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2007 DIGILAW 900 (CAL)

Somnath Shit v. STATE OF WEST BENGAL

2007-12-20

KALYAN JYOTI SENGUPTA, MANIK MOHAN SARKAR

body2007
JUDGMENT:- (1). I have gone through the draft judgment of my learned Brother Honble Justice Sarkar. I record my agreement with His lordships ordering portion and also fact findings. Notwithstanding, I want to add few words of my own. The learned Tribunal has dismissed the application of the applicant on the question of limitation and does not decide the matter on merit. It appears that learned Tribunal found that since the panel in question was prepared in 1995 and the same has lost its force because of the candidates empanelled having been appointed. In my view, question of limitation has to be decided on the basis of the pleadings of both the sides when the question of limitation arises both on fact and law. In the petition, it is stated that the panel was prepared admittedly in 1995. It is also admitted position that the name of the petitioner was found in the panel. I think that approach of the learned Tribunal on the question of limitation is not correct in the eye of law. The learned Tribunal has, perhaps, misdirected itself while appreciating the case, since the panel was not challenged. Had the panel been challenged then certainly this case would have been barred by limitation. The grievance of the applicant is that in spite of his name being empanelled he was not given appointment whereas other candidates, whose position below him in the panel, were given appointment. Therefore, I am of the opinion that cause of action arises in this case as and when he is superseded by the other candidates who are empanelled. It was for the respondent to state specifically when last appointment was given. Moreover, the petitioner had made representations from time to time and last representation was made in 2000. In spite of that representation no reply was given. Thereafter in the year, 2000 the application was filed. In the affidavit-in-opposition the respondent did not say specifically when such last appointment was made, In view of this factual position. I think that dismissal of the application on the plea of limitation by the learned Tribunal, is not justified. Learned Tribunal ought to have looked into the matter on merit. It is settled position of law that when a litigant belonging to backward class and had made representations from time to time the writ petition is entertained excusing delay. I think that dismissal of the application on the plea of limitation by the learned Tribunal, is not justified. Learned Tribunal ought to have looked into the matter on merit. It is settled position of law that when a litigant belonging to backward class and had made representations from time to time the writ petition is entertained excusing delay. Delay becomes a factor when it defeats justice and takes away someones right. Here question of defeating justice does not and cannot arise rather grievance of the petitioner is that he has been discriminated as a candidate whose position is much below than that of the petitioner has been given appointment. Therefore, his Constitutional right has been taken away by the respondent and plea of limitation is not tenable. (2). ORDINARILY, this matter ought to have been remanded as the matter was not dealt with by the learned Tribunal on merit. It ought not to have been enquired into on merit. Since, it is an old matter of 2000 we, therefore, think it fit not to remand the matter on merit. Thus, we have decided the matter by ourselves on merit. My learned Brother has already, in great details, examined the matter on merit and found that the applicant has been discriminated. Therefore, this application succeeds and order is accordingly passed. Manik Mohan Sarkar, J. (3). THIS is an application under Article 226 of the Constitution of India challenging the order of dismissal of the writ application of the applicant before the State Administrative Tribunal, Kolkata in SI. No. 15 dated 11.6.03 in O.A. No. 1159 of 2000. (4). PETITIONERs case before the learned Tribunal, in short compass, is that having requisite qualifications for appointment in the post of Forest guard under the Government of West Bengal, Directorate of Forest, within the authority of Divisional Forest Officer, Bankura (North) Division, his name was forwarded by the Bankura Employment Exchange to participate in the selection process. (5). ON receipt of letter dated 01.8.1995 with Rol1 No. 162 from Divisional forest Officer, Bankura (North) Division, the applicant appeared before the selection Board with necessary educational testimonials at 10.30 a.m. on 22nd august, 1995 before the Selection Board for verification of testimonials and also participated in the walking test held on 23rd August, 1995 at Bankura stadium. (5). ON receipt of letter dated 01.8.1995 with Rol1 No. 162 from Divisional forest Officer, Bankura (North) Division, the applicant appeared before the selection Board with necessary educational testimonials at 10.30 a.m. on 22nd august, 1995 before the Selection Board for verification of testimonials and also participated in the walking