Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 547 (CAL)

Shivraj Biswas v. UNION OF INDIA

2010-05-18

ASHIM KUMAR BANERJEE, PRASENJIT MANDAL

body2010
JUDGMENT: ASHIM KUMAR BANERJEE.J: Two applicants namely Shivraj Biswas and Anima Kumari approached the Central Administrative Tribunal for a mandatory order as against the Union of India particularly the Railways to issue them Letter of Appointment as Gangmen with consequential benefits. On or about May 5, 1998, Railway Board published an advertisement inviting application for the post of Gang Man at Chakradharpur, South Eastern Railway. The applicants claimed that they appeared before the concerned authorities for physical test as per their call letter having Roll Nos.10312 and 40337 respectively. The result was duly published in newspaper where they found that they were declared selected. They were expecting Call Letters and after waiting for a considerable period of time for the Letters of Appointment, they approached the Tribunal. They also alleged that two persons came to the house of Anima Kumari and demanded money in exchange of Call Letters. They disclosed their identity as Sanjiva Rao and Chandan. When Anima expressed her inability to make payment she was not favoured with Letter of Appointment. On inquiry the applicants came to know that files went missing which caused the delay. The respondents filed Affidavit-in-Opposition contesting the claim. According to them, vide notification dated May 5, 1998 the Railway intended to fill up five hundred one posts of Gangman which was subsequently increased to one thousand sixty one posts and ultimately it went up to one thousand eight hundred thirty seven against the existing and anticipated vacancies. A panel was published on May 23, 1999 containing names of four hundred eighty two candidates wherein erroneously the Roll Nos. 10312 and 40337 were printed along with other mistaken roll numbers. Before correction slip could be issued the Chief Vigilance Officer, South Eastern Railway seized all the records pertaining to such appointment after receipt of complaint about irregularities. That panel ultimately expired by efflux of time and as such, no appointment could be given from the said panel. It was further contended that Shivraj never applied for the post and his name was never in the panel. With regard to the allegation of bribery the Railways contended that there was no person by the name of Chandan. The other official Sanjiva Rao Office Superintendent (Recruitment) had already retired much prior to the subject selection process. Considering such facts the Tribunal did not interfere with the selection process. With regard to the allegation of bribery the Railways contended that there was no person by the name of Chandan. The other official Sanjiva Rao Office Superintendent (Recruitment) had already retired much prior to the subject selection process. Considering such facts the Tribunal did not interfere with the selection process. The Tribunal held that the applicants did not acquire any “indefeasible right” against the existing vacancies. The Tribunal observed that even if the applicants’ contention was accepted that they were selected in the written test there was no justification to interfere with the respondent’s decision not to appoint them for the post. Being aggrieved by the said order of the Tribunal, the applicants approached us by filing WPCT 31, 2005. Vide judgment and order dated January 29, 2009 we disposed of the application. We observed that there had been irregularity in the selection process. Vigilance Department of the Railways seized some of the documents pertaining to the selection process. All these disputed questions could not be gone into by the writ Court. Hence, the Tribunal refused to interfere and the High Court also could not find any scope of interference. The relevant extract of our order is quoted below:- “Assuming Mr. Deb is correct to the extent that the Railways were not in a position to demonstrate that there had been forgery such disputed questions cannot be gone into in a Writ Court. From the records it appears that there had been irregularity in the selection process and the Vigilance Department of the Railways seized some of the documents pertaining to the selection process. All these disputed questions cannot be gone into by the Writ Court. The Tribunal refused to interfere. We do not find any scope of interference on that score. If the petitioners are so advised, they may approach the Civil Court by availing benefit of Section 14 of the Limitation Act, if approached within four weeks from date. We however, make it clear that in case Civil Court is approached the finding of the Tribunal would not operate as resjudicata.” The application for review has now been filed on the ground that the order was erroneous in view of Section 14 and 28 of the Administrative Tribunals Act, 1985. We however, make it clear that in case Civil Court is approached the finding of the Tribunal would not operate as resjudicata.” The application for review has now been filed on the ground that the order was erroneous in view of Section 14 and 28 of the Administrative Tribunals Act, 1985. Section 14 empowers the Tribunal to go into the dispute relating to recruitment in Government establishment which includes Railways whereas Section 28 excludes jurisdiction of the Civil Court from dealing with the disputes triable by the Tribunal under the said Act. We have heard Mr. Sunrhid Deb, learned counsel for the review applicants and Mr. Durgadas Purkayastha, learned counsel for the Railways. We have carefully perused the provisions of the said Act of 1985. We admit, we overlooked the said provisions through inadvertence. We, however, feel that the situation would not change. Two applicants claimed that they were selected for the post and they came to know of the result from the newspaper. The Railway says that those two roll numbers were mistakenly printed along with others. One of the applicants being the applicant no.1 never applied for the post and the roll number claimed by the applicant no.1 belonged to one Gandhi Prasad. The selection process was vitiated by irregularity. The Chief Vigilance Officer of the Railways seized the recruitment records. In this backdrop, the Tribunal refused to interfere, so did we. Assuming the result of the written test as published in newspaper would show that the applicants were successful, that did not give any indefeasible right in favour of the applicants to claim appointment, more so, when the Railways decided not to appoint anyone from the said panel. In this regard we may note that the Tribunal relied on a five bench decision of the Apex Court reported in 1991, Volume-III, Supreme Court Cases, Page-47 (Shankarsan Dash -VS- Union of India). The Apex Court therein observed, “even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies.” After we had refused to interfere we observed that the applicants would be at liberty to approach the Civil Court as the Writ Court would not be in a position to go into the disputed questions of fact. The applicants relied upon the decision reported in 2009, Volume-VIII, Supreme Court Cases, Page-339 (National Thermal Power Corporation Limited -VS- Mahesh Dutta and Others) wherein the Apex Court observed, “there is no law that the High Court is denied or debarred from entering into a disputed question of fact.” This observation was made by the Apex Court after considering the subject dispute and after being satisfied that no oral evidence was required to be taken. In the case before us the fact whether the applicant no.1 had applied for the said post or that two Railway officials purportedly approached the applicant no.2 for bribe, are questions which are necessarily to be proved through oral and documentary evidence. Such venture, in our view, would not be proper before a Writ Court. The other decision reported in 1969, Volume-III, Supreme Court Cases, Page-769 (Smt. Gunwant Kaur and Others -VS- Municipal Committee, Bhatinda and Others) was cited wherein the controversy involved therein related to a land which was partially under acquisition. No oral evidence was required to be taken to resolve a controversy pertaining to acquisition. In such context the Apex Court observed that the High Court was not deprived of its jurisdiction to entertain a petition merely because it would involve question of fact. Paragraph 15 of the said decision may be referred to herein which observed that such controversy could be resolved through “documentary evidence”. The case before us, would mostly depend upon oral evidence than documentary evidence. In such context we refuse to interfere. Tribunal is a fact-finding body. The Tribunal in the backdrop as discussed above refused to interfere. We accorded our approval to such a decision. The liberty granted to the applicants vide order dated January 29, 2009 is recalled. Review application is disposed of without any order as to costs. Urgent xerox certified copy would be given to the parties, if applied for. I agree.