Salil Kumar Datta, J.
1. This is an appeal from the judgment and order of Sabyasachi Mukharji, J., dated August 16, 1978 whereby the rule issued on the petitioner appellant's application under Article 226 of the Constitution was discharged subject to certain directions contained in the judgment.
2. The petitioner's case as made in his application is as follows: The petitioner is a highly qualified civil engineer with a first class degree in Civil Engineering obtained in 1955 and is a member of various engineering institutes in India and abroad. He is also a law graduate, a registered architect and is author of a number of books and publications with a doctorate degree in Planning and Housing. Since 1961, after service in various foreign firms, he had been a senior covenanted officer in Jessep and Co. Ltd. and in 1964 he applied for a post of Structural Engineer in the Development and Planning (T and CP) Department of the Government of West Bengal advertised by the Public Service Commission in the scale of Rs. 1,500-60-1,800. By order dated April 3, 1965 he was appointed by the Government temporarily to act until further orders as Structural Engineer under the Calcutta Metropolitan Planning Organisation (hereinafter referred as C.M.P.O) with higher initial pay of Rs. 1,620 on selection by the Public Service Commission.
3. The C.M.P.O came into existence as an autonomous body in 1961 for the purpose of preparation of the development plan of the Calcutta Metropolitan District and other regions of the State. Gradually the sphere of activity of C.M.P.O increased to many regions of the State. C.M.P.O was brought within the Government in the Department of Development and Planning by the following resolution No. 1371/1E-5/64 dated March 10, 1964:
(V) The Town and Country Planning Branch of the Development and Planning Department will have under it as units, the Calcutta Metropolitan Planning Organisation and the Asansol Planning Organisation.
The petitioner was redesignated as the Superintending Engineer by the following order of August 1, 1968.
GOVERNMENT OF WEST BENGAL
DEVELOPMENT AND PLANNING
18, Rabindra Sarani.
NO. T. and CP/9675/1E-52/67
Calcutta, the 1st August, 1968.
The Governor is pleased to appoint Shri Rabindra Nath Mukherjee Structural Engineer of the Calcutta Metropolitan Planning Organisation to act temporarily until further order as Superintending Engineer (Construction) under the said organisation with effect from August 1, 1968.
2. Shri Mukherjee has been appointed as the Superintending Engineer (Construction) against the post created in G.O. No. T and CP/9674/1E-82/67 dated 1st August, 1968 by redisignation of the existing post of Structural Engineer under Calcutta Metropolitan Planning Organisation.
3. The appointment is temporary and is terminable with one month's notice on either side.
On December 31, 1970 the Government issued the following notification:
GOVERNMENT OF WEST BENGAL
DEVELOPMENT AND PLANNING
(T and CP) DEPARTMENT.
No. 8285-T and CP/3E-60/70 Calcutta
the 31st December, 1970.
The Governor is pleased to declare Shri Rabindra Nath Mukherjee, Superintending Engineer of the Calcutta Metropolitan Planning Organisation, to be in service with permanent status in a post of Superintending Engineer in the scale of Rs. 1,500-60-1,800 under the Calcutta Metropolitan Planning Organisation with effect from the 24th July, 1970 in terms of Rule 4(1)(b) of West Bengal Services (Temporary and quasi-permanent service and service with permanent status) Rules, 1967.'
4. The relevant provisions of the said Rules are as follows:
No. 3568-F/F2A-167/67-5th October, 1967--In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor is pleased hereby to make the following rules, namely:
1. Short title and commencement (1) These rules may be called the West Bengal Services (Temporary and quasipermanent Service and Service with permanent Status) Rules, 1967
2. Application (1) Subject to the provisions of Sub-rule (2) these rules shall apply to all persons who hold a civil post under the Government of West Bengal and who are under the controlling authority of the Governor, but who do not hold a lien on any post under the Central Government or the Government of West Bengal or any other State Government....
4. Quasi-permanent service and service with permanent Status (1) a Government servant shall he deemed to be:
(a) in quasipermanent service if he has been in continuous temporary service for more than three years, and
(b) in service with permanent status if he has been in continuous temporary or quasi-permanent service or in continuous temporary and quasi-permanent service for more than five years,
and if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi-permanent capacity, or for employment with permanent status, as the case may be, has issued a declaration to that effect in accordance with such instructions as the Government may issue from time to time.
Provided that where the recruitment to a specified post is required to be made in consultation with the Public Services Commission, West Bengal no such declaration shall be issued except after such consultation unless such recruitment was initially made in consultation with the Public Service Commission..
7. Termination of service of Government servant in service with permanent status or in quasipermanent service (1)(a) The service of a Government servant with permanent status, and (b) subject to the provisions of Sub-rule (2) the service of a Government servant in a quasi-permanent service, shall not be liable to termination except in the same circumstances and in the same manner in which the service of Government servant confirmed in a permanent post or in a permanent cadre is liable to be terminated.
5. We may now quote the relevant extracts of official notes and orders from file No. 1E-46/72 Re. Question of filing up of the post of Chief Engineer C.M.P.O. on account of the imminent retirement of the then Chief Engineer, C.M.P.O., Shri S. Choudhury.
