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2009 DIGILAW 247 (CAL)

STATE OF WEST BENGAL v. Ashim Chakraborty

2009-03-23

Amit Talukdar, Tapas Kumar Giri

body2009
JUDGMENT 1. ". . . . . . . . . . . we pass this direction to the State Respondent to find ways and means to accommodate the Petitioner by giving him the appointment as per eligibility provided that there is existing vacancy in the concerned department and in the matter of such appointment the age will not be treated as a bar" The aforesaid order passed by the learned West Bengal administrative Tribunal in O. A. No. 1468 of 2002 on 08/02/2007 has been brought under the scanner of Judicial Review at the instance of the State of west Bengal, which feels that in the event the respondent is permitted to be employed, it will open a flood gate to the other candidates similarly situated and have been left out. 2. SHRI Prasenjit Basu, the learned Senior Government Advocate with Shri Bodhayan Bhattacharya, for the State of West Bengal appearing in support of the Application has submitted that the aforesaid order passed by the learned West Bengal Administrative Tribunal is per se an illegal order. According to Shri Basu, learned Senior Government Advocate simply, enlistment of a person's name in the Panel does not offer him an indefeasible right in his favour. 3. ACCORDING to the learned Senior Government Advocate, as the panel has lapsed and there is no vacancy-even though the name of the respondent has been empaneled, the Tribunal ought not to have passed such a direction. 4. HE has submitted that unless the order is set aside it would operate as a serious prejudice to the Petitioners and interference by this Court is. necessitated. As a part of his submission, the learned Senior Government advocate referred to the decision of the Supreme Court in S. S. Balu and Anr. v. State of Kerala and Ors. , (2009)2 SCC 479 in support of his contention that simply, inclusion in the rank list gives no right to appointment and the government is always free to appoint or not to fill up any vacancy. 5. REFERRING to the decision of the Apex Court in Food Corpn. of india and Ors. v. Bhanu Lodh and Ors. , (2005)3 SCC 618 Shri Basu submitted that merely because vacancies have been notified; the State is not obligated to fill up all the vacancies. 5. REFERRING to the decision of the Apex Court in Food Corpn. of india and Ors. v. Bhanu Lodh and Ors. , (2005)3 SCC 618 Shri Basu submitted that merely because vacancies have been notified; the State is not obligated to fill up all the vacancies. The choice is always with the State to either fill up any of the vacancy or not at all. 6. LEARNED Senior Government Advocate then referred to the constitution Bench decision in Shankarsan Dash v. Union of India reported in (1991 )3 SCC 47 to show that the respondent never had any indefeasible right for an appointment simply because his name has been empanelled. Senior Government Advocate further referred to the decision of the Supreme Court in State of Bihar and Ors. v. Amrendra Kumar Mishra, (2006)12 SCC 561 : (2007)1 WBLR (SC) 24 to show that once the life of the panel has lapsed no appointment can be given. 7. WRAPPING up his submission, learned Senior Government advocate on the strength of the Constitution Bench decision in Shankarsan dash v. Union of India (supra) and the decisions of the Supreme Court in s. S. Balu and Anr. v. State of Kerala and Ors. (supra), Food Corpn. Of India and Ors. v. Bhanu Lodh and Ors (supra) and State of Bihar and Ors. v. Ainrendra kumar Mishra (supra) submitted that the order passed by the learned tribunal is absolutely an illegal order. PER CONTRA : 8. SHRI Dibyendu Narayan Roy appearing with Ms. Munmun Tewari for the respondent has disputed all the submissions made on behalf of the learned Senior Government Advocate for the Petitioners. Shri Roy has submitted that the Panel was kept alive for eight years. Obviously, according to Shri Roy, this gave a rise to a scope of legitimate expectation as the respondent was nurturing a belief that he would be provided with a job in the Government and he did not opt for any other avocation. According to Shri Roy, all these years when the Panel was kept alive, he was under a sense of suspended animation. 9. DURING the life time of the Panel, Shri Roy has submitted that appointment has already been given and the Panel has been kept open. Shri Roy has relied on a Single Bench decision of this Court in Shri deb Narayan Chatterjee and Ors. v. The Union of India and Ors. 9. DURING the life time of the Panel, Shri Roy has submitted that appointment has already been given and the Panel has been kept open. Shri Roy has relied on a Single Bench decision of this Court in Shri deb Narayan Chatterjee and Ors. v. The Union of India and Ors. , (1997)2 Cal hn 435. 