Md. Majed Jahangir Laskar & Ors vs 9.11.2021 State Of West Bengal & ...
2021 Latest Caselaw 5633 Cal

t     N.22Sl
151/CL               CAN No.1 of 2019 (Old CAN No.5835 of 2019)
                          Md. Majed Jahangir Laskar & Ors.
                                          v.
    09.11.2021               State of West Bengal & Ors.
    SL-03                                 in
    Ct.04                        WPST No.24 of 2017
    (S.R.)
                 Mr. Samiran Giri                     ... for the petitioners.

                 Mrs. Chaitali Bhattacharya           ... for the State.


                       The     present     writ   petition   has   been   preferred

                 challenging an order dated 22nd December, 2015 passed by

                 the learned West Bengal Administrative Tribunal in OA

                 No.369 of 2013. The application for early hearing being

                 CAN No.1 of 2019 (Old CAN No.5835 of 2019) is allowed

                 and the writ petition is taken up for final hearing.

                       Mr.     Giri,   learned    advocate    appearing   for   the

                 petitioners submits that the learned Tribunal erred in law

                 not in considering the fact that persons similarly situated

                 and appointed to Group-D posts were granted promotion to

                 LDC posts. The authorities have illegally applied a different

                 yardstick in the case of the petitioners. In support of such

                 contention, Mr. Giri has drawn our attention to the

                 averments made in paragraph 26 of the writ petition.

                             According to Mr. Giri, after the petitioners were

                 appointed to Group-D post, the State authorities invited

                 option from the petitioners for consideration of their

                 candidature in promotional posts.           Pursuant thereto, the

                 petitioners   exercised     option   but    the   same   was   not
                     2




considered and illegally kept in abeyance.               However, the

authorities    have       granted   promotion      to     the   private

respondents to the post of upper division clerk though they

were engaged subsequent to the petitioners.

According to Mr. Giri, the learned tribunal ought to

have interfered with the order dated 10 th January, 2013

passed by the respondent no.4 since the same was passed

without taking into consideration the discrimination

practiced against the petitioners. In support of his

arguments, Mr. Giri has placed reliance upon a judgement

delivered in the case of Surya Kant Kadam v. State of

karnataka & Ors, reported in (2002) 9 SCC 445.

Per contra, Ms. Bhattacharya, learned advocate

appearing for the respondents submits that the private

respondent nos.17 to 23 were initially appointed to the post

of LDC whereas the petitioners were appointed in Group-D

cadre and as such they are not similarly situated. The

petitioners willingly accepted their compassionate

appointment to Group-D post and they cannot claim direct

promotion to the LDC post in derogation to the existing

government circular, as referred to in the reasoned order

passed by the respondent no.4.

She further submits that the instance of promotion

as referred to paragraph 26 of the writ petition does not

create any right in favour of the petitioners. We have heard

the learned advocates appearing for the respective parties

and considered the materials on record.

The argument of Mr. Giri that discrimination has

been practised by the respondents and there had been

violation of Article 14 of the Constitution of India is not

acceptable to us in as much as the private respondents

were initially appointed to Group-C posts, as would be

explicit from the documents on record. Even if, any

irregular promotion had been granted to any incumbent, as

referred to paragraph 26 of the writ petition, the same does

not create any right in favour of the petitioners for

promotion. Article 14 of the Constitution which guarantees

equality is a positive concept and it cannot be applied in a

negative manner. The judgment delivered in the case of

Surya Kant Kadam (supra), as cited on behalf of the

petitioners, is also distinguishable on facts.

The learned tribunal upon dealing with all the

factual issues arrived at specific findings and we do not find

any error, least to say any patent error of law in the same.

The impugned order also does not suffer from any

jurisdictional error or any substantial failure of justice

warranting interference of this Court.

In view thereof, we are unable to grant the relief, as

prayed for by the petitioners and the writ petition being

WPST No.24 of 2017 is dismissed.

(Sugato Majumdar, J.) (Tapabrata Chakraborty, J.)