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2009 DIGILAW 681 (CAL)

Anjan Kumar Ghosh v. Bula Mukherjee

2009-08-31

INDIRA BANERJEE, S.S.NIJJAR

body2009
Judgment : INDIRA BANERJEE, J. (1) This appeal is against a judgment and order dated 28th March, 2006 in W.P. No.15414 (W) of 2001 (Smt. Bula Mukherjee vs. The State of West Bengal and Ors) whereby the learned Single Judge allowed the writ petition filed by the respondent No.1 and set aside the decision dated 7th September, 2001 of the District Judge, Howrah, whereby the said District Judge had accepted the gradation list dated 25th May, 1994 in preference to the gradation list published vide order No.88/N dated 7th October, 1996 and order No.90/N dated 9th October, 1996. The appellants were impleaded as the Respondent Nos.6 and 7 in the writ petition. (2) The writ petitioner/respondent No.1 was appointed as a piece rated copyist in the office of Superintendent of Police, Howrah on 21st January, 1974. The writ petitioner/respondent No.1 joined service as piece rated copyist on 22nd January, 1974. The Government of West Bengal issued an order being Memo No.7191-F dated 23rd October, 1975 for bringing piece rated typists and copyists attached to different Civil, Criminal, Police and Revenue Courts under the Government to a regular salaried establishment, on the terms and conditions specified in the said order. In terms of the said Government order, piece rated typists and copyists were required to exercise their option, within 90 days from the date of issuance of the said order, to come under the regular salaried establishment. By a letter dated 19th December, 1975, the writ petitioner/respondent No.1 exercised her option to come under the regular salaried establishment under the judgeship of Howrah. (3) By an Order No.202/6 dated Howrah, the 1st November, 1978, the writ petitioner/respondent No.1 was permitted to join service as a regular copyist in the Criminal Court, Howrah and has since then been rendering service as copyist in the judgeship of Howrah. (4) In the judgeship of Howrah too, there were piece rated typists, copyists and typists-cum-copyists, who had also exercised their option to be brought to the regularized salaried establishment pursuant to the said order dated 23rd October, 1975, referred to above. (5) By an Order No.9163-J dated Calcutta the 13th June, 1978, 14 piece rated typists, copyists and typists-cum-copyists engaged in the judgeship of Howrah, were absorbed in the regular salaried establishment with effect from 23rd October, 1975, in posts sanctioned on temporary basis. (5) By an Order No.9163-J dated Calcutta the 13th June, 1978, 14 piece rated typists, copyists and typists-cum-copyists engaged in the judgeship of Howrah, were absorbed in the regular salaried establishment with effect from 23rd October, 1975, in posts sanctioned on temporary basis. None of the appellants featured in the said list of fourteen employees. (6) By an Order dated 30th October, 1978 the Government of West Bengal approved the transfer of posts of typists and copyists sanctioned for police courts to the regular establishment, after abolishing equal number of posts in the piece rated establishment under the police courts. Accordingly, the Government sanctioned creation with effect from 1st November, 1978 upto 28th February, 1979, of 174 posts of typists and copyists, on the usual scale of pay and allowances, in different districts in West Bengal. By an Order No.17024 (16)-J dated 18th December, 1978, the Government of West Bengal directed that the inter se seniority of typists, copyists and typists-cumcopyists brought under the regular salaried establishments in the different judgeships should be determined on the basis of their initial appointment. (7) By an Order No.20276-J/JCB 17/82 dated Calcutta the 1st August, 1985, the Government of West Bengal sanctioned creation by conversion of 4 out of 27 temporary posts of typists and copyists in the judgeship of Howrah into intermediary selection grade posts from 23rd October, 1975 to 31st March, 1981. (8) By an order being Memo No.1263 XII (3) dated 14th June, 1983, the gradation list of typists, copyists and typists-cum-copyists in the judgeship at Howrah was published. The name of the writ petitioner/respondent No.1 appeared at Serial No.27. According to the writ petitioner/respondent No.1, she was wrongly placed before the respondent No.9 by reason of a mistake in recording the date of appointment of the petitioner, which should have been 22nd January, 1974 instead of 27th January, 1975. The mistake was, however, rectified and the seniority position of the petitioner was restored. It is stated that the gradation list was never challenged. (9) By an order being Memo No.8065 (13)-J dated Calcutta, the 12th April, 1984, the Government of West Bengal decided to bring over piece rated typists, copyists and typists-cum-copyists appointed after issuance of the circular dated 23rd October, 1975 to the regular salaried establishment with effect from the date of the said order. (9) By an order being Memo No.8065 (13)-J dated Calcutta, the 12th April, 1984, the Government of West Bengal decided to bring over piece rated typists, copyists and typists-cum-copyists appointed after issuance of the circular dated 23rd October, 1975 to the regular salaried establishment with effect from the date of the said order. The appellants herein being the respondent Nos.5 to 8 and 10 in the writ petition, exercised their option pursuant to the said memo. The appellants were thus brought to the regular salaried establishment with effect from 12th April, 1984, being the date of issue of the memo sanctioning 27 additional posts. While the writ petitioner/respondent No.1 was appointed as piece rated worker in the police department in 