Calcutta High Court
Atanu Chakraborty vs High Court Of Calcutta And Others on 28 April, 2023
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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
RESERVED ON: 17.04.2023
DELIVERED ON: 28.04.2023
CORAM:
THE HON'BLE MR. ACTING CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
A.P.O. NO. 220 OF 2019
I.A. NO. G.A./01/2019 (OLD NO. GA/2957/2019)
ATANU CHAKRABORTY
VERSUS
HIGH COURT OF CALCUTTA AND OTHERS
OCO NO. 01 OF 2020
THE HIGH COURT AT CALCUTTA AND ANOTHER
VERSUS
ATANU CHAKRABORTY AND OTHERS
Appearance:-
Mr. Surajit Samanta, Adv.
Mr. Ranajit Chatterjee, Adv.
Mr. Subhrangshu Panda, Adv.
Mr. Prasenjit De, Adv.
Mr. Aniruddha Mitra, Adv.
Mr. Biswajit Samanta, Adv.
Mr. P.K. Mondal, Adv.
Page 1 of 33
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Ms. Ira Bhattacharjee, Adv.
Ms. Mithu Singha Mahapatra, Adv.
....for the Appellant/Writ Petitioner.
Mr. Jaydip Kar, Sr. Adv.
Mr. Siddhartha Banerjee, Adv.
Mr. Sudipta Nayan Ghosh, Adv.
.....for the High Court Administration.
Mr. Anindya Lahiri, Adv.
Mr. Samrat Dey Paul, Adv.
....For the respondent No. 4
JUDGMENT
(Judgment of the Court was delivered by T.S.SIVAGNANAM, ACJ.)
1. This intra Court Appeal and the cross-objection are directed against the
order passed in the learned Single Bench in WP No. 38 of 2018. The said writ
petition was filed by the appellant for insurance of writ of mandamus to direct
the official respondents to republish the overall results of candidates for
recruitment to the post of District Judge (Entry Level) by excluding the names
of the 4th and 5th respondents from the list of empanelled candidates and all
consequent changes in the merit position of the remaining candidates; to direct
the official respondents to recall/ rescind/ modify the decision of the Hon'ble
Selection Board as contained in the minutes dated 9th September, 2009 in so
far as the same restricts the validity of the panel till the declaration of
vacancies for next year; to recall/ rescind/ cancel the notification dated 28th
October, 2009 in so far as it excludes the names of the Respondent Nos. 4 and
5 and to direct the official respondents to give appointment and posting to the
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writ petitioner as District Judge (Entry level) in West Bengal Judicial Services
in any available vacancy.
2. The facts leading to the filing of the writ petition are as hereunder.
Notification was issued on 31.03.2009 by the Registrar General of this Court
notifying 131 vacancies in the cadre of District Judge (Entry level) in the West
Bengal Judicial Services to be filled up in the year 2009 in accordance with the
directions of the Hon'ble Supreme court in the case of Malik Mazhar Sultan's.
Pursuant to such notification, advertisement was published on 15.04.2009
declaring that 16 vacancies out of the 131 vacancies are to be filled up by way
of direct recruitment from the Bar in accordance with Rule 24(1)(a) of the West
Bengal Judicial (Conditions of Service) Rules, 2004.
3. The said notification/ advertisement stated that a competitive
examination will be held in Kolkata in last week of June, 2009 and it shall be a
two-stage process comprising the total marks of 600, consisting of written test
of 5 papers of 100 each to be answered within 3 hours and the pass marks on
each subject will be 40 and in addition to that the candidates must obtain 50
on aggregate in order to be successful in the written test and further 100
marks are reserved for viva voce and personality test and the pass marks for
viva voce and personality test will be 40. It was further notified that the
selection board shall call such number of successful candidates in the written
test for viva voce and personality test as it thinks fit strictly according to the
merit list prepared on the basis of aggregate marks obtained by those
candidates but such number in no case should exceed twice the number of
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vacant posts. Further, the notification stated that the High Court reserves the
right to relaxing the eligibility criteria and qualifying the marks for each subject
or aggregate, if required. The final merit list will be published on the basis of
the total marks obtained by the successful candidates in the written test and
the viva voce and personality test. The other criteria fixed in the notification
may not be of much relevance to decide the present appeal. Several candidates
had applied for the said post which included the writ petitioner and the
Respondents 4 and 5. Ultimately the writ petitioner was unsuccessful and not
selected and the 4th respondent was selected and unfortunately the 5th
respondent passed away.
4. The writ petition was filed contending the action of the Selection Board
(consisting of three Hon'ble Judges of this Court) to call 3 candidates for viva
voce and personality test even though they did not qualify in the written test by
relaxing the criteria of pass mark as stipulated in the advertisement dated
15.04.2009 was arbitrary, illegal and violative of Articles 14, 16 and 21 of the
Constitution.
5. Further, no reason has been disclosed by the High Court as to why it was
necessary to permit three candidates who are unsuccessful in the written test
to appear in the viva voce. It was submitted that 19 candidates had qualified to
appear in the viva voce and personality test and there being no benchmark/
cutoff for the viva voce and personality test, there would not have been any
difficulty to fill up the 16 notified vacancies even without permitting the three
unsuccessful candidates to appear in the viva voce and personality test by
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relaxing the norms. The private respondent filed GA No. 1608 of 2019 in WP 38
of 2018 by raising a preliminary objection regarding the maintainability of the
writ petition stating that the writ petitioner had filed a writ petition under
Article 32 of the Constitution of India before the Hon'ble Supreme Court which
was dismissed by order dated 11th January 2016 and therefore, the present
writ petition is barred by the principles of res judicata. It was further
contended that the writ petition is liable to be dismissed on the ground of
inordinate delay and latches as the writ petition has impugned the recruitment
made to the post of District Judge (Entry level) initiated in 2009 by preferring
the writ petition in the year 2018.
