Tushar Kanti Mitra and ors. Vs. State of West Bengal and ors. - Court Judgment

M.N. Roy, J.

1. This rule was obtained on February 6, 1975 against the refusal of the Officers of the respondent No. 1 in forwarding the applications for appointment of the petitioners in respect of posts under the respondent No. 4, viz., Calcutta Metropolitan Development Authority.

2. The petitioners at all material times were and still they are employed under the Calcutta Metropolitan Planning Organisation, a department of the State of West Bengal and their employment as admitted by them are purely temporary in nature. On or about September 1, 1974 the Calcutta Metropolitan Development Authority, published an advertisement in the daily issues of the Statesman, inviting applications for filling up the posts under their directorate and pursuant to that the petitioner Nos. 1 and 2 applied for the posts of Associate Transportation Planner and petitioner No. 3 applied for the post of Demographer-Statistician. The petitioners have contended that the grades of the respective posts for which they had applied are higher than the grades in which they are holding the posts under the Calcutta Metropolitan Planning Organisation. They have contended that their applications were intended to be sent through proper channel and they made a request to their employers to forward them to the Calcutta Metropolitan Development Authority. In addition to [that the petitioners have stated that they had sent advance copies of their applications to the said authority. The petitioners have further alleged that pursuant to their applications, the said Calcutta Metropolitan Development Authority called them for interviews on October 17, 1974 and they did appear before the appropriate selection committee with prior intimation to their employers. They have also alleged that they were given to understand that their applications for appointment under the Calcutta Metropolitan Development Authority would be forwarded by their employers. It has been stated by the petitioners that after a long time one of them, viz., petitioner No. 2 received a Memo bearing No. 6059/I.I.CP./I E-95/74 dated November 8, 1974 and petitioner No. 1 in his turn also received a similar memo bearing No. 6073/T & C.P./1 E-95/74 of the same date issued by the Assistant Secretary to the State of West Bengal. A similar memo it has been stated was also received by the petitioner No. 3 and by the said memos they were informed by the Assistant Secretary concerned, his inability to forward their applications for appointments in the respective posts under the Calcutta Metropolitan Development Authority and returned the applications to them without assigning any further reason. The contents of the memos as mentioned hereinbefore which as stated by the petitioners are on the same line reads thus:

With reference to his application dated 11th September, 1974 the undersigned is directed to state that this Department regrets its inability to forward his application for the post of; Associate Transportation Planner under the Calcutta Metropolitan Development Authority. The relevant application is, therefore, returned herewith.

3. The petitioners have further alleged that they have learnt on or about October 29, 1974 from a reliable source of the Office of the Calcutta Metropolitan Development Authority that their cases have been recommended for the respective posts in terms of their applications, by the Selection Committee. It may be mentioned here that the particulars of such authorities, who have given or passed on the information as aforesaid, have not been disclosed and in fact the same has been kept conspicuously vague in the petition. Such statement cannot also been verified from the affidavits filed in this proceeding.

4. The petitioners have also alleged that by the Finance Departments Memo No. 1292-F/P2E-7/63 Pt. dated March 31, 1965, issued by the Joint Secretary to the Government of West Bengal, which the petitioners have mentioned as a circular, some principles have been laid down in connection with the forwarding of applications of Government servants for employment elsewhere and. in the said memo, the petitioners have alleged, is indicated that applications in respect of temporary Government servants should not be forwarded more than twice a year. The relevant portion of the said alleged circular or the contents thereof which are necessary for this case, read as under :

11. Temporary Government Servant.,

As a rule applications from such Government servants for other posts should be forwarded except where the temporary Government servant is likely to be made permanent within a year in which case the application should be dealt on the principles indicated above. But even a temporary Government servant should not be allowed to apply more than twice a year.

