Tapan Kumar Dutta vs State of West Bengal and Others

S.P. Talukdar, J.—By filing the instant application under Article 226 of the Constitution the petitioner, Tapan Kumar Dutta, sought for direction upon the respondent authorities for not giving effect to the relevant Memo dated 25.6.2006 issued by the Deputy Secretary to the Government of West Bengal, Judicial Department.

Grievances of the writ petitioner may briefly be summed up as follows:

The petitioner was appointed as Typist-Copyist in the Copying Department by Memo No. 410/XIV-2 dated 22.1.1975 issued by the District Judge, Midnapur. The appointment letter was issued by the Judge-in-Charge, learned 3rd Court of Munsif, at Tamluk. Such appointment was on temporary basis. It was confirmed by the District Judge, Midnapur on 15.9.1976. The petitioner used to draw remuneration as piece rated temporary typist after his appointment on 22.1.1975 during the period from 24.1.1975 to 20th September, 1976.

Private respondent, being respondent No. 4 herein, was appointed on 11th April, 1975 as Typist-Copyist. The petitioner was confirmed in the post of Typist- Copyist on 23rd October, 1978 whereas the date of confirmation in service of the private respondent is 19th May, 1983. The Assistant Secretary, Judicial Department by Memo dated 14.10.2003 addressed to the District Judge, Midnapur, sought for certain particulars in connection with determination of seniority of the petitioner. In response to the said letter dated 14th Octoner, 2003, the District Judge, Paschim Midnapur, furnished necessary particulars and information as sought for by his reply dated 5th February, 2004. The petitioner was promoted with effect from 22nd June, 1989. A Gradation List of Typist Copyist/Typist-cum-Copyist was prepared by the establishment. The private respondent submitted a representation seeking modification of the said gradation list dated 10.7.1995 after about one year seven months of its publication. The then District judge, Midnapur by order dated 24.5.1996 placed the petitioner below the private respondent. A representation was accordingly submitted before the appropriate authority. In view of the order of the Government communicated under Memo No. 6806-J dated 15.7.1998, the District Judge passed an order dated 7.12.1998. Seniority of Tapan Kumar Dutta was restored and he was placed at No. 16 of the Combined List prepared by the office. The Assistant Secretary of the Judicial Department by letter dated 7th January, 1999 requested the District Judge, Midnapur to produce service books of both the petitioner as well as private respondent No. 4.

Relying upon a circular purportedly issued by the Judicial Department, Government of West Bengal regarding counting of service rendered by the Typist- Copyist attached to different courts and extra Mohories attached to the Registration Offices, as well as to the fact that continuous service in piece rated establishment will be counted as qualifying services, the petitioner sought to substantiate his claim of seniority. The dispute relating to seniority was finalized by the Government by Judicial Department letter No. 6806-J dated 15.7.1998 and on its basis, the District Judge restored the seniority by letter dated 7.12.1998. Subsequently to the utter surprise of the petitioner, it could be learnt that the Deputy Secretary, Judicial Department by his letter dated 26.5.2006 held the private respondent herein senior to the present writ petitioner.

A Gradation List was published by the authority on 21.12.1993. The private respondent approached for modification of the same. The petitioner was initially placed below the private respondent. Subsequently his seniority was restored as communicated by the Judicial Department letter dated 15.7.1998. In such backdrop, the sudden decision of the Deputy Secretary thereby putting the writ petitioner once again below the private respondent No. 4 and that too, without offering an opportunity of hearing, is arbitrary and illegal.

This had been done without giving regard to the relevant facts and materials.

In such circumstances, the petitioner approached this Court for quashing of the impugned decision dated 26.5.2006.

The respondent No. 4 contested the case by filing an affidavit-in-opposition. The material allegations made by the writ petitioner had been denied. The main contentions of the respondent No. 4 as reflected from the said affidavit-inopposition seems to be that by the impugned order dated 26.5.2006, the authority concerned just sought to undo a wrong. The respondent No. 4 claimed that he was appointed as Typist-cum-Copyist against a substantive post - permanent vacancy by the District Judge, Midnapore vide his establishment Order No. 17 dated 5.4.1975. He joined the service on 11.4.1975. His service book was opened on 24.7.1975. His service was confirmed on 19.5.1983 by establishment Order No. 153 dated 23.9.1986. He exercised option and thereby came under the regular salaried establishment vide establishment Order No. 59 dated 24/26.3.1980 in terms of Judicial Department''s Memo No. 6352(3)-J dated 12.3.1984. He accordingly complied with the terms of the G.O. No. 7191-F dated 23.10.1975, so far it related to the surrender of the share of the Government contribution towards his contributory fund along with interest thereon. The writ petitioner was appointed by Order No. 5 dated 24th January, 1975 and was attached to the Court of Munsif, at Tamluk on remuneration basis admissible as per rules. It was purely temporary in nature. It was not against any sanction post but as a temporary measure for liquidation of work. He was also retained during Civil Court vacation and his service was not an uninterrupted one. He jointed in the permanent post as Typist under the District Judge''s establishment Order No. 123 dated 15.9.1976 on and from 20th September, 1976. His service book was opened on 10.11.1976. The writ petitioner did not exercise any option. His service during the period from 24th January, 1975 to 20th September, 1976, thus, could not be said to be of any relevant consideration for the purpose of determination of seniority. By establishment Order No. 172 dated 3.9.1984, the service of the writ petitioner was regularized with effect from 12.4.1984 and was due to be confirmed three years after. The date of regularization of service of respondent No. 4 is 19.5.1980 whereas that of the writ petitioner is 12th April, 1984. Considering all these aspects and after giving reasonable opportunities to both the parties to represent their respective claims, the District Judge by order dated 24th May, 1996 restored the seniority of the respondent No. 4 over the writ petitioner. The gradation list as well as other relevant orders were modified accordingly. This was challenged by the writ petitioner by preferring an appeal. The Assistant Secretary, Judicial Department conveyed a decision dated 15th July, 1998 but it was based on erroneous date. A clarification was however, sent in this regard to the Secretary, Judicial Department, Government of West Bengal with reference to the said letter dated 15.7.1998. The respondent No. 4 preferred an appeal dated 4.1.1999 read with 10.2.1999. The District Judge sent a memorandum dated 970/IV-2 dated 1.2.2002 with his view and comparative statement of accounts.

