Calcutta High Court
Nizamuddin Ahmed And Ors. vs State Of West Bengal And Ors. on 4 July, 2007
Equivalent citations: AIR2007CAL267, (2007)3CALLT288(HC), 2008(1)CHN180, AIR 2007 CALCUTTA 267, (2007) 3 CALLT 288 (2008) 1 MARRILJ 534, (2008) 1 MARRILJ 534
Author: Pratap Kr. Ray
Bench: S.S. Nijjar, Pratap Kr. Ray
JUDGMENT Pratap Kr. Ray, J.
1. Challenging the judgment and order dated 25th January, 2006 passed by learned trial Judge in W.P. No. 23160 (W) of 2005, whereby and whereunder learned trial Judge disposed of the writ application without granting any relief in view of the earlier order dated 20th December, 2004 passed in another writ application being W.P. 16621 (W) of 2004, despite a finding that the writ petitioner had made out a prima facie good case, this appeal has been filed by writ petitioners/appellants.
2. A stay application was moved by the writ petitioners/appellants praying stay of the selection process for the post of Muslim Marriage Registrar in an office under Kakdwip Police Station, the process of which started in compliance with the order dated 20th December, 2004 aforesaid passed in said writ application. This stay application, registered as CAN 1354 of 2006, was rejected by the order dated 22nd March, 2006 passed by the Division Bench (Coram : Asok Kumar Ganguly, J., as his Lordship then was and Aniruddha Bose, J.). An application praying for recalling of the said order was filed by the present appellants registered as CAN 2378 of 2006, which also stood rejected by the order dated 4th April, 2006, passed by the aforesaid Division Bench.
3. Challenging the order dated 22nd March, 2006 of the Division Bench aforesaid, whereby stay application of the appellants was rejected, a petition for special leave to Appeal as was moved before the Supreme Court of India, registered as S.L.P. (Civil) No. 13085 of 2006, was dismissed on 1st December, 2006 with a direction for disposal of the main appeal in accordance with law within six months from that date with a rider that the appointment in the post in question, if any was made, same would be subject to final outcome of the said appeal.
4. On 4th April, 2007, an application for addition of party being CAN No. 2352 of 2007 was allowed by adding the first empanelled candidate of the panel in terms of the selection process as completed for the said post, as a party of this appeal for effective adjudication of the issue.
5. On 11th June, 2007, the matter was taken up for hearing by the Division Bench comprising of the Hon'ble the Chief Justice S.S. Nijjar and Hon'ble Justice D.P. Sengupta, when the Court directed filing of an affidavit-in-opposition by the State respondents explaining the delay as occurred to complete the selection process by two weeks and reply, if any, thereof by the appellants one week thereafter. An observation was made in this order that the State respondent would be at liberty to take steps in accordance with the judgment of the learned single Judge.
6. Matter thereafter came up for hearing before the Division Bench comprising of Hon'ble the Chief Justice S.S. Nijjar and Hon'ble Justice Pratap Kr. Ray i.e. before us. We heard the matter at length. No affidavit-in-reply was filed by the appellants as per direction dated 11th June, 2007 in response to the opposition as filed by the State-respondents.
7. In view of the direction of the Hon'ble Apex Court to dispose of the appeal expeditiously and that too within six months thereof from the date of the order of the Apex Court, we have heard the matter finally on this date.
8. For effective adjudication, the factual matrix of the case is required to be considered, which in brief as follows:
The Bengal Mohammadan Marriage and Divorces Registration Act, 1876 provides the registration provision of such marriages and divorces. A notification being No. 620 Regn. dated 14th August, 1929 was issued by the Government in the Law (Judicial) Department detailing the procedural aspect of appointment of such Marriage Registrars by naming the post as "Muslim Marriage Registrar.
