Deb Kumar Sinha v. Calcutta Municipal Corporation — 1998 DIGILAW 431 (CAL)

JUDGMENT V.K. Gupta, J.: Whether the departmental subordinate Officers, which means the Officers working within the Organisation, and constituting a class by themselves, have a right of consideration by their employer for promotion to the next higher post in the department/Organisation whenever such a higher post is contemplated to be filled up, before the employer decides to fill it up by direct recruitment. In other words, does such an employer, before it chooses to fill up the higher post by direct recruitment, has a corresponding obligation to consider the In-house, departmental Officers also eligible for appointment to such higher post in terms of Recruitment Rules, by way of filling up the post through promotion. This is the substantive question of law involved in this writ application, with reference to the specific Rules of Recruitment applicable in the facts of the present case. We are called upon to decide the writ application in the Division Bench because of a specific reference made to us. The facts lie in a very narrow compass. 2. Post of Chief Municipal Engineer (Civil) in the Calcutta Municipal Corporation CME(C) figuring at Sl. no. 8 of the Schedule to the Calcutta Municipal Corporation (Recruitment of Officers appointed by Mayor-in Council) Rules 1985 (1985 Rules for short), was sought to be filled up by the Corporation and the mode adopted for filling up this post was by appointment of an eligible candidate through direct recruitment. Accordingly the Corporation referred the selection process to the West Bengal State Public Service Commission (Commission for short), which issued an advertisement No.9 of 1997 inviting applications from eligible candidates possessing requisite academic qualifications and the desired prescribed experience. There is no dispute about either the academic qualifications or the desired prescribed experience. The dispute is about the manner of appointment to the post by direct recruitment. The writ petitioners, three in number, are all working as Deputy Chief Engineers (Civil) in the Calcutta' Municipal Corporation. Admittedly the post of Deputy Chief Engineer (Civil) is a post immediately below the post of CME(C). The grievance of the writ-petitioners is that they had a right of being considered for appointment on this post by granting them due consideration for their promotion on this post and that the Respondent-Corporation has acted illegally in deciding to fill up the post by appointment of a candidate through direct recruitment. The grievance of the writ-petitioners is that they had a right of being considered for appointment on this post by granting them due consideration for their promotion on this post and that the Respondent-Corporation has acted illegally in deciding to fill up the post by appointment of a candidate through direct recruitment. Under section 14 of the Calcutta Municipal Corporation Act, 1980, the post of CME(C) figuring at clause(f) of subsection (1) is required to be filled up in terms of sub-section (3) of section 14, CME(C) is required to be appointed by the Mayor-in-Council in consultation with the Commission and, as per sub-section (4) the method of appointment and qualifications required' for recruitment on this post would be such as may be prescribed in terms of the Rules made under the Act. Sub-sections (3) & (4) of section 14 being relevant for out purposes are re-produced as under: 14. * * * * * “(3) The other officers referred to in clauses (a) to (j) of sub-section (1) shall be appointed- (a) by the Mayor-in-Council in consultation with the State Public Service Commission, or (b) by the State Government in consultation with the Mayor-in-Council, by notification, from amongst persons who are or have been in the service of Government, if the Mayor-in-Council so decides.” “(4) The method of, and the qualifications required for, recruitment, and the terms and conditions of service including conduct, discipline and control, of officers appointed by the Mayor-in-Council shall be such as may be prescribed.” 3. In terms of the requirement under section 14 of the Act 1985, Rules were accordingly framed by the Govt. of West Bengal, Rules 2 & 3 being relevant for our purposes are re-produced as hereunder : “2. Method of recruitment. – The method of recruitment of officers to be appointed by Mayor-in-Council shall be as laid down in sub-section (2) or sub-section (3) of section 14 of the Calcutta Municipal Corporation Act, 1980 (West Ben. Act LIX of 1980), as may be applicable. 3. Qualifications for recruitment. – The qualifications required for recruitment to the posts mentioned in entries in column (1) of the Schedule below shall be such as specified in the corresponding entries in column (2) thereof.” 4. Act LIX of 1980), as may be applicable. 3. Qualifications for recruitment. – The qualifications required for recruitment to the posts mentioned in entries in column (1) of the Schedule below shall be such as specified in the corresponding entries in column (2) thereof.” 