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2013 DIGILAW 33 (CAL)

Buddhadeb Gaye v. State of West Bengal

2013-01-22

BISWANATH SOMADDER

body2013
JUDGMENT Affidavit of service filed in Court today be taken on record. 2. After considering the submissions made by the learned advocates for the parties and upon perusing the instant application, it appears that the petitioner was granted provisional appointment to the post of a Bengali Typist under South 24-Parganas Zilla Parishad. However, it is the specific contention of the petitioner that although he was issued an appointment/engagement letter, he was not allowed to join. Learned advocate for the petitioner has referred to some of the annexures to the writ petition to point out that a criminal case had been initiated against his client under Magrahat Police Station, being Case No.215 dated 26th July, 2012. According to him, a final report in connection with the said case of the Investigating Officer has already been submitted before the learned Additional Chief Judicial Magistrate, Diamond Harbour, wherefrom it would clearly appear that the petitioner was nowhere involved in the case, although he was named as the accused no.1. It is further submitted by the learned advocate that since there is no allegation subsisting against the writ petitioner, there is no embargo and/ or fetter on the part of the Zilla Parishad authorities to allow his client to join service. 3. It is evident from the records, which have been annexed to the writ petition, that the writ petitioner was given appointment to a temporary post of a Bengali Typist by South 24-Parganas Zilla Parishad. Such temporary engagements by the State or an authority of the State confer only certain limited rights upon a person so engaged and that person cannot, under any circumstances, approach a writ Court, seeking a mandatory order, directing the concerned respondent authority to give effect to the appointment/engagement letter issued in his favour by allowing him to join service. The only duty of the writ Court, in such circumstances, is to ensure that the decision-making process adopted by the concerned authority to withhold a temporarily engaged person to join service, is based on the well settled principles of fair-play and reasonableness. 4. In the facts of the instant case, it is noticed that a criminal case is still pending against the writ petitioner before the learned Additional Chief Judicial Magistrate, Diamond Harbour. 4. In the facts of the instant case, it is noticed that a criminal case is still pending against the writ petitioner before the learned Additional Chief Judicial Magistrate, Diamond Harbour. Whether or not the final report of the Investigating Officer, which has been relied on by the writ petitioner, would be ultimately accepted by the learned Additional Chief Judicial Magistrate, Diamond Harbour, is a matter of conjecture and surmise, since it is entirely the Court’s discretion to take cognizance of the final report prepared by the Investigating Officer. At this stage of the criminal proceeding, the writ Court ought not to make a single observation – even in passing – which, in effect, would give a stamp of approval to the contents of the final report prepared by the Investigating Officer in connection with the pending criminal case. Any observation made by the writ Court – in such a fact situation – would tantamount to encroaching upon the jurisdiction of the learned Additional Chief Judicial Magistrate, being the competent Court to decide on the merits of the final report. If the learned Additional Chief Judicial Magistrate, Diamond Harbour, ultimately accepts the contents of the final report, the writ petitioner will be discharged from the criminal proceedings as a matter of course. 5. In such circumstances, as stated above, there is no scope for the writ Court to issue a writ in the nature of mandamus commanding the concerned respondent authorities to include the final report dated 31st October, 2012, in the Police Verification Report in connection with the petitioner’s temporary engagement as a Bengali Typist. There is also no scope for the writ Court to issue a writ in the nature of mandamus commanding the respondent authorities to allow him to join his temporary post, taking note of the contents of the final report. In the event, the petitioner is ultimately discharged from the criminal proceedings pending against him by the learned Additional Chief Judicial Magistrate, Diamond Harbour, it will be open to the South 24-Parganas Zilla Parishad to take a final decision with regard to his engagement as a Bengali Typist on a provisional basis. 6. The writ petition, thus, stands dismissed, subject to the observations made hereinabove. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.