Calcutta High Court
Dilip Kumar Guha Niyogi And Ors. vs The Jute Corporation Of India Ltd. And ... on 14 February, 1989
Equivalent citations: (1989)2CALLT301(HC)
JUDGMENT Mahitosh Majumdar, J.
1. This writ application is directed against the office orders being No. JCI/1(55)-83 Admn. I, dated 13th January, 1983. Office Order No. JCI/1(55)-83 Admn. 1, dated 22nd February, 1983 and Office Order No, JCI/1(8)/83 Admn. issued by the Personnel Manager, Jute Corporation of India Ltd.
2. The above orders are quoted below :
"No. JCI/1(55)-83 Admn. I, dated 13th January, 1983 Circular Subject : Filing up of a few posts of Junior Assistants from amongst the existing Junior Inspector.
(1) It has been decided by the Management to fill up a few posts of Junior Assistants at Head Office from amongst the existing Junior Inspectors who will be required to perform re-weighment and grade verification jobs at mill points against despatches made to the various mills in addition to the normal duties as Junior Assistants at Head Office and such other work as may be assigned from time to time.
(2) The selected candidates shall have to accept the post of Junior Assistant with 'zero' seniority in the JA carde. Existing pay of the incumbents would, however, be protected.
(3) Interested JIs are, therefore, requested to indicate their option latest by 31-1-83 mentioning reasons for such option. It is however clearly stipulated herein that 'option' once exercised would be treated as 'final' and withdrawal of the 'option' at a later stage would be treated as a 'misconduct' as per JCI CDA Rules, 1980 and will be dealt with as per rules.
(4) The management, however, reserve the right to consider each application on its merit only for selection to the post of Junior Assistant against available vacancies as may be determined by the competent authority without conferring any right to the applicants to claim automatic selection as above.
(5) This will have no bearing with regard to further selection in this cadre as well as in any other cadre in future.
A.R. Sd. S.K. Chakraborty Personnel Manager (2)
3. No. JCI/1(55)/83 Admn. I, February 22, 1983 Office Order The following Junior Inspectors in the scale of pay of Rs. 330-560 are hereby appointed as Junior Assistants carrying the same time scale of pay and they are transferred/posted to Head Office with immediate effect:
Sl. No. Name Present place of Posting 1. Mrigendra Kr. Sana Belghoria Rolling Centre 2. Sobhan De Mekhligunj SC 3. D.K. Guha Neogy Union Jute Mill Godown 4. Santosh Kr. Roy Barranagore Mills 5. Sachidananda Ghosh Haldibari 6. S.K. Roy Mukhopadhyay Kinnison Jute Mills Godown 7. Onkar Nath Banerji Nabadwip
(2) On their appointment, they will get 'zero' seniority in the grade of Junior Assistants, i.e., they will be placed en-block below the existing Jr. Assistants. Their inter-seniority will, however, be same as already determined in the grade of Junior Inspector. They will continue to draw their present basic pay had they not been appointed as Junior Assistants.
(3) This issues with the approval of the Competent Authority.
Sd. S. K. Chakraborty Personnel Manager (3)
4. No. JCI/1(8)/83 Armn. I, dated 10-3-83 Office Order The following Clerk-cum-typists/Receipts-cum-despatch Clerks are deemed to have been promoted to officiate as Junior Assistants in the scale of pay of Rs. 330-10-380-EB-12-500-EB-15-560 w.e.f. 22.2.83.
_______________________________________________________________________________ Sl.No. Name/Designation Present Place of Remarks place of Posting posting as J.A. _______________________________________________________________________________
1. P.K. Guha, CCT Purnia Purnia Pending deployment they
2. Anil K. Mallick will continue to work in CCT H.O. H.O. the sections to which they
3. N. Lenka, CCT H.O. H.O. are now posted.
4. Bechulal Mondal R/D Clerk H.O. H.O.
5. Benoy K. Das, R/DC. H.O. H.O.
6. B.P. Nayak, R/D Cl. H.O. H.O.
7. Mrinal Banerji R/D Clerk H.O. H.O.
8. Benoy K. Pal, R/DC. H.O. H.O. (2) Shri Ashim Kr. Mukherji, CCT, now posted at Berhampur RO is also hereby ordered for promotion to officiate as Jr. Assistant w.e.f. 22-2-83" (FN) subject to the condition that he will report for duty at Head Office on or before 21st. March, 1983. He will be entitled to normal transfer T.A. and joining time as admissible to him under the rules of the Corporation.
