Calcutta High Court (Appellete Side)
Md. Utpal Ghosh vs The State Of West Bengal And Others on 18 March, 2011
Author: Patherya
Bench: Patherya
20 18.3. W.P. 3525 (W) of 2010
2011
md. Utpal Ghosh
-Vs-
The State of West Bengal and Others
Mr. Nitya Gopal Mukherjee
... for the petitioner
Mr. Gobinda Bhattacharjee
Mr. Gautam Som
... for the State
Respondent Nos.1 to 3
Supplementary Affidavit filed be kept on record.
By this writ petition, the petitioner seeks to challenge the order passed by the District Magistrate on 3rd November, 2009 and communicated to the petitioner by letter dated 1st December, 2009.
The case of the petitioner is that for the post of Panchayat Secretary, names were forwarded from the Employment Exchange. 20 names were sent and also the name of the petitioner. A panel was prepared and the petitioner was placed at serial no.1. As no approval was given, a writ petition was filed. The said writ petition was disposed of by an order passed by the trial court. From such order, an appeal was filed being F.M.A. 2445 of 2004. The said appeal was disposed of by order dated 22nd January, 2007. No approval could be granted to the 2 panel in which the petitioner was placed in serial no. 1 in view of the injunction order passed in 1991.
By order dated 22nd January, 2007, the authorities were directed to fill the vacancy in accordance with law and in the event selection process was undertaken, it would be open for the petitioner to participate therein also in accordance with law. A representation thereafter was made on 4th September, 2008 and as the said representation was not considered, W.P. 29298 (W) of 2008 was filed and an order passed on 15th July, 2009 directing the District Magistrate to dispose of such representation. The said order was communicated to the parties under memo. dated 1st December, 2009.
The order of the District Magistrate is bad as Manik Gopal Mondal, whose application was allowed in 1991, was never transferred to the vacant post in Harisara Gram Panchayat and in fact the said Manik Gopal Mondal retired in 2000 from the Kushmore-I Gram Panchayat. This information, the petitioner has received under the Right to Information Act, 2005 in 2010. The said post was vacant throughout. The petitioner was entitled to the said post and the said vacant post 3 could not be filled by promotion. The finding, therefore, of the District Magistrate that the said post remained vacant in 2000 on retirement of Manik Gopal Mondal, is an incorrect finding and therefore, the order suffers from infirmity and is liable to be set aside.
Counsel for the State-respondent submits that from the order dated 22nd January, 2007 a review application was filed. Such application was ultimately not pressed. Therefore, the order dated 22nd January, 2007 is binding on the parties as the same has been accepted by the parties including the petitioner. By order dated 15th July, 2009, this Court directed the District Magistrate, Birbhum to consider and dispose of the petitioner's representation dated 4th September, 2008. In considering the said representation and disposing of the same, the order dated 3rd November, 2009 has been passed. There is no infirmity with the said order. Therefore, no interference is called for.
Having considered the submissions of the parties, the petitioner seeks to set aside the order dated 3rd November, 2009 passed by the District Magistrate, Birbhum. On a reading of the said order, no infirmity can be found with the same as 4 the District Magistrate was considering the petitioner's representation dated 4th September, 2008. On a reading of the said representation, it appears that the petitioner accepted the order dated 22nd January, 2007, and therefore, requested the authorities to give him benefits which arose out of such order. The order of the High Court, in appeal was passed on 22nd January, 2007 as a vacancy had arisen which had not been filled up, all that was done is to direct the Panchayat Authorities to take expeditious steps for filling up such vacancy in accordance with law and in the event selection process was undertaken, the petitioner was to participate therein. In the order of the District Magistrate, it has been stated that such step was taken to fill up the vacancy in accordance with law, that is, by way of promotion. Promotion is one of the avenues open to the authorities for filling up the vacancy and it cannot be said that the said is contrary to law. Therefore, the order of the District Magistrate cannot be faulted. Although the petitioner seeks to contend that Manik Gopal Mondal, the applicant in C.O. 20169 (W) 1994, never joined Harisara Gram Panchayat as Panchayat Secretary, this 5 information has been received by the petitioner only in 2010 pursuant to an application filed under the 2005 Act. Therefore, this information was not before the District Magistrate while passing the order dated 3rd November, 2009. As the said issue could not be considered by him, this is another factor for not setting aside the order dated 3rd November, 2009 communicated by Memo. dated 1st December, 2009.
Accordingly, no order is passed on this application and the same fails.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(Patherya, J.) 6