6. The High Court administration had also filed their affidavit-in-opposition
contending that the writ petition is not maintainable as the writ petitioner
seeks to challenge the communications and orders passed in 2009 in the year
2018 after a delay of 9 years. That the writ petition is hit by the principles of
res judicata since the writ petitioner had agitated all issues raised in the writ
petition before the Hon'ble Supreme Court in IA No. 6 of 2010 filed in WP(C) 46
of 2007 which was dismissed as not pressed by order dated 29th August, 2011
and thereafter filed IA No. 7 of 2007 to recall the said order which application
was dismissed as utterly misconceived. That apart, the petitioner filed a writ
petition under Article 32 of the Constitution of India in WP(C) No. 1 of 2016 for
similar prayer which has been prayed for in the present writ petition and the
writ petition was dismissed holding that the Court was not inclined to entertain
the writ petition. Further, it was contended that since the writ petitioner has
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participated in the recruitment process without any objection and had
appeared till the stage of viva voce and waited for the declaration of the final
results and the notification of posting in respect of the successful recruitees
from the Bar which was published on 28th October, 2009 before approaching
the Hon'ble Supreme Court by filing IA No. 6 of 2010 on 7th July, 2010 is
estopped from challenging the recruitment process. In other words, it was
contended that the writ petitioner had accepted the relaxation of the conditions
and has taken a chance in competing in the viva voce test and after he was
unsuccessful, has approached different forums at a very belated stage and if
the writ petitioner is allowed to agitate the issues at this juncture it would be
contrary to the principles of estoppel by acquiescence. The writ petitioner has
filed an affidavit-in-reply in effect reiterating his original stand terming the
action of permitting the three candidates to appear in the viva voce to be illegal
and that he could not have raised any objection to the illegal action till the
merit list of 16 candidates was published. The learned Single Bench after
considering the submissions made on either side appears to have called for the
records of the recruitment process and noted that the decision to award a
maximum of 2 marks to the candidates who have been unsuccessful in one of
the papers or in aggregate, held the same to be in excess of the power of
relaxation contained in the relevant advertisement which reserved to the High
Court the right to relax the eligibility criteria and qualifying marks in each
subject or aggregate, if required. After noting the decision of the Selection
Board, the learned Single Bench opined that the order granting the relaxation
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does not record any reasons for such relaxation, it is entirely an unreasoned
one never seeking to record why relaxation of 2 marks from the stipulated pass
marks was done by the Selection Board. Further, the learned Writ Court
pointed out that even if in the advertisement it was mentioned that right to
relax eligibility criteria could be exercised, if required, it is a settled principle of
law that when a power is given to an authority to be exercised only if that was
required, such power cannot be exercised unless the requirement is fulfilled.
The learned Writ Court had referred to the decisions of the Hon'ble Supreme
Court wherein it was held that appointing Authorities are required to apply
their mind while exercising the discretionary jurisdiction to relax the age limit.
After making such observations, the Court then proceeded to consider as to
what relief the writ petitioner was entitled to taking note of the facts placed by
the High Court administration. The learned Writ Court came to a conclusion
that the writ petition is barred by inordinate delay and latches and accordingly
the writ petition was dismissed.
7. Mr. Surajit Samanta, learned Advocate appearing for the appellant would
adopt the observation made by the learned Single Bench with regard to the
manner in which the Selection Board took a decision to relax to award a
maximum of 2 marks to be his argument. It is submitted that once the Court
had come to the conclusion that reasons are not being recorded by the
Selection Board, relief as prayed for by the writ petitioner ought to have been
granted. Further, it is submitted that when the Writ Court found glaring
infirmities in the decision of the selection board ought to have granted relief
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sought for in the writ petition. Thus, it is submitted that the only question
would be whether there is merely a delay. The learned Writ Court ought to have
been seen that unequals have been treated as equals. By referring to minutes
of the meetings of the selection board held on 9th September, 2009, it is
submitted that it has been recorded in the said meetings that in view of the
order dated 13th January, 2009 passed by the Hon'ble Supreme Court in
WP(C) No. 46 of 2007 (West Bengal Judicial Services Association Versus
Registrar General, High Court at Calcutta & Anr.) for the time being only
16 persons from the panel will be appointed and the fate of the other two
successful candidates in the panel will depend upon such further order or final
decision that may be passed by the High Court in the said pending matter. As
per the panel so prepared Shri Indranil Bhattacharya will be the last person
empanelled in the list of successful candidate making it clear that such panel
will be valid until the declaration of the vacancy for the next year. With regard
to the dismissal of the writ petition, on the ground of delay, it is contended that
the learned Writ Court ought to have noted in the year 2010 that the writ
petitioner had filed an interim application for adding him as a party in the
pending matter before the Hon'ble Supreme Court and this application was
dismissed as not pressed and he filed an application for recalling the said order
in the year 2012 and after the dismissal of the said recalling petition, he had
filed a writ petition under Article 32 of the Constitution of India which was
dismissed on 11.01.2016 after which within 2 years he has filed the present
writ petition and the writ petition ought not to have been dismissed only on the
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ground of inordinate and unreasonable delay. It is further submitted that it
may be construed as a case of pursuing a remedy before a wrong forum and in
any event when the decision of the Selection Board had referred to the writ
petition filed by the West Bengal Judicial Services Association, the petitioner
had approached the Hon'ble Supreme Court seeking to implead himself in the
said writ petition and after dismissal of those petitions as well as the dismissal
of the writ petition filed under Article 32 of the Constitution, the appellant had
approached this Court and filed the writ petition. It is thus submitted that a
wrongful benefit has been conferred on the private respondents and such
wrong should not be permitted to continue. By way of concluding submissions,
the learned Advocate submitted that even as on date vacancies are available
and the writ petitioner can be accommodated in one of such vacancy without
affecting the rights of the other candidates.
