Calcutta High Court (Appellete Side)
Sanjit Ghose vs Union Of India & Ors on 2 March, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
RVW 300 of 2019
IA No: CAN/1/2020 (Old NO: CAN/1554/2020)
In
W.P.C.T. 2 of 2019
Sanjit Ghose
Vs.
Union of India & Ors.
For the Applicant : Ms. Malabika Saha, Adv.
Mr. Subhankar Das, Adv.
For the Respondents : Mr. Bhudeb Chatterjee, Adv.
Mrs. Susmita Saha Dutta, Adv.
Hearing concluded on : 23.02.2023
Judgment On : 2nd March, 2023
The review application being RVW No. 300 of 2019 and the connected
application being CAN 1554 of 2020 are taken out by Sanjit Ghose (hereinafter
referred to as the "applicant"), inter alia, seeking review of the order of the
coordinate Bench dated 9th August, 2019 passed on the writ petition being
WPCT 2 of 2019 whereby and whereunder the writ petition was dismissed by
the coordinate Bench upon finding the order of the Central Administrative
Tribunal, Kolkata Bench (hereinafter referred to as the "Tribunal") dated 27 th
March, 2018 as unexceptionable.
It has been contended on behalf of the applicant that the applicant
applied for the post of semi-skilled tradesman in OBC category against 27
reserved vacancies for which recruitment notice was issued on 10 th September,
2010 and the examination was held on 7th March, 2011. It is submitted that
though the applicant was selected in the said selection process but the
appointment was not offered to him due to illegalities which were found by the
authorities while conducting the said selection process. The nature of
illegalities which were found by the respondent authorities was narrated in
details in the order of the Tribunal dated 27 th March, 2018 while disposing of
the original application of the petitioner being OA 350/636/2013.
Subsequently, the Ordinance Factory Board (OFB) took initiative for
recruitment in 145 posts in semi-skilled grade and accordingly employment
notice was issued dated 20-26th October, 2012 and the examination was held
in February and April 2013 under the supervision of Ordinance Factory
Recruitment Board (OFRB).
It has been contended that applicant made an attempt to participate in
the said selection process and in support of the same a document annexed at
page 43 of the application being CAN 1554 of 2020 has been relied upon. From
the said document at page 43 it appears that the applicant deposited Rs.50/-
for offering his candidature and to submit application thereto. In spite of
depositing such application fee applicant was not issued admit card preventing
him to participate in the selection process which was initiated for filling up 145
posts as contended on behalf of the applicant. However, right of the applicant
for being considered against one of those 145 posts was protected by the
Tribunal by an interim order dated 29th July, 2013 directing the concerned
authorities of the Ordinance Factory Board that appointment to one post in
subsequent notification of 20th - 26th October 2012, in Fitter (G) Mechanic shall
abide by the result of the original application. However, while dismissing the
original application vide order dated 27th March, 2018 the said interim order
was vacated by the Tribunal.
Subsequently, a re-test was conducted against 27 vacancies which were
attempted to be filled up vide employment notification dated 10 th September,
2010, examination of such retest was held on 30 th November, 2014. In the said
retest the candidates who were found to be eligible and participated in the first
test held on 7th March, 2011 were allowed to participate even on condonation of
age. Holding of such retest was questioned by the applicant in the original
application and on 28th November, 2014 the Tribunal granted liberty to the
applicant to participate in the retest which was scheduled to be held on 30 th
November, 2014 without any prejudice and contention. Prior to passing such
order on 28th November, 2014 by the Tribunal applicant by filing writ petition
approached this Court raising the issue of holding the retest by the Ordinance
Factory Board and the same was dismissed. Ultimately, pursuant to the leave
granted by the Tribunal on 28th November, 2014 the applicant participated in
the retest on 30th November, 2014.
The Tribunal dismissed the original application being O.A.
350/636/2013 by an order dated 27 th March, 2018 upon finding that the
applicant participated in the retest held on 30 th November, 2014 against 27
posts and in consideration of the fact that High Explosives Factory (HEF) at
Pune offered an appointment to the applicant on 12 th March, 2011 on
temporary basis on the post of Fitter Gen. Mech. (semi-skilled) but such offer
was refused by the applicant. The Tribunal vacated the interim order dated 29 th
July, 2013 granted in favour of the applicant to the extent of protecting his
right against one post out of 145 vacancies.
However, while passing final order by the Tribunal on 27 th March, 2018
it was recorded that result of the examination for filing up 27 vacancies which
was held on 30th November, 2014 as per direction of the Ordinance Factory
Board (OFB) was not published and in view of such consideration the Tribunal
held the issue of considering the candidature of the applicant against one of
those 27 posts in connection with re-test could not be considered and the said
issue was found to be premature.
