JUDGMENT The judgment of the Court was as follows :–– Sengupta, J.: This appeal has been preferred by the State of West Bengal against the judgment and order dated October 9, 1991 of a learned single Judge. An application has been filed by appellant State of West Bengal, asking for stay of operation of the judgment and order under Appeal. We have heard the learned counsel appearing for the parties at length. We are of the view that no case has been made out for stay of operation of the impugned judgment and order for the reasons set out hereinafter : In the Judgment under appeal the learned Judge observed as follows :–– The writ petitioner who has been selected for the appointment of Staff Officer Instructor under the Civil Defence Department has moved this Court under Article 226 of the Constitution of India being aggrieved by the refusal of the respondents to give him such appointment even though, according to him, the State Government has obtained the Cabinet approval regarding creation of several posts including one for the present writ petitioner. 2. On behalf of the respondents it is sought to be urged that the post that has been created by the Cabinet was not for the petitioner but for other persons whose names have been disclosed in the affidavit-in-opposition. 3. The writ petitioner contests this claim of the respondents made in affidavit-in-opposition and submits that the xerox copy of the notings of the department which he has annexed to the supplementary affidavit clearly shows that he was one of the persons who filed writ petition in this Court and one of the posts that have been sanctioned by the Cabinet was for him. 4. The learned Advocate for the respondents has been directed by this Court to produce the list of names of those writ petitioners who actually filed writ petition and for whom the said posts have been created. But, the Learned Advocate has not been able to produce such list. Therefore, the annexure to the supplementary affidavit which shows that one of the posts has been created for the present writ petitioner s he filed writ petition cannot be challenged by the respondents. 5. But, the Learned Advocate has not been able to produce such list. Therefore, the annexure to the supplementary affidavit which shows that one of the posts has been created for the present writ petitioner s he filed writ petition cannot be challenged by the respondents. 5. Therefore, I have to accept the contention of the writ petitioner that one of the posts that have been created in terms of the Cabinet decision is for giving appointment to the present writ petitioner to such posts. 6. In that view of the matter, the writ petition is allowed. The writ petitioner be given appointment to the post of Staff Officer Instructor within 2 months from the date of communication of this Judgment and Order by the concerned respondents. The contention of Mr. Seth, Ld. Advocate for the state is that Learned Judge was not right in holding that one of the posts created was for writ petitioner. It is his contention that the writ petitioner was no doubt empanelled but he was not selected for appointment as his position was below those 25 persons for whom 25 posts were created. 7. We, therefore, specifically directed the State to produce the records to show that 25 posts which have been created are for the persons who are above the Respondents/Writ petitioner. Repeatedly we have asked for production of the records, but relevant records have not been produced on the ground that the records are not traceable. 8. One of the contentions of Mr. Seth, the learned Advocate appearing for the State is that the writ petitioner was only empanelled and the question of giving him or considering him for any appointment did not arise as those 25 posts were created only for those who had already been selected for appointment. This contention is contrary to the judgment dated 6.3.89 of G. N. Ray, J. (as his Lordship then was) which was tendered on an earlier writ application moved by the respondent/writ petitioner. 9. The Learned Judge after considering the facts an circumstances of the case, held as follows :–– ".........In the aforesaid circumstances, the petitioner should be deemed to have complied with all the requisite for being successfully empanelled for the purpose of getting appointment to the post of Staff Officer. Instructor in the Civil Defence Organisation, West Bengal. 