Calcutta High Court (Appellete Side)
Indrajit Tambuli vs The State Of West Bengal & Ors on 7 August, 2023
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WP.ST 325 of 2010
Indrajit Tambuli
VS.
The State of West Bengal & ors.
For the Writ Petitioner : Mr. Subir Sanyal, Advocate
Mr. Snehasis Jana, Advocate
For the State : Mr. Somnath Ganguli, Ld. AGP.
Mr. Balarko Sen, Advocate
For the added
Respondents : Mr. Swarup Paul, Advocate
Mr. Guru Saday Dutta, Advocate
Mr. Anish Roy, Advocate
For the added
Respondents : Mr. Abhrotosh Mazumder,
Senior Advocate
Mr. Siddhartha Banerjee, Advocate
Mr. Subham Ghosh, Advocate
Hearing on : 07.08.2023
Judgment on : 07.08.2023
DEBANGSU BASAK, J.:-
1. The writ petition is directed against an order dated April 4, 2010
passed in three Original Applications which were disposed of by the West
Bengal Administrative Tribunal.
2. The writ petitioners here were the original applicants in O.A.9423
of 2008 before the West Bengal Administrative Tribunal.
3. Two other Original Applications being O.A.6633 of 2008 and
O.A.9630 of 2008 were also disposed of by the impugned order dated
April 5, 2010.
4. Two writ petitions were filed against the impugned order dated
April 5, 2010. One is the present writ petition. The other is the WPST 304
of 2010.
5. The other writ petition being WPST 304 of 2010 was disposed of by
the judgment and order dated February 11, 2016 passed by the
coordinate Bench. The Hon'ble Supreme Court, by an order dated
September 1, 2017 passed in Civil Appeal No.1113 of 2017 arising out of
Special Leave Petition (C) No.25755 of 2016 (The State of West Bengal &
ors. vs. Debasis Das & ors.) disposed of the Special Leave Petition
directed against the judgment and order dated February 11, 2016.
6. The three original applications assailed a decision taken by the
authorities dated June 19, 2008 cancelling a selection process for the
post of Assistant Investigator under Bureau of Applied Economics &
Statistics, Government of West Bengal.
7. The Tribunal, by the impugned order dated April 5, 2010
concurred with the view of the authorities as enshrined in the writing
dated June 19, 2008.
8. As noted above, the impugned order of the Tribunal dated April 5,
2010, received consideration by the coordinate Bench in a separate writ
petition being W.P.S.T.304 of 2010 which was disposed of by the
judgment and order dated February 11, 2016. By such judgment and
order dated February 11, 2016, the coordinate Bench was pleased to set
aside the impugned order of the Tribunal and quashed the order dated
June 19, 2008 of the department. The coordinate Bench directed the
respondent authorities to consider the appointment of the writ
petitioners therein in accordance with the merit list as expeditiously as
possible and preferably within a period of one month from the date of
availing of the certified copy of the order, if the posts were not filled up in
the concerned recruitment year.
9. State of West Bengal carried a Special Leave Petition being Special
Leave Petition (C) No.25755 of 2016 against the judgment and order
dated February 11, 2016 of the co-ordinate Bench, which was disposed
of by the Supreme Court in Civil Appeal No.111139 of 2017 on
September 1, 2017. The relevant portion of the order dated September 1,
2017 of the Hon'ble Supreme Court is as follows:-
"2. The State of West Bengal is
before this Court, aggrieved by the order
passed by the High Court of Calcutta dated
11.02.2016 in W.P.S.T. No.304 of 2010. The
issue pertains to selection and appointment
to the post of Assistant Investigator in the
Bureau of Applied Economics and Statistics.
3. There is a chequered history for
the case. The selection process, as a matter
of fact, commenced by issuing a Notification
on 16.01.2007. On account of certain
litigations, the selection could not be
finalized. In between, there was an
amendment to the Recruitment Rules and
procedures. It is the case of the writ
petitioners, who were six in number, before
the High Court that they have been selected
for appointment and any subsequent
change in the rules should not affect their
prospects.
