ASHIM KUMAR BANERJEE - (1.) PETITIONER challenged the following decision of the State. Sri Goutam Das and Sri Somenath De joined as Moharrir on the same date. Sri Goutam Das, being the senior amongst the two, got the opportunity of promotion to LDC and hence, to be counted along with the LDCs. Sri Somenath De comes within the purview of redesignation and scope of promotion on 01.07.1989. The orders effecting promotions of Moharrirs to LDCs can not be reviewed, being a fait-accomply Facts would depict that Goutam and Somenath being the petitioner and the private respondent were working as Moharrir in the Department of Land and Land Revenue working under the Additional District Magistrate, Bankura.
(2.) THEY joined their service in 1978. Goutam joined on January 10, 1978 and was confirmed on January 10, 1981. Goutam was promoted as Lower Division Clerk on March 8, 1989 and confirmed in the said post with effect from November 2, 1992. He got subsequent promotion as Upper Division clerk with effect from November 8, 1998. Somenath joined with Goutam on the same date however Goutam was shown as senior to Somenath as per the original Gradation List. Goutam got the promotion earlier to Somenath in the post of Lower Division Clerk. At the time of initial entry in service, both Somenath and Goutam were placed in the scale of Rs.180-350/-. As per seniority, list Goutam was placed as no.4 whereas Somenath was placed just after him. Both were confirmed on the same date with effect from January 1, 1981. As per Government of West Bengal Service (Reservation of Pay & Allowance) Rules, 1970) Moharrirs under the Registration Directorate of the Judicial Department and Moharrirs in Land and Land Revenue Department as well as their counter part earlier working under the Board of Revenue were all placed in the pay scale of Rs.180-350 with effect from April 1, 1970. The Judicial Department vide Memo dated May 8, 1978 placed the Moharrirs working under them in the pay scale of Rs.230-425/- with retrospective effect from April 1, 1970 subject to the condition that they would not be entitled to any arrear. As a result, other Moharrirs working in Land and Land Reforms Department or any other Department working under the scale of Rs.180- 350/- were deprived of the higher scale which their counter part got in Judicial Department. This became a subject matter of challenge before this Court through writ petitions. Ultimately, they succeeded and as per ROPA 1970 they were given the identical scale of Rs.230-425/- which eventually is the pay scale for the Lower Division Clerk in other Department. The High Court granted the relief that attained finality at the Apex Court level. The State, thus, extended the benefit to all Moharrirs working in other Department through Memorandum dated January 18, 1982 with retrospective effect from April 1970 without any arrear adjustment vide Memo dated February 23, 1989. Goutam got the promotion in the post of Lower Division Clerk on temporary basis at a scale of Rs.300-685/- along with all other pay and allowance admissible for the same. it was made clear that such appointment was purely temporary and terminable with one months notice from either side. Goutam got the promotion on his own volition as we find from the said order appearing at page 43-44 of the affidavit-in-opposition. The offer was given to the concerned employees being Goutam and one Sagar Chandra Khanna to opt whether they would be agreeable to accept such promotion on the conditions stipulated in the said order. Goutam accepted such placement and thus became a Lower Division Clerk with effect from the said date. Subsequently, the post of Moharrir was abolished with effect from July 1, 1989. As on that date, all Moharrirs including Somenath became Lower Division clerk by virtue of one time placement. Somenath thus got the post of Lower Division Clerk without undergoing any promotional process unlike Goutam. The State maintained two separate seniority lists in the post of Lower Division Clerk being a group who are direct recruit as Lower Division clerk and the other group who are redesignated as Lower Division clerk after abolition of the post of Moharrir where they were originally working. The first one was called as LDC whereas the second one was called as RLDC (Redesignated Lower Division Clerk). The State maintained two separate seniority lists for LDC and RLDC. Later one was considered as a dying cadre and in the next promotional post, they were considered with the ratio of 1:1 being one from each list. The subject issue came up for consideration in the case of State of West Bengal VS- Subal Chandra Das and Ors. reported in 1996 Volume-VII Supreme Court Cases page-191. In the said case Subal chandra was a Moharrir working in Collectorate in Nadia. He was re-designated as Lower Division clerk. The dispute arose with regard to the pay fixation. The Apex Court observed that once the Moharrir was redesignated as LDC and fused into the category of LDCs all became a class and Subal would be entitled to get the same scale of pay and other service benefit. Since the High Court in a writ petition directed the State to maintain 1:1 ratio between the two groups such ratio should be maintained till exhausted. The Apex Court rather upheld the High Court decision maintaining 1:1 ratio.
(3.) IN this backdrop let us consider the present controversy. As observed earlier, Goutam got the promotion in the post of LDC with effect from February 23, 1999 whereas Somenath was re-designated as LDC with effect from July 1, 1989 by virtue of the Memo dated January 19, 1989 appearing at page 57 of the petition. Somenath was however placed above Goutam in a combined Gradation List in the post of Upper Division Clerk. According to Goutam, he was admittedly senior to Somenath in the Gradation List of Moharrirs as per merit. He was erroneously shown as direct recruit in LDC. He was also a RLDC as on July 1, 1989 as he did not have any confirmed promotion in the post of LDC on that date. Despite service, Somenath did not appear either before the Tribunal or before us. Per contra, the learned Advocate General appearing on behalf of the State, contended that Rule 5 of the Seniority Rules determined the seniority. Goutam got the promotion as LDC with effect from February 23, 1989 when admittedly Somenath was working as Moharrir. Goutam was subsequently confirmed in the post of LDC in 1992. Hence, he could not be considered as a Moharrir on July 1, 1989 when Somenath was admittedly a Moharrir and was re-designated as LDC being RLDC. Hence, Goutam and Somenath were differently placed on July 1, 1989 and could not be treated at par. Goutam got the promotion in the post of Upper Division clerk on November 8, 1998. Goutam was accordingly placed in the Gradation List, so was Somenath. He contended that the Memo dated November 8, 1998 appearing at page 63 showing Goutam as a qualified Moharrir on July 1, 1989 was erroneous and Goutam was not entitled to take the benefit out of it. According to the learned Advocate General, a mistaken benefit could not give any right and the State was entitled to correct its own mistake as and when surfaced. To support his contention that Goutams promotion on temporary basis once confirmed would relate back to the date of his initial promotion, the learned Advocate General relied on the decision in the case of State of Baleshwar Dass and Ors VS- Uttar Pradesh and Ors. reported in 1980 Volume-IV Supreme Court Cases Page- 226. In paragraph 33 of the said decision the Apex Court observed :- Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it is not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority. For other purposes they may remain temporary.;