9. The Learned Judge after considering the facts an circumstances of the case, held as follows :–– ".........In the aforesaid circumstances, the petitioner should be deemed to have complied with all the requisite for being successfully empanelled for the purpose of getting appointment to the post of Staff Officer. Instructor in the Civil Defence Organisation, West Bengal. It is the case of the petitioner that on the basis of such empanelment he is entitled to get appointment. The Court, therefore, should proceed on the footing that the petitioner is fit to be empanelled for getting an appointment to the post of Staff Officer Instructor having already completed the whole time Instructors Course Training from the C. C. D. T. I., West Bengal for a period of four weeks. The respondents are, therefore, directed to consider the case of appointment. Let such consideration be made within a period of three months from today for giving appointment to the petitioner if on the strength of such empanelment he is entitled to be absorbed against the available vacancy." (Emphasis supplied) 10. Pursuant to the aforesaid order the case of the respondent writ petitioner was considered by the Government and the Deputy Secretary to the Government of West Bengal in his order dated 26th May, 1989 has stated as follows :–– "The undersigned is directed to say that in C. O. No. 8124 (W) of 1988, the Hon'ble High Court, Calcutta has directed to consider the case of appointment of the petitioner viz. Sri Chirantan Sarkar, to the post of Staff Officer Instructor in the Civil Defence Organisation on the footing that he had been duly empanelled on the 16th December, 1985 for such appointment, within a period of three months from the 6th March, 1989, the date of delivery of judgment provided that he is entitled to be absorbed against the available vacancy on the strength of such empanelment. In pursuance of the above orders of the Court; the question of appointment of Sri Sarkar to the post of Staff Officer Instructor has duly been considered by the Govt. in Memo (C.D.) Deptt. But, as there is no regular vacancy in the aforesaid post, at present. Govt. are not in a position to appoint him to such post. The question of his appointment to such post will be considered as and when a regular vacancy in the said post arises." (Emphasis supplied) 11. in Memo (C.D.) Deptt. But, as there is no regular vacancy in the aforesaid post, at present. Govt. are not in a position to appoint him to such post. The question of his appointment to such post will be considered as and when a regular vacancy in the said post arises." (Emphasis supplied) 11. As indicated earlier, inspite of the opportunities given, Mr. Seth could not produce the records. He has, however, produced certain letters of appointment issued in 1985 which not throw any light on the issue involved in this appeal, nor does it support the contention that 25 persons for whom the posts are created were above the writ petitioner. 12. In the affidavit-in-reply which has been affirmed by one Parimal Chakraborty, Assistant Secretary, Home (Civil Defence) Department, Government of West Bengal it has been stated as follows : "It is correct that the records relating to the recruitment of the 105 candidates for appointment and 395 candidates for empanelment are not traceable." 13. Accordingly, the learned Judge rightly proceeded on the basis of the averments made before the trial Court. 14. The records containing the precise preceding the Cabinet Memo and the Cabinet Memo have been produced before us. It has been contended that there is a mistake in the Cabinet Memo and those 25 persons for whom the posts were being created did not include the petitioners. This contention has no substance at all. It is necessary for us to set out the relevant notings in the file and relevant portions have been underlined by us. 15. On 4.3.89 one Mr. H. G. Roy, D. S. Put up the following note :–– "A proposal was sent by the then M. C. S. to the C. M. for creation of some more posts of S. O. I. in the Home (C.D.) Department. But the File was reported to be not available after several contacts to the C. M.’s office. H. G. Roy, D. S. Put up the following note :–– "A proposal was sent by the then M. C. S. to the C. M. for creation of some more posts of S. O. I. in the Home (C.D.) Department. But the File was reported to be not available after several contacts to the C. M.’s office. In the circumstances, the present part File is constructed for proceeding with the urgent pending issue for creation of the balance posts of S. O. I. It is found from the D. O. Letter No. 421/DCD dated 14.8.86 of S. C. Mazumdar, the then Director of Civil Defence addressed to Shri N. Krishnamurthi, Home Secretary Government of West