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Sudhir Kumar Bose Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1916 of 1958
Reported inAIR1962Cal587
ActsConstitution of India - Articles 16, 226 and 309; ;West Bengal Civil Services Rules - Rule 24; ;Civil Service (Classification, Control and Appeal) Rules - Rule 22
AppellantSudhir Kumar Bose
RespondentState of West Bengal and ors.
Appellant AdvocateManindra Nath Ghose, Adv.
Respondent AdvocateJ. Majumdar and ;Somendra Chandra Bose, Advs.
Cases ReferredSudhir Kumar Bose v. State of West Bengal. The
- .....of the petitioner was requisitioned, on december 15, 1943, and placed at the disposal of the civil supplies department at khulna. admittedly the petitioner rendered singularly meritorious service in his new assignment and became an inspector in the said department. during this time, his old office had asked for his reversion and return more than once and even threatened to suspend his lien but the civil supplies department pleaded to the collector to agree to his continuance in their service, because he was indispensable to them. illustrative of the attitude of the civil supply department, i am referring to one of its letters, addressee to the collector of khulna, dated july 26, 1947, an extract from which is set out below:-- 'ref: his memo no. 1924/1/2g dated 18-6-47, he is.....

B.N. Banerjee, J.

1. In the year 1934 the petitioner obtained his first temporary appointment as a lower division clerk in the Khulna Collectorate on a scale of pay of Rs. 35-80/-, thereafter revised to Rs. 55-130/-. He was made permanent sometime in the year 1935.

2. When the Civil Supply Department came into existence, the Commissioner of Food and Supplies addressed the following letter, dated December 6, 1943, to all district officers:--

'The Deputy and Additional Deputy Directors appointed in connection with the above scheme are expected to open offices at their respective Regional Head Quarters within a week. An Assistant Director's office will be established shortly afterwards at the Head Quarter Station of each of the remaining districts.

It is considered essential that these offices should be provided with a nucleus of competent and reliable clerks with previous experience in Government Service, so that operations may commence without the delay which the recruitment and training of raw materials would involve.

Government has decided that under the circumstances it is necessary to call upon each District Officer to contribute a certain number of clerks from his own staff to serve temporarily in the office of the Deputy, Additional Deputy or Assistant Director (as the case may be) within whose jurisdiction his District will fall. It is hoped that this contribution may be offset, to some extent at any rate, by the fact that the new organisation will relieve District and Sub Divisional Officers of some work in connection with the procurement and Distribution of Food Supplies.

I, would, therefore, request you to select the clerks shown in the schedule annexed from among the staff of your own or your subdivisional offices and to direct them to report for duty at the office indicated.'

3. Pursuant to the above letter, the service of the petitioner was requisitioned, on December 15, 1943, and placed at the disposal of the Civil Supplies Department at Khulna. Admittedly the petitioner rendered singularly meritorious service in his new assignment and became an Inspector in the said department. During this time, his old office had asked for his reversion and return more than once and even threatened to suspend his lien but the Civil Supplies Department pleaded to the Collector to agree to his continuance in their service, because he was indispensable to them. Illustrative of the attitude of the Civil Supply Department, I am referring to one of its letters, addressee to the Collector of Khulna, dated July 26, 1947, an extract from which is set out below:--

'Ref: His Memo No. 1924/1/2G dated 18-6-47, he is informed that Babu Sudhir Kumar Bose, is one of our best Inspector Assessors. He cannot be spared without seriously undermining the efficiency of the local procurement machinery of Khulna. He is requested to be so good as to allow the said Inspector-Assessor Babu Sudhir Kumar Bose to retain lien for a further period of one year with effect from 1-7-47.'

With the partition of Bengal, the petitioner opted for service in West Bengal. I have already stated that at that time he had risen to the position of an inspector. On joining the West Bengal service, he was transferred to Malda on his existing pay and allowances. From Malda he was againtransferred to Basirhat within the district of 24-Parganas. At the option of the petitioner his lien at the Khulna Collectorate was transferred to the office of the Deputy Commissioner of Jalpaiguri. The petitioner rose higher in services and on or about February 26, 1951, the petitioner was promoted as the Chief Inspector of Civil Supplies and was posted at the head quarters of 24-Parganas on a scale of pay of Rs. 200-15-2-280/-.

