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2007 DIGILAW 796 (CAL)

SK. KHALILUR RAHAMAN v. STATE OF WEST BENGAL

2007-10-12

BHASKAR BHATTACHARYA, KISHORE KUMAR PRASAD

body2007
BHASKAR BHATTACHARYA, AC J. ( 1 ) THIS application under Articles 226 and 227 of the Constitution of India is at the instance of the unsuccessful applications under section 19 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the "act") and is directed against the order dated December 12, 2003 passed by the State Administrative Tribunal thereby rejecting the said application under section 19 of the Act filed by the petitioners. ( 2 ) BY the application under section 19 of the Act, the writ petitioners challenged the order dated July 15, 2002 passed by the Special Secretary to the Government of West Bengal whereby the earlier orders dated 10th August, 2001 and 18th September, 2001, by which the writ petitioners were given appointment to the posts of District Mass Education and Information Officer and the re-designated post of District Extension and Media Officers respectively, were declared to be nullity and the writ petitioners were directed to hold the temporary posts of Mass Education and Information Officer and to return the excess payment of remuneration. ( 3 ) THE facts giving rise to filing of the present writ application may be summed up thus: (a) The writ petitioners were working as Social Welfare Officers in the department of the Health and Family Welfare, Government of West Bengal and at that point of time on 30th of October, 1972, an advertisement was published by the Public Service Commission of West Bengal, inviting applications for appointment to the 18 posts of Mass Education and information Officer, District Family Welfare Bureau. (b) The writ petitioners applied for those posts and they along with other applicants were asked to appear before the Selection Committee, the Public service Commission. On January 6,1972, upon the application of the some of the senior educators before this Court under Article 226 of the Constitution of India, a civil rule being C. R. No. 708 (W) of 1972 was issued and an ad interim order was passed restraining the State-respondents from giving appointment to those posts. On 8th February, 1977, the said Rule, however, was discharged and consequently, the interim order was vacated. (c) After the discharge of the said rule, the writ petitioners and others were recommended by the Public Service Commission and they were offered appointments to the posts of Mass Education and Information Officer in the pay scale of Rs. On 8th February, 1977, the said Rule, however, was discharged and consequently, the interim order was vacated. (c) After the discharge of the said rule, the writ petitioners and others were recommended by the Public Service Commission and they were offered appointments to the posts of Mass Education and Information Officer in the pay scale of Rs. 375-650/- and were asked to express their willingness to accept the said offer. The writ petitioners on March 19, 1978 expressed their willingness to accept such appointments. (d) On June 7, 1978, the Joint Director of the Health and Family Welfare informed the Assistant Secretary of the said department about the police verification report and the result of medical examination of the writ petitioners. In spite of preparation of panel by the Public Service Commission, no posting order having been issued, the writ petitioners and others made representations to the Hon'ble Minister-in-Charge and the Hon'ble Chief minister. (e) By an order dated 15th December, 1978, the Deputy Secretary, government of West Bengal, Department of Health and Family Welfare abolished the 18 posts of the District Mass Education and Information officer. (f) In the month of January, 1979, a writ application was moved against the abolition of 18 posts of District Mass Education and Information Officers and for non-posting of the petitioners and others to the posts of District mass Education and Information Officer. On such application, a civil rule being C. R. No. 75 (W) of 1979 was issued by a learned Single Judge of this court. On 4th January, 1979, the Central Government re-designated the posts of District Mass Education and Information Officer as the District extension and the Media Officer. (g) On 2nd November, 1985, an advertisement was published by the Public service Commission, West Bengal inviting applications for the said post of district Extension and Media Officer. On 11th December, 1985, a writ application being C. O. No. 17457 (W) of 1985 was moved before a learned single Judge of this Court challenging the order of abolition of the post of district Mass Education and Information Officer and the advertisement dated 2nd November, 1985 inviting applications for the post of District Mass education and Information Officer. (h) A. K. Sengupta, J. on 23rd December, 1988 disposed of all the pending writ applications being C. 0. (h) A. K. Sengupta, J. on 23rd December, 1988 disposed of all the pending writ applications being C. 0. No. 117457 (W) of 1985, C. R. No. 75 (W) of 1979 and C. R. No. 10329 (W) of 1982 thereby inter alia setting aside the order dated 15th December, 1978 and directing the respondents not to act upon the decision to abolish the posts of Mass Education and Information officer in the Department of Health and Family Welfere until the petitioners were absorbed with further direction to absorb the petitioners with retrospective effect. His Lordships further directed that no appointment should be made to the post of the District Extension and Media Officer (the