Calcutta High Court (Appellete Side)
(Tapan Kumar Chakraborty & Ors vs State Of West Bengal & on 19 August, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
19.8.2011
Sl. no. 3 WPST 135 of 2010
With
WPST 136 of 2010
(Tapan Kumar Chakraborty & Ors. -vs-State of West Bengal &
Ors.)
Mr. Malay Kumar Bose
Mr. Dilip Kumar Samanta
Mr. Biswapriya Samanta....for the petitioners
Mr. Sadhan Roy Chowdhury
Mr. Sanat Kumar Biswas ....for the respondents
The petitioners were working as Relief Works Supervisor under the Collectorate of Murshidabad. They were engaged from 1971 to 1973. Subsequently, they were absorbed as Lower Division Clerk in 1978 in the same Collectorate and a combined gradation list was published in 1985 after their absorption maintained at the office of the Collectorate, Murshidabad. Subsequently, the petitioners were declared surplus by the Department. The State however, to avoid retrenchment, absorbed them in the post of Lower Division Clerk- cum-Typist in the same Collectorate. The State started maintaining two different gradation lists. The petitioners made a grievance, as there was no clear and definite guideline to be followed for the next promotional avenue.
The petitioners approached this court by filing a writ petition being CO 9539(W) of 1986. The same was heard and disposed of on December 13, 1988. The gradation list published by the Collectorate without considering the past service of the petitioners was declared improper. The Court directed not to give effect to the same and asked the authority to publish a fresh gradation list. The State did 2 not act upon the said order. The petitioners filed a contempt proceeding, which was numbered as CR 2948 of 1990. The contempt proceeding was disposed of by directing the respondents to take steps for implementation of the judgment and order dated December 13, 1988 within the stipulated period. Even after the said order having been passed, the State did not act upon the same. The State, in purported compliance of the said order, published a fresh gradation list on December 31, 1990, which gave rise to further writ petition being CO 19605(W) of 1994. The said application was transferred to the Tribunal and renumbered as TA 1250 of 1996. The Tribunal disposed of the said application vide judgment and order dated September 12, 1997 impugned before us. Before the Tribunal, the petitioners contended that the fresh gradation list could not have been given effect to, as it would be contrary to the mandate given by the High Court in earlier writ proceeding being CO 9539(W) of 1986. It was further contended on behalf of the petitioners that the State appeared in the contempt proceeding before the High Court and assured the court that the order would be implemented. Such assurance was recorded by the High Court in the order dated July 6, 1990 passed in CR 2948 of 1990. Hence, the State was not entitled to publish the gradation list contrary to the mandate, as contained in the order of the High Court dated December 13, 1988. The State however, contended that in case of combined gradation list being published, as per the contention of the petitioners, it would adversely affect the existing employees working under the Collectorate in the post of Clerk-cum-Typist. The Tribunal observed, when the petitioners were absorbed as Clerk-cum- 3 Typist/Lower Division Clerk, date of their absorption would be material for the purpose of determining inter se seniority. In effect, the Tribunal disowned the past service rendered by the petitioners as Relief Supervisors and then Lower Division Clerk in the same Collectorate.
The matter was heard by us on July 15, 2011, when upon hearing Mr. Bose, learned Senior Counsel appearing for the petitioners and Mr. Roy Chowdhury, learned Counsel appearing for the State, we felt that notices should be given to those persons, who might be adversely affected by the ultimate decision in this matter. We examined the records, wherefrom we found that most of those employees refused service, one of them was dead and the rest received the notice. We asked Mr. Roy Chowdhury to inform each one of them, if they are serving the Collectorate. In addition, we asked Mr. Bose to publish an advertisement in the local Newspaper. Accordingly, notice was published on behalf of the petitioners in Baharampur Times, as we find from the affidavit of compliance/ affidavit of service filed by the petitioners. Mr. Roy Chowdhury also files a Xerox copy of Fax Massage, wherefrom it appears that five of such employees, who are still in service, received the notice. No-one is present before us.
