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The State Of West Bengal & Ors. v. Shri Chirantan Sarkar & Anr.
Concise Structured Summary of the Opinion
Factual and Procedural Background
The writ petitioner (Chirantan Sarkar) had been empanelled for appointment as a Staff Officer Instructor (S.O.I.) in the Civil Defence Organisation, West Bengal. The petitioner alleged that the State had obtained Cabinet approval for creation of additional S.O.I. posts and that one of those posts was meant for him, but the respondent (the State) refused to give him appointment. On March 6, 1989, a High Court bench (G.N. Ray, J.) had directed consideration of the petitioner’s appointment on the footing that he was duly empanelled, and directed consideration within three months.
A learned single Judge, by judgment and order dated October 9, 1991, allowed the writ petition and directed that the petitioner be appointed as Staff Officer Instructor within two months of communication of that order. The State of West Bengal preferred an appeal against that judgment and applied for a stay of the trial Court’s order. The present opinion concerns the appeal and, in particular, the State's application for stay of the single Judge's judgment and order.
During proceedings, the Court repeatedly directed the State to produce relevant records showing the list of names for whom the Cabinet-created posts were intended; the State did not produce those records, asserting in part that they were not traceable. The Cabinet file notings and a precis were, however, produced and examined by the court.
Legal Issues Presented
- Whether a stay of operation of the single Judge's judgment and order dated October 9, 1991 should be granted by the appellate court.
- Whether one of the posts created by the Cabinet approval (25 posts) was intended for the writ petitioner — i.e., whether empanelment entitled the petitioner to be considered for appointment against those created posts.
- Whether the State could rely on an amended Cabinet Memo (proposed after the judgment under appeal) to change its earlier position that the created posts were for the petitioners who had been empanelled and/or selected.
Arguments of the Parties
Appellant / State (as represented by Mr. Seth, Ld. Advocate)
- Contended that the 25 posts created by the Cabinet were not intended for the writ petitioner but for other persons whose names were said to be disclosed in the affidavit-in-opposition.
- Argued that the writ petitioner had only been empanelled and was not selected for appointment because his position was below those 25 persons for whom posts were created.
- After delivery of the single Judge's judgment, the Government sought to amend the earlier Cabinet Memo to contend that the 25 posts were created only to accommodate candidates who had been selected for appointment (not those merely empanelled).
- Relied on certain appointment letters issued in 1985 (produced during proceedings) to support the State's position, though the court found these letters did not throw light on the core issue.
Respondent / Writ Petitioner
- Maintained that he had been selected/empanelled and that the State had Cabinet approval for creation of posts which included one post for him; he relied on a xerox copy of departmental notings annexed to a supplementary affidavit to show his name among those for whom posts were sanctioned.
- Relied on the earlier order dated 6.3.89 of G.N. Ray, J., which directed that his case be considered on the footing that he had been empanelled and within a specified timeframe.
- Asserted that the Cabinet notings and the precis supported his claim that the created posts were to accommodate those empanelled and selected, and that several similarly-situated candidates had obtained favourable High Court orders.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dilip Kumar Mondal v. State (C.O. No. 13774(W)/88) | Referenced as a High Court case directing appointment within a timeframe (order dated 3.2.89 referenced in the precis). | Included in the precis of related court orders to show that other petitioners had been directed to be appointed; used as part of the background demonstrating multiple favourable court orders concerning S.O.I. appointments. |
| Indu Bhusan Bera v. State (C.O. No. 690(W)/87) | Referenced as a High Court order directing suitable posting (order dated 12.4.88 referenced in the precis). | Part of the collection of High Court orders demonstrating the pattern of litigation and relief obtained by other candidates; relied upon to show pressure on the Department to create posts. |
| Alok Ranjan Pal & Chittraranjan Porel v. State (C.O. No. 952-953(W)/88) | Referenced as a case directing appointment within four weeks from 6.5.88 (noted in the precis). | Used in the precis to demonstrate that courts had directed appointments for other selected candidates, supporting the view that posts were being created to satisfy such orders. |
| Tapan Kumar Sengupta v. State (C.O. No. 5937(W)/87) | Referenced as a case directing consideration for appointment within two months (order dated 21.12.88 noted in the precis). | Included among the High Court cases that formed the context for creating additional posts and for the Department's notings about contempt proceedings and compliance difficulties. |
