Calcutta High Court (Appellete Side)
Kolkata Municipal Corporation ... vs Chiranjib Roy & Ors on 31 March, 2022
Item No.3.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 31.03.2022.
DELIVERED ON:31.03.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
FMA 1089 OF 2021
WITH
I.A. NO.CAN 1 OF 2021
WITH
I.A. NO.CAN 2 OF 2021
KOLKATA MUNICIPAL CORPORATION AND ORS.
VERSUS
CHIRANJIB ROY & ORS.
Appearance:-
Mr. Alok Kumar Ghosh,
Mr. Arijit Dey .....for the appellants
Mr. Partha Sarathi Bhattacharyya, Sr. Adv.,
Mr. Pradyot Kumar Nandi,
Mr. Raju Bhattacharyya .. for respondent no.1.
Mr. Manas Kumar Kundu,
Mr. Sudip Sarkar ... for the State.
JUDGMENT
(Judgment of the Court was delivered by T.S.SIVAGNANAM, J.)
1. This intra-Court appeal at the instance of the Kolkata
Municipal Corporation and others is directed against the order
dated 1st July, 2020 in W.P. No.27875(W) of 2016 filed by the
first respondent herein. In the said writ petition, the first
respondent sought for issuance of writ of mandamus to consider
his representations dated 30th July, 2015 and 4th May, 2016 in
accordance with law and to give him seniority and other benefits
with effect from 18th July, 2000. The learned Single Bench by
the impugned order did not grant the reliefs sought for in the
writ petition taking note of the facts and circumstances of the
case, more particularly, the order passed in an earlier writ
petition filed by the first respondent in W.P. No.2003(W) of
2001 but directed the appellant / Municipal Corporation to treat
the service of the first respondent in the post of Junior
Assistant notionally with effect from the year 2000 and
accordingly, fixed his pension as well as related superannuation
benefits for regular disbursement on retirement. The
correctness of such a direction has been challenged before us by
the appellant / Municipal Corporation in this appeal.
2. We have elaborately heard Mr. Alok Kumar Ghosh, learned
counsel appearing for the appellant/Municipal Corporation and
Mr. Partha Sarathi Bhattacharyya, learned senior counsel
appearing for the respondent no.1 and carefully perused the
materials placed before us.
3. The following facts would be relevant for the purpose of
considering the correctness of the direction passed in the writ
petition. The earlier writ petition filed by the first
respondent in W.P. No.2003(W) of 2001 was expressing a grievance
against the appellant / Municipal Corporation in not appointing
the first respondent to the post of Junior Assistant in
scheduled caste category. The Court, after elaborately
considering the facts took note of Section 4(2) of the West
Bengal Schedules Castes and Scheduled Tribes (Reservation of
Vacancies in Service and Posts) Act, 1976 (hereinafter referred
to as "the Act") and held that in the event a scheduled caste
candidate qualifies to an unreserved category, then the reserved
quota can be availed of by the next successful candidate in such
reserved category. The first respondent's case was that he was
the next successful scheduled caste category candidate and was
entitled to be appointed in the reserved category.
4. The appellant / Municipal Corporation did not contest the
legal position and the same has been so recorded by the learned
Single Bench in the order dated 29 th June, 2012. At that stage, a
submission was made on behalf of the appellant / Municipal
Corporation that there are vacancies available to consider the
case of the first respondent for appointment in the scheduled
caste category without disturbing the appointment already made.
In this regard, written instructions were also placed before the
Court. Taking into considering the said stand taken by the
appellant / Municipal Corporation and noting that there are
vacancies because out of the panel of 11 candidates, only 5
posts were filled up in the year 2000, the Court was of the
opinion that the first respondent can be accommodated in one of
such vacancies as a scheduled caste candidate without disturbing
the appointment already made. Accordingly, a positive direction
was issued to the appellant / Municipal Corporation to appoint
the first respondent in the scheduled caste category in one of
the available vacant posts in the said cadre in accordance with
law after complying with the necessary formalities within a
period of eight weeks.
