Calcutta High Court (Appellete Side)
Sipra Kanji vs The Kolkata Municipal ... on 14 March, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(Appellate Side)
RVW 93 of 2015
In
FMA 283 of 2014
Sipra Kanji
-Vs.-
The Kolkata Municipal Corporation & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellant : Mr. Achintya Kr. Banerjee, Adv.
Mr. R. Chakraborty, Adv.
Mr. M. Ahmed, Adv.
For the KMC : Mr. Alok Kr. Ghosh, Adv.
Mr. B. Mukherjee, Adv.
Mr. Arijit Dey, Adv.
CAV On : 02.03.2023
Judgment On : 14.03.2023
Apurba Sinha Ray, J. :-
1. An application for review of the judgement and order dated
12.01.2010 delivered in MAT No. 1118 of 2009 has been filed on the
grounds, interalia:-
2
a) that the application has been necessitated in view of the
discovery of new and important matter or evidence which, even after the
exercise of due diligence was not within the knowledge of the applicant
for which the same could not be produced at the time when the impugned
order dated 12.01.2010 was passed by the Hon'ble Division Bench in
MAT No. 1118 of 2009,
b) that there is an error apparent on the face of the order dated
12.01.2010 passed in MAT No. 1118 of 2009. While recording that there
were four other OBC candidates at serial No. 55, 57, 61 and 66 of the
General List who are above the applicant as OBC candidates, the Hon'ble
Division Bench did not consider that in fact no documents are available
with the respondent No. 1 to classify those candidates as employment
exchange sponsored OBC candidates and thus mere version of the
respondent No. 1 ought not to be accepted,
c) that in view of the contents of the letter dated 23.04.2013 issued
by the respondent No. 1 which confirms that all the alleged OBC
candidates to whom appointments were given by the respondents are
treated as general category appointments and it is settled law that such
appointments cannot be treated as appointment in OBC reserved quota
and thus in fact no appointments were made by the respondent No. 1 on
OBC reserved quota in terms of order no. 261-TW/EC dated 06.04.1995
issued by the Government of West Bengal, Scheduled Castes and
Scheduled Tribes Welfare Department, Writers' Building, Calcutta,
d) that this review application has been necessitated in view of the
fact, which subsequently came to the notice of the applicant, that
candidate nos. 27 and 28 from the list of general candidate, candidate
nos. 3 and 7 from the list of departmental scheduled tribe candidates
and candidate no. 3 from list of scheduled tribe candidate had not joined
the post and in view of such non-joining by said candidates the
respondent authority ought to have granted employment to the applicant
along with other eligible OBC candidates,
e) that there was serious discrimination as no separate panel for
OBC candidates was formed although separate panels for scheduled
caste and scheduled tribe candidates were formed by the respondent no.
1,
f) that before publication of merit list or panel for general
candidates, appointments were given to candidate nos. 2, 32, 37, 44 and
48 and as such the action of the respondent no. 1 suffers from material
irregularity and illegality,
g) that, therefore, there are sufficient grounds to review the solemn
judgement and order dated 12.01.2010 delivered by the Division Bench
in MAT No. 1118 of 2009. Accordingly, for the interest of justice and
equity, the applicant prays for review of the judgment and order dated
12.01.2010 as aforesaid.
2. Learned Counsel, Mr. Achintya Kumar Banerjee, appearing on behalf
of the applicant has time and again submitted that the petitioner has been
fighting for cause of justice since 1997 and in spite of presence of glaring
illegalities and irregularities at the instance of the respondent no. 1 and its
officers, the applicant was unable to get justice from the court of law as the
concerned authorities suppressed material facts, documents and other
papers with the sole motive to deprive the applicant from being appointed in
the post of Junior Assistant in the Kolkata Municipal Corporation. Learned
counsel has also drawn the attention of this court to several documents,
which according to him, were obtained by the applicant after delivery of the
judgment and order dated 12.01.2010. From a cursory glance over the said
documents, it will be found that relevant norms for recruiting staff in the
OBC category or reserved category were not followed by the concerned
officers of the respondent no. 1 at the relevant time and as a result of which
the petitioner was deprived from getting the relevant job in the Kolkata
Municipal Corporation.
