Abhishek Maddunay & Ors vs The State Of West Bengal & Ors on 6 February, 2024

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Calcutta High Court (Appellete Side)

Abhishek Maddunay & Ors vs The State Of West Bengal & Ors on 6 February, 2024

Bench: Aniruddha Roy

                   IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE
Present:
The Hon'ble Justice Aniruddha Roy

                           W.P.A. 12343 of 2023

                         Abhishek Maddunay & Ors.
                                     vs.
                       The State of West Bengal & Ors.

For the petitioner:                 Mr. Gourav Das, Adv.,
                                    Ms. Madhumanti Das, Adv.,
                                    Mr. Sirsanya Bandyopadhyay, Adv.

For the State:                      Mr. Arka Kumar Nag, Adv.,
                                    Mr. Saibal Acharya, Adv.

For respondent Nos. 8 & 9:          Mr. Tanweer J. Mandal, Adv.,
                                    Mr. Krishnendu Banerjee, Adv.,
                                    Md. Idrish, Adv.

For respondent No. 10:              Mr. Ishan Ganguly, Adv.,
                                    Mr. Ratul Biswas, Adv.

For W.B.B.P.E.:                     Mr. Kaushik Chowdhury, Adv.,
                                    Mr. Billwadal Bhattacharyya, Adv.

For the CBI:                        Mr. Arijit Majumdar, Adv.



Parties filed Notes:
on Argument and
Reserved on:                        06.10.2023

Judgment on:                        06.02.2024
                                                2




     ANIRUDDHA ROY, J.:

Facts

1. The first petitioner belongs to Other Backward Classes (for short, OBC-B) and the second petitioner belongs to Exempted Category (Unreserved) candidate.

2. The erstwhile Burdwan District Primary School Council (for short, the Primary School Council), at present Purba Burdwan issued an advertisement for the Post of Lower Division Clerk. One post was reserved for General (EC) and one was reserved for Ex-servicemen with the respective educational qualification mentioned therein.

3. The petitioners participated in a selection process for the post of Lower Division Clerk (LDC) in the year 2015, pursuant to an advertisement issued by the District Primary School Council, Annexure P-2 at page 28 to the writ petition. The petitioners were the successful candidates in the said selection process and were called for interview of June 12, 2015, Annexure P-4 at page 32 to the writ petition. However, no result was published by the Primary School Council and the petitioners were not made known of the fate of their candidatures. The petitioners on February 15, 2016 applied under the Right to Information Act, 2005 on February 15, 2016. From time to time several applications/reminders were submitted by the petitioners, since no reply was given to the petitioners under the Right to Information Act which shall be available at various pages from page 34 to the writ petition.

4. On February 16, 2023 the relevant authority, RTI Cell of the Primary School Council issued a memo requesting the Primary School Council to furnish information to the petitioners in accordance with law, Annexure P-10 at page 47 to the writ petition.

5. By communication dated March 3, 2023, the Deputy Director of School Education requested the Joint Director of School Education for seeking assistance under the RTI Act, 2005 so that necessary information could be furnish to the petitioners, Annexure P-11 at page 48 to the writ petition.

6. The Joint Director of School Education by a communication dated March 29, 2023, Annexure P-12 at page 49 to the writ petition informed as under:

"In reference to the above, the undersigned informs him that the panels prepared and submitted to West Bengal Board of Primary Education by Burdwan District Primary School Council vide Memo. No. 2080 dated 26/06/2015 and subsequently forwarded to this Directorate vide WBBPE's No. 984/BPE/2015 dated 30/06/2015 in connection with recruitment of 01(One) L.D. Clerk under OBC-B Category and 01(One) L.D. Clerk under UR-EC Category in Burdwan District Primary School Council were approved by this Directorate vide Memo No. 1308-Sc/P dated 15/12/2015 and sent to the erstwhile Chairman, Burdwan District Primary School Council with a request to issue appointment letter to the candidate from the approved panels strictly following the terms and conditions as mentioned in School Education Department (Primary Branch)'s No. 253- SE(Pry) dated 14.03.2007. The names of Shri Abhishek Maddunay and Shri Sudipta Mukherjee have been empanelled in the cited approved panels under OBC-B Category and UR-EC Category respectively. There is no record available at this Directorate whether the appointment letters were issued to the candidates from the said approved panels."

7. The petitioners thereafter on March 29, 2023 and April 11, 2023 made representations before the Primary School Council at pages 50 to 53 to the writ petition.

8. Since, no steps were taken by the Primary School Council, challenging its inaction the petitioner filed the instant writ petition with the following reliefs:

"(a) Dispensing the provisions of Rule 26 of the Appellate Side Rules, by serving copies to all the respondent authorities;

(b) Issue a Writ of or in the nature of Mandamus commanding the respondents their men, agents and assigns to issue the letter of appointment in favour of the petitioners in terms of the Memo No. 347-SC/P dated 29.03.2023 by the Joint Director of School Education, West Bengal;

(c) Issue a Writ of or in the nature of Mandamus commanding the respondents their men, agents and assigns to issued the letter of appointment in favour of the petitioners in terms of the approval done by the office of the Joint Director of School Education vide Memo No. 1308-SC/P dated 15.12.2015;

(d) Issue a Writ of or in the nature of Mandamus commanding the respondents their men, agents and assigns to start a case against the Chairman, Burdwan District Primary School Council, now Purba Bardhaman and Mr. Achintya Chakraborty respondent No. 10 herein by any independent agency and/or by the respondent No.4 and 5 herein;

(e) Issue a Writ in the nature of Mandamus commanding the respondents their men, agents and assigns to publish the merit list along with all details of the participants (with the break up) including your petitioners marks in the written examination, academic score and the marks obtained in personality test;

(f) Issue a Writ in the nature of Mandamus commanding the respondents their men, agents and assigns to grant all benefits in favour of the petitioner by treating them in service on and from December 15, 2015 and granted all the benefits in favour of the petitioners forthwith;

(g) Issue a Writ in the nature of Certiorari directing the respondent authorities, their men, agents and assigns to forthwith and/or immediately certify and/or transmit to this Hon'ble Court the entire records and/or proceedings forming subject matter of the instant case including the communications 5 and letters exchanged so that conscionable justice may therein be administered;

(h) Rule NISI in terms of prayers (a), (b) (c) and (d) as above and to make the Rule absolute if no cause and/or insufficient cause is shown in answer thereto;

(i) Issue an interim order directing the Respondent authorities, their men, agents and assigns not to destroy the original panel and/or original documents lying inside the office of Burdwan District Primary School Council, now Purba Bardhaman and in the house of Mr. Achintya Chakraborty, respondent No. 10 herein pertaining to the selection process of Lower Division Clerk by the Burdwan District Primary School Council, now Purba Bardhaman;

(j) Issue an interim order directing the Respondent authorities, their men, agents and assigns not to destroy the original panel and/or original documents lying inside the office of Burdwan District Primary School Council, now Purba Bardhaman and in the house of Mr. Achintya Chakraborty, respondent No. 10 herein pertaining to the selection process of Lower Division Clerk by the Burdwan District Primary School Council, now Purba Bardhaman till disposal;

(k) Issue an interim order directing the Respondent authorities, their men, agents and assigns not to filled up the four post of vacancies regarding the lower division clerk by the Burdwan District Primary School Council, now Purba Bardhaman till disposal of this writ application;

(l) Such further or other order or orders as Your Lordships may deem fit and proper."

9. The writ petition was considered from time to time and diverse Orders were passed.

10. Pursuant to the leave granted by this Court on June 14, 2023 a supplementary affidavit affirmed on June 20, 2023 was filed by the petitioners.

11. Pursuant to the direction of this Court dated June 22, 2023, the respondent no. 8 and 9 filed its affidavit-in-opposition affirmed on June 27, 2023 and the respondent no. 10 also filed his affidavit-in-opposition affirmed on June 30, 2023. The petitioners filed their respective affidavits in reply both affirmed on July 10, 2023.

