Calcutta High Court (Appellete Side)
The Calcutta Municipal Corporation & ... vs Rukhsana Anjum on 1 October, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
M.A.T. 4135 of 2004
The Calcutta Municipal Corporation & Ors.
Versus
Rukhsana Anjum
For the Appellants : Mr. Aloke Kumar Ghosh
Mr. Achintya Kumar Banerjee
For the Respondent/
Writ petitioner : Mr. Kashikanta Moitra
Mr. Y. Ali
Mr. Sufi Kamal
Heard On: 17.09.2008, 19.09.2008 & 23.09.2008
Judgment On: 01.10.2008.
PRANAB KUMAR CHATTOPADHYAY, J.
This appeal has been preferred at the instance of the Calcutta Municipal Corporation and its superior officers assailing the judgment and order passed by the learned Single Judge in the writ petition filed by the respondent No. 1. The learned Single Judge by the aforesaid judgment and order under appeal issued certain mandatory directions to the appellants herein in order to grant relief to the said respondent No. 1/writ petitioner.
The facts leading to the instant appeal are briefly narrated hereinafter:
An advertisement was issued by the appellant-Calcutta Municipal Corporation inviting applications from the interested eligible candidates for filling up the posts of Urdu Teacher in the Primary schools of the said corporation. The respondent No. 1/writ petitioner submitted an application in response to the aforesaid advertisement for the post of Urdu Teacher and appeared at the interview held on 29th August, 1996.
Initially, a common panel of selected candidates including SC and ST candidates was prepared. The respondent No. 1/writ petitioner secured 66th position in the said common panel.
It has been submitted on behalf of the appellants that the Calcutta Municipal Corporation authorities decided to prepare a separate panel for OBC candidates out of the aforesaid empanelled candidates. Therefore, applications were invited from the empanelled candidates along with the copies of the OBC certificates.
In response to the aforesaid advertisement, ten applications from the empanelled male candidates and five applications from the empanelled female candidates were received. According to the appellants, before completion of the aforesaid exercise a letter of appointment dated 18th November, 1997 was inadvertently issued to the respondent No. 1/writ petitioner.
The learned Counsel of the appellants submits that the said offer of appointment made to the respondent No. 1/writ petitioner could not be acted upon since the panel of OBC candidates, both male and female, were required to be prepared and finalised before giving appointment to the said post. The respondent No. 1/writ petitioner admittedly did not apply for the said post of Urdu Teacher as OBC candidate.
Ultimately, the appellant No. 2 herein by the written communication dated 15th June, 1998 informed the respondent No. 1/writ petitioner regarding cancellation of the offer of appointment dated 18th November, 1997. Challenging the aforesaid order of cancellation of the offer of appointment, respondent No. 1 herein filed a writ petition before this Hon'ble court which was registered as W.P. No. 16989 (W) of 1998 and finally disposed of by the judgment and order under appeal.
Mr. Aloke Kumar Ghosh, learned Counsel representing the appellants submits that preparation of separate panel of OBC candidates was made for the purpose of fitment into the roster in terms of the policy which came into vogue at the relevant time. Mr. Ghosh admitted that the respondent No. 1/writ petitioner did not claim herself as an OBC candidate since the said respondent No. 1/writ petitioner obtained the OBC certificate on 13th July, 1997 whereas the letter of interview was issued on 20th March, 1996. Mr. Ghosh further submits that at the initial stage of recruitment process no reservation of posts for OBC candidates was made and, accordingly, no applications were received from the OBC candidates. Therefore, the panel was prepared with the successful candidates of all categories including OBC and in the said common panel, the respondent No. 1/writ petitioner secured 66th position.
Mr. Ghosh also submits that in view of the specific Government policy it was decided by the appellants that all the successful OBC candidates would be asked to submit their respective certificates, if any, for the purpose of preparation of separate panel of OBC candidates. The competent authority of the appellant No. 1, therefore, asked the successful candidates to submit necessary certificates in this regard by 15th December, 1997. It has been submitted on behalf of the appellants that eighteen empanelled male candidates and five empanelled female candidates submitted necessary certificates for inclusion of their names in the panel of OBC candidates.
