Calcutta High Court
The Kolkata Municipal Corporation And ... vs Debabrata Bera And Ors on 27 February, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM JUDGMENT AND ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
APO/116/ 2024
With WPO/2626/2022
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
Versus
DEBABRATA BERA AND ORS.
APO/117/2024
With WPO/2629/2022
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
Versus
SANJIB CHAKRABORTY AND ORS.
APO/118/ 2024
With WPO/2632/2022
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
Versus
PRATTAY BANIK AND ORS.
APO/119/ 2024
With WPO/2631/2022
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
Versus
DIPAK KUMAR MISTRY AND ORS.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant : Mr. Kalyan Bandopadhyay, Sr. Adv.
: Mr. Sirsanya Bandopadhyay, Adv.
: Mr. Arka Kumar Nag, Adv.
: Mr. Swapan Kumar Debnath, Adv.
2
For the Respondent : Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
: Mr. Raghunath Chakraborty, Adv.
For the State : Mr. Jayanta Samanta, Adv.
: Mr. Soumen Chatterjee, Adv.
HEARD ON : 03.12.2024, 30.01.2025 & 27.02.2025
DELIVERED ON : 27.02.2025
DEBANGSU BASAK, J.:-
1. Four appeals are taken up for analogous hearing as all of them
emanate out of the impugned judgment and order dated May 10,
2024 passed in four writ petitions being WPO/2626/2022,
WPO/2629/2022, WPO/2631/2022 and WPO/2632/2022.
2. By the impugned judgment and order learned Single Judge set
aside a circular dated July 22, 2022 issued by the Kolkata
Municipal Corporation (KMC) authorities. Learned single judge
directed the appellant to initiate a process for filling up the vacant
posts of Assistant Engineers by giving promotion to the eligible
departmental candidates in accordance with the rules which was
prevailed prior to coming into force of the circular dated July 22,
2022, if it thinks it so fit and proper.
3. Learned senior advocate appearing for the appellants draws the
attention of the Court to the prayers made in the writ petition. He
submits that, events occurring subsequent to the impugned
judgment and order render prayers (b) and (c) and consequential
reliefs sought for in the writ petition, infructuous. He submits that,
in fact, the entirety of the writ petition is rendered infructuous.
However, even if one is to assume that the prayer (a) of the writ
petition survive after the subsequent events, then also, he submits
that, the writ petitioners are entitled to a consideration for
promotion to the higher post in accordance with the rules
governing such promotion as on the date of consideration of the
promotion.
4. Learned senior advocate appearing for the appellant submits that,
subsequent to the impugned judgment and order, KMC authorities
thought it prudent to visit the issue of the regulations governing
the grant of promotion. The appellants reworked the regulations
for grant of promotion to the post of Assistant Engineering working
in KMC, and the same fructified in the notification dated February
10, 2025 issued in exercise of powers conferred under Section 20
read with Sections 602 and 604 of the Kolkata Municipal
Corporation Act, 1980. He draws the attention of the Court to the
notification dated February 10, 2025 as also to the grant of
approval by the State Government to the decision taken by the
Mayor in Council of KMC with regard to such regulation governing
the promotion to the post of Assistant Engineer. He submits that,
the Sub-Assistant Engineers who aspire to be promoted to the post
of Assistant Engineer, working in KMC, are now governed by the
notification dated February 10, 2025. All Sub-Assistant Engineers
eligible to be promoted to the post of Assistant Engineer working in
KMC will be considered for such promotion, in accordance with the
notification dated February 10, 2025.
5. Learned senior advocate appearing for the appellant submits that,
the issue as to whether the administrator-in-charge of the
administration of KMC, could issue the notification dated July 22,
2022 is no longer open to discussion in view of the pronouncement
of the Division Bench in AIR 2020 Cal 252 (Sharad Kumar Singh
vs. State of West Bengal & Anr.).