(3) They will be on probation for a period of six months. At the end of the probation period, if their services are not found to be satisfactory their cases will be considered for reversion/extension of the officiating period as may be deemed proper by the Competent Authority.
(4) This issues with the approval of the Competent Authority.
Sd. S.K. Chakraborty Personnel Manager
5. The grievances of the petitioners may be summed up as follows :
The petitioners prior to 22nd February, 1983 were functioning as Junior Inspectors at the field level and were posted at various mills and Departmental Purchases Centres. On 13th January, 1983 a circular was issued by the Personnel Manager of the Jute Corporation of India (in short Corporation). By the said Circular it was notified that the Management had decided to fill up a few posts of Junior Assistants at the Head Office from amongst the existing Junior Inspectors. It was also notified that the said Junior Inspectors who would be filling up the said post of Junior Assistants would have to accept the post of Junior Assistants with 'zero' seniority in the Junior Assistant Cadre. The petitioners agreed to forego the advantage they had acquired by serving in the field from about the year 1975 and accepted 'zero' seniority on the basis of the existing gradation list among Junior Assistants of the said Corporation. Pursuant to the applications made by the petitioner the petitioners were called for an interview at the Director level and the petitioners were selected for such appointment, along with two others. The seven selected candidates, including your petitioners were appointed as Junior Assistants at the Head Office. In the said office order it was categorically mentioned that on their appointment, which was with immediate effect, the selected candidates would as placed en-block below the existing Junior Assistants. The interse seniority of the selected candidates would, however, remain the same as already determined while they were functioning as Junior Inspectors. The petitioners and the other two selected candidates were to be placed en-block at and from Serial No. 15 of the seniority list of Junior Assistants maintained by the Corporation, as it stood on 22nd February, 1983. After the appointment of the petitioners at Junior Assistants, nine clerk-cum-typists/Receipt-cum-Despatch Clerks, being the respondent Nos. 4 to 12 herein, were sought to be promoted to officiate as Junior Assistants vide Office Order JCI/1(8)/83 Admn. I, dated 10th March, 1983. The said order, although, passed on 10th March, 1983 was sought to be given retrospective effect from 22nd February, 1983, that is, the date on which the petitioners were also appointed as Junior Assistants at the Head Office.
6. Grievances were raised by the Secretary of the Association on October, 1985. Various issues including to the said grievances being raised by the Association General Meeting between the Management and the Association took place on 29th October, 1985, as will appear from the minutes of the said meeting. From the said minutes it will be clear that the Management agreed to consider the petitioners' case. The Corporation started taking steps to fill up the vacancies created in the post of Senior Assistant as a result of promotion from among Senior Assistants to the post of Office Managers. By reason of the said process as is set in motion the petitioners claim and contend that when the next lot of vacancies occur, inasmuch as their names should have been placed from Serial No. 15 onwards of the Gradation list and/or seniority, list. Such a contingency has now occurred with the promotion of three Senior Applicants to the post of Office Managers vide order, dated 20th November, 1986. In view of the existing seniority List the petitioners will be superseded by persons who have at all times been junior to the petitioners. On 18th December, 1986 the respondent Nos. 4 to 11 have been offered to exercise option of posting in the different Regional Offices by promotion to the post of Senior Assistants. In the said background of the facts and circumstances of the case the petitioners challenged the action of the respondents by contending inter alia, that the existing seniority list, in which the respondents Nos. 4 to 12 have been placed above the petitioners, has been prepared in violation of the office order, dated 22nd February, 1983, that on 22nd February, 1983 the petitioner were to be placed en-block below the existing Junior Assistants in terms of the office order, dated 22nd February, 1983, that the respondent Nos. 1 to 3 acted illegally in placing the respondents Nos. 1 to 3 acted illegally in placing the respondents Nos. 4 to 12 above the petitioners in the seniority and/or gradation list for Junior Assistants, for that in terms of the existing seniority as on 22nd February, 1983, the petitioners are to be placed at Serial No. 15 of the Seniority List, after Shri Pranab Kr. Paul and the respondent Nos. 4 to 12, are to be placed thereafter. In view of the office order, dated March 10, 1983 which is sought to be given effect retrospectively, the petitioners would be placed below the respondent Nos. 4 to 12 herein. The action of the concerned respondents being ex facie illegal and violative of Articles 14 and 16 of the Constitution of India is challenged by the petitioners in this writ petition.
