Calcutta High Court (Appellete Side)
Nabakumar Das vs The State Of West Bengal & Ors on 10 April, 2013
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
10.04.2013.
srm
W.P. No. 9849 (W) of 2013
Nabakumar Das
Versus
The State of West Bengal & Ors.
Mr. Soumen Kumar Dutta,
Mr. Subhas Jana
... For the Petitioner.
Mr. Biswajit De,
Ms. Shabana Hasin
... For the State.
This writ application is filed by the petitioner for a direction upon the
respondent authority to allow him to participate in the selection process for
appointment of a non‐teaching staff (Group‐D) in Banamalichatta High School (H.S.), District‐Purba Medinipur.
According to the petitioner, he was appointed in the post of a group‐D staff by the Managing Committee of the above school and he has been continuing his service in the above post. An advertisement has been published by the above school inviting applications from the eligible candidates to participate in the selection process to fill up the aforesaid post of non‐teaching staff (group‐D). The upper age limit of an eligible candidate for the above selection process is 40 years. According to the petitioner, he has crossed the above age limit. In view of the above, the petitioner prayed for a 2 direction for condonation of the age bar in respect of the selection process under reference.
It is the case of the petitioner that he has been working for gain in the above non‐Government aided educational institution and he was not over aged at the time of his initial appointment. Therefore, he deserves consideration.
Reliance is placed on the decisions of B.C. Chaturvedi vs. Union of India & Ors. reported in (1995) 6 SCC 749, Gobinda Chandra Mondal vs. Principal Rabindra Mahavidyalaya reported in 2013(1) CHN (CAL) 9 and Lala Shri Bhagwan & Anr. vs. Ram Chan & Anr. reported in AIR 1995 SC 1767 in support of his submissions.
Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, I find that no material is brought on record to show that the petitioner was appointed initially adhering to the recruitment rules in vogue. Therefore, it was a temporary appointment.
It has been decided by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi (3) reported in (2006) 4 SCC 1 that whenever a person accepts a temporary appointment keeping eyes open it does not lie on his mouth that he is entitled to get benefit of absorption or 3 otherwise. The Hon'ble Supreme Court further condoned the age bar in respect of some of the temporary employees of the Central Excise Department, who were present before this Court, exercising the power under Article 142 of the Constitution of India. Therefore a Court sitting in writ jurisdiction under Article 226 of the Constitution of India is not empowered to pass an order directing the employer to act in the matter of a selection process adhering to the recruitment rules concerned in breach. The relevant portions of the above decision are set out below:
"45. While directing that appointments, temporary or causal, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain
- not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal 4 bargaining power, that too would not enable the court to grant any relief to that employee.
In that view of the matter no relief can be granted to the petitioner in view of the settled principles of law as decided by a Constitution Bench of the Hon'ble Supreme Court in the matter of Uma Devi (3) (supra).
So far as the decision of B.C. Chaturvedi (supra) is concerned, I find that it is not the ratio laid down by the above decision that a Court sitting in writ jurisdiction under Article 226 of the Constitution of India can exercise its power under Article 142 of the Constitution of India like the Hon'ble Supreme Court. Rather it was the observation of the Hon'ble Supreme Court in the above decision that without invoking the provisions of Article 142 a Writ Court sitting under Article 226 of the Constitution of India is competent to modify the punishment/penalty by moulding the relief. The relevant portions of the above decision are quoted below:
"22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiciton to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a 5 High Court only when the punishment/penalty awarded shocks the judicial conscience."
After examining the question of the applicability of the decision of Gobind Chandra Mondal (supra), I find that the above decision is not applicable in this case in view of distinguishable facts and circumstances.
After considering the above decision, I find that that larger Bench of this High Court passed an order in favour of relaxation of age for the ad‐hoc or temporary employees to participate in the selection process for filling up of a vacancy permanently adhering to the recruitment Rules. In doing so the larger Bench relied upon the conjoint reading of paragraph 53 and 55 of the decision of the Constitution Bench of the Hon'ble Supreme Court in the matter of Umadevi (3) (Supra).
In view of the discussions and observations made hereinabove, I am of the opinion that in the above matter the Constitution Bench of the Hon'ble Supreme Court did not lay down the law in favour of relaxation of the age of temporary/adhoc employees' to participate in regular selection process. The Hon'ble Supreme Court granted relaxation of age to a group of employees' of Commercial Excise Department under Article 142 o the Constitution of India. Therefore, there is no scope for a direction upon the respondent authority to relax the age of the petitioner for participating in the selection process under 6 reference in accordance with law laid down in the matter of Umadevi (3) (Supra).
In order to examine the applicability of the decision of Lala Shri Bhagwan (supra), the relevant portions of the above decision are quoted below:
"It is hardly necessary to emphasise the considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decision of the High Court whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. This is the proper and traditional way to deal with the matters and it is founded on healthy principle of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself."
After examining the above decision, I find that the Hon'ble Supreme Court only discussed about the judicial propriety to be followed in case of disagreement with the judgment of a Division Bench or to place the matter before the Hon'ble Chief Justice concerned for placing the matter before a Larger Bench. It is not the ratio laid down in the above decision that the 7 decision of the larger Bench of the Court concerned is the last word. That submission in my opinion is misconceived.
In order to examine the settled principles of law reference may be made to the decision of Ahmed Hossain Sk. vs. State of West Bengal & Ors. reported in 2001(2) CHN (Cal) 761 and the relevant portions of the above decision are set out below:
"34. The principles that emerge from the decisions, cited supra that the decisions of the Supreme Court are binding on all the Courts, Article 141 of the Constitution embodies the rule of precedent. A Special Bench/Full Bench judgement of that High Court is binding on the question of law decided by it and despite the same if any Division Bench holds to the contrary then a Division Bench has the authority to differ with the Division Bench which has taken a view contrary to the Special Bench judgement. A Single Judge of a High Court is bound by the judgement of another Single Judge and a fortiori judgements of Benches consisting of more judges then one. So also, a Division Bench of two Judges of a High Court is bound by judgements of another Division Bench of two Judges and Full Bench. A Single Judge or Benches of High Courts cannot differ from the earlier judgements of coordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgement of another Division Bench of two Judges, it has to refer the case to a Full Bench. A single Judge cannot differ from a decision of a Larger Bench except when that decision or a judgement relied upon in that decision is specifically overruled by a Full Bench 8 of the Supreme Court. However, if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench.
(Emphasis supplied) Therefore, in order to maintain the judicial decorum and legal propriety this matter is referred to the Hon'ble Chief Justice of this Court for consideration of His Lordship to refer the matter to a Larger Bench to decide the issue as to whether a Single Bench of this High Court sitting in writ jurisdiction under Article 226 of the Constitution of India is competent to condone the age bar for a direction upon the employer to consider the case of writ petitioner ignoring the provisions of statutory recruitment rules ?
Let there be a direction that the results of the selection process under reference shall be subject to the results of this case.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. )