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Judgment
Mr. Sanyal, learned advocate appears on behalf of petitioner who, he submits, was appointed as Laboratory Attendant on 1st September, 1986. His
client is not a graduate. He was asked to officiate and thereafter since 2nd May, 2013 till date he is officiating as Head clerk. This officiation is an
arrangement the college and petitioner have worked out. Mr. Sanyal submits, his client obtained interim order dated 1st August, 2017 by which
selection process set in motion by State was permitted to continue but no appointment letter to be given to any candidate for appointment thereby
without leave of Court. Such interim order was passed on the view expressed that petitioner might have a legitimate grievance as to why the rules
should not be relaxed in his case.
It is the case of petitioner that candidacy of private respondent has been looked at with favour, relaxation made to accommodate her and she is thus to
be appointed. Commencement of this exercise, according to Mr. Sanyal, was on the making of order dated 15th March, 2016 in private
respondent’s writ petition being WP 4280 (W) of 2016. It is necessary for an extract from the said order to be reproduced below:-
“It is submitted on behalf of the college authorities that in terms of the Government order dated November 19, 2007 the post of the head clerk has
to be filled up first by promotion from upper division clerk and in the event suitable candidate is not found for promotion, then by direct recruitment.
The persons who are available in the college and working as upper division clerks have given up their right in writing to take promotion. They are not
willing to take promotion to the post of head clerk. In such circumstances, the college authorities require to undertake a direct recruitment for the
purpose of appointment of a head clerk.
I have considered the rival contentions of the parties and the materials made available on record. Admittedly, the post of the head clerk is lying vacant.
In terms of the Government order dated November 19, 2007 the post of the head clerk can be filled up from an employee of the status of upper
division clerk on promotion. The college authorities have submitted writings of the persons, who are enjoying the status of upper division clerk in the
college where they have expressed their desire not to take the post of the head clerk. In such circumstances, the college authorities will undertake a
direct recruitment to the post of head clerk. The college authorities will seek appropriate approval from the State within seven days from the date for
such purpose.â€
Mr. Sanyal submits, true it is that his client was represented and heard when the above order was made but it is per incurium. He relies on Chapter
XIII, Statutes 3(a) and 6(a) of Calcutta University, First Statutes, 1979. Said provisions are reproduced below :-
“3. For the purposes of these Statutes, the employees concerned are classified as follows â€
(a) Ministerial Staff comprising the posts of â€
 (i) Office Superintendent, Cashier, Accountant, Head Clerk, Senior Assistant and Senior Clerk and such other posts as may be approved by the
State Government.
(ii)Assistant, Clerk, Library Assistant, Laboratory Assistant, Store Clerk, Store-keeper, Care-taker, Stenographer, Record Keeper, Collection Clerk
and such other posts as may be approved by the State Government.â€
“6. (a) Whenever a permanent vacancy occurs in any of the posts referred to in Sub-Clause (i) of Clause (a) of Statute 3, such vacancy shall in
the first instance be filled up by promotion from amongst the employees holding any of the posts referred to in Sub-Clause (ii) of Clause (a) of Statute
3…….â€
The above provisions in the Statutes clearly provide that vacancy in any permanent post referred to in sub-clause (i) of clause (a) of Statute 3, shall in
the first instance be filled up by promotion from amongst employees holding any of the posts referred to in subclause (ii) of clause (a) of Statute 3.
The provisions make it clear that Laboratory Assistant, as is his client, is eligible to be promoted at the first instance for filling up vacancy in
permanent post of Head Clerk, which is a ministerial post contemplated under Statute 3(a) sub-clause (i). The provisions were not considered in the
making of said order dated 15th March, 2016 and hence, cannot be a bar in any form to deny his client opportunity to be promoted. He relies on
judgement of a learned single Judge of this Court in Sk. Rafiuddin Ahmed vs. Hazi Abdur Rahim reported, inter alia, in (2008) 2 CHN 40, to
paragraphs 7, 9, 38, 40, 42 and 46. Relying on the said paragraphs in the judgment he demonstrates that the same was made on the third revisional
application filed by defendant in the suit. The first arose on moving demurer application. A learned single Judge of this Court in disposing of the first
revisional application directed that the suit be tried with a preliminary issue as to its maintainability on the ground raised by petitioner in his application
under Order VII Rule 11 of the Code of Civil Procedure. Second revisional application was made complaining that order passed by trial Judge was
made without following the direction passed in earlier revisional application. That revisional application also succeeded and impugned order of trial
Judge, set aside. The demurer application was again taken up for consideration by trial Judge and once again rejected. This order of rejection was
impugned in the third revisional application dealt with by the judgment. The learned single Judge found that on examination of the plaint it could not be
concluded at that stage the suit is barred under any provision of Calcutta Thika Tenancy (Acquisition and Requisition) Act, 1981, which was the
ground taken in the demurer application. However, since two learned Judges of this Court had earlier dealt with revisional applications pertaining to
that question, the view expressed in the judgment in paragraph 46 dealing with such a situation is reproduced below :-
“46. Since the aforesaid orders as mentioned hereinabove, were passed by the learned single Judges of this Hon’ble Court in the earlier two
revisional applications without taking note of the aforesaid provisions of law, the said orders cannot create any judicial precedence.â€
Mr. Sanyal submits, this view should be followed dealing with said order dated 15th March, 2016 shown to be per incurium. He also relies on judgment
of Supreme Court in State of Bihar vs. Kalika Kuer alias Kalika Singh & Ors. reported in (2003) 5 SCC 448, to paragraph 5 for declaration of law
regarding what is per incurium. Supreme Court had extracted from Halsbury’s Laws of England (4th Edition) which says, inter alia, a decision
given in ignorance of the terms of a statute or rule having statutory force is per incurium.
