Sri Dipankar Dasgupta & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 6044 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                                 (Appellate Side)


Present:     THE HON'BLE JUSTICE RAJARSHI BHARADWAJ


                                          W.P.A 6688 of 2022


                                          Reserved on  : 25.08.2023
                                          Pronounced on: 11.09.2023


     Sri Dipankar Dasgupta & Ors.
                                                                      ...Petitioners

                                        -Vs-


     The State of West Bengal & Ors.                             ...Respondents

Present:-

Mr. B.B.Sarkar Ms. Iti Dutta Ms. Priti Jain Mr. Pratit Sarkar ... for the Petitioners Mr. Satyajit Talukdar Ms. Piu Karmakar ...for the KMDA

Rajarshi Bharadwaj, J:

1. A writ petition has been instituted, contesting the act and conduct of

the respondent authorities for their failure to adhere to the established Rules

and procedural norms set forth by the Kolkata Metropolitan Development

Authority concerning the process of promotion. The petitioners seek to

challenge the denial of the application of the stipulations outlined in the West

Bengal Services (Determination of Seniority) Rules, 1981, with regard to the

determination of seniority.

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2. The facts of the case in brief are that that a recruitment notification,

identified as no. 474/KMDA/2E-49/97(pt-III) dated 29th March, 2010 was

promulgated by the respondent no.3 herein the Secretary, Kolkata

Metropolitan Development Authority pertaining to the solicitation of

applications for the role of Assistant Engineers across various branches under

the purview of Kolkata Metropolitan Development Authority, including the

Kolkata Metropolitan Water and Sanitation Authority (hereinafter referred to

as 'KMW&SA') and Kolkata Metropolitan Development Authority (hereinafter

referred to as 'KMDA'). Following this, a competitive examination was

conducted in July, 2010 culminating in the publication of a unified

rank/merit list. This list formed the basis upon which appointment letters

were subsequently issued to candidates whose names were featured therein.

3. At the present juncture, the petitioners hold positions as engineers

within the KMDA, occupying roles that encompass the designation of

Superintending Engineer, Executive Engineer or Additional Chief Engineer.

4. Through Notice No. 631(5)-UD/O/M/SB/A-1/2014 dated 27.02.2014,

Government of West Bengal officially communicated the propositions

concerning the amalgamation of KMDA, KIT, HIT, and KMW&SA. Therefore,

leading to the amendment of the West Bengal Town and Country (Planning

and Development) Act, 1979, through the West Bengal Town and Country

(Planning and Development) (Amendment) Act, 2017, the consolidation of the

former entities, KMW&SA, HIT and KIT, with the KMDA had been effectuated,

in accordance with the stipulations outlined within the aforementioned

amending Act. Subsequent to this amalgamation, the personnel hailing from

the said organizations had also been designated as an employee of KMDA,

subject to the terms and provisions laid down in the amending Act as the

communication explicitly indicated, inter alia, that the hierarchical ranking,

remuneration, and retirement benefits of the amalgamated entities cannot be

amended to their detriment.

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5. Owing to the amalgamation, two distinct approaches were taken by the

Administrative Authority of the respondent nos.2 to 5 in conferring

advancements to its engineering personnel, encompassing those employed

under the KMDA from their initial employment date, as well as engineers

formerly engaged by a distinct statutory entity, namely the KMW&SA, from

their initial employment date prior to its amalgamation with the KMDA. These

actions were predicated upon the provisions articulated within the Notification

dated 31st March, 2017, which become operational commencing 28th April,

2017.

6. Thus, being aggrieved by the discriminatory policy that deviated from

the established merit based promotion criteria by favoring certain employees

over others; the petitioners have preferred the present petition.

7. Learned counsel appearing for the petitioners submits:

I. Promotion is a right or service condition, wherein the determination of

relative seniority for promotional considerations ought to adhere to the

explicit terms delineated within the appointment letter. Pursuant to

paragraph 9 of the said appointment communication furnished to

petitioner no.3, precedence is to be ascribed in congruence with

positioning within the merit list and pertinent regulations.

Consequently, the act of elevating individuals to the position of chief

engineer whilst bypassing those senior in the role of engineers

contravenes the promotion protocol established by KMDA.

