Calcutta High Court (Appellete Side)
Tarit Kanti Naskar vs The State Of West Bengal & Ors on 8 August, 2017
Author: Dipankar Datta
Bench: Sahidullah Munshi, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Sahidullah Munshi
CAN 1262 of 2014
in
MAT 1979 of 2013
Tarit Kanti Naskar
v.
The State of West Bengal & ors.
with
CAN 1263 of 2014
in
MAT 1980 of 2013
Md. Abdul Muzahid
v.
The State of West Bengal & ors.
with
CAN 1265 of 2014
in
MAT 1981 of 2013
Eklash Hossain Molla
v.
The State of West Bengal & ors.
For the appellants : Mr. Surajit Kr. Samanta,
Mr. Biswajit Samanta.
For the State : Md. Zakir Hossain.
For the Council : Mr. Arabinda Chatterjee,
Mr. Bhaskar Prasad Vaisya,
Mr. Gourav Das.
Hearing concluded on : March 3, 2017
Judgment on : August 8, 2017
DIPANKAR DATTA, J:-
1. A batch of 18 (eighteen) writ petitions was heard together by an Hon'ble Judge of this
Court. All the writ petitions were dismissed by a common judgment and order dated
September 24, 2013. These three intra-Court appeals and the applications for interim
relief therein, are at the instance of the petitioners in 3 (three) out of such 18 (eighteen)
writ petitions.
2. At the hearing of the applications, we called upon Mr. Surajit Samanta, learned advocate
for the appellants/applicants, Mr. Hossain, learned advocate for the State, and Mr.
Chatterjee, learned senior advocate for the District Primary School Council, 24 Parganas
(South) (hereafter the DPSC) and its Chairman to argue the appeals. With the consent of
all the parties, the appeals were heard dispensing with all formalities.
3. Since questions of law and fact involved in these appeals are common, we propose to
decide the same together by this common judgment and order. However, at the outset,
we wish to record that the judgment on these appeals was not delivered earlier because
of pendency of another batch of intra-Court appeals where the exact question of law,
arising for decision here, was involved (having arisen from the same selection process)
and we did not intend to express our views on such question before reserving verdict on
the other batch of appeals.
4. MAT 1979 of 2013 is prior in point of time. We shall, therefore, advert to the pleadings in
W.P. No.4441 (W) of 2013 from which MAT 1979 of 2013 arises.
5. The petitioner in W.P. 4441 (W) of 2013 (hereafter Tarit) was engaged as an enumerator in
connection with census operations of 1990. Being an ex-census employee, Tarit registered
his name in the National Employment Exchange under "exempted category".
6. The DPSC, in 2006, had requisitioned names from the relevant employment
exchanges in connection with a process of recruitment that had been initiated for
filling up vacant posts of assistant teachers in primary schools within its jurisdiction.
Tarit's name was sponsored as an "exempted category" candidate. It is the case of the
Tarit that after complying with all the formalities, he was allowed to take a written test
for 10 marks. In his own estimation, Tarit had acquitted himself creditably in the
selection process and was confident of being selected and offered appointment on a
vacant post of primary teacher. The DPSC, in due course of time, started offering
appointments to the empanelled candidates but Tarit having not been offered
appointment, he made an enquiry in its office. He came to know that although based
on his performance he was selected for the post of primary teacher but appointment
was withheld on the ground that "Bio-data Form with reference to column 16 of the
petitioner has been attested by one Mr. Ranjan Roy who according to Council was not
the competent person to attest and certify such document". It was Tarit's specific case
that no decision had been communicated by the DPSC of such ground forming the
reason for withholding his appointment. Tarit also pleaded that "since working
certificate was issued by the said Mr. Ranjan Roy the Bio-data From with reference to
column 16 was attested by Ranjan Roy."
7. In his writ petition, Tarit urged that since his name had been sponsored by the
employment exchange as an "exempted category" candidate, "filling up of Bio-data
Form as per recruitment (sic requirement) of the Council is immaterial and on the alleged
ground of the Clause 16 of the said form being attested by one Mr. Ranjan Roy, due
appointment of the petitioner cannot be kept withheld." Tarit also referred to three other
writ petitions (two presented in 2013 and the other in 2011) whereupon orders were
passed by the Hon'ble Court, inter alia, holding that on the alleged ground of the bio-
data form having been attested by the said Mr. Ranjan Roy service cannot be
terminated and appointment cannot be kept withheld and the DPSC was directed to
provide appointment based on merit. Since Tarit claimed to be a similarly placed
candidate, he pleaded for parity of treatment.
