Calcutta High Court (Appellete Side)
Utpal Saha Chowdhury vs The State Of West Bengal & Ors on 4 October, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 7
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
M. A. T. 1476 of 2024
(CAN 1 of 2024)
(CAN 2 of 2024)
Utpal Saha Chowdhury
-Vs-
The State of West Bengal & Ors.
For the Appellant : Mr. Shamim-ul-Bari, Adv.
Ms. Jhilik Singha, Adv.
For the State : Mr. Amal Kumar Sen, ld. A.G.P.
Mr. Lal Mohan Basu, Adv.
Heard on : 04.10.2024
Judgment on : 04.10.2024
Joymalya Bagchi, J. :-
Re : C. A. N. 1 of 2024
1. The application has been filed under Section 5 of the Limitation
Act for condonation of delay.
2
2. Having considered the averments made in the application for
condonation of delay and being satisfied with the explanation given, we
are inclined to condone the delay in preferring the appeal.
3. The application being CAN 1 of 2024 is allowed.
Re : M. A. T. 1476 of 2024
4. Order dated 05.03.2024 dismissing the writ petition challenging
the decision of the District Magistrate, Malda declining prayer of the
appellant for appointment to the post of Panchayat Karmee has been
assailed.
5. Appellant had applied for the post of Gram Panchayat Karmee in
response to a recruitment notice dated 05.06.2009 as an 'Unreserved'
candidate. His name appeared at serial no.2 in the provisional wait list
which was published in August, 2013. As per rules the panel was to
remain alive for one year. The first waitlisted candidate approached this
court in W.P. 18623(W) of 2014 praying for her selection as there was
vacancy in the 'Unreserved' category.
6. Hon'ble Single Judge (as His Lordship then was) directed the first
waitlisted candidate viz. Dilruba Parvin to be considered against
vacancies available in 'Unreserved' category. Pursuant to this direction
Dilruba Parvin was appointed as a Panchayat Karmee.
7. Thereafter, it is contended appellant applied under the Right to
Information Act, 2005 and obtained information that he had scored same
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marks as the first waitlisted candidate. Relying on this information
appellant approached this court in 2015 praying for his appointment.
8. Hon'ble Single Judge by order dated 22.07.2015 directed District
Magistrate, Malda to consider his prayer and in the event a vacancy was
available to ensure that he is considered for appointment in accordance
with law.
9. Pursuant thereto, learned District Magistrate considered the case
of the appellant and by impugned order rejected his prayer.
10. This is the subject matter of challenge in the present proceeding.
11. Learned Advocate for the appellant contends Hon'ble Single Judge
erred in dismissing the writ petition on the ground that the panel had
expired. Appellant was senior in age to Dilruba Parvin, the first waitlisted
candidate. Ignoring this fact the respondent authorities had illegally
appointed her to the prejudice of the appellant. When the appellant was
denied his right to be considered for appointment due to an erroneous
decision of the respondent authorities, expiration of the panel would not
stand in the way of correcting such error.
12. We have considered the impugned decision in light of the aforesaid
submissions. A recruitment process for appointment of Panchayat
Karmee which was initiated pursuant to a recruitment notice dated
05.06.2009. Provisional list of 38 candidates in the 'Unreserved' category
was published in August, 2006. 37 out of 38 candidates were appointed
from the list and one vacancy was available. In the wait list one Dilruba
Parvin was the first waitlisted candidate. She approached this court in
W.P. 18623(W) of 2014 and pursuant to direction given by this court she
was appointed to the sole vacancy. In the meantime, the panel expired in
2014. In 2015, appellant approached this court challenging the
appointment of Dilruba Parvin and this court directed the applicant's
representation to be considered in the event a vacancy is available.
13. Upon such direction District Magistrate considered the case of the
appellant and rejected his prayer, inter alia, on the ground he could not
be considered for appointment in place of Dilruba Parvin as he was not
the senior most of the waitlisted candidates who had secured same
marks. District Magistrate also noted panel in which the appellant was
enlisted as a waitlisted candidate had already expired and he had no right
to be considered against other vacancies which had come into existence
after the recruitment notification had been published.
14. We do not find any error in the aforesaid decision. Appellant had
approached this court in 2015 seeking appointment as Gram Panchayat
Karmee on the strength of his being empanelled as a waitlisted candidate
in 2013. Admittedly, the panel had expired even before the appellant had
approached this court in the first round. Given this situation it cannot be
said delay on the part of the appellant to seek appointment as a waitlisted
candidate was due to fault on the part of the respondent authorities. It
was open to the appellant to approach this court during the lifetime of the
panel which he had failed and/or neglected to do.
15. In Purushottam vs. Chairman, M.S.E.B. & Anr.1, appellant had been
selected against the post reserved for Scheduled Caste candidate but the
respondent authorities rejected his candidature doubting his caste
certificate. Appellant approached the court during the lifetime of the panel
but the respondent authorities did not consider his case. On the second
occasion, respondents sought to resist the appellant's case on the ground
the panel had expired. In this factual backdrop, the Apex Court held
indolent conduct of the appellant could not be a ground to deny a
candidate his legitimate right to be considered for appointment due to
expiry of the panel.
16. In the present case, appellant slept over his rights, if any, during
the tenure of the panel and approached this court only after its expiry. It
is of little consequence that appellant was delayed due to non-availability
of information with regard to his seniority vis-a-vis the selected candidate.
Even if the information was available and was taken into consideration,
appointment of Dilruba Parvin, the first waitlisted candidate does not
infract any legal right of the appellant as he was not the senior most
amongst the waitlisted candidates who scored same marks as Dilruba
Parvin.
17. For these reasons, we are of the opinion no case for interference is
made out in appeal and the same is thus dismissed.
(1999) 6 SCC 49
18. In view of dismissal of the appeal, connected application being
CAN 2 of 2024 is also disposed of.
19. There shall be no order as to costs.
20. Photostat certified copy of this judgment, if applied for, be given to
the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
akd
