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2023 DIGILAW 998 (CAL)

Kalidas Biswas v. State of West Bengal

2023-06-23

RAJA BASU CHOWDHURY

body2023
JUDGMENT : Raja Basu Chowdhury, J: In Re: CAN 2 of 2023 1. This connected application has been filed, inter alia, praying for recalling of the order dated 3rd January, 2023 by which the writ petition, being WPA 3619 of 2006 stood dismissed for default. 2. Heard the learned advocates appearing for the respective parties and considered the materials on record. I am satisfied with the explanation given by the applicant/petitioner and the applicant/petitioner has been able to demonstrate that he was prevented by sufficient cause from appearing when the writ application was dismissed for default. 3. In view thereof, the order dated 3rd January, 2023 is recalled and the writ application, being WPA 3619 of 2006 is restored to its original file and number. 4. The application for restoration, being CAN 2 of 2023 is disposed of accordingly. Re: WPA 3619 of 2006 5. At the very outset, it is submitted by the parties that consequent upon the Electricity Act, 2003 being notified, by a notification published in the Kolkata Gazette on 25th January, 2007, the Governor, in exercise of powers under Sub-Section (4) of Section 131 of the Electricity Act, 2003, had been pleased to notify a Scheme for providing and giving effect to the transfer and vesting of all properties and all interests, rights and liabilities of the Board in the State Government and re-vesting thereof by the State Government in the West Bengal State Electricity Transmission Company (WBSETC) and West Bengal State Electricity Distribution Company (WBSEDC) along with other properties, interest, rights and liabilities of the State Government and for determining the terms and conditions on which such transfers or vesting or revesting shall be made. 6. By referring to the aforesaid notification it is submitted that consequent upon operation of the aforsaid scheme, the interst of the respondent no.2 has been transferred to and is finally vested in the West Bengal State Electricity Distribution Company Limited (WBSEDCL). By referring on the aforesaid notification, Mr. Chatterjee, leanred advocate appearing for the petitioner seeks leave to amend the cause title of the writ appliction by incorporating the name of West Bengal State Electricity Distribution Company Limited (WBSEDCL) in place and stead of West Bengal State Electricity Board (WBSEB). 7. By referring on the aforesaid notification, Mr. Chatterjee, leanred advocate appearing for the petitioner seeks leave to amend the cause title of the writ appliction by incorporating the name of West Bengal State Electricity Distribution Company Limited (WBSEDCL) in place and stead of West Bengal State Electricity Board (WBSEB). 7. Considering the submission made by the advocates for the parties, leave is granted to the petitioner’s advocate-on-record to correct the cause title of the writ application, by substitution the name of the respondent no.2 with West Bengal State Electricity Distribution Company Limited (WBSEDCL wherever necessary. 8. Let such correction be carried out in course of the day. 9. The writ petitioner was appointed as Sramik in the year 1980 under the respondent no.2. Subsequently, the writ petitioner had enhanced his qualification and had obtained B.E. Degree. Following the aforesaid, he had made representations before the concerned authority, inter alia, to have him promoted to the post of Assistant Engineer (Class-I). Such representations were not adhered to. Subsequently the petitioner had participated in a selection process for the post of Management Trainee (Engineering) along with outsiders. Although he claims that he was successful in the written test and viva-voce, his case was not considered despite being a departmental candidate. 10. Being aggrieved the petitioner had filed a writ petition. By an order dated 14th June, 1995, a Coordinate Bench of this Hon’ble Court was, inter alia, pleased to dispose of the writ petition by directing the respondents to consider the case of the petitioner after giving an opportunity of hearing to the petitioner by passing a reasoned order. 11. Pursuant to the aforesaid order, the petitioner was advised to appear before the Chairman of the then respondent no.2. In course of hearing before the Chairman of the then respondent no.2, the petitioner had submitted that he had applied for the selection to the post of Management Trainee (Engineering) and appeared in the written test held on 10th October, 1993, and was successful in the written test as a Scheduled Caste candidate. Subsequently, he appeared in the viva-voce which was the second phase of selection. Since the name of the petitioner did not figure in the final list of successful candidates of Management Trainee (Engineering), he submitted before the Chairman that he may be given relaxation as a departmental candidate. 12. Subsequently, he appeared in the viva-voce which was the second phase of selection. Since the name of the petitioner did not figure in the final list of successful candidates of Management Trainee (Engineering), he submitted before the Chairman that he may be given relaxation as a departmental candidate. 