8. Insofar as delay and laches in moving the writ court is concerned, this is what Tarit
had to say :-
"31. That it is submitted that the petitioner could not move this application earlier as
the petitioner was under the bona fide impression that transparency has been
maintained by the State agencies in dealing with public employment but
subsequently when the petitioner came to learn that this issue has been settled by
the Hon'ble High Court and the concerned Council in obedience to order of the
Hon'ble High Court has provided appointment to number of similarly situated
candidates the petitioner after collecting such materials, particularly the orders of
the Hon'ble Court and on receipt of detailed information in this regard is approached
this Hon'ble Court for redressal of due grievances. The petitioner could not approach
this Hon'ble Court earlier for the reasons as aforesaid over which the petitioner had
not control."
9. Ultimately, Tarit prayed as follows:
"a). A writ in the nature of mandamus commanding the respondents, to forthwith
appoint the petitioner in the post of Assistant Teacher (Primary) under South 24-
Parganas District Primary School Council as a candidate under Exempted Category
with reference to selection process of 2006 and further directing the respondents to
proceed according with law:
b). A writ in the nature of Certiorari calling upon the respondents to verify and
produce all the relevant records relating to this case so that conscionable justice may
be administered in favour of the petitioner."
10. The pleadings in W.P. 4444 (W) of 2013 (Eklash Hossain Molla v. State of West Bengal
& ors.) and 4446 (W) of 2013 (Md. Abdul Muzahid v. State of West Bengal & ors.), out
of which MAT 1980/2013 and MAT 1981/2013 respectively arise, are identical and
hence we do not consider it necessary to refer to the same in details.
11. The learned Judge in the impugned judgment noted that the DPSC had initiated the
process of selection in the year 2006 and that Tarit, Eklash and Abdul approached the
writ court along with others only after W.P. 21924 (W) of 2010 [Puspita Mondal
(Haldar) v. State of West Bengal & ors.], since reported in 2011 (3) CHN (Cal) 852, and
W.P. 8387 (W) of 2013 [Pravabati Midya (Sahoo) v. State of West Bengal & ors.] had
succeeded, wherein it was held that appointment cannot be withheld on the ground of
the statutory form having been attested by the said Ranjan Roy and accordingly
directions were issued to provide appointment. The submission of the learned
advocate for the DPSC to the effect that the provision for seeking bio-data required for
verification of the details furnished by the candidates is in-built in rule 9(1) of the
West Bengal Primary School Teachers Recruitment Rules, 2001, was recorded. It was
also submitted that the panel was published on August 14, 2010 and was valid till
August 13, 2012 and during its subsistence, Tarit and the other petitioners not having
approached the Court, they were not entitled to any relief. Several decisions relied on
behalf of the DPSC were referred to. Upon hearing submissions advanced by the
learned advocates for the respective parties, the learned Judge was of the considered
view that the writ jurisdiction was invoked after expiry of the panel on August 13,
2012 and hence, the writ petitions were not maintainable; consequently, the
petitioners were not entitled to any relief.
12. Mr. Samanta contended that the learned Judge committed an error of jurisdiction in
holding the writ petitions to be not maintainable. According to him, the learned Judge
posed a wrong question for answer. The learned Judge ought to have considered
whether a candidate, duly empanelled, could be deprived of appointment on a ground
that did not commend acceptance to another learned Judge of the writ court while
hearing similar other writ petitions. In other words, the learned Judge ought to have
addressed the question of patent illegality, discrimination and nepotism adopted by
the DPSC in depriving the appellants of the offers of appointment when, in terms of
the statutory rules applicable to the recruitment process in question, the appellants
had duly been empaneled and had secured marks in excess of some of the candidates
who were ultimately appointed.
13. In course of his submissions, Mr. Samanta relied on the decisions reported in AIR
1983 SCC 1155 (Deena @ Deena Dayal Etc. Etc. v. Union of India & ors.], (1999) 6
SCC 49, (Purushottam v. Chairman, M.S.E.B.), an unreported decision of the Supreme
Court in Civil Appeal No.9979/2014 (Virendra Krishna Mishra v. Union of India & ors.)
dated October 21, 2014, an unreported decision in W.P. 2210 (W) of 2013 (Biswajit
Maity v. State of West Bengal & ors.) dated November 21, 2014 delivered by one of us
(Sahidullah Munshi, J.), 2014(1) Cal LJ 17 (Jayasri Ghosh v. State of West Bengal &
ors.) and the decision in Puspita Mandal (Haldar) (supra).