Bengal that there were 30 candidates who were given selection letters for appointment but could not be appointed for want of posts. It is further recorded in the said D. O. letter that sanction was accorded to the creation of 80 new posts of S. O. I.’s based on population growth against the proposed number of 105. It is also found that the Finance Department accorded concurrence to the creation of 80 new posts of S. O. I.’s vide their U. C. No. Group D2/1057 dated 14.8.1985. This Department renews its proposal for creation of the balance 25 posts of S. O. I.’s in the context of non-availability of post for the candidates who were given selection letters for appointment and who re now suing the Government in contempt petitions for non-compliance of High Court’s orders regarding provision of appointment to the selected candidates lodged with the letters of selection by the Director of Civil Defence, West Bengal. Action for according sanction to creation of the balance 25 new posts of S. O. I.’s may be taken up as expeditiously as possible as the officers of the Department from Secretary, Home Department; Deputy Secretary, Home (C.D.) Department to Director of Civil Defence and Controller of Civil Defence in the Districts will be hauled in no time for contempt of court by the concerned Benches of the Calcutta High Court." Sd/- H. G. Roy D. S. "We may endorse the proposal and obtain the approval of Finance Department. Sd/- Illegible 3.5.89 Sd/ Jyoti Basu 6.5.89." "Finance Deptt. may kindly agree." Sd/- Illegible 11.5.89 "F. S. may please have the proposal re-examined and put up. Sd/- Illegible 21.5.89 "The Admn. Deptt. Sd/- Illegible 3.5.89 Sd/ Jyoti Basu 6.5.89." "Finance Deptt. may kindly agree." Sd/- Illegible 11.5.89 "F. S. may please have the proposal re-examined and put up. Sd/- Illegible 21.5.89 "The Admn. Deptt. is requested top furnish us with the file, in which the creation of 80 nos. posts of Staff Officer Instructor sanctioned previously with the concurrence of the Finance Deptt. for examination of the present proposal. Sd/- B. K. Basu 26.5.89." To Home (C D) Deptt. Sd/- Illegible 1.6.89." S. O. E. D." "With regard to the above query of the Finance Deptt. this is too state that the non-availability of the old file and subsequent construction of this file for that reason has been mentioned nsp-1 in the opening paragraph. Sd/- Illegible 3.6.89" "It appears that 17 persons out of 25 had gone to the Hon'ble High Court for their appointment in the post of Staff Officer Instructors. The Hon'ble High Court has given different judgment on the said court cases. It also appears that Home (C. D.) Deptt. have faced contempt proceedings. In view of the position sated above it will be better if the Home (C D) Deptt. obtain opinion of the Ld. L. R. in this matter after submitting a precis of the case to him and return the file back to this Department." Sd/- A. K. Roy 29.11.89." "Finance Department’s notes at bottom prepage may be seen with reference to those of this Department’s at page 1-2/N.S. ante. The reasons for the proposed creation of 25 posts of S. O. I. in the Civil Defence Organisation have been clearly explained in the notes at pages 1-2/N.S. ante. It will appear therefrom that there was a proposal for creation of 105 posts of S. O. I.’s on population growth basis. But sanction was accorded to the creation of 80 posts out of 105. It will further appear that 30 candidates who were given letters of selection for appointment to the post of S. O. I. these candidates 18 have already moved the Calcutta High Court for their appointment as S. O. I. and the judgment of the High Court has gone in their favour. The remaining candidates have sent memorials to the Prime Minister of India-Chief Minister & M.O.S.-in-Charge of Civil Defence, West Bengal for their appointment as S. O. I. Home Secretary, Dy. The remaining candidates have sent memorials to the Prime Minister of India-Chief Minister & M.O.S.-in-Charge of Civil Defence, West Bengal for their appointment as S. O. I. Home Secretary, Dy. Secretary, Home (Civil Defence) Department, Director, Civil Defence, West Bengal and District Controllers of Civil Defence have been facing contempt proceedings in the different Benches of the High Court. In the circumstances, it has been decided with the approval of M.O.S.