Ashok Kumar Guha and Another vs The Calcutta Municipal Corporation and Others

Debasish Kar Gupta, J.—The writ application bearing Writ Petition No. 21394 (W) of 2000 is filed by the petitioners (hereinafter referred to as ''the promotees'') challenging the appointment of the respondent Nos. 6 to 30 to the post of Assistant Engineer (Civil), Calcutta Municipal Corporation as also to redetermine the inter se seniority of the petitioners vis-a-vis the respondent Nos. 6 to 30. The writ application bearing Writ Petition No. 936 of 2003 is filed by the petitioners (hereinafter referred to as ''the direct appointees'') for setting aside of resolution dated April 30, 2003 adopted in the meeting of the Mayor-in-Council, Calcutta Municipal Corporation pertaining to the appointment/promotion of Assistant Engineers (Civil) under the Calcutta Municipal Corporation as also for promotion to the post of Executive Engineer (Civil) on the basis of the updated gradation list published on February 26, 2001.

Since the subject-matter involved in both the aforesaid writ applications is the validity of the appointments of the direct appointees and/or determination of seniority of the direct appointees and the promotees, the aforesaid two writ applications are taken up for analogous hearing.

The backdrop of the subject-matter involved in these writ applications in a nutshell is as follows:-

The promotees/writ petitioners of Writ Petition No. 21394 (W) of 2000 were appointed to the post of Sub-Assistant Engineers (Civil) under the Calcutta Municipal Corporation with the qualification of diploma-holder in civil engineering on February 6, 1985 and January 30, 1985 respectively. They obtained graduate decree in engineering in 1988-89 respectively.

The recruitment regulation for the post of (i) Assistant Engineer (Civil), (ii) Assistant Engineer (Mechanical) and (iii) Assistant Engineer (Electrical) under all departments/offices/directorates of the Calcutta Municipal Corporation was framed by the competent authority in exercise of powers conferred by Section 20 read with Section 602 of the Calcutta Municipal Corporation Act, 1980 under Circular No. 6 of 1987-88 dated April 30, 1987 issued by the Calcutta Municipal Corporation (Personnel Department). Under the aforesaid Circular, Sub-Assistant Engineer (Civil) or holders of any other similar posts in the identical pay-scale possessing a diploma in civil engineering from the State Council for Engineering and Technical Education, West Bengal or its equivalent having ten years'' experience were eligible for promotion to the post of Assistant Engineer (Civil).

The general principle containing the mode of filling up of certain category of ''A posts'' of Calcutta Municipal Corporation was approved by the Calcutta Municipal Corporation in its meeting dated February 18, 1992 which was circulated under Circular No. 1 of 1991-92 dated April 1, 1992 issued by the Calcutta Municipal Corporation, Personnel Department. Under the above general principles, all vacancies of Assistant Engineer and similar posts in the identical pay-scale under Calcutta Municipal Corporation Engineering Services should be filled up 50 per cent by promotion and 50 per cent by direct recruitment. Provided that not more than 50 per cent posts in a department should be filled up by direct recruitment.

Calcutta Municipal Corporation Services (Common Cadres) Regulations were framed by the competent authority of the Calcutta Municipal Corporation in exercise of powers conferred u/s 20 of the Calcutta Municipal Corporation, 1980 and it was circulated under Circular No. 69 of 1994-95 of the Calcutta Municipal Corporation, Personnel Department. Under the provisions of the aforesaid Circular, common gradation list referred to in the above regulations, the seniority of a person should be determined by the provisions of the Calcutta Municipal Corporation (Determination of Seniority) Regulations.

In terms of the resolution of Kolkata Municipal Corporation adopted in its meeting dated July 24, 1997, the Recruitment Regulation for the post of Assistant Engineer was partially modified for providing the scope for promotion to the employees in the post of Sub-Assistant Engineer of all disciplines having engineering degree with ten years'' experience in the post of Sub-Assistant Engineer in the following manner:-

For Promotion

By an advertisement No. 3 of 1996-97 published in ''Anandabazar Patrika'' dated July 19, 1996, the Municipal Service Commission invited applications from Indian citizens for appointment to three posts of Assistant Engineer (Civil), amongst other posts, one reserved for candidate belonging to Scheduled Castes Category. The requisite qualification prescribed for the above posts was a degree in Civil Engineering of a recognized university or its equivalent. The promotees and direct appointees submitted their applications in respect to the above advertisement, all of them participated in the written examination and the interview, amongst other eligible candidates. Successful candidates including the direct appointees were appointed to the post of Assistant Engineer (Civil) during the period from July 1996 to June, 1998. None of the promotees was selected for appointment to the above post.

