Nurul Islam vs The State of West Bengal and Others

S.B. Sinha, J.—The petitioner is a practising advocate. In terms of Legal Aid to the Poor (West Bengal) Rules, 1974 an advertisement was issued on 4.6.1974 for the purpose of appointment of Member-Secretary of the District Legal Aid Committee having a consolidated salary of Rs. 500/- per month, pursuant whereto, the petitioner applied for and eventually appointed.

In this year 1976, a recruitment rule was framed in terms of the proviso appended to Article 309 of the Constitution of India whereby and whereunder the said post became a gazetted one and the controlling officer whereof was the District Magistrate. The Member-Secretary appointed under the said rule was to receive emoluments on the scale of pay fixed thereby Pursuant to the said rules, a fresh advertisement was Issued on 11.11.1976. The petitioner applied for and was selected provisionally. But he was not finally appointed. He, however, discharged the duties of the Member-Secretary.

In January, 1981, the scheme for front of legal aid to the poor was re-oriented by framing West Bengal Legal Aid and Advice Scheme of 1980, in terms thereof a sea change was made and thereby, inter alia, the post of Member-Secretary was to be held by the Deputy Magistrate to be nominated by the respective District Magistrate. The petitioner thereafter along with others was allegedly removed from the service. Writ petitioners were filed before this Court questioning the said removal. The writ petition of the writ petitioner was marked as C.R. No. 52765V) of 1981 wherein an Interim order was passed in the following terms :-

"A direction is given upon respondents not to disturb the present functioning of the petitioner as on date till 1st week of February, 1999.

The said interim was continued from time to time."

By reason of the said Interim order allegedly he had been working as Member-Secretary on consolidated salary of Rs. 500/- p.m. Allegedly, other persons who were similarly situated and who had also filed writ applications were asked to withdraw their writ petitions by the State and they having complied with the said requests, were appointed as Officers on Special Duty. Allegedly one Ruhul Amin Chowdhury had also been given the scale of pay.

Feeling aggrieved by the purported discrimination, the petitioner filed an application before the State Administrative Tribunal on 8.10.1998 for his formal appointment/confirmation in service and for usual scale of pay which was numbered as O.A. No. 6077 of 1998. In the meantime, however, the Legal Services Authorities Act, 1987 was enacted by the Parliament in terms whereof the Member-Secretary of the District Level Committee was to be a Judicial Officer of the rank of Civil Judge, Senior Division. The said Act came Into force in the State of West Bengal on 15.9.1998. Allegedly, the petitioner apprehending the dismissal from service filed an application before the State Administrative Tribunal being O.A. No. 7979 of 1998. In the said application, an Interim order was passed. However, his earlier application being O.A. No. 6077 of 1998 was dismissed by reason of the Impugned order dated 30.6.1999.

The contention of the petitioner as submitted by Mr. K. K. Moltra, learned senior counsel, is that keeping in view the pendency of the writ application before this Court being C.R. No.5276(W) of 1981 as also an interim order passed by State Administrative Tribunal on O.A. No. 7979 of 1998, the learned Tribunal acted illegally In rejecting his application. Mr. Moltra would urge that keeping in view the fact that the petitioner was appointed in the post of Member-Secretary upon advertisement having been issued therefor, he was entitled to all the benefits specified under the Rules and as a right has vested in him in terms of the rules such right could not have been directed to be divested. In support of the said contention strong reliance has been placed by the learned counsel on Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., , Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, , Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, and Anand Bihari and others Vs. Rajasthan State Road Transport Corporation, Jaipur and another, . It was further submitted that the learned Tribunal committed an illegality In holding that the application was barred by limitation as non-fixation of pay gives a continuous cause of action and In support of the said contention strong reliance has been placed on M.R. Gupta Vs. Union of India and others, .

Mr. S. C. Ukil, the learned Government Pleader, on the other, submitted that only because the petitioner was selected, he did not derive any right to be appointed. According to the learned Government Pleader, the petitioner did not acquire any enforceable legal right and thus, his application has rightly been dismissed by the learned Tribunal. Reliance In this connection has been placed on the State of Haryana v. Subash Chander Marwaha & Ors.. reported in 1974 (3) SCC, Jatinder Kumar and Others Vs. State of Punjab and Others, and State of Bihar and others Vs. Md. Kalimuddin and others, .