8. The learned Senior Advocate appearing on behalf of the High Court
submitted that the High Court has filed a cross-objection on account of certain
observations made by the learned Single bench though ultimately the writ
petition was dismissed on the ground of delay. Firstly it is submitted that the
claim made by the writ petitioner is a stale claim and rightly not entertained by
the learned Writ Court. It is submitted that the writ petitioner is guilty of forum
shopping having moved the Hon'ble Supreme Court for identical relief and after
having been unsuccessful, cannot maintain the present writ petition. Further,
the cause of action for the present writ petition is identical to that of the cause
of action for the petition filed by the writ petitioner before the Hon'ble Supreme
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Court and therefore, is estopped from seeking any relief before this Court.
Further, it is submitted that the writ petition is liable to be dismissed on the
ground of res judicata as the prayer sought for in the writ petition filed under
Article 32 of the Constitution and the prayer in the present writ petition is
identical except for a slight difference in the language/ drafting and lastly, it is
submitted that the writ petitioner having participated in the selection process
is deemed to have waived his right and not entitled to question the process.
With regard to the merits of the matter, the learned Senior Counsel has drawn
the attention to the relevant clause in the advertisement which empowered the
High Court to grant relaxation. Referring to the chart giving the result of the
written test dated 21st August, 2009, it is submitted that the total percentage of
the marks was never increased and the decision was only with regard to permit
such of those candidates who have secured 2 marks lesser than the minimum
marks to participate in the viva voce and personality test. Therefore, the
decision of the Hon'ble Selection Board headed by the then Hon'ble the Chief
Justice is inconsonance with the notification and does not suffer from want of
jurisdiction. It is further submitted that the panel of 18 candidates were drawn
to remain valid from 21.10.2009 till August 2010 and posting orders were
issued. However, on 09.04.2010 a fresh advertisement calling for applications
for recruitment to the post of District Judges (Entry Level) for 23 vacancies was
published. Therefore, the said panel of 18 candidates though to remain valid
till August 2010, the remaining panel cannot be operated on or after the
issuance of the fresh advertisement i.e. on or after 09.04.2010. The application
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filed by the writ petitioner seeking impleadment in the proceedings before the
Hon'ble Supreme Court was much after the 23 vacancies were notified by the
advertisement dated 09.04.2010. Further it is submitted that the order passed
by the Hon'ble Supreme Court dated 13.01.2009 in WPC No. 46 of 2007 was
for a direction to fill up the 16 posts of District Judges (Entry Level) by direct
recruitment which was noted in the said order. It is submitted that the writ
petition filed before the Hon'ble Supreme Court was for a similar relief and on
the same cause of action which was dismissed with the reasons and therefore
the present writ petition was not maintainable. It is further submitted that
when the writ petition itself has been held to be not maintainable, the
remarks/observation passed by the learned single bench were not warranted
more particularly when the decision of the Selection Board was approved by
the Full Court. It is submitted that the decision of the Selection Board taken on
28.08.2009 was uploaded in website of the High Court and this decision was
taken by three senior most judges of this Court and was also circulated to the
Hon'ble Full Court and approved. The writ petitioner despite having knowledge
of the said decision of the Selection Board instead of objecting, participated in
the selection process without protest and appeared for the viva voce and
personality test. Further it is submitted that the writ petition in WPC No. 46 of
2007 which was pending before the Hon'ble Supreme Court in which the writ
petitioner filed IA No. 06 of 2010 pertained to the roaster and gradation list of
District Judges of the State of West Bengal and had nothing to do with the
selection process initiated by the Court in 2009.
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9. Mr. Anindya Lahiri, learned advocate appearing for the fourth respondent
pointed out that the fourth respondent had filed an application in G.A No. 1608
of 2019 wherein the issue regarding maintainability of the writ petition was
raised to be decided as preliminary issue. Referring to the reliefs sought for in
the petition filed under Article 32 of the Constitution of India before the Hon'ble
Supreme Court and the reliefs sought for in the present writ petition it is
submitted that the same were for identical reliefs and once the writ petition
filed under Article 32 of the Constitution of India was dismissed the writ
petitioner is estopped from filing fresh writ petition on the same cause of action
and the present writ petition is barred by the principles of res judicata. It is
submitted that it is relevant to note that what was filed by the writ petitioner
before the Hon'ble Supreme Court was not a Special Leave Petition but a writ
petition under Article 32 of the Constitution and the same having been
dismissed assigning reasons, it has to be placed on a different pedestal and not
on the same pedestal on which dismissal of special leave petitions are
considered. Further it is submitted that the writ petitioner participated in the
viva-voce and personality test and was aware of all the facts and he cannot
turn around and make a belated challenge to the selection which had already
been completed. The learned advocate has drawn our attention to the
supplementary affidavit-in-opposition filed on behalf of the fourth respondent
wherein the averments made by the writ petitioner in paragraphs 8 and 9 of
the writ petition with regard to the declaring of results of the writ examination
on 21.08.2009 has been specifically pleaded and in paragraph 8(c)of the
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affidavit-in-opposition the fourth respondent had specifically pleaded that the
writ petitioner has continued to participate in the recruitment process without
any objection and had appeared in the viva-voce and personality test and
waited for the declaration of the final result and notification of posting in
respect of the successful incumbents from the Bar published on 28.10.2009
and therefore he is estopped from challenging the recruitment process or any
orders passed in the recruitment process. It is further submitted that
averments in the supplementary affidavit-in-opposition the fourth respondent
has dealt with paragraph 4 of the affidavit-in-reply filed by the writ petitioner to
the affidavit-in-opposition of the fourth respondent stating that he had no
occasion to scan the website till the viva-voce was over and panel was
published on or around 09.09.2009. It is submitted that the list of candidates
qualified for viva-voce and personality test along with the candidates from the
judicial service was uploaded in the official website of the High Court on
28.08.2009 itself as could be seen from the website even as on today and
therefore the writ petitioner cannot deny that he did not have any knowledge
about the impugned notification before he participated in the viva voce and
personality test. It is further submitted that the writ petitioner is conveniently
avoiding to deal with the issue regarding the publication of the result in the
