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2011 DIGILAW 67 (CAL)

Manash Choudhury v. STATE OF WEST BENGAL

2011-01-19

MRINAL KANTI CHAUDHURI, PRATAP KUMAR RAY

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JUDGMENT :- (1) The Judgment of the Court was as follows : Heard the learned Advocates appearing for the parties. (2) Assailing the order dated 19th November, 2010 passed by West Bengal Administrative Tribunal in Case No. OA 1306 of 2010, this writ petition has been filed. (3) Having regard to the recruitment advertisement and the concerned recruitment rules, we are of the view that the writ petition could be disposed of here and now. (4) Let affidavit-in-opposition filed by the State-respondent and affidavit-in-reply filed by the petitioner be kept with the record. (5) The impugned order reads such :- "19.11.10. This application has been included in days list on mentioning as a very special case at the instance of the petitioner Mr. Manash Chowdhury considering the urgency of the matter. Mr. Mitra on behalf of the P.S.C. on receipt of the prior notice is physically present with instruction to contest this application. The petitioner has filed formal affidavit of service. Let it be kept on record. Mr. Karim on behalf of the petitioner contends that as per the advertisement available at page 39, the petitioner has exceeded 45 years of age and the petitioner prays for appropriate direction so that the P.S.C. may consider his representation available at page 42 and relax the age of interview for the petitioner considering it as a special case. Mr. Mitra submits that according to the terms of advertisement the age is 40 and relaxable up to 45 in case of specially experienced persons and undisputedly the petitioner is 47 years of age and as such as per terms of advertisement, there is no scope for the P.S.C. to extend the age ceiling of 45 years beyond. Mr. Mondal next contends that the petitioner even does not appear to be properly qualified as per the terms of advertisement. Mr. Karim, further submits that the petitioner is qualified as Marine Engineering is one of the subject in which the petitioner obtained graduate degree in Fishery Science. On hearing both sides and going by the terms of the advertisement, we find that there is no scope for the P.S.C. to consider the age of the petitioner as he has already reached 47 years of age and without making any comment about other points raised by the petitioner, we hold that petitioner is not entitled to get any interview as per terms of the advertisement. We, therefore, dispose of this application accordingly. (6) The Government of West Bengal, Fisheries Department by Notification No. I569-Fish/C-Vl/12A-10/96 dated 18th August, 1998 notified the rule framed under Article 309 of the Constitution of India regulating the recruitment to the post of Deputy Director of Fisheries under the Directorate of Fisheries, Government of West Bengal. The present post is Deputy Director of Fisheries (Marine Fisheries). The relevant portion of the said Notification reads as under: ASVINA 21 THURSDAY, SEPTEMBER 24, 1998 [Saka 1920 PART I -Orders and Notifications by the Governor of West Bengal, the High Court, Government Treasury, etc. GOVERNMENT OF WEST BENGAL FISHERIES DEPARTMENT NOTIFICATION No. I569-Fish/C-Vl/12A-10/96.-18th August 1998.-ln exercise of the power conferred by the proviso to article 309 of the Constitution of India, and in supersession of this department notification No. 2326- Fish, dated the 7th September 1994, the Governor is pleased hereby to make the following rules regulating the recruitment to the post of Deputy Director of Fisheries under the Directorate of Fisheries, Government of West Bengal:-Rules The method of, and the qualifications required for, recruitment to the post of Deputy Director of Fisheries under the Directorate of Fisheries, Government of West Bengal, shall be as detailed below : (4) Name of the Post : Deputy Director of Fisheries (Marine Fisheries). Qualifications Essential : (i) Second class Master degree in Marine Biology / Marine Zoology/Marine Science/Oceanography, having secured a minimum of 55% marks in the concerned subject: (ii) five years research experience in Marine Ecology/Biology of Marine fish/Shrimp to be evidenced by published papers; (iii) Knowledge of Bengali spoken and written. Desirable : (i) Doctorate degree in Marine Science; (ii) Administrative experience. Age : Not more than 40 years on the 1st January of the year of advertisement, relaxable upto 45 years for (a specially qualified and/or experienced candidates and (b) for persons holding substantive appointment under the Government." (7) On a bare reading of the said relaxation clause as notified in the said Notification and having regard to the criteria as mentioned in the advertisement No. 4/2010 issued by Public Service Commission, West Bengal inviting application, published on 22nd day of May, 2010, there is no doubt that the age relaxability issue could be considered only for relaxation of age up to 45 years. The petitioner admittedly crossed the age of 45 years long back on as is evident from affidavit of this writ application where he has stated age as 47 on 6th day of December, 2010, the date of affirmation of affidavit. Having regard to that, there is no scope of allowing the petitioner to participate in the selection process and/or interview, even if he is a highly qualified, is accepted for arguments sake. (8) It is settled legal position of law that Public Service Commission cannot relax the age on breach of the relaxation clause of rules and regulations as framed. (9) Considering that issue, we are of the view that there is no merit in the writ application. (10) The writ application is, thus, dismissed. In view of dismissal of the writ application, all interim orders also stand vacated. (11) Since we have vacated the interim order, it is now the duty and responsibility of the Court to apply the doctrine of restitution to grant proper relief to the parties in the litigation. (12) It appears that due to the interim order dated 8th December, 2010 passed by the Division Bench (Pranab Kumar Chattopadhyay and Ashoke Kumar Dasadhikari, JJ.), the appointment of the added respondent No. 7 was cancelled. The said Division Bench passed an order dated 15th December, 2010 restraining the Director of Fisheries, Government of West Bengal and other respondents from allowing Dr. Sandip Kumar Mondal to discharge any duty in the concerned post of Deputy Director of Fisheries (Marine). (13) Subsequently, in compliance with the order, the respondent authority reverted Dr. Sandip Kumar Mondal to his earlier position and that order was recorded on 21st December, 2010 by the said Division Bench. (14) The principle of restitution is based on principle of equity and justice. It is the root of Section 144 of the Code of Civil Procedure. It has been held by the Apex Court in the case of Naba Bharat Ferro Alloys Ltd. v. Transmission Corporation of Andhra Pradesh Ltd. and Anr., reported in (2011)1 SCC 216 that it is the duty of the Court to put the parties in the same position they would have been, but for the interim order of the Court. (15) In this judgment, the Apex Court considered the view expressed by the Privy Council in the case of Rodger v.. (15) In this judgment, the Apex Court considered the view expressed by the Privy Council in the case of Rodger v.. Comptoir DEscompte de Paris, reported in (1871 )3 PC 465, where the court held that it is the Courts obligation to restore the position when litigation stands dismissed and by an interim order somebody has obtained the benefit. (16) The Apex Court in Bharat Ferro Alloys Ltd. (supra) considered judgment passed in the case of Kerala State Electricity Board and Anr. v. M.R.F. Ltd., reported in (1996)1 SCC 597 ana the judgment passed in the case of Kanoria Chemicals and Industries Ltd. and Ors. v. U.P. State Electricity Board and Ors., reported in (1997)5 SCC 772 . (17) Having regard to such legal position, accordingly, appropriate relief should be granted to the respondent No. 7 as had there been no interim order as mentioned aforesaid, the respondent no.7 would have been placed in the rank and post of Deputy Director of Fisheries (Marine) from his 1st date of appointment. (18) Hence it is directed that the original position of respondent no.7 should be restored with reference to date of his appointment and joining to the post in question, with all benefits of the post thereof. The order of reversion to lower post stand quashed.