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2013 DIGILAW 324 (CAL)

Biswajit Das v. Food Corporation of India

2013-06-06

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. Challenge is to the order dated July 31, 2004 passed by the Deputy Manager (General), Food Corporation of India, Kolkata (hereinafter shall be called as ‘FCI’) thereby passing an order of termination of services of the petitioners. The prayer for other reliefs has also been sought for. The appointment in the FCI particularly in the Class-IV category of the SC & ST candidates has a chequered history. The short fact necessary for the purpose of this case is that pursuant to an advertisement by the FCI for recruitment of 115 posts of Class-IV employees under the Scheduled Caste and Scheduled Tribe category, the seven petitioners and many others applied for the said posts. Selection process was adopted accordingly for selection to the aforesaid posts. Accordingly, 115 candidates were recruited for various Offices of the FCI in Class-IV posts in 1997. Three writ applications were filed later on by the unsuccessful candidates before this Hon’ble Court for setting aside the recruitment and selection of the candidates who were 108 in numbers at that time. By a common judgment dated October 15, 2001, a learned Single Judge of this Hon’ble Court held that the irregularities pointed out by the writ petitioners of the said three writ petitions although deserved importance, could not be a relevant factor for setting aside the entire recruitment process. In the year 1997, appointments were given and the said 115 persons were working in various offices of the FCI. Accordingly, the learned Judge directed, inter alia, the FCI to form a high power committee to go into the allegations of the writ petitioners and to investigate the same and in case of such allegations were found to be correct, the said Committee would fix the responsibilities of the Officers of the FCI and to take adequate punitive measures against those erring officers. Three appeals were preferred by the then writ petitioners against the judgment and order dated October 15, 2001 passed in the said three writ petitions and the said three appeals were disposed of by a Division Bench of this Hon’ble Court by a common judgment and order dated November 6, 2003 thereby affirming, inter alia, the judgment and order passed by the learned Single Judge. A direction was also given for holding an interview of all those 108 candidates as well as the writ petitioners in the three writ petitions who were 31 in number and to give appointment to the successful candidates for the posts already available, namely, 115 posts which were filled up earlier. The rest of the candidates might be allowed to be absorbed if successful in the selection against the vacancy of the respective class if available. Being aggrieved by the order of the Division Bench, a Special Leave Petition was filed before the Hon’ble Supreme Court by the working employees, but, the same was dismissed on April 16, 2004 on the ground that the case was not fit for interference. The present petitioners have contended that as per order of the Division Bench supported by the Apex Court, the date of interview was fixed on May 20, 2004 and the petitioners went to the Office of the FCI. But, they came to know that the date of interview was shifted to June 24 & 25, 2004. According to the judgment and order, the interview was to be conducted by three Members, but, in fact, four Members of the Selection Committee were present at the time of interview. The petitioners also noticed that one Mr. Nitish Biswas, a Member of the Selection Committee, was not an Officer of the FCI, though the Division Bench specifically directed that the Selection Committee consisting of three Members from the FCI should be formed. The petitioners also noticed that Mr. Narinder Kumar who joined as Regional Manager on June 23, 2004 was a Member of the Selection Committee and he took the interview of the candidates including the petitioners and he asked most of the questions in Hindi and the petitioners faced difficulty in answering to the questions. Mr. Nitish Biswas was the Deputy Registrar of University of Calcutta and the petitioners had no knowledge of such fact and as such, when they came to know, they found that the Selection Committee was constituted in violation of the order of the Division Bench of this Hon’ble Court. The petitioners have contended that though there were 31 petitioners to be called for selection as directed by the Division Bench, the respondents invited 37 candidates and thus, additional six candidates were invited along with 31 petitioners in violation of the order of the Division Bench. The petitioners have contended that though there were 31 petitioners to be called for selection as directed by the Division Bench, the respondents invited 37 candidates and thus, additional six candidates were invited along with 31 petitioners in violation of the order of the Division Bench. The petitioners have also contended that since it was a matter of recruitment of Scheduled Caste/Scheduled Tribe