Unfortunate as it seem to be that a writ petition of the year 1981 has not yet been sent, by this Court to the State Ad ministrative Tribunal for disposal in terms of section 29 of the Administrative Tribunal Act. It Is also unfortunate that although the petitioner had obtained an Interim order of Injunction from another Bench of the West Bengal State Administrative Tribunal In a pending application, the Impugned order has been passed. It is also true that the learned Tribunal has proceeded to pass the Impugned order on wrong premise that the petitioner had not been getting any salary and was also not In service.

But the question which has to be posed and answered by us Is as to whether the petitioner at all acquired any legal right to be granted the scale of pay. The answer to the aforementioned question, having regard to the peculiar facts and circumstances of this case, must be rendered In the negative.

The petitioner was appointed merely on temporary basis by a letter dated 19th December, 1974.

While framing the rule, the Deputy Secretary to the Government of West Bengal by a letter dated 13th August, 1976 Informed the Accountant General the following:

"For notification making appointments to the posts of wholetime Member-Secretaries sanctioned herein will be issued in due course. Pending such appointments, the existing Member-Secretarles.of the District Legal Aid Committee will continue to function as such, on a stop gap basis, on existing terms and conditions and draw an honorarium of Rs.500/ - per month each without any allowance."

As noticed hereinbefore, the petitioner In terms of the advertisement dated 10.11.1976 as contained in Annexure ''E'' to the writ application, pursuant to or in furtherence of the notification dated 13th August, 1976 was merely selected but was not appointed as would appear from the letter dated 27th April, 1977 (annexure ''F'') which Is to the following effect :--

"I am directed to say that you have been selected provisionally for appointment as wholetlme Member-Secretary of the Legal Aid Committee, Birbhum in the scale of Rs. 475-30-685-35-1000-50-1150 plus a special pay of Rs.100/- per month."

Although he was medically examined but admittedly he was not appointed. In fact the petitioner In his application before the learned Tribunal, inter alia, prayed for his appointment and/or absorption. He, thus, at all relevant point of time was aware that he had not been appointed.

It is admitted that upon coming into force of the 1980 Rules, the post of Member-Secretary held by the practising Lawyers was abolished.

Several orders were Issued by the Governor rescinding the order of appointment made to the post of Member-Secretary. The petitioner was allowed to continue firstly keeping in view the stop gap arrangement as contemplated in the aforementioned letter of Deputy Secretary to the Government of West Bengal dated 13.8.1976 (annexure ''C'') but he might be getting his salary only pursuant to the Interim order passed by this Court. It is significant to note that in O.A. No. 7979 of 1998 the petitioner sought for the following reliefs;

"(a) An order declaring section 9 of the Amendment Act ( 59 of 1994) of the Legal Services Authorities Act, 1987 ultra vires the constitutional of India.

(b) An order directing the respondents not to dispense with the services of the applicant nor to dismiss his from service.

(c) An order directing the respondents not to give effect to the rules and regulations made by the State of West Bengal consequent upon the Amendment Act of 1994."

The interim order which was passed in the said writ application was to the effect that the respondents were asked not to disturb the current functioning of the petitioner as on date till the first week of February, 1999.

It appears that the matter is pending before the Supreme Court In Writ petition (Criminal) No. 312 of 1994 wherein some orders had been passed on 18.8.98. The petitioner was although not a party but it transpire that a Bench of the West Bengal State Administrative Tribunal by an order dated 19.4.1999 passed in O.A. 7979 of 1998 directed that the Interim order would continue.