12. On July 19, 2023 when the writ petition was considered by this Court, the Junior Standing Council for the State appeared for respondent nos. 1, 2, 3, 5 and 7 submitted a report prepared on behalf of the respondent no. 3 containing a communication dated July 13, 2023 issued to the respondent no. 9 and the photo copies of two memos bearing numbers 1308-SC/P and 1309-SC/P both dated December 15, 2015 where from it appeared that the petitioners were selected in the panel and the second page of the report showed that the first petitioner stood First in the panel under OBC Category and the second petitioners stood First in the panel under unreserved category. Both the State and the respondent nos. 8 and 9 submitted before this Court that the respondent no. 10, the then Chairman of the Council at the relevant point of time was responsible for not publishing the result of the selection process held in 2015 and did not issue the appointment letters in favour of the petitioners. The respondent no. 3 filed the report in the form of affidavit affirmed on July 7, 2023. The relevant observation of this Court as stated above would be supported from the statements made in paragraph 5 to 10 of the said affidavit report.

13. On August 16, 2023, the writ petition was taken up for further consideration. The respondent no. 10 filed its supplementary affidavit affirmed on August 10, 2023 disclosing his assets and properties. The order 7 recorded that appointment letters dated August 8, 2023 were issued in favour of the petitioners and they had collected the same. The petitioner had already joined to their employment on August 10, 2023 and directions were made by this Court for granting notional benefit to the petitioners since December 15, 2015 being the date of approval. An Order of injunction was passed upon the respondent no. 10 restraining him to deal with his fixed assets without leave of the Court.

14. The petitioners on August 18, 2023 affirmed a short affidavit disclosing the letters of appointment and the fact of joining to their employment.

15. The order passed by this Court dated August 16, 2023 and September 21, 2023 depict that the petitioners received their respective appointments with notional benefits. Thereafter the writ petition was kept pending and was heard at length for deciding the issue that whether the petitioners shall be compensated during the period from the approval of the panel for their appointment and the date of receiving the actual appointment letters that is between December 15, 2015 till August 8, 2023. For this limited question the adjudication is being done by this Court.

16. The stand taken by the respondent no.10 from its supplementary affidavit to the affidavit in opposition affirmed on August 10, 2023 are quoted below:

"8. As I already stated in my affidavit --in-opposition that I had retired from my post in September, 2021 after successful handover of and takeover of my charge to the next Chairman. I have never received any kind of query or allegation in any corner or any of the authorities, though the said authorities are trying to bring allegation of inaction against me now when I am out of the office, have no records to consult or explain and my relationship with the said council was ceased on the date of my retirement.

9. In the year 2015, as per the authority of my post, I had to select 4 candidates for the post of lower division clerk, Group from C 4 different categories which are OBC, UREC, Ex Serviceman and SC Category. Now the entire recruitment process is done following some protocols and passes through different departments before the final selection is done.

10. After written examination and subsequent interviews, job is given at 1:5 ratio. The resumes of selected candidates are first sent to the Board. A board is a body comprising of 29 members who are elected by the members of the government and changes after every 5 years. Out of the 29 members, 5 are MLA. Once the proposal is accepted by the board it is further sent to the subcommittee. A subcommittee has different divisions such as Disciplinary Subcommittee, Academic Subcommittee, Development Subcommittee, Finance Subcommittee, Sports Subcommittee and Departmental Subcommittee. As per the West Bengal Primary Education (Appointment and punishment of staff of primary school council) Rule 2007 the entire recruitment procedures are handled and taken care of by the subcommittee. Once the subcommittee approves the candidates, panel is created and NOC is handed over to School Education Director (Primary Branch) and West Bengal of Primary Education.

11.In this case, the board approved the candidates and forwarded it to the subcommittee and panel was created successfully. But out of 4 candidates NOC was given for just 3 candidates, leaving the SC category behind, via memo no 1308/SCP dated 15-12-2015.Similarly the disapproval of SC Candidate and request for its resubmission was given by Bikash Bhaban. In 2016, since the SC category panel was asked for resubmission, the subcommittee immediately requested for rechecking all the 4 panels instead of just 1.

12. In February or March of 2016 the DGM of Board called for an extraordinary General Meeting with subject of providing jobs to all 4 selected candidates. In the meantime, since the SC category candidate was not provided with a job, the common mass of this category started severe demonstration, the record of which should still available in DPSC office. This created a very risky situation.

13.In the meantime, during February, the Bidhan Sabha Election 2016 was declared and it consumed major manpower putting a pause to this situation. As mentioned earlier, the board is formed by the government and changes every five years. But post 2016 election no new board was formed and the old board was dissolved with no member having the power 9 to make any decision related to recruitment. After that all new recruitments were done with state board permissions. There was no Old committee and subcommittee and accordingly this matter could not be proceeded due to lack of management in Primary Education Department. None of the members were ready to provide proper answers for the present recruitment procedure and even the candidates did not show any sign of dissatisfaction in so many years. This is a matter before the pandemic hit the world and post that I retired in Sep 2021 with successful handover and takeover.

14. By Memo no 1308-sc/P and Memo No 1309/SC/P dated 15.12.2015, in which the Burdwan District School Board Council responded stating that they have forwarded the matter to the Committee, an elected body by the government. A resubmission of panel for all four categories of candidates was unanimously decided. However, the said Memo dated 15.12.2015 speaks for itself

15. I say again that in February or March, the DGM of the board called for an extraordinary general meeting with the subject of providing jobs to all four selected candidates at the same time. However, earlier the SC category candidate was not given a job, which led to severe demonstrations by the common mass of this category. The records of these demonstrations should still be available with the DPSC office. This situation created a high- risk environment, and as the chairman, I took it upon myself to ensure the safety of the people at any cost.

16. Around the same time, in February, the Bidhan Sabha election 2016 was declared, which consumed the major manpower, and the situation came to a pause. As we may recall, the government forms the board every five years, but post the 2016 election, no new board was formed, and the old board was dissolved, with no member having the power to make any decisions related to recruitment. Afterward, all new recruitments were done with state board permissions. Unfortunately, due to the lack of an old committee and sub- committee, this matter lost its importance as there was no management in the primary education department. None of the members were willing to provide proper answers regarding the present recruitment procedure, and even the candidates did not express any signs of dissatisfaction over the years. I would like to mention that till date these posts are vacant and no new candidate has been selected for these posts.

17. It is important to mention that the office was closed due to COVID-19, and in September 2021, I retired from my post with a successful handover and takeover of all the official 10 documents. I would like to clarify that all the aforementioned details are shared based on my memory".

17. The stand taken by the Commissioner of School Education, respondent no.3 in its affidavit affirmed on September 5, 2023 is quoted below:

"4) Before dealing with the paragraph wise statements of the supplementary affidavit, your deponent begs to state the following facts for consideration by this Hon'ble Court:

i) That the Commissioner of School Education, West Bengal vide memo no. 1308-Sc/P dated 15.12.2015, approved three panels regarding appointment in three vacant posts of Group-C staff in the Bardhaman District Primary School Council and communicated the approval of three panels to the Chairman, District Primary School Council, Bardhaman. Regarding the rest one panel which was for Scheduled Caste category, the Deponent vide memo no 1309-Sc/P dated 15.12.2015 requested the Chairman, District Primary School Council, Bardhaman to conduct interview again and prepare panel again.

Photocopy of the aforesaid memo no. 1308-Sc/P dated 15.12,2015 and memo no. 1309-Sc/P dated 15.12.2015 are annexed herewith and collectively marked as "A.

ii) The approved panels reveals that Sri Abhishek Maddunay stands first in the panel under OBC category, Sri Sudipta Mukherjee stands first in the panel under Unreserved category and Sri Lakshmi Kanta Sain stands first in the panel under Ex- Service man category.

iii) After approval of panels from this Directorate, in terms of the recruitment rules, published vide Notification No. 253-SE (Pry) dated 14.03.2007, the Chairman, District Primary School Council, Purba Bardhaman is the competent authority to issue appointment letter to the empanelled candidate.

iv) That in response to the memo no. 1460 dated 02.06.2023 of the Chairman, District Primary School Council, Purba Bardhaman, the Deponent, vide memo no. 615-Sc/P dated 13.07.2023, has forwarded the photocopies of the aforesaid memo no. 1308-Sc/P dated 15.12.2015 and memo no. 1309-Sc/P dated 15.12.2015 to the Chairman, District Primary School Council, Purba Bardhaman for taking onward action.

