Satya Brata Sinha, J. - (1.) This application is directed against an order dated 10.4.1997 passed by the West Bengal Administrative Tribunal, Calcutta in Case No. 609 of 1996, whereby and whereagainst the original application filed by the petitioner herein has been dismissed.
(2.) The petitioner was appointed as Compounder in Calcutta Hemeo Medical College and Hospital in the year 1963. The said College was run and managed by a private institution. While it was so run and managed by a private institution, allegedly, there existed a post of Registrar. The petitioner allegedly had been working in the said post of Registrar. The State Government took over the institution by Act XI of 1983, whereafter an Administrator was appointed. Several proceedings were taken as regards the question of payment of enhanced salary wherein certain directions had been passed. The petitioner in his application before the learned Tribunal has, inter alia, prayed for a declaration that one post of Registrar be created forthwith at Calcutta Homeo Medical College and Hospital. Before the learned Tribunal the State had produced various documents including the agreement entered into by and between the Administrator of the Institution and one T.P. Mondal, Teacher-in-charge, wherein it was specified that the petitioner was appointed as Compounder in December, 1974 and was already officiating in the post of Registrar in 1979. However, the petitioner could not produce any document to show that the post of Registrar ever existed in the Institution after the same was taken over by the Government or he has ever drawn any salary in the capacity of the Registrar. The petitioner before the learned Tribunal also questioned an order dated 15th March, 1996 passed by the Joint Secretary, Government of West Bengal, wherein it had clearly been held that no such post was ever sanctioned or existing. As regards the contention of the petitioner, the learned Tribunal arrived at the following finding:- "In the context of such documentary evidence it has been argued on behalf of the State-respondent that in a Government Institution where the petitioner is employed there must be some document to show that he has been holding the post of Registrar and drawing the salary as such if his case was true. Having regard to the documents placed before us we find considerable force in the contention of the respondent No. 4. It is no doubt true that while the Institution was under private management he was given the additional charge of Registrar if the post had existed in addition to his parent post of Compounder with the assurance of confirmation in due course but that does not establish that the petitioner was ever appointed as Registrar against the regular vacancy carrying a definite scale of pay. When there is no post in existence with any scale of pay attached to it, it is too much to expect that in a Government Institution like the Calcutta Homeo Medical College and Hospital the petitioner could work as a Registrar without any valid letter of appointment or without any salary against the post of Registrar. Needless to add that this Tribunal is not competent to direct the respondent to create a post of Registrar and fix the petitioner against such post with a definite scale of pay. It is also difficult to accept that in Government Institution, a Compounder, promoted to the post of Head Compounder, could be permitted to hold that the post of Registrar which is quite important and significant in the administrative set-up of a Government Homeo College."
(3.) The petitioner, thus, was promoted to the post of Head Compounder and not to the post of Registrar which according to the petitioner himself is non- exsiting. Had the post been existing, the question of the petitioner's seeking any relief to the effect that such post be created or declared to be existing would not have arisen. The learned Tribunal has arrived at a finding of fact that as no such post ever existed after the Government had taken over the Institution in the year 1973, we are of the opinion that this court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot direct creation of any post by the State as it involves financial implication. The learned Counsel for the petitioner, however, stated that promotion has become due. We are not expressing any opinion on the said question as the same does not fall for our consideration.;