Mr. Sanyal moves on to make an alternative argument to submit that in the recruitment process initiated by order dated 9th December, 2016, in
particular eligibility criteria mentioned therein as saying graduate, 5 years’ experience as Upper Division clerk in regular/approved post and no age
bar was purposely inserted with the object of eliminating petitioner as ineligible and to accommodate private respondent. Referring again to said
provisions in the Statutes he submits, these eligibility criteria are not applicable for filling up the vacancy on promotion. However, when later it was
found that private respondent was still ineligible, by GO dated 28th June, 2017 there was relaxation made on an essential eligibility criteria to
accommodate her. This being a later discovery, petitioner brought the same on record by amendment application being CAN 7970 of 2017. Text of
GO dated 28th June, 2017 is reproduced below :-
“With reference to the captioned above, the undersigned is directed to say that considering the gravity of the matter, Smt. Manimala Ghosh (Das)
who has been serving in a Group ‘C’ post for more than 30 (thirty) years in Charu Chandra College, is hereby allowed to appear in the selection
process for direct recruitment to the post of ‘Head Clerk’ in that college, as a special case in relaxation of existing recruitment rules.
Furthermore, the undersigned is directed to say that this shall not be treated as precedent as this will be applicable in her case only.â€
He relies on judgment of Supreme Court in Annamalai University vs. Secretary to Government reported in (2009) 4 SCC 590, to paragraphs 55 and 56
for declaration of law that the power of relaxation is a statutory power. He submits, there should be interference and the selection process set aside.
Alternatively GO dated 28th June, 2017 should be set aside as made in absence of power and arbitrarily. Mr. Barua, learned advocate appears on
behalf of the college and submits, leave be granted for the purpose of appointing private respondent to the post since she has been found successful in
the selection process. Mr. Tewari, learned advocate appears on behalf of private respondent and submits, petitioner cannot seek to urge contrary to
order dated 15th March, 2016 which was made in his presence.
Directions in the said order have been complied with and if this Court interferes at this stage it would lead to chaos and anarchy in the matter of
appointments by selection process. The selection process was duly carried out and his client found successful, albeit upon relaxation obtained on her
representation made. What was considered in making the relaxation is, as appears from GO dated 28th June, 2017, that his client has been serving in
Group ‘C’ post for more than 30 years. He submits further, petitioner is not a graduate and was appointed as Laboratory Attendant. He much
later was asked to officiate as clerk in the year 1997 and purportedly as Head Clerk from 2nd May, 2013. Taking petitioner’s officiation in the
post of clerk to be from when he was appointed therein, his client is more than 10 years his senior. He submits, the issue regarding the manner in
which the post is to be filled up was between the parties in his client’s writ petition and decided by said order dated 15th March, 2016, accepted by
the parties and become final. There is bar of res judicata against petitioner raising the same issue again.
His second point is that petitioner cannot, in any event, be said to be aggrieved. He is ineligible per the eligibility criteria. He relies on judgment of
Supreme Court in Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra reported in (2013) 4 SCC 465, to paragraph 9 in particular, for settled legal
proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies that the authority/Court, that he falls within the
category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a Court of law.
A writ petition under article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right or when there is a
complaint by the appellant that there has been a breach of statutory duty on the part of the authorities.
Mr. Pal, learned advocate appears on behalf of State but is unable to demonstrate source of power for issuance of GO dated 28th June, 2017. So far
as on whether petitioner can move this Court, it is seen he is trying to obtain benefit of promotion to the post. He cannot be said to be an outsider. The
writ petition is found to be maintainable. Petitioner has challenged the selection process as not permissible being in breach of the Statutes. He has
successfully demonstrated that the Statutes would make him eligible as a candidate to seek to obtain the post by promotion. This situation prevailed
when order dated 15th March, 2016 was passed. Petitioner by having participated in the hearing in which said order was made and thereafter having
accepted the same can be said to have waived his known right as did the Upper Division Clerks. The said order, in my view, cannot be said to be per
incurium. The learned judge only said that the post of head clerk can be filled up from an employee of the status of Upper Division Clerk on
promotion. This view cannot be said to be against the Statutes. The Statutes provide for them and, in addition, others as well who might be considered
for promotion. Scrutiny of that sentence in the order thus cannot lead to the conclusion the order is per incurium. The learned Judge directed direct
recruitment on finding that the vacant post could not be filled up by promotion at the first instance. This finding came on the Upper Division Clerks
saying they didn’t want the promotion and petitioner’s omission to assert his right.
That takes the case to adjudication of impugned selection process which has in it GO issued relaxing an eligibility clause. This Court is not inclined to
be drawn into that controversy since I have already found that the selection process initiated pursuant to said order dated 15th March, 2016 cannot be
said to be as not permissible under the Statutes. By being drawn into the controversy regarding the issuance of GO dated 28th June, 2017, this Court
will not be able to interfere in favour of petitioner. As such, nothing further need be said. The writ petition is disposed of as above. All connected
applications are disposed of.