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2008 DIGILAW 817 (CAL)

Saswati Roy Chowdhury v. STATE OF WEST BENGAL

2008-08-12

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
JUDGMENT Prasenjit Mandal, J. 1. This application is directed against the judgment and order dated 14.07.2005 passed by the West Bengal State Administrative Tribunal in O.A. No.1473 of 2002 whereby the learned Tribunal has dismissed the application of the applicant under section 19 of the Administrative Tribunals Act, 1985. 2. The fact leading to the filing of the present application in short is that the applicant was appointed as L.D.C. on 10.02.1969 in the department of State Armed Police, Fourth Battalion, Raiganj. Then she officiated as an Accountant with effect from 2.07.1979 to September, 1979 in the leave vacancy and thereafter she was promoted to the post of U.D.C. with effect from 18.05.1981. A seniority list was prepared in 1989 showing her position at serial No.1, by the Inspector General of Police (Headquarter), West Bengal. Then in 1997, the Police Directorate issued circulars indicating that the modalities of the promotion to the post of U.D.C. should be purely on seniority basis. By that time, the Government of West Bengal amended the Regulation 768 of the Police Regulation of Bengal which lays down the regulation of promotion to the post of U.D.C., Accountant, etc., introduced the promotion policy on 1:1 basis and the West Bengal Services (Determination of Seniority) Rules, 1981. On the basis of 1:1 promotion policy, the application was allowed the benefit of U.D.C., on promotion, with effect from 01.04.1981 along with other staff. 3. The Deputy Inspector General of Police (Armed Police), Barrackpore, West Bengal prepared a gradation list showing the applicant at serial No.20. That gradation list was approved by the Inspector General of Police (Headquarter. Thereafter the applicant made a representation to revise the gradation list to show her position as serial No.1. Such representation was rejected. Thereafter the applicant moved the learned Tribunal for cancellation/withdrawal of the gradation list; but her prayer was turned down. So the applicant has preferred the present application. 4. Mr. Nandi, learned Advocate for the applicant has contended that the applicant was officiating in the post of Accountant with effect from 02.07.1979 on leave vacancy and she was promoted to the post of the U.D.C. with effect from 01.04.1981. So the applicant has preferred the present application. 4. Mr. Nandi, learned Advocate for the applicant has contended that the applicant was officiating in the post of Accountant with effect from 02.07.1979 on leave vacancy and she was promoted to the post of the U.D.C. with effect from 01.04.1981. The gradation list prepared by the Inspector General of Police (Headquarter) shows that the applicant was at serial No.1, but while the subsequent gradation list was prepared in 1996 her position as on 01.04.1995, was lowered to the position of serial No.20. The learned Advocate has also contended that the preparation of such subsequent gradation list as on 01.04.1995 (Annexure P-4) had been done by ignoring the earlier gradation list, departmental circulars and the amended provision of the regulation 768 and the West Bengal Services (Determination of Seniority) Rules, 1981. He has also contended that the persons such as Shri Ajit Pal Chowdhury, Shri Asoke Roy, Shri Gopal Chandra Mukherjee who were junior to her were given seniority position above her. So her position in the subsequent gradation list should be shown at serial no. 1 instead of at serial No. 20. 5. On the other hand, Mr. Mandal appearing for the State-respondent has denied the contention of Mr. Nandi. He has submitted that the previous regulation 768 of the Police Regulation of Bengal was abolished and now the seniority of the applicant and other employees shall be determined, according to the provision of the West Bengal Services (Determination of Seniority) Rules, 1981 especially rule 5 Note 2 of the said Rules. He has supported the gradation list prepared by the Deputy Inspector General of Police, (Armed Police), Barrackpore, West Bengal. 