Bappa Dutta vs The State Of West Bengal & Ors
2023 Latest Caselaw 2817 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                               Appellate Side


Present :-
The Hon'ble Justice Moushumi Bhattacharya


                           W.P.A 19145 of 2022

                                Bappa Dutta
                                      vs.
                        The State of West Bengal & Ors.


For the petitioner                              :   Mr. Pratip Mukhopadhyay, Adv.
                                                    Ms. Chaitali Mukhopadhyay, Adv.
                                                    Mr. Sabyasachi Bhattacharya, Adv.

For the State                               :       Mr. Anirban Ray, Ld. GP
                                                    Mr. Raja Saha, Adv.
                                                    Ms. Piyali Sengupta, Adv.


For the KMC                                 :       Mr. Alok Kr. Ghosh, Adv.
                                                    Mr. Swapan Kr. Debnath, Adv.


Last Heard on                                   :   19.04.2023.



Delivered on                                    :   21.04.2023.


Moushumi Bhattacharya, J.

1. The petitioner has challenged an order passed by the Director of

Employment, West Bengal on 24.10.2017. The order was passed pursuant

to a direction of a learned Single Judge, as his Lordship then was, dated

5.9.2017 whereby the concerned authority was directed to pass a reasoned

order on the application of the petitioner and 6 others. The petitioner was

heard before the impugned order was passed.

2. The petitioner's case is that the petitioner worked as an enumerator in

connection with the census operations of 1990-1991 and was issued an

Experience Certificate by the concerned authority on the basis of the

petitioner's work as an enumerator from 1990-1991.

3. Learned counsel appearing for the petitioner relies on the Experience

Certificate issued by the Chairman, Borough-XII, Calcutta Municipal

Corporation. Counsel submits that the Chairman was the competent

authority to issue certificate of such nature during the relevant pint of time.

4. Learned counsel appearing for the State seeks to sustain the

impugned order and relies on a judgment passed by the Supreme Court in

an appeal filed by the State in State of West Bengal & Anr. vs. Kalyani

Samanta (Mondal) and Ors.; Civil Appeal No. 7372/2016. Counsel submits

that after the Supreme Court decision in Kalyani Samanta (Mondal), the

petitioner cannot rely on the Experience Certificate issued by the Chairman,

Borough-XII, Ganesh Guha Thakurtha. Counsel relies on a Notification

issued by the Labour Department, Government of West Bengal dated

21.8.2002 which requires Experience Certificates to be issued by the

Directorate of Census Operation, West Bengal or any other competent

authority authorised by the said Directorate. Counsel submits that a similar

Notification was in operation for the census of 1991. According to counsel,

the Block Development Officer and Chairman / Executive Officers of the

Municipalities and the Notified Area Authorities should be treated as

competent authorities to issue Experience Certificates. However, the

petitioner has not produced a certificate issued by any of such authorities.

5. The undisputed facts are that the order dated 24.10.2017 which is

under challenge in the present writ petition, was passed in compliance with

the direction of a learned Single Judge, as his Lordship then was, on

5.9.2017. The said order directed the Director of Employment to pass an

order in consonance with the judgment of the Calcutta High Court in W.P.

No. 10211(W) of 2013. A Co-ordinate Bench passed an earlier order on

13.8.2015 in two other writ petitions of 2015 directing the Director of

Employment to enrol the names of the petitioners namely those candidates

with Certificates from the Chairman of Borough - XII, K.M.C. The order

passed by the Co-ordinate Bench on 13.8.2015 was challenged by the State

Government before the Division Bench and by a judgment and order dated

27.4.2016, the Division Bench affirmed the order of the First Court dated

13.8.2015. The State challenged the order of the Division Bench before the

Supreme Court and by an order dated 1.8.2016, the Supreme Court was

pleased to stay the operation of the impugned judgment until further orders.

The Civil Appeal was finally disposed of by the Supreme Court by an order

dated 1.9.2021. The Supreme Court set aside both the orders of the learned

Single Judge dated 13.8.2015 as well as of the Division Bench dated

27.4.2016. The reasons for the decision would appear from the order of the

Supreme Court which is part of the records.