It also appears that the present Commissions appreciated the ability of Shri Mukherjee as far as to recommend him for the post of Additional Chief Engineer or Deputy Chief Engineer as early as in 1967. 'Y' of the Deputy Secretary's note sheet page 30 of the linked file.
The present Chief Engineer also recommended him for the post of Chief Engineer in view of his proved worth, vide 'Z' of Deputy Secretary's note and the extract of the note as at page 37 below (Flag. 'A' in linked file).
The Chief Engineer in his note dated 18-3-71 at page 34 (flag 'A' in linked file) recommended for departmental promotion for filling up of his post in view of the fact that it would then maintain outlet for further promotion for juniors.
In consideration of the above facts and also in view of the fact that the proposed recruitment, Rule (c) also provide for departmental promotion without going through the Public Service Commission, I consider that Shri Mukherjee be promoted to the post of Chief Engineer and necessary orders may accordingly be issued immediately. H.C.M. may kindly see it.
Subrata Mukherjee 21-4-72
S.S. Ray 25.4.
S. Mukherjee, 26.4.
Minister of State
Commissioner T and C.P.
6. The petitioner, it appears, in pursuance of the approval of the Chief Minister was appointed the Chief Engineer of the C.M.P.O. until further orders by the following notification issued by the Government of West Bengal, Development and Planning Department, Town and Country Planning Branch Ref: No. 2788 T and CP/1E-52/72 dated the 12th May, 1979.
The Governor is pleased to appoint Shri R.N. Mukherjee, Superintending Engineer, Calcutta Metropolitan Planning Organisation, to act as the Chief Engineer of the same organisation until further orders with effect from the date on which he assumed charge vice Shri S. Chatterjee.
This appointment was made without reference to the Public Service Commission and without following the Recruitment Rules relating the appointment of the Additional Chief Engineer which post was re-designated as the Chief Engineer, there being no recruitment rules for the post of the Chief Engineer. The petitioner assumed his office as the Chief Engineer C.M.P.O. on August 31, 1972 afternoon on retirement of the then Chief Engineer Shri S. Chatterjee, CMPO.
7. On October 12, 1972 the same authority issued the following notification under Ref. No. 7105-TandCP/lE-52/72:
The Governor is pleased to appoint Shri R.N. Mukherjee, Chief Engineer Calcutta Metropolitan Planning Organisation to Act as the Executive Director and Chief Engineer of the organisation until further orders with effect from the date he assumes charge.
2. Shri Mukherjee shall exercise all powers of the Chief Engineer as per Public Works Department Code and all powers of the Director, Calcutta Metropolitan Planning Organisation.
According to the petitioner by this notification the designation of his office was changed to that of Executive Director and Chief Engineer without any enhancement of pay.
8. The Cabinet, it appears, took into consideration the question of revival and creation of the permanent post of the Executive Director and Chief Engineer C.M.P.O. and approved such creation of the post and appointment of the petitioner thereto as the notes in the relevant file in extracts set out below would indicate:
No. 2557-T.C. and P/1E-52/72 dated: 30-4-73.
Dated the 30th April, 1973. Case for
Sub: Revival of the post of Executive Director and Chief Engineer. Calcutta Metropolitan Planning Organisation and redesignation of the same as Executive Director and Chief Engineer Calcutta Metropolitan Planning Organisation and Ex-office Joint Secretary to the Government of West Bengal Development and Planning (Town and Country Planning) Department.
A temporary post of Executive Director and Chief Engineer was in existence under the Calcutta Metropolitan Planning Organisation during the period from the 2nd January, 1962 to 31st May, 1966. For administrative convenience the said post was subsequently abolished.
After careful consideration, it has not been felt essential to revive the said post of Executive Director and Chief Engineer under the Calcutta Metropolitan Planning Organisation. With the approval of the Minister of State the Minister-in-Charge of this Department and also the Chief Minister, West Bengal, a permanent post of Executive Director and Chief Engineer has therefore been created under the Calcutta Metropolitan Planning Organisation with effect from the 12th October, 1972 in lieu of two permanent posts, viz., one post of Director and one post of Chief Engineer sanctioned for the Calcutta Metropolitan Planning Organisation and Shri R.N. Mukherjee, Chief Engineer. Calcutta Metropolitan Planning Organisaton has been appointed to that post with effect from that date.
4. The case is now submitted to the Cabinet for its approval to the following proposal:
(i) Abolition of two permanent posts, viz. One post of Director and one post of Chief Engineer, Calcutta Metropolitan Organisation with effect from the 12th October, 1972.
(ii) Creation of a permanent post of Executive Director and Chief Engineer Calcutta Metropolitan Planning Organisation and Ex-officio Joint Secretary to the Government of West Bengal, Development and Planning (Town and Country Planning) Department with effect from 12th October, 1972 in the revised scale of Rs. 2,100-125-2,350 under the Development and Planning (Town and Country Planning) Department.
