Calcutta High Court (Appellete Side)
The Chairman vs Subodh Singh & Ors on 13 June, 2017
Author: Dipankar Datta
Bench: Debi Prosad Dey, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Debi Prosad Dey
FMA 1496 of 2015
The Chairman, District Primary Council, Uttar Dinajpur
v.
Subodh Singh & ors.
For the appellant : Mr. Biswabrata Basu Mallick.
For the respondents : Mr. Samiran Giri.
Hearing concluded on : May 3, 2017
Judgment on : June 13, 2017
DIPANKAR DATTA, J. :
1. The Chairman, District Primary School Council, Uttar Dinajpur (hereafter the appellant) calls in question in this appeal the judgment and order dated July 28, 2014 passed by a learned judge of this court while disposing of W.P. 3028 (W) of 2012. By such judgment and order, the appellant was directed to treat the writ petitioners, being the respondents 1 to 3 herein, as "land-looser and forward their name before the concerned authority of the State under that category for necessary approval in accordance with law" as expeditiously as possible but not later than six weeks from date of communication thereof.
2. In the impugned judgment and order, the learned judge referred to an order dated April 25, 2012 passed on the writ petition reading, inter alia, as follows:
"The only reason for giving direction for filing affidavits is that an allegation has been levelled in paragraph 31 of the writ petition that the private respondent had obtained a land-looser certificate much later than that obtained by the petitioners and it was on that basis that he has been favoured with an appointment letter. If this be true then the petitioners' land- looser certificates ought to have also been considered and it is only in respect of the above that affidavit is directed to be filed."
3. On perusal of the counter affidavit filed by the appellant, the learned judge expressed the view that there was no answer to the specific contention raised by the writ petitioners in paragraph 31, consequent whereto the direction, noted above, was issued.
4. Mr. Basu Mallick, learned advocate for the appellant has contended that the learned judge erred in the exercise of jurisdiction by making the impugned direction. According to him the recruitment process had commenced in 2009 whereas the writ petitioners' names were registered with the relevant employment exchange as 'Exempted Category' candidates only in the year 2010 and, therefore, they could not have derived any benefit of being 'exempted category' candidates in connection with such recruitment process. It was also submitted by him that even if the private respondent had been appointed despite the fact of his name having been registered with the employment exchange as an 'exempted category' candidate after the recruitment process had commenced, there could be no negative application of Article 14 of the Constitution so as to perpetuate an illegality. Reliance was placed by Mr. Basu Mallick on the decisions of the Supreme Court reported in AIR 1995 SC 705 (Chandigarh Administration v. Jagjit Singh) and AIR 2014 SC 746 (Basawaraj v. The Special Land Acquisition Officer) to persuade us interfere with the judgment and order under challenge.
5. Per contra, Mr. Giri, learned advocate for the writ petitioners contended that although the Council had initiated the recruitment process in 2009, it had invited further applications by issuing advertisements in the year 2010 and the writ petitioners having responded to the same by submitting necessary applications together with the necessary land-loser certificates as well as the requisite identity cards issued by the relevant employment exchange, the council acted in violation of Articles 14 and 16 of the Constitution in denying the writ petitioners' appointment on the posts of primary school teacher. The decision reported in (2002) 9 SCC 445 (Surya Kant Kadam v. State of Karnataka) was referred to in support of the proposition that in the matter of appointment/promotion, there is no scope for discrimination. He, accordingly, submitted that the judgment and order under challenge does not deserve interference and be upheld.
6. We have heard learned advocates for the parties and perused the materials on record.
7. There is no dispute on the factual score that the writ petitioners' names were registered by the relevant employment exchange as 'exempted category' candidates not before 23rd February, 2010. It is also undisputed that the recruitment process started prior to the writ petitioners' names being registered by the relevant employment exchange as 'exempted category' candidates.
8. The Supreme Court in its decision reported in (1997) 4 SCC 18 (Ashok Kumar Sharma v. Chander Shekhar) while considering the question of determination of the relevant date for eligibility laid down as follows:
"6. *** The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable ***"
9. In that view of the matter, the qualifications of the writ petitioners as it stood on the last day for receiving applications in pursuance of the initial advertisement for the post was decisive. On such date, they were not registered as 'exempted category' candidates and, hence, not eligible to be considered as such.
10. The advertisement published by the council in the year 2010, which is included in the informal paper book prepared by the writ petitioners, was not before the learned judge. The writ petitioners have sought to rely on additional evidence in course of the appeal without taking recourse to the procedure prescribed by law. We, however, do not wish to take too technical a view. Assuming that the council had published another advertisement in 2010, it does not also appear from the documents included in such paper book that the writ petitioners did make an effort to submit the identity cards issued by the relevant employment exchange, bearing endorsements that they belong to 'exempted category', with the council. For such omission, the council had no occasion to treat the writ petitioners' as 'exempted category' candidates. If indeed a window had been opened after the recruitment process had commenced, it was for the writ petitioners to take advantage of the same. This, indubitably, they did not take.
11. The writ petitioners were certainly not eligible to be considered as 'exempted category' candidates, and the learned judge ought not to have made the impugned direction on the specious ground that some other candidate had been favoured by the council with an offer of appointment despite he being similarly situated like the writ petitioners or even worse off than them. Article 14 embodies a positive concept as held in the decisions cited by Mr. Basu Mallick. There cannot be a negative application of Article 14 and wrong decisions made in other cases followed which, in effect, would compel a party to a proceeding to act contrary to law on the basis of a judicial fiat.
12. The decision cited by Mr. Giri has been noted. On perusal thereof, we find that the appellant before the Court had been appointed on compassionate ground prior to the respondents 3 and 4. However, such respondents were promoted without considering the appellant's claim for promotion. It is in such facts and circumstances, the Court held that the appellant was entitled to equal treatment like the respondents 3 and 4. There was no question of the respondents 3 and 4 having been appointed illegally. The decision is clearly distinguishable and does not aid the writ petitioners.
13. As rightly contended by Mr. Basu Mallick, no case for interference had been set up by the writ petitioners and the learned judge ought to have dismissed the same. The appeal, thus, succeeds. The judgment and order under appeal stands set aside, with the result that the writ petition stands dismissed. There shall be no order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) DEBI PROSAD DEY, J. :
I agree.
(DEBI PROSAD DEY, J.)