10. HOWEVER, in view of the finding that we would arrive for the reasons discussed in the foregoing paragraphs, we do not feel inclined to advert to the said decision. After having heard the submissions made by the learned Senior government Advocate in support of the Application and Shri Roy for the respondent, we would be required to once again advert to the order impugned, which has formed the subject matter for discussion in this application, as passed by the learned Tribunal. 11. IT appears that this was the third trip of the respondent before the Tribunal. Earlier on two occasions the attempt proved abortive as directions were passed and in a recycled process same exercise was repeated again. The respondent was persuaded to approach the Tribunal. 12. FORTUNE this time smiled on the fate of the respondent which resulted in the impugned order. We have been asked to consider the efficacy of the same in exercise of our Power of Judicial Review at the instance of the learned senior Government Advocate. 13. WE find that the respondent has been pursuing his remedy since 1990. The Panel was formed in 16/11/1990. Suddenly, the Petitioner No. 2 by his order dated 08/01/1999 (Page-29 of this Application) cancelled the panel. 14. IT should be even at the cost of repetition kept in mind that the panel subsisted for a pretty length of time i. e. more than eight years. Without any rhyme-or-reason suddenly it was brought to a screeching halt. Now, if we see, it also remains undisputed that during the life time of the said Panel it was kept open but on the plea that since there was no vacancy and the list had reached a saturation level as felt by the learned senior Government Advocate-the Petitioner No. 2 put an end to the life of the Panel by his order dated 08/11/1999. 15. WE will look into the decisions of the Apex Court in the light of the submissions made by the learned Senior Government Advocate. 16. 15. WE will look into the decisions of the Apex Court in the light of the submissions made by the learned Senior Government Advocate. 16. FIRSTLY, we look into the decision of S. S. Balu and Anr. v. State of kerala and Ors. (supra) The said decision lays down the proposition that simply a person, who is figured in the Select List, does not acquire the legal right to be appointed only on that ground. It has been held in the said decision that the State as an employer has the right to fill up the post or not to fill it up at all. But, however, if we see the said decision closely, we find Their lordships have also held that unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed in the exercise, the person concerned will have no legal right for obtaining a writ. In the present case, we find that the respondent. No. 2 has definitely acted in a very arbitrary fashion. The Panel was kept alive for a long length of time and suddenly without any justification the same was put to an end. This action, on the part of the respondent No. 2, cannot be said to be either a transparent exercise or a reasonable action. 17. NOW, we deal with the citation of Food Corpn. of India and ors. v. Bhanu Lodh and Ors. (supra) referred to by the learned senior Government advocate for the State of West Bengal. The Supreme Court in the said decision also found that merely the vacancies being notified it will not obligate the State to fill up the same unless there is some provision contrary to the rules applicable. The Supreme Court in the said decision has also found that such decision not to fill up the vacancy has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. 18. IN the instant case, we find, as discussed earlier that the Panel, which was kept alive for a pretty length of time was acted upon and appointments were given from the same. 18. IN the instant case, we find, as discussed earlier that the Panel, which was kept alive for a pretty length of time was acted upon and appointments were given from the same. Without any plausible reason simply anticipating that there will be no vacancy in the future the Panel was put to an end after eight years by an executive fiat of respondent No. 2, in our opinion, the action of respondent No. 2 cannot be said to be bona fide as it does not pass the test of reasonableness. The Constitution Bench in Shankarshan Dash v. Union of India (supra) has also found that the State is under no legal duty to fill up all or any of the vacancies. The Constitution Bench in Shankarshan Dash v. Union of India (supra) proceeded further and was of the view that however, the same would not give any licence to the State to act in an arbitrary manner the decision not to fill up the vacancies has to be taken bona fide for appropriate reason. 