The promotees filed an application under Article 226 of the Constitution of India bearing Writ Petition No. 21002 (W) of 1998 challenging the system of holding competitive recruitment examination for departmental promotion to the post of Assistant Engineer from the feeder posts of Sub-Assistant Engineer (Civil). In so far as the decree-holders were concerned, during the pendency of the above writ application, the promotees were promoted to the post of Assistant Engineer (Civil) on August 10, 1999.

The above writ application was disposed of on October 8, 2002 without entering into the merits of the case and taking into consideration the subsequent developments in the matter during the pendency of the above writ application.

The promotees filed the aforesaid first writ application bearing Writ Petition No. 21394 (W) of 2000 assailing the appointment of the direct appointees.

By a resolution dated April 30, 2003 adopted in the meeting of the Mayor-in-Council, the Calcutta Municipal Corporation introduced a settlement formula for recasting the gradation list for the purpose of refixing the seniority of the Assistant Engineer (Civil) including the direct appointees and the promotees.

The direct appointees filed the aforesaid second writ application bearing Writ Petition No. 936 of 2003 challenging the legality and/or validity of the aforesaid settlement formula of the Calcutta Municipal Corporation.

By an order dated August 26, 2005 passed in connection with the first writ application, the matter was referred to the Mayor, Calcutta Municipal Corporation for settling the dispute under reference. In compliance of the above order, the Mayor, Calcutta Municipal Corporation by an order dated September 10, 2005 decided the issue.

By office order No. DMC (P)/PT/127/2005-06 dated September 30, 2005, the authority promoted the eighteen direct appointees, amongst others, to the post of Executive Engineer (Civil).

By office order No. D.M.C. (P)/PT/III-B/215/2006-07 dated November 24, 2006, the authority further promoted one direct appointee to the post of Deputy Chief Engineer (Civil), amongst others.

The promotees filed application bearing G.A. No. 3302 of 2005 in connection with the writ application challenging the promotion of the direct appointees to the post of Executive Engineer (Civil). In view of an order dated April 17, 2006 passed in the above aforesaid writ applications, the decision of the Mayor dated September 10, 2005 should abide by the final decisions of these writ applications.

On the basis of an application filed by the promotees in connection with the first writ application bearing Writ Petition No. 21394 (W) of 2000, the above writ application was amended and the following prayer was included:

c/1) Issue an appropriate writ, order or direction cancelling and/or setting aside the orders of promotion of the private respondents being "Annexure G" and decide the writ petitions on merits as was already recorded in the order dated 17.04.2006 referred to above;

The promotees filed an application dated October 4, 2010 before the competent authority under the Right to Information Act, 2005 for obtaining following informations:

How many vacancies were occurred for the post of Assistant Engineer (civil) in Kolkata Municipal Corporation during the period 16.07.1996 to 15.07.1997 & 16.07.1997 to 15.07.1998?

Please furnish the names of the Assistant Engineer (Civil) who had retired or promoted or dead or left from service during these periods i.e. 16.07.1996 to 15.07.1997 and 16.07.1997 to 15.07.1998.

How many candidates were appointed and promoted to the post of Assistant Engineer (civil) in Kolkata Municipal Corporation during the above respective two periods i.e. 16.07.1996 to 15.07.1997 & 16.07.1997 to 15.07.1998 separately and furnish the names of the said appointees and promotees?

Whether any advertisement was published for appointment to the post of Assistant Engineer (Civil) in Kolkata Municipal Corporation during the year 1997-98 and, if so, what is the advertisement number and for how many posts and to furnish copy of such advertisement?

In reply, the competent authority supplied the informations to the petitioners as follows:

Re: Furnishing informations under RTI Act, 2005 and W.B. Right to information rules, 2006.

Sub: R.T.I./A/3008/10-11 dt. 05.10.10, informations on A.E. (Civil) from 16.07.96 to 15.07.97 and 16.07.97 to 15.07.98.

