Calcutta High Court (Appellete Side)
Apurba Kumar Chowdhury vs State Of West Bengal & Ors on 11 June, 2012
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
11.06.2012. W. P. No. 6273 (W) of 2009
Apurba Kumar Chowdhury
versus
State of West Bengal & Ors.
Mr. Ekramul Bari ... For the Petitioner.
Mr. Sadananda Ganguli,
Mr. Mintu Goswami ... For the State-Respondents.
Sk. Rejaul Alam ... For the Respondent No.4.
Admittedly the petitioner has been serving the school in question as Clerk on temporary basis since the year 2002. When a vacancy was created in a permanent post of Clerk, the petitioner wanted to participate in the selection process for the said post. Undisputedly prior permission was granted by the concerned District Inspector of Schools for filling up the said vacancy from a candidate belonging to general exempted category. It is an admitted fact that the petitioner does not belong to the said category viz., general exempted category.
Since the petitioner was not allowed to participate in the selection process, he moved a writ petition being W.P.No.7778(W) of 2008 before this Court. The said writ petition was disposed of by a learned single Judge of this Court on 28th March, 2008 by directing the school authority to allow the petitioner to take part in the selection process for permanent appointment to the post in question along with other candidates sponsored by the concerned employment exchange by condoning the age bar of the petitioner. It was further directed that if the petitioner was selected, then he 2 would be empanelled as an eligible candidate for the above appointment.
On reading the said order, this Court is of the view that the very fact that the post in question was reserved for the general exempted category candidates and the petitioner does not belong to that category most probably escaped the notice of the Court while disposing of the said writ petition.
Pursuant to the aforesaid direction passed by His Lordship, the petitioner was permitted to participate in the selection process. The panel which was so prepared by the selection authority was kept pending for consideration for some time and as such the petitioner moved another writ petition being W.P.No.27197(W) of 2008 which was disposed of by another learned single Judge of this Court on 20th November, 2008. His Lordship directed the concerned District Inspector of Schools (SE), Paschim Medinipur to take a decision in accordance with the rules in respect of the panel as has been sent to him by the School Managing Committee on 28th July, 2008 within four weeks from the date of communication of that order.
Pursuant to the above direction passed by His Lordship, the panel was taken up for consideration and ultimately the same was disapproved as the said panel was prepared in violation of the existing Recruitment Rules as the Reservation Rule was not followed.
The legality and/or correctness of the said order passed by the concerned District Inspector of Schools (S.E.), Paschim 3 Medinipur on 23rd February, 2009 appearing at page 27 of the writ petition, is under challenge in this writ petition at the instance of the petitioner.
Mr. Bari, learned advocate appearing for the petitioner submits that since the order passed by a learned single Judge of this Court on 28th March, 2008 in W.P.No.7778(W) of 2008 remained unchallenged by any of the parties, the order passed in the said writ petition attained its finality. Mr. Bari, thus, submits that it is settled law that interparties adjudication even if it is erroneous, is binding upon the parties and as such implementation of the said order cannot be avoided.
This Court does not dispute the proposition of law to the effect that the interparties adjudication is binding upon the parties and none of the parties can deny the implementation thereof by questioning the legality of the said order at any subsequent stage. But, at the same time, this Court cannot be oblivious of the distinction between an erroneous order and an order passed without jurisdiction being nullity. It is no doubt true that an erroneous order is binding upon the parties and the implementation thereof cannot be questioned by any of the parties at a subsequent stage. But the parties can certainly challenge the legality of an order passed in an earlier proceeding which is a nullity even at a subsequent stage in a collateral proceeding inasmuch as, such an order does not exist on record.
Let me now consider as to whether the order which was passed on 28th March, 2008 in W.P.No.7778(W) of 2008 is merely an erroneous order or the same is a nullity.
4An order which is passed in contravention of the constitutional right and contrary to the expressed provisions of the Act, cannot be described as merely an erroneous order. Constitution is the source of law. As such, no Court can pass any order by disregarding the constitutional provisions and if any order is passed in derogation of the constitutional mandate, then such order should be regarded as nullity.
Here is the case where admittedly the post in question was reserved for general exempted category. The petitioner admittedly does not belong to that category. A post which is reserved for a particular class of persons as per the constitutional mandate, cannot be dereserved by the Court by disregarding the constitutional provisions.
The identical question was considered by the Hon'ble Supreme Court in the case of Bhatia Co-operative Housing Society Ltd. Vs. D. C. Patel reported in AIR 1953 SC 16 wherein it was held that no court, however high, has jurisdiction to give an order unwarranted by the Constitution.
As such, this Court holds that the order which was passed on 28th March, 2008 in W.P.No.7778(W) of 2008, is not merely an erroneous order. The said order should be regarded as nullity and as such it is incapable of implementation. That apart, if the petitioner is selected for appointment in the post in question, the right which was guaranteed to the deserving candidate belonging to the general exempted category for appointment in the post in question will be forfeited and the 5 policy of reservation guaranteed under the Constitution will be frustrated.
Thus, this Court does not find any illegality in the impugned order by which the concerned District Inspector of Schools refused to approve the panel, as the said panel was prepared by disregarding the Reservation Rules. The writ petition, thus, stands rejected.
(JYOTIRMAY BHATTACHARYA, J.) dc.