Calcutta High Court (Appellete Side)
Shri Swapan Kumar Das vs Sri Ambar Kumar Basu Mallick & Ors on 13 May, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Rakesh Tiwari
W.P.C.T No. 164 of 2010
SHRI SWAPAN KUMAR DAS
...PETITIONER
VERSUS
SRI AMBAR KUMAR BASU MALLICK & ORS.
...RESPONDENTS
For the petitioner : Mr. Bhabani Prasad Mondal For the respondents : Mr. Indrajit Biswas, For the U.O.I : Mr. Shymal De.
Heard on : 07.04.2016
Judgment on : 13/05/2016
Rakesh Tiwari, J. :- The petitioner, Shri Swapan
Kumar Das was appointed as "Stenographer Grade - C" in pay scale of Rs.5,500/- to Rs.9000/- on 12/04/1993 under the Ministry of Home Affairs, New Delhi thorough Grade "C" Stenographers' Limited Departmental Examination conducted by the Staff Selection Commission. He worked on the post till 19/09/2000 i.e. for more than seven and half years.
Pursuant to an advertisement published by the Additional Bench, Settlement Commission (IT & WT) at Kolkata (hereinafter referred to as Settlement Commission) in the Employment News the petitioner joined the post of Private Secretary on 20/09/2000, on deputation basis in the pay scale of Rs.6500-200-10500/- and remained on the post for a period of about four years. He again submitted an application dated 29/01/2004 through Ministry of Home Affairs, Government of India for appointment on permanent basis on the post of Stenographer Grade - II on permanent basis, in the scale of Rs.5000-150-8000/- in the Kolkata Bench of "Settlement Commission" on transfer basis "No Objection Certificate" was sought from his parent department by the under Secretary vide letter dated 7/5/2004. The Government of India, Ministry of Finance and Company Affairs, Department of Revenue, Settlement Commission (IT & WT), Additional Bench, Kolkata vide its letter dated 4/7 June, 2004, to the Sr. Private Secretary Settlement Commission suggested that petitioner be informed that as the post of Stenographer was carrying lower pay scale than the substantive post held by him, therefore, he may stand to lose his seniority etc. and considered as junior most in the grade of Stenographer Grade - II to the Income Tax Settlement Commission, Kolkata Bench. The letter dated 4/7 June, 2004 from Government of India Ministry of Finance & Company Affairs, aforesaid on the subject of application of the petitioner for the post of Stenographer Gr.II on transfer basis and issuance of "N.O.C." from his parent Department reads:
"I am directed to refer to your application dated 29/01/2004 for appointment to the post of Stenographer Gr. II on permanent basis. When "No Objection" was sought from your parent Ministry, the under Secretary thereof vide his letter no. A-35014/14/2000 - Ad. VI dated 7/5/2004 suggested that you be informed as below:
"The scale of pay of Stenographer Gr. II is Rs.5000/- - Rs.8000/- i.e. the post is carrying lower pay scale than that of substantive post held by you. Generally, in such cases, you shall stand to lose your seniority and other related benefits and shall be considered as the junior most in the grade of Stenographer Gr. II as on the date of joining in Settlement Commission. The service rendered by you in your parent Department shall, however, count only for the purpose of pensionary benefits under Rule 26 (2) of CCS Rule, 1972."
Your parent Department has desired your concurrence regarding above consequences in respect of your seniority and other related benefits so that the matter may be taken up further by them.
Please submit your concurrence or otherwise by 10/06/2004 so that the same is forwarded to them for further necessary action."
The petitioner by means of his letter dated 7/6/2014 addressed to the Superintendent, "Settlement Commission" gave his concurrence saying that this appointment may be regulated as per the relevant Central Civil Service Rules and he would face the consequences resulting therefrom. For ready reference the letter dated 7/6/2004 is reproduced below:
"To The Superintendent Settlement Commission (IT & WT) Additional Bench 10-C, Middleton Row Kolkata - 700 071.
Subject: Appointment to the post of Stenographer Gr. II on transfer basis - Concurrence thereto - Reg.
Sir,
With reference to your O.M. No.
SC/CAL/AB/2/5/2001-202/507 dated 7 th June,
2004 on the subject mentioned above I hereby give my concurrence to my appointment to the post of Stenographer Gr. II of this Bench on transfer basis with a mention that my service conditions after my appointment to the said post of Stenographer Gr. II on transfer basis may be regulated as per the relevant CCS Rules. I shall face the consequences resulting there-from.