website for reasons best known. That apart, the notification issued by the High
Court dated 28.08.2009 clearly states all the details and therefore, the writ
petitioner had full knowledge and only in the year 2010 he filed the petition for
impleading himself in the writ petition pending before the Hon'ble Supreme
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Court which was altogether on a different issue. Therefore, it is submitted that
the writ petition was liable to be dismissed on the ground of estoppel, delay
and latches, acquiescence as well as on merits. It is further submitted that
even in IA No. 06 of 2010, the writ petitioner did not challenge either the
recruitment process or the selection of candidates but merely prayed for
impleadment in the said writ petition which was not pressed on 29.08.2011
and the subsequent application filed for recalling the order was dismissed on
23.07.2012. Therefore, effectively from September 2009 to July 2012 i.e. for
more than three years, the writ petitioner did not challenge either the selection
process or the selection of the two candidates rather participated in the
selection process and appeared in the viva voce and personality test being fully
conscious about the decision taken by the Selection Board. Therefore, the writ
petitioner cannot plead ignorance after having been unsuccessful in the
selection process. It is submitted that for such reason, the writ petitioner
cannot turn around and question the selection process. In support of such
contention, reliance has been placed on the decision of the Hon'ble Supreme
Court reported in 2017 9 SCC 478. Further it is submitted that neither the
application filed under Article 32 of the Constitution nor in the present writ
petition, it was the case of the writ petitioner that he did not have knowledge of
the decision of the Selection Board as on the date of the viva voce and came to
know about it later. In fact, the writ petitioner has tried to improve his case in
the reply after this point was specifically taken in the affidavit filed on behalf of
the High Court administration, but such case is not consistent with the stand
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of the writ petitioner either in the Article 32 petition or the writ petition.
Therefore, the writ petition deserves to be dismissed.
10. It is further submitted that the present writ petition was filed on
12.01.2018 after a period of almost nine years challenging the selection
process. Reliance was placed on the decision of the Division Bench of this
Court in the case of the Provincial Daughters of the Cross St. Vincent's and
Others Versus Mrs. Hasi Sen and Others in FMA No. 1372 of 2017 and MAT
No. 13 of 2017 wherein it was held that there is a public policy behind all
statutes of limitation and a claim based on the infraction of fundamental rights
ought not to be entertained, if made beyond the period fixed by the Limitation
Act for enforcement of the right by way of suit. Though it was not held that
Limitation Act applies in terms, observed that ordinarily the period fixed by
Limitation Act is to be taken to be a true measure of time within which the
person can be allowed to raise a plea successfully under Article 226 of the
Constitution. It is further submitted that entertaining a writ petition beyond
the maximum period of limitation would impede the well-founded public policy
and would be contrary to the settled proposition of law. In this regard, reliance
was placed on the decision of the Hon'ble Supreme Court 2002 2 SCC 448
and 2010 12 SCC 471 in the said decisions, the Hon'ble Supreme Court has
held that delay in challenging promotion and seniority list ought to be rejected
as it seeks to disturb the vested right as "fence sitter" cannot be allowed to
raise the dispute or challenge the validity of the order after its conclusion. It is
submitted that the private respondents are now in the rank of District Judge
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and have put several years of service and if the writ petition is to be
entertained, it would unsettle a settled position. Further it is reiterated that the
case on hand is classical case of forum shopping and on this ground the writ
petition is liable to be dismissed. To support such submission, reliance was
placed on the judgment of the Hon'ble Supreme Court reported in 2018 1 SCC
156. Further it is reiterated that the writ petition also suffers from cause of
action estoppel. The cause of action under Article 32 petition and the cause of
action based on which the present writ petition was filed are identical and it is
not the case of the writ petitioner that he had filed the writ petition on a
discovery of any new factual matter which could not have been found by him
by reasonable diligence when the Article 32 petition was filed apart from the
proceedings suffers from issue estoppel. In support of such contention, reliance
was placed on the judgment of the Hon'ble Supreme Court reported in 2005 7
SCC 190. It is further submitted that the dismissal of an application under
Article 32 of the Constitution even is a non-speaking order would be an
absolute bar in filing a subsequent writ petition in a different forum on the self-
same cause of action and self-same grounds and this is irrespective of the fact
whether the order is a speaking order or a non-speaking order. In support of
such contention, reliance was placed on the decision of the Hon'ble Supreme
Court in AIR 1965 SC 1150 and AIR 1970 Cal 50. Further it is submitted
that finality of the litigation is also a matter of public policy, in the absence of
such principle, oppression may result under the colour and pretence of law as
there will be no end of litigation. The finality is therefore not technical doctrine
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but a fundamental principle which sustains finality in litigation and prevent
abuse in the matter of accessing the court for agitating issues which become
final between the parties. This proposition is based on the decision of the
Hon'ble Supreme Court in M. Nagabhushana Versus State of Karnataka
and Others 1 Reliance was placed on the decision of the Hon'ble Supreme
Court in Indian Oil Corporation Limited Versus State of Bihar and Others
2 wherein it was held that the principles of res judicata bars the trial of
identical issue in a subsequent proceedings between the same parties; it also
comes into the play when the judgment and order in a particular issue is
deemed to have necessarily been filed by the implication; it brings about the
finality and is therefore taken as decided. Therefore, if one writ petition is
dismissed in limine by a non-speaking order, another writ petition would not
be maintainable. With regard to the merits of the matter, it is submitted that
the Hon'ble Selection Board consisting of three senior most judges of this court
who were available atleast till 2012 before their elevation either to the Hon'ble
Supreme Court or as Hon'ble Chief Justice of another High Court and they are
experts in the field. Their action was approved by the Hon'ble Judges of this
court through Full Court circulation. Thus, when selection is made and
advised to by experts having high academic qualification and are specialized,
the Courts are slow to interfere with the opinion expressed by such experts,
unless there are allegations of malafides against them. In the instant case,
there is no allegation of malafides against the Hon'ble Selection Board and
(2011) 3 SCC 408
(1986) 4 SCC 146
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therefore the scope of judicial review is limited. In support of such contention,
reliance was placed on the decision of the Hon'ble Supreme Court in M.C.