(iii) Appointment of Shri R.N. Mukherjee, Chief Engineer of the Calcutta Metropolitan Planning Organisation to the post of Executive Director and Chief Engineer and Ex-Officio, Joint Secretary to the Government of West Bengal, Development and Planning (Town and Country Planning) Department with effect from 12th October, 1972.
The enclosed case for Cabinet sent under Memo. No. 2357. T.C. and P/E-52/72 dt. 30th April, 1973 by the Dev. and Planning (T and C.P.) Department was duly considered by the Cabinet in the cabinet meeting on 2nd May, 1973 and all the items (i), (ii) and (iii) against para 4 on page 2 of the case was discussed and unanimously approved by the Cabinet in full.
H.M.C.H.C.M. Subrata MukherjeeBy the following Official Notification issued by the said authority petitioner was appointed substantively to the post of Executive Director and Chief Engineer of C.M.P.O. No. 8680-T and CP/3E-82/72 II dated November 8, 1976.
The Governor is pleased to appoint Shri Rabindra Nath Mukherjee permanent Superintending Engineer (Since re-designated as Chief Structural Engineer) and employed as Executive Director and Chief Engineer, Calcutta Metropolitan Planning Organisation substantively to the post of Executive Director and Chief Engineer of the same organisation with effect from the 12th October, 1972, i.e., the date of his appointment to the post of Executive Director and Chief Engineer made with the approval of the cabinet in its meeting held on the 2nd May, 1973 (vide Cabinet Memo. No. 2557-T and CP/1E-52/72 dated the 30th April, 1973) and also to confirm in the same post of Executive Director and Chief Engineer with effect from the 12th October, 1972.
The Notification further stated that the petitioner would draw pay in the said scale with other admissible allowances and the period of probation in his case had been waived.
9. The petitioner's further case is that his service were utilised by the Government in Planning Organisations of Assansol and Siliguri and other places of the State in connection with planning and development outside the usual activities of C.M.P.O. While the petitioner was discharging his duties in various spheres of planning and development as required by the Government since about August 1977 the respondent S.R. Das, Commissioner, T. and C.P. and Ex-office Secretary of the Development and Planning Department of the Government and others of the Government mala fide and wrongfully started denuding the petitioner of his powers and rights belonging to the post in systematic manner.
10. On September 28, 1977 the Finance Minister of the Government of West Bengal made a statement in Bengali in the State Legislative Assembly the authorised version whereof in English (translation ours) is as follows:
Dr. Asoke Mitra; Thereafter corruption which was at the top has to be removed first. We may not achieve anything, we must first turn towards morality and there the general public will hold us. Here I shall give some example and show how corruption has spread over each and every channel. There has been an organisation named C.M.P.O. There, suddenly those who were in Government in 1972 declared that a new post had to be created and that is Executive Director. Whenever any governmental post is to be created, P.S.C. has to be approached, advertisement in papers has to be made, certain qualifications are to be laid down, but one, who gave out to be the relative of a minister who was in the organisation itself, had to be placed in the post. He was placed in the post within the night (straightway). The L.R. said that it would not be proper to do it in such manner. P.S.C. said that this was unconstitutional and wrong had been done. In the matter P.S.C. has been writing letters every year and L.R.s department has said that this was not proper but the posting was confirmed. The Hon'ble members would be glad to know that in this matter after taking a decision we have abolished the post. For that I am proud.
11. A resolution set out below was also adopted by the Government on the same date:
GOVERNMENT OF WEST BENGAL
DEVELOPMENT AND PLANNING
TOWN AND COUNTRY PLANNING
No. 6111-T and CP/S.
Dated, Calcutta the 28th September.
Whereas the Calcutta Metropolitan Planning Organisation was established with the object of preparing plans for development of the Calcutta Metropolitan District, and
Whereas the Calcutta Metropolitan Development Authority has since been established and is entrusted with the responsibility of development of the Calcutta Metropolitan District, and
Whereas the continuation of the Calcutta Metropolitan Planning Organisation is no longer considered necessary or expedient in the public interest, and
Whereas it is proposed to undertake preparation of plans for development of areas outside the Calcutta Metropolitan District in the Town and Country Planning Branch of the Development and Planning Department, and
Whereas continuation of the post of Executive Director Chief Engineer, Calcutta Metropolitan Planning Organisation is incompatible in the set up after abolition of the Calcutta Metropolitan Planning Organisation;
Now therefore the Governor is pleased to order as follows:
1. The Calcutta Metropolitan Planning Organisation will cease to exist.
2. All posts other than the post of the Executive Director and Chief Engineer, in the Calcutta Metropolitan Planning Organisation, will be deemed to be posts in the Town and Country Planning Branch of the Development and Planning Department.
3. The terms and conditions of service of incumbents of all posts in the Calcutta Metropolitan Planning Organisation other than the posts of Executive Director and Chief Engineer shall continue unaffected.
4. The post of Executive Director and Chief Engineer in the Calcutta Metropolitan Planning Organisation shall stand abolished.
