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IN THE HIGH COURT AT CALCUTTA
Bhagabati Prosad Banerjee and Vidya Nand, JJ.
Arun Kumar Mondal & Ors. - Appellants
Versus
Brojo Gapal Biswas & Ors. - Respondents
Appeal from Original Order (Tender, No. 333 of 1996 (F. M. A. T. No. 333 of 1996)
Decided On : April 9, 1997
ELECTION PROCESS - SPONSORSHIP OF CANDIDATES - EMPLOYMENT EXCHANGE - CONSIDERATION OF CANDIDATES NOT SPONSORED - VALIDITY - ESTOPPEL - ABANDONMENT OF RIGHT TO APPEAR IN INTERVIEW - COURT'S JURISDICTION - SELECTION PROCESS - REGULARIZATION OF IRREGULAR SERVICE - SECTION 55, 318 - SPENCER BOWAR & TURNER ON ESTOPPEL BY REPRESENTATION - ORDER 41 RULE 27 OF THE CODE OF CIVIL PROCEDURE - AIR 1996 SCW 3979 - EXCISE SUPERINTENDENT, MALKAPATTANS V. K.B.N. VIAWASHARA RAO - SUMMARY
Fact of the Case:
The appellants, candidates sponsored by the Employment Exchange for an interview for the post of Clerk in a school, refused to appear in the interview due to the presence of a candidate whose name was not sponsored by the Exchange. The writ petitioner, who was not sponsored by the Exchange, obtained an order from the trial court directing the Selection Committee to consider his case along with the other candidates. The appellants challenged this order in an appeal filed after a delay of 234 days.
Finding of the Court:
The court held that the trial court's order directing the Selection Committee to consider the writ petitioner's case along with the other candidates was not illegal or vitiated by fraud or misstatement. The court also held that the appellants, by voluntarily abandoning their right to appear in the interview, could not challenge the validity of the judgment after a lapse of years.
Issues: 1. Whether the trial court erred in directing the Selection Committee to consider the writ petitioner's case along with the other candidates when his name was not sponsored by the Employment Exchange. 2. Whether the appellants, by voluntarily abandoning their right to appear in the interview, could challenge the validity of the judgment after a lapse of years.
Ratio Decidendi: 1. The court held that the trial court's order was not illegal or vitiated by fraud or misstatement. The court relied on the Supreme Court's decision in Excise Superintendent, Malkapatanns v. K.B.N. Viawashara Rao, which held that it is common knowledge that many candidates are unable to have their names sponsored by the Employment Exchange, and that the appropriate department should call for the names by publication in newspapers and other means, and then consider the cases of all the candidates who have applied. The court also noted that the writ petitioner's service was not authorized and that the question of regularization of his service did not arise. 2. The court held that the appellants, by voluntarily abandoning their right to appear in the interview, could not challenge the validity of the judgment after a lapse of years. The court relied on the principles of estoppel by representation, which prevent a party from altering his position to the detriment of another party who has relied on the first party's representation.
Final Decision: The court dismissed the appeal with no order as to costs.
Banerjee, J.
This is an appeal filed by the appellants who were not parties in writ application after obtaining leave from this Court. The appeal was also filed with 234 days' delay which was also condoned.
2. The fact of the case in short is that in the month of January 1995 names of twenty candidates including the appellants herein were sponsored by the local Employment Exchange for the purpose of appointment in the post of Clerk in Bankura Junior High School and thereafter the said candidates appeared in the Interview on November 29, 1995 at 11 a m. pursuant to the letters issued by the Secretary, Managing Committee of the said school. It is the case of the appellants that at the time when they appeared before the Selection Board for Interview, they found one candidate whose name was not sponsored by the Employment Exchange appeared there for Interview and for that the appellants refused to appear in the Interview and a letter to that effect was given by them to the Secretary of the Managing Committee of the school. In the letter addressed to the Secretary it was stated that they were the candidates sponsored by the Employment Exchange and as because the Managing Committee had allowed one candidate (the respondent No. 1 in this appeal) whose name was not sponsored by the Employment Exchange, they refused to appear in the interview and left the school. Consequent upon such refusal by the appellant whose names were sponsored by the Employment Exchange did not appear in the interview and only the respondent No.1 Brojo Gopal Biswas appeared and was selected in the interview and his name was forwarded to the District Inspector of School concerned for approval. Ultimately the said panel was approved and the said Brojo Gopal Biswas was given appointment in the post of Clerk. Thereafter it is stated that in December 1995 the appellants came to know that Brojo Gopal filed a writ application before this Court whereupon an order was passed on May. 7, 1995 and on the basis of the said order he was allowed to appear in the interview Against the said order of the learned trial Judge the appellants filed an application for leave to appeal along with an application for condonation of delay.
3. Mr. Bose, learned Counsel appearing for the appellants stated that the writ petitioner has obtained the order by commission of fraud in view of the fact that the writ petitioner was never appointed as a clerk of the said school, but the learned trial Judge passed an Order that since the writ petitioner was working in the said school as a clerk since 1993 his case should also be considered along with the other candidates sponsored by the Employment Exchange by the Selection Committee for the said post of clerk. This according to Mr. Bose, was a fraud in view of the fact that subsequently a Division Bench of this Court presided over by S.B. Sinha, J and S.N Chakraborty, J. (as His Lordship then was) on March 7, 1996 passed an order directing the District inspector of Schools (S.E), 24-Pargenas (North) to submit a report with regard to the matter after making independent verification and upon taking into consideration the entire materials on record placed before him by the school authorities as well as by the appellants as to whether the writ petitioner was working as a clerk in the school since 1993 or not.
4. It appears that Sri B.K. Mukherjee, the District inspector of Schools (S.E.). 24-Parganas (North) submitted his report, dated March 27, 1996 and In the report the said District Inspector of Schools stated as hereunder :".........It is not clear to this office how Sri Brojo Gopal Biswas obtained this order from the Hon'ble High Court directing him to allow appearing before the interview in the post of a clerk. The panel prepared by the school authority with Brojo Gopal Biswas was approved in terms of the order of the Hon'ble High Court........."
In the Said report it was stated that service of the writ petitioner Brojo Gopal since 1993 was not
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