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2020 Supreme(Cal) 228
IN THE HIGH COURT OF CALCUTTA
Sambuddha Chakrabarti, Hiranmay Bhattacharyya, JJ.
Secretary, Bairgachi High School - Appellant
Versus
State Of West Bengal And Others - Respondents
M.A.T. No. 1332 of 2019; C.A.N. No. 10554 of 2019, 12158 of 2019
Decided On : 21-02-2020
Indranil Roy, Advocate, Sunit Kumar Roy, Advocate, Kamalesh Bhattacharjee, Advocate, Bidhan Biswas, Advocate
The main legal point established in the judgment is that a mandamus cannot be automatically issued based on deemed admission, and the court must exercise caution and provide reasons when passing judgment on deemed admission.
Headnote:
Mandamus - Deemed Admission - Code of Civil Procedure - Order 8 Rule 5, Order 8 Rule 10, Order 12 Rule 6 - The court examined the provisions of the Code of Civil Procedure regarding the power of the Court to pass a decree on deemed admission and its applicability to a proceeding under Article 226 of the Constitution of India. The court held that merely on deemed admission, a mandamus cannot be automatically issued by a Writ Court exercising the powers of judicial review against a decision of an administrative authority.
Fact of the Case:
The writ petitioner joined Bairgachi High School as Headmaster based on a recommendation but faced resistance from the District Inspector and the school authorities. The writ petitioner filed a writ petition seeking mandamus to rescind and cancel the rejection of his appointment and to direct the authorities to allow him to rejoin as the headmaster and to pay the salary and allowances.
Finding of the Court:
The court found that the learned single judge erred in law by issuing a Mandamus based on deemed admission and that the judgment and order were set aside. The writ petition was remanded to the learned Single Judge for a fresh decision, and the appellant and other respondents were granted the opportunity to file affidavit-in-opposition.
Issues: The issues included the maintainability of the writ petition, the application of the Code of Civil Procedure provisions to a proceeding under Article 226 of the Constitution of India, and the discretion of the court in passing judgment on deemed admission.
Ratio Decidendi: The court held that a mandamus cannot be automatically issued based on deemed admission, and the court must be cautious in exercising the power of passing judgment on deemed admission. The court also emphasized the importance of giving reasons for passing a judgment, especially in cases where the court is satisfied that there is no fact which needs to be proved due to deemed admission.
Final Decision: The instant appeal was allowed without any order as to costs, and the connected applications were disposed of accordingly. The writ petition was remanded to the learned Single Judge for a fresh decision, and the issue of maintainability was kept open to be decided by the learned Single Judge.
JUDGMENT
Hiranmay Bhattacharyya, J. - At the time of hearing of the application for stay it appeared to us that the instant appeal can be disposed of only on a point of law and as such we invited the learned Advocates for the respective parties to address us on the merits of the appeal by treating the appeal as on the day's list with the consent of the parties.
2. The short question which falls for determination in the instant appeal is whether on deemed admission a mandamus can automatically be issued by a Writ Court exercising the powers of judicial review against a decision of an administrative authority.
3. In every action, the party against whom an action is brought has a right of defence. Such right of defence is recognised by the statutes. They also regulate the mode and time within which the statement of defence is to be presented. The time limit for filing of the statement of defence have also been fixed by the statutes. The courts may also upon being satisfied with the sufficiency of the cause shown by a party permit a party to present the statement of defence after expiry of the time limit by way of extension of time fixed by the statute. A party has a right to defend himself in an action, but the exercise of such right depends upon the choice of such party. A party to a litigation may choose either to file a statement of defence or not. A court cannot compel a party to file his statement of defence. In case a party against whom an action is brought does not appear or even after appearance chooses not to file a statement of defence, the Court is not denuded of its power to decide the fate of the proceeding ex parte on the basis of materials available on record.
4. The Secretary and Headmaster of Bairgachi High School being respondent nos. 4 and 5 in the writ petition being WP No. 37406 (W) of 2013 have preferred the instant appeal challenging the order dated August 8, 2019 passed by a Learned Single Judge of this court whereby it was directed that a judgment be entered in favour of the writ petitioner on admission in terms of prayer (a), (b) and (c) of the writ petition. The order impugned in the writ petition rejecting the prayer for approval of the writ petitioner's service was also quashed on admission. Direction was also passed to issue release order in favour of the writ petitioner and the respondent authorities were directed to accord approval to the appointment of the writ petitioner as Headmaster of Bairgachi High School. The salary and the other allowances of the writ petitioner was also directed to be paid within the time limit as stipulated in the said order.
5. The facts as stated in the writ petition which are relevant for the purpose of disposal of the instant appeal is summarised hereunder as follows.
6. Pursuant to the recommendation made by the concerned School Service Commission, the writ petitioner/respondent no. 7 joined Bairgachi High School as Headmaster. Since the concerned District Inspector of Schools did not take any steps for according approval of appointment of the writ petitioner as Headmaster of the said school, he filed a writ petition being WP No. 16708 (W) of 2010 before this court. The said writ petition was disposed of by an order dated August 13, 2010 directing the concerned District Inspector to act in terms of the said order. The District Inspector of Schools rejected his prayer to accord approval as Headmaster of the said school which was communicated to him vide a letter being Memo No. 1329/1(4) SE/G dated September 27, 2010 being Annexure P7 to the writ petition. The secretary of the said school by a letter dated October 12, 2010 being Annexure P11 to the writ petition, informed the writ petitioner that the letter of his appointment as headmaster of the said school has been withdrawn in view of the order passed by the concerned District Inspector. He challenged the order dated September 27, 2010 passed by the concerned District Inspector by filing a writ petition being WP No.
