Calcutta High Court
Utpal Mistry And Ors vs Kolkata Municipal Corporation & ... on 5 May, 2022
ORDER SHEET
IA No. GA/1/2021
In
WPO/582/2019
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
UTPAL MISTRY AND ORS.
Versus
KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Hearing concluded on: 06.04.2022
Judgment on: 05.05.2022
Appearance:
Mr. Haradhan Banerjee, Adv.
... for the petitioner
Mr. Ranajit Chatterjee, Adv.
... for the applicants in IA No. GA 1 of 2021
Mr. Asok Kr. Banerjee, Sr. Adv.
Mr. Alak Kr. Ghosh, Adv.
Mr. Arijit Dey, Adv.
... for KMC
Ms. Chaitali Bhattacharya, Adv.
Mr. Subhendu Roychoudhary, Adv.
... for the State of W.B.
SHAMPA SARKAR, J.:-
RE : IA No. GA/1/2021
1. GA 1 of 2021 is an application for addition of the applicants as
respondent no. 8 to 18, in the writ petition, WPO 582 of 2019.
2. The applicants were directly recruited as Assistant Engineers (Civil)
under Kolkata Municipal Corporation, on the basis of a recruitment process
conducted by the Municipal Service Commission in the year 1996 and 1997.
The writ petitioners Nos. 1, 2, 3 and 5 were also recruited as Assistant
Engineer (Civil) through the Municipal Service Commission in subsequent
years and they joined sometime in 1999. The writ petitioner no. 4 was
promoted as the Assistant Engineer civil from the post of Sub- Assistant
Engineer (Civil). He had joined the post of Sub-assistant engineer sometime in
2000.
3. The applicants were promoted to the post of Executive Engineer (Civil)
and thereafter were redesignated Deputy Chief Engineer (Civil) in terms of the
office order dated September 3, 2016, upon upgradation.
4. In the writ petition, the petitioners have, inter alia, challenged the order
of upgradation dated September 3, 2016, by which, the applicants and some
others were redesignated as Deputy Chief Engineer Civil and some financial
benefits attached to the post of Deputy Chief Engineer (Civil) were granted.
Such re-designation took place on the basis of the seniority of the executive
engineers as per the gradation list. The other prayers in the writ petition are for
grant of notional promotion to the writ petitioners in the post of Deputy Chief
Engineer (Civil) with retrospective effect, from November 2020 as per the office
order dated May 23, 2013. Such office order was issued by the Kolkata
Municipal Corporation (hereinafter referred to as KMC), in compliance with the
order dated May 15, 2013 passed by a Co-ordinate bench of this Court in WP
no. 21394 (W) of 2000. The main prayers in the writ petition are as follows:-
(b) A writ and or a writ in the nature of mandamus do issue
commanding concerned the cancel the respondents' authority and or
their men or agents or assigns to set aside or to withdraw or rescind or
cancel the decision dated 03.09.2016 and additional corrigendum
incorporated in the resolution dated 24.08.2016 restricting the
incumbents being Assistant Engineers appointed during July 1997 to
June 1998;
(c) To grant notional promotion to the petitioners with effect from
20.11.2010 as per office order dated 23.05.2013 to the post Deputy
Chief Engineer (Civil) with all financial benefits at par High Court's
judgement and at part with Tarun Kanti Ghosh, Dipankar Pal and 13
Others in terms of order dated 23.05.2013 being Annexure " P-6."
5. The memorandum dated September 3, 2016 had granted some benefits
to the applicants and prayers have been made in the writ petition for quashing
the same. The applicants state that when the prayers are directed against the
benefits allowed to them, the court must give them an opportunity of hearing,
before any order is passed in the writ petition in respect of the impugned
memorandum dated September 3, 2016. The applicants have a right to support
the office memorandum, which had favoured them with some service benefits.
6. It is further contended that KMC prepares a single gradation list in
respect of the cadre, and if prayer (b), is allowed, the same will result in
changing the position of the applicants in the gradation list. Even if the writ
petitioners and the applicants belong to different categories, namely, schedule
cast category and the general category respectively, any order passed in respect
of prayer (b) will cause substantial change in the position of the applicants in
the single gradation list maintained by the KMC.
7. Hence, on the above grounds, a prayer has been made for addition of the
applicants as parties to the proceeding.
8. Reliance has been placed in the matter of State of Rajasthan vs
Ucchab Lal Chhanwal reported in (2014) 1 SCC 1444, in order to
substantiate that in any service matter when inter se seniority is being
challenged, the persons who are likely to be affected by such proceeding, must
be added as necessary/ proper parties.
9. Mr. Haradhan Banerjee, learned advocate appearing on behalf of the writ
petitioners opposes such prayer for addition of parties and submits that this
was an attempt to enlarge the scope of the writ petition. Although, the writ
petitioners prayed for setting aside and/or cancellation or withdrawal of the
memorandum dated September 3, 2016, but, in effect, the writ petitioners have
prayed for restoration of the memorandum dated September 2, 2016. Such
memorandum dated September 2, 2016, if restored, the writ petitioners as also
the applicants would be given the benefit of re-designation and up gradation
with financial consequences, in the post of Deputy Chief Engineer (Civil). He
next submits that, the applicants will not be affected even if notional promotion
is given to the writ petitioners as the writ petitioners belong to the scheduled
caste category.
