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2004 DIGILAW 256 (CAL)

BIPLAB KUMAR SINHA v. STATE OF WEST BENGAL

2004-04-07

BHASKAR BHATTACHARYA

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BHASKAR BHATTACHARYA, J. ( 1 ) THESE two writ applications were taken up together as common question of law is involved in both these writ applications and at the same time they are interlinked. ( 2 ) IN W. P. No. 19049 (W) of 2003 the petitioner has claimed that he is entitled to get promotion to the post of Accountant in the concerned college as an unreserved candidate, he being the seniormost candidate. The petitioner has further claimed that the post of Accountant in the college being a single cadre post is not subject to reservation for Scheduled Caste or Scheduled Tribe and, thus, he cannot be deprived of promotion on the ground that the same is reserved for Scheduled Caste. ( 3 ) IN the other writ application, being W. P. No. 4239 (W) of 2004, the petitioner therein has claimed that the post of Accountant should be reserved for Scheduled Caste and he being the only Scheduled Caste candidate in the feeder post, should be promoted to that post. ( 4 ) THEREFORE, the only question that arises for determination in these writ applications is whether the post of Accountant can be said to be a single cadre post so as to be affected by the decision of the Supreme Court in the case of Post-Graduate Institute of Medical Education and Research, Chandigarh vs. Faculty of Association and Ors. , reported in AIR 1988 SC 1767. ( 5 ) TO appreciate the aforesaid question, it is necessary to refer to the following statutes relating to the appointment and terms and conditions of service of librarians and non-teaching staff of colleges affiliated to North Bengal University other than Government colleges:"statute 2 These statutes shall apply to the following categories of employees of colleges affiliated to the University other than Government colleges including Government colleges in other States affiliated to the University: (a) non-teaching staff belonging to the cadre of posts of- (i) Office Superintendent, Cashier, Accountant, Head Clerk, Senior assistant, Senior Clerk and such other posts as may be approved by the State Government. (ii) Assistant Clerk, Library Assistant, Laboratory Assistant/laboratory instructor, Store-Keeper, Store-Clerk, Caretaker, Stenographer, typist, Record-Keeper, Collection Clerk and such other posts as may be approved by the State Government. (ii) Assistant Clerk, Library Assistant, Laboratory Assistant/laboratory instructor, Store-Keeper, Store-Clerk, Caretaker, Stenographer, typist, Record-Keeper, Collection Clerk and such other posts as may be approved by the State Government. (iii) Lower subordinate staff belonging to the cadre or category of Driver, laboratory attendant, Skilled bearer, Mali, Electrician, Mechanic, carpenter, Un-skilled bearer, Messenger, Peon, Office Peon, Durwan, night Guard, Sweeper, Library Attendant, Mali and such other posts with such other nomenclature as may be approved by the State government. (iv) any other category of non-teaching staff. (b) Librarian and such other posts as may be approved by the State government. Statute 5 (a) Whenever a permanent vacancy occurs in any of the posts referred to in sub-clause (i) of the clause (a) of statute 2, such vacancy shall in the first instance be filled up by promotion from amongst the employees holding any of the posts referred in sub-clause (ii) of clause (a) of statute 2. In the matter of such promotion, efficiency seniority, including academic qualification, character rolls and attendance shall have to be taken into consideration. In case no suitable candidate for such promotion is available, such permanent vacancy shall be filled up by direct recruitment in accordance with the procedure laid down for the purpose: provided that the provision relating to recruitment of non-teaching employees of affiliated colleges as laid down in the foregoing statutes shall not apply in cases where, on compassionate ground, a dependent of any employee dying in harness is to be offered a job consistent with his or her qualifications. He or She shall have precedence over others in the matter of appointment or placement as the case may be: provided further that the provision mentioned above shall also be applied in case of a college employee who is disabled permanently or otherwise incapacitated rendering him unfit to continue in service if the fact of disablement is certified by a medical officer authorised by the Director of health Services, West Bengal. (b) Whenever a permanent vacancy occurs in any of the posts referred to in sub-clause (ii) of clause (a) of statute 2 in the matter of filling up of such vacancy, the procedure as laid down in these statutes for direct recruitment shall be followed. (b) Whenever a permanent vacancy occurs in any of the posts referred to in sub-clause (ii) of clause (a) of statute 2 in the matter of filling up of such vacancy, the procedure as laid down in these statutes for direct recruitment shall be followed. (c) In the case of filling up of vacancies in the posts referred to in sub-clause (ii) of clause (a) of statute 2, efficient and experienced members of the lower subordinate staff having the requisite qualifications shall get preference over others. Explanation.-A dependent of an employee for the purpose of this statute shall mean husband, wife, son, unmarried or widowed daughter, unmarried or widowed sister, brother or parent, provided such relation of the employee is solely dependent on him or her. ". ( 6 ) THERE is no dispute that in the concerned college the number of Office Superintendent / Cashier / Accountant / Head Clerk / Senior Assistant and Senior Clerk is only one in each of the aforesaid posts. ( 7 ) FROM the aforesaid provisions, it is clear that post of Accountant is a non- teaching post and such post can be filled up by way of promotion from the persons holding any of the following posts: a) Assistant Clerk, b) Library Assistant, c) Library Assistant/library instructor, d) Storekeeper, e) Store Clerk, f) Caretaker, g) Stenographer, b) Typist, I) Record Keeper, j) Collection Clerk and k) such other post as may be approved by the State Government. While considering such case of promotion, efficiency, seniority including academic qualification, character roll and attendance shall have to be taken into consideration. However, in. case no suitable candidate for such promotion is available, such permanent vacancy should