Photocopy of the aforesaid Memo no. 615-Sc/P dated 13.07.2023 is annexed herewith and marked as "B".

v) That again in response to the memo no. 1935 dated 14.07.2023 of the Chairman, District Primary School Council, Purba Bardhaman, the Deponent, vide memo no. 643-LP dated 4.8.2023 requested the said Chairman to take necessary action in accordance with the existing rules keeping in mind the views of the Hon'ble High Court.

Photocopy of the aforesaid Memo no. 643-LP dated 4.8.202 is annexed herewith and marked as "C".

vi) That it is reported by the Chairman, District Primary School Council, Purba Bardhaman vide his memo no 2173 dated 11.8.2023 that appointment letters have already been issued to the petitioners and they have joined in their respective posts on 10.8.2023.

Photocopy of the aforesaid Memo no. 2173 dated 11.8.2023 is annexed herewith and marked as "D".

5) That the deponent also states the following facts regarding different statements made by the respondent no 10 in his supplementary affidavit.

a) That in respect of the paragraph no 11, it is my humble submission that the Appointment Sub Committee of the Chairman, District Primary School Council, Purba Bardhaman has no jurisdiction or power for rechecking the panels which are already approved by the Commissioner of School Education, West Bengal without any prior permission of the Commissioner of School Education, West Bengal.

b) That in respect of the paragraph no 12, it is my humble submission that neither any proper information nor any intimation has been received by the Directorate of School Education, West Bengal regarding the severe demonstration of the common mass of the schedule caste category in the office of the District Primary School Council, Purba Bardhaman.

c)That in respect of the paragraph no 13, it is my humble submission that before the pandemic hit the World in February, 2020 there was a plenty of time to issue appointment letter to the approved empanelled candidates by the Chairman, District Primary School Council, Purba 12 Bardhaman. The said Council wasted its time badly with a plea of un-approved panel of Scheduled Caste category. The Directorate of School Education, West Bengal expressed its clear views regarding the said panel vide memo no 1309- Sc/P dated 15.12.2015.

d)That in respect of the paragraph no 14,15,16 and 17, it is my humble submission that its are mere reiteration and so denied by the deponent. All other paragraphs in the supplementary affidavit are information derived from records".

18. In counter to the said affidavit filed by the respondent no.3, the respondent no.10 filed its counter affidavit affirmed on September 20, 2023 with his following stand:

"3. With reference to the statements contained in paragraph Nos. 1,2,3 & 4 including supplementary of paragraph No4. I say that most the same are matters of record hence I deny and dispute any allegation which is beyond the scope of the admitted records

4. With reference to the statements made in paragraph No. 5 of the said affidavit I say that as per the West Bengal Primary Education (Appointment and punishment of staff of primary school council) Rule 2007 the entire recruitment procedures are handled and taken care by the subcommittee. Once the subcommittee approves the candidates, panel is created and NOC is handed over to School Education Director (Primary Branch) and West Bengal of Primary Education. The chairman is not solely the competent authority to issue appointment letter if the sub committee is not on board. By the Memo No. 1309 dated 15.12.2015 the Respondent No. 3 requested the commissioner to conduct interview again and resubmit the panel in respect of S.C. Category. In this case earlier, the board approved the candidates and forwarded it to the subcommittee and panel was created successfully. But out of 4 candidates NOC was given for just 3 candidates, leaving the SC category behind, via memo no 1308/SCP dated 15- 12-2015.Similarly the disapproval of SC Candidate and request for its resubmission was given by Respondent No. 3. Since the SC category panel was asked for resubmission, the subcommittee immediately requested for rechecking all the 4 panels instead of just 1. It is beyond the authority of the Chairman to question or stop the subcommittee for its actions. As per as my memos goes it was within the knowledge of all the concerned parties and 13 thereafter the office of the Commissioner did not receive my communication from any end.

Notification no 253-SE(Pry) dated 14th March 2007 from Government of West Bengal School Education department Primary Branch, (points no 4-10) regarding the recruitment procedure is annexed hereto and marked with the letter R-1.

5. I am a retired person now and all the facts that I am stating are form my memory. I still get flash of the demonstration that happened right in front of my eyes. I am confident that document related to this are still available in the concerned DIB (District Intelligence Branch) or District Primary School Council office's record section.

6.It was not just the pandemic but the entire election campaigns of 2016 that shifted the limelight from this. The Bidhan Sabha pause to this situation. As mentioned earlier, the board is formed by the government and changes every five years. But post 2016 election no new board was formed and the old board was disclosed with no member having the power to make any decision related to recruitment. After that all new recruitments were done with state board permissions. Due to the lack of old any committee and sub committed, this matter could not be proceeded due to lack of management in primary education department.

7. I say that after 2017 District Bardhaman was divided into Purba Bardhaman and Paschim Bardhaman which majorly affected the management and operations which were conducted smoothly before the partition.

Photocopy of the concerned memo dated 24.03.2017 is annexed hereto and marked with the letter 'R-2'

8. I say that I have retired in September 2021 when my relationship with the council had been ceased. Whatever statements I have made is mainly based on memory. It is worth mentioning here that the writ application against me is not maintainable as I am no more in office after I retired in September, 2021".

19. The respondent no.9 filed a written notes, inter alia, contending that, the respondent no.9 took charge as the Chairman of the Primary School Council on September 20, 2021. The specific stand taken by the respondent no.9 was that after coming to know about the said situation, he requested the 14 erstwhile Chairman, that is, the respondent no.10 to handover all records related to the subject selection process and the erstwhile chairman did not pay any heed thereto. The further stand of the respondent no.9 was that for the first time on April 20, 2023 from the letter of the writ petitioners the respondent no.9 came to know about the claim of the petitioners which compelled the respondent no.9 to write a letter dated June 2, 2023 to the respondent no.3 for supplying an authenticated copy of the relevant panel.

In reply the respondent no.3 by its letter dated July 13, 2023 had provided the approved panel which was approved on December 15, 2015 provisionally for one year expired in December 2016. By a letter dated July 14, 2023 the respondent no.9 requested the respondent no.3 for extension of the life of the panel to enable him to take necessary steps in the matter but no response was received from the respondent no.3. Then pursuant to the direction of this Court the records of the petitioners were verified and ultimately the appointment letters were issued on August 8, 2023 in favour of the petitioners.

Submissions:

20. Mr. Gourav Das learned counsel for the petitioner submits that the records depict that when the panel was approved in 2015 admittedly the respondent no.10 was the Chairman of the relevant School Council and he retired in September 2021. During this six years of period the respondent no.10 failed and neglected to take any step to issue appointment letters in favour of the petitioners. The matter was never pursued in right earnest before the higher authorities. The respondent no.10 being a statutory authority failed to discharge his statutory duties in utter negligence of his statutory obligations.

The petitioner is, therefore, entitled to receive just an adequate compensation payable by the respondent no.10.

21. Mr. Das learned counsel for the petitioner submits that, the respondent no.8 being the District Primary School Council is a statutory authority. During the regime of the respondent no.10 the record shows that, the respondent no.8 had failed and neglected to take steps and/or proper steps for issuing appointment letters in favour of the petitioners. The respondent no.8 had allowed the subject panel to expire. The chain of events as would be evident from the records would clearly demonstrate that the respondent no.8 had also failed to discharge its statutory duties by not issuing the appointment letters to the petitioners immediately when the relevant panel was approved and the issue was never pursued by the respondent no.8 with the higher authority in right earnest. In effect the petitioners have suffered mental agony and anxiety and had lost for about valuable 8 years of employment even after being successfully empanelled. The petitioners are, therefore, liable to be compensated by the respondent no.8 also and the respondent no.8 cannot avoid its responsibility.

