Calcutta High Court (Appellete Side)
Ct. No. 04 Amalesh Ghosh vs Ab The State Of West Bengal And ... on 19 January, 2022
16 19.01. WP.ST 30 of 2017
2022
Ct. No. 04 Amalesh Ghosh
Vs.
Ab The State of West Bengal and others.
---------------
Mr. Ranjit Jaiswal.
... for the petitioner.
Mr. Tapan Kumar Mukherjee,
Ms. Debjani Mitra.
... for the State.
The instant writ petition has been filed against the
judgment dated 8th September 2015 passed by the West
Bengal Administrative Tribunal in OA 163 of 2014.
At the outset, when Mr. Ranjit Jaiswal, learned
Advocate for the writ petitioner, moves the instant writ
petition, we invited his attention to the ultimate relief
granted by the tribunal and enquired about the
prejudice being caused thereto. In order to have more
clarity to the aforesaid expressions, it is necessary to
recapitulate the undisputed facts of the case.
Pursuant to the recruitment process initiated in the
year 1995 for filling up the posts of Lower Division Clerk
(LDC), the writ petitioner offered his candidature and
participated in the written examination held on 9th July
1995. The first list published in the month of July 1997
did not include the name of the writ petitioner, which
came to be included in the second list published on 4th
February 1999. The writ petitioner offered his
candidature under the physically handicapped category
and the authorities thereafter directed the writ
petitioner to appear for type test. A plea was taken by
the writ petitioner that since he is physically
handicapped and the relevant rules does not permit the
type test, he should not be insisted for the same.
However, the authorities did not adhere to such request
and the writ petitioner moved the tribunal application
being 1199 of 1997, which was finally disposed of on
17th December 2003 directing the authorities not to
insist for the type test, as it has been forbidden under
the relevant rules/statute with further direction to give
an appointment upon verification of his certificates and
testimonials. Ultimately, the appointment letter was
issued on 1st November 2006 but his seniority was
directed to take effect from 3rd November 2009. The writ
petitioner thereafter made several representations; that
because of the negligence and the lackadaisical attitude
of the respondent authorities the appointment letter was
issued belatedly for that the writ petitioner should not
suffer and, therefore, his seniority should be counted on
the basis of his position in the merit list published in
the year 1999. Since the said prayer was rejected, the
writ petitioner moved another tribunal application being
OA 163 of 2014 praying twofold reliefs; firstly, the
authorities should not have directed the seniority be
counted from 2009 when, in fact, the writ petitioner was
found eligible when the list was published by including
the name of the writ petitioner and, secondly, the
damages to the tune of Rs. 10,00,000/- for agony, pain
and sufferance, which the writ petitioner had
undergone.
By the impugned order the tribunal granted
substantial relief directing the authorities to place the
writ petitioner in the gradation list with reference to the
position in the selection list published in the year 1999.
Since the substantial relief had already been
granted, we invited the attention of Mr. Jaiswal to
satisfy whether his client is a person aggrieved. Mr.
Jaiswal submits that the main relief has already been
granted to the writ petitioner but the tribunal omitted to
grant the compensation as claimed therein. However, he
emphasized that although the substantive relief has
been granted but till date it has not been implemented.
Since the aforesaid submission came in course of the
dictation of this order, we need to consider the same in
the perspective of law.
A person can be said to be an aggrieved if the reliefs
claimed in the original proceeding are either rejected or
partially allowed. If the substantive reliefs have been
granted, the higher forum should not be moved that the
order of the tribunal has not been implemented by the
authorities as yet. There is a specific provision provided
in the Central Administrative Tribunals Act empowering
the tribunal to punish for contempt in case of the
violation of its order and if such power is already
conferred merely because the order has not been
implemented, the higher forum should not usurp the
power of the original authority or to act as an executing
court. The power of judicial review is never construed by
the framers of the Constitution to convert the High
Court in an executing court nor it was ever intended to
exercise such power in such fashion or in derogation
with the substantive provision of law.
Reverting back to the core issue, the writ petitioner
cannot be said to be an aggrieved person as the
substantive relief was already granted. However, the
writ petitioner can still maintain the writ petition if the
other reliefs, which are independent, have been denied
by the tribunal. The right to claim damage is inhere to
the aggrieved person but such claim must be
corroborated with sufficient pleadings and evidence to
be produced at the time of the hearing of the main
proceeding. Mere using the expression that he has
suffered damages because of the agony, pain and
sufferings does not invite the Court to pass an order.
Furthermore, from the impugned order, it does not
appear that the learned Advocate for the writ petitioner
pressed such point nor any argument was advanced in
this regard and, therefore, there is no infirmity on the
part of the tribunal in not considering such relief. Right
to abandon the relief is within the wisdom of the writ
petitioner and if the same has been abandoned having
not pressed at the time of argument, we do not find any
justification in interfering with the order of the Tribunal.
The writ petition is, thus, dismissed
There shall, however, be no order as to costs.
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
