OD-1 & 2 IN THE HIGH COURT AT CALCUTTA [ACT]al Writ Jurisdiction ORIGINAL SIDE [CASE NUMBER] SATADAL SAHA GHOSH Versus THE STATE OF WEST BENGAL & ORS. & [CASE NUMBER] SEEMA NANDI Versus THE STATE OF WEST BENGAL & ORS. BEFORE: The Hon'ble JUSTICE [ENTITY] Date : July 25, 2018. Appearance: Mr. [ENTITY], Adv. Ms. [ENTITY], Adv. for the petitioners Mr. [ENTITY], Adv. Mr. [ENTITY], Adv. for State in WP22/2018 Mr. [ENTITY], Adv. Ms. [ENTITY], Adv. for State in WP23/2018 Mr. [ENTITY], Adv. for the respondent 5 & 6.
Mr. [ENTITY], Adv.
Mr. [ENTITY], Adv.
for the respondent 7.
Heard on : 18.6.18, 26.6.18, 16.7.18, 23.7.18 & 25.7.18.
(Judgement delivered in open Court) The Court : The above two writ petitions are filed by two Assistant Teachers employed with [ENTITY]. In both the writ petitions, the factual matrix is similar and, accordingly, the same are being disposed of by way of a single order.
2. The relevant facts leading to these writ petitions are as follows:-
a) The petitioners were appointed in the school as Assistant Teachers in the year 2002 and 2000 respectively.
b) The District Inspector converted the relevant sanctioned post in the school from Secondary to Higher Secondary in the year 2011 and 2009 respectively.
c) Order of approval for appointment of the petitioners were issued in the year 2011 and 2009 respectively. In both these orders of appointment to permanent post, the notional benefit and the financial benefit were given from the date of conversion of that particular post.
d) Subsequently, it came to the knowledge of the writ petitioners that one Miss [ENTITY] who was junior to them had got a similar benefit of permanent appointment upon the post having been sanctioned in the year 2015. Miss [ENTITY]'s order of appointment, however, was slightly different. She was given the financial benefit from the date of conversion; however, she was given the notional benefit from an earlier date, that is, the date of retirement of the earlier teacher due to which the post became vacant.
e) Both the writ petitioners made representations to the concerned authority in the year 2016 which was not considered by the State authorities and, accordingly, the writ petitions were filed by the writ petitioners wherein order was passed by this Court directing the District Inspector of Schools (SE), Kolkata-2 to consider their representations and pass a reasoned order.
f) Subsequently, by orders dated June 7, 2017 bearing Memo no.
891/1(3)/Law and Memo no. 893/1(3)/Law, the District Inspector of Schools (SE) rejected the prayers made by the writ petitioners for granting notional benefit to the writ petitioners from the date of the post becoming vacant.
g) The above two orders are under challenge in the two writ petitions.
3. When the writ petitions were heard, it was very evident that the rights of Miss [ENTITY] would also be impacted and, accordingly, the petitioners were granted leave to add Miss [ENTITY] as a party to the writ petitions. Counsel appearing on behalf of Miss [ENTITY] has also submitted that in no proceedings, the order passed in favour of his client has ever been challenged and, accordingly, this Writ Court should not issue any mandamus against the said order of approval of appointment.
4. Mr. [ENTITY], appearing on behalf of the petitioners submits that the order passed by the District Inspector of Schools is terse and does not deal with the aspect in relation to the discrimination meted out to the petitioners vis vis the benefit given to Miss [ENTITY]. He submits that the ordering portion in both the orders does not in any manner deal with his main contention of discrimination and, accordingly, the orders should be set aside. He submits that the report filed by the respondent authorities at this stage cannot be taken into consideration, as the same would only add to the reasons given in the impugned order. He relies on the Supreme Court judgment passed by the [ACT]al Bench in [ENTITY] & Anr. -v- Chief Election Commissioner, New Delhi & Ors., reported in (1978) 1 SCC 405 that clearly states that actions are to be judged by the reasons stated while making the order and supplementary reasons in the shape of affidavits are to be excluded.
5. The eloquent words of Justice [ENTITY] speaking for himself, Chief Justice Beg and Justice [ENTITY] are delineated at paragraph 8 of the judgment which is produced below:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of [ENTITY], J. in [ENTITY]:
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
6. Mr. [ENTITY] further submitted that non-consideration of the plea of discrimination by the DI of Schools resulted in violation of the principles of natural justice. He submitted that the orders necessarily required to deal with the aspect of violation of [SECTION] vis-a-vis the writ petitioners. He submitted the manner in which the said ground was not dealt with tantamounts to violation of the principles of natural justice and therefore the said orders need to be quashed by this Writ Court.
