Bappa Dutta vs State Of West Bengal & Ors.

Moushumi Bhattacharya, J

The petitioner has challenged an order passed by the Director of Employment, West Bengal on 24.10.2017. The order was passed pursuant to a direction of a learned Single Judge, as his Lordship then was, dated 5.9.2017 whereby the concerned authority was directed to pass a reasoned order on the application of the petitioner and 6 others. The petitioner was heard before the impugned order was passed.

The petitioner’s case is that the petitioner worked as an enumerator in connection with the census operations of 1990-1991 and was issued an Experience Certificate by the concerned authority on the basis of the petitioner’s work as an enumerator from 1990-1991.

Learned counsel appearing for the petitioner relies on the Experience Certificate issued by the Chairman, Borough-XII, Calcutta Municipal Corporation. Counsel submits that the Chairman was the competent authority to issue certificate of such nature during the relevant pint of time.

Learned counsel appearing for the State seeks to sustain the impugned order and relies on a judgment passed by the Supreme Court in an appeal filed by the State in State of West Bengal & Anr. vs. Kalyani Samanta (Mondal) and Ors.; Civil Appeal No. 7372/2016. Counsel submits that after the Supreme Court decision in Kalyani Samanta (Mondal), the petitioner cannot rely on the Experience Certificate issued by the Chairman, Borough-XII, Ganesh Guha Thakurtha. Counsel relies on a Notification issued by the Labour Department, Government of West Bengal dated 21.8.2002 which requires Experience Certificates to be issued by the Directorate of Census Operation, West Bengal or any other competent authority authorised by the said Directorate. Counsel submits that a similar Notification was in operation for the census of 1991. According to counsel, the Block Development Officer and Chairman / Executive Officers of the Municipalities and the Notified Area Authorities should be treated as competent authorities to issue Experience Certificates. However, the petitioner has not produced a certificate issued by any of such authorities.

The undisputed facts are that the order dated 24.10.2017 which is under challenge in the present writ petition, was passed in compliance with the direction of a learned Single Judge, as his Lordship then was, on 5.9.2017. The said order directed the Director of Employment to pass an order in consonance with the judgment of the Calcutta High Court in W.P. No. 10211(W) of 2013. A Co-ordinate Bench passed an earlier order on 13.8.2015 in two other writ petitions of 2015 directing the Director of Employment to enrol the names of the petitioners namely those candidates with Certificates from the Chairman of Borough – XII, K.M.C. The order passed by the Co-ordinate Bench on 13.8.2015 was challenged by the State Government before the Division Bench and by a judgment and order dated 27.4.2016, the Division Bench affirmed the order of the First Court dated 13.8.2015. The State challenged the order of the Division Bench before the Supreme Court and by an order dated 1.8.2016, the Supreme Court was pleased to stay the operation of the impugned judgment until further orders. The Civil Appeal was finally disposed of by the Supreme Court by an order dated 1.9.2021. The Supreme Court set aside both the orders of the learned Single Judge dated 13.8.2015 as well as of the Division Bench dated 27.4.2016. The reasons for the decision would appear from the order of the Supreme Court which is part of the records.

The impugned order dated 24.10.2017 was passed before the Civil Appeal was finally disposed of by the Supreme Court. The Director of Employment / respondent no. 4 accordingly thought it fit to keep the decision pertaining to the writ petitioner in abeyance until the matter is disposed of by the Supreme Court. The only orders which were before the respondent no. 4 at the material point of time were the orders of the learned Single Judge dated 13.8.2015, the order of the Division Bench affirming the First Court dated 27.4.2016 and the interim order of stay granted by the Supreme Court on 1.8.2016 in an appeal filed by the State. The stay of operation of the impugned judgment was interim in nature and was passed in favour of the State respondents.

The Supreme Court disposed of the Civil Appeal by the order dated 1.9.2021. As stated above, both the orders of the First Court as well as the Division Bench were set aside.

Although counsel appearing for the petitioner submits that the order passed by the Supreme Court in Kalyani Samanta (Mondal) setting aside the orders of the Single Bench as well as the Division Bench would not have a bearing in the present matter, this Court is not inclined to accept the submission. The only reason given for the Supreme Court decision in Kalyani Samanta (Mondal) not being applicable to the present matter is that the said order was not passed under Article 142 of the Constitution of India.

This cannot be a ground for disregarding the order of the Supreme Court since the order contains reasons as to why the Certificates issued to the writ petitioners (respondents before the Supreme Court) were found not to be genuine. The Supreme Court has given reasons for coming to this finding including the fact that Ganesh Guha Thakurtha functioned as the Chairman of the concerned Borough from 13.9.1995 – 28.6.2000 and further that the Certificates do not refer to any records maintained by the Borough - Municipal Corporation. The Supreme Court was also of the view that the records revealed that the Borough records were not available in 2002. The Supreme Court therefore opined that the High Court fell into error in accepting the petitioner’s argument and directing acceptance of the Certificate issued by the Chairman, Borough, Calcutta Municipal Corporation.

The petitioner admittedly relies on the Experience Certificate issued by the Block Development Officer Ganesh Guha Thakurtha who was the Chairman of Borough – XII of the KMC at the relevant period of time. The petitioner relies on this Certificate to claim registration of the petitioner’s name under the Exempted Category Cell and a direction on the respondents to nominate the petitioner for the post of Sub-Inspector in the Food & Supplies Service (Grade - III) under the Food and Supplies Department of the Government of West Bengal. The petitioner cannot claim nomination on the strength of an Experience Certificate alone without going through the process of assessment of the petitioner’s eligibility. The impugned order simply states the facts as existed on the date of the impugned order which are also admitted before the Court. In any event, the petitioner now seeks quashing of the impugned order dated 24.10.2017 while much water has flown since then in the form of the final order of the Supreme Court dated 1.9.2021. The contention of the petitioner of the Supreme Court’s order in Kalyani Samanta (Mondal) not being binding on this Court is considered and rejected on the substantial similarity of facts.

In any view of the matter however, the petitioner is entitled to a final order by the respondent no. 4. The respondent o. 4 shall hence consider the effect of Kalyani Samanta (Mondal) as decided by the Supreme Court on 1.9.2021 within a period of 6 weeks from date. The petitioner shall be heard in the proceedings. The respondent no. 4 shall also take into account the allegation made by the petitioner with reference to violation of Article 14 of the Constitution to the extent of similarly-placed persons being granted certain benefits which have been denied to the petitioner. This relates to the allegation that others whose certificates were also issued by Ganesh Guha Thakurtha were given the benefit of the certificates.

It is made clear that the respondent no. 4 / Director of Employment shall pass a reasoned order within the time directed without being influenced by any of the views expressed by this Court. A copy of the reasoned order shall be made available to the petitioner within a week from the date on which the reasoned order is passed. It is also made clear that the Court has not gone into the issue of the petitioner’s eligibility for nomination to the concerned post.

WPA 19145 of 2022 is accordingly disposed of in terms of the above.

Urgent Photostat certified copies of this judgment, if applied for, be supplied to the parties upon fulfillment of requisite formalities.