Indranath Chakrabarti vs Calcutta Metropolitan Development Authority

Susanta Chatterji, J.—The present writ petition was moved on January 22, 1985, and an interim order in terms of prayer (h) of the petition was passed staying the operation of the impugned order dated January 9, 1985, bearing reference No. 102/ CMDA/2E-25/73 (Pt. I). All affidavits are complete and as agreed by the learned Advocates for the parties, the writ petition is taken up for final disposal.

The Petitioner has prayed, inter alia, for an appropriate writ challenging the aforesaid impugned order dated January 9, 1985, and to command the Respondents to withdraw the same and/or not to act thereupon and for further mandatory order commanding the Respondents to allow the Petitioner to continue in the services of the Calcutta Metropolitan Development Authority as an Executive Engineer in the TPCS Sector or such other post that the Petitioner may be found entitled according to law.

It is stated in detail that the writ Petitioner was appointed as an Assistant Engineer (Civil) in the Department of the Executive Engineer, Waterworks Department, Corporation of Calcutta. On or about November 21, 1973, he was promoted to the post of Senior Asstt. Engineer, in the Project and Loan Department of the Chief Engineer of the Corporation. The said Project and Loan Department of the Corporation of Calcutta became known as CMDA cell since the Corporation of Calcutta was executing various projects and the said CMDA cell was subsequently discontinued and/or abandoned and the CMDA itself decided to carry on and execute such development projects through its own staff and under its supervision.

It is alleged that in 1973 the CMDA did not have sufficient number of engineers with adequate experiences to develop, formulate find execute the various projects and, in particular, the projects connected with water supply and sewerage and as a result whereof the various projects of CMDA connected therewith logged behind and. therefore, the CMDA wanted to recruit experienced personnel from other departments of the Government and other statutory bodies. Hence, a Circular No. 49 of 1973 issued by the Special Engineer, CMDA cell, Corporation of Calcutta, was circulated wherein it was slated that the services of officers and staff of CMDA cell. Corporation of Calcutta, be placed with the CMDA on foreign service terms and. therefore, it has become necessary to indicate individual willingness on the part of the officers and staff who will opt to be transferred to CMDA specifying the post for which such officer of staff has to give option. It was made clear in the said Circular that the intimation will have to be submitted to the Special Engineer. CMDA cell, on or before November 27, 1973, in duplicate, in the pro forma specified and, in case of those officers and staff who will fail to submit their option papers within the aforesaid date, it will be presumed that they are not willing to be considered for such transfer. In the said Circular, a list of posts with scales of pay upto the rank of Executive Engineer, as were existing in the CMDA was shown in an attached statement, It was further made clear that apart from the pay in the scale, staff will be entitled to draw allowances such as house rent, medical and D.A., as envisaged under the State Government Rules. Fixation of pay, where necessary, will also be made as per procedure of the State Government and deputation allowances will also be payable only where admissible according to the State Government Rules, as enumerated in the said Circular. It was further clearly pointed out that as the CMDA had not yet fixed pay scales for posts above those of Executive Engineers, the Special Engineer, Deputy Chief Engineer and Project Engineers, CMDA cell are requested to indicate if they are willing to be transferred to CMDA when in such cases the terms and conditions will be worked out individually. The officers and staff transferred to the CMDA will also be liable to be posted anywhere in the Calcutta Metropolitan District Area for works of CMDA. A copy of the said Circular is annexed to the writ petition as Annex. ''A''.

It is slated in the writ petition that, in view of and in response to the said Circular, the Petitioner indicated his willingness to be considered for the post of Executive Engineer of CMDA in the scale of pay of Rs. 825 - Rs. 1,475 subject to the terms and conditions specified in the Circular. Particulars of the then employment of the Petitioner were duly attached with the said indication. By letter dated December 21, 1973, the Petitioner further informed the Secretary, CMDA. that he had already given his option on December 3, 1973, for being transferred to the CMDA and requested accordingly on foreign service terms.

An order was made on December 28, 1973, by the Secretary. CMDA, appointing the Petitioner Indranalh Clukravarli as an Executive Engineer of CMDA on the terms and conditions of pay scale of Rs. 825 - Rs. 1,475 (efficiency bonus after 8th stage) on deputation with effect from the date on which the Petitioner assumes charge and until further order and on further terms and conditions as indicated in the said appointment letter, which is Annex. ''C'' to the writ petition.

Thereafter, by a communication dated September 11, 1976, the CMDA under the signature of its Director of Services and Deputy Secretary, the Petitioner was requested to let them know by October 15, 1976, whether he was agreeable to gel absorbed in the sen ices of the authority in the post of Executive Engineer earning on a pay scale of Rs. 825-50-875-60-1475 on certain terms and conditions as stipulated in the said communication. In the said letter of offer of absorption, there was indication of pay, allowances, contributory provident fund, group insurance claim, seniority and/or confirmation, leave and service conditions.

