Calcutta High Court (Appellete Side)
Tuhin Goswami & Ors vs The State Of West Bengal & Ors on 16 June, 2023
Dd 8 & 9 16.06.2023
WP.ST 72 of 2017
Tuhin Goswami & Ors.
Vs.
The State of West Bengal & Ors.
With
WP.ST 73 of 2017
Rabindra Nath Ghosh
Vs.
The Principal Secretary
Department of Excise & Ors.
Mr. Bikash Ranjan Bhattacharya, ld. Sr. Adv.
Mr. Kamalesh Bhattacharya,
Mr. Aninda Bhattacharya, Advocates
... ... For the Petitioners
Mr. Anirban Ray, Ld. GP
Mr. Arjun Ray Mukherjee,
Mr. Sucherita Paul, Advocates
... ... For the State
Two writ petitions are taken up for analogous
consideration as they involve similar issues.
Primary issue involved in the two writ petitions is
the order dated June 24, 2014 passed by the Principal
Secretary, Finance Department whereby the process of
recruitment of Excise Constable initiated in 2006 was
annulled.
Such order of the Principal Secretary was assailed
by way of different original applications at the behest of
different aspirants. One of such original application
being OA no. 198 of 2013 was disposed of by the
learned tribunal on January 3, 2014. Such order of the
learned tribunal passed in such original application was
2
assailed before this Hon'ble Court in W.P.ST. 43 of
2019. Such writ petition was disposed of by a
judgment and order dated June 24, 2019 finding no
ground to interfere with the impugned order of the
learned tribunal.
Learned senior advocate appearing for the writ
petitioners in both the writ petitions submits that, the
learned tribunal failed to take into account the impact
of the violation of the service Rules. Moreover, the
coordinate Bench, while disposing of the W.P.ST. 43 of
2019 [Sri Sanjay Bera vs. State of West Bengal &
Ors.] also did consider the matter in such light.
Learned advocate appearing for the respondents
draws the attention of the Court to the contents of Sri
Sanjay Bera (supra) and submits that, the impact of
the advertisement for the selection process, as also the
Rules governing the selection process were considered
by the co-ordinate Bench in light of the consideration of
the decision reported at (1996) 6 SCC 216 [Excise
Superintendent Malkapatnam, Krishna District,
A.P. -vs- K.B.N. Visweshwara Rao & Ors.].
The co-ordinate Bench was approached by
another aspirant for the post of Excise Constable. The
co-ordinate Bench took note the entirety of the factual
matrix of the case including the Rules governing the
selection process and the K.B.N. Visweshwara Rao
(supra). The co-ordinate Bench considered the
approach of the writ petitioners with regard to an
earlier order passed by the tribunal and the dropping of
the contempt petition by the tribunal. Independent of
such contention, the co-ordinate Bench considered the
merits of the case.
Indisputably, the writ petitioners before us, are
similarly situate and circumstanced as Sri Sanjay Bera
(supra) who was the writ petitioner in W.P.ST. 43 of
2019 disposed of by the co-ordinate Bench.
In Sri Sanjay Bera (supra), the co-ordinate
Bench observed as follows :-
"In our opinion the petitioner not having
challenged the order dated 11th February, 2015
(whereby CCP 97 of 2014 was dropped), he has
rendered himself disentitled to grant of any
relief. The tribunal in its order dated 3 rd
January, 2014 had directed the process of
recruitment to be completed by, inter alia,
preparation of a panel. If indeed the petitioner
was found suitable and empanelled, concluding
the process would have meant working out the
penal and issuing appointments to candidates
figuring therein. However, the tribunal by its
order dated 11th February, 2015 was of the view
that the respondent authority had explained
adequately why its previous order could not be
implemented. While disposing of CCP 97 of 2014
by order dated 11th February, 2015, the tribunal,
in fact, went behind the order dated 3 rd January,
2014 and nullified whatever benefit that flowed
from it in favour of the petitioner. Such order
not being under challenge, the matter must be
allowed to rest.
We are now to consider the correctness of
the order dated 24th June, 2014 without being
influenced by what the tribunal had observed in
its order dated 3rd January, 2014.
Further to the decision of the Supreme
Court reported in (1996) 6 SCC 216 [Excise
Superintendent Malkapatnam, Krishna District,
A.P. -vs.- K.B.N. Visweshwara Rao & Ors.],
amendments have been brought in the extant
recruitment rules by all the recruiting
authorities, whereby open advertisement
inviting applications for employment on public
posts is the normal rule. The principal secretary
found that such rule was observed in the
breach. It is only on the sole ground of absence
of wide publicity/open advertisement that the
recruitment process of 2006 was annulled. The
tribunal did not interfere with such decision, and
rightly so. By mere participation in the
recruitment process and clearing the physical
measurement and efficiency tests, the petitioner
did not acquire any indefeasible right of
appointment. Law is well settled that it is for
the employer to decide whether to continue a
process of selection or not after a recruitment
process has been initiated. An aspirant for the
post, even in the absence of being empanelled,
has no right to claim in law that a recruitment
process, once initiated, must be taken to its
logical conclusion.
We are of the clear view that the tribunal
rightly took into consideration the settled legal
position in this behalf and while declining to
grant relief, as prayed for by the petitioner,
moulded the relief by holding that his age may
be condoned in case of his desire to participate
in any future recruitment process that is
initiated subject of course to fulfillment of other
eligibility conditions.
We see no justification to interfere with
the impugned order and, accordingly, the writ
petition stands dismissed."
The decision of the co-ordinate Bench, binds us.
In any event, we are not finding any factual matrix
which is different from Sri Sanjay Bera (supra).
In such circumstances, we find no merit in the
two writ petitions.
WP.ST 72 of 2017 and WP.ST 73 of 2017 are
dismissed without any order as to costs.
(Debangsu Basak, J.)
(Md. Shabbar Rashidi, J.)
