Bhaskar Bhattacharya, J. - (1.) When the present writ application come up for hearing before us, an important question, whether this particular Bench can at all take up the matter for hearing, has cropped up.
(2.) In order to appreciate the aforesaid question, it will be pertinent to refer to, the following admitted facts:- (i) The present petitioner being dissatisfied with an order passed by the respondents authority granting promotion to the private respondent, in supersession of the petitioner to the post of Statistical Assistant moved a writ application before this Court thereby giving rise to C.R. No. 4784 (W) of 1980. The said writ application ultimately came up for hearing before Justice U.C. Banerjee, (as His Lordship than was), when His Lordship disposed of the matter by merely giving liberty to the petitioner to make fresh representation before the respondent authority and the respondent authority was directed to consider such representation of the petitioner within a specified period. (ii) Pursuant to the aforesaid liberty given by Justice U.C. Banerjee, the petitioner made representation before the appropriate authority and at the same time also preferred a regular appeal before a Division Bench of this Court being FMAT No. 3344 of 1984. (iii) Ultimately, the petitioner did not press the aforesaid FMAT No. 3344 of 1984 and the Division Bench consisting of Justice Shyamal Kumar Sen and Justice S.R. Misra (as Their Lordships then were) dismissed the said appeal as withdrawn with liberty to challenge the findings of the respondent authority made on the representation of the petitioner pursuant to the order passed by Justice U.C. Banerjee. It may be mentioned here that during the pendency of the paid appeal, the representation filed by the petitioner had already been disposed of thereby holding that the grievances of the petitioner were without any subst nce and the promotion of the respondent No. 3 superseding the petitioner was justified. (iv) The petitioner thereafter filed an application under Section 19 of the Administrative Tribunal Act, 1985 being O.A. No. 81/A&N/1995 before he learned Central Administrative Tribunal thereby claiming the following reliefs:- "(a) For an order quashing and or setting aside the impugned order of promotions dated 22.2.1979 as also 20.3.1991 made Annexures - "A-1" & "A-15" respectively to this application as also Memo dated 29.5.1979, 23.8.1979, 20.11.1979, 29.4.1980 and 16.11.1984 made Annexures - "A-8" Co. "A-10" "A-1" & "A-14" respectively to this application. (b) For an order directing the respondents to give regular promotion to the applicant to the post of Statistical Assistant as also in the post of Investigator from the date respondent No. 4 has been promoted to the said posts and further directing them to give all consequential service benefit to the applicant. (c) For an order directing the respondents to produce records relating to the case at the time of hearing of the application. (d) For any order or further order or orders as to this Hon'ble Tribunal may deem fit and proper." (v) The learned Tribunal by an order dated September 19, 2000 dismissed the said application under Section 19 of the Administrative Tribunal Act thereby approving the initial promotion of the private respondent to the post of Statistical Assistant as well as the promotion to the subsequent post of Investigator. (vi) Being dissatisfied, the petitioner preferred the instant writ application being WPCT(AN) No. 157 of 2001 which ultimately came up for hearing before a Division Bench composed of the Ajoy Nath Ray and Asit Kumar Bisi, JJ. (hereinafter referred to as the "First Division Bench") and Their Lordships by an order dated June 11, 2002 dismissed the said writ application thereby holding that even if the Departmental Promotion Committee made an error in selecting the private respondent instead of the writ petitioner, such an error could not necessarily be corrected by a Writ Court. The error, Their Lordships proceeded, if be one of jurisdiction, illegality or unconstitutionality, could enable the Court to intervene. Their Lordships further held that an error of assessment could not be corrected in writs. Under such circumstances, Their Lordships were of the view that the writ petitioner was not entitled to any relief. It may not be out of place to mention here that in the said order the First Division Bench specifically took note of the contention of the petitioner that "in all probability all relevant matters were never placed before the Departmental Promotion Committee which considered the case of promotion" by referring to page 57 of the writ application. (vii) Instead of moving the higher forum against such order, the petitioner preferred a review application before the next Circuit Bench on July 1, 2002, whereupon another Division Bench consisting of Samaresh Banerjea and N.C. Sil, JJ. (hereinafter mentioned as the 2nd Division Bench) issued a Rule on July 2, 2002 making it returnable after seven days i.e. July 9, 2002. (viii) On the returnable day, i.e. July 9, 2002 Mr. Saroop, the learned Advocate for the respondents appeared and disclosed before the Court that as per departmental Rule the relevant records had been destroyed. The Second Division Bench, however, directed the respondents to file affidavit-in-opposition within July 11, 2002. Petitioner was directed to give reply by July 12, 2002. The Bench fixed the matter on July 15, 2002 at the top of the list. (ix) It appears from the record that on July 15, 2002 when the said application for review of the order dated June 11, 2002 passed by the First Division Bench came up for hearing, Mr. Jayapal, a learned Advocate of this Court prayed for an adjournment before Their Lordships on the ground that Mr. R.S. Saroop, learned Govt. Pleader was unable to come to Court because of indisposition. Their Lordships, however, were not inclined to adjourn the hearing for the aforesaid reason on the ground that in spite of specific directions earlier given by Court, no affidavit had been filed nor did the respondents ask for the extension of time for filing their affidavit. Such being the position, Their Lordships proceeded on the footing that the respondents were not inclined to file any affidavit and thereafter, hearing the learned Advocate for the petitioner, allowed the application for review by recalling the order dated June 11, 2002 passed by the First Division Bench. The reason for recalling the order dated June 11, 2002 is setforth below:- "As pointed out hereinbefore we have already found that in the impugned judgment and order the main case of the writ petitioner made out by him that his case was not even considered by the Departmental promotion committee as no material was produced before the Departmental promotion committee, but the Division Bench never considered the case even while disposing of the writ petition on different grounds. While considering the case of the petitioner, the Division Bench arrived at its finding without examining the records of the Departmental promotion committee, although the earlier Division Bench in the same writ proceedings passed a specific order for production of records of the Departmental promotion committee. Such judgment therefore, certainly suffers from patent error on the face of the record. We are, therefore, of the view that for the reasons stated above, the said judgment and order dated 11.6.2002 passed in WPCT No. 157 of 2001 is liable to be reviewed. The application therefore stands allowed. The order dated 11.6.2002 is hereby recalled." (x) After recording such order, Their Lordships entered into the merit of the writ application and made certain observations on merit regarding the conduct of the respondents and were of the view that for such conduct of the respondents; the Court might be inclined to draw adverse inference for non-production of records. Ultimately, Their Lordships observed that since the adjournment of the hearing of application was prayed on the ground of illness of Mr. Saroop, Their Lordships were not inclined to dispose of the writ application on that day and to record Their Lordships' "conclusion on such fact". Their Lordships further held that "it is now for the next Circuit to decide finally whether because of the stand of the respondents whether the petitioner will be without any remedy or the entire selection should be set aside. with a direction for holding fresh departmental promotion committee". It may be mentioned here that all the aforesaid observations were made in a single order while allowing the application for review and not by recording separate order.
(3.) At last, the matter has come up before the present Bench pursuant to the direction given by the Second Division Bench.;