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2002 DIGILAW 435 (GAU)

Manik Dey v. Ram Sankar Bhattacharjee

2002-10-08

B.LAMARE, P.P.NAOLEKAR

body2002
P.P. NAOLEKAR, CJ.— Ramsankar Bhattacharjee, respondent No. 1 herein has challenged the finall seniority list dated 28th November, 1995 of the Private Secretaries/Stenographer Grade-I of the Agartala Bench of the Gauhati High Court, wherein Saradindu Bhattacharjee was shown at serial No. 1 and Manik Dey at serial No. 2, whereas the name of respondent No. 1 (writ petitioner) appeared at serial No. 3. 2. The facts in a narrow compass may be stated as follows: Manik Dey, appellant in WA No. ISO/ 2001 was appointed and joined as Stenographer Grade-I on 12.6.87 at the Principal Seat at Gauhati and his service was confirmed on 27.6.1990 at Principal Seat at Guwahati. On 9.6.92 he was transferred to Agartala Bench of the Gauhati High Court as Stenographer Grade-I. Saradindu Bhattacharjee, appellant in W«A. No. 181/2001, was appointed on 28.7.86 as Stenographer Grade-I at Agartala Bench and later on he was transferred to the Principal Seat of the Gauhati High Court at Guwahati on 2.12.86 and thereafter by order dated 2.4.90 his service was confirmed as Stenographer Grade-I at Agartala Bench. Ramsankar Bhattacharjee, respondent No. 1 in writ appeals (writ petitioner) was appointed as Stenographer Grade-I on 12.6.87 at Principal Seat of Gauhati High Court at Guwahati and he was joined his duty on 28.8.87 and thereafter he was transferred to Agartala Bench of the Gauhati High Court on 14.3.88 in a resultant vacancy that was caused on promotion of Saradindu Bhattacharjee (Senior) to post of Private Secretary. Vide order dated 13.5.91 he was confirmed in his post with effect from 28.5.90 at Principal Seat at Guwahati. Respondent No. 1 took over his charge as Stenographer Grade-I from Saradindu Bhattacharjee (Senior). Vide order dated 13.5.91 he was confirmed in his post with effect from 28.5.90 at Principal Seat at Guwahati. Respondent No. 1 took over his charge as Stenographer Grade-I from Saradindu Bhattacharjee (Senior). In the order dated 21.5.92, which was issued by the Registrar of Agartala Bench of the Gauhati High Court transferring and posting the respondent No. 1 as Private Secretary, it was mentioned that the Hon'ble the Chief Justice of Gauhati High Court is pleased to adjust Shri Ramsankar Bhattacharjee, Stenographer Grade-I as a member of the staff of the Agartala Bench temporarily and to appoint him temporarily and until further order against the resultant vacancy in the post of Private Secretary to the Hon'ble Judges of Agartala Bench in the scale of Rs.3000-90-3730-95-4100-100-5000/- plus other allowances admissible under the rules and to post him as Private Secretary to the Hon'ble Judges, Agartala Bench with effect from the date of taking over charge from Shri Saradindu Bhattacharjee (Senior), Private Secretary, promoted. On 24.7.92 the Registrar of Agartala Bench has issued another order fixing the pay of respondent No. 1 as Private Secretary to Rs.3000-5000/- with effect from 23.5.92, the date on which he took over charge from Sri Saradindu Bhattacharjee (Senior). At the relevant time the pay of the Stenographer Grade-I was Rs 2275-4450. 3. It is the case of the respondent No. 1 that he was appointed on promotion to the post of Private Secretary at Agartala Bench and the said post being a senior post with higher scale of pay, he gained seniority over the appellants. The learned Single Judge by the impugned judgment and order dated 21.5.99 held that the respondent No. 1/petitioner by virtue of his appointment to the post of Private Secretary holding higher scale of pay with effect from 21.5.92 had an edge over the appellants/ respondent No. 4 and 5 on the question of seniority and quashed the seniority list published on 28.11.95 with a direction to prepare a fresh seniority list showing the respondent No. 1's position above the appellants, 4. Admittedly, Saradindu Bhattacharjee (appellant in WA 281/01) has been appointed in the post of Stenographer Grade-I on 28.7.86 at Agartala Bench, Manik Dey (the appellant in WA 280/01) has been appointed on 12.6.87 and whereas the respondent No. 1 was also appointed on 12.6.87 and joined on 28.8,87. Admittedly, Saradindu Bhattacharjee (appellant in WA 281/01) has been appointed in the post of Stenographer Grade-I on 28.7.86 at Agartala Bench, Manik Dey (the appellant in WA 280/01) has been appointed on 12.6.87 and whereas the respondent No. 1 was also appointed on 12.6.87 and joined on 28.8,87. Manik Dey and Ramsankar Bhattacharjee was appointed by the same