6. As regards the first contention, upon hearing both the sides and on consideration of the materials on record, we find that the basis of claim of the applicant is unjustified. Earlier list which prepared on 17th July, 1989 by the Inspector General of Police (Headquarter) (being Annexure P-1) cannot legally be regarded as gradation list at all. The said Annexure nowhere it was considered a gradation list. Upon perusal of the same, we find that it is nothing but a list of persons mentioning the place of posting, on promotion, from the post of L.D.C. to the post of U.D.C., wherein the name of the applicant appeared, per chance, in serial No. 1. The said Annexure nowhere it was considered a gradation list. Upon perusal of the same, we find that it is nothing but a list of persons mentioning the place of posting, on promotion, from the post of L.D.C. to the post of U.D.C., wherein the name of the applicant appeared, per chance, in serial No. 1. Therefore, we hold that the Annexure P-1 prepared by the Inspector General of Police (Headquarter) cannot be considered at all as a gradation list. 7. The applicant has contended that she had been working as an Accountant since 02.07.1979; but she has failed to produce a single paper in support of such claim. Rather, from the materials placed by the applicant and the respondent, we find that the applicant was promoted to the post of U.D.C. on 18.05.1981 in fact, but later on, as per Government's promotion policy of 1:1 of the U.D.C. and the L.D.C. ratio, the applicant was treated to have been promoted with effect from 01.04.1981 along with others. So the claim of the applicant for being considered as a U.D.C. with effect from 02.07.1979 is feeble at all. 8. So far the issue of giving promotion of three employees junior to the applicant is concerned, the Brigade Approved List of clerks fit for promotion to the post of U.D.Cs./Accountants is the concerned material (Annexure P-17) wherein the name of the applicant appears at serial No. 22. We find that this material cannot be considered as a gradation list, too. It was prepared in 1981 on the basis of passing the departmental examination as per the then existing Regulation 768 of the PRB Volume 1 which was amended subsequently. This is also a promotion list. This material is nothing but the approval of the list as on 14.07.1981 of the L.D.Cs. declared fit to be promoted to the post of U.D.Cs., Accountants, etc. Such list lays down the name of the Shri Ajit Pal Chowdhury, Shri Asoke Roy, Shri Gopal Chandra Mukherjee in the serial Nos. 24th, 27th and 33rd position. This placement in the list, we think is not the place of gradation list. To put it slightly different that this list cannot be equated with gradation list. This was done when there was no promotion policy of the Government on the basis of 1:1 ratio in terms of the Finance Department's Memo No.3868-F read with Memo No.633-F dated 21.01.1988. This placement in the list, we think is not the place of gradation list. To put it slightly different that this list cannot be equated with gradation list. This was done when there was no promotion policy of the Government on the basis of 1:1 ratio in terms of the Finance Department's Memo No.3868-F read with Memo No.633-F dated 21.01.1988. Subsequently, when such promotion policy of the Government was adopted and the L.D.Cs. were given promotion to the post of U.D.Cs., etc. on the basis of 1:1 policy w.e.f. 01.04.1981, the actual gradation list was prepared subsequently (Annexure P-4). Therefore, we hold that the mentioning of such position in Annexure P-17, after introduction of the 1:1 promotion policy of the Government w.e.f. 01.04.1981, has become infructuous subsequently at the time of preparation of the gradation list (Annexure P-4), In other words, we are of the view that the inter se seniority amongst the applicant and others had not been determined at all prior to the preparation of the Annexure P-4 dated 22.01.1986 by the Deputy Inspector General of Police (Armed Police), Barrackpore, West Bengal, which was approved by the Inspector General of Police (Headquarter). 9. Now as per present position of rules governing the method of preparation of the gradation list, the concerned Department 'is to consider the G.O. Nos. 1629-APL dated 22.03.1995, amended provisions of Regulation 768 of the PRB, especially 768(d) and the West Bengal Services (Determination of Seniority) Rules, 1981. The Regulation 768 of the PRB, we find, had not been abolished altogether; but suitably amended. Such Regulation 768 was amended keeping in conformity with the West Bengal Services (Determination of Seniority) Rules, 1981 for consideration of the promotion. For convenience we quote the relevant amended Regulation 768(d) and the Rule 5 of the said Rules: "768(d) the seniority of Head Clerk, Accountant, Cashier, Upper Division Clerk, Reader Clerk, Lower Division Typist and of any other employee holding a ministerial post of other description as In existence or as may be sanctioned in future shall be regulated by the West Bengal Services (Determination of Seniority) Rules, 1981;" "R.5 of the West Bengal Services (Determination of Seniority) Rules, 1981. Determination of seniority of promotees.