Calcutta High Court (Appellete Side)
Dipak Bandhapadhyay vs Kolkata Metropolitan Development ... on 11 August, 2017
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 19722 (W) of 2016
Dipak Bandhapadhyay
Vs.
Kolkata Metropolitan Development Authority and Others.
For the petitioners : Mr. Tulsidas Roy, Advocate
Mr. Tapan Roy, Advocate
For the State : Mr. Malay Chakraborty, Advocate
Mr. Bipin Ghosh, Advocate
For the KMADA : Mr. P. S. Basu, Advocate
Mr. Satyajit Talukdar, Advocate
Heard on : 13.01.2017, 07.04.2017, 10.04.2017,
15.05.2017
Judgement on : 11.08.2017
Sambuddha Chakrabarti, J.:
The petitioners, 31 in number, have challenged the validity of the gradation list published by the respondents on July 26, 2016. They have inter alia prayed for setting aside and quashing of the said gradation list and preparing a fresh gradation list of Technical Assistants (Civil), (TA, for short) by restoring seniority of the petitioners over the private respondents.
The case of the petitioners, in short, is that they are members of Scheduled Caste, Scheduled Tribes, O.B.C., and persons in Physically Handicapped categories. The respondents nos. 4 to 31 are the employees of Kolkata Metropolitan Development Authority (KMDA, for short) who have been given higher places in the seniority/gradation list of TAs in the civil wing.
In the year 2007 KMDA invited applications for filling up the posts of TAs against the total vacancies of 127 posts. The petitioners along with others applied and a panel of 91 selected candidates was prepared and published on May 2, 2008. Ultimately, the petitioners joined the said posts between July 29, 2008 and September 3, 2008. The petitioners have given a break- up of the panel of 91 selected candidates, viz., 51 belonging to the General Category, 20 belonging to the S.C, 8 belonging to the S.C (E.C) and others. The private respondents who belonged to the General/Unreserved category also participated in the selection process pursuant to the advertisement; but their names were not included in the panel of the selected candidates.
The petitioners were all confirmed on January 3, 2011. On September 23, 2015, the respondents published a provisional gradation list of the TAs in which the petitioners were included. They, however, through several letters highlighted the fact of the respondent authority that the total number of posts for the TAs was 127, whereas the total number of appointed candidates became 145. About 57 candidates were appointed in the year 2009 and thus there was an excess of 21 candidates. The list of 148 candidates was never published and the appointments made in the year 2009 were unauthorized as the rules for reservation had not been followed in the true sense. The candidates of the 2008 batch should come before the 2009 batch in the gradation list. A specific case has been made out by the petitioners that two of the private respondents holding Serial Nos. 22 and 51 and who joined in June and July, 2009 respectively have been placed much above the petitioners in the gradation list.
It is the further contention of the petitioners that the S.C, S.T. and O.B.C candidates who joined in the 2008 were placed much below the general candidates joining in the year 2009 without following the 100 point roster for reservation. The petitioners further allege that by a letter dated March 8, 2016, the respondents intimated the petitioner no. 1 that in connection with the objection against the provisional gradation list, he was directed to attend a hearing on March 11, 2016. Similar letters ware also issued to other petitioners who had protested against the provisional gradation list directing them to attend the hearing on some other dates.
About the hearing, the petitioners complained that the respondents authorities did not consider their claims and grievances and no relief was forth-coming.
Since about 36 out of 127 posts were lying vacant, the Joint Secretary sent a letter to the Joint Director of Employment seeking permission to fill up those posts by the general candidates instead of General (E.C.) candidates. The Joint Director of Employment wrote back confirming that there were no suitable candidates for the posts of Assistant Engineer and Technical Assistant conforming to the specification in the live register of Exempted Category candidates. Since 36 posts were lying vacant the authority approached the Joint Director of Employment seeking his permission to fill up the vacancies meant for EC candidates by the non-EC category candidates. By a letter dated November 4, 2008, the Joint Director of Employment gave permission to fill up 45 vacancies for the posts of Assistant Engineer and TAs for the non-E.C. candidates. Before such permission was granted all the petitioners already joined their respective posts on the basis of the panel prepared by the concerned authority and published in May 2008.
