Sarojendra Nath Bose Vs Chief Justice, High Court

A.M. Sinha, J.@mdashThis petition under Article 226 of the Constitution of India is for issuance of a writ of Mandamus forbearing the Respondents from giving any effect to certain orders dated April 22, 1988 and April 28, 1988 rejecting the claim for determining the Petitioner''s seniority with effect from January 7, 1975, in the post of Upper Division Assistant which he has been holding at present. He has also prayed for determination of his seniority with effect from January 7, 1975, in his present posting on the basis of second proviso to Rule 16 of Calcutta High Court Rules, 1960. On that score he has also prayed for quashing and cancelling impugned orders dated April 22, 1988 and April 28, 1988, and for injunction restraining the Respondents from giving effect to the impugned order and also from giving any further appointment and promotion to the post of Superintendent, a post in the next higher cadre. He has obtained an interim order of injunction in this regard.

2. The Respondents have applied for vacating the interim order controverting the case and claim of the Petitioner on all points.

3. The Petitioner was appointed a Lower Division Assistant in the office of the Appellate Side of Calcutta High Court on June 20, 1961. He was promoted to the post of upper Division Assistant in a leave uncancy on December 7, 1994. Thereafter- he was reverted. He was again promoted against a regular vacancy in the post of Upper Division Assistant on probation from January 7, 1975. He worked in that post till January 21, 1976, when he was reverted to the post of Lower Division Assistant. It is alleged by him that it was done as a penal measure. Again on July 29, 1976, he was promoted to the post of Upper Division Assistant. In the meantime, however, as many as 14 persons, who were junior to him in the feeder cadre, were promoted to the post of Upper Division Assistant. He made representations to the authorities for reckoning his seniority from January 7, 1975, when he was promoted to the post of Upper Division Assistant against a regular vacancy, but to no effect. So, he moved a writ application (Matter No. 660 of 1987) in the original writ jurisdiction of this High Court. The matter was ultimately heard and dismissed by the learned Judge, Shri Bhagabati Prosad Banerjee, on certain findings. His lordship was pleased to find that there was a break of Petitioner''s service in the post of Upper Division Assistant from January 21, 1976 to July 27, 1976, as he was reverted to the lower post at that time and that his seniority should be counted from a point from which there was no break in his service and his appointment to the post of Upper Division Assistant from July 28, 1976, was a fresh appointment. He was further pleased to find that the cause of action for his case arose in 1976 when his claim for promotion was rejected and that as no reason was disclosed for not moving the Court at the earlier stage, the petition should be held as not maintainable at the belated stage. Before the judgment was signed by his lordship the Petitioner made further submission through his Counsel. Upon such submission it was ordered that the judgment dated March 8, 1988, was passed without prejudice to the rights of the Petitioner to claim seniority from the date when'' the Petitioner was promoted on regular basis and continued as such and the subsequent order was made part of the earlier judgment dated March 8, 1988. The Petitioner has moved the present application as his representation for consideration of seniority in terms of the judgment from January 7, 1975, since when he was appointed on a regular basis in the post of Upper Division Assistant was turned down by the authorities.

4. The Respondents in their affidavit-in-oppos,ition have denied the case of the Petitioner on all material particulars. It has inter alia been stated that the Petitioner suffered a judgment passed in earlier writ proceedings (Matter No. 660 of 1989) negativing his case on the ground of maintainability and also on the findings that there was a break in his service from January 21, 1976 to July 28, 1976, on account of his reversion from the post of Upper Division Assistant and that his service from July 28, 1976, should be deemed to be a fresh service. The Petitioner, it is stated, having not challenged such decision in appeal is bound by it and is estopped from agitating the same cause over again in this writ proceeding. The further case of the Respondents is that the appointment of the Petitioner to the post of Upper Division Assistant was on trial basis and on condition of his successful performance and observance of punctuality in attendance of his office and that the appointing authority on getting unfavourable report on these counts reverted him to the post of Lower Division Assistant. According to them, the rules relied upon by the Petitioner in support of his claim are not attracted in his case. It is contended that the Petitioner was appointed on promotion as a probationer and he was reverted during the period of probation not by way of discipline but by application of the terms and condition of probations and that as a probationer he is not required to be dealt with under a disciplinary proceeding which applies to a permanent or a full-fledged employee.

