Subrata Kanrar vs State of West Bengal & Ors.

Subrata Talukdar, J

Challenge in this writ petition is thrown to the order of the District Magistrate, Howrah/the respondent No.2 to this petition dated the 8th of May, 2015

being Memo No. 527/HDP. The DM/the respondent No.2 by the impugned order, inter alia, concluded that since the name of the writ petitioner,

Subrata Kanrar (henceforth referred to as only SK) was not sponsored by the local Employment Exchange (for short EE), which was a mandatory

requirement at the time of the selection for the post of Panchayat Karmee (for short PK) in the year 2000, SK cannot be considered as an eligible

candidate.

The second conclusion drawn by the DM, Howrah in his said impugned order dated 8th May, 2015 is that SK could not produce proper documents

before the then Block Level Selection Committee (for short BLSC).

At the threshold of the present discussion, it would be relevant to trace the long and chequered history of this lis. For the purpose of avoiding

prolixity it would suffice at this juncture to reproduce the contents of the order dated 1st June, 2015 in CAN 3871 of 2015 arising out of MAT 591 of

2015 of the Hon’ble Division Bench (for short the DB). The said order of 1st June, 2015, in the view of this Court, quite encapsulates the

essential facts on which SK now stands in his attempt to set aside the ultimate order dated 8th May, 2015 and claim his appointment. The order

dated 1st June, 2015 of the Hon’ble DB reads as follows:-

“The appellant/alleged contemnor has preferred this appeal against the order dated 20th March, 2015 passed by the learned single Judge in a

contempt proceeding whereby the learned Judge set aside the order passed by the alleged contemnor on 10th June, 2014 and directed him to pass

fresh order after considering the observations of the Court in the order dated 14th February, 2014 within a specified time. It appears that by order

dated 14th February, 2014, the learned single Judge had directed the appellant to issue suitable directions based on the order dated 8th May, 2011

passed in W.P. 18652(W) of 2000 read with order dated 8th January, 2013 passed in W.P. 2671(W) of 2012.

The factual matrix giving rise to the case is to the effect that the writ petitioner appears to have been appointed to the post of ‘Panchayat

Karmee’ in the concerned Panchayat. It is the contention of the appellant that the writ petitioner was not sponsored by the employment exchange

and accordingly his appointment cannot be said to be in terms of the law prevalent at the relevant point of time. Be that as it may, a challenge was

thrown to his appointment by an unsuccessful candidate in W.P. 18652(W) of 2000 wherein the learned single Judge of this Court by an order dated

22nd August, 2003 quashed his appointment and directed appointment of the unsuccessful candidate (the second empanelled candidate) to be

considered in accordance with law. The petitioner filed an application for review of the said order which stood allowed by order dated 29th April, 2011

whereby the learned single Judge recalled the order dated 22nd August, 2003 so far it relates to the quashing of the appointment of the petitioner.

However, the appointment of the second empanelled candidate was left undisturbed. Subsequently by order dated 18th May, 2011, the learned single

Judge clarified the earlier order by directing that the writ petitioner who was a private respondent in the earlier writ petition would be at liberty to

make representation before the Authority concerned namely, the District Level Selection Committee who shall consider the case of the writ petitioner

in accordance with law. It was further clarified that the Authorities would be at liberty to consider all issues raised before them which had not been

considered in the writ petition. Subsequent to such direction the respondents-Authorities took a decision not to allow the representation of the writ

petitioner on the ground that he had not been sponsored by the Employment Exchange concerned which was the law prevalent at the material point of

time. Such order was assailed by the writ petitioner in W.P. 2671(W) of 2012. The said writ petition was disposed of by order dated 8th January, 2013

whereby the matter was remitted before the appellant for consideration in the light of the above decisions. Pursuant thereto another decision was

taken by the appellant/contemnor on 18th January, 2013. Such decision was alleged to be contumacious of the earlier order dated 8th January, 2013 in

W.P. 2671(W) of 2012 and the instant contempt proceeding was initiated. In the said contempt proceeding, the impugned order came to be passed.

Learned counsel for the appellant has placed before us an order passed by the appellant on 18th May, 2015 holding that the appointment of the wit

petitioner being contrary to law prevalent at the time of his appointment his representation could not be considered. The relevant law in the matter has

already been enclosed in the said affidavit.