5. Any function which under any provision was required to be done by any officer in the Calcutta Metropolitan Planning Organisation shall continue to be done by such Officer who will be continuing to function in the Town and Country Planning Branch of the Development and Planning Department under foregoing orders.
6. In case of any difficulty arising in the implementation of these orders, the Government will take any action as may be considered necessary to resolve such difficulty.
The Governor is further pleased to order that this Resolution be published in the Calcutta Gazette and copies be forwarded to the Accountant General, West Bengal and all departments of this Government and also be circulated amongst the employees concerned.
By order of the Governor,
Commissioner, Town and Country Planning and E.O., Secretary, Development and Planning Department, Government of West Bengal.
12. The petitioner to his surprise came across a news item in newspaper of September 29, 1977 wherein, the decision of the Government to dissolve C.M.P.O. was published with the aforesaid speech of the Finance Minister. The petitioner came to know further that the Government decided to put him in a post of Special Officer (Structural) at a scale of Rs. 1,600-50-1,900. The petitioner's case was that the C.M.P.O. was looking after the Planning and Development of all areas of West Bengal except Asansol and Siliguri and its activity was not confined only to the Calcutta Metropolitan District while Calcutta Metropolitan Development Authority (hereinafter referred as C.M.D.A.) was looking after the development of the City of Calcutta. There was no cogent ground for dissolution of C.M.P.O. The announcement that all posts in C.M.P.O. were to be deemed as posts in the Town and Country Planning Branch of the Government (hereinafter also referred as T and C.P.) was erroneous since C.M.P.O. was a unit of the said branch of the Development and Planning Department. As the petitioner was doing various works, like technical vetting of various plans, technical adviser to P.S.C., technical coordinator of various departments and also engaged in Haldia Industrial Urban Complex, Kalyani Planning, Kharagpur Planning and various other works, his services could not be considered incompatible in the new context. The abolition of the C.M.P.O. and dismissal of the petitioner were result of spite and grudge based on false premises that the petitioner was a relative of a Congress Minister and gave out so. The proposed post for the petitioner was substantially lower in rank and the Government had no right to reduce his rank, privileges, emoluments and status which he had been enjoying as the Executive Director and Chief Engineer C.M.P.O. The reduction of the petitioner's rank was mala fide and on the untrue assumption that the petitioner was or gave himself out as the relative of a Congress Minister.
13. On the above allegations the petitioner moved an application in this Court under Article 226 of the Constitution contending that the impugned decision was mala fide and for collateral purpose of degrading the petitioner in rank and status by way of penalty, in violation of the provisions of Articles 16 and 311(2) of the Constitution. The Government, it was contended inter alia, had no right to deprive the petitioner of his right as a public servant by dissolution of the C.M.P.O. which even was not done in public interest discriminating him against all other personnel in C.M.P.O. who in a body were absorbed in T and CP branch under the Development Department of the Government. The petitioner accordingly prayed for a writ or direction in the nature of mandamus against S.R. Das Commissioner, T and C.P. and Ex-officio Secretary Development and Planning Department of the Government of West Bengal as also the State of West Bengal, calling upon them to withdraw, cancel or recall the said resolution dated September 28, 1977 as also the order of the Government culminating in or causing reduction of in his rank and to forbear them from giving effect thereto in any manner.
14. On this application moved on October 15, 1977 this Court issued a rule in terms of the prayer and there was an interim order restraining the Government until further orders from reducing the post of the petitioner to any post inferior to what he had been holding so long.
15. The respondents contested the Rule by filing an affidavit-in-opposition affirmed by the said S.R. Das respondent No. 1 on December 5, 1977. It was stated that the Government resolution dated March 30,1964 provided as follows:
(2) The organisation (C.M.P.O.) shall function as a Directorate with a Principal Director-in-Charge under the control of the Development and Planning (Town and Country Planning) Department of the State Government ..
The petitioner in view of the impending retirement of S. Chatterjee Chief Engineer C.M.P.O. on August 31, 1972 was appointed, while acting as the Superintending Engineer, C.M.P.O. as its Chief Engineer on ad hoc basis on the note of the then Minister-in-Charge and approve by the Chief Minister. The appointment was made without reference to the Public Service Commission or following the rules of appointment of the Additional Chief Engineer designated as Chief Engineer. The petitioners joined as Chief Engineer on August 31, 1972 though his appointment was irregular. On October 12, 1972 the post of Executive Director and Chief Engineer, C.M.P.O. was created and the petitioner was appointed thereto. The creation of the post, according to Rules of Business, required Cabinet approval which was not there before the creation though after considerable time the Cabinet approved the same and the petitioner's appointment thereto, but the claim for the status of the Joint Secretary was not acceded to as will appear from the minute of the Cabinet decision (vide extract from File No. T and CP/1E-52/72 dated 14-5-73).
The cabinet at its meeting held on the 2nd May, 1973 approved the proposal for creation of a permanent post of Executive Director and Chief Engineer under the Calcutta Metropolitan Planning Organisation in the revised scale of pay of its 2,100-125-2,350 and appointment of Sliri R.N. Mukherjee, C.E.C.M. P.O. there to.