4. The learned counsel appearing
for the State of West Bengal has brought to
our notice that there are 75 vacant posts
and on account of litigations for the last 10
years, the posts could not be filled up.
5. Having regard to the fact that
the selection has been in litigation for quite
long and having regard to the fact that only
six of them got affected on account of the
cancellation of selection, we are of the view
that it is only in the interest of equity,
justice and fairness that the State appoints
those six people in furtherance of the
selection already conducted and then take
recourse to the selection under the new
rules in respect of the remaining vacancies.
Therefore, this appeal is disposed of with a
direction to the State of West Bengal to
appoint those six private respondents to the
post of Assistant Investigators in the
Bureau of Applied Economics and Statistics
within a period of one month from today.
6. We make it clear that this
direction is issued in the peculiar facts of
this case for doing complete justice between
the parties and, therefore, the same will not
be treated as a precedent and no further
claim will be entertained before the High
Court."
10. As noted in the order dated September 1, 2017, the selection
process commenced by the issuance of a notification dated January 16,
2007. Initially, the selection process was limited to the sponsored
candidates. Apart from sponsored candidates, other candidates also
participated. A panel was prepared on the basis of the selection
conducted both of the sponsored and non-sponsored candidates. A slew
of litigation followed. Selection was not finalized. The Recruitment Rules
and Procedures underwent an amendment during interregnum.
11. The Hon'ble Supreme Court by the order dated September 1, 2017
proceeded to issue directions as noted in paragraph-5 thereof.
12. There are two sets of parties who seek addition to the present writ
petition. These two sets of parties are represented by two different sets of
advocates. These two set of parties participated in the selection process.
13. Mr. Abhrotosh Mazumder, learned Senior Advocate appearing for
one set of parties who seek to be added as party respondents in the writ
petition submits that, the State of West Bengal committed fraud on the
Hon'ble Supreme Court in obtaining the order dated September 1, 2017.
He refers to the contents of such order. He submits that, incorrect
factual information was given to the Hon'ble Supreme Court on behalf of
the State of West Bengal. Therefore, such order was passed. Such order
stands vitiated by fraud. He relies upon (2007) 4 Supreme Court Cases
221 (A.V. Papayya Sastry and others vs. Govt. of A.P. and others) on
the proposition that, fraud vitiates everything. Any Court can look into
the allegation of fraud whenever such plea is taken up. He submits that,
the order of the Hon'ble Supreme Court ex facie establishes that fraud
was committed.
14. Mr. Abhrotosh Mazumder, learned Senior Advocate relies upon
(2013) 12 Supreme Court Cases 221 (Buddhadeb Ruidas and others
vs. State of West Bengal and others) submits that in similar
circumstances, the Hon'ble Supreme Court allowed the initial
recruitment to be processed. The same modality should be adopted in
the facts and circumstances of the present case.
15. Mr. Abhrotosh Mazumder, learned Senior Advocate relying upon
(1997) 11 Supreme Court Cases 696 (H.M. Bags Manufacturer v.
Collector of Central Excise) submits that, the subsequent notification
amending the selection process should be read to mean that, the
selection already undertaken under the previous rejection should not be
disturbed.
16. Mr. Swarup Paul, learned advocate appearing for the other sets of
parties who seek to be added to the writ petition, relies upon (1994) 1
Supreme Court Cases Page 1 (S.P. Chengalvaraya Naidu [Dead] by
LRS. Vs. Jagannath [Dead] by LRS. And others) and (2012) 1
Supreme Court Cases 476 (Union of India and others vs. Ramesh
Gandhi) for the proposition that, fraud vitiates everything.
17. As noted above, a selection process was initiated in the year 1997.
The petitioners before us along with the persons who seek themselves to
be added a party respondents, participated in such selection process.
The selection undertaken in 2007 was limited to sponsored candidates.
However, during the selection process, both sponsored as well as non-
sponsored candidates were considered.
18. It is admitted at the bar that no public advertisement was issued
in respect of the selection process commencing in 2007.
19. A slew of litigation ensued and therefore, the selection was not
concluded.
20. Thereafter, State took a decision dated June 19, 2008 cancelling
the selection process. This decision was assailed by way of three original
applications. All the three original applications were disposed of by the
impugned order dated April 5, 2010 passed by the West Bengal
Administrative Tribunal.
