Ct-16 vs Sri Suvasish Kundu & Ors
2021 Latest Caselaw 4190 Cal

18                                   WPST 49 of 2020

        10.8.2021               The State of West Bengal & Ors.
Ct-16                                         Vs.
                                  Sri Suvasish Kundu & Ors.
ar

                       Mrs. Kakali Samajpaty
                                   ...For the State/Petitioners

                       Mr. Chittapriya Ghosh
                       Ms. Priyanka Saha
                                       ...For the Respondents

The present writ petition filed by the State

authorities challenges a judgment and order of

the West Bengal Administrative Tribunal dated

19th April, 2016 passed in O.A. No.1435 of 2014.

Shorn of unnecessary details, the facts of this

case are as follows:

The respondents/original applicants who had

filed the said original application before the West

Bengal Administrative Tribunal had been

appointed to the post of Assistant Operator

(Group-C category) on compassionate grounds as

the dependents of the employees who had died-

in-harness or retired pre-maturely on being

declared permanently incapacitated from service

in terms of G.O. No.30-Emp dated 02nd April,

2008 read with G.O. No. 114-Emp dated 14th

August, 2008. The appointment of the said

original applicants along with a group of 28

others was made by Memo No. Estt (Cell-II)/12A-

28/2009 (Pt.1) dated 25th June, 2009.

However, the 4th Pay Commission

recommended that the recruitment process of

the field level technical posts upto scale 5 be

modified so that they are filled up 100 per cent

by promotion from the feeder posts. The said

report of the Commission was accepted by the

Government of West Bengal. The said

recommendation of the 4th Pay Commission

report was applicable to the post of Assistant

Operator (Group-C category). Therefore, no direct

appointment could be made to the post of

Assistant Operator (Group-C category) even if the

appointees fell in within the exempted categories

of appointments, such as appointments on

compassionate grounds.

The Water Resources Investigation and

Development Department of the Government of

West Bengal went about implementing the said

change in the process of appointment of persons

to the post of Assistant Operator (Group-C

category) by issuing the G.O. No.1033Estab(Cell-

I)/12A-25/2007 dated 03rd June, 2009.

Pursuant to the said government order, the said

department offered the respondents appointment

to Group-D posts in place of the post of Assistant

Operator (Group-C category), which had been

offered to them earlier. The petitioners accepted

the offer and even signed an undertaking which

stated as follows:

"I am ready and fully agreed to accept the

offer of appointment to a Group-D post under exempted category in terms of G.O. No.1619- Estab(Cel-II)/WI/N/12A-26/2009 dated 31st August, 2009 of Water Resources Investigation & Development Department, Government of West Bengal and Memo. No. 10576/9E-17/2009 dated 12th October, 2009 and No.9781/9E-17/2009 dated 14th September 2009 of the Director of Personnel & Ex-Officio Chief Engineer, Water Resources Development Directorate, West Bengal."

The order by which the respondents were

appointed to the Group-D post bore No. 1619-

Estab (Cell)/WI/N/12A-26/2009 dated 31st

August, 2009. It was this order and act of the

said authorities appointing the respondents to

the Group-D posts instead the Group-C posts

that was the subject-matter of challenge in the

original application filed before the Tribunal.

The order of the Tribunal dated 19th April,

2016 which is impugned before us states that

the aforesaid undertakings obtained from the

respondents were practically under duress and

would have to be treated as non-est, thereby

having no binding effect. The order stated that

the respondents, if otherwise eligible, should be

open for escalation to Group-C posts for which

they were originally selected. The Tribunal

directed necessary action in this regard to be

completed within a period of 4 months from the

date of communication of the order.

The petitioners contended that the Tribunal

in another original application being O.A. No.908

of 2015 has passed an order and judgment, after

hearing both sides, on 18th November, 2016.

This order and judgment, which has been passed

by the same bench of the Tribunal as the order

impugned herein, disallowed the application of

the original applicant therein on the ground that

the change in appointment processes brought

about by the recommendations of the 4th Pay

Commission by the State authorities had shifted

the process of appointment of the applicant

therein to the post for which he had being

originally selected. The Tribunal held that once a

person had accepted a post offered to him on

account of compassionate grounds, then such a

person could not object to his appointment to an

earlier post, following the decision of the

Supreme Court in Umesh Kumar Nagpal v

State of Haryana & Ors., reported in 1994 (4)

SCC 138.

In fact, the said order of the Tribunal even

addressed the order impugned herein stating

that the order impugned herein had been passed

without assistance from the State authorities.

The petitioner contends that the order of the

Tribunal dated 18th November, 2016 had been

challenged by a writ petition being W.P.S.T.

No.92 of 2018 before this Hon'ble Court. The writ

petition was taken up for consideration by a

Division Bench of this Court and was dismissed

by an order of this Court dated 10th June, 2019.

The said order of the Division Bench stated

that appointment was denied to the petitioner

therein on valid grounds. The denial of

appointment was neither illegal nor arbitrary and

it was merely the misfortune of the petitioner

that prior to an offer of appointment being issued

in his favour the rules underwent a change.