6. The impugned order dated 24.10.2017 was passed before the Civil

Appeal was finally disposed of by the Supreme Court. The Director of

Employment / respondent no. 4 accordingly thought it fit to keep the

decision pertaining to the writ petitioner in abeyance until the matter is

disposed of by the Supreme Court. The only orders which were before the

respondent no. 4 at the material point of time were the orders of the learned

Single Judge dated 13.8.2015, the order of the Division Bench affirming the

First Court dated 27.4.2016 and the interim order of stay granted by the

Supreme Court on 1.8.2016 in an appeal filed by the State. The stay of

operation of the impugned judgment was interim in nature and was passed

in favour of the State respondents.

7. The Supreme Court disposed of the Civil Appeal by the order dated

1.9.2021. As stated above, both the orders of the First Court as well as the

Division Bench were set aside.

8. Although counsel appearing for the petitioner submits that the order

passed by the Supreme Court in Kalyani Samanta (Mondal) setting aside the

orders of the Single Bench as well as the Division Bench would not have a

bearing in the present matter, this Court is not inclined to accept the

submission. The only reason given for the Supreme Court decision in

Kalyani Samanta (Mondal) not being applicable to the present matter is that

the said order was not passed under Article 142 of the Constitution of India.

This cannot be a ground for disregarding the order of the Supreme Court

since the order contains reasons as to why the Certificates issued to the writ

petitioners (respondents before the Supreme Court) were found not to be

genuine. The Supreme Court has given reasons for coming to this finding

including the fact that Ganesh Guha Thakurtha functioned as the Chairman

of the concerned Borough from 13.9.1995 - 28.6.2000 and further that the

Certificates do not refer to any records maintained by the Borough -

Municipal Corporation. The Supreme Court was also of the view that the

records revealed that the Borough records were not available in 2002. The

Supreme Court therefore opined that the High Court fell into error in

accepting the petitioner's argument and directing acceptance of the

Certificate issued by the Chairman, Borough, Calcutta Municipal

Corporation.

9. The petitioner admittedly relies on the Experience Certificate issued

by the Block Development Officer Ganesh Guha Thakurtha who was the

Chairman of Borough - XII of the KMC at the relevant period of time. The

petitioner relies on this Certificate to claim registration of the petitioner's

name under the Exempted Category Cell and a direction on the respondents

to nominate the petitioner for the post of Sub-Inspector in the Food &

Supplies Service (Grade - III) under the Food and Supplies Department of

the Government of West Bengal. The petitioner cannot claim nomination on

the strength of an Experience Certificate alone without going through the

process of assessment of the petitioner's eligibility. The impugned order

simply states the facts as existed on the date of the impugned order which

are also admitted before the Court. In any event, the petitioner now seeks

quashing of the impugned order dated 24.10.2017 while much water has

flown since then in the form of the final order of the Supreme Court dated

1.9.2021. The contention of the petitioner of the Supreme Court's order in

Kalyani Samanta (Mondal) not being binding on this Court is considered and

rejected on the substantial similarity of facts.

10. In any view of the matter however, the petitioner is entitled to a final

order by the respondent no. 4. The respondent o. 4 shall hence consider the

effect of Kalyani Samanta (Mondal) as decided by the Supreme Court on

1.9.2021 within a period of 6 weeks from date. The petitioner shall be heard

in the proceedings. The respondent no. 4 shall also take into account the

allegation made by the petitioner with reference to violation of Article 14 of

the Constitution to the extent of similarly-placed persons being granted

certain benefits which have been denied to the petitioner. This relates to the

allegation that others whose certificates were also issued by Ganesh Guha

Thakurtha were given the benefit of the certificates.

11. It is made clear that the respondent no. 4 / Director of Employment

shall pass a reasoned order within the time directed without being

influenced by any of the views expressed by this Court. A copy of the

reasoned order shall be made available to the petitioner within a week from

the date on which the reasoned order is passed. It is also made clear that

the Court has not gone into the issue of the petitioner's eligibility for

nomination to the concerned post.

12. WPA 19145 of 2022 is accordingly disposed of in terms of the above.

Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)