Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 381 (CAL)

Mohan Kumar Haider v. STATE OF WEST BENGAL

2010-04-09

PRANAB KUMAR CHATTOPADHYAY, PRANAB KUMAR DEB

body2010
JUDGMENT: 1. THIS writ petition has been filed assailing the judgment and order dated 8th February, 2010 passed by the learned West Bengal Administrative Tribunal in Case No. O.A. 754 of 2009 whereby and where under the said learned Tribunal dismissed the application filed by the petitioner herein on merits. 2. GOING through the records, we find that the petitioner herein was selected for appointment to the post of Excise Constable in the year 1995 but ultimately the said petitioner was not appointed to the post due to the pendency of a criminal case against the said petitioner. There is no dispute that the respondent authorities refused to appoint the petitioner on the basis of the police verification report which was admittedly, not favourable due to the pendency of a criminal case against the said petitioner. Ultimately, the petitioner was exonerated by the competent Criminal Court in respect of the said criminal case and thereafter the said petitioner approached the competent authority for appointing him to the post in question pursuant to the earlier selection. 3. SINCE the aforesaid prayer of the petitioner for appointment was not considered by the authority for a considerable time, an application was filed by the said petitioner before the learned Tribunal in the year 2006 which was numbered as O.A. 1468 of 2006. 4. THE learned Tribunal by the order dated 15th June, 2006 finally disposed of the said earlier application by directing the authority concerned to consider the case of the petitioner. THE concerned authority, namely, the Superintendent of Excise, Nadia thereafter, passed an order on 7th January, 2009 rejecting the prayer of the petitioner for appointment on the ground that the said petitioner had crossed the age bar. Challenging the aforesaid decision, the petitioner filed another application before the learned Tribunal which was disposed of by the impugned judgment and order dated 8th February, 2010. Mr. Subir Sanyal, learned Counsel representing the petitioner submits that the learned Tribunal erroneously decided several other issues which CHN 2010(2) 3/21 were never raised before the said learned Tribunal for consideration. The learned Advocate of the State-respondents however, disputed the same. 5. Mr. Subir Sanyal, learned Counsel representing the petitioner submits that the learned Tribunal erroneously decided several other issues which CHN 2010(2) 3/21 were never raised before the said learned Tribunal for consideration. The learned Advocate of the State-respondents however, disputed the same. 5. GOING through the impugned judgment and order passed by the learned Tribunal, we find that the petitioner herein approached the learned Tribunal challenging the order of the Superintendent of Excise, Nadia passed on 7th January, 2009 rejecting the prayer of the said petitioner for appointment only on the ground of crossing the age bar. 6. THEREFORE, there was no other issue before the learned Tribunal for adjudication apart from the aforesaid issue whether the appointment of the petitioner could be rejected by the Superintendent of Excise, Nadia on the ground of crossing the age bar. Mr. Sanyal, learned Counsel referred to and relied upon a decision of the Supreme Court in the case of Secy., Deptt. of Home Secy., A.P. and Ors. vs. B. Chinnam Naidu, reported in 2005(2) SCC 746 , wherein the Hon'ble Supreme Court specifically held that issues in question should only be considered. 7. THERE is no doubt that any Court of Law or judicial forum is supposed to decide the issues which are specifically raised before it and cannot decide any other issue which was not raised and/or argued by the parties. 8. FURTHERMORE, there is no dispute that the petitioner herein was duly selected for appointment to the post of Excise Constable and the appointment was denied by the petitioner only on the basis of the police report wherein it was mentioned that the petitioner was implicated in a criminal case. Nobody can suffer any prejudice due to the pendency of a criminal case since the principle of presumption of innocence Cannot be ignored. It is well-settled that every person Should be presumed to be innocent until the contrary is proved. In the case of Harendra Sarkar vs. State of Assam, reported in 2008(9) SCC 204 , (para 51), Hon'ble Supreme Court observed: "51. Presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any situation." 9. FOLLOWING the aforesaid judgment, the Division Bench of this Court also held in the case of Abhijit Bhattacharjee vs. State of West Bengal and Ors., reporte4 in 2009(4) CLT 63 (HC), as hereunder : "26. Presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any situation." 9. FOLLOWING the aforesaid judgment, the Division Bench of this Court also held in the case of Abhijit Bhattacharjee vs. State of West Bengal and Ors., reporte4 in 2009(4) CLT 63 (HC), as hereunder : "26. FOLLOWING the principle of presumption of innocence the appellant should have been presumed to be innocent as every person should be presumed to be innocent until the contrary is proved. **** *** **** ****" 10. FOR the aforementioned reasons, the petitioner should have been presumed to be innocent during the pendency of the criminal case by the concerned authority. Furthermore, the petitioner cannot suffer any prejudice even after being exonerated by the competent Criminal Court in relation to the criminal case. The respondents authorities should have appreciated that mere registration of a criminal case cannot attach any stigma in respect of any individual. The respondent authorities, therefore, should not have refused to appoint the petitioner even after being selected to the post of Excise Constable only on the ground of pendency of a criminal case against him since pendency of a criminal case cannot make a candidate unfit for Government service and can have also no adverse effect on the service prospect of an individual. 11. THE petitioner crossed the age bar due to the erroneous decision of the respondent authorities and therefore, the respondent authorities cannot take advantage of its own wrong. 12. FOR the aforesaid reasons, we are unable to approve the decision of the Superintendent of Excise, Nadia and therefore, quash the order dated 7th January, 2009 passed by the Superintendent of Excise, Nadia in respect of the petitioner herein. For the reasons discussed hereinbefore, the impugned judgment and order passed by the learned Tribunal also cannot be sustained and the same are accordingly set aside. 13. THE respondent authorities particularly the respondent Nos. 2, 3 and 4 are directed to issue appropriate order for appointment of the petitioner to the post of Excise Constable on the basis of the recommendation of the Recruitment Committee without any further delay but positively within a period of three weeks from the date of communication of this order. 14. WITH the aforesaid directions, this writ petition stands disposed of. There will be however, no order as to costs. 15. 14. WITH the aforesaid directions, this writ petition stands disposed of. There will be however, no order as to costs. 15. LET urgent xerox certified copy of this order, if applied for, be given to the petitioner as early as possible.