However, the respondents filled up 56 vacancies by general candidates from the list prepared on the basis of the interview by publishing a second list on January 14, 2009. Thereafter, the private respondents joined the posts of TAs between February 17, 2009 to July 20, 2009.
The petitioners have questioned the method of selection of the private respondents. The concerned respondents filled up 56 vacancies without holding any further interview and/or selection process which is not permissible in law. They allege that the additional vacancies could not be filled up without any open advertisement. There was no provision for filling up for those unadvertised posts from the list which was prepared to fill up 127 vacancies for the TAs when the permission was granted to fill up 36 vacancies by candidates who appeared in the interview on the basis of the employment notification in the year 2007 and from those whose names were in the list. Unfortunately, in the provisional gradation list those who were appointed on the basis of the second panel have figured as seniors to the petitioners who joined much before they were appointed pursuant to the second list.
The petitioners challenged the provisionally published gradation list by an earlier writ petition which was disposed of by a learned single Judge on May 19, 2016 directing the KMDA to ensure that a final gradation list of TAs is published by July 31, 2016, after taking all the objections on record into account and further affording a hearing to the objectors, if necessary.
The respondents published the final gradation list on July 26, 2016, wherefrom it appears that those who were appointed in the year 2009 without appearing at any interview and beyond the advertised sanctioned posts, had been shown seniors to the petitioners. In other words, those who had joined later have been made seniors to the petitioners, such a gradation list cannot be sustained. The petitioners and the other S.C, S.T and OBC candidates who had joined earlier, were now below the general candidates who joined later. This the respondents, did by giving a compete go by to the basic principle of seniority. When the petitioners joined the service, the vacancies in the posts of TAs were not in existences. Therefore, the petitioners assert that the gradation list is not sustainable and is liable to be set aside and quashed.
The defence of the respondent nos. 1 and 2 is that upon due approval of the concerned authority of the State the KMDA had initiated the recruitment process for filling up certain vacant posts of TAs. It had entrusted the selection with the Bengal Engineering and Science University to conduct the recruitment process. Ultimately, appointment letters were issued by KMDA in accordance with the merit list prepared by the concerned university.
It is the specific defence that the KMDA had issued the employment notification inviting applications for filling up vacancies under different categories in KMDA as also KMW & SA which includes 127 numbers Technical Assistants. A total of 173 candidates under different categories of posts were called for verification of testimonials in two phases. Out of 173 candidates under different categories documents of 135 candidates were found to be conforming to the criteria laid down in the employment notification. Out of these 135 candidates only 91 candidates were for the posts of the TAs (Civil) passed. Names of these 91 candidates were published on May 2, 2008, for the purpose of holding medical examination only and not for appointment. Thus, the said list of 91 candidates was not a panel as claimed by the petitioners. Thereafter, the selection committee forwarded the names of 91 candidates under the TAs (Civil) category who were provisionally selected and were referred for their medical examination to the Deputy Director of Health Service. Those names were uploaded in the KMDA's website and published in leading dailies on May 9, 2008.
The KMDA authorities have come up with very detailed account of the procedure of appointment of the TAs. Their affidavit reveals that appointment letters were initially issued in favour of the 84 candidates who were declared medically fit. Out of them, 17 candidates did not join the post and three candidates resigned after joining the service. Since there was no E.C candidate available in the merit list there was every scope of filling up those vacancies by non-E.C candidates. Permission was granted by the Director of Employment, Government of West Bengal, for converting 45 reserved general (E.C) vacancies to general category vacancies under different categories of posts from the same merit list.
Subsequently, appointment letters were issued in favour of 50 candidates from the same merit list. Thus, altogether 114 candidates were ultimately appointed against the total vacancies of 127 posts.
The respondents have tried to make out that candidates appointed in phases were all recruited from the same merit list and out of the recruitment process conducted in respect of the single employment notice. It is the case of the respondents that subsequent appointments arising out of resignation of employees does not require publication of fresh employment notice during the validity of the merit list. Selection process was not completed till the vacancies under the E.C were filled up.