12. The Chairman of the then respondent no.2, upon taking into consideration all relevant facts was, inter alia, pleased to observe that the petitioner was considered for selection along with outsiders and some relaxation was given for age as he had already, by then crossed 35 years, apart from the privilege of being a Scheduled Caste candidate. However, taking into consideration the fact that the selection was made on the basis of the total marks in two-tier selection process and that there was, cut-off marks for final empanelment and the candidates obtaining less than cut-off marks were not considered, the petitioner’s case for further relaxation could not be acceded to, solely because the petitioner was an employee of the respondent no.2 and belonging to the Scheduled Caste category. In such view of the matter, the Chairman of the then respondent no.2, while rejecting the petitioner’s prayer recording that he had been given enough opportunity during the selection process to the post of Management Trainee (Engineering) and there being hardly any scope to reopen the case at this stage, disposed of the case by passing a reasoned order. 13. Subsequently, the petitioner claims to have filed yet another application along with other candidates, being WP No. 19935 (W) of 2005. Such fact would corroborate from paragraph 10 of the writ petition. The said writ application was based on a completely separate cause of action. 14. By an order dated 17th November, 2005, a Coordinate Bench of this Court was, inter alia, pleased to dispose of such application by granting an opportunity to the petitioners to such application to make a representation to the Secretary, West Bengal State Electricity Board, seeking promotion to the post of Assistant Engineer. It was made clear in the aforesaid order that in the event such representation is made within three weeks, the Secretary shall consider the same in accordance with law, after giving opportunity of hearing to the petitioners and/or their representatives. 15. It was made clear in the aforesaid order that in the event such representation is made within three weeks, the Secretary shall consider the same in accordance with law, after giving opportunity of hearing to the petitioners and/or their representatives. 15. From the order dated 28th January, 2008 passed by the Member Secretary of the respondent no.2, it appears that he had disposed of the representations made by other candidates including the petitioner by recording that there was no scope to grant direct promotion to the petitioners to the post of Assistant Engineer on the petitioners acquiring higher qualification, by observing as follows:- “Employees serving in Class-II & III have scope for 3 (three) Assured Promotions, irrespective of their qualifications and irrespective of vacancies. The petitioners in question have obtained and/or are to obtain benefit of such promotion in due course through their respective promotional path. All the petitioners, who are now serving at Class-II level, will be entitled to promotion to the post of Assistant Engineer on completion of the prescribed period of service. Other petitioners who are serving at levels below Class-II will also be entitled to post of Assistant Engineer through the step by step promotional path on completion of a total 8/16/25 years of service as the case may be. There is no scope in the promotion rules to promote any employee directly to the post of Assistant Engineer avoiding such step by step promotional path”. 16. The aforesaid order forms subject matter of challenge in the present writ application. During the pendency of this application, the petitioner retired from service sometimes in the year 2009. 17. Still later some times on 8th August, 2016, the petitioner has affirmed a supplementary affidavit and has made out a further case that in the aforesaid previously held selection process, the respondents had favoured three (3) candidates who had obtained less marks. A belated case of discrimination has been attempted to be made out. 18. Mr. Chatterjee, learned advocate representing the petitioner submits that although the petitioner had retired yet the petitioner’s right to be considered for promotion, though notionally subsists. By placing reliance on a supplementary affidavit affirmed by the petitioner on 8th August, 2016, he submits the petitioner despite securing 36 marks in the written and viva-voce examination in the selection process for the post of Management Trainee (Engineering), the petitioner’s case was not considered. 19. By placing reliance on a supplementary affidavit affirmed by the petitioner on 8th August, 2016, he submits the petitioner despite securing 36 marks in the written and viva-voce examination in the selection process for the post of Management Trainee (Engineering), the petitioner’s case was not considered. 