Manoranjan Samaddar vs State of West Bengal and Others

K.J. Sengupta and Prasenjit Mandal, JJ.—We have gone through the impugned judgment and order of the learned Tribunal and heard Mr. Roy Chowdhury and Mr. Basu in this matter. We are of the view that the order of the learned Tribunal does not call for any interference on the basis of materials placed before the learned Tribunal for the reasons stated hereunder.

The applicant through intervention of the Court got the order of promotion from the post of Excise Constable to the post of Assistant Sub-Inspector of the Excise Department. After haying obtained the order of promotion, the applicant claimed for ante dating of the promotion, at least at par with Sri Bijay Kumar Bittal and Amarendranath Mandal, who were described by the applicant to be juniors in the order of promotion.

So, the applicant filed a writ petition before this Court and in that writ petition prayer for ante-dating of promotion, vis-a-vis, fixing seniority at par with the said two persons was made. The said writ petition being Matter No. 1365 of 1987 was disposed of by the learned Single Judge of this Court by order dated 5th April, 1988, haying considered the records of the applicant as well as the aforesaid two persons.

After considering all the aspects of the matter, learned Single Judge found that Sri Bijay Kumar Bittal as well as said Amarendranath Mandal were seniors to the petitioner. With the aforesaid observation, the said matter was disposed of ultimately by passing the following order:

This order is passed without prejudice to the rights of the writ petitioner to make representation with regard to his claim for seniority on any other ground before the respondent Excise Commissioner arid if such representation is made the said respondent shall consider and dispose of the same according to law.

Thereafter, the aforesaid order was sought to be reviewed and/or recalled by making an application. The said application for review and/or recalling was disposed of by order dated 4th September, 1992, Again while deciding this matter, the learned Single Judge of this Court found the same thing as it was found earlier. As such, the order passed by this Court was not reviewed. (sic) claim of the petitioner for antedating of promotion and fixing seniority at par with the aforesaid two persons. The applicant''s prayer was turned down by the department observing that nothing new has been observed and seniority of the applicant is governed by the finding of the learned Single judge.

Thereafter, the applicant approached the learned Tribunal against the aforesaid speaking order and in the application it was contended that on the face of unimpeachable document, being a communication from Collector of Excise, Calcutta to the Excise Commissioner, West Bengal dated 19th June, 1991, finding of the learned Single Judge in the writ petition as well as in the review application is patently erroneous and the department has also ignored the same. The same mistake has been committed by the learned Tribunal by not considering the said document.

According to Mr. Roy Chowdhury, the aforesaid document could not be placed before the learned Single Judge when the matter was heard out. However, Mr. Basu submits otherwise, and says that the said particular document was definitely considered by the learned Single Judge and only thereafter the matter was disposed of finally.

We find that the learned Single Judge passed the judgment and order on the review application on 4th September, 1992 and the aforesaid document is of dated 19th June, 1991. Therefore, prima facie this document could have or ought to have been produced at the time of hearing, unless it is specifically stated that this document was not within the knowledge of the applicant, nor could it be discovered with reasonable degree of diligence.

Mr. Roy Chowdhury submits, upon instruction, that this document was discovered at a later stage viz. after passing of the order dated 4th September, 1992. Immediately alter discovery of the said document, the applicant drew the attention of the department to the aforesaid document which records the date of appointment of the applicant as well as the aforesaid two persons and their qualifications as well. Having failed to convince the department, the learned Tribunal was approached. However, the learned Tribunal unfortunately did not take note of this document and swayed by the judgment and observation of the learned Single Judge of this Court.

As we have observed, as on date, the observation and finding of the learned Single Judge holds good in the field, unless the same is set aside and upset by the appropriate forum.

We, therefore, for the time being dispose of this application without passing any order excepting to grant leave to the applicant to take steps, in accordance with law, as may be advised. There will be no order as to costs.