14. Mr. Samanta has, accordingly, contended that the appellants, who are similarly
situate and circumstanced as other candidates whose bio-data forms were attested by
the said Ranjan Roy should not be considered ineligible and the Bench may issue
directions, upon setting aside the impugned judgment and order, to the DPSC to offer
appointments to the appellants.
15. On behalf of the DPSC, Mr. Chatterjee has vehemently opposed the appeals.
According to him, the appellants are fence-sitters who, being inspired by the success
of the writ petitions filed by other candidates, approached the writ court long after
expiry of the panel. It has been contended by him that inclusion of a candidate's name
in a panel is a sine qua non for offering appointment and it is axiomatic that an
empanelled candidate can be offered appointment only if the panel is alive. Since in
the present case, the panel expired on August 13, 2012 and the writ petitions came to
be presented in February, 2013, no direction to offer appointments to the appellants
ought to be made since the panel does not exist in the eye of law.
16. Mr. Chatterjee invited our attention to the pleadings in the writ petition of Tarit to
contend that there is no explanation for the belated approach. According to him,
relevant factual details are wanting in the writ petitions inasmuch as the appellants
have not disclosed exactly when they came to learn of the writ petitions filed by the
other allegedly similarly situate and circumstanced candidates succeeding before the
writ court and when and what enquiry they made in the office of the DPSC to
ascertain the fate of their candidature. It was, thus, contended that a writ petition
presented beyond the validity of the panel without satisfactory explanation for the
delay is not maintainable.
17. Relying on the decisions reported in AIR 2002 SC 2635 (M.P. Electricity Board v.
Virendra Kumar Sharma), (2006) 12 SCC 561 (State of Bihar & ors. v. Amarendra
Kumar Mishra), (2006) 8 SCC 352 (Union of India & ors. v. B. Valluvan & ors.), (2007)
12 SCC 779 (Nadia Dist. Primary School & anr. v. Sristidhar Biswas), (2007) 12 SCC
413 (Aryavrat Gramin Bank v. Vijayshankar Shukla), AIR 2009 SC 1899 (Girdhar
Kumar Dadhick & anr. v. State of Rajasthan & ors.), (2010) 12 SCC 471 (Shiba
Shankar Mahapatra & ors. v. State of Orissa & ors.), 2014 (4) CHN (Cal) 476 (Anup
Roy v. State of West Bengal & ors.), an unreported decision in MAT 2191 of 2014
(Mallika Naskar v. State of West Bengal & ors.), Mr. Chatterjee contended that a writ
petition presented before the Court seeking direction for appointment from a panel,
which has spent out its life, cannot be entertained and the learned Judge was right in
dismissing the writ petitions of the appellants.
18. Mr. Chatterjee also placed reliance on the decisions reported in (2006) 11 SCC 464
(U.P. Jal Nigam & anr. v. Jaswant Singh & anr.) and (2015) 1 SCC 347 (State of Uttar
Pradesh v. Arvind Kumar Srivastava), to contend that relief claimed in any litigation
that is inspired by the success of an earlier litigation may be declined in exercise of
discretionary jurisdiction should there a palpable unexplained delay and laches.
19. In reply, Mr. Samanta contended that the decisions cited by his adversary can have no
application in case of illegal deprivation particularly when the DPSC being a statutory
authority is duty bound to abide by the recruitment rules and honour the order of
merit of empaneled candidates. Insofar as the decisions in Jaswant Singh (supra) and
Arvind Kumar Srivastava (supra) are concerned, it was submitted that the facts were
entirely different and the ratio laid down therein would not apply here.
20. We have heard learned advocates for the parties and considered the materials on
record as well as the decisions cited at the bar.
21. By the impugned judgment and order, the learned Judge has spurned the challenge laid
by the appellants on the ground that they had approached the writ court at a point of
time when the panel was not subsisting and, therefore, no order could be passed on
such belated writ petitions.
22. The only question that emerges for decision on these appeals is, whether the learned
Judge was right in holding the writ petitions to be not maintainable, the same having
been presented before the writ court much after expiry of the panel, drawing
inspiration from the decisions in Puspita Mandal (Haldar) (supra) and Pravati Midya
(Sahoo) (supra).