Mr. Chakraborty appearing for the respondent/writ petitioner submits that there was a direction upon the appellant to consider the case in favour of his

client. Accordingly, there was no scope for the appellant to refuse the representation of the writ petitioner.

We are unable to accept such submission. The tenor of the orders passed by this Court on earlier occasions does not create any impression that it was

imperative mandate on the respondent Authorities to appoint the writ petitioner. On the contrary in the order dated 18th May, 2011 in W.P. 18652(W)

of 2000 the learned single Judge had given liberty to the Authorities to consider all issues applicable in the matter which may not have been agitated in

the writ petition. Accordingly, such order has not been set aside and in fact was reiterated in the subsequent order passed by this Court on 8th

January, 2013. Therefore, we are unable to accept the submission of the writ petitioner that there was imperative mandate on the appellant to appoint

him in the aforesaid post. The order has been passed by appellant. Accordingly, we do not find there is any scope for continuation of the contempt

proceeding.

The writ petitioner, if aggrieved, by the said order is at liberty to assail the same in accordance with law in a separate proceeding inasmuch as the

same constitutes independent cause of action.

The appeal is accordingly allowed with the aforesaid liberty granted to the writ petitioner.

We make it clear that the issue as to whether the writ petitioner was lawfully appointed at the initial stage is kept open to be decided in the said

proceeding.

The application being CAN 3871 of 2015 is also disposed of.â€​

As noticed by the order dated 1st June, 2015 (supra) although SK got his appointment as PK in the year 2000 and was confirmed to such appointment

on 22nd February, 2002, at the behest of the second man in the panel, one Sibu Ram Rit (henceforth referred to only as SRR), a writ petition was filed

and ultimately disposed of by order of the Hon’ble Single Bench dated the 22nd of August, 2003.

Mr. Chakraborty, Ld. Counsel for SK/the writ petitioner submits that the order dated 22nd August, 2003 stood in contravention of the principles of

natural justice since, SK was not heard on 22nd August, 2003. Second, the Hon’ble Single Bench relied on a decision of the Court which stood

overturned by a judgment of the Hon’ble Apex Court. Third, the Hon’ble Single Bench was not apprised of the fact that SK was the

beneficiary of a judgment passed by another Hon’ble Single Bench in WP 9443(W) of 2000 which was one among several writ petitions filed

connected to the recruitment procedure of PKs in Panchayats.

It is the specific case made out in the present writ petition that by order dated 18th September, 2000 in WP 9443(W) of 2000, the Hon’ble Single

Bench had permitted SK, along with similarly circumstanced candidates/writ petitioners to appear in the examination procedure for PKs. The

modalities of such appearance before the selecting authority and, in tune with the then applicable law of the land, stood clearly discussed in the

judgment and order dated 18th September, 2000 in WP 9433(W) of 2000 (supra). The operative extract of the judgment (supra) is therefore

reproduced below:-

“I, accordingly, held that if an eligible candidate raises a dispute before the concerned Gram Panchayat by furnishing his registration number with

the concerned Employment Exchange, educational qualification, age and the place of his residence; that his name has not been sponsored by the

concerned Employment Exchange arbitrarily and illegally or he has been ignored by the Employment Exchange while sponsoring the names of the

candidates or that the Employment Exchange ignoring the seniority in registration of candidates has sponsored the names of other candidates, then the

concerned Gram Panchayat if finds the said complaint to be a bonafide one, will immediately intimate in writing the substance of the complaint both to

the Block Level Selection Committee constituted under Rule 7(1) of said 1995 Rules and the concerned Employment Exchange who sponsored the

names of candidates. The said Block Level Selection Committee upon receipt of such information will immediately stop the recruitment process, if

no appointment letter has been issued in the meantime. The concerned Employment Exchange upon receipt of such intimation shall compulsorily

within a period of one month thereafter reply back in writing to the Gram Panchayat disclosing the reasons as to why such person or persons were not

sponsored, which shall be forwarded to the said Block Level Selection Committee. If it appears that such person or persons were not sponsored

mistakenly or inadvertently and/or wrongfully then the said Block Level Selection Committee will take into consideration the candidature of such

person or persons for the purpose of recruitment in the post of Panchayat Karmee along with the candidates already sponsored by the concerned

