Calcutta High Court (Appellete Side)
Supriya Dutta & Ors vs The State Of West Bengal & Ors on 19 December, 2008
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
AND
The Hon'ble Justice Aniruddha Bose
W.P.S.T.81 of 2006
WITH
CAN No.7120 of 2006
Supriya Dutta & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners: Mr. D.N.Roy,
Mr. Nilratan Banerjee,
Ms.Munmun Tiwary.
For the State: Mr. Subrata Mukhopadhyay,
Mr. Debashis Saha.
For the Respondent No.7: Mr. Subir Sanyal,
Mr. Sutirtha Das.
For the Added Respondents: Mr. Kishore Mukherjee,
Mr. Dipanjan Dutta.
2
Judgment on: 19.12.2008
S. P. Talukdar, J.: The writ application under Article 226 of the
Constitution being W.P.S.T.No.81 of 2006 as well as the application being CAN
No.7120 of 2006 were assigned before this Bench by order dated 23rd February,
2008 passed by the Hon'ble the Chief Justice.
The backdrop of the present case may briefly be stated as follows:-
Respondent Nos. 7 & 8 filed an application under Section 19 of the
Administrative Tribunal Act, 1985 praying for direction upon the respondents to
quash and/or cancel the panel forthwith which was prepared by the State-
respondents for filling up the posts of Accounts Clerk, Correspondence Clerk and
Typist Clerk in the Block Offices within the district of Birbhum. It was registered
as O.A. no.643 of 2002. The State-respondents contested the case by filing reply
and the said applicants before the Tribunal submitted rejoinder thereto.
The present petitioners were all empanelled for the said posts. They filed
an application for addition of party in the said application being O.A. No.643 of
2002 enclosing the panel of candidates recommended to the District Magistrate,
3
Birbhum for approval and issuance of appointment letters in order of merit. The
petitioners claimed that they are necessary parties in the original application and
without hearing them, the panel already prepared should not be cancelled
and/or quashed. It was contended before the learned Tribunal that the selection
was properly made and the panel so prepared ought to be declared valid. It was
pleaded that appointments should be made on the basis of the said panel. Some
candidates from the said panel were already given appointment. After hearing
the learned Counsel for the parties, the learned Tribunal passed an order and
judgment dated 21st December, 2005 while disposing the application being O.A.
No.643 of 2002 along with another identical application being O.A. No.1322 of
2002.
The said applications were disposed of by the learned Tribunal on the
finding that no illegality could be found in the matter of taking examination by
way of clubbing together all the vacancies in a single examination. The learned
Tribunal did not find any reason to quash the panel and/or direct the State-
respondents for taking fresh steps for filling up those posts by taking
examination and/or interview. Thus, the claim as made by the petitioners in
O.A. No.643 of 2002 was turned down. Since liberty was given by the learned
Tribunal to the State-respondents for filling up the remaining posts according to
the panel with utmost expedition, preferably within a period of six months from
the date of communication of the order, the respondents-authorities resorted to a
decision prejudicial to the interest of the petitioners in not filling up the posts
4
which were lying vacant from the said panel so prepared. The Respondents-
authorities sought to fill up the posts by requisitioning names from the
concerned Employment Exchange ignoring the propriety and validity of the panel.
Call letters were sent to different candidates who were directed to appear in a
written test for recruitment to the said posts. The date for such examination was
fixed on 12th February, 2006. The learned Tribunal by its judgment and order
dated 21st December, 2005 did not give the Respondents-authorities a mandate
to exhaust the panel within a fixed time. Only liberty was given for filling up the
remaining posts according to the panel. The authority-concerned in a conscious
calculated manner taking advantage of liberty sought to take such action which
is prejudicial to the interest of the present petitioners. The order dated 21st
December, 2005, thus, requires to be modified to the extent that unless the panel
is exhausted within a specified time, no fresh selection should be made for filling
up the said posts.