test held on 23rd August, 1995 at Bankura stadium. The petitioner successfully completed the walking of the said distance much before many other candidates and on completion of the selection process a panel of 147 candidates was prepared in the year 1995 for the appointment to the post of Forest Guard under Bankura (North) Division. At no point of time from the date of preparation of the panel, it was published by the respondent No. 3 by putting up the same in the Notice Board. The said panel was kept alive by giving appointments to the empanelled candidates including those names who were appearing below the S1. No. of the applicant in the said panel and non-publication of the said panel was done according to the whims of the respondents. Thus, the right of the applicant, being an empanelled candidate, was deprived of. Hailing from the lower section of the society the applicant was ignorant of all the formalities relating to approach to the concerned respondent authorities for ventilating his grievance against appointment to the post of Forest Guard superseding the SI. No. of the applicant, even though the applicant tried his level best to move the concerned authorities for having a favour of getting appointment being an empanelled candidate. In furtherance to that the applicant made representations on 15th April, 1996 and then on 7th January, 1997 and also on 12th January, 1998 addressing the respondent No. 3, under Certificate of Posting. The applicant made the last representation on 5th January, 2000 before the respondent No. 3 which was sent under Registered Post with Acknowledgement Due Card praying for his appointment to the post on the basis of his empanelment. But the said representation was not at all considered. (6). The applicant made the last representation on 5th January, 2000 before the respondent No. 3 which was sent under Registered Post with Acknowledgement Due Card praying for his appointment to the post on the basis of his empanelment. But the said representation was not at all considered. (6). BEING aggrieved, the applicant filed application before the State administrative Tribunal along with the supplementary affidavit on 25th July, 2000 where the respondent authorities filed a written reply admitting that the name of the applicant was included in the panel of 147 selected candidates though the respondent authorities stated about the life of the panel for a period of one year after its preparation, but did not disclose the date of last appointment made from the said panel towards appointment of 78 candidates. Applicant claimed that one Sushanta Kumar Ghosh, son of late Santosh kumar Ghosh of Nabapally, P.O. Manduadihi was appointed to the post of forest Guard though he secured no place in the said panel. Ultimately, the learned State Administrative Tribunal heard the said application of the applicant and without considering the facts of the case and also without considering the claim of the applicant of an act of supersession "of his name in the panel by appointing empanelled candidates below his name" by breaking serial, dismissed the said application of the applicant as being barred by limitation since the petitioner filed application before the learned Tribunal long after five years of expiry of the said panel. (7). SINCE the learned Tribunal, without going into the merit of the application filed by the present petitioner before it, has dismissed the application of the petitioner only on the ground that the petitioner filed application before the learned Tribunal long after five years of the expiry of the panel and did not avail of the opportunity to come, within the period of time as provided under the Act concerned, that matter is taken up primarily to ascertain when the petitioners application before the learned Tribunal was time-barred. (8). BEFORE going into the point of discussion as to whether the application of the petitioner before the learned Tribunal was a time-barred application, the provision in respect of such limitation period as provided in the administrative Tribunals Act, 1985 may be consulted. (9). (8). BEFORE going into the point of discussion as to whether the application of the petitioner before the learned Tribunal was a time-barred application, the provision in respect of such limitation period as provided in the administrative Tribunals Act, 1985 may be consulted. (9). SECTION 21 of the said Act provides that the Tribunal shall not admit an application unless the said application is made, within one year from the date on which such final order has been made. The reading of the said section 21 is as follows: Section 21. " (1) A Tribunal shall not admit an application,-(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where-(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and (b) no proceeding for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a) or, as the case may be, clause (b) of sub-section (1) or, within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of subsection (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. " (10). IN section 21 (1) (a), reference has been made to the provision of section 20 (2) (a) to define what is a final order. The provision of section 20 (1) has prescribed that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant has availed of all remedies available to him under the relevant service Rules as to redressal of grievances. On further defining the above provision, Section 20 (2) (a) (b) has provided in the following lines. Section 20.