Calcutta High Court
The Kolkata Municipal Corporation & Ors vs Dr. Pradip Kumar Ray Chaudhuri And Ors on 26 April, 2023
Author: I. P. Mukerji
Bench: I. P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
A.P.O. No. 509 of 2017
W.P.O. No. 1050 of 2012
The Kolkata Municipal Corporation & Ors.
Vs.
Dr. Pradip Kumar Ray Chaudhuri and Ors.
For the Appellants :- Mr. Aloke Kumar Ghosh,
Mr. Swapan Kumar Debnath, Advs.
For the Respondents :- Mr. Raghunath Chakraborty,
Ms. Amrita De, Advs.
Judgment On :- 26.04.2023 I. P. Mukerji, J.:-
This case concerns a former Health Officer of the appellant Kolkata Municipal Corporation. He has qualifications in medicine. He rendered a long service to the Corporation before his retirement. The only issue involved in this appeal is with regard to his date of seniority. He wants his seniority to be reckoned from 4th July, 1984 whereas the Corporation would reckon it from 30th January, 1988. The significance of this determination is that if it is decided in his favour, he would be entitled to all pecuniary, service benefits and the benefits of the career advancement scheme of the Corporation from 4th July, 1984.
The facts arise in this way.
On 4th July, 1984 the respondent/writ petitioner was appointed by the then Calcutta Municipal Corporation as a Medical officer. He says that he was appointed in a permanent post and that this would be borne out by the service records maintained by the Corporation. In its affidavit-in-opposition to the writ petition affirmed on 14th May, 2013 the Corporation admitted this fact. However, it clarified that he was only officiating on a daily wage basis on a pay of Rs.45/- per day according to the sanction of the Administrator dated 29th June, 1984. His engagement continued. A vacancy in the post of Medical Officer, Palta Water Works Dispensary arose in 1985. The Municipal Service Commission considered his candidature for the post but he was not selected. He started discharging the duties of Medical Officer, Palta Waterworks Dispensary from 18th January, 1985, according to the Corporation on a daily wage basis till 17th July, 1986. Thereafter, it seems that he was considered by the Municipal Service Commission for a permanent appointment to fill up the post. He was not selected. By an administrative order dated 13th August, 1986 the Chief Municipal Health Officer allowed him to continue as Medical Officer of Palta Waterworks Dispensary from 18th July, 1986 on the same terms and conditions for a period not exceeding six months or till the newly appointed Medical Officer joined his duty, whichever was earlier. Under the same order, he was appointed temporarily as an Epidemic Officer under the Health department. According to the said affidavit of the Corporation, the respondent joined as Epidemic Officer on 21st August, 1986 after being released from the duties of Medical Officer, Palta Waterworks Dispensary on 20th August, 1986. His appointment to this post was extended from time to time and was to continue till it was filled up by regular appointment. The Municipal Service Commission once again considered his application for the post of Medical Officer (Epidemic Control). On 30th January, 1988 it recommended him for appointment to that post. According to the appellant Corporation, his appointment was temporary and adhoc upto 29th January, 1988. From 30th January, 1988 he was appointed as Medical Officer (Epidemic Control) and thereby his appointment was "regularized".
In the gradation list of Medical Officers (general cadre) under the Health Department of the Corporation as on 1st August, 2010 published on 19th 2 August, 2010 the respondent's date of joining service was shown as 21st August, 1986.
On 28th February, 2012 on the basis of the said gradation list on considering the seniority, he was promoted to the post of Executive Health Officer.
However, on 10th March, 2012 he received a letter from his office transferring him from Borough-V to Borough-VI where he would act as Medical Officer (In-charge). Later, his designation was revised to Executive Health Officer (Acting). Another Medical Officer Dr. Subrata Roy Chowdhury whose position in the gradation list dated 19th August, 2010 was just below the respondent, seems to have made a complaint with regard to the correctness of the gradation of the respondent. According to the respondent, the Corporation erroneously applied Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981, downgrading the date of joining of the respondent to 30th January, 1988. This downgradation according to the petitioner has resulted in lessening of service benefits and denial of career advancement scheme of the employer to which one could only be entitled on competition of 26 years of service.
It appears that on 25th February, 2012 the service book relating to the respondent was revised so as to enter his date of joining service as 30th January, 1988.
SUBMISSIONS:-
The following submissions were advanced before us.
Mr. Alok Kumar Ghosh, learned Advocate for the appellants submitted that the appointment of the respondent writ petitioner on 4th July, 1984 as medical officer was temporary and ad hoc. It was illegally made and would confer no right on the respondent writ petitioner. This appointment could not be termed as irregular which was regularised later but continued to be 3 an illegal appointment which was renewed for period of six months at a time for several years. Hence, Regulation 4 of the Kolkata Municipal Corporation (Determination of Seniority) Regulations, 1984, which I shall discuss later would not govern the case of the respondent writ petitioner as it dealt with irregular appointments regularised at a later point of time. In those circumstances, according to Mr. Ghosh the appointment of the respondent writ petitioner could never be viewed as a regular temporary appointment against a vacant substantive post, which was continuous in nature for a significant period of time. Since, the appointment was illegal the ratio in the case of Uma Devi reported in (2006) 4 SCC 1 would squarely apply and that the respondent writ petitioner could not claim any benefit in terms of the seniority, inspite of his appointment having been regularised at a later point of time.
On the other hand, Mr. Raghunath Chakraborty for the respondents made the following submissions: The appointment of the respondent writ petitioner was against a substantive vacant post on a temporary basis. It was made in valid exercise of powers of making such temporary appointment under 24 of the Kolkata Municipal Corporation Act, 1980. Following, the mandate of this section the appointment was made for six months at a time and subsequently renewed. If this kind of an appointment was validly made and continued for long period of time, there was provision under regulation 4 of the Kolkata Municipal Corporation (Determination of Seniority) Regulations, 1984 to regularise such appointment in accordance with this regulation. The appointment of the respondent writ petitioner was so regularised and his seniority has to be determined from date of his initial appointment i.e. 4th July, 1984.
I shall deal with these authorities cited by learned counsel at the time of discussing the merit of the case.
4 DISCUSSION Sections 19 and 24 of the Kolkata Municipal Corporation Act, 1980 are most relevant. I set them out below:-
"19. Appointment to category A posts, category B posts, category C posts and category D posts:-
(1) Appointment to a category A post or a category B post shall be made on the recommendation of the Municipal Service Commission. (2) Appointment to a category C post or a category D post shall be made in such manner as may be determined by regulation. (3) Notwithstanding anything contained in sub-section (1), prior approval of the State Government shall be necessary in the case of appointment of a person not recommended by the Municipal Service Commission.
24. Dispensation of consultation with State Public Service Commission or Municipal Service Commission:-
(1) Notwithstanding anything contained in this Chapter, it shall not be necessary to consult the State Public Service Commission or the Municipal Service Commission, as the case may be, in the case of appointment of a person as an officer or employee of the Corporation.--
(a) if the person to be appointed is or has been in the service of Government, or
(b) if the post to be filled up is for a term of six months, or
(c) if the period for which the appointment is made does not exceed six months."
Kolkata Municipal Corporation (Determination of Seniority) Regulations, 1984 are also very important. Regulation 4 is inserted below:-
"4. Determination of Seniority of direct recruits:
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 commission or other selecting authority, persons appointed on the results of an earlier selection being senior to those appointed on the results of a subsequent selection. Provided that where appointments of persons initially made otherwise than in accordance with the relevant recruitment regulations or in the absence of any prescribed recruitment regulations are subsequently 5 regularised in consultation with the Commission, where necessary seniority of such persons shall be determined from the very date of appointment.
Provided further that if any person selected for appointments to any part does not join within 2 (Two) months of the offer of appointment his seniority shall count from the date on which he joins the post unless the appointing authority for reasons to be recorded in writing condones the delay or the time of joining.
Note:
1) A list of candidates for the purpose of selection for appointment shall be prepared in all cases by the selecting authority when there will be recruitment in a single process of selection of more than one person.
2) Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these regulations, seniority shall, on the coming into force of these regulations, be determined on the basis of actual date of their joining. When the date of joining of all such persons is the same, the seniority shall be determined on the basis of date of birth, persons retiring earlier being adjudged as senior, when the date of birth is the same, seniority shall be determined on the basis is the same, seniority shall be determined on the basis of total mark obtained by each in the examination, passing of which is the academic qualification prescribed in/for recruitment to the particular post, cadre of pay scale/grade.
3) In so far as the determination of relative seniority of persons selected either by the Commission or by selecting authority for appointment to different posts in the same pay scale with different qualifications such as Assistant Engineers in Civil, Mechanical, and Electrical Engineering etc. is concerned, seniority shall be determined from the date of joining."
The status of an employee in an organisation like the Kolkata Municipal Corporation which is created by statute depends on the Act creating it and the rules framed under it, the nature of the post he enjoys, the terms and conditions of his service and also the dealing of the organisation with him. Section 19 of the said Act which inter alia governs recruitment and selection of employees to the Corporation provides that appointment to categories 'A', 'B', 'C' and 'D' posts in it would only be made on the 6 recommendation of the Municipal Service Commission. If a person is sought to be appointed to any of these posts without the approval of the Commission, prior approval of the state government is necessary. Admittedly, the respondent/writ petitioner enjoyed a category 'A' post. Section 24 inter alia states that the recommendation of the Commission or approval of the government is not required if the appointment is made for a period of less than six months.
Regulation 4 of the Kolkata Municipal Corporation (Determination of Seniority) Regulations, 1984 clearly provide that where appointments are made dehors the "relevant recruitment regulations" but regularized subsequently, the seniority of such person shall be determined from the date of his appointment.
The initial appointment of the respondent writ petitioner on 4th July, 1984 as a Medical officer and his appointment on 21st August, 1986 as an Epidemic officer were similar, temporary and for a short period of six months.
These appointments were made under Section 24(1)(c) of the said Act on a temporary basis which term was again extended from time to time. So, it could be treated as an appointment outside the regular recruitment rules under the above regulation 4. After 26 years of such appointment in 2010 when the respondent Corporation published its gradation list, the seniority of the respondent writ petitioner was shown on the footing that he had been appointed on 21st August, 1986. The Corporation at no point of time treated these appointments as illegal. Far from it, it considered such appointment as one made under Section 24(1)(c) of the said Act. At all material times, for reckoning seniority, it considered 13th August, 1986 as the date of appointment. Hence, the Corporation has treated the appointment of the respondent writ petitioner as regularised from 13th August, 1986, under regulation 4 of the said regulation. 7 Now, this gradation list remained unchallenged for two years. On 28th February, 2012 on the basis of this seniority position, the respondent writ petitioner was promoted to the post of Executive Officer. Then an objection from one Dr. Subrata Roy Chowdhury, whose date of joining service was reckoned as 11th December, 1986 in the said gradation list of 2010 seemed to have been entertained by the Corporation. On such objection, the Corporation downgraded the respondent writ petitioner's date of joining to 30th January, 1988.
Now, let me consider the authorities on the subject, relating to seniority in appointments.
The first case that I will discuss is C. P. Damodaran Nayar and P.S. Menon vs. State of Kerala and Ors. reported in (1974) 4 SCC 325 which concerned the Madras State Judicial Service Rules, 1953. Rule 11(3) provided for temporary appointment of judicial officers. The court ruled that a post where an officer who was appointed in a regular manner through the Public Service Commission on a temporary basis could not be described as "stop gap or fortuitous arrangement."
Now let me come to Rudra Kumar Sain and Ors. vs. Union of India and Ors. reported in (2000) 8 SCC 25. This case involved the Delhi Higher Judicial Service Rules, 1970 as it stood prior to their 1977 amendment. Here also the question of determination of seniority of judges in the higher judicial service was concerned. On the ground that those judicial officers were recruited on "fortuitous/adhoc/stopgap measures", the Delhi High Court had refused to recognize their services from the date of their appointment. Mr. Justice G.B. Patnayak delivering the judgment of a full bench of the Supreme Court opined that it did not matter whether an appointee held a temporary post or a permanent post or whether he was a promotee or a direct recruit but what mattered was the continuous length of service of an employee. An employee who possessed the requisite qualification and appointed with the approval and consultation of the 8 appropriate authority and continued in the post for a fairly long period, could not be held to do so "stopgap or fortuitous or purely adhoc." If the appointment order itself stated that the post was created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such post could be described as adhoc or stopgap. If for example, a post is created or recruitments are made pending completion of the regular recruitment process. The order of the Delhi High Court treating such appointment as stopgap, adhoc or temporary was set aside and the seniority of the judges in the district judiciary determined in accordance with their date of appointment.
Next, I come to the case of Dr. Chandra Prakash and Ors. vs. State of U.P and Anr. reported in (2002) 10 SCC 710. Here, the UP Medical Services (Men's Branch) Rules, 1945 were involved. Rule 18 provided for seniority. It said that determination of seniority would be from the date of appointment against a substantive vacancy. Therefore, according to the Supreme Court, it did not matter whether the initial appointment was temporary or permanent. It had to be against a substantive vacancy in which case the year of appointment was determinative of seniority. The appointment even if initially temporary, could not be termed "stopgap or fortuitous or purely adhoc." Whether an employee was granted seniority retrospectively, the concept of no work no pay would not apply and he would be entitled to all pay and allowances, even retrospectively from the date reckoned to be his date of joining for the purpose of seniority, when that date was determined at a later point of time.
The above cases were cited by Mr. Raghunath Chakraborty, learned Advocate for the respondent.
The Supreme Court in Union of India vs. Dharam Pal and Ors. reported in (2009) 4 SCC 170 was considering the seniority of railway employees under the Indian Railway Establishment manual. It held that an employee appointed to a post according to rules was entitled to seniority from the 9 date of his appointment and not from the date of confirmation whereas seniority of those appointees who were recruited on an ad hoc basis to fulfil some emergent need or a particular purpose were not to be treated from the date of appointment.
A very important case on the issue of seniority is P.P.C. Rawani (Dr.) and Ors. vs. Union of India and Ors. reported in (2008) 15 SCC 332. Mr. Justice Raveendran delivering the judgment of the Supreme Court had to decide on the seniority of doctors who were regularly recruited through the Union Public Service Commission (UPSC) against those who had been appointed on an ad hoc basis but subsequently, regularized from the date of their initial appointment. His lordship ruled with which the other members of the three judge bench concurred that a difference had to be made between regular appointees and those who had been made on an ad hoc basis and subsequently regularised.
Regular and regularized doctors were not to be treated at par. The seniority list of regular and regularized doctors was to be prepared and maintained separately. When a regularly appointed doctor was promoted, the senior most from the panel of regularised doctors, whose date of initial appointment was just earlier to that of the promoted regularly appointed doctor, was to be promoted by creating a supernumerary post. It did not mean if one regularly appointed doctor was promoted, regularised doctors should also be promoted to a higher post by creating that many number of supernumerary posts. The view of the Supreme Court was summarized in Paragraph 10 of the judgment:-
"10. If all the ad hoc doctors were to be regularised with effect from the date of their initial appointment, with seniority also from the date of initial appointment, there will be no difference between regular recruitment and regularisation of ad hoc appointments, thereby defeating the very purpose of systematic regular recruitment through UPSC. Ad hoc or stopgap appointees were not normally regularised and given seniority from the date of initial appointment. They were 10 usually given regularisation and seniority only after a certain period of service, which used to vary from one year to ten years or even more."
Mr. Ghosh contended that the initial appointment of the respondent writ petitioner was not irregular but illegal. No matter how long or continuous was the service and its nature and importance, its subsequent regularization could not determine the seniority of the respondent from the initial date of appointment, according to him.
General Manager, Uttaranchal Jal Sansthan vs. Laxmi Devi and Ors. reported in (2009) 7 SCC 205, State of M.P. and Ors. vs. Lalit Kumar Verma reported in (2007) 1 SCC 575, University of Rajasthan and Anr. vs. Prem Lata Agarwal reported in AIR 2013 SC 1265, Satya Prakash and Ors. vs. State of Bihar and Ors. reported in (2010) 4 SCC 179 were cited which qualified and supplemented the law laid down by the Supreme Court in Uma Devi (3) and Ors. case reported in (2006) 4 SCC 1 that the selection process laid down by law could not be subverted by ad hoc, random and temporary appointments. However, if the ad hoc temporary appointments had been granted against substantive vacant posts and the appointees had rendered long and continuous service, then they could be described as irregular appointees and their appointments regularized within a fixed period of time. Thereafter, appointments were to be made strictly according to the recruitment or selection rules. Ad hoc appointments dehors the service rules relating to recruitment or selection were to be stopped. (See University of Rajasthan and Anr. vs. Prem Lata Agarwal reported in AIR 2013 SC 1265).