In response to the said offer letter, the Petitioner has staled in writing that he is agreeable to get absorbed in the services of the CMDA in the post of Executive Engineer in the pay scale as mentioned. He has stated further that all other terms and conditions in the said offer letter are accepted.

Another communication was issued on March 18, 1977, from the Technical Adviser of CMDA that the CMDA Directors were requested to suggest the names of those Executive Engineers who are on deputation who can be sent back to their parent departments possibly after the close of the work season. The Petitioner had then drawn the attention of the Directors, CMDA, that the Petitioner had already expressed his willingness to get absorbed in the services of the CMDA as Executive Engineer in the terms and conditions as mentioned in the letter dated October 13, 1976. and further requested the authority to let him know of their decision at an early date.

Subsequently, the Petitioner has also written a letter to the Chief Executive Officer of the CMDA on February 27. 1982. asking him not to send his P.F. contribution to the Calcutta Corporation any further as he has been deemed to have been absorbed in the C.M.D.A. and in this process, the Petitioner served for more than 8 years.

Further, in December 1982. the Petitioner was informed by the then Administrative Officer of the CMDA by a letter to the Director. TPC system. CMDA that the names of willing employees to be repatriated back to the Calcutta Corporation may be obtained and furnished at an earlier date, hereafter, from the Composition Authorities a communication was sent to the Deputy Secretary, Establishment, CMDA, that the cases of the employees who were temporarily recruited from outside the CMDA cell and who did not acquire any lien in the post before thicir transfer to the CMDA along with their work are being examined separately.

There was a chain of correspondence between the Petitioner and the CMDA and it was made clear that there was no question of repatriation of the Petitioner since he has given an option to remain at the CMDA and, in fact, there cannot be any deviation from the said absorption.

Ultimately, the impugned order dated January 9. 1985. was issued by the Chief Executive Officer. CMDA. placing on record that the services of the writ Petitioner Shri Indranath Chakrabarti since employed as Executive Engineer. T.P.C.S. Section. CMDA. has been replaced at the disposal of the parent office at the Calcutta Municipal Corporation with effect from the date of his release.

Being aggrieved by the said impugned order, the Petitioner has come up with the present writ petition seeking reliefs as indicated already alleging, inter alia, that the steps taken by the Respondents authorities to repatriate him to the parent employment of Calcutta Municipal Corporation are contrary to and in contravention of the provisions of law. Besides, the acts done and/or caused to have been done are prejudicial to the interests of the Petitioner and the impugned order has been challenged on the grounds that pursuant to the request made by the Respondents in their letter dated September 11, 1976. whether the Petitioner was agreeable to be absorbed in the services of the CMDA in the post of Executive Engineer, the Petitioner has accepted the same unequivocally and without any reservation by letter dated October 13. 1976. Since thereafter, the Petitioner was allowed to work as such Chief Engineer for more than 8 years and. in the meantime, the Petitioner has ascertained that the gradation list has been made in Calcutta Municipal Corporation and the Engineers who were juniors to the Petitioner in the said gradation list have been promoted and given seniority over and above the Petitioner in the Calcutta Corporation as the service of the Petitioner has already been absorbed in the service of the CMDA.

The main grievance of the Petitioner is that regard being had to the facts and circumstances and background of the case and in view of the clear offer given by the CMDA authorities to the Petitioner to accept their terms and conditions and to be absorbed in the post of Chief Engineer and such offer being accepted by the Petitioner and thereby the agreement, if any, being acted upon for long over 9 years, the writ Petitioner has undergone a substantial change in the position of his working life by specific promises, assurances, and such position being demonstrated esxpressly or impliedly, the Petitioner cannot be treated on deputation on foreign service under the Service Regulations of the Calcutta Municipal Corporation and the repatriation as sought to be done is wholly unwarranted and uncalled for.

The writ petition is contested by the CMDA authorities by filing affidavit-in-opposition wherein it is disclosed that the Petitioner came to CMDA under a duputation term and he is in foreign service, and unless there is specific appointment given by the CMDA indicating express absorption, the Petitioner has no locus standi to claim to be absorbed and he has no right to come to the writ Court seeking the reliefs prayed for in the present writ petition. Other allegations and contentions of the writ petition have also been controverted, but the chain of correspondence and the documents as annexed to the writ petition are not disputed nor refuted by the CMDA authorities. The Petitioner has also filed a reply reiterating the stands taken in the writ petition.

Mr. Goulam Chakraborty, the learned Counsel, assisted by Mr. Pradip Kr. Ghosh, learned Counsel appearing for Petitioner have taken this Court in detail to the averments in the writ petition as well as several documents, letters, circulars, and communication annexed to the writ petition. It has been highlighted that the Petitioner has unequivocally accepted the terms and conditions given by the CMDA for absorption. The Petitioner has accepted the terms and the offer without any reservation, and/ or accepted the same unconditionaly, and thereafter, being permitted to serve the CMDA in the capacity of Chief Engineer for long 9 years, there cannot be any question of repatriation in the manner as sought to be done in the instant case.

