Sri Goutam Ghosh & Ors vs Kolkata Metropolitan ...
2022 Latest Caselaw 1453 Cal

Form No. J(2)

             IN THE HIGH COURT AT CALCUTTA
            CONSTITUTIONAL WRIT JURISDICTION
                     APPELLATE SIDE


Present:
The Hon'ble Justice Saugata Bhattacharyya

                        W.P.A. 3789 of 2019


                      Sri Goutam Ghosh & Ors.
                                -vs-
Kolkata Metropolitan Development Authority (KMDA) & Ors.


For the Petitioners          : Mr. Tulsidas Ray,
                               Mr. Tirthankar Ray

For the Respondent

Nos.5 to 19 & 21 to 29       : Mr. Arup Kumar Lahiri,
                               Mr. Udayan Dutta

For the KMDA                 : Mr. Satyajit Talukdar,
                               Mr. Abhisek Sarkar

For the State                : Mr. Narayan Chandra Bhandari,
                               Ms. Sujata Ghosh



Heard on: 24.03.2022

Judgment on: 24.03.2022

Saugata Bhattacharyya, J.:

Writ petitioners have approached this Court with this

writ petition seeking benefit of promotion which has been

extended to 25 Accounts Assistants as described in order

dated 8th January, 2019 with effect from 1st January, 2019.

Mr. Tulsidas Roy, learned advocate appears on behalf of

the writ petitioners and submits that the writ petitioners were

appointed on compassionate ground on different dates

starting from 30th September, 2009 and the last appointment

was made in favour of the writ petitioner on 10th August,

2012. The dates of appointment of the writ petitioners have

been delineated in paragraph 2 of the writ petition and in

addition thereto the appointment letters have been annexed

to this writ petition from page 21 up to page 38. On perusal

of this writ petition it appears and it has also been contended

on behalf of the writ petitioners that they were appointed in

the posts of Accounts Assistant in the Pay Band of Rs. 7100-

37600/-(PB-3) with a grade pay of Rs. 3,600/- corresponding

to unrevised scale of pay of Rs. 4000-8850/-. It has further

been submitted that though under the heading 'Sub' (sic) in

the appointment letter the appointment of the petitioners was

described as appointment in Group "C" but on mere reading

of contents of the appointment letters it goes to show that

they were appointed in the posts of Accounts Assistant with

grade pay of Rs. 3,600/- which is applicable for an entrant in

Group-B cadre not in Group-C cadre. Since petitioners were

appointed on probation for two years which could have been

extended for another one year, subsequently the appointment

of the petitioners got confirmed vide order dated 16th July,

2012 issued by the Secretary Kolkata Metropolitan

Development Authority (for short "KMDA"). One list

containing names of candidates is also attached to such

order of confirmation dated 16th July, 2012 wherefrom it

appears that five (5) writ petitioners have been confirmed on

the dates as indicated against their names and the

candidates who were last confirmed was on 9th April, 2012.

Subsequently by another order dated 19th March, 2013

Secretary of KMDA confirmed two of the writ petitioners with

effect from 13th July, 2012. It is submitted on behalf of the

petitioners that vide order dated 8th January, 2019, (25)

twenty five Accounts Assistants were promoted to the post of

senior Accounts Assistants with effect from 1st January, 2019

and according to the petitioners all these twenty five (25)

Accounts Assistants are juniors to the writ petitioners in

consideration of the respective dates of appointment of the

writ petitioners in the posts of Accounts Assistant. In this

regard statement has been made in paragraph 12 of the writ

petition wherein it has been specifically stated that two

Accounts Assistants namely Amalendu Bikash Mallick, being

the respondent no.8, and Smt. Gopa Som, being the

respondent no.6, were appointed as Accounts Assistants on

14th August, 2012 and other private respondents were

appointed long after the appointment of the writ petitioners in

the said post of Accounts Assistant. It is the specific

contention of the petitioners that since they are equally

placed and is working as Accounts Assistants at the material

point of time like the private respondents therefore ignoring

their seniority the private respondents should not have been

promoted to the posts of senior Accounts Assistant.

Mr. Satyajit Talukdar, learned advocate, appears on

behalf of KMDA being the principal respondent and has

submitted upon placing reliance on the appointment letter

issued in favour of the writ petitioners that though the writ

petitioners were appointed as Accounts Assistants which is

Group-B post and granted grade pay of Rs. 3,600/- which is

applicable to the employees who are holding Group-B post

but petitioners should have been appointed in the posts

classified under Group-C. That being the position, in the

appointment letter under 'Sub' (sic) it has been specified that

appointment of the petitioners were made in the base level

that is Group-C. It is also the contention of the KMDA that

the mistake which occurred at the time of appointment of the

petitioners needs to be rectified. It is stated that on behalf of

the KMDA a letter dated 2nd March, 2017 has been sent to

the Special Secretary to the Government of West Bengal,

Urban Development Department seeking clarification with

regard to the appointment of the writ petitioners as Accounts

Assistants who have been confirmed. However, it has been

submitted till date no clarification has been received by the

KMDA in response to such letter dated 2nd March, 2017. In

the same breath it has also been submitted on behalf of the

KMDA that in connection with the one candidate namely

Surajit Das, KMDA has received letter dated 2 nd February,

2015 from the Joint Secretary to the Government of West

Bengal whereby it has been clarified that the appointment of

Sri Das should have been corrected by appointing him in a

Group-C post and it has been further clarified specifically by

the Joint Secretary that such demotion from Group-B post to

Group-C post in respect of service of Sri Das can be made as

he was not confirmed at the relevant point of time.