22. In support of his contention, that compensation can be granted in appropriate case by a Writ Court in exercise of its plenary power under Article 226 of the Constitution of India, he had relied upon the following judgments:

(i) A judgment of a Coordinate Bench of this Court In the matter of:

Tripura Sankar Chell vs. University of Calcutta & Ors., reported in 1991 SCC OnLine Cal 253.

(ii) A judgment of a Coordinate Bench of Delhi High Court In the matter of: Taskinuddin & Ors. vs. State (NCLT of Delhi) & Anr., rendered in WP(C) No. 5812/2011 dated 11/09/2013.

23. Mr. Krishnendu Banerjee learned counsel for the respondent no.10 submits that, the petitioners had not claimed compensation in the writ petition. The Writ Court cannot grant any monetary relief/compensation in exercise of its jurisdiction under Article 226 of the Constitution of India. Referring to his stands taken in several affidavits as already referred to above, he submits that, the issue was taken up immediately after the panel was approved in 2015 and also thereafter before the respondent no.3 but no effective result or assistance came from the office of the respondent no.3. Respondent no.10 the then retired in September, 2021 and, therefore, no liability for compensation can be foisted upon him. It is the respondent no.8 whose is primarily responsible for not issuing the appointment letters to the petitioners at the material point of time. To issue the appointment letters the situation was being beyond his control. As quoted above from his affidavits, appointment letters could not be issued by him in favour of the petitioners.

In any event the petitioners had received their appointments and thereby the petitioners have received their entire claim in the writ petition. Hence, no further claim for compensation is maintainable. The Respondent No.10, being a retired person has no means to pay any compensation to the petitioners since the relief has already been granted no further orders can be passed therein.

24. Mr. Saibal Acharya appearing for respondent no.8 and 9 submits that their stand is clear as already referred to above in the notes filed on behalf of respondent no.9. He submits that, immediately after the present Chairman of the respondent no.9 has taken charge and after receiving the communication in 2023 from the petitioners, the respondent no.8 has taken all steps with the respondent no.3 and ultimately the appointment letters have been issued in favour of the petitioners. Petitioners have joined and notional benefits have duly been granted to the petitioners in accordance with law. Learned counsel on instruction further submits that the direction of this Court for issuing appointment letters has duly been carried out and complied with. In absence of any claim for compensation in the writ petition, no such relief can be granted in favour of the petitioners. Inasmuch as at the relevant point of time the respondent no.8 was not there at all and even if any responsibility or liability is there, it is for the respondent no.10 to meet as he was the Chairman of the Primary School Council during the period 2015 to 2021.

25. Mr. Acharya further submits that the Primary School Counsel is running with financial stringency. In any event, law does not permit in the facts of this case to pay compensation to the petitioners by the respondent no.8 and in addition the financial condition of the respondent no.8 is not such that it can pay any compensation to the petitioners. He further submits that, the reliefs claimed in the writ petition having been granted totally to the petitioners, no further relief can be granted in their favour which is not prayed for in the writ petition.

26. Mr. Sirsanya Bandyopadhyay learned junior standing counsel appearing for 18 the State respondents submits that all necessary steps were duly taken by the respondent no.3 when the issue was brought before it by the relevant school council. The respondent no.10 being the Chairman at the relevant point of time in 2015 had failed to take necessary steps and pursue the matter in right earnest to issue the appointment letters in favour of the petitioners. The panel stood expired as the respondent no.10 and the respondent no.8 did not take any step for issuing the appointment letters during the lifetime of the panel. Learned junior standing council reiterates the stand had already referred to above and submits that the moment direction was made by this Court, a notice was served upon the respondent no.3, it had taken all necessary steps to enable the Primary School Council to issue the appointment letters to the petitioners and ultimately the appointment letters were issued in favour of the petitioner. Notional benefits were also granted. The petitioners have joined their respective employments.

In the facts of this case he submits that no further obligation is left to the performed by the respondent no.3 and the respondent no.3 has performed all its statutory obligations. The respondent no.3 cannot be called for payment of any compensation to the writ petitioners.

Decision:

27. After considering the rival contentions of the parties and upon perusal of the materials on record, it appears to this Court that, the admitted facts are that the panel was approved in 2015 and the respondent no.10 was the Chairman of the Primary School Council then and retired in September, 2021. The petitioners received the appointment letters on August 8, 2023 with notional benefits, pursuant to the direction of this Court. The question 19 then arose whether petitioners shall be compensated by this Court during this period from 2015 to 2023.

28. The reliefs claimed in the writ petition show that there is no specific prayer for awarding compensation. The law is well settled that, a Writ Court with its plenary power exercising under Article 226 of the Constitution of India, if finds that the just and lawful benefit of the petitioner is not granted out of the negligence on the part of the authority, to grant appropriate relief and consequential reliefs the Writ Court can mould the relief to dispense justice in exercise of its jurisdiction both in law and equity.

29. Upon careful scrutiny of the records and the case made out by the respective respondents on oath as referred to above, this Court is of the firm view that, after the approval of the panel in 2015 when the respondent no.10 was admittedly the chairman of the primary school council he had not taken any effective steps for issuing appointment letters in favour of the petitioners.

From the stand taken by the respondent no.10 through his affidavits filed before this Court, this Court is of the firm opinion that, assuming though not admitting there was any difficulty on the part of the respondent no.10 in issuing the appointment letters, the respondent no.10 has failed to establish an unimpeachable case that with an effective effort he had pursued the matter in right earnest with the higher authorities/respondent no.3 till his retirement in September, 2021.

30. From the affidavits used by the respondent no.8 and 9 in this proceeding, it is also evident that, the concerned District Primary School Council during the regime of the respondent no.10 till September, 2021 had failed to take proper steps which were required to be taken in right earnest before the 20 State authority, so that appointment letters could be issued in favour of the petitioners and thereby appointments could be granted to them immediately after the subject panel was approved in 2015. The concerned District Primary School Council being a creature of statute had failed and neglected to discharge its statutory obligations as would be evident from the facts of this case. The concerned District Primary School Council being a statutory authority could not and should not have acted in gross negligence depriving the petitioners from their lawful employments.

31. The stands of the respective respondents have not demonstrated that, the respondent no. 3 has all along not taken necessary steps for finalizing the panel and to issue appointment letters in favour of the petitioners. However, due to the negligence on the part of the respondent no.10 as the matter was not pursued in right earnest, the panel stood expired. At this juncture definitely right had accrued in favour of the petitioners to challenge the in action and arbitrary action of the authorities.

32. Whenever and wherever a Writ Court finds that an irreparable wrongful act has taken place due to the arbitrary and mala fide exercise of power on the part of the State authority, the Writ Court with its plenary jurisdiction can always intervene for complete justice and to set the clock right.

33. In the matter of: Comptroller and Auditor-General of India, Gian Prakash, New Delhi and Another vs. K.S. Jagannathan and Another, reported at (1986) 3 SCC 679, the Hon'ble Supreme Court had observed as under:

"18. The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could 21 not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission-both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in the exercise of its jurisdiction under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarka- nath v. ITO this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found"

and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa³ this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government government or its officers.

19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions Almost a hundred and thirty years ago, Martin, B., in Mayor of Rochester v. Regina said:

But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen's Bench That court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute: Comyn's Digest, Mandamus (A).... Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to 22 apply it in every case to which, by any reasonable construction, it can be made applicable.

The principle enunciated in the above case was approved and followed in King v. Revising Barrister for the Borough of Hanley. In Hochtief Gammon case this Court pointed out (at p. 675 of Reports: SCC p. 656) that the powers of the courts in relation to the orders of the government or an officer of the government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield v. Minister of Agriculture, Fisheries and Foods the House of Lords held that where Parliament had conferred a discretion on the Minister of Agriculture, Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the court and though there might be reasons which would justify he Minister in refusing to refer a complaint to a committee of investigation, he Minister's discretion was not unlimited and if it appeared that the effect of is refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere by an order of mandamus. In Halsbury's Laws of England, 4th edn., vol. I, para 89, it is stated that the pur- ose of an order of mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.

20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which 23 such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.