The letter dated November 8, 1976 appointing the petitioner to the said post substantively and with effect from October 12, 1972 was also unauthorised and in violation of the Rules of Business and Secretariat Manual.
16. The Public Service Commission West Bengal raised objection to the appointment as being irregular and unconstitutional by its letter dated October 17, 1974, when its advice was sought for after lapse of considerable time as consultation with the Commission was not exempted under West Bengal Public Service Commission, (Consultation by Governor) Regulations, 1955. It was further stated that ad hoc appointment could not be confirmed straightway as such course would offend Article 16. The Commission reiterated the position by its letter of April 4, 1977 as no recruitment rules were framed.
17. It was admitted that various ad hoc works were undertaken by the C.M.P.O. under orders of the Government. It was denied that the petitioner was denuded of his powers mala fide or wrongfully. It was further denied that the resolution abolishing the C.M.P.O. was issued out of spite of grudge against the petitioner. The resolution, it was said, was passed bona fide and in public interest. Further, the method of working and the organisation of the department are matters of executive decision and creation continuation and abolition of the post are dictated by policy decision and exigency of circumstances in the interest of administration and general public. It was decided by the Government that the staff in the former Directorate of C.M.P.O. would be working under the Government and the post of head of the directorate had become in the context superfluous and incompatible with the proposed method of work.
18. The petitioner's appointment being irregular, apart from the abolition of the post of Executive Director and Chief Engineer it would have been the duty of the Government to cancel the appointment and proceed according to law to fill up the post. The Government on compassionate grounds however offered to petitioner a post of Special Officer (Structural) in the scale of Rs. 1,600/1900/- with effect from the date of abolition of the post of Executive Director and Chief Engineer. It was further stated that there were seven executing divisions under CM.P.O. executing different works when the petitioner was appointed as Chief Engineer. Six of those divisions had been transferred to C.M.D.A. and the transfer of the seventh has been deferred on account of pendency of some proceedings. The Development Commissioner, discharging the responsibility of the Commissioner, Town and Country Planning, a post kept in abeyance, the Planning Adviser and the Minister-in-Charge are in constant contact with heads of functional streams and decisions are taken expeditiously and imposition of another head between high authorities and the stream head will only delay the process of making decisions, apart from the question of unnecessary expenditure. The post for the petitioner was created for the reason that he was appointed to equivalent post on the recommendation of the P.S.C The petitioner's appointment of the post of Executive Director and Chief Engineer being irregular he was not entitled to same rank, status and emoluments of the said post. The Government has power to create or abolish a post in public interest and decision in respect thereof is dictated by policy decision, exigency of circumstances and administrative necessity in public interest. The petitioner accordingly is not entitled to any relief.
19. In his affidavit-in-reply affirmed on December 12, 1977 the petitioner reiterated that the C.M.P.O. had been discharging its functions regarding development plans since 1964 in various works in areas outside Calcutta Metropolis, in fact over many district towns of West Bengal. The petitioner was appointed substantively in the permanent post of the Superintending Engineer and under rules of recruitment laid down by P.S.C. for C.M.P.O. (annexed to the affidavit) which are in fact proposed rules, it was provided that in the case of vacancy in the post of Chief Engineer, the Superintending Engineer would have the right of promotion. It was accordingly denied that the appointment of the petitioner was contrary to rules and irregular and it was a case of departmental promotion which was the position accepted by authorities. It was further stated that previously there was one post of Executive Director and Chief Engineer, Since 1966 there was a bifurcation of responsibilities of the Executive Director and Chief Engineer. The petitioner stated that he was given the status of Joint Secretary but formal order was not issued by the Government mala fide, though the question of the status of the petitioner was outside the scope of the present proceedings. The petitioner's removal from service was on account of the reasons disclosed by Dr. Ashok Mitra and the respondents were seeking to invent one ground or other to achieve the illegal object.
20. The petitioner further stated that the permanent post of Chief Engineer was abolished to redesignate him as Executive Director and Chief Engineer and Ex-officio Joint Secretary of Development and Planning Department, for which no reference to P.S.C. was necessary which was misled by misrepresentation of authorities though the Commission is merely a recommending body. It was denied that the petitioner's appointment was in violation of the rules of business of the Secretariat Manual or Article 16 of the Constitution. The petitioner denied that he was related to the former Minister of State of himself gave out to be so or the impugned resolution abolishing C.M.P.O. was passed bona fide or in public interest or was a policy decision of administrative necessity. The post, the petitioner was holding was an essential post for coordinating activities of seven officers in the immediately lower level and of different directorates. The petitioner alone was singled out on untenable ground when he had statutory duties to perform. The petitioner asserted that he was drawing a salary of Rs. 2,820 for last four years and he had a claim to the post of Executive. Director and Chief Engineer and in any event he was to be given a similar berth with similar scale of pay. Even the abolition of the unit which was a cloak to oust the petitioner from service could not empower the State Government to reduce the rank and pay of the petitioner. It was denied that the petition was not maintainable in law.