1974 and brought under regular establishment some time in 1978, with effect from 23rd October, 1975, the appellants were brought to the regular salaried establishment with effect from 12th April, 1984. (10) A combined gradation list as on 2nd September, 1993 was prepared, as per the initial appointment of the respective copyists, typists and copyists-cum-typists. The appellants were placed below the writ petitioner/respondent No.1 in order of seniority. The District Judge, Howrah, however, issued an order No.23/M dated 25th May, 1994, purporting to correct the gradation list published on 2nd September, 1993 by placing the appellants above the writ petitioner/respondent No.1. (11) On 7th November, 1994, however, the Government of West Bengal, Judicial Department passed an order, the relevant portion whereof is extracted here in below: The matter has been examined by the Govt. accordingly and after careful consideration it has been decided that the seniority of the typists/copyists should count from the respective date of joining the regular establishment but the inter se seniority within the same group may be determined from the date of joining in the piece rate establishment. This has the approval of the Finance Department of this Govt. Thereafter the gradation list dated 25th September, 1996 prepared by the Registrar, Civil Courts, Howrah was approved by an order No.88/M dated 7th October, 1996 and published vide Office Order No.91/M dated 9th October, 1996. In the said gradation list, the name of the writ petitioner/respondent No.1 featured above the appellants. Thereafter the gradation list dated 25th September, 1996 prepared by the Registrar, Civil Courts, Howrah was approved by an order No.88/M dated 7th October, 1996 and published vide Office Order No.91/M dated 9th October, 1996. In the said gradation list, the name of the writ petitioner/respondent No.1 featured above the appellants. (12) Challenging the validity of the said order No.88/M dated 7th October, 1996 as also the office order No.91/M dated 9th October, 1996, the appellants along with others filed a writ application being C.O. No.17456 (W) of 1996. Two other writ petitions being C.O. No.17220 (W) of 1996 and W.P. No.16655(W) of 1999 were also filed. The three writ applications and connected appeals being FMA 1356 of 1998 and FMA 1357 of 1998 were heard by a Division Bench comprising Their Lordships, the Honble Justice Samaresh Banerjea (As His Lordship then was) and the Honble Justice Pratap Kumar Roy. (13) By a judgment and order dated 25th January, 2001 in FMA No.1356 of 98 and 1357 of 98 a Division Bench comprising Their Lordships the Honble Justice Samaresh Banerjea (As His Lordship then was) and the Honble Justice Pratap Kumar Ray found that the gradation list impugned had been prepared in violation of the principles of natural justice, without giving reasonable opportunity to the writ petitioners. The Division Bench thus set aside the impugned gradation list and directed the District Judge to decide the matter afresh, after giving all parties an opportunity of hearing. Pursuant to the direction of the Honble Division Bench, the learned District Judge, Howrah, granted the parties reasonable opportunity of hearing and passed the impugned order dated 7th September, 2001 inter alia holding that order No.23/M dated 25th May, 1994 and the subsequent order No.24/M dated 25th May, 1994 were both valid and legal and that the subsequently published order Nos.88/M dated 7th October, 1996 and 91/M dated 9th October, 1996 were unacceptable, the same not being legally founded. Being aggrieved by the aforesaid order, the writ petitioner/respondent No.1 filed the writ petition being W.P. No.15414 (W) of 2001 which has been disposed of by the judgment and order impugned in this appeal. Being aggrieved by the aforesaid order, the writ petitioner/respondent No.1 filed the writ petition being W.P. No.15414 (W) of 2001 which has been disposed of by the judgment and order impugned in this appeal. By the judgment and order under appeal, the learned Single Judge allowed the writ application, set aside the impugned order of the District Judge, Howrah and directed the Judicial Department to issue necessary instructions so that a uniform policy might be maintained through out the State with regard to determination of inter se seniority of copyists and typists. (14) Mr. Sadhan Roy Chowdhury appearing on behalf of the appellants submitted that, the short point for determination in the appeal was, whether a transferee from the office of the Superintendent of Police, Howrah, subsequently absorbed in the judgeship of Howrah had any right to claim higher inter se seniority vis--vis the existing employees of the judgeship of Howrah. (15) Mr. Roy Chowdhury argued that the impugned decision was pursuant to an order of the Division Bench that had assumed finality. The determination made by the District Judge, Howrah, pursuant to the directions of the Division Bench was thus not open to judicial scrutiny. (16) Mr. Roy Chowdhury submitted that the learned Single Judge erred in law in calling for reports from various District Courts of the State suo motu. In doing so, the learned Judge really exercised powers of superintendence of the High Court. Matters which might have been taken up by the High Court in exercise of its administrative powers were taken up in exercise of the High Courts power of judicial review under Article 226 of the Constitution of India. (17) The direction for production of records pertaining to different judgeships was nothing but an attempt to do complete justice between the parties. Be that as it may, the appellants have no reason to be aggrieved by such directions. The State has not preferred any appeal questioning the directions on the State. The question