- (1) Seniority of persons appointed on promotion to any post, cadre or grade shall be determined from the date of joining such post, cadre or grade. Determination of seniority of promotees.- (1) Seniority of persons appointed on promotion to any post, cadre or grade shall be determined from the date of joining such post, cadre or grade. (2) When there will be appointment in a single process of selection of more than one person, the relative seniority of persons so appointed shall be determined by the order in which they are selected for such promotion. (3) Persons appointed on the result of an earlier selection shall be senior to those appointed on the results of a subsequent selection. (4) Where promotions to a post, cadre or grade are made from more than one post, cadre or grade, the relative seniority of the promotees from different posts, cadre, or grades shall be according to the order of merit determined by the Commission or the selecting authority. If such posts, cadres or grades do not come within the purview of the Commission. Note 1.-A list of candidates for the purpose of selection for promotion shall he prepared in all cases, by the selecting authority when appointments are made on promotion in a single process of selection of more than one person. Note 2.-Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these rules, such seniority shall, on the coming into force of these rules, be determined on the basis of date of joining. When the date of joining of such persons in the same seniority in the promotion post, cadre or grade shall follow the seniority in the lower feeder post, cadre or grade." 10. Therefore, as per Note 2 of the said Rule 5 of the said Rules, Regulation 768(d) and the above mentioned G.O. inter se seniority among the several persons when not done earlier, shall be determined on the basis of the date of joining in the lower feeder post. 11. If we look into the gradation list (Annexure P-4) we find that the gradation list had been prepared by following the said Rule 5 Note 2 of the said Rules. For instance, Shri Ajit Pal Chowdhury joined office on 30.12.1965, Shri Asoke Roy, on 07.02.1966 and Shri Gopal Chandra Mukherjee on 27.05.1966, meaning thereby that they had been appointed prior to the date of appointment of the applicant on 10.02.1969 in the lower feeder post. So they are senior to the applicant by service. For instance, Shri Ajit Pal Chowdhury joined office on 30.12.1965, Shri Asoke Roy, on 07.02.1966 and Shri Gopal Chandra Mukherjee on 27.05.1966, meaning thereby that they had been appointed prior to the date of appointment of the applicant on 10.02.1969 in the lower feeder post. So they are senior to the applicant by service. Though the said three persons were promoted to the post of U.D.C. subsequent to the promotion of the applicant, after implementation of the promotion policy of the Government in the 1:1 ratio, the said three persons as well as the applicant were promoted to the post of U.D.C. on 01.04.1981. The placing of the said three employees above the position of the applicant had been done on the basis of the Rule 5 under Note 2. Thus, we find that the said three persons having been appointed prior to the appointment of the applicant in the post of the L.D.C., they were placed above her in the gradation list. 12. Therefore, we do not find any anomaly or illegality in the matter. Rather, we find that the gradation list (Annexure P-4) had been, prepared according to the rules prevailing at that time. The question of consideration of the so-called earlier gradation list (Annexure P-1) does not arise. The applicant could not show that any employee junior to her was placed above the serial No. 20, her position in the gradation list). 13. It may be mentioned here that the applicant retired from services on superannuation 31.01.2005. So the matter of reserving one post of Read Clerk until disposal of the matter by the Tribunal as passed by this Court in W.P.S.T. No. 845 of 2003 arising out of an interim order passed in the said application, has now become infructuous. 14. In view of our above decision, the learned Tribunal came to correct decision, it does not warrant any interference. The present application is thus devoid of merits. Accordingly, the application is dismissed. 15. Considering the circumstances, there will be no order as to costs. 16. All interim orders are hereby vacated. 17. Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings. I agree. Appeal dismissed.