9. An advertisement dated 3rd February, 2001 was published in Bengali Newspaper "AAJKAL" and other daily newspapers having wide circulation in West Bengal, inviting applications from the eligible candidates for the said posts. In the advertisement it was mentioned that details of the vacancy of the posts were already circulated for public notice by hanging the same in the office of Registrars of Assurance, Calcutta relating to the vacancies -of Calcutta office and in the offices of District Registrars of respective districts relating to the vacancies under the concerned districts. This advertisement further specified the qualification and last date of filing the application as 28th February, 2001. Subsequent to this advertisement inviting applications in respect of the vacancies as were duly notified previously by hanging the list in the office of respective District Registrars, an office circular was issued by the Deputy Secretary to the Government of West Bengal on 13th February, 2001 addressed to the Inspector General of Registration and Commissioner of West Bengal on the subject of opening of new Muslim Marriage Registrars offices at different Police Stations in the district of South 24 Parganas by the memo No. 201-J (VI) dated 13th February, 2001 enlisting names of twelve offices thereof, inclusive of the Kakdwip office under Kakdwip Police Station for which we are concerned in this appeal. Many applications were filed by the eligible candidates in terms of the said newspaper advertisement for the post of Muslim Marriage Registrar of Kakdwip office. One Md. Isa Ali Jatua, one of the applicants of the said post, moved a writ application being No. W.P. No. 1398 (W) of 2004 alleging, inter alia, that despite filing of the application for the said post, as yet selection process was not completed and on the other hand, temporary appointment in the said post was made. This writ application was disposed of by the order dated 4th May, 2004, passed by Pinaki Chandra Ghose, J. directing the respondent No. 2 of the writ application, the Inspector General of Muslim Marriage Registration, West Bengal to treat the writ application as representation for his consideration and disposal in accordance with law upon giving opportunity of hearing. In this writ application it was alleged that respondent No. 9 of the said writ application, one Md. Hasanujjaman Haider was appointed temporarily in the said post on keeping the final selection process pending. By the decision dated 26th July, 2004, the respondent No. 2 of the said writ application, namely, I.G.R. and C.S.R., West Bengal, disposed of the matter in terms of the order dated 4th May, 2004 aforesaid, directing the District Registrar to complete the selection process and that till such selection process was not finalised, the temporary appointee Md. H. Haider should be allowed to work. Thereafter, another writ application was moved by said Md. Isa Ali Jatua, one of the applicants in the said post, which was registered as W.P. No. 16621 (W) of 2004 on the grievance that the selection process was not finalized despite earlier order passed in his writ application. By the order dated 20th December, 2004, this writ application was disposed of by Pinaki Chandra Ghose, J. directing the respondent No. 2 of the said writ application, namely, Inspector General of Muslim Marriage Registration and Commissioner of Stamp Revenue, West Bengal to complete the process of appointment in the said post of Muslim Marriage Registrar in accordance with the provision of law within six weeks from the date of communication of the order. Since, nothing was done, the said writ petitioner Md. Isa Ali Jatua moved the contempt application on alleged violation of the order dated 20th December, 2004 aforesaid, which was registered as CPAN 926 of 2005 and in this contempt application by the order dated 12th August, 2005, the Principal Secretary, Judicial Department was directed to decide the matter in accordance with the order passed on 20th December, 2004 within a period of four weeks and to file a compliance report. This contempt application is still pending. The present appellants moved a writ application registered as W.P. No. 23160 (W) of 2005 praying for a writ of mandamus restraining the respondents from proceeding with the selection process of appointment of Muslim Marriage Registrar in terms of the advertisement dated 3rd February, 2001 and to quash the selection process so long advanced with a direction to issue fresh advertisement. In this writ application it was prayed that as prior to sanction of the said post the advertisement was published inviting names of the candidates, selection process be cancelled and an order to issue fresh advertisement inviting names of eligible candidates so that the writ petitioners/appellants may get a chance to apply, be passed.
10. On the very first motion date when this writ application was moved by the present appellants, learned trial Judge by the order dated 25th January, 2006 expressed inability to grant any relief due to the earlier order dated 20th December, 2004 passed in another writ application being W.P. No. 16621 (W) of 2004, directing to complete selection process, with the observation that prima facie the writ petitioners made out a good case as prior to creation of the post, advertisement was published long back in the year 2001 and process of selection was not completed as yet.
11. The order of learned trial Judge under appeal reads such:
The prayer (a) in the writ petition runs as follows:
(a) A writ in the nature of Mandamus commanding the respondents their servants and agents not to proceed with selection process of appointment of Muslim Marriage Registrar in the (sic) of the Governor dated 13-2-2001 in terms of the advertisement dated 3-2-2001 and quash the selection procedure adopted, with the direction to issue fresh advertisement inviting application for appointment in the Post of MMR sanctioned vide order dated 13-1-2001 in accordance with law.
It was submitted by the learned Counsel, for the petitioners, that advertisement was published for appointing a Muslim Marriage Registrar in the year 2001 prior to the creation of the post. Applications were submitted in the year 2001 itself. Thereafter, there has been a complete lull. No step was taken for four years and now the District Registrar, South 24-Parganas has taken decision as follows:
The District Committee also unanimously resolved that further selection of M.M.Rs. for other areas shall be postponed till the newspaper advertisement is given from the end of Government. A list of such officers in the following Police Stations is given below.
1. Rabindranager, 2. Regent Park; 3. Purbo Jadavpur; 4. Behala; 5. Metiabruz; 6. Nodakhali; 7. Cosaba; 8. Kasba; 9. Mandirbazar; 10. Tiljala; ll.Mograhat; 12. Sonarpur; 13. Basanti and 14. Canning. Out of the above 14 areas newspaper advertisements were given in the year 2001 by the Govt. for the newly created office in the first 10 above mentioned areas and for the last 4 areas where vacancy were created on superannuating of the then M.M.Rs., no advertisement was published before. It will be worthwhile to bring to your kind notice that a case in the Hon'ble High Court, Calcutta has already been filed against the selection of M.M.Rs. on the basis of far back an advertisement of 2001. Hence, I would request you to kindly make an arrangement for publishing new advertisements in the newspapers for the above Police Station areas.
Copy of the District Committee's decision is annexed herewith for your kind information and necessary action.
He submitted that the authority has realized that it would not be proper to make appointment on the basis of an advertisement issued way back in the year 2001 because the persons who applied may not now be interested. The eligible persons may not have applied at that point of time. So they have decided to invite fresh applications by a fresh advertisement. This procedure, however, was not applied to the case of Kakdwip Thana on the specious plea that with respect thereto there was an order passed by the High Court.
That order was is, however, not known clearly to any of the parties. No copy of that order has been produced. But it was submitted by Mr. Patra, the learned Counsel, appearing for the State-respondent, that steps for selection of the candidates were taken pursuant to the order of the High Court.
Considering the fact that steps for selection of candidates were claimed to have been taken on the basis of the order passed by High Court, I' am not in a position to give the relief as prayed for by the writ petitioners. The writ petitioners appears to have, prima facie, a good case; but I am unable to grant any relief. The writ petitioners may seek their remedies before the appellate Court since the order dated 20th December, 2004, passed in W.P. 16621 (W) of 2004 has been prejudicially affected the writ petitioners.
This writ petition stands disposed of with the aforesaid observations.
In view of the disposal of this writ petition, the connected application for ad interim order of injunction being C.A. No. 434 of 2006 becomes infructuous and the same also stands disposed of as such.
There will be no order as to costs.
Let xerox plain copy of this order, duly countersigned by the A.R. (Court) of this Court, be handed over to the learned Counsel, for the petitioner.
12. In terms of the direction of the Division Bench dated 11th June, 2007, State respondents have filed an affidavit explaining the present position of the selection process and cause for the delay to complete such, though vacancy declaration by news advertisement inviting names of the applicants was published in the year 2001. This affidavit was affirmed by one Sri Ashok Bandopadhyay, Officiating District Registrar, South 24-Parganas. In the opposition it has been contended "that advertisement was published on 3rd February, 2001 in the daily newspaper "AAJKAL" as well as other newspapers inviting names of the eligible candidates of "Sunni" community of Mohammadan religion for the post in question by fixing the last date of the application dated 28th February, 2001, that on 13th February, 2001, Deputy Secretary, Judicial Department, Government of West Bengal informed the Inspector General of Registration and Commissioner of Stamps and Revenue, West Bengal that the Hon'ble Governor was pleased to sanction opening of the Mohammadan Marriage Registrar offices in twelve Police Stations in the district of South 24-Parganas including the present one, which is under Kakdwip Police Station, that though Selection Committee was constituted (the details of which are mentioned in Paragraphs HI and IV) in terms of the notification No. 5056-J dated 28th June, 2000 issued by the Judicial Department, Government of West Bengal, wherein Sabhapati of the Zila Parishad of the district or any member nominated by the said Sabhapati, Government Pleader/Public Prosecutor of the district as nominated by the District Magistrate, the District Magistrate or any officer of the district not below the rank of Deputy Magistrate nominated by the District Magistrate, one Member of Legislative Assembly nominated by the State Government and one representative nominated by the West Bengal Minorities Commission became memebers of such committee, but it could not function due to frequent changes of Government Pleader and the Member of Legislative Assembly at different points of time, a fresh notification was Issued again being notification No. 1538-J/VI dated 17th August, 2001 constituting the District Committee published in the Calcutta Gazette, which caused delay to complete selection process". It has been further contended that ultimately District Committee was constituted and in compliance with the earlier order of the High Court passed in the writ application of Md. Isa Ali Jatua read with the decision of the I.G.R. & C.S.R. dated 26th July, 2004, the selection process was completed by empanelling the names of three candidates on merit after holding interview of the candidates who submitted their applications in terms of the advertisement dated 3rd February, 2001 published in the daily newspapers. In this opposition, the result of such selection as was communicated by the District Registrar, South 24-Parganas under Memo No. CON-10 dated 27th December, 2005, has been annexed at page 24.
13. In the final selection list as it appears from the said opposition, one Md. Nasiruddin Baidya ranked the first position of the panel who is the added respondent in this present appeal and one Md. Isa Ali Jatua who moved two writ applications earlier and one contempt application as detailed above, stood second in the panel.
14. No reply of this opposition has been filed by the appellants despite the direction passed by this Court on 11th June, 2007.
15. It is the submission of the learned advocate for the appellants that the concerned post of Muslim Marriage Registrar was advertised prior to creation/sanction of the post and as such, the entire selection process was void ab initio due to such basic illegality. It has been further urged that in respect of other areas for identical posts when the advertisement of the year 2001 has been cancelled and a decision has been taken to publish a fresh advertisement due to long delay to complete the selection process, the identical steps ought to have been taken by the State respondents to fill up the vacancy of Muslim Marriage Registrar's office under Kakdwip Police Station.
16. It is the submission of the State respondents that the concerned posts were duly advertised and due to the difficulty of constituting the District Committee, selection process could not be completed earlier but subsequently in view of the order as passed earlier by the High Court in writ applications filed by Md. Isa Ali Jatua, the selection process has been completed by empanelling the names of three candidates on merit in a panel, wherein the added respondent has secured 1st position.
17. Learned advocate for the added respondent, the first empanelled candidate has submitted before us that there was no illegality committed by the respondents to complete the selection process and as on merit he has secured the first position in the panel, now he is entitled to be appointed in the post.
18. Having regard to the respective submission of the parties, the following points emerge for adjudication:
(1) Whether writ petitioners/appellants have made out any case for the relief in terms of the prayer as made praying a writ of mandamus restraining State respondents from completing the selection process in the post in question for which public invitation was made on 3rd February, 2001 and for a direction of fresh advertisement of the said post, to start a de novo selection process.
(2) Whether writ was maintainable, when admittedly the order dated 20th December, 2004 passed in W.P. No. 16621 (W) 2004 passed by Pinaki Chandra Ghose, J. disposing of the writ application of one of the applicants Md. Isa Ali Jatua and the decision of I.G.R. & C.S.R. dated 26th July, 2004 directing to complete the selection process was not challenged either by filing any appeal or by filing a writ application assailing the said order of the High Court passed in the earlier writ application by adding the said Md. Isa Ali Jatua, a party of the said proceeding in terms of the judgment of the Apex Court passed in the case Shivdeo Singh and Ors. v. State of Punjab and Ors. reported in AIR 1963 SC 1909.
(3) Whether the selection process as now reached its finality and the panel as pre pared is liable to be quashed and set aside on the facts and circumstances of the case.
