Calcutta High Court (Appellete Side)
Sri Keshob Chandra Dakshy vs The State Of West Bengal on 28 September, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
W.P.S.T. No.8 of 2011
Sri Keshob Chandra Dakshy
-VS-
The State of West Bengal
For the Petitioner : Mr. D.N. Roy
Ms. Munmun Tewari
For the State : Mr. Mr. Sundarananda Pal
Mr. Joytosh Mazumder
Mr. Arjun Roy Mukherjee
For the Private : Mr. L.K. Gupta (Sr. Advocate)
Respondent Mr. Masud Karim
Mr. D. Saha Ms. Ranjana Talapatra For the Advocate : Mr. Sadhan Roy Chowdhury General Mr. Sabyasachi Roy Chowdhury Heard on : September 15 & 21, 2011.
2Judgment on : September 28, 2011.
ASHIM KUMAR BANERJEE.J:
MOOT QUESTION The moot question involved herein as to what would be the effect of Article 16(4A) of the Constitution in the light of the Apex Court decisions in the case of Ajit Singh Januja1; Ajit Singh2 and Nugraj3 so culminated in Rajasthan Case4.
FACT The petitioner Keshob Chandra Dakshy joined the State Engineering Service as Assistant Engineer (Electrical) in Public Works Department in the year 1994 through Public Service Commission. In the same year the private respondents Subhasis Biswas, Nikhil Kumar Saha and Pradyot Kumar Sikdar being the respondent nos. 7, 8 and 9 also joined as Assistant Engineer in the same Department. As per the Gradation List Keshob was admittedly senior to all three in the post of Assisting Engineer. However by dint of their caste status (Scheduled Caste) the respondent nos. 7, 8 and 9 were promoted to the post of Executive Engineer before Keshob. Subhasis got the promotion on 1 1996(2) SCC 715 (Ajit Singh Januja & Ors. -VS- State of Punjab & Ors.) 2 AIR 1999 SCC 3471 (Ajit Singh & Ors. -VS- State of Punjab & Ors.) 3 2006 (8) SCC 212 (N. Nugraj & Ors. -VS- Union of India & Ors.) 3 September 24, 2001 whereas Nikhil and Pradyot got it on April 8, 2002 and November 25, 2002 respectively. Keshob as a general candidate got the post of Executive Engineer on March 27, 2003. Accordingly, the Gradation List in the post of Executive Engineer was prepared and published on November 5, 2004 showing respondent nos. 7, 8 and 9 senior to Keshob. In 2008 Subhasis, Nikhil and Pradyot got further promotion in the post of Superintendent Engineer. However Keshob is still languishing in the post of Executive Engineer and thus became subordinate to Subhasis, Nikhil and Pradyot. Keshob approached the Tribunal in 2010 by filing O.A. no.898 of 2010 by making a grievance that he should have regained his seniority after moving to the post of Executive Engineer by dint of Rule 5(5) of the Seniority Rules. He also complained that Rule 5(5) so introduced in 2001 could not have been deleted in May 21, 2004 that too, retrospectively with effect from November 18, 2001. He challenged the vires of such deletion. DECISION OF THE TRIBUNAL The Tribunal considered the issue upon hearing the rival contentions. The Tribunal rejected the claim by finding the said application without any merit. 4 2011 (1) SCC 467 (Suraj Bhan Meena & Anr. -VS- State of Rajasthan & Ors.) 4 ANALYSIS OF THE TRIBUNAL'S JUDGMENT
i) Keshob was admittedly senior to the private respondents. He did not raise any objection when they got promotion before him and was placed in the Gradation List before him despite he got the promotion in 2003.
He also did not object when Subhasis and Nikhil got promotion in 2008. It was only when Pradyot was about to be considered for the post of Superintending Engineer, he approached the Tribunal.
ii) Regaining of seniority was not possible in view of deletion of Rule 5(5) with retrospective effect from October 18, 2001.
iii) Seniority Rule in promotion would be determined by length of service in the promotional post unless such promotion was decided on the basis of merit. The situation stood altered in view of the decision in the case of Birpal Chauhan5 and Ajit Singh Januja. The Parliament however by the 85th amendment in 2001 introduced Article 16(4A) as amended nullifying the effect of the Supreme Court judgment in the case of Bir Singh and Ajit Singh Januja. Hence, in view of Article 16(4A) as amended would stand in the way of giving relief to Keshob. Nagaraj upheld the 85th amendment. Hence, deletion of Rule 5(5) was valid and could not be assailed.
5 1995(6)SCC684 (Union of India -VS- Birpal Chauhan) 5
iv) West Bengal Scheduled Caste and Scheduled Tribe (Reservation of Vacancies in Services and Posts) Act, 1978 was enacted on May 5, 1976 making provision for reservation for the Scheduled Caste and Scheduled Tribe candidates both at the time of recruitment as well as promotion particularly by Rule 10 of the West Bengal SC and ST (Reservation of Vacancies in Services and Post) Rules, 1978. Neither the said Act nor the Rules were under challenge.
v) The deletion of rule 5(5) of the Seniority Rules 1981 was not affected by Suraj Bhan Meena.
