Calcutta High Court
Sri Kartick Chandra Ghosh And Others vs Kolkata Municipal Corportation And ... on 16 March, 2016
Equivalent citations: 2016 LAB. I. C. 2256, 2016 (165) AIC (SOC) 22 (CAL), (2017) 3 SERVLR 193, (2016) 3 ICC 704, (2016) 2 CALLT 489
Author: Arijit Banerjee
Bench: Manjula Chellur, Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
A.P.O. NO. 272 OF 2013
W.P. NO. 936 OF 2003
SRI KARTICK CHANDRA GHOSH AND OTHERS
VERSUS
KOLKATA MUNICIPAL CORPORTATION AND OTHERS
With
F.M.A. NO. 2555 OF 2013
C.O.T. NO. 87 OF 2013
SRI KARTICK CHANDRA GHOSH AND OTHER
VERSUS
ASHOK KUMAR GUHA AND OTHERS
Before : The Hon'ble Chief Justice Dr. Manjula
Chellur
&
The Hon'ble Justice Arijit Banerjee
For the Appellants : Mr. Joydeep Kar, Sr. Adv.
Mr. S. Majumder, Adv.
Mr. A Lahiri, Adv.
For the Respondents : Mr. L.K. Gupta, Sr. Adv.
Mr. G. Mitra, Adv.
Mr. Kallol Basu, Adv.
Mr. M. Chakraborty, Adv.
Heard On : 27/11/2014, 10/12/2014,
12/12/2014, 17/12/2014,
30/01/2015 & 13/12/2015
CAV On : 18/01/2016
Judgment on : 16/03/2016
Arijit Banerjee, J.:
1. These two appeals arise from a common judgment and order dated 15th May, 2013 whereby two writ petitions being WP No.21394(W) of 2000 (Ashok Kumar Guha and others vs. Kolkata Municipal Corporation and others) and WP No.936 of 2003 (Kartick Chandra Ghosh and others vs. Kolkata Municipal Corporation and others) were disposed of.
2. The present proceeding essentially pertains to a dispute with regard to determination of inter se seniority between the promotees and the direct recruits to the post of Assistant Engineer (Civil) and the post of Executive Engineer (Civil) of the Kolkata Municipal Corporation.
3. WP No. 21394(W) of 2000 was filed by two of the promotees challenging the appointment of the direct recruits to the post of Assistant Engineer, Kolkata Municipal Corporation and for redetermination of the inter se seniority of the promotees viz-a-viz direct recruits.
4. WP No. 936 of 2003 was filed by the direct recruits for setting aside of a resolution dated 30th April, 2003 adopted in the meeting by the Mayor-in-Council, Kolkata Municipal Corporation relating to appointment/ promotion of Assistant Engineer (Civil) under the Kolkata Municipal Corporation as also for promotion to the post of Executive Engineer (Civil) on the basis of the upgradation list published on 26th February, 2001. THE CASE OF THE DIRECT RECRUITS (APPELLANTS)
5. According to the direct recruits, the effect of the order of the learned single Judge is that the seniority of the direct recruits who were recruited between 15th July, 1997 and 15th June, 1998, stands superseded by the promotees holding Engineering Degree as qualification and promoted between 25th June, 1999 and May, 2000. The effect of the impugned order is that the writ petition filed by the promotees has been allowed and the writ petition filed by the direct recruits stands dismissed.
6. The first point urged on behalf of the direct recruits is that the claim of the promotees made in WP No. 21394 (W) of 2000 should not have been allowed as the same is barred under Order II Rule 2 of the Code of the Civil Procedure.
7. Originally, the Recruitment Rules provided for filling up of 50% of the total cadre strength from amongst the promotees in the common cadre of Sub- Assistant Engineer and 50% by direct recruitment. On 7th August, 1997, the Recruitment Rules were amended. By the reason of amendment, 45% of the total cadre strength was reserved for promotees and 45% was reserved for direct recruits. The balance 10% was reserved for promotion by way of selection to the post of Assistant Engineer from the post Sub-Assistant Engineer of all discipline having a degree and on merit basis.
8. The promotees filed a writ petition being WP No. 21002 (W) of 1998 seeking cancellation/ withdrawal of the decision to fill up the existing vacancies in the post of Assistant Engineer by Diploma Holder Engineer by departmental promotion and seeking to do away with selection process by way of competitive examination as in the case of direct recruits. Thus, the promotees wanted to be promoted through the seniority channel against the 10% quota without taking any examination.
