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2014 DIGILAW 212 (CAL)

Arup Nandi v. Union Of India

2014-03-12

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. The petitioner complains of the Regional Director of the Staff Selection Commission having virtually set aside a judicial order though the Union of India had accepted such order by not preferring an appeal therefrom. 2. W.P. No. 22678 (W) of 2013 was carried by the petitioner to this Court claiming, inter alia, that the process of certification referred to in paragraph 4 (C) of the employment notice was only directory. Upon such writ petition being heard, the primary issue that arose therein was formulated as such at paragraph 9 of the order dated December 04, 2013. It is the second sentence of the relevant paragraph which is of greater significance, particularly in the light of the directions issued at paragraph 17 of such order. 3. Paragraphs 9 and 17 of the relevant order of December 04, 2013 are set out: "9. Only question that arises for consideration is whether the process of certification referred to in paragraph 4 (C) of the employment notice is mandatory or directory. If the process is held to be directory and a method of convenience to take instant proof of qualification, there is no reason as to why the petitioners should not be considered eligible as claimed in the writ petitions." "17. In the circumstances, I am of the view that the Regional Director of the Commission must reconsider the claim of the two petitioners in the light of the observations made above and take a fresh decision. In the event the decision is adverse to the interest of the petitioners, a reasoned order ought to be passed and communicated to them. On the contrary, if the petitioners' claims succeed, follow up steps in accordance with law shall be taken without any delay." 4. Upon service of the order dated December 04, 2013 on the Regional Director, the matter was considered again and an order has been passed on January 20, 2014. The candidature of the petitioner has been declined upon making a distinction between the two parts to the relevant certificate though the matter had been considered by Court and, as would be evident from paragraph 9 of the order dated December 04, 2013, it was observed that if the instructions at paragraph 4 (C) of the employment notice were regarded to be directory, the petitioner would be entitled to the appointment. 5. 5. At paragraph 15 of the order dated December 04, 2013, it was observed that the "mandatory requirement was whether ... Nandi belongs to backward class or not... The mode of proof of recognition as backward class, in the circumstances, ought to have been treated as directory." 6. The issue here is not as to whether the Regional Director is right in declining the candidature of the petitioner. The moot question is whether it was open to the Regional Director to refer to the matters that have been dwelt upon in the impugned order in the light of the directions contained in the order dated December 04, 2013. 7. The Union of India seeks to assert that later judgments of the Supreme Court than those considered in the order dated December 04, 2013 may justify the Regional Director's order which has been questioned in the present proceedings. In effect, the Union suggests that the order of December 04, 2013 was erroneous. Assuming that the order dated December 04, 2013 was erroneous, but it would be calamitous to accept that a judicial order that has attained finality can be disregarded as erroneous by an executive functionary. The Union's oblique challenge to the validity of the order dated December 04, 2013 may not be permissible to be canvassed in the wake of the Union not having carried an appeal therefrom. Indeed, the order has been acted upon after it having been accepted. It is elementary that upon a judicial order being passed and it not being challenged, it attains finality; whether or not it reflects the correct legal position. The element of finality qua the order dated December 04, 2013 cannot be shrugged off, particularly after the Union's unconditional acceptance thereof and the Union's officer having acted thereupon. More importantly, and assuming that the order dated December 04, 2013 did not reflect the correct legal position, the Union's officer could not have disregarded it and contumaciously passed an order in derogation thereof by seeking, willy-nilly, to sit in appeal over such judicial order. 8. More importantly, and assuming that the order dated December 04, 2013 did not reflect the correct legal position, the Union's officer could not have disregarded it and contumaciously passed an order in derogation thereof by seeking, willy-nilly, to sit in appeal over such judicial order. 8. Notwithstanding the erudition of the officer that is reflected in he order impugned, the considerations which went into the making of the order are found to be totally extraneous in the context of the directions issued by the order of December 04, 2013 that the officer was bound to obey in the light of the Union of India not having challenged the order dated December 04, 2013. 9. It would be justified for a mandamus to be issued in the present circumstances for the appointment to be granted directly by an order of Court without waiting for any further executive order in such regard. Indeed, when a previous judicial order to act in a particular manner is ignored, a subsequent mandamus may be issued by assuming the powers of the executive to do what the executive ought to have done. However, the concerned officer is given a further opportunity to correct the obvious error in construing the order dated December 04, 2013 and the directions contained therein. 10. W.P. No. 7193 (W) of 2014 is allowed by setting aside the impugned order dated January 20, 2014 passed by the Regional Director of the Staff Selection Commission and by reiterating the directions contained in paragraph 17 of the order dated December 04, 2013. The concerned officer will have a fortnight from the date of receipt of the order to take appropriate steps. The petitioner will also be entitled to costs of the present proceedings assessed at 100 GM. 11. Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities. Writ petition is allowed.