5. The first respondent accepted the order as such and in
terms of the directions issued therein, the appellant /
Municipal Corporation issued an order of appointment dated 30th
July, 2012 containing various conditions and more particularly,
that the appointment was purely temporary for a period of one
year during which period the first respondent will be on
probation of one year and thereafter his service will be made
permanent and confirmed after two years subject to satisfactory
service and fulfilling other criteria as required under the
service regulations.
6. The first respondent accepted the terms of appointment
without any demur and joined the post on the very same day.
The first respondent continued to work in the said post and in
the year 2016, the present writ petition was filed seeking for a
direction to consider his representations dated 30th July, 2015
and 4th May, 2016.
7. The learned Single Bench thus has accepted the fact that
since the direction issued in the earlier writ petition was
without disturbing the appointments of the five candidates, the
question of accommodating the first respondent with
retrospective effect from the year 2000 was not legally
feasible. However, taking note of the fact and more
particularly, that the appellant / Municipal Corporation did not
contest the legal position qua the effect of Section 4(2) of the
Act, thought it fit to direct the appellant / Municipal
Corporation to notionally give effect to the appointment of the
first respondent with effect from the year 2000 and accordingly,
fixed his pension and other related superannuation benefits.
The consequence of such a direction has to be looked into and
whether such a direction was permissible.
8. Admittedly, the first respondent was not appointed in the
year 2000. The five appointments made in the year 2000, were
not set aside and were left undisturbed. Thus, if the first
respondent is to be treated as to be notionally appointed from
the year 2000, there should not only be an existing vacancy but
the vacancy should have been filled up, which was not done as
only five vacancies out of panel of 11 vacancies were filled up.
The appellant / Municipal Corporation has given certain reasons
as to why 11 vacancies were not filled up largely due to the
financial constraints. Therefore, to notionally push back the
date of appointment of the first respondent to a date on which
he was not borne in the cadre is not permissible under service
jurisprudence.
9. As mentioned earlier, in the earlier writ petition though a
larger relief was sought for by the first respondent, the Court
though set down the legal position with regard to the effect of
Section 4(2) of the Act did not go into the correctness of the
five appointments, which were made in the year 2000 but took
note of the submission of the appellant / Municipal Corporation,
which was clearly in the nature of a concession and issued a
direction to appoint the first respondent in the scheduled caste
category in the available vacant post in said category in
accordance with law after complying with the necessary
formalities. Therefore, the direction issued was to act in
accordance with law, which has been done by the appellant /
Municipal Corporation by appointing him with effect from 2012.
10. Therefore, by way of second round of litigation, the first
respondent cannot seek to undo the effect of the appointments of
the five candidates, who were appointed in the year 2000, nor he
can seek to set the clock back to a position when he was not in
service of the appellant / Municipal Corporation.
11. Therefore, we are of the view that the direction issued by
the learned Single Bench to notionally grant benefits from the
year 2000 for the purpose of fixing the pensionary benefits does
not merit acceptance.
12. The problem now faced by the first respondent is that on
his retirement, he would not be eligible to get full pension in
terms of the circular dated July 10, 2009, which pertains to
revision of pensionary benefits of the employees of Kolkata
Municipal Corporation consequent on the Revision of Pay, 2009.
Clause A(ii) of the said circular states that linkage of full
pension of 33 years of qualifying service as per the Calcutta
Municipal Corporation Employees (Death cum Retirement Benefits)
Regulation, 1982 shall be dispensed with. It further states
that once an employee of the appellant / Municipal Corporation
has rendered a minimum qualifying service of 20 years, pension
shall be paid at 50% of the last basic pay drawn. For the
employees of Kolkata Municipal Corporation, who at the time of
retirement have rendered qualifying service of 10 years or more
but less than 20 years, proportionate reduction shall be made
while calculating the amount of pension. The first respondent
was appointed on 30th July, 2012. He has completed 10 years of
service in July, 2022 and would be completing 20 years of
service in July, 2032. The first respondent's date of
retirement is 31st October, 2031 as the first respondent would be
completing 60 years of service on 14th October, 2031. We find
that the first respondent has been relentlessly fighting a
battle for vindicating his rights having been a member of
margialised section of the society to whom benefit of this
special enactment has been extended by the Government.
