Kamalendu Halder vs Union Of India & Ors.

Dipankar Datta, J

The Airport Health Officer, Netaji Subhas Chandra Bose International Airport, Dumdum, Kolkata had initiated a recruitment process sometime in 1998 to fill up vacant posts of field workers/fumigation workers in the Airport Health Organization. The candidates sponsored by the local employment exchange were duly called upon to participate in the process of selection whereupon a panel was prepared. Appointment letters were issued in favour of the empanelled candidates which, inter alia, included Kamalendu Halder (the petitioner herein), Somnath Naskar (hereafter Somnath), Biswajit Sarkar (hereafter Biswajit), Monish Aich (hereafter Monish), Prolay Chakraborty (hereafter Prolay), Gopal Debnath (hereafter Gopal), etc. On the strength of appointment letters issued in favour of the aforesaid candidates, they had reported before the airport health officer for joining. However, by an order dated December 4, 1998, the offers of appointment were sought to be cancelled.

The said appointees came to learn that one Dr. S.S. Sardar (hereafter Dr. Sardar) had been in charge of the process of selection. It was also learnt that Dr. Sarkar had indulged in nepotism, for which the selection process was considered to have been vitiated and the said appointees denied joining. However, since there was no order issued by the Director General of Health Service, Ministry of Health and Family Welfare, Govt. of India instructing cancellation of the offers of appointment but the director general had only instructed that the process of appointment should be kept in abeyance, Kamalendu Halder (hereafter Kamalendu), Somnath, Biswajit, Monish, Prolay and Gopal perceived the action of the airport health officer in seeking to cancel the offers of appointment as illegal and arbitrary. Accordingly, they jointly moved the Central Administrative Tribunal, Calcutta Bench by presenting O.A. 1504 of 1999. The tribunal allowed the original application by its judgment and order dated January 20, 2000 and quashed the order of cancellation dated December 4, 1998. The respondents were directed to consider the case of the applicants for issuance of letters of appointment after obtaining medical fitness certificate and verifying their antecedents, within a period of 3 (three) months from the date of communication of the order.

The respondents in O.A. 1504 of 1999 challenged the said judgment and order of the tribunal before this Court by presenting a writ petition, registered as W.P.C.T. 94 of 2000. A coordinate Bench, for the reasons assigned in its judgment and order dated August 2, 2000, allowed the writ petition. The impugned judgment and order of the tribunal, accordingly, stood set aside. The materials before us do not reveal that the judgment and order passed on August 2, 2000 was challenged before the Supreme Court.

It appears that disciplinary proceedings had been initiated against Dr. Sardar in relation to acts of omission/commission on his part pertaining to the selection process in question. Dr. Sardar, however, was not found to be guilty in the disciplinary proceedings. This encouraged Kamalendu, Somnath, and Biswajit to approach the tribunal once again jointly, by filing O.A. 298 of 2009, seeking order on the respondents to allow them join pursuant to the appointment letters issued earlier. Such application was dismissed by a judgment and order of the tribunal dated January 12, 2011.

Kamalendu did not join Somnath and Biswajit in challenging the said judgment and order before this Court. They presented a writ petition, registered as W.P.C.T. 159 of 2012. A coordinate Bench, for the reasons recorded in its judgment and order dated April 24, 2015, set aside the impugned judgment and order and allowed the writ petition with direction upon the respondents therein to allow Somnath and Biswajit to join their duties within 3 (three) weeks.

A special leave petition was carried from such judgment and order to the Supreme Court at the instance of the Union of India and its officers. It, however, stood dismissed by an order dated January 3, 2017. The judgment and order dated April 24, 2015 passed on W.P.C.T. 159 of 2012 filed by Somnath and Biswajit inspired Kamalendu to present this writ petition on June 5, 2015 and challenge the judgment and order dated January 12, 2011 dismissing O.A. 298 of 2009. Kamalendu sought for similar relief as had been extended to Somnath and Biswajit by this Court while allowing W.P.C.T. 159 of 2012.

During the pendency of the writ petition, an application for addition of party (CAN 5472 of 2015) came to be filed by Monish, Proloy and Gopal. While praying for their impleadment in the writ petition as respondents, they intended to obtain similar relief as prayed for by Kamalendu.

We have heard Mr. Neogi, learned advocate for Kamalendu, Mr. Nandi, learned advocate for the respondents and Mr. Chowdhury, learned advocate for the applicants in CAN 5472 of 2015.