21. It is now necessary to examine the nature of the discretion conferred by the said Office Memorandum dated January 21, 1977-"Whether it is a discretionary power simpliciter or a discretionary power coupled with a duty?" From the provisions of the Constitution referred to above, it is transparently clear that it is a discretion to be exercised in the discharge of the constitutional duty imposed by Article 335 to take into consideration the claims of the members of the Scheduled Castes and the Scheduled Tribes, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. This duty is to be exercised in keeping with the Directive Principle laid down in Article 46 to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. Article 37 of the Constitution provides that the Directive Principles of State Policy contained in Part IV of the Constitution, in which Article 46 occurs, are fundamental to the governance of the country and that it is the duty of the State to apply these principles in making laws. As said by Murtaza Fazal Ali, J., in State of Kerala v. N. M. Thomas (at page 996 of the Reports: SCC p. 379, para 164) "the directive principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles".

(Emphasis Supplied)

34. There was no denial of fact that the petitioners suffered mental anxiety and agony and lost about valuable 8 years of employment which cannot be regained by the petitioners. By granting a notional benefit only the superannuation benefit will have an impact but the benefit that could have 24 been actually earned by the petitioners for long 8 years would be deprived.

35. A Coordinate Bench of this Court In the matter of: Tripura Sankar Chell vs. University of Calcutta & Ors., reported at (1991) 2 Cal LJ 279 had observed as under:

"11. There is no denying the fact that the petitioner Tripura Sankar Chell has suffered mental anxiety, depression and insult of being an unworthy student since the declaration of result of the Final L.L.B. Examination of 1987, in 1989. Had he been declared successful he would have added to his credit about two-and a-half years of legal practice, either in a sub- ordinate Court or in the High Court. The experience of this Court is that there was a time when a junior Advocate had to struggle bard for years together to earn a livelihood but now the time has changed and two-and-a-half years more or less are sufficient for an Advocate to have a modest earning in the High Court specially in the High Court's Writ Jurisdiction. Further it is also a fact that be could have taken part in the West Bengal Civil Services (Judicial) Examination for selection as a Munsif and could have succeeded had his result been announced in time correctly. Apart from the above, there was a good chance for him in other competitive examinations or to get an employment in any multinational organisation or a good establishment which would have made his career a prosperous one. He has been deprived of the aforesaid chances by the sheer negligence and deliberate insincerity on the part of the authorities of the Calcutta University and this act of the University li not condonable. The time has come when the Calcutta University should be dealt with adequately for the 'criminal negligence' that was meted out to the petitioner and the way the authorities of the University dealt with his application for re-examination in half-hearted way without even caring to look into the paper on Drafting of Pleadings and Documents and writing him again and again that there was no change in his result and the result announced stood unchanged.

12. Undoubtedly the valuable two-and-a-half years or so that slipped out of the petitioner's hand cannot be regained and it is impossible to put a healing balm on the injury already inflicted upon the petitioner by the University. The High Court in its writ Jurisdiction has ample extraordinary powers to serve the needs of the people as well as the needs of the society. The Court must keep pace with the heartbeats of the people and their needs and aspirations. It is for the judiciary to uphold justice 25 and to implement it properly so that the victim must feel that justice has been done, not symbolically but practically. I am firmly of the view that the petitioner must be paid damages for the way the University of Calcutta behaved with him in examining his Second Paper on Drafting of Pleadings and Documents with utter negligence and even after re-examination of the same reiterating the stand taken by the Examiners who committed the 'criminal act' of not allotting marks to the three questions which were fully answered by the candidate. The Court strongly deprecates the conduct of the authorities of the University of Calcutta and the method they have adopted in not redressing the grievances of an examinee even after repeated requests and prayers. Once the Calcutta University was the premier University of India but today, one is sorry to say, it has lost that premier status and has come down considerable. This weakness in the administration of the University indicates inherent lack of control by the top officials of the University over their subordinates who are comfortably slipping out of their control because of inadequate vigilance and rampant indiscipline.

13. In the circumstances I direct the University of Calcutta and the Vice-Chancellor for pay as compensatory damages to the petitioner Tripura Sankar Chell a sum of Rs. 25,000,00 (Rupees Twenty five thousand) only within 31st December, 1991 and the time limit must be maintained strictly. The Vice-Chancellor is further directed to take appropriate action against the concerned erring examiner, head examiner, re- examiner, scrutineers and those who were in any way responsible in connection with this matter.

14. The writ application in allowed with the above direction. The Respondent Nos. 1, 2, 3, 4 and 5 shall pay cost assessed at 100 G.M.s to the petitioner".

(Emphasis Supplied)

36. A Coordinate Bench of the Hon'ble Delhi High Court In the matter of:

Taskinuddin & Ors.(supra) had observed as under:

"17.The court held that not only the respondent godown owner was liable, but also respondent MCD was equally liable as it was negligent in discharging its statutory function and ensuring that citizens' right to health and pollution free environment was not infringed. The court dealt with various issues with regard to the maintainability of writ proceedings; award of monetary relief in writ proceedings; power to mould the relief in writ 26 jurisdiction; the applicability of the principle contained in Rylands v. Fletcher (1868) LR 3 HL 330 and in the case of M.C. Mehta & Anr. v. Union of India & Ors., 1987 (1) SCC 395and, inter alia, held as follows. Though the extract is rather lengthy, I consider it appropriate to quote the same in extenso on account of it being very relevant, scholarly and lucid.

"PRESENT WRIT PETITION IS MAINTAINABLE

41.As far as the maintainability of present writ petition against respondent no. 5 is concerned, it is submitted that Article 226 of Constitution makes no distinction between a public function and a private function. In U.P. State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors. reported in : 1999 1 SCC 741 the Supreme Court held as under:

"27. ...When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self- imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances... "

42.Moreover, in our opinion, the present writ petition is maintainable as undoubtedly respondent-MCD has been remiss and negligent in discharging its statutory obligations and in ensuring that a citizen's fundamental right to health and pollution free environment was not infringed. Consequently, present writ petition is maintainable.

MONETARY RELIEF CAN BE AWARDED IN THE PRESENTWRIT PETITION.

43.As far as respondent No. 5's submission that no writ petition for money claim is maintainable is concerned, we are of the view that the same is untenable in law. In our 27 opinion, the Constitution does not place any fetter on the exercise of extra ordinary jurisdiction of the Court and reliefs to be granted under such extra ordinary jurisdiction is left to the discretion of the Court in the light of facts and circumstances of each case. Moreover in the present case what has been sought is award of compensation and not payment of monetary claim.

COMPENSATION CAN BE AWARDED IN ARTICLE 226 PROCEEDINGS

44.It is further well settled that proceedings under Article 226 of the Constitution of India, enable the courts, to reach out to injustice, and make appropriate orders, including directions to pay damages or compensation. The Supreme Court in Dwarka Nath v. Income Tax Officer and Anr. reported in :

AIR 1966 SC 81 held as under:

"(4). ...This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws in analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To 28 say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa : 1955-1 SCR 250 : AIR 1954 SC 440 and Irani v.

State of Madras : 1962-(2) SCR 169 : AIR 1961 SC 1731."

45. Further the Supreme Court in Air India Statutory Corporation case reported in : 1997 (9) SCC 377 held that, "the Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts."

46.The concept of compensation under public law, for injuries caused due to negligence, inaction or indifference of public functionaries or for the violation of fundamental rights is well known. In Nilabati Behera v. State of Orissa : (1993) 2 SCC 746 at page 762, the Supreme Court held as under:

"17. ...a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle, which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers."

47. In Chairman, Railway Board v. Chandrima Das reported in : (2000) 2 SCC 465 Supreme Court emphasised the obligation of the State to protect women from violence, including rape and held that this right is a part of Right to Life guaranteed under Article 21 of the Constitution. In that case, the aggrieved party was a victim of rape committed in a railway compartment. The court rejected the Central Government's disclaimer of liability, and declared that the right of the victim under Article 21 had been violated. It awarded Rs. 10 lakhs as pubic law damages. It is pertinent to mention that the court did not examine who was the perpetrator, or what duty he owed to the Government. It was held sufficient that a wrong had occurred in a railway coach, which was under the control of the railway authorities.

