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2022 DIGILAW 677 (CAL)

Utpal Mistry v. Kolkata Municipal Corporation

2022-05-02

SHAMPA SARKAR

body2022
JUDGMENT Shampa Sarkar, J. - RE : Ia No. Ga/1/2021 1. Ga 1 of 2021 is an application for addition of the applicants as respondent no. 8 to 18, in the writ petition, WPO 582 of 2019. 2. The applicants were directly recruited as assistant Engineers (Civil) under Kolkata Municipal Corporation, on the basis of a recruitment process conducted by the Municipal Service Commission in the year 1996 and 1997. The writ petitioners Nos. 1, 2, 3 and 5 were also recruited as assistant Engineer (Civil) through the Municipal Service Commission in subsequent years and they joined sometime in 1999. The writ petitioner no. 4 was promoted as the assistant Engineer civil from the post of Sub- assistant Engineer (Civil). He had joined the post of Sub-assistant engineer sometime in 2000. 3. The applicants were promoted to the post of Executive Engineer (Civil) and thereafter were redesignated Deputy Chief Engineer (Civil) in terms of the office order dated September 3, 2016, upon upgradation. 4. In the writ petition, the petitioners have, inter alia, challenged the order of upgradation dated September 3, 2016, by which, the applicants and some others were redesignated as Deputy Chief Engineer Civil and some financial benefits attached to the post of Deputy Chief Engineer (Civil) were granted. Such re-designation took place on the basis of the seniority of the executive engineers as per the gradation list. The other prayers in the writ petition are for grant of notional promotion to the writ petitioners in the post of Deputy Chief Engineer (Civil) with retrospective effect, from November 2020 as per the office order dated May 23, 2013. Such office order was issued by the Kolkata Municipal Corporation (hereinafter referred to as KMC), in compliance with the order dated May 15, 2013 passed by a Co-ordinate bench of this Court in WP no. 21394 (W) of 2000. Such office order was issued by the Kolkata Municipal Corporation (hereinafter referred to as KMC), in compliance with the order dated May 15, 2013 passed by a Co-ordinate bench of this Court in WP no. 21394 (W) of 2000. The main prayers in the writ petition are as follows:- (b) a writ and or a writ in the nature of mandamus do issue commanding concerned the cancel the respondents' authority and or their men or agents or assigns to set aside or to withdraw or rescind or cancel the decision dated 03.09.2016 and additional corrigendum incorporated in the resolution dated 24.08.2016 restricting the incumbents being assistant Engineers appointed during July 1997 to June 1998; (c) To grant notional promotion to the petitioners with effect from 20.11.2010 as per office order dated 23.05.2013 to the post Deputy Chief Engineer (Civil) with all financial benefits at par High Court's judgement and at part with Tarun Kanti Ghosh, Dipankar Pal and 13 Others in terms of order dated 23.05.2013 being annexure " P-6.' 5. The memorandum dated September 3, 2016 had granted some benefits to the applicants and prayers have been made in the writ petition for quashing the same. The applicants state that when the prayers are directed against the benefits allowed to them, the court must give them an opportunity of hearing, before any order is passed in the writ petition in respect of the impugned memorandum dated September 3, 2016. The applicants have a right to support the office memorandum, which had favoured them with some service benefits. 6. It is further contended that KMC prepares a single gradation list in respect of the cadre, and if prayer (b), is allowed, the same will result in changing the position of the applicants in the gradation list. Even if the writ petitioners and the applicants belong to different categories, namely, schedule cast category and the general category respectively, any order passed in respect of prayer (b) will cause substantial change in the position of the applicants in the single gradation list maintained by the KMC. 7. Hence, on the above grounds, a prayer has been made for addition of the applicants as parties to the proceeding. 8. 7. Hence, on the above grounds, a prayer has been made for addition of the applicants as parties to the proceeding. 8. Reliance has been placed in the matter of State of Rajasthan vs Ucchab Lal Chhanwal reported in (2014) 1 SCC 1444, in order to substantiate that in any service matter when inter se seniority is being challenged, the persons who are likely to be affected by such proceeding, must be added as necessary/ proper parties. 9. Mr. Haradhan Banerjee, learned advocate appearing on behalf of the writ petitioners opposes such prayer for addition of parties and submits that this was an attempt to enlarge the scope of the writ petition. although, the writ petitioners prayed for setting aside and/or cancellation or withdrawal of the memorandum dated September 3, 2016, but, in effect, the writ petitioners have prayed for restoration of the memorandum dated September 2, 2016. Such memorandum dated September 2, 2016, if restored, the writ petitioners as also the applicants would be given the benefit of re-designation and up gradation with financial consequences, in the post of Deputy Chief Engineer (Civil). He next submits that, the applicants will not be affected even if notional promotion is given to the writ petitioners as the writ petitioners belong to the scheduled caste category. 10. Mr. Haradhan Banerjee, further submits that the petitioners are the dominus litus, and if the application for addition of parties is allowed, the same will amount to enlarging the scope of the writ petition. The applicants should not be allowed to agitate their cause, in the instant writ petition. 11. That the prayers in the writ petition, if allowed, would not cause any prejudice to the applicants, but would grant the writ petitioners, their legitimate dues. 12. Mr. ashok Kumar Banerjee, Learned senior advocate appearing on the behalf of the Kolkata Municipal Corporation, submits that the writ petition being devoid of merit, is liable to be rejected. Thus the applicants need not be added in such a frivolous litigation. 