It appears that the said order of the Tribunal dated 27 th March, 2018
was assailed by filing writ petition being WPCT 2 of 2019 and the same was
dismissed vide order dated 9th August, 2019 since another writ petition being
WPCT 1 of 2019 (Bikash Kora Vs. Union of India & Ors.) touching upon
identical issues of law and fact was also dismissed by the coordinate Bench
vide order dated 9th August, 2019.
Therefore, considering two orders passed by the coordinate Bench on two
separate writ petitions on 9th August, 2019 one on the writ petition being WPCT
1 of 2019 and another on the writ petition being WPCT 2 of 2019, we need to
consider the order dated 9th August, 2019 passed on WPCT 1 of 2019 (Bikash
Kora Vs. Union of India & Ors.) in order to adjudicate the issue involved in the
present memorandum of review and the connected application. In the order
dated 9th August, 2019 passed by the coordinate Bench in WPCT 1 of 2019 it
appears that the Court proceeded on the basis that the applicant did not
succeed in the retest held on 30th November, 2014. Accordingly, it was
observed in the said order dated 9th August, 2019 that since the applicant
failed in the retest his right in connection with his selection in the first test
held on 7th March, 2011 cannot be decided in his favour since the first
selection process was perceived by the recruiting authority to be conceived in
fraud and delivered in deceit; therefore individual innocence has no place and
the entire selection process had to be set-aside. A specific ground has been
taken by the applicant in support of review of the order of the coordinate Bench
dated 9th August, 2019 that result of the retest held on 30 th November, 2014
was not declared by the respondents on the ground of irregularities as such,
success or failure of the applicant in the said retest does not bear any
significance. From the affidavit affirmed by one Prashant Kumar on behalf of
the respondents on 31st August, 2022 it appears the result of the retest held on
30th November, 2014 could not be declared due to decline in work-load position
vis-a-vis manpower requirement of the factory. The cancellation notice which is
annexed to the said affidavit is reproduced below:
"CANCELLATION OF DIRECT RECRUITMENT OF 27 TRADESMAN
THIS HAS REFERENCE TO THE ADVERTISEMENT NO.
DAVP10201/11/0804/1011 IN EMPLOYMENT NEWS DATED: 4 TH - 10TH
SEPTEMBER-2010 FOR DIRECT RECRUITMENT OF 27 (TWENTY SEVEN)
TRADESMAN IN ORDINANCE FACTORY DUM DUM, KOLKATA.
ON THE BASIS OF THE AFORESAID ADVERTISEMENT A WRITTEN TEST
WAS CONDUCTED ON 30TH NOVEMBER-2014.
ON REASSEMENT OF MANPOWER REQUIREMENT AT PRESENT IT HAS
BEEN DECIDED NOT TO AUGMENT MANPOWER SINCE IT SHALL
FURTHER WIDEN RATIO OF AVAILABLE /REQUIRED SMH.
AS SUCH THE COMPETENT AUTHORITY HAS DECIDED TO CALL OFF
THE DIRECT RECRUITMENT OF 27 TRADESMAN(IEs) AS ADVERTISED IN
THE EMPLOYEMNT NEWS DATED: 4TH - 10TH SEPTEMBER-2010.
SEEMA GUPTA
JT. GENERAL MANAGER
FOR GENERAL MANAGER"
From the above narration of facts which goes to show that the fate of the
retest held on 30th November, 2014 was not formally declared whereas in the
order dated 9th August, 2019 it appears that the coordinate Bench proceeded
on the basis that the applicant did not succeed in the retest. It also appears
from the order dated 9th August, 2019 that one of the considerations for
dismissing the writ petition was participation and failure of the applicant in the
said retest.
Though attempt has been made on the part of the respondent authorities
to demonstrate before this Court at the time of consideration of the review
application that in the event result of retest would have been published the
applicant would not have come within the zone of consideration since the
position of the applicant in the merit list was 62 as stated in paragraph 6 of the
affidavit affirmed on 31st August, 2022 is of no relevance before this Court
while adjudicating the review application.
It is indisputable that the result of the retest held on 30 th November,
2014 was not published therefore it cannot be concluded while deciding the
claim of the applicant for employment against one of the vacancies for which in
three phases selection process was initiated by the Ordinance Factory Board
that the applicant was found to be unsuccessful in the retest held on 30 th
November, 2014.
Accordingly, the order dated 9th August, 2019 stands recalled on review.
The writ petition being WPCT 2 of 2019 (Sanjit Ghose vs. Union of India & Ors.)
stands revived. The review application is allowed. Let the writ petition be placed
before the regular Bench for reconsideration.
However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, shall be
supplied to the parties expeditiously.
(Saugata Bhattacharyya, J.) (Shekhar B. Saraf, J.)