21. In his supplementary affidavit affirmed on January 20, 1978 the petitioner annexed a copy of the letter whereby it was stated, he was purported to be demoted. The letter which, was issued by the Government of West Bengal in Development and Planning and C.P.) Department under Ref. No. 6480-T. & CP/ C-51/77 dated October 14, 1977 is as follows:
The Governor is pleased to appoint Shri R.N. Mukherjee, until further orders, as Special Officer (Structural) in the Town and Country Planning Branch of the Development: and Planning Department with effect from the 27th September, 1977.
The order further provided that the petitioner would draw pay in the scale of Rs. 1600-60 1900/- plus other allowances as per rules, The petitioner inferred to Clause 44 of the West Bengal Service Rules which according to him entitled him to the post which was created as a result of abolition of the post and his salary could not be reduced. The identity cards issued by the Government also described the petitioner's service cadre as 'West Bengal Senior Service of Engineers' in which the Chief Engineer is a promotional post. The Finance Department Circular No. 4997-F of December 5, 1970 also provided that a person holdinga post for over three years would hold the officiating post on substantive basis while the petitioner was in the post for over five years. The speech of Dr. Asoke Mitra in the Assembly clearly indicated his malice and spite against the petitioner. The Town and Country Planning Branch was created by merging CMPO and other Town and Country Planning Organisations under a single administrative authority so that CMPO and the said branch were one and the same thing. Further since the petitioner was initially appointed through P.S.C. and his posting was by way of departmental promotion following Recruitment Rules no further consultation with P.S.C. was necessary. The Legal Remembrancer also agreed to the petitioner's confirmation in the post of Executive Director and Chief Engineer. These were the additional grounds which the petitioner wanted to rely on in support of his case together with the documents annexed therewith.
22. To this affidavit there was an affidavit by S.R. Das affirmed on March 20, 1978 reiterating that the abolition of the post of Executive Director and Chief Engineer CMPO was bona fide and in public interest. The petitioner's appointment to the Chief Engineer was illegal and irregular. In the identity card the description was obviously a mistake as no cadre of service of technical officers was constituted. The allegations against Dr. Asoke Mitra were improper since he was not made a party to this proceeding. The Town and Country Planning Branch of the Development and Planning Department had under it as Units CMPO and Asansol Planning Organisation. It was denied that the old post of Executive Director and Chief Engineer was revived by redesignating the Chief Engineer. The Cabinet approved the creation of the post of Executive Director and Chief Engineer but not the conferment of the status of Joint Secretary. The view that the said post was a promotional post only was of the officials of the department and was not a decision of the Government. Reference was made to the opinion of the Legal Remembrancer which clearly indicated that the appointment of the petitioner to the said post was illegal and void under Article 16(1). By another affidavit affirmed on March 20, 1978 by Paresh Chandra Banerjee Deputy Secretary of the department a correct version of the speech of Dr. Ashoke Mitra, which has been quoted earlier, was annexed.
23. The petitioner filed a rejoinder by an affidavit affirmed by him on March 23, 1978 reiterating his allegation made in his affidavits. It was claimed that the petitioner belonged, to the cadre of the West Bengal Senior Service of Engineers and a cadre post cannot be abolished and his last post was a promotional one. It was further stated that the abolition was arbitrary and the petitioner was not being paid the emoluments he was last drawing by illegal and wrongful act of the authorities.
24. The learned Judge on a contentions hearing in his judgment under appeal before us came to the following conclusion:
(i) The petitioner was granted a permanent status in the cadre of Superintending Engineers in the service of the State as will appear from notification dated December 31, 1970 quoted earlier.
(ii) The petitioner's appointment as Executive Director and Chief Engineer, though made in an unsatisfactory manner, in view of the Cabinet decision of November 8, 1976 was neither illegal nor irregular.
(iii) The abolition of a post leading to termination of service is not dismissal or removal within meaning of Article 311 of the Constitution.
(iv) The abolition of the post of Executive Director and Chief Engineer was not mala fide in the facts and circumstances, of the case.
(v) There was not discrimination in abolition of the post of the head of the organisation while absorbing all others as the head stands on a different looting.
(vi) The petitioner was not appointed or confirmed as the Chief Engineer in the cadre of the West Bengal Engineering Service but as Executive Director and Chief Engineer in C.M.P.O., so that with the abolition of the organisation the petitioner could not claim the status of Chief Engineer.
(vii) Since the petitioner was a confirmed Superintending Engineer from December 31, 1970 he was entitled to be provided with similar position in CMPO or in any other department of the Government. If the offered post was commensurate with his position as Superintending Engineer since 1970, no further action need be taken. But if it was not so, the Government was directed to place the petitioner in a proper position. With these directions the Rule was discharged. This appeal as already stated in the against this decisions.
