Calcutta High Court (Appellete Side)
Ravi Prakash Gautam vs The Secretary on 17 April, 2019
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
W.P. No. 28939 (W) of 2016
Ravi Prakash Gautam
-Versus-
The Secretary, Ministry of Culture,
Government of India & Ors.
For the Petitioner : Mr. Santanu Chakraborty
For the Respondent No. 1 : Mr. N.L. Singhania
For the Respondent No. 2 : Mr. Victor Chatterjee : Mr. Partha Banerjee Hearing concluded on. : 18.01.2019 BEFORE ABHIJIT GANGOPADHYAY Judge Date of Judgment : April 17, 2019 ABHIJIT GANGOPADHYAY, J. :-
21. In this matter the writ petitioner has made two prayers in the final hearing stage. One is for promotion to the post of Caretaker (CT in short, hereafter) of Victoria Memorial Hall (VMH, in short, hereafter) and the other prayer is for payment of grade pay of Rs. 2400/- to Rs. 2800/- from May 2003 to May 2013.
2. At the very outset regarding the second prayer I say that this has been rejected by the Ministry of Culture, Union of India, by it letter dated July 19, 2013 which was been disclosed in the affidavit-in-opposition of the Respondent No.2. In respect of this rejection no proper reply which may be accepted by this Court, has been given by the petitioner as appears from the affidavit-in-
reply of the petitioner and I reject this prayer relating to grade pay.
3. Now I proceed to see whether there is any merit in the claim of the petitioner for his promotion to the post of Caretaker in VMH.
4. The petitioner has alleged that he was not given promotion and has alleged that on the basis of Caste (the petitioner is a person belonging Scheduled Caste community) which was manifested in denial of his promotion to the post of CT of VMH, he approached National Commission for Scheduled Castes (NCSC, in short, hereafter). NCSC took up the matter and finally passed an order effective part whereof is as follows:
"During the pendency the Joint Secretary M/o Culture has informed that the matter was placed before the Board of Trustee of Victoria Memorial Hall Kolkata and the Board agreed to consider the petitioner cadre of Non-technical to Technical grade.3
The petitioner was also agreed to the Deptt's action taken.
The matter disclosed in detail. It was observed that the petitioner's claim for change of cadre has been accepted by the Deptt. However, the JS, (MoC, in short, hereafter) whether the petitioner could be permitted to the post of Caretaker (CT, in short) having grade pay of Rs. 4200/- in the said letter of VMH copy of recruitment regulation (RR, in short) of CT was enclosed.
This has been annexed of the annexure- G of the writ application".
5. Subsequently, on 7th March 2016 a final seniority list (at page 60 of the writ application) was published by VMH showing the petitioner as the only eligible candidate according to existing RR and order of MoC F. No.16-12/2014-M-II dated 4th March 2016(hereinafter referred to as 4th March order of MoC).
6. It has been alleged by the writ petitioner that thereafter no step was taken.
Hence this writ application has been filed on 8th December 2016.
7. The respondent No. 2 being Secretary & Curator of VMH (hereinafter referred to as R-2) filed affidavit-in-opposition affirmed on 20th April 2017.
No affidavit-in-opposition has been filed by the respondent No. 1 i.e. and the Secretary of MoC, Government of India.
8. In the said affidavit of R-2 it has been stated that there is no approved R/R for the post of CT; there is no sanctioned post of CT in VMH took positive steps taken towards formation of 4 DPC; No R/R and promotion rule to the pose of CT has been finalised.
In support of such contention R-2 has disclosed two letters written by VMH. One is dated 11 September 1984 and the other is dated 21 August 1986.
9. As letter dated 11 September, 1984 does not contend signature of any person no value is attached to this letter. The other letter dated 21 August 1986 was for approval of MoC for conversion of the post from Security Assistant to Caretaker.
10. The petitioner beside filling affidavit-in-opposition has filed and served upon the respondents supplementary affidavit affirmed on 27.09.2018. From the affidavit of service affirmed on 27.09.2018 by the petitioner it is found that the said supplementary affidavit was served upon the respondents on October 01, 2018.
In the said supplementary affidavit a letter of the Secretary & Curator, of VMH has been annexed wherefrom it is found that within the sanctioned strength of garden staff there was a post of Caretaker for building as well as garden and from page 4 of the said letter it is found that pay scale of the CT at that point of time was Rs. 1350-2200.
Despite service of this supplementary affidavit containing the aforesaid letter it has not been denied by either of the respondents.
11. The letter dated August 21, 1986 disclosed by R-2 in his affidavit was written by a person whose designation has not been 5 disclosed. However, I have compared the signature of the letter dated January 12, 1991 (disclosed in the supplementary affidavit as aforesaid) written by Dr. Hiren Chakrabarti, the then Secretary & Curator of VMH, with the signature of the signatory of the letter dated 21.08.1986 and on comparison I am satisfied that the letter dated 21 August, 1986 was written by the then Secretary & curator of VMH, Dr. Hiren Chakrabarti.
12. It is evident from the said letter dated 21 August 1986 that it is not related to approval of post of CT. This letter is related to the approval for conversion of post of Security Officer to CT which has been stated above.
Approval of a post and approval for conversion of a post from one post to other are different matters. R-2 in paragraph 12 in affidavit-in-opposition himself has submitted that proposal of conversion with MoC is pending. Thus R-2 knows very well that it was not approval to post of CT which is pending, what is pending is a proposal for approval to conversion of a post to another.
R-2 has tried to show this letter dated 21 August 1986 as a letter for approval for the post of CT which is not at all correct.