We have considered the rival contentions. Mr. Bose, learned Counsel appearing for the petitioners has drawn our attention to the order appearing at page 152 of the paper book, wherefrom we find that initially the District Magistrate published a common gradation list by giving appropriate seniority to the petitioners by forwarding recommendation to the State for creation of 29 supernumerary posts 4 to accommodate the batch of the present petitioners. The said order was passed on November 25, 1992 by the then District Magistrate, Murshidabad. The petitioners were happy with such order however, the State later on, passed a fresh order on July 30, 1994 by the Officer-on-Special Duty, Board of Revenue, West Bengal by observing that there was no necessity for creation of 29 supernumerary posts. It was clarified that promotion, if allowed to anyone of the petitioners on the basis of the combined gradation list, would have to be cancelled.
Being aggrieved by the said order, the petitioners approached this court by filing the writ petition, which was later on transferred to the Tribunal and resulted in the judgment and order impugned.
Identical issue was decided by one of us (Ashim Kumar Banerjee,J.) sitting singly in the case of Smt. Bula Mukherjee & Ors.
-vs- State of West Bengal & Ors.(WP 15414(W) of 2001). In the said case, two groups of employees were fighting for determination of inter se seniority. One group was directly absorbed in the district judgeship of Howrah whereas other group joined the district judgeship, after they served as Copyist. Both were taken in the same gradation list, which gave rise to a protracted litigation. The State contended before the Court that as per policy of the State, the Copyist working under different sections were subsequently, absorbed in the judgeship. It was ultimately decided that appropriate seniority would be given considering the respective dates of initial entry in service and not otherwise. The matter went to the Division Bench. The Division Bench in FMA 594 of 2007 dismissed the appeal by observing that the judgment did not call for any 5 interference. The Special Leave Petition from the said judgment and order dated August 31, 2009 in FMA 594 of 2007 was dismissed, as contended by Mr. Roy Chowdhury, who also appeared in the said matter.
Applying the analogy in the case of Bula Mukherjee & Ors. (supra), we are of the view that when both the groups were regular employees of the State, their very entry in the State service was relevant for the purpose of determination of their seniority. It is true that both the groups were working under different Department having a separate channel of promotion. Had it been a case, where the concerned employee leaves his main stream and joins another stream and such transfer is allowed by the State on the request of the employee, he would have to forego his seniority in his patent department and he would be placed at the bottom of seniority, where he would join. However, in the present case, the petitioners were declared surplus by the State. They were regular employees. Hence, they could not lose their job and such declaration was a unilateral decision of the State. Hence, their subsequent absorption in another stream would not debar them to claim their past service to their credit for determination of inter se seniority.
The Tribunal application succeeds and is allowed. The judgment and order of the Tribunal is set aside. The State is directed to prepare a fresh gradation list in terms of the observations made by us herein. While doing so, the State would definitely take into consideration the earlier Memorandum dated November 25, 1992 appearing at pages 152-153 of the paper book. The entire process must be completed within a period of two months from date. 6
We find that the controversy is long pending. Most of the employees belonging to other group already retired and one was dead, except five employees, who received notice and did not chose to appear. The retired employees must not be disturbed with regard to their pensionary benefit. Similarly, the existing employees being five persons named as 1) Smt. Saraswati Mukherjee, OS. 2) Smt. Paromita Bhattacharjee, HA, 3) Sri Jiban Ranjan Deb, HC, SDO Election Section, 4) Sri Tusar Kanti Das, HC, PG & Women Cell and
5) Sri Madhab Kumar Das, HC, District Election Section, must not be disturbed and should not be taken away any of their right, which they are enjoying. While doing so, the present petitioners should be given appropriate seniority in the combined gradation list considering their past service in the Collectorate of Murshidabad.
WPST 135 of 2010 and WPST 136 of 2010 are disposed of without however, any order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Ashim Kumar Banerjee,J.) (Dr. Mrinal Kanti Chaudhuri,J.) 7