-in-Charge of Civil Defence and Chief Minister that 25 more posts of S. O. I. should be created in the Civil Defence Organisation. It is, therefore, not clear from Finance Department’s notes on what points we should refer the file to Ld. L. R., West Bengal when the matter has already been approve3d by M. O. S./C.M. The Finance Department may be requested to kindly clarify. The file may go to Finance Deptt. fter Home Secy. has kindly seen." Sd/- Illegible 20.12.89." "Perused the departmental notes and the precis. No specific point on which L. R., is to give opinion or advice has been raised. In this position it is difficult to given any opinion or advice generally. It can only be said that the court’s orders which are binding upon the Govt. as referred to in the precis have got to be complied with." Sd/- S. N. Mallick, Join L. R. West Bengal 16.2.90. "In view of what has been stated by the Ld. L.R. in his above notes, the Fin. Deptt. may kindly agree to the creation of 25 posts of S. O. I. as proposed earlier in this Deptt.’s notes at page 1-2/N.S. ante, endorsed also by the Hon'ble Chief Minister. Sd/- S. K. Das 22.2.90 "C.M.’s and F.M.’s order on page 2 of notes within may be seen with the precis below. 2. In compliance with different orders of the Hon'ble High Court, Home (C. D.) Deptt. leave proposed for creation of 25 posts of staff-Officer instructor in the prescribed scale of pay. Ld. L. R. has also endorsed the proposal, (vide page 5 of notes within)." 3. It appears that the no. of petitioners is 18 and not 25. We may, therefore, agree to the creation of 18 posts of S. O. I. (only to accommodate the petitioners and not others) subject to the approval of the Cabinet." Sd/- S. K. Chakrabarti 8.4.90 Sd/- S. N. Roy 12.4.90 Sd/- Asim Kumar Dasgupta 29.5.90. It appears that the no. of petitioners is 18 and not 25. We may, therefore, agree to the creation of 18 posts of S. O. I. (only to accommodate the petitioners and not others) subject to the approval of the Cabinet." Sd/- S. K. Chakrabarti 8.4.90 Sd/- S. N. Roy 12.4.90 Sd/- Asim Kumar Dasgupta 29.5.90. Home (Civil Defence) Deptt. "Finance Deptt.’s notes at top prepage may be seen with reference to this Deptt.’s at p. 4/N.S. ante. A proposal for creation of 105 posts of Staff Officer Instructor on population growth basis, was under consideration of this Deptt. in consultation with the Finance Deptt. some time in 1985. A Selection Committee selected candidates for filling up of the vacancies in the posts of S. O. I., then in existence, as well as the 105 posts of S. O. I. out of the proposed 105 posts was accorded to. As a result 25 candidates who were selected for appointment and who underwent training in the C. C. D. T. I. could not be given appointment. Out of these 25 candidates, 18 moved the Calcutta High Court, and judgment of the different benches of the High Court has gone in their favour. In order to accommodate those candidates the Finance Deptt. was moved for creation of 25 posts in the civil Defence Orgn. But the Fin. Deptt. have agreed to the creation of 18 posts only for those who moved the High Court. There is every possibility of the remaining 7 candidates’ moving the High Court when 18 who moved the High Court would be given appointment. Hence, 25 posts of S. O. I. should be created in the Civil Defence Orgn. for accommodating the 25 candidates. C. M. and M. O. S. -in-charge have already approved the said creation. A draft Cabinet Memo is placed below for approval of N.O.s/in charge/C.M. for taking the matter to the Cabinet. Sd/- Illegible 20.6.90. "Cabinet-B. Chowdhury 29.6.90. Cabinet Decisions : No. 2406 dated 7.8.90. The Cabinet have approved this Deptt.’s proposal for creation of 25 posts of S. O. I. for the Civil Defence Organisation, West Bengal. Necessary orders creating eighteen posts of S. O. I. should be issued at once for complying with the Court’s order-order creating the remaining 7 posts should be issued later on. A draft is put up for approval. The cabinet has given approval. Necessary orders creating eighteen posts of S. O. I. should be issued at once for complying with the Court’s order-order creating the remaining 7 posts should be issued later on. A draft is put up for approval. The cabinet has given approval. Orders may issue after H. S. has kindly seen. Sd/- Illegible 20.8.90" "O. I. No. 5992-5992/I (2) dated 27.8.90. Notes and orders from page 7/N. S. ante may be seen. Orders creating eighteen posts of S. O. I. as mentioned at ‘X’ have since been issued." 16. We may now issue offer of appointment "to those in respect of whom no case is pending in the Calcutta High Court." 