Calcutta High Court (Appellete Side)
Anirban Bhattacharjee & Ors vs The State Of West Bengal & Ors on 13 March, 2020
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:-
The Hon'ble Justice Dipankar Datta
And
The Hon'ble Justice Madhumati Mitra
C.A.N. 5940 OF 2016
with
C.A.N. 1670 OF 2017
with
C.A.N. 1851 of 2017
in
W.P.S.T. 101 of 2016
Anirban Bhattacharjee & Ors.
Versus
The State of West Bengal & Ors.
For the Petitioners : Mr. Amitava Ghosh, Adv.,
Mr. Navojit Mukherjee, Adv.,
Mr. Snehashish Mukherjee, Adv.,
Mr. Sourav Chatterjee, Adv.
For the Respondents : Mr. Tapan Kr. Mukherjee, Sr. Adv.,
Mr. Rabindra Narayan Dutta, Adv.,
Mr. Somnath Naskar, Adv.
Heard on : February 10, 2020
Judgment on : March 13, 2020.
DIPANKAR DATTA, J.:
1. A judgment and order dated 26th February, 2016 passed by the West Bengal Administrative Tribunal (hereinafter the Tribunal) dismissing an original application preferred by the petitioners [O.A. 345 of 2015] is under challenge in this writ petition. While admitting the writ petition, a coordinate bench on 8th June, 2016 ordered that "(a)ny promotions granted in the cadre of Architects shall abide by the result of this writ petition". An application for modification [C.A.N. 5940 of 2016] having been filed by the petitioners, the same coordinate bench by its order dated 24th June, 2016 directed that "(n)o promotional post of Architects shall be filled in by direct recruitment during the pendency of this application. In the event such posts have already been filled in, such recruitments shall abide by the result of this petition". C.A.N. 1670 of 2017 was filed by the petitioners seeking an order for early disposal of the writ petition. This was followed by C.A.N. 1851 of 2017, at the instance of the State, seeking variation/modification/clarification of the order dated 24th June, 2016 to the effect that the State may be permitted to fill up the posts of Architect according to the Rules and that any appointment shall abide by the decision on the writ petition. Such an application was filed by the State apprehending lapse of the budgetary allocation. There is one other application [C.A.N. 11532 of 2019] at the instance of the petitioners, whereby injunction has been prayed for restraining the respondents from proceeding with an advertisement bearing no.20/2019 issued by the Public Service Commission, West Bengal, (hereafter, "the Commission") for direct recruitment of 5 Nos. of eligible candidates in the post of Superintending Architects.
2. By our order dated 5th February, 2020, we had directed that we would hear C.A.N. 5940 of 2016 and C.A.N. 1851 of 2017 together with the writ petition. The parties have accordingly been heard on 10th February, 2020. Since C.A.N. 11532 of 2019 is also pending, we would now proceed to dispose of all the pending interim applications together with the writ petition by this common judgment and order.
3. In the original application filed before the Tribunal, the petitioners had questioned the purported action of the respondents, in particular, the Commission, in issuing an advertisement bearing no. 2/2015 for the purpose of filling up the posts of 'Architect' in the West Bengal General Service under the Public Works Department (hereafter, "the Department"), as opposed to granting promotion to the petitioners to the said post from the feeder post of Assistant Architect (erstwhile nomenclature of 'Junior Assistant Architect') under the Chief Government Architect & ex-officio Chief Engineer of the Department, by violating the prevalent guidelines. Subsequently, by filing a Supplementary Affidavit, the petitioners had also challenged the Chief Government Architect, Superintending Architect, Architect and Assistant Architect Recruitment Rules, 2014 (hereafter, "the 2014 Rules") framed by the Department.