candidates, one nominee of SC/ST Officers in the Selection Committee should have been done for conducting the interview on the June 24 & 25, 2004. Thus, the Selection Committee as well as the procedure for selection had not been done in compliance with the order of the Division Bench. The petitioners have also contended that the petitioner no.3 who was appointed in the year 1997 as Class-IV employee passed Madhyamik and subsequently, he was promoted to Class-III and such promotion was granted to him out of 108 candidates who were working in the FCI at that time. So, the direction upon the petitioner no.3 for appearance before the Interview Board was not proper at all. The petitioners came to know that the respondent authorities were going to terminate the petitioners by the order in question and so, they have filed this application for the reliefs already stated. Now, the question is whether the prayer of the writ petitioners should be allowed. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the FCI took a special drive for filling up the backlog of appointments in the category of Class-IV posts reserved for the Scheduled Caste and Scheduled Tribe candidates. Selection process was held in the year 1996 and 115 candidates were appointed in the year 1997 and thereafter, 108 candidates were working under different categories of Class-IV posts. Three writ petitions being W.P. No.1378(W) of 2001, W.P. No.1377(W) of 2001 and W.P. No.7730(W) of 1997 were filed by the unsuccessful candidates praying for setting aside the recruitment or selection of the candidates who were 108 in numbers. Three writ petitions being W.P. No.1378(W) of 2001, W.P. No.1377(W) of 2001 and W.P. No.7730(W) of 1997 were filed by the unsuccessful candidates praying for setting aside the recruitment or selection of the candidates who were 108 in numbers. The learned Single Judge had disposed of the said three writ petitions by a common judgment and order dated October 15, 2001 holding, inter alia, that the FCI should form a high power committee to go into the allegations of the writ petitioners for investigation of the allegation and to fix the responsibilities of the FIC Officers and take appropriate punitive measures. Being aggrieved by the aforesaid orders, three appeals being M.A.T. No.305 of 2002, M.A.T. No.306 of 2002 and M.A.T. No.307 of 2002 were filed by some of the writ petitioners and those three appeals were disposed of by a judgment and order dated November 6, 2003 by the Division Bench whereby it had been directed that the FCI should form a Selection Committee of responsible persons consisting of three Officers and to hold an interview of all 108 candidates who had been given appointment pursuant to the selection as well as the writ petitioners of the aforesaid three writ petitions, who were 31 in numbers and to give appointment to the successful candidates in the posts already available, namely, 115 posts which were filled up initially. The rest of the candidates might be allowed to be absorbed if successful in the selection against the vacancy of the respective class, if available. A Special Leave Petition was preferred by the working employees and the said Special Leave Petition was dismissed on April 16, 2004 holding that the case was not fit for interference. Thus, I find that the judgment and order dated November 6, 2003 passed by the Division Bench of this Hon’ble Court stood affirmed. Now, therefore, I am to see whether the said judgment and order of the Division Bench duly affirmed by the Apex Court was complied with or not. Several allegations were raised in respect of the subsequent selection by the seven writ petitioners and from the materials on record, I find that the respondents have controverted such allegations by filing appropriate affidavits-in-opposition and the supplementary affidavit. I find from the materials on record that the respondent authorities have traversed the allegations against them and their contention is supported by the materials on record. I find from the materials on record that the respondent authorities have traversed the allegations against them and their contention is supported by the materials on record. So far as formation of the Selection Committee is concerned, I find that there is no indication that only the Officers of the FCI should be included in the Selection Committee, but, it has been indicated that an expert in the matter of administration should be included in the Selection Committee. Accordingly, the Deputy Registrar of the University of Calcutta who is no doubt an expert in the matter of administration, was included in the said Committee. In fact, the respondent authorities have specifically stated that Mr. Nitish Biswas belongs to minority community and he is the Deputy Registrar of BCW Cell of the University of Calcutta. The respondent nos.13, 14 & 17 to 25 by filing their affidavit-in-opposition have also contended that Mr. Nitish Biswas, a Member of the Selection Committee belongs to the Scheduled Caste community and that he had been included in the Selection Committee as a Scheduled Caste Member in the Committee in consonance