Thanking You, Yours faithfully, (Swapan Kumar Das) Sr. Private Secretary (On deputation)"
On the last day of deputation, the petitioner who was working as Stenographer Grade - 'C' in Central Secretariat Stenographers' Service Cadre, Ministry of Home Affairs, was issued appointment letter dated 17/9/2004 by the then Vice-Chairman of "Settlement Commission" appointing him as Stenographer Grade - II in pay scale of Rs.5000-150-8000/- with immediate effect during his extended period of deputation after due authorisation by the Chairman, Settlement Commission (IT & WT), Principal Bench, New Delhi.
The petitioner, then by means of his letter dated 30/6/2006 requested the Secretary, of the "Settlement Commission," to fix his seniority on the basis of modified C.C.S. Rules. Seniority list dated 15/02/2007 was prepared and communicated to the writ petitioner.
Aggrieved, by the aforesaid seniority list dated 15/02/2007, by the Settlement Commission respondent no. 1, Ambar Kumar Basu Mallick, challenged the seniority list by means of O.A. No. 554 of 2007 before the Central Administrative Tribunal, Kolkata Bench on the grounds that he was appointed on deputation basis on the post of Stenographer Grade- II in the Income Tax Settlement Commission in the year 1994 and was absorbed in the said post of Stenographer Grade- II on regular basis on 13/5/1999, as such became eligible for promotion in the vacant post of Private Secretary in the said Commission. After putting in six years of service in the feeder post of Stenographer Grade - II.
The relief prayed by him in the O.A 554/2007, A.K Basu Mallick versus U.O.I & others were: -
(a) "The respondents be directed to ordered to show him senior to Shri Swapan Kr. Das as per the provisions of the relevant rules on the subject.
(b) The respondents be further directed ordered to consider him for promotion to the post of Private Secretary as he has already completed the minimum eligibility period of service in the feeder grade of Stenographer Grade II in the scale of pay of Rs.5500-
9000/- as per precedent in Principal Bench, New Delhi where one Shri Pant has been considered after putting in minimum six years of service in the feeder post of Stenographer Grade II and ultimately promoted to the post of Private Secretary in the scale of pay of Rs.6500-10500/-."
The Central Administrative Tribunal, Kolkata Bench disposed of the O.A No. 554 of 2007 vide judgement and order dated 10/05/2010 by setting aside the Seniority List dated 15/02/2007 with a direction to the Income Tax Settlement Commission, Kolkata Bench to revise the seniority list placing the petitioner S.K. Das below respondent no.1. The relevant findings of the CAT in Para 4 to 6 of the judgement impugned reads:-
"4. We have given our due consideration to the pleadings and materials placed on record and arguments advanced by the Ld. Counsel for the parties. For better elucidation it is pertinent to quote below the letter dated 28/11/2006:
"Shri A.K. Basu Mallick, Steno Grade II has filed a petition dated 28/11/2006 which is enclosed herewith. He has made a representation in respect of his promotion. He has also expressed his apprehension regarding possible loss for seniority vis-à-vis Shri Swapan Kumar Das, Steno Grade II.
Since a promotion has been effected in the Principal Bench in Delhi in a similar case, it is for consideration if Shri Basu Mallick should also be promoted following the same precedent. As regards seniority of Shri Basu Mallick vis-à-vis Shri Swapan Kr. Das, it is to be noted that Shri Das had given an undertaking at the time of absorption that he would not avail of his seniority."
5. In that letter the respondents have stated that the private respondent had given undertaking at the time of absorption that he would not avail his seniority. Moreover it is also admitted fact that as made out in the reply statement that the scale of pay of Stenographer Gr. II is Rs.5000-8000/- i.e. the post is carrying lower pay scale than that of substantive post held by him. Generally, in such cases, he shall stand to lose his seniority and other related benefits and shall be considered as the junior most in the grade of Stenographer Gr. II as on the date of joining in Settlement Commission. The services rendered by him in his parent Department shall, however, count only for the purpose of pensionary benefits under Rule 26(2) of CCS Rule, 1972. The respondents had sought Shri Das's concurrence regarding the above mentioned consequences about his seniority and other related benefits. In reply to that Shri Das had submitted his concurrence mentioning that his service conditions after his appointment to the post of Stenographer Gr. II on transfer basis may be regulated as per the relevant CCS Rules.