13. However, he submits that in the affidavit-in-opposition filed to the writ petition, the corporation has specifically taken a point that the writ petition should not be heard in the absence of the persons who have been granted the benefit of the memorandum dated September 3, 2016. Thus the applicants need not be added in such a frivolous litigation. 13. However, he submits that in the affidavit-in-opposition filed to the writ petition, the corporation has specifically taken a point that the writ petition should not be heard in the absence of the persons who have been granted the benefit of the memorandum dated September 3, 2016. It has been further contended by him that in the gradation list dated april 7, 2009, the applicants have been placed above the writ petitioners. That any order in terms of prayer (b) or (c) or both, would affect the service conditions of the applicants. He refers to paragraph 6 of the affidavit in opposition filed by KMC to writ petition. In the said paragraph, the corporation has taken a specific stand that the writ petition must be dismissed for non joinder of necessary parties as the executive engineers (Civil), who have been redesignated as Deputy Chief Engineer (Civil) and whose names appear in the said office order dated September 3, 2016, are proper parties. 14. Heard the learned advocates for the respective parties. Prayer (b) in the writ petition, is for a direction upon the Kolkata Municipal Corporation to withdraw, rescind or cancel the decision/memorandum dated September 3, 2016. The second prayer is to grant notional promotion to the writ petitioners with effect from November 20, 2010 as per the office order dated May 23, 2013 to the post of Deputy Chief Engineer (Civil) with all financial benefits in terms of the decision of the High court in the matter of Tarun Kanti Ghosh versus Dipankar Pal and 13 others. another prayer has been made with regard to grant of future promotion to the post of the Deputy Chief Engineer (Civil) and/or to the post of Director General (Civil) in the said establishment. 15. although, the applicants have filed another writ petition challenging some promotions given to some of the writ petitioners, the applicants have submitted that, when the challenge in the instant writ petition is with regard to an up gradation and consequential financial benefits given to the applicants, such applicants must be added in the proceeding. 16. 15. although, the applicants have filed another writ petition challenging some promotions given to some of the writ petitioners, the applicants have submitted that, when the challenge in the instant writ petition is with regard to an up gradation and consequential financial benefits given to the applicants, such applicants must be added in the proceeding. 16. This court finds that there is a pleading for restoration of the memorandum dated September 2, 2016, which shall allegedly grant the same benefit to the applicants and also to the writ petitioners as submitted by the writ petitioners, but the prayers in the writ petition, do not speak about any such restoration of the office memorandum. 17. In the matter of Prabodh Verma & Ors. vs State of Uttar Pradesh & Ors. reported in aIR 1985 SC 167 , the apex Court held that, the Court ought not to decide a writ petition under article 2226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents. 18. It appears to the court, that when there is a prayer for quashing and/or cancelling the office memorandum dated September 3, 2016, by which the applicants have been granted re-designation upon upgradation with immediate effect, while considering the prayer for quashing the said memorandum as made in the writ petition, the beneficiaries of the said memorandum/office order of the KMC, must be heard. 19. With regard to the other prayers for grant of the notional promotion to the writ petitioners in terms of the order of the Hon'ble High Court, this court finds that the gradation list would be substantially changed if the court orders in favour of the writ petitioners. Thus the applicants who are in a higher position in the gradation list may suffer prejudice and the gradation list is disturbed and/or altered. They must be added to the proceeding. 20. Whether the scope of the writ petition would be enlarged by the addition is not to be decided at this stage. Going by the prayers and cause of action in the writ petition, this Court is of the opinion that for the ends of justice, the applicants who are the beneficiaries of the memorandum dated September 3, 2016 and who have been placed higher than the writ petitioners in the gradation list, must be added in this proceeding. Going by the prayers and cause of action in the writ petition, this Court is of the opinion that for the ends of justice, the applicants who are the beneficiaries of the memorandum dated September 3, 2016 and who have been placed higher than the writ petitioners in the gradation list, must be added in this proceeding. The proceeding will be restricted to the prayers and the pleadings in the writ petition, but adjudication of such prayers should be made in the presence of the applicants. They are proper parties and the writ petition should not be heard in their absence. 21. The applicants have a right to safe guard their interests which have accrued from 2016 onwards. 22. Ia No. Ga 1 of 2021 allowed and accordingly disposed of. 23. Department is directed to amend the cause title of WPO. 582 of 2019 by incorporating the applicants as the respondents no 8 to 18. 24. Copy of the amended writ petition be served upon Mr. Ranajit Chatterjee learned advocate for the added respondents. 25. affidavit in opposition to the writ petition shall be filed within four weeks reply thereto within 2 weeks thereafter. Liberty to mention the writ petition for hearing.