be filled up by direct recruitment in accordance with the procedure laid down for the said purpose. Therefore, the post of Accountant should be filled up only by promotion and if no suitable candidate is available then by way of direct recruitment but the fact remains as stated earlier, that the strength of the post of Accountant is only one. Now the question is whether the post of Accountant appearing in statute 2 (a) (i) can be said to be a single cadre post. ( 8 ) MR. Dipankar Dutta, the learned Counsel appearing for the petitioner in the second writ application and Mr. Now the question is whether the post of Accountant appearing in statute 2 (a) (i) can be said to be a single cadre post. ( 8 ) MR. Dipankar Dutta, the learned Counsel appearing for the petitioner in the second writ application and Mr. Deb Barman, the learned Counsel appearing on behalf of the college authority have vehemently contended that all the posts appearing in clause (i) of statute 2 (a) should be treated to be part of a single cadre and thus, the post of Accountant cannot be said to be a single cadre post. ( 9 ) MR. Abdul Alim, the learned Advocate appearing on behalf of the petitioner in the first writ application, however, seriously disputes the aforesaid contention of Mr. Dutta and Mr. Deb Barman and asserts that each of the posts mentioned in statute 2 (a) (i) should be treated to be separate cadre and each post is a single cadre post and, thus, the policy of reservation is not applicable to any of the aforesaid posts in view of the decision of the Supreme Court mentioned above. ( 10 ) THE word "cadre" has not been defined in the North Bengal University Statute. A cadre is defined in Rule 9 (4) of Fundamental Rules as the strength of an establishment of service including a part of service sanctioned as a separate unit. It is now settled position of law that in exercise of executive power it is open to the employer to constitute as many cadres in the service as it may choose according to the administrative convenience and expediency. (See C. P. D. Nayar vs. State of Kerala, reported in AIR 1974 SC 1343 at para 8 ). ( 11 ) MR. Dutta, in this connection, has referred to the words used in statute 2 (a) where at the very beginning, such clause (a) has been categorized as non-teaching staff belonging to the cadre of posts mentioned in clause (i), clause (ii) and also those mentioned in clauses (iii) and (iv ). According to Mr. Dutta all the posts mentioned in clause (i) formed a single cadre while the post mentioned in clause (ii) formed a different cadre. But various categories of posts mentioned in clause (iii) consist of different cadres as it appears from the phrase used in clause (iii ). Mr. According to Mr. Dutta all the posts mentioned in clause (i) formed a single cadre while the post mentioned in clause (ii) formed a different cadre. But various categories of posts mentioned in clause (iii) consist of different cadres as it appears from the phrase used in clause (iii ). Mr. Dutta, thus, contends that the various posts mentioned in clause (iii) are all of different cadres while various posts separately mentioned in either clause (i) or in clause (ii) form a single cadre. ( 12 ) IN order that the various posts mentioned in clause (i) of statute (2) (a) form a single cadre, one of the tests is whether those posts are interchangeable. If a cashier can be transferred to the post of Accountant or vice versa or if a senior clerk can be transferred to the post of office superintendent or vice versa, in such a case, it should be presumed that they belong to same cadre. But if those posts are not interchangeable, in that event, those posts cannot belong to a single cadre. I have already pointed out that in case of vacancy of any posts in clause (i) of statute 2 (a), the same must be filled up either by promotion from the posts of clause 2 (a) (ii) or by direct recruitment. But there is no scope of filling up such post by interchanging with other posts mentioned in clause 2 (a) (i ). Thus, the object of the employer is clear. All the posts have been created as separate unit for expediency and administrative reason. In the college concerned, the strength of office of Accountant is only one. Such being the position, there is no escape from the conclusion that the Accountant is a single cadre post and once it is held to be single cadre post, the decision of the Supreme Court in Post-Graduate Institute of Medical Education and Research, Chandigarh (supra) is applicable. ( 13 ) IN the said decision a Constitution Bench has held that in a single cadre post reservation at any point of time on account of even rotation of roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of Backward Classes and in total exclusion of general members of the public. Such total exclusion of general members of the public and cent percent reservation for Backward Classes, the Supreme Court proceeded, is not permissible within the Constitutional framework. Hence, according to Supreme Court, until there is plurality in the posts or cadre, the question of reservation will not arise because any type of reservation by whatever means and even with types of rotation of roster in a single cadre post is bound to create 100 percent reservation for such post whenever such reservation is sought to be implemented. ( 14 ) IN this case, if the post of Accountant is filled up by applying reservation roster and is earmarked for Scheduled Caste, then there will be cent percent reservation excluding general category for the time being in the post of Accountant. Thus, I find substance in the contention of Mr. Alim, the learned Advocate, appearing for the petitioner in W. P. No. l9049 (w) of 2003 that the post of Accountant should not be earmarked for Scheduled Caste in view of the aforesaid decision of the Supreme Court. ( 15 ) I, thus, dispose of these two writ applications by directing the college authority to fill up the post of Accountant by way of promotion and if suitable candidate is not available then by way of direct recruitment as laid down in statute 5. But at any rate, policy of reservation will not be applicable to such single cadre post in view of the aforesaid decision of Supreme Court, The college authority is directed to complete the process of selection within one month from the date of communication of this order. These two writ applications are, thus, disposed of with the above direction. ( 16 ) IN the facts and circumstances, there will be, however, no order as to costs. Writ applications disposed of.