23. It is well-settled that a candidate aspiring for public employment derives no
indefeasible right of appointment even though he might have been included in the
merit list and a vacancy, on which he could be appointed, does exist. However, the
State cannot, in an arbitrary manner, decline offer of appointment. Any decision not to
appoint has to be taken bona fide and for appropriate reasons. However, once the
States take a decision to fill up all the vacancies advertised, it has to respect the
comparative merit of the candidates, as reflected in the select list/panel, and no
discrimination can be permitted. This is the law laid down by the Constitution Bench
of the Supreme Court in the decision reported in (1991) 3 SCC 47 (Shankarsan Dash
v. Union of India).
24. Our understanding of the aforesaid statement of law leads us to hold that if the
appellants had indeed been included in the panel but had been excluded for
appointment based on extraneous consideration, and candidates lower than them in
the panel appointed, that would have definitely afforded a good ground for challenge
and it could be agitated before the writ court for redress. If indeed the court were to
find the grievance justified, appropriate directions would normally follow.
25. But, does it follow that such a challenge could be thrown at any time the candidate so
wishes or more particularly, even at a point of time when the panel is no longer
subsisting? The answer cannot but be in the negative. That the writ court must be
approached with utmost expedition and/or as early as possible after accrual of the
cause of action for obtaining relief, may not admit of any dispute. The remedy of writs
being discretionary, the court could deny relief even though a sound legal point may
have been set up. In the case of a selection process which involves preparation of a
panel of candidates in order of merit for filling up the advertised vacancies, respecting
the merit position of the empaneled candidates is to abide by the rule of law. However,
if for any reason merit is sidetracked and candidates way down in the panel are
preferred to candidates higher up, those not preferred are entitled to know the reason
for being so sidetracked. If correspondence/legal notice does not yield appropriate
result, the remedy before the competent court of law must be pursued. Ordinarily, the
approach has to be within the validity period of the panel. If a candidate due to
carelessness or lethargy takes his own sweet time to move court and in the process
allows the panel to expire, the court may justifiably refuse to entertain his plea. There
could, however, be a case where a candidate notwithstanding diligence shown by him
to ascertain his fate derives information of being sidetracked after expiry of the panel.
If the pleadings are sufficient to satisfy the court that there was no lack of due
diligence on his part and that in offering appointments from the panel the appointing
authority has been guilty of acts of omission or commission which do not conform to
the standards expected of such authority in accordance with Constitutional and
statutory provisions, there could be a case for entertainment of the plea. Interference
may be warranted, if at all the plea is found to be sound in law. It, therefore, boils
down to the issue as to whether the belated approach is sufficiently explained or not.
If the answer is in the affirmative, irrespective of whether the panel is subsisting or
not, the writ court may in its discretion set things right and grant such relief that, in
its considered opinion, would sub-serve the ends of justice.
26. However, the situation would be entirely different if a candidate is aware of an
illegality having been perpetrated, not limited to him alone but against a whole class of
similarly placed candidates and some of those candidates having dragged the
appointing authority to court, such candidate waits for the outcome of such
proceedings to decide his next course of action. He may not be willing to join the
proceedings for myriad reasons but once the proceedings succeed and he springs into
action and moves court for being extended similar relief, the court may on finding that
there has been avoidable delay, which is largely unexplained, decline relief to such a
candidate who was sitting on the fence.
27. Such an approach would be perfectly justified having regard to the age old doctrine
"delay defeats equity".
28. In the facts of the present case, we do not find any effort worth the name on the part
of the appellants to inquire in the office of the DPSC about their relative merit
positions and the omission on its part not to offer appointment having regard thereto.
Although the appellants have pleaded that they had inquired in the office of the DPSC
the fate of their candidature after candidates lesser in merit were being offered
appointments, no details have been given as to who the appellants met and when, and
what was the response they received. There is no documentary evidence on record to
prove that the appellants had expressed interest to know why they had been
sidetracked. Had any such effort been made during the validity of the panel and the
appellants upon receiving information could form the view that they were victims of
illegality, arbitrariness, discrimination and/or nepotism, it is quite but natural that
they would immediately pursue the legal remedy by approaching the appropriate court
of law. However, it is evident from the factual narrative that the appellants knocked
the doors of the writ court only after the writ petitions of Puspita Mondal (Halder)
(supra) and Pravabati Midya (Sahoo) (supra) had succeeded before another learned
Judge of this Court.
29. We reiterate, there is absolutely no explanation given by the appellants for the belated
approach. Thus, we are of the view having regard to the decisions referred to by Mr.
Chatterjee that a grievance voiced before the writ court in a writ petition which is
presented quite some time after the expiry of the panel and without there being
sufficient justification for the belated approach, ought not to be entertained on
application of the principles of delay and laches.
