Shri. Mohammed Quader vs The Lieutenant Governor and Others

Prasenjit Mandal, J.—The writ petitioner has prayed for the relief of mandamus directing the respondent authorities particularly the respondent no.2 herein to consider appointment of the petitioner for the post of Tally Clerk in Port Management Board with effect from June 28, 1993 i.e. the date of which the private respondent viz admittedly junior to the petitioner was appointed as Tally Clerk but does not possess the essential qualification as per Recruitment Rules to the said post, certiorari directing the respondent authorities to certify and transfer all the relevant documents and files pertaining to regularization of encroachment and other reliefs,

The short fact necessary for the purpose of disposal of this writ petition is that the petitioner was initially appointed as Daily Rated Mazdoor in the office of Controller, Labour Force as per order No. 411 dated the September 09, 1987 of the Port Management Board. He was discharging duties as Tally Clerk in the Shipping Godown of the Port Management Board. He has the requisite qualification for being appointed to the post of Tally Clerk in Port Management Board such as 12th pass from a recognized Board and 3 years'' experience in any Indian Port. The private respondent possesses 11th pass qualification but he was appointed as Tally Clerk on 09.06.1993 and accordingly, he reported for duty on 28.06.1993. As the case of the petitioner was not considered for appointment, the petitioner and others filed a representation to the concerned authorities in vain. Under the circumstances, the petitioner has preferred this writ petition.

The respondent authorities and the private respondent are contesting the said writ petition by filing separate affidavits-in-opposition contending inter-alia that the averments made in the petition are not correct. The private respondent was appointed to the post of Tally Clerk on the recommendation of the selection committee. He had the requisite qualification of 12th pass from a recognized Institution/Board and was having 3 years'' experience at the time of promotion. The application is not maintainable in the eye of law and is liable to be dismissed in limine. The private respondent along with others participated in the selection process by appearing in the written test and after being successful, the private respondent was appointed to the post of Tally Clerk on 09.06.1993, so, the petition should be dismissed.

Now, therefore, the question is whether the petitioner is entitled to get reliefs as prayed for in the petition.

Upon hearing the learned counsel for the parties and on perusal of materials on record, I find that it is not in dispute that the petitioner was appointed as Daily Rated Mazdoor in the Port Management Board on 09.06.1987 and the private respondent was appointed to the same post on October 20, 1987. Therefore, the petitioner is senior to the private respondent by service. It is not in dispute that they were subsequently appointed as regular Mazdoors in the port Management Board.

Mr. P.C. Das, learned advocate appearing for the petitioner has contended that while the writ petitioner possesses 12th pass qualification and the requisite experience of 3 years, the private respondent is 11th Pass. The private respondent has not filed a copy of the interview letter at all for the said post. Accordingly, the private respondent does not possess the requisite qualification for the said post of Tally Clerk, but he was appointed to that post by the administrative authorities. So, the petitioner is entitled to get the reliefs as sought for in the petition.

On the other hand, Mrs. Anjili Nag, learned counsel appearing on behalf of the respondent authorities has submitted that the writ petition is not maintainable at all on the ground that the said petition was filed after 18 years challenging the appointment of the private respondent. The petitioner did not assign reason why the said petition was filed after lapse of so many years. She has also contended that both the petitioner and the private respondent work in the same department and so the appointment of the private respondent to the post of Tally Clerk was quite known to the petitioner. Under the circumstances because of such inordinate delay, the writ petition is liable to be dismissed. Mrs. Nag has also contended that the private respondent was selected by the recruitment committee through the selection process followed by written test. He was not considered for promotion because of experience only but because he possessed the 12th pass certificate and was selected. Mr. Rakesh Pal Gobind, learned counsel appearing on behalf of private respondent has also contended that his client possesses the 12th pass certificate and he has the requisite experience for the post of Regular Mazdoor. Above all, he was selected to the post through the recruitment process. He has also drawn my attention to the fact that the private respondent was not promoted to the said post of Tally Clerk at all by reason of experience only but promoted by direct recruitment. His contention gets support from the Annexure P-3 at page 21 of the writ petition.

From the materials on record, I find that the private respondent was appointed to the post of Tally Clerk on 09.06.1993 by an appropriate order of the administrative authorities and thereafter, he joined in the said post. There is no dispute that he writ petitioner is also working in the same department and the fact of appointment of the private respondent to the said post is very much known to the writ petitioner but he did not take any steps early. He filed the writ petition after lapse of 18 years. Thus, I find that there is an inordinate delay in filing the writ petition and no reason has been assigned in the writ petition for such inordinate delay. The private respondent has been working in the said post more than 18 years and in spite of knowledge of such fact, the petitioner did not take any steps. This being the position, I am of the view that the writ petition, after lapse of so many years from the date of appointment of the private respondent, should not be entertained. For that reason the writ application is not maintainable in law.

So far as the merits of the petition is concerned, I find that it is a specific contention of the respondents that the private respondent was appointed to the said post of Tally Clerk through the recruitment process by selection. The administrative authorities formed a Selection Committee and they held a written test and on the basis of the result of the selection process, the private respondent along with others were appointed to the posts of Tally Clerk. The petitioner did not filed reply denying such contention of the respondents. Above all, Annexure P-3 appearing at page No. 21 indicates that the post of Tally Clerk is to be filed up by selection process. It cannot be stated at all that private respondent got promotion from the post of Regular Mazdoor by experience only, rather his appointment to the post of Tally Clerk is nothing but the result of a direct recruitment as per Rule appearing in Annexure P-3 at page No. 21 of the writ petition.

In that view of the matter, I am of the opinion that the writ petition is devoid of merits and the petitioner is not entitled to get the mandamus relief as prayed for in para 18(a) of the writ petition. The prayer (b) in the nature of certiorari has been wrongly prayed for. So, this relief could not be granted in favour of the writ petitioner at all. The petitioner is not also entitled to get the reliefs (c), (d) and (e) at all.

The writ petition is, therefore, devoid of merits. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this judgment, be supplied to the parties, if applied for, on observing all required formalities.