21. The order dated April 5, 2010 passed by the Tribunal was
considered by the coordinate Bench in W.P.S.T.304 of 2010. By the
judgment and order dated February 11, 2016 the coordinate Bench set
aside the impugned order and directed the authorities to give
appointment to the petitioners involved therein. A Special Leave Petition
was carried to the Supreme Court which was disposed of by the order
dated September 1, 2017.
22. While seeking themselves to be added as a parties to the present
writ petition, both the sets of persons who seek themselves to be added
as parties did not speak any word with regard to the fraud allegedly
committed by the State of West Bengal before the Hon'ble Supreme
Court.
23. On a query of the Court, learned advocate appearing for both sets
of parties seeking to be added as respondents in the present writ petition
submits on instruction that their clients were aware of the order of the
Supreme Court dated September 1, 2017 for a considerable period of
time.
24. Mr. Abhrotosh Mazumder, learned Senior Advocate seeks direction
for filing affidavits since they were not granted an opportunity to use
affidavit in the present writ petition. Same prayer is made by Mr. Swarup
Paul, Advocate.
25. We considered the records of the present case. Mr. Abhratosh
Mazumder's clients application for addition was initially dismissed for
default and was subsequently sought to be restored. The coordinate
Bench, considered the rival contentions. The present writ petition is
pending since 2010. The application by Mr. Mazumder's clients was filed
in 2017. As noted above, the application does not contain any whisper
with regard to the fraud allegedly committed. The subsequent application
for addition at the behest of Mr. Swarup Paul, advocate's clients also do
not contain any averments with regard to fraud allegedly committed.
None of these parties made any attempt to bring on record the
particulars of the alleged fraud by way of any pleading.
26. The authorities cited at the bar with regard to fraud namely,
Buddhadeb Ruidas and others (supra), A.V. Papayya Sastry and
others and S.P. Chengalvaraya Naidu (supra) are of the view that, fraud
unravels everything.
27. There cannot be any dispute with regard to the proposition of law
sought to be propounded on behalf of the added respondents that, fraud
vitiates everything. However, fraud needs to be pleaded. Fraud needs to
be established also on the basis of the pleadings.
28. As noted above, none of the parties who seeks themselves to add
as respondents in the writ petition, pleaded fraud in their application. As
noted above, the writ petition is pending since 2010. Application for
addition was made in 2017 and in 2019. Since thereafter, no steps were
taken by any of the persons seeking to be added as party respondents to
bring on record any averment to support their contention with regard to
fraud.
29. So far as this Bench is concerned, the matter was taken up for
consideration on June 23, 2023, July 7, 2023, July 20, 2023 and July
28, 2023.
30. Noticing the contention of fraud, the parties were afforded
opportunities to take appropriate steps. The parties who sought to be
added to the present writ petition, chose a particular course of action of
not placing any pleading with regard to the fraud alleged by them.
31. In such circumstances, we are not minded to consider the
allegation of fraud, as alleged on behalf of the persons seeking to be
added as party respondents in absence of the relevant pleadings with
regard thereto. In such context, prayer for filing affidavits is considered
and rejected.
32. In Buddhadeb Ruidas (supra) the Supreme Court held that, there
was no scintilla of doubt that there was requirement of advertisement for
inviting names in the selection process. However, in the special features
of the case the Supreme Court did not think it prudent that the selection
process earlier therein should be cancelled. Since the Supreme Court
noted the peculiar facts of that case, and decided not to interfere with the
selection process, and since the factual matrix of the present case is
different with the intervention of the order dated September 1, 2017
passed by the Supreme Court, we are not inclined to grant any relief to
the writ petitioner and the persons seeking to be added as party
respondents in the writ petition.
33. In view of the discussion made above, WP.ST 325 of 2010 is
dismissed without any order as to costs.
34. Urgent photostat certified copy of this order, if applied for, be given
to the parties on priority basis on compliance of all formalities.
(Debangsu Basak, J.)
35. I agree.
(Md. Shabbar Rashidi, J.)
CHC