with the instruction of the Government of India, in this regard. Therefore, the allegation of inclusion of Nitish Biswas, in my view, made by the petitioners is not tenable at all. The contesting respondent authorities have specifically stated that Narinder Kumar was present simply as an observer, but, he did not take any part in the selection process at all. Neither he signed in the minutes of the interview nor he put any question or given any marks to the candidates called at the said interview. The Members of the Selection Committee were three all along and they awarded marks to the candidates in compliance with the directions of the Hon’ble Division Bench. Mr. Narinder Kumar was the Regional Manager who joined the office of the FCI on June 23, 2004. The allegation of asking maximum questions by Narinder Kumar in Hindi has been totally denied by the contesting respondent authorities and this matter cannot be decided by the writ court on the basis of affidavits. So far as the change of dates, in my view, it may happen according to the situation and the question to be looked into whether adequate information was given to the candidates to be interviewed. So far as the change of dates, in my view, it may happen according to the situation and the question to be looked into whether adequate information was given to the candidates to be interviewed. In the instant case, I find from the materials on record that all the candidates were informed of the change of dates and they, including writ petitioners, participated in the interview. The contesting respondent authorities have contended that change had been done in view of the fact that Mr. Nitish Biswas prayed for adjournment on his health ground and accordingly, such prayer has granted. As recorded earlier, Mr. Nitish Biswas was appointed as per the order of the Division Bench and so, when he prayed for adjournment, an accommodation was given with due intimation to all the candidates. It may be the situation that in the meantime, the Regional Manager joined on June 23, 2004 and as such, he was present in the Selection Board. So far as inclusion of Nitish Biswas is concerned, beside the above fact, I also find that his inclusion was brought to the notice of the Hon’ble Appellate Court and the circumstances why the change of dates was sought for and while disposing of the C.A.N. applications being C.A.N. No.5364 of 2004, C.A.N. No.5365 of 2004 and C.A.N. No.5366 of 2004, the Hon’ble Appellate Court considered the entire aspect including the illness of Mr. Nitish Biswas by the order dated July 7, 2004 and the prayer for extension of time was granted indicating that the selection must be completed by July 30, 2004. So, the inclusion of Mr. Nitish Biswas was under consideration before the Appellate Court and it was upheld as indicated above. Since the fresh selection had been done as per order of the Court and there was no indication in the order of the Division Bench that a nominee from SC/ST Officers should be included in the Selection Committee, such contention of the writ petitioners is nothing but a mere contention for the purpose of securing a job anyhow in the FCI. This question cannot be raised in the present writ petition. Above all, as indicated above, after participation fully in the interview for the second time, when the petitioners became unsuccessful, their applications are not tenable at all. For that reason, this application is liable to be dismissed. This question cannot be raised in the present writ petition. Above all, as indicated above, after participation fully in the interview for the second time, when the petitioners became unsuccessful, their applications are not tenable at all. For that reason, this application is liable to be dismissed. So far as number of candidates is concerned, the petitioners have contended that though the direction was given for inviting 31 writ petitioners, the respondents invited 37 candidates being six more candidates along with 31 candidates I find from the materials on record that several writ cases were filed and in order to comply with the directions in several writ petitions, at the time of formation of the Selection Committee and calling the candidates for interview, the respondents had to comply with the judgment and order of the writ petitions. So far as addition of six candidates as contended, the respondents have explained why 37 candidates were called for in paragraph no.10 of the written statement. For convenience, the said chart is set out below for justification of calling of 37 candidates for interview:- NO. OF COURTS CANDIDATES MATTER NO. ORDER CALLED DATED FOR INTERVIEW a) MAT No.305 to 307 of 2002 06.11.200331 b) MAT No.279 of 2002 24.12.20033 MAT No. 1979 of c) 2004 23.06.20041 MAT No.305 to 307 of 2002(read with d) MAT No.3030of 02.04.20042 2002 & MAT No.2901 of 2001) The said tabulation has also been reiterated in the supplementary affidavit filed by the contesting respondent authorities in paragraph no.6 appearing as page no.4 justifying how 146 candidates were called for the fresh interview. Thus, I find that calling for 37 candidates for the purpose