CONCLUSIONS The date of appointment or joining of an employee for the purpose of reckoning his seniority in public service under the government or government controlled statutory bodies largely depends on the rules 11 governing selection or recruitment, promotion, seniority and so on. Appointments can be classified as regular or ad hoc, temporary, fortuitous. The Supreme Court clarified in P.P.C. Rawani (Dr.) and Ors. vs. Union of India and Ors. reported in (2008) 15 SCC 332:
"13. It is made clear that what is stated above is only an interpretation of the orders dated 9-4-1987 and 29-10-1991. Neither the order dated 9-4-1987 nor the clarificatory order dated 29-10-1991 lays down any principle of law in regard to either regularisation or inter se seniority between regular appointees and regularised appointees......"
In my opinion, the appointment of the respondent writ petitioner was not at all illegal, but was a most regular temporary appointment for an ad hoc purpose against a vacant post, as authorized by Section 24(1)(c) of the said Act and recognized by regulation 4 of the 1984 regulations. This appointment initially for a limited period of six months under Section 24 was again extended for a period of six months at a time. The respondent writ petitioner on this basis occupied temporarily and for an ad hoc purpose the post of Medical Officer and Epidemic Officer. Now this temporary ad hoc appointment, in my opinion, was most regularly made resulting in continuous service of the respondent writ petitioner till he was regularized on the recommendation of the Commission with effect from 30th January, 1988. The engagement of the respondent writ petitioner could not be termed as ad hoc, temporary or fortuitous.
Apart from this, Regulation 4 of the Kolkata Municipal Corporation (Determination of Seniority) Regulations, 1984 contemplated regularization and recognised the seniority of this kind of appointees when it said that those appointments which had been made beyond the recruitment regulations and subsequently regularized in consultation with the Commission would enjoy seniority from the very date of appointment. According to Mr. Ghosh, if the appointment was illegal, the date of the appointment or the joining of the employee could not be reckoned as such 12 date for the purpose of seniority. If that was the case why was the respondent writ petitioner shown in the gradation list published on 19th August, 2010 as having been appointed or having joined on 21st August, 1986 for the purpose of determining his 'seniority'? Therefore, the Corporation had treated the temporary or ad hoc appointment of the respondent writ petitioner as legal and relevant for the purpose of determining his seniority. Having accepted that position there is no reason why his seniority cannot be reckoned by the Corporation from 4th July, 1984 when he first joined its service of the Corporation. In view of my discussion above, the respondent writ petitioner was entitled to seniority reckoned from his date of appointment on 4th July, 1984. I direct the gradation list to be revised accordingly within four weeks of communication of this order. I quash any gradation made by the appellant Corporation revising the date of appointment of the respondent/ writ petitioner to 30th January, 1988. I affirm the impugned judgment and order dated 29th June, 2017, dismissing the appeal. I direct the appellant to comply with our order read with the impugned order dated 29th June, 2017 within eight weeks of communication of this order.
(I. P. Mukerji, J.) Biswaroop Chowdhury, J.:-
The appellant before this Court is the respondent no-1 in a writ petition and is aggrieved by the Order dated 29th June 2017 passed in W.P. No.1050 of 2012 by the Learned Trial Judge.
The case of the Writ Petitioner may be summed thus:
1. On 4-07-1984 the Writ Petitioner was appointed to the post of Medical Officer of the then Calcutta Municipal Corporation under the sanction dated 29-06-1984 of the Administration thereof. The said post was 13 permanent in nature and the petitioner was posted therein under officiating capacity.
2. Thereafter the Writ Petitioner has been continuously rendering his service from 04-07-1984 and has been enjoying various increments and all other service benefits in terms of the existing service rules and regulations framed under the Kolkata Municipal Corporation Act, 1980.
3. On and from 21-08-1986 the petitioner was made an Epidemic Officer under the then Calcutta Municipal Corporation under the Commissioner dated 13-08-1980. The said post was also permanent in nature.
4. Thereafter on and from 21-10-1987, the petitioner has been rendering his service to the present Kolkata Municipal Corporation as a Medical Officer (Epidemic Control). The post of Medical Officer and Medical Officer (Epidemic Control) are identical and are under the cadre of 'medical officer' in terms of existing rules and regulations framed in this regard.
5. The ad-hoc appointment of the petitioner to the post of Medical Officer (Epidemic Control) was subsequently confirmed with effect from 30-
01-1988.
6. By Office Order No. DMC (P)/PT/333/IIIA/2011-12 dated 28-02-2012 the OSD and DMC promoted the petitioner and other five Medical Officers to the post of Executive Health Officer under Health Department on ad-hoc basis.
7. That though at some earlier point of time two disciplinary proceedings were initiated against him none of them was pending at the time of issuance of the Order dated 28-02-2012. This fact was duly considered by the authority concerned. In the said Office Order dated 28/02/2012 the petitioner it was categorically mentioned that prior to such promotion the petitioner's pay will be revised in terms of the 14 Orders of the Disciplinary Authority dated 11-01-2001 and 11-05- 2011.
8. In terms of the said Office Order though the promotions of the other Officers as mentioned in the said Order have been given effect to, no effect has been given to that of the petitioner.
9. On enquiry the petitioner was informed by the concerned Chief Municipal Officer that the Order of promotion could not be given effect to in respect of the petitioner as another Officer being Dr. Subrata Ray Chowdhury has disputed his inter se-seniority.
10. That the said Dr. Subrata Chowdhury is junior to the petitioner and the same is reflected in the gradation List of Medical Officer (General) under the health Department in the Kolkata Municipal Corporation dated 1.08.2010. In terms of the gradation list the petitioner is placed as serial 32 while the said Dr. Subrata Ray Chowdhury is at serial 33 and is therefore admittedly junior to the petitioner. In fact in all the gradation lists published earlier the petitioner was shown as senior to the said Dr. Subrata Ray Chowdhury.
11. The gradation list of the employees of the aforesaid corporation was prepared in terms of a direction of this Court passed on the 23rd September 1986 in an earlier proceedings being Civil Order No. 4342(W) of 1985 where the entire se-seniority of some employees were in dispute.
12. The writ petition CO. 4342(W) of 1985 was disposed by passing the following order:
"For the reason aforesaid this application succeeds. The respondents are directed to prepare gradation list of the employees on the basis of seniority in services in the Corporation Seniority being counted from the date of appointment or promotion in the particular grade or post. Promotion to the next higher grade or post shall be made strictly in 15 accordance with the seniority list to be prepared in terms of the direction contained in the judgment."
13. The petitioner's seniority is to be calculated from the date of his appointment i.e. on and from 4-07-1984 and he has a right to claim such seniority to be taken into consideration in his present cadre or post as well as the time of promotion to the next high cadre or post.
14. The petitioner has learnt that by an Office note dated 1.03.2012 the Executive, Health Officer, Kolkata Municipal Corporation Borough-V has for the first time stated that the Writ Petitioner will not be eligible for promotion prior to Dr. Subrata Ray Chowdhury and that the date of first appointment of the petitioner is 30.01.88 and has recommended correction of the Gradation List. The date of the first appointment was never altered to 30.01.88 as alleged or at all. According to the petitioner the said Office Order dated 1.03.2012 was in fact issued by the pen of the said Mr. Subrata Ray Chowdhury, himself.
15. The petitioner has also learnt that the recommendation for rectification of the date of joining of the petitioner in the gradation list as well as in the service Book was duly considered. After considering all the relevant records regulations the Dy. P.O. VII, KOLKATA MUNICIPAL CORPORATION (P.D) held that the date of appointment of petitioner is not required to be altered as proposed and has justified the same, and the same was placed before the Joint Municipal Commissioner (General).
