Calcutta High Court (Appellete Side)
Trinath Biswas vs State Of West Bengal & Ors on 20 December, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
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Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Ms. Justice Shukla Kabir (Sinha)
W.P.S.T. No. 492 of 2009
Trinath Biswas
-VS-
State of West Bengal & Ors.
For the Petitioner : Mr. L.K. Gupta (Senior Advocate)
Mr. Kishore Datta
Mr. Tulsidas Ray
Mr. Ankur Jain
Mr. Somnath Das
For the Respondent : Mr. Apurbalal Basu (Senior Advocate)
Nos. 7, 8 & 9 Mr. Usof Ali Dewan
For the State : Ms. Chaitali Bhattacharya
Heard on : December 8, 12 , & 14 of 2011
Judgment on : December 20, 2011.
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ASHIM KUMAR BANERJEE.J:
FACTS
On August 12, 1985 petitioner was selected through Public Service Commission (hereinafter referred to as PSC) for the post of Electrical Inspector. He was a Scheduled Caste candidate. On December 26, 1990 the Assistant Secretary, Power Department issued a letter asking the petitioner to appear for Medical Examination. Ultimately, on January 9, 1991 the State issued notification appointing petitioner in the post of Electrical Inspector. on May 28, 1997 petitioner was elevated to the post of Deputy Chief Electrical Inspector. He claimed that he was appointed in such post as a Scheduled Caste candidate after seven years as the earlier Scheduled Caste candidate got such promotion in 1994. On September 15, 1998 the State published a provisional gradation list. The petitioner objected to the same as according to him he was placed as serial no.14 after three juniors including one Moni Shankar Mukherjee, the respondent no.7 herein. His objection was overruled. He did not challenge the same. According to the petitioner, during his promotion to the post of Deputy Chief Electrical Inspector, he was at sixth position in the list. There were three vacant posts, the first post being reserved for Scheduled Caste and as per Rule 10 of the West Bengal 3 Scheduled Caste and Scheduled Tribe (Reservation of Vacancy in Services and Post) Rules, 1976 the petitioner being a scheduled caste candidate should have filled up the first post. Hence, his position in the gradation list should have been four in place of six. His objection was turned down. He did not raise any protest before the appropriate forum against such refusal. On April 27, 2001 the authority published the final gradation list wherein his position remained the same. He also claimed that pursuant to the 85th amendment of Article 16(4A) the State issued a circular where Scheduled Caste and Scheduled Tribe candidates were permitted to retain their seniority in the promotional post. Petitioner contended that the private respondent could not have been given the benefit of restoration of his seniority on his promotion that was contrary to the mandate of the Constitution as amended by the 85th amendment. Challenging the non-action on the part of the authority in restoration of his seniority the petitioner approached the Tribunal, inter alia, praying for direction upon the respondent to set aside the gradation list published on September 15, 1998 after rectifying the same by placing the petitioner at serial no.4 instead of serial no.6 in the grade of Deputy Chief Electrical Inspector. He also prayed for the appropriate promotion to the next higher post. The Tribunal however disallowed such prayer and granted him liberty to apply for the same by separate proceeding 4 that gave rise to another litigation that was pending before the Tribunal as we were told.
Vide judgment and order dated April 9, 2009 the Tribunal dismissed his application by observing that there was nothing wrong in acceptance of the gradation list published by the State in 2001. Hence, this petition before us. CONTENTIONS BEFORE US Mr. L.K. Gupta, learned senior counsel appearing for the petitioner contended as follows :-
i) As per Article 16(4A) of the Constitution the State was empowered to make provision for reservation in appointment whereas Article 16(4A) that came into effect on June 17, 1995. The State became empowered to make provisions for reservation in the matter of promotion as well as consequential seniority provided the State was satisfied that a particular class was not adequately represented in the service of the State. In view of such provision the petitioner was entitled to be placed as the Deputy Electrical Inspector in the first vacant post in preference to the general candidates being the respondent no.7, 8 and9.
ii) Mukherjee, the respondent no.7 abovenamed got promotion in the post of Joint Chief Inspector on March 1, 2006 whereas the Trinath, the 5 petitioner got such promotion on September 15, 2007 in view of erroneous position in the gradation list that was contrary to Rule 5 of the Seniority Rules.
iii) The combined list prepared by the State clubbing all the posts was not permissible in law.
iv) Seniority would give right to be considered for promotion earlier than the juniors. Such right could not be by-passed and/or taken away by dint of earlier promotion of Mukherjee in the post of Joint Chief Inspector.
v) As per Rule 5, seniority of persons appointed on promotion to any post, cadre or grade would be determined from the date of joining of such post, cadre or grade. The petitioner got the post of Deputy Chief on May 28, 1997 whereas Moni Sankar got the said appointment after six years. Hence, Trinath should be placed above Moni Sankar in the gradation list to be prepared for the post of Deputy Chief Electrical Inspector. Such factor was totally ignored by the State.