5. The parties have conceded that the application for variation or vacation of the rule and order of injunction should be heard along with the main petition.

6. Mr. Sarkar, the learned Advocate representing the Respondents, has raised a preliminary point and urged that the petition is barred by principle of res judicata as the Petitioner''s case was dismissed with a definite finding that his application was not maintainable on account of the unusual delay in moving the Court after lapse of 11 years since 1976 when his representation for determination of seniority in the post of Upper Division Assistant with effect from January 7, 1975, when he was appointed on regular basis was turned down by the learned Chief Justice. The Petitioner admittedly suffered such judgment without preferring an appeal. The learned Advocate representing the Petitioner, has on the other hand urged that the judgment dated March 8, 1988 (Annex. X of the Respondents'' affidavit-in-opposition) should be read with the further order dated March 23, 1988, which lays down that the earlier judgment dated March 8, 1988, was passed without prejudice to the rights of the Petitioner to claim seniority from the date when the Petitioner was promoted on regular basis and continued as such. It is also laid down in the subsequent order that the said order should be treated as part of the judgment dated March 8, 1988, and be incorporated in the said judgment and order. So it is contended that the decision as supplemented by subsequent decision gives the Petitioner a right to agitate for determination of his seniority in the post of Upper Division Assistant since the time of his appointment on regular basis and also on continuous basis, as expressed in the earlier judgment and has given a right to move the Court under Article 226 of the Constitution. There is difficulty in imple- meriting the said judgment in view of the clear order of dismissal of the case of the writ Petitioner claiming seniority. There is also a clear finding in the judgment that there was break of Petitioner''s service in the post of Upper Division Assistant and that his service in the said post with effsct from July 28, 1976, was a fresh appointment and that as such his claim for reckoning seniority from the date of initial appointment having lost continuity should be rejected. The certified copy of the judgment has not been produced but it appears from the plain copy of such judgment as contained in Annexs. ''X'' and ''Y'' of the Respondents'' affidavit-in-opposition that instead of July 28, 1976, it has been typed in the copy of the judgment that the appointment of the Petitioner in the post of Upper Division Assistant with effect from July 20, 1976, should be treated as fresh appointment. Be that as it may, this Court is not competent to review or revise the earlier judgment. The Petitioner should have approached the Court which passed the judgment for such review, revision or clarification, for the purpose of implementation of judgment and order. Even if a harmonious construction is given to the original and the supplementary judgment passed in the earlier proceeding, it would be found that such judgment and order could not be implemented by the authority in view of the clear dismissal of the Petitioner''s claim for seniority and also in view of clear and definite finding that the service of the Petitioner in the post of Upper Division Assistant with effect from July 20, 1976 (or precisely June 28, 1976) was a fresh appointment having no continuity from before or from January 7, 1976, as claimed by the Petitioner in the present proceeding. It has been held by successive dscisions of the Supreme Court that where a petition under Article 226 of the Constitution is dismissed on merits, it operates as res judicata and bars a fresh petition under Article 226 of the Constitution Daryao and Others Vs. The State of U.P. and Others, See also P.D. Sharma Vs. State Bank of India, and Tilokchand and Motichand and Others Vs. H.B. Munshi and Another,

7. In a recent decision of our High Court in Mayurakshi Gramin Bank v. K. K. Sarkar and Ors. 1990 (1) Cri. L.J. 1 (p. 1, para. 9) it has been held by the Division Bench:

A judgment pronounced by the Court is final. No departure from the principle is justified even in the writ jurisdiction. No attempt by way of an application for clarification and/or direction could or should be encouraged to upset the decision already rendered in the writ petition. Upsetting a final judgment is impermissible particularly when by the eventual order no clarification of previous order is made, nor any reason is assigned for the new order.

This applies squarely to the facts of the present case. No further order or direction could be invited in a subsequent proceeding made before the Court to upset the decision and finding already made in an earlier proceeding between the parties.

