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2006 Supreme(Cal) 724
High Court Of Calcutta
Ashim Kumar Banerjee And Tapan Mukherjee, JJ.
NEW INDIA ASSURANCE COMPANY - Appellant
Versus
SUKANTA MITRA - Respondent
W. P. 750 Of 2000
Decided On : 11/22/2006
ASHIM KUMAR DUTTA, KASHI KANTA MAITRA, NOVOJIT MUKHERJI, PARAMESH BHATTACHARJI, PARTHA SARATHI SENGUPTA, PROBAL KUMAR MUKHERJEE
There cannot be a class within a class, and all employees in the same cadre must be treated equally for the purpose of promotion.
Headnote:
PROMOTION - BI-PARTITE AGREEMENT - INDUSTRIAL DISPUTES ACT, 1947 - SECTION 9A - INDUSTRIAL DISPUTES (CENTRAL) RULES, 1957 - RULE 25 - Held, the promotion of an employee from the post of Punch Card Operator to Data Entry Operator was not a promotion but a change in cadre since both posts had the same pay scale. The subsequent circular issued by the employer allowing Machine Operators, who were at par with Punch Card Operators, to apply for the post of Programmer was discriminatory and violated the principle that there cannot be a class within a class.
Fact of the Case:
The respondent, an employee of the appellant company, was working as an Assistant since 1978 and was not given any promotion. The appellant company wanted to introduce a micro-processor unit which was opposed by the employees. A bipartite agreement was entered into between the General Insurance Corporation, the holding company of the appellant, and the employees' union, by virtue of which the appellant could install and introduce microprocessors in their offices. Under the agreement, the assistants working in the different offices could be considered for the post of Data Entry Operator, whereas senior assistants having a higher pay scale were to be considered for the post of Programmer. The respondent applied for the post of Programmer but was offered the post of Data Entry Operator. He filed a writ petition challenging the order, which was allowed by the Single Judge. The appellant company filed an appeal against the order.
Finding of the Court:
The Court held that the respondent's application for the post of Programmer was based on a misconception and that the authority had rightly considered him for the post of Data Entry Operator. However, the Court also held that the subsequent circular issued by the appellant company allowing Machine Operators to apply for the post of Programmer was discriminatory and violated the principle that there cannot be a class within a class. The Court directed the appellant company to consider the respondent for the post of Programmer along with his colleagues working as Machine Operators.
Issues: 1. Whether the promotion of the respondent from the post of Punch Card Operator to Data Entry Operator was a promotion or a change in cadre? 2. Whether the subsequent circular issued by the appellant company allowing Machine Operators to apply for the post of Programmer was discriminatory?
Ratio Decidendi: 1. The Court held that the promotion of the respondent from the post of Punch Card Operator to Data Entry Operator was not a promotion but a change in cadre since both posts had the same pay scale. 2. The Court also held that the subsequent circular issued by the appellant company allowing Machine Operators to apply for the post of Programmer was discriminatory and violated the principle that there cannot be a class within a class.
Final Decision: The appeal was dismissed, and the order of the Single Judge was upheld.
( 1 ) THE respondent was working as an assistant in the appellant company. Since his appointment in 1978 he was not given any promotion and since then he was working as Punch Card operator in the regional office of the appellant at Kolkata. The appellant company wanted to introduce micro processor unit which was being opposed by the employees. Bipartite agreement was entered into by General insurance Corporation, the holding company of the appellant on the one hand and the employees union on the other hand on November 8, 1986 by virtue of which the appellant could install and introduce micro processors in their offices. Under the agreement the assistants working in the different offices could be considered for the post of Data Entry Operator whereas senior assistants having a higher pay scale were to be considered for the post of Programmer. Pertinent to note that the post of Data Entry Operator did not enjoy any better scale than that of the Assistant. Hence, according to the respondent such consideration was, in fact, for a change in cadre and in any event not a promotion. Applications were invited for the post of Data entry Operator as well as Programmer from the eligible employees. The respondents/writ petitioners applied on April 30, 1987. In the said application appearing at pages 74-75 of the paper book the respondent contended that since he acquired suitable knowledge and skill to perform as a Programmer he should be considered for the said post. It was further made clear that by virtue of his designation as Punch Card Operator he should automatically be considered for the post of Data Entry Operator in case he was not selected as a Programmer. He also refused to undergo any aptitude test in the selection process. On the basis of the said application he was offered the post of Data Entry Operator vide letter dated March 24, 1988 as he was not entitled to be considered in the post of Programmer by virtue of the bipartite agreement. When the selection process was in progress the appellant issued a circular dated March 7, 1988 page 107 of the paper book marked as "offices in Bombay" by which Machine Operators who were at par with Punch Card operators were given one time opportunity to apply for the post of programmer as and by way of promotional process. Since the respondent/ writ petitioner was a Punch Card Operator and not a Machine Operator he was not given benefit of the said circular.
( 2 ) THE petitioner became dissatisfied. He made representation. He approached this Court earlier. This Court directed consideration of his case after giving him an opportunity of hearing. The order of this Court in the first writ petition dated November 9, 1999 is appearing at page 45 of the paper book.
( 3 ) IN terms of the order of this Hon'ble Court the authority framed a committee which heard the respondent on his representation and passed a reasoned order appearing at pages 77-85 of the paper book. By the said reasoned order representation made by the respondent was rejected, inter alia, on the ground that he was not entitled to be considered for the post of programmer as he was not a Machine Operator. Moreover, he did not have the requisite qualification for the post of Programmer. The certificate issued by the British Institute so produced by the respondent/writ petitioner was not adequate to apply for the post of Programmer.
( 4 ) BEING aggrieved by, and dissatisfied with, the reasoned order so passed by the authority the second writ application was filed by the respondent/ writ petitioner which was finally heard and disposed of by the learned Single judge by the judgement and order under appeal appearing at pages 214-233 of the paper book. By the said judgment and order the reasoned order was quashed and the writ petition was allowed. Hence, the appellant company filed the instant appeal which was heard by us on the above mentioned dates.
( 5 ) MR. Partha Sengupta, learned Counsel appearing for t
