- (1.) Shree Rabindra Nath Mukherjee is the petitioner in this application under Art. 226 of the Constitution. He challenges the resolution dated 28th of Sept., 1977, the decision made at the meeting of the West Bengal Cabinet on the 6th of Oct., 1977 and the orders in consequence thereof. He further challenges what he calls reduction in rank of the petitioner and asks for consequential orders and directions. In order to appreciate the challenge, it would be necessary to refer to certain facts. The petitioner is a qualified engineer from Bengal Engineering College with a First Class Degree standing fourth in the University of Calcutta in the year 1955. He states that he is holding various other Post-Graduate qualifications and is a member of the various Engineering Institutes. He states that in or about 1961 he became a senior covenanted officer of Jessop & Co. The Calcutta Metropolitan Planning Organisation briefly referred to hereinafter as C. M. P. O. came into existence as an autonomous body in 1961 initially for the purpose of operation of development plans for the Calcutta Metropolitan District and other regions in the State of West Bengal. From time to time its sphere of operation, according to the petitioner was extended to many other regions in the State of West Bengal. In March, 1964 C. M. P. O. ceased to be an autonomous body and became one of the units of the Town and Country Planning Branch of the Development and Planning Department. The petitioner states that in 1964 advertisement was issued by the Public Service Commission for the post of Structural Engineer in the scale of Rs. 1500-60-1800/- and on or about 3rd of April, 1965 the petitioner applied for the said post and was appointed with two higher initials in the pay of Rs. 1620/- in the Department of Development and Planning at its Unit C. M. P. O. The petitioner further claims that having appreciated his ability the Commissioner of the Town and Country Planning Department, Government of West Bengal in or about 1967 recommended the petitioner for the post of Additional Chief Engineer or Deputy Chief Engineer. It is further stated that the post of the petitioner was re-designated as Superintending Engineer on or about 1st of August, 1968 for the said organisation without any addition to his emoluments. On or about 31st of Dec.1970 the petitioner was given according to the petitioner the permanent status in the post of Superintending Engineer, Town and Country Planning Department, Government of West Bengal. The notification dated 31st December, 1970 which is Annexure 'D' to the petition and which has not been challenged, makes the permanent status of petitioner in the Cadre of Suprintending Engineer in the service of State beyond doubt. The petitioner further claims that on or about 28th of July, 1971 the petitioner was confirmed in the post of Superintending Engineer. The petitioner was asked by the Government in Dec. 1971 to act as the Chief Engineer during the absence of the then Chief Engineer. On or about 12th of May, 1972 the petitioner was appointed as Chief Engineer of the Development and Planning Department in the Town and Country Planning Branch, Government of West Bengal. On or about 12th of Sept. 1972 the designation of the petitioner, according to the petitioner was changed to Executive Director and. Chief Engineer without any enhancement of the scale of pay. It is, further, the case of the petitioner that the Deputy Secretary of the Government of West Bengal informed the Accountant General West Bengal about the scale of pay of the Executive Director & Chief Engineer plus other allowances. The petitioner states that in or about Oct. 1974 the petitioner was drawing his salary in the said scale and had reached the optimum limit of Rs. 2350/-. It appears that in or about April, 1976 the jurisdiction of C. M. P. O. was extended to other areas in the State of West Bengal. The petitioner claims that on the 8th of Nov. 1976 the petitioner was confirmed and substantially appointed in the said post of the Executive Director and Chief Engineer w.e.f. 12th of Oct. 1972. This contention and/or assertion, is, however, disputed seriously by the respondents and will have to be referred to in detail later on. The petitioner, further, states that by a notification the petitioner was made Chairman of the joint technical team to conduct the technical survey and identify suitable sources of unpolluted water for a large area of West Bengal. The said notification was extended on the 10th of Sept. 1977 by another notification up to 30th of June, 1978. It is the case of the petitioner that the jurisdiction of C. M. P. O. was extended over almost the whole of the State of West Bengal. The petitioner has sought to annex a long list of areas and works outside the city of Calcutta where the jurisdiction of C. M. P. 0. was extended. The significance of this rather innocuous controversy would be manifested later when the contentions in this case are examined. According to the petitioner the petitioner was confirmed and substantially appointed in the post of Executive Director and Chief Engineer with effect from 12th of Oct. 1972. This contention and/or assertion is, however, seriously disputed by the respondents and the dispute will have to be examined in detail later on. On or about 3rd of Dec. 1976 the Commissioner Town and Country Planning and Ex-Officio Secretary to the Government of West Bengal informed the Public Service Commission that the Government had decided not to re-designate the said post but to retain the same because the petitioner had already been confirmed in the said post. In order to understand this position it would be necessary to refer to the contentions of the respondents. It appears that the petitioner was originally recruited through the Public Service Commission as Superintending Engineer and was confirmed in that post on 31st Dec. 1970 as noted earlier.
