Calcutta High Court (Appellete Side)
Smt. Shanta Paul vs The State Of West Bengal & Ors on 28 November, 2023
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
28.11.2023
Item No.7
Ct. No.1
PG/KS
W.P.A.(P) 566 of 2023
Smt. Shanta Paul
Vs.
The State of West Bengal & Ors.
Mr. Arunagshu Chakraborty
Mr. Arijit Bera
Ms. Geniya Mukherjee
Ms. Shrabani Banerjee
Ms. Zeba Rashid .....for the Petitioner
Mr. Anirban Ray, Ld. GP
Mr. B. Basu Mallick
Mr. Arka Kr. Nag .....for the State
Mr. Joydip Kar, Sr. Adv.
Mr. Pijush Biswas
Mr. Puspashis Gupta
Mr. Abhishek Baran Das......for the respondent
nos. 3, 5, 6 and 7
Mr. Arunabha Ghosh
Mr. S.R. Saha
Mr. S.K. Mukherjee
Mr. Aksar Sarkar..........for the respondent nos.
8&9
1. This is a public interest litigation filed by a
person, who is pursuing her Master's degree in
Anthropology and joined Sarva Siksha Mission as
Special Educator. The petitioner seeks for
issuance of a writ of quo warranto for removal of
the private respondents.
2. It is pointed out by the Court on an earlier
occasion, a more or less identical prayer was
sought for, though in slightly differently couched
language in a public interest litigation filed by
one Swadesh Majumdar in W.P.A. (P) 522 of
2023, wherein the said petitioner claimed to be a
social activist and prayed for issuance of a writ of
mandamus to declare the decision to absorb 51
staff of Webel Technology Limited as direct
contractual staff of Kazi Nazrul University is
being illegal and a nullity. The other prayers
sought for are also relating to the 51 staff, who
have been brought as direct contractual staff of
the Kazi Nazrul University. In the said writ
petition, the 51 persons, whose contractual
engagement was sought to be questioned were
not made parties. However, in this writ petition
that defect appear to have been cured and there
are several private respondents and the
petitioner's contention is that in terms of the
provisions of the Kazi Nazrul University Act, 2012
and the rules framed thereunder, they could not
be brought as direct contractual staff of Kazi
Nazrul University. In fact, identical averments
were made in the earlier writ petition as well and
this was considered by this Court by order dated
10th October, 2023 and dismissed the writ
petition. The entire order is quoted for the sake of
convenience.
"1. By way of public interest
litigation the petitioner, namely, Sri
Swadesh Majumdar stating that he is a
taxpayer and social activist has
approached this court praying for
issuance of a Writ of Mandamus to
declare the decision to absorb the 51
staff of Webel Technology Limited as
direct contractual staff of Kazi Nazrul
University is being illegal and it is a
nullity. The other prayers sought for are
also relating to the 51 staff who have
been brought as direct contractual staff
of the respondent University.
2.In the writ petition the 51
persons whose contractual engagement
is sought to be questioned are not made
as parties. Apart from that, the decision
taken by the University to make the
temporary members of the non-teaching
staff recruited through WTL as
University's own contractual staff is a
decision taken by the University for
better administration.
3. In any event, the matter being
purely a service matter, no writ petition
as a public interest litigation can be
entertained.
4. The learned counsel appearing
for the petitioner would place reliance
on the decision of the Hon'ble Supreme
Court in Secretary, State of Karnataka
and Others v. Uma Devi (3) and Others
reported in (2006) 4 SCC 1 and has
referred to paragraphs 42 and 43 of the
said judgment. The said decision arose
out of cases where the temporary
employees had sought relief before the
Tribunal seeking absorption/
regularization. There was also a writ
petition filed seeking similar orders and
there were two sets of orders passed by
the High Court and the matter
ultimately travelled to the Hon'ble
Supreme Court.
5. In our considered view, the
decision in Uma Devi (3) can have no
application to the case on hand, more
importantly, the matter being a service
matter, a decision taken by the
respondent University to bring certain
non-teaching staff as their own
contractual staff, such decision cannot
be interfered with in a public interest
litigation.
6. The learned advocate has also
referred to a decision in the case of the
Hon'ble Supreme Court in the case of
State of Punjab v. Bahadur Singh and
Others reported in (2008) 15 SCC 737
and has referred to paragraph 12 of the
said judgment. In the said paragraph
several other decisions of the Hon'ble
Supreme Court have been noted and the
matter concerns a case for direct
regularization in relation to
appointments which were irregular in
nature.
