Juthika Bhattacharya vs State of West Bengal and Others

Mohitosh Majumdar, J.—The writ petitioners pray for declaration that the Gradation List dated 2nd/16th May, 1.986 being Annexure K to the writ petition is bad, illegal, invalid, void ad-initio and has been made beyond its competence, jurisdiction and/or authority of and/or in violation of the provisions of Articles 309 and 311 of the Constitution of India and the said Gradation List ''being Annexure K to the writ petition is nonest in the eye of law and that the State Government be directed to regularise the services of the petitioners and that respondents be directed to regularise the services of the petitioner the post of Superintendent Manager belonging to the West Bengal Junior Social Welfare Service (hereinafter referred to as "the said service") and also to restore inter se seniority in the said cadre post and consequential promotions and further respondents be directed to cancel, rescind, withdraw and set aside the said provisional Gradation List being Anenxure K to the writ petition and respondents also be directed to forbear from giving effect to the said Gradation List or to finalise the said Gradation List. The grievances of the petitioners, therefore, are for restoration of inter se seniority in the said cadre post of the said service from the date of joining and regulatisation of service and consequential promotion and withdrawal of draft Gradation List dated May 2, and 16, 1988.

The petitioner no. 1 held the post of Superintendent to the cadre of the said service by Government Order No. 2392-SW/1E-113/76. dated June 3, 1377 which is a Gazetted Post with a direction to post her as the superintendent, Vidyasagar Balika Bhawan, Midnapore (hereinafter referred to as "the said Bhawan, Midnapore") from the date of joining the said post. On June 21, 1977 the petitioner joined the ''post of Superintendent of the said Bhawan, Midnapore belonging to the cadre of the said service. The petitioner thereafter on transfer was pasted as Manager of female Vagrants'' Home, Uttarpara, Hooghly (hereinafter referred to as "the said Home") under the Directorate of Vagrancy, West Bengal under the Department of Relief and Welfare (Welfare Branch), Government of West Bengal. Again she was transferred to Dhakuria Home. as the manager of New Vagrants'' Home, Dhakuria (hereinafter referred to as "the said Home, Dhakuria") where she is continuing in the said post till date.

The petitioner no. 1 was confirmed in the post of Assistant Superintendent with effect from November 12,1969 by Government Order no. 609-SWD/IED-20/76(pt) dated February 26, 1977. The petitioner no. 1 also was placed in the New/Intermediate Selection Grade Post by Government Order No. 6997/SWD dated August 20, 1979. The petitioner no. 2 initially started as a Teacher at the said Bhawan, Midnapore under the Directorate of Social Welfare Department of Relief and Welfare (Welfare Branch), Government of West Bengal on May 4, 1963. Thereafter, she was first promoted to-the post of Junior Social Worker in 1965 and thereafter, promoted to the post of Assiatant Superintendent in 1966. The petitioner no. 2 was confirmed in the non-Gazetted post of Assistant Superintendent with effect from June 3, 1971 by Government Order No. 609/SWD/IED--20/75(Pt) dated February 26, 1977.

The petitioner no. -3 similarly was -appointed as the Assistant Superintendent of the said Bhawan Midnapore by Government Order No. 365/1 (2)SWD dated February 6, 1977 and joined the said post on March 1, 1967. she was, thereafter, transferred from the said Bhawan to the said Home, Liluah as the Assistant Superintendent by Government Order No. 2935-SWD dated July 28, 1963. She was again transferred from the said Home, Liluah to District. Shelter Home, Burdwan hereinafter referred to as the said Home, Burdwan) as the Assistant Superintendent to work as Superintendent (Non-Gazetted Post) by Government Order No. 1566/ 1-SED dated June 20, 1972 and thereafter, she was transferred again to the said Home, Liluah as the Assistant Superintendent by Government Order No. 169/1(5)SWD dated January 20 1975.

Consequent upon the promotion to the post of Assistant Superintendent of child Development project Officer of the said Project belonging to the cadre of the said service at Titagarh I.C.D.S. Project by Government Order No. 2895-SW dated June 19, 1978, the petitioner joined the said post and vas transferred to Superintendent of Old and Infirm Political surfer''s Home, Garia (hereinafter referred to as "the said Home, Garia") by Government Order No. 12Q91-SW dated November 2-1, 1979. The petitioner no. 3 was. transferred a Manager of the said Home, Uttarpara, Hooghly by Government Order No. 2746-SW dated February 17, 1988 with a further direction to look after the Destitutes'' Home; Uttarpara, Hooghly with effect from February 8, 1988.