re-designated post of Mass Education and Information Officer) by way of direct recruitment or otherwise. His Lordship further ordered that if anyone had already been selected in terms of the advertisement made, he might be absorbed in other similar posts without affecting the right of the writ petitioners in any way. (i) The State of West Bengal preferred a mandamus appeal against the aforesaid judgment passed by A. K. Sengupta, J. but the said mandamus appeal was ultimately dismissed for default and no attempt was made for restoration of the said mandamus appeal. (j) On 10th August, 2001, the Joint Secretary, Department of Health and family Welfare, Government of West Bengal, issued an order with the concurrence of the Finance Department appointing the writ petitioners to the posts of District Mass Education and Information Officer and subsequently, by order dated 18th September, 2001, the said Joint Secretary by a further order re-designated the writ petitioners as the District Extension and Media Officer. (k) Ten months thereafter, on 15th July, 2002, the respondent passed an order declaring that the earlier orders dated 10th August, 2001 and 18th september, 2001 were erroneous orders and as such, those should be deemed to be nullity and the petitioners were given fresh appointment in the post of mass Education and Information Officers at a lower scale of pay which was a non-existent post with further direction for recovery of the excess amount of salary already paid to them by virtue of the alleged erroneous order ear her passed. (1) Being dissatisfied, the writ petitioners filed an application under section 19 of the Act before the State Administrative Tribunal, which has been dismissed by the order impugned herein. (1) Being dissatisfied, the writ petitioners filed an application under section 19 of the Act before the State Administrative Tribunal, which has been dismissed by the order impugned herein. ( 4 ) THE defence of the State respondent before the Tribunal as also in this writ application is that Sengupta, J. passed direction upon the State to absorb the writ petitioners as Mass Education and Information Officer with retrospective effect but His Lordship never passed any direction for appointment of the petitioners to the posts of District Extension and Media Officer; according to the respondents, although His Lordship directed that if any selection was made to the latter posts, the selected persons might be absorbed in any other similar post without affecting the right of the writ petitioners, yet the learned judge never gave direction to the State-respondent either to appoint the petitioners to the posts of District Extension and Media Officer or to absorb them in such post and consequently, by misinterpreting the order passed by sengupta, J. , the State Government gave direction to absorb the writ petitioners in the post of District Extension and Media Officer which is a higher post and the moment such mistake was detected, the order impugned was passed rectifying such error with further direction of recovery of the excess amount of salary paid to the writ petitioners. According to the State-respondent, it is entitled to rectify its bona fide mistake and no right accrued in favour of the writ petitioners in enjoying the benefit of an apparent error. ( 5 ) THE learned Tribunal below has accepted the contention of the State-respondent and thus, dismissed the application under section 19 of the Act. ( 6 ) THEREFORE, the only question that arises for determination in this writ application is whether the initial order passed by the respondent appointing the writ petitioners to the post of District Mass and Information Officer, followed by the order re-designating them as District Extension and Media Officer was contrary to the direction given Sengupta, J. justifying recall of such orders and passing of the fresh order impugned before the Tribunal. ( 7 ) AT the very outset, it will be appropriate to mention that before Ajit Kumar sengupta, J, three different writ application were heard analogously and were disposed of by a common judgment dated December 23, 1988. ( 7 ) AT the very outset, it will be appropriate to mention that before Ajit Kumar sengupta, J, three different writ application were heard analogously and were disposed of by a common judgment dated December 23, 1988. Those writ applications were C. R. No. 75 (W) of 1979, C. R. No. 10329 (W) of 1982 and C. 0. No. 17457 (W) of 1985. ( 8 ) BY C. R. No. 75 (W) of 1979, the writ petitioners along with others challenged the decision of the Government to abolish of the posts of the District mass Education Officer as contained in the memo dated December 15, 1978 and the inaction on the part of the Government in not giving them appointment to the posts of Mass Education Officer. During the pendency of such writ application, the State Government re-designated the post of District Mass education Officer as the District Extension and Media Officer on January 4, 1979 and subsequently, an advertisement was published for filling up the posts of the District Extension and Media Officer on November 2, 1985, as a result, the writ petitioners filed another writ application being C. O. No. 17457 (W) of 1985 mentioned above. The third writ application being C. R. No. 10329 (W) of 1982 was filed by some senior Extension Educators for their promotion to the posts of Mass Education and Information Officer. ( 9 ) WHILE opposing the prayers of the writ petitioners and others in those writ applications, the State-respondents never contended that the posts of Mass education and Information