IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE A.P.O. No.272 OF2013W.P. No.936 OF2003SRI KARTICK CHANDRA GHOSH AND OTHERS VERSUS KOLKATA MUNICIPAL CORPORTATION AND OTHERS With F.M.A. No.2555 OF2013C.O.T. No.87 OF2013SRI KARTICK CHANDRA GHOSH AND OTHER VERSUS ASHOK KUMAR GUHA AND OTHERS Before Chellur : The Hon’ble Chief Justice Dr. Manjula & The Hon’ble Justice Arijit Banerjee For the Appellants : Mr. Joydeep Kar, Sr. Adv. Mr. S. Majumder, Adv. Mr. A Lahiri, Adv. For the Respondents : Mr. Mr. Mr. Mr. L.K. Gupta, Sr. Adv. G. Mitra, Adv. Kallol Basu, Adv. M. Chakraborty, Adv. Heard On :
27. 11/2014, 10/12/2014, 12/12/2014, 17/12/2014, 30/01/2015 & 13/12/2015 CAV On :
18. 01/2016 Judgment on :
16. 03/2016 Arijit Banerjee, J.:
1. These two appeals arise from a common judgment and order dated 15th May, 2013 whereby two writ petitions being WP No.21394(W) of 2000 (Ashok Kumar Guha and others vs. Kolkata Municipal Corporation and others) and WP No.936 of 2003 (Kartick Chandra Ghosh and others vs. Kolkata Municipal Corporation and others) were disposed of.
2. The present proceeding essentially pertains to a dispute with regard to determination of inter se seniority between the promotees and the direct recruits to the post of Assistant Engineer (Civil) and the post of Executive Engineer (Civil) of the Kolkata Municipal Corporation.
3. WP No.21394(W) of 2000 was filed by two of the promotees challenging the appointment of the direct recruits to the post of Assistant Engineer, Kolkata Municipal Corporation and for redetermination of the inter se seniority of the promotees viz-a-viz direct recruits.
4. WP No.936 of 2003 was filed by the direct recruits for setting aside of a resolution dated 30th April, 2003 adopted in the meeting by the Mayor-in-Council, Kolkata Municipal Corporation relating to appointment/ promotion of Assistant Engineer (Civil) under the Kolkata Municipal Corporation as also for promotion to the post of Executive Engineer (Civil) on the basis of the upgradation list published on 26th February, 2001. THE CASE OF THE DIRECT RECRUITS (APPELLANTS) 5. According to the direct recruits, the effect of the order of the learned single Judge is that the seniority of the direct recruits who were recruited between 15th July, 1997 and 15th June, 1998, stands superseded by the promotees holding Engineering Degree as qualification and promoted between 25th June, 1999 and May, 2000. The effect of the impugned order is that the writ petition filed by the promotees has been allowed and the writ petition filed by the direct recruits stands dismissed.
6. The first point urged on behalf of the direct recruits is that the claim of the promotees made in WP No.21394 (W) of 2000 should not have been allowed as the same is barred under Order II Rule 2 of the Code of the Civil Procedure.
7. Originally, the Recruitment Rules provided for filling up of 50% of the total cadre strength from amongst the promotees in the common cadre of Sub- Assistant Engineer and 50% by direct recruitment. On 7th August, 1997, the Recruitment Rules were amended. By the reason of amendment, 45% of the total cadre strength was reserved for promotees and 45% was reserved for direct recruits. The balance 10% was reserved for promotion by way of selection to the post of Assistant Engineer from the post Sub-Assistant Engineer of all discipline having a degree and on merit basis.
8. The promotees filed a writ petition being WP No.21002 (W) of 1998 seeking cancellation/ withdrawal of the decision to fill up the existing vacancies in the post of Assistant Engineer by Diploma Holder Engineer by departmental promotion and seeking to do away with selection process by way of competitive examination as in the case of direct recruits. Thus, the promotees wanted to be promoted through the seniority channel against the 10% quota without taking any examination.
9. The said writ petition was filed by the promotees who were holding Degree in Engineering and who were unsuccessful in the competitive examination held for direct recruits. In 1996-1997, the said promotees appeared in the competitive examination with the direct recruits (appellants) but became unsuccessful candidates. In the said writ petition, the promotees did not challenge the appointment of direct recruits in any manner nor did they contend that the quota of direct recruits had been exceeded.
10. Pending hearing of the said writ petition, the office order relating to promotion of the promotees in the 10% quota through examination was withdrawn and they were given promotion on the basis of seniority only in between 25th June, 1999 and May, 2000. Having got promotion, the promotees withdrew the said writ petition being WP No.21002 (W) of 1998 on 8th October, 2002.
11. In the said writ petition, the promotees did not challenge the date of promotion as contained in the letter dated 25th June, 1999 (page 51 of the compilation). In short, the promotees accepted the prospective promotion given to them from 25th June, 1999. As such, they also accepted that the direct recruits had been appointed as Assistant Engineer (Civil) in between 1997 and 1998 i.e. much before the promotees, and were admittedly senior to the promotees in the cadre.