9. The said writ petition was filed by the promotees who were holding Degree in Engineering and who were unsuccessful in the competitive examination held for direct recruits. In 1996-1997, the said promotees appeared in the competitive examination with the direct recruits (appellants) but became unsuccessful candidates. In the said writ petition, the promotees did not challenge the appointment of direct recruits in any manner nor did they contend that the quota of direct recruits had been exceeded.
10. Pending hearing of the said writ petition, the office order relating to promotion of the promotees in the 10% quota through examination was withdrawn and they were given promotion on the basis of seniority only in between 25th June, 1999 and May, 2000. Having got promotion, the promotees withdrew the said writ petition being WP No. 21002 (W) of 1998 on 8th October, 2002.
11. In the said writ petition, the promotees did not challenge the date of promotion as contained in the letter dated 25th June, 1999 (page 51 of the compilation). In short, the promotees accepted the prospective promotion given to them from 25th June, 1999. As such, they also accepted that the direct recruits had been appointed as Assistant Engineer (Civil) in between 1997 and 1998 i.e. much before the promotees, and were admittedly senior to the promotees in the cadre.
12. It was contended on behalf of the direct recruits that once the promotees accepted their promotion prospectively from 25th May, 1999 and withdrew their writ petition being WP No. 21002 (W) of 1998, the issue of promotion of the private respondents attained finality. The promotees are, therefore, debarred in law from seeking to reopen the issue in a subsequent proceeding, the cause of action whereof was covered by the first proceeding.
13. It was submitted that the second proceeding on the same cause of action is barred under Order II Rule 2 of the Code of Civil Procedure which mandates that every proceeding shall include the "whole of the claim" which the petitioner is entitled to make in respect of the cause of action.
14. In the first proceeding, the cause of action was related to promotion and, therefore, the date of promotion was inextricably linked to the same. Securing a prospective promotion by the first proceeding, thereafter, seeking to reopen the issue in the second proceeding by seeking retrospective promotion is an act not permitted by law. In this connection, learned counsel for the direct recruits relied on Rule 53 of the Writ Rule of this court which makes the provision of the Code of Civil Procedure 1908 applicable to writ proceeding in so far as they can be made applicable.
15. In paragraph 26 of the WP No. 21002 (W) of 1998, it was the clear case of the promotees that their 10% quota for Degree Holders remained and still continue to remain unfilled. In the second proceeding, the same promotees cannot be permitted to take a contradictory stand that the appointment of the direct recruits encroached upon 10% quota of promotees holding degree. This is a clear case of approbation and reprobation which is not permissible in judicial proceeding. A litigant cannot change his stand according to his whims and fancies.
16. It was, then, submitted that even assuming there was filling up of the post by appointing direct recruits in excess of the prescribed quota, at the highest the same would affect diploma holders engineering promotees who were covered by the other 45% quota. The said group of promotees did not raise any grievance and have not challenged the appointment of 34 direct recruits.
17. It was, then, submitted on behalf of the direct recruits/appellants that the Recruitment Rules of 1994 were not given effect to till 1997. In between, all promotional posts were filled up by the promotees. By making direct recruitment in the 1996-97, the Kolkata Municipal Corporation was trying to reverse the situation and even if there was appointment made in excess of the quota, the same was made to reverse the situation and bring back the ratio which is prescribed under the Recruitment Rules. This was the first recruitment after promulgation of the Recruitment Rules of 1994.
18. In so far as promotees are concerned, they admittedly came within 10% quota having degree in Engineering. Their own case, in paragraph 26 of the first writ petition, was that their 10% vacancies remained and still continue to remain unfilled. Hence, admittedly, the clear case of the promotees was that their quota was never encroached upon. Since there was no encroachment upon their 10% quota, the promotees had no cause of action to move the second writ petition. In any event, having withdrawn the first writ petition by accepting the prospective promotion, without leave of the court, they cannot proceed with the second writ petition seeking retrospective promotion.
19. It was, then, submitted that the order of the Kolkata Municipal Corporation dated 30th July, 2003 is bad and unsustainable in law. After giving promotion to the promotees prospectively with effect from 25th June, 1999, their seniority could not have been made retrospective with effect from 1997. A promotee cannot be given seniority before the date he was born in the cadre. Admittedly, the promotees were given birth in the cadre of Assistant Engineer (Civil) on 25th June, 1999 and hence, they cannot be given seniority with effect from 1997. In this connection, the learned counsel relied on the following decisions of the Hon'ble Apex Court:
(i) Kusumam Hotels Pvt. Ltd vs. Kerala State Electricity Board and others, (2008) 13 SCC 213, para 21;
(ii) P.Sudhakar Rao and others vs. U.Govinda Rao and others, (2013) 8 SCC 693, paras 45-50;
(iii) Pawan Pratap Singh and others vs. Reevan Singh and others, (2011) 3 SCC 267, paras 41, 45;
(iv) Amarjeet Singh and others vs. Devi Ratan and others, (2010) 1 SCC 417, para 27; and
(v) N.V.Srinivasa Murthy and others vs. Mariyamma, AIR 2005 SC 2897 para 13.