The learned Tribunal, however, In its impugned order dated 30.6.99 dismissed the petition filed by the petitioner staling:

"Heard both sides. The learned Advocate for the petitioner in this case has come up with a prayer for appointment/confirmation of the petitioner as Member-Secretary, Legal Aid Committee, Birbhum and also payment of the usual scale of pay with arrears since 1977. The learned advocate for the respondents raised objection on the ground of limitation. It is found that the petitioner was appointed as a Member-Secretary of the Legal Aid Committee In the district of Birbhum with a consolidated salary of Rs. 550/- per month by an order dated 19.12.1974 (annexure ''B''). It can be reasonably calculated that the petitioner received his salary uptb 1977 and the application Is not clear, whether, the petitioner received the salary or not afterwards. It Is also not certain, whether the petitioner remained In service after 1977. The appointment or confirmation or salary etc. In this case are related to from the year 1977 and as per section 21(2)(a), this case suffers from limitation. This Tribunal has no power to condone the delay as the Hon''ble High Court can, because the Hon''ble High Court enjoys its inherent power from the Constitution. (C.N. Loknathan v. Union of India. (1989)9 ATC 61; RS. Shinghain v. Union of India, ATR 1986 CAT 28; Union of India v. Vishwanath (1989) 9 ATC 90). Whereas, this Tribunal enjoys this power from the Administrative Tribunal Act, 1985 Itself. Because of such difference, this Tribunal cannot condone the delay, more so, because the period of delay is more than 22 years. The petitioner could have agitated the matter before the Hon''ble High Court if he was denied his entitlement of rights. (Amin Singh Iyangi v. Delhi Administration. 1989 (2) SLR 373 (CAT-PB, Delhi). In view of such position, this Tribunal has no Jurisdiction to hear this case which has been filed after a delay of 22 yrs. and hence the petition is rejected. The petitioner is at liberty to move before the Appropriate Forum, if so advised. This case stands disposed of."

For the purpose of disposal of this case, we would assume, keeping in view the decision of the apex Court in M.R. Gupta Vs. Union of India and others, , that the application was not barred by limitation; although in that case there was no dispute as regard the fact that the petitioner therein held a civil post. It was In that situation when a grievance was made that his pay fixation was not In accordance with the rules, it was held to be a continuing wrong. The crucial question, therefore, is as to whether the petitioner holds a civil post. The answer to the aforementioned question must be rendered in negative. The petitioner was merely selected but was never appointed. Unless, a person Is appointed, he cannot hold a civil post, the logical corollary whereof would be that he would not be entitled to benefits of 1976 Rules. By reason of coming in to force of the 1980 Rules, the scheme was reoriented and Instead and place of an Advocate becoming the Member-Secretary, a Deputy Magistrate was to hold the said post. Naturally the said post had to be abolished and all concerned has been directed to be removed from service. The petitioner in his application has not annexed any order removing him from service but annexed copies of the orders of removal passed against some other persons. Evidently no such order was required to be passed In his case as he had not been appointed.

It is now a well settled principles of law that no person has any Indefeasible right to be appointed only because he has been selected for the post.

In The State of Haryana Vs. Subash Chander Marwaha and Others, . the law Is stated In the following terms :-

"The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates even the first in the list, will not have a right to be appointed. The list is merely to help the State Government In making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it Is the State Government alone which can make the appointments. The High Court does not come Into, the picture for recommending any particular candidate. After the State Government have taken a decision as to which of the candidates in accordance with the list should be appointed, the list of selected candidates for appointment is forwarded to the High Court then will have to enter such candidates on a Register maintained by it. When vacancies are to be filled the High Court will send the names of the candidates in accordance with the select list and In the order they have been placed in that list for appointment in the vacancies. The High Court, therefore, plays no part except to suggest to the Government who In accordance with select list is to be appointed and in a particular vacancy."

In Jatinder Kumar and Others Vs. State of Punjab and Others, , the law is stated in the following terms:

"An argument of desperation was further advanced about promissory estoppel stopping the State Government from acting in the manner ft did in not appointing the appellant although their names had been recommended. The notification Issued by the Board in this case was only an Invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts. If did not held out any promise that the selection would be made or if it was made the selected candidates would be appointed. The candidates did not acquire any right merely by applying for selection or for appointment after selection. When the proposal for dlsbandment of the Punjab Armed Police Battalion and Instead creation of additional posts for the district police was turned down by the State Government, the appellants were duly Informed of the situation and there was no question of any promissory estoppel against the State."

In Shankarsan Dash Vs. Union of India, . the apex Court held;

"Unless the relevant recruitment rules so Indicate the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons."