8. Next it has been urged by Sri Sarkar that the second proviso to Rule 6 of the Calcutta High Court Service Rules, 1960, is not attracted to the case of the Petitioner in view of the fact that he was appointed on probation or on trial and during such period no disciplinary proceeding is required to be initiated for terminating his service on probation or reverting him from such service to his lower post or ending the period of probation. It has been well-established that a probationer is a person who has been appointed on trial and has no right to the post held by him. Union Territory of Tripura, Agartala Vs. Gopal Chander Dutta Choudhury,

9. In the earlier decision both the parties have relied upon the decision of the Supreme Court in Baleshwar Dass and Others Vs. State of Uttar Pradesh and Others, The learned Advocate for the Petitioner submits that for the purpose of seniority the continuous service either" in permanent or temporary capacity or in officiating capacity should be taken into consideration, and if the service is found to be continuous from the date of the Petitioner''s appointment in the post of Upper Division Assistant on and from January 7, 1975, it will not be disturbed by the facts of his reversion from his period of probation which is admittedly found to be for more or less about six months and his reversion shall not bo deemed to be a reduction in rank in terms of second proviso to Rule 16 of Calcutta High Court Service Rules, 1960. This proviso as stated earlier would only be attracted if the Petitioner was subjected to any disciplinary proceedings as contemplated in Rule 16. There is nothing on record to indicate that the Petitioner was ever subjected to any disciplinary proceedings during his period of probation. As the Petitioner was a probationer, it is not necessary to initiate a disciplinary proceedings in terminating or in ending the period of probation or in reverting him from the period of probation. In the present case, it is found from the records of the High Court that the Petitioner was at first jjromoted on probation for six month''s subject to the report of his successful performance of observance of punctuality in attendance and that the report was not favourable in this regard when it was called for at the end of six months. The learned Chief Justice, as the appointing authority in spite of such facts in his discretion extended the period of probation on similar terms for a further period of six months. At the end of that six months it was also found by the learned Chief Justice on the report of the department that there was no improvement on the part of the Petitioner on this account. Then the learned Chief Justice reverted him to the post of Lower Division Assistant, i.e. the feeder post which he held before his promotion to the post of Upper Division Assistant on probation. It is also admitted case that the Petitioner was appointed on a regular basis from July 28, 1976. Now the only question before this Court is if the period of officiation or of probation of the Petitioner prior to his appointment on July 28, 1976, should be taken into consideration for the purpose of determination of his seniority. The Supreme Court in the decision cited above while laying down the rule of taking into consideration of continuous service of an employee for the purpose of determination of seniority, has made an exception to the applicability of these rules that the order of appointment in a substantive capacity is the significant starting point for reckoning seniority. It is observed:

If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has been approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved one may well say that the post was held by the incumbent in a substantial capacity.

10. In the present case it is not disputed that the Petitioner was on probation in promotion at first instance for a period of six months from January 7, 1975, on trial basis and that after the expiry of that six months the then learned Chief Justice, the appointing authority extended the period of probation for a further period of six months on the same terms and condition and that on the expiry of the second term of probation of six months, the learned Chief Justice by an order dated January 20, 1976, reverted him to the post of Lower Division Assistant. In paragraph 2 of the application for vacating the order of injunction filed by the Respondents it has categorically been stated that by an order dated July 28, 1975, the first period of probation for six months was extended for another six months subject to the condition that the case of his retention to the post of. Upper Division Assistant would be considered after obtaining the report on the expiry of six months and that the Petitioner was duly informed of such condition by the then Deputy Registrar on July 30, 1975. In para. 3 of the said application it is further mentioned that after the expiry of six months on July 28, 1975, the question of further retention of the Petitioner to the post of Upper Division Assistant was taken up for consideration by the appointing authority and that on the basis of the report of the Superintendent under whom the Petitioner worked that the punctuality and regularity of the writ Petitioner in attendance was not satisfactory, he was reverted to the post of Lower Division Assistant by an order dated January 20, 1976, after due consideration by the concerned authority.

