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HIGH COURT OF CALCUTTA
H. K. Bose, C. J. , B. C. Mitra
PROSAD CH. DAS - Appellant
Versus
COMMRS. FOR THE PORT OF CAL - Respondent
Civil Appellate Jurisdiction . Of .
Decided On : December 6, 1965
CALCUTTA PORT ACT, 1890 - SECTIONS 31, 32 - CIRCULAR ISSUED BY SECRETARY OF COMMISSIONERS FOR PORT OF CALCUTTA - VALIDITY - DELAY IN FILING WRIT PETITION - LACHES - NECESSARY PARTIES - IMPLEADING OF.
Fact of the Case:
The appellant, a Yard Clerk in the Transportation Section of the Traffic Department of the Commissioners for the Port of Calcutta, challenged the promotion of one Sunil K. Roychowdhury, a Yard Clerk in the A.R.P. Unit, to the post of Yard Foreman, superseding him, on the ground that the circular dated July 3, 1958, issued by the Secretary of the Commissioners, granting seniority to the A.R.P. staff over the regular staff, was illegal and void. The appellant filed a writ petition under Article 226 of the Constitution, which was dismissed by the trial court on the ground of delay and non-joinder of necessary parties. The appellant appealed against the dismissal of the writ petition.
Finding of the Court:
The court held that the delay of one year and two months in filing the writ petition was unreasonable and barred the appellant from relief. The court also held that the A.R.P. staff, who were promoted on the basis of the impugned circular, were necessary parties to the writ petition and their non-joinder was fatal to the appellant's case. The court further held that the circular dated July 3, 1958, was not illegal or void as it was issued under the powers conferred on the Commissioners by Section 32 of the Calcutta Port Act, 1890, and that the absence of rules framed under Section 31 of the Act did not invalidate the promotions given to the A.R.P. staff.
Issues: 1. Whether the delay of one year and two months in filing the writ petition was unreasonable and barred the appellant from relief? 2. Whether the A.R.P. staff, who were promoted on the basis of the impugned circular, were necessary parties to the writ petition? 3. Whether the circular dated July 3, 1958, was illegal or void?
Ratio Decidendi: 1. The court held that the delay of one year and two months in filing the writ petition was unreasonable and barred the appellant from relief, relying on the decision of the Supreme Court in St. of Madhya Pradesh and another v. Bhailal Bhai and others, AIR 1964 SC 1006, which held that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. 2. The court held that the A.R.P. staff, who were promoted on the basis of the impugned circular, were necessary parties to the writ petition, relying on the decision of the Supreme Court in Uditnarain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786, which held that a party whose interests are directly affected is a necessary party and a petition filed for a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the Court would certainly be incompetent. 3. The court held that the circular dated July 3, 1958, was not illegal or void as it was issued under the powers conferred on the Commissioners by Section 32 of the Calcutta Port Act, 1890, and that the absence of rules framed under Section 31 of the Act did not invalidate the promotions given to the A.R.P. staff.
Final Decision: The appeal was dismissed.
( 1 ) THIS is an appeal against a judgment and order of Sinha, J. dated June 4, 1964, whereby a rule nisi obtained by the appellant, in an application under Article 226 of the Constitution, was discharged.
( 2 ) THE appellant's case as made out in the petition is that on November 29, 1943, he was appointed a Yard Clerk in the Transportation Section of the Traffic Department of the Commissioners for the Port of Calcutta, the respondent No. 1 herein. In December, 1945, he was promoted to the post of Upper Division Clerk and on June 8, 1951, he was confirmed in that post. The next higher post to which the Upper Division Clerks could be promoted was the post of Yard Foreman. The appellant had officiated for sometime in the post of Yard Foreman, but he came to know that one Sunil K. Roychowdhury who was appointed in 1945 to the post of Yard Clerk, Transportation Section, was likely to be promoted treating him as senior to the appellant, on the ground that the said Sunil K. Roychowdhury had been recruited in 1940 in the A. R. P. Unit in the port area. The promotion of Sunil K. Roychowdhury is alleged to have been made on the basis of a circular July 3, which is annexure 'a' to the petition.
( 3 ) IT is alleged that by a circular dated July 10, 1940, employees of the respondent No. 1 were invited to volunteer for service overseas in the A. R. P. Dock Unit proposed to be raised by the army, and in the said circular it was stated that war service would count towards grade increment with the Commissioners, and that those who were temporary would be made permanent, before they went overseas.
( 4 ) BY another circular dated July 27, 1940, it was made clear that unless sufficient number of volunteers from the employees of the respondent No. 1 joined the proposed A. R. P. Dock Unit to be raised by the army, by July 31, 1941, outsiders would be recruited and in that event they would be given permanent posts in the service of the respondent No. 1 from the date of enrolment. In terms of this circular ten outsiders were recruited in the A. R. P. Dock Unit and they were given permanent posts under the Commissioners from the date of their enrolment. A second Unit was raised with regard to which it was stated in a Note by the Chairman of the respondent No. 1 that outsiders recruited for this Unit would get prior consideration after the war. Priority was also promised to full time Port A. R. P. Staff.
( 5 ) IT is alleged that the appellant belonged to the Railway Transportation Section and by reason of the seniority promised to the A. R. P. staff, the original employees of the Railway Traffic Section became junior to the A. R. P. staff and this affected the chance of their promotion to the higher grade. It is further alleged that the said circular dated July 3, 1958, is inequitable and discriminating, as the A. R. P. staff has been absorbed in the various other departments, but seniority was not given to them over regular staff in the matter of promotion. It is also alleged that in the Traffic Department itself there are different sections but except for the Transportation Section, the A. R. P. staff has not been given seniority in other sections.
( 6 ) ON July 24, 1961, the appellant and others made a representation to the Superintendent of Transportation of the respondent No. 1 against their supersession in the seniority list by the A. R. P. staff. As there was no response from the respondent No. 1 on this representation, further representation was made by the Calcutta Port and Dock Workers Union to the Regional Labour Commissioner, and the Chairman of the respondent No. 1, complaining that a departure had been made from the seniority rules. The Conciliation Officer, however, by his letter dated December 12, 1961 informed the aggrieved parties that nothing could be done in the matter.
( 7 ) IT is alleged that the said circular has been issued by the Secretary of the respondent No. 1 in excess of his powers and is, therefo
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