Sri Santanu Kumar Ghosh & Anr vs The Kolkata Municipal ...
2023 Latest Caselaw 875 Cal

                            IN THE HIGH COURT AT CALCUTTA
                              Constitutional Writ Jurisdiction
                                      Appellate Side

Present :- Hon'ble Justice Amrita Sinha

                                     WPA 6471 of 2019

                              Sri Santanu Kumar Ghosh & Anr.
                                            Vs.
                          The Kolkata Municipal Corporation & Ors.


For the writ petitioner                  :-    Mr. Surajit Samanta, Adv.
                                               Mr. Balai Lal Sahoo, Adv.
                                               Mr. Biswajit Samanta, Adv.

For the KMC                              :-    Mr. Alok Kumar Ghosh, Adv.
                                               Mr. Arijit Dey, Adv.

For the respondent nos. 5 to 19          :-    Mr. Sandip Kundu, Adv.

Hearing concluded on                     :-    13.01.2023

Judgment on                              :-    02.02.2023



Amrita Sinha, J.:-

The petitioners are serving as Deputy Chief Engineer (Civil) under the Kolkata

Municipal Corporation. They are aggrieved by the final modified gradation list

published by the Chief Manager (Personnel), Kolkata Municipal Corporation on 1st

March, 2017 for the post of Executive Engineer (Civil).

The petitioners applied for appointment to the post of Assistant Engineer (Civil)

and participated and qualified in the selection process against the 6th and 7th

vacancies in the year 1997. After appointment as Assistant Engineer (Civil) the

petitioners, in due course of time, got promoted to the post of Executive Engineer

(Civil) and thereafter Deputy Chief Engineer (Civil).

The petitioners contend that the gradation list was re-fixed allegedly in

accordance with the direction in the judgment passed by this Hon'ble Court on 15th

May, 2013 in WP No. 21394 (W) of 2000 (Ashok Kumar Guha & Ors. Vs. Calcutta

Municipal Corporation & Ors.).

It has been submitted that the re-fixation was done not in accordance with the

direction passed by the Court in the above writ petition, but contrary thereto.

The judgment dated 15th May, 2013 in Ashok Kumar Guha (supra) has been

relied upon in extenso to contend that the fixation was not in accordance with the

direction passed in the aforesaid matter.

It has been submitted that in Ashok Kumar Guha (supra) the Corporation was

directed to re-fix the seniority of the promotees/ writ petitioners notionally above the

person who was appointed against the 9th vacancy for the post of Assistant Engineer

(Civil) by way of direct recruitment during the period 15th July, 1996 to 15th July,

1998 and to act on such seniority for all purpose in future.

In Ashok Kumar Guha (supra) the Court recorded the names of the appointees

and promotees to the post of Assistant Engineer (Civil) during 16th July, 1996 to 15th

July, 1997. The name of the petitioners appears in the said list at serial no. 6 and 7

respectively.

The petitioners argue that as the Corporation was directed to re-fix the

seniority against the 9th vacancy, accordingly, the gradation list of the employees

from the first to the eighth position, ought not to have been altered.

The petitioners also rely upon the judgment passed in appeal by the Hon'ble

Division Bench on 16th March, 2016 in Ashok Kumar Guha (supra) wherein the

Hon'ble Division Bench directed that the promotees are entitled to receive monetary

and other benefits incidental to such promotion with effect from the date of notional

promotion.

It has been represented that the Hon'ble Division Bench affirmed the order

passed by the learned Single Judge in Ashok Kumar Guha (supra).

The Kolkata Municipal Corporation, in the garb of re-fixation of the gradation

list, disturbed the position of the petitioners which is bad in law and prayer has been

made for setting aside the same. It has been submitted that the promotees who were

not borne in the cadre during the period 15th July, 1996 to 15th July, 1998 have been

given the benefit, whereas the petitioners who are serving long prior to the promotes,

have been deprived the benefit of the direction passed in Ashok Kumar Guha (supra).

It has been argued that the Kolkata Municipal Corporation erroneously applied

the Circular no. 13 of 1984 in the present case, which ought not to have been done

in view of the judgment passed by the learned Single Judge affirmed by the Hon'ble

Division Bench.

It has been submitted that because of the impugned re-fixation of the

gradation list, the employees who were junior to the petitioners have been placed on

top which is not permissible and the gradation list is liable to be re-fixed.

Learned advocate representing the Kolkata Municipal Corporation defends the

action of the respondent authority. It has been submitted that the Corporation took

steps in compliance of the judgment passed by the learned Single Judge and the

Hon'ble Division Bench and acted according to their own interpretation and wisdom.

It has been denied that the re-fixation is contrary to the judgments passed by this

Court.