48. It is pertinent to mention that this Court has also awarded compensation in writ jurisdiction in Raj Kumar v. Union of India 125 (2005) DLT 653, Delhi Jal Board v. Raj Kumar (2005) VIII AD (Delhi) 533, Chitra Chary v. DDA (2005) I AD (Del) 29, Shri Chand v. Chief Secretary (112) 2004 DLT 37, Shobha v. GNCTD : (2003) IV AD (Delhi) 492, Shyama Devi v. GNCTD (1999) I AD (Cr) Delhi 549, All India Lawyers' Union (Delhi Unit) v. Union of India : AIR 1999 Del 120, B.L. Wali v. Union of India (2004) VIII AD (Delhi) 341, Ram Kishore and Ors. v. Municipal Corporation of Delhi 2007 VII AD (Delhi) 441, WP(C) 5072- 73/2005 titled as Kishan Lal v. Govt. of NCT of Delhi decided on 3rd July, 2007, Kamla Devi v. Govt. of NCT of Delhi and Anr. : 2005 ACJ 216, and WP(C) 3370/2000 titled as Master Dheeru v. Govt. of NCT of Delhi and Ors. decided on 9th February, 2009.

IN ARTICLE 226 PROCEEDINGS, THE COURT CAN ALWAYS MOULD THE RELIEF

49. The power of the High Courts and the Supreme Court under Article 226 and Article 32 respectively, to mould the relief so as to compensate the victim has been affirmed by the Supreme Court on numerous occasions including Common Cause, A Registered Society v. Union of India : (1999) 6 SCC 667, Chairman, Railway Board v. Chandrima Das: (2000) 2 SCC 465, Delhi Domestic Working Women's Forum v. Union of India : (1995) 1 SCC 14, D.K. Basu v. State of W.B : (1997) 1 SCC 416 and Rudul Sah v. State of Bihar :

(1983) 4 SCC 141."

APPLICATION OF RULE IN RYLAND V. FLETCHER

50.The principle of liability without fault was enunciated in Ryland v. Fletcher reported in (1868) LR 3 HL 330. Facts of the said case were that defendant, who owned a mill, constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the mill owner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. Blackburn J. held the mill owner to be liable, on the principle that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. On appeal this principle of liability without fault was affirmed by the House of Lords (per Cairns, J.) but restricted to non-natural users.

51.To oppose the application of Ryland v. Fletcher rule the only submission advanced by respondent No. 5 before us was that running of a godown per se is not an inherently dangerous or hazardous industry and further the cause of fire could not be attributed to negligence of respondent No.

52.But the fact is that the Rule in Rylands v. Fletcher (supra) was subsequently interpreted to cover a variety of things likely to do mischief on escape, irrespective of whether they were dangerous per se e.g. water, electricity, explosions, oil, vibralious, noxious fumes, colliery spoil, poisonous vegetation, a flagpole, etc. (see 'Winfield and Jolowiez on 'Tort', 13th Edn. P. 425) vide National Telephone Co. v. Baker (1893) 2 Ch 186, Eastern and South African Telegraph Co. Ltd. v. Cape Town Tramways Co. Ltd. (1902) AC 3 81; Hillier v. Air Ministry (1962) CLY 2084, etc. See: Delhi Jal Board v. Raj Kumar reported in ILR (2005) Delhi 778.

53.Consequently, in our view, the submission of respondent No. 5 that running of a godown would not attract the rule enunciated in Ryland v. Fletcher is untenable in law.

54.Moreover, in our opinion, the dispute raised with regard to cause of fire is irrelevant for attraction of the rule in Ryland v. Fletcher inasmuch as one has only to see as to whether a person has put the land to a non-natural use and whether as a consequence of such use, some damage has been caused to the public at large. In the present instance, the above test is admittedly satisfied as respondent No. 5's premises was situated in a residential area which could not have been used as a godown and further as a consequence of fire in the godown containing consignment of pesticides, gas escaped which caused loss of lives and injuries to people living in the neighbourhood. Accordingly, the rule in Ryland v. Fletcher is attracted in the present case.

APPLICATION OF PRINCIPLE EVOLVED IN M.C MEHTA'S CASE

55. In any event, storage of chemical pesticides was certainly an inherently dangerous and/or hazardous activity and, therefore, the principle evolved by the Supreme Court in M.C. Mehta and Anr. v. Union of India and Ors. reported in : 1987 SCC 395 would apply" (emphasis supplied).

41. It is well settled by now that a writ court can award compensation while exercising the extraordinary constitutional jurisdiction. The question has been dealt with extensively by the Supreme Court in Rudul Shah V State of Bihar (1983) 3 SCR 508, Smt Nilabati Behera v State of Orissa & Ors (1993) 2 SCC 746, D.K Basu v Union of India (1997) 1 SCC 416,Chairman, Grid Corporation of Orissa Ltd (GRIDCO) and Ors (Supra),Tamil Nadu Electricity Board v Sumathi and Ors (2000) 4 SCC 543 , S.P.S Rathore V State of Haryana (2005) 10 SCC 1 and by this court in Jaipur Golden (supra) and Kamla Devi (supra).

42. The position that emerges from the afore mentioned decisions is that at least in cases, where the relevant facts are not in dispute; there is established negligence in the acts and omissions of the respondent authority/authorities in the face of the record, and; there is consequent deprivation of a 32 fundamental right of the petitioner, the writ court may award monetary compensation.

67. The court applied the principle that the petitioner would be eligible to receive a standard compensation for the fatal injury caused to the deceased. Over and above the same, the petitioners were held entitled to receive additional compensation in respect of loss of dependency.

68. In Kamla Devi (supra), the court held as under:

5. The compensation to be awarded by the Courts, based on international norms and previous decisions of the Supreme Court, comprises of two parts:-

(a) `standard compensation' or the so-called `conventional amount' (or sum) for non-pecuniary losses such as loss of consortium, loss of parent, pain and suffering and loss of amenities; and

(b) Compensation for pecuniary loss of dependency.

6. The `standard compensation' or the `conventional amount has to be revised from time to time to counter inflation and the consequent erosion of the value of the rupee. Keeping this in mind, in case of death, the standard compensation in 1996 is worked out at Rs. 97,700/-. This needs to be updated for subsequent years on the basis of the Consumer Price Index for Industrial Workers (CPI-IW) brought out by the Labour Bureau, Government of India.

7. Compensation for pecuniary loss of dependency is to be computed on the basis of loss of earnings for which the multiplier method is to be employed. The table given in Schedule II of the MV Act, 1988 cannot be relied upon, however, the appropriate multiplier can be taken there from.

The multiplicand is the yearly income of the deceased less the amount he would have spent upon himself. This is calculated by dividing the family into units - 2 for each adult member and 1 for each minor. The yearly income is then to be divided by the total number of units to get the value of each unit. The annual dependency loss is then calculated by multiplying the value of each unit by the number of units excluding the two units for the deceased 33 adult member. This becomes the multiplicand and is multiplied by the appropriate multiplier to arrive at the figure for compensation of pecuniary loss of dependency.

8. The total amount paid under 6 and 7 above is to be awarded by the Court along with simple interest thereon calculated on the basis of the inflation rate based on the Consumer Prices as disclosed by the Government of India for the period commencing from the date of death of the deceased till the date of payment by the State.

9. The amount paid by the State as indicated above would be liable to be adjusted against any amount which may be awarded to the claimants by way of damages in a civil suit or compensation under the Criminal Procedure Code".

(Emphasis Supplied)

37. The expression personal liberty under Article 21 of the Constitution of India is of widest amplitude and it covers a varieties of rights which goes to constitute the personal liberty of a citizen and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19 of the Constitution of India which, inter alia, includes right to livelihood. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and concern by a process of judicial construction. Though the concept of compensation does not appear in any article of Indian Constitution under Part III, various Courts of the country including the Hon'ble Supreme Court by its extensive interpretation have traced it under various provisions of the Constitution. A person with whom a wrong is committed generally seeks compensation under the law of torts before the Jurisdictional Civil Court.

