Calcutta High Court (Appellete Side)
Dr. Avijit Chakraborty vs Kolkata Municipal Corporation & ... on 6 December, 2022
06.12.2022
Item No.13.
Court No.6.
S. De
M.A.T. 1881 of 2022
with
I.A. No. CAN/1/2022
Dr. Avijit Chakraborty.
Vs.
Kolkata Municipal Corporation & Ors.
Mr. Arijit Dey,
...for the appellant.
Mr. Aloke Kumar Ghosh,
Mrs. Tanushree Das Gupta,
...for the K.M.C.
Mrs. Koyeli Bhattacharyya,
...for the West Bengal
Municipal Service Commission.
This is an appeal against a judgment and order
dated November 25, 2022 whereby the appellant's writ
petition was dismissed.
The appellant is an employee of the Kolkata
Municipal Corporation (in short 'KMC') who is posted
at one of the burning ghats in Kolkata.
An advertisement was issued by the West Bengal
Municipal Service Commission on July 29, 2022, for
recruitment of Sub-Registrars. The last date for filing
on-line application was September 4, 2022. Upper age
limit for candidates was forty-five years as on January
1, 2022. Age limit was relaxable by five years for
candidates who are working in Government/semi-
Government, local/statutory bodies/urban bodies in
similar posts on either permanent or contractual basis
in burning ghats/burial ground/mortuary etc. for at
least five years. The essential qualification that a
candidate is required to have was also mentioned in
the notification.
Before the learned single Judge, the appellant
said that he had the essential educational
qualification. He has been working at a burning ghat
for the last five years. He said that he came to know of
the advertisement only in the month of October, 2022,
and immediately thereafter made a representation
before the K.M.C. on October 17, 2022, for issuance of
a 'no objection' certificate permitting him to participate
in the recruitment process. However, such permission
was not granted.
Essentially what the appellant wanted from the
learned Single Judge is permission to file application
off-line although the last date for filing such
application expired on September 4, 2022.
The learned Judge noted that the West Bengal
Municipal Service Commission, on November 10,
2022, announced that the written examination is to be
held on December 18, 2022. The appellant had filed
the writ petition on November 15, 2022. Finally, the
learned Judge came to the following conclusion :-
"Having heard the submissions
made on behalf of the parties and
on perusal of the materials on
record it appears that the petitioner
has approached this Court long
after the last date of filing the
application.
Had the petitioner been genuinely
interested to participate in the
recruitment process, he ought to
have been more vigilant and
applied in proper time for
necessary relief.
Lately the Commission has
declared the date of the written
examination. The initial process of
the Commission for scrutinizing the
applications is nearly over.
The application filed by the
petitioner before the Corporation
seeking issuance of the 'no
objection' also does not bear any
seal or signature of the employer.
The Court has no other option but
to infer that the petitioner
approached this Court on 15th
November, 2022 after the date of
written examination was declared
by the West Bengal Municipal
Service Commission on 10th
November, 2022.
If the prayer of the petitioner to
participate in the recruitment
examination after the last date of
filing the application is accepted,
the same may open floodgate and
there may be similarly
circumstanced candidates who
may approach the Court for relief.
As time frame has already been
fixed by the recruiting authority
within which the application is
required to be filed, the candidate
ought to follow the same and not
approach this Court at a delayed
point of time seeking permission to
participate in the recruitment
process.
The Court is not inclined to
exercise jurisdiction in the matter."
Being aggrieved, the writ petitioner is before us
by way of this appeal. We have heard learned
advocate for the appellant. We have not called upon
learned advocates for K.M.C. or the West Bengal
Municipal Corporation to make submission.
We are completely in agreement with the learned
Single Judge. Had the appellant been serious enough
about participating in the concerned recruitment
process, he ought to have approached the Court much
earlier. He sat over the matter. He slept over his
alleged right. Last date for filing on-line application
was September 4, 2022. He says that he came to
know about the recruitment process only in October
2022. We are not convinced. Further the learned
Judge has noted there is no seal of receipt on the
representation dated October 17, 2022, which the
appellant allegedly made to K.M.C.
However, learned advocate for the appellant
draws our attention to a document at page 54 of the
stay petition which contains the decision of the K.M.C.
authorities regarding the appellant's prayer for
issuance of 'no objection' certificate. It appears from
the said document that the K.M.C. recorded its
inability to issue such 'no objection' certificate. This
document was admittedly not part of the writ petition
before the learned Single Judge. Hence, the
observation of the learned Single Judge as regards the
representation of the appellant not being filed before
the K.M.C. authorities, cannot be faulted.
Delay defeats equity. One cannot say exactly
what amounts to delay. It depends on the facts of
each case. In this case, the delay of about two months
was bad enough. No compelling reason has been cited
by the appellant as to why more than two months after
the last date for filing application on-line, he should be
permitted to file application off-line. We agree with the
learned Single Judge that this would open floodgates
and put the Corporation authorities in undue
difficulty.
A Division Bench hearing an intra-court appeal
would only interfere when the order impugned is
perverse or so reasonable that no reasonable person
would have arrived at such a conclusion or there is
jurisdictional error or breach of natural justice. Just
because the appeal Court may have a different view,
that would not be good ground for interference if the
view of the learned Single Judge is a plausible view. In
the present case, we find no glaring infirmity in the
order under appeal.
The appeal being M.A.T. 1881 of 2022 is
dismissed without any order as to costs along with I.A.
No. CAN/1/2022.
Urgent certified photostat copy of this order, if
applied for, shall be given to the parties as
expeditiously as possible on compliance with all the
necessary formalities.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
