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2000 Supreme(Cal) 571
IN THE HIGH COURT AT CALCUTTA
S.B. SINHA & P.K. RAY, JJ.
Manobrata Chowdhury
Versus
Calcutta Municipal Corporation & other
MAT No. 3104 of 2000
Decided on : 23.11.2000
K.K. Bandopadhyay, Kishori Dutta for the Appellant.
L.C. Behani, N.C. Behani for the Respondent.
An ad hoc appointee has no right to hold the post, but the authorities concerned have the power to change the ad hoc arrangement, such change must pass the test of fairness, reasonableness, and arbitrariness.
Headnote:
PROMOTION - AD HOC - REVERSION - ARBITRARINESS - FAIRNESS - REASONABLENESS - NATURAL JUSTICE - PROMOTION TO THE POST OF MANAGER, DATA PROCESSING CENTRE (DPC) - REVERSION TO ORIGINAL DEPARTMENT - CHALLENGED - HELD, REVERSION ORDER ARBITRARY AND VIOLATIVE OF NATURAL JUSTICE - PROMOTION ORDER RESTORED.
Fact of the Case:
The appellant, an Assistant Engineer (E), was promoted to the rank of Executive Engineer (E) on an ad hoc basis and placed as Manager, DPC, due to his computer knowledge and background and the unwillingness of the senior incumbent to accept the promotion. Later, the appellant was reverted to his original department without any reason, and a new incumbent was placed in the DPC.
Finding of the Court:
The court found that the appellant's selection for promotion was based on positive reasons and that no reason was assigned for changing the ad hoc arrangement. The court also found that the impugned order was passed without assigning any reason and was arbitrary and violative of the principle of natural justice.
Issues: 1. Whether the appellant's ad hoc promotion to the rank of Executive Engineer (E) and placement as Manager, DPC, was valid. 2. Whether the appellant's reversion to his original department was arbitrary and violative of natural justice.
Ratio Decidendi: 1. An ad hoc appointee has no right to hold the post, but the authorities concerned have the power to change the ad hoc arrangement, such change must pass the test of fairness, reasonableness, and arbitrariness. 2. The appellant's selection for promotion was based on positive reasons, and no reason was assigned for changing the ad hoc arrangement. 3. The impugned order was passed without assigning any reason and was arbitrary and violative of the principle of natural justice.
Final Decision: The court set aside the impugned order reverting the appellant to his original department and the decision replacing him with a new incumbent in the DPC. The court also directed that the appellant's placement as Manager, DPC, would continue till the regular appointment is made to the post or the adjustment of the appellant in the rank of Executive Engineer (E) in a permanent vacancy as per rule.
P.K. RAY, J.
1. Instant appeal is directed challenging the order dated 11.9.2000 passed by Dilip Kr. Seth, J. in AST 2973 of 2000 whereby and whereunder the following order was passed:-
"Thus the petitioner can be expected to continue till 26th December, 2000 and not beyond. Then his posting in the Data Processing Centre was purely a stop-gap arrangement. The order indicates that he would look after the job of Data Processing Manager till the post is filled up in regular manner or till the petitioner is adjusted against future vacancy in the post of Executive Engineer whichever is earlier. Thus the petitioner cannot claim any lien in the post of Data Processing Manager. He has no right to continue therein in case the post is filled up on the regular manner. The petitioner's claim for promotion to the post of Executive Engineer is subject to the decision of the Municipal Service Commission. Thus the posting as Data Processing Manager of the petitioner by reason of the condition contained in the order dated 26th June, 2000 permits the petitioner to continue on probation for a period of six months he can have some claim on the basis there off or which he may make a representation in order to secure payment which may be considered by the respondent in accordance with law having regard to the facts and circumstances of this case. The posting of the petitioner in the post of Assistant Engineer and his joining the said post will be without prejudice to the rights and contentions. With regard to the claim for payment as indicated above, if there by any. The respondent may consider the case of the petitioner as soon as his turn comes viz., as pointed out by Mr. Behani on 31st January, 2001. Let it be noted that I have entered into the merit. Of the case with regard to the petitioner's entitlement to the promotion."
2. The writ application was filed by the appellant-petitioner challenging the office order DMC(P)/PT/217/2000-01 dated 31st August, 2000 issued by Deputy Municipal Commissioner, Calcutta Municipal Corporation whereby the writ petitioner-appellant was sent back to original department that is Tube-well Department from the post of Manager, DPC. The main grievance of the writ petitioner-appellant is that by the impugned order in the writ application he was demoted to the post of Assistant Engineer (Electrical) in Tube-well Department from his new assignment, which was a promotional post. He was promoted in terms of the office order no. DMC(P)/PT/106/2000-01 dated 26th June, 2000 as per decision of competent authority, the Municipal Commissioner in terms of the order of Municipal Commissioner dated 26th June, 2000, in the rank of Executive Engineer (E).
3. The Calcutta Municipal Corporation has contested the matter justifying the impugned order on the ground that the writ petitioner's appointment in the post of Manager (DPC) was by ad hoc promotion in the rank of Executive Engineer (E) for temporary period and by holding such post writ petitioner did not accrue any right. It is further submitted that in the rank of Assistant Engineer (E) which is the feeder rank of Executive Engineer (E) in the gradation list. the writ petitioner-appellant was in Serial No. 2 whereas one Sri Tamal Ghatak was in the first position in the list and as per the recruitment rules for selection in the rank of Executive Engineer (E) which is passed on merit cum seniority, the first placement in the post under the said rank was required to be done to said Sri Ghatak. But unfortunately, due to mistake Tamal Ghatak was not considered and accordingly Tamal Ghatak has recently been promoted to the said rank of Executive Engineer (E) by placing him in the P and D Department, in the vacancy as caused in the said post and in the said rank due to superannuation of the incumbent Sri Asim Bikas Dutta Gupta. It is further submitted by the learned Advocate of the Calcutta Municipal Corporation that the present writ petitioner-appellant would be considered for pro