12. It was contended on behalf of the direct recruits that once the promotees accepted their promotion prospectively from 25th May, 1999 and withdrew their writ petition being WP No.21002 (W) of 1998, the issue of promotion of the private respondents attained finality. The promotees are, therefore, debarred in law from seeking to reopen the issue in a subsequent proceeding, the cause of action whereof was covered by the first proceeding.
13. It was submitted that the second proceeding on the same cause of action is barred under Order II Rule 2 of the Code of Civil Procedure which mandates that every proceeding shall include the “whole of the claim”. which the petitioner is entitled to make in respect of the cause of action.
14. In the first proceeding, the cause of action was related to promotion and, therefore, the date of promotion was inextricably linked to the same. Securing a prospective promotion by the first proceeding, thereafter, seeking to reopen the issue in the second proceeding by seeking retrospective promotion is an act not permitted by law. In this connection, learned counsel for the direct recruits relied on Rule 53 of the Writ Rule of this court which makes the provision of the Code of Civil Procedure 1908 applicable to writ proceeding in so far as they can be made applicable.
15. In paragraph 26 of the WP No.21002 (W) of 1998, it was the clear case of the promotees that their 10% quota for Degree Holders remained and still continue to remain unfilled. In the second proceeding, the same promotees cannot be permitted to take a contradictory stand that the appointment of the direct recruits encroached upon 10% quota of promotees holding degree. This is a clear case of approbation and reprobation which is not permissible in judicial proceeding. A litigant cannot change his stand according to his whims and fancies.
16. It was, then, submitted that even assuming there was filling up of the post by appointing direct recruits in excess of the prescribed quota, at the highest the same would affect diploma holders engineering promotees who were covered by the other 45% quota. The said group of promotees did not raise any grievance and have not challenged the appointment of 34 direct recruits.
17. It was, then, submitted on behalf of the direct recruits/appellants that the Recruitment Rules of 1994 were not given effect to till 1997. In between, all promotional posts were filled up by the promotees. By making direct recruitment in the 1996-97, the Kolkata Municipal Corporation was trying to reverse the situation and even if there was appointment made in excess of the quota, the same was made to reverse the situation and bring back the ratio which is prescribed under the Recruitment Rules. This was the first recruitment after promulgation of the Recruitment Rules of 1994.
18. In so far as promotees are concerned, they admittedly came within 10% quota having degree in Engineering. Their own case, in paragraph 26 of the first writ petition, was that their 10% vacancies remained and still continue to remain unfilled. Hence, admittedly, the clear case of the promotees was that their quota was never encroached upon. Since there was no encroachment upon their 10% quota, the promotees had no cause of action to move the second writ petition. In any event, having withdrawn the first writ petition by accepting the prospective promotion, without leave of the court, they cannot proceed with the second writ petition seeking retrospective promotion.
19. It was, then, submitted that the order of the Kolkata Municipal Corporation dated 30th July, 2003 is bad and unsustainable in law. After giving promotion to the promotees prospectively with effect from 25th June, 1999, their seniority could not have been made retrospective with effect from 1997. A promotee cannot be given seniority before the date he was born in the cadre. Admittedly, the promotees were given birth in the cadre of Assistant Engineer (Civil) on 25th June, 1999 and hence, they cannot be given seniority with effect from 1997. In this connection, the learned counsel relied on the following decisions of the Hon’ble Apex Court: (i) Kusumam Hotels Pvt. Ltd vs. Kerala State Electricity Board and others, (2008) 13 SCC213 para 21; (ii) P.Sudhakar Rao and others vs. U.Govinda Rao and others, (2013) 8 SCC693 paras 45-50; (iii) Pawan Pratap Singh and others vs. Reevan Singh and others, (2011) 3 SCC267 paras 41, 45; (iv) Amarjeet Singh and others vs. Devi Ratan and others, (2010) 1 SCC417 para 27; and (v) N.V.Srinivasa Murthy and others vs. Mariyamma, AIR2005SC2897para 13. SUBMISSIONS MADE ON BEHALF OF THE PROMOTEES/ RESPONDENTS20 Appearing on behalf of the promotees, Mr.L.C.Gupta, learned senior counsel submitted that the fact of direct recruitment in excess of vacancies declared in the advertisement has been accepted by the Kolkata Municipal Corporation. This fact has been admitted in paragraph 10 of Kolkata Municipal Corporation’s affidavit-in-opposition. However, in response to an application under the Right to Information Act, 2005, it was informed that only 13 vacancies had occurred during the period 16.07.1996 to 15.07.1997. Hence, as per Regulation, only 8 (50% of 3+13) posts could be filled up by direct recruitment. Kolkata Municipal Corporation, however, made 34 appointments by direct recruitment which is illegal. 26 (34-8) posts were filled up in excess of direct recruitment quota fixed under the Regulation.
