P.K. Ray, J. - (1.) Instant appeal is directed challenging the order dated 11.9.2000 passed by Dilip Kr. Seth, J. in AST 2973/2000 whereby and where under the following order was passed:- "Thus the petitioner can be expected to continue till 26th December, 2000 and not beyond.Then his posting in the Data Processing Centre was purely a stop-gap arrangement.The order indicates that he would look after the job of Data Processing Manager till the post is filled up in regular manner or till the petitioner is adjusted against future vacancy in the post of Executive Engineer whichever is earlier. Thus the petitioner cannot claim any lien in the post of Data Processing Manager. He has no right to continue therein in case the post is filled upon the regular manner. The petitioner's claim for promotion to the post of Executive Engineer is subject to the decision of the Municipal Service Commission.Thus the posting as Data Processing Manager of the petitioner by reason of the condition contained in the order dated 26th June, 2000 permits the petitioner to continue on probation for a period of six months he can have some claim on the basis thereof for which hey may make a representation in order Lo secure payment which may be considered by the respondent in accordance with law having regard to the facts and circumstances of this case.The posting of the petitioner in the post of Assistant Engineer and his joining the said post will be without prejudice to the rights and contentions. With regard to the claim for payment as indicated above, if there by any. The respondent may consider the the petitioner as soon as his turn comes viz., as pointed out by Mr. Behani on 31st January, 2001. Let it be noted that I have entered into the merit of the case with regard to the petitioner's entitlement to the promotion."
(2.) The writ application was filed by the appellant-petitioner challenging the office order DMC(P)/PT/217/2000-01 dated 31st August, 2000 issued by Deputy Municipal Commissioner, Calcutta Municipal Corporation whereby the writ petitioner-appellant was sent back to original department that is Tubewell Department from the post of Manager, DPC. The main grievance of the writ petitioner-appellant is that by the impugned order in the writ application he was demoted to the post of Assistant Engineer (Electrical) in Tubewell Department from his new assignment, which was a promotional post. He was promoted in terms of the office order No. DMC(P)/PT/106/2000-01 dated 26th June, 2000 as per decision of competent authority, the Municipal Commissioner in terms of the order of Municipal Commissioner dated 26th June, 2000, in the rank of Executive Engineer (E).
(3.) The Calcutta Municipal Corporation has contested the matter justifying the inpgnned order on the ground that the writ petitioner's appointment in the post of Manager (DPC) was by ad hoc promotion in the rank of Executive Engineer (E) for temporary period and by holding such post writ petitioner did not accrue any right. It is further submitted that in the rank of Assistant Engineer (E) which is the feeder rank of Executive Engineer (E) in the gradation list the writ petitioner-appellant was in Serial No.2 whereas one Sri Tamal Ghatak was in the first position in the list and as per the recruitment rules for selection in the rank of Executive Engineer (E) which is passed on merit cum seniority, the first placement in the post under the said rank was required to be done to said Sri Ghatak.But unfortunately, due to mistake Tamal Ghatak was not considered and accordingly Tamal Ghatak has recently been promoted to the said rank of Executive Engineer (E) by placing him in the P and D Department, in the vacancy as caused in the said post and in the said rank due to superannuation of the incumbent Sri Asim Bikas Dutta Gupta. It is further submitted by the learned Advocate of the Calcutta Municipal Corporation that the present writ petitioner-appellant would be considered for promotion in the rank of Executive Engineer (E) in the next vacancy.It is contended further that the writ petitioner-appellant since was ad hoc appointee, he had no right to hold the post and accordingly the impugned decision sending him to back to the original department that is tubewell department in the original rank of Assistant Engineer (E) is legal and justified. The learned Advocate of the appellant-petitioner vehemently submitted that since the rank of Executive Engineer (E) is a promotional rank of Assistant Engineer (E) and since the promotion rule provided merit cum seniority, as the criterian, the writ petitioner-appellant since succeeded in interview as held, accordingly the question of superceeding the senior incumbent in the gradation list in the feeder post is not arising. The writ petitioner-appellant submits that since the promotional order was issued promoting the writ petitioner in the rank of Executive Engineer (E) on stipulating the condition that his tenure would be for a period of six months or till the post of Data Processing Manager was filled up in regular manner, the writ petitioner-appellant is entitled to continue in the post of Manager, Data Processing Centre being in the rank of Executive Engineer (E) till the said vacancy is being filled up in accordance with law. It is further submitted that the said vacancy being the post of Manager, Data Processing Centre as yet has not been filled up following the recruitment rules and as such there is no question of reversion of the writ petitioner to his feeder post and impugned order is nothing but a demotion for which the writ petitioner has suffered civil consequences. As per the direction of the Court the Calcutta Municipal Corporation has placed records for adjudication of the lis in question. From the records very surprisingly it is found that the contention of both the appellant-petitioner as well as the respondent corporation do not depict the real state of affairs. No party has been able to place the actual fact.;