Calcutta High Court (Appellete Side)
Union Of India & Ors vs Subhas Mondal on 16 December, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
-And-
The Hon'ble Justice Shukla Kabir (Sinha)
W.P.C.T. 81 of 2009
Union of India & Ors.
-Versus-
Subhas Mondal
For Petitioners : Mr. Somnath Bose
Mr. Sanjoy Bardhan
For Respondent : Mr. Moloy Bose
Mr. Debasish Purkait Mr. Sambuddha Datta Heard on :- December 14 and 16, 2011 Judgment on :- December 16, 2011 Upon hearing the rival contentions, we appreciate the real difficulty now being faced by the Central Government in complying with the order of the Tribunal. At the same time we cannot avoid the logic on which the Tribunal allowed the application of the respondent.
The applicant was in Metallurgy Department that had the channel of promotion upto the post of Deputy Director, so was the Engineering Department. Seven employees belonging to Engineering Department made a grievance with regard to their delayed promotion. The matter reached finality when the judgment and order of the Principal Bench granting the benefit of antedating promotion in Engineering Department in respect of seven applicants was allowed and affirmed by the Delhi High Court.
2The respondent, being a SC candidate, got the promotion in the post of Deputy Director in 1992. Now he claims that he should have been considered for the post in 1991 instead of 1992.
Pertinent to note, he was promoted in 1992 as Deputy Director in a carried forward SC vacancy. He accepted the promotion in 1992, however, did not raise any contemporaneous objection. He was rather happy with his promotion, although delayed according to him. His colleagues in Engineering Department got the benefit of antedating promotion in the post of Deputy Director in their Department. The Respondent got promotion subsequently in 2008 in the post of Deputy Director (Quality Assurance) that too, in the Metallurgy Department. His colleagues, being the petitioners in Principal Bench, also got identical promotions in Engineering Department.
The respondent made grievance in 2003 when a combined seniority list was published showing him as junior to his colleagues being the petitioners before the Principal Bench, who superseded him in the seniority list in compliance with the direction of the Principal Bench so affirmed by the Delhi High Court. The respondent approached the Tribunal contending that he should have been considered for the post of Deputy Director, Inspection and Quality Assurance in Metallurgy Department in 1991, when there was a clear vacancy. However, he was given delayed promotion in 1992. When his colleagues in the Engineering Department got their promotion antedated to 1991, there was automatic supersation in the combined gradation list.
The Tribunal considered his grievance. It was contended before the Tribunal by the petitioner that the decision of the Principal Bench was judgment in personem and not in rem. The Tribunal rejected such contention and observed that in 3 view of the said decision the petitioners in the other matter got an advantageous position in the matter of promotion in the next higher post hence, his promotion in the post of Deputy Director, Metallurgy Department in 1992 should be antedated to 1991 at par with his colleagues in Engineering Department and consequential benefit should be extended to him so that a review DPC could be held to consider his promotion in the next higher grade coupled with extension of consequential benefit.
Being aggrieved, Union of India has now approached us by filing the instant application.
We have heard Mr. Somnath Bose, learned Counsel appearing for the Union of India and Mr. Moloy Bose, learned Senior Counsel appearing for the respondent.
We fully agree with Mr. Somnath Bose when he criticises the respondent because of unexplained delay in approaching the Tribunal for antedating his promotion on the ground that he could have been considered in 1991 in a clear existing vacancy in the said year. We are of the view, if there had been a clear vacancy in 1991 and the respondent was not considered for the said post, he should have made contemporaneous grievance. He did not do so. When he got the promotion in 1992, he accepted the same without any protest hence, on that count the respondent should not have approached the Tribunal after more than a decade that would unsettle a settled position. To that extent we join issue with the observation of the Tribunal.
We, however, are not ad idem when Mr. Somnath Bose attacks the order of the Tribunal that the respondent was not at all aggrieved as his grievance was belated and the Tribunal could not have granted him relief at all.
4It is true that the respondent made a belated grievance with regard to his non-consideration in the year 1991. However, his other contention that his position got disturbed in view of the compliance of the order of the Principal Bench, was definitely a live grievance and the Tribunal very rightly redressed the same.
The problem may be looked from a different angle. The respondent, although aggrieved in 1991 because of his non-consideration, accepted his promotion in 1992 without protest. He remained happy with such belated promotion. He, however, objected to the seniority list when he found that in the combined seniority list his position got disturbed in view of supersation by his junior colleagues in the Engineering Department.
It is true that such supersation had no bearing on the next promotion, which he got in the year 2008. We are told, the next higher promotion in the post of Deputy Director General (Quality Assurance) would be considered as per the combined seniority list. Mr. Somnath Bose contends on behalf of the petitioners that it was a selection post that is strenuously disputed by Mr. Moloy Bose, learned Senior Counsel appearing for the respondent. We feel, on that score the Tribunal is right in granting the appropriate relief to the respondent. We, however, wish to clarify the position in the following manner :-
i) The respondent's claim for antedating promotion in the year 1991 is rejected and the order of the Tribunal to that extent is set aside.
ii) The seniority list in the Metallurgy Department considering the promotion of the respondent in 1992 to the post of Deputy Director (Quality Assurance) is held to be valid.5
iii) In case combined seniority list is considered for the sole purpose of consideration of promotion in the post of Deputy Director General (Quality Assurance) and the next higher post, the respondent would be considered as a promotee in 1991 and such consideration would be limited to the purpose of coming within the zone of consideration of next promotional post as indicated above.
iv) The respondent would, however, be not entitled to any other benefit.
To the above extent, the order of the Tribunal is modified. W.P.C.T. 81 of 2009 is disposed of accordingly.
There would, however, be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Shukla Kabir (Sinha), J.) akb