The case of the respondents claimed that the gradation list for the posts of TAs was prepared in terms of the notification, dated March 11, 1981, issued by the Finance Department, Government of West Bengal, and strictly adhering to the principles for determining seniority of direct recruits on the basis of merit- cum-seniority. After due consideration of the objections made against the draft gradation list, the list was finalized and published by a notice, dated July 26, 2016. The respondents asserted that there was no element of arbitrariness in their action as they had acted strictly in terms of the prevailing norms, guidelines and rules. They prayed for dismissal of the writ petition.
Against the said affidavit-in-opposition, the petitioners have used an affidavit-in-reply largely reiterating their stands in the writ petition. The petitioners have raised an issue that if 173 candidates were called for verification of documents in two phases and if documents of only 135 candidates were found conforming to the criteria laid down in the employment notice the list mentioned in the Annexure R.3 cannot be said to be the merit list when out of 286 candidates only 135 candidates were found to be in order in respect of the criteria mentioned in the employment notice. It was surprising that without conforming to the criteria laid down in the employment notice the authority conducted the written test and interview and prepared the so-called merit list.
It is the case of the petitioners in the affidavit-in-reply that the total declared vacancies for the post of TAs was 127 and a list of 91 selected candidates was published on May 2, 2008. It was never mentioned that it was meant for their medical examination. Moreover, the petitioners argued, that if appointment letters were issued to 84 candidates and if 20 were not available there was no scope for filling up those 20 posts by the candidates who did not belong to the EC candidates and the Director of Employment had no authority to advise the KMDA to fill up 45 EC posts by the non- EC candidates. Since there was no EC candidate and the panel was prepared of 91 eligible candidates after the appointment was given from the said panel it had ceased to exist.
The petitioners' further case is that had 27 vacancies been filled up from the panel dated May 2, 2008 and the remaining 36 vacancies meant for EC candidates were filled up by the respondents, the question of filling up of 50 vacancies by non-EC candidates could not arise and the 20 vacancies cannot be said to be the resultant vacancies. The vacancies created by the resignation of three selected candidates cannot also be described as the resultant vacancies and these could not be filled up in the manner the KMDA had adopted. Whatever subsequent appointments were given further advertisement should have been published and after due selection process the vacancies should have been filled up. The respondents had improperly given appointment by publishing subsequent list after obtaining permission from the Joint Director of Employment. As such those who were appointed long after the appointment of the petitioners cannot be placed above the petitioners in the gradation list and they cannot also be treated to be the seniors to the petitioners. Therefore, the entire procedure for preparation of the gradation list either provisionally or finally, cannot be sustained and is liable to be set aside and quashed.
It is the further contention of the petitioners that after 91 candidates were found eligible the process of selection and appointment had come to an end. The subsequent appointments were not from the same panel as the list of the private respondents along with others was published on January 14, 2009 for medical examination. They are not eligible till the date of permission by the Joint Director of Employment on November 4, 2008 for conversion of vacancies from EC to non-EC candidates.
The Secretary, KMDA issued a letter on November 29, 2008, asking the private respondents and others subsequently selected to furnish the documents mentioned in the said letter before the concerned authority for verification. It was clarified in the said letter that submission of documents would confer no right of appointment on a candidate. From this the petitioners have argued that till November 29, 2008 the private respondents were not selected and they appeared subsequently before the Medical Board. As such it cannot be said that they were selected from the same panel enabling the KMDA to place the private respondents above the petitioners in the final gradation list.
It is the specific case of the petitioners that the private respondents were neither selected nor empanelled as they did not come within the zone of consideration as per the employment notification. Since the advertised vacancies were meant for EC candidates and these subsequent candidates were appointed pursuant to the permission given by the Government, these appointment cannot be said to be in continuation of the list published on May 2, 2008.
The petitioners have given very specific cases of two candidates. One of them is Debraj Singha Roy who joined the concerned post in compliance with the letter dated April 30, 2009, issued by the Secretary, KMDA, asking him to join latest by May 12, 2009. Subsequently by another letter dated June 22, 2009, time of joining was extended and on that date he was again shown appointed in the concerned post which is clearly not permissible in law.