Per contra, Mr. Apurbalal Basu, learned senior counsel appearing for Moni Sankar contended as follows :-
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i) Draft gradation list was published inviting objections. Once objection was submitted and overruled without challenge being thrown to such rejection before the appropriate forum the final list could not be called in question.
ii) The post of Electrical Inspector is one uniform cadre being called as Electricity Service. It was a single cadre post having separate designation working in different fields allotted to them.
iii) The post of Deputy Chief Electrical Inspector, Joint Chief Electrical Inspector and Chief Electrical Inspector and Inspector of Lift were covered by one single cadre being Electricity Service. Hence, the State was entitled to publish a combined gradation list as per the date of joining of the respective candidates.
iv) To find out whether a post is superior to other, four tests were required to be performed and if the result of at least three tests became positive the post could not be called as superior to the other.
v) Electricity Service was constituted in 1989 as appearing at page 152.
The said resolution dated April 29, 1989 was not called in question. Hence, the subsequent challenge to the gradation list prepared on such basis was not maintainable.
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vi) The prayer made in the petition before the Tribunal for a direction to cancel the final gradation list was not maintainable in absence of a challenge to the order of rejection of objection raised against the provisional gradation list.
Appearing on behalf of the State, Ms. Chaitali Bhattacharya learned counsel adopted the submissions made by Mr. Bose.
Mr. Kishore Datta, learned counsel also appearing for the petitioner while replying to the submissions of the respondent contended that the nature of duties being different to those five posts and not being governed by the same Rule, it could not be said to be a single cadre posts. He also contended that the Electrical Inspector post was guided by the Electrical Rules whereas the duty of the Lift Inspector was guided by the Lift Rules. The qualifications required for the said posts were different from each other. He further contended that specific challenge to the resolution dated April 29, 1989 was not required as the said resolution did not materially disturb the creation of post as indicated therein. He distinguished the cases cited by the respondent. PRECEDENTS CITED AT THE BAR Parties cited the following decisions :-
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i) All India Reporter 1976 Supreme Court Page-2345 (Reserve Bank of India -VS- N.C. Paliwal & Ors.)
ii) 1988 Volume-II Supreme Court Cases Page-214 (Dr. Chakradhar Paswan -VS--State of Bihar & Ors.)
iii) All India Reporter 1993 Supreme Court Page-1234 (Himachal Pradesh State Electricity Board -VS-
Somdutt Uppal & Anr.)
iv) 1995 Volume-VI Supreme Court Cases Page-684 (Union of India & Ors. -VS- Virpal Singh Chauhan & Ors.
v) 1996 Volume-II Supreme Court Cases Page-715 (Ajit Singh Januja & Ors. -VS- State of Punjab & Ors.)
vi) 1998 Volume-IV Supreme Court Cases Page-598 (S.P. Shivprasad Pipal -VS- Union of India & Ors.)
vii) 2000 Volume-I Supreme Court Cases Page-644 (Sub-
Inspector Rooplal & Anr. -VS- Lt. Governor through Chief Secretary, Delhi & Ors.
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viii) 2009 Volume-IX Supreme Court Cases Page-454 (Anil Chandra & Ors. -VS- Radha Krishna Gaur & Ors.)
ix) 2011 Volume-I Supreme Court Cases Page-467 (Suraj Bhan Meena & Anr. -VS- State of Rajasthan & Ors.) LAW ON THE SUBJECT Identical issue was gone into by two of our Division Benches in which one of us (Ashim Kumar Banerjee,J.) was a party. In the case of Ranjit Haldar (W.P.S.T. No.448 of 2004), the relevant extract are set out as under :-
"On a plain reading of Rule 5(5) it appears to us that such rule was introduced in the line of the observation of the Apex Court quoted supra. The Apex Court clearly observed that there was no directive or command either in Article 16(4) or Article 16(4A) unlike Article 16(1), article 16(4) and Article 16(4A) are in the nature of enabling provision. Following the said principle we are of the opinion that when Brambha got promotion in the post of superintending engineer in 2003 when Rule 5(5) was very much in force he regained his seniority.