Employment Exchange by holding the written test and oral interview of all such candidates afresh. With these directions this Writ petition shall stand

disposed of. All interim orders shall stand vacated. There will be no order as to costs.â€​

Mr. Chakraborty submits that there was suppresio veri and suggestio falsi by SRR before the Hon’ble Single Bench which decided SRR’s

writ petition numbered as WP 18652(W) of 2000 on 22nd August, 2003. SRR led the Hon’ble Single Bench to believe that SK had not obtained

any order in his writ petition, i.e. WP 9443(W) of 2000, while submitting himself to the recruitment procedure. Ld. Counsel points out that although

SK applied and, was called for the written test on 9th July, 2000 and, for the interview on 2nd August, 2000, the order of appointment was only issued

on the 18th of October, 2000.

It is therefore submitted that prior to the issue of the order of appointment on 18th October, 2000, SK was the beneficiary of the judgment of the

Hon’ble Single Bench dated 18th September, 2000 sanctifying his participation in the selection process. Therefore, it was a suppression of the

grossest kind by SRR followed by utter nonapplication on mind at all levels thereafter, to conclude that SK had obtained his appointment

fraudulently. The cumulative unfortunate consequence of the abovenoted combination of misleading circumstances allowed the confirmed service

of the writ petitioner/SK to be snatched away from him on the strength of the order of the Court dated 22nd August, 2003.

SK thereafter filed an application for review of the order dated 22nd August, 2003 on the ground that the order ignored the facts and the law which

were always palpable on the face of the record. Before the Reviewing Court it was, inter alia, pointed out on behalf of SK that the law laid down

by the Hon’ble Apex Court as elaborately discussed in the judgment and order of the Hon’ble Single Bench dated the 18th of September,

2000 permitted wider participation in the selection procedure beyond solitary sponsorship by the EE.Ld. Counsel for SK/the present writ petitioner

emphasises the fact that the judgment and order dated 18th September, 2000 in WP 9443(W) of 2000 is pari materia, word for word identical, to the

judgment of the Court In Re: Biswajit Ghosh vs. State of West Bengal reported in 2000 WBLR (Cal) 558. The same Hon’ble Single Bench in

In Re: Biswajit Ghosh had laid down the procedure by which candidates not sponsored by the EE are required to be considered. Identical directions

were passed in WP 9443(W) of 2000 and, at Paragraph 18 of the common but separate judgments, the Hon’ble Single Bench held as follows:-

“18. The provisions for the manner of the source of eligible candidates for the purpose of recruitment in the post of Sahayak as per the Rules as

above having empowered the Recruitment Committee to invite applications upon publication of vacancies in the newspaper over and above the

requisition that is required to be made to the appropriate Employment Exchange can very will stand together with the provisions of Act 14 of 1999 for

filling up vacancies in Government Establishment, Statutory Body, or Local Authority by persons sponsored by Employment Exchange, in asmuch as

the later pose of selection in the post of Sahayak the Recruitment Committee must proceed upon simultaneous publication of vacancies in the

newspapers in addition to the requisition that will be made for eligible candidates before the appropriate Employment Exchange as per the Rules

framed under memorandum dated 4.12.98 as held by the Division Bench of this Court in the case of Santa Prosad Jana (supra).â€​

The grievance of SK connected to the order dated 22nd August, 2003 finally found utterance in the review order dated 29th April, 2011 in RVW 243

of 2003 arising out of WP 18652(W) of 2000. By the order of 29th April, 2011 the Reviewing Bench was pleased to direct service of notice on

SRR and also observed that SK had magnanimously not sought for the removal of SRR, the writ petitioner in WP 18652(W) of 2000.

By its subsequent order dated 18th of May, 2011 the Reviewing Bench noticed the appointment of SRR on 29th September, 2003 to the post of PK in

place and stead of SK (since removed), with the observation that the appointment of SRR need not be now disturbed.

The Reviewing Bench disposed of the Application by granting SK the opportunity to file a representation before the District Level Selection

Committee (DLSC) to consider his case for appointment in any other Gram Panchayat, subject to availability of vacancies.