| Chirantan Sarkar v. State (C.O. No. 3124(W)/88; judgment dated 6.3.89 by G.N. Ray, J.) | Directs that the petitioner be considered for appointment on the footing that he had been duly empanelled, to be considered within three months from 6.3.89. | The appellate court treated this earlier direction as significant: it was not challenged by the Department and was relied upon to support the view that the petitioner was entitled to be considered/appointed; it formed a key factual/legal underpinning for refusing the stay. |
| Sukla Gomes v. State (C.O. No. 15762(W)/86) | Referenced as a case directing posting/appointment within weeks (12.4.88 referenced in the precis). | Part of the cluster of High Court orders cited in the precis to show the cumulative judicial directions leading to creation of posts and administrative action. |
| Smt. Gira Ghosh v. State (C.O. No. 16027(W)/85) | Referenced for directions to consider appointment within eight weeks from 21.11.88 and for the court having called for office records (as noted in the precis). | Used to show that records concerning selection/non-selection were not available and that related litigation had prompted the Department to consider creating posts. |
| Tarun Dutta v. State (F.M.A.T No. 2555 of 1988 arising out of C.O. No. 4184(W)/87) | Referenced in the precis indicating ongoing litigation and administrative attempts to instruct counsel to contest matters. | Part of the set of cases showing sustained litigation over S.O.I. appointments; cited in the precis and relied on by the court to understand the administrative context and reasons for creating additional posts. |
Court's Reasoning and Analysis
The appellate court heard counsel for the parties at length and considered the single Judge's findings, the documentary material placed before the trial Court and the appellate Court, and the notings and Cabinet Memo/extracts from the departmental file.
- The court noted the single Judge's factual findings that the writ petitioner was one of the persons for whom a post had been sanctioned by the Cabinet, based on the xerox copy of department notings annexed to the supplementary affidavit. The respondents had been directed to produce the list of names of those writ petitioners for whom posts were created but were unable to do so.
- The State's contention that the petitioner was only empanelled and not entitled to appointment because the 25 posts were for others was contrasted with the earlier judgment of G.N. Ray, J. (6.3.89) which had directed consideration of the petitioner’s appointment on the footing of empanelment. That earlier order had not been challenged by the department.
- The court repeatedly directed production of records showing the intended recipients of the 25 posts; the State failed to produce the relevant records and, in one affidavit, the Assistant Secretary admitted that recruitment records for candidates and empanelment were not traceable.
- The appellate court examined the notings and the Cabinet Memo. The departmental notes and the Cabinet decisions showed a history: an original proposal for 105 posts, sanction of 80 posts, selection letters issued to candidates who could not be appointed for want of posts, subsequent administrative notes and the Cabinet's approval for creation of 25 posts (with later administrative steps creating 18 posts immediately and indicating the remaining 7 to be created later). The notings also recorded concerns about contempt proceedings and administrative pressure to accommodate selected/empanelled candidates.
- The court found that the proposed amendment of the Cabinet Memo after the October 9, 1991 judgment (intended to reframe the purpose of the 25 posts as being only for candidates already selected for appointment and not for empanelled candidates) could not alter the established position in the record. Given the State's failure to produce original records, the court was not prepared to accept the retrospective change in stance.
- On that factual and documentary basis — the annexure supporting the petitioner’s position, the absence of records contrary to the petitioner's claim, the earlier G.N. Ray judgment, and the content of departmental notings and the Cabinet Memo — the court concluded that no sufficient case had been made out to grant a stay of the impugned judgment and order.
Holding and Implications
Core Ruling: The application for stay of the judgment and order dated October 9, 1991 was dismissed.
Consequences and immediate effects:
- The court refused to stay the single Judge’s order that directed appointment of the writ petitioner as Staff Officer Instructor (the single Judge's direction that the petitioner be given appointment within two months remained operative).
- The appellate court treated the appeal as included in the day's list by consent and disposed of the appeal accordingly (nothing remained to be decided in the appeal after dismissal of the stay application).
- The court dispensed with filing of the paper book and discharged the undertaking; there was no order as to costs.
The opinion does not purport to lay down a novel legal principle; rather, it resolved the procedural application for stay on the basis of the record, the earlier trial judge's findings, the departmental notings and the absence of contradicting original records by the State. No new precedent was announced beyond the disposition of the stay application and the appeal itself.