INSTANT PROCEEDING Being aggrieved, Keshob approached us by filing this application. PRECEDENT CREATED BY ONE OF US The identical issue was considered by me sitting in a Division Bench in the case of Ranjit Halder 6. In the said decision almost an identical situation arose, however Ranjit did not delay his challenge. He contemporaneously objected and came before the Tribunal and subsequently to us when his junior by dint of his backward status superceded him in the Gradation List. We held in favour of Ranjit by observing that Ranjit was entitled to regain his Ranjit Haldar -VS- State of West Bengal & Ors. (WPST 448 of 2004) 6 seniority by dint of original Rule 5(5) as introduced in 2001. Pertinent to note, Ranjit got the promotion in 1995 whereas his colleagues got the promotion in 1996. In 2004 combined Gradation List was published that gave rise to the grievance of Ranjit. We applied the ratio decided in Ajit Singh and observed that original 4(A) in Article 16 was introduced with effect from June 17, 1995. Hence, Ranjit was entitled to such benefit in view of the decision in the case of Ajit Singh. Rule 5(5) was introduced by the State in deference to the desire of the Apex Court in the case of Ajit Singh. It was prevalent on the date when the Gradation List was published and Ranjit was entitled to such benefit. The decision in Ranjit is now under challenge before the Apex Court in Civil appeal No.8436-8437 of 2010 although the effect of the order was not stayed by the Apex Court. Our observation on this score being relevant herein is quoted below :-
"On a plain reading of Rule 5(5) it appears to us that such rule was introduced in the line of the observation of the Apex Court quoted supra. The Apex Court clearly observed that there was no directive or command either in Article 16(4) or Article 16(4A) unlike Article 16(1), article 16(4) and Article 16(4A) are in the nature of enabling provision. Following the said principle we are of the opinion that when Brambha got promotion in the 7 post of superintending engineer in 2003 when Rule 5(5) was very much in force he regained his seniority.
Question, however, remains as to what would be the effect of 85th amendment introduced in 2004 having retrospective effect from 1995. Mr. Gupta contended that but for such amendment coupled with repeal of Rule 5(1) Brambha lost his seniority and should have been placed after Ranjit as he got promotion much after Ranjit. We are unable to appreciate such logic. The Apex Court interpreted Article 16(4A)and found no mandate contained therein. Such article was interpreted as an enabling provision. The State exercising such power introduced Rule 5(5) which was in force in 2003 when Brambha got promotion. Subsequent amendment having retrospective effect, in our view, cannot take away the status of Brambha in the seniority list. If we have to accept Mr. Gupta's contention we would have to hold that upto 2004 Brambha should be considered as senior to Ranjit and after 2004 not only Brambha should be placed after Ranjit but also the benefit he got as senior to Ranjit prior to 2004 should be taken away from him. We are unable to accept such proposition. Once the seniority list was drawn as per the existing rule prevalent on the day when Brambha got promotion such benefit could not be taken away by repeal of Rule 5(5). The notification dated May 21, 2004 by which sub-rule 5 was 8 deleted was made effective with retrospective effect from October 18, 2001. Such retrospective effect, in our view, could have any application in case of Brambha for the reasons stated above."
ARGUMENT AND COUNTER ARGUMENT Mr. D.N. Roy, learned counsel appearing for Keshob contended that his case was squarely covered by Ranjit Halder. Hence, he should get the benefit of the said decision. He contended that the Apex Court in Nagaraj, although held Article 16(4A) as amended by 85th amendment as valid, observed that it was not an automatic process to get the benefit of reservation in promotional post unless the State framed law for the purpose of having taken into account the relevant datas to satisfy themselves that there was inadequacy of reservation of that class in public employment and no breach was caused to the ceiling limit of fifty per cent. Mechanically, process of introduction and deletion of Rule 5(5) by the State in absence of consideration of the quantifiable data would make the said deletion ultra vires the Constitution so interpreted by Nagaraj.
Per contra, Mr. L.K. Gupta, learned senior counsel appearing for Subhasis, Nikhil and Pradyot contended that the challenge was belated. In any event, 9 such bleated challenge, if allowed, would unsettle the settled seniority and would make the situation complex. Mr. Gupta contended that framing of Rule was not a mandate either under Article 16(4A) prior to amendment or otherwise. He further contended that by the said Act of 1976 and the Rules framed thereunder the West Bengal Government complied with the mandate of Article 16(4A) and the ratio decided in Nagaraj would not affect such law and in any event such law was admittedly not under challenge in the present proceeding. He drew our attention to the affidavit filed on behalf of the State to show that the representation was much below fifty per cent even in promotional post. According to him, the date of promotion would be the guiding factor for preparation of the Gradation List. Even if the contention of Keshob was upheld by this Court, the result would be academic as Keshob, as of date, was Executive Engineer being subordinate to Subhasis, Nikhil and Pradyot who admittedly got promoted in the superior post of Superintending Engineer and was placed in a different Gradation List prepared for the post of Superintending Engineer.
