Calcutta High Court (Appellete Side)
In Re: Sudip Saha vs The State Of West Bengal & Ors on 13 June, 2017
Author: Nishita Mhatre
Bench: Nishita Mhatre
1
13.06.17
Item No.07
Court No.01
Krishnendu
W.P.S.T. No. 197 of 2016
In re: An application under Article 226 read with Article 227 of the Constitution of
India filed on 06.10.2016;
And
In re: Sudip Saha
- Versus -
The State of West Bengal & Ors.
Mr. Ashoke Kumar Banerjee
Mr. Sarajit Sen
Mr. Tapas Singha Roy
For the Petitioner
Mrs. Chaitali Bhattacharyya
Mrs. Sukla Das Chandra
For the State
Mr. Anindya Lahiri
Mr. Ravi Kumar Dubey
Mr. Samrat Dey Pal
For the Respondent Nos.
9 & 10 The instant application has been preferred, inter alia, praying for leave to challenge an order dated 14th February, 2014, passed by the learned West Bengal Administrative Tribunal in O. A. 122 of 2012 since the petitioner herein was not impleaded in the said original application.
Mr. Banerjee, learned senior advocate appearing for the petitioner submits that in the year 1999 the petitioner was initially appointed to the post of Sub-Assistant Engineer (Mechanical) under the Public Health Engineering Directorate. Thereafter, on 25th January, 2008 the respondents published a draft gradation list in which the petitioner's rank was 47 and the private respondent nos.9 and 10 ranked 52 and 58 respectively. On the basis of the said gradation list, a selection process was conducted in the year 2009 and the petitioner was promoted to the post of Assistant Engineer (Electrical) vide memorandum dated 24th 2 January, 2011. Due to lack of vacancies and as the private respondent nos.9 and 10 were below the petitioner in the said gradation list, they were not promoted. The said gradation list of 2008 was challenged by the private respondent nos. 9 and 10 through an original application, being O. A. 1288 of 2010 but without impleading the petitioner in spite of being aware that the petitioner ranked above them in the said gradation list. The said original application was disposed of by an order dated 18th January, 2011 directing the respondent no. 4 herein to consider the representation of the applicants and to pass a reasoned order. Pursuant thereto, the respondent no.4 passed an order on 24th August, 2011 observing, inter alia, that the gradation list should have been prepared following the West Bengal Services (Determination of Seniority) Rules, 1981. Being aware that the inter se ranking of the petitioner and the other incumbents would be affected, the respondent no.4 passed the said order dated 24th August, 2011 without granting any opportunity of hearing to the petitioner. Subsequent thereto, the private respondents again preferred an original application, being O.A.122 of 2012, inter alia, praying for implementation of the order dated 24th August, 2011 passed by the respondent no.4. In the said original application also the petitioner was not made a party and the same was disposed of by an order dated 14th February, 2014. On the basis of the said order dated 14th February, 2014, a draft gradation list was published on 25th November, 2014 assigning rank 47 and 48 to the private respondents and the petitioner was assigned rank 57. Thereafter on 4th December, 2015, the respondent no.2 herein gave a fresh opinion that if the private respondents are found to be senior on rectification of the gradation list, they may be promoted and the erroneous promotion to two juniors may be cancelled. On 3rd February, 2016, the petitioner came to learn about the said developments on the basis of an application under the Right to Information Act, 2005. Immediately thereafter, the petitioner approached the Tribunal by 3 an original application being O.A. 170 of 2016 challenging, inter alia, the draft gradation list dated 25th November, 2014 and the notes of the Finance Department dated 4th December, 2015. In the said original application the private respondents filed an application for addition of party, who were the original applicants in O.A. 122 of 2012, and the same was allowed.
Mr. Banerjee submits that in course of hearing of the said original application, it was urged on behalf of the private respondent nos.9 and 10 that the said original application is not maintainable since the petitioner has not challenged the order dated 14th February, 2014 passed in O.A. No.122 of 2012 and as such the petitioner has approached this Court since the petitioner cannot be without remedy.
Mr. Lahiri, learned advocate appearing on behalf of the private respondents, submits that having not challenged the order dated 14th February, 2014 passed in O. A. 122 of 2012 in the original application being, O.A. 170 of 2016, the petitioner cannot pray for leave to challenge the same before this Court.
He further submits that after publication of the draft gradation list on 25th November, 2014, the final gradation list had also been published on 29th March, 2016 and the same is also not under challenge in the pending original application, being O. A. 170 of 2016, preferred by the petitioner.
Heard the learned advocates and considered the materials on record. Indisputably, the petitioner was not impleaded in the earlier original applications preferred by the private respondents. On the basis of the order dated 14th February, 2014 passed in O. A. 122 of 2012, a draft gradation list was published on 25th November, 2014 assigning rank 47 and 48 to the private respondents and the assigning a lower rank 57 to the petitioner. The petitioner has been placed below the private respondents in the gradation list though in the 4 earlier gradation list dated 25th January, 2008, the petitioner's rank was 47 and the rank of the private respondent nos.9 and 10 was 52 and 58 respectively. The petitioner's rank position was altered to his prejudice and that too, without grant of any opportunity of hearing to the petitioner. The petitioner was not added as a party respondent in the original applications preferred by the private respondents and orders were obtained behind the back of the petitioner.
After publication of the draft gradation list on 25th November, 2014, challenged in the pending original application, being O. A. 170 of 2016, preferred by the petitioner, the final gradation list had also been published on 29th March, 2016 and as such the said original application had in fact become infructuous.
It is well-settled that the learned Tribunal is the court of first instance in respect of the service matters. The petitioner cannot approach the High Court and treat it as the Court of first instance in respect of his grievances by overlooking the jurisdiction of the Tribunal [See the judgment delivered in the case of L. Chandra Kumar v. Union of India and others reported in (1997) 3 SCC 261]. At the same time the petitioner cannot be without any remedy.
Applying such proposition of law to the facts, we are of the opinion, that justice would be sub-served in the event leave is granted to the petitioner to approach the Tribunal challenging the final gradation list dated 29th March, 2016 as well as the earlier order dated 14th February, 2014 passed in O. A. 122 of 2012 preferred by the private respondents, in which the petitioner was not impleaded.
Mr. Banerjee submits that he would be withdrawing the original application, being O.A. 170 of 2016. We accept such submission of Mr. Banerjee. In the event the petitioner withdraws original application, being O.A. 170 of 2016, he would be at liberty to prefer an 5 application before the Tribunal afresh challenging the final gradation list dated 29th March, 2016 as well as the order dated 14th February, 2014 passed by the learned Tribunal in O.A. 122 of 2012. In the event such application is filed, the learned Tribunal shall consider the same on merits.
With the above observations and directions, the present application is disposed of. There shall, however, 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 upon compliance of all necessary formalities.
(Nishita Mhatre, A.C.J.) (Tapabrata Chakraborty, J.) 6