10. Mr. Haradhan Banerjee, further submits that the petitioners are the
dominus litus, and if the application for addition of parties is allowed, the same
will amount to enlarging the scope of the writ petition. The applicants should
not be allowed to agitate their cause, in the instant writ petition.
11. That the prayers in the writ petition, if allowed, would not cause any
prejudice to the applicants, but would grant the writ petitioners, their
legitimate dues.
12. Mr. Ashok Kumar Banerjee, Learned senior advocate appearing on the
behalf of the Kolkata Municipal Corporation, submits that the writ petition
being devoid of merit, is liable to be rejected. Thus the applicants need not be
added in such a frivolous litigation.
13. However, he submits that in the affidavit-in-opposition filed to the writ
petition, the corporation has specifically taken a point that the writ petition
should not be heard in the absence of the persons who have been granted the
benefit of the memorandum dated September 3, 2016. It has been further
contended by him that in the gradation list dated April 7, 2009, the applicants
have been placed above the writ petitioners. That any order in terms of prayer
(b) or (c) or both, would affect the service conditions of the applicants. He refers
to paragraph 6 of the affidavit in opposition filed by KMC to writ petition. In the
said paragraph, the corporation has taken a specific stand that the writ
petition must be dismissed for non joinder of necessary parties as the executive
engineers (Civil), who have been redesignated as Deputy Chief Engineer (Civil)
and whose names appear in the said office order dated September 3, 2016, are
proper parties.
14. Heard the learned advocates for the respective parties. Prayer (b) in the
writ petition, is for a direction upon the Kolkata Municipal Corporation to
withdraw, rescind or cancel the decision/memorandum dated September 3,
2016. The second prayer is to grant notional promotion to the writ petitioners
with effect from November 20, 2010 as per the office order dated May 23, 2013
to the post of Deputy Chief Engineer (Civil) with all financial benefits in terms
of the decision of the High court in the matter of Tarun Kanti Ghosh versus
Dipankar Pal and 13 others. Another prayer has been made with regard to
grant of future promotion to the post of the Deputy Chief Engineer (Civil)
and/or to the post of Director General (Civil) in the said establishment.
15. Although, the applicants have filed another writ petition challenging
some promotions given to some of the writ petitioners, the applicants have
submitted that, when the challenge in the instant writ petition is with regard to
an up gradation and consequential financial benefits given to the applicants,
such applicants must be added in the proceeding.
16. This court finds that there is a pleading for restoration of the
memorandum dated September 2, 2016, which shall allegedly grant the same
benefit to the applicants and also to the writ petitioners as submitted by the
writ petitioners, but the prayers in the writ petition, do not speak about any
such restoration of the office memorandum.
17. In the matter of Prabodh Verma & Ors. vs State of Uttar Pradesh &
Ors. reported in AIR 1985 SC 167, the Apex Court held that, the Court ought
not to decide a writ petition under Article 2226 of the Constitution without the
persons who would be vitally affected by its judgment being before it as
respondents.
18. It appears to the court, that when there is a prayer for quashing and/or
cancelling the office memorandum dated September 3, 2016, by which the
applicants have been granted re-designation upon upgradation with immediate
effect, while considering the prayer for quashing the said memorandum as
made in the writ petition, the beneficiaries of the said memorandum/office
order of the KMC, must be heard.
19. With regard to the other prayers for grant of the notional promotion to
the writ petitioners in terms of the order of the Hon'ble High Court, this court
finds that the gradation list would be substantially changed if the court orders
in favour of the writ petitioners. Thus the applicants who are in a higher
position in the gradation list may suffer prejudice and the gradation list is
disturbed and/or altered. They must be added to the proceeding.
20. Whether the scope of the writ petition would be enlarged by the addition
is not to be decided at this stage. Going by the prayers and cause of action in
the writ petition, this Court is of the opinion that for the ends of justice, the
applicants who are the beneficiaries of the memorandum dated September 3,
2016 and who have been placed higher than the writ petitioners in the
gradation list, must be added in this proceeding. The proceeding will be
restricted to the prayers and the pleadings in the writ petition, but adjudication
of such prayers should be made in the presence of the applicants. They are
proper parties and the writ petition should not be heard in their absence.
21. The applicants have a right to safe guard their interests which have
accrued from 2016 onwards.
22. IA No. GA 1 of 2021 allowed and accordingly disposed of.
23. Department is directed to amend the cause title of WPO. 582 of 2019 by
incorporating the applicants as the respondents no 8 to 18.
24. Copy of the amended writ petition be served upon Mr. Ranajit Chatterjee
learned advocate for the added respondents.
25. Affidavit in opposition to the writ petition shall be filed within four weeks
reply thereto within 2 weeks thereafter.
Liberty to mention the writ petition for hearing.
(SHAMPA SARKAR, J.)