7. In our considered view, the said
decision can have no application to the
facts and circumstances of the case.
8. Learned advocate also placed
reliance on the decision of the Hon'ble
Supreme Court in MA No.1150 of 2019
in Contempt Petition (Civil) No.1921 of
2017 in Civil Appeal No.6950 of 2009 in
the case of Ranbir Singh v. S.K. Roy,
Chairman, Life Insurance Corporation
and Another dated 27th April, 2022 and
has referred to paragraph 72 of the
said judgment. The said decision arose
out of an order passed by the Hon'ble
Supreme Court and the contempt
petition was filed alleging disobedience
of the order. In paragraph 72 the
Hon'ble Supreme Court has pointed out
that Life Insurance Corporation as a
statutory Corporation is bound by the
mandate of Articles 14 and 16 of the
Constitution. As a public employer, the
recruitment process of the Corporation
must meet the constitutional standard
of a fair and open process and allowing
for back-door entries into service is an
anathema to public service. As already
pointed out, the matter concerning a
service matter cannot be decided in a
public interest litigation. Apart from
that, the writ petition also suffers from
inherent error in not impleading the
relevant parties.
9. For the above reasons, the writ
petition stands dismissed as not
maintainable.
10. We make it clear that the writ
petition has been dismissed as not
maintainable and the merits of the
decision taken by the University have
not been gone into."
3. In this writ petition, the petitioner has made
various averments and allegations contending
that 51 people could not be brought under the
direct contractual engagement of the Kazi Nazrul
University as there is no relevant provision under
the Act or the rules framed thereunder.
4. Firstly, it needs to be pointed out that the relief
sought for in this writ petition is wholly and
substantially a service matter and in this regard,
the Hon'ble Supreme Court in Dr. Duryodhan
Sahu and others v. Jitendra Kumar Mishra
and others reported in (1998) 7 SCC 273 has
held that public interest litigation in service
matters is not maintainable. The learned
advocate for the petitioner would vehemently
contend that such an issue was considered by
the Hon'ble Supreme Court in Special Leave
Petition (Civil) Diary No(s). 41779 of 2023 in
the case of Pratap Singh Bist v. The Director,
Directorate of Education, Govt. of NCT of
Delhi & Ors. dated 3rd November, 2023.
5. We have had the benefit of going through the
judgment of the Hon'ble Supreme Court, wherein
the Special Leave Petition (Civil) Diary No(s).
41779 of 2023 was dismissed. While doing so,
the Hon'ble Supreme Court noted the decision in
Dr. Duryodhan Sahu and others (supra) and
observed that the issue whether public interest
litigation is not at all maintainable in service
matters is a debatable issue and the said
question of law was left open to be gone into in
an appropriate case.
6. Therefore, in our considered view, the decision in
the case of Pratap Singh Bist (supra) will not, in
any manner, advance the cause of the present
writ petitioner.
7. The learned advocate for the petitioner placed
reliance on the decision of the Constitution
Bench of the Hon'ble Supreme Court in the case
of (2020) 2 SCC 1 Kantaru Rajveearu
(Sabarimala Temple Review-5J.) v. Indian
Young Lawyers Association through its
General Secretary & Ors. and referred to
paragraphs 34 to 38 of the said judgment. It has
been held by the Hon'ble Supreme Court that "an
erroneous interpretation of the Constitution by a
High Court (which affects the general public much
more than an erroneous interpretation of a
statutory prohibition enacted in public interest)
cannot possibly be res judicata as against a
judgment of a Constitution Bench of the Supreme
Court, as a rule of procedure cannot be exalted
over Article 145(3) of the Constitution of India."
8. In our considered view, in the earlier public
interest litigation, the correctness of the decision
taken by the respondent/University was put to
challenge and the Court found that the matter
was clearly within the realm of service
jurisprudence and declined to entertain the writ
petition. For such reason, we are not inclined to
entertain the present writ petition as well.
Consequently, the writ petition stands dismissed.
9. No costs.
10. Urgent photostat certified copy of this order, if
applied for, be furnished to the parties
expeditiously upon compliance of all legal
formalities.
(T.S. SIVAGNANAM)
CHIEF JUSTICE
(HIRANMAY BHATTACHARYYA, J.)