The Judgment of the Court was delivered by
Sengupta, J.:— This appeal has been preferred by the State of West Bengal against the judgment and order dated October 9, 1991 of a learned single Judge. An application has been filed by the appellant State of West Bengal, asking for stay of operation of the judgment and order under Appeal. We have heard the learned counsel appearing for the parties at length. We are of the view that no case has been made out for stay of operation of the impugned judgment and order for the reasons set out hereinafter:
In the Judgment under appeal the learned Judge observed as follows:—
The writ petitioner who has been selected for the appointment of Staff Officer Instructor under the Civil Defence Department has moved this Court under Article 226 of the Constitution of India being aggrieved by the refusal of the respondent to give him such appointment even though, according to him, the State Government has obtained the Cabinet approval regarding creation of several posts including one for the present writ petitioner.
2. On behalf of the respondents it is sought to be urged that the post that has been created by the Cabinet was not for the petitioner but for other persons whose names have been disclosed in the affidevit-in-opposition. The writ petitioner contests this claim of the respondents made in the affidavit-opposition and submits that the xerox copy of the notings of the department which he has annexed to the supplementary affidavit clearly shows that he was one of the persons who filed writ petition in this Court and one of the posts that have been sanctioned by the Cabinet was for him.
3. The learned Advocate for the respondents has been directed by this Court to produce the list of names of those writ pensioners who actually filed writ petition and for whom the said posts have been created. But, the Learned Advocate has not been able to produce such list. Therefore, the annexure to the supplementary affidavit which shows that one of the posts has been created for the present writ petitioner as he filed writ petition cannot be challenged by the respondents.
4. Therefore, I have to accept the contention of the writ petitioner that one of the posts that have been created in terms of the Cabinet decision is for giving appointment to the present writ petitioner to such posts.
5. In that view of the matter, the writ petition is allowed. The writ petitioner be given appointment to the post of Staff Officer Instructor within 2 months from the date of communication of this Judgment and Order by the concerned respondents.
6. The contention of Mr. Seth, Ld. Advocate for the state is that Learned Judge was not right in holding that one of the posts created was for the writ petitioner. It is his contention that the writ petitioner was do doubt empanelled but he was not selected for appointment as his position was below those 25 persons for whom 25 posts were created.
7. We, thereafter, specifically directed the State to produce the records to show that 25 posts which have been created are for the persons who are above the Respondent/Writ petitioner. Repeatedly we have asked for production of the records, but relevant records have not been produced on the ground that the records are not taxable.
8. One of the contentions of Mr. Seth, the learned Advocate appearing for the State is that the writ petitioner was only empanelled and the question of giving him or considering him for any appointment did not arise as those 25 posts were created only for those who had already been selected for appointment. This contention is contrary to the judgment dated 6.3.89 of G.N Ray, J. (as his Lordship then was) which was tendered on an earlier writ application moved by the respondent/writ petitioner.
9. The Learned Judge after considering the facts an circumstances of the case, held as follows:
“……In the aforesaid circumstances, the petitioner should be deemed to have complied with all the requisite for being successfully empanelled for the purpose of getting appointment to the post of Staff Officer Instructor in the Civil Defence Organisation, West Bengal. It is the case of the petitioner that on the basis of such empanelment he is entitled to get appointment.
The Court, therefore, should proceed on the footing that the petitioner is fit to be empanelled for getting an appointment to the post of staff Officer Instructor having already completed the whole time Instructors Course Training from the C.C.D.T.I, West Bengal for a period of four weeks. The respondents are, therefore, directed to consider the case of appointment. Let such consideration be made within a period of three months from today for giving appointment to the petitioner if on the strength of such empanelment he is entitled to be absorbed against the available vacancy.”
(Emphasis supplied)
10. Pursuant to the aforesaid order the case of the respondent writ petitioner was considered by the Government and the Deputy Secretary to the Government of West Bengal in his order Dated 26th May, 1989 has stated as follows:—
“The undersigned is directed to say that in C.O No. 8124(W) of 1988, the Hon'ble High Court, Calcutta has directed to consider the case of appointment of the petitioner viz. Sri Chirantan Sarkar, to the post of staff Officer Instructor in the Civil Defence Organisation on the footing that he had been duly empanelled on the 16th December, 1985 for such appointment, within a period of three months from the 6th March, 1989, the date of delivery of judgment provided that he is entitled to be absorbed against the available vacancy on the strength of such empanelment.