Officer were different from the posts of District education and Information Officer which had since been re-designated as district Extension and Media Officer or that the abolition of the posts of District mass and Information Officer as contained in the memo dated December 15, 1978 had nothing to do with the appointment of the petitioners to a different post of Mass Education Officer; on the contrary, in paragraph 25 of their affidavit-in-opposition to the said writ application, which are quoted by the writ petitioners in paragraph 21 of the present writ application before us, the state-respondents made the following averments: "statements made in paragraph 36 have no substance. The said 18 temporary posts of District Mass Education and Information Officer for which the petitioners and others were selected by the Public Service Commission have already been abolished by a memorandum dated 15th December, 1978". ". . . . as the said posts are no longer in existence after 15th December, 1978 the question of appointing the petitioners to those posts does not arise. " ( 10 ) SIMILARLY, in paragraph 35 of their affidavit-in-opposition, the State-respondent made the following averments: "the posts of District Mass Education and Information Officer for which the petitioners were selected by the Public Service Commission, West Bengal have no legal existence after 15th December, 1978 as the said posts were abolished by the Government of West Bengal. " ( 11 ) IN paragraph 16 of the affidavit-in-opposition to this writ application, the State-respondent while dealing with paragraph 21 of the writ application, never asserted that the writ petitioners have misquoted their affidavit-in-opposition but on the other hand, evaded the fact of giving affidavit in the aforesaid manner in the earlier writ application. ( 12 ) SENGUPTA, J. while disposing of the three writ applications observed as under: "the contention of the respondents is that the selection to the 18 posts were sponsored by the Central Govt. the posts have been re-designated as District extension and Media Officer. Therefore, the original posts do not exist. I have not been able to follow the logic behind this submission. It was a mere case of re-designation of the existing posts. There was no question of fresh recruitment. In fact, all other states the existing incumbents were continuing in the said re-designated posts with attendant benefits. There can be no reason why the selected candidates of West Bengal should be excluded only on the ground of re-designation. Re-designation, or revision of pay are related to the post upon proper evaluation of the post itself and possible of the holder of the post. After support of the state in spite of challenge in the high Court and ultimate success in the High Court, a subsequent re-designation cannot be a justification of such deprivation. Re-designation, or revision of pay are related to the post upon proper evaluation of the post itself and possible of the holder of the post. After support of the state in spite of challenge in the high Court and ultimate success in the High Court, a subsequent re-designation cannot be a justification of such deprivation. If that be so then the State of West Bengal has no authority in calling for fresh application for the new posts since according to the available information in the other states the recruits to the old posts are continuing in the re-designated posts and there was never any question of new recruitment. The petitioners therefore should be allowed to be posted in the new posts. Although the State of West Bengal claims that they are following an all India pattern of selections for the said posts, they are strangely not doing so. In my view, there is no earthy reason as to why the petitioners should not be posted in the re-designated posts when all other states are following those principles. In abolishing the posts of Mass Education and Information officers without giving the petitioners any opportunity to be heard in the matter before abolishing to such posts they are denied of natural justice. Moreover, it is violative of Articles 14 and 16 of the Constitution of India. The offer of appointment having been communicated to the petitioners and that the petitioners having accepted such offer of appointment the respondents cannot refuse to issue posting orders in favour of the petitioners and abolish the posts of Mass Education and Information Officer and advertise afresh inviting application for recruitment to the post of District extension and Media Officer in West Bengal General Service. " (emphasis supplied) ( 13 ) HIS Lordship ultimately held as follows: "it cannot be said that in the instant case the respondents acted fairly and/ or reasonably. It appears to me that the abolition of the post was not only arbitrary but also mala fide and the manner in which it has been done cannot be sustained. The whole exercise was made so that the petitioner did not get the order of posting after their selection and appointment buy only to select those who were unsuccessful. The new criteria was also made with calculated design so that the petitioners do not come within the zone of consideration. The whole exercise was made so that the petitioner did not get the order of posting after their selection and appointment buy only to select those who were unsuccessful. The new criteria was also made with calculated design so that the petitioners do not come within the zone of consideration. The executive Government has failed miserably in this case to act fairly without making any discrimination among the employees. The motive behind the whole exercise is mala fide if not malicious. For the reasons aforesaid this application is allowed. The impugned order dated 15. 