STATE OF WEST BENGAL AND ORS. Vs. TUHIN SULTAN MALLICK AND ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 210 of 2017, Judgment Date: Jan 06, 2017

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                    CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.210 OF 2017
                   (Arising out of SLP(C)No.11551 of 2015


STATE OF WEST BENGAL & ORS.                                ... APPELLANT(S)

                                      VS.

TUHIN SULTAN MALLICK & ORS.                               ... RESPONDENT(S)


                               J U D G M E N T

KURIAN,J.


1.          Leave granted.
2.          The respondents have complained  of  non-implementation,  rather
violation of  order  dated  26th  June,  2009  passed  by  the  West  Bengal
Administrative Tribunal.  The issue pertains to  appointment to the post  of
Lower Division Assistant.  In the order referred to above, it  was  held  as
follows:
       “So  assessing  the  aforesaid  undisputed  position  in  these   two
applications (being No.OA-3092 of 2007 as also OA-3811  of  2008),  we  find
that these 6 petitioners all are qualified to be considered for  appointment
to the aforesaid  posts.   The  aforesaid  position  however  has  not  been
disputed from the side of the State respondents.

            Consequently, we direct the concerned State Respondent to  issue
orders for appointment in accordance with law for  the  aforesaid  posts  in
favour of these 6 petitioners within a period of 15 days from  the  date  of
communication of this order after observing all necessary formalities.”


3.          The operative portion  of  the  order,  no   doubt,  contains  a
direction for appointment after observing the required formalities. But  the
same has to be understood in the background of the earlier  finding  by  the
Tribunal that the writ petitioners-respondents herein had been qualified  to
be considered for  appointment  as  Lower  Division  Assistants.   In  other
words, the Tribunal in the order only intended  that  the  writ  petitioners
had become eligible for consideration  for  appointment  as  Lower  Division
Assistants. It has come out on facts that their  turn  had  not  arisen  and
before their turn  matured,  the  vacancies  had  already  been  filled  up.
Therefore, there was no scope for any  appointment.   It  appears  that  the
High Court missed this crucial aspect and  thus  went  wrong  in  issuing  a
direction for appointment.

4.          In view of the above, we set aside the impugned judgment of  the
High Court. The appeal is accordingly allowed.
             Pending  application,  if  any,  also   stands   disposed   of.

                                                    ......................J.
                                                             [KURIAN JOSEPH]


                                                   .......................J.
                                                            [A.M.KHANWILKAR]
New Delhi;
January 6, 2017.