Calcutta High Court (Appellete Side)
The Chairman vs Smt. Subhra Das & Ors on 6 December, 2022
06.12.22
16 Ct. No.11
Sws.M
MAT 628 of 2022
with
IA No. CAN 1 of 2022
CAN 2 of 2022
The Chairman, South 24 Parganas & Anr.
Vs.
Smt. Subhra Das & Ors.
Mr. Bhaskar Prasad V aisya
Mr. Sagnik Chatterjee
....for the Appellants
Mr. Bikram Banerjee
Mr. Arka Nandi
Mr. Sutirtha Nayek
Ms. Shalini Ghosh
....for the respondents
Mr. Supriya Chattopadhyay Ms. Sayantanee Bhattacharjee .....for the State Party/Parties is/are represented in the order of their name/names as printed above in the cause-title.
Affidavit of service filed in Court today be retained with the records.
Re: CAN 1 of 2022 This appeal is supported by an application for condonation of delay being CAN 1 of 2022.
Heard the parties.
Perused the cause shown.
Cause shown is found to be adequate.
The delay stands accordingly condoned. CAN 1 of 2022 stands thus disposed of. 2 Re: MAT 628 of 2022 with CAN 2 of 2022 _____________________ Mr. Vaisya, learned Additional Government Pleader appears for the appellants, which is the South 24 Parganas District Primary School Council (for short the DPSC). The respondent No. 1 was the writ petitioner before the Hon'ble Single Bench.
By the order impugned dated 10th February, 2022 in the writ petition, being WPA 22660 of 2018, the Hon'ble Single Bench, inter alia, held that the appointment of the respondent/writ petitioner was terminated by the DPSC for no fault on the part of the respondent/writ petitioner. Such termination occurred after the respondent/writ petitioner had put in more than four years of service as an Assistant Teacher under the DPSC. Therefore, following the ratio of the Judgment and Order of the concurrent Hon'ble Single Bench in an identical matte, being In Re: Md. Allauddin Molla & Ors. Vs. State of West Bengal & Ors. (WP 4596(W) of 2017), the Hon'ble Single Bench was pleased to set aside the termination of the service of the respondent/writ petitioner. The respondent/writ petitioner was directed to be accommodated in whatever manner deemed fit and if necessary by creating supernumerary post to ensure that the 3 service of the writ petitioner is not interrupted. It was also clarified that the respondent/writ petitioner shall not raise any claim towards payment of arrear salary for the period during which the respondent/writ petitioner did not work against the said post.
It is submitted by Mr. Vaisya that the appeal preferred by the State against the Judgment and Order challenging In Re: Allauddin Molla (supra), being MAT 1814 of 2017, is pending consideration before a coordinate Hon'ble Division Bench. It is further submitted that exercise of powers under Article 226 of the Constitution of India, do not arguably extend to the extent of directing appointment of the respondent/ writ petitioner by creating supernumerary post.
Mr. Banerjee, learned Counsel appearing for the respondent/writ petitioner, submits that the respondent/writ petitioner was one of a batch of candidates who were appointed and thereafter their appointments were terminated after they had rendered service of more than four years. It is submitted that therefore the Hon'ble Single Bench In Re: Md. Allauddin Molla (supra) came to the conclusion that after putting in service of more that four years, the appointment could not be suddenly terminated for no fault of the candidates. 4
It is submitted that therefore the direction was passed to create supernumerary posts. Mr. Banerjee submits that the respondent/writ petitioner is entitled to equal treatment as granted to the similarly circumstanced candidates by the order of the Court In Re: Md. Allauddin Molla (supra).
It is submitted by Mr. Banerjee that although the batch of appeals challenging the Judgment and Order In Re: Md. Allauddin Molla (supra) are pending before the Hon'ble Division Bench, no interim order of stay has been granted. As a consequence thereof the other candidates have been granted appointment barring the respondent/writ petitioner and a few others. Accordingly, it is submitted that the Hon'ble Single Bench was correct in granting pari meteria treatment to the present respondent/writ petitioner in terms of the direction passed In Re: Allauddin Molla (supra).
Having heard the parties and considering the materials placed, this Court is of the view that while there can be no quarrel with the proposition that the exercise of plenary jurisdiction by the High Court must be within self-recognised limits, at the same time the right of the respondent/writ petitioner to be equally treated at par with identically circumstanced candidates cannot be lost sight of by this Court. Accordingly, this Court finds no reason to intervene 5 with the order of the Hon'ble Single Bench at the interim stage.
The prayer for an interim order of stay of the order impugned of the Hon'ble Single Bench stands accordingly refused.
Furthermore, in order to avoid multiplicity of proceedings, let the matter be now placed for hearing along with the batch of identical appeals along with In Re: Md. Allauddin Molla (supra).
Parties are at liberty to take steps. Mr. Chattopadhyay, learned Counsel appears for the State-respondents and submits that the compliance of the order passed by the Hon'ble Single Bench In Re: Md. Allauddin Molla was done in the face of pending contempt proceedings.
While taking notice of such submission as advanced by learned State Counsel, this Court cannot also lose sight of the legal position that the Hon'ble Division Bench while proceeding to hear the appeals connected to the Judgment and Order of the Hon'ble Single Bench In Re: Md. Allauddin Molla (supra) did not grant any stay in respect of such appeals and pursuant thereto the directions of the Hon'ble Single Bench In Re: Md. Allauddin Molla (supra) were implemented by granting appointments to the said candidates.
6
This Court reiterates the position, as already discussed above, that the respondent/writ petitioner deserves to be equally treated at par with the similarly circumstanced candidates as laid down In Re: Md. Alauddin Molla (supra).
All parties to act on a server copy of this order downloaded from the official website of the Court. (Supratim Bhattacharya, J.) (Subrata Talukdar, J)