According to the learned Counsel for the Petitioner, the facts are clear enough to draw the principle of promissory estoppel and besides the question of foreign service keeping the lien with the Corporation authorities docs not arise. They have also drawn the Court''s attention to a case in Balaichand Manna v. Calcutta Municipal Development Authority and Ors. 1988 (1) C.LJ. 493 Mr. Chakraborty. learned Advocate, Iras submitted that although the writ petition was dismissed in the abovemenlioncd case, the principle propounded by the Hon''ble Court verily can be accepted in the facts and circumstances of the present case. The question of promissory estoppel and the response given by the Petitioner by the counteroffer and the change of position and of service can well be appreciated and there is no bar and/or impediment to grant the reliefs prayed for by the Petitioner.

Mr. Panja, learned Advocate for the CMDA, has strongly and strenuously argued that the Petitioner has no locus standi and the claim for absorption is wholly unwarranted and uncalled for. He has drawn the Court''s attention to Service Regulations for employees other than those referred to in Section 76(1) of the Calcutta Municipal Corporation Act or letters of posting carrying on a minimum salary of Rs. 1,500 per month and above and in partcular to Rule 63 as to the scope of the employment in foreign service.

It is brought to the notice of the Court that an employee of the Calcutta Municipal Corporation going on deputation in foreign service can be recalled back at any time notwithstanding the fact that he has served in foreign service for a number of years. In the present case, the Petitioner may be treated as in foreign service with the CMDA and, if recalled back, he cannot come to the writ Court to seek reliefs in the manner as done in the instant writ petition.

Mr. Panja, learned Advocate, has also drawn the Court''s attention to the decision in Calcutta Metropolitan Development Authority and Ors. v. Kishori Mohan Bose and Ors. 1982 (2) C.H.N. 17 He has referred to paras. 30 and 31 of the said decision that the absoption of deputationists shall have to be made in accordance with Reg. II of the Recruitment Regulations as may be recommended by the Selection Committee to be set up by the CMDA. By any offer or by any alleged acceptance, the Petitioner cannot avoid the Regulation concerned and cannot claim for absorption to any office when the Selection Committee is to be formed in accordance with law and without the recommendation of the Selection Committee, the Petitioner cannot be absorbed and in the absence of any specific letter of appointment issued by the CMDA, no absorption can be inferred and the Petitioner cannot come up to the writ Court in a circuitous way to circumvent the provisons of law.

Attention of the Court has also been drawn to a decision in Moniappa Naidu v. State of Karnataka 1976 L.I.C 1119 (C). The relevant paragraphs therein are paras. 2, 6 and 8 as stressed by the learned Advocate for the CMDA. It has been submitted that as long as the Petitioner has not acquired the right to a post in the regular service of the Calcutta Municipal Corporation, it is open to the said Corporation to withdraw his service from the Corporation and the Corporation is entitled to repatriate his services, the ratio of the said decision is very much applicable to the facts and circumstances of the present case and the present writ petition has no merit of its own as submitted.

With great anxieties, this Court has gone through the facts and circumstances of the present case and patiently has considered all the pros and cons of the submissions by the learned Advocates for the parties, Upon perusal of the materials on record, this Court is of the view that admittedly the Petitioner was in the employment of the Calcutta Municipal Authorities, While the CMDA cell was abolished and the CMDA had taken up various projects there was clear intention to recruit their own men and staff. Under such circumstances, the Petitioner had pressed his option in terms of the relevant Circular No. 49 of 1973. Subsequently, the changed circumstances enabled the CMDA to give clear offer to the Petitioner for absorption and the Petitioner accepted that. Once the offer is given on terms and is accepted unequivocally, the question of further selection does not arise. The Regulation in question is not violated. Rather it must be presumed that after scrutiny of the facts and the suitability of the Petitioner being found, the offer was made. Once the offer was made and there was acceptance therof, the selection was complete. There is no further selection to be made nor any other appointment letter is required. This aspect and process has been extended and extenuated further by permitting the Petitioner to act for more than 8 (eight) years in the capacity of Executive Engineer. This is more than promise and assurance. This fact of 8 years service as Executive Engineer firmly establishes the accepance by the CMDA of the Petitioner''s acceptance of offer. In view of the same, the case of promissory estoppel is more than firmly established and. besides all other ingredients, it is clear by the fact that for all practical purposes, the Petitioner''s service was accepted and he was absorbed in due course of law. Any subsequent step for repatriation without the consent of the Petitioner is wholly irregular and illegal. The impugned order, in view of this Court, is an abuse of process of law and cannot be sustained.

For the foregoing reasons, this Court finds that the Petitioner is entitled to the reliefs as prayed for in the writ petition. The writ petition succeeds and the impugned order is quashed. It is made clear that the Petitioner is entitled to all the benefits as being absorbed in the post of Executive Engineer from the date of acceptance of the offer of the CMDA, as accepted by the Petitioner, in accordance with law.

There will be no order as to costs.

Let Xerox copy of the order, authenticated by the Deputy Registrar (Court), be given to the learned Advocate for the Petitioner.