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2009 DIGILAW 576 (CAL)

Ashoke Kumar Mistry v. STATE OF WEST BENGAL

2009-08-03

KALYAN JYOTI SENGUPTA, Md.Abdul Ghani

body2009
JUDGMENT 1. THE judgment and order of the learned Single Judge dated 28th July, 2000 is sought to be impugned in this appeal. By the judgment and order impugned, the learned Trial Judge has been pleased to set aside the speaking order of the D.I. dated 30th April, 1999. 2. WE are of the view that the appeal must be dismissed as we feel that no interference of the judgment and order of the learned Trial Judge is called for, for the facts and circumstances and the reasons stated hereunder: The selection process was initiated for filling up of a post of Group-D (Peon) in the school Panchanandapur Sukla High School, Post-Panchanandapur, District-Malda. In the year 1995, the appellant/writ petitioner Ashok Kumar Mistry and the respondent No. 5, Pradip Kumar Sarkar, along with other candidates participated in the selection process. The panel was prepared by the selection committee and the same, after having been examined by the then managing committee of the school, was sent to the D.I. for approval who granted approval in or about 21st January, 1997. In the said panel, the position of the appellant before us was second; whereas the position of the 5th respondent was first. Though the panel was approved by the D.I., but no appointment was given by the school authority under the instruction of the D.I. on the ground that there has been no settlement of the dues of the deceased father of the respondent No. 4. 3. ON the aforesaid background, Pradip filed a writ petition challenging the instruction of the D.I. for not giving appointment in his favour. The said writ petition was heard and none appeared for the respondents. Hon'ble Justice Ruma Pal (as Lordship then was) was pleased to observe that the embargo on the issuance of appointment letter put by the D.I. was wholly arbitrary. The question of giving appointment could have no relation with the settlement of the pension paper of the erstwhile deceased employee. As such, instruction of the D.I. not to give appointment was set aside and quashed. It appears that in the writ petition filed by Pradip, the appellant before us was not made a party and as such, he preferred an appeal being M.A.T. No. 2767 of 1998 against the order of Hon'ble Justice Ruma Pal (as Lordship then was). 4. As such, instruction of the D.I. not to give appointment was set aside and quashed. It appears that in the writ petition filed by Pradip, the appellant before us was not made a party and as such, he preferred an appeal being M.A.T. No. 2767 of 1998 against the order of Hon'ble Justice Ruma Pal (as Lordship then was). 4. FROM the records we do not find that any order of stay was granted against the order passed by Hon'ble Justice Pal (as Lordship then was) nor we could find any trace regarding the fate of the said appeal. Mr. Bhattacharyya fairly submits that neither his client nor he has any knowledge or information as to whether the said appeal has been disposed of by this time or not. Under this circumstance, we feel that the order of Justice Pal (as Lordship then was) has reached its finality. Indeed there had been a contempt proceedings subsequently for non-compliance of the order and an undertaking was given that Pradip should be given appointment. Thereafter, we find Ashok, the appellant before us had filed a writ petition being W.P. No. 8857 (W) of 1997 praying for direction not to give effect and further effect to the panel prepared by the D.I. of Schools, Malda and further prayed for cancellation of the said panel. In that writ petition, this time, Pradip was excluded, as it was done previously by Pradip, excluding Ashok. 5. WE do not know what statements and averments a have been made in the said writ petition but we can presume, unless it is rebutted by producing a copy of the said writ petition, which has not been done, that the order of Hon'ble Justice Ruma Pal (as Lordship then was), has become final. 6. HOWEVER, one learned Single Judge, Hon'ble Justice G.R. Bhattacharyya (as His Lordship then was) was pleased to pass an order on 2nd July, 1997, whereby and whereunder His Lordship was pleased to direct the D.I. to consider all the aspects of the matter in accordance with law. In the meantime, there has been an appointment in favour of Pradip. So, another writ petition was filed by the appellant before us being W.P. No. 1603(W) of 1998 and the same was dismissed by His Lordship the Hon'ble Justice N.K. Mitra (as His Lordship then was) holding that the petitioner has no legal right. In the meantime, there has been an appointment in favour of Pradip. So, another writ petition was filed by the appellant before us being W.P. No. 1603(W) of 1998 and the same was dismissed by His Lordship the Hon'ble Justice N.K. Mitra (as His Lordship then was) holding that the petitioner has no legal right. It is reported that an appeal being M.A.T. No. 1389 of 1998 was preferred against the said order. Again, Mr. Bhattacharyya submits that he has no instruction regarding the fate of the appeal. However, in any event, there could not be any stay of the said order as no interim order was passed in this matter, at least nothing is before us nor was before the learned Trial Judge. 