In cancellation of the earlier order dated 15.7.1998, Judicial Department gave its final decision under memo dated 26.5.2006. The seniority of the respondent No. 4 was thus, restored. After getting such final order the respondent No. 4 submitted a representation on 20th July, 2006 to the District Judge, Purba Midnapur for refixation of his pay consequent upon such restoration of seniority. Though such decision was conveyed by the District Judge vide establishment Order No. 22 dated 15.7.1996, the present writ application was affirmed on 5th July, 2006. The respondent No. 4 in such circumstances prayed for dismissal of the writ application. The State-respondent virtually supported the stand taken by such private- respondent No. 4.

Mr. S. Giri, as learned Counsel for the writ petitioner, sough to assail the impugned order on the ground that such order was passed without giving the writ petitioner an opportunity of hearing. Referring to the decision in the case of Dr. S.N. Sharma v. Raja Balwant Singh College, Agra and Ors. reported in 1994(3) SLR 707, Mr. Giri submitted that there could be no scope for modifying the seniority list without giving the writ petitioner an opportunity of hearing. According to him, such seniority list is bad on the ground of violation of the rule of natural justice. Relying upon the decision in V.M. Radhakrishnan Nair and Ors. v. State of Kerala and Ors. reported in 1988(3) SLR 693, Mr. Giri argued that the authority concerned could have had no justification for reopening the issue relating to seniority after such a long time. Deriving inspiration from the decision in the case of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, , it was submitted by Mr. Giri that if the initial appointment is not made by following the procedure laid down by the Rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.

In the said decision, it was further held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The Apex Court observed that "the corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority." Referring to the decision in the case of The Direct Recruit Class-II Engineering Officers'' Association (Supra), the Apex Court of Ajit Kumar Rath v. State of Orissa and Ors. reported in AIR 2000 SC 85 held that where appointment is on ad hoc basis pending concurrence of Public Service Commission, such ad hoc service of the promotees need to be counted for purposes of seniority. The factual backdrop of the said case, however, is significantly different from the present case. It was essentially a clash of interest between the promotees officers'' on the one hand and the direct recruits, on the other.

Mr. Giri referred to the decision of the Apex Court in the case of Shri L. Chandrakishore Singh Vs. State of Manipur and Others, and contended that unless there is a contrary rule, service rendered on probation or on officiating appointment cannot be ignored. It was further submitted that grant of approval to the appointment made without following proscribed procedure, implies confirmation and relates back to the date on which appointment was made. The said decision does not however lend any support to the writ petitioner in the present case since the facts and circumstances are entirely different.

Ms. Majumdar, on behalf of the State-Respondent, brought it to the notice of the Court the writ petitioner did not choose to exercise option. He only came under the regular establishment in 1984 and as such, could not have had any basis for a claim of seniority over private-respondent No. 4.

Mr. Bandyopadhyay, as learned Counsel for the private-respondent No. 4, submitted that regularization with retrospective effect can confer other benefits but it cannot be of any assistance in reckoning seniority with retrospective effect. In this context, Mr. Bandyopadhyay, relied on the decision in the case of R. K. Mobisana Singh v. Kh. Temba Singh and Ors. reported in 2008 AIR SC 127. It was observed in the said case that when promotion is given only in the exigency of situation without following the Rules, the period cannot be counted towards seniority.

True, seniority although is not a fundamental right but there can be no dispute that it is a civil right.

Relying upon the decision in the case of M. Ramakotaiah and Ors. v. Union of India and Ors. reported in 2007(3) SLR 162, Mr. Bandyopadhyay on behalf of the Private-respondent submitted that seniority is required to be calculated from the date of regular employment. Services rendered before the date of regular appointment would not be counted for determining seniority.

In fact, the legal position is clear and unambiguous. The fact that the present writ petitioner worked as a piece rated Typist-Copyist, cannot lend any support to his claim of seniority. The determining factor is, of course, the date of appointment on regular basis.

After due consideration of the relevant facts and materials available on record this Court finds it difficult to appreciate the grievance raised on behalf of the writ petitioner. It cannot be said that the State-authority by its Order dated 26.5.2006 has acted in an irregular manner or the order so passed suffers from any infirmity. It cannot be said to be arbitrary, not does it suffer from any bias. It also cannot be said that the parties entangled in this long drawn out legal battle, which was fought at various stages before different forums were denied reasonable opportunity of hearing.

Thus, the action taken by the authorities by issuing the Order dated 25.6.2006 does not deserve any interference. The present application being W. P No. 16425 (W) of 2006 accordingly dismissed on contest. No order as to costs.

Xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.