Calcutta High Court (Appellete Side)
Fakiruddin Molla vs State Of West Bengal And Others on 18 December, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE SANJIB BANERJEE
And
The Hon'ble JUSTICE SAMAPTI CHATTERJEE
R.V.W 23 of 2017
With
CAN 1252 of 2017
In
W.P.S.T. 316 of 2012
FAKIRUDDIN MOLLA
-VERSUS-
STATE OF WEST BENGAL AND OTHERS
And
R.V.W 24 of 2017
With
CAN 1253 of 2017
In
W.P.S.T. 228 of 2012
BIMAL KUMAR POREL AND ANOTHER
-VERSUS-
STATE OF WEST BENGAL AND OTHERS
And
R.V.W 25 of 2017
With
CAN 1254 of 2017
In
W.P.S.T. 266 of 2012
ANGSHUMAN PAUL
-VERSUS-
STATE OF WEST BENGAL AND OTHERS
For the Petitioners: Mr Saptansu Basu, Sr Adv.,
Mr Dipak Kumar Mukhopadhyay, Adv.,
Mr Bhaskar Prasad Banerjee, Adv.
For the State: Mr Jayanta Mitra, Sr Adv.,
Mr Joytosh Majumder, Sr Adv.,
Mr Debasish Sarkar, Adv.,
Mr Avishek Prasaad, Adv.
Hearing concluded on: December 12, 2017.
Date: December 18, 2017.
SANJIB BANERJEE, J. : -
The three petitions are identical and are dealt with by this common
judgment and order.
2. The petitioners applied in 2001 for the post of sub-officer in the West
Bengal Fire & Emergency Services. Their candidature was sponsored by the
employment exchange. Their grievance over the last sixteen years or so is that
they were unfairly denied employment despite being found fit for selection to the
post.
3. These are review petitions and a narration of how the review came to be
filed is necessary before embarking on an assessment on merits. Though the
merit-list for the selection of candidates to the post was published early in 2002,
the first of the petitions challenging the exclusion of the petitioners was carried to
the State Administrative Tribunal in 2009 by OA of 564 of 2009. Such petition
was disposed of by an order of August 19, 2009. The submission attributed to
the relevant petitioners in such order was that they "would be satisfied at this
stage if the entire application of the petitioner along with connected documents
be referred to the Secretary of the department, Respondent no.1 for consideration
according to existing Govt. Rule." Accordingly, the petition was disposed of by granting liberty to the petitioners to refer the matter to the relevant secretary and the secretary was directed "to consider the matter if necessary, by giving personal hearing to the petitioner and to dispose of the same by recording reasoned order within 4 months on receipt of such application."
4. Following such order, the principal secretary in the Department of Fire & Emergency Services passed an order on January 14, 2010. Such order recorded that two of the petitioners herein who were the petitioners in OA 564 of 2009 had ranked 26th and 27th in the merit-list of 36 candidates at the selection examination. The order implied that since the said two petitioners were from the general category of candidates, they could not make the cut though eight of the 35 posts for which candidates were sought remained vacant for non-availability of scheduled castes and scheduled tribes candidates. The principal secretary observed that since the two petitioners failed to qualify against the vacancies in the unreserved category, they had not been selected. He also observed that the said petitioners had no right to compel the State to de-reserve the unfilled posts and give them employment.
5. The same two petitioners who had earlier filed OA 564 of 2009 complained of the perceived arbitrary exclusion of such petitioners from selection to the relevant post by way of a further petition before the State Administrative Tribunal. Such petition, OA 120 of 2010, was disposed of without any affidavits being called for from the State or the relevant department. The order of June 30, 2011 recorded that the State did not wish to file any affidavit to the petition. As to how the tribunal perceived the relevant petitioners' case is evident from the following observation therein:
"The issue involved in this application appears to be that of claim of the petitioner to dereserve certain vacancies meant for Scheduled Caste and Scheduled Tribe candidates on the ground that no qualified candidate of those categories were available at the relevant time and there is provision for de-reservation of those vacancies and to accommodate candidates from the general category."