25. Mr. Panja learned Counsel appearing for the petitioner has contended that a permanent post under the Government where a civil servant has a lien cannot be abolished and thus terminated except in respect of term appointments. The tenure of a civil servant holding a lien on a post it was further contended, is not liable to termination except byway of superannuation, or by way of penalty following enquiry contemplated under Article 311(2) of the Constitution or by premature retirement under conditions provided in the Rules. He referred to Rule 56 of the Fundamental Rules as also Rule 75 of the West Bengal Service Rules, 1971, both of which provide for the compulsory retirement of a Government servant after putting in specified years of service. A Government servant unless otherwise provided in the rules regarding premature retirement is guaranteed of a full tenure of service except where his service is terminated by way of penalty in accordance with the provisions of Article 311(2) and the relevant rules. Such guaranteed tenure of service is a unique feature of Government service in public interest and does not depend on the vagaries of the executive authority as otherwise purity in the administration free of bias and political influence cannot be ensured. Further a plain reading of the provisions of the Constitution indicates that no power has been conferred on the Union or the State to abolish a permanent substantive post except term posts as contemplated in Article 310(2). Such power of abolition of post at the direction of the Government will not ensure social justice which the Constitution is committed to serve.
26. Article 309 provides for recruitment and conditions of service of persons serving the Union or the States by Acts of appropriate Legislature but the proviso enables the President or the Governor or the delegated authority to make rules for recruitment and conditions of service until provision is made by Acts of appropriate Legislature in respect thereof. Article 310 Clause (1) provides for tenure of office of person serving the Union or the State who holds office during the pleasure of the President or the Governor as the case may be. Under Clause (2) the President or the Governor may enter into a contract to secure the services of a person, not being a member of the defence service or all India service or of a civil service, having special qualifications and such contract may provide for compensation if before the agreed period that post is abolished or the person is required to vacate the post for reasons not connected with any misconduct on his part. Both these articles are subject to the provisions of the Constitution and thus to Article 31 which on its terms is not subject to the provisions of the Constitution. The pleasure of the President or the Governor in respect of holding of office by persons, serving the Union or the State is thus curtailed by Article 311(2) so that there can be no dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State. The contention made in its extreme form is that there can be no abolition of a civil post leading to the termination of service of the holder thereof except in respect of term appointments under contracts as expressly mentioned in Clause (2) of Article 310.
27. Mr. Gooptu learned Government Pleader appearing for the State Government has contended on the other hand that on abolition of a permanent post, the incumbent, whether he holds such a post in permanent capacity or is confirmed therein or is substantively appointed thereto, has no legal right to the post or to remain in service in the post which has become non-existent by abolition and he is not entitled to any protection under Article 311 of the Constitution nor has he any remedy in law. He has further submitted that abolition of a post is not removal of the incumbent by imposition of any penalty on him and the Government has inherent powers to abolish a post provided it is not mala fide or for a collateral purpose but in public interest.
28. Both counsels have referred to authorities which we shall presently consider. In Parshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC in paragraph 12 it has been observed:
The position may, therefore, be summarised as follows: In absence of any special contract the substantive appointment to the permanent post gives the person so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorly retired after having put in the prescribed number of years of service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during the period unless he is, by way of punishment, dismissed or removed from tire service. Except in those two cases the appointment to a post permanent or temporary, on probation or on an officiating basis of a substantive appointment to a temporary post gives the person so appointed no right to the post and his service may be terminated unless his service has ripend into what is, in the service rules, called a quasi-permanent service.
29. Mr. Panja referred to the decision in Moti Ram v. N.E, Frontier Railway : (1964)IILLJ467SC , where the Court struck down Rules 148(3) and 149(3) of the Railway Establishment Code (1959) providing mutual rights to railway authorities and Railway employees to terminate the service on notice or salary in lieu thereof as such termination by the Railway, it was held, was removal from service attracting operation of Article 311(2). It was observed paragraph 27-29 as follows:
Article 311(2) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Article 309 so as to make the said light either ineffective or illusory.in a modern democratic state the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. In regard to honest straight forward and efficient permanent civil servants, it is of utmost importance that they should enjoy a sense of security which alone can make them independent and efficient.... Even if a person is holding a post which does not carry any pension, he has a right to continue in service until he reaches the age of superannuation. That is why the invasion of this might inevitably mean that termination of his service is, in substance, and in law, removal from service.
In this case, the Court referred to the following observations in Dhingra's case:
That where a person is appointed substantively to a permanent post in Government service he normally acquires a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired and in absence of a contract, express or implied, 01 a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct.
The introduction of contract express or implied in service rule in the above extract not found in earlier part of the judgment according to Motirair's case, was held as not strictly correct, but this decision did not in any way disapprove the observations in Dhingra's case in regard to abolition of post.
30. The next decision referred to by the parties is M. Ramanatha Pillai v. State of Kerala : (1973)IILLJ409SC , where the Court was considering the service of the Vigilance Commissioner appointed by agreement for a term of years or till the incumbent reached the age of sixty years. The Government after considering all aspects abolished the post before the expiry of terms referred to above. The Court observed:
The first question which falls for determination is whether the Government has a right to abolish a post in the service. The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of Governmental policy. Every soverign Government has this power in the interest and necessity of internal administration. The creation of abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public.