(I) :

(a) 13

(b) 6

(II) : Promoted and Retired Asstt. Engineers (C) from 16.07.96 to 15.07.98

(III) Appointees and promotees to the post of A.E. (Civil) during 16.07.96 to 15.07.97. (9+8=17)

Appointees and Promotees to the post of A.E. (C) during 16.07.97 to 15.07.98. 25+1=26

(IV) No

It is submitted by Mr. L.K. Gupta, learned Senior Advocate appearing on behalf of the promotees, that a selection process was initiated by the Calcutta Municipal Corporation for direct recruitment of three (two under General category and one under Scheduled Castes category) Assistant Engineers (Civil) by advertisement No. 3 of 1996-97 dated July 15, 1996 of the Municipal Service Commission. The number of vacancies in the post of Assistant Engineer (Civil) under the Calcutta Municipal Corporation during the period from July 16, 1996 to July 15, 1997 was thirteen. Therefore, according to Mr. Gupta, the total number of vacancies in the above post during the period from July 16, 1996 to July 15, 1997 was sixteen (3+13).

It is submitted by him that in view of the general principle containing model of filling up of certain category ''A Posts'' including the post of Assistant Engineer as declared under Circular No. 1 of 1991-92 dated April 1, 1992, the total number of vacancies in the post of Assistant Engineer (Civil) available for filling up by direct recruitment was eight. According to him, thirty four vacancies of Assistant Engineer (Civil) were filled up by the Calcutta Municipal Corporation by direct recruitment during the period from July 16, 1996 to July 15, 1998 against available vacancy of eight posts, i.e., 50 per cent of total available vacancy.

According to Mr. Gupta, the Calcutta Municipal Corporation authority not only encroached upon eight vacancies for the post of Assistant Engineer (Civil) available for filling up by appointment on promotion but also filled up twenty six vacancies by direct recruitment in excess of the vacancies available during the period from July 16, 1996 to July 15, 1998. According to him, the above action on the part of the Calcutta Municipal Corporation was a case of violation of the provisions of the Constitution of India denying equality of opportunity in the matter of public employment.

Reliance is placed by Mr. Gupta upon the decisions of V.B. Badami and Others Vs. State of Mysore and Others, Madan Gopal Garg Vs. State of Punjab and Others, Rakhi Ray and Others Vs. The High Court of Delhi and Others, and Arup Das and Others Vs. State of Assam and Others,

It is submitted by the learned Advocate General, West Bengal, appearing on behalf of the respondent Corporation that on the basis of the vacancies available at the material point of time, the respondent-authority filled up the vacancies for the post of Assistant Engineer (Civil). It is also submitted by him that pursuant to the direction of the Court, the Mayor passed an order dated September 10, 2005 to resolve the dispute. Promotions were given to the posts of Executive Engineer and subsequently to the posts of Deputy Chief Engineer (Civil) subject to the results of these writ applications. Learned Advocate General emphasizes upon resolving of the dispute once for all.

It is submitted by Mr. Utpal Majumder, learned Advocate appearing on behalf of the direct appointees, that the challenge was thrown to the appointment of direct appointees after a period of 16 years to unsettle the settle position. It is submitted by Mr. Majumder that in reply to a charter of demand of the respondent Corporation Engineering and Allied Services Association, the Deputy Municipal Commissioner informed in his reply given under Memo No. DMC (HQ)/646/98-99 dated July 27, 1998 that the total strength of Assistant Engineer (Civil) under the respondent Corporation was two hundred thirty one at the material point of time out of the above one hundred ninety two vacancies were occupied by the incumbents by appointment on promotion and only thirty four posts were occupied by the incumbents by direct appointment. According to Mr. Majumder, the appointments of the direct appointees were made to remove the violation of the provisions of Circular No. 1 of 1991/92 dated April 1, 1992. According to Mr. Majumder, the appointment of the direct appointees were not made in excess of vacancies available for them in view of the aforesaid communication.

It is also submitted by Mr. Majumder that the promotees were not in the cadre of Assistant Engineer (Civil) at the time of appointment of the direct appointees in the above posts and the first writ application is filed by the promotees for treating the inequals as equals.

Mr. Majumder further submits that the resolution dated April 30, 2003 adopted in the meeting of the Mayor-in-Council cannot be sustained in law in view of his submissions.

