SOMNATH SHIT Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) I have gone through the draft judgement of my learned Brother Hon'ble Justice Sarkar. I record my agreement with His lordship's ordering portion and also fact findings. Notwithstanding, I want to add few words of my own. The learned Tribunal has dismissed the application of the applicant on the question of limitation and does not decide the matter on merit. It appears that learned Tribunal found that since the panel in question was prepared in 1995 and the same has lost its force because of the candidates empanelled having been appointed. In my view, question of limitation has to be decided on the basis of the pleadings of both the sides when the question of limitation arises both on fact and law. In the petition, it is stated that the panel was prepared admittedly in 1995. It is also admitted position that the name of the petitioner was found in the panel. I think that approach of the learned Tribunal on the question of limitation is not correct in the eye of law. The learned Tribunal has, perhaps, misdirected itself while appreciating the case, since the panel was not challenged. Had the panel been challenged then certainly this case would have been barred by limitation. The grievance of the applicant is that in spite of his name being empanelled he was not given appointment whereas other candidates, whose position below him in the panel, were given appointment. Therefore, I am of the opinion that cause of action arises in this case as and when he is superseded by the other candidates who are empanelled. It was for the respondent to state specifically when last appointment was given. Moreover, the petitioner had made representations from time to time and last representation was made in 2000. In spite of that representation no reply was given. Thereafter in the year, 2000 the application was filed. In the affidavit-in-opposition the respondent did not say specifically when such last appointment was made. In view of this factual position. I think that dismissal of the application on the plea of limitation by the learned Tribunal, is not justified. Learned Tribunal ought to have looked into the matter on merit. It is settled position of law that when a litigant belonging to backward class and had made representations from time to time the writ petition is entertained excusing delay. Delay becomes a factor when it defeats justice and takes away someone's right. Here question of defeating justice does not and cannot arise rather grievance of the petitioner is that he has been discriminated as a candidate whose position is much below than that of the petitioner has been given appointment. Therefore, his Constitutional right has been taken away by the respondent and plea of limitation is not tenable.

(2.) ORDINARILY, this matter ought to have been remanded as the matter was not dealt with by the learned Tribunal on merit. It ought not to have been enquired into on merit. Since, it is an old matter of 2000 we, therefore, think it fit not to remand the matter on merit. Thus, we have decided the matter by ourselves on merit. My learned Brother has already, in great details, examined the matter on merit and found that the applicant has been discriminated. Therefore, this application succeeds and order is accordingly passed. Manik Mohan Sarkar, J.

(3.) THIS is an application under Article 226 of the Constitution of India challenging the order of dismissal of the writ application of the applicant before the State Administrative Tribunal, Kolkata in S1. No. 15 dated 11. 6. 03 in O. A. No. 1159 of 2000.