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1981 Supreme(Cal) 422
HIGH COURT OF CALCUTTA
M. M. Dutt & A. K. Sarkar, JJ.
Biplab Bhusan Mazumdar
Vs.
State of West Bengal
And
Jagannath Sen Gupta
Vs.
State of West Bengal
C.R. No. 2859 (W) of 1978
C.R. No. 4034 (W) of 1978
Decided on : December 11, 1981
P.K. Sen Gupta, Sakti Nath Mukherjee, Bhagabati Prosad Banerjee, Ashim Ghosh Partha Sengupta for the petitioners;
N.N. Gooptu. Sr. Government Pleader, Suprokash Banerjee, Arun Prokash Sircar, Jamini Kr. Banerjee, Indrajit Sen, Pulak Ranjan Mondal for the respondents;
Somnath Chatterjee, Nigam Chakrabarti for the added respondents.
Circulars directing promotion on the basis of seniority instead of merit are illegal. Cancellation of promotions and reversions based on such circulars are also illegal. Circulars which are retrospective in operation and affect the rights of Government servants are illegal.
Headnote:
GOVERNMENT CIRCULAR - PROMOTION - SENIORITY - MERIT - CANCELLATION OF PROMOTION - REVERSION - VALIDITY - CIRCULAR DIRECTING PROMOTION ON SENIORITY BASIS INSTEAD OF MERIT IS ILLEGAL - CANCELLATION OF PROMOTIONS AND REVERSIONS BASED ON SUCH CIRCULAR ARE ALSO ILLEGAL - CIRCULAR IS RETROSPECTIVE IN OPERATION - RULES FRAMED BY CIRCULAR OPERATE WITH RETROSPECTIVE EFFECT AFFECTING RIGHTS OF PETITIONERS AND ARE ILLEGAL.
Fact of the Case:
The petitioners, Government employees, were granted officiating promotions to higher posts or selection grades on the basis of merit and not seniority. Subsequently, two circulars were issued by the State Government cancelling their promotions and reverting them to their substantive ranks. The circulars were issued on the ground that promotions should be made on the basis of seniority and not merit. The petitioners challenged the validity of the circulars, contending that they were arbitrary, discriminatory, and violative of Articles 14 and 16 of the Constitution.
Finding of the Court:
The Court held that the circulars were illegal and void. The Court found that the circulars were retrospective in operation and affected the rights of the petitioners. The Court also found that the circulars were violative of Articles 14 and 16 of the Constitution as they were arbitrary and discriminatory.
Issues: 1. Whether the circulars directing promotion on the basis of seniority instead of merit are legal? 2. Whether the cancellation of promotions and reversions based on such circulars are legal? 3. Whether the circulars are retrospective in operation?
Ratio Decidendi: 1. The Court held that the circulars directing promotion on the basis of seniority instead of merit are illegal. The Court observed that promotions of Government servants to selection posts are made on merit basis and not on the basis of seniority except that in a case, where two or more candidates for promotion are found to have equal merit, then only their seniority is taken into consideration. The Court also observed that the impugned circulars prejudicially affected the promotions granted to the petitioners long before the impugned circulars were issued. 2. The Court held that the cancellation of promotions and reversions based on such circulars are also illegal. The Court observed that the petitioners had no right to the posts to which they were granted officiating promotions but, at the same time, they had the right to continue in the said posts so long as they were not reverted on valid grounds. The Court also observed that the impugned circulars adversely affected the promotions of the petitioners on the sole ground of seniority resulting in the cancellation of the promotions of the petitioners and their consequent reversions to their substantive ranks. 3. The Court held that the circulars are retrospective in operation. The Court observed that the petitioners were reverted after the impugned circulars were issued, and it has been already noticed that such reversions were made on the ground that they had supersed their senior colleagues. The Court also observed that the cumulative effect of the two circulars have led to the purported reversions of the petitioners. The Court further observed that the promotions that will be granted as per the impugned circular will be retrospective effect from the dates on which the petitioners and others were originally promoted.
Final Decision: The Court declared the impugned circulars illegal, inoperative and void. The Court also quashed the cancellation of the officiating promotions of the petitioners to higher posts and selection grades and their consequent reversions to their substantive ranks and grades. The Court directed the respondents not to give any effect or further effect to the said impugned circulars and orders of cancellation of promotions and reversions of the petitioners.
M. M. Dutt :– In these two Rules, the petitioners have challenged the validity of two Circulars dated March 28, 1978 and May 6, 1976, both issued by the State Government, consequent upon the cancellation of their officiating appointments or promotions and reversion to their substantive ranks. The writ petitions, out of which these two Rules arise, have been filed by the petitioners in representative characters under rule 11 of the Rules framed by this Court relating to Article 226 of the Constitution of India.
2. The petitioners are either Lower Division Assistants or Upper Division Assistants in different Government departments. By the Circular dated December 1, 1972 issued by the Finance Department, Audit Branch of the Government of West Bengal, certain guidelines for promotion were laid down. The guidelines were inter alia as follows :
"1 (a) A Government servant should be selected for promotion on the ground or merit and suitability in all respects and not of seniority.
(b) Seniority should be taken into account only when it is impossible to choose between two or more persons on grounds of merit alone.
2. It is considered necessary to indicate some guidelines in determining merit. The following facts should therefore be taken into consideration in deciding merit;
2. (a) An annual confidential report of the competent officer in the prescribed form should be given due weight in considering case of promotion taking into account reports relating to paragraphs (b) and (c) below.
(b) Satisfactory work based on periodical reports which in case of certain categories will involve reports on maintenance of case records, diaries etc. and an output of work according to the approved form.
(c) The conduct of Government servants who resort to cease work and/or indulge in act of indiscipline like slogan-shouting; holding meetings etc, within office premises during the prescribed office hours and/or resort to or in any way abet strike for any period in violation of the provisions of Rule 3C of the West Bengal Service Rules, Part I and Rule 27 of the West Bengal Government Servants' Conduct Rules."
3. The Audit Branch of the Finance Department, Government of West Bengal, issued another Circular dated May 21, 1974 inter alia to the following effect :
The Question, whether in deciding promotion, confirmation, crossing of efficiency bar and marginally noted ancillary benefits as admissible to the State Government employees under the existing rules and orders of the Government, their presence or absence on days of Bundhs, cease work or strikes should be taken into account, has been under consideration of the Government for some time past.
After considering the question in all its aspects, the Governor has been pleased to lay down the following principles for guidance of all concerned :
(a) In deciding the cases of promotion, confirmation, crossing of efficiency bar and marginally noted ancillary benefits in respect of Government employees, their presence or absence on days Bundhs, of cease work or strikes shall also be taken into consideration along with other relevant factors. In this connection, attention is drawn to Rules 3B and 3C of the West Bengal Service Rules, Part I and Rule 27 of the West Bengal Government Servants' Conduct Rules, 1959.
(b) In all pending cases of promotion, confirmation, crossing of efficiency bar and other marginally noted ancillary benefits no order shall be passed and no order in this respect which has not yet been implemented shall be implemented until the records of the employee concerned are verified and/or relevant facts including his attendance and not-attendance on days when calls for Bundhs, cease work or strikes were given are ascertained. A sample form with a set of likely entries in this respect is enclosed herewith for guidance and use.
The marginally noted benefits as referred to in the said Circular art as follows :
"(a) Declaration of quasi-permanent service with permanent status in the case of temporary