4. The department of civil supplies, as is well known, was a non-permanent department. The petitioner and others who had been transferred from permanent government departments to the civil supplies department became at this time apprehensive of their future. They felt that with the stabilisation of the economic condition in the country, the department was going to be abolished and the employees in the department were going to lose their services in the department. Series of representation began to be made to the authorities for laying down definite prospects for employees like the petitioner and for safeguarding them from any loss financial or otherwise in case they were directed to revert to their parent department. Upon such representations, the authorities from time to time recommended that such officers, if found unnecessary in the department, shall be absorbed in posts, comparable to the posts which they were at that time holding. One such recommendation is Annexure 'H' to the petition and is set out below:--

'The question of the future of the permanent hands who are on deputation to this department has been under consideration of Govt. from sometime past. In most of the offices and Directorates under this department, there is a small nuclues of permanent hands. It has been decided that permanent hands who have been in this department for 3 years or more and who have rendered and are still rendering satisfactory service should be retained in the department as long as possible, if the posts Which they have been holding now are abolished steps should be taken to fix them up in comparable posts elsewhere in the department. The question of their reversion to their parent offices wilt arise only (a) when the department is satisfied that it is not possible to absorb them elsewhere or (b) when the persons themselves or their parent offices insist on reversion and they can be released without serious inconvenience. No Directorate or office should therefore initiate any action regarding reversion of any permanent employee belonging to this category without consulting the Secretariat. Whenever there is any possibility of any permanent hand becoming surplus, the Directorate or office concerned should first of all try to fix him up elsewhere in a comparable post, failing which they should report the name to the Secretariat. Secretariat will then consider in consultation with the other Directorates and offices whether it is possible to absorb him elsewhere. If not, orders of reversion will issue from the Secretariat. The notice to the Secretariatshould come at least one month in advance.

* * * * * * *

Sd/- E. G. Creek.

Dy. Secretary, Civil Supplies


5. Pursuant to the recommendation certain schemes appear to have been framed by the authorities and by one of them it was provided that the surplus staff of the Civil Supplies Department, requisitioned from other departments, might be appointed to comparable posts created for settlement operations. The petitioner agreed to accept one of the posts, but he was not selected. At last, the petitioner wasordered to revert to his original post as a Lower Division Clerk. Against the order of reversion, the petitioner moved this Court under Article 226 of the Constitution, but Sinha, J, was pleased to dismiss the application. Against the order of dismissal the petitioner preferred an appeal, being P.M.A. No. 61 of 1955 Sudhir Kumar Bose v. State of West Bengal. The said appeal came up for hearing before Chakravartti, C. J. and Lahiri J. and their Lordships were pleased to observe as follows:--

'It appears that the Civil Supplies Department was anxious and indeed considered it as one of its liabilities to fix up the appellant in a comparable post, since his services had been requisitioned without his consent and since he had not been allowed to revert to his original post even when he had wanted to do so. Those recommendations bore no effect. The position therefore is that the appellant was transferred from the permanent post which he was holding against his wishes to a newly created department and kept there for about 10 years and he had risen to the post of Chief Inspector, carrying a salary of about Rs. 300/-, he was suddenly reverted to his old post of a Lower Division Assistant in a Collectorate although according to him other similarly placed were found comparable posts and although the post he was holding was still in existence. It is to be noted that if he had been allowed to remain in his old post and had not been transferred to the Civil Supplies Department, he might have by this time risen to an Upper Division Assistant or even a Superintendent. Normal opportunities for a rise in his substantive post were thus denied to him. Prima facie, the facts are such as to shock one's conscience and the learned Advocate appearing for the State, admits that they are so.'

6. On the view taken, their Lordships were pleased to issue a Rule to the following effect:--

'Let a Rule issue on the respondents to the petition to show cause why a writ of Certiorari should not issue directing them to produce the Administrative Records relating to the appellant and why on such records being produced the orders set out in Annexure to the petition should not be quashed and/or why a writ of Mandamus should not issue to them, directing them to withdraw the orders or refrain from continuing to give effect to them or why such other appropriate Writ or direction should not issue to them as to this court may seem fit and proper.'

