Calcutta High Court
Arun Kumar Bhattacharjee And Ors. vs State Of West Bengal And Ors. on 19 July, 1966
Equivalent citations: AIR1968CAL35, (1969)ILLJ45CAL, AIR 1968 CALCUTTA 35, (1969) 1 LABLJ 45
ORDER B.C. Mitra, J.
1. This is an application under Article 226 of the Constitution, in which the petitioners claim a writ in the nature of Mandamus directing the respondents Nos. 1, 2 and 12 to forbear from Riving effect to or withdraw or cancel certain orders which are annexures C and H to the petition Annexure C is a letter from K C Roy. Joint Secretary to the Government of West Bengal, Judicial Department, to the Chief Judge. City Civil and Sessions Courts, Calcutta dated January 6, 1965 In that letter it was stated that he-fore the introduction of the revised pay scales from April 1. 1961. the scale of pay of lower division clerks in the district courts was Rs- 55-130 and the scale of pay of the same clerks in the Citv Civil and Sessions Courts was Rs 75-150 It was further stated that lower division clerks of the district court! who were appointed as lower division clerks in the City Civil and Sessions Courts in higher scales, were deemed as appointed on promotion to the higher scale And for that reason it was stated in G.O No 5337-J dated July 22, 1960. that the seniority of the lower division clerks in the City Civil and Sessions Courts would count from the date of their appointments on promotion in the City Civil and Sessions Courts. Thereafter this letter went on to direct that the difference between the two scales having disappeared since the introduction of pay scales with effect from April 1, 1961, the context in which the said G.O. No 5337 J dated July 22 1960. was issued was no longer in existence, and since the two scales of pay had been equalised the higher initial salary in one scale not at all mattering, the seniority among the present lower division dorks in the Citv Civil and Sessions Courts, would be determined according to their dates of substantive appointment in either of the two lower division scales in which they were first appointed It is the order contained in this letter which is the subject matter of this application. The other order which is Annexure H to the petition is also a letter from the Joint Secretary to the West Bengal Government, Judicial Department, to the Registrar, City Civil and Sessions Courts, Calcutta, dated December 1. 1965. in which it was stated that the representations made by the petitioners received careful consideration, but the prayer made by the petitioners could not be acceded to.
2. The facts briefly stated are as follows :--
The petitioners applied for and were appointed lower division assistants in the City Civil & Sessions Court (hereinafter referred to as the said Court). The petitioners Nos. 1 to 4 were confirmed in the said posts from June 1, 1963, March 1, 1962. December I, 1963 and March 1, 1962. The respondents Nos. 3 to 10 also applied for the posts of low-er division assistants in the said Court and were subsequently appointed as such assistants. Prior to their joining the said Court, they were drawing a pay of Rs 55-130 per month.
3. On July 22, 1960, the Assistant Sec retary to the Judicial Department, Government of West Bengal, Issued an order, laying down the principle of determination of seniority of the non-gazetted staff in the said Court. By this order the permanent employees of other departments. who were drawing a pay in a scale lower than the scale in which they were appointed in the said Court, would be considered to have secured promotion by their appointment to the said Courts, and their seniority would count from the respective dates of their appointment in the said Courts. On the basis of this order, petitioners were shown us senior to the respondents Nos. 3 to 10. On January 2, 1962, the West Bengal Services Revision of Pay and Allowances Rules were published in the Calcutta Gazette, and according to these Rules, the pay scale of the lower division assistants in the District Courts were changed to Rs 126-200 per month and in the said Courts a higher initial start of Rs 134 per month was given.
4. In April, 1962, the Gradation List of the lower division assistants was published when the respondents Nos, 3 to 10, amongst others, filed objections to their position in the said List as junior to the petitioners on the ground that as the two pay scales had been equalised and as these had been given effect to from April 1, 1961, by the said Rules and as they joined the said Court after April t. 1961. they must be considered to have been drawing a similar scale of pay. namely Rs 125-200 per month and therefore, their service in the previous posts must be counted in de tormining their seniority.