Moreover, the right of the petitioner therein to

challenge his appointment was held to have been

negated by his acceptance of the offer of

appointment.

Mrs. Samajpaty, the Learned counsel

representing the petitioners/State has submitted

that the petitioners have accepted the order

under challenge on the threat of contempt.

Matters involving similar questions of law and

fact have been decided by the same bench of the

learned Tribunal since affirmed by the Hon'ble

Division Bench in its order dated 10th June,

2019 contrary to the order impugned in this

proceeding.

The learned counsel for the petitioners has

relied upon decisions of the Hon'ble Supreme

Court in State of UP & Ors. Vs. Raj Bahadur

Singh & Anr., reported in (1998) 8 SCC 685 and

Veerayee Ammal Vs. Seeni Ammal, reported in

(2002)1 SCC 134 to justify the delayed challenge

to the order impugned. In the said judgments it

were held that there was no time limit for filing

an application under Article 226 and 227 of the

Constitution of India and if circumstances of the

case justify the cause the Court shall not take a

strict view and dismiss the writ petition merely

on the ground of delay and laches. Since the

impugned order is patently erroneous and

contrary to law and relevant rules for the ends of

justice interference is called for.

It is also emphasized by Mrs. Samajpay in

referring to the decision of the Hon'ble Supreme

Court in State of Rajasthan Vs. Umrao Singh,

reported in (1994)6 SCC 560 and Umesh Kumar

Nagpal Vs. State of Hariyana, reported in 1994

SCC (4) 138 that once compassionate

appointment was given and the same was

accepted, the right to such appointment stood

exhausted. Moreover, the appointee cannot have

a vested right to a particular post. If it is a

mistake committed by the appointing authority,

the appointing authority reserves the right to

correct the mistake.

It is also submitted that such mistake has

been noticed by the same bench of State

Administrative Tribunal in a similar matter. The

said bench of the Tribunal in fact had observed

that the instant matter was not decided

correctly.

On such consideration the learned counsel

for the petitioners has prayed for setting aside of

the impugned order.

The learned counsel for the respondents

submits that the writ petition should be

dismissed on the ground of delay and laches.

Moreover, having regard to the fact that the order

impugned has been implemented, the application

is barred by estoppel and acquiesce.

The question of law herein is whether the

respondents were wrongly appointed to the

Group-D posts despite a prior government order

allowing them to be appointed to the aforesaid

Group-C post. The question of law is to be

answered in the negative. The State authorities

have to operate in accordance with law and the

rules. The relevant notifications herein, being

G.O. No.30-Emp dated 02nd April, 2008 read

with G.O. No. 114-Emp dated 14th August,

2008, could not allow the respondents to be

appointed on their terms to the aforesaid Group-

C posts as the said notifications were nullified

when the recommendations of the 4th Pay

Commission were accepted by the State of West

Bengal. It cannot be denied and is not denied

that the 4th Pay Commission recommended that

posts upto scale 5 be filled up 100 per cent from

feeder posts. Thus, there could be no direct

appointment even in the exempted category of

appointments on compassionate grounds, like

that of the respondents to the post of Assistant

Operator (Group-C category).

On similar facts a Co-ordinate Bench on 10th

June, 2019 cited hereinabove upheld the

contention of the petitioner. That order stated, as

already outlined above, that compassionate

appointments being made to a post lower than

the one to which a person may have been

entitled due to a change in the rules and/or the

legal processes of such appointment cannot be

held to be bad in law. That holding squarely

applies to the present case and cannot be

contested as a matter of principle.

As stated by Nijjar, A.C.J., (speaking for a

Division Bench of the Punjab and Hariyana High

Court), as His Lordship then was, in the case of

Mohinder Singh v. State of Haryana & Ors.,

reported in 2007 (4) Punj. L.R. 563, the

representations made by an appointing authority

would bind it in equity and by estoppels, subject

to the requirements of the law. If the law, at the

time of making the representation or thereafter,

prevents the appointing authority of the State

from acting on that representation, then no court

of law can enforce that representation by

issuance of writs or any other relief. Moreover,

appointment to the Group-C post was a mistake

and contrary to rule. This was elaborately

discussed by the same bench of the SAT in O.A.

No.908 of 2015 and upheld by the Co-ordinate

Bench.

Keeping in mind the aforesaid proposition of

law and that the order was complied with in view

of the pending contempt application for

implementation of the said order which was

subsequently found by the same bench to be

erroneous in deciding the similar matter, we are

of the view that consistency should be there in

all matters having similar facts.

On such consideration, the order of the

Tribunal is set aside. However, the financial

benefit availed of by the original applicants by

reason of his appointment in Group-C post shall

not be recovered after the original applicant is

posted in Group-D post.

This writ petition succeeds. The order of the

Tribunal is modified to the extent.

WPST 49 of 2020 is thus allowed.

Urgent certified copy of this order, if applied

for, be given to the parties upon compliance of all

formalities.

(Hiranmay Bhattacharyya,J.) (Soumen Sen, J.)