Mr. Sundarananda Pal, learned Senior Standing Counsel for the State supported Mr. Gupta and drew our attention to the affidavit filed on behalf of the State. Mr. Pal, in addition, contended that unless Keshob could enter into 10 the cadre of Superintending Engineer his challenge to the Gradation List would automatically fail.
Mr. Sadhan Roy Chowdhury learned counsel representing the learned Advocate General contended that there was no valid challenge to the 1976 Act or the Rules framed thereunder. In absence of such challenge, challenge to the deletion of rule 5(5) or the Notification keeping it in abeyance before deletion, was of no consequence.
LAW ON THE SUBJECT Article 16 guarantees equality of opportunity in the matter of public employment. Clause 4 would provide that nothing in the said Article would prevent the State from making any provision for reservation of the backward class if in the opinion of the State such class is not adequately represented in the services under the State. Clause (4A) as introduced in 1995 inter alia provides that nothing in the said Article would prevent the State from making any provision for reservation of class or post in service under the State in favour of Scheduled Caste and Schuduled Tribe which, in the opinion of the State, are not adequately represented in service. As per 85th amendment, with retrospective effect from June 17, 1995 when Clause (4A) was 11 introduced, the benefit was extended to promotion as well, along with consequential seniority. On a combined reading we find that the legislature wanted to leave it to the discretion of the State to frame Rule making reservation for the backward classes in case of recruitment as well as promotion subject to satisfaction that adequate representation is lacking. West Bengal Government in 1976 introduced the law taking benefit of Section 16(4). While doing so they also reserved the promotional post as well which was unconstitutional prior to 85th amendment coming into force in view of the decision in the case of Ajit Singh Januja. Such impediment was however removed by introduction of the 85th amendment when Caluse (4A) stood amended with retrospective effect from June 17, 1995 when original Clause (4A) was introduced. In short, as per Article 16(4) State was empowered to make provision for reservation in State service after being satisfied that representation is lacking. Such situation prevailed up to 1995 when Clause (4A) was introduced and reservation in post was allowed on same terms. That situation prevailed up to 2001 when 85th amendment introduced promotional post and with consequential seniority to come within the mischief of that provision to nullify the effect of Ajit Singh Januja. Nagaraj held 85th amendment valid with a caution that State much collect quantifiable 12 data to avoid breach of the ceiling limit or obliterate the creamy layer or extend the reservation indefinitely.
OUR VIEW In Ranjit Halder we considered a situation where there was no delay. In the said case we considered the law prevalent as on that date. We applied the decision in the case of Ajit Singh and ultimately held that Ranjit was entitled to regain his seniority. In the said case Ranjit and his colleagues being the private respondents therein were in the same post. Hence, the question of entering into the cadre as raised before us by the learned Senior Standing Counsel was not germane. Be that as it may, decision in Ranjit is now awaiting consideration by the Apex Court.
To consider the present scenario we feel that even if Ranjit could be applied in the instant case, Keshob would not be entitled to the benefit for two reasons ;-
i) He made a delayed approach making the situation complex.
ii) He was admittedly subordinate to the private respondents. His challenge to the seniority list was of no consequence as his colleagues 13 left him and joined a superior post and were placed in a different Gradation List.
On the issue of introduction of Rule 5(5) keeping it in abeyance for the time being and then deletion, we do not wish to make any comment as it would be transgressing into the arena of the Apex Court where it is pending consideration in the case of Ranjit. We are eagerly awaiting the decision on the issue so that we could apply the same in a given case subsequently. On factual matrix we find from the affidavit of the State that representation of the Scheduled Caste was much below the ceiling limit. Hence, quantifiable data is also available and meet the requirement.
We also find that there was no challenge to the Act of 1976 and the Rules framed thereunder.
In this backdrop, we are unable to extend the benefit of the decision in the case of Ranjit to Keshob and his challenge to the order of the Tribunal must fail.
14W.P.S.T. No.8 of 2011 fails and is hereby dismissed without any order as to costs.
Urgent Photostat copy will be given to the parties, if applied for. Dr. Mrinal Kanti Chaudhuri, J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [DR. MRINAL KANTI CHAUDHURI,J.] N.B. Learned counsel for the parties also cited the following cases :-
i) 1991 Volume-I Supreme Court Cases Page-544 (A.K. Bhatnagar & Ors. -VS- Union of India & Ors.)
ii) 1998 Volume-II Supreme Court Cases Page-523 (B.S. Bajwa & Anr. -VS- State of Punjab & Ors.)
iii) 2010 Volume-IV Supreme Court Cases Page-301 (H.S. Vankani & Ors. -VS- State of Gujarat & Ors.) We, however, do not feel it necessary to deal with the same.