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2013 DIGILAW 522 (CAL)

Santana Barman v. State of West Bengal

2013-07-30

SOUMITRA PAL

body2013
JUDGMENT : Soumitra Pal, J. 1. Affidavit-of-service, filed today, be kept on record. In the writ petition, the petitioners, who were the candidates for the post of Anganwari workers under Sitai ICDS project within the district of Cooch Behar, have prayed for a direction upon the respondents to consider their claims for appointments in the light of the unreported judgment dated 9th April, 2013 passed by the Division Bench in FMA 102 of 2013 (Susama Roy Pramanik & Ors. v. The State of West Bengal & Ors.) wherein direction was issued on the authorities to consider the claim of the appellants therein for appointment to the post of workers against the vacancies which occurred during the validity of the panel. 2. It is submitted by Mr. K.K. Maitra, the learned senior advocate, appearing on behalf of the petitioners that though the panel of Anganwari workers, published on 16th June, 2007 had expired on 16th June, 2010 after an extension, in view of the judgment of the Division Bench, appropriate order may be passed. In this regard reliance has been placed on the judgments of the Apex Court in K.I. Shephard v. Union of India, AIR 1988 SC 686 , in Tamil Nadu Khadi and Village Industries Board v. M.S. Krishnaswamy & Ors., 2001 (6) Supreme 45 , Maharaj Krishan Bhatt & Anr. v. State of Jammu & Kashmir & Ors., (2008) 2 SCC (L&S) 783 and on the judgment of the Division Bench of the Allahabad High Court in Neeraj Chaurasia & Anr. v. Uttar Pradesh Power Corporation Ltd. & Anr., 2012 (5) ESC 2905 (A11) (DB). 3. Learned advocate appearing on behalf of the State submits that as the panel had lapsed on 16th June, 2010 after extension and thereafter this writ petition has been affirmed on 10th June, 2013, no order may be passed. 4. It is to be noted that in this regard learned advocates appearing for the respective parties have been apprised of an unreported judgment delivered on 26th April, 2013 in W. P. No. 6526 (W) of 2013 (Tapan Pradhan v. The State of West Bengal & Ors.) wherein the question of validity of a panel after its expiry was considered. 5. It appears that admittedly the panel of Anganwari Workers, published on 16th June, 2007, had expired on 16th June, 2010. 5. It appears that admittedly the panel of Anganwari Workers, published on 16th June, 2007, had expired on 16th June, 2010. It is to be noted that petitioners, whose name had figured in the panel, did not agitate their grievances during its subsistence. However, after the judgment in Susama Roy Pramanick (supra), the petitioners have filed this writ petition. It appears while allowing the appeal, the Division Bench referring to the submission of the learned advocates appearing for the State respondents held that as the scheme was still in operation, the candidates could be appointed from the panel in question although the life of the panel had expired. As noted, in Tapan Pradhan (supra) while dealing with the life of a panel the judgments passed by the Apex Court in State of Bihar v. Amrendra Kumar Mishra, (2006) 12 SCC 561 in Union of India v. B. Valluvan, AIR (2007) SC 210, in M.P. Electricity Board v. Virendra Kumar Sharma, (2002) 9 SCC 650 in Girdhar Kumar Dadhich v. State of Rajasthan, (2009) 2 SCC 706 and inShiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471 were considered. 6. It is to be noted that in the State of Bihar v. Amrendra Kumar Mishra (supra) it was held that "Life of a panel, it is well known remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel" (paragraph 9). 7. Similarly in Union of India v. B. Valluvan (supra) it was hold that "Life of a panel, as is well known, must be for a limited period. It is governed by the statutory rules", (paragraph-12). 8. Similar view was expressed in M.P. Electricity Board v. Virendra Kumar Sharma (supra), wherein it was held that "Any scheme for selection will depend upon the terms on which selections are made. In the present case, there is a scheme as provided in the circular dated 9-12-1968 and that circular also provided for the panel to be valid/current for a particular period namely one year. After that period, the list would lapse and fresh panel has to be prepared. If that is the scheme, none of the decisions relied upon by the learned counsel for the respondent would be of any assistance. After that period, the list would lapse and fresh panel has to be prepared. If that is the scheme, none of the decisions relied upon by the learned counsel for the respondent would be of any assistance. The High Court is also not justified in relying upon the decision in Shivsingh case inasmuch as the scheme of appointment was entirely different. Moreover the validity/currency of panel was for a particular period; that is the salutary principle, behind that Rule so that after the selections are made and appointments to be made may take long time, it is possible that new candidates may have become available who are better or more qualified than those selected, and if they are appointed it would be in the best interests of the institution. Hence we do not think there was any justification for the High Court to have interfered in the matter and directed appointment of the respondents.........." [paragraph 5]. 9. Facts also were more or less similar in Girdhar Kumar Dadhich (supra) where the petitioners were seeking appointment by filing writ petitions pursuant to a Full Bench judgment where provisions were declared unconstitutional. Therein the appellants had submitted that as vacancy still existed, even without disturbing the existing appointees, the appellants could be accommodated. This argument was countered on behalf of the State by submitting that as they did not file any writ petition in the year 1998-99, the High Court had rightly dismissed the writ petition as being barred by delay and laches. The Supreme Court while dismissing the appeal held that "the select list would ordinarily remain valid for one year. We fail to understand on what basis appointments were made in 2003 or subsequently. Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us." (paragraph-16) 10. It is to be noted that if the petitioner is a successful candidate and his name figures in the panel and seeks direction upon the State authority for appointment, such prayer must be made within the validity of the panel. It is to be noted that if the petitioner is a successful candidate and his name figures in the panel and seeks direction upon the State authority for appointment, such prayer must be made within the validity of the panel. In the instant case, as by filing the petition belatedly, the petitioners have taken a chance, the argument on their behalf cannot be accepted as in Shiba Shankar Mohapatra v. State of Orissa, (supra) it was held that "It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches............"[paragraph-29] 11. So far as the judgments relied on behalf of the petitioners are concerned, the judgment in K.I. Shephard (supra) is not applicable as it was passed in the context of the Banking Regulation Act, 1949 and the Supreme Court was considering the case of the employees who were thrown out of employment while amalgamation was being carried out. The judgment in Tamil Nadu Khadi and Village Industries Board (supra) is not applicable to the facts of the case as it was not with regard to the validation of a panel. The judgment in Maharaj Krishan Bhatt (supra) is not applicable as it was passed considering Regulation 174 of Chapter VII of the Jammu and Kashmir Police Manual and the Supreme Court had no occasion to deal with regard to grant of appointments from a panel the life of which had expired. The judgment of the Division Bench of the Allahabad High Court in Neeraj Chaurasia (supra) is not applicable in view of the judgments of the Supreme Court in Amrendra Kumar Mishra (supra), in Union of India v. B. Valluvan (supra), in M.P. Electricity Board (supra) and in Giridhar Kumar Dadhich (supra) which were not brought to the notice of the Division Bench in Susama Roy Pramanik (supra). Therefore, once validity of the select list has expired, Court has no authority to issue direction for consideration with regard to appointments out of the said panel. Therefore, no order is passed on the writ petition. The writ petition is, thus, disposed of. 12. There will be no order as to costs.