17. Thereafter, 3 candidates were given appointment in the post of S. O. I. 18. After the judgment under appeal was delivered on October 9, 1991 and during the pendency of this appeal, the Government sought to amend the earlier Cabinet Memo. After referring to the notings in the file, in particular the notings dated April/May, 1990 signed by Mr. S. K. Chakraborty, Mr. S. N. Roy and Mr. Asim Kumar Dasgupta, the following notings were, inter alia, made : "Shri Chirantan Sarkar who was selected for empanelment and whose name appears among the said 18 candidates moved the Calcutta High Court and the High Court, after hearing, directed to give Shri Sarkar appointment as S. O. I. within two months from 9.10.91, the date of the orders. It has been decided to prefer an appeal against the judgment in the larger bench." 19. In fact, the Government wanted to change their stand by the amendment of the Cabinet Memo to enable them to take the plea that 25 posts of Staff Officer Instructor "were created for accommodation of the candidates who were selected for appointment and not to any candidate who was selected for empanelment." In our view, the proposed amendment of the Cabinet Memo cannot alter the position. Only if the records were produced the actual facts could have been ascertained. We are not prepared to hold that all the officers of the Government proceeded on erroneous assumption. In any view, the judgment and order dated 6th March, 1989 passed by G. N. Ray, J. (as he then was) has not been challenged by the department. 20. Only if the records were produced the actual facts could have been ascertained. We are not prepared to hold that all the officers of the Government proceeded on erroneous assumption. In any view, the judgment and order dated 6th March, 1989 passed by G. N. Ray, J. (as he then was) has not been challenged by the department. 20. After consideration the aforesaid judgment, the Government made categorical assurance that as soon as vacancy would arise the writ petitioner would be accommodated. Our attention has been drawn to a precis which, according to the petitioner, forms part of the file which is untraceable. The contention of the learned counsel for the State is that no such precis was ever made. Since the records have not been produced it is very difficult to say whether the precis which has been annexed to the affidavit-in-opposition is not the precis which was in the file. In this precis it has been mentioned as follows : P R E C I S "There were a proposal for creation of 105 posts of Staff Officer Instructor on population growth basis. A selection committee consisting of the then Director, Civil Defence, West Bengal, the then Deputy Secretary, Home (Civil Defence) Department and the present Commandant, C. C. D. T. I. selected candidates for filling up of the vacancies in the post of S. O. I., then in existence, and the 105 posts of S. O. I. proposed to be created. The candidates who were selected for employment for the post of S. O. I. were informed that their appointment in the said posts would be subject to their passing the prescribed training in the C. C. D. T. I. as well as availability of vacancy. However, sanction of 80 posts of S. O. I. out of the 105 was accorded to subsequently. As a result, 18 candidates who were empanelled for the aforesaid appointment and who underwent training in the C. C. D. T. I. but could not be given appointment as such due to non-sanction of the remaining 25 posts moved the Calcutta High Court for their appointment and judgment of the different benches of the said High Court has gone in their favour. The court cases, in brief, are as follows : 1. The court cases, in brief, are as follows : 1. Dilip Kumar Mondal The Court directed the respondents to & 6 ors v. State give the petitioners appointment within 3 C. O. No. 13774 (W)/88 months from 3.2.89, the date of the Shri Mahitosh judgment. A variation petition has been Majumdar (J) moved through Shri Sankar Mukherjee, (File No. CDS (3) Advocate. The matter is pending hearing. 5C-5S/88) 2. Indu Bhusan Bera The Court directed on 12.4.88 to give v. State the petitioner a suitable posting. C. O. No. 690 (W)/87 Contempt petition is apprehended Shri Mahitosh any time. Majumdar (J) (CDS (3) 5C/5/87) 3. Alok Ranjan Pal & The Court directed to give the petitioners Chittaranjan Porel v. appointment within four weeks from State 6.5.88. The petitioners have filed contempt C.O. No. 952-953 (W)/88 petitions against the Director, Civil Shri Dilip Kumar Basu(J) Defence and Secy. Home (C. D.) Deptt. (File No. CDS(3)/5C-6/ A/O has been filed through Shri Sankar 88) Mukherjee, Advocate. 