7. THEREAFTER on 30th April, 1999, pursuant to the order of Hon'ble Justice Bhattacharyya (as His Lordship then was), the D.I. took up the matter and found that everything was irregular, right from the stage of sponsoring of the names and not giving permission etc. So, he set aside everything. It is pertinent to mention that after dismissal of the writ petition by Hon'ble Justice N.K. Mitra (as His Lordship then was), a wrong communication was made by the learned Lawyer on behalf of Pradip stating that His Lordship has been pleased to direct to issue letter of appointment. On mistaken communication, order of appointment was issued in favour of Pradip in past. However, subsequently it was recalled on discovery of mistaken. 8. PRADIP thereafter challenged the order dated 30th April, 1999 on various grounds and the learned Trial Judge allowed the prayer and set aside the order of the D.I. challenging the aforesaid order, the present appeal has been filed. Mr. P.S. Bhattacharyya, learned Counsel appearing or the appellant submits that it is true that the order of Hon'ble Justice Ruma Pal (as Lordship then was) has not been set aside by this Court and it is also true that the order of Hon'ble Justice N.K. Mitra (as His Lordship then was) also has some impact in this matter as His Lordship held that the petitioner had no legal right. He submits that the issue before Hon'ble Justice N.K. Mitra (as His Lordship then was) was completely different from the issue involved herein and also the issue involved before Hon'ble Justice G.R. Bhattacharyya (as His Lordship then was). He submits that the issue before Hon'ble Justice N.K. Mitra (as His Lordship then was) was completely different from the issue involved herein and also the issue involved before Hon'ble Justice G.R. Bhattacharyya (as His Lordship then was). He further submits that the challenge made in the writ petition filed before Hon'ble Justice G.R. Bhattacharyya (as His Lordship then was) was against the selection process and also for cancellation of the panel, but in the writ petition filed before Hon'ble Justice N.K. Mitra (as His Lordship then was), relief was prayed for setting aside of the letter of appointment. Therefore, it cannot be said that there has been identical issue. 9. HE submits that the D.I. has examined the matter pursuant to judicial order against which no appeal has been preferred and everything has been examined and it has been found that everything has been done de hors the recruitment rules. According to him, any order or action taken contrary to law, is null and void. Therefore, the learned Trial Judge has totally ignored the aforesaid aspect of the matter and has wrongly set aside the order of the D.I. Indeed, pursuant to the said order, fresh selection process was initiated and the respondent Pradip participated in the same and he stood second but effect thereof could not be given. HE, therefore, concludes that when the subsequent panel has been formed pursuant to the order of this Court, the D.I. should be allowed to proceed, allowing the appeal. 10. MR. Tapan Kumar Mukherjee, learned Counsel appearing for the respondent Pradip, submits that his client has been given appointment after the order of Hon'ble Justice Ruma Pal (as Lordship then was) and there has been no option for the school authority, or for that matter, for the D.I., but to accept the order of Justice Ruma Pal (as Lordship then was). Moreover, all points were agitated by the appellant before Hon'ble Justice N.K. Mitra in the writ petition and the same had been dismissed with specific finding that the petitioner. Ashok had no legal right. The D.I. cannot negate and frustrate valid and subsisting order of this Court. Moreover, all points were agitated by the appellant before Hon'ble Justice N.K. Mitra in the writ petition and the same had been dismissed with specific finding that the petitioner. Ashok had no legal right. The D.I. cannot negate and frustrate valid and subsisting order of this Court. When the court has accepted everything to be lawful by necessary implication, not only by one but by two Courts and when appeals against those orders have not been pressed, it must be presumed that the action taken earlier by the D.I. as well as the school authority, regarding formation of first panel is quite justified. Significantly, the appellant Ashok participated in the first selection process and neither the managing committee nor the D.I. find any flaw in the selection process. Only condition was imposed that appointment could not be given because the pension paper of the deceased father of the respondent