Application for private employment:

A Government servant shall not, however, apply for private employment nor shall he signify his willingness to accept such employment without the previous permission of the appointing authority. No application for private employment shall be forwarded unless such authority is fully satisfied that the applicant can be released without detriment to the public service. Any Government servant who is permitted to apply for private employment must on accepting such employment resign his appointment under the Government. If a Government servant who is refused permission to apply for private employment resigns his appointment under Government, such resignation shall ordinarily be accepted,

5. The term 'principles indicated above' as has been mentioned in the said circular and under the heading of 'Temporary Government Servants' has a refeerence to the last paragraph of the same dealing with the application filed by 'Permanent' Government Servants, which amongst other clauses indicate that applications from permanent officers shall not be forwarded more than once a year and the officer shall give an undertaking when his application is forwarded that his lien would be liable to terminate after not less than two years of deputation in case he did not revert to the State Government by that time.

6. Thus on a construction of the said circular in Annexure 'D' it may be construed as contended by the petitioner that applications in respect of temporary Government Servants also should not be forwarded more than twice a year.

7. The availability of the said circular and the applicability of the principles as mentioned therein and its effect in the case of the petitioners will have to be considered in this instant case in the light of the challenges as thrown. The petitioners have contended that that they were very much shocked and aggrieved by the refusal of the Calcutta Metropolitan Planning Organisation to forward their applications and they made representations to the State of West Bengal, respondent No. 1 through proper channel pointing out that within a year they submitted applications for the first time and the refusal to forward them was illegal and such refusal has caused great hardship to them. From the petition it appears that in reply to their representations, by Memo No. 6650 (8)-E. & C.P./1E-95/74, dated December 9, 1974 they were informed that the applications could not be forwarded to the Calcutta Metropolitan Development Authority. The petitioners have contended that such refusal in the said blanket form without giving any reason whatsoever was also irregular, void and bad. They have further submitted that such laconic order is no order at all.

8. The petitioners in the applications have also contended that the respondent No. 5, Sri Manimoy Deogharia, who is a permanent employee under the Calcutta Metropolitan planning Organisation made similar application for a post of Associate Community Facilities, Planner under the said Calcutta Metropolitan Development Authority in terms of an advertisement and for reasons best known to them, the authorities concerned have forwarded his application but not those of the petitioners. This fact, the petitioners have challenged as highly discriminatory. Against the order of refusal to forward their applications the petitioners jointly preferred a pretended appeal on December 2, 1974 before the State of West Bengal and it has been alleged that no reply to the same has been given. The petitioners have further alleged that the Respondents, more particularly respondents Nos. 1 to 3 being public bodies and/or authorities have duties to act legally and as such they were under the obligation to give their reasons in not recommending their cases and furthermore they should not have adopted the discriminatory attitude, particulars whereof have been mentioned hereinbefore. They have also alleged that because of the said action in not recommending their applications they have suffered great prejudice and loss because as a result of such refusal they have been deprived of better employment with higher salaries and prospects.

9. Mr. Amulya Kumar Mukherjee, the learned advocate for the petitioners submitted that the petitioners have a legal right to have their applications forwarded and the said right is derived from the Government of West Bengal, Finance Department, Audit Branch Memo, dated March 31, 1965 (Annexure 'D'), which lays down the principles to be observed in considering the questions of forwarding applications of Government Servants for employment elsewhere. He submitted that although the said Circular was not issued under any statute or statutory powers yet the same being an administrative Circular dealing with questions relating to the rights of; the employees for being appointed elsewhere, can be looked into or considered in a writ proceedings and thus any step taken or purported to have been taken under the said Circular or contrary to the principles as laid down therein, is justiciable. He then submitted that as no reason or proper reasons have been given in the order dated December 9, 1974 (Annexure 'F') disclosing why the applications were not forwarded, the said order was not a proper order. He submitted that since by the said order the rights of the petitioners to have their applications forwarded were determined, denied or dealt with, so the authority concerned should have passed a speaking order. He in effect submitted that such a bald, bare or an order in that laconic form is no order at all. Mr. Mukherjee further submitted that since the applications of the petitioners have, not been referred and the impugned orders have been passed in a blanket form, so in effect there was violations of principles of natural justice as the petitioners were neither heard nor given reasonable opportunity to represent their cases and furthermore the nondisclosure of the reasons as to why their applications were not referred, have created great prejudice so far as they are concerned and furthermore because of the absence of reasons in the said orders, they have been prevented from making proper representations. Those apart, Mr. Mukherjee submitted that the fact that the application of the respondent No 5 was recommended but such recommendations have not been made in the case of the petitioners would show and establish discrimination, bias and also prejudice against the petitioners, apart from mala fide exercise of powers by the respondents Nos. 1 to 3.

