1. Let the affidavit of service filed in Court today be taken on record.
2. It is submitted on behalf of the appellant that costs have been deposited in terms of the order dated 27th February, 2017. Let a photocopy of the receipt issued by the State Legal Services Authority, West Bengal, handed over to the Court by the learned advocate for the appellant, be kept on record.
In Re: CAN 1408 of 2017
3. After considering the submission made by the learned advocate for the
appellant and upon perusing the application for condonation of delay, it appears
that sufficient cause has been shown to explain the delay in filing the appeal and
as such, the delay is condoned.
4. The application for condonation of delay, being CAN 1408 of 2017 is accordingly allowed.
In Re: MAT 181 of 2017
With
CAN 1409 of 2017
5. By consent of the parties, the appeal is treated as on day''s list and taken
up for consideration along with the application for stay.
6. The instant appeal and the application for stay arise out of an order dated 6th December, 2016, passed by the learned Single Judge in WP 13212 (W) of 2015 (Dhananjoy Chatterjee v. The State of West Bengal & Ors.). The appellant before us was the writ petitioner.
7. The order impugned is setout hereinbelow, in its entirety:-
Let the affidavit-of-service along with track report of the post filed
in Court today be kept with the record.
Mr. Bhattacharyya, the learned Advocate for the petitioner, had
fairly submitted that the petitioner, a group '' ''D'' employee of the
concerned Co-operative Society, had been promoted notionally as a
group '' ''C'' employee by a Board which is not competent so to do
without the leave of the Registrar of Co-operative Societies. The
petitioner also does not have the minimum qualification for holding a
group '' ''C'' post. Subsequently the nominated Board demoted him to his
former position as a group '' ''D'' employee and consequently his
remuneration has also been reduced.
Mr. Bhattacharyya is aware of the well-settled legal position and
did not wrongly try to impress upon the Court that his client has an
arguable case in this writ petition. That a person not having the
requisite qualification for appointment, cannot hold that post, is a
settled principle of law. Reference may be made to the case reported in
Md. Sartaj & Anr. ''Vs.'' State of Uttar Pradesh & Ors., reported in
(2006) 2 SCC 315 where it has been held that in view of the lack of
requisite qualification the persons holding the post did not have any
right over the same and, therefore, even a challenge to cancellation of
appointment on the ground of violation of principle of natural justice
was not sustainable.
In such view of it, I find no merit in the writ petition and the same
stands dismissed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given
to the learned Advocates for the parties on the usual undertakings.''
8. Even a bare perusal of the impugned order '' as quoted above '' reveals
that it was primarily on the basis of the stand taken by the learned advocate
for the petitioner that the writ petition was dismissed. The stand was
considered to be fair and on the basis of the well-settled legal position. In such
a fact situation, there is no scope for any interference by this Court in an Intra-
Court Mandamus Appeal.
9. The appeal, therefore, is liable to be dismissed along with the application for stay and stands accordingly dismissed.
