STATE OF WEST BENGAL Vs. ASHOK CHAKRABORTY

JUDGEMENT

(1.) This appeal is directed against the decision made by the learned trial Judge in Civil Rule No. 4642(W) of 1978. By the aforesaid judgment the writ petition made by the respondent Nos. 1 to 7 was allowed by the learned trial Judge and the State of west Bengal and its officers were restrained from giving any effect or from acting pursuant to or on the basis of the impugned order dated May 19, 1979, the Government Orders dated March 23, 1978 and May 6, 1978 and the State of West Bengal and its officers were also restrained from altering the position of the writ petitioners on the basis of an alleged test result being Annexures 'C', 'D' and 'E' to the writ petition and also restraining the State of West Bengal and its officers from giving any promotion for appointment in terms thereof and from taking away any benefit of giving new Intermediate Selection Grade given to the petitioners. It appears that after the introduction of 'the Intermediate Selection Grade, on the basis of the existing Seniority list and the Government Circulars governing the field, the writ petitioners respondents were given new Intermediate Selection Grade. Sometime in 1977, a Circular was issued by the Government of West Bengal to the effect that all previous circulars and/or principles debarring a Government employee from getting Selection grade, promotion etc. on account of participating in Bandh or Strike should be treated as withdrawn. It is the case of the writ petitioner respondents that in view of the changed Government policy the Government intended to review the gradation list in order to give Intermediate Selection Grade to the persons who were then not found eligible to get it. It will appear from Annexure 'E' to the writ petition that in the face of withdrawals of all the circulars issued earlier by the Government from time to time stipulating disqualification for confirmation, promotion, crossing of efficiency bar etc, all the cases for review were examined afresh and in review of seniority according to test result as well as date of appointment, the persons mentioned in the said Government Order were considered eligible for promotion to the new Intermediate Selection Grade post in the different service training. It may, however, be noted in this connection that new Intermediate Selection Grade is only a grade in the cadre itself and this is not a promotion but it was wrongly mentioned in the Government Order that the persons were considered eligible for promotion for the new Intermediate Selection Grade. Be that as it may, since such Intermediate Selection Grade was given to some of the employees of the Government Printing Press who ere also respondents in this appeal, the writ petitioners moved the writ petition challenging the legality and validity of such action taken by the State appellants. The learned trial Judge has allowed the writ petition by giving the aforesaid directions on the finding that if on the basis of the existing policy and circulars some benefits had been given to the Government employees then by changing the policy such benefit cannot be undone and the effect of change of policy can he applied only prospectively but the same cannot have any retrospective operation. Against the said decision the State appellants have preferred the instant appeal and some of the respondents in the writ petition in whose favour the revised orders were passed also preferred an appeal. We have been informed by the learned counsel for the parties that the other appeal preferred by the other respondents had been dismissed because the appeal was not preferred in a proper manner. The learned counsel appearing for some of the respondents who were given the benefit of new Intermediate Selection Grade by cancelling the order of such new Intermediate Selection Grade given to the writ petitioner respondents has very strongly contended that the gradation list had not been prepared in accordance with the existing circulars and the Government Policy prevailing at the relevant time. Since such gradation list was erroneously prepared and on the basis of seniority fixed in the erroneous gradation list, the writ petitions had been given. New Intermediate Selection Grade to which they are not entitled to the Government decided to revise the gradation list in a proper manner. It is contended by the learned counsel for the other respondents that the writ petitioner respondents and the other respondents were selected on the basis of a selection test and according to the existing circular of the Government on the basis of the merit position in the Selection Test the seniority of such employees should have been determined but such determination had not been made and the gradation list was prepared without reference to the result in the Selection Test. It is also contended by the learned counsel for the said respondents that since the gradation list was not properly prepared, the said respondents, though otherwise eligible to get new Intermediate Selection Grade, were deprived of getting the same and the writ petitioner respondents were erroneously given the benefit of New Intermediate Selection Grade. As a matter of fact, some of the writ petitioner respondents even got the old Selection Grade before the introduction of new Intermediate Selection Grade. In the aforesaid circumstances, the Gradation List was revised and on the basis of the merit position in the Selection Test, the seniority was re-determined by publishing the revised Gradation list and the employees including the writ petitioner respondents were given opportunity to make representation. The learned counsel has contended that it is open to the State Government to revise the gradation list, whenever any mistake in preparation of the gradation list is detected and no time limit is fixed for such revision. It is only necessary that employees, who will be affected by the revision of, gradation list should have an opportunity of making representation and such representation has admittedly been given to all the employees including the writ petitioners. In support of the said contention, the learned counsel has cited a decision of the Allahabad High Court made in the case of K. B. Sharma vs. Transport Commissioner, U.P. reported in AIR 1968 Allahabad at page 276. He has also referred to a decision of the Gujarat High Court reported m AIR 1973 at page 167 wherein it has been held that if the gradation list is revised, employees effected by the gradation list should be given an opportunity to make representation. The learned counsel for the state respondents has therefore, contended that in the facts of the case the gradation list was not revised for giving benefit to some employees on the basis of the changed policy of the Government, but for correcting the mistake in preparing the earlier gradation list, such revision had been made. The learned trial Judge has faced to note the real purpose for revising the gradation list. He has, therefore, submitted that as the gradation list was required to be revised and such revision has been made on the basis of existing circulars and policies of the State Government at the relevant time and as all employees including the writ petitioner respondents were given reasonable opportunity to make representation against the revision of the gradation no exception should be taken against such revised gradation list and if consequential action has been taken on such revised gradation list by giving new Intermediate Selection Grade to the said respondents in preference to the writ petitioner, interference by the Writ Court was not celled far.