6. The order also recorded the State's submission that it was for the State Government to take a decision as to whether the post should be dereserved. The petition was disposed of with the observation that "the Directorate may again take steps for dereservation and the appropriate Government must take an early decision in this regard."
7. It was such order of January 30, 2011 that was challenged by way of a petition under Article 226 of the Constitution. The prayers in the petition and the thrust of the petition was not for the unfilled posts being filled up by dereserving them. Indeed, it is evident from paragraph 6 of the writ petition that the petitioners relied on a letter issued as late as on May 30, 2012 by the Director- General of the West Bengal Fire & Emergency Services to then Additional Chief Secretary to the State which, in a sense, acknowledged that the reservation policy had not been applied to the post of sub-officer in the department. It is necessary to notice the entirety of such letter of May 30, 2012:
"With reference to the above, it is stated that since inception of West Bengal Fire & Emergency Services and since introduction of 100-Point Roster, no record has been maintained yet in connection with the Date of Occurrence of the vacancies in the post of Sub- Officer. Besides, the post of Sub-Officer is filled in two ways. A certain percentage is filled up by promotion and the rest portion is filled up by direct recruitment and the ratio of direct recruitee & promotee changes from time to time. In both the cases, vacancies are filled up en bloc. Hence, it is not possible to mention the Date of Occurrence of vacancies filled up by direct recruitment or by promotion. Moreover, the 'Time of Consideration' gets more importance at present while promotion or direct recruitment is made.
It may further be mentioned that the Directorate of West Bengal Fire & Emergency Services is functioning since pre- independence day. The records were not properly maintained since inception. In this respect, a clear-cut guide line may please be communicated for further necessary action from this end.
In view of the above, the undersigned would like to state that the Date of Occurrence of vacancies for the post of Sub-Officer cannot be provided at present."
8. All the three writ petitions were disposed of by a common order of March 25, 2014. Though it was submitted on behalf of the petitioners at the hearing that the respondent authorities did not maintain the 100-point roster while filling up the vacancies to the relevant post, the order merely rejected the submission with the observation, "we however, do not accept the same." Such order then went on to record that "steps were taken by the respondent authorities to fill up 35 vacant posts of Sub-Officer upon following the 100-point roster. Eight posts were not filled up as per 100-point roster since eligible candidates in the reserved category were not available."
9. The order, thereafter, noticed that the State Government had taken a decision not to dereserve the unfilled reserved posts and, as such, the court found that there was no scope to issue any order in such regard.
10. The order March 25, 2014 was carried to the Supreme Court where the submission on behalf of the petitioners was "that the High Court had totally misconceived the facts as if the petitioners herein have been building the edifice of their case solely on the ground of de-reservation of posts ..."
11. The Supreme Court order of July 1, 2014 recorded that "the grievance of the petitioners ... pertains to their appointment not depending upon any kind of de-reservation of posts but on independent consideration."
12. In the light of such submission on behalf of the petitioners, the Supreme Court observed as follows:
"As we notice, this aspect has not been dealt with by the High Court in an appropriate manner. Therefore, we would permit to the petitioners to file an application for review within a period of four weeks and in that case the High Court would advert to the said issue as well as the other issues which would be advanced before it. ..."
13. It is in such circumstances that the petitioners have applied for a review of order dated March 25, 2014 for, in effect, their writ petition to be considered afresh in the light of their grievance that they were entitled to be appointed to the post without even the unfilled posts being dereserved.
14. According to the petitioners, that the 100-point roster was never maintained by the relevant department will be evident from the letter of May 30, 2012 issued by the Director-General of the department and other correspondence referred to by the parties. The petitioners refer to a letter dated October 11, 2007 issued by the Director-General to the principal secretary in the department which acknowledged at paragraph 3 thereof that "A 100 point roster for Sub-Officer is required to be finalized. Preparation of this roster is going on." The petitioners also place a letter of January 13, 2012 issued by the Director-General of the department to the secretary in the department forwarding "the authenticated photo-copy of 100-Point Roster" which would show that the 100-point roster may have been drawn up for the first time in 2012. The petitioners also harp on the reply to the said letter by a joint secretary to the State which reveals that the roster had not been prepared in accordance with law and was erroneous. The first two paragraphs of such letter of January 13, 2012 may be seen:
"In reference to above noted matter (the letter dated January 13, 2012) I am directed to state you that the 100 point roster of Sub-
Officer (direct recruitment) as submitted by you, requires to be made in accordance with law.