Being aggrieved by and dissatisfied with the judgment and order dated 21st
December, 2005, the petitioners approached this court with the instant
application under Article 226 of the Constitution. They sought for modification of
the judgment and order of the learned Tribunal dated 6.4.2002 to the extent that
all appointments be made by the Respondents-authorities from the panel in
question and unless the panel is exhausted, the respondents-authorities may be
restrained from filling up the vacancies from any other sources or even by way
initiating a fresh selection process.
5
Respondent Nos. 3 & 4 contested the case by filing Affidavit-in-Opposition
wherein all the material allegations made by the petitioners had been denied. It is
claimed that as per recruitment rules, notification for 11 vacancies under the
general category was made by Memo being no.6772p dated 27th August, 2001.
Open advertisement was issued as well. Written test was followed up by typing
test and personality test. For 11 vacancies, a panel of 55 candidates i.e., in 1:5
ratio was prepared as per merit list. Serial Nos. 1, 2, 3, 4, 5,6,7,9 and 11, except
serial Nos. 8 & 10, were appointed. Serial No.8 was appointed but he did not join.
Serial No.10 could not be appointed due to non-submission of PVR and Medical
report. Candidate being Serial No.12 was appointed against the resultant
vacancy occurred at that time. Candidate being Serial No.13 was appointed as
per Court's order dated 16th April, 2004 and this was as against the resignation
submitted by the candidate being Serial no.6. Total number of 11 posts have
been filled up and the validity of the panel has expired. In compliance with the
order dated 21st December, 2005 passed in O.A. No.643 of 2002, the District
Magistrate, Birbhum decided to make fresh notification for the purpose of filling
up the existing three vacancies for the posts of Accounts Clerk, Correspondence
Clerk and Typist Clerk in the Block Offices, within the district of Birbhum. 82
candidates appeared in the written test and on the basis of result of the written
test, a panel of 15 candidates was prepared. In view of subsequent order of
Division Bench, oral/ viva voce test was cancelled. Status quo is being
maintained.
6
There is no illegality in the order of the learned Tribunal, which is under
challenge. Learned Tribunal did not find merit in the application and while
disposing of the same granted liberty to the Respondents-authorities to fill up the
remaining vacancies in accordance with law with utmost expedition preferably
within a period of six months.
11 persons whose names were forwarded by District Employment
Exchange, filed an application being CAN No.7119 of 2006 in the pending writ
application praying for allowing them to be added respondents. They claimed that
they duly qualified in the written test held on 6th February, 2006 and were
directed to appear for typing test and interview. But such test was not held in
view of the order passed by the learned Division Bench. They claimed that they
responded to the notification, which was issued in 2006 and their selection is in
no way connected with the selection under reference in the writ application.
Those 11 petitioners were added as respondents and by filing an application,
being CAN No.7120 of 2006, they sought for modification of the order dated 2nd
March, 2006 passed by the Division Bench in the present writ application.
Mr. Roy, as learned Counsel for the petitioners, invited attention of the
court to the order dated 4th August, 2004 passed by the District Magistrate,
Birbhum as annexed to the Affidavit-in-Reply being annexed 'R-2'. Mr. Roy
submitted that the said order would reflect that Sri Nikhil Chandra Mondal, a
7
schedule caste candidate was accommodated. The said order refers to a
notification for filling up of 12 posts, to which 8 posts were subsequently added.
It appears from the Affidavit-in-Opposition that for filling up the 11 posts under
the general category in response to the notification dated 27.8.2001 and open
advertisement dated 15th July, 1998, the written test was held on 10.2.2002 and
typing test was held on 30.3.2003 and 31.32002. The personality test/viva voce
test was held on 2nd April, 2002 to 4th April, 2002. A combined merit list was
prepared in 1:5 ratio i.e., 55 candidates were empanelled for the said 10 posts.