6. On going through the rule position we find that as per CCS Rule 26(2), 1972 a person comes on transfer from other place will go to the bottom seniority which, according to the respondents, has been accepted by the applicant. From the materials placed on record and the evidences thereof, we are of the considered view that the seniority list that has been prepared by the applicant putting the applicant junior to the respondent no. 6 is not correct. Therefore, it has to be rectified. For that purpose, we set aside the impugned order at Annexure-A/2 dated 15/2/2007 putting the applicant junior to the private respondent and we also set aside the seniority list and direct the respondents to give appropriate seniority as per rule to the applicant within a time-frame of three moths from the date of receipt of copy of this order and also give all consequential benefits, such as promotion etc., if he so deserves. The OA is disposed of. In the circumstances, no order is passed as to costs." The petitioner Swapan Kumar Das, has challenged before us the correctness of the judgement dated 10/05/2010 passed by the CAT in the aforesaid O.A No. 554 of 2007 in W.P.C.T No. 164 of 2010 on the grounds that the issues involved in the case were not properly considered by it in the light of the relevant rules and provisions; that the tribunal had incorrectly observed in its judgement that "it is to be noted that Shri Das had given an undertaking at the time of absorption that he would not avail of his seniority" and that the words "generally in such cases" occurring in letter dated 4/7 /06/2004 signifies a general principle whereas Rule 26 (2) of the CCS Rules 1973 provide for forfeiture of service but these provisions are not applicable to the case of the petitioner since he was recruited from one government department to another, hence his seniority is liable to be restored by setting aside the seniority list dated 14/07/2000.
Petitioner's counsel would argue that in fact, respondent Ambar Kumar Basu Mallick was junior to him when he was holding the post of Stenographer Grade- 'C' in his parent department under the Ministry of Home Affairs before he came on deputation in Settlement Commission and that the pay scale of "Stenographer Grade - II" in the Income Tax Settlement Commission was almost of equivalent cadre, as such, the little difference in pay scale of the two posts would not be material for the purpose of computing seniority. In support of this contention he relied upon the judgement rendered in K. Madhvan and another versus Union of India and others reported in AIR 1987 SC 2291 which was followed in the case of Rooplal and another versus Lieutenant Governor through Chief Secretary, Delhi and others reported in AIR 2000 SC 594. According to the petitioner the aforesaid cases support his contentions in respect of computation of seniority of a transferred Government servant from one Government department to another in the same or equivalent post and pay scale.
It is lastly argued that the tribunal had mechanically accepted the contentions of the respondent without application of mind to the Settlement Commission (IT & WT) 'Group-C' posts) Recruitment Rules 1982, that the tribunal has wrongly observed that the petitioner on his own request had been transferred from the post of Private Secretary to the post of Stenographer Grade- II which was a post of lower pay scale and had given his concurrence accepting bottom seniority of his appointment on transfer basis, as such the judgement impugned in the present writ petition being against the rule position too, is liable to be set aside.
Per contra, learned counsel for the respondent contends that ratio of cases cited by the petitioner's counsel do not apply to the case. He submits that method of recruitment to Group 'C' posts in the Settlement Commission (Income Tax / Wealth Tax) is regulated by rules; that foot note letter dated 3rd March, 2013 also shows that these rules were to be revised when completed and information in the scheduled may change. It is stated that the post of Stenographer Group-'C' held by the petitioner in his parent department though was higher, but pursuant to the advertisement for appointment on the post of Stenographer Grade - II, he on his own accord had applied for lower post of Stenographer Grade - II in the "Settlement Commission"
and accepted the appointment willingly on lower pay scale of Stenographer Grade - II as he wanted to live at Kolkata with his family, that he was absorbed in the Settlement Commission in 2005. Whereas the respondent was absorbed on the post of Stenographer Grade - II in 1994.
Hence, the petitioner Swapan Kumar Das would stand to loose his seniority of his parent department as per Rule 26(2) of the CCS Rules and respondent on all these counts was senior to him.
Counsel for the respondent also submits that admittedly the grade of Group 'C' post on which the petitioner was working in his parent department was higher it was not equivalent to the post of Stenographer Grade - II which carried lower pay scale. The word 'Almost' is not analogous to same or equivalent and in any case the tribunal has after considering the rule provision passed the judgement impugned which is in accordance with law.
He also submits that perusal of Para 6 of the affidavit-in-opposition affirmed on 20/3/2014 filed on behalf of respondent nos. 2, 3 and 4 shows that issue of seniority between the petitioner and respondent no. 1 was considered by the Settlement Commission, Additional Bench, Kolkata, keeping in view the relevant (modified) Central Service Rules with regard to deputation.
According to him, the rules of deputation upon which the petitioner is relying were not in force at the relevant time and were to be published.
No other point has been argued that the counsel for the parties.
