Ranjit Halder vs State of West Bengal and Others

Ashim Kumar Banerjee, J.—Ranjit Halder (the appellant), C.S.Dutta (respondent No.8), Pijush Ranjan Pal (added respondent and Santi Priya Brahmba (added respondent were all appointed as Executive Engineer (Mechanical) as direct recruit. Ranjit joined on March 4, 1982; C. S. Dutta joined on April 12,1973; Pijush Ranjan Pal joined on January 15, 1981 and Santi Priya Brambha joined on April 27, 1982. They were, however placed in the gradation list considering their merit as found out in the selection process. Ranjit was a schedule caste candidate whereas the other three persons were general candidate. The other three persons were placed above Ranjit. In 1993 gradation list was published where Brambha was placed at serial No.4 whereas Ranjit was placed at serial No. 5. One Kisholoy Mitra was in serial No. 6. He challenged the gradation list. The controversy was ultimately resolved in an appeal before the Division Bench of this Court being Appeal No. 636 of 1993 where the Court of Appeal determined the respective seniority. Brambha was placed in serial No. 4, Kisholoy was placed in serial No. 5 and Ranjit was placed in serial No. 6. That revised gradation list prepared as per the order of the Court of Appeal was not challenged by Ranjit. As a schedule caste candidate Ranjit superceded all three general candidates referred to above while he was promoted to the post of Superintending Engineer (Mechanical) in 1996. Ranjit was not satisfied as according to him he should have been given retrospective promotion from 1995. All the said three general candidates were subsequently promoted to the post of Superintending Engineer. In 2004 the department published a revised combined gradation list wherein Brambha was placed in serial No.2 and Ranjit in serial No.4. Ranjit again challenged the gradation list before the Tribunal. He was not successful in obtaining the order of stay. He approached this Court. The High Court passed an interim order giving liberty to the Government to give adhoc appointment to the post of Additional Chief Engineer (Mechanical) considering the relevant seniority rules. During the pendency of this proceedings both Dutta and Pal retired. Pal was subsequently added as a party while he was in service, subsequently he retire. Brambha was then added as a party. Pal was added as a party before the Tribunal whereas Brambha was added by this Court in the instant proceeding.

The Tribunal after considering the rival contentions summerised the grievances of the writ petitioners and dealt with the same in the paragraph quoted below :

"In a nutshell the case of the applicant shall fail substantially on the following grounds that (1) the applicant did not challenge the order passed by this Tribunal in OA-30/96 dated 25th March, 1997 and subsequently, order of CCP 30/97 dated 11.2.98. (2) The applicant did not challenge the order of regularisation of date of promotion i.e. 21.6.96 passed on 18.12.2000. (3) The applicant being a party to the proceeding of appeal 636/93 did not challenge either the order dated 7.12.93 or the revised gradation list dated 14.6.94. (4) The applicant tried to confuse the Court regarding non-existence of the post of Additional C.E. (Mech) to which private respondent No. 8 C.S.Datta was promoted vide order dated 7.2.2003 on the event of retirement of S. S.Sinha w.e.f. 31.12.2002 as Chief Engineer (Mech) which post was abolished and post of Additional C.E. (Mech) was revived. (S) The application is barred by the principle of constructive res judicata because matters under challenge being settled have been set at rest. (6) The promotion is to be granted as per the revised gradation list of Executive Engineers because all the three posts, namely E.E.SE. and Additional CE/CE constitute one service. The name of the applicant (sl. No. 6) is below to that of private respondent No. 8 (sl. No., 2) and additional respondent P. R. Paul (sl. No. 3). (7) The Court did not grant the specific prayer of the applicant ante dating his date of promotion to the post of SE. (Mech) w.e.f. 4.8.85 instead of 21.6 96."

Being aggrieved Ranjit approached this Court by filing the above writ petition. This writ petition has been kept pending before us for about five years. Various proceedings that were had including contempt proceedings we need not discuss in detail unless it is considered necessary hereinafter.

Mr. Lakshmi Kumar Gupta, learned senior counsel appearing in support of the application contended as follows:

(i) Ranjit initially claimed benefit of his promotion in the post of Superintending Engineer with retrospective effect from 1995. Such claim was rejected by the Tribunal. Mr. Gupta on instruction did not make any grievance on that score.

