JUDGMENT [ENTITY], J.
1. The present case arises out of an application under [SECTION] of the [ACT]. It is directed against the judgment dated 5.7.1999, passed by the West Bengal State Administrative Tribunal, hereinafter referred to as "the Tribunal" in [CASE NUMBER].
2. Grievances of the petitioner may briefly be stated as follows :
Petitioners appeared in the written test on 9.7.1995 and thereafter, in the interview held on 30.7.1995 for recruitment to the post of Trainee [ENTITY]. While waiting in anxiety, it could be learnt that a few other candidates started their training. The petitioners approached the authority concerned and on 11.11.1996, came to know that the panel with their names had been cancelled. They made an application on 15.11.1996, alleging therein that in spite of being selected, the Principal Secretary, Department of Agriculture, by an order dated 31.8.1996 (Memo No. 286-ACC/26/96 dated 31.8.1996) cancelled the same. But some persons were sent for pre-service training. It could be learnt on enquiry that some persons moved a writ petition, being [CASE NUMBER], challenging the order of cancellation. The said case was renumbered as [CASE NUMBER]. A second list was prepared for the rest 20 candidates. Those approaching the High Court were favoured with appointment letters. Applicants prayed for immediate approval of second list. The candidates who approached the High Court withdrew the application on assurance of the authority concerned that they would be provided with suitable appointment. Application filed by them was so allowed to be withdrawn by order of the Tribunal dated 29.8.1996.
3. Entire examination of the Purulia District having been cancelled by order dated 31.8.1995, there could be no question of giving appointment to a few.
4. The petitioners then moved an application on 29.11.1996 and it was disposed of by the Tribunal with a direction to treat the same as a representation and dispose of the same by passing a reasoned order within six weeks from the date of communication. An interim order of status quo was passed.
5. The petitioners received an order dated 26.3.1997 containing various findings which included that they were not selected on merit, selection committee selected 20 candidates which was approved by the higher authority, waiting list of 21 candidates in order of merit was prepared which contained the name of [ENTITY] against serial No. 10. It was also mentioned that this was so done as per instruction of the higher authority.
6. But there was no explanation as to how could such action be taken when the examination was cancelled by the authority concerned by its letter dated 31.8.1995. From a document annexed by the added respondents, it could be learnt that Officer on Special Duty & Ex-officio Deputy Secretary issued an order dated 3.9.1996, signed on 8.9.1996, disclosing that the Government has since decided to start process of recruitment of trainee in the district of Purulia.
7. Order of cancellation was issued by the Principal Secretary and so there could be no scope for reviewing of the same by his subordinate authority being the Deputy Secretary.
8. Arrangements for pre-service training in favour of added applicants were made with a view to wrongful gain and as such, the entire process for pre-service training is liable to be struck down. The order dated 3.9.1996 was not issued in the name of the Governor. There is no whisper that such order was communicated to the Principal Agriculture Officer, Purulia. It was signed on 8.9.1996 which was a Sunday. It did not refer to the fact that it was in the form of cancellation of the earlier order passed by Principal Secretary. The said order dated 3.9.1996, signed on 8.9.1996, was communicated to the Principal Agriculture Officer, Purulia, who issued order dated 9.9.1996 relating to pre-service training in favour of the added respondents. The latter were asked to attend office on 10.9.1996 and the Principal Agriculture Officer, Purulia, issued a Memo to Chief Medical Officer of Health, Purulia, requesting him to arrange for medical examination. On 11.9.1996, letter of selection for pre-service training was issued. In fact, training was started before issuance of the said selection letter.
9. In spite of repeated prayer for production of order of reconsideration of the earlier order cancelling the examination, the Tribunal referred to the Rules of Business empowering the Deputy Secretary to issue an order. The Tribunal failed to appreciate that the same memo dated 3.9.1996 was a mere communication and not an order of reconsideration. The Tribunal by holding that the petitioners are not successful candidates has dealt with the matter from a different perspective. The Tribunal could not appreciate that the authority concerned adopted unfair means thereby giving appointment to a favoured few. The entire selection process is based on illegal methods adopted by the authority concerned and as such, is liable to be cancelled. In the circumstances, the petitioners have filed the present writ application under [SECTION] of the [ACT] praying for setting aside of the judgment dated 5.7.1999 passed by the Tribunal.
10. The said case was contested before the Tribunal where the respondent No. 2, being the Principal Agriculture Officer, Purulia, claimed that after cancellation of the written examination, [ENTITY] & Ors. filed [CASE NUMBER] in the High Court, Calcutta. The said case was disposed of by the Tribunal after its transfer from the High Court. On 3.9.1996, the Government withdrew the cancellation order and directed the authorities to take steps for filling up the vacancies. Thereafter, 20 successful candidates were sent for undergoing pre-service training. The added respondents filed a joint reply contending inter alia, that the applicants had no case and their application needed to be dismissed. It was denied that they were the favoured few of the concerned Administrative Authority. They were selected for pre-service training under the order of the higher authority. There was no irregularity in the passing of the order on 3.9.1996 by the Deputy Secretary with the approval of the concerned authority as under the Rules of Business "Secretary" includes a Deputy Secretary. The Tribunal by passing the impugned judgment dated 5.7.1999 dismissed the said application. The said judgment also governs [CASE NUMBER] which was heard analogously with the earlier application.