In our opinion, although Kamalendu can claim to be similarly circumstanced as Somnath and Biswajit in the sense that all of them had joined together as applicants before the tribunal in O.A. 298 of 2009, Kamalendu is not entitled to claim relief that Somnath and Biswajit were accorded by the coordinate Bench of this Court while disposing of W.P.C.T. 159 of 2012 by the judgment and order dated April 24, 2015, notwithstanding the fact that the Supreme Court did not interfere with the same and it has attained finality.

The first reason for which we were not persuaded to entertain the claim of Kamalendu is that the writ petition is thoroughly belated. It has been presented more than 4 (four) years after O.A. 298 of 2009 was dismissed by the tribunal by the impugned judgment and order. It is pleaded in the writ petition that Kamalendu derived knowledge of the order dated April 24, 2015 on May 15, 2015 and collected the photocopy thereof on June 3, 2015. It is thereafter that the writ petition was presented. Kamalendu has also pleaded that the delay in approaching the Court is not intentional.

We are of the clear view that Kamalendu, after dismissal of O.A. 298 of 2009, was sitting on the fence. He did not take the risk of joining Somnath and Biswajit in their challenge to the judgment and order of the tribunal when W.P.C.T.159 of 2012 came to be filed. It is only upon W.P.C.T. 159 of 2012 succeeding that Kamalendu felt encouraged to climb down from the fence and approach this Court with this writ petition. We wonder whether he would have any reason to approach this Court, if for some reason W.P.C.T. 159 of 2012 were dismissed.

We are reminded of the law laid down by the Supreme Court in U.P. Jal Nigam v. Jaswant Singh, reported in (2006) 11 SCC 464. There, the employees of the Jal Nigam were retired upon attaining the age of 58 (fifty-eight) years although employees of the State Government were permitted to continue till 60 (sixty) years, being the age of retirement. A writ petition was filed by some of the employees challenging the retirement age of 58 (fifty-eight) years. The same failed before the High Court. The issue was decided by the Supreme Court in

Harwindra Kumar v. Chief Engineer, Karmik, reported in (2005) 13 SCC 300. The Court ruled in favour of the employees. Since the employees had already crossed the age of 60 (sixty) years, the relief of reinstatement was not granted but financial benefits were directed to be released as if they were in service till completion of 60 (sixty) years of age. Noticing that the petitioning employees in Harwindra Kumar (supra) only were extended financial benefits and not the other employees, a writ petition was presented before the High Court claiming similar relief as extended in terms of the decision in in Harwindra Kumar (supra). The High Court allowed the writ petition. In appeal, the decision was reversed by the Supreme Court. It has been held there as follows:

"6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years."

After considering Halbury's Laws of England, this is what the Court observed:

"13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, ***. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?

Applying the aforesaid principle to the facts before us, we have no hesitation to hold that the delay and laches in approaching the Court is fatal and that the writ petition should fail.

There is one other weighty reason for which we are disinclined to redress the grievance of Kamalendu.

Although the coordinate Bench granted relief to Somnath and Biswajit, as noticed above, it does not appear that the opinion expressed by the earlier coordinate Bench while allowing W.P.C.T. 94 of 2000 by its judgment delivered on August 2, 2000 was considered in the proper perspective. There is a finding in such judgment that the empanelled candidates were issued the offers of appointment despite directions to the contrary of the higher authorities. It was also observed by the Bench that the case was not such that it could be said that one authority has sought to question the action of another authority of coordinate rank but the appellant had filed the appeal (sic writ petition) so that the order passed by the superior authorities is given effect.

The aforesaid finding/observation were rendered in course of disposal of a writ petition wherein Kamalendu, Monish, Proloy and Gopal were parties. Not having questioned the correctness of the judgment and order dated August 2, 2000, such finding/observation must be held to have attained finality insofar as they are concerned. It is true, Somnath and Biswajit were also bound by whatever finding/observation were made in the judgment and order dated August 2, 2000 but the subsequent coordinate Bench having taken a different view and since we are not supposed to sit in appeal over the decision of the subsequent coordinate Bench, we hold this writ petition at the instance of Kamalendu to be barred by res judicata and/or analogous principles.

Since the writ petition of Kamalendu is not maintainable in law, question of impleading Manish, Prolay and Gopal therein does not arise. Importantly, they had not approached the tribunal after Dr. Sardar was exonerated in the disciplinary proceedings like the others. They have, therefore, no right to seek any relief.

In the result, the writ petition as well as the application for addition of party stands dismissed.

There shall be no order as to costs.