7. The respondents filed affidavit-in-opposition on behalf of the Jute Corporation of India. In the said, affidavit-in-opposition the respondents seriously resisted the places of the petitioners by contending, inter alia, that the writ petition is thoroughly misconceived, mala fide, vexatious and as such is liable to be dismissed in limine, that since the writ petition has been moved after 3 years and 4 months from the date of Seniority list, dated September 30, 1983 the same in liable to be dismissed in limine on the ground of inordinate delay, that the writ petition being based on frivolous, unsustainable and preposterous allegations having no foundation whatsoever and the same having been filed after three years four months from the date of the alleged impugned seniority list published on 30-9-83 and that too without any iota of explanation for the said inordinate delay the same is liable to be dismissed in limine in this score alone. It is also claimed and contended by the respondents that the writ petitioners were posted as Junior Inspectors and their duties were assigned at the Corporation's Field Officer and they belonged to the discipline of 'Field Post' whereas there was a separate discipline under the respondent Corporation known as 'Office post'. The Judgment incumbents who belonged to the discipline of 'office post' were either designated as Clerk-cum-Typists or Receipt-cum-Despatch Clerks. The line of promotion to the said two separate cadres was distinctly different from each other. In January, 1983 the management of the said Corporation decided to give option to some Junior Inspectors for transfer to the discipline of office post as Junior Assistants. In post as Junior Assistant, it was found that there were staff in the category of CCTs and RDCs who would be completing 3 years of service in February in 1983 and are entitled to promotion on and from 22-2-86 unless there is any adverse report from the Vigilance Section. Even after taking the said promotions into account there would still remain some vacant posts to the category of Junior Assistants which could be filled up by allowing transfer of few staff from the post of Junior Inspectors to the post of Junior Assistants. In the said background the Circular, dated 13-1-83 was issued and in pursuance thereof several applications were received. In the meantime processes were started for effecting promotions of the said persons belong to CCTs and RDCs categories and report of the Vigilance Section was sought for. It was noticed that out of the 10 persons eligible for being considered for promotion there was a pending disciplinary proceeding against one Sri Amarnath Dey, a CCT. By an order, dated 22-2-83, seven Junior Inspectors were appointed as Junior Assistants by way of transfer with the same scale of pay. It was made clear that they will get zero seniority in the grade of Junior Assistant, i.e., they will be placed en-block below the existing Junior Assistants. 9 out of the 10 CCTs/RDCs who had completed 3 years of service with the expiry of 21st. February 1983 were entitled to be promoted on the basis of seniority on and from the morning of 22nd February, 1983. In completing the serious processes the issuance of formal order was delayed which was made on 10-3-83. However, the promotion was given with retrospective effect from 22-2-83 to treat as existing Junior Assistants on that day and protect their seniority thereby. It was made clear that the Junior Inspectors who would be allowed to be transferred in the office discipline as Junior Assistants would get zero seniority in the grade of Junior Assistant, the said transferee staff were liable to be placed below the promotee Junior Assistants who were deemed to be existing Junior Assistants due to retrospective effect of their promotion.
8. Mr. Jatin Ghosh, learned Advocate placed reliance on the page 46 of the affidavit-in-opposition which is quoted below :
"We have at present 59 sanctioned posts of Junior Assistant at Head Office. Out of these posts, 46 posts have been made operative. Against these 46 posts, 17 Junior Assistants are now in position and 19 CCTs have been appointed against the vacant posts of JAs, CCTs were appointed earlier against the vacant posts of JA in view of the fact that there were no eligible internal candidates for promotion to the post of Junior Assistant.
(2) The Selection Committee has recently considered the cases of the CCTs/RD Clerks who have now become eligible for promotion to the post of Junior Assistant. The minutes of the Selection Committee may kindly be perused at T/A. On the basis of the recommendation of the Selection Committee the following CCTs/RD Clerks may be considered for promotion on Junior Assistants at Head Office/Regional Office against the available vacancies :
Name From to Remarks
1. P.K. Guha Purnea Purnea against the vacant post of
52
2. Bechulal Mondal do do
3. Anil K. Mullick do do
4. Benoy K. Das do do
5. B.P. Nayek do do
6. Mrinal K. Banerji do do
7. N. Lenka do do
8. Ashim Mukherji Berhampur do
9. Benoy K. Pal HO HO
(3) The case of Shri Amar Nath Dey may be taken up for consideration after the disciplinary case pending against him in finally cleared.