4. The facts giving rise to the original application, as evident on a reading thereof, are these:
a. The petitioners are employed as Assistant Architects (erstwhile 'Junior Assistant Architects') in the Department upon attaining success in a selection process conducted by the Commission in pursuance of an advertisement bearing no. 10/ 2009. They came to be appointed on probation as Junior Assistant Architects on diverse dates, i.e., between 20th December, 2010 and 7th February, 2011. After completion of the probationary period of service, the Deputy Secretary-I of the Department issued a notification bearing No. 34E dated 14th February, 2014 confirming the petitioners' services as Junior Assistant Architects under the Department.
b. The Deputy Secretary-I of the Department, in the meanwhile, had issued a memo bearing no. 1024-E/e-1/2M-11/10 dated 14th May, 2010 addressed to the Chief Engineer, Municipal Engineering Directorate, wherein the promotional hierarchy in the cadre of the Architectural wing under the Department was stated. In terms thereof, the post of Senior Assistant Architect was to be filled up by way of promotion of the Junior Assistant Architect (presently, Assistant Architect) while the post of Senior Architect was to be filled up by promotion of the Senior Assistant Architect. For facility of reference, the said memo is reproduced below:
"Sub : Promotional hierarchical set up in the Cadre of Architectural Wing under the P.W.Department.
The undersigned is directed to refer to his Memo No. ME/15/1E-62/95 dated 06.04.2010 on the subject noted above and to say that there are 5(five) kinds of posts in the Architectural Wing under the Public Works Department such as:-
(i) Chief Government Architect & Ex-Officio Chief Engineer, P.W.D. (Pay Scale : Rs.16400-20000/-)
(ii) Addl. Chief Govt. Architect, P.W.D. (Pay Scale : Rs. 14300-18300/-)
(iii) Senior Architect, P.W.D. (Pay Scale : Rs. 12000-18000/-)
(iv) Senior Assistant Architect, P.W.D. (Pay Scale : Rs. 10000-15525/-)
(v) Junior Assistant Architect, P.W.D. (Pay Scale : Rs. 8000-13500/-)
- Out of which, the first four kinds of posts are promotional posts.
The Post of Chief Govt. Architect & Ex-Officio Chief Engineer, P.W.D. is filled up by promotion of the Addl. Chief Govt. Architect, P.W.D. Similarly, the Post of Addl. Chief Govt. Architect, P.W.D. is filled up by promotion of the Senior Architect, P.W.D., the post of Senior Architect, P.W.D. is filled up by promotion of the Senior Asstt. Architect, P.W.D. and the post of Senior Asstt. Architect, P.W.D. being confirmed in the said post.
But the post of Junior Asstt. Architect, P.W.D. is filled up by recruitment directly through the Public Service Commission, West Bengal.
However the undersigned is directed to furnish the copy of the Recruitment Rules of the Junior Asstt. Architect, P.W.D. for their disposal."
c. However, it was the petitioners' contention that the Commission issued the aforesaid advertisement bearing no. 2/2015 inviting applications for direct recruitment to the post of Architect in violation of the Rules (prevalent at the point of time when the petitioners were recruited) and followed by the Department in affairs concerning the mode of recruitment to the stated post, thereby hindering their promotional aspects. The qualifications prior to the issuance of advertisement bearing no. 2/2015 read as follows:
"Post of the Government Architect-
A candidate must not be more than 40 years of age. He must possess a degree in Architecture of a recognized University or Associateship of the Royal Institute of British Architects or recognized equivalent qualifications with three years' experience in an Architect's office or with the Architectural Department of some Public Body."
In contradistinction to the above qualifications, the new qualifications apropos the advertisement bearing no. 2/2015 issued by the Commission reads as under:
B. ARCHITECT IN THE WEST BENGAL GENERAL SERVICE UNDER PUBLIC WORKS DEPARTMENT - TEN (TWO RESERVED FOR S.C., ONE FOR S.T., ONE FOR O.B.C. CATEGORY 'A' AND ONE FOR O.B.C. CATEGORY 'B' CANDIDATES) PAY: Rs. ******* QUALIFICATIONS: Essential: (i) A Degree in Architecture from a recognized University or equivalent qualification in terms of Section 14 of the Architects Act 1972; (ii) The candidate shall be registered with the Council of Architecture in terms of the Architects Act 1972 &
(iii) 6 years experience in Architecture in a reputed Architect's Office or with the Architectural Department of Government or Semi Government Organisation.