30. In the decisions of the Supreme Court in Jaswant Singh (supra) and Arvind Kumar
Singh (supra) as well as the other decisions noticed therein, viz. (1989) 2 SCC 356
(Rup Diamonds v. Union of India) and (1997) 6 SCC 538 (Jagdish Lal v. State of
Haryana), it has been laid down as a proposition of law that a writ court ought not to
come to the aid of a litigant who has slept over his rights by his tardy, lethargic and
indolent conduct and felt encouraged to approach the court only after victory was
tasted by other litigants similarly situate and circumstanced. If indeed the appellants
had approached the court during the validity of the panel and the panel had expired
during pendency of litigation, the situation would definitely have been otherwise.
31. The decisions cited by Mr. Chatterjee are apt and there can be no doubt whatsoever
that on facts and in the circumstances, the appellants had delayed their approach so
much so that by such delay they allowed the life of the panel to expire leaving the
learned Judge with no option but to dismiss the writ petitions. We have no doubt in
our mind that the judgment of the learned Judge is unexceptionable and deserves to
be upheld.
32. It is now time for us to observe why the decisions cited by Mr. Samanta have not
appealed to us to hold in favour of the appellants.
33. In Purushottam (supra), the point that arose for consideration was indicated in
paragraph 4. From the facts discussed in paragraph 2, it would clearly appear that the
appellant, Purushottam, was illegally kept out of appointment on account of an
untenable decision and the panel had expired in the mean time. It was on this ground
that the Supreme Court proceeded to grant relief on the ground that there was no
defect on the part of the candidate. That is certainly not the case here, since the
appellants allowed the panel to expire and nearly six months thereafter, approached
the writ court.
34. The decisions in Deena (supra) and Virendra Krishna Mishra (supra) contain some
discussions on the concept of equality before law and equal protection of the laws. In
Deena (supra), a batch of writ petitions had been filed where the petitioners had been
sentenced to death for murder. The main question which the Court dealt with was in
respect of the validity of the mode of execution of the death sentences. In Virandra
Kishor Misra (supra), the Court came down heavily on the Union of India for not
following the order of the tribunal as well as the High Court in not considering the
issue of encadrement. While there cannot be any dispute in regard to what the
Supreme Court said, we have failed to find the materiality of such decisions to the
case at hand.
35. In Biswajit Maity (supra), the Court proceeded on the basis of the decision of a learned
Judge of this Court reported in 1997 (2) CHN 435 (Sri Deb Narayan Chatterjee & ors.
v. Union of India & ors.) and held that if any appointment had been made after expiry
of the panel, the petitioner before the Court could not be declined relief on the ground
of such expiry. It has not been shown before us by Mr. Samanta that any candidate
belonging to the "exempted category" without any order passed by the Court directing
appointment to be given, has been offered appointment from the post of primary
teacher after expiry of the panel. On the contrary, it is the admitted case of the
appellants that the DPSC, in an arbitrary manner, rejected the candidature of the
appellants on an untenable ground, picked up persons of its liking and while
preferring them to the appellants, offered appointments to such preferred candidates
and declined appointment to the appellants. In that view of the matter, the decision in
Biswajit Maity (supra) does not come to the aid of the appellants. Even otherwise,
appointment beyond the panel by itself does not confer any legal right on the
appellants to seek issuance of a writ of mandamus for appointing them. This is the
law laid down in the decision in Aryavrat Gramin Bank (supra) cited by Mr.
Chatterjee. The decision in Sri Deb Narayan Chatterjee (supra) to the extent the same
is inconsistent with the law laid down in Aryavrat Gramin Bank (supra) cannot be
accepted as laying down good law.
36. The decision in Jayasri Ghosh (supra) rendered by one of us (Dipankar Datta, J.) is
the last one required to be considered. The questions that arose for determination
were formulated in paragraph 9 thereof. It would be clear that question of expiry of the
panel and presentation of the writ petition thereafter, was not in issue before the
Court. This decision also does not help the appellants.
37. For the foregoing reasons, we uphold the judgment and order of the learned Judge
dismissing the writ petitions. The appeals stand dismissed, without order as to costs.
Consequently, the applications are also dismissed.
Photo copy of this judgment and order duly counter signed by the assistant court
officer, shall be retained with the records of MAT 1980 of 2013 and MAT 1981 of 2013.
Urgent photostat certified copy of this judgment and order, if applied, may be
furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)
SAHIDULLAH MUNSHI, J. :
I agree.
(SAHIDULLAH MUNSHI, J.)