Calcutta High Court
Union Of India (Uoi) And Anr. vs Ashim Kumar Acharya Chowdhury And Ors. on 18 January, 1996
Equivalent citations: (1996)1CALLT473(HC)
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT Satyabrata Sinha, J.
1. This appeal is directed against a judgment and order dated 1st October, 1985 passed by a learned Single Judge of this Court in Civil Rule No. 15137(W) of 1981, whereby and whereunder the said learned Judge allowed a writ petition filed by the respondents.
2. Admittedly, a seniority list was published in the year 1980. According to the writ petitioners, they were seniors to the respondents No. 7 to 57 on the basis of their date of entry in the service as also on the basis of the date of entry in the grade. They filed a representation but the same was not allowed, inter alia, on the ground that they should make individual representation. Their further representation was also rejected. The appellants, being respondents in the Civil Rule, inter alia, in their affidavit-in-opposition filed therein, contended that the circular letter dated 9.4.70 upon which the writ petitioners had put strong reliance had no application in the facts and circumstances of the case inasmuch as all concerned officers passed the Appendix II examination prior thereto. It was further contended that the seniority list has been prepared in terms of the existing rules. The learned Trial Judge, inter alia, held that a seniority would not depend on the fortuitous circumstances of confirmation and if confirmation is not made in time, it was fault of the respondents for which the petitioners should not suffer. It was stated thus who have passed earlier should have confirmed first.
3. Mr. Chaudhuri, learned counsel appearing on behalf of the appellants, has principally raised two contentions in support of this appeal. The learned Counsel submitted that a writ petition by fifteen petitioners was not maintainable inasmuch as they stand on different factual background. The learned Counsel contends that the writ petitioner No. 15 was treated to be seniormost and as such the question of challenging the gradation list at first instance does not arise. The learned Counsel has given similar instances to show that some of the petitioners have been shown to be senior to same of the private respondents. It has further been pointed out that from a perusal of annexure 'F' to the affidavit-in-opposition, it would appear that the representation made on the part of the writ petitioners-respondent was not rejected on merit but joint representation by them was discouraged. The learned counsel further submitted that the circular letter dated 1.4.70 will have no application in the instant case inasmuch as the writ petitioners as also the private respondents passed their examination prior thereto.
4. Mr. Ghosh, learned Counsel appearing on behalf of the respondents on the other hand, submitted that a bare perusal of the judgment passed by the learned Trial Judge, it would be evident that the same is in consonance with the judgments of the Supreme Court of India beginning from S.B. Patwardhan v. State of Maharashtra . The learned Counsel further has relied upon the case of P.S. Mahal v. Union of India .
5. There cannot be any doubt whatsoever in view of S.B. Patwardhan's case (supra) and P.S. Mahal's case (supra) that seniority is normally measured by length of continuous officiating service. In Patwardhan's case (supra) the Supreme Court of India categorically stated that all other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining the rules of seniority as between the persons recruited from different sources, so long as they belong to same cadre, discharge similar functions and bear similar responsibilities. This aspect of the matter has also considered by the Supreme Court of India in decisions and . There thus cannot be any doubt whatsoever that the initial date of entry in the grade would be determining factors for the purpose of determining seniority and not the date of confirmation subject of course to the fact that other conditions remaining same and the statutory rules.
6. In the instant case it is evident that the appellants themselves had issued a circular letter dated 30th May, 1961, from a perusal whereof it appears that the Board made it clear that there was no question of vacancies being kept upon confirmation of senior staff who might qualify in future and it is essential that confirmations should be ordered regularly, at least once a year, which is the normal interval between two Appendix-IIA Examination at present and before the result of every succeeding Appendix- II examinations are published. In other words, if junior persons, who had qualified in an earlier examination, have given satisfaction as officiating clerks Grade I over a reasonable period, their confirmation should be ordered against permanent vacancies of clerks Grade-I which may arise before the results of the next Appendix-IIA examinations are announced. This would in effect conform to the practice, which apparently the Railways are already following generally of confirming persons officiating as Grade-I clerks on the dates permanent vacancies in that grade occur. Evidently, seniority list has been prepared in the year, 1980 only on the basis of the date of confirmation without taking into consideration the continuous officiation on the part of the concerned employees and basic grade seniority in Grade-II.
7. In this view of the matter, we are of the opinion that the judgment and order passed by the learned Trial Judge cannot be said to be bad in law. The respondents in view of their own circular were bound to revise their seniority list and for that purpose in our opinion, if any occasion arises, they may give an opportunity of hearing to the petitioners and the private respondents and or their respective representatives. So far as the question of maintainability of the writ petition on the ground that fifteen writ petitioners have joined in the same writ petition is concerned, we are of the view that the said submission does not merit any consideration as the said objection was not raised before the learned Trial Judge. Moreover, seniority list as a whole had been challenged, cause of action for all the petitioners being same, they could jointly file one writ application. As a matter of fact, in a matter like this, as the entire seniority list has to be considered, it is better if persons who were divided in two different groups, are heard together instead of entertaining separate writ application so as to increase the number of writ applications. It is made clear that in view of the decision of the Hon'ble Supreme Court of India, the Railway authorities can not give any effect to the Rule, whereby and whereunder the date of confirmation alone should be counted for the purpose of reckoning the respective seniority.
8. This appeal is, therefore, dismissed With a direction upon the respondents to revise the Seniority list in the light of the observations made hereinbefore and in the light of observations made by the Supreme Court of India.
9. However, there will be no order as to costs.
10. In the event an application is made for urgent xerox certified copy of the judgment, the same should be supplied on priority basis.
S. N. Chakrabarty, J.
11. I agree.