In view of the continued inaction of the authority concerned to take steps in terms of the order dated 18th May, 2011 in the Review (supra), SK filed a

second writ petition being WP 2671(W) of 2012 which was disposed of by the order dated 8th of January, 2013 by a Hon’ble Single Bench. It

would be necessary to pause at this stage of the discussion to notice the observations in the order dated 8th of January, 2013 whereby the Hon’ble

Single Bench was pleased to presciently opine that the writ petitioner (SK) appears to be a victim of circumstances. The operative portion of the

order dated 8th of January, 2013 (supra) reads as follows:-

“Having regard to the above observations made by this Court, as contained in the order dated 18th May, 2011, this writ petition is disposed of with

a direction upon the respondent no.3, being the Director of Panchayat & Rural Development Department, Government of West Bengal, to take a

suitable decision in the matter based on the above observation, which would enure to the benefit to the writ petitioner, as expeditiously as possible

preferably within a period of six weeks, but not later than eight weeks from the date of communication of a photostat certified copy of this order.â€​

Mr. Chakraborty, Ld. Counsel, next submits that inspite of the back to back observations by two Hon’ble Single Benches dated 18th of May, 2011

and 8th of January, 2013 (supra), the DLSC through a purported unanimous resolution refused to allow SK to join to the post from which he was

terminated on the ground of production of false evidence before the authority for taking advantage of participating in the selection process.

It is submitted that while the order of the DLSC dated 26th March, 2013 heavily relies on the order dated 22nd August, 2003 and the allegation of SK

having unauthorisedly participated in the selection process in the year 2000, on the other hand, by another order dated 10th June, 2014 the DM,

Howrah emphasised the ineligibility of SK to be considered in terms of the West Bengal Regulation of Recruitment in State Government

Establishments and Establishments of Public Undertakings Statutory Bodies, Government Companies and Local Authorities Act, 1999 (for short the

1999 Act).

 According to the DM, Howrah, the 1999 Act was in force as on the date of the written test on the 9th of July, 2000. Additionally, SK was not

recommended by the EE, Uluberia, Howrah, a stand which has been repeated in the subsequent order of the DM, Howrah dated 8th of May, 2015,

impugned in this writ petition.

The petitioner/SK thereafter again approached the Hon’ble Single Bench by way of a Contempt Application being CPAN 218 of 2015 in WP

2871(W) of 2012 which set aside the order of the DM, Howrah dated the 10th of June, 2014 directing the DM, Howrah to pass an order afresh.Â

The matter was carried in appeal by the DM, Howrah and, the appeal along with its connected application was finally disposed of by the order of the

Hon’ble DB dated 1st of June, 2015 (supra) permitting the petitioner to challenge any order connected to his removal and non-appointment in a

separate proceeding.

Hence the present writ petition.

Mr. Chakraborty concludes his arguments by submitting that the entire exercise culminating in the order of the DM, Howrah dated the 8th of May,

2015 is a dishonour of facts and the law. Ld. Counsel submits that SK requires to be placed immediately in the position of status quo ante by returning

to him, his rightful job.

Appearing for the State-respondents Mr. Halder, Ld. Counsel reiterates the pleadings in the affidavit-in-opposition. The stand taken by the State-

respondents is that the entire process of appointment of SK in the year 2000 was erroneous since his name was not sponsored by the local EE. The

legal requirement of sponsorship was noticed by the order dated 22nd August, 2003. The petitioner/SK failed to produce any other order of the

Hon’ble Court at the time of submitting himself to the selection.

The State further argues that following the order dated 22nd August, 2003 SRR was appointed in place of the petitioner. In the absence of any

positive materials relied upon by SK, his claim to appointment does not hold any ground.

Ld. State Counsel refers to the following pleadings in the Affidavit-in-opposition of the State to the present writ petition affirmed by one Shouvik

Chattopadhyay, the District Panchayat and Rural Development Officer/the respondent No.4:-

“3. With reference to paragraph 1 of the said writ petition, I say that how the Hon’ble Court will consider his case without copy of the order

even he has not mentioned about the W.P. No. And its year. W.P. No. The petitioner has not even annexed a copy of it intentionally and

motivatedly. As such it should not be considered. I further say the the Hon’ble Justice Prabir Kumar Samanta (then was) did not pass any

collective judgement. The judgement of Biswajit Ghosh â€" vs â€" State of West Bengal is single one. As such the petitioner is misleading the

Hon’ble Court.