"Therefore, while drawing the appointment register as per 100 point roster, kindly be ensured that such register has been maintained as per guidelines of B.C.W. Department. (a copy of the guide line is enclosed)"
15. The petitioners refer to a subsequent communication by the Director- General of the department to the Additional Chief Secretary to the State. Such letter of June 2, 2012 clearly reveals that the 100-point roster for the relevant post could not have been prepared even as late as on July 2, 2012 since the dates of occurrence of the vacancies were not available. Such short letter of July 2, 2012 must be read in its entirety, particularly in the context of the contrary impression sought to be given by the State in court in course of the hearing:
"With reference to the above, the authenticated photo-copy of the 100-Point Roster for the post of Sub-Officer is enclosed as sought for. 'Date of occurrence of the vacancy' cannot be provided at present as the records are not available. In this connection, a copy of Memo No.WBFES/787/12, dated - 30/05/12 is enclosed herewith for perusal.
"In view of the above, it is requested also to convey the necessary guide-line for line of action when records are not available."
16. It needs to be recorded at this stage that after these review petitions were assigned to this bench late in January, 2017, the matters were taken up on February 10, 2017 when the State was not represented. The State was represented when the matter was next taken up on March 10, 2017 and the hearing was fixed on April 17, 2017 since one of the members of the bench was to be away on circuit at the Port Blair bench for the better part of the interregnum. Time was thereafter taken on several occasions on behalf of the State and when the matter was taken up in right earnest on July 14, 2017 a supplementary affidavit was filed on behalf of the State to correct certain mistakes in a previous affidavit filed on its behalf. By the order dated July 14, 2017 the petitioners were given a chance to deal with the State's affidavit and the State was directed to produce the original records pertaining to the case.
17. The matter was subsequently adjourned since Advocate General appeared for the State and recused himself on September 8, 2017 as he had represented one the petitioners at some stage. On September 15, 2017 time was sought by the State since Senior Advocate had been engaged. The matter has been heard by this bench constituted specially for such purpose in late November and beginning December.
18. According to the State, the petitioners have altered their stand at various stages and the present stand should not be countenanced since such ground had not been urged earlier. The State seeks to assert that before the tribunal the petitioners made out a case for dereservation of the unfilled posts whereupon directions were issued twice to the State to consider the matter. The State submits that the writ petition filed by these petitioners also pursued such stand that since candidates from the reserved categories were not available and the petitioners had been found to be eligible for selection, the unfilled posts should be dereserved and the petitioners accommodated therein. The State contends that it was only for the first time before the Supreme Court that the petitioners sought to alter their stand and, in course of the present review petitions, the petitioners appear to attack the authenticity of the records maintained by the relevant department in a manner that the case run in the writ petition cannot accommodate. The State maintains that a party has to come to court with a stated case for the adversary to meet the same and it is not permissible for the scope of the writ petition to be enlarged on a review of the order disposing of the writ petition.
19. The petitioners submit that the simple case that they came to this court with in the writ petition was that the petitioners had been initially selected and it was announced by the department as such, but the petitioners were not finally named to be appointed on the excuse of some of the posts being reserved, though it was apparent from the letter of May 30, 2012 issued nearly 10 years after the selection process pertaining to the petitioners being completed that the 100-point roster had never been applied to the post of sub-officer. The petitioners say that they have referred to only such of the documents as they have been able to obtain and they have no access to the records of the department. The petitioners claim that the hard-bound register that has been produced in court at the hearing of these review petitions has only been recently prepared and such fact also been admitted by the State. The petitioners insist that at the time that they applied for the post and the selection process was conducted, the practice was to select the best-placed candidates without reference to any reservation policy or the 100-point roster. The petitioners maintain that if the 100-point roster was not applied to the post from its inception, it could not be applied at all, particularly since the reservation policy and the roster system were already required to be in place by law prior to the first vacancy in the post of sub-officer occurring in the year 1985.