According to Mr. Ghosh, before completion of the aforesaid exercise, due to inadvertence and bonafide mistake the offer of appointment dated 18th November, 1997 was issued to the respondent No. 1/writ petitioner. Mr. Ghosh, however, submits that upon completion of necessary exercise with regard to preparation of separate panel for female OBC candidates and male OBC candidates, it appears to the appellants that the respondent No. 1/writ petitioner secured 4th position in the panel prepared for female OBC candidates. Mr. Ghosh submits that the respondent No. 1/writ petitioner was not entitled to be appointed as Urdu Teacher either as a General category candidate or even as an OBC candidate since the said respondent No. 1/writ petitioner secured 66th position in the common panel and 4th position in the separate panel prepared for the OBC female candidates. Mr. Ghosh further submits that the offer of appointment in question was issued in favour of the respondent No. 1/writ petitioner due to inadvertence and bonafide mistake and, therefore, such mistake can always be rectified. Mr. Ghosh also submits that the respondent No. 1/writ petitioner did not acquire any vested right in respect of any post of Urdu Teacher since the said respondent No. 1/writ petitioner secured much lower position in the panel than the last recommended candidate for the posts of female Urdu teachers.
Mr. Ghosh, learned Counsel of the appellants submits that the panel in question was cancelled in the year 2000 and, therefore, issuance of the offer of appointment to the writ petitioner cannot be of any consequence. The learned Counsel of the appellants further submits that at any point of time and even after issuance of the offer of appointment if it appears that the candidate concerned was not eligible to be appointed in view of his/her position in the panel then the said offer of appointment issued by mistake can be rectified. Mr. Ghosh referred to and relied on a decision of the Hon'ble Supreme Court in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another vs. M. Tripura Sundari Devi reported in (1990) 3 SCC 655 in support of his aforesaid contentions.
Mr. Ghosh also cited the following decisions in support of his arguments:
1) 1985 (1) CLJ 156 [Anil Kumar Biswas &
Ors. Vs. State of West Bengal & Ors.]
(Paragraphs 11 & 12)
2) (2004) 6 SCC 311 [Bar Council of India
vs. High Court of Kerala] (Paragraphs 4,
5, 49 & 50)
3) (2006) 8 SCC 192 [Union of India & Ors.
vs. Bikash Kuanar] (Paragraph 12)
4) (2007) 1 SCC 331 [Shekhar Ghosh vs.
Union of India and another] (Paragraphs
17, 19, 21 & 22)
5) (2007) 4 SCC 54 [Ashok Kumar Sonkar vs.
Union of India and others] (Paragraphs
26 to 28 & 32 to 35)
Mr. Kashikanta Moitra, learned Senior counsel representing the respondent NO. 1/writ petitioner submits that the cancellation of the offer of appointment of the respondent NO. 1/writ petitioner by the appellants herein cannot be sustained in the eye of law since no opportunity of personal hearing was granted by the said appellants before cancelling the offer of appointment of the writ petitioner. Mr. Moitra further submits that the respondent No. 1/writ petitioner never applied for the post of Urdu Teacher as a candidate of OBC category and in the advertisement published by the Calcutta Municipal Corporation inviting applications for filling up the said posts of Urdu Teacher, no reservation was made for OBC category candidates.
Mr. Moitra submits that in the aforesaid circumstances, appellants herein are not entitled to cancel the offer of appointment of the writ petitioner on the ground that the said writ petitioner did not secure top position in the panel prepared for OBC category candidates. Mr. Moitra also submits that the plea of mistake taken by the appellants herein for cancelling the offer of appointment is totally baseless and unsustainable in law. Mr. Moitra referred to and relied on the decisions of the Hon'ble Supreme Court in the case of State of Punjab & Others vs. Gurdev Singh, Ashok Kumar (AIR 1991 SC 2219, Paragraphs 6, 7 & 8) in support of the contention that the appellants herein were not entitled to review its earlier decision after issuance of the letter of appointment in favour of the respondent No. 1/writ petitioner.