4. Shri Tapan Kumar The Court directed on 21.12.88 to consider Sengupta v. State the case of the appointment of the C. O. No. 5937 (W)/87 petitioners within a period of two months. Shri Mahitosh In compliance with the Court’s order, Majumdar (J) the petitioner has been informed, after File No. CDS (3)/5C- giving him a personal hearing that his 10/87 appointment as S. O. I. will be considered after a regular vacancy in the said post occurs. 5. Chirantan Sarkar v. State The Court directed on 6.3.88 to consider C. O. No. 3124(W)/88 the case of appointment of the petitioner G. N. Ray (J) on the footing that he had been duly File No. DS (3)/ empanelled for such appointment, within 5C-34/88 three months from 6.3.89. In compliance with the court’s order, the petitioner has been informed, after giving him a personal hearing, that his appointment will be considered as soon as a regular vacancy in the post of S. O. I. occurs. 6. Sukla Gomes v. State The Court directed to issue order of C. O. No. 15762(W)/86 posting of the petitioner as S.O.I. within Mahitosh Majumdar, J. three weeks from 12.4.88, the date of the (CDS(1)IC-2/87) judgment, Appeal preferred in the larger bench is pending hearing. 7. 6. Sukla Gomes v. State The Court directed to issue order of C. O. No. 15762(W)/86 posting of the petitioner as S.O.I. within Mahitosh Majumdar, J. three weeks from 12.4.88, the date of the (CDS(1)IC-2/87) judgment, Appeal preferred in the larger bench is pending hearing. 7. Smt. Gita Ghosh v. State Smt. Ghosh moved the Court for her C. O. No. 16027/(W)/85 non-selection in the posts of S. O. I. Shri Mahitosh The Court directed to consider the case Majumdar, (J) of the petitioner for appointment to the (File No. CDS(1)/ post of S. O. I. within 8 weeks from 5C-1/86) 21.11.88, the date of judgment. The case of Smt. Ghosh was duly considered in compliance with the Court’s orders and she was informed that the Govern- ment did not find any reason to reverse the decision of the selection committee which did not consider her fit for the post. Smt. Ghosh has again moved the Court. The Court has called for the office records relating to her non- selection. The State Advocate Mr. Samarendra Nath Dutta has been apprised that not records of her non-selection in the post of S. O. I. are available in the office of the Director, Civil Defence. 8. Tarun Dutta & 3 Others A letter was sent to the office of the Ld. v. State L. R. W. B. on 30.8.88 with the request F.M.A.T. No. 2555 of to change an advocate to contest the 1988 (arising out of C.O. matter. A reminder was also sent on No. 4184(W) of 1987) 7.12.88. But nothing has been received Shri G. N. Ray and from the office as to the engagement of Shri Pabitra K. an advocate for the State." Banerjee, JJ. (File No. CDS(3)/ 5C-7/87). 21. Excepting the above noted 18 petitioners, 8 others candidates who were selected for empanelment for the post of S. O. I. but have not been given such appointment have made representation to the Prime Minister of India, Chief Minister, West Bengal and M. O. S.-in-Charge of Civil Defence for their appointment. They are likely to move the Court any time. 22. In view of the above court cases/representation, the Finance Department who was moved for agreeing to the creation of 25 posts of S. O. I. In the Civil Defence Organisation have requested to obtain the opinion of the Ld. L. R. West Bengal in the matter. 23. They are likely to move the Court any time. 22. In view of the above court cases/representation, the Finance Department who was moved for agreeing to the creation of 25 posts of S. O. I. In the Civil Defence Organisation have requested to obtain the opinion of the Ld. L. R. West Bengal in the matter. 23. Hence, Ld. L. R. West Bengal may be requested to let us have his considered opinion in the matter. 24. This precis not only supports the contention of the writ petitioner but it is also in conformity with the notings in the file and the Cabinet Memo which we have already extracted. 25. Having regard to the aforesaid facts and circumstances of the case, we are of the view that the question of granting any stay against the order passed by the learned Trial Judge does not arise at all. 26. For the reasons aforesaid, this application is dismissed. 27. In view of the foregoing order passed in the application, Mr. Seth has very fairly stated that nothing remains to be decided in the Appeal. Accordingly, the Appeal is treated as included in the Day’s list by consent and disposed of in terms of the foregoing order. 28. Filing of the Paper Book is dispensed with. 29. Undertaking is discharged. 30. There will, however, be no order as to costs. All parties concerned to act on a signed copy of this dictated order on the usual undertaking. Sen, J.: I agree.