Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Mamun Shaikh on 21 December, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Lapita Banerji
RVW 111 of 2021
With
CAN 1 of 2021
The State of West Bengal & Ors.
Vs.
Mamun Shaikh
For the State/Applicants : Mr. Arjun Ray Mukherjee, Adv.
Ms. Saheli Mukherjee, Adv.
For the Respondents : Mr. Indranil Roy, Adv.
Mr. Sunit Kumar Roy, Adv.
Heard On : 02.12.2022.
Judgment On : 21.12.2022.
Lapita Banerji, J.:- In this is a review petition the applicants have prayed
for reviewing a Judgment and Order passed by a Hon'ble Coordinate Bench on
July 10, 2019. The Memorandum of Review was filed on September 15, 2021.
2. By the Judgment and Order dated July 10, 2019, the Hon'ble Coordinate
Bench held that the Order of Termination to be a nullity/non-est in the eye of
law and had set aside the same. The writ petitioner was directed to be
reinstated in service within 72 hours from the date of communication of the
Order.
3. The facts, which led the writ petitioner/respondent (in the Review
Application) to initiate the writ proceedings, are briefly stated hereinbelow.
4. The writ petitioner applied for the post of Senior Treatment Supervisor
pursuant to an Advertisement dated December 29, 2015 issued by the
Secretary & Chief Medical Officer of Health, District Health and Family Welfare
Samity. The eligibility criteria, inter alia, comprised of (i) Bachelor Degree OR
Recognized Sanitary Inspector's Course; (ii) Certificate Course in computer
operation (minimum 2 years); (iii) permanent two-wheeler driving license and to
be able to drive two wheeler (with gear).
5. The Hon'ble Coordinate Bench held that the writ petitioner was either
required to possess a Bachelor Degree OR a certificate in the recognized
sanitary inspector's course. The respondent/State knew the meaning of the
word OR as opposed to the word AND. The petitioner, who has been working
on contractual basis since March, 2016, could not be terminated from service
from July18, 2018 on the ground that the petitioner's qualification of diploma
in sanitary inspector's course was from an unrecognized institute. Since the
petitioner possessed Bachelor Degree from a recognized university, the
eligibility criteria was met as the two criteria have to be read disjunctively.
6. Furthermore, it was held that the Impugned Order of Termination was
cryptic and the respondent authorities did not comply with the basic principles
of Natural Justice by supplying reasons for the termination to the petitioner.
7. Mr. Ray Mukherjee, appearing on behalf of the state/review applicants,
submitted that the Hon'ble Coordinate Bench failed to appreciate that the
eligibility criteria has to be read conjunctively with each other and not
disjunctively. Therefore, a candidate was required to have a Bachelor Degree
and also a certificate in a Recognized Sanitary Inspector's course. He argued
that the word OR should have been read as AND. He relied on Clause 11 of
the Advertisement dated December 29, 2015. Clause 11 of the Advertisement
is set out hereinbelow:
"(11) The recruitment process for the different post will be done as
per the relevant Terms of Reference (TOR) issued by the Competent
Authority or the District Recruitment Committee (NHM) which is
applicable for that particular post."
8. He also referred to a Memorandum dated February 9, 2016 issued by the
Secretary, District Health and Family Welfare Samity as proof of the fact that
the applicants/candidates should at least have 50% marks as requisite
qualification. Furthermore, he placed reliance on the Memorandum dated May
14, 2015 that was referred to in the Memorandum dated February 9, 2016 in
support of his contention that the applicants should at least secure 50% marks
in all requisite qualifications. The said Memo dated May 14, 2015 was issued
by the Executive Director, West Bengal State Health and Family Welfare
(WBSH&FW) Samity.
9. He contended that since the petitioner did not obtain 50% marks in his
Bachelor Degree, the said qualification even though from a recognized
university could not be considered. Since the petitioner's Sanitary Inspector's
certificate was not from a recognized institute, the same also could not be
considered even though the petitioner obtained more than 50% marks..
10. Furthermore, the petitioner's appointment was clearly contractual and
no illegality has been committed by terminating the petitioner's services by a
cryptic Order dated August 17, 2018. There was no requirement to give any
reasons for petitioner's termination.
11. Mr. Roy, Learned Counsel appearing on behalf of the writ
petitioner/respondent, submitted that the review petition has been filed at a
much belated stage. Delay in filing the review petition has not been explained
satisfactorily and, therefore, the said delay cannot be condoned.
12. He further submitted that all the documents were before the Hon'ble
Single Judge apart from one document dated February 9, 2016, but, that
document was merely a declaration that referred to the document dated May
14, 2015, which was taken into account by the Hon'ble Single Judge. The
review applicants have sought to reopen the entire case on merits which is not
permissible in law. The review applicants have not satisfied the grounds of
review since the review is preferred from a Judgment and Order from which an
appeal is permissible under the Law. A review could be preferred on discovery
of new and important matters or evidence, which after exercise of due diligence
was not within the knowledge of the applicants, could not be produced by them
at the time when the decree/order was made. Such is not the case here. No
averments are made to that effect.
13. This is also not a case of mistake/error apparent on the face of the
records.
14. Having considered the rival submissions of the parties and the materials
placed on record, this Court finds that:
(a) The delay in filing the Review Petition has not been
sufficiently explained by the review applicants. The order under
Review was passed on July 10, 2019 and the nationwide
lockdown due to Covid-19 commenced from March 25, 2020. No
explanation has been given as to why between July 10, 2019 and
March, 2020 the applicants took no steps to prefer the application
for review.
(b) The time stipulated for Review is 30 days under the
Limitation Act, 1963. Even though the said timeframe is not
strictly applicable to an application for Review of an order passed
in a writ petition, still the delay has to be
sufficiently/satisfactorily explained which the applicant failed to
do, in this case.
(c) On merits, the review applicants have also failed to show the
reason for not producing the Memorandum dated February 9,
2016 before the Hon'ble Single Judge since it was within their
power and possession when the writ petition was heard.
(d) In any event, the said Memorandum is merely a declaration
that relies on the guidelines dated May 14, 2015 passed by the
Executive Director, West Bengal State Health and Family Welfare
Samity and the said guidelines have been taken into
consideration by the Hon'ble Single Judge.
(e) There is neither an error apparent on the face of the records
nor did the applicant discover any new or important matter or
evidence which after exercise of due diligence was not within their
knowledge or could not be produced by them at the time the
Judgment dated July 10, 2019 was passed.
(f) No Appeal has been preferred from the Judgment and Order
dated July 10, 2019. Here, the applicants have sought to reopen
the case on merits, which is not permissible in a Review
application.
15. In the light of the discussions above, review application being RVW
111/2021 along with CAN 1 of 2021 are dismissed without any order as to
costs.
16. All parties to act on server copy of this Order as downloaded from the
official website of this Hon'ble Court.
17. Urgent certified photocopy of this judgment, if applied for, be supplied to
the parties upon compliance of all the requisite formalities.
(Lapita Banerji, J.)