5. On January 5, 1966 the Joint Secretary to the Government of West Bengal, Judicial Department, issued an order bearing the same date, which conveyed the decision of the Government that the seniority among the lower division clerks in the Courts would be determined according to their dates of substantive appointment in either of the two lower division scales as fixed by the said Rules. Thereafter the petitioners made representation against the aforesaid order, and in this representation, they contended that the two scales of pay in the District Courts and the said Courts had not been similar even who were appointed to the said Courts had a higher initial start of Rs. 134, that is to say, Rs. 9 more per month than that of those who held similar posts in the District Courts. The petitioners' grievance is that steps are being taken to grant seniority in favour of the respondents Nos. 3 to 10 in implementation of the said order and a memo has already been issued by the Judicial Department for that purpose.
6. Mr. Arun Prokash Chatterjee appearing for the petitioners contended that although the pay of the respondents Nos. 3 to 10 was equalised with that of the petitioners, under the said Rules, the position of the petitioners was entirely different because they had a higher initial pay of Rs. 1S4 per month as against the pay of the respondents at Rs. 125 per month. This, acording to Mr. Chatterjee, entitled the petitioners to claim seniority over the respondents, although the latter had a longer period of service in the Districts which was to be taken into account in determining the question of seniority.
7. In support of this contention, Mr. Chatterjee raised four points. Firstly, he argued that under Rule 10 of the Rules of Business framed under Article 116(8) of the Constitution, the question of seniority could not be determined by the Judicial Department at Ruie 10 required that "no department shall, without previous consultation with the Finance Department, authorise any orders which relate to the number of grading or cadre or posts or the emolumtnts or rather conditions of service of post." It was argued that the question of seniority touched the conditions of service of the petitioners and, therefore, the Judicial Department could not make the order without reference to or consultation with the Finance Department. In this case. Mr. Chatterjee argued, the Finance Department had earlier taken a different view in the matter, namely that the petitioners who were appointed as lower division assistants in the said Courts would have seniority The impugned order made by the Judicial Department therefore, Mr. Chatterjte argued, violated Rule 10(1) (b) of the said Rules of Business.
8. The next contention of Mr. Chatterjee was that the question whether the scale of pay of Rs. 125-200 per month, with a higher initial start of Rs. 134 per month, was to be treated as a higher pay for the purpose of determining seniority, as against a scale of pay of Rs. 125-200 per month (without the higher initial start of Rs. 134 per month) was determined by the Finance Department in favour of the petitioners. The impugned order ma(sic) by the Judicial Department was contrary to the order made by the Finance Department, apart from being in violation of Rule 10(1) (b) of the said Rules.
9. The third contention of Mr. Chatterjee was that the respondents Nos. 3 to 10 could not claim seniority by virtue of their service in the lower posts in the districts In other words, it was argued that the length of service of the respondents Nos. 3 to 10 In the District Courts, at a time when they were drawing a lower scale of pay, should not be counted in determining the seniority of the lower division assistants in the said Courts.
10. The last contention of Mr. Chatter-jee was that the appointment of both the petitioners and the respondent Nos. 3 to 10 were new appointments and the seniority in these new appointments should not be determined on the basis of the length of service in the posts held by them before they joined their new posts.
11. Mr. Chatterjee developed the contention mentioned above. firstly, by relying upon Rule 10 of the said Rules to which I have already referred. He argued that the impugned order made by the Judicial Department had been made clearlv in violation of the terms of Rule 10(1)(b) and, therefore the order must be held to be invalid and the seniority of the petitioners as determined by the earlier order of the Finance Department must be restored.
12. It was next contended by Mr. Chat-terjee that Rule 10(1)(b) of the said Rules, was mandatory and not merely directory as the opening words of the said Rule were "No department shall without previous consultation" etc. Mr. Chatterjee submitted that the use of the term "shall" made it quite plain that the framers of the Rule intended that it should be treated as mandatory and not merely as directory In support of this contention Mr. Chatterjee relied upon a letter dated July 29, ]964 from the Deputy Secretary to the Finance Department to the Accountant-General, West Bengal, in which it was stated that for all practical purposes the scales of lower division clerks in the Directorates and in the regional offices were Rs 134-3-140-200 and Rs. 126-3-140-4-200 respectively It was also stated that the former scale should be deemed to be higher than the latter Mr. Chatterjee, therefore, contended that there was a determination of the question that the scale of pay drawn by the petitioners was higher than that of the respondents Nos 3 to 10. The impugned order made by the Judicial Department was made not only without consultation with the Finance Department as required by the said Rule, but was also directly in conflict with and contrary to the orders of the Finance Department.