Reliance is placed by Mr. Majumder on the decisions of Govind Dattatray Kelkar and Others Vs. Chief Controller of Imports and Exports and Others, , Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, Malcom Lawrence Cecil D''souza Vs. Union of India (UOI) and Others, V.B. Badami and Others Vs. State of Mysore and Others, , Narender Chadha and Others Vs. Union of India and Others, , C.K. Antony Vs. B. Muraleedharan and Others, , Ashwani Kumar Singh Vs. U.P. Public Service Commission and Others, Union of India (UOI) and Another Vs. S.K. Goel and Others, , Nani Sha and Others Vs. State of Arunachal Pradesh and Others, , R.K. Mobisana Singh Vs. KH. Temba Singh and Others, M.P. Palanisamy and Others Vs. A. Krishnan and Others, , H.S. Vankani and Others Vs. State of Gujarat and Others,

Having heard the learned Counsel appearing on behalf of the respective parties as also after thoughtful consideration of the facts and circumstances of these cases, I find that issue involved in these cases is the propriety of decision-making process of the respondent Corporation in filling up the vacancies for the post of Assistant Engineer (Civil) by way of direct recruitment during the period from July 15, 1996 to July 15, 1998.

The well settled rule of administrative law is that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. It was enunciated by Mr. Viteralli v. Saton, 359 US 535; where the learned Judge said as follows:-

An executive agency must be rigorously held to the standards by which it professes its action to be judged. ....... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. ...... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.

The aforesaid principle has been accepted as applicable in India by the Hon''ble Supreme Court in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, as follows:-

...... Now, it is true that clause (2)(ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the ''State''. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16. It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seaton, (1959) 359 US 535 at pp. 546-547= Viteralli v. Saton, 359 US 535; This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action.

Subsequently, the Hon''ble Supreme Court quoted the above observation of Mr. Justice Frankfurter with approval in Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, and Ramana Dayaram Shetty Vs. International Airport Authority of India and Others,

In view of the above pronouncements it must be held to be obligatory on the part of the respondent-authority to fill up the vacancies for the post of Assistant Engineer (Civil) during the period from July 15, 1996 to July 15, 1998 scrupulously observing the defined procedures which were in vogue at the material point of time. From the facts narrated hereinabove, I find that "General Principle containing mode of filling up of certain category ''A'' posts" issued under Circular No. 1 of 1991-92 dated April 1, 1992 was in force during the period from July 15, 1996 to July 15, 1997. Similarly, "Modification of Recruitment Regulation for promotion to the post of Assistant Engineer of all Disciplines from the post of Sub-Assistant Engineer" issued under Circular No. 48/D.M.C. (H.Q.)/1997-98 dated August 7, 1997 was applicable in these cases for the period from August 7, 1997 to July 15, 1998.

In response to an application dated October 4, 2010 filed by the promotees under the Right to Information Act, 2005, the competent authority informed them that thirteen vacancies had occurred for the post of Assistant Engineer (Civil) under the respondent Corporation during the period from July 16, 1996 to July 15, 1997. Prior to the above period, advertisement No. 3 of 1996-97 dated July 15, 1996 was published by the Municipal Service Commission to fill up three posts of Assistant Engineer by way of direct recruitment. Therefore, the number of vacancies for the above post during the period from July 15, 1996 to July 15, 1997 was sixteen (three + thirteen). Against the above vacancies, nine posts were filled up by way of direct appointment. The General Principle containing the mode of filling up of certain category ''A posts'' of the Calcutta Municipal Corporation as circulated under Circular No. 1 of 1991-92 dated April 1, 1992 was applicable in these cases during the period from July 15, 1996 to July 15, 1997. According to the provisions of above Circular, eight vacancies were available for filling up by direct recruitment. So, one vacancy was filled up in excess by way of direct recruitment resulting in depriving the promotees for consideration against the above one vacancy violating their fundamental right guaranteed under Articles 14 and 16(1) of the Constitution of India.

From informations obtained by the promotees from the competent authority in response to the above application dated October 4, 2010 filed under the Right to Information Act, 2005, it is further revealed that total six vacancies occurred for the post of Assistant Engineer (Civil) under the respondent Corporation during the period from July 16, 1997 to July 15, 1998. From the above informations obtained by the promotees, it is also revealed that twenty five posts were filled up by way of direct appointment and one post was filled up by appointment on promotion. Since the Modification of Recruitment Regulation introduced under Circular No. 48/D.M.C. (H.Q.)/1997-98 dated August 7, 1997 was in force at the aforesaid period of time, at best three vacancies were available for filling up by way of direct recruitment. The promotees were possessing ten years experience in the post of Sub-Assistant Engineer (Civil) and Degree in Engineering (Civil) at the material point of time. They were entitled to be considered for appointment to the post of Assistant Engineer (Civil) against the rest of the vacancies, i.e. three vacancies. But twenty two vacancies were filled up in excess (25-3) by way of direct recruitment violating the fundamental right of the promotees guaranteed under Articles 14 and 16(1) of the Constitution of India for consideration against 55% of the aforesaid twenty two vacancies.