is whether the decision impugned in the writ petition was legally sustainable. (18) As rightly pointed out by Mr. Be that as it may, the appellants have no reason to be aggrieved by such directions. The State has not preferred any appeal questioning the directions on the State. The question is whether the decision impugned in the writ petition was legally sustainable. (18) As rightly pointed out by Mr. Soumya Majumdar appearing on behalf of the writ petitioner/respondent No.1, the writ petitioner/respondent No.1 was initially appointed piece rated typist/copyist in the office of the Superintendent of Police, Howrah in January, 1974, but absorbed and regularized in the regular salaried establishment under judgeship of Howrah in the year 1978, with effect from 31st October, 1975. The appellants who had been appointed piece rated copyists in the judgeship of Howrah after 31st October, 1975, were only regularized and absorbed in the regular salaried establishment in 1984. As rightly pointed out by Mr. Majumdar, the seniority list prepared way back in 1983, before regularization of the appellants was never challenged. The appellants did not feature in that seniority list. (19) The reliance placed by Mr. Roy Chowdhury on Rule 7 of the West Bengal Services (Determination of Seniority) Rules, 1981 is misconceived. Rule 7 of the said Rules provided as follows: R.7. Determination of seniority of transferees. (1) The relative seniority of persons appointed by transfer to a post, cadre or grade from the feeder post, cadre or grade of the same department or office from other departments or offices of the Government shall be determined by the order of selection for such transfer. (2) When such transfer involves two or more persons selected from different departments or offices on the same occasion, the appointing authority for such appointment on transfer shall indicate the order of merit of the selected persons in each case. (3) The relative seniority between a promotee, a transferee and a direct recruit shall be determined by the year of promotion or transfer of recruitment, promotees being enbloc senior to the transferees and direct recruits of the same year and transferees being enbloc senior to the direct recruits of the same year. (20) In view of Rule 7(3) promotees are enbloc senior to transferees and direct recruits of the same year. Rule 7(3) does not deprive a transferred employee regularized six years earlier of his claim to seniority over a piece rated employee of the judgeship regularized six years later. (20) In view of Rule 7(3) promotees are enbloc senior to transferees and direct recruits of the same year. Rule 7(3) does not deprive a transferred employee regularized six years earlier of his claim to seniority over a piece rated employee of the judgeship regularized six years later. (21) The seniority lists wherein the writ petitioner/respondent No.1 was placed above the appellants was set aside on the ground of the same having been prepared without hearing the appellants. The Division Bench merely directed the District Judge, Howrah to decide the issue afresh in accordance with law. (22) The seniority of the writ petitioner/respondent No.1, appellants and other concerned employees would have to be determined from the respective dates of their absorption and regularization in the regular salaried establishment and the inter se seniority between those absorbed and/or regularized at the same time would have to be determined on the basis of the respective dates of their initial appointment. (23) Mr. Roy Chowdhury cited the judgment of the Supreme Court in Indian Airlines Officers Association vs. Indian Airlines Ltd. reported in AIR 2007 SC 2747 . In the aforesaid judgment, the Supreme Court was dealing with a scheme of merger of Indian Airlines with Air India. The Supreme Court observed that merely because some of the employees of the Indian Airlines would suffer in terms of seniority and ultimately in terms of further chances of promotion was no ground for rejecting the whole scheme as discriminatory. A judgment is a precedent for what is decided. The aforesaid judgment has no manner of application in the facts and circumstances of this case. In General Manager, South Central Railway, Secunderabad and Anr. vs. A.V.R. Siddhanti and Ors. reported in AIR 1974 SC 1755 , the Supreme Court held that once the persons recruited from two different sources were absorbed into one integrated class, with identical service conditions, they could not be discriminated against in future, with reference to their original source, for the purpose of seniority. (24) Neither of the authorities referred to by Mr. reported in AIR 1974 SC 1755 , the Supreme Court held that once the persons recruited from two different sources were absorbed into one integrated class, with identical service conditions, they could not be discriminated against in future, with reference to their original source, for the purpose of seniority. (24) Neither of the authorities referred to by Mr. Roy Chowdhury lend support to the proposition that ad hoc and/or piece rated typists absorbed and/or regularized in the judgeship in 1984 should be given seniority over transferees absorbed in the judgeship several years earlier, just because they had been engaged as ad hoc and/or piece rated typists, copyists and/or typists-cum-copyists as the case might be, before the transfer and regularization of the piece rated copyists, typists and/or typists-cum-copyists from the police department. The appellants did not question the regularization of the writ petitioner/respondent No.1 and others in the judgeship, in 1978, before the appellants. We are of the view that the order of the learned Single Judge, does not call for interference in appeal. The appeal is thus dismissed.