11. Learned Counsel for the petitioner Mr. [ENTITY] has submitted that the Tribunal by dismissing the application filed before it has failed to appreciate the matter in its proper perspective.
12. Mr. [ENTITY] has submitted that the Tribunal has relied upon materials, partly relevant and partly irrelevant and as such, the finding arrived at by the Tribunal is vitiated. In this context, he has referred to the decision in the case of [PRECEDENT], . It is contended that the decision of the Tribunal is based partly on conjectures, surmises and suspicions and partly on evidence and as such, in such a situation clearly an issue of law arises. Referring to the decision in the case of [PRECEDENT], * it has been submitted that the inherent impropriety in the order of the Tribunal which has been sought to be assailed, demands and deserves interference by the High Court in its exercise of power under [SECTION] of the [ACT]. Mr. [ENTITY] in this context has also submitted that demand and denial of justice are matters of substance and not of form. Referring to the decision in the case of [PRECEDENT], , it has been submitted that an evasion or shelving of a demand for justice is sufficient to operate as a denial. Mr. [ENTITY] has contended that public authorities cannot play fast and loose with the powers vested in them and persons to whose detriment orders are made, are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order. Mr. [ENTITY] has also ventilated grievance over non-production of the relevant record which could throw light as to under what circumstances there was change of decision and referring to the decision in the case of [PRECEDENT]., , it has been submitted that the entire record was required to be produced before the Tribunal.
13. It seems to be the categorical stand of the present petitioners that the concerned authority in dealing with the recruitment of Trainee [ENTITY] has acted in a peculiar manner, thereby favouring a few at the cost of others. It seems to be the contention that to the authority concerned "all are equal, but some are more equal than others". Mr. [ENTITY] has submitted that on receipt of complaints of malpractices, the Principal Secretary of the concerned department by his order dated 31.8.1995 cancelled the written examination held on 9.7.1995 for the recruitment of K.P.S. in Purulia district. The petitioners having suffered as a result of such cancellation, could not subsequently be denied equal treatment with those who were recruited and engaged for pre-service training. Referring to the order passed by the Principal Agriculture Officer, Purulia, while disposing of the representation as per direction of the State Administrative Tribunal in [CASE NUMBER], it has been submitted that there could be no scope for such disposal without applying mind and as per instruction of the higher authority.
14. There is perhaps no scope to brush aside the submission that when an order is based on material, partly relevant and partly not, it may give rise to issue of law thereby demanding fresh consideration. There can be no denial of the fact that a public authority must act in a transparent manner and cannot function in an erratic manner, changing complexion frequently to suit the convenience of the apparently invisible superior authority. The facts and materials on record revealed that subsequent to cancellation of the written examination held on 9.7.1995, there was an enquiry. Learned Counsel for the opposite parties/the State respondents has referred to the fact that an enquiry was held by a Deputy Secretary, Mr. [ENTITY], in connection with the written examination for recruitment of K.P.S. in Purulia district. The enquiry report does not disclose anything so as to justify treating the chapter as closed. In such circumstances, the matter was reopened thereby calling for fresh consideration and further decision in regard to the written examination and the interview held earlier.
15. Mr. [ENTITY], learned Counsel appearing for the opposite parties has submitted that the petitioners wanted to be in the selected list. Their matter was referred to the Principal Agriculture Officer, who did not allow. According to Mr. [ENTITY], the present grievance challenging the selection process is barred by the principles of constructive res judicata in view of earlier order of the Tribunal dated 29.11.1996. Referring to the decision in the case of [PRECEDENT]., , it has been argued that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.
16. Mr. [ENTITY] has submitted that admittedly a written test was held on 9.7.1995 and it was followed by an interview held on 30.7.1995. Two categories of candidates were empanelled which included 20 successful candidates. In view of complaints regarding the manner in which such examination was conducted, the then Principal Secretary of the Agriculture Department by his order dated 31.8.1995 cancelled the written examination held on 9.7.1995. Thereafter, the matter was enquired and in absence of any gross irregularity, authority concerned decided to proceed with the result of the said examination. According to Mr. [ENTITY], the petitioners were not successful in the examination. Their grievance, as ventilated earlier before the Administrative Tribunal, was taken care of by its order dated 29.11.1996. The application filed by them was directed to be considered as a representation which was again disposed of as per direction of the Tribunal.
