Calcutta High Court
Chandeshwar Singh vs State Of West Bengal & Ors on 22 July, 2022
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Subrata Talukdar
and
The Hon'ble Justice Ananda Kumar Mukherjee
A.P.O No. 139 of 2021
Chandeshwar Singh Vs. State of West Bengal & Ors.
A.P.O No. 140 of 2021
Debdutta Kundu Vs. The State of West Bengal & Ors.
A.P.O. No. 141 of 2021
Ashoke Nandy Vs. The State of West Bengal & Ors.
A.P.O. No. 142 of 2021
Subhas Banik Vs. The State of West Bengal & Ors.
A.P.O. No. 143 of 2021
Shyamal Roy Vs. The State of West Bengal & Ors.
For the Petitioner: Mr. Debdutta Basu, Adv.
For the State: Mr. Soumya Majumder, Adv.
Ms. Debjani Chatterjee, Adv.
Heard on: 06.04.2022.
Judgment on: 22.07.2022.
Ananda Kumar Mukherjee, J.:
1. These intra-court appeals are directed against the order dated 13.04.2021 passed by Learned Single Judge in W.P.O No. 429 of 2020, W.P.O No. 439 of 2020, W.P.O No. 441 of 2020, W.P.O No. 432 of 2020 and W.P.O No. 427 of 2 2020 whereby the writ petitions were dismissed in terms of the order passed in W.P.O No. 429 of 2020 which also disposed of G.A No. 1 of 2021.
2. The appellants filed the writ petitions principally against respondent no. 2, a Corporation incorporated under the provisions of the Companies Act, 1956 and having perpetual existence and a common seal. The respondent Corporation is a Government of West Bengal undertaking and is under the administrative control of the Transport Department, Government of West Bengal, therefore being in the nature of an instrumentality of the State within the meaning of Article 12 of the Constitution of India. The appellants, who are employees under respondent no. 2, sought for the benefit of 3rd Career Advancement as specified in Clause 4 of the Guidelines for Career Advancement Scheme framed by The Calcutta Tramways Company (1978) Limited on 24th of August, 2007. The Learned Single Judge to the contrary has held that the Government of West Bengal by a Memorandum No. 7552(80) -F dated 4th September, 2000 has specifically directed implementation of Memorandum No. 6075-F dated 21st June, 1990 as the scheme for career advancement for employees of corporations, inter alia, the respondent No. 2 company and the communication dated 14th August, 2007 has reiterated that Memorandum No 7552 (80)-F dated 4th September, 2000 would apply to the employees of the WBTC Limited which refers to CAS 1990. The Guidelines framed by the Board of WBTC Limited being inconsistent with such permission extended by the Government to the Undertakings, was deemed void and unenforceable to that extent. It was held by the Learned Single Judge that the 3 principle of estoppel cannot be applied against WBTC Limited, since there is no estoppel against law and the claim of the writ petitioners was dismissed.
3. Being aggrieved and dissatisfied with the impugned order dated 13.04.2021 passed by Learned Single Judge, the instant appeals have been preferred on the substantial grounds as follows: "VI For that the real question in dispute as to which memorandum is to be followed for the purpose of grant of CAS (Career Advancement Scheme) in respondent corporation, i.e. whether the memorandum of 1990 which prescribes for grant of 2 CAS or memorandum of 2001 which prescribes for grant of 3 CAS would apply and whether memorandum of 2001 can be extended towards the employees of respondent Corporation like those in cases of State Government employees in line with the Guideline prepared by the respondent Corporation as reflected in the impugned order."
4. Further case of the appellants that under the Guideline prepared by the respondent Corporation several employees including Chief Accounts Officer of Respondent Corporation were granted the benefit of CAS on completion of 10/8 years, 16th year and lastly on completion of 25 years.
5. It is urged that Hon'ble Single Judge erred in law in considering that the Government, for financial reasons, did not implement the 2001 Notification and failed to appreciate that CAS benefit given to employees who have not received any promotion or any hike in pay for a prolonged period is a legally enforceable right and the grant of CAS was implemented in 2007 when 2001 memorandum was in force in suppression of memorandum of 1990.
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6. Mr. Debdutta Basu, learned advocate for the appellants, argued that after 13th March, 2001, a particular portion of the memo no 6075- F, dated 21.06.1990 did not exist since it was expunged by order no 3015- F, dated 13.03.2001 and the said cannot be followed any more. Furthermore, in W.P.O No. 621 of 2013 (Suvra Kumar Dey Vs State of West Bengal and ors) the respondent State took advantage by arguing that the intention of the government was that the benefit of CAS would be released on and from August 1, 2007. On the basis of the Government Memo dated August 14, 2007 Guidelines were framed by the Corporation for Implementation of Career Advancement Scheme. In the said guidelines it was clearly stated that CAS may be implemented with effect from August 1, 2007. It is contended by the appellants that many employees of respondent no. 2 were awarded the benefit of 3rd Career Advancement as per Guidelines as well as memo no 3015-F, dated 13th March, 2001 and the deponent of affidavit-in-opposition of writ petition no. 427 of 2020 received the benefit of CAS as per said Guidelines and no step was taken to rectify their mistake in the last 13 years and only after filing of the writ petition respondents have taken a stand that such benefit was extended by mistake. It is urged that the decision of the learned Single Judge taking a stand different to that in WPA no. 621 of 2013 is not in consonance with law.