7. That is the Rule which now comes up for hearing before me.

8. It had been strongly contended before the appellate court that the petitioner could not be reverted as a Lower Division Clerk because of the provisions of Article 16 of the Constitution and the first part of Rule 22 of the Civil Service (Classification, Control and Appeal) Rules. That point was not seriously argued before me by Mr. Manindra Nath Ghose, learned Advocate for the petitioner. Rule 22 of the Civil Service (Classification, Control and Appeal) Rules is to the following effect:--

'Save where his former appointment has been terminated by his removal under Rule 49(vi), no appointment of a person who included in a service to any other service or post shall operate to deprive him without his consent of any right or privilege to which he may have been entitled as a member of his former service. .......'

9. It does not appear that Rule 22 is attracted to the facts of the present case. The inclusion of the petitionerin the Civil Supply Department threw open a vista of fresh opportunities to the petitioner and he rose in that department to the position of a Chief Inspector, Therefore, he was possibly getting much more than what he could expect to get under Rule 22 above mentioned, it cannot be said that his inclusion in the Civil Supply department at that time operated to his detriment. Article 16 of the Constitution dealing with equality of opportunity in matters of public employment does not apply to the facts of the instant case, because the petitioner had already got an employment. The provisions of Article 16 do not govern the opportunities of promotions after a person gets an employment.

10. Mr. Manindra Nath Ghosh, as I have already stated, did not emphasise either on Rule 22 of the Civil Service (Classification, Control and Appeal) Rules nor on Article 16 of the Constitution. He contended with great emphasis that the petitioner has been a victim of injustice and that justice must be done to him. The nature of the injustice suffered by the petitioner was described not as loss of pay or economic advantages in the time-scale but loss of prospects to which the petitioner would have been entitled if he had not been included in the Civil Supply Department. Mr. Ghosh contended that after the abolition of the Civil Supply Department, the petitioner should have been awarded advantages of the scheme framed by the authorities. This branch of argument of Mr. Ghosh may be shortly disposed of. It is disputed that the scheme at all applies to the petitioner. Even assuming that it does, the scheme has no statutory force but is merely an administrative scheme and it is difficult for me to enforce that scheme by way of a high prerogative writ. I agree with the contention made by Mr. Ghosh that the petitioner has not been very fairly treated after having rendered meritorious service in the Civil Supply Department. That is somewhat unfortunate, but the West Bengal Service Rules, by which the petitioner is governed, do not provide for any remedy which I may enforce by a high prerogative writ. Under Rule 24 of the West Bengal Service Rules, a Government servant may be transferred from one place to another. The petitioner, therefore, could not resist his transfer from the Collectorate to the Civil Supplies Department. The proviso to Rule 24 reads as follows--

'Provided that, except (i) on account of inefficiency or misbehavior, or (ii) on his written request, he shall not be transferred substantively to or except in a casa covered by Rule 65, appointed to officiate in, a post carrying less pay than pay of the permanent post on which he holds a lien, or would hold a lien had it not been suspended under Rule 20.'

The proviso to Rule 24 was not violated in the case of the petitioner. Therefore, when the order of reversion of the petitioner from the Civil Supplies department to his parent department was made, he had no right to join his old department at a post, which he might have reached had he been regularly promoted. The only other alternative was to keep the petitioner as a Lower Division Clerk, allowing to him all the financial advantages of the pay scale as from time to time revised. It is admitted that such advantages were given to the petitioner. Since the petitioner cannot establish a right to be treated otherwise, I cannot give him any relief in this Rule. At the same time I fee! that the petitioner has not been very properly treated. I can only hope that the State Government will make amends forits treatment of the petitioner and give him some promotion at the first available opportunity.

10a. With these observations I discharge this Rule but make no order as to costs.

11. Let a copy of this judgment be sent to theChief Secretary, Government of West Bengal, so that hemay know of the view expressed by this Court.

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