19. All those points are considered analogously. The learned advocate for the appellant has urged that as the advertisement inviting applications from the eligible candidates was published on 3rd February, 2001 prior to the sanction of the post, en tire selection process is bad in law. From the advertisement dated 3rd February, 2001, which is quoted, it appears that the vacancies were already declared by hanging the vacancy list in the respective offices of District Registrar and news advertisement was publised in addition thereof, inviting the names from the eligible candidates fixing the last date 28th February, 2001. The news advertisement reads such:
Wanted Muhammadan Marriage Registrar (MMR) Applications are invited from the Indian citizens belonging to "Sunni Community" of Muhammadan religion, who are permanent residents of West Bengal, for appointment of Muhammadan Marriage Registrar (MMR) for sunni community Police Station wise of different districts in the State of West Bengal under the Bengal Muhammadan Marriages and Divorces Registration Act (Ben. Act of 1876). A list of vacancies of the MMR has been hung up in the Office of the District Registrar in districts and in place of Calcutta, in the Office of the Registrar of Assurance, Calcutta.
Applicants are requested to submit applications either in Bengali or in English in the following prescribed format together with certificate of good moral character issued by local MLA/Chairman of Municipality/Pradhan/BDO and also certificate of qualification from any Madrassa.
Applicants who do not hold any such certificate from Madrassa shall submit certificate that they are sufficiently acquainted with Arabic language and the Muhammadan Law of Marriage and Divorce, signed by two Muhammadan gentlemen of responsibility and position.
In selecting candidates for appointment of MMR, preference will be given to the claim of local man of respectable character and suitable attainments.
No selection will be made for the Office of the MMR in respect of any police station where appointment of MMR has already been made.
No further application is required to be submitted by any person who has already made application to the concerned authority in response to their advertisement for appointment of MMR for any police station.
Application shall be addressed to the concerned District Registrar in district and in case of Calcutta, to the Registrar of Assurance, Calcutta and the same must reach to the concerned authority by 28/2/2001.
Incomplete applications and applications received after due date shall be liable to be rejected.
Application Format : (1) name and usual signature of candidate, date of application and address in full, (2) Age, (3) Profession or present employment of candidate with present salary or pension, (4) Father's name and profession, (5) Present family residence of candidate, (6) Distance of residence from the Muhammadan Registry Office and sadar station, (7) Whether candidate has a masonary house for office, (8) If previously employed under Government, details of past service; if ever dismissed from any post, particulars of the fact, (9) names and address of persons recommending the candidate, (10) Whether candidate is acquainted with Arabic, Persian Urdu, Bengali or English, (11) Whether candidate is acquainted with Muhammadan Law and holds any certificate from any Government or private Madrassa, stating its name, (12) Remarks of the District Registrar, (13) Remarks of the District Committee, (14) Remarks of the Inspector General of Registration, (15) Remarks.
ICA 373(6)/2001 Government of West Bengal.
20. The letter of the Deputy Secretary to the Government of West Bengal dated 13th February, 2001 never was on creation of the post with effect from 13th February, 2001 as it appears on plain reading of the same but it is simply a sanction order about establishment of the offices of Muslim Marriage Registrars in the areas under twelve Police Stations respectively, as detailed thereof. Said letter of Deputy Secretary reads such:
401-J/VI 13.2.2001 From : Mr. S.P. Mitra Dy. Secretary to the Government of West Bengal. To : The Inspector General of Registration & Commissioner of West Bengal.
Subject : Opening of New MMR Office at different Police Station in District of South 24-Parganas.
The undersigned is directed by order of the Governor to say that the Governor has been please to sanction the establishment with effect from the date of this order, of offices of the MMR in the district of South 24-Parganas named in Column I of the schedule its territorial jurisdiction over the Police Station.
Name of the Office Schedule Police Station
1. MMR Office at Regent Park Regent Park
2. Purba Jadavpur Purba Jadavpur
3. Kasba Kasba
4. Tiljala Tiljala
5. Behala Behala
6. Nodakhali Nodakhali
7. Metiabruz Metiabruz
8. Rabindranagar Rabindranagar
9. Bhangar Bhangar
10. Mandirbazar Mandirbazar
11. Gosaba Gosaba
12. Kakdwip Kakdwip.
Sd/- Deputy Secretary.