The petitioner no. 2 further was appointed as Child development Project Officer, Integrated Child Development Project, Bagnun--IC Howrah (hereinafter referred to as the "said Project") by Government Order No. 2895-SWD dated June 19, 1978 belonging to the cadre of the said Service. The petitioner after joining the post of Child Development Project Officer of the said Project was deputed to the National Institute of Public Co-operative and Child Development, New Delhi and completed the said post successfully and obtained certificate from the said Institute.

After serving Child Development Officer of the said Project, the petitioner no. 1 was. transferred to the said Home, Dhakuria as its Manager and continued to service there till July 17, 1980 when the petitioner no. 1 was transferred to the said Home, Uttarpara, Hooghly as Manager from July 18, 1980 to April 15, 1988. Then again, the petitioner was transferred to S.M.M. Home, Liluah (hereinafter referred to as "the said Home, Liluah") as its Superintendent and continued to hold the post till date.

The petitioner no. 2 was also accorded the New Inter-mediate Selection Grade post in the cadre of Assistant Superintendent by Government Order No. 6997-SWD dated August 20, 1979 like the petitioner no. 1.

Consequent upon the supersession of the petitioners by one Srimati Uma Sengupta who was junior to the petitioners In the non-gazetted post to the Assistant Superintendent, the petitioner was promoted to the Gazetted Post of Superintendent in the cadre of the said Service in June, 1977. The petitioners represented against such supersession for review, such review in case of the petitioners is made and the petitioner was promoted to the post of Lady Social Worker (Head Quarters), Directorate of Social Welfare, West Bengal by Government Order No. 2235-SWD dated October 8, 1977.

No adverse remark had never been communicated to the petitioners till this date. In the case of promotees to the cadre of the said service, there is a procedure to get their services regularised through the Public Service Commission, West Bengal before giving them further promotion. Such regularisation in case of the petitioners has not been done. Service of Sri Jagailal Sinha of. the said Department, junior to the petitioner no. 1 and Srunari Uma Sengupta who is also junior to the petitioner no. 2, have been regularised earlier and they have been given further promotions from the post of Superintendent belonging to the cadre of the said Service. The petitioners whose services were not regularised have thus been denied further promotions. The next promotional posts from the post of Superintendent/Manager/C.D.P.O. are District Programme/Social Welfare Officer, p.a. to the Director of Social Welfare, Special Officer-II, Assistant Director and Deputy Director. The regularisation of the post of Superintendent/Manageer/Child Development Project Officer renders incumbent holding the post eligible for promotion under the Department of Relief and Welfare (Welfare Branch), Government of West Bengal.

The further claim of the petitioners is that respondents are required to issue formal declaration making the petitioners permanent in the said post of Superintendent/manager, inasmuch as they are holding the said post for more than ten years without any delay: that the services of the petitioners ought to have been regularised for the ends of equity, justice and fair play inasmuch as they have been continuously serving for more than ten years without any interruption that the State Government should not allow such state of draft and uncertainty to continue for such a length of time in consideration of the services rendered by the petitioners though they have not been placed in the Gradation List and continuance officiation in the said post who were holding for about ten years is sought to be set at naught by respondents.

It is claimed and contended'' that the actions of respondents are arbitrary, illegal and discriminatory in character, that there is no rule in the Government service that a person serving under the Government remains in the permanent post of the cadre without regularisation for more than "ten years. Non-regularisation of service of the petitioners is arbitrary and unconstitutional, that the Gradation List published on May 2 and 16, 1988 being Annexure K to the writ petition by respondents no. 1 and 3 and non-inclusion of the names of the petitioners in the Gradation List although they are equally holding the said cadre post under to the said Rules are violative of the principles of natural justice. Objection of the petitioners to the Gradation List which ought to have been dealt with and/or disposed of by way of reply to the said objection letters requires answer thereto and the failure of respondents not to deal with the said objection implies that respondents, prefer to remain silent over their unwarranted action in not including the names of the petitioners in the Gradation List. The exclusion of the names of the petitioners in the facts of the case is wholly unauthorised and arbitrary.

Respondents filed two affidavits -in-opposition one is affirmed on November 15, 1988 and the other Ls affirmed on March 29, 1990 in answer to the application for injunction.

The stand of respondents as would appear from the said affidavit-in-opposition is, inter alia, presented hereunder.

The petitioner no. 1 was given appointment of, promotion as Superintendent of the said Bhawan, Midnapore (sic) ad-hoc basis subject to the approval of the Public service Commission (hereinafter referred to as the said Commission). That till this date her appointment as Superintendent under the said Service has not yet been approved by the said Commission, West Bengal since the petitioner no. 1 was not found suitable for the same.

