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The Secretary, Irrigation & Waterways Department, Government of West Bengal & Others v/s Srinanda Baishnab & Others

    W.P.S.T. No. 151 of 2017

    Decided On, 16 July 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBASISH KAR GUPTA & THE HONOURABLE MR. JUSTICE SHAMPA SARKAR

    For the Petitioners: Joytosh Majumder, Ld. Government Pleader, Pinaki Dhole, S.P. Lahiri, Advocates. For the Respondents: D.N. Ray, Sankha Ghosh, Rajesh Kumar Shah, Advocates.



Judgment Text

Debasish Kar Gupta, J.

This is an application filed under Article 226 of the Constitution of India assailing a final order dated October 24, 2017 passed by the West Bengal Administrative Tribunal in the original application by the judgment impugned. By virtue of the impugned order the learned Tribunal arrived at a conclusion that the claim of the respondent nos.1 to 23 were insulated with an order of the learned Tribunal passed in the matter of Tarapada Roy & 28 Ors. vs. The State of W.B. & Ors., dated December 13, 2012 falling within the ratio of the decision dated September 2, 2009 of the learned Tribunal in the matter of A.C. Roy & Ors. vs. State of West Bengal & Ors. The learned Tribunal further directed the petitioners to take necessary steps within the period specified in the impugned final order.

The issue raised before the learned Tribunal by the respondent nos.1 to 23 was that the homestead lands owned and possessed either by themselves or by their predecessors were the source of their livelihood. Those lands were acquired by the instrumentality of State for construction

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of Tista Barrage. They claimed employment under the petitioners authority on the basis of a scheme framed in 1997 by the State Government for acquisition of their lands.

The petitioners filed an original application before the learned Tribunal in the matter of Tarapada Roy & 28 Ors. vs. The State of W.B. & Ors (In re:- O.A. No.969 of 2012). It was disposed of on December 13, 2012 with the following directions:-

"The State Respondent shall examine whether there was any panel for direct recruitment in the State Government including name of the present petitioners, in accordance with law and if really there is any panel for direct appointment, then only, the authority shall consider the appointment of the petitioners subject to available vacancy. If the petitioners have crossed their age for recruitment in Government Service, if their case is considered for appointment, the authority shall also considered the condonation of their age bar. The application is accordingly disposed of."

According to the respondent nos.1 to 23, the State respondents did not comply with the aforesaid directions. The petitioners thereafter filed the original application before the learned Tribunal which gives rise to this writ application with the following prayers:-

"(a) An order do issue directing the respondent authorities to provide employment on compassionate ground to your applicants herein within a stipulated time period under land losers category, as the respondent authorities on the contrary vide No.68-IE/2L-24/96 (Pt.) dated 13.01.2012 has already provided employment on compassionate ground to 16 nos. of applicants in connection with O.A. No.14 of 1998 under land losers category in compliance to order dated 02.09.2009 passed in O.A. No.14 of 1998, and further not to discriminate the applicants herein."

(b) An order do issue directing the respondent authorities forthwith give appointment to the applicants on compassionate ground as an land losers candidate in any civil post such as Clerk, Group-D, under the establishment without any further delay.

(c) A further order to issue directing the concerned respondent authorities to forthwith give appointment to the applicants on compassionate ground in any civil post such as Clerk, Group-D, as soon as the same is made available.

(d) An order do issue directing the concerned respondent authorities to transmit all the records before this Hon'ble Tribunal in ends of justice.

(e) Leave be granted under Rule 4 (5) (a) of the West Bengal Administrative Tribunal (Procedure) Rules, 1994 to file a single application by more than one applicant having regard to the cause of action and nature of relief prayed for, being the same."

It will not be out of context to record here that another group of land losers whose land had been acquired for Tista Barrage approached the learned Tribunal in the matter of A.C. Roy & Ors. vs. State of West Bengal & Ors. (In re:-O.A. No.14/1998). The above original application was disposed of by the learned Tribunal with the following directions:-

"we dispose of this application by directing the respondent authority to consult the District Magistrate and Collector, Jalpaiguri, regarding empanelment of the petitioners and if they are really in the panel, the authority must provide them with suitable job subject to availability of vacancy and this should be done at the earliest, because, the petitioners are already in the panel for a long time.

We also make it clear that by this time, most of the petitioners might have crossed the age required for entry in government service and having regard to the special situation of the case, if vacancy is available and if the petitioners are eligible for such appointment, their age bar may be relaxed by the authority. The application accordingly stands disposed of."

It was the contention of the respondent nos.1 to 23 before the learned Tribunal that the applicants in the aforesaid original application were appointed directly by the petitioner authority on land losers category under the scheme framed in 1997.