16. In the meantime as there was no effect given to the Order of promotion in respect of the petitioner despite the question of such dispute regarding the inter se-seniority being resolved, the petitioner by a letter dated 19.07.2012 appealed for a fresh Order of promotion in his favour as an Executive Health Officer but no reply was given to the said letter.
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17. The petitioner has further learnt that said Dr. Subrata Chowdhury has again made another complaint and in pursuance to the same or otherwise the said dispute in terms of the first date of appointment of the petitioner was again considered by the Deputy Personnel Officer - III A, Kolkata Municipal Corporation (Personnel Department) by directing the matter to be considered by a Head Assistant of the said Department.
18. The petitioner has learnt that the said Head Assistant has by applying provisions of the Rule-4 of the West Bengal Services (Determination of Seniority) Rules 1981 has decided that the date of joining of the petitioner along with six other Medical Officers are required to be considered to be 30.01.1988 i.e. date of regularisation of their services.
19. According to the petitioner the provision of Rule 4 of West Bengal Services (Determination of Seniority) Rules 1981 has no application in the present dispute and the said Deputy Personnel Office III A, Kolkata Municipal Corporation (Personnel Department) has grossly erred in concurring with the said Office note dated 25/07/2012 and thereby referring the same to the DMC(P) concerned.
20. The petitioner has further learnt that the said Deputy Personnel Officer - III A, Kolkata Municipal Corporation (Personnel Department) on the basis of the role as prepared by the Head Assistant has decided that the date of first appointment of the petitioner is to be treated from the date of regularisation of his service and sought permission for rectification of the gradation list.
21. The petitioner has learnt that on the basis of findings by the Deputy Personnel Officer III-A, Kolkata Municipal Corporation (Personnel Department) the respondent authorities have proceeded to treat the date of regularisation of the petitioner's appointment to the post of Medical Officer (Epidemic Control) to be the date of his 'first' appointment to the service of the Kolkata Municipal Corporation and 17 thereby illegally trying to nullify the effects of the petitioners service rendered to the Corporation from 04-07-1984 i.e the date of appointment.
22. That the benefit obtained by the petitioner under the Career Advancement Scheme of the Kolkata Municipal Corporation is also sought to be nullified unlawfully and illegally.
23. The petitioner by a letter dated 14-07-2010 to the Executive Health Officer Borough-V has also applied for getting the benefits under career Advancement Scheme on Completion of 26 years of service.
24. According to the petitioner there are adequate vacancies available in the post of Executive Health Officer under the Kolkata Municipal Corporation.
25. Upon inspection it has transpired that a new entry has been entered in his Service Book on 25-02-2012 whereby it has been recorded that 30-01-88 is the date of first appointment in regular service of the Kolkata Municipal Corporation vide MPI, Commissioner order dated 25-06-2011.
26. The petitioner is not aware of any such order dated 25-06- 2011, and he has never been given any notice of any such decision.
27. According to the petitioner he has a right to take part into any proceedings that culminates in the recording of such an adverse entry in his service book.
28. By an office order dated 10-03-2012 the petitioner was transferred to Borough VI as the Medical Officer in charge of the same with immediate effect by the Chief Municipal Health Officer Kolkata Municipal Corporation.
29. That the date of appointment of the petitioner is much prior to that of the person said to be disputing his inter-se seniority with the petitioner. The petitioner has been never been officially informed by anyone about the objection so raised.
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30. According to the petitioner the date of joining even on an ad- hoc basis is the sole-criteria in determining the seniority of the petitioner or any other employee of the Kolkata Municipal Corporation.
31. The petitioner is entitled in Law to the promotion in terms of the said Office Order dated 28-02-2012 and all other benefits occurring there from and the respondents are liable to render such benefits to the petitioner.
32. That once the petitioner is eligible for a promotion to a higher post his entitlement accrues from the date of creation of vacancy to such higher post, and has right to enjoy the benefits of such promotion from the date of creation of such vacancy. The respondent no-1, Kolkata Municipal Corporation contested the case by filing Affidavit in Opposition and denying the allegations contained therein. The Affidavit in opposition of Kolkata Municipal Corporation may be summed up thus:
A. On 04-07-1984 the Writ Petitioner Dr. Pradip Kumar Roy Chowdhury was appointed in the designation Medical Officer in a permanent post (Officiating) under the Health Department on daily wage basis with pay of Rs. 45/- per day as per sanction of Administrator dated 29-06-1984. B. Thereafter on 22-02-1985 the Writ Petitioner was engaged in the Designation Medical Officer (hereinafter referred to as 'M.O') on a permanent post as officiating with the pay of Rs. 45/- per day i.e. Rs. 1300/- per month, as sanctioned by the Administrator dated 13-02- 1985.
C. For the purpose of filling up the vacancy in the post of Medical Officer, Palta Water Works Dispensary (hereinafter referred to as 'PWW'), Dispensary was referred to MSC for recommendation of suitable candidate for filling up the said vacancy in regular manner and the candidature of Dr. Pradip Kumar Roy Chowdhury was considered for 19 recruitment to the post of Medical Officer PWW Dispensary. Pradip Kumar Roy Chowdhury appeared before MSC but he was not selected for appointment.
D. As per Order of Municipal Commissioner dated 13-08-1986 on recommendation of CMHO. dated 13-08-1986 Dr. Pradip Kumar Roy Chowdhury was allowed to continue as Medical Officer PWW Dispensary w.e.f. 18-07-1986 on existing terms and conditions for a period not exceeding 6 (six) months or till the newly appointed Medical Officer joins his duties whichever is earlier.
E. As per said Order of Municipal Commissioner dated 13-08-1986 and on recommendation of CMHO, dated 13-08-1986. Dr. Pradip Kumar Roy Chowdhury was also appointed temporarily as Epidemic Officer under Health Department in the pay scale of Rs. 660-1600/- for a period of 6 (six) months from the date of joining on ad-hoc basis or till the post is filled up in regular manner whichever is earlier. Dr. Pradip Kumar Roy Chowdhury joined as Epidemic Officer on 21-08-1986 after being released from the duties of Medical Officer PWW Dispensary on 20-08-
1986 and after joining of Dr. Pritheijit Bandyopadhyay, the newly appointed Medical Officer PWW Dispensary.
F. For such appointment the file was not routed through Personnel Department as the Epidemic Officer being a category 'A' post is under the purview of MSC but neither the recommendation of MSC U/S - 19(1) of the KMC Act 1980 nor the prior approval of State Govt U/S - 19 (3) of the said Act 1980 was obtained before appointment of Dr. Pradip Kumar Roy Chowdhury as Epidemic Officer though this was a direct recruitment.
G. As per the Orders of Municipal Commissioner dated 19-06-1987 and dated 11-09-1987 respectively the ad-hoc appointment of Dr. Pradip Kumar Roy Chowdhury to the post of Epidemic Officer Medical Officer (Epidemic Control) in the pay scale of Rs. 660-1600/- was extended for a further period of 6 (six) months w.e.f. 21/02/1987 and w.e.f. 21-08-1987 20 or till the post is filled up in regular manner whichever is earlier respectively.
H. By the MSC's letter No. 113 MSC/ ID - 2/80 dated 18.01.1988 Dr. Pradip Kumar Roy Chowdhury was asked to appear before MSC for an interview on 22-01-1988 in view of his application for the post of Medical Officer (Epidemic Control).
I. The Secretary of the MSC by his letter No. 218 MSC/ID/2/88 dated 29th/30th January 1988 recommended the name of Dr. Pradip Kumar Roy Chowdhury for regular appointment to the post of Medical Officer (Epidemic Control).
J. As per Order of Municipal Commissioner dated 05-03-1988 the ad-hoc appointment of Dr. Pradip Kumar Chowdhury as Medical Officer (Epidemic Control) was regularized w.e.f. 30.01.1988 from the date of recommendation of MSC and an appointment letter No. P. 2062/IIIA/87- 88 dated 9.12.1988 under signature of MDC(P) was issued to the incumbent.
