Utpal Kumar Chowdhury vs Pranab Kumar Dhar

Bhagabati Prasad Banerjee, J.—This is an appeal against the order passed by the learned trial Judge dated November 13, 1992 allowing the writ application by setting aside the entire selection process for appointment in the post of Deputy Licence Officer under the Calcutta Municipal Corporation and permitting the Calcutta Municipal Corporation and the Municipal Service Commission to advertise afresh of the said post. In terms of the advertisement made for the said post the Respondent No. 8 along with other candidates made applications for consideration of their case before the Municipal Service Commission. The writ Petitioner opposite party also applied for the post.

Mr. S. Panja, the learned Advocate appearing on behalf of the writ Petitioner opposite party states that the advertisement provides the age of the applicant shall not be more than 35 years but ''relaxable for otherwise well qualified candidates''. The age of the writ Petitioner opposite party was 55 years and it is stated that on the above ground the writ Petitioner has a legitimate expectation of his case being considered by the Municipal Service Commission and the MSC after considering the candidatures made a recommendation in favour of the Appellant, who was the Respondent No. 8 in the writ application. This recommendation made by MSC was the subject-matter of the writ application.

On behalf of the Appellant a preliminary point was taken that the writ application was not maintainable, inasmuch as the writ Petitioner was a disqualified candidate because of the age bar. It is not necessary to decide the question of locus standi of the parties, inasmuch as it is the recommendation which was challenged in the writ application. It is well-settled principle that the recommendation made by the Public Service Commission under Article 320 of the Constitution of India or under the law for appointment by the Appointing Authority is directory and the Authorities concerned until and unless accepts the recommendation, no cause of action arises in view of the fact that the matter cannot be said to have reached its finality. This principle is well-settled by the decision of the Supreme Court in the case of Indian Wireless Corporation v. Capt. Shukl (1992) 5 S.L.R. In that case, the Supreme Court held that the Court will have a very limited jurisdiction to interfere with the process of promotion and selection so long as the rules are not violated and made arbitrarily. When a recommendation is made by the Municipal Service Commission to the Municipal Authority, viz., the Calcutta Municipal Corporation and the latter has to take action on the basis of such recommendation in accordance with the provisions of Section 19(1) of Calcutta Municipal Corporation Act, 1980, Such action if taken by the Municipal Authority shall give rise to the right of action in favour of the aggrieved writ Petitioner.

We are of the view that unless and until the Municipal Authority takes a final decision in this matter, the matter is premature. A decision can be challenged but not a mere recommendation. If a decision is taken on the basis of recommendation, in that event that decision can be challenged on writ application. We are of the view that the learned trial Judge have erred in, holding that the Court has jurisdiction to quash the recommendation made by a Selecting Authority for the purpose of consideration by the Appointing Authority. Whatever stand the parties may take before the learned trial Judge unless and until the recommendation is crystallized to an order; and until and unless on the basis of recommendation a decision is taken, the writ Court cannot go into the question into the validity or otherwise of the selection, Accordingly, we are of the view that the writ application was premature and the recommendation does not mean a decision taken or an action taken for which judicial review is available under law. Making of recommendation in favour of one and not making of recommendation in favour of another does not give any cause of action and does not create any right to move an application under Article 226 of the Constitution of India. In support of the contention reliance was placed to a judgment of the Division Bench of this Court in the case of Sadhan Kumar Bose v. Anirudha Mukherjee (1993) 4 S.L.R. 473, in Appeal No. 141 of 1990 . In view of the said Division Bench judgment and in view of the position of law, we are of the view that the learned trial Judge was wrong in quashing the entire selection process and directing the authorities concerned to make fresh advertisement at the recommendation stage.

Accordingly, the Calcutta Municipal Corporation shall take decision on the basis of recommendation in accordance with the provisions of Section 19(1) of the Calcutta Municipal Corporation Act, 1980, within a month from to-day.

Accordingly, we are of the view that the order passed by the learned trial Judge cannot stand. Accordingly, we set aside the order of the learned trial Judge as the writ application was premature.

We make it clear that'' we have not gone into the questions raised by the parties and that our decision is based mainly on the ground that the writ application was premature and was not maintainable.

Accordingly, the appeal is allowed. The writ application stands dismissed. There will be no order as to costs.

All parties concerned to act on a signed copy of the minutes of the operative part of this judgment on the usual undertaking.

Nikhil Nath Bhattacharjee, J.

I agree.