10. Mr. P.K. Sengupta, the learned advocate for respondents Nos. 1 to 3 submitted that the petitioners in the instant case have no legal right to have their applications forwarded as the circular in question which is the basis of the pretended rights of the petitioners, is nothing but a mere inter-departmental circular and not a Rule. Relying on the statements as made in the petition, more particularly in paragraphs 1, 8 and 11, Mr. Sengupta submitted that since the petitioners are admittedly temporary employees and the respondent No. 5 is a permanent, one, there could be no case for discrimination as the circular dated March 31, 1965 ex facie lays down two different and distinct modes for permanent and temporary employees. He submitted that since the employees concerned are admittedly placed into two different and distinct categories there cannot be any case for discrimination in the instant case. Relying on the clause dealing with 'temporary Government servants' in the said circular Mr. Sengupta submitted, that there is a prohibition against the employees from making applications more than twice in a year and the Government is authorised not to forward applications for temporary Government servants who are likely to be made permanent within a year. He also submitted that in the said circular the only injunction is that the applications in respect of the temporary Government servants should not be forwarded more than twice a year but the said circular puts no restraint on the authorities in the matter of not forward-in application which are filed for the first time. Relying further on the heading 'Application for Private Employment' in the said circular, Mr. Sengupta submitted that 'private employment' as mentioned thereunder would mean employment with any authority which will not come within the meaning of ' Authority' under Article 12 read with Article 298 of the Constitution of India. In that view of the matter and since the Calcutta Metropolitan Development Authority is just a body incorporated and established under the Calcutta Metropolitan Development Authority Act, 1972 and more particularly under Section 3 of the same, having a perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold and dispose of property and to contract, Mr. Sengupta submitted further that the said authority should be considered as a 'Private Authority or Employer' and as such the petitioners would have no right to have their applications referred. Mr. Sengupta further referred to paragraph 16 (e) of the affidavit-in-opposition by Jagat Kishore Rai Chowdhuri, Assistant Secretary, Development and Planning Department (T. & C.P.) Government of West Bengal, respondent No. 3 and submitted that since there was every likelihood of the petitioners being made permanent within the stipulated time so their cases were also not recommended rightly. This fact has of course been disputed by the petitioners in their affidavit-in-reply.

11. Mr. Bhabani Sankar Bagchi, the learned advocate appearing for the respondent No. 4, apart from adopting the arguments of Mr. Sengupta submitted that since there has been no allegation or any effective prayer against his clients, they should not have been impleaded. In any event he submitted that the order of injunction as has been issued in the instant case and is continuing has created and is creating great prejudice so far his clients are concerned because in view of the pendency of the order of injunction they are not in a position to have all the necessary and required posts filled up.