K. The tenure of engagement of Dr. Pradip Kumar Roy Chowdhury as Medical Officer, PWW Dispensary in two phases from 4-07-1984 to 30- 11-1984 and from 22-02-1985 to 2-08-1980 was purely on daily basis at a fixed wage rate of Rs 45/- per day. As abovementioned engagements were not against any regular times scales of pay these cannot be treated as regular appointments and cannot be counted for continuity of service. L. Regarding appointment of Dr. Pradip Kumar Roy Chowdhury in the post of Epidemic Officer in the pay scale of Rs. 660-1600/- w.e.f. 21.08.1986 it may be mentioned that the said appointment was made temporarily on ad-hoc basis and neither the recommendation of MSC as per Section 19 of the KMC Act 1980 since the post is category 'A' nor the prior approval of State Government was obtained before such appointment. Therefore, such appointment was not made in accordance with the Recruitment Rules. The appointment letter was also not issued to the incumbent before his joining on 21-08-1986. The ad-hoc appointment of Dr. P.K. 21 Roy Chowdhury was also not regularized with effect from the date of his joining on ad-hoc appointment as Epidemic Officer, i.e. on 21/08/1986. As per order of Municipal Commissioner dated 5-03-1988, the ad-hoc appointment of Dr. Pradip Kumar Roy Chowdhury as Medical Officer (Epidemic Control) was regularized w.e.f. 30.01.1988 on recommendation from MSC and the appointment letter dated d/12.03.1988 was issued as the same was a direct recruitment. Hence the tenure of service of Dr. P.K. Roy Chowdhury on ad-hoc appointment from 21-08-1986 to 29-01- 1988 cannot be said to be regular. As per order of Municipal Commissioner dated 29-01-1991 Dr. P.K. Roy Chowdhury was confirmed and made permanent w.e.f. 30-01-1990 i.e. after completion of 2 years satisfactory service from the date of regularization. Therefore the date of first appointment is being considered the date of recommendation i.e. 30.01.1988 and the K.M.C. Authority has taken steps accordingly and for fixing the seniority the said date has been taken into consideration. It is contended by the respondent Kolkata Municipal Corporation that the Writ Petitioner was appointed on leave vacancy in a post of Medical Officer in the year 1984 with payment of daily wages rate basis of Rs 45/- per day and thereafter on 02.08.1986 he was appointed as Epidemic Officer in the KMC on ad-hoc basis i.e. temporary appointment in P.W.W. dispensary in the post of Medical Officer (Epidemic Control) with effect from 30-01-1988. By an order of O.S.D. and DMC(P) dated 28-02-2012 the petitioner was promoted to the post of Executive Health Officer under the Health Department on ad-hoc basis considering the position in the Gradation List of Medical Officer (General) which was subsequently found erroneous and the Writ Petitioner was restrained to join in the said post of Executive Medical Officer. The petitioner was not given the effect of promotion of the post of the Executive Health Officer as per the Office Order dated 28-02- 2012 since an objection was raised by the Respondent no.9, Dr. Subrata Roy Chowdhury and upon considering the facts and records the Writ 22 Petitioner's appointment was regularized w.e.f. 30.01.1988 and the joining in service i.e. on 21/08/1986 is to be rectified as 30.01.1988 and in view of the said facts and circumstances the respondent no-9 became the senior to the Writ Petitioner. As such the authority of the KMC was unable to give promotion to the Writ Petitioner. The Gradation List was prepared by mistake on misunderstanding and without considering the date of regularization of appointment of the petitioner i.e. 30.01.1988. It is also contended that since the disputes above, the authority of the KMC took steps in the matter regarding the decision of seniority and the gradation list and upon considering the facts and circumstances the authorities of the KMC decided that the date of appointment of the Writ Petitioner is to be the date of regularization of appointment by the MSC and the respondent No-9 is the senior to the Writ Petitioner. As such the authority had to take steps for correction of Gradation List and also the Promotion Order and the Writ Petitioner could not be given appointment in the promotional post of Executive Health Officer as per Order dated 28/02/2012. It is contended that the Writ Petitioner was transferred as the Medical Officer (In Charge) of Borough VI by an order dated 10-03-2012 passed by the Chief Municipal Health Officer, KMC in accordance with law. It is also contended that the petitioner's appointment has been treated from 30-01-1988 as per approval and recommendation of MSC. Thus the petitioner is entitled to all benefits from the date of appointment i.e. 30/01/1988. The Appellant/Respondent no-1 Kolkata Municipal Corporation prayed for dismissal of the Writ Petition. The Writ Petitioner also filed Affidavit in reply to the opposition of the Kolkata Municipal Corporation.
The Learned Trial Judge upon hearing the Learned Advocates for the parties was pleased to dispose the Writ Application WP. 1050 of 2012 by observing and directing as follows:
'In view of the aforesaid this Writ Application succeeds. The respondents are directed to compute the seniority of the Petitioner from the date of 23 initial appointment i.e. 4th July 1984 and to extend all consequential pecuniary and service benefits to the petitioner. This order shall be implemented within three months from date.' The Appellant has come up with the instant appeal being aggrieved by the Order passed by Learned Trial Court in WP No-1059 of 2012. It is the contention of the appellant, Kolkata Municipal Corporation that the Learned Judge ought not to have allowed the Writ Petition with direction upon the respondents to compute the seniority of the Writ Petitioner from the date of initial appointment i.e. 4th July 1984 and to extend all consequential pecuniary and service benefits. It is further contended that the initial appointment of the Writ Petitioner in the post of Medical Officer on 4th July 1984 was in a leave vacancy and on daily wage basis and as such the Writ Petitioner under no circumstances can claim his seniority and other service benefits with effect from 4th July 1984. It is also contended that the Hon'ble Judge failed to appreciate that in the year 1986 a selection process was initiated to fill up a permanent post of Medical Officer in regular manner and the Writ Petitioner participated in the said selection process but the Municipal Service Commission did not recommend his name.
Heard Learned Advocate for the Appellant and Learned Advocate for the Respondent no-1/Writ Petitioner. Perused the grounds of appeal and materials on record. Learned Advocate for the appellant submits that the initial appointment of the petitioner for working either in officiating capacity or on ad hoc basis in the year 1984, then in the year 1986 was not on the basis of recommendation of the Municipal Service Commission under Section 19(1) of the KMC Act 1980, and also not on the basis of prior approval of the State Government under Section 19(3) of the KMC Act 1980. Such appointment of the petitioner was not even irregular but illegal as per the constitutional Scheme and also because the specific provision of the KMC Act 1980 had not been adhered to. It is further submitted that the 24 petitioner while claiming for the said relief has also prayed for regularization of service with effect from 4th July 1984, which cannot be granted without there being an order either of the concerned authority or of the competent Court Learned Advocate also submits that the appointment letter as issued cannot be described that the appointment of the petitioner on daily wage basis with effect from 4th July 1984 was confirmed by the letter of appointment of 1988. Learned Advocate submits that as the petitioner was born in the cadre of Medical Officer with effect from the date of joining in the year 1988 there is no scope to shift back date of regular appointment from the date of his joining in the year 1988 to 4th July 1984. Learned Advocate further submits that the petitioner under no circumstances can claim himself to be senior to Mr. Subrata Ray Chowdhury since Dr. Subrata Ray Chowdhury was regularly appointed on the recommendation of the Municipal Service Commission in the year 1986 whereas the petitioner was not recommended in the same selection process because of his failure to succeed. The petitioner took advantage of erroneous publication of gradation list where the petitioner was shown senior to Dr. Subrata Ray Chowdhury. The said gradation List was rectified and modified/updated and Final Gradation list was published. The promotion Order as issued in favour of the petitioner along with 5 other officers by an office order dated 28th February 2012 was treated to be cancelled while issuing the fresh promotion order on 4th November 2013. Learned Advocate also submits that the writ petitioner duly joined the promoted posts of Executive Health Officer on the basis of such promotion order. The petitioner subsequently obtained further promotion along with other officers to the post of Deputy Chief Medical Health Officer. In view of the subsequent events and/or factual scenario during the pendency of the Writ Petition the petitioner has made himself disentitled to claim the relief as prayed for in the Writ Petition. In any event all orders, decisions and actions as acted upon by the petitioner voluntarily without taking any 25 exception thereto cannot be brushed aside simply because the petitioner was engaged in the said capacity with effect from 4th July 1984 and since the petitioner has approached this Court for the relief as stated above. Learned Advocate for the appellant relies upon, the following decisions:-
(i) General Manager Uttaranchal Jal Sangsthan Vs. Laxmi Devi reported in (2009) 7 SCC 205;
(ii) State of MP and Ors. Vs. Lalit Kumar Verma reported in (2007) 1 SCC 575;
(iii) University of Rajasthan Vs. Premlata Aggarwala reported in AIR 2013 SC 1265;
(iv) Satya Prakash and others. Vs State of Bihar and Ors. reported in (2010) 4 SCC 179;
(v) P.P.C. Rawani (Dr.) and Ors. Vs Union of India and Ors.
reported in (2008) 15 SCC 332;
(vi) Union of India Vs. Dharam Pal and Ors. reported in (2009) 4 SCC 170;
(vii) Dr. Arundhuti Ajit Pargaonkar vs. State of Maharashtra and Ors. reported in AIR 1995 SC 962;
(viii) B.S. Bajawa and Anr. vs. State of Punjab and Ors. reported in AIR 1999 SC 1510;
(ix) Dr. Anuradha Bodi and Ors. vs. Municipal Corporation of Delhi and Ors. reported in 1998 AIR SCW 1971;
(x) State of MP & Anr. vs. Prem Prakash and Ors. reported in (1994) 1 SCC 432.
Learned Advocate for the respondent/Writ Petitioner submits that the Writ Petitioner is recruited in the year 1986 by the Appellant Kolkata Municipal Corporation under the sanction of the Municipal Commissioner. Learned Advocate further submits that the posts of Medical Officer and Medical Officer (Epidemic Control) are identical and are under the cadre of 'medical officer'. Learned Advocate for the Writ Petitioner/Respondent also submits 26 that in terms of a direction of this Court in C.O. 4342(W) of 1985 the seniority List was prepared and the name of the Writ Petitioner was shown above Subrata Ray Chowdhury. Learned Advocate submits that the seniority of the Writ Petitioner ought to have been taken into consideration on and from 04-07-1984 but that was not done arbitrarily. The following decisions are relied upon by Learned Advocate for the Writ Petitioner:-
(i) Dr. Chandra Prokash and Ors. Vs. State of U.P. and Anr.
reported in (2002)10 SCC 710.
(ii) Ramesh Kumar. Vs. Union of India reported in AIR 2015 SC 2904.
(iii) C.P. Damadaran Nayar and P.S. Menon. Vs. State of Kerala and Ors. reported in (1974) 4 SCC 325.
(iv) Rudra Kumar Sain and Ors. Vs. Union of India and Ors.
reported in (2000) 8 SCC 25.
Now in order to decide the right of the Writ Petitioner with regard to his Seniority in the service of the Appellant it is necessary to consider the process of recruitment of the appellant and the rules regarding seniority. Section 19(1) of the Kolkata Municipal Corporation Act 1980 provides that appointment to category A post or a category B post shall be made on the recommendation of the Municipal Service Commission. Sub-Section 2 provides that appointment to a category C post or a category D post shall be made in such manner as may be determined by regulation. As per sub-Section 3 notwithstanding anything contained in sub-Section (1) prior approval of the State Government shall be necessary in the case of appointment of person not recommended by the Municipal Service Commission.
Section 24 of the Kolkata Municipal Corporation Act provides as follows:
1) Notwithstanding anything contained in this chapter it shall not be necessary to consult the State Public Service Commission or the 27 Municipal Service Commission as the case may be, in the case of appointment of a person as on officer or employee of the corporation,
a) If the person to be appointed is or has been in the service of Government, or.
b) If the post to be filled up is for a term of six months or
c) If the period for which the appointment is made does not exceed six months.
Section 20 of the Kolkata Municipal Corporation Act 1980 deals with service regulations As per the said Section the method of and the qualifications required for recruitment to category A posts, category B posts, category C posts and category D posts and the terms and conditions of service of persons appointed thereto including pension, gratuity and provident fund shall be determined by regulation.
By virtue of power conferred under Section 602 of the Kolkata Municipal Corporation Act 1980 the Corporation authority may make regulations not inconsistent with the provisions of the Act or the rules made thereunder for discharging its functions under the Act. Thus, by circular No-13 dated 23rd April 1984, Personnel Department of the Calcutta Municipal Corporation framed Regulation regarding determination of seniority of the officers and employees constituting the establishment of Calcutta Municipal Corporation/Kolkata Municipal Corporation Circular No-13 dated 23rd April 1984 of Calcutta Municipal Corporation Personnel Department provides regulations regarding determination of seniority of the officers and employees constituting the establishment of Calcutta Municipal Corporation under Section 17(1) of the Calcutta Municipal Corporation Act 1980.
Regulation 4 provides 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 Commission or 28 other selecting authority persons appointed on the results of an earlier selection being senior to those appointed on the results of a subsequent selection.
Provided that where appointments of persons initially made otherwise than in accordance with the relevant recruitment regulations or in the absence of any prescribed recruitment regulations are subsequently regularised in consultation with the commission where necessary seniority of such persons shall be determined from the very date of appointment. Upon reading of Regulation 4, it is clear that the seniority of all persons appointed directly through competitive examination or interview or after training or otherwise shall be determined by the order of merit. The Writ Petitioner in the instant case was appointed as the Medical Officer on 4th July 1984 in officiating capacity. Thereafter the petitioner was made Epidemic officer under the then Calcutta Municipal Corporation. The petitioner continued to render service as Medical Officer (Epidemic Control). Thereafter he was appointed as Medical Officer with effect from 30.01.1988. The principal dispute to be adjudicated is whether the service of the petitioner was regularised with effect from 30th January 1988 or with effect from 04-07-1984. As per the contention of the Appellant/Kolkata Municipal Corporation the Writ Petitioner was appointed in the designation of Medical Officer in a permanent post (officiating) under the Health Department on daily wage basis with pay of Rs. 45/- per day as per-sanction of Administrator dated 29-06-1984. Thereafter on 22-02-1985 the Writ Petitioner was engaged in the designation Medical Officer on a permanent post as officiating with the pay of Rs 45/- per day i.e. Rs 1300/- per month as sanctioned by the Administrator dated 13-02-1985. For the purpose of filling up the vacancy in the post of Medical Officer, Palta Water Works Dispensary (hereinafter referred to as 'PWW') matter was referred to Municipal Service Commission for recommendations of suitable candidate for filling up the said vacancy in regular manner and the candidature of Dr. 29 Pradip Kumar Roy Chowdhury was considered for recruitment to the post of Medical Officer Palta Water Works Dispensary. It is contended that Dr. Pradip Kumar Ray Chowdhury appeared before Municipal Service Commission but he was not selected for appointment. Upon perusal of the affidavit in reply with regard to the contentions made by the Appellant in the Writ Petition it is admitted that although the Writ Petitioner was appointed in the designation of Medical Officer in a permanent post but the said appointment was on daily wage basis. The Writ Petitioner has not denied that he appeared before Municipal Service Commission and became unsuccessful. It is a well settled principle of Service Jurisprudence that when an appointment is made on a daily wage basis the said appointment is for a temporary period or temporary purpose as a stop gap measure and is not a regular appointment. Moreover, when a regular appointment is to be made in any Government Department or Government undertaking it is to be made in accordance with the recruitment rules as existing in the said organisation and upon following the constitutional Scheme of Equality. It is only when in the case of exigency an appointment is to be made on temporary basis strict adherence of recruitment rules may not be feasible and the persons having requisite qualification and experience may be appointed as a stop gap measure. As service of a doctor is of emergency in nature the Appellant Kolkata Municipal Corporation has not erred in appointing the Writ Petitioner as officiating, for six months. It further appears that again on 18-01-1985, when the post of Medical Officer Palta Water Works Dispensary fell vacant due to resignation of one of the Medical Officer the Writ Petitioner was appointed in the vacancy on daily wage basis at the rate of Rs. 45/- per day from 18.01.1985 for a period of six months or till the post is filled up in a regular manner whichever is earlier. Upon perusal of the letter dated 29th/31st July 1986 marked annexure R-1 to the Affidavit in opposition in the writ petition, it appears that the matter of recruitment of the Writ Petitioner was referred by Deputy Municipal Commissioner (Personnel) to the Municipal Service Commission but the 30 Commission did not recommend the name of the Writ Petitioner for recruitment. Although the Writ Petitioner in his affidavit in reply before the Learned Trial Court contended that he has no knowledge of Office notes and internal letters but he did not deny the fact of appearing before the Municipal Commission and being not selected for appointment to the post of Medical Officer. Thus it is established that the Writ Petitioner's case although was referred to the Municipal Service Commission for appointment on 25th June, 1986 but the Municipal Service Commission did not recommend the name of the Writ Petitioner for the post of Medical Officer Palta Water Works Dispensary. When it is the requirement of the statute that the appointment to category 'A' post or a category 'B' post can be made only on the recommendation of the Municipal Service Commission, a regular appointment cannot be made save and except on the recommendation of the Municipal Service Commission. Section 24(1)(C) of the Kolkata Municipal Corporation provides an exception to the requirement of Section 19 of Kolkata Municipal Corporation Act if the period for which the appointment is made does not exceed six months. As the Writ Petitioner was not recommended by Municipal Service Commission there was no scope, to appoint the Writ Petitioner on regular basis although there was vacancy and it was a permanent post. It also appears from the Order sheet of Kolkata Municipal Corporation dated 13/08/1980 that the Appellant Corporation upon considering the fact that the service of the Writ Petitioner would come to an end as he was appointed on daily wage basis and upon considering the services rendered by the Writ Petitioner decided to appoint him temporarily as Epidemic Officer under the Health Department in the post of Epidemic Officer in the grade of Rs. 660-1600 plus admissible allowances permission for a period of six months from the date of joining after released as Medical Officer Palta Works Dispensary Ad- hoc basis or till the post is filled up in a regular way whichever is earlier. Thus in the said appointment there was no recommendation of the Municipal Service Commission for which the Writ Petitioner was appointed 31 temporarily for a period of six months, as permissible under the statute. It is well settled that a daily wage employee or an employee appointed for a temporary period or a contractual employee has no right to claim promotion or Service increments or benefits. It is only when an employee is appointed on regular basis in a permanent post in accordance with the recruitment rules can claim promotional benefits or other service benefits. Now the point for consideration is that when an employee who is appointed on daily wage basis for a particular period and extended from time to time can claim the benefit of seniority from the date of being appointed on daily wage basis after he attains the status of permanent regular employee. The answer to such question can be obtained from service regulation dealing with determination of seniority.
Regulation 4 of the Calcutta Municipal Corporation (Determination of Seniority) Regulation 1984, provides 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 Commission or other selecting authority, persons appointed on the results of an earlier selection being senior to those appointed on the results of a sub-sequent selection.
Provided that where appointment of persons initially made otherwise than in accordance with the relevant recruitment regulation or in the absence of any prescribed recruitment regulations are subsequently regularised in consultation with the commission where necessary, seniority of such persons shall be determined from the very date of appointment. Learned Trial Judge while disposing the Writ Petition No. 1050 of 2012 was pleased to observe as follows:
'That the petitioner's case was not one of fresh appointment but that his appointment was regularised with effect from 30 January 1988 is also admitted by the KMC at paragraph 7 of its affidavit. Thus the situation was 32 that the appointment of the petitioner was by way of direct recruitment and there were no prescribed regulations. Subsequently the petitioner's appointment was regularised with effect from 30th January, 1988 by way of confirmation of his appointment as Medical Officer (Epidemic Control). Hence the petitioner's case is squarely covered by the first proviso to Regulation 4 of the KMC (Determination of Seniority) Regulations 1984 which has been extracted above. Since the initial ad hoc appointment and all subsequent ad-hoc appointment of the petitioner were made in the absence of any prescribed recruitment regulations or assuming that there were such regulations otherwise than in accordance with such regulations and since his appointment was subsequently regularised, his seniority has to be determined from the date of his initial appointment'. Hence from the order of the Learned Trial Judge it will appear that the Learned Judge was pleased to hold that the petitioner's case was not of fresh appointment with effect from 30th January, 1988 but it was one of regularisation of initial ad-hoc appointment.
Now in order to decide as to whether the appointment of the Writ Petitioner on 30th January 1988 was fresh appointment or regularisation of ad-hoc appointment it is necessary to analyse proviso of Regulation 4 of Calcutta Municipal Corporation (Determination of Seniority). Regulations 1984, the appointment letter issued to the Writ Petitioner, and relevant materials on record and relevant provisions of law. At the very outset of Regulation 4 Determination of Seniority Regulation is considered it will appear that there are two parts. The first part deals with the seniority of persons appointed directly through examination or interview on the recommendation of Municipal Service Commission to be determined in order of merit. Thus the said provisions deals with selection by commission and thereafter recommendation. It further provides that persons appointed on the results of an earlier selection being senior to those appointed on the results of a subsequent selection. It is also clear that the persons who are appointed on 33 the results of an earlier selection will be senior to those appointed on the results of a subsequent selection. Thus selection and recommendation by Municipal Service Commission may comprise large number of candidates in order of merit out of participation of several candidates for large number of vacancies or it may be selection and recommendation of one candidate out of participation of large number of candidates or recommendation of a single candidate from his sole participation. The selection and recommendation by Municipal Service Commission may be on the basis of written test or oral interview or both as the Commission thinks fit. The proviso to Regulation 4 is an exception to the said regulation. The said proviso deals with consideration of seniority in the event of an employee not appointed in accordance with recruitment rules and appointment being subsequently regularised, in consultation with the commission if necessary. Thus this proviso deals with the procedure of the appointment of an employee being appointed without following recruitment procedure. In exercise of power conferred under Section 602 of the Kolkata Municipal Corporation Act 1980, the Corporation authority may make regulations not inconsistent with the provisions of the Act or the rules made thereunder for discharging its functions under the Act. Hence the regulations framed by the corporation Authority cannot be inconsistent with the provisions of Kolkata Municipal Corporation Act or the Rules made thereunder. Now the point for consideration is whether the corporation Authority can frame regulation and provide for Regularisation of Appointment not made in accordance with Section 19 of the Kolkata Municipal Corporation Act 1980. In order to decide such issue it is necessary to consider some judicial pronouncements.
In the case of Secy. State of Karnataka V Uma Devi reported in (2006) 4 SCC 1 the Hon'ble Supreme Court observed as follows:
34
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa R.N. Nanjundappa and B.N. Nagarajan and referred to an para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context the Union of India, the State Governments, and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation if any already made but not sub-judice need not be re - opened based on this judgment, but there should be no further by passing of the constitutional requirement and regularising or making permanent those not duly appointed as per the constitutional scheme."
In the case of Union of India Vs. Dharam Pal reported in (2009) 4 SCC 170, the Hon'ble Supreme Court observed as follows:
"18. A policy decision taken by the authorities of the Railway to regularise the services of those MCC, who had been appointed on ad hoc basis was a one-time measure. It was not to be followed as a precedent. It was therefore not necessary to follow subsequently."
The Hon'ble Court further observed the following:
"It is however also well settled that where the initial appointment is only ad- hoc not according to rules and made as a stop gap-arrangement the period 35 of officiation in such post cannot be taken into account for considering the seniority."
In the case of PPC Rawani (DR) Vs. Union of India and Ors. reported in (2008) 15 SCC 332, the Hon'ble Supreme Court observed as follows:
"If all the ad-hoc doctors were to be regularised with effect from the date of their initial appointment with seniority also from the date of initial appointment there will be no difference between regular recruitment and regularisation of ad-hoc appointments thereby defeating the very purpose of systematic regular recruitment through UPSC. Ad-hoc or stop gap appointees were not normally regularised and given seniority from the date of initial appointment. They were usually given regularisation and seniority only after a certain period of service which used to vary from one year to ten years or even more."
In the case of State of MP and Anr. Vs. Prem Prakash and Ors. reported in (1994) 1 SCC 432, the Hon'ble Supreme Court observed as follows:
"From time to time, this Court has considered, as to what is the relevant date for fixing inter se seniority of entrants in the same cadre, either by the same process or by different processes of recruitment. Ultimately, the matter was examined by a Constitution Bench, in the case of Direct Recruit Class II Engineering Officers' Assn. V. State of Maharashtra. It was said that once the appointment is made to a post according to rules, the seniority of the person so appointed is to be counted from the date of his appointment and not with regard to the date of his confirmation. It was also said that the corollary of the above rule is, that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The same view has been reiterated in the case of State of W.B. Vs. Aghore Nath Dey.
36 There cannot be any dispute that the appointment of the appellant, according to rules, was made on basis of the recommendation of the Commission on May 12, 1960. In this background, there was no occasion to take into consideration the period when the appellant was continuing on ad hoc basis, especially, during the period when the post itself was a non- gazetted post. The appellant was given seniority w.e.f. January 4, 1957, but the post of the Foreman which the appellant was holding itself became a gazetted post since January 16, 1959. Any officiation on the post when it was a non-gazetted post cannot be held to be a continuous officiation on the post so as to entitle the appellant to count that period towards his continuous officiation. The High Court has rightly held that while appointing him on the basis of the recommendation of the Commission, the date of appointment could not have been ante-dated and made to be effective w.e.f. January 4, 1957. This Court has repeatedly struck down and decried any attempt on the part of the appointing authority to give a notional seniority from a retrospective date, especially, when this process affects the seniority of those who have already entered into the service. In the present case respondent I had been appointed as Assistant Director of Industries on February 18, 1959 on the basis of an advertisement made in the year 1958 and on the recommendation of the Commission. His seniority in the service could not have been affected by the State Government, by giving notional date of appointment of the appellant w.e.f. January 4, 1957. In the case of Dr. Anuradha Bodi and Ors. Vs. Municipal Corporation and Ors. reported in 1998 AIR SCW 1971, the Hon'ble Court observed as follows:
"A strange contention has been urged by the learned counsel for the petitioners by referring to Section 96 of the Delhi Municipal Corporation Act. Under that Section no appointment to any category A post shall be made except after consultation with the U.P.S.C. out under the proviso no such consultation shall be necessary in regard to the selection for 37 appointment to any acting or temporary posts for a period not exceeding one year. According to learned counsel for the petitioners, the appointment of the petitioners was for a period of six months only and there was no necessity to consult the Commission. Consequently, according to her the appointments were in accordance with the statutory provisions. There is no merit in this contention. If this contention is accepted the main provisions contained in Section 96 prohibiting any appointment without consulting the commission can be easily defeated. Appointments can be made for periods lesser than one year and after continuing such appointments for some years, the appointees could be made permanent. That will only lead to nepotism and anarchy. The statute has not provided for any such situation. In fact a note of warning has been issued by this Court in Dr. M.A. Haque V. Union of India, (1993) 2 SCC 213 : (1993 AIR SCW 784) in the following words (at p.789 of AIR):
"As against this, however, we cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by- passing of the Public Service Commissions are permitted, it will open a back door for illegal recruitment without limit."
With respect, we adopt that reasoning and reject the contention of the learned counsel for the petitioners."
Thus from the decisions of the Hon'ble Apex Court the Law with regard to Regularisation of service and seniority on the basis of such Regularisation is apparent.
Although the Writ Petitioner has contended that his service was regularised it would not be just and proper to consider the validity of such regularisation in view of the Apex Court decisions as the Writ Petitioner has already retired from service.
38 Now the fact as to whether the Writ Petitioner's appointment on 30th January 1988 was a fresh appointment or regularisation of his appointment on daily wage basis in the year 1984 remains to be decided from the materials on record.
My attention goes to the letter of appointment issued to the Writ Petitioner by Deputy Municipal Commissioner (Personnel) on 09-03-1988 marked Annexure R-2 of the Affidavit in opposition filed before the trial Court by the corporation authority. Upon plain reading of the said letter it will appear that the Municipal Commissioner by his order dated 08-3-1988 has been pleased to appoint the Writ Petitioner in the post of Medical Officer Epidemic Control under the Calcutta Municipal Corporation on the recommendation of Municipal Service Commission. Thus from the letter it is clear that the Writ Petitioner was appointed to the post of Medical Officer Epidemic Control on 8-3-1988, and the said appointment is made on the recommendation of Municipal Service Commission. Upon further perusal of the letter it will appear that the decision to appoint on regular basis was taken by Corporation Authority upon obtaining recommendation from Municipal Service commission. It will also be clear from the letter of appointment itself that the Writ Petitioner made application for fresh appointment as medical officer for which recommendation was obtained from Municipal Service Commission and it was not a representation/prayer of the Writ Petitioner to regularise his service from his date of appointment on daily wage basis. The fact that the petitioner made application for appointment as Medical Officer is reflected in the appointment letter itself. Nowhere in the letter of appointment it appears that his earlier service on daily wage basis is regularised. The petitioner also could not show any document that he made representation for regularising his service from the year 1984, prior to issuance of appointment letter on 9/03/1988. The writ petitioner upon obtaining the letter of appointment did not challenge the 39 same before Corporation authority or court of law. Thus, the conditions of the said letter reached its finality.
In Government undertaking whenever the authority concerned intends to regularise the service of casual employees, daily wage employees, or contractual employees the authority will take a policy decision and formulate a scheme laying down the criteria for such regularisation/absorption. The Writ Petitioner has not been able to furnish any scheme or policy decision by virtue of which his service is regularized, nor there is any mention in the appointment letter of the Writ Petitioner that his service is regularized from 1984 in view of a particular policy decision.
In absence of policy decision framing scheme for regularisation and non- mention of the same in the letter of appointment leaves no scope to infer that the appointment of the petitioner is regularisation of his past service and ad-hoc appointment and not a fresh appointment. Proviso to Regulation 4 of the Calcutta Municipal Seniority Regulation provides a clause that where appointment of persons are initially made otherwise. Thus it will be clear that the Writ Petitioner made application for fresh appointment as medical officer for which recommendation was obtained from Municipal Service Commission, and it was not a representation/prayer of the Writ Petitioner to regularise his service from his date of appointment on daily wage basis. Nowhere in the letter it appears that his earlier service is regularised.
In case of Kolkata Municipal Corporation whenever the authority concerned intends to regularise the service of casual employees daily wage employees or contractual employees appointed otherwise than in accordance with the relevant recruitment regulation or in absence of any prescribed recruitment regulations in consultation with the commission is done where necessary. Hence, in case of regularisation consultation is done with the Municipal Service Commission where Corporation Authority deems necessary or may 40 proceed without consultation. It does not provide for recommendation by the Municipal Service Commission. In the case of the Writ Petitioner, the petitioner appeared twice before the Municipal Service Commission and on the first occasion he failed and on the second occasion he succeeded and he was recommended by the Municipal Services Commission. Thus the Writ Petitioner by making application for appointment to the post of Medical Officer and appearing before Municipal Service Commission accepted the procedure for fresh appointment and waived the right of regularisation. Thus the case of the Writ Petitioner falls under first clause of Regulation 4 of Calcutta Municipal Corporation (Determination of Seniority) Regulations 1984 and not under the proviso. In the first clause it is provided that persons appointed on the results of an earlier selection are senior to those appointed on the results of subsequent selection. As respondent no-9 stood selected prior to the writ petitioner by being successful before the Municipal Service Commission, the respondent no. 9 is senior to the writ petitioner. Moreover, the writ petitioner has accepted promotion during the pendency of the Writ Petition without objection thus he has waived his rights claimed in the Writ Petition. As it is clear from the appointment letter and the facts of the case that the Writ Petitioners Appointment was a regular fresh appointment in the eye of law similar to other direct recruits mere statement in affidavit in opposition that the writ Petitioner's service was regularised does not alter the legal position.
In the facts and circumstances this Appeal is allowed. Impugned Order dated 29th June 2017 passed in W.P. No-1050 of 2012 is set aside. However as the Writ Petitioner also prayed for release of career advancement scheme dues, the same shall be considered and released by the appellant if due both to the Writ Petitioner Pradip Kumar Ray Chowdhury and Respondent no. 9 Subrata Ray Chowdhury upon giving them an opportunity of being heard.
This appeal stands disposed of.
41 Urgent certified photo copy of this judgment and order, if applied for, be furnished to the appearing parties on priority basis upon compliance of necessary formalities.
(Biswaroop Chowdhury, J.) 42 APO No. 509 of 2017 WPO No. 1050 of 2012 Later:-
As there is difference of opinion between us, we send the file to the Hon'ble the Chief Justice to refer the matter to a third judge or to pass any other administrative order as his lordship deems fit and proper.
(Biswaroop Chowdhury, J.) (I. P. Mukerji, J.)
43