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`High Court of Calcutta
Mahitosh Majumdar, J.
Kishori Mohan Dasgupta
Vs.
Damodar Valley Corporation & Ors.
C.O. No. 5777(W) of 1987
Decided on : 11th November, 1988
The court ruled that the extension of lien for respondent 7 was unauthorized, illegal, and without jurisdiction. The lien once lost could not be revived. The seniority of respondent 7 was determined from the date of his joining the Corporation and not on the basis of the extension of lien. The fixation of seniority vis-a-vis the service benefits in favor of respondent 7 was arbitrary and discriminatory, violative of Articles 14 and 16 of the Constitution. The seniority of respondent 7 was to be recast without taking into account the service in BSL during the period when he had no lien on the post of Corporation. The assignment of seniority of respondent 7, vis-a-vis the subsequent promotions to respondent 7, was set aside. The Corporation was directed to refix the inter se seniority of the petitioner and respondents 7 and 8 for the purpose of promotion and other service benefits. The Corporation was also directed to consider the representation of the petitioner for expunction of adverse remarks for the year 1986-87. Respondent 7 was not to be granted any promotion to a higher post till the determination of the matter in issue. The seniority list was to remain inoperative till the inter se seniority of the petitioner and respondents 7 and 8 was recast after due observance of the essentials of justice and fair play.
Fact of the Case:
The petitioner, an employee of the Damodar Valley Corporation (DVC), challenged the arbitrary and discriminatory treatment meted out to him by DVC and the grant of undue, unauthoised and illegal promotion and service benefits to respondents 7 and 8. The petitioner prayed for setting aside the Annual Confidential Report for the year 1986-87 recorded against him.
Finding of the Court:
The court found that the extension of lien for respondent 7 was unauthorized, illegal, and without jurisdiction. The lien once lost could not be revived. The seniority of respondent 7 was determined from the date of his joining the Corporation and not on the basis of the extension of lien. The fixation of seniority vis-a-vis the service benefits in favor of respondent 7 was arbitrary and discriminatory, violative of Articles 14 and 16 of the Constitution. The seniority of respondent 7 was to be recast without taking into account the service in BSL during the period when he had no lien on the post of Corporation. The assignment of seniority of respondent 7, vis-a-vis the subsequent promotions to respondent 7, was set aside.
Issues: 1. Whether the extension of lien for respondent 7 was authorized, legal, and within jurisdiction? 2. Whether the seniority of respondent 7 was determined correctly? 3. Whether the fixation of seniority vis-a-vis the service benefits in favor of respondent 7 was arbitrary and discriminatory? 4. Whether the seniority of respondent 7 should be recast without taking into account the service in BSL during the period when he had no lien on the post of Corporation? 5. Whether the assignment of seniority of respondent 7, vis-a-vis the subsequent promotions to respondent 7, was valid?
Ratio Decidendi: 1. The extension of lien for respondent 7 was unauthorized, illegal, and without jurisdiction because the lien once lost could not be revived. 2. The seniority of respondent 7 was determined incorrectly as it was based on the extension of lien, which was illegal. 3. The fixation of seniority vis-a-vis the service benefits in favor of respondent 7 was arbitrary and discriminatory as it violated Articles 14 and 16 of the Constitution. 4. The seniority of respondent 7 was to be recast without taking into account the service in BSL during the period when he had no lien on the post of Corporation. 5. The assignment of seniority of respondent 7, vis-a-vis the subsequent promotions to respondent 7, was invalid as it was based on the illegal extension of lien.
Final Decision: The court allowed the writ petition and directed the Corporation to refix the inter se seniority of the petitioner and respondents 7 and 8 for the purpose of promotion and other service benefits. The Corporation was also directed to consider the representation of the petitioner for expunction of adverse remarks for the year 1986-87. Respondent 7 was not to be granted any promotion to a higher post till the determination of the matter in issue. The seniority list was to remain inoperative till the inter se seniority of the petitioner and respondents 7 and 8 was recast after due observance of the essentials of justice and fair play.
The writ petitioner challenges arbitrary and discriminatory treatment meted out to him by Damodar Valley Corporation (for short the said Corporation) and grant of undue, unauthoised and illegal promotion and service benefits to the respondent no. 7 and the respondent no. 8 in contravention of the Rules and Regulations and for a re-fixation of inter-se seniority of the petitioner and the respondents no. 7 and 8 for the purpose of promotion to the post of Senior Chief Engineer. The petitioner prayed for setting aside the Annual Confidential Report for the year 1986-87 recorded against the petitioner.
2. The respondents filed affidavit-in-opposition and the petitioner also filed affidavit-in-reply. The learned Counsel appearing for the parties filed respective written arguments.
The facts of the case are stated as follows:-
3. The petitioner after his appointment to the post of Shift-in-Charga with effect from December 22, 1952 joined as Assistance Engineer (Electrical) (hereinafter referred to as A.E.(E) on May 15, 1954, pursuant to an open advertisement after due compliance of the recruitment process. The DVC Service Regulations (for short the Service Regulation hereinafter) governed the service conditions of the petitioner. The Corporation had and has adopted the Rules, Circulars Notifications applicable to the Central Government employees for its own employees, in cases not covered by the provisions of the Service Regulation.
4. Tile promotion in the Corporation service is governed by the Regulation 14 which is to the following effect:-
"Promotion shall be based on merit, relative suitability of a candidate for a particular post and seniority and shall, in the case of promotion to Class-I be made ordinarily after considering the advice of the Departmental promotion Committee (hereinafter referred to as DPC) to be set up for the purpose. Their functions and procedure shall be similar to such committee functioning under the Central Government with suitable modifications".
5. By Circular No. PL-P-OE (Con)-2/PE. 365 dated March 21, 1961, the Corporation by and under the signature of Director of Personnel laid down the guidelines as to the manner to be observed for the confirmation of Officers to be promoted out of turn. Such out of turn promotion in terms of the said guidelines requires the possession of a certain specialized qualifications/experience. The final gradation list of Engineers as on July 1, 1969 showed that the date of appointment of the respondent no. 7 in the rank of A.E.(E) is March, 1957. The respondent no. 7 was accorded out of turn promotion to the post of Executive Engineer in officiating capacity superseding the claim of seniors including petitioner ranked as AE(E) numbering 55. The Corporation issued a Circulur being No. EA/CENT/E-227 dated 4/7/68 laying down the guidelines for fixing seniority for Engineers directly appointed on the following basis:-
(a) For those appointed in the rank : Presumptive date of appointment.
upto 30/11/58
(b) For those appointed in the rank : Actual date of appointment in the rank.
upto 30/11/58 but holding sub-ordinate
post in the DVC
(c) For those appointed in the rank after : Actual date of appointment.
30/11/58 but before 1/7/65
(d) For those appointed in the rank on : Preference is laid down by the Selection
or after 1/7/65 Board for the appointment.
6. Seniority of the promoted candidates were cast on the basis of white of approval of the promotion, but if the promotion of two or more employees is approved on the same date, seniority in promoted rank is based on infer se seniority in the lower rank. Respondent no.7 was accorded the status of permanent AE(E) an 29th February, 1968. During the period between 1967 and 1968 respondent no. 7 was sought to be promoted to the post of Superintending Engineer (Electrical/(Instrumentation), but the said attempt according to the petitioner failed.
7. On August 31, 1963 the respondent no.7 submitted his letter of resignation which was acc
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