SUBMISSIONS MADE ON BEHALF OF THE PROMOTEES/ RESPONDENTS
20. Appearing on behalf of the promotees, Mr.L.C.Gupta, learned senior counsel submitted that the fact of direct recruitment in excess of vacancies declared in the advertisement has been accepted by the Kolkata Municipal Corporation. This fact has been admitted in paragraph 10 of Kolkata Municipal Corporation's affidavit-in-opposition. However, in response to an application under the Right to Information Act, 2005, it was informed that only 13 vacancies had occurred during the period 16.07.1996 to 15.07.1997. Hence, as per Regulation, only 8 (50% of 3+13) posts could be filled up by direct recruitment. Kolkata Municipal Corporation, however, made 34 appointments by direct recruitment which is illegal. 26 (34-8) posts were filled up in excess of direct recruitment quota fixed under the Regulation.
21. Thus, opportunity of promotion to the promotee engineers got adversely affected. In the affidavit-in-opposition filed on behalf of KMC in WP No.936 of 2003 also it is admitted that vacancies beyond the scope of 50% quota were filled up by direct recruitment. In the said affidavit, KMC also stated that direct recruits cannot take advantage of the inadvertent mistake rendering great injustice to the promotee degree holder engineers. KMC further admitted by issuing letter to the direct recruits that a serious question has arisen regarding legality of their appointments which may have serious legal infirmity and validity of appointment beyond the advertised number of vacancies is very much doubtful.
22. In this connection, learned senior counsel relied on the following decisions of the Hon'ble Apex Court.
(i) Rakhi Ray and others -vs- High Court of Delhi, (2010) 2 SCC 637, paras 7, 10 - 12;
(ii) Arup Das and others vs. State of Assam and others, (2012) 5 SCC 559, paras 19-22;
(iii) V.B.Badami vs. State of Mysore, AIR 1980 SC 1561, paras 29, 34, 39 and 40;
(iv) Madan Gupal Garg vs. State of Punjab and others, 1995 Supp (3) SCC 366, para 12;
(v) J.Chandrashekhar Reddy vs. D.Arora, AIR 1994 SC 526, para 4;
(vi) Mahmood Hasan and others vs. State of U.P. and others, (1997) 3 SCC 138.
23. Mr. Gupta next submitted that KMC by a circular No. 13 dated 23rd April, 1984 framed Regulations regarding determination of seniority. Paragraph 6 (ii) of the said Regulation, inter alia, provides that the promotees shall be en bloc senior to the direct recruits of the same year. By the order impugned, the learned single judge accepted the prayer of the promotion and seniority of the private respondents/ promotees, but the learned judge did not grant en bloc seniority to the promotees over direct recruits appointed in the same year.
24. Accordingly, the promotees have filed a cross objection. In this connection learned counsel relied on a decision of the Hon'ble Apex Court in the case of Ajit Kumar Rath-vs- State of Orissa, 1999 (9) SCC 596 paras 9, 35 and 36 wherein it was observed that in view of the relevant Rules, the promotees shall rank senior to direct recruits appointed in the same year.
25. Another point that has been urged in the cross objection is that learned single judge erred in not granting the financial benefits to the promotees. Learned counsel submitted that when promotions are effected from an earlier date retrospectively, benefits flowing there from including monitory benefits must be extended to an officer who has been wrongly denied promotion earlier. In this connection, learned counsel relied on the following three decisions of the Hon'ble Apex Court:
(i) Mahmood Hasan -vs- State of Uttar Pradesh (supra) para 23;
(ii) State of Andhra Pradesh -vs- KVL Narashimha Rao, 1999 (4) SCC 181, paras 4 & 5.
(iii) Ramesh Kumar-vs.-Union of India, AIR 2015 SC 2904, paras 10 & 13.