3. Learned counsel of the appellant has argued that if serious injustice is
caused due to the relevant judgment and order for non-availability of
material documents, the court in a review application can remove such
injustice caused by its earlier order. In support of his contention, learned
counsel has submitted case laws reported in (2008) 8 SCC 612 SCC OnLine
Web Edition, RLW 1950 Federal Court page no. 158 and also one reportable
judgment of Hon'ble Supreme Court in Civil Appeal No. 593 and 594 of
2022, M/s. Granuels Limited Vs. Union of India, delivered on January 23,
2022. Learned counsel has further submitted that in view of the fact that
serious injustice has been caused to the applicant due to the fault of the
concerned officers of the respondent no. 1, some notional appointment may
be given to the unfortunate applicant and necessary monetary benefits may
be extended to her.
4. Learned Counsel appearing for Kolkata Municipal Corporation, Sri
Biswajit Mukherjee, has argued that the review application filed by the
applicant is a misconceived one since the Division Bench has clearly stated
about the futility of the writ petition of the present applicant and as the
panel has expired long ago, that is, more than 22 to 23 years ago, there is
hardly any scope for revival of the said panel. Therefore the review
application should be rejected with costs.
Decision with reasons
5. Learned Counsel for the applicant has referred to several case laws. In
a reportable case, that is, M/s Granules India Ltd versus Union of India and
others, (civil appeal No. 593-594 of 2020) the Hon'ble Supreme Court held
that;
"The State cannot behave like a private litigant and
rely on abstract theories of the burden of proof. The
State acts through its officers who are given powers
in trust. If the trust so reposed is betrayed, whether
by casualness of negligence, will the State still be
liable for such misdemeanor by its officers betraying
the trust so reposed in them or will be the officers are
individually answerable. In our considered opinion it
is absolutely no defence of the State authorities to
contend that they were not aware of their own
notification18.09.1994. The onus heavily rests on
them and a casual statement generating litigation by
State apathy cannot be approved."
6. Learned Counsel has also referred to (2008)8 Supreme Court cases
612, State of West Bengal and others versus Kamal Sengupta and another
wherein the Hon'ble Supreme Court has been pleased to lay down as
hereunder:
"The term 'mistake or error apparent' by its very
connotation signifies an error which is evident per se
from the record of the case and does not require
detailed examination, scrutiny and elucidation either
of the facts or the legal position. If an error is not self-
evident and detection thereof requires long debate
and process of reasoning, it cannot be treated as an
error apparent on the face of the record for the
purpose of order 47 Rule 1 CPC or section 22(3)(6) of
the Act. To put it differently an order or decision or
judgment cannot be corrected merely because it is
erroneous in law or on the ground that a different
view could have been taken by the court/tribunal on
a point of fact or law. In any case, while exercising
the power of review, the court/tribunal concerned
cannot sit in appeal judgment/decision."
7. In Musammat Jamna Kuer and Lal Bahadur Prasad and others (RLW
1950 FC 158), the Hon'ble Federal Court has been pleased to lay down that :
"Whether the error occurred by reason of the counsel's
mistake or it crept in by reason of an oversight on the
part of the court was not a circumstance which could
affect the exercise of jurisdiction of the court to review its
decision. We have no doubt that the error was apparent
on the face of the record and in our opinion, the question
as to how the error occurred is not relevant to this
enquiry. A mere look at the trial court's decision
indicates the error apart from anything else."
8. Undoubtedly the Court has enormous powers to rectify its own
mistake or the mistake committed due to misrepresentation etc. But in this
case, it is pertinent to ascertain at first whether or not there was any
inadvertent mistake committed by the Hon'ble Division Bench in passing the
judgment dated 12.01.2010.
9. The factual matrix need not be repeated once again. It is better to start
with the document, which has been enclosed by the Appellant at page no.