With reference to paragraph 7 of the said writ petition, I say that the petitioner has admitted that at the time of recruitment of Panchayat Karmee,

his name was not sponsored by the Employment Exchange, which was a mandatory requirement, as per the then prevailing section 4 of the West

Bengal Regulation of Recruitment in State Government Establishments and Establishment of Public Undertakings, Statutory Bodies, Government

Companies and Local Authorities Act, 1999 and Rule 7(3) of the West Bengal Panchayat (Recruitment and Conditions of Service of Gram Panchayat

Karmee) Rules, 1995.

A copy of the Act and Rules are annexed hereto and marked with the letter ‘R-1’ collectively.

With reference to paragraph 12 of the said writ petitioner, I deny that the Hon’ble Court had allowed the petitioner to appear before the

selection committee for recruitment of Panchayat Karmee. The Hon’ble Court may be pleased to direct the petitioner to produce earlier order

of the Hon’ble Court for supporting his statement, otherwise this writ petition be dismissed on this ground alone. Further, the entire process of

petitioner’s appointment was wrong and erroneous as his name was not sponsored by the local employment exchange, which was a mandatory

requirement under the above mentioned Act and Rules, and for the non-fulfillment of which Hon’ble Justice Amitava Lava (as he then was) was

pleased to quash the petitioner’s appointment in the W.P. No. 18652 (W) of 2000.

with reference to paragraph 15 of the said writ petitions matter of record. The 2nd empanelled candidate Sri Sibram Rit filed a writ petition in

W.P. No. 18652(W) of 2000, the said writ petition disposed of and petitioner’s appointment was quashed. The Hon’ble Court further

directed to the authority concerned to take all possible steps to appoint the writ petitioner i.e. Shibram Rit, as early as possible. In pursuant of the

order of the Hon’ble Court, Sri Shibram Rit was appointed in placed of the present petitioner.

With reference to paragraph 28 of the said writ petition, I say that the petitioner had been appointed as Panchyat Karmee by mistake. Actually

he was not entitled to be appointed as Panchayat Karmee as his name had not been sponsored by the Local Employment Exchange, which was

mandatory as per the then prevailing section 4 of the West Bengal Regulation of Recruitment in State Government Establishment and Establishment of

Public undertakings, statutory Bodies, Government Companies and Local Authorities Act, 1999 and read with Rule 7(3) of the West Bengal

Panchayat (Recruitment and Conditions of Service of Gram Panchayat Karmee) Rules 1995.

I further say that the Hon’ble Justice Nadira Patherya had stated in her order dated 18.05.2011 that the writ petition No. 18652(W) of 2000

wherein the petitioner Subrata Kanrar’s appointment in the post of Panchayat Karmee was quashed by order dated 22.08.2003 passed by the

Hon’ble Justice Amitava Lal (then was) became infructuous. It is also note worthy that in the very same order dated 18.05.2011 the

Hon’ble Court passed following order-

“Accordingly, the private respondent will be at liberty to make are presentation before the authorities concerned namely, the District Level

Selection Committee, who will consider the case of the private respondent in accordance with law.

It is made clear that the authorities concerned will be at liberty to consider all the increase raised before them as the same have not been considered in

this writ petition.â€​ A copy of the said order dated 18.05.2011 is annexed hereto and marked with the letter ‘R-3’.

With reference to paragraph 48 of the said writ petition, I say that the petitioner never submitted the order of the Hon’ble Justice Prabir

Kumar Samata (then was) that he was allowed to participate in the appointment process of Panachat Karmee at any point of time. He can cannot

participate in the selection process without his name being sponsored by the Employment Exchange. His name was not sponsored by the

Employment exchange.â€​

Having heard the parties and considering the materials placed, this Court arrives at the following findings:-

A) That this Court called for the record of WP 9443(W) of 2000 and found that the said writ petition actually exists in the records of the Court.

B) It is also found that WP 9443(W) of 2000 stood finally decided by the judgment and order dated 18th of September, 2000.

C) The judgment and order dated 18th of September, 2000 is pari materia, word for word, with the reported judgment In Re: Biswajit Ghosh at 2000

WBLR (Cal) 558.