26. In response to the contention of the direct recruits that the promotees' second writ petition being WP No. 21394 (W) of 2000, is barred by Order II Rule 2 of the Code of Civil Procedure, by reason of the promotees having filed an earlier petition being WP No. 21002 (W) of 1998 which they subsequently withdrew, Mr Gupta submitted that in the earlier writ application the promotees ventilated their grievance in respect of a separate cause of action namely, action of the municipal authorities to compel them to take an examination for the purpose of promotion to higher posts. The said cause of action has no connection with the cause of action ventilated in the second writ petition.
27. The cause of action in the second writ application is a challenge to the illegal appointment of the direct recruits thereby depriving the promotees of the timely promotion and seniority. However, further while disposing of the first writ application, this court made it clear that this court has not gone into the merits of the matter. It is submitted that the decisions cited in this regard on behalf of the direct recruits are completely distinguishable on facts and have no manner of application to the facts of the present case. In this connection Mr. Gupta relied on a decision of the Hon'ble Supreme Court in the case of Bengal Waterproof Ltd.
-vs- Bombay Waterproof Manufacturing Company, 1997 (1) SCC 99, paras 7, 8 and 10, in support of his submission that if the earlier suit and the subsequent suit are not based on the same cause of action and unless there is identity of causes of action in both the suits, the bar of Order II Rule 2 is not attracted. He also relied on a decision of this court in the case of Gora Chand Haldar-vs-Basanta Kumar Haldar, 15 CLJ 258 at p.261.
28. Mr.Gupta further submitted that Rule 53 of the Writ Rules of this Court provides that the provisions of the Code of Civil Procedure shall be followed only in so far as the same can be made applicable to proceedings under Article 226 of the Constitution of India but nothing shall be deemed to limit or otherwise affect the inherent power of this Court to make such order as may be necessary for ends of justice or to prevent abuse of process of the Court. All provisions of Code of Civil Procedure are not applicable in the writ proceedings and the Writ Court applies only such principles as are considered necessary for justice, equity and good conscience.
29. Mr. Gupta further submitted that the point relating to Order II Rule 2 of the Code of Civil Procedure was not adjudicated by the direct recruits before the learned Single Judge and the said point cannot be allowed to be raised for the first time in appeal. In this connection, he relied on a decision of this Court in the case of Multiversity vs. Bidhan Educational Society, 2004(3) CHN p.1, paras 15 to 23. Learned counsel also relied on a decision of this Court in the case of State of West Bengal vs. Satyanarayan Rice Mill, AIR 1985 Cal 391 Para 19, in support of his submission that the principles of Order II Rule 2 of the Code of Civil Procedure are not applicable to an application under Article 226 of the Constitution of India.
30. In response to the contention that after participating in the selection process and being unsuccessful, the promotees cannot now challenge the appointment of the direct recruits, Mr.Gupta submitted that 26 direct recruits were appointed illegally which are beyond the number of advertised posts. He submitted that if an authority committed glaring illegalities in the procedure and method of selection, then the principle of estoppel or acquiescence has no application.
31. In this connection, he relied on a decision of the Hon'ble Supreme Court in the case of Rajkumar vs. Shakti Raj, (1997) 9 SCC 527, para 16. He further submitted that the decision relied upon on behalf of the direct recruits reported in AIR 1995 SC 1088 has no application in the presence case. In that decision, it was held that a candidate after participating in the selection process and appearing at the oral interview cannot turn around and challenge the interview process and constitution of selection committee. In the present case, the promotees challenge the illegal appointment of the direct recruits which were made over and above the advertised number of vacancies and further violation of their scope of promotion in view of the quota rules. Though the promotees appeared in the examination, they also have further right to promotion in their quota.
32. Mr. Gupta then submitted that the contention of the direct recruits that according to the Regulation, the appointment of the direct recruits are appropriate as the same has to be considered for all vacancies available to them in their quota of entire cadre strength, is not sustainable.
33. Service Regulation being Circular No.69 of 1994 dated 23.12.1994 was formulated by the KMC authorities fixing the quota of promotion and direct recruits at the ratio of 50:50 to the post of Assistant Engineer (Civil). The said Regulations were modified by Circular No.48 in the year 1997-98. The short title and commencement of the aforesaid Circular No.69 of 1994, inter alia, provides that the said Regulation shall come into force on and from the date of approval by the Corporation. Clause 4 (iii), inter alia, states that the Personnel Department will fill up such vacancies by making appointments through direct recruits or by promotion in accordance with the Regulation regulating such recruitments in consultation with the Commission where necessary. Hence, the Regulation clearly indicates that the provisions of the same will be applicable to all future vacancies that were likely to arise.