12. 78 is set aside. The respondents are directed not to act upon the decision to abolish the post of Mass Education and Information Officer in the Department of Health and Family welfare until the petitioners are absorbed. Such absorption is to be made with retrospective effect. No appointment shall be made to the post of District Extension and Media officer (re-designated post of Mass Education and Information Officer) bv way of direct recruitment or otherwise. If any one has been selected in terms of the advertisement made they may be absorbed in other similar posts without affecting the petitioners in any manner whatsoever. The order will govern C. R. 75 (W) of 1979 and C. R. 10329 (W) of 1982 which are appearing in the list along with this matter. "(emphasis supplied) ( 14 ) WE have already pointed out that against the aforesaid decision passed by His Lordship, the State Government preferred a mandamus appeal but ultimately, the said appeal was dismissed for default and thus, the order passed by A. K. Sengupta, J. has attained finality and the State cannot dispute the findings recorded by His Lordship and at the same time, any point available to the State-respondent at that point of time, in opposing the prayer of the writ petitioner are no longer available to them being barred by the principle of constructive res judicata. ( 15 ) IT appears from the record that pursuant to the aforesaid direction given by His Lordship, the State Government first gave appointment to the writ petitioners to the posts of District Mass Education and Information Officer with retrospective effect and then, to the re-designated post of District Extension and Media Officer but ten months thereafter, recalled the decision by giving fresh appointment to the post of Mass Education and Information Officer which is a non-existent post with the plea that the post of District Mass Education officer is the higher post than that of Mass Education and Information Officer and that His Lordship directed the State to give appointment not to the higher post of the District Mass Education Officer but to the lower post of Mass education and Information Officer as if those are two different posts. The tribunal below has accepted the said defence of the State-respondent and being dissatisfied with such order, the writ petitioners have come up with the present application under Article 226/227 of the Constitution of India. ( 16 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we are of the view that the respondents should not be permitted to raise the aforesaid defence for the following reasons: first, in the previous writ application filed by the petitioners they specifically challenged the memo dated December 15, 1978 by which the 18 posts of "district Mass Education and Information Officer" and not the post of "mass education and Information Officer" was abolished by describing such act as mala fide for the purpose of depriving them of their previous selection. At that point of time, the respondent supported their action and did not contend that such abolition did not affect the right of the petitioners to have appointment in a different post, viz. Mass Education and Information Officer although if that was really the case, the said memo could not be quashed as mala fide. Therefore, the point now sought to be raised was available to the respondents but not raised and, therefore, hit by the doctrine of constructive res judicata. Mass Education and Information Officer although if that was really the case, the said memo could not be quashed as mala fide. Therefore, the point now sought to be raised was available to the respondents but not raised and, therefore, hit by the doctrine of constructive res judicata. Secondly, A. K. Sengupta, J. having specifically held that the post of Mass education and Information Officer is the re-designated post of District Media and Extension Officer, the Tribunal was bound by the said verdict which had attained finality and could not come to a different conclusion. It is now settled law that the principle of res judicata and constructive res judicata applies to a writ application. In this connection, it will not be out of place to mention the following observations of the Supreme Court in the case of Forward Construction Company vs. Prabhat Mandal, reported in air 1986 SC 391 : "so far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to section 11, CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connective with the subjectmatter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. " Thirdly, even in fact, the post of Mass Education and Information Officer was the selfsame post. It appears that the 18 posts of Mass Information officer were sponsored by the Central Government, one for each of the 18 districts in the West Bengal and that is why in the memo dated December 15,1978 the post was described as District Mass Education and Information officer. If the post of the District Mass Education and Information was really a higher post as contended for the first time before the Tribunal, the state Government must be prepared to produce the gazette notification creating such post. We gave an opportunity to the State-respondent to produce such notification by giving seven days' time but in spite of such opportunity, the learned Counsel informed us that such notification was not available in the department concerned. In view of such statement made before this Court, we concluded the