12. In support of his contentions that the circular in question, although not statutory in nature, has the force of law, Mr. Mukherjee, the learned advocate for the petitioners first relied on the case of Chittta Ranjan Roy v. The Damodar Valley Corporation reported in 77 C.W.N. 48. In that case certain regulations providing for terms and conditions of service of the employees of the Damodar Valley Corporation and the effect of the said regulations, in case of breach in respect of the employees, came up for consideration and Salil Kumar Datta, J., has held that it is well-known that a pattern of public undertakings in India today are formed under different statutes providing also the rules for working management and control of such Corporations and these are almost all of uniform pattern. There are provisions in relevant statutes giving powers to the Corporations to frame regulations to provide for all matters for the purpose of giving effect to the provision of certain acts creating the Corporations. These regulations must, however, have the prior approval of the Central Government and can be made by the notification in the Gazette of India or Slate Gazettes. These regulations, inter alia, provide for terms and conditions of service of its employees and such regulations are almost invariably called the 'staff' or 'service' regulations. His Lordship has further held that those regulations have the legal force and effect of law creating legal rights in favour of the employees governed by them and are thus enforceable by issuance of writ under Article 226 of the Constitution of India, in the event of a breach on the part of the Corporation of a material or a mandatory provisions of such regulations. His Lordship has also held that there can be little doubt that the provisions of the regulations which contained the tenure of service of its employees are mandatory. Mr. Mukherjee next relied on the case of Smt. Shiva Rani Kumari v. The President of the Board of Secondary Education, Bihar and Ors., reported in : AIR1975Pat12 . The petitioner in that case, who was an assistant teacher in the State subsidised Girls' High English School at Hajipur had joined the school in the year 1971. The respondent No. 6 who was also a teacher had in his turn joined in 1965. At the time of the appointment the petitioner was already a Graduate having graduated that very year whereas the respondent No. 6 had only passed I.A. examination and became a Graduate much later in the year 1968. That apart, the petitioner obtained a Diploma m Education in the year 1968 whereas the said respondent No. 6 did so in the year 1970. The petitioner in that case was confirmed in her post on January 1, 1970 whereas the said respondent was confirmed on January 1, 1971. The petitioner and the said respondent appeared at M.A. examinations in the year 1971 and both were placed in the Second Division. The result of the respondent No. 6, who had taken History as her subject in M.A. was published on December 16, 1971 whereas that of the petitioner, who had taken Hindi as the subject, was published on March 29, 1972. Such thing had happened because the results were published subject-wise and, therefore, on different dates. Because of this, a question arose as to whether it was the petitioner or the respondent No. 6 who was entitled to get higher pay scale meant for M.A. trained teachers when both of them had made applications for the same. The Managing Committee concerned was not able to decide the matter and it, therefore, referred the same to the Board. The Board, however, returned the reference and asked the Managing Committee to make its own recommendations. The Managing Committee in its turn did not do so and again sent the matter to the Board through the District Inspectress. of schools, who forwarded the letter to the Managing Committee with her own comments in which it was said that the respondent No. 6 was senior to the petitioner because of the earlier publication of the results. Against such recommendation, the petitioner made a representation to the Board 'through the District Inspectress of schools and Inspectress of schools. As a result, the Inspectress of schools called for a report from the District Inspedtxess of schools and the laitter sent her comments to the Inspectress by the letter dated July 13, 1970, in which she said that in view of the earlier publication of the result of the respondent No. 6, she became senior to the petitioner but in this matter there was no fault of the petitioner and both of them had appeared at the examinations together and the result had been published on the different dates on account of the arrangement of the university. It was pointed out that the petitioner had become a trained graduate earlier. On July 25, 1973, the District Inspectress of schools forwarded the re-presentation of the petitioner with her comments suggesting that the petitioner was senior. Meanwhile, on July 14, 1973 the Board had passed an order giving the said respondent No. 6 the pay scale of one of the two posts sanctioned on the basis of the earlier recommendations of the District Inspectress of schools. The Board, however, did not pass any order on the representation of the petitioner and the petitioner, therefore, requested the Board to consider the matter. By letter dated August 10, 1973, the Board replied that since the respondent No. 6 was available at an earlier point of time as trained M.A. so he had been allowed one of the posts with higher scale of pay. It was also mentioned in the memo to the petitioner that her case would be considered when there was another vacancy in the post of trainee M.A. or Assistant Headmistress of the school. Being aggrieved by such decision, the petitioner moved the High Court at Patna and obtained the Rule, in which on the question of applicability of administrative orders it lias been held that the principle of natural justice apply to administrative orders as such orders have to be just and fair. It has further been held that the principle of natural justice cannot be stretched so far as to say that in every case whether a personal hearing of the person concerned would be necessary or not he will have to be given a bearing. All that can be reasonably said is that in a case where the circumstances require that the person concerned need be given a hearing, it will be done. But when the entire materials necessary for a decision is placed before an authority an order passed on consideration of such materials cannot be said to have infringed the principles of natural justice. Mr. Mukherjee also relied on the case of The Statesman Limited and Ors. v. The Fart Finding Committee and Ors., reported in : AIR1975Cal14 on the said question of natural justice.

