Saikat Das Gupta vs Kolkata Municipal Corporation

Jayanta Kumar Biswas, J.—The 1st, 2nd and 3rd respondents in the pending WP under art. 226 of the Constitution of India dated June 7, 2010 have filed the GA dated August 23, 2012 for vacation or modification of an interim Order dated July 1, 2010 passed in the WP. Mr. Advocate General appearing for KMC has submitted that if the WP itself is taken up for hearing and disposal, then he will not press the GA. Under the circumstances, I have invited Mr. Gupta appearing for the petitioners to argue the WP itself.

Mr. Gupta has submitted as follows. Questioning a modification of the regulations for recruitment to Manager cadre in KMC general service mentioned in a circular dated May 6, 1998 (WP p. 107) the five petitioners working in KMC as direct recruit Deputy Manager brought this WP. They questioned the principle for determination of seniority in the feeder posts and the principle for promotion to the post of Manager stated in the circular.

Mr. Gupta has said that during pendency of the WP, KMC has issued a circular dated December 10, 2012 that has settled the seniority issue; and he has argued that in view of the decision of the Supreme Court in B. Manmad Reddy and Others Vs. Chandra Prakash Reddy and Others, the promotion principle stated in the circular dated May 6, 1998 is unsustainable.

The principle for promotion stated in the circular dated May 6, 1998 is as follows:-

Provided that 1/3 posts of the Manager Cadre will be filled up from the direct recruited Dy. Managers having 6(six) years experience on the basis of seniority among themselves only and 2/3 of the posts of Manager Cadre will be filled up on the basis of combined Gradation List of the two above said groups i.e. from Jr. Asstt/Typist to Dy. Manager, Asstt. Manager (Welfare) and Bailiff-(Gr.-II) to Sub-Inspector fulfilling the above qualification criteria.

Mr. Advocate General has relied on the case stated in the Affidavit-in-Opposition (in short AO) to the WP dated August 20, 2010. He has relied especially on the case stated in para. 4 of the AO. His submission is that the classification was made with a view to giving some benefits to the employees serving KMC for a long period, but not getting adequate opportunity of promotion.

The principle for promotion to the post of Manager stated in the circular dated May 6, 1998 is that if there are three posts of Manager, then only one of them will be filled by a direct recruit Deputy Manager and the remaining two by the promotee Deputy Managers, etc. The issue is whether the 1:3 distribution of the posts of Manager cadre between the direct recruit Deputy Mangers and the promotee Deputy Managers, etc. is lawful.

In the B. Manmad Reddy and Others Vs. Chandra Prakash Reddy and Others, their Lordships of the Supreme Court were considering the following question:-

The short question that falls for consideration and that was argued at considerable length before us by the learned Counsel for the parties is whether persons drawn from different sources and integrated into one class/cadre/category can be classified into separate categories for purposes of promotion on the basis of the source from which they were drawn. The question is, in our opinion, squarely covered by the decisions of this Court to which we shall presently refer but before we do so, we may briefly set out the factual backdrop in which the controversy arises.

Affirming the decisions of the Tribunal and the High Court that the classification was unconstitutional, their Lordships of the Supreme Court said as follows:-

18...................There is no gainsaying that classification must rest on a reasonable and intelligible basis and the same must bear a nexus to the object sought to be achieved by the statute. By its very nature classification can and is often fraught with the danger of resulting in artificial inequalities which make it necessary to subject the power to classify to restraints lest the guarantee of equality becomes illusory on account of classification being fanciful instead of fair, intelligible or reasonable.

In my opinion, in view of the law laid down by the Supreme Court in the decision cited to me and the fact that in its AO KMC has not disclosed any reason to justify the classification, the promotion principle stated in the circular dated May 6, 1998 cannot stand the test of non-arbitrariness and non-discrimination. It is violative of arts. 14 and 16.

In view of the circular dated December 10, 2012 that seniority would be determined on the basis of the date of joining the post or cadre and the relevant Rules for determination of seniority issued on April 23, 1984 and the submissions made by Mr. Gupta, it is not necessary to examine the seniority principle stated in the circular. For these reasons, I dispose of the WP and the GA ordering as follows. The decision stated in the circular dated May 6, 1998 that promotion to the post of Manager shall be given in the ratio of 1:3 between the direct recruit Deputy Managers and the promotee Deputy Managers, etc. is hereby quashed. Everyone eligible for promotion to the post shall be considered for every post. No costs. Certified xerox.