34. The interpretation sought to be given to the Regulation of the direct recruits is not sustainable since the same would totally block or prevent the scope of promotion for several years in future and the promotees would retire without promotion. 1994 Regulation did not indicate whether they are prospective or retrospective in nature, however, on true and proper construction, it is applicable only for future vacancies that are likely to arise. In this connection, Mr.Gupta relied on the following two decisions of the Hon'ble Supreme Court in support of his contention that every statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect:
(i) K.V.Subba Rao vs. Government of Andhra Pradesh, (1988) 2 SCC 201, para 6;
(ii) P.Mahendran vs. State of Karnataka, (1990) 1 SCC 411, paras 4 and 5.
35. Mr.Gupta then referred to the Supreme Court decision reported in 2013(8) SCC 693 which was cited on behalf of direct recruits in support of the contention that the retrospective seniority cannot be given to the persons not borne in the cadre.
36. Mr.Gupta submitted that in the same decision it has been specifically held that the retrospective promotion and seniority is to be given when some employee had been wrongly deprived. He relied on a decision of the Supreme Court in the case of Sri Kant Tripathi vs. State of U.P, (2001) 10 SCC 237, para 38 wherein it was held that if appointment of the direct recruits is made in excess of quota, then the said appointees would be allowed to continue, but their seniority will have to be reckoned only when he or she is adjusted in the next recruitment. Mr.Gupta submitted that the promotees have to be given their seniority over and above the direct recruits illegally appointed in the quota of promotees, particularly considering the affidavit of the KMC that such appointment was not only in excess of quota but also beyond the advertised number of vacancies to the deprivation of the promotion quota.
37. To sum up, Mr. Gupta submitted that the appointment given to the direct recruits are illegal and they cannot claim any right on the basis of such illegal appointment. Their appointment as well as all benefit given to them should be declared as illegal. The promotees should be given en bloc seniority over and above all the direct recruits appointed in the same year and should be granted all financial benefits from the date of such promotion to the respective posts.
THE LEARNED JUDGE'S FINDINGS AND ORDER
38. The learned Judge came to a finding that 13 vacancies had occurred in the post of Assistant Engineer (Civil) under the respondent corporation during the period from 16.07.1996 to 15.07.1997. Prior to the above period, advertisement dated 15.07.1996 was published by the Municipal Service Commission to fill up three posts of Assistant Engineer by way of direct recruitment. Therefore, the number of vacancies for the said post during the period from 15.07.1996 to 15.07.1997 was 16 (3+13). Against the said vacancies, nine posts were filled up by way of direct recruitment. The general principle containing the mode of filling up of certain category "A" posts of the respondent corporation as circulated under Circular No.1 of 1991-92 dated 01.4.1992 was applicable during the period from 15.07.1996 to 15.07.1997.
39. According to the provisions of the said Circular, 8 vacancies were available for filling up by direct recruitment. Hence, one vacancy was filled up in excess by way of direct recruitment resulting in depriving the promotees for consideration against the said one vacancy violating the promotees' fundamental rights guaranteed under Article 14 and 16 (1) of the Constitution of India.
40. For the period from 16.07.1997 to 15.07.1998, learned Judge found that six vacancies occurred in the post of Assistant Engineer (Civil). It was also revealed that 25 posts were filled up by way of direct appointment and one post was filled up by appointment on promotion. However, in view of the modification of Recruitment Regulation introduced under Circular No.48/D.M.C(H.Q) dated 07.08.1997, at best three vacancies were available for filling up by way of direct recruitment.
41. The promotees were possessing 10 years experience in the post of Sub-Assistant Engineer (Civil) and Degree in Engineering (Civil) at the material point of time. They were entitled to be considered for appointment to the post of Assistant Engineer (Civil) against the rest of the vacancies i.e. three vacancies. But, 22 vacancies were filled up in excess (25-3) by way of direct recruitment violating the fundamental right of the promotees guaranteed under Article 14 and 16 (1) of the Constitution of India for consideration against 55% of the said 22 vacancies.
42. The learned Judge found the aforesaid action on the part of the respondent authority to be bad in law as violative of settled principles of law. The learned Judge held that decision making process of the respondent authority in filling up the vacancies for the post of Assistant Engineer (Civil) during the period from 15.07.1996 to 15.07.1998, to the extent pointed out, cannot be sustained in law.