21. The establishhment of office and creation of the post are not synonymous and those are actions on different field of activities on the basis of the statutory provision. Creation of the post may be either in terms of a statutory provision or by executive decision of the Government. Similar is the provision for the abolition of the post. The creation and abolition of post both are within the domain of executive function of the Government and in absence of any statutory rule in the field, the same could be done in exercise of the power under Article 162 of the Constitution of India to pass such an executive decision. Reliance may be placed to the judgment passed in the cases Ram Jawaye Kapur v. State of Punjab , T. Caji v. Jormanik and B.N. Nagarajan v. State of Mysore , wherein the Apex Court held "The post can be created or filled up by Government in exercise of its executive powers". From the advertisement as annexed, it is an admitted position that posts were created long back and the vacancies, accordingly, were declared and published by hanging in the respective offices of the District Registrar before such news advertisement. The circular letter dated 13th February, 2001 as addressed to the Inspector General of Registration and Commissioner of West Bengal only related to a financial sanction by the Hon'ble Governor of the West Bengal for establishment of offices in the respective areas. The establishment of the office in the respective areas could be made lawfully by the State Government even after creation of the post, which exactly has been done in the instant case. The appellants misread the circular letter dated 13th February, 2001 in the angle as if by this circular letter the posts were created/sanctioned. Hence, the submission of the appellant that prior to creation of post, the advertisement was published has no basis. The writ application was filed with the misconceived idea that on 13th February, 2001, the concerned post and/or the other posts were sanctioned. From the affidavit filed by the State respondents affirmed by Officiating District Registrars, South 24 - Parganas it appears that long back by notification dated 28th June, 2000, a rule was prescribed for formation of a District Committee for the purpose of selecting the candidates for the post of Muslim Marriage Registrar and in pursuance thereof, a District Committee was constituted by Notification No. 1538-J/VI dated 17th August, 2001 by order of the Hon'ble Governor. Hence, the contention of the appellants on the basis of which the learned trial Judge observed that the appellants/writ petitioners had made out a prima facie case as sanction of the post was done after the advertisement was published, has no factual support.
22. So far as the other point as urged that due to long delay to complete the selection process and in view of the decision of the authority to publish vacancy declaration afresh in respect of other vacancies, there should be a fresh advertisement of the present vacancy of the concerned post under Kakdwip Police Station, also has no sound legal basis. It is a settled law that delay to fill up the vacancy by completing the selection process cannot be a ground to set aside the panel and/or appointment, if any, is made. The said issue has been considered by the Apex Court in the case Dalpat Abasaheb Solunke and Ors. v. Dr. B.S. Mahajan and Ors. , wherein in Para 6, the Apex Court held to this effect:
The first reason which is common to both the appeals is that although the vacancy in the posts in question has arisen as early as in 1975, no applications were invited to fill the same till 1980. The High Court has also stated that the University in its return, has not explained the said delay. We are at a loss to understand as to how the delay in filling a vacancy can be a ground for setting aside the appointment made. Assuming therefore that there was no explanation given by the University, the appointments made were not liable to be set aside on that ground. If the delay in making an appointment is to be a ground for quashing it, no appointment can be made to the post after what the Court considers as the delay. This is apart from the fact that the University has in a detailed affidavit filed in this Court satisfactorily explained the circumstances in which the filling in of the post was delayed. That explanation is not countered.
23. From the affidavit-in-opposition as filed by the State respondents, the contention of which has not been denied by the appellants by filing any reply, it appears that the delay to complete the selection process have been explained by contending that due to the practical difficulty to constitute the District Commute due to change of different members at different point of time, such delay was caused. It is satisfactory explanation as per our view.
24. Having regard to such explanation of delay, though as per view of Supreme Court passed in the case Dalpat Abasaheb Solanke AIR 1990. SC 434 (supra), such delay has no adverse effect on selection process as now completed and having regard to the order dated 20th December, 2004 passed by Pinaki Chandra Ghose, J. in the writ application W.P. No. 16621 (W) of 2004 and the earlier order dated 4th May, 2004 passed in writ application W.P. No. 1398 (W) of 2004 read with the order in the contempt application CPAN 926 of 2005 dated 12th August, 2005 and also having regard to the decision dated 26th July, 2004 passed by I.G.R. & C.S.R. we are of the view that finality of selection process in terms of vacancy declaration of the year 2001 was legal and void. It is an admitted position that when the advertisement published, the present appellants did not apply and even they were not eligible to apply having regard to the qualification and the age prescribed.
