Pratap Kumar Ray, J. - (1.) In the instant application, the petitioner has challenged the selection of respondent No. 6, Sri Rajesh Poddar as well as appointment of the said Sri Poddar in the post of Clerk in the casual vacancy of Dr. B.R. Ambedkar College, Betai, District-Nadia on the ground that the uncle of Rajesh Poddar Sri Ajit Kumar Poddar was a member of the Selection Sub Committee wherein such selection process was completed. It has been further contended that there was no resolution of the Governing Body in terms of statutes relating to the constitution, powers and functions of the Governing Body of Colleges other than Government Colleges (hereinafter referred to as the concerned statute), which under St. 8(MC) clause (2), sub-clause (b) provides that Governing Body of the College is the authority to make appointment on recommendation of the appropriate selection committee, which in this case, is absent, but appointment letter was issued by the Principal, who is the Secretary of the Governing Body and the concerned respondent has already joined in the post. The petitioner further has assailed the selection on the ground that under the rule, from Employee Exchange names are required to be sponsored, but in the instant case, no invitation was made to the Employee Exchange. It has been further stated that when the causal vacancy was created, no approval was sought for from the Government. The petitioner was a candidate for the said post. The petitioner's name also was not sponsored from the Employee Exchange. The petitioner participated in the selection process. The petitioner failed to secure the first position in the panel. Now the petitioner has come to challenge the legality and validity of the selection process. It is now a settled law that legality and validity of the selection process cannot be assailed by the unsuccessful candidate who failed to secure first position in the panel. Reliance may be placed to the judgment in the case of Union of India & Anr. v. Chandra Sekharan & Ors., reported in (1998) 3 S.C.C. 694 as well as in the case of Madan Lai v. State of Jammu & Kashmir reported in (1995) 3 SCC 486 : [ 1995(2) SLR 209 (SC)] and Omparkash Sukla v. Akhilesh Kumar Sukla reported in AIR 1986 SC 1043 : [1986(1) SLR 699 (SC)] as well as the latest judgment of Apex Court in the case of Chandra Prakash Tiwari v. Shakuntla Shukla reported in (2002) 6 SCC 127 : [2002(7) SLR 241 (SC)] . In the judgment Chandra Sekharan (supra), Omparkaksh Shukla (supra) and Madan Lal (supra) were also considered. However, a 3 Judges Bench of the Apex Court passed a judgment in the case of Raj Kumar & Ors. v. Shakti Raj & Ors., reported in (1997) 9 SCC 527 , wherein in paragraph 16 for the purpose of the said case which was decided by the Apex Court , judgment passed in Madan Lal (Supra) was distinguished, but the Apex Court reiterated the principle of Madan Lal (Supra) holding, inter alia, that that is the basic principle of law. In the said judgment Raj Kumar (Supra) the Apex Court was considering in a different factual matrix wherein the entire selection process was bad in law as the concerned rule was not followed. In that case the procedure under 1955 rules was followed without taking into consideration the notification of the year 1970. On that issue, the court held that principle of estoppel by conduct or acquiescence has no application to the facts of that case. Relevant paragraph 16 which will be profitable for adjudication of this matter of the said citation reads thus: "Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obiviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J. & K 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. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law." On a bare reading of the said paragraph, it appears that the Apex Court exercised the power under Article 142 of the Constitution of India in dealing with the said case by holding, inter alia, that in that particular case as decided, the Government committed glaring illegalities in the procedure to 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 Board and also conduct of the selection in accordance with the rules. Under such special fact, the Apex Court held that principle of estoppel by conduct and acquiescence has no application to the facts of that case. In view of the observation of the court as made thereto, it appears that it was not a judgment in terms of Article 141 of the Constitution of India, but it was a judgment delivered under Article 142 of the Constitution of India on the special fact of the case while taking a contra view of Raj Kumar (Supra), the court did not cancel the proposition of law passed in Madan Lal (Supra) case. However, it appears that by a subsequent judgment in Chandra Prakash Tiwari's case (Supra), the Apex Court held that estoppel principle is squarely applicable in respect of unsuccessful candidate to challenge the legality and validity of the selection process. From the present case in hand, it appears that the vacancy was a causal vacancy and to fill up such vacancy a selection sub committee was constituted wherein uncle of respondent No. 6 was a member. by the letter dated 5.5.2003 as it appears from the affidavit in opposition at page 9 that Sri Ajit Kumar Poddar, uncle of respondent No. 6 resigned from such committee and he never attended the selection process as well as did not participate in the selection process by awarding marks which was held on 8.5.2003 by holding interview of candidates. In that view of the matter, the allegation of the petitioner that the selection process was influenced by presence of relatives of respondent No. 6, is not legally sustainable, and accordingly the principle 'Memo debit sue proprio causa' (sic) man to be judge of his own cause has no applicability in the instant case. Relative of respondent No. 6 was never a party in the decision making process of such selection. So far as other allegation as made that the Governing Body has not issued appointment letter, surely it is bad in law. Under the statutory regulation, it is the Governing Body which is required to take a decision for appointment on considering the recommendation of the selection committee. Relevant provision of Statute 8(MC), clause (2) sub- clause (b) reads thus: St. 8(MC)(2) in particular and without prejudice to the generality of the foregoing provision, the governing Body of a college, in order to provide the instructional and other services necessary for the efficient and effective functioning, shall exercise the following power and discharge the following duties, namely- (b) To create non-teaching posts with the approval of the University and the State Government and make appointments thereto on the recommendation of the appropriate selection committees." In view of such statutory regulation, the appointment letter as issued in favour of the respondent No. 6 is contrary to the statutory provision but his selection cannot be said as illegal. Furthermore, the contention as made in so far as non-sponsorship of name from the Employment Exchange, it is not legally sustainable, as the vacancy relates to casual vacancy, and the petitioner himself appeared without being sponsored from the Employment Exchange. So far as the creation of vacancy as submitted, there was no prior approval of the State of West Bengal, the statutory regulation never speaks to have such prior approval of the Government in the matter of casual vacancy. In that view of the matter, since the petitioner is estopped in terms of section 115 of the Evidence Act, to challenge the legality and validity of the selection process, wherein he was a party seeking his consideration by that selection committee, the petitioner has no legal right to challenge the same. Learned Advocate for the respondent No. 5, however, has contended, inter alia, that the appointment letter as issued though was not with prior and in terms of the resolution of the Governing Body of the college, but in the appointment letter it was mentioned that the same would be subject to the approval of the Governing Body and post appointment approval has already been sought for by fixing an agenda which is to be considered in the next meeting of the Governing Body. Taking into account of the statutory provision, there is no scope of such post appointment approval. Every appointment must be with resolution of the Governing Body and in that view of the matter, since there is no decision of the Governing Body, accordingly the appointment letter of the respondent No. 6 is contrary to the rule, and hence it is accordingly quashed.
(2.) In that view, this writ application is partly dismissed so far as challenge of selection and partly allowed so far as issue of appointment of letter. However, appointment as challenged, since it is on infringement of rule, the appointment letter is hereby cancelled, but the Governing Body would be at liberty to consider the recommendation of the selection committee and to issue fresh appointment letter in favour of respondent No. 6. All interim orders stand vacated.
(3.) Urgent xerox certified copy of the order, if applied for, be supplied expeditiously. Order accordingly. ;