- (2) For the purpose of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or (b) whether no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. (11). ON plain reading of the said provision made in sections 20 and also 21 it is revealed that the said provisions were meant for those applicants who have grievances under the Service Rules or the persons already coming under the Service Rules and the said relief is in the nature of post-appointment. In the present case, the petitioner is yet to get an appointment though he was placed on the avenue leading to appointment since the petitioner was selected by the respondent side through different tests including endurance test and he was finally placed in the panel prepared by them for the purpose of appointment to the vacancies of Forest Guard. In that case, the present petitioner is yet to come within the purview of the service Rules and so the provision of final order as defendant in section 20 (2) (a) should be operative against such a candidate. In the process of appointment, the present petitioner cannot avail of any provision in the service Rules which is not meant for the prospective persons to be appointed. (12). In the process of appointment, the present petitioner cannot avail of any provision in the service Rules which is not meant for the prospective persons to be appointed. (12). EMPANELMENT of a selected candidate normally gives him an advantage of being appointed to the post for which such panel has been prepared and a veiled right is created in his favour in that respect. Since the petitioner is not expected to come within the purview of the provision of section 20 (1) or (2) of the Act, his case should be spill out from the formula laid in section 20 of the Act. (13). PREPARATION of the panel cannot be treated in the style of a final order since something more is to be done in the process of appointment of the candidates out of the said panel. In the present case, respondent side has stated that at first they have prepared a revised list of the candidates including in that panel on the basis of 100-point roster. It is further submitted on behalf of the respondents that out of that panel, after following the formula of 100-point roster the respondent side have appointed 78 candidates in total to the post of Forest Guard. In the style of recollection it is to be noted that the petitioner was placed at serial No. 74 in the said panel. In that case, the panel of 147 selected candidates for the post of Forest Guard, became activated by way of giving appointments to the empanelled candidates towards the vacancies remaining at that point of time to be filled up. In that case, each of the appointment letters creates a new cause of action in respect of the claim made by the present petitioner. The ultimate cause of action arose when the respondent side appointed the last candidate allowing the 78 candidates to whom the respondent gives appointment. Since the appointment process was going on, the petitioner kept his expectation alive of getting an appointment letter in his name. His expectation may be treated as "closed" when the last candidate out of the panel was appointed by the respondent ignoring the present petitioner. The cause of action in favour of the petitioner arose when the respondent appointed the last candidate. (14). His expectation may be treated as "closed" when the last candidate out of the panel was appointed by the respondent ignoring the present petitioner. The cause of action in favour of the petitioner arose when the respondent appointed the last candidate. (14). THE respondent side filed their affidavit-in-opposition before the learned Tribunal as well as before this Court in the present application and nowhere it has been stated by the respondent as to on which date the said last candidate was appointed. Such a date could have been treated as the starting point of limitation period for the petitioner for filing application within time as provided under the present Act. (15). MR. S, Bhattacharya for the petitioner submitted before this Court that the petitioner, made several representations and lastly on 5th June, 2000 which was sent in the name of the Divisional Forest Officer, Bankura (North) Division, but unfortunately, all those written representations made by the petitioner remain unanswered from the side of the respondent. If there had been any reply from any of the said representations it could be revealed as to whether the candidature of the petitioner was considered for appointment or not by the respondents. It is fact that such representations do not give any basis to the hope of saving the limitation period in favour of the present petitioner. But besides repeated hammering from the side of the respondent in their affidavit-in-opposition that the application of the present petitioner Before the Tribunal was