That the petitioner no. 2 was confirmed in the post of Assistant Superintendent with effect from June 3, 1971 and was accorded the intermediate Selection Grade to the post in the cadre of the Assistant Superintendent as per order dated August 20, 1979. Mrs. Uma Sengupta has been promoted to the said service earlier than the petitioner no. 2 on the basis of the Government Policy. The promotion should be given on merit-cum-seniority. The petitioner no. 2 was given ad-hoc promotion to the post equivalent to the rank of Superintendent under the said service subject to the approval of the said Commission. The West Bengal. The petitioner no. 3 at the relevant time after his appointment as Assistant superintendent of the said Bhawan, Midnapore was appointed on promotion as Child development Project Officer of the said Project belonging to the cadre of the said Service being equivalent to the rank of the Superintendent with effect from June 21, 1973, till date she has not been found suitable for such approval of suitable for such approval on recommendation by the sara Commission, West Bengal. The said Commission has not recommended the suitability of the petitioners for appointment to the post of Superintendent. As regards, the appointments of Sri Jagailal Sinha and Srimati Uma sengupta the said Commission, West Bengal recommended their names and on such recommendation the Government have regularised their appointments. The Department have requested the said Commission for several times to agree to the proposal of the Government to regularise the ad-hoc promotion of the petitioners but the said Commission did not agree to the proposal of the Government. On the other hand, they advised the Government to revert them.

That the Gradation List is neither violative of Articles 14 and 16 of the Constitution of India, nor the same has been prepared contrary to the relevant Recruitment seniority Rules. The petitioners cannot claim themselves as equal to other incumbents who have been regularly appointed of the basis of the recommendation of the said Commission. The complaints of the petitioners have been duly examined by respondents and the petitioners could not cavil any action of respondents in any manner whatsoever.

During the pendency of the writ application, the application for Injunction was filed by the petitioner no. 1 for restraining the respondents from proceeding with the order of transfer or from taking any step with the order of transfer. During the pendency of the writ-application, Sri J. Ghosh, joint Secretary to the Government of West Bengal issued an order of transfer on February 1, 1990 transferring the applicant from her present place of posting to C.D.P.O., Hanskhali I.C.D.S. Project at Nadia. The petitioner asserted that the Memorandum dated August 8, 1979 issued by the Governor of West Bengal laying down the certain conditions, inter alia, to the effect that the transfer of the employees of the Health department in terms of Clause 12 of the said Memorandum are that if an employee is going to rtire within five years, he/she may be transferred to any other place subject to his/her choice and the said Memorandum is also applicable in the instant case as the Social Welfare department is also a limb of. the State Government. The applicant is due to retire from service within five years i.e. on January 31, 1995 and as such, she is not liable for. being transferred.

In those circumstances, the Court passed an order in the manner following : -

Mr. Bhudeb Bhattacharjee submits that the pending the determination of the main writ petition, the order of transfer shall be kept in abeyance, Affidavit-in-opposition filed by Mr. Bhattacharjee be kept on the record.

Respondents filed affidavit-in-opposition in answer to the application for injunction as stated above. The said affidavit-in-opposition states that Srimati Manjula Chatterjee had been transferred a Child Development Project Officer shortly C.D.P.O at Hanshkali I.C.D.S. Srimati Indrani Mitra had been posted as Superintendent of the said Home, Liluah, Howrah vide Srimati Majula Chatterjee, Srimati Indrani Mitra has already joined as superintendent of the said Home, Liluah and as such, the present application cannot claim that she is discharging her duties as Superintendent of the said Home, Liluah. One Srimati Sikha Ganguly would remain in her present place of posting i.e. at Howrah Homes until further orders. That the order of transfer is not liable for interference with by this Court as the cause of action is altogether different from the cause of action of the main writ petition.

The Learned Counsel appearing for the parties highlighted the points as are detailed above. Mr. Kashi Kanta Moitra duly assisted by Mr. saktinath Mukherjee the learned Advocates appearing for the petitioner and Mr Bhudeb Bhattacharjee, the learned Advocate appearing for respondents advanced their cogent submissions.

The central point which calls for determination by this Court, is whether the continuation of the service of the petitioners as Superintendent or Manager during all these years, without regularisation or approval by the "said Commission, West Bengal is valid and proper; whether the restoration of inter se seniority of the petitioner from the date of joining of service and consequential promotion arising therefrom is merited and whether the draft Gradation List dated 2nd/16th may, 1988 is legal and valid,

Mr. Moitra referred to the decisions in case of Narender Chanda and Others vs. Union of India and Others, reported in 1936 (2) SCC 157 . In. case of Ashok Gulati and Others Vs. B.S. Jain and Others, in support of the contention that the length of continuous officiation of the petitioner in the capacity, mentioned above cannot be ignored for the purpose of reckoning the seniority. The aforesaid period of officiation covers a span of more than a decade and cannot be otherwise forfeited by respondents on the ground that the petitioner could have been reverted to the original post.