In pursuance of the above orders of the Courts the question of appointment of Sri Sarkar to the post of Staff Officer Instructor has duly been considered by the Govt. in Memo (C.D) Deptt. But, as there is no regular vacancy in the aforesaid post, at present. Govt. are not in a position so appoint him to such post. The question of his appointment to such post will be considered as and when a regular vacancy in the said post arises.”
(Emphasis supplied)
11. As indicated earlier, in spite of the opportunities given, Mr. Seth could not produce the records. He has, however produced certain letters of appointment issued in 1985 which not throw any light on the issue involved in this appeal nor does it support the contention that 25 persons for whom the posts are created were above the writ petitioner.
12. In the affidavit-in-reply which has been affirmed by one Parimal Chakraborty, Assistant Secretary, Home (Civil Defence) Department, Government of West Bengal it that been stated as follow:
“It is correct that the records relating to the recruitment of the 105 candidates for appointment and 395 candidates for empanelment are not traceable.”
13. Accordingly, the learned Judge rightly proceeded on the basis of the averments made before the trial Court.
14. The records containing the precis preceding the Cabinet Memo and the Cabinet Memo have been produced before us. It has been contended that there is a mistake in the Cabinet Memo and those 25 persons for whom the posts were being created did not include the petitioners. This contention has no substance at all. It is necessary for us to let out the relevant notings in the file and relevant portions have been underlined by us.
15. On 4.3.89 one Mr. H.G Roy, D.S Put up the following notes:—
“A proposal was sent by the then M.C.S to the C.M for creation of some more posts of S.O.I In the Home (C.D) Department. But the File was reported to be not available after several contacts to the C.M's office. In the circumstances, the present part File is constructed for proceeding with the urgent pending issue for creation of the balance posts of S.O.I
It is found from the D.O Letter No. 421.DCD dated 14.8.86 of S.C Mazumdar, the then Director of Civil Defence addressed to Shri N. Krishnamurthi, Home Secretary Government of West Bengal that there were 30 candidates who were given selection letters for appointment but could not be appointed for want of posts. It is further recorded in the said D.O letter that sanction was accorded to the creation of 80 new posts of S.O.I's based on population growth against the proposed number of 105.
It is also found that the Finance Department accorded concurrence to the creation of 80 new posts of S.O.I's vide their U.C No. Group D2/1057 dated 14.8.1985
This Department renews its proposal for creation of the balance 25 posts of S.O.I's in the context of non-availability of post for the candidates who were gives selection letters for appointment and who are now suing the Government in contempt petitions for non-compliance of High Court's orders regarding provision of appointment to the selected candidates lodged with the letters of selection by the Director of Civil Director, West Bengal.
Action for according sanction to creation of the balance 25 new posts of S.O.I's may be taken up as expeditiously as possible as the officers of the Department from Secretary, Home Department; Deputy Secretary, Home (C.D) Department to Director of Civil Defence and Controller of Civil Defence in the Districts will be hauled in no time for contempt of court by the concerned Benches of the Calcutta High Court.”
Sd/- H.G Roy
“We may endorse the proposal and obtain the approval of Finance Department.
Sd/- Illegible
3.5.89
Sd/- Jyoti Basu
6.5.89”
“Finance Deptt. may kindly agree.”
Sd/- Illegible
11.5.89
“F.S may please have the proposal re-examined and put up.
Sd/- Illegible
21.5.89
“the Admn. Deptt. is requested to furnish us with the file, in which the creation of 80 nos posts of Staff Officer Instructor sanctioned previously with the concurrence of the Finance Deptt. for examination of the present proposal.
Sd/- B.K Basu
26.5.89”
To Home (C.D) Deptt.
Sd/- Illegible
1.6.89
S.O.E.D”
“With regard to the above query of the Finance Deptt. this is too state that the non-availability of the file and subsequent construction of this file for that reason has been mentioned nepal in the opening paragraph.
Sd/- Illegible
3.6.89”
‘It appears that 17 persons out of 25 had gone to the Hon'ble High Court for their appointment in the post of Staff Officer Instructors. The Hon'ble High Court has given different Judgment on the said court cases. It also appears that Home (C.D) Deptt. have faced contempt proceedings.
