Union Of India & Others vs Sri Kajal Chakraborty
2021 Latest Caselaw 5711 Cal

18.11.2021
Ct. no.04
rpan / 05
                                   WPCT 511 of 2013
                                 Union of India & Others
                                         - Versus -
                                  Sri Kajal Chakraborty


                   Mr. Aloke Banerjee,
                   Mr. Amal Kumar Datta
                                ... for the petitioners.


                   The present writ petition has been preferred by the

             Union of India and its functionaries praying for the

             following relief:

                        "A)      a Rule do issue        calling    upon the
                        respondent herein to show cause as to why the

judgment and order dated 21.06.2012 passed by the Learned Full Bench and also the judgment and order dated 10.07.2012 passed by the Learned Division Bench respectively in the mater being O.A. No.1627 of 2009 (Kajal chakraborty vs Union of India & Others) of the Learned Central Administrative Tribunal, Calcutta Bench, should not be set aside and/or quashed and call for records of the case and after pursuing the records and cause shown, if any, make the rules absolute by settling aside and/or quashing the said judgments and orders dated 21.06.2012 and 10.07.2012 passed in O.A. No.1627 of 2009 (Kajal Chakraborty -Vs- Union of India & Others) by the Learned Central Administrative Tribunal, Calcutta Bench be stayed."

Shorn of unnecessary details the facts are that the

respondent herein was initially appointed as peon

(Group - 'D') in the office of the National Sample Survey

Organization, Kolkata with effect from 1st June, 1972.

Thereafter, he was appointed as Lower Division Clerk (in

short, LDC) with effect from 16th March, 1978 vide memo

dated 5th June, 1977 and 14th March, 1978 against

direct recruitment quota through Limited Departmental

Competitive Examination (in short, LDC Examination).

Subsequent thereto, he was promoted as Upper Division

Clerk (in short, UDC) with effect from 12th July, 1995.

Upon completion of 24 years of service on 16th March,

2002, the respondent approached the department for

grant of second financial upgradation under Assured

Career Progression Scheme (in short, ACP Scheme)

inasmuch as he was not eligible to get the first financial

upgradation benefit with effect 9 th August, 1999 since he

was promoted as UDC with effect from 12 th July, 1995.

Such prayer of the respondent was refused by an order

dated 24th January, 2005, issued by the Deputy

Direction (Administration). Challenging the said order

the respondent preferred O.A. 1627 of 2009 primarily

placing reliance upon a judgment delivered by the

Hon'ble High Court, Delhi in the case of Bhim Singh &

Others - Vs. - High Court of Delhi & Others [Writ Petition

(Civil) No. 17332-34/06]. In the said case arguments

were advanced on behalf of the petitioners herein placing

reliance upon a judgment dated 7 th May, 2010 passed by

the learned Principal Bench of the learned Tribunal in

the case of Shambhu Prasad vs. Secretary, Ministry of

Statistics & Progamme Implementation. The said petition

was disposed of by an order dated 10 th February, 2011

referring two legal issues to a larger Bench.

Pursuant to such direction, the issues were

considered by the larger Bench and an order was passed

on 21st June, 2012 observing that the respondent's

appointment dated 14th March, 1978 to the post of LDC

cannot be termed as promotion and the order passed by

the learned Principal Bench in the case of Shambhu

Prasad (supra) does not reflect the correct proposition of

law. The matter was thereafter directed to be placed

before the learned Division Bench for appropriate orders.

Pursuant thereto, the matter was considered by the

learned Division Bench and an order was passed on 10 th

July, 2012 observing that the respondent is entitled to

the benefits of the ACP Scheme and the application was

disposed of directing that the respondent would be

entitled to all consequential benefits.

Mr. Banerjee, learned senior advocate appearing

for the petitioners argues that the impugned orders have

been passed misconstruing the provisions of paragraph

8 of the ACP Scheme, as clarified vide DOPT O.M. dated

10th February, 2000 wherein it has been specifically

stated that Group- 'D' employees, who become LDCs on

the basis of departmental examination, stand on a

different footing and their appointment shall be counted

as promotion for the purpose of ACP Scheme.

He contends that the judgment delivered in the

case of Bhim Singh (supra) is clearly distinguishable on

facts inasmuch as the petitioners therein, who were

initially appointed in Class - IV post, were subsequently

appointed to their respective post of Chauffeur, Dispatch

Van Driver and Dispatch Rider through open selection.

In the present case there was no such open selection.

The learned Tribunal failed to appreciate that there are

two types of selection in the concerned department and

the appointment to the post of LDC, reserved for 10%

vacancies through LDC Examination, cannot by the

farthest of imagination be construed to be a direct

recruitment.

Drawing the attention of this Court to the order

dated 10th July, 2012, Mr. Banerjee submits that the

same does not stand fortified with appropriate reasons

and is, thus, not sustainable in law.

The matter was last heard on 11th November, 2021

when Mr. Ghosh, learned advocate appeared on behalf of

the respondent and submitted that the appointment of

LDC under 10% quota of LDC Examination is in the

nature of direct recruitment and it does not partake the

character of 'promotion'. The language employed in the

orders dated 5th December, 1977 and 14th March, 1978

is unambiguous and specifically conveys that the

respondent was 'appointed' on 'direct recruitment basis'

and there was no element of seniority involved.

He further submitted that the ratio of the

judgment delivered in the case Bhim Singh (supra) is

clearly applicable to the facts of the present case. The

respondent has competed with others in the selection

process and such appointment is to be treated as direct

recruitment for the purpose of financial upgradation

under the ACP Scheme. The examination conducted was

also a common examination and was not confined to any

particular seniority unit.

We have heard the learned advocates appearing for

the respective parties and considered the materials on

record.

The learned tribunal in its order dated 21 st June,

2012 rightly discounted the argument, as advanced by

the petitioners herein placing reliance on the clarification

in paragraph 8 of the DOPT O.M. dated 10 th February,

2000 since such clarification was made, keeping in view

the model recruitment rules, which came into existence

in the year 2007 and not earlier and the same has no

relevance as its birth is posterior to that of the

respondent's appointment. The contents of the memo

dated 5th December, 2017 and 14th March, 1978 had

been rightly construed by the learned tribunal to come to

the conclusion that the respondent's appointment to the

post of LDC cannot be counted as promotion for the

purpose of financial upgradation under ACP Scheme. As

the reference was answered by the larger Bench in

favour of the respondent, the learned tribunal rightly

directed the petitioners to extend all consequential

benefits to the respondent by the order dated 10 th July,

2012.

Upon dealing with the factual issues, the learned

tribunal arrived at specific findings and we do not find

any error in the same. There is no wrong in the

approach of the learned tribunal and the decisions stand

fortified with appropriate reasons. The scope of judicial

review is very narrow and limited and such jurisdiction

should be exercised sparingly and only in appropriate

cases where the judicial conscience of the court dictates.

The orders also do not suffer from any jurisdictional

error warranting interference of this Court.

Accordingly, the writ petition, being WPCT 511 of

2013 is dismissed.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance

of all requisite formalities.

(Sugato Majumdar, J.) (Tapabrata Chakraborty, J.)