Question, however, remains as to what would be the effect of 85th amendment introduced in 2004 having retrospective effect from 1995. Mr. 10 Gupta contended that but for such amendment coupled with repeal of Rule 5(1) Brambha lost his seniority and should have been placed after Ranjit as he got promotion much after Ranjit. We are unable to appreciate such logic. The Apex Court interpreted Article 16(4A)and found no mandate contained therein. Such article was interpreted as an enabling provision. The State exercising such power introduced Rule 5(5) which was in force in 2003 when Brambha got promotion. Subsequent amendment having retrospective effect, in our view, cannot take away the status of Brambha in the seniority list. If we have to accept Mr. Gupta's contention we would have to hold that upto 2004 Brambha should be considered as senior to Ranjit and after 2004 not only Brambha should be placed after Ranjit but also the benefit he got as senior to Ranjit prior to 2004 should be taken away from him. We are unable to accept such proposition. Once the seniority list was drawn as per the existing rule prevalent on the day when Brambha got promotion such benefit could not be taken away by repeal of Rule 5(5). The notification dated May 21, 2004 by which sub-rule 5 was deleted was made effective with retrospective effect from October 18, 2001. Such retrospective effect, in our view, could have any application in case of Brambha for the reasons stated above."11
In the case of Sri Keshob Chandra Dakshy (W.P.S.T. No.8 of 2011) Bench observed as follows :-
"Article 16 guarantees equality of opportunity in the matter of public employment. Clause 4 would provide that nothing in the said Article would prevent the State from making any provision for reservation of the backward class if in the opinion of the State such class is not adequately represented in the services under the State. Clause (4A) as introduced in 1995 inter alia provides that nothing in the said Article would prevent the State from making any provision for reservation of class or post in service under the State in favour of Scheduled Caste and Schuduled Tribe which, in the opinion of the State, are not adequately represented in service. As per 85th amendment, with retrospective effect from June 17, 1995 when Clause (4A) was introduced, the benefit was extended to promotion as well, along with consequential seniority. On a combined reading we find that the legislature wanted to leave it to the discretion of the State to frame Rule making reservation for the backward classes in case of recruitment as well as promotion subject to satisfaction that adequate representation is lacking.
West Bengal Government in 1976 introduced the law taking benefit of Section 16(4). While doing so they also reserved the promotional post as well which was unconstitutional prior to 85th amendment coming into force 12 in view of the decision in the case of Ajit Singh Januja. Such impediment was however removed by introduction of the 85th amendment when Caluse (4A) stood amended with retrospective effect from June 17, 1995 when original Clause (4A) was introduced. In short, as per Article 16(4) State was empowered to make provision for reservation in State service after being satisfied that representation is lacking. Such situation prevailed up to 1995 when Clause (4A) was introduced and reservation in post was allowed on same terms. That situation prevailed up to 2001 when 85th amendment introduced promotional post and with consequential seniority to come within the mischief of that provision to nullify the effect of Ajit Singh Januja. Nagaraj held 85th amendment valid with a caution that State much collect quantifiable data to avoid breach of the ceiling limit or obliterate the creamy layer or extend the reservation indefinitely." LAW ON THE SUBJECT AS DECIDED IN THE PRECEDENTS
a) RESERVE BANK OF INDIA (Supra) Paragraph 15 of this decision was relied upon by Mr. Bose to support his contention that there was no illegality in creation of different cadres for Government service as it was a matter of policy that would not attract the applicability of equality clause.
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b) DR. CHAKRADHAR PASWAN (Supra) Mr. Gupta cited this decision to support his contention that the members, although being in the same service, might not belong to the same cadre. Hierarchy of posts should be maintained although the incumbents would constitute a single service. In this decision, the Apex Court considered the reservation policy and the applicability of Article 16(4A) of the Constitution.
c) HIMACHAL PRADESH STATE ELECTRICITY BOARD (Supra) Mr. Bose relied on this decision to support his contention that the duties and responsibilities of different posts within the single cadre of Electricity Service were interchangeable. In this regard, he relied upon Section 36(1) of the Indian Electricity Act that would provide appropriate duties and responsibilities of the Electrical Inspectors working under the said Act. He also referred to the West Bengal Amendment that would provide for different duties and responsibilities performed by the Electrical Inspectors having separate designations as above. As per the West Bengal Amendment, the duty prescribed under Section 36 would cover the Chief Electrical Inspector as also other Electrical Inspectors who were all empowered to exercise the powers and perform the functions as Electrical Inspector under the said Act. 14
d) VIRPAL SINGH CHAUHAN & ORS. (Supra) & AJIT SINGH JANUJA & ORS. (Supra) Mr. Gupta cited this decision and relied upon paragraph 23, 24 and 27 that dealt with Article 16(4A) of the Constitution and its applicability. The Apex Court observed, it would be open to the State if so advised, to say that while the Rule of Reservation shall be applied and the roster followed in the matter of promotions or within a particular service, class or category, the candidate promoted earlier by virtue of Rule of Reservation/roster shall be entitled to seniority over his senior in the feeder category as and when a general candidate who was senior to meet in the Feeder categories promoted, such general candidate would regain his seniority over the reserved candidate notwithstanding the date of promotion. This was no longer a good law in view of the subsequent amendment in the Constitution. So was the position in the case of Ajit Singh Januja (Supra).