(2.) Mr. Banerjee, the learned counsel appearing for the appellants has submitted that in the affidavit-in-opposition made on behalf of the said appellants it has been indicated that on the basis of the merit position in the Selection test, the previous gradation list had not been prepared but the subsequent gradation list has been prepared on such basis. But he has submitted before this court the Government order giving the benefits to the other respondents and withdrawing the benefit of new Intermediate Selection. Grade since given to the writ petitioner respondents it has not been specifically pointed out that the earlier gradation list had been wrongly prepared for which revision had been made. The Government orders proceed on the footing that because of the change of the Government Policy and withdrawal of all earlier circulars the revision has taken place. If for the purpose of giving elect to the new policy because of withdrawal of earlier circulars, the benefits already given to the employees on the basis of the circulars then existing is sought to be withdrawn such action of the Government will be contrary to the decision of this Court made in the case of Biplab Majumdar vs. State of West Bengal reported in 1982 C.H.N., at page 33. It has been specifically held by the Division Bench in the said decision by considering the import of the circular issued by Government on March 28, 1978 and also the effect of cancellation of the earlier circulars in April, 1977 that if the Government employees had been given any benefit of service on the basis of the earlier circular change of such policy and introduction of a different policy at a later date cannot take away such benefits. Mr. Banerjee has submitted that the Government orders made in the instant case since challenged in the writ petition, specifically indicate that on the basis of the withdrawals of all circulars issued earlier by the Government from time to time the cases were reviewed and the impugned decision had been taken and the said orders do not indicate that revision of gradation list and consequential action in revising the list of recipient of New Intermediate Selection Grade had been made to correct the errors and/or the Trial Court in new of the aforesaid Bench decision of this Court has held that such review on the basis of the changed policy of the Government in order to undo the benefits given to the writ petitioner respondents when such change of policy was not in force cannot be sustained. The learned counsel for the appellant in his fairness has submitted before the Court that in view of the said Bench decision of this Court it will be very difficult for the appellant to contend that cases of promotion, were required to be reconsidered in view of the change policy.

(3.) Mr. Gupta, the learned counsel appearing for the wilt petitioner Respondent has contended that the validity of the Government orders must be decided on the basis of the reasons indicated in the Orders and not on any new reasoning. As the orders clearly demonstrate that the revision had been made only because there had been change in the policy and the orders do not indicate that such revision had been made for correcting any apparent mistake in preparing the earlier gradation list, the said Government orders cannot be salvaged by supplementing other reasoning in the affidavit-in- opposition. The learned trial Judge, therefore, rightly held that the impugned Government orders were not legal and valid and were liable to be quashed.