Amitava Mukherjee vs State of West Bengal and Others

Paritosh Kumar Mukherjee, J.—This writ petition was moved on behalf of Amitava Mukherjee praying, inter alia, for a Writ in the nature of Mandamus upon the respondents directing them not to give any further effect to the Memo. No. WBFS/6510/RC-A/ AMO/84-85 dated October 31, 1988, issued by the Director West Bengal Fire Service, being respondent No.2 herein, which is Annexure E to the writ petition.

By the said communication, in reply to the letter demanding justice filed on behalf of the writ petitioner, the Director of West Bengal Fire Service informed Mr. Asoke Kumar Jana, learned Advocate for the writ petitioner, to the following effect:

(a) Your client has given you incorrect as well as incomplete instruction in the matter of panel and appointment from the panel of Assistant Mobilising Officer under the Directorate of Fire Service.

(b) There were total number of 23 vacancies in the said post of Assistant Mobilising Officer (hereinafter referred to as the AMO, for brevity) under the Director of West Bengal Fire Service and after written test and interview a panel was prepared strictly according to merit on the basis of the said test and interview.

(c) The said panel was prepared with 25 candidates to provide for possible dropouts. Out of the said 23 vacancies, 6 posts were reserved for Scheduled Castes/ Scheduled Tribe candidates.

(d) Appointments were given from the said panel strictly according to the position of the candidates in the panel. As your client''s position in the panel was as one of the lowest mark holders, he did not get any appointment. As a matter of fact, whenever a panel is prepared, the same includes candidates more than vacancies to meet the situation arising from some candidates not turning up or for any reason not being available.

(e) Inclusion of name in the panel is not a guarantee for appointment.

(f) Your client has and should have no justification for demanding appointment only because his name was included in the panel.

Mr. Phalguni Sarkar, learned Advocate appearing on behalf of the petitioner, at the final hearing of the writ petition, has placed the communication issued by the Director of Fire Service dated October 3, 1985, which is Annexure A to the writ petition.

It appears that the Director of West Bengal Fire Service informed the writ petitioner Amitava Mukherjee to the following effect:-

"You have been selected for employment in the Directorate of West Bengal Fire Service for the post of A.M.O. subject to verification of antecedents by Police authorities and certain other conditions. As such blank verification of antecedents form in duplicate is sent to you for your favour of properly filling in the same and early submission to this Directorate.

Sd/- Illegible Director West Bengal Fire Service."

After placing the aforesaid communication, Mr. Sarkar submitted before this Court that the State Govt. having selected the writ petitioner for employment in the Directorate of Fire Service for the post of A.M.O. subject to the verification of the antecedents by the police authorities, the State Government cannot take a different view as sought to be taken in the affidavit in opposition affirmed by the Deputy Director of Fire Service on February 20, 1989, and the supplementary affidavit affirmed on July 9, 1990.

According to Mr. Sarkar, in view of the aforesaid communication already made to the writ petitioner on October 3, 1985, the only thing what remains before getting appointment was the police verification and since police verification having regard to the antecedents having been made, there could not be any impediment on the part of the respondent to issue formal letter of appointment, which has not been issued in the facts of the present case.

In support of this branch of submission, Mr. Sarkar has placed reliance on the judgment of the Supreme Court in the case of Bhim Singh and Others Vs. State of Haryana and Others, wherein V.R. Krishna Iyer, J. having extended the principles of "promissory estoppels" in the matter of employment held that since the appellants in that case believing the representation made by the State and having further acted upon cannot be defeated of their hopes which have crystalised into rights by virtue of the doctrine of promissory estoppel, and therefore, it was not open to the State to "backtrack".

According to Mr. Sarkar, the principles laid down by the Supreme Court, in the case of Bhim Singh (supra) can be applied with full force in the facts of the present case, as undoubtedly the Director of Fire Service by letter dated October 3, 1985, in fact, offered the employment in the post of A.M.O. subject to the verification of antecedents by the police authorities and such antecedents having been duly verified in favour of the petitioner, the respondents cannot "backtrack" from the said offer.

Thus, according to Mr. Sarkar, it is a fit case where this Court may issue a Writ in the nature of Mandamus upon the respondents to issue formal letter of appointment in favour of the writ petitioner.

Mr. Pranab Kumar Chatterjee, learned Advocate, appearing with Mrs. Gita Gupta for the State respondents, has placed reliance on the original affidavit in opposition affirmed on behalf of the respondents wherein he has placed the following facts for consideration of this Court:-

(a) There were total 23 vacancies in the post of Assistant Mobilising Officer, 17 unreserved and 6 reserved for Scheduled Caste and Scheduled Tribe candidates. For 23 vacancies the respondents prepared a panel containing 25 names. The said panel was prepared on the basis of the results of the candidates in interview. A true copy of the said panel has been annexed as Annexure A to the said affidavit.