11. The writ Petitioner in para. 5 of the affidavit-in-reply has stated that he does not admit the allegation in paras. 2 and 3. It appears that he has made a general denial without specifically controverting the clear fact as made out by the Respondents in paras. 2 and 3 of the application for vacating the order of injunction. In paragraph 5 he further says that he relies on official records which are in the custody of the Respondents in this regard. The official record has been produced before this Court. It appears that the Petitioner was informed of the decision and the fact of rejection of his representation for counting his seniority from January 1975. This record clearly supports the categorical stand of the Respondents. It is not disputed that the Petitioner was initially allowed to officiate as Upper Division Assistant in a leave vacancy with effect from December 7, 1974, and that he was allowed to officiate as Upper Division Assistant in the regular vacancy from January 7, 1975, on probation at the first instance for six months and then for the second term for six months. The learned Advocate for the Petitioner has submitted that the Petitioner has now given up his claim for seniority against his appointment in leave vacancy But it is contended that his seniority should be counted from January 7, 1975 when he was appointed on promotion in probation against a regular vacancy. In support of the claim reference is made to High Court Service Rules, 1960. My pointed attention has been drawn to Rule 14(2) which says that an employee in Class HI of the High Court service, shall on promotion to a post in that class, be on probation for a period of one year unless otherwise ordered by the appointing authority. The learned Advocate has also referred to second proviso to Rule 16 which says:

Provided further that the reversion of a person, promoted on probation on his being found not fit for confirmation shall not be deemed to be reduction in rank. Rule 16 prescribes the penalties to be imposed upon the members of High Court Service in Classes I, 11/ III and IV. The second proviso lays down that even if a member of the service is reverted to a lower post his period of reversion shall not be deemed to be reduction in rank, although if he is not found fit for confirmation. In other words the period of reversion will not stand as a bar to the continuance of a member of a service in his substantive rank. The entire rules have not been produced before me. In my view Rule 16 which has been relied upon by the Petitioner in this case would only be applicable in case of imposition of penalty in pursuance of any disciplinary proceeding initiated against any member of the service of the High Court in Classes I, II, III and IV. Nothing has been produced before this Court by the Petitioner to indicate that ever the Petitioner was subjected to any disciplinary proceeding. The learned Advocate representing him has referred to the xerox copy of the affidavit-in-opposition filed on behalf of the Respondent in Matter No. 660 of 1987 where in para. 9 it is stated that he was reverted to the post of Lower Division Assistant with effect from January 21, 1976, as a disciplinary measure. This expression ''disciplinary measure'' cannot amount to disciplinary proceeding as contemplated in Rule 16 of High Court Service Rules, 1960. For disciplinary proceeding is a comprehensive procedure starting from calling for explanation, notice of showing cause, formation of charge, conducting of an enquiry and termination of proceeding with definite finding of guilt or innocence of the persons subjected to such proceedings. The'' term ''disciplinary measure'' as used in the affidavit in question appears to have been made loosely. The relevance of the statement in such affidavit cannot also deserve any attention in the present case in view of the fact that on consideration of such affidavit-in-opposition and the relevant pleadings of the parties in Matter No. 660 of 1987 the learned Judge dismissed the application of the writ Petitioner. He cannot therefore be allowed to refer to the statement of such affidavit-in-support of his case over again. Besides, the Petitioner as a probationer, as stated earlier, cannot have a right or claim to a post on probation. It is not either necessary to subject a probationer to a disciplinary proceeding for terminating or reverting his period of probation. The decision in Baleswar Das''s case ( Supra) clearly points out that the probation prescribed should be approved before it may be said that a member of. the service held a post in substantive capacity. In the present case the period of probation was not approved by the then learned Chief Justice as the appointment of the Petitioner was made for six months on probation at the first stage on trial basis and his period of probation was extended for a second term of six months on the same terms, and condition and on the expiry of the second term his probation was disapproved and he was reverted to the lower post.

12. The Petitioner, therefore, having not been retained in the regular post or substantial post from January 7, 1975, onwards as claimed by him and he having been reverted to a lower post for about six months from January 21, 1976 to July 28, 1976, cannot claim the benefit of seniority on the basis of continuous officiation from the date of his initial promotion in the post of Upper Division Assistant with effect from January 7, 1975, as there was a clear break in such service. And that was the finding in the earlier proceeding. It was found that his appointment from July 28, 1976, should be counted as fresh service and his seniority should be counted from such date onwards provided there is no break in such service.

13. Thus, the application cannot stand on Law as well as on merits. It is, therefore, rejected on contest without costs. The rule is discharged. All interim orders are vacated. Learned Advocate representing the Petitioner''s pray for stay of operation of the judgment and order for two weeks. Hence as regard to the facts and circumstances of the case, I am not inclined to grant stay. Accordingly, such prayer is rejected.

14. All parties to act on signed copy of the operative portion of the judgment on the usual undertaking.