13. The first two cases as cited by Mr. Mukherjee in my view have no application to the facts of the present case. The circular in the instant case not having been framed, issued or published under any statute or rules or regulations, cannot have the force of a statute or rules or regulations as contended. As has been observed later there was no unjust or unfair exercise of power in making the impugned orders. I further fail to understand why the other case of The Statesman Limited (supra) was cited by Mr. Mukherjee. Because the facts of the said case or the determinations made therein have in my view no connection or relation to the facts of the present case.

14. It has been held in the case of State of Orissa v. Binapani Dei, reported in : (1967)IILLJ266SC , that administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. In that case the respondent No. 1 who held the degree of M.B.B.S. of the Punjab University, the Diploma in Gynaecology and Obstetrics from the Madras University and the Diploma in Obstetrics from the Royal College of Obstetricians and Gynaecologist of London was appointed on June 12, 1938, an Assistant Surgeon in the Orissa Medical Service. At the time of her appointment by the Orissa Government, she declared that her date of birth was April 10, 1910. In the normal course the said respondent would have been due for superannuation on April 10, 1965, after completing the age of 55 years. But in consequence of a notification of the State of Orissa dated May 21, 1963, the age of superannuation was raised from 55 to 58 years in respect of all Government servants who were to retire after December 1, 1962. On the basis of some anonymous letters addressed to the Accountant General that the said respondent No. 1 has misstated her age when she was admitted to service of the State, an enquiry was held and thereafter she was asked to show cause why her date of birth should not be accepted as April 4. 1907. The said respondent No. 1 shower', cause and thereafter by a letter, dated June 27, 1963, the Government of Orissa determined her date of birth as April 16, 1907, and declared that she should be deemed to have retired on April 16, 1962, subject, however, to extension of service granted from April 15, 1963. By the said order the said respondent, who should have on her case retired on April 10, 1968 was deemed to have retired on July 15, 1963. On a challenge being thrown, the Orissa High Court held that the order declaring the said respondent to be superannuated on the basis that her date of birth was April 16, 1907 amounted to compulsory retirement before attaining the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of Article 311 of the Constitution of India and since she was not given opportunity to show cause against the action proposed to be taken in regard to her, the order was invalid. On appeal it was held by the Supreme Court that since some preliminary enquiry was made in the case by Dr. S. Mitra and the said report was never disclosed to the said respondent and she was asked to show cause thereafter, as to why April 16, 1907. should not be accepted as the date of birth and without recording any evidence the order was passed, such an enquiry and decision were contrary to the basic concept of justice and cannot have any value apart from the findings on the question of administrative orders, particulars whereof have been mentioned hereinbefore.

15. In the case of A.K. Kraivak v. Union of India, reported in : [1970]1SCR457 , while dealing with the Rules of natural justice and the scope and object of the same, Supreme Court has laid down that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in arrears not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past only two rules were recognised but in course of time many more subsidiary rules came to be added to these rules. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of the limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice there is no reason why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demorcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more for reaching effect than a decision in a quasi-judicial enquiry. It has further been held that rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.