In view of the position stated above it will be better if the Home (C.D) Deptt. obtain opinion of the L.d L.R in this matter after submitting a precis of the case to him and return the file back to this Department.”
Sd/- A.K Roy
29.11.89”
“Finance Department's notes at bottom prepage may be seen with reference to those of this Department's at page 1.2.N.S. ante.
The reasons for the proposed creation of 25 posts of S.O.I in the Civil Defence Organisation have been clearly explained in the notes at pages 1.2.N.S. ante. It will appear therefrom that there was a proposal for creation of 105 posts of S.O.I's on population growth basis. But sanction was accorded to the creation of 80 posts out of 105. It will further appear that 30 candidates who were given letters of selection for appointment to the post of S.O.I could not be given appointment for want of vacancies. Out of these candidates 18 have already moved the Calcutta High Court for their appointment as S.O.I and the judgment of the High Court has gone in their favour. The remaining candidates have sent memorials to the Prime Minister of India Chief Minister & M.O.S-in Charge of Civil Defence, West Bengal for their appointment as S.O.I Home Secretary, Dy. Secretary, Home (Civil Defence) Department. Director, Civil Defence, West Bengal and District Controllers of Civil Defence have been facing contempt proceedings in the different Benches of the High Court.
In the circumstances, it has been decided with the approval of M.O.S-in-Charge of Civil Defence and Chief Minister that 25 more posts of S.O.I should be created in the Civil Defence Organisation. It is, therefore, not clear from Finance Department's notes on what points we should refer the file to Ld. L.R, West Bengal when the matter has already been approved by M.O.S/C.M The Finance Department may be requested to kindly clarify. The file may go to Finance Deptt. after Home Secy., has kindly seen.”
Sd/- Illegible
20.12.89”
“Perused the departmental notes and the precis. No specific point on which L.R, is to give opinion or advice has been raised. In this position it is difficult to give any opinion or advice generally. It can only be said that the court's orders which ore binding upon the Govt. as referred to in she precis have got to be complied with.”
Sd/- S.N Mallick,
Joint L.R West Bengal
16.2.90
“In view of what has been stated be the Ld. L.R in his above notes, the Fin. Deptt. may kindly agree to the creation of 25 posts of S.O.I as proposed earlier in this Deptt.'s notes at page 1-2.N.S. ante, endorsed also by the Hon'ble Chief Minister.
Sd/- S.K Das
22.2.90
“C.M's and F.M's order on page 2 of notes within may be seen with the precis below.
2. In compliance with different orders of the Hon'ble High Court, Home (C.D) Deptt. leave proposed for creation of 25 posts of staff-Officer instructor in the prescribed scale of pay. Ld. L.R has also endorsed the proposal, vide page 5 of noses within.”
3. It appears that the no of petitioners is 18 and not 25. We may, therefore, agree to the creation of 18 posts of S.O.I (only to accommodate the petitioners and not others) subject to the approval of the Cabinet.”
Sd/- S.K Chakrabarti
8.4.90
Sd/- S.N Roy
12.4.90
Sd/- Asim Kumar Dasgupta
29.5.90
Home (Civil Defence) Deptt.
“Finance Deptt's notes at top prepage may be seen with reference to this Deptt's at p. 4.N.S., ante.
A proposal for creation of 105 posts of Staff Officer Instructor on population growth basis, was under consideration of this Deptt. in consultation with the Finance Deptt. some time in 1985. A Selection Committee selected candidates for filling up of the vacancies in the posts of S.O.I then in existence, as well as the 105 posts of S.O.I proposed to be creation. Subsequently, sanction of 80 posts of S.O.I out of the proposed 105 posts was accorded to as a result 25 candidates who were selected for appointment and who underwent training in the C.C.D.T.I could not be given appointment.
Out of these 25 candidates, 18 moved the Calcutta High Court, and judgment of the different benches of the High Court has gone in their favour. In order to accommodate those candidates the Finance Deptt. was moved for creation of 25 posts in the civil Defence Orgn. But the Fin. Deptt. have agreed to the creation of 18 posts only for those who moved the High Court. There is every possibility of the remaining 7 candidates' moving the High Court when 18 who moved the High Court would be given appointment.
Hence, 25 posts of S.O.I should be created in the Civil Defence Orgn. for accommodating the 25 candidates. C.M and M.O.S-in-charge have already approved the said creation.