II. The promotional framework ratified during the 155th and 156th meeting

of the KMDA on the 26th March, 2008 and 24th June, 2008 respectively,

delineates the benchmarks requisite for the elevation to the designations

of chief engineer, additional chief engineer, and superintending

engineer. This criteria-laden directive ought to have served as the

guiding principle for all engineers under the employment of KMDA post-

merger. Nonetheless, contrary to this stipulated protocol, the pre-

existing modus operandi of the amalgamated authority continued to be

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adhered to. Thus, the adopted policy of promotion being arbitrary in

nature thereby creating difference between the engineers holding the

same post should not been in existence and accordingly the same is to

be set aside and quashed.

III. The unreported decision relied upon by the respondent authorities

passed by Hon'ble Justice Amrita Sinha in W.P. No. 15492 (W) of 2018,

specifically rejected the idea of creating a unified ranking list. The

rationale behind the rejection was that such an endeavor would not only

be arduous but also overly burdensome. This could potentially divert

authorities' resources from more productive tasks. However, the crucial

point seemingly overlooked by the Learned Single Judge is that while

applying these rules and regulations might present significant

challenges, it should not come at the expense of promoting eligible

candidates. Therefore, it is imperative to formulate a collective ranking

list for engineers employed under the KMDA. The list should not

differentiate between the various parent authorities under which the

engineers were initially employed. Subsequent promotions should then

strictly adhere to the rules outlined in the West Bengal Service

(Development of Seniority) Rules, 1981.

IV. The Writ Petition being WP No. 15492(W) of 2018 was filled by an

employee initially while being employed under KMW&SA. Following the

merger, the employee (petitioner in WP No.15492 (W) of 2018) became

an employee of the K.M.D.A. However, the decision made in the

aforementioned case did not address any legal points and thus lacks the

power to influence the reconsideration of the petitioner's concerns. The

petitioners have subsequently requested the creation of a unified

ranking list based on merit, as outlined in the Rank (Merit) List dated

17th October, 2021, reiterated in another demand dated 21st February,

2022, and finally communicated through an advocate's letter dated 16th

March, 2022. However, the authority has chosen to remain

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unresponsive, neither rejecting the petitioners' requested rights nor

referring to the previously mentioned decision.

8. Submissions of the Learned counsel appearing for the respondent nos. 2

to 5 are:

I. The authorities have made a policy decision to maintain the previous

gradation lists that were in place before the merger. This decision is

aimed at managing the challenges arising from the merger of the

mentioned organizations with KMDA, ensuring effective administrative

operations. This policy choice is both reasonable and logical, and it's

worth noting that this decision is not being contested in the present writ

petition.

II. A precedent exists where a comparable matter was presented before this

Hon'ble Court in W.P No. 15492(W) of 2018. In that instance, the

Learned Single Judge affirmed that the authoritative policy

determination to abstain from introducing a shared gradation list, and

instead maintain the pre-merger gradation list, was deemed

advantageous and beneficial for both the workforce and the employees

involved.

III. The proposal for merger explicitly states that the gradation list, salary,

and pension benefits of the organizations to be merged must not be

modified to their detriment. As a result of the decision not to merge the

gradation list, the advancement opportunities for employees of both

KMDA and the former KMW&SA are being managed independently in

accordance with the pre-existing policy prior to the merger.

IV. The stipulations outlining the qualifications for elevation to the positions

of Chief Engineers, Additional Chief Engineers, Directors, and Additional

Directors within the planning cadres were disseminated through

Memorandum No. 616/KMDA/2E-4/2008 dated 17th June, 2022.

KMDA has not exhibited any arbitrary or discriminatory conduct

towards the personnel of these entities. The governing body has

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consistently refrained from obstructing their access to promotional

opportunities within their respective engineering cadres.

9. On perusal of the documents brought to the Court and considering the

submissions made on behalf of the parties, this Court finds that the

respondent authorities are obligated to formulate a consistent promotion

roster in accordance with the resolutions made during the 155th and 156th

meetings convened on 26th March, 2008, and 24th June, 2008, respectively.

This action should be carried out without making distinctions based on the

original affiliation of the employee to a particular parent organization. By

establishing a unified gradation list founded on the principle of merit as

indicated in the AE (Civil) Rank (merit) List, strict adherence will be ensured in

accordance with the guidelines stipulated in the West Bengal Services

(Determination of Seniority) Rules 1981.