From the arguments of the learned counsel of the parties the moot questions for determination which arise are as to
i) Whether the post of "Stenographer Grade-C"
having the scale of pay of Rs.5500-175-9000/- held by the writ petitioner under the Ministry of Home Affairs, New Delhi, Government of India and the post of "Stenographer Grade - II"
having the scale of pay of Rs.5000-150-8000/-
held by the him since 2004 under the Income Tax Settlement Commission, Additional Bench, Kolkata, Government of India, Ministry of Finance under the two different Government Departments, are equivalent?
ii) Whether the petitioner on acceptance of lower post of Stenographer Grade - II in lower pay scale of Rs.5000-150-8000/- by way of transfer on his own accord loses his seniority, according to Rules, as a consequence thereof, particularly when he was absorbed on the lower post afterwards in year 2005 while working.
It would now be desirable that before proceeding with the case on merits, the cases cited by petitioner may be discussed. In para 15 of the judgement in S.I Rooplal and another versus Lieutenant Governor through Chief Secretary, Delhi and others reported in AIR 2000 SC 594 relied by the petitioner counsel, the court while referring to K. Madhavan's case (supra) observed in paragraph 15 thus:-
"We will now take up the question whether the appellants are entitled to count their service rendered by them as Sub-Inspector in the BSF for the purpose of their seniority after absorption as Sub-Inspector (Executive) in Delhi Police or not. We have already noticed the fact that it is pursuant to the needs of Delhi Police that these officials were deputed to Delhi Police from the BSF following the procedure laid down in Rule 5(h) of the Rules and subsequently absorbed as contemplated under the said Rules. It is also not in dispute that at some point of time in the BSF, the appellants' services were regularised in the post of Sub-Inspector and they were transferred as regularly appointed Sub-Inspectors to Delhi Police Force. Therefore, on being absorbed in an equivalent cadre in the transferred post, we find no reason why these transferred officials should not be permitted to count their service in the parent department. At any rate, this question is not res integra and is squarely covered by the ratio of judgements of this Court in more than one case. Since the earlier Bench of the tribunal relied upon Madhavan's case to give relief to the deputationists, we will first consider the law laid down by this Court in Madhavan's case (AIR 1987 SC 2291) : (1988 Lab IC 26) (supra). This Court in that case while considering a similar question, came to the following conclusion (Para 21 of AIR, Lab IC);
We may examine the question from a different point of view. There is not much difference between deputation and transfer. Indeed, when deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre. See R.S. Mokhshi versus L.M. Menon (1982) 1 SCC 379 : (AIR 1982 SC 101 : 1982 Lab IC 38) Wing Commander J. Kumar versus Union of India (1982) 3 SCR 453: (AIR 1982 SC 1064 : 1982 Lab IC 1586)."
It is apparent from perusal of the aforesaid paragraph 15 that case relied upon by counsel for the writ petitioner does not support his cause for the reasons stated in the paragraph itself. From the ratio laid down in the aforesaid decision of S.I. Rooplal (supra), if a person on deputation from parent post is absorbed in deputationist on same or equivalent post, then his services rendered by him in his parent department would be liable to be counted and not otherwise. In the instant case, the services of the writ petitioner had been absorbed on a lower post of Stenographer Grade - II in the year 2005 which was not of same or equivalent grade as Grade- 'C' post on which the petitioner in his parent department. Therefore, in these facts, he cannot have the benefit of the ratio laid down in Paragraph 15 of S.I. Ruplal.
In regard to the issues, we notice that is apparent from notification dated 3rd March, 1982 in exercise of powers conferred by the provisions of Article 309 of the Constitution. Recruitment rules for Group 'C' posts were to be published in Part 2 Section 3 of Sub-section (1) of Gazette of India, Government of India, Ministry of Finance, Department of Revenue. The Method of recruitment to Group 'C' posts in the Settlement Commission (Income Tax / Wealth Tax) is regulated by rules. The foot note in this notification dated 3rd March, 1982 also shows that these rules were to be revised when complete, information in the 'Scheduled' may change.
We also find from record that respondent no. 1 neither filed his affidavit-in-opposition nor prayed for extended time for filing any such affidavit-in-opposition. On the other hand, an affidavit-in-opposition appears to have been affirmed on 28/03/2014 through Anubrata Chatterjee, Superintendent, Income Tax Settlement Commission, Additional Bench, Kolkata on behalf of respondent nos. 2, 3 and 4 after service of its copy upon the counsel for the petitioner on 31/03/2014. The relevant (modified) Central Service Rules in the case of deputation, being absorbed on deputation in Para 6 reads:
6. The issue of fixing seniority between the writ petitioner and the private respondent no. 1 was duly considered by the Settlement Commission, Additional Bench, Kolkata and accordingly, a Seniority List was prepared by the said Commission. Thereafter, the Superintendent of the Income Tax Settlement Commission, Additional Bench, Kolkata circulated the Seniority List dated 15/02/2007 amongst the official in the post of 'Stenographer Grade - II' working in the Income Tax Settlement Commission, Additional Bench, Kolkata. In the said Seniority List, the writ petitioner was placed at the serial no. 1 and the respondent no. 1 was placed at the serial no. 2. It appears from the said Seniority List that past service of the writ petitioner in his parent department i.e. the Ministry of Home Affairs, had been taken into consideration on the basis of relevant (modified) Central Civil Service Rules. The relevant (modified) Central Civil Service Rules in the case of deputationists being absorbed after being on deputation are quoted hereunder:
"3.4.1 In the case of a person who is initially taken on deputation and absorbed later (i.e where the relevant Recuritment Rules provide for deputation/absorption"), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from -
The date he has been holding the post on deputation.