6. Learned senior advocate appearing for the appellants submits that,
no Sub-Assistant Engineer can claim the right to promotion but a
right to fair consideration for promotion. In support of such
proposition he relies on (2011) 6 SCC 725 (Deepak Agarwal &
Anr. Vs. State of Uttar Pradesh & Ors.) and (2011) 10 SCC 121
(Hardev Singh Vs. Union of India & Anr.).
7. Learned senior advocate appearing for the appellants submits that,
the contention that, a reduction in chance to promotion, would
mean change in the service condition cannot be accepted in view of
the ratio laid down in (1991) 1 SCC 505 (Union of India Vs. S. L.
Dutta & Anr.); (2009) 12 SCC 62 (High Court of Delhi & Anr. Vs.
A.K. Mahajan & Ors.); and (2015) 6 SCC 727 (Dhole Govind
Sahebrao & Ors. Vs. Union of India & Ors.).
8. Learned senior advocate appearing for the appellants submits that,
all Sub-Assistant Engineers will henceforth be considered in terms
of the policy governing the promotion as notified by the KMC
Authorities on February 10, 2025 as and when the appellants
decide to fill up the posts of Assistant Engineers by promotion.
9. Learned senior advocate appearing for the writ petitioners submits
that, the factual scenario obtaining on the date of the writ petition
was different. At that material point of time the notification dated
February 10, 2025 was not born. The issue of promotion from the
post of Sub-Assistant Engineer to the post of Assistant Engineer
was governed by the notification dated July 22, 2022.
10. Learned senior advocate appearing for the writ petitioners
submits that, aspiration of the Sub-Assistant Engineer to be
promoted to the post of Assistant Engineers were not catered to by
the KMC Authorities. They did not grant adequate promotions. He
submits that ad hoc promotions were granted. This resulted in
stagnation of Sub-Assistant Engineers which is detrimental not
only to the Sub-Assistant Engineers who were denied promotion
but also detrimental to the KMC.
11. Learned senior advocate appearing for the writ petitioners
submits that right of consideration for promotion cannot be
deferred. The right to promotion of the writ petitioner on July 22,
2022 should be recognized as done by the learned Single Judge. He
submits that, the learned Single Judge rightly set aside the
impugned notification dated July 22, 2022 and directed
consideration of promotion in terms of the rules governing the
promotion, immediately prior to the issuance of the impugned
notification dated July 22, 2022.
12. Learned senior advocate appearing for the writ petitioners
draws the attention of the Court to the rules existing prior to July
22, 2022 governing the field of grant of promotion from the post of
Sub-Assistant Engineer to Assistant Engineer. He submits the
same should be applied to grant promotions to Sub-Assistant
Engineers as on July 22, 2022.
13. Learned senior advocate appearing for the writ petitioners
draws the attention of the Court to the grounds in the
Memorandum of Appeal. He submits that there is no ground of
challenge to the impugned judgment and order where it holds that
notification dated July 22, 2022 was issued without authority.
14. The writ petitioners who are working as Sub-Assistant
Engineers approached the writ Court with the following prayers :
"a) A writ of Mandamus commanding the respondents to
complete the process of promotion to the vacancies already
risen prior to the purported amendment of promotion rules.
b) A writ of declaration declaring and the purported
amendment dated Item No. BOA/MOA -21.3 dated 01/10/22
and Item no. BOA/MOA-23.3 dated 17/11/2021, has
prospective application.
c) A writ of and/or in the nature of Mandamus commanding the
respondents and each one of them, their men, agents and/or
assigns to cancel and/or set aside the impugned Circular being
the Chief Manager (Personnel)'s Circular No. VIII of 2022-23
dated 22/07/2022 being the annexure "P-3".
d) A writ of and/or in the nature of Certiorari do issue directing
the respondents and each one of them their men, agents
and/or assigns to transmit the entire records of the case, to
this Hon'ble Court and to certify them and on being so certified,
quash the same so that conscionable justice may be
administered to the parties;
e) A writ of and/or in the nature of Prohibition do issue
prohibitory the respondents and each one of them their men,
agents and/or assigns from further giving effect or further
effect to the impugned Circular being the Chief Manager
(Personnel)'s Circular No VIII of 2022-23 dated 22/07/2022
without giving promotion to the concerned SAEs to the post of
A.E till disposal of this instant Writ application.
f) RULE NISI in terms of prayer (a), (b), (c) and (d) above.
i) Such further or other order or orders, direction or directions
as Your Lordships may deem fit and proper."