(2.) Later on the petitioner was appointed as Executive Director and Chief Engineer, a post created in lieu of two posts. This position was brought to the notice of the Public Service Commission and the Public Service Commission took serious and categorical objection to the course adopted by the Government. According to the Public Service Commission prior approval of the Public Service Commission was necessary. Further, according to the Public Service Commission consultation with Public Service Commission was necessary in view of Art. 320 of the Constitution and before the question of appointment of the petitioner could be considered, recruitment rules should have been framed and upon the framing of such recruitment rules the question of appointment of the petitioner as Chief Engineer and Executive Director might be taken up and the Public Service Commission was, further, of the view that the confirmation of the petitioner in violation of the procedure indicated above would be contrary to Art. 16 of the Constitution. These views of the Public Service Commission were categorically communicated to the Government by the letters which are annexed to the affidavit of Subhas Ranjan Das affirmed on the 5th of Dec. 1977 and filed on behalf of the respondents in this application. It appears at one stage that the then Hon'ble Minister Sree B. N.Sen was also of the same view. This would be apparent from the endorsement of the Hon'ble Minister in the notes on the files which were produced before me. The Cabinet, however, by a resolution which is annexed also to the affidavit of the said Sree Subhas Ranjan Das at its meeting on the 2nd of May, 1973 approved the proposal of creation of a permanent post of Executive Director and Chief Engineer under the Calcutta Metropolitan Planning Organisation in the revised scale of pay of Rs. 2000-125-2350/- and also the appointment of the petitioner in that post. In spite of this by a letter dated 4th of April, 1977 the Public Service Commission categorically informed the Government that the appointment of the petitioner was irregular, unconstitutional and illegal, contravening, according to the Public Service Commission, provisions of Arts. 320 (3) and 16 of the Constitution. The Commission, further, stated that the above facts would be mentioned in the annual report of the Commission. The Commission requested the Government to frame recruitment rules. In the background of this controversy the Government sought the opinion of the Legal Remembrancer.
(3.) The files containing the notes and opinion of the Legal Remembrancer make interesting reading. The same are annexed to the affidavit of Subhas Ranjan Das affirmed on the 20th of March, 1978. Opinion, it seems, was sought ontwo points, (a) whether Sree Mukherjee's appointment as Executive and Chief Engineer could be looked upon as a regularised one and secondly, whether he could be confirmed in that post without reference to any recruitment rules and without consulting the Public Service Commission. The Legal Remembrancer sent the matter to the Special Legal Remembrancer for disposal. The Special Remembrancer gave a one line opinion by stating that he did not find any bar in doing the above on 27th of Aug. 1976. In view of this there was again some hesitancy as the opinion of the Special Legal Remembrancer was characterised as laconic and the matter was placed before the Hon'ble Minister. In that view of the matter the Government again approached the Legal Remembrancer for further opinion and the Legal Remembrancer this time passed on the buck to the Additional Joint Legal Remembrancer. The Additional Joint Legal Remembrancer has said in his note that the opinion given by the Special Legal Remembrancer is "a rare instance where the Special L. R. hazarded to give his opinion on a point of Law". The Additional Joint Legal Remembrancer expressed his opinion and the matter finally went to the Legal Remembrancer and the Legal Remembrancer on the 29th of Sept. 1976 answered by saying that according to him the appointment of Sree Mukherjee as Executive Director and Chief Engineer could not be considered to be regularised but on the question No. 2 namely, that whether he could be confirmed to that post without reference to any recruitment rules and without consulting the Public Service Commission that this could be done. The Cabinet accepted the course and appointed him in that post without reference to any recruitment rules and without consultation with the Public Service Commission. I have referred to this controversy because one of the points taken on behalf of the respondents is that the appointment of the petitioner as Executive Director and Chief Engineer was irregular. Therefore it was urged that removal from that post could not entail curtailment of any of his rights. In view of the Cabinet decision confirming Sree Mukherjee in that post this contention legally cannot be accepted. The petitioner was validly, as a result of the Cabinet decision, appointed as the Chief Engineer and Executive Director. It is well settled that in respect of the provisions of Article 320 of the Constitution appointment without consultation with the Public Service Commission does not make the appointment invalid or void. See in this connection the decisions of the Supreme Court in the case of State of U. P. v. Manbodhan Lal, 1957 AIR(SC) 912 and Ram Gopal V/s. State of M. P., AIR 1970 SC 158. In view of the Cabinet decision dated 8th November 1976 which is annexed to the petition of Sree Rabindra Nath Mukherjee it cannot therefore be held that the appointment of Sree Mukherjee was irregular and his removal for that reason from that post would not have been improper. But I do not think that the circumstances and the manner in which the appointment was made though legal lose their significance in judging the propriety or the impropriety of the subsequent action of the Government. It appears according to the petitioner that on or about Mar.1977 the Government declared various areas in the State of West Bengal as being areas within the jobs of C. M. P. O.;