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Judgment
Jayanta Kumar Biswas, J.—The petitioner in this WP under art. 226 of the Constitution of India dated February 7, 2013 is seeking the following principal relief:-
a) A Writ in the nature of Mandamus commanding the respondents and/or their agents and/or subordinates whatsoever to consider the candidature of the petitioner for the post of ''Medical Officer'' under West Bengal State Health and Family Welfare Samiti under Adolescent Health Programme of RCH as one of the selected candidate when less meritorious candidates than your petitioner with respect to academic qualification have been already enlisted for counseling to the above post and appointed subsequently in the month of January, 2013;
The petitioner moved a similar WP No. 24327 (W) of 2012 in this Court under art. 226. By a decision dated December 19, 2012 that WP was dismissed. Relevant parts of the decision are quoted below:-
....As the issues involved in this writ petition relate to service under the State Government, in my opinion the petitioner ought to have applied before the Tribunal.
In these circumstances, this writ petition is dismissed with liberty to the petitioner to apply before the State Administrative Tribunal�.
Accepting the decision of this Court dated December 19, 2012 the petitioner filed an OA No. 1615 of 2012 in the West Bengal Administrative Tribunal. By an order dated January 24, 2013 the Tribunal granted her leave to withdraw the OA.
Relevant part of the order of the Tribunal is quoted below:
Ms. Agarwal appearing for the petitioner submits that the present application is required to be filed before the Hon''ble High Court in the form of a writ petition. The Ld. Adv. further submits that liberty may be granted for withdrawal of the application and for filing of the same before the Hon''ble High Court. On hearing the Ld. Adv. and considering the nature of appointment involved in this application, we grant the liberty. The present application is accordingly withdrawn with liberty for filing the same before the appropriate forum.
The question is whether the WP is maintainable.
Mr. Gayen appearing for the petitioner has submitted that though the order of the Tribunal dated January 24, 2013 reveals that the petitioner prayed for leave to withdraw the OA with liberty to file a WP in the High Court, in reality, the Tribunal expressed the opinion that it had no jurisdiction to entertain the OA. This submission, not supported by the order of the Tribunal, cannot be entertained.
In the face of the decision of this Court dated December 19, 2012 the petitioner could not seek leave of the Tribunal to withdraw her OA with liberty to file a WP in this Court on the same cause of action. Though the decision of this Court dated December 19, 2012 was binding on the Tribunal, it was free to decide the question of its jurisdiction, if necessary; for in the WP No. 24327 (W) of 2012 the question of its jurisdiction could not be, and actually was not, decided by this Court.
Mr. Majumder appearing for the respondents has submitted that as a matter of fact it is this Court that had and has jurisdiction to entertain the petitioner''s case, and not the Tribunal; for the recruitment process in question was initiated for an employment on a purely contractual basis, as will be evident from the recruitment notice at p. 39 of the WP.
This submission has been made just for summary rejection. The implication of the submission is that the decision of this Court dated December 19, 2012 in the petitioner''s previous WP is wrong, and that I should ignore it. Correctness of the decision is not to be decided by me; it is just binding on me.
It is to be noted that neither the advocate for the respondents contesting the previous WP argued that that WP was maintainable, nor did the parties therein prefer an appeal against the decision dated December 19, 2012. The decision could lose its binding force only if in an appeal against it or in a WP against the order dated January 24, 2013 a Division Bench of this Court held otherwise. For these reasons, I hold that this WP is not maintainable. Accordingly, I dismiss it. Nothing herein shall prevent the petitioner from applying to the Tribunal for setting aside of its order dated January 24, 2013. No costs. Certified xerox.