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2014 DIGILAW 355 (CAL)

Bipad Das v. State of West Bengal

2014-04-16

TAPABRATA CHAKRABORTY

body2014
JUDGMENT Tapabrata Chakraborty, J. 1. This writ application had been preferred challenging inter alia the impugned denial of the respondents to implement the memorandum dated 21st July, 1983 issued by the respondent no.5 and the denial of the respondent no.3 take necessary steps in terms of the memorandum dated 29th February, 2000 issued by the respondent no.5. 2. The facts, in a nutshell, are that the petitioner, upon participating and emerging to be successful in a selection process for appointment to the post of Cycle Peon, was approved and appointed to the said post at Vivekananda Pathagar/Library (hereinafter referred to as the said Library) and was placed in the scale of pay of Rs.2,22,388/- vide memorandum dated 21st June, 1983 issued by the respondent no.5. Upon receipt of the said memorandum, the petitioner reported for duty on 1st August, 1983 and submitted his joining report but he was not allowed to perform the duty of Cycle Peon. Subsequent thereto, the said respondent no.5 issued a memorandum dated 30th March, 1994 to the respondent no.6 stating inter alia that the petitioner was appointed, approved and posted as Cycle Peon of the said Library with effect from 1st August, 1983 by a memorandum dated 21st July, 1983 and that in terms of the Government order No.55-Edn (SE) dated 9th February, 1980, the District Advisory Council of Social Education, Jalpaiguri was the competent authority in respect of the appointment, transfer, pay scale and allowances etc. in Government sponsored Library but the said memorandum dated 21st July, 1983 was not implemented by the then District Social Education Officer, Jalpaiguri and that as a result thereof, the petitioner was suffering financial hardship since July, 1983. The said respondent no.5 also forwarded necessary papers and documents and requested the respondent no.6 to take necessary action. Thereafter, the petitioner made a representation to the respondent nos.5 and 6 on 12th December, 1996 stating inter alia that on 29th March, 1994 he came to know about the memorandum dated 21st July, 1983 and accordingly by the said representation the petitioner prayed for review of the memorandum dated 21st July, 1983 so that he can be appointed to the vacant post of Cycle Peon in the said Library. Thereafter, the petitioner was forwarded a memorandum dated 29th February, 2000 by which the respondent no.5 had, inter alia, stated that the petitioner was appointed in the concerned post but he could not accept such claim due to absence of specific approval from the departmental authority. By the said memorandum, the said respondent no.5 requested the respondent no.3 to take necessary action in view of the memorandum dated 21st July, 1983. 3. Thereafter the respondents, however, maintained a deceptive silence and did not take any steps in spite of repeated reminders and as such a notice of demand was issued by the petitioner through his learned advocate on 19th May, 2009. 4. In the backdrop of the said facts Mr. Lakshmi Kumar Gupta, learned senior counsel appearing for the petitioner submits that there is no dispute as regards the fact that the petitioner competed in a selection process and upon emerging to be successful in the same he was duly approved, appointed and posted as Cycle Peon in the said Library and was granted the regular scale of pay by the memorandum dated 21st July, 1983 issued by the respondent no.5 and that the said memorandum dated 21st July, 1983 had not been cancelled till date. According to Mr. Gupta the claim of the petitioner is still alive and that he can be accommodated in an existing vacancy pertaining to the post of Cycle Peon which presently has been re-designated as Junior Library Attendant. 5. Mr. Gupta further argues that it would be explicit from the memorandum dated 29th February, 2000 that the petitioner’s claim at that juncture was not rejected on the ground of delay and that there was no dispute as regards authenticity and veracity of the document dated 21st July, 1983. 6. Mr. Gupta further argues that this is not a case of regularization and appointment of any person who had been appointed dehors the recruitment rules. On the contrary, the petitioner participated in a selection process conducted by the respondents in terms of the recruitment rules and that the petitioner emerged to be successful in the same and was accordingly issued a letter of appointment and approval. 7. Mr. On the contrary, the petitioner participated in a selection process conducted by the respondents in terms of the recruitment rules and that the petitioner emerged to be successful in the same and was accordingly issued a letter of appointment and approval. 7. Mr. Gupta further submits that the petitioner’s claim cannot be denied on the ground of delay inasmuch as for the efflux of time in between 21st July, 1983 to 29th February, 2000, no negligence is attributable to the petitioner since after 21st July, 1983, the respondents themselves maintained a deceptive silence and after about eleven years, the respondent no.5 issued the memorandum dated 30th March, 1994 to the respondent no. 6 and as the said respondent did not take any steps, the respondent no.5 by the memorandum dated 29th February, 2000 forwarded the petitioner’s claim to the respondent no.3. 8. According to Mr. Gupta, the efflux of time on and from 29th February, 2000 till the date of filing of the writ application on 16th June, 2009, the attributability of negligence stands shared by the petitioner as well as the state respondents. 9. Pertaining to the issue of limitation, Mr. Gupta places reliance upon the judgment delivered in the case of Ramchandra Shankar Deodhar and Others Versus The State of Maharashtra and Others reported in AIR 1974 SC 259 . 10. Mr. Gupta further submits that at the inception, the writ application was not dismissed on the ground of delay. On the contrary the Hon’ble Court admitted the same with a direction towards exchange of affidavits on 29th June, 2009. 11. The respondents entered appearance and filed an affidavit-in-opposition controverting the allegations made in the writ application. The said affidavit-in-opposition had been affirmed by the respondent no.5 who had inter alia averred that the petitioner’s name was not sponsored by the employment exchange and that there are contradictions in the contention of the writ petitioner inasmuch as on one hand he had stated that he was not allowed to join the said Library on the basis of memorandum dated 21st July, 1983 and subsequently he had taken a plea to the effect that he had no knowledge of the said memorandum dated 21st July, 1983 till 29th March, 1994. It had also been averred that in terms of the Government order dated 11th February, 1981, the secretary of the managing committee is the appointing authority and that the approving authority is the District Advisory Council of Social Education. 