Gupta and Others Versus Arun Kumar Gupta and Others 3 By placing
reliance on the decision of the Hon'ble Supreme Court in State of Uttar
Pradesh and Others Versus Johri Mal 4, it is submitted that the power of
judicial review is not intended to assume the supervisory role or don the robes
of the omnipresent. An order passed by an administrative authority exercising
discretion vested in it cannot be interfered in judicial review unless it can be
shown that exercise of such discretion is perverse or illegal. The decision of the
Hon'ble Selection Board cannot be called perverse or illegal. The advertisement
for recruitment clearly spelt out that the High Court/Selection Board had the
discretion to decide the eligibility criteria and qualifying marks in each subject
or aggregate. Therefore, the power to relax was preserved in the rules of the
recruitment. It is submitted that it is settled law that powers of relaxation
could either be for the purpose of mitigating hardships or to meet special
deserving situations and such rule must be construed liberally and a narrow
consideration is likely to deny benefit to the really deserving cases. The rule of
relaxation therefore must get a pragmatic construction so as to achieve
effective implementation of the policy of the Government. Such contention is
based on the decision of the Hon'ble Supreme Court in Ashok Kumar Uppal
and Others Versus State of Jammu and Kashmir and Others 5 . The
(1979) 2 SCC 339
(2004) 4 SCC 714
(1998) 4 SCC 179
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decision of the Hon'ble Supreme Court in State of Bihar and others Versus
Md. Kalamallin wherein it was held that where life of select list had already
expired, the order of the High Court to continue that select list is illegal and
even in this judicial discretion, the High Court could not make such an order
unless the constitutionality of the rule itself was questioned. With the above
submissions, the learned senior counsel prayed for allowing the cross
objection.
11. Mr. Surajit Samanta, learned counsel for the writ petitioner by way of
reply submitted that the legal fraud perpetuated by the Selection Board should
not be allowed to stand and the court should strike down the entire selection
process. It is submitted that the only issue would be whether filing the petition
before the Hon'ble Supreme Court under Article 32 of the Constitution would
debar the writ petitioner from maintaining the present appeal. It is submitted
that the petition filed under Article 32 of the Constitution was dismissed in
limine by a single line non speaking order where the question of fraud by the
Selection Board had not been on record which was subsequently revealed on
production of the records before the Writ Court and therefore there had been
no adjudication in the Article 32 petition and hence no forum shopping and/or
res judicata. It is further submitted that the learned single bench did not go
into the question of res judicata as according to the learned single bench, the
delay in filing the writ petition was quite enormous although arguments had
been advanced in this regard and judgments were also cited. With regard to the
arguments that the claim made by the writ petitioner is a stale claim, it is
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submitted that it would be evident that till 25.03.2014 on which date the
Hon'ble Supreme Court disposed of WPC No. 46 of 2007, the writ petition
would not have been maintainable in view of the minutes of the Selection
Board dated 09.09.2009 which records that only 16 persons from the panel
would be appointed and the fate of the other two successful candidates would
depend upon such further order or final decision that may be passed by the
Supreme Court in the pending matter. The petition under Article 32 of the
Constitution was dismissed in limine by non speaking order on 11.01.2016
and the writ petition was filed before this Court on 12.01.2018 i.e. within two
years with explanation for the delay that the senior counsel to whom the case
was entrusted was suffering from ill health for the better part of 2017. In
support of his contention, that doctrine of waiver has no application in the case
of fundamental rights under the Constitution, the learned advocate placed
reliance on the decision of the Hon'ble Supreme Court in Basheshar Nath
Versus Commissioner of Income Tax Delhi and Rajasthan and Others 6.
Further it is submitted that the procedural justice system should give way to
conceptual justice system and efforts of the law ought to be so directed. In
support of such contention reliance was placed on the decision of the Hon'ble
Supreme Court in Rupa Ashok Hurra Versus Ashok Hurra and Another 7
for the proposition that fraud vitiates everything, the judgment in Union of
India and Others Versus Ramesh Gandhi in criminal appeal no. 1356 of
2004 dated 14.11.2011 and Commissioner of Customs (Preventive) and
AIR 1959 SC 149
(2002) 4 SCC 388
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Others Versus M/s. Aafloat Textiles Private Limited in CA No. 2447 of 2007
dated 16.02.2009 were relied upon. For the proposition that dismissal of Article
32 petition in limine by a non speaking order is no adjudication and cannot
result in res judicata, the learned counsel placed reliance on the decision of the
Hon'ble Supreme Court in Khoday Distilleries Limited Versus Sri
Mahadeshwara Sahakara Sakkare Karkhane Limited in civil appeal no.
