Calcutta High Court (Appellete Side)

Sri Saumen Basu vs Union Of India & Ors on 20 September, 2024

                     IN THE HIGH COURT AT CALCUTTA

                      (Constitutional Writ Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                           WPA No. 4853 of 2011

                              Sri Saumen Basu

                                     Vs

                            Union of India & Ors.



For the Petitioner                        : Mr. Sattwik Bhattacharyya,
                                            Mr. Aashutosh Bhattacharya,
                                            Mr. Titas Niyogi,
                                            Mr. Aritra Roy.



For the Respondent No. 2 to 4             : Mr. Debasish Saha,
                                            Ms. S. Pal ,
                                            Mr. A.R. Sanyal.


Hearing concluded on                      : 22.08.2024

Judgment on                               : 20.09.2024
                                           2


Shampa Dutt (Paul), J.:

1. The Writ Petition has been preferred by stating that after the petitioner

being selected for the post of Assistant in the respondent bank in

terms of his personal interview held on 28.04.2010, the petitioner had

also applied before the District Primary School Council, Burdwan and

accordingly since petitioner performed well as an Ex-serviceman

candidate, the petitioner has been given an appointment letter by the

said Council vide its Memo No. 2401/APPTT dated 23rd April, 2010

and the petitioner joined Kasemnagar F.P. School, Mongalkot,

Burdwan on 25.06.2010 as an Assistant Teacher.

2. It is further stated by the petitioner that the letters of appointment in

respect of the said post under the said advertisement No.

CRPD/CR/2009-10/04 of the respondent bank had been issued to

other selected Ex-servicemen, but the petitioner's appointment was

kept in abeyance without assigning any reason whatsoever, though the

petitioner fulfilled all the criteria and there is no impediment in the eye

of law to appoint the petitioner after receiving such declaration. The

petitioner was then constrained to submit a representation before the

A.G.M. (Administration), respondent no. 4 on 06.01.2011.

3. The petitioner states that by an office memorandum of the respondent

No.1 being OM No. 36034/6190-Estt.(SCT) dated 02.04.1992, he was

informed that those Ex-servicemen candidates who have already

secured employment, getting benefit as an Ex-serviceman, will not be

eligible for the further benefit of reservation for Ex-servicemen in

Central Government jobs. The petitioner has also submitted the

documents relating to his present employment in a Primary School as

an Assistant Teacher before the respondent no. 4 along with other

papers submitted in terms of the offer letter dated 2nd December,

2010, considering the factual aspect and legal provisions that the

Primary School Teacher in a Non-Government School does not come

under the purview of an employment under the Central

Government/State Government etc.

4. It is further stated that other Ex-servicemen having held the post of a

primary teacher have also been given appointment in respect of the

said post in the said advertisement, considering the sole aspect that

an employment as primary teacher in Government sponsored and

aided Primary School does not come under the purview of an

employment in Government/Public Sector Undertaking or Central

Government, as the West Bengal Board of Primary Education is

neither the Government nor Public Sector Undertakings but a Body

Corporate with perpetual succession and a common seal under the

provision of Section 3 of West Bengal Primary Education Act, 1973.

5. Ignoring a legal notice issued through the petitioner's lawyer, the

Respondent Bank by an impugned Memo being No. AO/HR/52/2916

dated 21.02.2011 cancelled the offer of appointment of the petitioner,

upon rejecting the representation of the Petitioner dated 6th January,

2011 on the sole ground that the appointment of petitioner as Primary

Teacher is an employment under Central Govt./Government/Public

Sector Undertaking secured, after availing the benefits of reservation

for Ex-Servicemen.

6. It is further stated by the petitioner that he made several applications

before the authorities concerned for giving appointment to the

petitioner as there is no impediment in the eye of law in the aforesaid

Government orders, it has been construed that "Ex-Servicemen

candidates who have already secured employment under the Central

Government in Group C and D will be permitted the benefit of age

relaxation and Ex-Servicemen who had once joined a Government job on

the civil side after availing of the benefits given to him as an Ex-

Servicemen for his re-employment, his Ex-serviceman status for the

purpose of the re-employment in job ceases". The petitioner states that

his service as a primary teacher does not come under the purview of a

Government job on the civil side, but till date the petitioner's prayer

has not been considered.