A draft Cabinet Memo is placed below for approval of N.O.s/in charge/C.M for taking the matter to the Cabinet.
Sd/- Illegible
20.6.90
“Cabinet-B. Chowdhury
29.6.90
Cabinet Decisions: No. 2406 dated 7.8.90
The Cabinet have approved this Deptt's proposal for creation of 25 posts of S.O.I for the Civil Defence Organisation, West Bengal.
Necessary orders creating eighteen posts of S.O.I should be issued at once for complying with the Court's order-order creating the remaining 7 posts should be issued later on. A draft is put up for approval. The cabinet has given approval. Orders may issue after H.S has kindly seen.
Sd/- Illegible
20.8.90”
“O.I No. 5992-3992/1 (2) dated 27.8.90
Notes and orders from page 7.N.S. ante may be ???. Orders creating eighteen posts of S.O.I as mentioned at ‘X’ have since been issued.”
16. We may now issue offer of appointment “to those in respect of whom no case is pending in the Calcutta High Court”.
17. Thereafter, 3 candidates were given appointment in the post of S.O.I
18. After the judgment under appeal was delivered on October 9, 1991 and during the pendency of this appeal, the Government sought to amend the earlier Cabinet Memo. After referring to the notings in the file, in particulor the notings dated April/May, 1990 signed by Mr. S.K Chakraborty, Mr. S.N Roy and Mr. Asim Kumar Dasgupta, the following notings were, inter alia, made:
“Shri Chirantan Sarkar who was selected for empanelment and whose name appears among the said 18 candidates moved the Calcutta High Court and the High Court, after hearing, directed to give Shri Sarkar appointment as S.O.I within two months from 9.10.91, the date of the orders. It has been decided to prefer an appeal against the judgment in the larger bench.”
19. In fact, the Government wanted to change their stand by the amendment of the Cabinet Memo to enable them to take the plea that 25 posts of Staff Officer instructor “were created for accommodation of the candidates who were selected for appointment and not to any candidate who was selected for empanelment.” In our view, the proposed amendment of the Cabinet Memo cannot alter the position. Only if the records were produced the actual facts could have been as certained. We are not prepared to hold that all the officers of the Government proceeded on erroneous assumption. In any view, the judgment and order dated 6th March, 1989 passed by G.N Ray, J. (as he then was) has not been challenged by the department.
20. After considering the aforesaid judgment, the Government made categorical assurance that as soon as vacancy would arise the writ petitioner would be accommodated. Our attention has been drawn to a precis which, according to the petitioner, forms part of the file which is unsociable. The contention of the learned counsel for the State is that no such precis was ever made. Since the records have not been produced it is very difficult to say whether the precis which has been annexed to the affidavit-in-opposition is not the precis which was in the file. In this precis it has been mentioned as follows:
PRECIS
“There were a proposal for creation of 105 posts of Staff Officer Instructor on population growth basis. A selection committee consisting of the then Director, Civil Defence, West Bengal, the then Deputy Secretary, Home (Civil Defence) Department and the present Commandant, C.C.D.T.I selected candidates for filling up of the vacancies in the post of S.O.I, then in existence, and the 105 posts of S.O.I proposed to be created. The candidates who were selected for employment for the post of S.O.I were informed that their appointment in the said posts would be subject to their passing the prescribed training in the C.C.D.T.I as well as availability of vacancy. However, sanction of 80 posts of S.O.I out of the 105 was accorded to subsequently. As a result, 18 candidates who were empanelled for the aforesaid appointment and who underwent training in the C.C.D.T.I but could not be given appointment as such due to non-sanction of the remaining 25 posts moved the Calcutta High Court for their appointment and judgment of the defferent benches of the said High Court has gone in their favour. The court cases, in brief, are as follows:
1. Dilip Kumar Mondal v. State C.O No. 13774(W)/88 Shri Mahitosh Majumdar (J) (File No. CDS (3) 5C/5S/88) The Court directed the respondents to give the petitioners appointment within 3 months from 3.2.89, the date of the judgment. A variation petition has been moved through Shri Sankar Mukherjee, Advocate. The matter is pending hearing. 2. Indu Bhusan Bera v. State C.O No. 690(W)/87 Shri Mahitosh Majumdar (J) (CDS (3) 5C/5/87) The Court directed on 12.4.88 to give the petitioner a suitable posting. Contempt petition is apprehended any time. 3. Alok Ranjan Pal & Chittraranjan Porel v. State C.O No. 952-953(W)/88 Shri Dillp Kumar Basu(J) (File No. CDS (3)/5C-6/88) The Court directed to give the petitioners appointment within four weeks from State 6.5.88 The petitioners have filed contempt petitions against the Director, Civil Defence and Secy. Home (C.D) Deptt. A/O has been filed through Shri Sankar Mukherjee, Advocate.