Mr. Moitra further submits that a post-decisional hearing in the facts of the present case is not at all warranted since the appellants herein had already made up its mind. Mr. Moitra referred to and relied on a decision of the Hon'ble Supreme Court in the case of K.I. Shephard & Others vs. Union of India & Ors. reported in (1987) 4 SCC 431 which has been followed in a recent decision of the Apex Court in the case of Shekhar Ghosh vs. Union of India and another reported in (2007) 1 SCC (L&S) 247 (Paragraphs 11 & 17).
Mr. Moitra submits that after issuance of the offer of appointment in favour of the respondent No. 1/writ petitioner, the appellants herein cannot deny the fruit of the said offer to the said writ petitioner. Mr. Moitra referred to and relied on a decision of the Hon'ble Supreme Court in the case of Shridhar son of Ram Dular vs. Nagar Palika, Jaunpur & Others reported in AIR 1990 SC 307 in this regard.
Mr. Moitra also submits that even if there was any mistake on the part of the appellants in the matter of issuing the offer of appointment in favour of the writ petitioner then such mistake could not be rectified without granting opportunity of hearing to the said writ petitioner. Mr. Moitra referred to and relied on the decision of the Hon'ble Supreme Court in the case of Messrs. Ghaio Mal & Sons vs. State of Delhi & Others reported in AIR 1959 SC 65 in support of his aforesaid contention.
Considering the aforesaid submissions of the learned Counsel of both the parties we are of the opinion that following questions are to be answered in the present appeal:
1) Whether the appellants herein were justified in cancelling the offer of appointment issued earlier in favour of the respondent No. 1/writ petitioner on the ground that the same was issued due to inadvertence and bonafide mistake?
2) Whether the appellants could rectify the alleged mistake behind the back of the respondent No. 1/writ petitioner without granting even an opportunity of hearing to the said writ petitioner?
There is no dispute that the appellant No. 2 herein by the written communication dated 15th June, 1998 cancelled the offer of appointment issued in favour of the respondent No. 1/writ petitioner on the ground that the same was issued by mistake. Scrutinising the records produced by the appellants herein we find that the respondent No. 1/writ petitioner secured 66th position in the common panel and 4th position in the separate panel prepared for the OBC female candidates.
From the letter of the appellant No. 2 dated 15th June, 1998 written to the respondent No. 1/writ petitioner we find that out of 74 Urdu female candidates, only 12 were given appointment. The learned Single Judge, however, from the records found that 14 vacant posts of Urdu female teacher had to be filled up.
It is not in dispute that as per 100 point roster every 9th vacant post should be filled up by an OBC candidate. Therefore, even out of 12 vacant posts of Urdu female teacher only one post could be filled up by OBC candidate and one Bushra Zeba was given appointment as Urdu female teacher from the OBC category since said Bushra Zeba secured first position in the panel prepared for OBC female candidates. In the common panel also said Bushra Zeba secured 17th position. Therefore, under no circumstances, the respondent No. 1/writ petitioner could be appointed as Urdu female teacher superseding said Bushra Zeba who secured much higher position in the common panel than the said respondent No. 1 and also secured top position in the panel prepared for the OBC female candidates.
Considering the total number of available vacant posts of Urdu teacher and the position secured by the respondent No. 1/writ petitioner either in the common panel or in the panel prepared for the OBC female candidates, we are of the opinion that the appellants herein had no scope to offer appointment to the respondent No. 1/writ petitioner. Furthermore, the said respondent No. 1/writ petitioner also did not claim that the offer of appointment could be issued by the appellants herein in view of her position in the panel prepared by the said appellants for the vacant posts of Urdu teacher. The respondent No. 1/writ petitioner could not even mention any reason in support of her claim for appointment to the post of Urdu teacher and only urged before this court that the offer of appointment made by the appellant No. 2 could not be cancelled subsequently on the ground of rectification of mistake without observing the principles of natural justice by way of granting an opportunity of hearing before such cancellation.