2432 of 2019 dated 01.03.2019 and the decision in Daryao and Others
Versus State of Uttar Pradesh and Others 8.
12. We have elaborately heard the learned advocates for the parties and
carefully perused the materials placed on record including the notes on
submissions given by the learned advocate for the appellant/writ petitioner and
the learned advocate for the cross objector (High Court).
13. Before we proceed to decide the correctness of the decision rendered by
the learned writ court, we wish to deal with the last argument made by the
learned advocate for the writ petitioner alleging that legal fraud has been
committed by the Selection Board. On a specific query made by this court to
point out any such averments in the writ petition, the petitioner could not
point out any such averments. Thus, for the first time alleging legal fraud
cannot be permitted. The learned advocate for the appellant seeks to make
such an allegation to support his proposition that the fraud vitiates every
solemn act. Unfortunately, the legal principle cannot be applied in the instant
case, as there is no specific pleading alleging fraud much less legal fraud nor
AIR 1961 SC 1457
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any other relevant details. As pointed out earlier, the allegation of fraud is
raised before this Court for the first time that too during the course of
submissions and there is no pleading to the said effect. Therefore, we cannot
permit the appellant to raise such a plea before this Court for the first time
apart from branding such a plea to be frivolous. The decision in the case of
Ramesh Gandhi relied on by the Advocate for the appellant can be of no
assistance to the case on hand as in the facts of the said case it had been
established that the accused therein intentionally or dishonestly suppressed
such relevant and crucial facts which resulted in the order being passed by the
Courts in favour of a company, and in the said fact situation the Hon'ble
Supreme Court had referred to other judgments and held that fraud avoids all
judicial acts, a judgment and decree obtained by playing fraud in the Court is a
nullity. The decision in Aafloat Textiles relied on by the learned Advocate for
the writ petitioner pertains to a case where the Special import licenses were
forged documents and in such factual portion the Hon'ble Supreme Court
analyzed the concept of fraud and held that special import licenses being not
genuine documents and found to be forged, such documents had no existence
in the eye of law. We are at loss to understand as to how these decisions can in
any manner be of assistance to the case of the writ petitioner. The learned
Advocate appearing for the appellant, placed reliance on the decision in
Khoday Distilleries Limited wherein the Hon'ble Supreme Court affirmed and
reiterated the conclusions in Kunhayammed and Ors. Versus State of
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Kerala 9 which pertained to as to what would be the effect on an order
refusing special leave to appeal whether it may be a non-speaking order or a
speaking order. For the same proposition, reliance was placed on the decision
in Daryao wherein it was held that there was no substance and the plea that
the judgment of the High Court could not be treated as res judicata because
under Article 226 of the Constitution of India, it could not entertain a petition
under Article 32 of the Constitution.
14. Firstly, we need to take note of the facts and circumstances of the case
on hand which have been brought on record in the preceding paragraphs,
which at the cost of repetition is worth reiterating. After a considerable length
of time after issuance of posting orders in the year 2010 the writ petitioner filed
IA No. 6 of 2010 to implead himself in a pending writ petition before the
Hon'ble Supreme Court in WP(C) No. 46 of 2007 filed by the West Bengal
Judicial Services Association. The said writ petition which was pending before
the Hon'ble Supreme Court was with regard to a different issue and the writ
petitioner thought fit to seek to implead himself in the said writ petition. This
application was dismissed by the Hon'ble Supreme Court on 29th August,
2011. Thereafter, the writ petitioner filed an application for recalling the said
order which was dismissed by the Hon'ble Supreme Court by order dated
23.07.2012 by observing that the application is utterly misconceived. The said
writ petition in WP(C) No. 46 of 2007 was disposed of by the Hon'ble Supreme
Court. On 26.06.2014 the 4th respondent was ultimately confirmed in the
(2000) 6 SCC 359
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relevant post. In the year 2016 the writ petitioner filed WP(C) No. 1 of 2016
before the Hon'ble Supreme Court and the copy of the said writ petition has
been annexed in the paper book from which we find the grounds raised before
the Hon'ble Supreme Court were identical to that of the grounds raised in the
present writ petition and the prayer was also identical though differently
worded. The said writ petition was dismissed by the Hon'ble Supreme Court by
order dated 11.01.2016 by passing the following order "We are not inclined to
entertain this writ petition, which is dismissed". To be noted that what was
filed before the Hon'ble Supreme Court was not a petition for special leave but
a writ petition under Article 32 of the Constitution. Thus, the order dismissing
the writ petition by observing that the Hon'ble Supreme Court is not inclined to
entertain the writ petition would mean that all points raised have been
rejected. Therefore on the same set of facts, the writ petitioner is estopped from
filing a fresh writ petition before this Court that too, on the same cause of
action. It would be relevant to note at this juncture that the present writ
petition was filed before this Court on 12.01.2018 (Article 32 petition dismissed
on 11.01.2016) and the impugned order dismissing the writ petition was
passed on 26.11.2019. As pointed out by the Hon'ble Supreme Court, in
Chandigarh Administration and Anr. Versus Jasmin Kaur and Ors. 10 that
equity aids only the vigilance and not the ones who sleep over their rights. As
held by the Hon'ble Supreme Court that reasonable period within which a
party has to approach a Court is certainly a variable one and depends upon the
(2014) 10 SCC 521
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facts of each particular case. It has been held that the maximum period fixed
by the legislature of time to seek relief by a suit in a Civil Court ordinarily may
be taken to be a reasonable standard by which delay in seeking relief under
Article 226 of the Constitution of India can be measured.
15. The relevant dates and the sequence of events clearly would show that
the exercise embarked upon by the writ petitioner was hopelessly barred by
delay and latches, apart from being hit by the principles of estoppel and res
judicata.