21. Thus, opportunity of promotion to the promotee engineers got adversely affected. In the affidavit-in-opposition filed on behalf of KMC in WP No.936 of 2003 also it is admitted that vacancies beyond the scope of 50% quota were filled up by direct recruitment. In the said affidavit, KMC also stated that direct recruits cannot take advantage of the inadvertent mistake rendering great injustice to the promotee degree holder engineers. KMC further admitted by issuing letter to the direct recruits that a serious question has arisen regarding legality of their appointments which may have serious legal infirmity and validity of appointment beyond the advertised number of vacancies is very much doubtful.
22. In this connection, learned senior counsel relied on the following decisions of the Hon’ble Apex Court. (i) Rakhi Ray and others –vs- High Court of Delhi, (2010) 2 SCC637 paras 7, 10 – 12; (ii) Arup Das and others vs. State of Assam and others, (2012) 5 SCC559 paras 19-22; (iii) V.B.Badami vs. State of Mysore, AIR1980SC1561 paras 29, 34, 39 and 40; (iv) Madan Gupal Garg vs. State of Punjab and others, 1995 Supp (3) SCC366 para 12; (v) J.Chandrashekhar Reddy vs. D.Arora, AIR1994SC526 para 4; (vi) Mahmood Hasan and others vs. State of U.P. and others, (1997) 3 SCC138 23. Mr. Gupta next submitted that KMC by a circular No.13 dated 23rd April, 1984 framed Regulations regarding determination of seniority. Paragraph 6 (ii) of the said Regulation, inter alia, provides that the promotees shall be en bloc senior to the direct recruits of the same year. By the order impugned, the learned single judge accepted the prayer of the promotion and seniority of the private respondents/ promotees, but the learned judge did not grant en bloc seniority to the promotees over direct recruits appointed in the same year.
24. Accordingly, the promotees have filed a cross objection. In this connection learned counsel relied on a decision of the Hon’ble Apex Court in the case of Ajit Kumar Rath-vs- State of Orissa, 1999 (9) SCC596paras 9, 35 and 36 wherein it was observed that in view of the relevant Rules, the promotees shall rank senior to direct recruits appointed in the same year.
25. Another point that has been urged in the cross objection is that learned single judge erred in not granting the financial benefits to the promotees. Learned counsel submitted that when promotions are effected from an earlier date retrospectively, benefits flowing there from including monitory benefits must be extended to an officer who has been wrongly denied promotion earlier. In this connection, learned counsel relied on the following three decisions of the Hon’ble Apex Court: (i) Mahmood Hasan –vs- State of Uttar Pradesh (supra) para 23; (ii) State of Andhra Pradesh –vs- KVL Narashimha Rao, 1999 (4) SCC181 paras 4 & 5. (iii) Ramesh Kumar-vs.-Union of India, AIR2015SC2904 paras 10 & 13.
26. In response to the contention of the direct recruits that the promotees’ second writ petition being WP No.21394 (W) of 2000, is barred by Order II Rule 2 of the Code of Civil Procedure, by reason of the promotees having filed an earlier petition being WP No.21002 (W) of 1998 which they subsequently withdrew, Mr Gupta submitted that in the earlier writ application the promotees ventilated their grievance in respect of a separate cause of action namely, action of the municipal authorities to compel them to take an examination for the purpose of promotion to higher posts. The said cause of action has no connection with the cause of action ventilated in the second writ petition.
27. The cause of action in the second writ application is a challenge to the illegal appointment of the direct recruits thereby depriving the promotees of the timely promotion and seniority. However, further while disposing of the first writ application, this court made it clear that this court has not gone into the merits of the matter. It is submitted that the decisions cited in this regard on behalf of the direct recruits are completely distinguishable on facts and have no manner of application to the facts of the present case. In this connection Mr. Gupta relied on a decision of the Hon’ble Supreme Court in the case of Bengal Waterproof Ltd. –vs- Bombay Waterproof Manufacturing Company, 1997 (1) SCC99 paras 7, 8 and 10, in support of his submission that if the earlier suit and the subsequent suit are not based on the same cause of action and unless there is identity of causes of action in both the suits, the bar of Order II Rule 2 is not attracted. He also relied on a decision of this court in the case of Gora Chand Haldar-vs-Basanta Kumar Haldar, 15 CLJ258at p.261.
28. Mr.Gupta further submitted that Rule 53 of the Writ Rules of this Court provides that the provisions of the Code of Civil Procedure shall be followed only in so far as the same can be made applicable to proceedings under Article 226 of the Constitution of India but nothing shall be deemed to limit or otherwise affect the inherent power of this Court to make such order as may be necessary for ends of justice or to prevent abuse of process of the Court. All provisions of Code of Civil Procedure are not applicable in the writ proceedings and the Writ Court applies only such principles as are considered necessary for justice, equity and good conscience.
29. Mr. Gupta further submitted that the point relating to Order II Rule 2 of the Code of Civil Procedure was not