7. Mr. [ENTITY], appearing on behalf of the added respondent relied upon a judgment of the Supreme Court in [ENTITY] & Ors. V. The Spl. Land Acquisition Officer reported in [PRECEDENT] wherein the principle of negative equality has been enunciated. The relevant portion of the said judgment is delineated below:
"8. It is a settled legal proposition that [SECTION] of the [ACT] is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/ decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, [SECTION] cannot be stretched too far for otherwise it would make functioning of administration impossible."
8. Mr. [ENTITY], appearing on behalf of the State also relies on a judgment of the Supreme Court in [ENTITY] Grahnirman Sahakari Sanstha Maryadit, Indore v. President, Indore Development Authority reported in (2006) 2 SCC 604 wherein the Supreme Court clearly stated that a party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong in his favour. The relevant paragraph is set out below:
"8. So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellant. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of [SECTION] of the [ACT] cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality. (See [PRECEDENT] Co.)."
9. The Counsel appearing on behalf of the State have filed reports in both the matters stating categorically that the approval of an appointment granted in favour of Miss [ENTITY] wherein notional benefit had been granted from the date of vacancy of the post was a mistake and the same cannot be used as a ground for granting relief to the writ petitioners. It is in this reference that the judgment in [ENTITY] (supra) has been cited by the State authorities.
10. I have considered the submissions made on behalf of the parties and also perused the materials on record.
11. At the very outset, I would like to state that the reference of [ENTITY] (supra) by the Counsel appearing on behalf of the petitioners is very well placed and the State cannot add to the reasons by way of reports that were not part and parcel of the impugned orders.
12. However, it would not be correct of the writ court to simpliciter quash orders when the writ petitioner cannot show before this Court as to what statutory right of his has been violated. In the present case, apart from the obvious discrimination that has taken place, the writ petitioner has not been able to show as to how he has a right to get the notional benefit from the date of creation of the vacancy. The explanation given in the impugned orders that the benefit can only flow subsequent to the conversion of post from non-sanctioned to sanctioned post is the correct position in law. The stand taken by the District Inspector of Schools in the order that before conversion of the post the approval of the appointment cannot be accorded and no notional benefit can be given to the petitioners is the correct legal position.
13. In the present case, the judgements of the Supreme Court in [ENTITY] (supra) and [ENTITY] (supra) are applicable and the benefit flowing from an earlier wrong cannot be granted to the writ petitioner. On the other hand, if I was to follow the decision of the Supreme Court in [ENTITY] and quash the impugned orders, the same would be an exercise in futility as the petitioner's right as sought in the writ petition is not based on any legal principle or any statute/rules. Furthermore, I have found that the reasons stated in the orders of the D.I. of Schools is the correct proposition of law that disentitles the petitioners from any relief.
14. I now deal with the submission of Mr. [ENTITY] with regard to violation of principles of natural justice. The Supreme Court in [PRECEDENT] has in great detail discussed the narrowing of the earlier concept of the violation of principles of natural justice and stated that the law with regard to the principles of natural justice has undergone a sea change. The relevant portion of the said judgment is delineated below:
"7. It was argued on behalf of the appellant that the termination of the contract between the parties was legally bad not only because the principles of natural justice requiring a fair hearing to the appellant were not complied with but also because there was no real basis for the respondent Authority to hold that the appellant had committed any breach of the terms and conditions of the contract warranting its termination. We find no merit in either one of the contentions. The reasons are not far to see.
8. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the tribunal and the rules and regulations under which it functions. A court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are legion. We may refer to only some of the decisions on the subject which should in our opinion suffice."
15. In view of the above Supreme Court judgment, I am of the view that simpliciter non-consideration of a ground by a quasi judicial authority would not make the order bad, if the same is otherwise supported by reasons. In the present case, I do not find any prejudice having been caused to the writ petitioner by the non-consideration of the ground of discrimination, as the orders otherwise contain cogent reasons in support of the decision.
16. In view of the fact that no legally enforceable right of the writ petitioners has been violated by the State authorities, I am of the view that no Writ of Mandamus would lie in this case. However, it is clear from the facts that the added respondent, who had joined subsequent to the writ petitioners, has been given a benefit in an irregular and illegal manner and continues to enjoy the same (Mr. [ENTITY], Counsel on behalf of the added respondent has, however, submitted that the added respondent has actually not received any benefits in spite of the said order).
17. Furthermore, as the State respondents have submitted that the order passed in favour of the added respondent is a mistake, I direct the State respondents to act in accordance with law and correct the said mistake.
18. Accordingly, the petitions bearing No. [CASE NUMBER] and [CASE NUMBER] are dismissed without any order as to costs.
19. Since no affidavit-in-oppositions were called upon to be filed by the respondents, the allegations made in the writ petition as against them are deemed to have been not admitted by them.
20. All parties to act as per the website copy of the order. Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
([ENTITY], J.)