This process is time consuming and it takes long time for the victim to get compensation through this process although the damages awarded under torts are well defined and categorized under the heads of compensatory 34 nominal and punitive. The least amount Courts provide is the direct financial loss suffered by the victim. Under Part III of the Constitution, various rights have been enumerated from Articles 12 to 35.

38. In the matter of: Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors., reported at (1985) 3 SCC 545, the Hon'ble Supreme Court had observed as under:

"32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is that struggle for survival, 35 that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey that the right to work is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. The State of U.P.

33. Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21".

(Emphasis Supplied)

39. Unless there is effective machinery for the enforcement of the rights, the declaration of the fundamental rights is meaningless; it is a remedy which makes the right real. If there is no remedy there is no right at all. It was, therefore, thought fit, after enumerating a long list of fundamental rights, by the constitution framers that there must also be some effective remedy for 36 the enforcement of these rights. So the constitution framers provided an effective remedy for enforcement of this under Article 226 empowering all the High Courts to issue writs for the enforcement of fundamental rights.

40. In the matter of: Rabindra Nath Ghosal vs. University of Calcutta & Ors., reported at (2002) 7 SCALE 137, the Hon'ble Supreme Court had observed as under:

"In Rabindra Nath Ghosal v. College Of Calcutta, the Supreme Court was called upon to declare the exclusive of the finding of the divisional seat of Calcutta High Court that the moment case is not a fit case for conceding harms under public law. The guideline of conceding harms under public law was emphasized by the incomparable court as takes after:

"The Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in public law proceedings. Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens".

(Emphasis Supplied)

41. In the matter of: N. Nagendra Rao & Co. vs. State of A.P., reported at (1994) 6 SCC 205, the Hon'ble Supreme Court had observed as under:

"9.This principle was statutorily recognised when the East India Company was taken over by the Crown. Section 68 of the Government of India Act, 1858 permitted the Secretary of the State in Council to sue or be sued. It was a departure from the English common law that no proceedings, civil or criminal, could be filed against the Crown. In Peninsular & Oriental Steam Navigation Co. v. Secretary of State for India which came up before the Supreme Court of Calcutta, on a reference made by the Subordinate Judge, on the liability of the State for negligence of its officers, Chief Justice Peacock held that since East India Company was not a sovereign, its liability for 37 negligence of its officers would be same as of an employer for acts of its employee. But the observations which were to influence the courts for years to come, both before coming into force of the Constitution and thereafter, were made while deciding the other issue whether the Secretary of the State in Council was personally liable. It was observed that there was a "clear distinction between acts done in exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them". To the extent there could have been little difficulty. But the learned Chief Justice in the next breath went on to observe:

"It is clear that the East India Company would not have been liable for any act done by any of its officers or soldiers in carrying on hostilities, ot for the act of any of its naval officers in seizing as prize property of a subject, under the supposition that it was the property of an enemy, nor for any act done by a military or naval officer, or by any soldier or sailor, whilst engaged in military or naval duty, nor for any acts of any of its officers or servants in the exercise of judicial functions."

Whether this was obiter dicta or not but this concession in favour of East India Company, a trading concern, was both unnecessary and unfortunate. It resulted in clothing the Company with powers which in law it did not have. The observations were irreconcilable with the earlier principle evolved that the Company being not a sovereign it could not claim sovereign immunity. Therefore, even though the Company was not sovereign yet it was made sovereign for carrying on hostilities and seizing the property. And this enunciation of law, even though incorrect and uncalled for, was seized upon and extended further in Nobin Chunder vs. Secretary of State of India, where the English principle of sovereign immunity of the Crown was applied and plaintiff's claim for recovery of damages against the State for non-issuing of the excise pass and in the alternative for refund of the auction money was rejected as it was an act done by the Government in exercise of sovereign power of the State. This decision and its application in numerous cases led to denial of relief to citizens and different principles were evolved but each revolving round basic doctrine of sovereign immunity. It was dissented to by the Madras High 38 Court in Secretary of State for India in Council v. Hari Bhanji and it was observed that Nobin Chunder Dey did not properly comprehend the law laid down in Peninsular. The Chief Justice of the Madras High Court, after dealing with Peninsular and its erroneous application in Nobin Chunder Dey, observed that defence of sovereign immunity was available in those limited cases where the State could not be sued for its acts, such as making war or peace, in Municipal Courts. Relevant observations are extracted below:

"Acts done by the Government in the exercise of the sovereign powers of making peace and war and of concluding treaties obliviously do not fall within the province of municipal law, and although in the administration of domestic affairs the Government ordinarily exercises powers which are regulated by that law, yet there are cases in which the supreme necessity of providing for the public safety compels the Government to acts which do not pretend to justify themselves by any canon of municipal law.

Acts thus done in the exercise of sovereign powers but which do not profess to be justified by municipal law are what we understand to be the acts of State which municipal courts are not authorized to take cognizance."

The doctrine or the defence by the "act of State", is not the same as sovereign immunity. The former flows from the nature of power exercised by the State for which no action lies in civil court whereas the later was developed on the divine right of Kings".

13. Sovereign immunity as a defence was, thus, never available where the State was involved in commercial or private undertaking nor it is available where its officers are guilty of interfering with life and liberty of a citizen not warranted by law. In both such infringements the State is vicariously liable and bound, constitutionally, legally and morally, to compensate and indemnify the wronged person. But the shadow of sovereign immunity still haunts the private law, primarily, because of absence of any legislation even though this Court in Kasturi Lal had expressed dissatisfaction on the prevailing state of affairs in which a citizen has no remedy against 39 negligence of the officers of the State and observed: (SCR pp. 391-92: AIR p. 1049, para 30) "In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature."

15. That apart, the doctrine of sovereign immunity has no relevance in the present-day context when the concept of sovereignty itself has undergone drastic change. Further, whether there was any sovereign in the traditional sense during British rule of our country was not examined by the Bench in Kasturi Lal though it seems it was imperative to do so, as the Bench in Vidhyawati had not only examined the scope of Article 300 of the Constitution, but after examining the legislative history had observed :

"It will thus be seen that by the chain of enactments beginning with the Act of 1858 and ending with the Constitution, the words 'shall and may have and take the same suits, remedies and proceedings' in Section 65 above, by incorporation, apply to the Government of a State to the same extent as they applied to the East India Company."

19. 'Sovereignty' and "acts of State" are thus two different concepts. The former vests in a person or body which is independent and supreme both externally and internally whereas latter may be act done by a delegate of sovereign within the limits of power vested in him which cannot be questioned in a Municipal Court. The nature of power which the Company enjoyed was delegation of the "act of State". An exercise of political power by the State or its delegate does not furnish any cause of action for filing a suit for damages or compensation against the State for negligence of its officers. Reason is simple. Suppose there is a war between two countries or there is outbreak of hostilities between two independent States in course of which a citizen suffers damage. He cannot sue for recovery of the loss in local courts as the 40 jurisdiction to entertain such suit would be barred as the loss was caused when the State was carrying on its activities which are politically and even jurisprudentially known as 'acts of State'. But that defence is not available when the State or its officers act negligently in discharge of their statutory duties. Such activities are not acts of State. In Sir Anthony Musgrave the Privy Council, while determining liability of the Governor, observed that it cannot "be assumed that he possesses general sovereign power. His authority is derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that, for acts of power done by a Governor under and within the limits of his commission, he is protected, because in doing them he is the servant of the Crown, and is exercising its sovereign authority; the like protection cannot be extended to acts which are wholly beyond the authority confided to him. Such acts, though the Governor may assume to do them as Governor, cannot be considered as done on behalf of the Crown, nor to be in any proper sense acts of State."

The Company was, thus, immune from being sued in courts only in those limited cases where its activities were political and mainly in relation to the Indian State. It did not enjoy any sovereign immunity like the Crown in England.

22. The old and archaic concept of sovereignty thus does not survive. Sovereignty now vests in the people. The legislature, the executive and the judiciary have been created and constituted to serve the people. In fact the concept of sovereignty in the Austinian sence, that king was the source of law and the fountain of justice, was never imposed in the sense it was understood in England upon our country by the British rulers. In Maganbhai Ishwarbhai Patel v. Union of India, where the question was if the Government was justified in agreeing to transfer certain village to Pakistan without approval of Parliament, it was observed by a Constitution Bench:

(SCC p.421, para 44) "[T] he question is one of authority. Who in the State can be said to possess plenum dominium depends upon the Constitution and nature of the adjustment."

In America the power vests in the court. Therefore, even such actions of the Government which are solely concerned with relations between two independent States are now amenable to scrutiny by courts to be examined on the anvil of constitutional provisions and exercise of authority under constitutional framework.

24. In the modern sense the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of power and manner of its exercise. Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law. A law made by a legislature may be bad or may be ultra vires, but since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a court of law for negligence in making the law. Nor can the Government in exercise of its executive action be sued for its decision on political or policy matters. It is in public interest that for acts performed by the State either in its legislative or executive capacity it should not be answerable in torts. That would be illogical and impractical.

It would be in conflict with even modern notions of sovereignty. One of the tests to determine if the legislative or executive function is sovereign in nature is whether the State is answerable for such actions in courts of law. For instance, acts such as defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to jurisdiction of ordinary civil court. No suit under Civil Procedure Code would lie in respect of it. The State is immune from being sued, as the jurisdiction of the courts in such matter is impliedly barred.

25. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen 42 to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental" is not sound. It is contrary to modem jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a Welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the "financial instability of the infant American States rather than to the stability of the doctrine's theoretical foundation", or because of "logical and practical ground", or that "there could be no legal right as against the State which made the law"

gradually gave way to the movement from, "State irresponsibility to State responsibility". In Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public 43 duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State.

29. In Vidhyawati it was held that this article consisted of three parts:

(1) that the State may sue or be sued by the name of the State;

(2) that the State may sue or be sued in relation to its affairs in like cases as the corresponding Provinces or the corresponding Indian States might have sued or been sued if the Constitution had not been enacted; and (3) that the second part is subject to any provisions which may be made by an Act of the Legislature of the State concerned, in due exercise of its legislative functions, in pursuance of powers conferred by the Constitution.

In Vidhyawati and Kasturi Lal it was held that since no law had been framed by the legislature, the liability of the State to compensate for negligence of officers was to be decided on general principle. In other words, if a competent legislature enacts a law for compensation or damage for any act done by it or its officers in discharge of their statutory duty then a suit for it would be maintainable. It has been explained earlier that the Act itself provides for return of the goods if they are not confiscated for any reason. And if the goods cannot be returned for any reason then the owner is entitled for value of the goods with interest.

(Emphasis Supplied) 44

37. In the matter of: Nilabati Behera (Smt) Alias Lalita Behera vs. State of Orissa and Others, reported at (1993) 2 SCC 746, the Hon'ble Supreme Court had observed as under:

"10.In view of the decisions of this Court in Rudul Sah v. State of Bihar, Sebastian M. Hongray v. Union of India, Sebastian M. Hongray v. Union of India, Bhim Singh v. State of J&K, Saheli, A Women's Resources Centre v. Commissioner of Police, Delhi Police Headquarters and State of Maharashtra v. Ravikant S.Patil the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. It ,would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightaway that award of compensation in a proceeding under Article 32 by this court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle.

16. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion on this principle and stated at page 687, thus:-

I am simply saying that, on the view I take, the expression 'redress' in sub-s(1) of s.6 and the expression 'enforcement' in sub-s(2), although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not confer and are not in the context capable of being construed so as to confer a right of damages where they have not hitherto been available, in this case against the state for the judicial errors of a judge. ..."

Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.

20. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf The contrary view would not merely render the court powerless and the constitutional guarantee a mirage but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have not, who are not possessed of the wherewithal for enforcement of their rights in 46 private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.

22. The above discussion indicates the principles on which the Court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.

32. Adverting to the grant of relief to the heirs of a victim of custodial death for-the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title 'Freedom under the Law' Lord Denning in his own style warned:

"No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer 47 suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence... This is not the task for Parliament..... the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this Country."

33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.

34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on 48 tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.

35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J".

(Emphasis Supplied) 49

38. In the matter of: D.K. Yadav vs J.M.A. Industries Ltd , reported at (1993) 3 SCC 259, the Hon'ble Supreme Court had observed as under:

"12.Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.

13. In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress this court held that right to public employment and its concomitant right to livelihood received protective umbrella under the can copy of Article 14 and 21 etc. All matters relating to employment includes the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Part III and IV of the Constitution. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Article. 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice are an integral part of the Guarantee of equality assured by Article

14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of' natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose 50 punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the affect thereof is the end result.

14. It is thus well settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D. T. C. v. D. T.C. Mazdoor Congress the constitution bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without enquiry offended Article

14. The order terminating the service of the employees was set aside".

(Emphasis Supplied)

42. The respondent no.8 and its Chairman are State authorities casted with statutory obligations to be discharged by them. At the relevant point of time during the period between 2015 and September , 2021 the respondent no.10 was the Chairman of the respondent no.8, who shared a fiduciary relationship between them. The position of a Chairman of the respondent no.8 is akin to a trustee who in all good faith and trust is obliged to discharge the duties and obligations of the respondent no.8, as a person of common prudence. They discharge public duty. Hence, if there is any failure or negligence in discharging the respective obligations, both the respondent no.8 and its Chairman cannot be exempted from the charge for not discharging their duties and obligations. From the facts of the instant case, it is clear that immediately after the panel was finalized and approved by the State authority, it was the obligation on the part of the respondent no.8 and 51 its Chairman to take all necessary steps in right earnest to enable the petitioners to be appointed at the respective posts. In the facts of this case around 8 years valuable time period had elapsed from the employment carrier of the petitioners. No explanation, which is valid in the eye of law, are available on record on the part of the respondent no.8 and respondent no.10 as to why the petitioners were not appointed immediately after the panel was approved. This clearly shows sheer negligence on the part of the respondent no. 8 and the respondent no.10 at the relevant point of time in discharging their duties, for which the petitioners have lost valuable period of about 8 years out of their employment tenure. The standard of law requires that the wrongs ought not to remain unredressed, everyone of the people or persons carrying out wrongs ought to be at risk in an activity for harms for rupture of common law. Once the victim has established that the authorities are in breach of its obligation, he will normally seek damages to compensate for the loss flowing from such breach, this is also not an alien in the parlance of the administrative law.

43. In view of the foregoing discussions and reasons and applying the principles of law discussed above the following directions are made:

(a) Both the respondent nos. 8 and 10 shall pay Rs. 5 lakhs each as and by way of compensation to compensate the petitioners for the period between 2015 and September, 2021.

(b) Both the respondent nos. 8 and 10 shall pay and deposit a sum of Rs.

5 lakhs each within two months from today in favour of the Learned Registrar General of this Court.

(c) Upon receiving the said total sum of Rs.10 lakhs from both the respondent nos. 8 and 10, the Learned Registrar general shall invest the same in an interest bearing fixed deposit account with any nationalized bank of his/her choice forthwith.

(d) Both the petitioners shall affirm their respective affidavits disclosing their identity documents and submit the same before the Learned Registrar General within the time frame to be fixed by the Learned Registrar General.

(e) The Learned Advocate on record for the petitioners shall also accompany the petitioners before the Learned Registrar General and confirm their identity.

(f) The Learned Registrar General at his/her wisdom after being satisfied with the identity of the petitioners shall disburse the sum in equal proportion i.e. Rs.5 lakhs each with accrued interest thereupon in favour of the petitioners by crediting their respective salary accounts, after receiving the particulars of the salary account from the petitioners at the earliest.

44. The Order of injunction dated August 16, 2023 passed by this Court restraining the respondent no.10 from dealing with his fixed assets shall automatically stand vacated without any reference to this Court immediately upon deposit of the said sum of Rs. 5 lakhs by the respondent no.10 with the Learned Registrar General.

45. With the above observations and directions this writ petition WPA 12343 of 2023 stands disposed of, without any order as to costs.

(Aniruddha Roy, J.)

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