17. Mr. [ENTITY], learned Counsel for the petitioners has drawn attention of the Court to the fact that an order dated 31.8.1995 passed by the Principal Secretary has been cancelled by an officer much subordinate to him. According to him, this change of decision is in clear violation of the basic administrative norms. He has also further contended that [SECTION] of the [ACT] does not permit the concerned administrative authority to act in such a manner. In response to this, Mr. [ENTITY] has submitted that the mere fact that an officer of the rank of Principal Secretary cancelled the written examination held on 9.7.1995 does not necessarily mean that such order could not be reconsidered at a subsequent stage. Mr. [ENTITY] has found no basis for the grievance that the earlier order of cancellation having been made by an officer of the rank of Principal Secretary, the subsequent order which virtually revived the recruitment process could not have been made by an officer of the rank of Deputy Secretary. Drawing attention of the Court to the Rules of Business, it has been submitted that the word "Secretary" includes "Deputy Secretary". Mr. [ENTITY] has referred to the decision in the case of [PRECEDENT]., in support of his contention that the subsequent decision of reviving the recruitment process was permitted by the Rules of Business. He has also referred to the decision in the case of [PRECEDENT]., while submitting that there is nothing in the Rules of Business which prohibits the subsequent decision as communicated by the order dated 3.9.1996. Mr. [ENTITY], however, has urged that successor-in-office cannot take a contrary decision and in this context, he has referred to the decision in the case of [PRECEDENT] page 27.
18. Mr. [ENTITY], drawing attention of the Court to the communication dated 3.9.1996, has submitted that this was signed on 8.9.1996 which was a Sunday and this reflects mala fide on the part of the authority concerned which decided to change its earlier stand in order to suit its own convenience. Mere fact that an administrative communication has been signed on a Sunday does not necessarily mean that there has been some ulterior motive. I think there is no justification for attempting to read something more than what meets the eyes. In this context, Mr. [ENTITY] has referred to the decision , in support of his contention that mere allegation of ill-motive is not enough. It was held therein that a person seeking to invalidate an administrative order on the charge of mala fide has to establish the charge of bad faith by furnishing necessary particulars. What the party, in such a case, has to prove is not malice in its legal sense. He has to prove malus animus indicating that the State was accentuated either by spite or ill-will against him or by indirect or improper motive.
19. Reference has been made to the decision in the case of [PRECEDENT], while submitting that the Court may invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. Mr. [ENTITY] has also referred to the principle that an order may be void but even a void order remains effective and is in reality valid. An order may be void for one purpose and valid for another and that it may be void against one person but against another.
20. After considering the facts and materials on record and having regard to the submission made by learned Counsel for the parties I am inclined to hold that mere fact that earlier application was referred to for disposal after treating the same as a representation does not mean that the petitioners could not have any further authority to agitate their point. The order passed by the Tribunal dated 29.11.1996, in my opinion does not operate as res judicata and there is no reason as to why the petitioners' grievance, as ventilated in the present application cannot be entertained. The fact, however, remains that the petitioners, in fact, have not challenged the recruitment process and there is no material to suggest that they are the successful candidates. Mr. [ENTITY], learned Counsel for the opposite party/State seems to be perfectly justified in pointing out that the petitioners having not challenged the recruitment procedure cannot get the relief in the manner as sought for. According to him, the petitioners have, in fact, sought to be appointed on the basis of the recruitment process which has otherwise been challenged.
21. It follows from the aforesaid discussion that the petitioners in the present case may have genuine grievances in the manner in which the concerned authority dealt with the recruitment of K.P.S. for the district of Purulia. There is, however, no material to establish that the authority concerned has acted in a mala fide manner. The petitioners have also not seriously challenged the recruitment process and in such circumstances there is little scope for appreciation of their grievance. The Tribunal while dealing with the memo dated 3.9.1996 has found no basis for challenging the same on the ground of illegality. As discussed earlier, such memo was not issued in violation of the Rules of Business nor it can be said that [SECTION] of the [ACT] does not authorise issuance of such memo. There is very little scope for any confusion in regard to the date of issuance of the said memo and mere fact that it was signed on a Sunday does not by any stretch of imagination suggests that there had been any bad motive. The Tribunal has also taken into consideration the fact that the Principal Agriculture Officer while passing the order dated 26.3.1997 gave opportunity of hearing to the present petitioners. The petitioners were not selected on merit, 20 candidates were successful and so, selected. There was a panel of 21 candidates in the form of waiting list. In absence of clear proof of illegality in the selection process, the Tribunal had little scope to interfere.
22. The Tribunal seems to be perfectly justified in pointing out that the decision of the selection committee can only be interfered on the ground of illegality or patent material irregularity in the constitution of the committee or on the ground of proved mala fides affecting selection.
23. Considering all such facts and materials it is difficult to accept that the Tribunal while passing the impugned order has acted in an illegal manner or that the order under challenge suffers from any such infirmity which calls for or justifies any interference by this Court. The present application accordingly stands dismissed.
24. The impugned order dated 5.7.1999 passed by the Tribunal in [CASE NUMBER] stands affirmed.
25. There is no order as to cost.
26. Xerox certified copy of the order, if applied for, be supplied to the parties on payment of requisite fees.
[ENTITY], J.
27. I agree.