10. The respondent authorities seem to have overlooked the the background

note of the notification dated 27th February, 2014 outlining the proposal to

merge all three organizations with KMDA wherein it has been clearly

stipulated that due consideration must be given to the divergent gradation

lists, salary structure and pension benefits of these organizations. It is

imperative that the existing gradation lists, inter se, seniority of staffs and

other officers across various categories remain unaffected in order to avoid

any detriment. The prevailing circumstance underscore the significance of

consolidating the gradation list, as maintaining separate lists has not only led

to disputes where junior employees have leapfrogged their senior counterparts

through promotions, but has also impeded the operation of the office.

11. Further, the respondent authorities shall realise that reasoning of one

decision cannot be applied in another case in the absence of parity of situation

or circumstance. Therefore, the order passed by the learned Single Judge in

WP 15492 (W) of 2018, cannot be the sole basis for non-compliance with the

policies formulated for promotion of employees in the KMDA as the said

decision has no binding effect in deciding the petitioners grievances.

-JWPA 6688 of 2022 -7- - -

12. The Supreme Court in Regional Manager v. Pawan Kumar Dubey

reported in (1976) 3 SCC 334 held that:

"It is the rule deducible from the application of law to the facts and

circumstances of a case which constitutes its ratio decidendi and not some

consequences based upon the facts which may appear to be similar. One

additional or different fact can make a world of difference between conclusions

in two cases, even when the same principles are applied in each case to similar

facts. "

13. It has also been observed by the Supreme Court in State of U.P and

another v. Synthetics and Chemicals Ltd and another reported in (1991) 4

SCC 139 that:

"A decision which is not express and is not founded on reasons nor it proceeds

on consideration of issue cannot be deemed to be a law declared to have a

binding effect as is contemplated by Article 141. Uniformity and consistency are

core of judicial discipline. But that which escapes in the judgment without any

occasion is not ratio decidendi. Any declaration or conclusion arrived without

application of mind or preceded without any reason cannot be deemed to be

declaration of law or authority of a general nature binding as a precedent."

Therefore, for the purpose of have a binding precedence materials must be of

the nature as would satisfy the doctrine of ratio decidendi. In the present case,

the subject matter of the order relied by the respondent authorities and the

instant writ petition are completely different. The ground taken by the Learned

Single Judge in W.P. No.15492(W) of 2018 that maintaining separate

gradational lists would be beneficial for the employees is, rather being

detrimental to the senior employees in the KMDA. Furthermore, in accordance

with the promotion policy established by KMDA, employees shall adhere to

such policy, contingent upon the gradation list formulated based on merit, in

case of its non-availability, promotion should be determined based on

seniority, taking into account the date of joining. It is crucial to emphasize

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that in accordance to Section 27A (2) (f) of The West Bengal Town and Country

(Planning and Development) (Amendment) Act, 2017 which says that:

"All officers and other employees of the Authority continuing in office

immediately before the date of the repealing of the Kolkata Metropolitan

Water and Sanitation Authority Act, 1966, shall be deemed to be

employed by the Development Authority on such terms and conditions not

being less advantageous than what they were entitled to immediately

before the said date"

It is incontrovertible that all personnel hailing from the consolidating entities

are now under the employment of KMDA and consequently, are duty-bound to

adhere to the statutes and mandates set forth by KMDA.

14. Moreover, in a resolution passed by the Finance Department, Audit

Branch, Government of West Bengal, as delineated in Memo No. 3161 F(P)

dated 7th June, 2014. Specifically within the context of paragraph 5 (2) and its

second proviso, it has been stipulated that employees, in the event of

cessation of their functioning, shall retain all the benefits previously enjoyed

in their originating organization, with the sole exception being promotion.

Thus, the employees of the merged organization cannot take undue advantage

of the maintenance of separate promotion policies, thereby making it

imperative to uphold a common gradation list ensuing equal treatment for all

employees within the four organizations.

15. Therefore, this Writ Petition raises the question of whether it's

permissible to have two concurrent promotion policies operating

simultaneously under the same governing body, taking into account the

parent authority's policy even when the parent authority is defunct. As there

are conflicting precedents on this matter, it is imperative that a Larger Bench

examines and adjudicates the issue.

16. WPA 9595 of 2023 is accordingly allowed and disposed of by directing

that the matter be placed before the Hon'ble Chief Justice for Constituting a

Larger Bench to answer the reference as indicated above.

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17. Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(RAJARSHI BHARADWAJ, J)

Kolkata 11.09.2023 PA (BS)