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TMI Blog2023 (6) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... th a writ petition preferred alleging illegalities perpetrated in a selection process conducted for appointment to the posts of teachers in primary schools and in which the Department of Urban Development and Municipal Affairs was not even arrayed as a party respondent. 2. The case has a chequered history. The writ petition being W.P.A. 9979 of 2022 was affirmed in the month of June, 2022 alleging inter alia that many candidates who did not even pass the Teacher Eligibility Test (in short, TET) were appointed as assistant teachers in several primary schools. By an order dated 13th June, 2022, the Writ Court directed CBI investigation. In an appeal preferred against the said order, the Hon'ble Division Bench delivered a judgment on 2nd September, 2022 observing inter alia that the forensic investigation directed to be handled by the CBI deserves no interference and that the Hon'ble Single Bench shall also be entitled to monitor investigation into any money trail, as considered necessary. Challenging the said judgment dated 2nd September, 2022, a Special Leave Petition (in short, SLP) was filed which was heard along with other similar matters and an order was passed on 18th October, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 2023 in the present appeal and that as such there can be no bar as regards maintainability of the present appeal. 4. He argues that as a rule, relief not founded on the pleadings should not be granted. There is no pleading to the effect that the selection process towards recruitment in any municipality was sham or that the respondents have acted mala fide. The writ petitioner also did not plead any bias or favouritism. On the basis of such pleadings the learned Judge could not have passed the order impugned. 5. He contends that the entire challenge in the writ petition was against the recruitment process of primary teachers and accordingly the writ petition was consciously filed under Group-II. The writ petition was not filed under Group-V or under Group-IX and the learned Judge had no determination to pass order in connection with any matter relating to municipality. Any order passed by the learned Court in a matter that has not been placed before the said Bench by the Hon'ble the Chief Justice is without jurisdiction and is a nullity and any order passed or action taken pursuant thereto, or in furtherance thereof would also be nullities. As such, the direction towards CBI in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the ED so that such investigation may be initiated by CBI. From such sequence it is explicit that with the sole intent was to side track the State police. In support of such contention reliance has been placed upon the judgment delivered in the case of Kunga Nima Lepcha and Others -vs- State of Sikkim and Others, reported in (2010) 4 SCC 513. 8. In the application filed by the ED allegations have been levelled against the Department of Urban Development and Municipal Affairs but the said department was not even a party to the writ petition and did not even get an opportunity to meet the allegations contained in the application filed by ED. From such sequence it is explicit that the direction for investigation to CBI in respect of municipality matters is also violative of the principles of natural justice. 9. Mr. Bandopadhyay strenuously argues that neither the accused nor the complainant or informant is entitled to choose their own investigating agency. In the present case, where ED was not even a party, an application was filed at its instance and an order was obtained from the Writ Court upon CBI to investigate in respect of recruitment in municipality which was not even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 28th April, 2023 permitted the appellant to move a petition by way of review and directed inter alia that the Court would hear the State of West Bengal afresh on the issue as to whether the investigation should be initiated by the CBI. The assignee Court, however, went on to supplement reasons to the parent order dated 21st April, 2023 and dismissed the review application without considering the grounds of review. 13. He contends had it been a case that incriminating materials were found in respect of municipality recruitment scam intermingled with the materials pertaining to teachers' appointment scam there would not have been any necessity towards registration of any second FIR and as such no reason is forthcoming as to why a fresh FIR was registered by CBI. It is well-settled that there can be no second FIR where the information concerns the same cognizable offence alleged in the first FIR. In support of such contention reliance has been placed upon the judgment delivered in the case of Arnab Ranjan Goswami -vs- Union of India and Others, reported in 2020 (14) SCC 12. 14. In course of hearing it was brought to the notice of this Court that the appellant had preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the learned Single Judge so that appropriate directions can be issued. Upon considering such facts the Court thought it fit and proper to direct the predicate agency to register FIR for investigation in municipality recruitment scam. 17. Mr. Bhattacharyya further argues that the entire scam involves appointment of teachers as well as municipality employees and as the incriminating materials pertaining to such scam are inextricably bound, such investigation cannot be compartmentalised and/or segregated in respect of school department and municipality. 18. Mr. Trivedi, learned advocate appearing for ED submits that grounds taken in the present appeal are similar to the grounds taken in the review application as well as in the SLP initially preferred by the appellant challenging the order dated 21st April, 2023. The SLP having been disposed of permitting the appellant to file a review application, the grounds taken in SLP could not have been re-agitated by the appellant in the present appeal. 19. He categorically denies that ED was not a party in the writ petition. Drawing our attention to an order dated 14th December, 2022 passed in a series of writ petitions, Mr. Trivedi submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Writ Court in exercise of its jurisdiction under Article 226 can direct CBI to investigate cognizable offences within the territory of a State even without its consent. Considering the nature of allegations, the incriminating materials on record, the gravity of the offences alleged and the involvement of very influential persons including Ministers indicated proof of inability of holding fair and impartial investigation by the State police and accordingly CBI investigation was directed and there is no infirmity in such direction. The order passed does not entail any civil consequence upon the State. Furthermore, it is an obligation of the State to act in a fair and impartial manner and to extend all cooperation so that the truth unfolds. In support of such contention reliance has been placed upon the judgments delivered in the cases of State of Maharashtra -vs- Farook Mohammed Kasim Mapkar and Others, reported in 2010(8) SCC 582 and E. Sivakumar -vs- Union of India and Others, reported in 2018(7) SCC 365. 23. In reply, Mr. Bandopadhyay submits that the judgments upon which reliance has been placed by ED and CBI are distinguishable on facts. He reiterates that ED is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to value, place and nature of the subject matter. It is well known that a slight distinction in fact or an additional fact may make a lot of difference in decision making process. The judgments delivered in the case of Sampat Lal and Others (supra) and Divine Retreat Centre -vs- State of Kerala and Others were taken into consideration by the Hon'ble Supreme Court in the SLP preferred in connection with the present writ petition and the direction upon CBI to investigate was not stalled. 27. Department of Urban Development and Municipal Affairs and School Education Department are departments under the State Government. State Government itself was impleaded as a party respondent in the appeal. Aggrieved by the order dated 21st April, 2023, State Government did not approach the Hon'ble Division Bench and filed SLP before the Hon'ble Supreme Court. ED is the sole competent authority to initiate proceedings under PMLA and in the SLPs the direction upon CBI to continue with the investigation was not interfered with. 28. The status report filed by ED along with its application being CAN 2 of 2023 in connection with WPA 9979 of 2022, paints a rather disquieting picture. The con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as municipality. Such investigation cannot be scuttled on a purported plea that the learned Court had no jurisdiction to direct CBI investigation in recruitment of municipality since it was having determination over Group-II matters. The wide language of Article 226 of the Indian Constitution has conferred upon High Courts, ample power to reach injustice wherever found. Instead of being astute to discover reasons for not applying the constitutional remedy, the same needs to be applied in every case to which, by any reasonable construction, it can be made applicable. It is our considered view overly technical arguments of procedural incongruity must be cast aside. In other words, a reticent approach by the Court for the purpose of satisfying every subtlety of interpretation ought to be discouraged. In the present case, the menace of corruption has accorded the undeserved with an unfair advantage over the deserved and deepened the societal chasm between haves and have-nots. This in turn, has precipitated widespread dejection and disillusionment among general masses. The collective suffering of those who have been wronged by the malevolent activities of morally debased indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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