It appears from the affidavits exchanged between the parties that most of what they addressed at each other were on points which were not necessary for the disposal of the writ petition. The affidavit-in-opposition of the respondents particularly appear to be not properly addressing the issues and thereby introducing various facts and procedure adopted for appointment of the TAs, both initially and subsequently appointed which were not the subject matter of dispute. Why the remaining vacancies were decided to be filled up, how they were filled up, why permission was taken from the Government for converting the vacancies meant for EC candidates to non-ECs, so on and so forth were not relevant for the issues raised and involved in the writ petition. Since the respondents have raised various issues relating to those mentioned above the petitioners also had to deal with them in their affidavit- in-reply. The issue involved in the writ petition was simple enough not to be obfuscated by other less relevant matters. The only point of consideration is whether the subsequently appointed TAs could be placed above the previously recruited petitioners in the gradation list prepared by the respondents authorities. It can also be chronometrically expressed: Can the latter precede the earlier? And, even if it can, should it?
It is an admitted position that the petitioners were all appointed in the year 2008 and the private respondents in the year 2009. The petitioners assert that the employees appointed earlier must have a superior position in the gradation list than those appointed later.
The case of defence of the KMDA authorities is that the gradation list was prepared according to the principle for determining seniority for direct recruits as per the notification dated, March 11, 1981, issued by the Department of Finance.
Before we examine to the validity of the defence it is necessary to have a very clear idea of what is really meant by a gradation list. A gradation list is a seniority list. The list in which the seniority of an employee is generally indicated is a gradation list or a seniority list. A gradation list is to be prepared in accordance with the principle of seniority and in the manner provided in the rules or the executive instruction. This is because an employee has a right to know his position as against the other employees so that he may locate the precise seniority position at any point of time. In the case of Union of India Vs. H. R. Patankar, reportd in AIR 1984 SC 1587, the Supreme Court had observed that a gradation list has to be prepared in accordance with the principle of seniority laid down either statutorily or by executive instruction or rules and the validity of such a list has to be judged by reference to the principle of seniority. In the case of Dr. Rashmi Srivastava Vs. Vikram University, reported in AIR 1995 SC 1694, the Supreme Court observed that since seniority is normally determined amongst those in the same cadre, the list must reflect those belonging to the cadre only.
Here, as mentioned before, the respondent authority has very strongly relied on and sought to justify their action with reference to the West Bengal Services (Determination of Seniority), Rules, 1981. Mr. Bose, the learned advocate for the KMDA referred to Rule 4 of the said Rules which provides, inter alia, that the relative seniority of all persons appointed directly through competitive examination or interview or after training or otherwise shall be determined by the order of merit in which they are selected for such appointment on the recommendation of the Commission or other selecting authority. While strongly relying on this Rule the answering respondents seem to have obviously ignored the remaining part of the sentence in Rule 4 which provides: "persons appointed on the result of an earlier selection being senior to those appointed on the result of a subsequent selection". This entire clause has earlier been overlooked or due importance was not attached to it by the respondents. On the contrary, they submitted that the gradation list was prepared on the basis of merit-cum- seniority after considering the objections made against the draft list and as such there was nothing wrong in the action of the KMDA in preparing the gradation list.
I fail to understand how the concept of merit-cum-seniority could be introduced in the case of preparation of a seniority list. Merit-cum-seniority basically is a consideration which is relevant for the purpose of a promotion. Commenting on the application of merit-cum-seniority a Constitution Bench of the Supreme Court in the case of Janki Prasad Parimoo Vs. State of J & K, reported in AIR 1973 SC 930, had observed that selection means that a man selected for promotion must be of merit where promotion is by seniority. Merit takes the second place but when it is a selection, merit takes first place and it is implicit in such selection that the man must not be just average. The concept of merit-cum-seniority, submitted by Mr. Bose as well as mentioned in the written notes of submission, in the sphere of preparation of gradation list has no place and it is entirely an alien to the concept governing preparation of a seniority list.
