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2003 DIGILAW 330 (CAL)

TRIDIB BHATTACHARJEE v. RANJIT ROY

2003-07-09

A.K.MATHUR, ASHIM KUMAR BANERJEE

body2003
A. K. BANERJEE, J. ( 1 ) SHORT question involved in this appeal is whether the learned single Judge was right in directing the Director, Local Bodies, State of West Bengal to make an inquiry to find out whether the appointments given by the Municipality were in terms of the regular recruitment process as well as to cancel the appointments which were to be found, given in violation of the recruitment rules. ( 2 ) RAMPURHAT Municipality was having casual workers prior to July, 1998. The State Government by virtue of notification dated 28th July, 1998 appearing at page 15 of the paper book approved creation of 19 posts and permitted the municipality to fill up those posts by way of absorption of casual workers engaged prior to 31st December, 1991 in accordance with the provision of section 54 of the West Bengal Municipal Act, 1993 (hereinafter referred to as 'the said Act' ). By virtue of another memo dated 10th May, 1999 the State Government further approved creation of another 19 posts and permitted the municipality to fill up the said posts by absorption of casual workers engaged prior to 31st December, 1991. Apart from the said created posts there had been regular vacancies by dint of retirement and/or death. The municipality by a resolution dated 21st January, 2000 gave appointments to 60 group 'd' employees as would appear from the copy of the resolution appearing at pages 111 to 118 of the supplementary paper book. The writ petitioner being respondent No. 1 being a councillor of the municipality challenged such appointment alleging that those appointments were not made following the provisions of sections 53 and 54 of the said Act, 1993. ( 3 ) SOME of the appointees applied before the Court below and got themselves added who are respondent Nos. 8 to 28 in the present appeal. Learned judge by the order impugned directed the Director, Local Bodies, State Government to investigate into the matter by giving opportunity of hearing to the affected parties and if upon investigation it is found that the appointments were made illegally violating the guidelines and procedure established by law, he would be entitled to cancel such appointments by passing a reasoned order. The order of the learned judge dated July 5, 2000 had been impugned in the appeal by 23 affected appointees who were not parties to the said writ proceeding. The order of the learned judge dated July 5, 2000 had been impugned in the appeal by 23 affected appointees who were not parties to the said writ proceeding. ( 4 ) THE principle ground on which the present appeal had been filed after obtaining appropriate leave as to whether the learned judge was right in directing investigation to be done by the Director, Local Bodies with a corresponding power to cancel appointments, if found illegal. According to the appellants since their appointments were subjected to such enquiry they should have been made parties in the said writ proceeding. Reliance was placed on an Apex Court decision reported in 2000 (Vol. IV) Supreme Court Cases, Page 439 (Commissioner, Bangalore Development Authority v. S. Vasudeva and Ors. ). ( 5 ) IT was also submitted on behalf of the appellants that the appointments given to those appointees were against regular posts and by following the regular recruitment process. Hence, those were not available further enquiry by the Director, Local Head Bodies. ( 6 ) IT was further contended that the writ petitioner being a councillor of the municipality and being a party to the said resolution was not entitled to challenge the said resolution. In support of such contention reliance was placed on the Apex Court decision reported in AIR 1994, Supreme Court, Page 2466 (Bihar Public Service Commission and Anr. v. Dr. Shiv Jatan Thakur and Ors. ). ( 7 ) THE learned counsel appearing for the respondent Nos. 3 to 28 supported the contention of the appellants. It was also contended on behalf of the added respondents that the writ petitioner being a councillor had no right to maintain the writ petition as he had no personal right which was likely to be affected by the said resolution. It was contended that the writ petitioner being a councillor worker should have come by way of public interest litigation instead of filing the writ petition before the learned single judge. It was further contended that the Director, Local Bodies was not the appropriate authority. Hence, he had no power to cancel the appointments as directed by the learned single judge. ( 8 ) THE learned counsel appearing for the municipality merely relied on their affidavit filed before this Court at the time of admission of the appeal and made no further submission in the appeal. Hence, he had no power to cancel the appointments as directed by the learned single judge. ( 8 ) THE learned counsel appearing for the municipality merely relied on their affidavit filed before this Court at the time of admission of the appeal and made no further submission in the appeal. ( 9 ) THE learned counsel appearing for the writ petitioner/respondent supporting the order impugned, submitted that since the writ petitioner was a councillor as well as elector under the said municipality he had every right to maintain the writ petition. Reliance was placed on the Division Bench decision of this Court reported in 1979, Vol-I, Calcutta Law Journal, Page 489 (Sanatan Roy v. The Municipal Commissioners of Dum Dum Municipality and Ors. ). ( 10 ) IT was further contended on behalf of the writ petitioner. Respondent that the appellants did not have any legal right to assail the order impugned and as such they were not made parties to the writ proceeding. According to the learned counsel since the writ petitioner/respondent challenged the decision of the municipality as a whole the appellants were not necessary parties although they might be affected by the order. Reliance was placed in this regard on two Apex Court decision i. e. AIR 1974, Supreme Court, Page 1755 (The General Manager, South Central Railway, Secunderabad and Anr. v. A. V. R. Siddhanti and Ors.) and AIR 1983, Supreme Court, Page 769 (A. Janardhana v. Union of India and Ors. ). ( 11 ) IN this back drop the following questions in our view would relevant for our considerations:- (1)was the writ petitioner entitled to maintain the writ petition? (2) were the appellants necessary parties in the proceedings? (3)was the learned judge correct in directing the Director, Local Bodies to cause an investigation and cancel the appointments given illegally? ( 12 ) ON the first issue relying on the Division Bench