AGE: Not more than 38 years on 01.01.2015 d. The new Rules framed under the proviso to Article 309, namely, the 2014 Rules published in the Kolkata Gazette on 16th September, 2014 came into force on the same day as it was notified. Therein certain modifications were made to the eligibility factors for promotion to the post of Architect (erstwhile 'Senior Assistant Architect'), a post which was in the previous mode of recruitment filled up by promotion only. The relevant portion of the 2014 Rules is laid down hereunder:
(III) Name of the post: Architect
(a) Method of recruitment :
i. by promotion in consultation with the Commission from the post of Assistant Architect having 6 (six) years of service in the post of Assistant Architect; failing which ii. by selection (direct recruitment) through the Commission;
(b) Qualification for direct recruitment.
i. A degree in Architecture from a recognized University or equivalent qualifications in terms of section 14 of the Architects Act, 1972;
ii. The candidate shall be registered with the Council of Architecture in terms of the Architects Act, 1972; and iii. 6 (six) years experience in Architecture in a reputed Architect's Office or with the Architectural Department of Government or Semi Government Organisation;
(c) Age for direct recruitment: Not more than 38 years on the 1st day of January of the year of advertisement:
Provided that the upper age may be relaxed for the candidate belonging to the categories of Scheduled Castes, Scheduled Tribes and Other Backward Classes as per Government order for the time being in force;
e. It was the grievance of the petitioners that the new condition of eligibility stipulating 6 (six) years of service, under clause (III)(a), adversely affects their prospects of promotion. As per the new condition, all the petitioners stand ineligible for consideration for promotion to the post of Architect as none of them has completed the qualifying service period of 6 years for being considered for such promotion to the post of Architect. f. Consequently, after the petitioners had purportedly attained promotional eligibility, the legal permissibility of the State to effect such change by bringing into effect the 2014 Rules was challenged before the Tribunal by filing a Supplementary Affidavit.
5. On such position of facts and law, the short question that arose for consideration of the Tribunal was, whether the petitioners were entitled to be considered for promotion to the post of 'Architect' (erstwhile, 'Senior Assistant Architect') based on what was prevailing prior to the implementation of the 2014 Rules, which came into effect on 16th September, 2014. The Tribunal held against the petitioners, giving rise to this writ petition.
6. In the process of deciding the original application, the Tribunal noted and applied the decision of the Supreme Court reported in (2003) 2 SCC 632 [P.U. Joshi & Ors. v. Accountant General, Hyderabad & Others]. It has been held there as follows:
"10. *** Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
7. While assailing the judgment of the Tribunal, the argument advanced by Mr. Ghosh, learned counsel for the petitioners, is that prior to 2014, there were no specific recruitment rules for the post of Government Architect and in the absence thereof, the said post was conventionally filled up by way of promotion of Junior Assistant Architects (presently, 'Assistant Architects'). The provisions contained in the Public Works Department Code with Appendices (hereafter, "the PWD Code"), i.e., Chapter III (West Bengal General Service) pertaining to "A. (Public Works Directorate)" and clause
(d) thereof, extracted supra in paragraph 4(c), were referred to in this context. The plain and simple argument is that the petitioners' promotion should be guided not by the 2014 Rules but by the contents of memo bearing no. 1024-E/e-1/2M-11/10 dated 14th May, 2010 read with the PWD Code or else an accrued right of the petitioners would stand abrogated.
8. We did not consider it necessary to call upon Mr. Mukherjee, learned Additional Government Pleader, to respond.
9. Post the restructuring of the Architectural Wing of the Department coupled with enhancement of posts across different levels, the 2014 Rules were framed under the proviso to Article 309 of the Constitution of India, inclusive of the post of Architect. It is also a matter of record that prior to such a restructuring exercise, the number of sanctioned posts for the post of Architect stood at 4 (four) whereas post such restructuring, the number had been increased to 12 (twelve), wherein 10 posts were mandated to be filled up by direct recruitment in the exigencies of public service.
10.On a perusal of the representation addressed to the Principal Secretary of the Department by the Secretary of the Association of State P.W.D. Architects, bearing memo no. ASPA/W.B./2014/002 dated 27th May 2014, it appears to be the claim that the petitioners attained eligibility for promotion between 20th December, 2013 and 07th February, 2014 (both dates inclusive), corresponding to their first appointment as Junior Assistant Architect, upon completion of 3 (three) years' service. Stating that "promotion is now a Fundamental Right", it was claimed that enforcement of the 2014 Rules would reduce the motivation level of the eligible employees to zero thereby adversely affecting the working of the organization. It was, accordingly, conveyed that changing the recruitment/promotion rules for the Architectural Wing may not adversely affect the promotional avenue as well as career prospects of the Architect cadre of the Department.