16. Thereafter in the case of Harish Uppal v. Union of India : [1973]2SCR1025 . the case of A.K. Kraipak v. Union of India (supra) camera for consideration and it has been laid down by the Supreme Court that where the procedure established by law had been completely followed and there was no violation of rules of natural justice the principles as laid down in that case would not have any application.

17. The facts of the cases in State of Orissa v. Binapani Dei (supra) and that on A.K. Kraipak v. Union of India (supra), in my view are different and clearly distinguishable from the facts of this case, as the Circular in question has not been framed or issued under any rules governing the service conditions of the petitioners or in violation thereof! and furthermore the steps taken on the basis of the said circular here has been no miscarriage of justice, so far the petitioners are concerned. On the construction of the circular in question it is apparent that the same has neither created any distinction amongst a class of employees similarly placed nor any action has been taken contrary to the same. Furthermore, the impugned order cannot also be said to be unjust or unfair or unauthorised. Even if the said circular has the force of law, which of course the same has not, there has neither been any violation of the same nor there has been any miscarriage of justice for which any interference is warranted. The ob-servance of the principles as have been alleged was not required or necessary in the instant case in view of the nature and character of the said circular or on the interpretation of the same. Furthermore the said circular not being in contravention of any Rules and the same not having imposed any legal right and there also being no evidence of any mala fide use of power under the same, this case is distinguishable from the cases of Union of India v. K.P. Joseph. (1973) 1 S.C.C 196 and Shri Raahunandan Panda v. State of Orissa : AIR1975SC434 . where it has been laid down by the Supreme Court that even when the administrative rules confer no right on the applicant the administrative order or action can be struck down if found to be unfair, capricious or arbitrary.

18. In view of the above I find that the circular in Annexure 'D' in this case is merely a circular for the guidance of the department and since the same has no statutory force or effect, the petitioners can neither claim any legal right on the basis thereof nor such right is created or established by the same. As the circular has created no legal right so far as the petitioners are concerned, so the other branch of Mr. Mukherjee's argument, viz., while making the determination the authority concerned should have given reasons or should not have passed such a bald or a laconic order,, is also without any substance. Coming now to the question of discrimination which has been said to have caused by the authorities concerned by prefering to refer the application of the respondent No. 5 and not that of the petitioners. I find that such submissions of the petitioners are also without any foundation. Discriminations will take effect if some act is done or action is taken whereby unequals are treated as equals or equals are made unequals. But that principle cannot have any application in the present case and more particularly in the treatment of the cases of! the petitioners and the respondent No. 5 as admittedly the said respondent No. 5 is a permanent employee which the petitioners are not and the circular in question makes no distinction or difference between employees placed or grouped in the same class. The circular in the instant case not having violated the principles of equality before the law or equal protection of the laws is not also open to challenge. I further agree with the contentions of Mr. Sengupta that the circular in question prohibits only forwarding of the applications of temporary Government servants more than twice a year but the same puts no restraint on the authorities in the matter of refusing to forward applications which are filed for the first time by the employees concerned and the said terms are not unreasonable.

19. I further find the submissions of Mrs. Sengupta that the Calcutta Metropolitan Development Authority is not an 'authority ' in terms of Article 12 of the Constitution of India and as such the same can be regarded as a 'private employer' is of no substance. The said authority, in view of is constitution, functions, formation, powers and dealings as mentioned in Sections 3, 4, 6, 7, 8, 9, 10, 11, 15, 18, 19 and 21 of the Calcutta Metropolitan Development Authority Act, 1972 read with the tests as laid down by the Supreme Court in the case of Sukhdeb Singh v. Bhagatram Sardar Singh, Raghuvanshi; reported in 1975-I L.L.J. 399, (1975) 1 S.C.R. 421, will be an 'authority' within the meaning of Article 12 of the Constitution of India and as such the same cannot be regarded as a 'private employer'.

20. In view of the above, the Rule is discharged. Interim orders are vacated. There will, however, be no order for costs.