(Or) The date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department. Whichever is earlier."
"3.4.2 The fixation of seniority of an absorbee in accordance with the above principle will not, however, affect any regular promotion to the next higher grade made prior to the date of such absorption. In other words, it will be operative only in filling up of vacancies in higher grade taking place after such absorption."
"3.4.3 In cases in which absorbees are not strictly in public interest, the transferred officers will be placed below all officers appointed regularly to the grade on the date of absorption."
"3.4.4 It is also clarified that for the purpose of determining the equivalent grade in the parent department, the criteria contained in Office Memorandum No. 14017/27/75-Estt. (D), dated the 17th March, 1984, which lays down the criteria for determining analogous posts, may be followed."
"3.4.5 Seniority of persons who are transferred and absorbed directly without being on deputation.
In case of a person who is initially taken on deputation and absorbed later, would be applicable also for persons who are transferred and absorbed directly without being on deputation i.e. where the Recruitment Rules provide for recruitment through absorption. The matter has been considered and it has been decided that, in such cases also the provisions as contained in the O.Ms, dated 29/05/1986 and 27/03/2001 would be applicable i.e. the date he has been holding the post on deputation or the date from which he has been appointed on the regular basis to the same or equivalent grade in his parent department, whichever is earlier."
In support of his contention, counsel for the respondents relied upon paragraph 11 of the judgement rendered by the Apex Court in K.P. Sudhakaran and another versus State of Kerala and others dated 11th May, 2006 in case no. Appeal (Civil) 9527 of 2003. Wherein it has been held:
"In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior-most employee in the category in the new cadre of department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service Rules."
It is crystal clear from the arguments advanced by the learned Counsel for the petitioner and from the record that petitioner joined on 'Group-C' post to the Ministry of Home Affairs in pay scale of Rs.5500 to 9000/-. He was on deputation, thereafter in Settlement Commission where he joined in pay scale Rs.6500-200- 10,500/-. It is only pursuant to his application dated 20/04/2004 for appointment on a lower post of Stenographer at Kolkata under the Settlement Commission (IT & WT), Additional Bench, Kolkata that he was appointed therein and joined in 29/01/2004 on a lower post of the Stenographer Grade - II in pay scale of Rs.5000-150-8000/-.
It also appears from record that he was absorbed in 2005 as such on the said post of Stenographer Grade - II. The seniority list was published by the Superintendent of the Income Tax Settlement Commission on 15/02/2007, on a representation of the petitioner which was communicated him and against which a representation was made by the respondents claiming himself to be senior to the writ petitioner. It is in the aforesaid facts and circumstances that the case of the respondent holding him to be senior to the petitioner S.K Das was accepted by the Central Administrative Tribunal.
In view of the law laid down in the case K.P. Sudhakaran (supra) that "But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom/below the junior-most employee in the category in the new cadre of department," and the effect of his joining on a lower post in the letter dated 4/7 June, 2004 communicated to him as well as the fact that he was absorbed on lower post in 2005, later in point of time to respondent no. 1 he would not be senior to him. He would also loose his seniority on his transfer on the post of Stenographer Grade-II on which he applied and was liable to be placed at the bottom of seniority of Stenographer Grade - II below the junior most employee in the said cadre/grade.
We, therefore, are of the considered opinion that petitioner having applied and joined by way of transfer on a lower post of Stenographer Grade - II would amount to joining a lower post/pay scale at his own request and after his absorption in 2005 on the said post was not entitled to his services of parent department rendered in 'Group-C' or on deputation being counted for the purpose of the seniority, in accordance with Rules applicable to him which provide for deputation/absorption. His seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation.
For all the reasons stated above, we do not find any illegality and infirmity of the order. In the circumstances, impugned order does not require any interference by this Court, the writ petition is accordingly dismissed.
There will be no order as to costs.
(Rakesh Tiwari, J.) (Nishita Mhatre, J.)