Reliance has been placed on the Circular no. 13 of 1984-85 dated 23rd April,

1984 issued by the Personnel Department, Kolkata Municipal Corporation which

mentions that the promotees shall be en bloc senior to the direct recruit of the same

year. It has been submitted that the Municipal Commissioner approved the re-

fixation of the gradation list.

Learned advocate representing the private respondent submits, upon

instruction that, his clients have retired on attaining their age of superannuation. It

has been submitted that the financial benefit consequent to promotion was granted

to the promotees in accordance with the direction passed by the Hon'ble Court and it

has been prayed that the gradation list may not be altered.

A further prayer has been made by the private respondents to the effect that,

in the event the gradation list is required to be altered, then the financial benefit

enjoyed by the private respondents may not be directed to be refunded or adjusted as

the private respondents were no way responsible in the decision making process of

promotion. It will be highly iniquitous and harsh if the financial benefit enjoyed by

the private respondents is directed to be refunded or adjusted at this stage.

I have heard and considered the rival submissions made on behalf of all the

parties.

The impugned gradation list was published after re-fixation allegedly in

compliance of the direction passed by the learned Single Judge in the matter of

Ashok Kumar Guha (supra) duly affirmed by the Hon'ble Division Bench. The learned

Single Judge in the judgment quoted the names of the employees, both direct

recruits and promotees to the post of Assistant Engineer (Civil), wherein the names of

the petitioners appear at serial no. 6 and 7 respectively. The learned Single Judge

after threadbare discussion of the facts with the corresponding provision of law was

pleased to direct that the seniority of the promotees shall be re-fixed above the

person appointed against the 9th vacancy. The same implies that the learned Single

Judge was pleased not to disturb the gradation list till the 8th employee. As the

petitioners were positioned in the 6th and 7th place, accordingly, their position in the

seniority list ought not to have been altered. Assuming the Corporation acted in

accordance with the Circular no. 13, even then, the en bloc promotion as mentioned

in the said circular is liable to be implemented from the 9th position onwards in the

gradation list and not prior thereto.

The Hon'ble Division Bench affirmed the direction passed by the learned Single

Judge and held that the promotees are entitled to receive monetary and other

benefits incidental to such promotion with effect from the date of notional promotion.

The Corporation erroneously changed the position of the employees who were

ranked above the vacancy no. 9 from where the illegality crept in. When both the

learned Single Judge and the Hon'ble Division Bench were of the opinion that there

was no illegality till the 8th position in the vacancy list, accordingly, the gradation list

till the 8th position, should not have been upset by the Corporation. Steps were

required to be taken for re-fixation from the 9th vacancy onwards.

Had the Corporation faced any difficulty in implementing the direction passed

by this Court, the proper approach would have been to seek clarification/ variation/

modification of the judgment passed by the Court. Till the judgment of the Court is

not varied or modified, the Corporation is bound to act in accordance with the same

and not contrary thereto.

This Court is convinced that, the Corporation, have misread and

misinterpreted the judgment of the Court and on the plea of implementing Circular

no. 13, have taken steps contrary to the direction passed by this Court and re-fixed

the gradation list in a manner that the employees who were junior to the petitioners

have been placed on top. Due to the above, the petitioners have been deprived of the

financial benefit which they ought to have received consequent to the direction

passed by this Court in the matter of Ashok Kumar Guha (supra).

In view of the above, the impugned gradation list is liable to be set aside and is,

accordingly, set aside. The Corporation is directed to re-fix the gradation list in strict

compliance of the direction passed by the learned Single Judge on 15th May, 2013

duly affirmed by the Hon'ble Division Bench on 16th March, 2016 and in the light of

the observations made herein above. The Corporation is also directed to extend all

benefits which the petitioners are entitled consequent to the judgments passed by

this Court. The Corporation is directed to act in accordance with such seniority for

all purpose in future.

It is made abundantly clear that, under no circumstances, the Corporation

shall alter the seniority position of the employees whose names appeared in positions

one to eight in the list indicated in the judgment dated 15th May, 2013.

As regards the prayer of the private respondents restraining the Corporation to

seek refund or adjustment of the financial benefit already disbursed in their favour

consequent to the re-fixation of the gradation list, the same not being an issue to be

decided in the present writ petition, is not being adjudicated by the Court. The

Corporation shall take steps with regard to the prayer of the private respondents in

accordance with law.

The Corporation is directed to take steps in the matter in accordance with the

direction passed in the matter of Ashok Kumar Guha (supra) at the earliest but

positively within a period of eight weeks from the date of communication of this

order.

Writ petition stands disposed of.

There shall be no order as to costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to the

parties expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)