20. The petitioners refer to the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 and suggest that notwithstanding such Act coming into effect long prior to the post of sub- officer being created or the first vacancy being filled up, the direct recruitment to the post of sub-officer was not regulated in terms of the said Act or the 100-point roster issued thereunder, at least till the time that the petitioners applied for the post and even till 2012. The petitioners assert that they were excluded from selection to the post in an arbitrary manner by putting up the excuse of reservation when it was apparent that the reservation policy was not made applicable to the relevant post at the material point of time.
21. The petitioners point out several serious anomalies in the present 100- point roster as evident from the register produced by the State in such regard. The petitioners show that several positions have been shown to be filled up in the register by candidates who do not answer to the descriptions of the reservation relevant for the positions under the 100-point roster. The anomalies range from general category or reserved category candidates being shown in positions further reserved for exempted category candidates to the appropriate reservation not being evident from the register.
22. From time to time the model 100-point roster for direct recruitment to fill up vacancies has been modified. It is not in dispute that the roster that was applicable at the time of the selection relevant for the present purpose was the one governed by a notification of August 2, 2001. For the first time, certain general category candidates with disability were included in the roster. Also such 100-point roster of August 2, 2001 indicated several positions to be reserved for the exempted category of candidates within the reserved or unreserved categories relevant for such positions. In the register that has been carried by the State to the court and extracts wherefrom upto the 88th position have been made over to the court and the petitioners, the reservation for exempted category candidates are not indicated though no appointment could have been made after August 2, 2001 otherwise than in accordance with the 100-point roster notified on August 2, 2001 by the Labour Department of the State.
23. The State accepts that there are several mistakes in the roster and candidates not answering to the specific description for the positions had in some cases been shown to be appointed against such positions. In particular, two positions in the roster meant for exempted category candidates were filled up by candidates not belonging to the exempted category without any dereservation order. It is also quite baffling that no exempted category is shown in the third column of the register of which extracts have handed over to court, yet a document allegedly prepared on January 30, 2002 shows as many as ten of the positions being reserved for exempted category candidates.
24. The most serious anomaly appears from a chart handed over by the State in course of the hearing. According to such chart, 45 candidates were for the first time sought to be directly recruited to the post of sub-officer in 1997, but only 30 suitable candidates could be found. Such chart reveals that the candidates directly appointed in 1997 filled upto the 34th position maintained according to the 100-point roster; that three out of 10 SC positions remained vacant, one out of the three ST positions remained vacant and both the positions pertaining to backward classes remained vacant. The relevant chart prepared by the State shows that the 15 vacancies that could not be filled up in 1997 were sought to be filled up in 2001. Thus, the remaining eight general category candidates upto the 45th position, three SC candidates, two ST candidates and two BC candidates could have been accommodated. Since the exercise till 2001 was to fill up the 45 posts which opened up in 1997 and which could not be filled up by the 1997 exercise, the last position that ought to have been occupied by the repeat exercise of 2001 was position number 45. Yet the chart handed over by the State reveals that the 46th, 48th, 50th and 52nd positions were filled up. This was clearly impermissible and was either an absurd act or completely arbitrary. There could have been gaps within the 45 positions if candidates from the appropriate categories were not available or suitable to fill up the positions; but when 45 candidates were sought to be taken in after the application of the 100-point roster for the first time, the 46th or later positions could never have been filled up.
25. The excuse proffered by the State in such regard is that since three SC category candidates and one BC category candidate secured marks within the top eight in the merit-list and there were eight candidates to be filled up from the general category in the 2001 exercise, such SC and OBC candidates were regarded as general category candidates in accordance with law.