19. By referring to the marks obtained by three (3) other candidates in serial no.10, 14 and 24, he submits that notwithstanding the aforesaid candidates having acquired lesser marks, their cases were considered by the Selection Committee. Having regard to the aforesaid he submits, at least, the petitioner’s case should be considered by the respondents and be disposed of by passing a reasoned order. 20. Per contra, Mr. Koley, learned advocate representing the respondents submits that the aforesaid selection process has long been completed. Pursuant to the liberty granted by this Hon’ble Court, the petitioner’s case was considered by the then Chairman of the respondent no.2 and by a detailed order the Chairman had declined to afford further relaxation in his case. Insofar as, the promotional avenue to the post of Assistant Engineer is concerned, the Member Secretary of the respondent no.2 vide order dated 28th January, 2006 has already held that the petitioner does not have any legal right to be directly appointed to the post of Assistant Engineer. In any event, since the petitioner had already retired, the aforesaid issue is academic and the present writ application should be dismissed. 21. Heard the learned advocates appearing for the respective parties and considered the materials on record. I find that the petitioner had initially participated in a selection process, initiated by the respondents along with the outsiders for being selected to the post of Management Trainee (Engineering). 22. Records would reveal that notwithstanding the petitioner having crossed the age bar, the respondents had relaxed the same for the petitioner to participate in such selection. The Chairman of the then respondent no.2 by a detailed order, upon examining the records of the selection process to the post of Management Trainee (Engineering), had concluded that the petitioner’s case was considered against the reserved vacancy for the category of Scheduled Caste. The selection was made on the basis of total marks obtained in the two-tier selection process, i.e. written test and viva-voce. There was a cut-off marks for final empanelment and candidates obtaining less than cut-off marks, were not ultimately considered for empanelment. The selection was made on the basis of total marks obtained in the two-tier selection process, i.e. written test and viva-voce. There was a cut-off marks for final empanelment and candidates obtaining less than cut-off marks, were not ultimately considered for empanelment. The total marks obtained by the petitioner was below the cut-off marks, though the cut-off marks for Scheduled Caste candidates were less than the cut-off marks for general candidates. The petitioner never came within the zone of consideration even as a candidate of the reserved category. 23. The records further reveal that after the aforesaid order was passed, the petitioner did not challenge the same. On the contrary, the petitioner appears to have made a representation for being considered for promotion. Following the aforesaid, a writ petition, being WP. No. 19935 (W) of 2005 was filed by the petitioner along with other similarly placed candidates. 24. A Coordinate Bench of this Hon’ble Court by an order dated 17th November, 2005, taking into consideration the fact that the petitioners were seeking promotion to the post of Assistant Engineer, had directed the Member Secretary of the then respondent no.2 to consider their case. The Member Secretary had since considered the case and had disposed of the same by a reasoned order dated 28th January, 2006. 25. As noted above, the Member Secretary has categorically come to a conclusion that there was no promotional avenue available for directly promoting an employee to the post of Assistant Engineer serving in Class-II and III, upon such employee enhancing his qualification. In the present case, the petitioner has, however, challenged the said order passed by the Member Secretary. 26. The original application, however, does not concern any challenge to the selection process. Although an attempt has been made by the petitioner to enlarge the scope of the writ petition, by filing a supplementary affidavit in the year 2016, the same appears to be an after thought. The selection process appears to have been concluded decades ago. The petitioner had reached the age of superannuation sometimes in the year 2009, the challenge to such process after more than a decade cannot be sustained. 27. Insofar as, the order dated 28th January, 2006 is concerned, I find that the Member Secretary of the then respondent no.2 had duly considered the petitioner’s case vide order dated 28th January, 2006. The petitioner had reached the age of superannuation sometimes in the year 2009, the challenge to such process after more than a decade cannot be sustained. 27. Insofar as, the order dated 28th January, 2006 is concerned, I find that the Member Secretary of the then respondent no.2 had duly considered the petitioner’s case vide order dated 28th January, 2006. I do not find any reason to interfere with the same. No case for interference is made out. 28. The writ petition, being WPA 3619 of 2006 stands dismissed. 29. There shall be no order as to cost. 30. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.