4. Even though section 14(4) of 1980 Act clearly stipulated that the method of recruitment for the posts mentioned in this section shall be such as would be prescribed by the Rules framed under this Act, it is noticed that Rules 2 & 3 of 1985 Rules did not in turn prescribe any method for recruitment of Officers to be appointed by the Mayor-in-Council. Rules 2 & 3 which constitute the main body of 1985 Rules therefore are silent about the method of recruitment, even though in Rule-3 the qualifications for recruitment have been specified so as to correspond with those mentioned in the Schedule to the 1985 Rules. 5. However, when we look to the Schedule to 1985 Rules, we find that for some posts, including that of CME(C) with which we are concerned' in this case, two sets of qualifications have been prescribed in Column-2 of the Schedule. One set of qualifications deal with "direct recruitment" and the other set of qualifications relate to "promotion". As would be clear from a reading of Rule-3 of 1985 Rules, Column-2 of the Schedule only contains the prescription of qualifications required for recruitment to the posts. For ready reference we re-produce hereunder SI. no. 8 under Column1 of the Schedule alongside the entries contained under Column-2 to indicate that the Schedule only prescribes two sets of qualifications, one for “direct recruitment” and the other for “promotion”. 6. The relevant extract of the Schedule reads thus: “8. Chief Municipal Engineer (Civil) : Rs. 2000-125/2-2, 375. Qualifications and age under clause (a) of sub-section (3) of. section 14 of the said Act- A. For direct recruitment-Essential: (a) A citizen of India; (b) a degree in Civil Engineering from a recognised University or its equivalent; (c) 12 years' experience as an Engineer in a responsible' post or posts in Government service or statutory Bodies or in an Engineering or Construction concern of repute, last basic pay drawn being not less than Rs. 1,800; (d) Age not more than 45 years on the 1st day of January of the year of recruitment, relaxable for well-qualified or well-experienced candidates. 1,800; (d) Age not more than 45 years on the 1st day of January of the year of recruitment, relaxable for well-qualified or well-experienced candidates. Desirable : A post-graduate degree or diploma in Civil Engineering, Public Health Engineering. B. For promotion: (a) From Officers possessing 2 years' experience in post immediately below and total 10 years' experience in Municipal Engineering Service with a Civil Engineering degree or diploma from a recognised University or its equivalent. (b) No age bar." 7. A combined reading thus of section 14, sub-sections (3) & (4), Rules 2 & 3 of 1985 Rules and entries appearing against Column-2 in the Schedule to 1985 Rules therefore suggests that even though the method of recruitment for the post of CME(C) was not specifically and in so many words mentioned either in the Act or in Rules 2 & 3 of 1985 which undoubtedly constituted the main body of such Rules, by indicating in Column-2 of the Schedule the two sets of qualifications, one for appointment by "direct recruitment" and the other by "promotion", the appointing authority has clearly indicated that as far as the recruitment to the post of CME(C) is concerned, it can be made either by resorting to the method of "direct recruitment" or by "promotion" from amongst the Officers mentioned in Column-2 of the Schedule. This is the only way that we can read the Schedule harmoniously along with Rules 2 & 3 and section 14 (3) & (4) of the Act. In fact, Mr. Anindya Mitra, learned Senior Advocate appearing for the Corporation also very fairly and frankly admitted before us that by incorporating these two sets of qualifications under Column-2 of the Schedule the intention was to make recruitment to the post of CME(C) either by direct appointment or by promotion. 8. A preliminary objection was raised by the learned Advocate for the respondents about the laches in filing the writ application. It was urged that the impugned advertisement notice inviting applications for direct recruitment was issued on 21 June, 1997 whereas the writ application was filed in March 1998. We have heard detailed arguments with regard to this preliminary objection but are unable to persuade ourselves to dismiss the writ application on ground of laches. It was urged that the impugned advertisement notice inviting applications for direct recruitment was issued on 21 June, 1997 whereas the writ application was filed in March 1998. We have heard detailed arguments with regard to this preliminary objection but are unable to persuade ourselves to dismiss the writ application on ground of laches. In R.S. Deodhar vs. State of Maharashtra reported in AIR 1974 SC 259 their Lordships of the Supreme Court have held as under : "In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilockchand Motichand vs. H.B. Munshi, (1969) 2 SCR 824 : ( AIR 1970 SC 898 ) "is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit......... It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.” 9. Here is a case dealing with a patent violation of Articles 14 & 16 of the Constitution. The petitioners have been discriminated against in the matter of their service opportunities. The act of the respondents in denying to them equality of opportunity and without any objective criteria is wholly un-constitutional. This apart, the selection process has not finally been concluded in the sense that respondent no. 5 has neither been appointed on the post of CME(C) nor has the appointment order been issued so far in his favour. In such circumstances therefore, in a case like this where, for the reasons that we state hereafter we propose to declare the acts of the respondents as unconstitutional dismissing the writ application on ground of laches will be unjust. 