(ii) Since Dutta and Pal had been superannuated this Court should resolve the controversy with regard to the seniority of Brambha and Ranjit.

(iii) Ranjit accepted the gradation list in terms of the order of appeal wherein he was placed after Brambha. Once he superceded Brambha while getting promotion in the post of Superintending Engineer (Mechanical) he regained his seniority over Brambha as admittedly he was promoted as Superintending Engineer in 1996 whereas Brambha was promoted on September 2, 2003.

(iv) Brambha was wrongly placed above Ranjit in the gradation list for the post of Superintending Engineer (Mechanical) on the strength of an amended rule being Rule 5(5) which stood repealed by a subsequent notification dated May 2, 2004.

(v) Assuming Brambha was entitled to regain his seniority over Ranjit soon after his promotion as Superintending Engineer relying on Rule 5(5) such rule being contrary to the provisions of Article 16(4A) was ultra vires the Constitution. Hence, Ranjit must get seniority over Brambha in the gradation list prepared for the post of Superintending Engineer (Mechanical).

(vi) In view of his promotion in the post of Superintending Engineer (Mechanical) well ahead Brambha he was entitled to be considered irrespective of his caste status for the next post of Additional Chief Engineer (Mechanical) which is a single post.

In support of his contention Mr. Gupta relied on the two Apex Court decisions being in the case of U.P. Jal Nigam reported in All India Reporter, 1996, Supreme Court, Page 1661 and an unreported decision of the Apex Court in the case of Dev Dutt v. Union of India & Ors. (Civil Appeal No. 7631 of 2002 dated May 12, 2008) Mr. Gupta also distinguished the decision in the case o Ajit Singh and Others Vs. The State of Punjab and Others, by saying that the effect of the said decision was no longer a good law in view of the amendment of Article 16(4A).

Mr. Gupta lastly contended that in the changed situation the department be directed to restore his seniority. Mr. Gupta further contended that uptil date neither he was communicated any adverse remark by the management nor any down gradation was made in his confidential report so communicated to him. Hence, being senior most he was entitled to be promoted for the post of Additional Chief Engineer (Mechanical) and this Court should pass appropriate order in this regard.

Opposing the application Mr. Amal Baran Chatterjee, learned counsel appearing for Brambha contended that Brambha being the senior most incumbent in the Senior Engineering Service in terms of Clause 2(a) of the notification dated March 31, 1995 he was properly given promotion in the post of Additional Chief Engineer (Mechanical) which was, however, called back in view of a subsequent order passed in a contempt proceeding. Brambha already reached highest scale of pay in the Senior Engineering service as would appear from the order dated November 20, 2008 produced in Court by Mr. Chatterjee. Counter acting the argument of Mr. Gupta, Mr. Chatterjee contended that gradation list once prepared for the Senior Service of Engineers (mechanical) became final in terms of the order of the Court of appeal referred to above there could not be any modified seniority list for the post of Superintending Engineer. He also contended that since Ranjit and Brambha were direct recruit Rule 5 could not be applied in their case with regard to determination of seniority. Rule 4 was the appropriate rule to be considered wherein merit was the guiding factor for determination of seniority as had been held by the Division Bench in the earlier appeal which attained finality. Hence, Ranjit should not be permitted to reopen such issue after accepting the Division Bench decision in Appeal No. 636 of 1993.

We considered the rival contentions. Our analysis reveals as follows:

(i) Ranjit got the employment by virtue of his status as schedule caste candidate. He was a direct recruit in Senior Engineering Service. The gradation list prepared by the administration stood modified in terms of the order of the Court of Appeal. Ranjit accepted the same. In the modified gradation list Brambha was placed before Ranjit. Such position was accepted by Ranjit.

(ii) When Ranjit was appointed in the Senior Engineering Services his seniority was determined under Rule 4. However, when he was promoted to the post of Superintending Engineer his seniority was liable to be decided in terms of Rule 5.