No. 4 was not finalised. All points have been or deemed to have been tested and adjudicated. We have considered all the aspects of the matter and narrated the entire facts as above. Therefore, point which has fallen for consideration in this case is whether the learned Trial Judge has rightly set aside the order of the D.I. dated 30th April, 1999 or not. 11. WE find that the order of Hon'ble Justice Ruma Pal (as Lordship then was) has reached its finality as in that writ petition it has been held by necessary implication that selection process is lawful and there was no embargo to give appointment. Appeal was sought to be preferred but the same has neither been pressed nor prosecuted otherwise. In the writ petition, on which the order of Hon'ble Justice Ruma Pal (as Lordship then was), the State respondents could have taken all the points regarding validity and legality of the selection process but neither the school authority nor the State took such point. 12. In the writ petition, on which the order of Hon'ble Justice Ruma Pal (as Lordship then was), the State respondents could have taken all the points regarding validity and legality of the selection process but neither the school authority nor the State took such point. 12. THEREFORE, the D.I. by the impugned order dated 30th April, 1999 cannot upset such finding and decision nor can cancel, either indirectly or directly, the earlier panel prepared, formed and approved by the earlier D.I. Moreover, the order of Hon'ble Justice N.K. Mitra (as His Lordship then was) dated 6th April, 1998 has also strong bearing in this matter as His Lordship has been pleased to hold that the writ petitioner (appellant before us) has no legal right to ask for cancellation and/or quashing of the selection process. Mr. Bhattacharyya submits that the scope of the writ petition filed before Hon'ble Justice N.K. Mitra (as His Lordship then was) is different from that of one filed before Hon'ble Justice G.R. Bhattacharyya (as His Lordship then was). A copy of the writ petition dealt with by Hon'ble Justice N.K. Mitra has been placed before us by Mr. Bhattacharyya, and we have gone through the grounds therein and we find that all those grounds are directed against the selection process, right from the method of sponsoring and also choosing of the candidates. Although letter of appointment was asked to be set aside but when the issue of legality and validity of the selection process was raised in the said writ petition, and His Lordship dismissed the same, it cannot be decided at the instance of the writ petitioner, Ashok. Therefore, his right stood extinguished. 13. CURIOUSLY, this order of Hon'ble Justice N.K. Mitra (as His Lordship then was), though obtained long before the order passed by the D.I. on 30th April, 1999, was not perhaps placed. Even if it is not placed, effect of the said order cannot be diluted. Pronouncements of judicial authorities cannot be rendered nugatory by the D.I., being executive authority by the impugned order dated 30th April, 1999. We have seen, as also examined by the learned Trial Judge, the scope and purport of Hon'ble Justice G.R. Bhattacharyya (as His Lordship then was), directing the D.I. to consider all the aspects of the matter in accordance with law. We have seen, as also examined by the learned Trial Judge, the scope and purport of Hon'ble Justice G.R. Bhattacharyya (as His Lordship then was), directing the D.I. to consider all the aspects of the matter in accordance with law. But that does not mean that valid pronouncement or the order passed earlier or subsequent thereto, should be ignored as His Lordship has not held anywhere that the order of Hon'ble Justice Ruma Pal (as Lordship then was) is a nullity or cannot have any binding effect upon the parties. 14. FOR the foregoing reasons, we are unable to accept Mr. Bhattacharyya's submission. Moreover, there is one significant fact, as has been pointed out by Mr. Mukherjee, that the order has been accepted in contempt jurisdiction. True that this appointment is also without prejudice as by the order passed in this appeal, it has been made clear that fresh appointment process should abide by the result of the appeal. Under the circumstances, we are of the view that the appeal does not deserve any merit and hence, the same is dismissed; however, without any order as to costs. 15. THE selection process initiated subsequently is also set aside. However, we feel that the appellant should be given a chance to participate in the selection process for future vacancies of the said school for any category of Group-D staff condoning his age bar and irrespective of his name being sponsored by the employment exchange provided he makes suitable application to participate in the selection process. 16. IN view of dismissal of the appeal, we now direct the school authority and the D.I. to take steps, in accordance with law. Xerox certified copy of this order, if applied for, be supplied to the parties.