13. Soon after the selection was done in the year 2000, the
first respondent has approached this Court and filed the writ
petition. However, the writ petition was disposed of only on
29th June, 2012 and was pending on the file of this Court.
Obviously, the first respondent cannot be blamed for the
pendency of the matter. Though, the first respondent has been
agitating his non-selection on legal grounds and such submission
found acceptance before the learned Single Bench while disposing
of the writ petition by order dated 29 th June, 2012, while
granting the relief, did not grant the full relief sought for by
the first respondent i.e. not disturbing the appointments of
those five candidates.
14. At that stage, the appellant / Municipal Corporation
offered to appoint the first respondent in an available vacancy
for scheduled caste category. This concession was taken note
of, placed on record and direction was issued to appoint him.
Even at that stage, the first respondent could have still
contested the matter stating that the reliefs sought for by him
in the writ petition should be granted. Presumably, having been
frustrated and on account of the long drawn litigation, he
accepted the appointment offered to him in the year 2012. It
would be relevant to mention that when the writ petition was
disposed of, the learned Single Bench took note of Section 4(2)
of the Act and found that the selection, which was done in the
year 2000 was in infraction of the said provision. The legal
position was not disputed by the appellant / Municipal
Corporation and it has been so recorded in the order dated 29th
June, 2012. If such be the case, this Court is of the
considered view that the first respondent should be dealt with
in a more reasonable manner.
15. It is true that after accepting the appointment in the year
2012 and after completing the period of probation in the year
2015, he submitted representations. Since representations were
not considered, he approached this Court and filed the second
writ petition.
16. In the earlier paragraphs of this judgment, we have held
that the direction issued by the learned Single Bench is not
permissible under law. Nevertheless, we find that the first
respondent has been put in a very disadvantageous position
inasmuch as his length of service will fall short of by about
nine months while calculating 20 years of service. Thus, we are
of the view that it is a fit case where the appellant /
Municipal Corporation should exercise its power and relax the
condition insofar as the first respondent is concerned so as to
declare that the first respondent would have the eligible
qualifying service of 20 years for the purpose of computation of
full pension in terms of regulations. We have held so taking
note of the peculiar facts and circumstances of the case and
also that the legal position, which was pointed out by the
learned Writ Court in the first round of litigation was accepted
by the appellant / Municipal Corporation.
17. Even at that stage, had the appellant / Municipal
Corporation did not make a concession to offer an appointment,
in all probabilities, the learned Writ Court would have allowed
the writ petition and quashed the appointments of those five
candidates. Therefore, the appellant / Municipal Corporation
cannot seek to take a benefit after having not complied with the
statutory provisions.
18. Therefore, we find that the case on hand is one of the
rarest of rare cases where the appellant / Municipal Corporation
should relax the condition regarding length of service of the
first respondent for the purpose of computation of 20 years of
service.
19. In the result, the writ appeal is allowed and the direction
issued by the learned Single Bench is set aside and we direct
the appellant / Municipal Corporation shall relax the shortfall
in the length of service of the first respondent while
calculating 20 years of services to enable the first respondent
to draw full pension in terms of the regulations.
20. This direction shall be complied with by the appellant /
Municipal Corporation within a period of three months from the
date of receipt of the server copy of this judgment and order
which however, shall take effect on the date when he attains 60
years. The decision shall be communicated to the first
respondent.
21. We make it clear that this direction has been issued taking
note of the peculiar facts and circumstances of the case and the
same should not to be treated as a precedent.
22. The appeal and the connected applications are disposed
of.
23. No costs.
24. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree.
(HIRANMAY BHATTACHARYYA, J)
NAREN/PALLAB(AR.C)