However, from the facts mentioned hereinbefore, we are convinced that the appellant No. 2 herein issued the offer of appointment to the respondent No. 1/writ petitioner by mistake and such mistake is apparent on the face of the record. In the event any mistake is apparent on the face of the record then such mistake can be rectified even without granting any hearing to the aggrieved party. The Hon'ble Supreme Court in the case of Union of India & Ors. vs. Bikash Kuanar reported in (2006) 8 SCC 192 observed:
"12.................................Rectification of a mistake, however, may in a given situation require compliance with the principles of natural justice. It is only in a case where the mistake is apparent on the face of the record, a rectification thereof is permissible without giving any hearing to the aggrieved party."
The other decision cited on behalf of the appellants in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram (Supra) is very much relevant in the facts of the present case. In the aforesaid decision, Hon'ble Supreme Court observed:
"4................................................However, the second stage at which the documents are scrutinised is when the higher authorities go through them at the time the candidate concerned approaches them for resuming (sic assuming) duties along with the original certificates. It is at that stage that the mistake was discovered in the present case and the respondent was not permitted to resume her duties. We see nothing wrong in this action."
Mr. Moitra, learned Senior Counsel representing the respondent No. 1/writ petitioner strongly relied on the decision of the Hon'ble Supreme Court in the case of Shekhar Ghosh (Supra) in support of his contention that rectification of mistake should not be done without giving opportunity of hearing to the affected party and a post-decisional hearing in such circumstances is not at all contemplated in law.
We fail to understand how the aforesaid decision can be of any assistance to the respondent No. 1 herein in the facts of the present case as the Hon'ble Supreme Court in the aforesaid case specifically held that requirements to comply with the principles of natural justice would vary from case to case and also followed the earlier decision in the case of Union of India & Ors. vs. Bikash Kuanar, which we have already mentioned hereinbefore.
The other decisions cited by Mr. Moitra on behalf of the respondent No. 1/writ petitioner are not at all applicable in the facts of the present case specially when we are of the opinion that if an opportunity of hearing was granted to the respondent No. 1/writ petitioner then also it was not possible to arrive at a different finding and the same would have been a futile exercise. It is well settled that a Court of law should not insist on compliance with useless formality.
Furthermore, mistake cannot confer any right to any party and the same can be corrected after detection. In the case of Union of India vs. S.R. Dhingra and others reported in (2008) 2 SCC 229, Supreme Court specifically held at Paragraph 23 as follows:
"23...................................................It appears that due to a clerical error the notional benefits of the respondents w.e.f. 1-1-1986 were wrongly fixed and such retired employees are getting excess pension. It is well settled that a mistake does not confer any right to any party and can be corrected."
For the aforementioned reasons, we do not find any impropriety and/or irregularity and/or illegality in the impugned decision of the appellants herein with regard to the cancellation of the offer of appointment of the respondent No. 1/writ petitioner. We, therefore, hold that the appellants herein were justified in cancelling the offer of appointment issued in favour of the respondent No. 1/writ petitioner on the ground that the same was issued due to bonafide mistake. We further hold that the appellants did not commit any wrong in rectifying the said mistake without granting any opportunity of hearing to the said respondent No. 1/writ petitioner since such mistake was apparent on the face of the record.
In the aforesaid circumstances, the impugned judgment and order passed by the learned Single Judge cannot be sustained and the same are set aside accordingly.
The instant appeal thus stands allowed.
In the facts and circumstances of the present case, there will be, however, no order as to costs.
Let urgent Xerox plain copy of this judgment and order, duly countersigned by the Assistant Registrar (Court), be handed over to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]