19. AS we have found that the entire action of the respondent No. 2 far from being bona fide was a result of complete arbitrary action. 20. LASTLY, the decision, referred to by the learned Senior Government advocate in State of Bihar and Ors. v. Amrendra Kumar Mishra (supra) is concerned, we are of the view that the said decision is absolutely distinguishable in the given fact situation of the present case. The Supreme Court in State of Bihar and Ors. v. Amrendra Kumar mishra (supra) was dealing with a case where Letter of Appointment was sent to the candidate but he did not accept the job within the time frame and later on came with his claim, which the Supreme Court turned down. As such, in our respectful view, the Application of ratio of the decision of the Supreme Court in State of Bihar and Ors. v. Amrendra Kumar Mishra (supra), as shown by the learned Senior Government Advocate would not be applicable. 21. IN our humble view, the decision of S. S. Balu and Anr. v. State of kerala and Ors. (supra) and the Constitution Bench decision-Shankarshan dash v. Union of India (supra) are distinguishable in the fact situation of the present case for the reasons which have been discussed by us hereinabove. 22. 21. IN our humble view, the decision of S. S. Balu and Anr. v. State of kerala and Ors. (supra) and the Constitution Bench decision-Shankarshan dash v. Union of India (supra) are distinguishable in the fact situation of the present case for the reasons which have been discussed by us hereinabove. 22. REVERTING to the argument of Shri Roy that the respondent nurtured a fervent hope for all these years that he may have a legitimate scope for appointment and he did not choose to apply elsewhere, we feel, shri Roy has a point. Initially upon hearing learned Senior Government Advocate and shri Roy for the respondent we reserved our Judgment. At the time of writing the same we found it would be necessary for us to look into the Rules pursuant to which the Panel was set up. 23. ACCORDINGLY, we had put the matter on Board afresh. 24. WE requested learned Senior Government Advocate to tell us about the Rules under which the said Panel was prepared. Learned Senior Government Advocate was prompt in responding. He soon came back with the necessary feed back whereupon, as the Matter was put on Board afresh, we chose to hear both Shri Basu, learned Senior government Advocate for the State of West Bengal and Shri Roy for the respondent. 25. LEARNED Senior Government Advocate on the basis of a communication by the Additional Commissioner of Commercial Taxes, government of West Bengal submitted before us there was no specific provision of law under which the Panel was prepared. 26. IMMEDIATELY we can safely come to the conclusion that in the absence of any Rule in terms of which the Panel was prepared and without any suggestion with regard to its life span the grinding halt put to it by the petitioner No. 2 by its diktat, is nothing but simply an executive arbitrariness which cannot pass the test of Judicial Review. It will now be required to once again revert to the argument of shri Roy on the scope of legitimate expectation. 27. IT is no doubt, true that since 16. 11. 90 when the Panel was prepared the respondent obviously had a legitimate expectation till 08. 1. 99 when his dreams were shattered by the order of cancellation of the same by Petitioner No. 2 had entertained a legitimate expectation that he would one day be selected. 27. IT is no doubt, true that since 16. 11. 90 when the Panel was prepared the respondent obviously had a legitimate expectation till 08. 1. 99 when his dreams were shattered by the order of cancellation of the same by Petitioner No. 2 had entertained a legitimate expectation that he would one day be selected. It is true that he did not have indefeasible right to employment simply on account of his empanelment. But, in this particular fact situation of the case we find for such length of time the Panel was kept alive which by itself gave a new dimension to the hope of the Respondent. 28. SINCE the entire conspectus of our decision making process would be centered around the argument of Shri Roy on the question of legitimate expectation and we feel that the same is of primordial value, we would wish to advert to the same in some details. A person, who nurtures a hope on the plinth of the doctrine of legitimate expectation-at the first instance must satisfy that there is a foundation for the same in a way that he has a locus over such a claim. If a denial of legitimate expectation in a given case amounts to denial of right which is guaranteed or is arbitrary, discriminatory and either biased or unfair resulting it from gross abuse of Power-the same can be tested on the anvil of Judicial Review. 