15. Writ petitions were disposed of by the impugned judgment
and order dated May 10, 2024.
16. Issue of grant of promotion to the cadre of Sub-Assistant
Engineer working in KMC to the post of Assistant Engineer received
the consideration of KMC Authorities subsequent to the impugned
judgment and order dated May 10, 2024. KMC Authorities
thereafter decided to rework the promotional policy. The Mayor-in-
Council of KMC decided a particular manner of promotion which is
at variance to the decision dated July 22, 2022. This decision
received the approval of the State Government. The approval of the
State Government is dated February 10, 2025 which appears at
page 9 of the supplementary affidavit. Thereafter, KMC Authorities
issued a notification dated February 10, 2025 putting in place the
regulation for regulating recruitment to the post of Assistant
Engineer.
17. As on date, therefore, the regulation for regulating
recruitment to the post of Assistant Engineer is governed by the
notification dated February 10, 2025. This regulation is not under
challenge. It was in fact rightly pointed out by the learned senior
advocate appearing for the writ petitioners that the notification
dated February 10, 2025 was not born at the time of filing of the
writ petitions. Nonetheless it is yet to be challenged by the writ
petitioners. At least, nothing is placed on record to suggest that
such notification is under challenge.
18. Hardev Singh (supra) and Deepak Agarwal and Anr. (supra)
are authorities for the proposition that, no employee is vested with
a right to get promotion but only a right to be considered for
promotion.
19. S.L. Dutta & Anr. (supra) , A.K. Mahajan & Ors. (supra) are
authorities for the proposition that, the change in government
policy in granting promotion, which may result in reduction of
chance of promotion are not open to challenge unless it is
established to be arbitrary or mala fide. Same view is expressed in
Dhole Govind Sahebrao & Ors. (supra). In the facts of the present
case, the notification dated February 10, 2025 being the changed
policy is not under challenge.
20. The writ petitioners canvass that their right to be considered
for promotion prior to the filing of the writ petition should be
implemented. With respect, the plea for promotion of the writ
petitioners are required to be considered in light of the regulations
governing such promotion. As on date, the regulations are as
notified on February 10, 2025. If at all, the authorities decide to
promote any Sub-Assistant Engineer, no doubt, the authorities will
do so in accordance with the regulations and the law governing
such promotion. As noted above, as on date, it is the notification
dated February 10, 2025 which govern the field.
21. Moreover, a writ Court cannot call upon the employer to
undertake a drive to grant promotions. It is for the employer when
to undertake such an exercise. When such an exercise is
undertaken all eligible candidates are required to be considered
fairly.
22. We need not enter into the issue as to whether or not the
Mayor-in-Council being superceded by an administrator during the
COVID-19 regime was vested with adequate authority to undertake
a revision of the promotional policy as done on July 22, 2022 or
not, since the policy enshrined in the notification dated July 22,
2022 no longer exists by reason of the subsequent notification
dated February 10, 2025.
23. In view of the discussions above, we dispose of the appeals
by permitting the appellants to undertake the exercise of promotion
of Sub-Assistant Engineers, if the appellants decides to promote
any of them, in accordance with law.
24. The impugned judgment and order is set aside in view of the
subsequent events.
25. APO/116/2024, APO/117/2024, APO/118/2024 and
APO/119/2024 are disposed of without any order as to costs.
26. Since the notification dated February 10, 2025 is not the
subject-matter of challenge in the writ petitions or the appeals, we
clarify that we did not pronounce on the legality and validity
thereof. All points relating thereto are kept open.
(DEBANGSU BASAK, J.)
27. I agree.
(MD. SHABBAR RASHIDI, J.)
TR/As.
