Calcutta High Court (Appellete Side)
Jyotsna Mondal vs State Of West Bengal & Ors on 26 September, 2016
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Dr. Sambuddha Chakrabarti
W. P. No. 5461(W) of 2015
Jyotsna Mondal
Versus
State of West Bengal & Ors.
For the petitioner : Mr. Mahendra Prasad Gupta, Ld. Advocate
Mr. Mukunda Lal Sarkar, Ld. Advocate
For the State-respondents : Mr. Jaharlal De, Ld. Advocate
Mr. Srikanta Paul, Ld. Advocate
Heard on : 09.09.2016 & 26.09.2016
Judgement on : 26.09.2016
Sambuddha Chakrabarti, J.:
This writ petition is directed against an order passed by the Sub-Divisional Officer, Ranaghat, i.e., the respondent no. 6, on August 22, 2014. This order was passed pursuant to an order passed by this court in an earlier round of litigation whereby a learned single Judge of this court directed the respondent no. 6 therein to dispose of the representation by passing a reasoned order within a certain timeframe as directed.
The representation which was supposed to be considered by the respondent no. 6 has been annexed to the writ petition as Annexure P-7. The only grievance made by the petitioner in the said writ petition was that she had been working as an ASHA Karmee for quite some time. She had applied pursuant to the notification issued by the respondents but she had suddenly come to know that there has been an effort on the part of the respondents to engage a wealthy lady improperly. She prayed to the respondent no. 6 to be appointed for the post.
Therefore, the sole consideration before the respondent no. 6 was the representation of the petitioner, as per order of the learned single Judge in the earlier round of litigation. However, before the respondent no. 6 the petitioner produced an unsigned score-sheet where the name of the petitioner was found first. The petitioner had also brought allegation against the Pradhan of the concerned Gram Panchayat for not selecting her for the post of ASHA Karmee. The petitioner, as it appears from the order impugned, went that far to submit that the Pradhan of the concerned Gram Panchayat was bribed and, therefore, selected the less qualified candidate and, therefore, the selection was liable to be set aside.
Before the respondent no. 6 different authorities appeared. The respondent no. 6 held the score-sheet to be manufactured and bad. The former Pradhan had identified her signature in the official list and stated that the private respondent no. 11 had topped the list and the petitioner was not selected as she appeared at the Madhyamik Examination but became unsuccessful. Similarly, reports from the concerned Block Development Officer also revealed that the respondent no. 11 stood first by securing the highest marks. The explanation given by the petitioner was that she clandestinely was able to manage the score-sheet from the Gram Panchayat office with the help of some undisclosed sources and admitted that it did not contain any signature of anybody on the selection committee. Subsequently, she filed an affidavit on her own which contained letters of two members of the selection committee. On verification of the score- sheet it appeared to the respondent no. 6 as clear that the signatures of those two persons were put with fresh ink on the xerox score-sheet on a later date. Otherwise, the SDO concluded, the score-sheet would have been placed as an annexure to the writ petition. During the cross-examination and interrogation those two members of the selection committee fumbled and made contradictory statements which did not inspire sufficient confidence of the respondent no. 6. He came to a definite conclusion that these two persons had put their signatures on the xerox copy whereas both of them identified their signatures in the panel list to be true and original. From this the respondent no. 6 concluded that the score-sheet was fictitious, a manufactured document and it has been purposefully placed as part of the writ petition to place the petitioner at the first position. The respondent no. 6 relied on the document submitted by the Block Development Officer where all the members of the selection committee had put their signatures in their stipulated places.
So far as the marksheet is concerned, the respondent no. 6 found that the petitioner got a compartmental in science group and was treated unsuccessful candidate in the Madhyamik examination in the year 1989 whereas the selected candidate found at the top of the official list obtained much higher marks than that of the petitioner and he passed the Madhyamik examination in the 2nd division.
I have heard Mr. Gupta, the learned Advocate for the petitioner, at length and have given my anxious consideration to the facts of the case. I do not find any impropriety or lacunae in the order impugned in the writ petition. Whether a document is fictitious or valid cannot be determined by a writ court. That calls for evidence. The respondent no. 6 has taken evidence of all the concerned persons and came to a conclusion that the score-sheet produced by the petitioner was a manufactured one. The reasons he mentioned for the conclusion were clear, unambiguous and logical. He has placed the reasonings in their logical sequence from which the conclusion he reached can perhaps be said to be the only one under the circumstances. Whether there was any error in appreciation of evidence relates to the purview of a disputed question of fact. Such an exercise cannot be undertaken by a writ court.