time-barred, no effort has been made from the side of the respondent to disclose the appointment of the candidates on the part of the respondents ending with issue of appointment letter to the last candidate out of the panel concerned. It is fact that the respondents cannot be compelled to disclose their official process in respect of the recruitment, but if such process is done in improper or arbitrary way it can be interfered with for providing natural justice to the selected candidates in the panel prepared by the respondents themselves. Though the respondents have repeatedly pressed the issue of the petitioners application being time-barred nowhere it was explained as to why they have so claimed. Though the respondents have repeatedly pressed the issue of the petitioners application being time-barred nowhere it was explained as to why they have so claimed. The respondents never disclosed the starting point of such limitation if period and so unless there is any specific date for counting the period of limitation, it cannot be stated that an application is time-barred either under the provision of Limitation Act or under the provision of section 21 of the Administrative Tribunals Act, 1985. (16). BOTH the respondents as well as the learned Tribunal moved on a mistaken concept that the limitation period for the instant application started from date, month or year of the preparation of the panel. But the panel cannot be treated as a document reaching to finality of the order since it requires something more to be done and that is by issuing appointment letter following the said roster. (17). SO, an application may be treated as a time-barred application when the application does not come within the prescribed period from the date when cause of action for such application arises. In the present case, cause of action for the petitioner arose when the last candidate was appointed out of the panel and the petitioner feels aggrieved to be deprived of his right to get appointment ahead of the last candidate so appointed. (18). THE respondent side was given repeated opportunities from this Court for production of all the records in connection with the selection and appointment process. But the respondents failed to produce the said record and ultimately an affidavit has been filed by the respondent No. 3 in the capacity of the Divisional Forest Officer, Bankura (North) Division has stated on oath that the original records concerned were not traceable. He has further stated in the said affidavit on oath that some original appointment letters out of 78 candidates issued in favour of the appointed Forest Guards, could be traced and were presently in his possession and undertook to preserve those records. But besides preservation, those were not produced for the perusal of this Court nor any subsequent affidavit has been filed by way of supplementary affidavit enclosing any of such documents placed as per statement by the said respondent No. 3. (19). But besides preservation, those were not produced for the perusal of this Court nor any subsequent affidavit has been filed by way of supplementary affidavit enclosing any of such documents placed as per statement by the said respondent No. 3. (19). SO, since the respondent side took no steps to ascertain when the final order in the style of last appointment letter to the 78th candidate was issued creating a cause of action in favour of the petitioner and unless that is so done, it is difficult to ascertain whether the petitioner has filed an application before the learned Tribunal beyond the prescribed limitation period. (20). FURTHER, the provision of section 21 of the Administrative Tribunals act, 1985 did not make the provision so rigid and gives some relaxation to the Tribunal in section 21 (3 ). Since it is evident apparently that some injustice has been made to the petitioner in the process of appointment out of the panel, rigidity in the point of limitation should not be made specially when there is no material from the side of the respondent when the limitation period actually started to operate or at least what is the starting point of the period of limitation. (21). SO, we are of the view that the learned Tribunal was not correct in refusing the application of the petitioner in limine, simply on the point that the petition was barred by limitation, since the starting point of limitation has not been ascertained. So, the application before the learned Tribunal is not time-barred. (22). NOW, the second factual position may be consulted. (23). ADMITTEDLY, the petitioner appeared in the interview and the physical test. He was selected for appointment and was placed in the panel prepared from the side of the respondent and was placed at SI. No. 74 in order of merit, Respondents have nowhere denied that they followed the said panel by way of subsequent modification following the 100 point roster and thereafter out of the said list 78 candidates were given appointment on different dates. Incidentally, though the respondents were directed repeatedly to produce the panel or record in relation to the present appointment, but no efforts were taken from the side of the respondent even to