43. However, the learned Judge did not set aside the appointment made by way of direct recruitment in excess of the vacancies available in accordance with law as the same would lead to a complete disruption in the position and posting of persons appointed way back in the period from 15.07.1996 to 15.07.1998. According to the learned Judge, justice would be sub-served if direction is given to the respondent corporation to re-fix the seniority of the promotees in accordance with law notionally from the stage of their appointment on promotion in the post of Assistant Engineer (Civil). Accordingly, the learned Judge directed the respondent corporation to re-fix the seniority of the promotees notionally above the person who was appointed against the 9th vacancy in the post of Assistant Engineer (Civil) by way of direct recruitment during the period from 15.07.1996 to 15.07.1998 and to act on such seniority for the purposes in future.
OUR VIEW:
44. We have considered the rival contentions of the parties.
45. The first point urged on behalf of the appellants/direct recruits is that the writ petition of the promotees being WP 21394 (W) of 2000 is barred under Order 2 Rule 2 of the Code of Civil Procedure. Order 2 Rule 2 (1) of the Code of Civil Procedure provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Order 2 Rule 2 (2) provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Thus, what the said provisions of the Code of Civil Procedure stipulate is that a plaintiff must claim all the reliefs that he is entitled to claim arising from a particular cause of action and if he omits to claim any such relief without the leave of court, he is debarred from claiming such relief in any subsequent action. It is clear that this principle of law applies only when the earlier action and the subsequent action is based on the same cause of action. If the causes of action in the earlier proceeding and the subsequent proceeding are different, the principle of Order 2 Rule 2 will have no manner of application.
46. Coming to the facts of the present case, we find that the cause of action on which the first writ petition of the promotees, being WP No. 21002 (W) of 1998, was based, was the action of the municipal authorities to compel them to take an examination for the purpose of promotion to the higher post. According to the promotees, this was wrongful and accordingly, the promotees challenged the same by way of the first writ petition. However, in the second writ petition filed by the promotees, the cause of action appears to be illegal appointment of the direct recruits depriving the promotees of timely promotion and seniority. In our view, there is no identity of the causes of action of the promotees in their first writ petition and the second writ petition. In the case of Bengal Waterproof Ltd.-vs.-Bombay Waterproof Manufacturing Co. & Anr. (supra), the Hon'ble Supreme Court, in the context of interpreting Order 2 Rule 2 of the Code of Civil Procedure, observed that a mere look at the said provisions shows that once the plaintiff comes to a Court of Law for getting any redress basing his case on an existing cause of action he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same then he cannot subsequently resurrect the said claim based on the same cause of action. Order 2 Rule 2, sub-Rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of Order 2 Rule 2 sub- Rule (3) will not get attracted.
47. In our view, the bar of Order 2 Rule 2 of the CPC is not attracted to the facts of the instant case. It cannot be said that the first and the second writ petitions filed by the promotees were based on the same cause of action. It may further be noted that in the case of State of West Bengal-vs.-Satyanarayan Rice Mill (supra) a Division Bench of this court held that on a plain reading of O. 2 R. 2 of the Code it will be clear that this particular provision expressly applies only to suit and not to other proceedings. Though in the Civil Procedure Code suit has not been expressly defined, nowhere it has been defined that the suit does include an application. Therefore, it cannot be conceived under any circumstance that the bar of O. 2 R. 2 applies to an application under Article 226 of the Constitution. The aforesaid decision of a Coordinate Bench of this court is binding on us and we see no reason to differ from the said view. Even if we were to take a different view and hold that in view of R. 53 of the Writ Rules of this court, the principle of O. 2 R. 2 of the Code applies to writ applications, we would still not be inclined to permit the appellants to urge the said point before us since the same was not urged before the Ld. Court below. In this connection, reference may be made to the decision of a Division Bench of this Court in the case of Multiversity-vs.-Vidhan Educational Society & Ors. (supra) wherein it was held that the objections based on O. 2 R. 2 could not be urged before the Division Bench, the point having been conceded once already in the court below.
48. Hence, the issue as to whether or not the second writ petition of the promotees is barred by O. 2 R. 2 of the CPC is decided in favour of the promotees and against the appellants.
49. Next comes the question of the legality and/or validity of the appointments of the direct recruits. It is not in dispute that 34 appointments were made by direct recruitment when only 8 posts were available for being filled up by the said process as per the Regulations. This is also admitted by the KMC in its affidavit-in- opposition. In the affidavit, KMC has also stated that direct recruits cannot take advantage of the inadvertent mistake on the part of the corporation. KMC was conscious that it had committed a mistake and therefore, warned the direct recruits that there was a serious question regarding the legality of their appointments beyond the advertised number of vacancies. In the case of Rakhi Ray & Ors.-vs.-High Court of Delhi (supra), the Hon'ble Supreme Court held that it is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as the recruitment of the candidate in excess of the notified vacancies is a denial and deprivation of the constitutional right under A. 14 read with A. 16(1) of the Constitution, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting a policy decision based on some rationale, otherwise the exercise would be arbitrary. At paragraph 12 of the judgment, the Hon'ble Apex Court summarized the law to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution and is, thus, a nullity inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancies which comes into existence after the issuance of notification/advertisement. The unexhausted selection list/waiting list becomes meaningless and cannot be pressed in service any more.