16. We had also noted that the panel cannot be operated as vacancies for
fresh selections what was notified in March 2010 and an advertisement was
also issued in April 2010 and it is only thereafter that writ petitioner had filed
IA No. 6 of 2010 in WPC No. 46 of 2007 before the Hon'ble Supreme Court.
Therefore, on the said ground also the writ petitioner is liable to be non-suited.
The learned Advocate appearing for the appellant placed reliance on the
decision in the case of Basheshar Nath for the proposition for doctrine of
waiver, has no application in the case of fundamental rights and Constitution.
Firstly, the appellant writ petitioner should remember that the litigation
commenced by him was a service matter concerning his non-selection to the
post or in other words, the correctness of the decision taken by the High Court
in permitting the private respondents to participate in the viva voce and
personality test. Whatever rights which accrued in favour of the writ petitioner
is pursuant to the rules of selection which has been clearly spelt out in the
advertisement. The writ petitioner was fully aware of the powers conferred on
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the High Court to modify, relax conditions. The appellant was made known
that three candidates are being permitted to participate in the viva voce and
personality test. Even thereafter the appellant had participated in the viva voce
and personality test and after the results were declared and posting orders
were issued to the other candidates, the writ petitioner woke up from deep
slumber and straightaway approached the Hon'ble Supreme Court seeking to
implead himself in a writ petition filed by an association concerning a different
issue. Therefore, the said decision of the Hon'ble Supreme Court does not
render any support to the case of the writ petitioner. The judgment in Rupa
Ashok Hurra referred to by the learned Advocate for the petitioner was on a
reference to the Constitution Bench of the Hon'ble Supreme Court to decide the
question as to whether the judgment of the Hon'ble Supreme Court in a Civil
Appeal can be regarded as a nullity and whether a writ petitioner under Article
32 of the Constitution of India can be maintained to question the validity of a
judgment of the Hon'ble Supreme Court after the petition for review of the said
judgment has been dismissed. While considering the scope and power of the
Hon'ble Supreme Court, it has been observed that the Court can mould and lay
down the law formulating the principles and guidelines as to adopt and adjust
to the changing conditions of the society, the ultimate objective being to
dispense justice. The decision can have no support to the case of the writ
petitioner being purely a service matter. Thus, for all the above reasons, we
hold that the appellant/ writ petitioner would not be entitled to any relief in
this appeal.
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17. Now we move on to the aspect as to how the writ petition ought to have
been dealt with specially when the issue regarding the maintainability was
raised by the High Court administration and also by the private respondent
who had in fact filed a separate application for such relief. If a issue relating to
the maintainability is raised, it is but appropriate for the Court or the forum to
first take a decision on the said issue, this Court does not seeks to convey that
it should always be decided as the preliminary issue but it definitely requires to
be decided as the first among several issues. We say so because if the court is
of the opinion that the petition was not maintainable then an order to the said
effect could be passed and this will avoid the court from making any
observations or rendering any findings in the judgment which may affect the
rights of parties in the event the parties approach the appropriate forum.
However in the case on hand the learned writ court though having noted the
preliminary objection did not deal with the same as the first among several
issues. We are clear in our mind that the issue relating to the maintainability
of the writ petition ought to have been decided as the preliminary issue or as
first among the several issues which the learned writ court proposed to deal
with.
18. The notification was issued by the High Court on 31.03.2009 notifying
131 vacancies in the cadre of District Judges (Entry Level) the said number of
vacancies included 16 vacancies which are to be filled up by direct recruitment
from the Bar. An advertisement was issued on 15.04.2009 proposing to fill up
16 vacancies by direct recruitment from the Bar to the cadre of higher judicial
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officer in the rank of District Judge (Entry Level) in West Bengal Judicial
Service. On the very same day, another notification was issued for filing up of
26 vacancies in the cadre of District Judge (Entry Level) by way of promotion as
on 16.06.2009 and 28.06.2009. Notices were issued confirming the issuance of
admit card to 153 candidates including the writ petitioner for participating in
the written test for direct recruitment to the post of District Judge scheduled to
be held on 29.06.2009, 30.06.2009 and 07.07.2009. On 21.08.2009, the
results of the written test were published showing that the writ petitioner
having qualified to participate in the viva voce and personality test. On
28.08.2009 notification was issued intimating that three more candidates who
have obtained two marks less than the marks in any subject or aggregate
would also be called for viva voce and personality test. The results were
subsequently published in which the writ petitioner stood in the 17th position
with overall assessment of 307.33 marks. On 28.10.2009 posting orders were
issued for 16 directly recruited District Judges. On 20.03.2010 notification was
issued by the High Court intimating that 90 vacancies in the cadre of District
Judge will be filled up by recruitment. On 09.06.2010 an advertisement was
issued for filling up of 23 vacancies in the cadre of District Judge (Entry Level)
by direct recruitment and 45 vacancies by promotion. After all these events
occurred, the writ petitioner approached the Hon'ble Supreme Court and filed
an application in IA No. 06 of 2010 in WPC No. 46 of 2007. In this application,
the prayer sought for by the writ petitioner was to implead himself in the writ
petitioner filed by the West Bengal Judicial Services Association. Admittedly,
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the said application for impleadment was dismissed as not pressed by the
Hon'ble Supreme Court on 29.08.2011. Thereafter in April, 2012 the writ
petitioner filed another application to recall the order dated 29.08.2011
dismissing the application for impleadment as not pressed. This application
was dismissed by the Hon'ble Supreme Court by order dated 25.07.2012
holding that the application is utterly misconceived. Thereafter the writ
petitioner filed a writ petition before the Hon'ble Supreme Court under Article
32 of the Constitution. On 02.12.2015, the said writ petition was dismissed by
the Hon'ble Supreme Court on 11.01.2016 prior to that of 25.02.2014 the writ
petition filed by the West Bengal Services Association in WPC No. 46 of 2007
was disposed of, and the present writ petition was filed on 12.12.2018. The
above dates and events will clearly show that the present writ petition is
hopelessly barred by the delay and latches. The writ petitioner cannot be heard
to say that he was prosecuting the matter before the wrong forum more so
when he was practicing as an advocate at the relevant time was as a law officer
of a Municipal Corporation. The person who is fully aware of his rights and
duties cannot plead any ignorance of law nor he can say that he was bonafidely
prosecuting the matter before a different forum/s. More importantly on or after
the issuance of the notification dated 09.04.2010 calling for applications to be
fill up 23 vacancies of District Judge (Entry Level) by direct recruitment the
earlier panel though was ordered to be kept alive till August 2010 cannot be
operated. The legal battle commenced by the writ petitioner by filing IA No. 06
of 2010 was much after the fresh advertisement was issued on 09.04.2010.
