- (1.) In this application under Art. 226 of the Constitution of India, the petitioner Smt. Anima Pal challenges the appointment of Smt. Winifred James as Lady Supervisor in PBX at New Secretariat Buildings, Calcutta by the order dated 17th Feb. 1979. On that date there was an order whereby Smt. Pal, Grade I Operator acting as Monitor in the New Secretariat PBX was directed to cease to act as Monitor and directed to act as Grade I Telephone Operator in the said PBX with effect from the date of the filling up of the post of Lady Supervisor for the New Secretariat P. B. X. in lieu of the post of Monitor there. In order to appreciate this challenge it is necessary to refer to certain facts. According to the petitioner the petitioner was appointed as a Telephone Operator in the office of the Chief Electrical Engineer, Government of West Bengal. In Annexure C which is the communication of the Public Works Department, Government of West Bengal dated 20th Apr. 1968 it has been stated that Smt. Winifred James was appointed as a Telephone Operator, Grade I on 16th July, 1957, Smt. Shanti Bhattacharya was appointed in the same position on the 15th of July, 1957 while Smt. Pal was appointed on the 1st of Nov. 1950 in the same position. According to the petitioner in the gradation list published on or about the 10th Nov. 1966 which indicated the telephone operators in the Public Works Department who were substantively appointed on probation with effect from 14th of Dec. 1964 the name of Smt. James appears as No. 7, the name ot Smt. Bhattacharya appears as No. 5 while the name of the petitioner Smt. Pal appears as No. 2. This will be evident from Annexure A dated 10th Nov. 1966. But sub- sequent thereto on the 14th June, 1967 an order was passed which is also in Annexure A it is indicated that on the expiry of the probationary period the Telephone Operators named in the said communication who were substantively appointed in that cadre in terms of the Public Works Department Order 4721-E dated 10th Nov. 1966 were confirmed in the post of Telephone Operator under the P. W. Department with effect from 14th Dec, 1966. In the said list the name of Smt. Pal as I have mentioned before appeared as No. 2, the name of Smt. Bhattacharya as No. 5 and the name of Smt. James appeared as No. 7. But on the 20th Apr. 1968 there was an order issued in the Public Works Department, which is Annexure B, in which it is stated that on amalgamation of the Writers' Buildings PBX and the New Secretariat Buildings PBX the names of Grade I telephone operators and telephone operators permanent and temporary, should be in the order indicated in the joint gradation list mentioned in the said communication. So far as the permanent Grade I telephone operators were concerned the name of Smt. James appeared as No. 1 while the name ot Smt. Bhattacharya appeared as No. 2 and the name of the petitioner Smt. Pal appeared as No. 3. Now it is the case of the petitioner that the petitioner had protested against this gradation list published on the 20th Apr., 1969 whereby the petitioner was indicated as No. 3 while Smt. James was indicated as No. 1. In paragraph 8 of the affidavit-in-opposition affirmed by one Prasanta Kumar Bose on the 12th June. 1979 in answer to the Rule Nisi it has been stated that the persons concernod were informed of the said gradation list as prepared in the year 1968 and nearly about one year thereafter the petitioner filed an obejction dated the 20th Apr., 1969 which was duly considered by the Government and it is further asserted that a reply was sent to the Telephone Operators including the petitioner by Memo No. 1851 (23)-E dated 12th May, 1969. It has been further stated on behalf of the respondent that Smt. James and Smt. Bhattacharya had been placed over others in the said gradation list on the ground that both the said operators, viz., Smt. James and Smt. Bhattacharya had been previously selected for appointments as Monitors drawing special pay of Rs. 10/-. The said Smt. James was appointed as Monitor on 14th June, 1958 and Smt. Bhattacharya was appointed as Monitor in Sept. 12, 1961 while Smt. Pal was appointed as Monitor long thereafter. In para. 6 of the affidavit-in-reply affirmed by Smt Pal on 22nd June, 1979, Smt. Pal does not categorically deny that such answer was sent to the petitioner. She only asserts that she does not recall what was stated in the reply as she did not have a copy ot the said reply. It is not denied that Smt. James had been appointed monitor prior to the petitioner, in point of time.
(2.) On behalf of the petitioner it was stated that the appointment of monitor was not of significance. It was submitted that in schools or colleges, sometimes monitors are appointed or nominated to supervise the classes. Therefore, the fact that Smt. James had been appointed to act as monitor over and before the petitioner did not or should not give Smt. James any superior claim to be considered before Smt. Pal or did not entitle her to be placed higher in the seniority list before, in 1968, referred to hereinbefore. It is true that in schools or colleges sometimes monitors are appointed. But monitors do perform, even in schools or colleges, the task of supervision to a certain extent of the classes and the supervisor performs, though, not similar, something of a nature of duty of supervision. In any event the fact that the person was appointed to perform the task of supervision prior thereto had been considered in formulating the gradation list, the reason for which was communicated to the petitioner, as early as 1968, is not seriously disputed by the petitioner. If, that is the position, then, in my opinion, the seniority list, as such, prepared in 1968 cannot be reopened for reasons more than one.
(3.) Firstly, because the factor that Smt. James was appointed monitor prior to Smt. Pal was not an irrelevant factor. Secondly Smt. Pal was aware ot this ground for all these years and she did not, either in a departmental appeal or by any appropriate legal proceedings, challenge the said gradation list. Therefore, at this late stage, it would be inappropriate to say that the gradation list was improper or was erroneously prepared or was not prepared, on due consideration of the factors. In support of the contentions that there was no proper consideration, learned advocate for the petitioner drew my attention to a decision of the Supreme Court in the case of Barium Chemicals Ltd. v, A. J. Rana, 1972 AIR(SC) 591where at p. 595 of the report the Supreme Court had stressed the view that the consideration meant application of mind to the issues in question. Having regard to the factors that I have mentioned in this case, it cannot be said that in this case there was no consideration of relevant factors or the placement of Smt. James in 1968 seniority list was passed on consideration of irrelevant factors. Reliance was also placed on certain observations of the Supreme Court in the case of State of Mysore V/s. C. R. Seshadri, 1974 AIR(SC) 460 and the learned advocate drew my attention to the observations of the Supreme Court at page 461 of the report that a fair opportunity should be given to the party concerned. In this case, as I said, the seniority list was communicated to the party. That is not disputed. The petitioner, in fact, made a representation against the seniority list. It is not Instated or alleged that the petitioner claimled any right to be heard in person in sup- port of her contention. A reply was sent to the said seniority list, as asserted in Paragraph 8 of the affidavit filed on behalf of the respondent, as I have indicated before. The allegations made by the petitioner in Paragraph 6 of the affidavit have not, however, been seriously disputed. Furthermore, the ground upon which the consideration had been made is not, as I have mentioned before, an irrelevant consideration, as indicated in the said affidavit on behalf of the respondent. Furthermore, the fact that the petitioner allowed such seniority list to stand without taking recourse to either departmental appeal or to any other legal proceedings, in my opinion, leads to the probability that the petitioner accepted such seniority list, and, as I have mentioned before the work of a monitor though not similar may be, in some cases be analogous to the work of a supervisor, specially, in telephone operating exchange. It is well settled that the seniority list, specially, in the official matter should not be disturbed after a lapse of long time. Reference in this connection may be made to the observations of the Supreme Court in the case of M. L. Cecil D Souza V/s. Union of India, 1975 AIR(SC) 1269 and reliance may be placed on the observations appearing at page 1272 of the report. Similar view was expressed by the Supreme Court in the case of R. N. Bose V/s. Union of India, 1970 2 SCR 697.;