e) S.P. SHIVPRASAD PIPAL (Supra) Mr. Bose relied on paragraph 8 of this decision. In the said case the Apex Court considered a situation where at the time of merger of two organizations the cadre had five posts in Grade-A starting with Assistant Labour Commissioner in the pay scale of Rs.700/- - 1300/-, the next promotional post of Regional Labour Commissioner in the higher scale, the next 15 promotional post was Deputy Chief Labour Commissioner, then Joint Chief Labour Commissioner and finally at the top the Chief Labour Commissioner. The Apex Court observed :- "the cadres which have been merged thus carried the same pay scales, though different duties in the area of industrial relations and labour welfare". Citing this decision Mr. Bose contended that in a single cadre there might be more than one post available.
f) SUB-INSPECTOR ROOPLAL (Supra) Mr. Bose heavily relied on this decision to support his contention that there might be more than one post in a single cadre. However to find out as to whether a post is superior to the other or not four factors should be considered and if the result of three became positive the posts could not be said to be not equivalent. The relevant extract is quoted below :-
"These four factors are :
(i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned 16 above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post "not equivalent".
g) ANIL CHANDRA & ORS. (Supra) & SURAJ BHAN MEENA (Supra) In Anil Chandra the Apex Court cautioned the State that reservation policy of the State should not disturb the basic mandate of Article 16. Identical observation was made in Suraj Bhan (Supra) where all previous cases were considered and discussed.
OUR VIEW Promotion is not a matter of right. The petitioner got appropriate promotions to the higher post. He was working as Joint Chief Electrical Inspector whereas Moni Sankar was working as Chief Electrical Inspector that was a selection post. We fail to appreciate how the petitioner could feel aggrieved. He admittedly joined the service much after Moni Sankar. In the combined gradation list he was accordingly placed. He raised his objection that was negated by the authority. He accepted the result and did not challenge the same. The petitioner could not feel aggrieved as on date when he got all the promotions as per the hierarchy excepting the top one. It is not his case that he was not considered along with Moni Sankar for the post of Chief Electrical Inspector. Be that as it may, his challenge to the promotional 17 process is a subject matter of another proceeding before the Tribunal that is pending. From the notification dated August 2, 2004 handed over to Court we find that the Electrical Inspectors holding different posts were assigned different areas of work. Under the Electricity Act all were entitled to perform identical function and responsibility as per Section 36 thereof. Their decisions are not to be examined and/or reviewed by any one of them holding a higher post in the same service. They might be getting a different pay for holding of the said post that would not per se help the Court to come to a definite conclusion that the posts were not equivalent. At the end of the day we thus find that the nature of duty discharged by the petitioner as well as private respondents were same. The powers exercised by them were same subject to different territorial jurisdiction. All the said posts would require a minimum qualification of degree in Electrical Engineering. Hence, the qualification was also same. Simply because their salary was not equivalent, they could not be said to be holding different post. It is true that the Lift Inspector was guided by the West Bengal Lift and Escalator Rules. However the decision of the Lift Inspector are not amenable to review by any officers holding other four posts. In our view, the Tribunal considered the issue in a right direction that does not deserve any interference. It might be true that in view of the Article 16(4A) as amended as of date it would not permit Moni 18 Sankar to regain his seniority in case of his late promotion in the post of Deputy Chief Electrical Inspector. His original position in the combined seniority list in Electricity Service could not be called in question. What would be his position in the matter of promotion is a question to be decided in the other proceeding, we do not wish to make any comment on the same. The challenge to the combined seniority list rightly failed. RESULT W.P.S.T. 492 of 2009 fails and is hereby dismissed.
There would be no order as to costs.
DIRECTION Urgent Photostat copy will be given to the parties, if applied for. Shukla Kabir (Sinha), J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [SHUKLA KABIR (SINHA),J.]