State Of West Bengal & Anr vs Debdulal Gayen & Ors
2022 Latest Caselaw 3918 Cal

04.07.2022
Item No. 03
 Court No.32
 Avijit Mitra

                                 MAT 346 of 2016
                                        with
                IA No. CAN 1 of 2016 (Old No.CAN 2970 of 2016)
                                        with
                IA No. CAN 2 of 2016 (Old No.CAN 2972 of 2016)

                              State of West Bengal & anr.
                                        Versus
                                Debdulal Gayen & ors.


                      Mr. Susanta Pal,
                      Mr. Ananda Dulal Sarkar
                                       ...for the appellants



                      Affidavit-of-service filed by the appellants be kept on

                record. No one appears today on behalf of the writ

                petitioner/respondent no.1.

Records reveal that in connection with the present

appeal, an application for condonation of delay being IA

No. CAN 1 of 2016 (Old No. CAN 2970 of 2016) and one

application for stay being IA No. CAN 2 of 2016 (Old

No.CAN 2972 of 2016) have been preferred by the

appellants.

As we have invited Mr. Pal to advance his

arguments on the merits of the appeal, we condone the

delay in preferring the appeal and allow the application

for condonation of delay. The application being IA No.

CAN 1 of 2016 (Old No. CAN 2970 of 2016) is,

accordingly, disposed of.

Mr. Pal, learned advocate appearing for the

appellants submits that the respondent no.1/writ

petitioner preferred a writ petition being W.P. No.5552 (W)

of 2015 challenging an order dated 7 th October, 2013

passed by the Director of Employment, West Bengal by

which his prayer for recording his name as exempted

category candidate as ex-census worker of 1991 Census

was turned down. The said writ petition was allowed

placing reliance upon a certificate dated 15 th April, 2000

issued in favour of the writ petitioner by the Chairman,

Borough-XII of the Kolkata Municipal Corporation and

observing inter alia that in terms of the memo dated 19 th

November, 1990, the said Chairman was the certificate

issuing authority.

Mr. Pal submits that another writ petition was

preferred by one and Kalyani Samanta (Mondal) and

others. The said writ petition was also disposed of by the

learned Single Judge placing reliance upon similar

certificate issued by the Chairman, Borough-XII of the

Kolkata Municipal Corporation. The said order was

assailed in an appeal and the Hon'ble Division Bench by a

judgment and order dated 27th April, 2016 affirmed the

order of the learned Single Judge. Challenging the said

order, State preferred a Civil Appeal being No.7327 of

2016 and the same was finally heard and disposed of on

1st September, 2021 by the Hon'ble Supreme Court

setting aside the order of the Hon'ble Division Bench as

well as the order passed by the learned Single Judge.

Mr. Pal submits that the writ petitioner, namely,

Debdulal Gayen is similarly situated with Kalyani

Samanta (Mondal). The issue involved in the present

appeal is no longer res integra and as such, the present

appeal also needs to be allowed setting aside the order of

the learned Single Judge dated 13 th August, 2015 passed

in W.P. 5552 (W) of 2015. Subsequent to the decision of

the Hon'ble Supreme Court in Civil Appeal No.7327 of

2016, another appeal being MAT No.348 of 2016 (State of

West Bengal & another Vs. Tulsi Dey & others) preferred

by the State was also allowed placing reliance upon the

judgment delivered by the Hon'ble Supreme Court.

From the order passed by the Hon'ble Supreme

Court as well as the order passed by the Coordinate

Bench of this Court in MAT 348 of 2016, it appears that

the certificates upon which reliance was placed by the

writ petitioners therein are similar to the certificate

issued in favour of Debdulal Gayen, the respondent no.1

herein. Having considered the said certificates in the

earlier proceedings, the Court arrived at a specific finding

that the Chairman, Borough-XII of the Kolkata Municipal

Corporation had no authority to issue such certificates in

view of the memo dated 19 th November, 1990 and the

notification dated 21st August, 2002. We do not find any

reason to take any different stand in the present appeal.

In view thereof, the appeal is allowed and the order

passed by the learned Single Judge dated 13 th August,

2015 in W.P. 5552 (W) of 2015 is set aside.

The appeal and the stay application are, accordingly,

disposed of.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if applied

for, be given to the learned advocates for the parties.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)