Mr. Moitra further referred to the decision in case of G.C. Gupta and Others Vs. N.K. Pandey and Others, .

Mr. Bhudeb Bhattacharjee, the learned Advocate appearing for respondents althrough out mentioned that the approval of the appointment of the petitioner by the said Commission is a paramount factor which cannot be given a go-bye. The said Commission did not approve the appointment of the petitioner; rather it advised the respondents to revert the petitioner to the post in the fact-situation, the claim of the petitioner is wholly without substance inasmuch as they cannot straightway ask for their regularisation of service, restoration of inter se seniority and proper placement of the name in the Gradation List. In my view, the contention of Mi''. Bhattacharjee has much force in it.

The Supreme Court in case of Narender Chanda & Ors. vs. Union of India (supra) held in the manner following;-

If promotions or appointments are allowed to continue as such for a long years without being reverted or challenged, they should be deemed to have been regularised. It is farther held Chat it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all, particularly where the Government is endowed with the power to relax the rules to avoid unjust results. The Government was in need of their services and the petitioners have been holding these posts for long. It is not fair to say at this distance of time that the Government was only keeping them in their posts as a matter of grace. The. continuance of the promotees/petitioners is such a long period as held by the Supreme Court is a ground for treating the service regularised, the only just solution to this problem is to treat the petitioners as persons duly appointed to the service -with effect from the day on which they were promoted to the post.

The other decision in case of Ashok Gulati & Ors. vs. B.S. Jain & Ors (supra) is also appropriately cited. The principles laid down in Narender Chandha''s case are applicable squarely to the facts of the case on hand.

I am, therefore, not in a position to accept the contention of Mr. Bhattacharjee as is. recorded above. The Court should not overlook the decision in Narender Chandha''s case. In the aforesaid case, the officers were promoted although without following the procedure prescribed under the rules, but. they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16 of the Constitution of India. There is a considerable force in this view also Accoridngly, seniority cannot be determined on the sole test of confirmation or for other factors namely, the approval of the said Commission.

The affidavit-in-oppsotion itself furnishes a ground for accepting the plea of the petitioners that despite uninterrupted continuous officiation, the writ petitioners cannot be fastened with the level of ad-hoc employee of the petitioner should not suffer inglorious incertainties of adhocism.

The expression "ad-hoc" should not be read in such manner as to confer power upon the state to obtain service from an incumbent for decades together without service of the concerned, incumbent not being allowed to be regularised by the said Commission without any reason. This aspect in the light of the. paramount factor should be the ground for accpeting the contention of Mr. Moitra. In my view, the petitioners are entitled to be treated as permanent employee or otherwise the respondents should treat the service of the petitioners as regular by reason of his performance for more than 1/2 decades.

In those circumstances, the petitioners, in my view, rightly challenged the action of respondents as being violative of Articles 14 and 16 of the Constitution of India, in the facts and circumstances of this case, in asmuch as the continuation of the service of the petitioners in the capacity mentioned above for more then a decade and thereafter, not to treat their service as regular is an instance of inequitous approach of respondents. It is a clear, manifestation of arbitrariness and illegality. The petitioners, therefore, are entitled to be treated as regular employeed with the proper restoration of inter se seniority as also the inclusion of the names in the draft Gradation List.

The petitioners by virtue of continuous performance acquired the status of regular service and are eligible for attendant benefits. The Commission overlooked this aspect of the matter. The Commission, in my view, should have examined the matter objectively and approved their appointments. The petitioners should not have sustained inglorious uncertainties in their service career for no fault on their part. The approval of the appointment of the petitioners to the posts held by them cannot be kept pending in asmuchas they acquired the eligibility. The State Go merriment is required to take up the matter with the Commission for regularisation of the service of the petitioners. Accordingly, the writ petition succeeds. Respondents, are hereby directed to. regularise the service of the petitioners, and to restore the inter se seniority in the said cadre post and consequential promotions within twelve week after the reopen the court after long vacation. The order of transfer in my view, need not challenged by a separate writ, petition. The order of transfer was passed during the pendency of the present writ petition and the order of transfer by reason of the policy decision of the Government should not have been issued. Till the determination of the seniority of the petitioners, the order of transfer should not be passed. This order shall not prevent respondents from passing the order of transfer after objective examination of individual case. The order of transfer, if passed, should conform to the policy decision of the Government. The incumbent Who will retire'' within five years shall be posted at a place near her residence.