It is submitted by Mr. Joytosh Majumder, learned Government Pleader, High Court, Calcutta, appearing on behalf of the petitioners that on a previous occasion an original application was filed by the petitioners on the selfsame cause of action. The above original application in the matter of Tarapada Roy & 28 Ors. vs. The State of W.B. & Ors (In re:-O.A. No.969 of 2012) was disposed of by the learned Tribunal by a final order dated December 13, 2012. According to Mr. Majumder, no panel was prepared at any point of time for appointing any of the land losers for direct employment for acquisition their lands for constructing Tista Barrage. Therefore, filing of second original application on the selfsame cause of action was barred by the principle of constructive res judicata.

It is also the contention of Mr. Majumder that assuming that a mistake was committed on the part of the petitioners to give employment to the applicants in the matter of A.C. Roy & Ors. vs. State of West Bengal & Ors. (In re:-O.A. No.14/1998), the original application was filed as back as in 1998 i.e. before the notification nos.301/302/303 EMP dated August 21, 2002 came into force. According to the above notifications, candidates hailing from families who might have been uprooted from their places of residence due to acquisition of homestead land by the Government or whose main source of income was substantially affected due to loss of agricultural land as a result of the land in question being acquired by the Government for public purpose should be eligible for consideration against vacancies reserved for the exempted categories. According to him, the above notifications were given overriding effect to all previous schemes and/or notifications in this regard. As a consequence, according to Mr. Majumder, they were not entitled for employment directly under land losers capacity.

Reliance is placed by Mr. Majumder on the decisions of State of U.P. & Ors. vs. Rajkumar Sharma & Ors., reported in (2006) 3 SCC 330, Union of India vs. A.S. Gangoli & Ors., reported in (2007) 6 SCC 196, Rup Diamonds & Ors. vs. Union of India and Ors., reported in AIR 1989 SC 674 and Madan Lal & Ors. vs. State of Jammu and Kashmir and Ors., reported in AIR 1995 SC 1088 in support of his above submissions.

On the other hand it is submitted by Mr. D.N. Ray, learned advocate appearing for the respondent nos.1 to 23 that the benefit of direct employment was given to the applicants in the matter of A.C. Roy & Ors. vs. State of West Bengal & Ors. (In re:-O.A. No.14/1998), in compliance of the final order dated September 2, 2009 passed in the above matter. Therefore, similar benefit should have been extended in favour of the petitioners. So, according to Mr. Ray, there was no error or infirmity in the impugned order.

Reliance is placed by Mr. Ray on the decisions of Maharaj Krishan Bhatt & Anr. vs. State of Jammu and Kashmir & Ors., reported in (2008) 9 SCC 24, State of Karnataka & Ors. vs. C. Lalitha, reported in (2006) 2 SCC 747 and K. C. Sharma & Ors. vs. Union of India & Ors., reported in (1997) 6 SCC 721 in support of his above submissions.

We have heard the learned Counsels appearing for the respective parties at length and we have considered the facts and circumstances of this case.

It is not in dispute that the respondent nos.1 to 23 filed an original application on an earlier occasion in the matter of Tarapada Roy & 28 Ors. vs. The State of W.B. & Ors (In re:-O.A. No.969 of 2012). Admittedly the same was disposed of with a direction upon the petitioners to consider the claim of the respondent nos.1 to 23 in the manner recorded therein. No material is brought on record to show that further step was taken by the respondent nos.1 to 23 on the ground of non-compliance of the aforesaid directions and/or willful disobedience of the above order. No material is produced before the Court to show that there was a fresh cause of action to file an original application on the selfsame cause of action once again.

We find substance in the submissions made on behalf of the petitioners before us that the filing of second original application was not permissible on the selfsame cause of action. Rather the original application which gives rise to this writ application was filed by the respondent nos.1 to 23 on the selfsame cause of action after expiry of about 2 years. Therefore, the original application which gives rise to this writ application should have been dismissed on the aforesaid sole ground.

That apart a belated claim lodged afresh after introduction of a new scheme by virtue of the notification nos.301/302/303 EMP dated August 21, 2002 could not be entertained.

With regard to the decision of Maharaj Krishan Bhatt & Anr. (supra) we find that the same relates to scope to perpetuate illegality. In view of the distinguishable facts and circumstances of this case the same does not help the respondent nos.1 to 23.

Similarly, in the matter of C. Lalitha (supra) the issue was not to examine scope of initiating a proceeding taking into consideration the principle of constructive res judicata.

In the matter of K.C. Sharma & Ors. (supra) the above issue was not under consideration. Therefore, none of the aforesaid cases helps the respondent nos.1 to 23 in view of the distinguishable facts and circumstances and the issue involved in the original application.

In view of the discussions and observations made hereinabove, the order impugned to this writ application stands quashed and set aside.

This writ application is, thus, disposed of accordingly.

There will be, however, no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.

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