50. In the case of Arup Das & Ors.-vs.-State of Assam & Ors. (supra), the Hon'ble Apex Court referred to its earlier decision in the case of State of UP-vs.-Rajkumar Sharma, (2006) 3 SCC 330, and held that filling up of vacancies over and above the number of vacancies advertised would be violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointment as a matter of right. Mere inclusion of candidates in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. Even if in some cases, appointment had been made by mistake or wrongly, that did not confer any right of appointment on another person as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake it cannot be forced to perpetuate the said mistake.
51. In the case of V. B. Badami-vs.-State of Mysore (supra), the Hon'ble Supreme Court at paragraph 29 held as follows:-
"29. In working out the, quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority-cum merit. A promotion could be made in respect of a temporary posts or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case."
In the same judgment, the Hon'ble Apex Court observed that the important principle is that as long as the quota rules remains, neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies.
52. In the case of Madan Gopal Garg-vs.-State of Punjab (supra), at paragraph 12 of the judgment the Hon'ble Apex Court held that once it is found that the appointment of the appellant was in excess of the quota fixed for promotees and officers appointed by transfer, the said appointment has to be treated as an invalid appointment and it can be treated as a regular appointment only when a vacancy is available against the promotional quota against which the said appointment can be regularized. In other words, any such appointment in excess of the quota has to be pushed down to a later year when it can be regularized as per the quota and such an appointment prior to regularization cannot confer any right as against a person who is directly appointed within the quota prescribed for direct recruits.
53. In the case of Mahmood Hasan-vs.-State of UP (supra), where the Hon'ble Supreme Court found that the number of officials seeking promotion on the ground that their juniors have been promoted is almost as large as the total strength of the promotional cadre, the Hon'ble Apex court at paragraph 23 of the judgment directed as follows:-
"23. The exceptional situation has arisen because the number of officials seeking promotion on the ground that their juniors have been promoted is almost as large as the total strength of the promotional cadre. The proper course in such a situation is for the juniors to vacate and to make room for their senior colleagues. To restore the balance it is necessary to recall the orders dated 28.1.1985, 4.12.1987 and 1.10.1991 and to set aside all orders of the High Court passed in the matter after 28.1.1985 as well as all orders for promotion made by the State Government during this period and to direct that promotions be made, keeping in view all relevant rules and norms, with retrospective effect from the date a vacancy arises for an incumbent according to the State Level Seniority List now prepared and submitted to the Court. However, those promoted prior to 1.1.1985 and protected by the U.P. Regularisation of Ad hoc Promotions (on posts within the purview of PSC) Rules, 1988 need not be disturbed. It is needless to say that those promoted with retrospective effect will be entitled to all pecuniary benefits of such promotion. However, those who will have to step down on account of this correctional process need not refund the pecuniary or other benefit enjoyed by them for they had actually worked as Supply Inspectors during that period. We order accordingly. All the writ petitions, the appeal, the interim application, the review petition and the contempt petition shall stand disposed of in the above terms."
54. In the case of Ajit Kumar Rath-vs.-State of Orissa (supra), it was contended on behalf of the direct recruits that the promotees had appeared before the Orissa Public Service Commission for direct recruitment on the posts of Assistant Engineer but they were unsuccessful and as such they could not be given a march over the direct recruits in the matter of seniority by way of promotion. The Hon'ble Supreme Court rejected this contention and held that failure to get promotion by direct recruitment did not prohibit promotion of the appellant to the post of Assistant Engineer in his own channel of promotion. He was eligible and was consequently selected by the Chief Engineer and later appointed as Assistant Engineer by promotion by the State Government.
55. Taking into consideration the law laid down by the Hon'ble Supreme Court, as discussed hereinabove, we have no option but to come to the conclusion that appointment by way of direct recruitment beyond the quota is not sustainable. Such appointment does not confer any right on the direct recruits. Such appointments cannot be permitted to adversely affect the rights of the promotees which they have acquired by dint of their service.