11.Therefore, the question that emerges before us for an answer is, could the right of the petitioners to promotion, which they claim had attained the character of an accrued right, be taken away by the State respondents by the framing and subsequent implementation of the 2014 Rules, under the proviso to Article 309 of the Constitution of India?
12.We are afraid, the premise on which the claim of the petitioners was based is erroneous. Article 16 of the Constitution does not guarantee promotion as a Fundamental Right. An employee may, at the highest, claim consideration of his candidature in accordance with the Recruitment/Promotion Rules in vogue on the date his case comes up for consideration as his Fundamental Right.
13.Based on the statement of law in P.U. Joshi (supra), it is unambiguously clear that the State is constitutionally empowered to frame such rules or amend any existing body of rules, as the case may be, to regulate the conditions of service in relation to cadres or categories of service, even if it affects the existing condition of service, at the relevant point of time. However, what the Court needs to be mindful of is the caveat that such power to frame such rules or amend existing rules should not take away any 'accrued right' of existing employees serving on such affected posts, as the new rules come into effect.
14.In this case, the petitioners have aired a specific grievance stating that their accrued right to promotion has been seriously jeopardized with the coming into force of the 2014 Rules. Necessarily, the next aspect which the Court must probe is if the 'right to promotion' can at all be considered as an accrued right.
15.The Tribunal has already explored this facet and has placed its reliance on the decision of the Supreme Court reported in (2009) 12 SCC 62 [High Court of Delhi and Another v. A.K. Mahajan and Others]. A similar grievance was put forth before the Supreme Court that the effect of an amended rule was withdrawal of the benefit of consideration, which was available to the respondent prior to amendment of the concerned rule. We consider it appropriate to read the relevant paragraphs of A. K. Mahajan (supra):
"21. Now, we find no discussion in the whole judgment of the High Court as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to Writ Petitioner 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential.
22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of the employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee.
23. In the present case, it is not as if Writ Petitioner 8 concerned was altogether denied the benefit of consideration for ever. He was undoubtedly considered later on and was promoted also. Therefore, it is incorrect to say that the amendment had the effect of denying him the benefit of consideration, which was available to him. He did continue with that benefit and was actually benefited under the same. This is apart from the fact that the concept of consideration is an uncertain concept. One can understand a pension amount which is already decided or the promotion which is already granted or the seniority which is already conferred upon or the substantive appointment which is already made. If the amendment has the effect of denying this crystallised promotion, seniority or substantive appointment, then certainly the amendment could be held as arbitrary. But that has not happened in the present case. Here, no promotion was already granted or seniority already fixed, or any substantive appointment already made which were affected by the retrospective amendment. The observations in abovequoted para 24 of Rangadhamaiah case [(1997) 6 SCC 623] have to be understood in that sense."
16. Yet, on a more extensive precedential analysis of this point of law post the decision in A. K. Mahajan (supra), what emerges is the consistency in the law laid down by the Supreme Court. The principle has been reiterated in several decisions, the more notable ones being (2011) 6 SCC 725 [Deepak Agarwal v. State of Uttar Pradesh] and (2017) 3 SCC 646 [State of Tripura v. Nikhil Ranjan Chakraborty].
17. The relevant paragraph from Nikhil Ranjan Chakraborty (supra) reads as follows:
"9. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, 'rules in force on the date' the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. ***"
18. In view of the clear enunciation of law on the subject by the Supreme Court, we are not persuaded to agree with the petitioners that they acquired a right to be considered for promotion in terms of the contents of the memo dated May 14, 2010 read with the PWD Code. On the contrary, wisdom having dawned late on the Department, it proceeded to frame the 2014 Rules under Article 309 of the Constitution and such rules have provided for factors of eligibility for promotional appointment in respect of existing and future vacancies. The vacancies existing on the date the process of recruitment was set in motion have to be filled up on the basis of the rules in force, i.e., the 2014 Rules, and not on the basis of what was there when the vacancies actually arose. The 2014 Rules cannot be held to have taken away or abridged the right of the petitioners to be considered for promotion in terms of the earlier policy.
19. We find no merit in the writ petition which, accordingly, stands dismissed.
Interim order passed on the writ petition shall stand vacated forthwith There shall be no order as to costs.
20. The interim applications, referred to in paragraph 2 (supra), shall stand disposed of accordingly.
(MADHUMATI MITRA, J.) (DIPANKAR DATTA, J.)