D) In both In Re: Biswajit Ghosh (supra) and WP 9443(W) of 2000 the same Hon’ble Single Bench was pleased to elucidate/clarify/lay down the

modalities of appointment of PKs holding in favour of the respective petitioners to be eligible participants in the selection process of PKs.Â

Therefore, notwithstanding the provisions of the 1999 Act, the law on the point was interpreted In Re: Biswajit Ghosh and WP 9443(W) of 2000 along

with other several individual petitioners who held the eligibility under the sanction of Court to participate in the selection process of the same year, viz.

2000.

E) That the recruitment procedure for PKs in issue in Tajpur Gram Panchayat, District Howrah pertaining to the candidature of SK and SRR was too

governed by the pronouncement of law In Re: Biswajit Ghosh and WP 9443(W) of 2000 (supra). No material has been produced before this Court

to demonstrate that the judgments In Re: Biswajit Ghosh and WP 9443(W) of 2000 have been either set aside or altered by way of recalling, review

or appeal.

F) In the above view of the matter at the time when appointment was offered to SK on the 18th of October, 2000, his alleged ineligibility stood wiped

out by the judgment and order dated 18th of September, 2000 in WP 9443(W) of 2000.

G) In the backdrop of the above facts the stand taken in the affidavit-in-opposition of the State-respondents to the present petition is one of either

ignorance or deliberate suppression. Repeatedly the State-respondents and, by the DM, Howrah the stand is being taken that SK did not produce any

documents in support of his eligibility although, repeatedly again, vide orders dated 18th of May, 2011 and 8th of January, 2013 of the Court the

Selecting Authority, including the DM, Howrah are being directed to apply their mind to the complete facts. Unfortunately however both the DM,

Howrah as well as the Selecting Authority represented by the DLSC and BLSC, have been stuck like the proverbial gramophone record on their

unchanged tune.

H) Arguably, the starting notes to the unchanged tune originated from the order dated 22nd August, 2003 in SRR’ petition, subsequently set aside

in review. The crucial absence of SK on the date of the hearing and order has arguably contributed to the deepening lack of symphony.

I) From a reading of the order dated 22nd August, 2003 it can be noticed that the judgment relied upon by the Ld. Advocate for SRR (the petitioner),

i.e. In Re: Gurupada Das was not good law and, wider participation in a recruitment procedure as prescribed by the Hon’ble Apex and noticed In

Re: Biswajit Ghosh and WP 9443(W) of 2000 held the field. The correct position of law was discussed In Re: Biswajit Ghosh and WP 9443(W) of

2000 by the judgment and order dated 18th of September, 2000.

J) Although nearly two decades have rolled by since SK first walked under the domed archways of this Court, considering the age of SK to be 51

years as in January, 2016 (reference affidavit portion to the present petition), the years of service still left to SK cannot be given a burial.

K) Inspite of the fact that SRR has contributed to the perversion of due process adversely affecting the fortunes of those touched by it, this Court

must stand by the observations of the Reviewing Bench vide its order dated 29th April, 2011 recording the magnanimity expressed by Ld. Counsel for

SK, presumably on instructions, not to disturb SRR’ appointment. From the record the shifting stand of SRR, all in the course of one writ petition

(WP 18652(W) of 2000), can be deciphered from his first allegation that SK had no order of Court, to the next that even if SK had an order (read the

18th of September, 2000), such an order did not create any eligibility in favour of SK. In the backdrop of the above discussion, the directions of this

Court are as follows:-

I) The order impugned of the DM, Howrah/respondent No.2 dated 8th of May, 2015 stands sets aside.

II) The DM, Howrah/respondent No.2 being the ex-officio Chairman of the DLSC, shall take steps to return SK his job with effect from his first

appointment on 18th October, 2000 and, as a regular employee with effect from 27th February, 2002, i.e. his date of confirmation.

III) The order of termination dated 22nd September, 2003 stands accordingly set aside.

IV) SK shall be entitled to all notional and revised benefits till the date of his reinstatement and, all actual and revised benefits thereafter.

V) The DM, Howrah shall take the steps as directed above within four weeks from the date of communication of this order.

WP 1483(W) of 2016 stands accordingly allowed.

Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.