182, i.e., a letter dated 01/07/2013--02/07/2013. From the said letter it
transpires that the Joint Director of Employment, Labour Department,
Directorate of Employment, Government Of West Bengal had confirmed that
the number of notified relevant vacancies in KMC was 100 in total
(unreserved-45, Scheduled Caste -40, Scheduled Tribe -08, OBC-5, and PH-
02).
10. It appears that three panels were published by the KMC in order of
merit and they were for general candidates (78), Scheduled Caste (24),
Scheduled Tribes (06) on 28.05.1997. No separate panel was published
either for OBC candidates or for PH Candidates. The Record further shows
that the names of OBC candidates and PH candidates were found in the
panel of 78 general candidates in order of merit. Out of such 78 candidates,
50 candidates, amongst whom some belonged to OBC, were selected for
appointment.
11. Needless to mention in the process of recruitment, all candidates
including general, Scheduled Caste, Scheduled Tribe, OBC candidates etc
are considered as unreserved candidates. As a result, a candidate belonging
to any caste other than general caste -candidate may secure a berth in
Unreserved Category on the basis of marks obtained. If he/she secures a
berth in Unreserved Category, then his/her left out position in the quota list
will be filled up by the next candidate belonging to the same caste on the
basis of marks obtained by the candidates amongst the same caste.
12. In the present case, out of 45 unreserved posts, Sl no. 2. Asish Kumar
Sau, Sl no. 6. Jayanta Kumar Pal, Sl no. 32. Krishnendu Basak, Sl no. 37.
Devdas Pramanick, Sl no 38. Ratan Kumar Garai, Sl no. 44. Anjan Kumar
Mallick, who belonged to OBC candidates got berths in the Unreserved
category on the basis of marks obtained and were selected for appointment.
However, there was certainly a serious mistake on the part of the KMC for
not making a separate panel for 5 Successful OBC candidates, but even for
such mistake, the right of the applicant was not ultimately denied.
13. To understand it properly, we have to make a detailed scrutiny. Say
for example, in our case if a separate panel for Successful OBC candidates
(5 posts)had been prepared, it would have been seen that that the above six
candidates ( Sl nos. 2, 6,32, 37, 38, and 44) would have topped the list of
OBC Candidates and they will be followed by the names of candidates in Sl
no.48. Debaprasad Nandy, Sl no. 55. Rinku Bhatta, Sl no. 57. Sribas
Baidya, Sl no. 61. Mrityunjoy Paul, Sl no. 66. Sanjit Dey, Sl no.69. Sipra
Kanji, Now as the six candidates (Sl nos 2, 6, 32, 37, 38, and 44) got berths
in unreserved category (45 posts), their left out positions in OBC list will be
filled by next five successful candidates (as the nos. of post for OBC were 5) ,
i.e., Sl nos. 48, 55, 57, 61 and 66 and not by Sl no. 69... It is true that in a
sound recruitment process, the employer usually prepares a list of selected
candidates along with a list for wait listed candidates category wise, but in
this case the same was not prepared. Had it been prepared, the name of the
applicant would have appeared as the first waiting list candidate for OBC
List, and the applicant would have secured the appointment, in case any
successful candidate from OBC list failed to join the post within the
stipulated time.
14. However, the appellant did not take this point as well as many other
points, such as , appointment of some candidates prior to publication of
merit list, issuance of appointment letter to candidates who changed their
surnames mysteriously just prior to appointment etc., in her main Writ
Application as well as in the relevant Appeal before the Division Bench of
this Court , and this court dealing in a Review Application cannot go beyond
the pleadings of the Writ Petitioner/ Appellant at this stage. It is incorrect to
assume that sponsored OBC candidates enjoy priority or privilege over non-
sponsored OBC candidates.
15. As, in our considered view, the Hon'ble Division Bench has rightly
come to the conclusion that there was no infringement of the appellant's
fundamental right, the case laws cited by the learned Counsel of the
Appellant/ Applicant do not apply in the factual scenario of the present
case.
16. Accordingly, we are constrained to dismiss the instant Review
Application but without any order as to costs.
17. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
I agree.
(APURBA SINHA RAY, J.) (ARIJIT BANERJEE, J.)