26. There is no doubt that the three SC category and one BC category candidates who apparently secured four out of the top five positions on merit had to be regarded as general category candidates irrespective of the category that they had applied under. However, if such four SC and BC category candidates were accommodated within the eight general category seats available in course of such exercise, only four general category candidates according to the merit-list could have filled up the other four vacancies in the general category. The chart shows that against eight vacancies in the general category, 12 appointments were made after regarding the four SC and BC category meritorious candidates to be general category candidates. The only conclusion that can be drawn from such anomaly is that the 100-point roster must not have been in place at the relevant point of time or an ex post facto exercise was subsequently undertaken to justify the appointments already made and to show them to conform to the 100-point roster when the 100-point roster had not been maintained till such time.
27. Further, in the "Remarks" column in the register, the first three positions carry the identical remark "New creation for promotion". The 100-point roster applies to direct recruitment and not to promotion. Promoted candidates answering to the description to the positions appear to have been shown against such positions, thus destroying the sanctity of the 100-point roster. The 100- point roster has to hold good for all the 100 points; if it is bad in any position, it is bad altogether.
28. There is another tell-tale sign that the alleged adherence to the 100-point roster as sought to be presented by the State was a result of an exercise undertaken much later than when the posts were filled up. Another chart has been handed over by the State entitled "Selected list for recruitment of sub- officers from the candidates sponsored by employment exchanges and departmental candidates and outsiders in WBFS as per 100 pt Roster". Apart from the fact that the writing "as per 100 pt Roster" underlined above appears to be different from the rest of the writing on the top of the page in the original document produced in court, several other serious anomalies are evident from the chart. Such chart pertains to the 1997 exercise when 30 candidates were apparently directly recruited. If the chart is only of direct recruits, the reference to "departmental candidates" in the heading of the chart is surprising and incongruous. At the relevant point of time in 1997 there was no category as OBC or other backward class, though there was a category of backward class (BC). Yet the chart shows the 9th and 29th positions to be OBC. There is a serious doubt as to whether such chart which is passed off by the State as one of 1997 and appears to bear some dates of September, 1996 in the writing at the bottom, was really prepared in 1997. The order in which the names of the candidates figure in such chart does not tally with the register or the extract from the register as handed over by the State. As per such chart, the first position was reserved for an SC candidate, the fourth for an ST candidate, the seventh for an SC candidate, the ninth for an OBC candidate, the 11th for an SC candidate, the 15th for an SC candidate, the 18th for an SC candidate, the 21st for an SC candidate, the 24th for an ST or SC candidate, the 28th for an SC candidate and the 29th for an OBC candidate. Kamal Kumar Halder is named against the first position in the chart and the name Kamal Halder appears first in the register. Dewan Lepcha is shown against the fourth position as an ST candidate both in the chart and in the register. But Manik Saha who is shown in the seventh position (SC) in the chart figures in the 11th position (SC) in the register and Sanjay Dhali who figures in the 11th position (SC) in the chart is shown in the seventh position (SC) in the register. Plaban Modak is shown in the chart in the ninth position (OBC) but Plaban Modak figures in the 10th position (General) in the register as a meritorious BC candidate. It defies logic that a final list of the 30 successful candidates of the 1997 exercise would be prepared and their categories would be reflected against their positions in accordance with the 100-point roster then applicable, but the register now created shows the positions to be completely different. Even the general category candidates as indicated in the chart apparently of 1997 vintage do not occupy the corresponding positions in the register now prepared by the State and presented to court.
29. The fact that a new register has now been prepared cannot, by itself, show that there was something remiss in the maintenance of the 100-point roster or the adherence thereto by the relevant department. There may have been an old register or there may have been some form of records maintained which could pass off as a register and a more formal register may now have been prepared on the basis of such records. However, what is evident is that the register that has now been prepared does not tally with the records allegedly maintained at the time that the 100-point roster was implemented for the post of sub-officer for the first time. On the basis of the records now carried by the department to the court, it is evident that the 100-point roster had not been adhered to by the department till long after the selection process pertinent to the petitioners herein was completed. It is more than likely that the records pertaining to the 100-point roster and alleged adherence thereto were created ex post facto and for the purpose of the writ petitions; or worse, for the present review petitions.