7. Mr. Basu submitted that the employees of the Corporation who suffered stagnation without any promotion, initially received the benefits under CAS as per memo no 7552(80) -F dated 4.9.2000 according to the terms and 5 conditions laid down in memo no. 6075- F dated 21.6.1990 but by memo no. 3015-F dated 13.3.2001, paragraph 6 of the memo no 6075- F of 1990 was amended and instead of two CAS benefits in 20 years, 3 benefits of CAS was recommended in 25 years. It is submitted that the Corporation implemented CAS with effect from August 2007, following the relevant position of memo no. 3015- F and prepared a Guideline of the above memo by issuing executive order dated 24.8.2007 for extending CAS benefit and the same was approved by the management as referred in letter dated 1.8.2008 and 18.5.2015. Learned advocate for the appellant contended that Suvra Kumar Dey filed writ petition no. 621 of 2013 for getting another benefit of CAS which was awarded as per the Guidelines. Therefore, there should be a parity in respect of the appellant petitioners.
8. It is argued on behalf of the appellants that instances reveal that CAS benefit were granted in terms of the Guidelines of 24.8.2007 as well as Memo no 3015- F dated 13.3.2001. It is argued that the 3rd benefit of CAS is being given to employees in selective manner in disguise and there has been discrimination in this matter. The petitioners therefore, pray that the respondents may be directed to grant the 3rd CAS benefit along with arrears with interest.
9. Mr. Soumya Majumder learned advocate appearing for the respondents, controverted the argument advanced on behalf of appellants and submitted that by memorandum dated 4.9.2000 the Government of West Bengal, Finance Department, Audit Branch specifically directed implementation of 6 Memorandum no. 6075- F dated 21.6.1990 to employees of the Corporation, inter alia, to the respondent no. 2 Corporation, which provides for only 2 CAS benefits, the first after 10 years and second after 20 years. It is submitted that Memorandum no. 3015- F dated 13th March, 2001 applied to State Government employees for extending three Career Advancements but the same is not applicable to Corporations. Therefore, the petitioners cannot have any CAS benefit except what was reiterated in the Circular of the Finance Department dated 4.9.2000.
10. Having considered the arguments advanced by learned advocates for both the parties and in the light of materials produced, this Court is persuaded to hold that the Memo no. 6075- F dated 21.6.1990 has been extended to the employees of the Corporation including respondent no. 2 by Memorandum no. 7552 (80) F dated 4.9.2000 of the Finance Department. However, Memorandum no. 3015-F dated 31.3.2001 was issued subsequently for improving the existing career advancement scheme only for the State Government employees and the same has no application to other departments including the corporations and undertakings. Therefore, the respondent Corporation cannot bestow three career advancement benefit to its employees on the basis of communication no. MD/staff/1631(1)-1635(1) dated 24.8.2007, issued by the Managing Director, CTC Limited and Letter no. 2676- W.T dated 14.8.2007 issued by O.S.D and Ex. officio Deputy Secretary to the Government of West Bengal, Transport Department, Kolkata unless the decision is ratified and approved by the Finance Department of the Government. 7
11. Implementation of three Career Advancement by the respondent no. 2/ Corporation, a State Government undertaking has a financial implication. Therefore, the State Government is the competent authority to adopt and endorse the policy. The finding of Hon'ble Single Judge that the employees who have received benefit under CAS 1990 scheme are excluded from the modified scheme of 2001, to such extent suffers from no illegality and the guidelines framed by the Board of WBTC Limited, inconsistent with such permission of the State is unenforceable and void.
12. The short point for consideration in this appeal is whether the Hon'ble Single Bench was correct in holding that the principle of estoppels applied against the West Bengal Transport Corporation Ltd (for short WBTC) for the purpose of denying the appellants the benefit of the Memo. No. 3015-F dated 13th March 2001. Admitting for the sake of argument the position that the employees of WBTC stand on a footing which is distinct from the class of State Government employees, at the same time it would be necessary for this Court to examine the nature of representation made to the employees of WBTC including the writ petitioners/ the present appellants apropos their claim to CAS.
13. It would be necessary at this juncture to dwell briefly on the concept of CAS and its relevance to employees in service. CAS is a benefit extended to the employees in lieu of promotion. Therefore, the intention to grant CAS is to prevent stagnation in service having regard to the fact that the right to be considered for promotion being recognized as a fundamental right, the 8 withholding of CAS would have a negative effect on the fundamental right of the employees who could not be considered for promotion.