of interview as per order of the Division Bench is justified. It may be noted herein that contempt applications were moved by the unsuccessful candidates for violation of the order of the Division Bench in the matter of formation of the committee etc. and while dismissing of the said contempt matters, it had been clearly indicated that fresh cause of action had arisen and appropriate proceedings might be lodged for violation of the judgment and order of the Division Bench, if any. It may be also noted herein that other writ petitions were filed by the contemnors and those writ petitions were also dismissed by a learned Single Judge as per materials on record. It may be also noted herein that other writ petitions were filed by the contemnors and those writ petitions were also dismissed by a learned Single Judge as per materials on record. In fact, after dismissal of one of such writ petitions being W.P. No.9946(W) of 2001, an appeal being M.A.T. No.4152 of 2004 was also filed. The said appeal was also dismissed by the Division Bench. Thereafter, the said unsuccessful candidates preferred an application for review being R.V.W. No.817 of 2005 which was also dismissed by the order dated August 24, 2005. The fresh selection was also a subject matter of challenge in the writ petition being W.P. No.15765(W) of 2005 which was disposed of by the judgment and order dated March 12, 2009 holding that said fresh selection was proper. The other unsuccessful candidates had also filed another writ petition being W.P. No.4037(W) of 2000 which was also dismissed by the order dated August 10, 2010. So far as the prayer for exemption of the petitioner no.3 who had been promoted from Class-IV to Class-III, upon consideration of the materials on record, I find that the contesting respondent authorities have challenged such claim of promotion. It may be noted herein that the petitioner no.3 applied for the said post having the qualification of Class-VIII pass and it is not certain from the materials furnished by the petitioner, when the petitioner completed his school final examination as claimed or whether he took promotion from the concerned office and if the rule relating to the promotion from Class-IV Class-III has been complied with. If so, what was the condition for promotion, such as, whether such promotion was subject to the result of the writ petition, etc. The petitioner no.3 did not file anything in this regard. Even the letter of promotion indicating the condition, if any, has not been furnished. On the other hand, the contesting respondent authorities have denied such promotion. It is also a clear indication of the contesting respondent authorities that in case of promotion from Class-IV to Class-III, a Class-IV employee besides acquiring qualification for being appointed to Class-III must have completed minimum 12 years of service. In the instant case, there being an admitted position of appointment of the petitioner no.3 in the year 1997 as Class-IV, it was totally impossible before filing of the writ petition that he had completed 12 years of service. In the instant case, there being an admitted position of appointment of the petitioner no.3 in the year 1997 as Class-IV, it was totally impossible before filing of the writ petition that he had completed 12 years of service. Anyway, when the writ petitions had been filed challenging the initial recruitment of candidates in the year 1997 on the basis of advertisement of 1996, in my view, the recruitment including promotion, if any, shall be subject to the decisions of the writ petitions. So, the contention of the petitioner no.3 that he should be exempted from the case and that his name should be deleted from the writ petition, cannot be accepted. He is bound by the decision of the writ petitions. Accordingly, his application being C.A.N. No.10012 of 2012 praying for exemption and other reliefs is liable to be rejected. Thus, from the materials on record, I find that the writ petitioners were unsuccessful in the fresh selection as per order of the Division Bench. The matter in dispute has been set at rest by several writ petitioners and appeals therefrom. In that view of the matter, I am of the opinion that there is no scope of interference with the matter of interview for the second time and so, the order dated July 31, 2004 passed by the Deputy Manager (General) cannot be stated to be without any basis. There is no arbitrariness or violation of the principle of equality in the matter of employment in the order of the Deputy Manager (General) in question. So, I am of the view that the reliefs as prayed for in the writ petition cannot be granted. Accordingly, I am of the view that this application is devoid of merits and is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Interim order, if any, stands hereby vacated. C.A.N. No.10012 of 2012:-In view of the above findings, this C.A.N. application for expunction of the name of the petitioner no.3 from the Class-IV staff and other consequential reliefs cannot be granted. The C.A.N. application is, therefore, rejected. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.