The aforesaid actions on the part of the respondent-authority was bad in law for violation of another settled principles of law. By way of filling up one future vacancy during the period from July 16, 1996 to July 15, 1997 (seventeen vacancies were filled up against sixteen available vacancies) and twenty future vacancies during the period from July 16, 1997 to July 15, 1998 (twenty six vacancies were filled up against six available vacancies), the respondent-authority deprived the eligible candidates to be considered against those vacancies. Reference may be made to the decision of Hoshiar Singh Vs. State of Haryana and Others, and the relevant portions of the above decision are quoted below:-

The learned counsel for these appellants have not been able to show that after the revised requisition dated January 24, 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though the requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional post on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only was not legally sustainable.

(Emphasis supplied)

I do not find substance in the submissions made by Mr. Utpal Majumder, learned Advocate for the direct appointees, that waitage should be given to the communication of the Deputy Municipal Commissioner which was issued under Memo No. DMC (HQ)/646/98-99 dated July 27, 1998. In view of the informations obtained by the promotees from the respondent-authority under the Right to Information Act, 2005, the above communication cannot be taken into consideration. His submissions regarding the appointments of the direct appointees while the promotees were in the post of Sub-Assistant Engineer (Civil) has no substance in the sense that the promotees were deprived of their right to be considered for the post of Assistant Engineer (Civil) at that material point of time.

In the matter of Govind Dattatray Kelkar (supra), the question of constitutional validity of appointment in the post of Assistant Controller of Imports and Exports was examined on the basis of the facts and circumstances of that case. So, the above decision does not help the direct appointees. In the case of Rabindranath Bose (supra), the maintainability of a petition under Article 32 of the Constitution of India in the matter of pre-constitutional appointment was examined. It has no manner of application in these cases. In the matter of Malcom Lawrence Cecil D''Souza (supra), the seniority list of Addl. Commissioner of Income Tax was under challenge. The delay in initiating the proceeding was examined in the above case. But in these cases, there was no inordinate delay in filing the cases. The decisions of Narender Chadha (supra), C.K. Antony (supra), Ashwani Kumar Singh (supra), S.K. Goel (supra), Nani Sha (supra), R.K. Mobisana Singh (supra), M.P. Palanisamy (supra) and H.S. Vankani (supra) have no manner of application in these cases in view of the distinguishable facts and circumstances of the cases.

Therefore, the decision-making process of the respondent-authority in filling up the vacancies for the post of Assistant Engineer (Civil) during the period from July 15, 1996 to July 15, 1998 upto the extent pointed out hereinabove cannot be sustained in law.

But in the event the appointments made by way of direct recruitment in excess of the vacancies available in accordance with law during the periods under reference in respect of the post of Assistant Engineer (Civil) are set aside, there would be a complete disruption in the positions and posting of persons appointed as far back as in the period from July 15, 1996 to July 15, 1998 who are now occupying not only the post of Assistant Engineer (Civil) but the posts of Executive Engineer (Civil) and Deputy Chief Engineer (Civil) under the respondent Corporation. The same would be the position if vacancies for the post under reference for the subsequent years are recalculated and the initial posting given to large number of persons during these years are disturbed. Therefore, justice would be subserved if direction is given to the respondent Corporation to refix the seniority of the promotees in accordance with law notionally from the stage of their appointment on promotion in the post of Assistant Engineer (Civil).

I, therefore, direct the respondent Corporation to refix the seniority of the promotees/writ petitioners in W.P. No. 21394 (W) of 2000 notionally above the person who was appointed against the ninth vacancy for the post of Assistant Engineer (Civil) by way of direct recruitment during the period from July 15, 1996 to July 15, 1998 and to act on such seniority for all purpose in future.

The Writ Petition No. 21394 (W) of 2000 is disposed of accordingly.

The Writ Petition No. 936 of 2003 and the applications made therein are also disposed of. There will be, however, no order as costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.