(4) Incidentally, in this office order, dated 22-2-83, 7 JIS has been appointed as JAs in the Head office against their seniority in the grade of JA would be next below the existing Junior Assistants.
(5) The above 9 candidates became eligible, for promotion in the post of Junior Assistant on 22-2-83. Therefore, in order to protect their seniority in their promotion post of Junior Assistant, it may be considered if their promotion as Junior Assistant can be given effect to w.e.f, 22-2-83".
9. Mr. Jatin Ghosh, learned Advocates in support of his contention referred to the following decisions :
(i) P.S. Sadasivaswami v. State Tamil Nadu ;
(ii) Mahindra Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. .
(iii) ;
(iv) Reserve Bank of India and Ors. v. G.N. Sahararanaman and Ors., AIR 1985 (51) SC 1830.
(v) V.T. Khanzode and Ors. v. Reserve Bank of India and Ors., (1982) (44) FLR 317.
(vi) State Bank of India v. Y.K. Srivastava, AIR 1987 SC 1899.
10. The seniority list is dated 30-9-1983. The writ application was moved after a lapse of more than three years. No explanation has been offered by the petitioners as to how and under what circumstances the delay occurred. The conspicuous silence for long over three years and four months, in my view, demonstrates that the petitioners did not take any step with regard to the seniority as indicated in the Seniority List. The representations made by the writ petitioners are all of the year 1986. It is too late in the year 1988 to disturb the seniority list as would adversely effect the position of the promotee seniors. In case the writ petitioners are treated seniors to respondent Nos. 4 to 12 thereby superseding the respondent Nos. 4 to 12 in that event the entire seniority List is to be disturbed. In view of the judgment in the case of P.S. Sadasivaswami v. State of Tamil Nadu the writ petitioner, in my view, is the direct authority on the point in question in view of the fact that the question of promotion by way of super session is very much involved in the instant case. In that event the contention of Mr. Ghosh that the writ petition cannot be sustained for inordinate delay succeeds. Incidentally it may be mentioned that the writ petitioners cannot have the double benefits, viz., (i) conversion in the cadre offering better service conditions (from field posts to office posts) and (ii) protection of their seniority by affecting the rights of the promotees, i.e., the respondent Nos. 4 to 12. In other words, any alteration in the position, if effected at this belated stage, would result in total disarray in the overall set up of the organisation and would unsettle the settled things and in effect it would demonstrate that the petitioners are seeking to disturb the matter without raising any lots of complaint within three years and four months. The attempt on the part of the writ petitioners seeking to improve their inordinate delay in moving the writ petition cannot be sustained by way of explanation being offered in paragraph 4 of the affidavit-in-reply. The basic stand of the writ petitioners cannot be supplemented by subsequent affidavit. The decision, in the case of Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. applies in the facts and circumstances of the present case. The decision would not in any way help the writ petitioners but would support the case of the Corporation as in the aforesaid decision there was sufficient explanation given for moving the writ petition. But in the instant case no sufficient explanation was given. The observation made by the Hon'ble Supreme Court in that case is opposite to the facts and circumstances of the present case which is quoted below :
"It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accured to others by reason of the delay in filing the petitioner should not be allowed to be disturbed unless there is reasonable explanation for the delay".
11. In the case of Reserve Bank of India and Ors. v. G.N. Sahararanaman and Ors. the Supreme Court in no uncertain terms has observed to the following effect :
"In service jurisprudence there cannot be any service rule which would satisfy each and every employee and its Constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touchstone".
12. The above view of the Hon'ble Supreme Court would find its support in V.T. Khanzode and Ors. v. Reserve Bank of India and Anr.
13. Similar view has also been taken in another case of the Hon'ble Supreme Court in the case of State Bank of India v. Y.K. Srivastava. The contention of Mr. Kabir that the petitioners are entitled to benefits on the grounds as are advanced by him by reasons of fallability crept in the entire matter cannot be accepted. The writ petition has been moved after 3 years 4 months without proper explanation therefore.
14. In view of the above the writ petition is dismissed.
15. There will be no order as to costs.