56. In this connection, Ld. Counsel for the direct recruits contended that a promotee cannot be given seniority before the date he was borne in the cadre. According to him, the promotees were given birth in the cadre of Assistant Engineer (Civil) on 25th June, 1999 and, hence, they cannot be given seniority with effect from 1997. We have gone through the decisions cited on behalf of the direct recruits in this connection. In the case of P. Sudhakar Rao-vs.-U. Govinda Rao (supra), the Hon'ble Apex Court referred to its earlier decisions and reiterated that retrospective seniority cannot be given to an employee from date when he was not even born in the cadre. So also seniority cannot be given with retrospective effect so as to adversely affect others. Seniority amongst members on the same grade must be counted from the date of their initial entry into the grade. In the case of Pawan Pratap Singh-vs.-Reevan Singh (supra), at paragraph 45 of the judgment the Hon'ble Supreme Court observed as follows:-
"45. From the above, the legal position with regard to determination of seniority in service can be summarized as follows :
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made.
It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee was not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."57. In the case of Amarjeet Singh-vs.-Devi Ratan (supra), the Hon'ble Supreme Court observed that the law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions like an intervention by the court. An officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officers who had been appointed prior to him. The latecomers to the regular stream cannot steal a march over the earlier arrival in the regular queue.
58. None of the above decisions lay down any absolute proposition of law that promotion with retrospective effect is not permissible under any circumstances. After all, the writ court is a court of equity and is empowered to mould the reliefs claimed to do complete justice between the parties. In the instant case it cannot be said that the promotees were born in the cadre of Assistant Engineer only when they were granted promotion. In our view, none of the aforesaid decisions relied upon on behalf of the direct recruits helps them.
59. The Ld. Judge came to a categorical finding that the decision making process of the respondent authority in filling up the vacancies for the post of Assistant Engineer (Civil) during the period from 15.7.1996 to 15.7.1998 to the extent pointed out, cannot be sustained in law. However, had the Ld. Judge set aside the appointments made by way of direct recruitment in excess of the vacancies available in accordance with law, the same would have caused a complete disruption in the position and posting of persons appointed way back. Accordingly, the Ld. Judge moulded the relief by directing the respondent corporation to re-fix the seniority of the promotees in accordance with the law notionally from the stage of their appointment on promotion in the post of Assistant Engineer (Civil) i.e. to re-fix the seniority of the promotees notionally above the person who was appointed against the 9th vacancy in the post of Assistant Engineer (Civil) by way of direct recruitment during the period from 15.7.1996 to 15.7.1998. We are of the opinion that this was the most prudent and rational thing to do in the peculiar facts and circumstances of the case. We are in complete agreement with the course adopted by the Ld. Judge.
60. In the cross-objection it has been urged by the promotees that the Ld. Judge erred in not granting the consequential financial benefits to the promotees. In our view this grievance of the promotees is justified. If the Court comes to conclusion that a person was wrongly denied promotion and accordingly directs the employer to grant promotion to that person with retrospective effect from an earlier date, then and in that event, the concerned employee should be entitled to the financial and other benefits with effect from such earlier date. In the case of Mehmood Hasan (supra), the Hon'ble Supreme Court observed that it is needless to say that those promoted with retrospective effect will be entitled to all the pecuniary benefits of such promotion. In the case of State of Andra Pradesh vs. K.L.V. Narasimha Rao (supra), the Hon'ble Supreme Court observed that in normal circumstances, when the retrospective promotions are effected, all the benefits flowing therefrom including the monetary benefits, must be extended to an officer who has been denied promotion earlier.
61. In the case of Ramesh Kumar-vs.-Union of India (supra), the Hon'ble Supreme Court held that when the appellant was granted ante-dated seniority w.e.f. 01.08.1997, there is no reason as to why he should be denied pay and allowances in the promotional post w.e.f. 01.08.1997 till the date of his actual promotion on 13.11.2000. At paragraph 13 of the judgment the Hon'ble Supreme Court held as follows:-
"We are conscious that even in the absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of 'no work no pay' would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority along with his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar."
62. In view of the aforesaid, we are of the opinion that the promotees are entitled to receive monetary and other benefits incidental to such promotion with effect from the date of notional promotion.
63. In conclusion, therefore, F.M.A. No. 2555 of 2013 and A.P.O. No. 272 of 2013 are dismissed. The cross-objections are allowed to the extent indicated above. In the facts and circumstances of the case there shall be no order as to costs.
64. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
I Agree.
(Manjula Chellur, CJ.) (Arijit Banerjee, J.)