The High Court of Calcutta, while allowing a writ petition challenging the final gradation list of Assistant Engineers (Civil) published by the Kolkata Municipal Corporation dated 5th July 2021 wherein the petitioners were superseded by the promotees and directly recruited Assistant Engineers (Civil), held that if the appointment/promotion is made after a fair assessment of all eligible candidates and the appointee continues in the position without interruption until their service is regularized in accordance with established rules for regular substantive appointments, there is no justification to exclude their acting service when determining seniority.
Brief Facts:
The petitioners are Assistant Engineers (Civil) of KMC herein respondent no.1, having been promoted from the post of Sub-Assistant Engineers (civil). On January 25, 2019, a directive was issued by the Chief Manager (Personnel) on December 30, 2019, with the explicit approval of the Corporation. This directive explicitly stated that the matter of re-establishing the seniority ranking among the thirty-two individuals within the Gradation List of AE(C) commencing from July 6, 2012, has been deliberated upon and duly sanctioned. Thereafter, on 26th August 2021, 19th March 2021, 8th January 2020, and 26th August 2021, the petitioners were absorbed against the permanent vacancies in the post of AE(C) by orders issued from time to time respectively. However, on 4th March 2021 and 12th March 2021 two provisional gradation lists for AE(C) were published by respondent no.1 wherein the petitioners were suppressed by nine direct recruits of the year 2012-13. Therefore, aggrieved by such act of respondent no.1 the present petition has been preferred.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the respondent authorities have acted wrongfully and illegally in placing nine directly recruited individuals from the year 2012-13 in the seniority list for AE(C) as of 5th July 2021 superseding the petitioner. This inclusion contravenes the guidelines which stipulate that employees promoted in a specific year should be regarded as a collective senior group or in-bloc seniority, in comparison to the direct recruits of the same year.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the petitioners were absorbed in permanent/sanctioned posts long after the respondents herein who were directly recruited in the post of Assistant Engineer in the year 2012-2013 and are therefore the petitioners are junior to your respondents herein.
Observations of the court:
The court noted that the petitioners, in their capacity as holders of the "supernumerary post," are not to be considered as part of the ex-cadre post. It is crucial to note that the term "supernumerary post" holds a specific legal significance within the context of service jurisprudence. A supernumerary post, as per government instructions, is categorized as a permanent position.
The court observed that if the appointment/promotion is made after a fair assessment of all eligible candidates and the appointee continues in the position without interruption until their service is regularized in accordance with established rules for regular substantive appointments, there is no justification to exclude their acting service when determining seniority. When an officer has worked for a long period in a post and has never been reverted, it cannot be held that the officer's continuous officiation was a mere temporary or local or stop-gap arrangement even though the order of appointment may state so. In such circumstances, the entire period of officiation has to be counted for seniority. Any other view would be arbitrary and violative of Articles 14 and 16(1) of the Constitution because the temporary service in the post in question is not for a short period intended to meet some emergent or unforeseen circumstances.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that respondent no.1 is directed to recall the resolution adopted by the Board of Administrators of KMC at its meeting dated 29th June 2021 and quash the final gradation list of the AE(C) of KMC dated 5th July 2021.
Case Title: Prasenjit Ray & Ors. v. Kolkata Municipal Corporation & Ors.
Coram: Hon’ble Mr. Justice Rajarshi Bharadwaj
Case No.: W.P.O 1248 of 2022
Advocate for the Petitioner: Mr. R. Chatterjee
Advocate for the Respondent: Mr. Raghunath Chakraborty
Read Judgment @LatestLaws.com:
Picture Source :
