Calcutta High Court (Appellete Side)
Madan Gopal Mukherjee vs Union Of India & Ors on 10 September, 2021
Item No.2
In The High Court At Calcutta
Constitutional Writ Jurisdiction
(via video conference)
10.09.2021
Ct-24
WPA 11916 of 2021
Madan Gopal Mukherjee
v.
Union of India & Ors.
Mr. Biplab Guha
Mr. N.G. Mukherjee
Ms. Kaushiki Chakraborty
... for the petitioner.
Mr. Abhisek Addhya
... for the Union of India.
Mr. Subrata Mukhopadhyay
Ms. Basabi Raichaudhury
... for the respondent nos. 2 to 7.
The petitioner was serving in the Bengal Engineering and Science University, Shibpur presently renamed as Indian Institute of Engineering Science and Technology, Shibpur.
By an Office Order dated October 9, 2013 the Registrar of the said University communicated to the petitioner that he was being promoted to the post of Superintendent Technical from the Post of Technical Assistant Grade-I with effect from September 20, 2013.
The Institute took steps for fixation of the pay of the petitioner in the post of Superintendent Technical on December 10, 2013. Thereafter by a further 2 communication dated August 25, 2014 the petitioner was intimated that in partial modification of the Office Order dated October 9, 2013 the date of promotion and the date of effect of promotion to the post of Superintendent (Technical) should be read as October 10, 2013 instead of September 20, 2013. The other terms and conditions as laid down in the said order, however, will remain unchanged.
By a communication dated June 19, 2015 the Dean Administration of the Institute communicated to the Deputy Secretary, Higher Education Department, University Branch that the Registrar sent a proposal to the Department of Higher Education for one time relaxation of qualification for four Technical Assistants promoted to the post of Superintendent (Technical). The name of the petitioner was mentioned therein.
It was by a communication dated June 19, 2015 where the petitioner was intimated that the proposal for one time relaxation of qualification was not accepted by the Government and as such the Institute will have no other option but to revoke the promotion order given to him.
The petitioner along with two others challenged the same by way of filing a writ petition being WP No. 26951(W) of 2015. The date of retirement of the petitioner was 30th June, 2017.
3
By a communication dated March 22, 2017 the Assistant Registrar intimated the petitioner that the Institute was not being able to determine the last pay drawn by him and accordingly the pension papers could not be prepared. The petitioner was indirectly intimated that due to pendency of the aforesaid writ petition his pension papers could not be prepared by the Institute.
The petitioner without any further risk prayed before the Court for withdrawal of his name from the pending writ petition. The said writ petition was thereafter considered and disposed of finally by the Court on September 21, 2019 and in the meantime the petitioner retired from service on June 30, 2017 and the Pension Payment Order was issued in his favour.
On March 23, 2017 the petitioner made a representation before the Institute mentioning that he would receive his pension on the previous post held without prejudice. He further mentioned that if the verdict of the Court came in his favour he will be retained in his new post.
The pending writ petition was disposed of by directing the Director of NITESR to take a Skill Test/Trade Test for the two remaining petitioners within a period of forty-five days from the date of communication of a copy of the order and if the petitioners qualified in such Skill Test/Trade Test, their 4 promotion in the said post must be regularized and the same should be effective from October 10, 2013.
It was also submitted by the parties that the post of Superintendent (Technical) as now renamed as the Technical Assistant, Selection Grade-II under the new Institute. Any arrears payable to the petitioners, if found due pursuant to such promotion, was directed to be paid as expeditiously as possible.
The order of the Court was complied with and on May 31, 2020 the Registrar of the Institute passed an order promoting the other two petitioners in the post of Technical Assistant, Grade-II with effect from October 10, 2013.
The petitioner submits that as the petitioner and the other two persons who continued with the writ petition being WP No. 26951(W) of 2015 were sailing on the same boat, accordingly, similar order ought to be passed in his favour.
The learned advocate for the Institute submits that the writ petition is not maintainable as the same is hit by the principles of res judicata.
Instruction has been given by the AR(Admin) and In-Charge, Legal Cell, IIEST, Shibpur to the learned advocate with request to be made to the Court praying for at least two months time, so that the Institute can place the matter before the Board of Governors. Relying 5 on the aforesaid instruction prayer for adjournment has been made by the respondents.
The petitioner has already retired from service in the year 2017. Granting further time to the respondents will only delay the matter.
As it appears that the issue in question has already been decided by the Court by an order dated January 14, 2020 in respect of the other two writ petitioners, who were similarly circumstanced as the petitioner, accordingly, it is appropriate that similar order may be passed in case of the petitioner. The only difference at this stage is that the writ petitioner retired from service in 2017. The authority will only consider as to whether or not he can be subjected to any further Skill Test/Trade Test.
The submission of the respondents regarding the principle of res judicata will not be applicable in the instant case inasmuch as the issue in question qua the petitioner was never decided on merits. On the contrary the issue was decided in favour of the other petitioners similarly placed as that of the present petitioner.
The Board of Governors of the Institute on May 30, 2020 took a decision to promote the other two petitioners in terms of the order of the Court. Accordingly, necessary direction may be passed in case of the petitioner for promoting him to the post of 6 Superintendent (Technical) presently known as the Technical Assistant, Selection Grade-2. The arrears, which will be found due to the petitioner on account of promotion, shall be paid to him at the earliest but positively within a period of three months from the date of communication of a copy of this order.
The Director of Indian Institute of Engineering, Science and Technology being the respondent no. 3 shall pass necessary orders in this matter.
The writ petition stands disposed of.
The instruction given to the learned advocate of the Institute dated September 9, 2021 handed over to the Court is retained with the records.
Urgent photostat certified copy of this order, if applied for, be given to the parties after completion of all legal formalities.
Sh (Amrita Sinha, J.)