STATE OF WEST BENGAL Vs. AMARNATH HAIT

JUDGEMENT

(1.) -This is an appeal directed against the order dated 27.7.1995 passed by the learned single Judge in C.R. No. 13609 (W) of 1993 thereby the learned single Judge has directed respondent that the petitioner be given appointment to a post of identical nature, if the post falls vacant within one year and the age would not be a bar for his appointment. If no post is available, the learned single Judge further directed the respondent No. 2 to create a supernumerary post for him till a vacancy occurs and the direction to be executed within a period of one year. However, the learned single Judge directed that on being so appointed he will not be entitled to any arrear benefit, the seniority should be given as far as practicable. In fact the respondent No. 2 in the present case was the Public Service Commission and therefore the Public Service Commission moved an application for review of the aforesaid judgment that the Public Service Commission is not the authority to create post and to give appointment and prayed that the direction given to the respondent No. 2, Public Service Commission be modified. Accordingly an order was passed on 12th December, 1996 directing that in place of "Public Service Commission" the words "concerned authority" should be read and directed the supernumerary post be created within 6 months. Aggrieved against the order passed by the learned single Judge dated 27.7.95 and 12th December, 1996 the present appeal was preferred by the State. The appeal was barred by time therefore an application under section 5 of the Limitation Act was filed and the delay was condoned by an order dated 9th March, 1998.

(2.) The brief facts giving rise to this appeal are that by Advertisement No. 2/80 issued on 8th January, 1980 by the Public Service Commission invited applications for direct recruitment to one post of Superintendent, District Jail/Deputy Superintendent, Central Jail. The essential qualification prescribed was a degree and administrative experience for three years in responsible capacity. The petitioner in pursuance of that advertisement applied for the post. He appeared for the interview but he could not get any intimation from the Public Service Commission, therefore, he wrote on 5th August, 1980 to the Public Service Commission asking for result of the aforesaid interview but no intimation was received. Thereafter he again sent a reminder but without any result. Thereafter another advertisement was issued by the Public Service Commission being Advertisement No. 24/82 on 3rd July, 1982 which was published in Ananda Bazar Patrika on 3rd July, 1982 for another post of whole time Superintendent, District Jail/Deputy Superintendent, Central Jail. The petitioner again applied for the aforesaid post and he was again invited for the interview by communication dated 4th October, 1982. Thereafter the petitioner in the month of February, 1983 came to know that one Tridib Kumar Kundal, respondent No.7 was appointed in pursuance of the Public Service Commission Advertisement No. 2/80. It is submitted that Tridib Kumar Kundal, the respondent No. 7 was placed first in the merit list and was appointed. In the second selection which took place in pursuance of the Advertisement No. 24/82 Anup Tripathi secured the first position and was appointed. It is alleged that Tridib Kumar Kundal who was appointed by the communication dated 23rd February, 1983 joined the post was working as Foreman of Manufacturing Department of Dum Dum Central Jail and he was a person eligible for promotion therefore in terms of the aforesaid advertisement he could not appear in the examination but he was allowed to appear for collateral purposes. It was also contended that he could not have been appointed on the basis of the panel prepared in pursuance of the Advertisement No. 2/80 after a lapse of 2 years. It is also contended that the respondent No. 7, Tridib Kumar Kundal was a matriculate holding a diploma of Textile Technology therefore he was not eligible to be appointed as he was not having any degree. It was contended that the preparation of the second panel during existence of the first panel was not valid and it cannot be given effect to. It was contended that the petitioner secured second position in both the panel in 1980 and 1982. In the whole of the petition the strain was with regard to appointment of the respondent No. 7 on account of his ineligibility and no grounds were raised with regard to eligibility or legality of appointment of respondent No. 8. Only in paragraph 26 the following allegation was made against the respondent No. 8. "Your petitioner states and submits that the selection of the respondent No. 7 and 8 by the appointing authorities is the act of arbitrariness and nepotism and is not the selection of the best available person for appointment."

(3.) Nothing was said about the respondent No. 8's ineligibility for selection or any illegality involved therein. The writ petition was contested by the respondent State. The petitioner thereafter filed a supplementary affidavit. In that affidavit also allegations were levelled against respondent No. 7 only and it only stated that the respondent No. 8 has since been promoted to the post of Superintendent, Central Jail, Dum Dum. In this additional affidavit also nothing had been stated against the eligibility or ineligibility of respondent No. 8. It was submitted on behalf of the State that on the basis of recommendation made by the Public Service Commission with regard to the respondent No. 7, Tridib Kumar Kundal the Government did not issue any appointment order as it had a reservation about the qualification of Tridib Kumar Kundal, but Shri Tridib Kumar Kundal challenged the action of the Government by filling a writ petition being C.R. No. 2556 (W) of 1982 that the selection has taken place and he has been recommended by the Public Service Commission still Government has not issued an appointment order and an interim order was passed on 20th April, 1982 whereby it was directed as under : "There will be an interim order to this extent that the respondents are restrained from appointing any person as the Superintendent or the Deputy Superintendent of the Central Jail excepting the Presidency Jail before appointing the petitioner. The Rule is made returnable six weeks hence."