On the contrary I hold that the respondent no. 6 had passed a well reasoned and internally integrated order which does not call for any intervention of this court. The petitioner had relied on an unsigned score-sheet which he admittedly obtained from the Panchayat office in a clandestine manner whereas the members of the selection committee identified their signatures in the official panel. The respondent no. 6, apart from the lack of signature and the failure on the part of the petitioner to prove the validity of the unsigned score-sheet, went beyond that and found that even if one goes by the marksheet the private respondent had scored higher marks than the petitioner and for her to get higher marks there were valid reasons. Mr. Gupta, the learned Advocate for the petitioner, submitted that the score-sheet which the petitioner placed before the respondent no. 6 was the one which was relied upon by her in the earlier round of litigation and nobody questioned the same at the time of disposal of the writ petition, therefore, the State also cannot dispute it as being barred by the principles analogous to constructive resj udicata.
In support of his contention he has relied on the case of Dadu Dayalu Mahasabha, Jaipur (Trust) -Vs.- Mahant Ram Niwas and anr., reported in AIR 2008 SC 2187 for a proposition that the ratio of a decision is binding and not an observation. The claim of the plaintiff, the Supreme Court held with reference to the facts of that particular case, on the basis of his legal entitlement was rejected by the Supreme Court. In the earlier suit the issue undisputedly was the claim of the entitlement to Gaddi by the plaintiff and all plea contrary thereto raised by the appellant. Once the issue of entitlement stood determined the same would operate as a res judicata. The suit for possession was barred by both res judicata as well as operation of Order 2 Rule 2 of the C.P.C.
I cannot appreciate why this judgement was cited by the petitioner. There is a big factual difference inasmuch as the Supreme Court had proceeded on the basis that once the issue of entitlement stood determined the same would operate as a res judicata. Here the entitlement to the petitioner never stood determined. Otherwise there would not have been any occasion for the court to send the matter back for consideration. Even that apart a petitioner or for that matter a plaintiff cannot take the plea of res judicata. Res judicata is a plea available to the respondent or the defendant. Mr. Gupta once used it as an offence in his hand as against the respondents as they had not taken the point. It is not understood how, even if one accepts that there was lapse on the part of the respondents, the petitioner can take advantage of res judicata. A point which could have been taken by the respondents in the earlier round of litigation, if not taken, does not operate as a res judicata against a defendant or a respondent. I believe what the petitioner wanted to submit is an issue of waiver or estoppel. But res judicata is farthest from the issue involved here.
After a bare reading of the order passed by the learned single Judge pursuant to which the order impugned in the writ petition was passed it cannot also virtually be said that the document relied on by the petitioner had been accepted by the respondents. It was the specific submission of the petitioner before the learned single Judge that since the representation regarding the selection of the private respondent had been filed before the respondent no. 6, appropriate direction might be issued for consideration of the same. And in view of such submission the learned single Judge sent the matter back to the respondent no. 6. Neither the parties had any occasion to deliberate on the issue nor did the learned Judge had any occasion to address himself to the score-sheet appended. After all, the writ petition had not been decided on affidavits. The learned single Judge had specifically observed that he had not entered into the merits of the matter and all points had been kept open. Over and above everything, the learned single Judge had directed the respondent no. 6 to verify the records and pass the order after ascertaining the correctness of the things as stated in page 24 of the writ petition and after making necessary enquiry. Page 24 of the writ petition was a part of Annexure P-3 and that was the unsigned document by which the petitioner had been declared as the first candidate. The veracity of the said document was not unquestioned and the learned single Judge was not apparently satisfied with the same. Therefore, he left the matter to the respondent no. 6 to ascertain the correctness of the said document and the respondent no. 6 in the present case has exactly done so. I fail to understand how the question of even estoppel does arise. Apart from the fact that the respondents did not get any opportunity to file any affidavit, the learned Judge himself was questioning the validity of the document and that is how he sent the matter back.
For the reasons mentioned above, I find no merit in the writ petition and the same is dismissed.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the respective parties upon compliance of all requisite formalities.
(Dr. Sambuddha Chakrabarti, J.)