4. Shri Tapan Kumar Sengupta v. State C.O No. 5937(W)/87 Shri Mahitosh Majumdar (J) File No. CDS (3)/5C-10/87 The court directed on 21.12.88 to consider the case of the appointment of the petitioners within a period of two months. In compliance with the court's order, the petitioner has been informed, after giving him a personal hearing that his appointment as S.O.I will be considered after a regular vacancy in the said post occurs. 5. Chirantan Sarkar v. State C.O No. 3124(W)/88 G.N Ray (J.) File No. DS (3)/5C-34/88) The Court directed on 6.3.88 to consider the case of appointment of the petitioner on the footing that he had been duly empanelled for such appointment, within three months from 6.3.88 In compliance with the court's order, the petitioner has been informed, after giving him a personal hearing, that his appointment will be considered as soon as a regular vacancy in the post of S.O.I occurs. 6. Sukla Gomes v. State C.O No. 15762(W)/86 Mahitosh Majumdar, J. (CDS(I)/IC-2/87) The Court directed to issue order of posting of the petitioner and S.O.I within three weeks from 12.4.88, the date of the judgment. Appeal preferred in the larger beach is pending heating. 7. Smt. Gira Ghosh v. State C.O No. 16027(W)/85 Shri Mahitosh Majumder, (J). (File No. CDS(1)/5C-1/86) Smt. Ghosh moved the Court for her non-selection in the posts of S.O.I The court directed to consider the case of the petitioner for appointment to the post of S.O.I within 8 weeks from 21.11.88 the date of judgment. The case of Smt. Ghosh was duly considered in compliance with the court's orders and the was informed that the Government did not find any reason to reverse the decision of the selection committee which did not consider her fit for the post. Smt. Ghosh has again moved the court. The Court has called for the office records relating to her non-selection. The State Advocate Mr. Samarendra Nath Dutta has been apprised that no records of her non-selection in the post of S.O.I are available in the office of the Director, Civil Defence.
8. Tarun Dutta v. State F.M.A.T No. 2555 of 1988 (arising out of C.O No. 4184(W) of 1987) Shri G.N Ray and Shri Pabitra K. Banerjee, JJ. (File No. CDS(3)/5C-7/87). A letter was sent to the office of the Ld. L.R.W.B on 30.8.88 with the request to change an advocate to contest the matter. A reminder was also sent on 7.12.88 But nothing has been received from the office as to the engagement of an advocate for the State.”
21. Excepting the above-noted 18 petitioners, 8 others candidates who were selected for empanelment for the post of S.O.I but have not been given such appointment have made representation to the Prime Minister of India, Chief Minister, West Bengal and M.O.S-in-Charge of Civil Defence for their appointment. They are likely to move the Court any time.
22. In view of the above court cases/representation, the Finance Department who was moved for agreeing to the creation of 25 posts of S.O.I In the Civil Defence Organisation have requested to obtain the opinion of the Ld. L.R West Bengal in the matter.
23. Hence, Ld. L.R West Bengal may be requested to let us have his considered opinion in the matter.
24. This precis not only supports the contention of the writ petitioner but it is also in conformity with the nothings in the file and the Cabinet Memo which we have already extracted.
25. Having regard to the aforesaid facts and circumstances of the case, we are of the view that the question of granting any stay against the order passed by the learned. Trial Judge does not arise at all.
26. For the reasons aforesaid, this application is dismissed.
27. In view of the foregoing order passed in the application, Mr. Seth has very fairly stated that nothing remains to be decided in the Appeal. Accordingly, the Appeal is treated as included in the Day's list by consent and disposed of in terms of the foregoing order.
28. Filing of the Paper Book is dispensed with. Undertaking is discharged.
29. There will, however, be no order as to costs.
30. All parties concerned to act on a signed copy of this dictated order on the usual undertaking.
31. Sen, J.: I agree.
32. A.N.S
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