Uttam Kumar Mondal And Others v. State Of West Bengal And ORS.

25.04.2023 Item No.9 gd/ssd WPA/18081/2021 UTTAM KUMAR MONDAL AND OTHERS VS STATE OF WEST BENGAL AND ORS.

Mr. Arka Maiti ..for the Petitioners.

Mr. Tapan Kumar Mukherjee, Ms. Debdooti Dytta ..for the State.

The writ petitioners have prayed for issuance of a Writ in the nature of Mandamus commanding the respondent authorities to regularize their service to the posts of Constables in Kolkata Police with effect from their date of initial appointment along with other consequential reliefs.

The issues raised in this writ petition is more or less identical with the issues raised in WPA 17911 of 2021 which was decided by this Court on 15th March, 2023 by passing the following order:

" The petitioners are Ex-servicemen.

They claimed to have participated in the selection process conducted by Kolkata Police Recruitment Board sometimes in the year 2011. The petitioners were declared fit and were duly appointed in the sanctioned post of constables but on contractual basis.

The petitioners claimed that they were appointed through a selection process and have been appointed against the existing vacancies in the post of constables of Kolkata police.

Mr.

Bhattacharya, learned senior counsel assisted by Mr.

Ahammed, learned advocate refers to the notification dated February 13, 2012 to impress upon this court that the selection process was conducted for filling up vacancies of the post of constables in Kolkata police from Ex-servicemen on contractual basis for a period of one year against the existing vacancies.

Mr. Banerjee, learned senior counsel assisted by Mr.

Mukherjee, learned advocate representing the State raises a preliminary objection against entertainability of this writ petition in view Section West Bengal Administrative Tribunal Act, 1985.

He contends that the issues raised in this writ petition concerns recruitment to the civil posts and therefore, West Bengal Administrative Tribunal and not this court shall have the jurisdiction to decide the issues raised in the writ petition. He refers to the affidavit-in-opposition of the State in support of his contention on the issue of jurisdiction of this court to decide this writ petition.

Mr.

Bhattacharya, learned senior counsel submits that the issue as to the jurisdiction is to be decided before deciding the other issues in the writ petition. Because the petitioners might face a difficulty once they approach before the Tribunal, as the State might raise an objection as to the maintainability of the proposed application before the Tribunal.

For the purpose of deciding whether this court shall entertain and try this writ petition it would be relevant to take note of Section West Bengal Administrative Tribunals Act, 1985 and the same is extracted hereinbelow:

15.

Jurisdiction, powers and authority State Administrative Tribunals.

-(1) Save as otherwise expressly provided in this Act, Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority

exercisable immediately before that day by all courts (except the Supreme Court in relation to ,- a.

recruitment, and matters concerning recruitment, to any civil service of the State or to any Civil Post under the State;

b.

all service matters concerning a person (not being a person referred to in clause (a) of this sub-section or a member, a person or civilian referred to in clause (b) of sub-section (1) of section 14) appointed to any civil service of the State or any civil post under the State and pertaining to the Service of such person in connection with the affairs of the State or any local or other authority under the control of the State government or of any corporation (or society) owned or controlled by the State Government;

c.

all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation (or society) or other body as is controlled or owned by the State government, at the disposal of the State Government for such appointment."

Upon a reading of Clause (a) of Section 15(1) it appears that the Administrative Tribunal in a State shall exercise on and from the appointed day of the jurisdiction powers authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to recruitment and matters concerning recruitment to any civil service of the State or to any civil post under the State.

Upon going through the averments made in this writ petition, this Court finds that the petitioners have not challenged the selection process pursuant to which they were appointed on contractual basis.

The petitioners have claimed that since advertisements were issued for filling up the posts in question after obtaining approval and the petitioners participated in the selection process and also appeared before medical board and were

appointed against sanctioned posts after being declared fit and also that the nature job is perennial in nature, petitioners have prayed for regularisation of their services.

The petitioners, in the considered view of this Court, have laid their claim to the post of constable of Kolkata Police by virtue of being appointed against existing vacancies in the post of constables. That the post of Constable is a "Civil Post" has, however, not been disputed by the learned Counsel representing the petitioners. The principal relief claimed by the petitioners if allowed, would in effect amount to the petitioners to be the holder of civil posts and therefore the claim made by the petitioners shall undoubtedly fall within the expression "recruitment and matters concerning recruitment to any Civil Post under the State".

This Court, therefore, holds that in view of Section 15(1)(a) of the 1985 Act, the West Bengal Administrative Tribunal shall have jurisdiction to entertain, try and decide the claim of the petitioners. The jurisdiction of the High Court to decide the matter falling within the jurisdiction of the Tribunal has been excluded by Section 28 of the Act. 1985 Act also provides for transfer of suit or other proceedings pending before any Court or authorities in respect of matters falling within the jurisdiction Tribunal to Tribunal".

The aforesaid decision is squarely applicable to the case on hand.

In view thereof this court is not inclined to decide the issues raised in this writ petition as the same falls within the jurisdiction of the West Bengal Administrative Tribunal.

The learned advocate for the petitioners prays for leave to withdraw this writ petition with liberty to file an appropriate application before the West Bengal Administrative Tribunal.

Such prayer is not opposed by the learned advocate representing the State.

In view thereof, this writ petition is dismissed as withdrawn with liberty to file a fresh petition before the appropriate forum in accordance with law on the selfsame cause of action.

It is, however, made clear that other issues including the question of maintainability of the writ petition on other grounds excepting the one decided by this Court hereinbefore are left open to be decided by such forum if an approach is made in accordance with law.

There shall be no order as to costs.

(HIRANMAY BHATTACHARYYA, J.)