P.L.Kumar And ANR v. Union Of India And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/41/2023 P.L.Kumar and another Vs.
The Union of India and others Mr. Rajinder Singh ... for the petitioners Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents September 26, 2023 [SR] Item No.8 This is a second round of litigation concerning the similar and identical issues wherein the claim of the petitioners that they should be permitted to be considered for recruitment to the post of a Driver upon relaxation of the qualification as well as the age has been decided. Admittedly, the petitioners were appointed as Mazdoor with effect from 01.07.1995 and 21.07.1993 respectively. Since the date of their appointment in such post, they were assigned the duties of a driver and discharging such duties continuously and uninterruptedly till date.
Subsequently, the department initiated a proceeding for filling up the sanctioned posts of the drivers earmarking the educational as well as maximum age for participation which kept the petitioners outside the purview thereof and, therefore, a representation was made to the Lieutenant Governor for taking an appropriate decision in this regard. Indubitably the Lieutenant Governor in exercise of power conferred under the statutory Rules, granted not only in relation to educational qualification but also the age so that the petitioners can be brought within the zone of consideration. The aforesaid decision to grant relaxation was taken on 31st January, 2013.
Subsequently a tribunal application was filed being OA/75/2014 by the petitioners along with four other persons claiming a relief in the form of a direction upon the
respondents authorities to consider the case of the petitioners in terms of the extant Rules prevalent at the relevant of point of time and also issue a call letter for participation in the selection process for the post of Heavy Vehicle Driver or Light Motor Vehicle Driver as their age and the qualification has already been relaxed by the Lieutenant Governor on 31.01.2013.
The tribunal proceeded to decide the said application and ultimately disposed of the same with the following direction:- "In the fitness of things the respondents are directed to issue a reasoned and speaking order dealing with the aforesaid within two months. In case it is found that the approval of the Lieutenant Governor for the applicant, as aforesaid, has not been withdrawn, to proceed with the selection of the applicants, in accordance with law." The aforesaid direction was passed by the tribunal comprehending the facts discern in the course of the hearing of the said tribunal application which would be evident from paragraph 8 of the said order quoted herein below: "8. Having discerned as aforesaid we fail to comprehend the following:
(i) If the Lt. Governor had already approved I age education qualification for the present applicants in exercise of his power under Rule 5 of RR, where after the department had asked the mazdoors to apply, what was the necessity of initiating a fresh action by the Law Department.
(ii) Whether after initiation of the action by Law Department the Lt. Governor retracted from is earlier approval in case of the 8 departmental Mazdoor including present applicants, as no supporting documents have been placed on record.
(iii) Why relaxation was sought for from the Forest Department when Lt. Governor had already approved relaxation, when in terms of RR for the post none other than the
Lt. Governor could relax the conditions prescribed.
(iv) When it is evident that he 8 departmental candidates were already approved for in age educational qualification, why they were treated as per with those candidates who were included later without prior approval from Lt.
Governor."
It is evident from the aforesaid observation that the tribunal could not comprehend that the moment the Lieutenant Governor has approved the relaxation of age and educational qualification in exercise of power conferred under Rule 5 of the Recruitment Rules it is ununderstandable that what was the necessity of initiating a fresh action for recruitment by the Law Department. The tribunal further held that whether after initiation of an action by the Law Department, the Lieutenant Governor retracted from his earlier approval in case of eight departmental mazdoors including the present applicants as no supporting documents had been placed on record. Such being the foundation of the ultimate direction passed by the tribunal, the matter was placed before the authority for taking a final decision. It appears that by an order dated 31.08.
2015, the Lieutenant Governor withdrew the relaxation granted to the eight departmental candidates and directed the Department of Environment and Forests to finalise the recruitment process strictly in terms of a notification or Recruitment Rules applicable to the post of Heavy Motor Vehicle Driver and Staff Card Driver. The said order dated 31.08.2015 was challenged in OA/147/2015 and by an order dated 06.10.2015, the tribunal dismissed the said application taking note of the fact that if the Lieutenant Governor has been empowered under the Rule 5 of the Recruitment Rules to grant relaxation, the power to withdraw such relaxation is also inbuilt and inhered into it and if the same has been withdrawn, such policy decision cannot be interfered in the judicial forum.
The order of the tribunal was assailed by the petitioner in WPCT/26/2016 before this Court. But the said writ petition was dismissed declining to interfere with the order of the tribunal. The matter travelled to the Apex Court by filing a Special Leave Petition (Civil) Diary No.
22.09.2017 was dismissed with following observations:
"Delay condoned.
The special leave petition is dismissed, without prejudice to the liberty available to the petitioner, if so advised, to challenge the order dated 31.08.2015 on its own merits.
Pending application(s), if any, shall stand disposed of." Since the Apex Court dismissed the SLP without prejudice to the liberty available to the petitioner, if so advised, to challenge the order dated 31.08.2015, the petitioner approached the Tribunal and filed the tribunal application which on dismissal is assailed in the instant writ petition.
The entire gamut of the dispute rest upon such liberty having granted to the petitioner and to ascertain the intention behind the incorporation of such liberty. As indicated above,the order dated 31.08.2015 was challenged on merit that the Lieutenant Governor cannot withdraw the relaxation already granted and both the tribunal and this Court held that such power having exercised in a reasonable and rational manner cannot be interfered with. It admits no ambiguity to say that the moment the statute provides a power to grant relief, the power not to grant relief is inhered and inbuilt into the said provision. We further noticed from the observations made in the judgment dated 07.04.
2015 passed in a first tribunal application wherein the tribunal succinctly observed in paragraph 8 thereof which is quoted hereinabove, that the point was kept open with regard to the initiation of action by the Law Department in inviting the attention of the Lieutenant Governor and to take a decision of withdrawing the earlier approval in case of eight departmental mazdoors. Obviously the authorities were in contemplation of withdrawing the relaxation earlier granted and therefore, subsequent to the said order, the Lieutenant Governor withdrew the relaxation which was granted to certain candidates with categorical observation to continue with the recruitment process strictly in terms of the statutory Rules.
The moment the Special Leave Petition is dismissed in declining to interfere with the order of the Tribunal as well as the High Court , the said order attained finality though
may not construed having mergered with the order of the dismissal of the Special Leave Petition.
The liberty does not appear to have been made to reopen the entire issue which was set at rest in a proceeding before the Tribunal as well as the High Court. The liberty granted by the Supreme Court has to be construed in a meaningful manner that in the event any remedy to challenge the said order dated 31.08.2015 is available in the law and if so advised, must be exhausted by the petitioner but it cannot be construed to mean that the matter which has already decided by the Tribunal and the High Court shall be reopened and to be decided afresh. Had it been the intention of the Apex Court, the Special Leave Petition filed by the petitioner could not have been dismissed. We thus do not find that the Tribunal committed any error in dismissing the tribunal application. The writ petition is thus dismissed. No order as to costs.
Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.
( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )