Calcutta High Court
Sudhanshu Sekhar Boral vs Food Corporation Of India & Ors on 29 April, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
A.P.O. No. 46 of 2004
W. P. No. 1972 of 2001
Sudhanshu Sekhar Boral
Versus
Food Corporation of India & Ors.
For the Appellant: Mr. Ashok Banerjee
Mr. Sarajit Sen
Mr. Sambhu Nath Sardar
For the Respondents : Mr. Kamal Kumar Chattopadhyay
Heard On: 15.04.2008
Judgment On: 29.04.2008.
PRANAB KUMAR CHATTOPADHYAY, J.
This appeal has been preferred at the instance of the writ petitioner assailing the order passed by the learned Single Judge whereby and whereunder the said learned Single Judge dismissed the writ petition on merits.
From the records we find that the writ petitioner was appointed as Chief Inspector, Food & Supplies Department, Government of West Bengal. The said writ petitioner was sent on deputation to the Food Corporation of India along with some other employees. In view of the agreement executed between the State Government and the Food Corporation of India till such time employees of the State Government sent on deputation to the said Food Corporation of India are absorbed by the said Corporation, officers and staff on deputation shall continue to be governed by the same scales of pay as under the State Government. By the notification dated 21st December, 1982 the writ petitioner along with nine other officers were granted proforma promotion on temporary and ad-hoc basis. The writ petitioner was promoted to the post of Assistant Controller of Rationing (Storage & Transport) under the Directorate of Rationing by the aforesaid notification dated 21st December, 1982.
Ultimately, the writ petitioner was absorbed in the service of the Food Corporation of India w.e.f. July 1, 1984 in the post of Assistant, Group - I, which is admittedly, equivalent to the post of Chief Inspector in the parent department of the State Government. Unfortunately, the benefit of proforma promotion granted to the writ petitioner by the parent department was not taken into consideration at the time of permanent absorption in the Food Corporation of India since the writ petitioner was not given fitment in the post of Assistant Manager (G) in the Food Corporation of India, which is equivalent to the post of Assistant Controller in the Food Department, Government of West Bengal.
The appellant/writ petitioner herein claimed the benefit of the aforesaid proforma promotion at the time of permanent absorption in the regular establishment of the Food Corporation of India. According to the appellant, the authorities of the Food Corporation of India should have granted the benefit of proforma promotion by absorbing the writ petitioner in the post of Assistant Manager (G), which was equivalent to the post of Assistant Controller, LDTR Rationing, wherein the writ petitioner was promoted in the parent department by the aforesaid notification dated 21st December, 1982. As a matter of fact, appropriate benefits were granted to other absorbed deputationists upon taking note of the aforesaid proforma promotion given by the State Government.
The learned Advocate representing the appellant/writ petitioner submits that in absence of any valid reason, benefits arising out of proforma promotion were denied to the said appellant/writ petitioner at the time of absorption by refusing to absorb the writ petitioner in the post equivalent to the promotional post assigned to the said writ petitioner by the State Government in the parent department.
The learned Advocate representing the Food Corporation of India authorities urged before this court that the appellant/writ petitioner was never granted promotion by the State Government since the said writ petitioner did not join in the promotional post within the prescribed time limit and in terms of the subsequent office order dated 13th May, 1983 issued by the Government of West Bengal, the said promotion granted to the writ petitioner in the parent department should be treated as cancelled. It has also been submitted by the learned Counsel representing the respondent-Food Corporation of India that at the time of absorption in the establishment of the Food Corporation of India, the status of the writ petitioner was Chief Inspector in the parent department as the promotion order stood automatically cancelled in view of non-joining of the said appellant/writ petitioner in the promotional post within the prescribed time.
We fail to understand how the writ petitioner could join the promotional post within the prescribed time limit when he was serving the Food Corporation of India on deputation.
It is not the case that the writ petitioner was negligent in the matter of joining his promotional post. To the contrary, it appears that joining of the writ petitioner to the promotional post was solely dependent on his release by the department where he was serving on deputation and as despite the requests of the parent department the writ petitioner was not released, he could not join his promotional post. So, the writ petitioner was never at fault in the matter of joining the promotional post. To the contrary, non-issuance of release order by the Food Corporation of India where the writ petitioner was posted on deputation, stood on the way of joining his promotional post.
The notification dated 21st December, 1982 granting promotion to the appellant/writ petitioner along with others does not prescribe any time limit for joining in the promotional post. The aforesaid notification dated 21st December, 1982 is quoted hereunder:
" GOVERNMENT OF WEST BENGAL
DEPARTMENT OF FOOD AND SUPPLIES
11/A, Mirza Galib Street, Calcutta - 16
No : 6671/F.S. ______ DT. 21.12.1982.
Con/FS/8A-12/81 Pt. III
NOTIFICATION
The Governor is pleased to appoint, on promotion, temporarily on ad-Hoc basis the 9 (Nine) officers named in the enclosure now working on deputation under the Food Corporation of India, West Bengal Region, to officiate in the posts as mentioned against their names for a period not exceeding 6 (Six) months w.e.f. the date(s) of their joining as such.
The ad-Hoc promotions are purely temporary and the Officers will be liable to be reverted, if necessary, when regular promotions are made, or earlier as the case may be.
By Order of the Governor, Sd/-
( D. S. Mukherjee ).
Asstt. Secy. to the Govt. of West Bengal."
It is true that in the subsequent order dated 13th May, 1983 it has been mentioned that if the officers already granted promotion do not join their respective posts within a fortnight on the date of receipt of the said order then their appointment to the respective posts will be treated as cancelled but the said order was virtually superseded by the subsequent orders dated 15th February, 1984 and 22nd June, 1984 whereby and whereunder the time limit for joining to the promotional post was extended. Since by the notification dated 21st December, 1982 the appellant/writ petitioner herein was admittedly, granted promotion without any condition of joining to the promotional post within a stipulated time, the subsequent office orders cannot unilaterally take away the accrued right of the said appellant/writ petitioner in terms of the aforesaid notification dated 21st December, 1982.
In any event, the competent authority of the Government of West Bengal by the notification dated 11th July, 1994 specifically allowed the benefit of proforma promotion with retrospective effect to the appellant/writ petitioner herein along with some other officers. The relevant portion of the aforesaid notification is set out hereunder:
" Government of West Bengal
Food and Supplies Department
11A, Mirza Galib Street, Cal - 87
No.____________ /FS Dated. 11.7.94.
N O T I F I C A T I O N.
Some officers, while working on deputation to Food Corporation of India, who were considered for promotion to higher post, were not allowed the benefit of proforma promotion during their stay in F.C.I. at that material point of time. But such officers are now eligible to get the benefit of proforma promotion with retrospective effect as per recent circular issued under this Deptt.'s Memo No. 7441- FS dt. 1.10.93.
Sri Sudhansu Sekhar Boral, ex-C.I. was appointed on promotion, to the post borne in the cadre of BF&SS vide Notification No. 6671-FS dt. 21.12.82 but he could not avail the benefit of such promotion due to non-repatriation to his parent Deptt. Subsequently he has absorbed in F.C.I. with effect from 1.7.84.......................................................................................................... ...............................................................................................................................................................................
The Governor has now, therefore, been pleased to appoint Sri Sudhansu Sekhar Boral, since absorbed in F.C.I. to the post of L.D.T.R. borne in the BF&SS cadre under Dte. of Rationing of this Deptt. with retrospective effect from 21.12.82 to 30.6.84, on proforma basis.
By order of the Governor, Sd/-
S. C. Bhowmik Dy. Secretary to the Govt. of West Bengal."
Admittedly, all other absorbed deputationists have been granted the benefit of proforma promotion with retrospective effect from the dates of promotion of their juniors in the State Government and without answering any reason, the writ petitioner was discriminated. The Senior Regional Manager of the Food Corporation of India also recommended for granting the benefits of proforma promotion by fitting the appellant/writ petitioner in the post of Assistant Manager, which is equivalent to the post of Assistant Controller (Rationing) w.e.f. 21st December, 1982 upon specifically recording the fact that similar benefits of proforma promotion have already been granted to the other absorbed deputationists.
The learned Single Judge although observed that there is nothing on record to show that the writ petitioner was "actually" granted proforma promotion by the State, the same, in our opinion, is not proper appreciation of the facts involved in the present case. The competent authority of the State Government by the notification dated 21st December, 1982 specifically granted proforma promotion to the writ petitioner and by the subsequent notification dated 11th July, 1994 allowed the benefit of said proforma promotion during stay in the Food Corporation of India with retrospective effect from the date of the said notification i.e. 21st December, 1982 prior to the date of absorption in the Food Corporation of India i.e. 30th June, 1984.In the present case, unfortunately, the appellant/writ petitioner has suffered due to the discriminatory treatment of the authorities of the Food Corporation of India when the juniors to the appellant/writ petitioner were already granted the benefits of promotion to the higher promotional posts.
In our opinion, there cannot be any valid reason or reasonable basis for denying the benefits of proforma promotion to the appellant/writ petitioner herein at the time of permanent absorption in the establishment of the Food Corporation of India with retrospective effect from 21st December, 1982 in view of the notifications issued by the Government of West Bengal on 21st December, 1982 and 11th July, 1994 by granting fitment to the post equivalent to the promotional post assigned to the said writ petitioner in the parent department specially when identical benefits were already granted to other deputationists.
The appellant/writ petitioner herein was granted proforma promotion by the notification dated 21st December, 1982 and the said writ petitioner was admittedly, absorbed in the regular establishment of the Food Corporation of India on 1st July, 1984. Therefore, we hold that the authorities of the Food Corporation of India should have granted the benefit of proforma promotion to the appellant/writ petitioner with retrospective effect from the date of issuance of the notification dated 21st December, 1982 and furthermore, fitment should have been given at the time of permanent absorption in the establishment of the Food Corporation of India to the post equivalent to the promotional post assigned in the parent department.
For the reasons discussed hereinabove, we hold that pursuant to the notifications dated 21st December, 1982 and 11th July, 1994, the appellant/writ petitioner is entitled to all the benefits of the proforma promotion with retrospective effect from 21st December, 1982 including absorption in the establishment of the Food Corporation of India to a post equivalent to the promotional post assigned in the parent department on the basis of the aforesaid notifications.
In the aforesaid circumstances, the order under appeal passed by the learned Single Judge cannot be sustained and the same is liable to be set aside.
The authorities of the respondent No. 1 including the respondent Nos. 2 and 3 herein are, therefore, directed to grant the benefit of proforma promotion to the appellant/writ petitioner with retrospective effect from 21st December, 1982 and also grant fitment to the appropriate post equivalent to the promotional post assigned to the said appellant/writ petitioner in the parent department pursuant to the aforesaid notifications dated 21st December, 1982 and 11th July, 1994 without any further delay but positively within a period of four weeks from date. The aforesaid respondents are further directed to assign the appropriate seniority position to the appellant/writ petitioner in the concerned cadre upon reckoning the date of promotion to the promotional post in terms of the aforesaid notifications dated 21st December, 1982 and 11th July, 1994 issued by the Government of West Bengal. The aforesaid respondents are also directed to award all the consequential service benefits to the appellant/writ petitioner including the payment of arrear financial benefits admissible in terms of this order within six weeks from date positively.
With the aforesaid directions, this appeal stands allowed and the order under appeal is set aside.
In the facts and circumstances of the present case, there will be, however, no order as to costs.
Let xerox copies of this judgment duly countersigned by the Assistant Registrar of this Court be supplied to the parties herein on undertaking to apply for the certified copy of the same immediately.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]