(iii) Rule 5(5) was introduced in 2001 and remained operative until stood repealed by notification dated May 21, 2004. As per Rule 5(5) Brambha although got promotion subsequent to Ranjit, regained his seniority once he was promoted applying Rule 5(5).

Question thus remains whether Brambha was entitled to the benefit of Rule 5(5) once stood repealed.

Rule 5(5) was introduced in view of the decision in the case of Ajit Singh (supra). Five Judges'' Bench of the Apex Court in the said decision held as follows:

"It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a Court decides that in order only to remove hardship such roster point promotees are not to face reservations, - then it would, in our opinion be, necessary to hold - consistent with our interpretation of Articles 14 and 16(1) - that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while Courts can relieve immediate hardship arising our of a past illegality, Courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10.2.1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster point promotees shall have to be reviewed after 10.2.1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the ''prospectivity'' point in relation to Sabharwal."

If the proposition of law decided in Ajit Singh (supra) was made applicable coupled with Rule 5(5) Brambha would regain his seniority over Ranjit although he was promoted much after Ranjit.

If we narrow down the scope of controversy in the present case we have to examine the effect of Article 16 as amended by Constitution 85th Amendment Act, 2001. Article 16(4A) stood amended by the 85th amendment giving retrospective effect from June 17, 1995. Article 16(4A) as amended, inter alia, provides that in the matter of promotion with consequential seniority to any class or class of post in the service under the State in favour of Schedule Caste and Schedule Tribe the State was competent to make provision for reservation. The words "in the matter of promotion, with consequential seniority, to any class" was introduced by the 85th Amendment with retrospective effect. Clause 4A was introduced by the 77th amendment with effect from June 17, 1995. The said article was considered by the Apex Court in Ajit Singh (supra). The Apex Court in paragraph 8 observed as follows:

"We next come to the question whether Article 16(4) and Article 16(4A) guaranteed any fundamental right to reservation. It should be noted that both these Articles open with a non-obstante clause - "nothing in this Article shall prevent the State from making any provision for reservation...." There is a marked difference in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4A). There is no directive or command in Article 16(4) or Article 16(4A) as in Article 16(1). On the face of it, the above language in each of Articles 16(4) and 16(4A), is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in other cases right from 1963."

On a plain reading of Rule 5(5) it appears to us that such rule was introduced in the line of the observation of the Apex Court quoted supra. The Apex Court clearly observed that there was no directive or command either in Article 16(4) or Article 16(4A) unlike Article 16(1), Article 16(4) and Article 16(4A) are in the nature of enabling provision. Following the said principle we are of the opinion that when Brambha got promotion in the post of Superintending Engineer in 2003 when Rule 5(5) was very much in force he regained his seniority.

Question, however, remains as to what would be the effect of 85th amendment introduced in 2004 having retrospective effect from 1995. Mr. Gupta contended that but for such amendment coupled with repeal of Rule 5(5) Brambha lost his seniority and should have been placed after Ranjit as he got promotion much after Ranjit. We are unable to appreciate such logic. The Apex Court interpreted Article 16(4A) and found no mandate contained therein. Such Article was interpreted as an enabling provision. The State exercising such power introduced Rule 5(5) which was in force in 2003 when Brambha got promotion. Subsequent amendment having retrospective effect, in our view, cannot take away the status of Brambha in the seniority list. If we have to accept Mr. Gupta''s contention we would have to hold that upto 2004 Brambha should be considered as senior to Ranjit and after 2004 not only Brambha should be placed after Ranjit but also the benefit he got as senior to Ranjit prior to 2004 should be taken away from him. We are unable to accept such proposition. Once the seniority list was drawn as per the existing rule prevalent on the day when Brambha got promotion such benefit could not be taken away by repeal of Rule 5(5). The notification dated May 21,2004 by which sub-rule 5 was deleted was made effective with retrospective effect from October 18,2001. Such retrospective effect, in our view, could have any application in case of Brambha for the reasons stated above.

In the result the tribunal application fails and is hereby dismissed without any order as to costs.

There would be a stay of operation of this judgment and order for a period of six weeks from date.

Urgent xerox certified copy would be given to the parties, if applied for.

Prasenjit Mandal, J.

I agree.