Kalyan Jyoti Sengupta, J. - (1.) By this writ application the petitioners have impugned order dated 13th August, 2001 passed by the Commissioner, the Kolkata Municipal Corporation, being the respondent No. 2 whereby and whereunder he has in purported compliance of the two orders and judgments dated 23rd June, 1999 (passed in A.P.O. No. 609 of 1997) and dated 22nd September, 2000 (passed in C.C. No. 17 of 2000), respectively refused to rectify or modify the final gradation list dated 26th November, 1998 and 25th June, 1999, and further prayed for substantive relief of rectification and/or modification of the final gradation list as above by determining and/or fixing the seniority, inter se , of the members of the petitioner No. 1 including petitioner nos. 2 to 6 and for other consequential benefits.
(2.) The fact of this case which is relevant and material for the purpose of the writ petitions set out as follows:- Respondent No. 1 on/or about 6th May, 1995 framed under Section 20 of the Kolkata Municipal Corporation Act, 1980, the Kolkata Municipal Corporation Services (Common Cadre) Regulations, 1994, while implementing the order of Hon'ble High Court for making gradation list of employees in the respondent No. 1. After the aforesaid regulation was framed the respondent No. 1 prepared the gradation list of all the employees department wise and cadre wise and the same was made finally on or about 14th October, 1995 and 2nd November, 1995. Being aggrieved by the said final gradation list which was published in two parts on two different dates as above the petitioners moved this Court by filing an application under Section 226 of the Constitution of India. This application was disposed of by a judgment and order dated 3rd October, 1997 by the Hon'ble Justice Prabir Kumar Samanta, whereby His Lordship was pleased not to interfere with the gradation list, however, gave liberty to the petitioners to make proper representation pointing out anomalies and irregularities in the gradation list. In the event such representation being made the respondents were directed to reconsider and rectify the irregularities. The petitioners herein being aggrieved by the aforesaid order and judgment of the Hon'ble Mr. Justice Prabir Kumar Samanta preferred an appeal. The said appeal was disposed of by an order dated 23rd June, 1999 by the Hon'ble Mr. Justice V.K. Gupta and the Hon'ble Mr. Justice P.K. Sen (as their Lordships then were). By this judgment and order Their Lordships did not interfere with the order of the learned trial judge. However, their Lordships observed and further gave direction in the manner as follows:- "....... We however wish to add that if the appellants/writ petitioners, either collectively or individually make representations to the competent authority in Calcutta Municipal Corporation pointing out any discrepancies, anomalies or irregularities in the fixation of their seniority inter se along with the others or otherwise after the coming into force of the 1994 Regulations, the competent authority in the Corporation shall consider and dispose of such representations and pass and communicate consequential orders within three months after these are received by the authority. While considering the representations so made, the competent authority shall take into account the applicable law and the Rules on the subject of fixation of seniority, all Notifications and circulars of the Corporation applicable on the subject and the original seniority of the persons who constitute the common cadre after the coming into force of 1994 regulations. We do wish to point out that such original seniority in the feeder service, relevant to the date of joining before the coming into force of 1994 Regulations would be a relevant factor in determining and fixing the final seniority in the common cadre constituted under 1994 Regulations." Pursuant to the above order and reaction of the Hon'ble Division Bench, the Municipal Commissioner by his order dated 5th March, 2000 considered the matter and refused to correct and/or modify the gradation list as prayed for by the petitioners. The petitioners being aggrieved by the above order of the Commissioner filed an application for contempt alleging that he has violated the order of Division Bench by ignoring the direction. It was said that the Commissioner patently refused to take note of the original seniority of the feeder service relevant to the date of joining before the coming into force 1994 regulation. It was also alleged that the Commissioner contrary to the direction of the Appeal Court held that the joining date is not relevant factor in determining and fixing the final seniority in the common cadre.
(3.) The said contempt application was disposed of by Their Lordships, the Hon'ble Mr. Justice V.K. Gupta and Hon'ble Mr. Justice P.K. Sen as their Lordships then were by an order dated 22nd September, 2000. Their Lordships observed that the Commissioner failed to follow Their Lordships intention by implementing the earlier order in the matter of determination and fixation of the seniority in the common cadre constituted under the aforesaid 1994 regulation. Accordingly, Their Lordships pleased to clarify Their Lordships' mind in the manner as follows : "We hereby, while disposing of the contempt application, clarify that by our aforesaid directions we had clearly meant and intended that, all things being equal, the seniority in the feeding cadre shall be a decisive factor while determining the inter se seniority into the common cadre as per 1994 Regulations." Pursuant to this last order of the Division Bench and further taking note of the earlier order of the same Bench the impugned order has been passed by the Municipal Commissioner. By this impugned order he once again with detailed reasons has retained the earlier order and as a result whereof the petitioners are aggrieved. The petitioners and each of them unsuccessfully challenged in an indirect way the last order by filing an application for contempt. This subsequent application for contempt did not yield any favourable result in the disposal, as the Division Bench presided over by the Hon'ble Mr. Justice Tarun Chatterjee and the Hon'ble Mr. Justice Jayanta Kumar Biswas by an order dated 8th March, 2002 dismissed the contempt application holding that there has been no Commission of contempt. However, Their Lordships gave liberty to challenge the impugned order before the appropriate Forum.;