25. A further point is required to be dealt with that one of the applicants Md. Isa Ali jatua when moved the Writ Court praying for a finality of the selection process, this matter was decided by this Court directing the respondents to complete the selection process and in terms thereof, a decision was reached, which now finally has been culminated to a panel of three candidates. This decision of Pinaki Chandra Ghose, J. in the writ applications as moved by one of the applicants of the post, who has now stood second in the final panel has not been challenged by the appellants either by moving the appeal Court and/or by moving the writ application praying review of the said order, which was available to the writ petitioners/ appellants in terms of the judgment of the Apex Court passed in Shivdeo Singh AIR 1963 SC 1909 (supra).
26. It is a settled legal position that once any direction of the Court is passed in any writ application, wherein a third party is affected, he is not remediless as he very well can move the appropriate Court for remedy assailing the said order. The writ petitioners/appellants could have challenged the earlier orders passed by this Court in the earlier two writ applications as well as in the contempt application, praying review of those orders when they came to the knowledge of said orders at the time of hearing of their writ application. Without doing such, writ application itself was not maintainable, as the issue was crystallized to a judicial order.
27. There is another contention in the writ application that except this vacancy under Kakdwip Police Station, other vacancies of different areas notified by news advertisement since has been cancelled by the authorities concerned at their discretion with a direction for fresh advertisement in the newspaper declaring the vacancies and inviting the applications from eligible candidates thereof, same procedure should be followed by cancelling the selection process in respect of the vacancy under Kakdwip Police Station. This contention also has no merit for consideration in view of the following reasons:
(1) The vacancy of the concerned post of the Kakdwip Police Station as notified earlier, in view of the order of the Writ Court passed by Pinaki Chandra Ghose, J. as mentioned in the earlier paragraphs in details as well as the direction in the contempt application thereof, directing to complete the selection process has been crystallized with a judicial order, which has finally determined the rights, duties and responsibilities of the respective parties of the writ application inclusive of the concerned State Authorities who took a decision to cancel the other vacancy notification for a fresh advertisement. Hence, the Slate respondents at the present moment have no independent discretionary power to recall the selection process of present, post of this appeal. Judgment of this Court as already discussed has ultimately reached to a contempt proceeding, whereby a direction was given to submit compliance report.
(2) That it is settled legal proposition that any declaration of any vacancy in respect of any post could be recalled by the executive decision of the State respondents, which practically has been done in respect of the other vacancies, wherein there was no Courts order directing to complete the se lection process and thereby to submit the compliance report.
(3) That the writ petitioners got no legal right to pray for fresh vacancy declaration in respect of the present vacancy, which was duly notified and selection process has been completed. Hence, there was no scope to issue a writ of mandamus. It is a settled le gal position that writ of mandamus is avail able for breach of any statutory duties and obligation by the respondents in respect of legal right of the writ petitioners. On the other way it can be said that for maintaining a writ of mandamus, the legal rights of the writ petitioners and the corresponding duties and responsibilities under the statute must be established, which is absent in the present case. Reliance may be placed to the judgment passed in the cases Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif and Ors. , Kalyan Singh v. State of Uttar Pradesh and Ors. reported in AIR 1962 SC 1183 and the judgment passed in the case Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. , a judgment of three Judges Bench, wherein the Kalyan Singh (supra) has been relied.
28. We are, accordingly, of the view that there was no merit in the writ application itself and the findings of the learned trial Judge that the writ petitioners/appellants had made out a good case, is also not legally sustainable. Such finding, accordingly, is quashed.
29. Having regard to the aforesaid settled legal position and the factual matrix of the case, we are, accordingly, of the view that no relief could be granted to the appellant as no case has been made out for any relief in view of the fact that there was no illegality committed by advertising the post on 3rd February, 2001 as the vacancies earlier were declared by hanging the notice in the respective offices of District Registrar and as the delay to complete the selection process could not be a ground to nullify the entire selection process in terms of the judgment of the Apex Court passed in Dalpat Abasaheb Solunke (supra). As there is no merit in the writ application itself, accordingly, the appeal and the writ application both stand dismissed. It is needless to say that now the added respondent, the first empanelled candidate Md. Nasiruddin Baidya will get his appointment in the post in question.
S.S. Nijjar, C.J.
30. I agree.