7. It is further the case of the petitioner that though the petitioner

wanted to mention his appointment as primary teacher in the said

declaration but the concerned detailing officer of respondent bank

while accepting and/or handing over such declaration form of bank

insisted the petitioner not to incorporate the same in the captioned

declaration form. On the other hand as asked by the said officer to fill-

up the said printed form, the petitioner could not bring the said fact of

his such appointment as primary teacher in the said affidavit. As such

the allegation of false affidavit and declaration for such employment,

as raised in the impugned letter of the respondent no.4 dated 21st

February, 2011 is not only nonest in the eye of law but also bereft in

reasoning and untrue and thus liable to be set aside.

8. Hence the writ petition praying for the following reliefs :-

a) A writ in the nature of mandamus commanding the respondents

to set aside and quash the impugned memo dated 21 st

February, 2011.

b) A writ in the nature of mandamus commanding the respondents

bank concerned to give appointment in favour of the petitioner

and further commanding them to act in accordance with law in

terms of the representation and the legal notice of the petitioner

and other related reliefs.

9. From the materials on record, the following is relevant :-

i) The advertisement No. CRPD/CR/2009-10/04 for the

Recruitment in State Bank of India under "Definition" laid

down the following conditions:-

"6. Definitions :

Ex serviceman- XX

Disabled Ex-serviceman - XX

Dependents of servicemen killed in action- XX

Note: 1) Candidates still serving in defence and desirous

of applying under Ex-servicemen category should submit a

certificate from the competent authority to the effect that

they would be released/retired on or before 31.08.2010.

2) Ex-servicemen candidates who have already

secured employment under the Central Government

in Group C & D will be permitted the benefit of age

relaxation as prescribed for Ex-servicemen for

securing another employment in a higher grade or

cadre in Group C & D under the Central Government.

However, such candidates will not be eligible for the

benefits of reservation for Ex-servicemen.

3) The Territorial Army Personnel will however be treated

as Ex-servicemen w.e.f. 15.11.1986.

4) An Ex-serviceman who has once joined a

Government job on the civil side after availing of the

benefits given to him as an Ex-serviceman for his re-

employment, his Ex-serviceman status for the

purpose of re-employment in job ceases."

10. Admittedly, the Writ Petitioner obtained and joined his job as an

'Assistant Teacher' in a Primary School under the West Bengal Board

of Primary School Education availing of the benefits/reservation of

his Ex-Serviceman status.

11. Clause 9 of the letter of selection dated 2nd December, 2010

issued by the Bank is as follows :-

"9. Candidates selected under Ex-Servicemen category will

have to satisfy the Bank they are fulfilling all the criteria for

considering them as Ex-Servicemen. Only thereafter

Appointment Letter will be issued."

12. An affidavit dated 24.12.10 was submitted by the petitioner to the

Bank stating an oath as follows :-

"....... a. That I am aware that the ex-servicemen candidates

who have already secured employment in

Government/Public Sector undertakings after availing benefit

of reservation of ex-servicemen, will not be eligible for the

benefit of reservation for ex-servicemen once again.

b. That I am also aware that when an ex-servicemen who has

once joined a Government/Public Sector undertaking job on

the civil side, after availing benefits given to him as an ex-

servicemen, his ex-servicemen status for the purpose of re-

employment in job ceases.

c. That I have not secured any employment in any Government

/Public Sector undertaking either before or after the date of

interview held in respect of the recruitment of clerk in State

Bank of India (2009-10) and that I am eligible to the

reservation/quota for ex-servicemen in the recruitment being

done by State Bank of India.

d. That I am aware that the State Bank of India is offering

employment based on this affidavit/declaration and in case

this affidavit/declaration is found to be false or any of the

statements made in this affidavit/declaration are found to be

untrue the State Bank of India is entitled to cancel the

appointment and terminate my services without any

notice..........."

13. The memorandum dated 12th February, 1999, being no.25-SE(B)/IM-

102/98 of the Government of West Bengal, School Education

Department, Budget Branch, clearly shows that the appointment of

the writ petitioner was under the Government of West Bengal.

14. In Para 7 of the writ petition, the petitioner has admitted that he had

not made the said declaration in his said affidavit.

15. Thus, the appointment of the petitioner has been rightly cancelled by

the Respondent bank being in violation of clause 6 note (4) of the

advertisement and as such the writ petition having no merit stands

dismissed.

16. All connected applications, if any, stand disposed of.

17. There will be no order as to costs.