hearing but recorded a specific order that we would not deliver our judgement within further seven days so that the State-respondent could produce such gazette notification from other available source in support of its plea. In spite of such opportunity being given, the State could not place any such notification creating the post of district Mass Education and Information Officer within the next fourteen days. Even the notification creating any post of District Mass Education officer could not be placed before us showing that the said post is inferior to the post of District Mass Education and Information Officer. We are, therefore, convinced that the posts of District Mass Education and information Officer created for each of the 18 districts were described as the District Mass Education and Information Officer in the memo dated december 15,1978 and the State Government has taken a deliberate false plea in their affidavit for the purpose of supporting their mala fide defence. Lastly, we find substance in the contention of Mr. Lastly, we find substance in the contention of Mr. Moitra, the learned Senior counsel appearing on behalf of the writ petitioners that even if we assume for the sake of argument that the petitioners were wrongly appointed to the posts of District Mass Education and Information Officers followed by the subsequent appointment to the posts of District Extension and Media Officer by misrepresenting the direction of Sengupta, J. , such orders could not be recalled without giving an opportunity of hearing to the writ petitioners. In this connection, it will be profitable to refer to the following decision of the apex Court in the case of Divisional Superintendent, Eastern Railway vs. L. N. Kashri and Ors. reported in AIR 1974 SC 1889 : "ray, CJ. : These two appeals are by certificate from judgment dated 14 december, 1967 of the High Court of Patna. 2. The only question in these appeals is whether the order dated 16 August, 1966 is valid. 3. By order dated 16 August, 1966 the appellants fixed the pay of the respondents at Rs. 135/- per month in the scale of Rs. 105-135/ -. 4. The respondents contended that their pay had been fixed in the scale of rs. 110-180/- and the scale was arbitrarily and illegally reduced. 5. The appellants contended that because of some mistake the respondents had been put in the grade of Rs. 110-180/- and this mistake was rectified. 6. The respondents were confirmed in the scale of Rs. 110-180/ -. The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard. Furthermore, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board. 7. The High Court rightly set aside the order. The appeals therefore fail and are dismissed. The appellants will pay costs to the respondents. Appeals dismissed. " ( 17 ) EVEN, in the subsequent case of H. L. Trehan and Ors. vs. Union of India, reported in AIR 1989 SC 568 , the Apex Court held that by giving a post-decisional opportunity, the original defect of not giving opportunity is not cured. The appellants will pay costs to the respondents. Appeals dismissed. " ( 17 ) EVEN, in the subsequent case of H. L. Trehan and Ors. vs. Union of India, reported in AIR 1989 SC 568 , the Apex Court held that by giving a post-decisional opportunity, the original defect of not giving opportunity is not cured. The following observations of the Apex Court in the aforesaid decision are, in this connection, quoted below: "it is, however, contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. In this connection, we may refer to a recent decision of this Court in K. L. Shephard vs. Union of india, JT 1987 (4) 600: AIR 1988 SC 686 . What happened in that case was that the Hindustan Commercial Bank, the bank of Cochin Ltd. and Lakshmi commercial Bank which were private banks, were amalgamated with Punjab national Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks to the schemes, certain employees of the first mentioned three banks were excluded from employment and their services were not taken over by the respective transferee banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the Court observed as follows: 'we may now point out that the learned Single Judge of the Kerala High court had proposed a post amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand, the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand, the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. ' the view that has been taken by this Court in, the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any, fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that, would not be any compliance with the rules of, natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the constitution. The High Court, in our opinion was perfectly justified in quashing the impugned circular. " ( 18 ) THEREFORE, the order passed by the respondents and impugned in the tribunal, is liable to be set aside also on the ground of not giving an opportunity of hearing to the petitioners and such defect cannot be rectified at this stage. ( 19 ) WE, therefore, allow this writ application and set aside the order passed by the Tribunal. Let there be an order of mandamus in terms of prayer (a) of this writ application and a writ in the nature of prohibiting in terms of prayer (b) of the same. ( 20 ) THE petitioners are also entitled to an order of costs, which we assess at rs. 50,000/- to be paid by the State-respondent within one month from today. The respondents are directed to release the full retiral benefits to the petitioners, as if the orders impugned were not at all passed, within a month from today. Writ application allowed.