30. If the Director-General of the department wrote on October 11, 2017 that the preparation of the 100-point roster for sub-officer "is going on", it is evident that such 100-point roster was not in place when the petitioners were considered for selection in 2002.
31. A total of 80 candidates, at the most, could have been appointed till the 2002 recruitment material for the present purpose. That is because the State has indicated that in all there were 320 posts of sub-officer in the department till 2002 and the policy adopted at the relevant point of time was to directly recruit 25 per cent of the candidates and fill up 75 per cent of the positions by departmental promotion. Thus, if 45 direct recruits were to be taken in by the 1997 and 2001 exercise and 35 further were to be taken in by the 2002 exercise, only upto the 80th position (45 + 35) could have been filled up in the register. Yet the extract from the register handed over to the court shows it to be filled up (with several vacant positions) upto the 85th position.
32. Things do not add up at all, however which way the State may want to present it. According to the latest affidavit filed by the State and affirmed by the Acting Director (Operation) in the West Bengal Fire & Emergency Services on July 13, 2017, pursuant to a decision of 1994, 45 direct recruits were to be taken in as sub-officers in the department on the basis of 75 per cent in the cadre being open to promotion and 25 per cent in the cadre being direct recruits. As noticed earlier, 30 of the 45 posts were filled up by 1997 and a further 13 were filled up by 2001 by the erroneous process of taking in 12 in the general category against only eight vacancies in such category. Even if such illegality is overlooked for the time being, since only 43 direct recruits were recruited, two positions were still available but remained unfilled. In 2001, the government sanctioned another 140 posts in the cadre of sub-officer, which implied that a further 35 candidates could be directly recruited. Since there were two unfilled positions already existing, applications ought to have been invited for 37 positions to be filled up in 2002. It is more than likely that since the 100-point roster was not maintained in the department in respect of the cadre of sub-officer, it did not dawn on the department that four illegal appointments had been made and that at least 37 candidates could be directly recruited to fill up the positions of 80 direct recruits.
33. The only question now left is what relief ought to be granted to the four petitioners in these three matters.
34. The State has referred to several judgments which may not be directly relevant in the context. A judgment reported at (2014) 15 SCC 715 (Chaman Lal v. State of Punjab) has been cited for the recognition therein, at paragraph 16 of the report, that Article 14 of the Constitution does not envisage negative equality in the sense that if "a wrong benefit has been conferred upon someone inadvertently or otherwise it may not be a ground to grant similar relief to others."
35. The judgment reported at (2016) 6 SCC 532 (Kulwinder Pal Singh v. State of Punjab) deals with a completely different aspect where the dereservation in some of the categories was found to be illegal by the High Court and such decision was upheld by the Supreme Court. In passing, there is a reference to Article 14 of the Constitution not endorsing the perpetuation of an illegality, but the ratio decidenti in such case is completely irrelevant for the present matter. In the judgment reported at (2010) 2 SCC 637 (Rakhi Ray v. High Court of Delhi) it was held that the person whose name appears in the select list does not have any indefeasible right of appointment. The proposition cannot be doubted and it is not the present petitioners' case that merely because their names appeared in the select list that they ought to be given the appointment. A decision reported at (1997) 6 SCC 283 (Post Graduate Institute of Medical Education & Research, Chandigarh v. K. L. Narasimhan) has been placed by the State for the proposition that no mandamus may be issued to dereserve the carry-forward vacancies reserved for appointment of SC and ST nor should any direction be issued by the court for filling up reserved posts with general candidates. It is not the petitioners' case here that they should be given appointment by dereserving the posts, though such was the nature of the orders passed by the State Administrative Tribunal on their petitions. A judgment reported at (2007) 8 SCC 100 (Union of India v. S. Vinodh Kumar) has been placed for the proposition that candidates short-listed for selection have no vested right. In that case the candidates did not meet the cut-off marks but the High Court directed the lowering of the cut-off marks to accommodate the petitioners before it. The High Court judgment was set aside by the Supreme Court. The principle decided in such judgment has no manner of application here.
