the Constitutional Court is aware of the laws of the land but despite the same, from the orders that have been passed in the matter, would reinforce the fact that there has been abject abuse of the laws of the land to decide the matter in a partisan manner to be probably in the limelight of media glare.
I have certainly advised Mr. SUPRIYO SARKAR, to seek a further challenge by way of a Special Leave Petition (Civil) before the Hon’ble Supreme Court of India, but how far he would be able to carry the same forward because of financial constraints or otherwise, only time I cannot deny that by a quirk of fate, admittedly a highly intelligent and honest officer of the Enforcement Directorate, had been able to recover cash of over Rs.51 crores (Rupees Fifty one crores) from a female acquaintance of a former cabinet minister in the Government of West Bengal, but credence to that effort cannot be sought to be claimed by the Hon’ble Justice Abhijit Gangopadhyay in this regard though the daily media reports seem to attribute the same to him, but the Central Bureau of Investigation that had been appointed by the Hon’ble Justice Abhijit Gangopadhyay, had never been able to recover the amounts despite interrogations of the former minister for months altogether.
It is violation of human rights to Mr. SUPRIYO SARKAR of highest order that even the United Nations Organisation, to which our Nation is a constituent, would find support, inasmuch as to protect the weak and vulnerable is the concept of human life with dignity.
It is in conspectus of the aforesaid, I seek indulgence in this unique manner for consideration to the exertion of the provisions of Article 218 of the Constitution of India, on the admitted position of incapacity to administer the rule of law in holding the Constitutional post for the dispensation of justice, by the Hon’ble Justice Abhijit Gangopadhyay, High Court at Calcutta.
Yours’ Truly,
Sandip Kumar Bhattacharyya
Advocate
Bar Enrolment No. WB/ 963 / 1995
Dated 29.05.1995
Enclosure: As stated
Read Original Communications
In Re: Independence of Judiciary and elevation through the Collegium system for appointment of Judges for the Constitutional Courts in vogue vis-à-vis dispensation of justice in the Nation.