(b) It appears from the said panel that the petitioner obtained 50 marks in the interview which was the lowest mark obtained by the candidates.

(c) There were 20 candidates who secured highest marks. The candidates securing 50 marks being the lowest obtained by the candidates in the panel could not be appointed as there were only 17 vacancies in the unreserved seats and, as such only 17 candidates securing higher marks were appointed in the said 17 vacancies in order of merit.

(d) According to the deponent, the petitioner''s claim that he was entitled to be given appointment because he was empanelled is wholly without any basis whatsoever.

(e) The petitioner has no claim to be appointed in the reserved vacancy meant for reserved category.

On being pointed out by the Court, the respondents, who were given further opportunity to file affidavits to state in more details, a supplementary affidavit was affirmed and filed on July 9, 1990, wherefrom the following facts are stated herein below-

On the basis of the selection tests for appointment of Assistant Mobilising Officers, a panel or list of 25 successful candidates for appointment in the said post of Asstt. Mobilising Officer was prepared on 31st July, 1985. The said panel was prepared against 23 vacancies in the post of Asstt. Mobilising Officer, out of which five posts were reserved for SC/ST candidates. Amongst successful candidates included in the said panel there was only one Scheduled Caste candidate and he was given appointment. There were and are four vacancies in the SC/ST category which have not been filled up.

After having five reserved posts for SC /ST candidates out of total 23 vacancies only 18 posts were available for being filled up in the general category and the said 18+1=19 vacancies were intended to be filled up by appointing the following candidates included in the said panel of selected candidates on the basis of their higher marks which are stated herein below-

Chanchal Kr. Chatterjee (52)

Sanjay Bhattacharjee (56)

Priti Kr. De (55)

Mrityunjay Bhattacharjee (63)

Dipesh Chakraborty (51)

Dilip Kr. Chakraborty (51)

Biswajit Bandopadhaya (60) 8.Sunil Kr. Patra (51)

Ashis Sil (53)

Subhas Ch. Bhattacharjee (61)

Sekhar Chatterjee (56)

Shyamprasad Mukhopadhaya (52)

Subrata Chakraborty (52)

Syd. Aktar Khan (57)

Ananda Gopal Singha (52)

Provat Roy (55)

Barun Sankar Banerjee (51)

Subodh Ch. Das (53)

Manju Ghosh (50)

It is pertinent to state that Motilal Bhattacharjee who secured 55 marks and Bhuban Mohan Das who secured 51 marks were in the panel of successful candidates and they are also eligible for appointment in the post of A.M.O. But appointment letters in their favour could not be issued because there was considerable delay in completing the police verification and, in the meantime, before despatch of the appointment letters, the petitioner Amitava Mukherjee had moved the present writ petition. As a result, out of 18 posts originally available for candidates belonging to the general category, two successful candidates, namely Motilal Bhattacharjee and Bhuban Mohan Das, though entitled to be appointed, appointment letters in their favour not having been issued, there were two vacancies in the general category, which were earmarked for the said two candidates. In SC/ST category only one SC candidate Manju Ghosh was given appointment and so there are four vacancies in the SC/ST category.

Mr. Sarkar on the basis of the aforesaid averments made in the supplementary affidavit craves leave to refer from the Schedule of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 (Act XXVII of 1976),i.e. from schedule (vi) which is as follows:-

In the absence of a qualified Scheduled Caste/Scheduled Tribe candidate in a particular year, the vacancy shall be carried forward for the next two years and need not be carried beyond that period.

As such, according to Mr. Sarkar, if there is no suitable candidate from the SC category, the said category may be filled up by selecting ,'' from the unreserved category, in view of the schedule stated as aforesaid.

After considering the aforesaid submissions of both the parties, it appears before this Court that the respondents having offered appointment to the petitioner subject to verification of antecedents by the police authorities by letter dated October 3, 1985, the respondents cannot backtrack from the said stand and cannot take a different stand, as referred to in the affidavit in opposition and in the supplementary affidavit, referred to hereinabove.

In my view, since the petitioner''s verification of antecedents by the police authorities has gone in favour of the writ petitioner, there could not be any impediment on the part of the respondents, to issue formal letter of appointment in favour of the writ petitioner in view of the decision in Bhim Singh''s case (supra) cited as aforesaid.

In the result, the writ petition is allowed. The respondents are directed by a Writ in the nature of Mandamus to issue formal letter of appointment in favour of the writ petitioner within a period of two months from communication of this order.

It is made clear, if the writ petitioner has crossed the age limit because of the delay in verification of the antecedents, that should not stand in the way of the writ petitioner to get appointment in his favour in view of the peculiar circumstances stated as aforesaid.

The writ petition is allowed.

There will be no order for costs.

Let a xerox copy of this order be given to the learned Advocate for the petitioner on observing formalities.