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Therefore even at that stage the writ petitioner was not entitled to maintain the
challenge.
19. The next aspect which is to be noted is that the prayer sought for in the
writ petition filed under Article 32 of the Constitution of India is identical to
that of the prayer sought for in the present writ petition. Though there may be
slight difference in the language/drafting. More importantly the cause of action
was identical and there was no fresh material brought on record by the writ
petitioner in the present round of litigation. Therefore on an after the dismissal
of the writ petitioner filed under Article 32 of the Constitution, by a reasoned
order, the second round on the same cause of action is clearly barred by the
principles of res judicata.
20. Nextly, the writ petitioner could not have maintained the challenge to the
selection process that to with regard to the decision of the Selection Board to
award two marks to the candidates to enable them to participate in the viva
voce after he having participated in the selection process with full knowledge
that these candidates are being extended this benefit to enable them to
participate in the viva voce and personality test. Thus, the writ petitioner is
deemed to have waived all his alleged rights to question the selection process.
That apart, the Selection Board in its wisdom and taking note of the special
deserving situations took the decision to permit such of those candidates who
were short by one or two marks to participate in the viva voce and personality
test. This power was conferred on the Selection Body and the writ petitioner
was aware of the same and participated in the selection process. Therefore the
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decision of the Selection Board to extend such benefit to permit the candidates
to participate in the viva voce and personality test is well within the jurisdiction
of the Board. That apart, the decision of the Board was placed before the
Hon'ble Chief Justice who in turn directed the matter to be placed before the
Hon'ble Full Court and the same was approved. Thus, it cannot be stated that
the decision was taken in arbitrary manner nor the decision suffers from the
vice of lack of jurisdiction. The writ petitioner cannot contend that he has not
seen the website of the High Court nor the notification issued by the High
Court which clearly stated that six candidates who were short by either one or
two marks have been permitted to participate in the viva voce and personality
test, in which test the writ petitioner also participated and therefore cannot
contend that he was unaware of the notification issued by the High Court. As
rightly pointed out, in the affidavit filed in the writ petition, this aspect has
been accepted by the writ petitioner stating that he is surprised that by
notification dated 28.08.2009 the private respondents were called for viva voce
and personality test. Thus, at several stages of the matter, the writ petitioner
did not diligently prosecute the matter rather having been fully aware of his
rights had embarked upon the exercise by filing the application before the
Hon'ble Supreme Court and thereafter the writ petition under Article 32 of the
Constitution and after dismissal of the said writ petition by a reasoned order
after two years the present writ petition was filed. The posting orders of the 16
District Judges were issued on 28.10.2009 and the writ petitioner now seeks to
dislodge the said selection at this juncture and by then from such of those
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candidates who were recruited as District Judge (Entry Level) several of the
candidates are now the Hon'ble Judges of the High Court at Calcutta. Thus,
the present attempt of the writ petitioner cannot be entertained as the writ
petition is not only a stale claim, the writ petitioner is estopped from filing the
present writ petition on the very same cause of action after being unsuccessful
before the Hon'ble Supreme Court. The writ petitioner having been fully aware
that those candidates were permitted to attend the viva voce and the
personality test and after having the knowledge of the same having participated
in the selection process is deemed to have waived all his alleged rights to
question the selection. That apart, the writ petition is also hit by the principles
of res judicata.
21. With regard to the merits of the selection process, we find that the
Selection Board acted wholly within the jurisdiction, the decision taken is
evident from minutes of the meeting recorded which cannot be stated to be
minutes without reasons. The decision of the Selection Board was approved by
the Hon'ble Full Court and thereafter the list of selected candidates was
published and posting orders were issued. In such circumstances had the
learned writ court decided the maintainability issue, as a preliminary issue,
ultimately which was held against the writ petitioner, no occasion would have
arisen for making any observations on the manner in which the Selection
Board had conducted its proceedings. We are in agreement with the learned
writ court in dismissing the writ petition on the ground of delay and latches
apart from our view that it is a stale claim, the appellant waived what little
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rights he would have had and the writ petition is hit by the principles of
estoppel and res judicata. That apart, we have already held that the decision of
the selection board as approved by the Hon'ble Full Court as being well within
its jurisdiction and cannot be termed to suffer from any vice of lack of
jurisdiction. Therefore all observations made by the learned writ court on the
manner in which the Selection Board had proceeded needs to be eschewed and
accordingly eschewed in its entirety.
22. In the result, the appeal filed by the writ petitioner is dismissed and the
cross objection is allowed. No costs.
(T.S. SIVAGNANAM)
ACTING CHIEF JUSTICE
I Agree.
(HIRANMAY BHATTACHARYYA, J.)
(P.A- SACHIN/PRAMITA)