36. It is plain to see that the 100-point roster had not been applied to the cadre of sub-officer by the department till the time of the 2002 selection or even thereafter. The illegalities that have been noticed could not have been committed if the 100-point roster was in place. There is no doubt that the 100-point roster ought to have been made applicable and if it had been so done four general category positions erroneously and illegally filled up in 2001 would have remained vacant. Indeed, in such a situation, instead of 35 candidates being directly recruited in 2002, 41 candidates ought to have been directly recruited as 30 candidates out of 45 had been recruited by 1997 and nine further could have been recruited against the outstanding vacancies by 2001. If 39 positions ought to have been filled up out of the possible 45 in 2001, the four additional general category seats would have remained open in addition to the other vacant reserved seats. In such a scenario, all the four petitioners herein, or, at least, two of them, may have been given appointment in 2002 if the department had acted in accordance with law. There is no doubt that these four petitioners have been deprived by virtue of four general category positions being illegally filled up in 2001, if the 100-point roster had, at all, been applied to the post.
37. If the petitioners are given employment today, it would be contrary to the 100-point roster and the said Act of 1976. Whether it was a mistake or gross illegality committed by the State and the relevant department in 2001 and 2002, since the positions have been filled up, the court cannot direct a further illegality by requiring these four petitioners to be given appointments. But since these petitioners demonstrate that they had a likelihood to be appointed if the 100- point roster had been followed by the State and the department, the petitioners are entitled to appropriate compensation.
38. At the relevant point of time the gross monthly amount that would be drawn by a sub-officer in 2002 was in the range of Rs.7,120/-; at present the gross pay is Rs.25,727/- per month. Given the ages of the petitioners, if they had been duly appointed in 2002 they would still have several years of service left. At the same time when the question of compensation is taken up, it must also be appreciated that though the petitioners, or some of them, may have been appointed if the 100-point roster had been rightly maintained by the department, yet the petitioners have not actually rendered any service. Thus, going by the ages of the petitioners, the fact that they may have been entitled to service and other benefits for several years hereafter if they had been rightly appointed, a sum of Rs.9 lakh to each of the petitioners as compensation is found to be appropriate in the circumstances in the light of the inexcusable illegality on the part of the State and its relevant department. In addition, since these petitioners have fought for what appears to be a just cause, each of them is awarded costs on account of legal expenses assessed at Rs.2 lakh. If the State government pays the compensation of Rs.9 lakh and costs of Rs.2 lakh to each of these petitioners within three months from date, the petitioners will have no further claim in respect of the matters complained of herein. If such payment or any part thereof remains outstanding as on March 19, 2018, the entire amount or such part of it as is outstanding, will carry interest at the rate of 9 per cent per annum simple till payment.
39. It is a matter of concern that despite it being apparent that the 100-point roster may not have been applied to the cadre of sub-officer till 2002 or even ten years thereafter, an impression was sought to be given by the State to the court at the hearing of the writ petitions and the present review that the 100-point roster was, actually, in place. The Chief Secretary to the State is requested to set up a committee of no more than three officers holding the rank of secretary in the government to inquire into the circumstances prevailing in the West Bengal Fire & Emergency Services that resulted in the gross illegality of either the 100-point roster not being applied or the same being applied in a palpably irregular manner. Accountability ought to be affixed and corrective measures suggested by the committee before any further recruitment in the post of sub-officer in the relevant department is undertaken. It is hoped such exercise will be completed within three months of a copy of this order being received by the Chief Secretary from the Registrar-General of this court.
40. RVW 23 of 2017, RVW 24 of 2017 and RVW 25 of 2017 along with CAN 1252 of 2017, CAN 1253 of 2017 and CAN 1254 of 2017 are disposed of as above.
41. Certified website copies of this judgment, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) I agree.
(Samapti Chatterjee, J.)