Having heard the submission made on behalf of the

KMDA this Court posed question to Mr. Talukdar, learned

advocate, why steps could not be taken for making necessary

corrections with regard to appointment of the writ petitioners

at the time of their confirmation but this Court is unable to

get any satisfactory answer except the submission being

made that letter has been sent on 2nd March, 2017 to the

concerned authority of the State Government seeking

guidelines and clarification.

State respondents are represented by Mrs. Sujata

Ghose, learned advocate. The State respondents have not

filed any affidavit controverting the averments made by the

writ petitioners in the present writ petition.

However, private respondents are represented by Mr.

Arup Kumar Lahiri, learned advocate, it is submitted that the

writ petitioners were wrongly appointed in the posts of

Accounts Assistant and the appropriate course which ought

to have been taken by the KMDA was to appoint them in

Group-C post. It has further been contended that now by

filing this writ petition petitioners are desperately trying to

take advantage of the mistake which has been committed by

KMDA while appointing them in Group-B post. Therefore,

according to the private respondents they are not similarly

placed like the writ petitioners since they are fresh entrants

in the Group-B cadre and they are required to be treated

separately and there is no anomaly in promoting them to the

higher post ignoring the seniority of the writ petitioners in the

cadre of Accounts Assistant.

This Court has heard the learned advocates

representing the parties and has perused the relevant

documents available on record. It is indisputable that the writ

petitioners excepting the petitioner no.8 were confirmed on

successfully completing probationary period in the posts of

Accounts Assistant by two separate orders of KMDA dated

16th July, 2012 and 19th March, 2013. It has also been found

from record and the pleadings that petitioner nos. 1 to 7 are

senior in the cadre of Accounts Assistant to the private

respondents. It further appears that Amalendu Bikash

Mallick, being the respondent no.8, and Smt.Gopa Som,

being the respondent no.6, were appointed in the posts of

Accounts Assistant on 14th August, 2012 which appears to be

after the date of confirmation of some of the petitioners.

This Court is at a loss how after placing two groups of

employees, who are appointed in the posts of Accounts

Assistant, on the same platform can be further classified

while giving benefit of promotion by promoting them from the

post of Accounts Assistant to the post of Senior Accounts

Assistant. It is trite law that after putting two groups of

employees on the same platform there can be no further

classification amongst the equals.

In this regard reliance is placed on judgment of the Apex

Court, reported in AIR 1999(SC) page 647 (State of Punjab &

Ors. -vs- Dr.R.N.Bhatnagar & Anr.), in paragraph 10 it has

been observed that "It is well settled that once recruitment is

made, from two sources i.e., departmental promotees and

direct recruitment from open market and once the concerned

candidates enter into any cadre through entry point reserved

for them, they get fused and blended into one single cadre

and their birth marks get obliterated".

Same view has also been reiterated by the Apex Court

in the judgment reported in (1999) 4SCC page 756

(Kamalakar & Ors.-vs- Union of India & Ors.) in paragraph

12.

KMDA during course of hearing of this writ petition has

not been able to impress upon this Court that on what basis

such classification has been made except the submission

being made to the extent that petitioners were appointed

under compassionate ground whereas private respondents

were appointed as new entrants. Therefore, this Court finds

there is no bar in giving promotion to the candidates who are

appointed on compassionate ground if they are found

otherwise eligible.

In the present case at the time of issuing promotional

order dated 8th January, 2019 indisputably writ petitioners

were senior in the cadre of Accounts Assistant to the private

respondents therefore before giving effect to the promotion of

the private respondents writ petitioners' case ought to have

been considered by the respondent authorities which has not

been done in the present case.

In the above conspectus this Court directs the concerned

authorities of KMDA to give the benefit of promotion to the

writ petitioners excepting writ petitioner no.8 from 1st

January, 2019 notionally and actual benefit to be accrued

from April, 2022 by promoting them to the posts of Senior

Accounts Assistant. The benefit of this order shall not be

extended to the writ petitioner no. 8 since till date he has not

been confirmed in the post of Accounts Assistant.

The above exercise shall be completed by the concerned

authority of KMDA within a period of eight (8) weeks from the

date of communication of this order.

With the above direction the writ petition stands

disposed of. However there shall be no order as to costs.

Urgent Photostat certified copy of the order, if applied

for, be given to the parties, upon usual undertakings.

( Saugata Bhattacharyya, J.)

123/Ct.15 BD