14. It is factually settled that the Memorandum No. 6075-F dated 21st June, 1990 granted the benefit of two CAS increments in favour of State Government employees. Such benefit was extended to the employees of all State Government undertakings on the basis of Memo. No. 7552 (80) F dated 4thSeptember 2000.However, on 14th August 2007 the Secretary, Transport Department, Government of West Bengal wrote to the Managing Director of WBTC for implementing CAS w.e.f. 1st August 2007 in WBTC.
15. The attention of this Court is drawn by the appellants to the fact that when the Memo. Dated 14th August 2007 was written by the Secretary, Department of Transport to the Managing Director of WBTC to award the benefit of CAS to employees of WBTC including the present appellants, at the relevant point of time the Memo No. 6075-F dated 21stjune 1990 stood amended by Memo No. 3015-F dated 13th March 2001. In other words two benefits of CAS as conferred by Memo No. 6075-F dated 21st June 1990 were replaced by three CAS benefits by the Memo. No. 3015-F dated 13th March 2001.
16. This Court finds it therefore difficult to ignore the point that at the relevant point of time when the letter dated 14th August 2007 was written to the Managing Director of WBTC there could be no existence of two CAS benefits as extended by the Memo. No. 6075-F dated 21st June 1990. However, there 9 was in existence then, i.e. as on and from 14th August 2007, three CAS benefits in terms of the Memo. No. 3015-F dated 13th March 2001.
17. Accordingly, the communication dated 14th August 2007 cannot be restricted to be read in line with the provisions of a non-existent Memo. No. 6075-F dated 21st June 1990. The State respondents stand estopped from relying on a non-existent Memo. No. 6075-F dated 21st June 1990 since, as in August 2007 it was only the Memo. No. 3015-F dated 13th March 2001 conferring three CAS benefits which was in force. Accordingly, there could be no infirmity in the Guidelines prepared by the MD of WBTC assuring the employees of three CAS benefits which are found to be legally existing on that date.
18. It is also a matter of record that the guidelines issued by the MD, WBTC on 24th August 2007 have been relied upon by a Hon'ble Single Bench in WP 621 of 2013. By Judgement and Order dated 6thAughst 2019 in WP 621 of 2013. By Judgement and Order dated 6th of August 2019 in WP 621 of 2013 the Hon'ble Single Bench was pleased to, inter alia, hold as follows:
"On the basis of the government memo dated August 14, 2007 guidelines were framed by the company for implementation of the Career Advancement Scheme. In the said guidelines, it was clearly stated that CAS may be implemented with effect from August 1,2007. The service year of employees appointed before 1986 would be counted from 1986 and the benefit would be given at 10th /8th, 16th and 25th year respectively. Number of increments to be given in case where there had been promotion, or in case where there had not been any promotion, has also been clarified in the said guidelines.
Admittedly, the petitioner is governed by the said guidelines. The base year of the petitioner for computation of his 10th /8th years of service was 1986. The petitioner submits that notional benefit of the first CAS was granted to him in 1996 and the second CAS was granted in 2002. The 10 grievance of the petitioner that he should have been given cash benefit from September 1, 2000 to July 31, 2007 in terms of Clause 3(a) of the memorandum dated September 4, 2000 is not acceptable to the Court. Clause 3(a) applies to those employees of corporations and undertakings covered by the 3rd Pay Commission and who by virtue of implementation of CAS without permission of the government had nevertheless been entitled to the benefits on and from 01.04.1989. The provision was incorporated so as to remove the anomalies and illegalities in the CAS benefit improperly given. As the monetary benefit under CAS was available to the employees of the company upon the permission of the government, the provision of Clause 3(a) will not be applicable. Instead the company has rightly given the notional effect in terms of the memo No. 7552(80)-F dated 4th September, 2000 and the cash benefit from August 1, 2007."
19. In view of the foregoing reasons the order of the Hon'ble Single Bench stands set aside. It cannot be a standard of Judgement that financial difficulties of the State Government shall automatically mean that any administrative action taken contrary to law shall be upheld.
20. The Principal Secretary, Department of Finance is accordingly directed to consider the grievance of the appellants on merits and in the light of the above observations within a period of twelve weeks from the date of communication of this order.
21. The reasoned order of the Principal Secretary shall then be communicated to each of the appellants within a period of four weeks thereafter.
22. A.P.O. No. 139 of 2021 with A.P.O. No. 140 of 2021 with A.P.O. No. 141 of 2021 with A.P.O. No. 142 of 2021 with A.P.O. No. 143 of 2021 stand accordingly disposed of.
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23. Parties shall be entitled to act on the basis of a server copy of the Judgment and Order placed on the official website of the Court.
24. Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities. I agree.
(Subrata Talukdar, J.) (Ananda Kumar Mukherjee, J.)