18. Mr. B. N. Sen appearing for the respondents Nos. 1, 2 and 11 contended that the application was misconceived and that the petitioners had no right to a Writ to enforce their claims as made out in the petition. He argued that the question of seniority and promotion would not be made the subject-matter of a petition under Article 226 of the Constitution, as no public servant had a right to a promotion or to claim seniority in the grade or cadre to which he was placed It was argued that there was no question of violation of Article 311 of the Constitution It was not a question. Mr. Sen argued, of removal, suspension or dismissal of a public servant and, therefore, the right to a Writ petition under Article 311 of the Constitution could not be invoked by the petitioners (14) In support of the above contention Mr, Sen firstly relied upon a decision of the Madras High Court, L. Balakrishnan v. Deputy Inspec tor General of Police In that case it was held that names of persons considered fit for promotion were included in a particu lar list and that such inclusion by itself conferred no enforceable right on the persons whose names had been so included It was further held that the re moval of a name from the list of persons ten tatively considered fit for promotion, nor even denial of promotion could be equated to any of the punishments for which the Civil Service (Classification and Control) Rules provided The question of promotion, it was held, was not a question of right and the re moval of a name from that particular list would not make it a justiciable issue Mr. Sen next relied upon another decision of the Madras High Court reported in AIR 1958 Mad 53 N. Devasahayam v. State of Madras.
In that case it was held that mere violation
of a statutory rule in relation to conditions
of service did not give a public servant a
claim for redress by the issue of prerogative
writs. Mr. Sen contended that even assum
ing that the Rule 10 of the said rules had
been violated, such violation would not con
fer upon the petitioners right to a writ under
Article 22fi of the Constitution The next case
relied upon by Mr. Sen is a decision of the
Supreme Court in the High Court, Calcutta,
v. Amal Kumar Roy It was held in that
case that the Governor of a Province, after
consultation with the Public Service Commis
sion and the High Court, made rules for re
cruitment to the Subordinate Civil Judicial
Service. In that case the respondenl was not
selected as a Subordinate Judge when his
turn in the ordinary course came for certain
reasons. It was held that the claimant had
no right to promotion and therefore no right
of action in a court Then again it was held,
that losing some places in the seniority list
was not tantamount to reduction in rank and
therefore Article 311(2) of the Constitution
was not attracted in that case In that rase,
however, the question involved was whether a
public servant was entitled to claim any of the
rights created and conferred by Article 311 of
the Constitution, but it was held that with
holding of promotions did not provide a cause of action to the person claiming such promotion. Mr. Sen argued that the same principles applied in this case also, although the question of promotion was not involved. The claim to seniority in a particular cadre over others in the same cadre haa a close link to the claim of promotion and, therefore, the principles on which the claims to a promotion had been dealt with by the courts must be also applied in this case.
15. In my opinion, Mr. Sen's contentions are well founded. The law has not conferred upon the petitioners a right to claim seniority in the cadre to which they belong. The rules of business on which so much reliance was placed by the learned Advocate for the peti-toiners, do not, in my view create, much less confer, a right on a public servant to a writ petition for violation thereof. The rules of business have been made for the convenience of public business. The opening words of Clause (3) of Article 166 makes it clear that the rules of business are framed by the Governor for mqre convenient transaction of business of the Government of the State These rules have not been framed, and indeed were not intended, to creale or confer a right upon a public servant to come and apply for a writ under Article 226 of the Constitution for violation of these rules If a public servant has no right to claim a promotion, he has no right either to claim seniority in the cadre to which he belongs Furthermore, in this case it does not appear to me that the petitioners have suffered any prejudice or loss by reason of the impugned order. Their scale of pay has not been affected, though it may be that if the order is in force they will lose a few steps in the ladder of seniority, and the respondents Nos. 3 to 10 by virtue of their length of service in the district Courts, are placed above them But such a situation in my view do not confer upon the petitioners right to claim a writ under Article 226 of the Constitution for the purpose of striking down an order by which principles were laid down for determining the seniority.
16. For the reasons mentioned above, this application fails and is dismissed. The Rule is discharged. Each party to pay its own costs.