In State of Bihar and others Vs. Md. Kalimuddin and others, . It has been stated;

"It is on this line of reasoning that the High Court came to the conclusion that the action of the State Government was arbitrary and Irrational. How ever, as held in Shankarsan Dash Vs. Union of India, a decision to adopt a different policy with respect to the reserved vacancies can be a justifiable cause for halting further appointments from the panel or select list and such an action cannot be condemned on grounds of arbitrariness and/or illegal discrimination. Whether doing away which the training is in public Interest or otherwise would depend on the facts and circumstances of each case and that would be a matter to be put in Issue if the rule In that behalf are sought to be challenged on the ground of unreasonable or discrimination. The High Court has said in terms that it does not want to go into the correctness of that policy, yet, expressing a ''serious doubt'' it has virtually condemned the policy. In the Instant case, the Government was desirous of amending or modifying the reservation policy and, therefore, it took a decision to suspend all further appointments from existing panels or select lists. The ultimate outcome of that exercise is not fully brought out on record but it Is obvious that the State Government was not acting mala fide and merely with a view to denying appointment to the respondent herein. Merely, because notwithstanding the availability of trained personnel the State Government was inclined to change the rules In that behalf does not appear to be a valid ground for contending that the Government had acted malafide. Without knowing the nature of change it was not open to the High Court to anticipate the policy and brand it as unreasonable."

However, the matter really stands concluded by recent decisions of the apex Court in Bhagwan Parshu Ram College and Another Vs. State of Haryana and Others, and Purushottam Vs. Chairman, M.S.E.B. and Another, . In Bhagwan Parshu (supra) it is stated :

"It is no doubt true that the position in law is that a selection process commenced for an appointment may be cancelled or stopped at any stage or not completed by appointment, of the selected candidate but such action can be attacked as arbitrary or malafide. The decisions relied upon by the appellant state this very principle."

However, in a different context where a person was duly selected but he was not offered appointment owing to illegal decision of the screening.

In Purushottam Vs. Chairman, M.S.E.B. and Another, , it was held that right to be appointed, cannot be taken away only because of expiry of the panel in the meanwhile, stating:

"In view of the rival submission the question that arises for consideration is whether a duly-selected person for being appointed and Illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deapande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant''s right to be appointed to the post has been Illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature."

In the instant case, however, the petitioner was not appointed at all. He was merely allowed to continue by way of a stop gap arrangement till an appointment is made. He did not question the inaction on the part of the State from 1976 to 1980 when the Rules were amended. As noticed hereinbefore, the posts were abolished and on a writ application filed by the writ petitioner, he was merely directed to continue on the same terms upon receipt of salary of Rs. 500/-. In the meantime 1987 Act came into force. The vires of the said Act has although been questioned, it has not yet been declared ultra vires. This Court can take judicial notice of the fact that upon issuance of Notification dated 15.7.1988 by the Government of West Bengal, the District Level Committee in terms of the provision of the said Act had been appointed wherein the Member-Secretary is a Judicial Officer and not a practising Advocate. Such District Level Committee are functioning in terms of the provision of the said Act. Can It, therefore, be said that at this Juncture the petitioner was entitled to the scale of pay in terms of 1976 Rules? We have no hesitation in holding that although the petitioner was working pursuant to the Interim order passed by this Court as also the West Bengal State Administrative Tribunal, he could not could have been granted any relief as regard the scale of pay in respect of the post. He has not only been not appointed but also In view of the change in the policy decision of the State, the said post stands abolished.

The decisions cited by Mr. Moitra in the aforementioned situation cannot be held to have any question. In all the decisions cited, it has been held that the holder of a civil post cannot be removed from services except In terms of the rules framed under Article 309 of the Constitution of India as such a right is protected under Clause (2) of Article 311 thereof. However. the petitioner is not holder of such post and thus is not entitled to the reliefs sought for.

For the reasons aforementioned, we are of the opinion that the petitioner is not entitled to any relief whatsoever in this application albett for different reasons. The writ application is dismissed but in the facts and circumstances of this case, there will be no order as to costs.

M.H.S. Ansari, J.

I agree.

Petition dismissed