29. THE Court, would, at once be entitled to lift the veil and see whether the decision is violative of the aforesaid principles warranting interference. Of course, such exercise would very much depend on the facts of the particular case. We feel emboldened to refer to the decision of the Supreme Court in Punjab Communications Ltd. v. Union of India and Ors. reported in (1999)4 SCC 727 where their Lordships in Paragraph 38 has held : "the more important aspect, in our opinion, is whether the decision-maker can sustain the change in the policy by resort to wednesbury principles of rationality or whether the Court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change. In the latter case the Court would obviously be able to go into the proportionality of the change in the policy. " 30. IT has been further held by their Lordships ". . . . . In the latter case the Court would obviously be able to go into the proportionality of the change in the policy. " 30. IT has been further held by their Lordships ". . . . . . that a change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. . . . . . . . . . " It has been further held by Supreme Court in the said decision ". . . . . . . . . . . . it is therefore, clear that the choice of the policy is for the decision-maker and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. " 31. IT would be of abiding interest to refer to the decision of the supreme Court in Navjyoti Coop. Group Housing Society and Ors. v. Union of India and Ors. , (1992)4 SCC 477 wherein Paragraph 16 it has been held : "it may be indicated here that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. . . . . . . . . . . . . . . " 32. ALSO in this regard we would be tempted to refer to the other two decisions of the Hon'ble Supreme Court in Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries, (1993)1 SCC 71 and Official liquidator v. Dayanand and Ors. , (2008)10 SCC 1 on the self-same point. In our humble view, as the entire decision making process is tinged with arbitrariness and is not a product of fair play; the process of the decision making and not the decision itself can attract the magnet of Judicial review. There was no life span indicated in the constitution of the Panel It is not simply Tweedledum and Tweedledee that it would be allowed to exist for a protracted long period of eight years. Suddenly, one fine morning the petitioner No. 2 feels there is enough of it and on the basis of a surmise that there may not be vacancies available, scuttles the entire Panel. 33. Suddenly, one fine morning the petitioner No. 2 feels there is enough of it and on the basis of a surmise that there may not be vacancies available, scuttles the entire Panel. 33. NEITHER sympathy nor sentiment has played in our mind while considering the scope of our Judicial Review over the order passed by the learned Tribunal, We have come to the conclusion that the entire exercise undergone by the Petitioner No. 2 in putting down an abrupt curtain on the life of the Panel which existed for more than eight years definitely suffers from the vice of lack of transparency. It is in colourable exercise of power the Petitioner No. 2 has come to such a decision. 34. WE do not feel persuaded by the submission of the learned senior Government Advocate that if the case of the respondent is considered then the other persons, who have been left out, would also join in the fray and it would result in a chaos. Justice is always above Law. Yet, it has to be administered in accordance with Law. While imbibed by the former and being chastised by the later-we also feel that if Justice is lost in the black alleys of Law then what purpose Justice ? 35. IT is not always what is sauce for the goose is also sauce for the gander ; but, should be always just desert. 36. IN our opinion, it would be Just Justice if the order passed by the learned Tribunal is kept in its virgin height. Passion for Justice and in our endeavor to keep the lamp of justice bright and glowing we have arrived at our finding. But it was never justice as what we felt but what is required to be according to the constitution. The said pursuit drove us to the finding impugned that the verdict returned by the learned Tribunal should remain unaffected. 37. AS we feel the learned Tribunal has acted in a correct fashion, there is no scope for interference with the order dated 08. 2. 2007 passed by the learned West Bengal Administrative Tribunal in O. A. No. 1468 of 2002 and we direct that respondent herein be given appointment within three months. 38. NO order as to costs.