Jayanta Choudhury vs Prabir Kr. Das and Others

V.K. Khanna, C.J.—This appeal is directed against the judgment of the learned Single Judge in Civil Rule No. 153/93 dated 3rd August, 1994.

At the admission stage, we have heard Mr. D.N. Choudhury, Sr. Advocate assisted by Mr. A. Roy, Advocate for the Appellant, Mr. B. Das, Sr. Advocate appearing for the contesting private Respondent and Mr. A. Chakravarty, Advocate General appearing for the State. Agartala Municipality assisted by Mr. B.P. Kataky.

The Petitioner/Respondent Shri Prabir Kumar Das had filed the above Civil Rule and prayed for a writ directing the Respondent to remove the Appellant/Respondent No. 4 from the Post of Sanitary Inspector and quash the appointment of Respondent No. 4 and has also prayed for a writ of mandamus directing to remove Petitioner/Respondent No. 4 from the aforesaid post. The learned Single Judge under the impugned order has allowed the writ petition and directed the Respondents to remove/terminate the Appellant/Respondent No. 4 from the post of Sanitary Inspector and has also ordered Petitioner to be appointed on the aforesaid post after the Respondent/Agartala Municipality satisfies itself whether on the date of interview the Petitioner was eligible for consideration in every other respect including the age limit prescribed thereof. It has also been held that on the date of the interview if the Petitioner was within the prescribed age limit, he shall be appointed to the said post whether or not by this time he crossed the said age limit as prescribed in the advertisement.

The undisputed facts in this case are that admittedly the Appellant/Respondent No. 4 on the date on which he was appointed to the post of Sanitary Inspector in the Agartala Municipality did not possess the requisite qualification which had been prescribed in the advertisement. The learned Advocate General appearing for the State and the Municipality had made a statement before the learned Single Judge that the appointment of Appellant/Respondent No. 4 was because of the unauthorised interference of the Departmental Minister. The original record has also been produced before us at the time of hearing and we are also satisfied on that score.

On the aforesaid facts therefore the finding recorded by the learned Single judge that the Appellant/Respondent No. 4 had been wrongly appointed in the post of Sanitary Inspector is correct and the appointment of the Appellant/Respondent No. 4 had rightly been quashed by the learned Single Judge.

The next question which arises for consideration is regarding direction which has been given by the learned Single Judge in respect of the Petitioner/Respondent for his appointment on the post of Sanitary Inspector as has been observed by us in the foregoing paragraphs of this judgment.

Mr. Das, counsel appearing for the Petitioner/Respondent has placed reliance on the decision by the Apex Court in the case of Krishan Yadav and another Vs. State of Haryana and others, In support of the contention, he has raised before us the question as regards exclusion of the Appellant/Respondent No. 4, the only eligible candidate left for appointment who had requisite qualification according to the advertisement and thus direction of the learned Single Judge in that regard should not be set aside.

On the question Mr. Chakravarty learned Advocate General, appearing for the State OF Tripura and also for the Agartala Municipality has brought to out notice from the original record that the Selection Committee had not made recommendation in favour of the Petitioner/Respondent.

On a perusal of the case of Krishan Yadav (Supra) we are of the opinion that the Apex Court in paragraph 20 of the judgment has held as follows:

In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "fraud unravels everything". To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors.

From the law laid down by the Apex Court in the case of Krishan Yadav and Another (Supra) it is thus clear that the entire selection is to be quashed and the Petitioner/Respondent who was ordered to be posted in the Sanitary Inspector, cannot be upheld. In our opinion, to that extent the judgment of the learned Single Judge has to be set aside.

Looking to the entire facts and circumstances of the case and also the law laid down by the Apex Court in the case of Krishna Yadav (supra) we are of the opinion that the Respondent/Agartala Municipality will now hold Selection afresh as has been held by the Apex Court and will consider the case of the Petitioner/Appellant in accordance with law irrespective of the fact that he may have crossed the maximum age requirement. We may note the argument made by the Advocate General. Tripura on this question that the Petitioner/Respondent has not in fact cross the age and he is eligible to be considered for fulfilling the condition for appointment to the post of Sanitary Inspector. So far as the Appellant is concerned, in case be fulfills, the qualification which will be laid down for the fresh selection, the Municipal Board, Agartala will also consider his case and the cases of all other candidates who will apply for that post and fulfill the qualifications which are laid down by the appropriate authority.

For the reasons stated above, the present appeal is partly allowed. In view of what we have observed, the order of the learned Single Judge is quashed to the extent indicated above. However, looking to the facts and circumstances of the case, the parties shall bear their own costs.

The original case records will be transmitted to the Agartala Bench with a copy of this judgment forthwith.