Calcutta High Court (Appellete Side)
Swapan Kumar Maity vs The South Eastern Railways & Ors on 13 March, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
1
55 13.3.14
Sc W. P. No. 4126 (W) OF 2014
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Swapan Kumar Maity
-vs.-
The South Eastern Railways & Ors.
Mr. R. N. Datta Mr. Manoranjan Jana.
....For the Petitioner.
Mr. Saptarshi Roy ....For the Railways.
The Railway issued advertisement inviting applications for appointment of a Commission Agent for Badalpur passenger halt. The petitioner applied along with other candidates. He was declared selected by a letter of the Senior Divisional Commercial Manager, Kharagpur (hereafter the Manager) dated 9th December, 2004. By a further letter dated 22nd December, 2004, the said Manager informed the petitioner that the competent authority had decided to cancel the previous order and that a fresh selection for appointment of a Commission Agent for Badalpur passenger halt would be published shortly.
The decision contained in the letter dated 22nd December, 2004 was challenged by the petitioner by filing a writ petition. By an order dated 10th January, 2005 the writ petition was dismissed. Such order was carried in appeal by the petitioner before a Hon'ble Division Bench. The writ appeal was disposed of by a judgment and order dated 31st August, 2006.
It proceeds to record the stand of the Railway resulting in issuance of the letter dated 22nd December, 2004. The petitioner was involved in a murder case and detained in police custody as well as jail custody and considering the public interest, it was decided to cancel his selection and to proceed for a fresh selection process.
The question that was formulated for decision was 2 ".....whether the Railway Authority was justified in cancelling the previous selection only because the appellant was arraigned in a criminal case under Section 498A and Section 306 of the Indian Penal Code."
Such question was answered in the following words "In our view, so long a person is not found guilty by the competent court of law, he should be presumed to be innocent. Therefore, the Railway Authority cannot terminate or withdraw the appointment of an otherwise selected person simply because at that point of time he is involved in a criminal proceeding. If in the present case, ultimately the writ petitioner/appellant is acquitted of the offence on merit, even then, he will lose the job for no fault on his part for the decision taken by the Railway Administration.
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"We, accordingly, set aside the order passed by the learned Single Judge as His Lordship was mistakenly under the impression that it is a case of demand of absorption in the regular service. We also set aside the decision of the Railway Authority withdrawing the offer to the appellant as the same was really taken on December 15, 2004 on wrong information received by the Senior Divisional Commercial Manager from one Sri Palodhi on 13th December, 2004 and consequently, the decision to re-advertise was also erroneous without taking into consideration the real fact. The decision was, however, communicated to the appellant subsequently on December 22, 2004.
We, therefore, direct the Railway Authority to consider the materials available to the authority in connection with the concerned criminal proceedings and to decide whether on the basis of material so far placed, it is a fit case for permitting the appellant to undertake the job; if the Railway Administration is of the view that the allegation against him and the materials available are so serious that even if he were a regular employee, he would have been kept under suspension during the trial, the Railway Authority will permit the subsequently selected person to continue subject to the final decision of the criminal proceeding; otherwise, the 3 appellant should be permitted to accept the job subject to the outcome of the criminal proceedings.
If, the Railway Administration is of the opinion that the allegation against the appellant is so grave that in such a situation, even a regular employee would have been kept under suspension till the disposal of the Criminal Trial, the appointment of the appellant will be kept in abeyance and if the appellant is acquitted in the long run, he should be permitted to undertake the job for which he was already selected provided he will even then possess all the necessary qualifications of the Commission-Agent as per advertisement. We have already pointed out that the offence alleged against him being not against the person or the property of the Railway or its employees, there is no scope of refusing him the appointment even if he is discharged from the criminal case on technical ground because in this case there is no scope of departmental inquiry even after acquittal.
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The operative part of the order directed the Railway to take a fresh decision within a month from date of communication of this order.