produce the original panel itself. Incidentally, though the respondents were directed repeatedly to produce the panel or record in relation to the present appointment, but no efforts were taken from the side of the respondent even to produce the original panel itself. However, copy of such panel has been annexed with the affidavit-in-reply filed by the petitioner against the affidavit-in-opposition filed by the respondents. (24). ON going through the said panel, it is found that it was prepared according to mark received by the candidates, the highest number getter being placed in the top. In the column "category", it is found that the Ex-servicemen, Scheduled Castes, Scheduled Tribes, Unreserved have been stated. (25). IN the model 100 point roster, as described in notification No. 261-TW/pc/mr-103/94, it is found that Scheduled Caste, Scheduled Tribe, backward Class and General Category have been placed in their respective positions within the SI. Nos. 78, 18 Scheduled Caste candidates, 5 Scheduled tribe candidates and 4 Backward Class candidates have been placed for having the benefit of the roster and besides them 51 candidates from the general Category comes under the count. If the Ex-servicemen candidates are kept aside from the panel for preparation of the 100 point roster, 26 candidates belonging to S.C. Category and 10 candidates belonging to S.T. Category, come within the limit of 10 candidates and Ex-servicemen can be included in the General Category in respect of 100-point roster though they may be given with certain percentage of reservation by the employer otherwise. Unfortunately, the 100-point roster list in view of the panel prepared by the respondent is not forthcoming before the Court to observe, how the final panel was prepared by following the 100-point roster. The annexure R-1 to the affidavit-in-reply is a copy of the panel and nowhere it is stated in the heading of the panel that it was prepared by following the 100-point roster. The panel itself does not show that it was prepared in the model of 100-point roster in view of the placement of the S.C. and S.T. candidates and by mentioning no candidate belonging to Backward Class category. Further, it is revealed that it was prepared in accordance with the merit or the marks obtained. If the said panel is/was by following the 100-point roster, 18 S.C. candidates and 5 S.T. candidates could have been placed in the said roster. Further, it is revealed that it was prepared in accordance with the merit or the marks obtained. If the said panel is/was by following the 100-point roster, 18 S.C. candidates and 5 S.T. candidates could have been placed in the said roster. In that case, 58 candidates in the General Category including the Ex-servicemen come within the range of 78 candidates as per the admitted position of vacancies of Forest Guard. In the said list of 58 candidates belonging to General and Unreserved Categories, the petitioner comes at SI. No. 57, In that case, the candidature of the present petitioner does not come within the zone of consideration for appointment if the respondent side had only 78 vacancies to fill up. But since the respondent side has not produced any paper in relation to the present recruitment process, it also cannot be revealed as to what number of vacancies were reported to be filled up in the said recruitment process. It is also not clear as to why the respondent side prepared a panel of 147 candidates when they had only 78 vacancies for fining up the post of Forest Guard. In their affidavit-in-opposition also, the respondent nowhere disclosed the number of vacancies existing when the Divisional Forest Officer, Bankura (North) Division issued notification No. 3434/5m-158 dated 12. 5. 1994. The said Notification has also not been produced to disclose as to what was the number of existing vacancies at the time of such Notification nor any paper is forthcoming from the side of the respondent to inform the actual number of vacancies existing at the time of giving the appointment letters to the 78 candidates. (26). HOWEVER, in consideration to the selection of the petitioner, he had appeared in the interview including 25 Kilometers walking, his candidature for the appointment to the post of Forest Guard should not be ignored. In consideration of the same, the respondent side should consider the candidature of the present petitioner for any vacancy, which was caused or may cause after the posting of 78 candidates. (27). In consideration of the same, the respondent side should consider the candidature of the present petitioner for any vacancy, which was caused or may cause after the posting of 78 candidates. (27). SO, in consideration of the discussions made above, we are of the view that the petitioner should be given with a sympathetic treatment by the respondents for consideration of his appointment as suggested in the preceding paragraphs and there should not be any delay in that respect as the petitioner is growing older in search of an employment. (28). SO, the present application of the petitioner is hereby allowed in the light of the above observation. (29). HOWEVER, we do not pass any order as to costs. Appeal allowed.