decision of this Court in the case of Sanatan Roy (supra) we feel that the writ petitioner was entitled to maintain the said proceeding. In the said case the writ petitioner challenged the propriety of the municipality while selecting a tenderer. It was contended in the said case that since the writ petitioner was not affected he had no locus standi to maintain the writ petition. In the said case the writ petitioner challenged the propriety of the municipality while selecting a tenderer. It was contended in the said case that since the writ petitioner was not affected he had no locus standi to maintain the writ petition. The Division Bench held that since the writ petitioner was not an elector of the said municipality he had locus standi to apply under Article 226. It is, however, true that in 1979 when their Lordships decided the question of locus standi the concept of public interest litigation was not there. Such concept had developed in 1980s by the Apex Court. The public interest litigation is also by way of application made under Article 226 or Article 32 of the Constitution as the case may be. Procedurally the writ petitioner should have filed the said writ proceeding before the Division Bench of this Court taking up public interest litigation matters. However, this procedural infirmity in our considered view can not per se warrant dismissal of the writ petition in limine. In course of hearing we were also told that the writ petitioner/ respondent subsequently lost in the election. That, in our view, had not changed the scenario. The writ petitioner still remains an elector of the said municipality and is entitled to point out illegality perpetuated in the recruitment process. Hence, we hold that the writ petitioner had locus standi to maintain the instant writ petition and we answer the first question in the affirmative. ( 13 ) ON the issue of appellants right, relying on the Apex Court decision in the case of Commissioner, Bangalore Development Authority v. S. Vasudeva and Ors. In 2000 (Vol. II), Supreme Court Cases, Page 439 we are of the opinion that the appellants were necessary parties to the writ petition. In paragraph 6 of the judgment of the Apex Court held that the High Court traveled beyond the scope of the writ petition by giving direction for cancellation of the allotments that were not subject matter before the High Court in the said writ petition. In other words, the High Court was wrong in cancelling the allotments of the allottees who were not parties to the writ petition. The writ petitioner herein had challenged the recruitment process culminating in the impugned resolution. Then appellants as well as the proforma respondents derived benefit out of the said impugned resolution. In other words, the High Court was wrong in cancelling the allotments of the allottees who were not parties to the writ petition. The writ petitioner herein had challenged the recruitment process culminating in the impugned resolution. Then appellants as well as the proforma respondents derived benefit out of the said impugned resolution. Since the impugned resolution was under challenge in the said writ proceeding all the beneficiaries of the said impugned resolution should have been made parties to the proceeding and the order of the learned judge impugned herein is liable to be set aside on the said ground alone. We are unable to accept the contention of the writ petitioner to the extent that since the petitioner had challenged policy of the municipal authority the appellants were not necessary parties. We have perused the writ petition. We find that the recruitment process was under challenge, not the policy as a whole. Since the recruitment process was under challenge the beneficiaries of the said process were necessary parties. Hence, we hold that the appellants were necessary parties in the writ proceeding and we answer the second question in affirmative. ( 14 ) LEARNED counsel appearing for the respondent/writ petitioner cited three decisions of the Apex Court reported in AIR 1987, Supreme Court, Page 1073 (Ambica Quarry Works Etc. v. State of Gujarat and Ors.); AIR 2002, Supreme Court, Page 834 (The State Financial Corporation and Anr. v. M/s Jagadamba Oil Mills and Anr.); AIR 2002, Supreme Court, Page 3088 (Delhi Administration v. Manoharlal) for the proposition that a decision can only be applied to a case having regard to the peculiar facts and circumstances involved therein. An abstract proposition of law per se cannot be applied without having regard to the peculiar facts and circumstances involved in any particular case. The said proposition is an elementary proposition and need no discussion in this case. We have found the applicability of the ratio decided in the case of Sanatan Roy (supra) and in the case of Bangalore Development Authority (supra) in the instant case and have duly applied the same. ( 15 ) THE other cases cited by the parties referred to hereinbefore being not relevant are not discussed herein. We have found the applicability of the ratio decided in the case of Sanatan Roy (supra) and in the case of Bangalore Development Authority (supra) in the instant case and have duly applied the same. ( 15 ) THE other cases cited by the parties referred to hereinbefore being not relevant are not discussed herein. ( 16 ) SINCE we have just now held that the order of the learned single judge is liable to be set aside as it was passed in the absence of appropriate parties we refrain from going into the merits of the matter and we leave the third question open for the Court to take appropriate decision in that regard. ( 17 ) THE order of the learned single judge dated July 5, 2000 is set aside. The matter is remanded back to the writ Court having appropriate determination for hearing public interest litigation matters for being heard in the presence of all the parties including the appellants. The appellants are added as respondents in the writ petition being No. W. P. No. 796 (W) of 2002. The department is directed to amend the cause title accordingly. The appellants would be entitled to file Affidavit-in-Opposition in the writ petition within three weeks from date. The writ petitioner would be entitled to file Affidavit-in-Reply, if any, within one week thereafter. The petitioner is directed to file second judge's copy of the writ petition since the matter would be heard by Division Bench. The writ petition would be placed for hearing before the appropriate bench having determination after four weeks. With these observations the appeal is disposed of. There would be no order as to costs. Urgent xerox certified copy would be given to the parties, if applied for. A. K. Mathur, CJ.- I agree. Appeal disposed of.