Averment made in the writ application regarding number of vacancies and the
manner of filling up the same find support from the stand taken by the
respondents No.3 & 4 in the Affidavit-in-Opposition. It transpires that in
compliance with the order dated 21st December, 2005 i.e., the District Magistrate,
Birbhum decided to issue fresh notification to the Employment Exchange for the
purpose of recruitment to fill up the existing three vacancies for the posts of
Accounts Clerk, Correspondence Clerk and Typist Clerk in the Block Offices
within the district of Birbhum under the general category. In response to the
notification dated 22nd November, 2005, 82 candidates appeared in the written
test held on 12th February, 2006. As per the said examination, a merit list of 15
candidates under the said category was prepared on 17th February, 2006
for oral/viva voce test. But in view of the order of the Hon'ble Division Bench of
this court, the viva voce test scheduled to be held on 12th March, 2006 was
cancelled.
8
Mr. Roy on behalf of the writ petitioners submitted that in view of the
vacancy position as reflected in the Affidavit-in-Reply two more i.e., Serial Nos.
14 & 15 could be appointed. In this context, attention of the court was invited to
the impugned order of the learned Tribunal dated 21st December, 2005.
Direction of the learned Tribunal in the said case may be set out as follows:
-
"But, before we part with these records, we like to observe that in the instant matter, liberty should be given to the respondents-authorities to fill up the remaining posts according to the panel prepared by them in accordance with law with utmost expedition, preferably, within a period of six months from the date of communication of this order".
Mr. Roy submitted that in absence of any mandatory direction regarding the recruitment on the basis of the panel, the grievance of the writ petitioners could not be redressed.
Learned Counsel for the State-respondents categorically submitted that the order of the learned Tribunal has not been challenged at all. In the meanwhile, life of the panel has expired and thus, the writ application is not maintainable.
On behalf of the added respondents, it was contended that their selection was never challenged. The selection process could not also be challenged in the 9 High Court without assailing the same before the learned Tribunal. In this context, reference was made to the decision of the Apex Court in the case of L. Chandra Kumar vs. The Union of India., reported in AIR 1997 SC 1125.
Mr. Roy submitted that although a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the selection panel or on its whims decline to make the appointment. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. Relying upon the decision of the Apex Court in the case of R.S.Mittal vs. Union of India., reported in 1995 Supp (2) SCC 230, it was submitted that there has to be a justifiable reason to decline to appoint a person who is on the select panel.
Deriving inspiration from the Apex Court decision in the case of State of U.P. vs. Ram Swarup Saroj., reported in (2000) 3 SCC 699, it was submitted by Mr. Roy that claim of a candidate included in the panel was not defeated because currency of panel expired during pendency of litigation when the candidate had staked his claim during the currency of the panel.
No doubt, there is force in the submission made on behalf of the writ petitioners. But the factual backdrop of the present case is significantly different. 10 Here, the selection process virtually came to an end after filling up of the advertised vacancies. The Authority-concerned initiated a further recruitment process. There too, written test had already been held and fixture for viva voce test was fixed. But for the order of this Court, the Authority-concerned would have proceeded with the same as well. But in view of the peculiarity of the situation in the present case, we do not think it necessary to deal with this aspect in further details. The fact remains that subsequent selection process was never challenged before the Learned Tribunal. By filing the present application, the writ petitioners did not, in effect, challenge the order passed by the learned Tribunal. They virtually sought for modification/clarification of the said order. We are afraid, this cannot be permitted and the petitioners for the said purpose could very well approach the learned Tribunal seeking such modification. Alleged right of the petitioners seems to flow from the impugned order of the learned Tribunal and the petitioners thus, had to carefully protect the said order while seeking redressal of grievances before this court. The entire approach of the petitioners, thus, suffers from antagonistic contradiction.
Thus, it is difficult to appreciate the grievances as ventilated in the present application.
So, the case being W.P.S.T. No.81 of 2006 fails and be dismissed. Consequently, the application being CAN No.7120 of 2006 stands disposed of since interim order passed in the writ application, thus, stands vacated. 11
There is no order as to costs.
Xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.
I agree,
(Aniruddha Bose, J.) (S. P. Talukdar, J.)