Ct. No. 04 v. The State of West Bengal & Ors.

earlier Division Bench prima facie found, the observation made on such selection process is mere farcical and eyewash. Ultimately, the Division Bench decided to send the matter on remand so that the successful candidates, who have been appointed on the basis of the selection list prepared for such selection process, are required to be 3 heard and a leave was granted to implead them as party in the tribunal application. Pursuant to the said leave, 650 persons perceiving to be the successful candidates were impleaded as party respondents in the said tribunal application and a direction for service of notice and the copy of the petition was passed. Because of the large number of the candidates having been impleaded, the State authorities were directed to ensure the service of notice and it appears that a report was submitted in a sealed cover that such notices have been given to the added respondents through the respective departments. Indubitably, the successful candidates, who have filed the instant writ petitions before us, neither appeared before the Tribunal nor contested the said proceedings. A plea has been taken that there was no service of notice and the copy of the petition and, in fact, they had no knowledge of the proceedings having been initiated in which they have been subsequently added as party respondents, to which we do not venture to go into the above aspect after noticing the manner in which the tribunal application has been disposed of by the impugned order. The majority of the successful candidates have come up before us by filing the writ petitions either individually or collectively. We are told some are in process to file writ petition before this Court. We do not intend to go into the aforesaid aspect the moment successful candidates are aware of the proceedings and the order is challenged before us. It is not necessary to give them a separate notice as their appearance in the writ petitions would be treated as appearance in the tribunal application. Be that as it may, the aforesaid observations would assume significance the moment we find that the impugned order is liable to be quashed and set aside. We find that the Tribunal has proceeded merely on the basis of the observations made in the order of the earlier 4 Division Bench while remanding the matter and did not return independent finding after remand. The observations made by this Court cannot be regarded as conclusive when the Court finds difficulty in disposing of the matter finally and remand is ordered. Such finding cannot be projected affront and played a pivotal role in adjudication of the disputes. Such findings are for the purpose of setting aside the earlier order of the Tribunal and once this Court finds that a serious allegation as perceived, prima facie, is required to be considered and needs a deeper scrutiny, such findings cannot be a basis for disposal of the tribunal application. Had it been construed as final observation and/or finding, there was no necessity to make an open remand. From the penultimate decision of the earlier Division Bench it was an open remand and the Tribunal was directed to consider the matter afresh on merit meaning thereby what would appear from the record are required to be considered and the independent finding is to be made thereupon. Solely on the ground that the Tribunal has disposed of the tribunal application in a cryptic manner based upon the prima facie finding of the earlier Division Bench, the impugned order cannot be sustained. However, considering the plight of the private respondents, who have been litigating more than a decade and are still knocking the door of justice, we feel if the Tribunal is directed to dispose of the tribunal application within a timeframe, it would sub-serve the justice. Since the impugned order cannot be sustained in view of the findings recorded herein above, the same is quashed and set aside. The matter is remanded to the Tribunal consideration of the tribunal application afresh and shall be disposed of within two months from the date of communication of this order by recording proper reasons 5 in accordance with law. For the purpose of clarity, we made it clear that no further notice is required to be served on the writ petitioners being the added respondents and the tribunal application shall be treated ready as regards service. We further made it clear that the presence of the added respondents is necessary, as they cannot suffer an adverse order without being heard. Equally, this Court finds that the allegations, which have been made in the tribunal application, can be decided on the basis of the stand taken by the State and the private respondents may not be directed to file affidavits except to the extent that whether they have any close nexus and/or relation with the Members of the Interview Board. If any such materials are forthcoming at the behest of the State or the private respondents being the petitioners in the tribunal application, an opportunity may be given to the persons against whom the said documents are aimed at to disclose their stand and not to all and the sundry against whom no allegation has been made. However, this Court is conscious of the fact that if the Tribunal finds that the allegation of nepotism and/or favouritism to be patent and proved by convincing materials, it is free to take a decision without being swayed by any other factors. With these observations, the writ petitions are disposed of. There shall, however, be no order as to costs. (Harish Tandon, J.) (Prasenjit Biswas, J.) 6