Howsoever the respondent authority may try to assert that the appointments of 2009 were a follow-up action of the same recruitment process, the defence overlooks a very cardinal aspect that after receiving the consent from the Government the respondents started the process of selection to fill up 45 vacancies by candidates whose names were in the list of 135 candidates. The selection process of the private respondents started after receiving the clearance from the Government and subsequently the authority prepared a fresh list for the post of TAs on January 14, 2009. It is an admitted position that except 91 candidates there was initially no other eligible candidate to fill up those vacancies. The candidates who were subsequently appointed were not eligible to be appointed initially in terms of the notification, dated April 27, 2009. If as against 127 vacancies 91 candidates were found eligible and if long after they had joined the posts the private respondents are approached to furnish the relevant documents for their appointment, it must be held that a fresh process of selection was undertaken by the respondent authority, even if, the names were taken from the earlier list. From the communication, dated November 4, 2008, it was very clear that there was no suitable candidate for the TAs conforming to their specification in the live register of the Exempted Category and, therefore, the requirement of permission for conversion was felt necessary and a separate list was prepared. It is immaterial while preparing the separate list and for subsequent selection of candidates the respondents referred the same employment notification. The subsequent selection of candidates was legally and for all practical purposes was the result of a very different selection process.
Moreover, the stand taken by the respondents relying on Rule 4 of the Rules of 1981 must be reckoned to be the result of a wrong appreciation about the scope of the said provision. A careful examination of the Rule clearly suggests that the relative seniority of all persons appointed through different mechanism is to be determined by the order of merit in which they are selected for such appointment on the recommendation of the selection by the selecting authority. Thus, the relative seniority is to be determined on the basis of recommendation of the commission or selecting authority which applies to one selection process only. This position can be appreciated with reference to a very easy example. Say, if in a given case, after a competitive examination the commission or the selecting authority recommends the names of 10 persons according to merit, that order in the list will be maintained for the purpose of relative seniority of all such candidates. The crucial word used in Rule 4, and totally overlooked by the respondents, is that relative seniority shall be determined "by the order of merit in which they are selected for such appointment....." (emphasis added). Thus what is important is the order of merit in which employees are selected for such appointment. It is not a case of merit-cum-seniority. The order of merit in which candidates are selected should be the determining factor.
Viewed from that aspect also the petitioners have an unimpeachable case. Even if the petitioners and the private respondents were selected from the same select list, which they were not so, the petitioners stood miles-ahead by the order of merit by which they were selected. In the list first published only 91 candidates were found eligible. The private respondents were not found eligible for filling up the vacancies pursuant to the notification. Moreover, when the petitioners joined the service, the subsequently appointed employees were not even born in the cadre. Placing them above the petitioners is an act of serious injustice to them.
Mr. Bose relied on the case of Harabopal Ghosh Vs. State of West Bengal and Others, reported in 2001 (3) CHN 8. This judgment is clearly distinguishable on the facts from the present case. That case relates to inter se seniority in the cadre of lower division clerk of Civil Defence organization. In that case the petitioner and the private respondent were selected in the same selection process and no merit list of the selected candidates was prepared following the selection of the candidates as contemplated in Rule 4 of the 1981 Rules. Referring to second proviso to Rule 4, the Division Bench held that date of joining cannot be a criteria for determining the seniority of the selected candidates in that case as only when the selected candidates do not join the post within two months from the offer of appointment his seniority shall be counted from the date he joins. In the present case there were two selection processes. One started with the issue of advertisement and the other started with the decision of the respondents to approach the government for converting the EC posts to the general category. Again, in this case merit list was definitely published.
Thus, viewed from any aspect, I find sufficient merit in the contentions of the writ petitioners. The gradation list, dated July 26, 2016, prepared by the respondents is hereby set aside and quashed. The respondents are directed to prepare a gradation list afresh strictly in accordance with law and the procedure laid down therefor, keeping in view the law and parameters mentioned above.
The writ petition is allowed.
There shall be no order as to the costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee Later After I dictated the Judgment in Court Mr. Bose, the leaned Advocate for the petitioner prays for stay of the operation of the order. Mr. Roy, the learned Advocate for the respondents has objected to the prayer. The prayer is heard, considered and rejected.
(Sambuddha Chakrabarti, J.)