12. Mr. De, learned senior advocate appears on behalf of the respondents and emphatically argues that the blatant contradictions in the stand of the petitioner warrants rejection of the writ application. The petitioner cannot go beyond what he had pleaded in the writ application and he cannot make out a third case subsequently. In support of his contention, Mr. De had referred to the averments made by the petitioner in the affidavit-in-reply. 13. According to Mr. De, the petitioner having stated in the writ application that “on receipt of such letter of appointment the petitioner reported for duty on 1st August, 1983 and submitted the joining report but he was not allowed to perform the duty of Cycle Peon and was also not paid his salaries and allowances attached to the post of Cycle Peon as per the letter of appointment”, cannot take a stand that he came to know about the memorandum dated 31st July, 1983 only on 29th March, 1994 and that accordingly thereafter he made a prayer for review. 14. Mr. De further submits that the appointing authority is the managing committee of the concerned Library and the said Library had not been made a party to the writ application. 15. Mr. De emphatically argues that the writ application is liable to be dismissed on the ground of delay inasmuch as the delay is directly attributable to negligence and laches on the part of the petitioner and that at this stage no benefit can be granted to the petitioner as third party right had been created and at present there is also no post of Cycle Peon 16. Mr. De, in support of his contention had placed reliance upon the following judgments :- 1. State of Madhya Pradesh and Another Versus 1.Bhailal Bhai & Others reported in AIR 1964 SC 1006 . 2. Bengal Peerless Housing Development Co. Ltd. Versus Urmila Roy reported in 2007 (3) CHN 640 . 3. Shankara Co-op Housing Society Ltd. Versus M. Prabhakar & Ors. reported in (2011) 5 SCC 607 . 17. Mr. State of Madhya Pradesh and Another Versus 1.Bhailal Bhai & Others reported in AIR 1964 SC 1006 . 2. Bengal Peerless Housing Development Co. Ltd. Versus Urmila Roy reported in 2007 (3) CHN 640 . 3. Shankara Co-op Housing Society Ltd. Versus M. Prabhakar & Ors. reported in (2011) 5 SCC 607 . 17. Mr. Gupta had placed reliance upon the judgment delivered in the case of Ramchandra Shankar Deodhar and Others Versus The State of Maharashtra and Others (supra) but the said judgment is distinguishable on facts inasmuch as in the same there was a delay about 12 years and such delay was found to be attributable to the respondents. 18. Mr. Gupta had further referred to the provisions of Public Library Manual and had inter alia contended that the petitioner was appointed and approved by the competent authority and that as such question of any further approval from the department does not occasion. However, such contention was disputed by Mr. De. 19. Mr. De further submits that having chosen not to approach the Hon’ble Court for a period of more than 26 years, the petitioner cannot contend that for the period from 29th February, 2000 till the date of filing of the writ application on 16th June, 2009, the attributability of negligence stands shared by the petitioner as well as the state respondents. 20. I have heard the submissions made by the learned senior counsels appearing for the respective parties and I have considered the materials on record. The writ application was filed categorically contending that on the basis of the memorandum dated 21st July, 1983 the petitioner reported for duty on 1st August, 1983 and submitted his joining report but he was not allowed to perform. The said averment was reiterated in paragraph 2 (b) of the affidavit-in-reply and that as such the petitioner cannot now take a stand to the effect that he came to know about the memorandum dated 21st July, 1983 for the first time on 29th March, 1994 and cannot contend that the delay for the period from July, 1983 to 29th March, 1994 is not attributable to any negligence on this part. On the rudiments of such contradictory stand, the petitioner cannot claim discretionary relief and the averments made by the petitioner do not provide any explanation whatsoever as to why he had waited for a period of more than 26 years after the issuance of the memorandum dated 21st July, 1983 to prefer the instant writ application. The petitioner is thus guilty of laches and had acquiesced with the situation. 21. It is a well settled position of law that the relief under Article 226 of the Constitution of India is discretionary. A remedy is called discretionary when it is not available as a matter of right and may be refused by the Court when the conduct of the petitioner is such that he does not deserve the discretionary relief. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time. 22. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can be never a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse their extraordinary powers under Article 226 in the case of a person who does not approach the court expeditiously for relief and who stand by and allows things to happen and then approach the court to put forward stale claims and to try to unsettle the settled matters. 23. Admittedly the petitioners had approached this court almost 26 years after issuance of the memorandum dated 21st July, 1983 and the averments made in the writ application do not explain the said delay and in the backdrop of such factual scenario no relief can be granted to the petitioner moreso, when a third party right had been created and when at present there is no such post of Cycle Peon. 24. Mr. Gupta further submits that the petitioner would not be claiming any monetary benefit for the period from 21st July, 1983 till the date of joining to the post. Mr. Gupta further submits that the petitioner is presently 52 years of age and that his claim needs to be considered sympathetically. 25. 24. Mr. Gupta further submits that the petitioner would not be claiming any monetary benefit for the period from 21st July, 1983 till the date of joining to the post. Mr. Gupta further submits that the petitioner is presently 52 years of age and that his claim needs to be considered sympathetically. 25. In my view, any direction towards appointment and placement of the petitioner to the concerned post, after the efflux of a period of 26 years on and from the date of issuance of the memorandum dated 21st July, 1983 till the date of filing of the writ application, would be an instance of misplaced sympathy. 26. Accordingly, the writ application stands dismissed. 27. There shall however no order as to costs.