order at the Principal Seat of the Gauhati High Court at Guwahati after due process of selection and in the merit list Manik Dey's name had appeared above the name of Ramsankar Bhattacharjee. Thus the real question which requires adjudication is whether the posting of Ramsankar Bhattacharjee in the post of Private Secretary of which the pay scale is higher than the pay scale of Stenographer Grade-I can be treated as promotion within the cadre and whether the grant of higher pay scale would give him the advantage to be placed above the two appellants in the impugned seniority list of the Private Secretaries/Stenographer Grade-I. 5. The parties' service condition for the purpose of appointment, promotion pay scale is governed by the Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur, Mizoram, Tripura and Arunachal Pradesh) Service (Appointment, Condition of Service and Conduct) Rules, 1967 (for short 'the rules'). These rules came into force on the date of publication in the Assam Gazette dated 11th October, 1967. Under Rule 3, the posts in the High Court are classified. Sub-clause (iii) of Rule 3 provides for the post of High Court Service of Stenographers Grade-I (Special Class)-Class II-B. Rule 11 lays down the cadres of different classes of service in the Court including the number and character of posts and the scale of pay attached to them, as set out in Schedule-I to the rules. Rule 20 provides for that a member of the establishment of the High Court appointed substantively to a post mentioned in Schedule-I shall take rank in order of seniority in the select list prepared in order of merit by the appointing authority for such appointment, subject to confirmation of the member following in that order, provided the member joins the post within the time allowed for the purpose. If confirmation of the members does not follow in that order, the unconfirmed members will take their places in the seniority list below those who are confirmed before them. If confirmation of the members does not follow in that order, the unconfirmed members will take their places in the seniority list below those who are confirmed before them. Schedule-I to the rules under the heading of Gazetted Officers Class-I under the Class-II(B) gives the title of the post of Private Secretaries attached to the Hon'ble Chief Justice are clubbed with Grade-I Stenographers. Under Clause II the Private Secretaries attached to the Hon'ble Judges are clubbed with Grade-I Stenographers. The pay scale provided for the Private Secretaries attached to the Chief Justice or to the Judges and Grade-I Stenographers is Rs.2275-60-2395-80-2875-EB-100-3575-125-4450/- p.m. plus special pay of Rs.100/- to Private Secretaries. The Schedule-I clearly indicates that the pay scale of Private Secretaries and Grade-I Stenographer is same and falls within a common cadre. The Private Secretary who has been attached to the Judge is being provided a special pay of Rs. 100/-. 6. In the North Eastern States the High Court Benches of the Gauhati High Court are established in different States on different dates and the Officers, and staff of the Outlying Benches of the Gauhati High Court are given different pay scales as has been granted by the respective State Government. It is clear from the comparative statement showing the pay scale drawn by the employees of the Principal Seat of the Gauhati High Court at Guwahati and its Outlying Benches with effect from 1.1.96. The pay scale of Private Secretary/Steno Grade-I are mentioned as below: "Private Secretarv/Steno Grade-I Principal Seat at 5725-175-6600- Guwahati 250-7350-EB-250-8100- Shillong Bench Kohima Bench Agartala Bench Imphal Bench Aizawl Bench Itanagar Bench 325-11025-400-118257-Same as Principal Seat. 5725-175-6600-250-7350-EB-250-8100-325-11025-400-118257-10000-300-15100 Same as Principal Seat 8000-275-135007-7500-275-135007-" 7. The date on which the respondent No. 1 has joined as Private Secretary he has been given the pay scale of Rs.3000-5000/ - whereas at that stage the pay scale of Stenographer Grade-I was Rs.2275-4450. Although there was difference in the pay scale under Rules 1967, which governs the Agartala Bench, the cadre post of Stenographer Grade-I and the Private Secretary attached to Chief Justice or to the High Court Judges falls within one cadre. 