10. Now the question which arises for consideration is whether the Rules provide for any guideline or parameters so as to indicate as to when, how and under what circumstances should the appointing Authority resort to the appointment by "promotion" or by "direct recruitment". 10. Now the question which arises for consideration is whether the Rules provide for any guideline or parameters so as to indicate as to when, how and under what circumstances should the appointing Authority resort to the appointment by "promotion" or by "direct recruitment". We have to very frankly admit that the Rule position being what is, there is no provision whatsoever indicating any such guidelines or parameters. This therefore leaves the choice to the appointing authority, in every given situation to decide whether to fill up the post by direct recruitment or by promotion. Mr. Anindya Mitra wants us to hold that such choice of the appointing authority, whenever exercised is not justiciable and that even if it be held justiciable, in the present case there is no occasion for us to interfere in the decision making process of the Respondents. We find ourselves in complete disagreement with the contention of Mr. Mitra. Mr. Anindya Mitra, learned Senior Advocate also submitted that it is not for this Court to sit in judgment over the wisdom of the respondent-Corporation in choosing the method of direct recruitment in place of the method of promotion. In support of such contention he has relied upon a judgment of the Supreme Court in the case of State of Andhra Pradesh and Another vs. Sadanandam and others reported in AIR 1989 SC 2060 . In paragraph 16 of that Judgment, their Lordships while dealing with the aforesaid proposition of law observed as under :– “We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to other zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only to point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive. As already stated, the question of filling up of posts by persons belonging to other local categories or zones is a matter of administrative necessity and exigency. When the Rules provide for such transfers being effected and when the transfers are not assailed on the ground of arbitrariness or discrimination, the policy of transfer adopted by the Government cannot be struck down by Tribunals ox: Court of Law." Respectfully following the ratio laid down in the aforesaid judgment, we however find ourselves in disagreement with the aforesaid contention of Mr. Mitra in so far as the particular facts of present case are concerned. Undoubtedly it is not for this Court, while exercising writ jurisdiction under Article 226 of the Constitution to sit in judgment over the wisdom of the Executive in choosing a particular mode of recruitment. But then this Court cannot be a mute spectator if it is pleaded and established beyond every doubt that the exercise of power, based upon purported wisdom of the Executive in chossing the particular mode of recruitment is being assailed on grounds of arbitrariness and discrimination. Here is a case where we clearly find that in view of the two modes prescribed in 1985 Rules for filling up the post of CME(C), and the total absence of any guiding parameters so as to enable the Corporation to choose a particular mode in a given set of circumstances, the Corporation had acted arbitrarily in discriminating against the departmental officers by altogether ignoring their right or claim of consideration and straightway deciding to go in for direct recruitment. We have found this act of the Corporation to be patently arbitrary and discriminatory qua the departmental officers. 11. If the recruitment Rules provide for filling up particular post by either of two methods, viz. by "direct recruitment" or by "promotion", undoubtedly a right stands accrued in favour of the departmental Officers to be considered for such appointment against the category of promotees. 11. If the recruitment Rules provide for filling up particular post by either of two methods, viz. by "direct recruitment" or by "promotion", undoubtedly a right stands accrued in favour of the departmental Officers to be considered for such appointment against the category of promotees. There are Rules & Regulations where it is specifically laid down as to what extent, what percentage, and in what situation would appointments be made by direct recruitment or by promotion. In the present case however, as we have seen, since this all is missing, each time a particular situation arises, the appointing authority has to take a decision. As we have indicated, the departmental candidates having a legitimate expectation of being considered for appointment on the higher post in the category of promotees would always expect that the appointing authority would accord consideration to their class as well in a given situation or under a given set of circumstances. Is it therefore open to the appointing authority to altogether ignore the very existence of this class of candidates and without even caring to find out whether candidates from the category of promotees are available or not, and if available whether they would be suitable or not, straightway go in for direct recruitment? In this background therefore, whenever a complaint is made to the Court about the exercise of such power and it appears to-the Court that the complainants have a legitimate grievance and that there is something to be looked into such exercise of the power, the decision becomes justiciable. It immediately becomes subject to judicial review. 12. We have seen the original record of the case produced before us and find that a noting originated on 25.3.97 in the Calcutta Municipal Corporation with regard to filling up the post of CME(C). The following note, apparently made by Deputy Municipal Commissioner (Head Quarter) of the Corporation reveals the initiation of the Note. "CME(C) has submitted a Job Chart for the post along with the RIR for direct recruitment without mentioning the RIR for promotions to the post, although as per RIR approved by Govt. there is a clear Recruitment Regulations both for direct as well as promotion. The Job Chart is OK and may be sent to PSC with the registry. It may now be decided whether PSC would be moved for direct recruitment to the post of CME(C). there is a clear Recruitment Regulations both for direct as well as promotion. The Job Chart is OK and may be sent to PSC with the registry. It may now be decided whether PSC would be moved for direct recruitment to the post of CME(C). On this noting the Municipal Commissioner appears to have made the following observation, which actually is his decision. Note 26.3.98 reads thus : “As discussed in MTC, we should go in for selection of the best candidate through open competition.” 13. It thus clearly emerges that without at all considering the question whether the Corporation should fill up the post by resorting to selection from amongst the departmental candidates, it straightway decided to go in for direct recruitment. This by itself in our opinion was not a proper course of action adopted by the Corporation. Sub-section (3) of section 14 clearly lays down that the Officers mentioned therein shall be appointed by the Mayor-in-Council in consultation with the Commission. Whether the CME (C) has to be appointed from amongst the departmental Officers by resorting to the method of promotion or by direct recruitment, in any of such eventualities, it is obligatory for the Mayor-in-Council to consult the Commission. A mandatory duty, a statutory obligation is cast upon the Mayor-in-Council to consult the Commission every time it decides to appoint an Officer. Correspondently therefore it follows that the Mayor-in-Council has also a duty to consult the Commission, first and foremost, whether the post of CME (C) can be filled up by promotion from amongst the departmental candidates. Since the consultation with the Commission is mandatory in so far as every such appointment is concerned, such consultation process would include even that part which relates to any decision about the method of appointment. Alternatively, it can be said that it is obligatory upon the Corporation to first decide whether it should or should not fill up the post by resorting to promotion from amongst the departmental officers. An interesting question was raised by Mr. Mitra as to which option should be exercised first; whether the Corporation should take into account the promotion method first or the direct recruitment method first. An interesting question was raised by Mr. Mitra as to which option should be exercised first; whether the Corporation should take into account the promotion method first or the direct recruitment method first. In the situation in which 1985 Rules are placed, in the language in which these Rules are couched, are looking to the Scheme of the Schedule to the 1985 Rules, we have no hesitation in saying and holding that whenever such an eventuality arises or may arise, the Corporation should first consider the case of appointment by promotion and, only when it decides in consultation with the Commission that appointment by promotion is not desirable or feasible or not required for any purpose or reason, it will have the option of adopting the method of direct recruitment for filling up such post. There is a logic behind exercising first option in favour of promotion. The logic is that when you have a whole lot of officers down below in the hierarchy available to you, is it not your duty to first consider their worth, merit and suitability, in consultation with the Commission and only then to decide whether any one of them is worthy and suitable of holding that office and, only after such decision is taken and you find that none is suitable to be promoted, to go in for direct recruitment. If the logic is properly followed, you cannot be permitted to say that in the sequence of events you shall first exercise the option of direct recruitment, and then go in for promotion. That is, to say the least, is against the logic because once you have gone for direct recruitment, the option of going for promotion is totally washed out. The act of the Respondents therefore, in straightway deciding to go in for direct recruitment is bad on both counts. First of all, the Corporation did not at all consider the question of the worth, suitability and merit of the departmental officers, neither by itself nor in consultation with the Commission and without doing that, it straightway went with the proposal for direct recruitment. First of all, the Corporation did not at all consider the question of the worth, suitability and merit of the departmental officers, neither by itself nor in consultation with the Commission and without doing that, it straightway went with the proposal for direct recruitment. Had it exercised the first option, it should have seen all the relevant papers, gathered information and made available service records to the Commission of all departmental Officers eligible in terms of the Schedule and then given an opportunity to the Commission, in the process of consultation tp opine to the Corporation whether these officers were eligible and suitable for consideration for appointment on the post of CME (C) or, whether none of them was so eligible or suitable and therefore the Corporation should go in for direct recruitment. This act of the Corporation therefore can be called as arbitrary and without any proper logic. We therefore also correspondingly hold that the class of departmental officers, in the sequence that we have adopted, have a right of consideration, before the method of direct recruitment is adopted to decide whether they should or should not be promoted. By denying such right to them therefore the Corporation has acted in violation of 1985 Rules and thus the selection of respondent no.5 on that ground alone is bad in law. 14. It was pointed out to us during the course of arguments that an earlier Division Bench Judgment of this Court delivered on 11th August, 1998 in APOT no. 155 of 1998 has already approved the selection of respondent no.5 by adopting the method of direct recruitment through the Commission and that in view of that judgment, this Court has in a way, even though indirectly put its seal of approval to the selection process initiated by the Corporation. We have carefully perused that Judgment of the Division Bench in which one of us (V.K. Gupta, J.) was member. In that Case (Subhendu Kumar Maity & Ors. vs. Calcutta Municipal Corporation & Ors. APOT No. 155 of 1998) the issue was not about the choice to be adopted for recruitment, viz. whether by direct recruitment or by promotion; the issue was about the correctness of the selection process adopted by the Commission while selecting the candidates who had applied in the direct recruitment method. vs. Calcutta Municipal Corporation & Ors. APOT No. 155 of 1998) the issue was not about the choice to be adopted for recruitment, viz. whether by direct recruitment or by promotion; the issue was about the correctness of the selection process adopted by the Commission while selecting the candidates who had applied in the direct recruitment method. Two specific questions were raised in that case by the writ-petitioners, firstly that allocation of 100% marks in the interview as held by the Commission was bad, and secondly the eligibility criteria as fixed in the advertisement for direct applicants did not include the post of Executive Engineer, since the selected candidate by direct recruitment was an Executive Engineer in the Corporation itself whereas the writ petitioners, who had not been approved for selection by the Commission were holding superior post of Deputy Municipal Chief Engineers. Both these contentions were negatived and it was held both by the Writ Court as well as by the Appeal Bench that the selection process and the eligibility criteria were correct and that the selection of the person ultimately selected did not suffer from any infirmity. No reference in that case was at all made, nor was any issue raised about the choice of the two methods to be adopted for appointment, viz. direct recruitment or promotion. It may however be mentioned by way of passing reference in this writ petition before us that ironically respondent no.5 herein who was selected by the Commission in the direct recruitment method is none else but a serving Executive Engineer himself in the Calcutta Municipal Corporation. We are referring to this ironic aspect only to illustrate and highlight that within the Corporation ranks, people are available who are not only eligible but even suitable to hold the post and yet the Corporation without considering that aspect straightway went in for direct recruitment. 15. On an overall consideration therefore, we are firmly of the view that the act of the Respondents in resorting to recruitment to the post of CME (C) by direct appointment being bad in law, un-Constitutional and contrary to 1985 Rules cannot be approved by us. Consequently therefore the notification issued by the Commission inviting applications by way of direct recruitment, all consequential actions taken thereupon culminating in the selection of Respondent no.5 are hereby quashed and set aside. Consequently therefore the notification issued by the Commission inviting applications by way of direct recruitment, all consequential actions taken thereupon culminating in the selection of Respondent no.5 are hereby quashed and set aside. Accordingly we also, consequentially issue a writ in the nature of Mandamus directing the Respondents to ensure that the post of CME (C) is filled up only in accordance with law, based upon the observations made by us in this Judgment. 16. The writ application accordingly is allowed. No order as to costs. Later: The oral prayer of the Learned Advocate for the respondent no.5 for stay of the operation of this Judgment, upon consideration is rejected. Appeal allowed with observations.