13. Here I take note of two facts; one is, while dealing with the final seniority list in the affidavit of R-2 it has not been denied that there was no existing R/R according to which the petitioner was declared as an eligible candidate for the post of CT which was vacant (as appears from the final seniority list) from December 01, 2011 and there is no whisper in the affidavit of R-2 about the order MoC dated March 04, 2016.
614. The other fact which I take note in this respect is that the letter of the then Secretary & Curator of VMH dated 12th November, 1991 (disclosed in the supplementary affidavit of the petitioner) was written more than 5 (five) years after the letter dated 21st August, 1986 wherein request was made for conversion of post of Security Assistant to CT. This letter dated 12th November 1991 has not been dealt with by R-2 in his affidavit.
15. Therefore, it is evident that in the year 1991 there was sanction strength of garden staff wherein one post was for Caretaker for building as well as garden. That post of CT was vacant from 1st September, 2011. The petitioner was eligible according to the existing R/R and he was the only eligible candidate for the post of CT on 7th March, 2016.
16. On May 11,2015 it was recorded by NCSC that Board of Trustees of VMH agreed to change the petitioner's cadre from 'non-technical to technical'. This recorded expression 'non- technical to technical' is an error which is evident from the letter of VMH dated 16 November 2013 (annexure B-1 of the writ application) wherein it is stated by VMH that CT is a 'non- technical post'. In the interim order of the NCSC dated 19th March, 2015 it has been recorded that the petitioner is in 'technical post' he wanted to be permitted from 'technical post of non-technical post' (vide page 42 of the writ application, fresh type at (page 44).
7Therefore, I hold the error create in the final order of NCSC dated May 11,2015 is a curable error and the NCSC wanted to say 'technical to non-technical' and I have no doubt that NCSC meant so. The tenor of the whole case also shows that the above expression in the final order of NCSC was made erroneously when they actually wanted to say 'technical to non-technical'.
17. In respect of the final seniority list it has been stated by R-2 that taking out a seniority list does not by any means suggest that the petitioner has been deprived in any way.
In this regard I have taken note of the final order of NCSC dated 11 May 2015, effective part whereof has been quoted above; I have taken note of the VMH's letter dated 16.01.2016; I have taken note of the date of publication of publication final seniority list dated 7th March 2016; I have taken note of order of MoC dated 04.03.2016 as mentioned in the said final seniority list. It has not been stated by the respondent that the was cancelled and no document showing its deferring has been produced. Submission of R-2 in this respect is wholly rejected.
18. From the above documents a sequence of event becomes clear: order of NCSC - letter of VMH - an order of MoC dated 04.03.2016 - publication of final seniority list.
Ministry had already intimated NCMS that Board of Trustees of VMH agreed to change the petitioner's cadre.
819. In the written notes of argument of R-2 it has been stated that post of CT was created by Board of Trustees of VHM in 1984 but approval to the post is pending. This factual statement has not been made by R-2 in the affidavit of R-2 with such particular. From a letter dated August 21, 1986 it is found that by letter No. V.M.117/14 dated May 11,1984 post facto approval to the conversion of the post of Security Assistant to that of CT was made. Thus this submission of fact that post was created but approval is still pending is a misleading one and pendency of a proposal for 35 years shows that VMH is not at all serious for the conversion of for the post and reason of it is best known to the VMH authority.
20. Though the respondent No 1 has not file any affidavit-in- opposition it has filed one written notes of argument. From which two factual submissions are found. One of which is that a post of CT is get to be sanctioned by MoC. Since such a fact has not been stated by way of affidavit taking responsibility of the statement I do not give any importance to it. From documents and records it is found that a conversion proposal of VMH is pending for 35 years.
The other factual submission is that before NCSC it was decided that the petitioner application should be considered but this was an interim order dated March 17, 2015. In the final order dated May 11, 2015 petitioner's claim for change of cadre was accepted by NCSC and no objection thereto has been raised at any point of time in any manner whatsoever by the 9 respondents. The respondent No. 1 has not used any affidavit and has not disclosed the order of MoC dated 4th March 2016 which has been mentioned against the name of the petitioner in the final seniority list. Why this order dated 4th March 2016 of MoC has not been disclosed by R-1 is best known to it.
For such reason I do not attach any value to this submission of R - 1 also.
21. The other submissions made by the R-1 and R-2 as contained in their written notes of argument and their submission made from the Bar have been considered by me and in the facts and circumstances discussed above the submission are found to be of no substance and are devoid of any merit in respect of the facts which come to light from the pleadings of the parties.
Respondent No. 3 has not participated in the proceeding and thus there was no question of filing any affidavit by him.
22. From the above facts I hold that there is a permanent post of CT which is within the sanctioned strength of garden staff of VMH as appears from the letter of the Secretary & Curator of VMH dated November 12, 1991; I hold that there is an existing R/R according to which the petitioner was declared as the only eligible candidate for the post of CT. I further hold that despite agreeing before NCSC to change the petitioner's cadre no steps have been for promoting the petitioner to the post of CT till date despite the petitioner being the only eligible candidate is waiting 10 for the post of CT which is admitted by vacant from December 01, 2011.
23. Based on the facts and circumstances of the case discussed above I direct the R-2 to take all steps to promote the petitioner to the post of CT working now by removing the ad-hoc CT within a period of 4 weeks from date in the appropriate scale of pay with all other benefits attached to that post.
The Contention of R-2 that the post of CT is still to be approved as a permanent post by MoC is wholly rejected.
The writ application is allowed to the above extent with cost of Re. 1 (one Rupee) imposed upon the Secretary & Curator of VMH.
(Abhijit Gangopadhyay, J.)