8. In the matter of Dayaram Asanand Gursahani-Vs-State of Maharashtra and others, reported in (1984) 3 SCC 36 , the District Judge of Selection Grade claimed to be a promotion post. 8. In the matter of Dayaram Asanand Gursahani-Vs-State of Maharashtra and others, reported in (1984) 3 SCC 36 , the District Judge of Selection Grade claimed to be a promotion post. The Supreme Court has held that resolution of the Government did not indicate that there was any process of selection by promotion or otherwise from the cadre of District Judge to the post of Selection Grade District Judges. Mere nomenclature given to the extended pay scale as the selection grade pay scale does not lead to the inference that there is an element of selection involved in sanctioning it and it should be treated as just an extended pay scale which forms part of the pay scale. 9. In the case of Lalit Mohan Deb and others-Vs-Union of India and others, (1973) 3 SCC 862 , the Supreme Court has considered the position of Assistants in the Civil Secretariat, Tripura as against the post of Assistant (Selection Grade) and held that the Administration can pay two scale of pay in the same category of posts. Provisions for selection grade of posts in the same category is not a new thing. It is normally done with the object of providing incentives to the employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. 10. In the present case the Private Secretaries attached to the Judges have been provided with different pay scale than that of the Stenographer Grade-I in Agartala Bench of the Gauhati High Court. But there is no element of promotion existed when the Stenographer Grade-I was appointed or posted in the post of Private Secretary. The rules do not provide any selection process, interview or examination to be conducted before the Stenographer Grade-I is appointed/posted in the post of Private Secretary. There is no provision in the rule as to what shall be the criteria for selection from the post of Stenographer Grade-I for appointment and posting to the post of Private Secretary. The rules do not provide any selection process, interview or examination to be conducted before the Stenographer Grade-I is appointed/posted in the post of Private Secretary. There is no provision in the rule as to what shall be the criteria for selection from the post of Stenographer Grade-I for appointment and posting to the post of Private Secretary. In the absence of any rule laying down the method, manner or classification for appointment and posting of a person from the post of Stenographer Grade-I to the post of Private Secretary it cannot be treated as a promotion post merely because the Private Secretary is entitled to the higher pay scale than that of the Stenographer Grade-I. Both the posts fall within a common cadre and are therefore inter-changeable. The Private Secretary attached to the Chief Justice or the Judges can be posted as Stenographer Grade-I, vis-a-vis, a Stenographer Grade-I can be appointed and attached as Private Secretary to the Chief Justice or the High Court Judges. 11. The respondent No. 1 was given seniority in the list prepared for Private Secretaries/Stenographer Grade-I of the Agartala Bench of the Gauhati High Court dated 20.11.95 merely on the basis that he happened to be transferred and posted to Agartala Bench of the Gauhati High Court in the post of Private Secretary, which carries higher pay scale in the same cadre or Stenographer Grade-I and Private Secretaries. Therefore, in our considered opinion, the respondent No. 1 cannot be given the benefit of posting in the post of Private Secretary by giving the advantage over the persons, who have been appointed prior to him and whose names appeared above him in the merit list. For the reasons stated above, we are of the view that the judgment dated 21.5.1999 of the learned Single Judge passed in Civil Rule No. 3077 96 is not in accordance with the law and we hereby set aside the same. 12. The resulted position is that the seniority list published as on 25.11.95 and circulated vide order dated 28th November, 1995 of the Private Secretaries/ Stenographer Grade-I of Agartala Bench of the Gauhati High Court shall remain as it is. 13. 12. The resulted position is that the seniority list published as on 25.11.95 and circulated vide order dated 28th November, 1995 of the Private Secretaries/ Stenographer Grade-I of Agartala Bench of the Gauhati High Court shall remain as it is. 13. Learned counsel appearing for the appellant-Saradindu Bhattacharjee has frankly conceded that Sri Bhattacharjee shall not claim seniority or any promotion at the Principal Seat of the Gauhati High Court on the basis of his continuance at Principal Seat and his position in the seniority list of Private Secretary will be confined to Agartala Bench of the Gauhati High Court only. 14. In the result the appeals are allowed. However, there shall be no order as to costs.