It is not in dispute that the petitioner was tried by the Additional District and Sessions Judge, Fast Track Court, Contai in ST 02/January/2010. By judgment dated 21st December, 2011, the petitioner was acquitted under Section 235(1), Cr.P.C. Pursuant to the acquittal, the petitioner had applied before the Railway for appointment as commission agent. The application was not considered. A fresh writ petition was filed by the petitioner, which was disposed of on 4th January, 2013 by me with a direction upon the said Manager to consider the petitioner's claim for an appointment as commission agent in terms of the direction in the judgment and order dated 31st August, 2006 passed by the Hon'ble Division Bench.
4The said Manager has passed an order dated 5th February, 2013, which is the subject-matter of challenge in this writ petition. Appointment to the petitioner has been primarily refused on the ground that no agreement has been signed by and between the Railway and the petitioner for the latter to work as commission agent; a fresh advertisement has been made upon cancellation of the petitioner's selection and one Deb Kumar Maity a local candidate, was found suitable who has been functioning as an agent; the agreement executed by and between the Railway and the said Deb Kumar Maity is valid till 27th July, 2015; and that upon expiry of the period for which the said Deb Kumar Maity would function as a commission agent, the Railway would proceed for further selection and if the petitioner is interested, he could participate in the selection process.
Mr. Datta, learned advocate appearing for the petitioner submits that having regard to the observation of the Hon'ble Division Bench extracted supra, there hardly any valid and legal ground to deny appointment to the petitioner. He has accordingly prayed for relief in the writ petition.
Mr. Roy, learned advocate appearing for the Railway has relied on the grounds mentioned in the order of the said Manager dated 5th February, 2013 and in addition thereto, has submitted that the eligibility criteria that was in vogue at the time the petitioner was selected, are not quite the same presently. It has further submitted by him that the Manager did not commit any illegality in refusing to appoint the petitioner as commission agent.
Having heard learned advocates for the parties and on due scrutiny of the judgment and order dated 31st August, 2006 passed by the Hon'ble Division bench, I find the impugned order to be indefensible. What the Division Bench had ordered was that the petitioner's selection shall be kept in abeyance till such time he is acquitted by the criminal court and if he continues to 5 possess the necessary qualifications for appointment as the commission agent "as per advertisement", there would be no scope for refusing him appointment. The words "as per advertisement" do not refer to any future advertisement that might be published by the Railway but the advertisement in pursuance whereof he had applied and was duly selected. The effect is that the appointment shall stand deferred till an acquittal is secured. The petitioner having been acquitted, the only option left to the Railway was to appoint him after expiry of the present term of the said Deb Kumar Maity.
I am of the considered view that any change in the rules for appointment of a commission agent cannot stand in the way of offering an appointment to the petitioner, once the Railway allowed the judgment and order dated 31st August, 2006 to attain finality without subjecting it to any appeal. The rights of the parties stand determined on the basis of the observations made in such judgment and order and there being a clear observation to the effect that the petitioner would have to be appointed if he ultimately secures an acquittal from the criminal court, the approach of the Railway in denying him appointment is not considered to be just and fair.
The submission of Mr. Roy that others have been waiting in the queue and an order directing appointment to be given in favour of the petitioner even in the absence of any agreement entered into by and between the Railway and the petitioner would prejudice such others, has failed to impress me. The question of consideration of the other eligible candidates does not arise since the term of the said Deb Kumar Maity is yet to expire. If at all, their rights to be considered for appointment would arise only if a fresh advertisement is issued after 27th July, 2015. There cannot be infringement of any right of any individual which is yet to be born.
Since it has not been brought to my notice that the petitioner has incurred no disqualification in terms of the 6 advertisement that was originally issued and pursuant to which he had offered his candidature, the judgment and order passed by the Hon'ble Division Bench has to be complied with in letter and spirit.
The writ petition succeeds. With the expiry of the term for which the said Deb Kumar Maity was appointed, the petitioner shall be called upon to sign the agreement. In the event the petitioner agrees to do so, he shall be permitted to function as commission agent for Badalpur passenger halt in terms of the terms and conditions which were prevalent at the time the advertisement was initially made. After expiry of the period of five years for which the agreement shall be made or earlier determination thereof as per law, as the case may be, the Railway shall be entitled to issue fresh advertisement.
There shall be no order as to costs.
Urgent photostat certified copy of this order if applied for, be furnished expeditiously.
(Dipankar Datta,J.)