The Court further observed:
The power to abolish any civil post is inherent in every sovereign Government. This power is a policy decision exercised by the executive. This power is necessary for the proper functioning and internal administration of the State....The termination under Article 310(2) is in cases of contract having specific provisions for compensation. Motiram Deha's case has not abolished the doctrine of pleasure as embodied in Article 310. Article 310 has been made subject to Article 311 where termination is by way of punishment.
The Court also held that no estoppel could arise against the State in regard to abolition of post. It was observed:.as a general rule the doctrine of estoppels will not be applied against the State in its governmental public or sovereign capacity. An exception however arises in the application of estoppel to the State where it is necessary to pi event fraud of manifest injustice... The High Court rightly held that the courts exclude the operation of the doctrine of estoppel when it is, found that the authority against whom estoppel is pleaded has owed a duty to the public against whom estoppel can not fairly operate..The High Court rightly held that the exigencies of administration required alteration in the establishment and creation of new department. This is a government function and a policy decision. The High Court was correct that there was no reason to hold that there was colorable exercise of power by the State The right to hold a post comes to an end on the abolition of the post which a Government servant holds. Therefore, a Government service cannot complain of a violation of Article 19(1)(f) and Article 31 of the Constitution of India when the post is abolished.
31. In a recent decision in State of Haryana v. D.R. Sangar : (1976)ILLJ301SC , where the Court was concerned with the abolition of the post of the Panchayati Raj Election Officer, Panchayati Raj Department, Haryana and the consequent dispensation of service of the petitioner in the post is a bustantive permanent capacity, it was observed:
Whether a post should be retained or abolished in essentially a matter for the Government to decide. As long as such decision is taken in good faith, the same cannot be set aside by the Court. It is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the service of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of services of the incombent would not attract Article 311.
The Court reiterated the principles laid down in Ramanatha Pillai's case considered above.
32. Mr. Panja submitted that the decision in Ramanatha Pillars case was in respect of a term appointment and accordingly observations made therein have no relevance to cases of persons holding permanent posts in the Government as in the instant case. The service undoubtedly in this cited case related to a term appointment, but observations and propositions of law laid down therein are of general application as is obvious from the above quotations and even obiter dictum of the Supreme Court relating declaration of law even if it be only by the way has to be respected under Article 141 through statements on matters other than law have no binding force as observed in Municipal Committee Amritsar v. Hazara Singh : 3SCR914 (para 4). Mr. Panja further submitted Sangars case also was not concerned really with a permanent post so that observations therein for similar reasons should have no binding force. This contention, as it appears, is not correct since the incumbent was in a permanent post with a suspended lien in his former post under the rules and the propositions of law cited are unequivocal.
33. Even so Mr. Panja contended that where there is no provisions express or implied in the Constitution for abolition of a permanent substantive civil post in the Union of the State, the Court should not import the power of abolition in the executive of a permanent substantive post in the Government. Conferment of such power by judicial interpretation will undermine the security of service of the members of defence of civil services of the Union and the States and make them subservient to the vagaries and caprices of the executive in furtherance their self interest which thus obviously will be inimical to public interest.
34. Article 310 Clause (1) as we have seen provides that a person in the civil or defence service of the Union or the State holds office during the pleasure of the President or the Governor. The provision in respect of a Government servant holding the office during the pleasure of the President o' the Governor has deep import and significance and cannot be accepted as words simply introduced from the British concept without any purpose. The implication appears to be that a person holding office in the civil or defence service of the Government will hold the office so long as such office is considered necessary and not redundant in public interest. If for any reason a post becomes superfluous, redundant or unnecessary it cannot be said with reason or in public interest that such office will have to be continued till the holder of the office reaches the age of superannuation and the government has no power to streamline its administration. It is also to be noted that this Article 310 Clause (1) is concerned with the office held by a public servant whose service may be terminated by way of penalty without in any way touching the existence of office held by such person.
35. This Article 310(1) however is subject to the express provisions of the Constitution, to articles which provide for the tenure of office of the holders of high offices who there under hold office according to provisions thereof and not on the pleasure of the President or the Governor as the case may be. The articles are Article 124(1) and (4)--Supreme Court Judges. Article 217(1) and (2) High Court Judges. Article 148--Comptroller and Auditor- General of India and Article 324, Chief Electric Commissioner. Article 310(1) is also subject to the provisions of Article 311(1) and (2) which curtails the pleasure of the President or the Governor to the extent provided therein. Under Clause (1) a dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State cannot be made by an authority subordinate to that by which he was appointed. Clause (2) provides that there cannot be dismissal removal or reduction in rank of such person except for misconduct by way of penality established in an enquiry held for the purpose following procedure laid down therein or in rules of service providing similar procedure. This is subject again to the provision that such enquiry against a person need not be held when on ground of his conduct there is a conviction on criminal charge, or when for some reasons recorded by the disciplinary authority it is not reasonably practicable for him to hold such enquiry or when the President or the Governor is satisfied that in the interest of the State it is not expedient to hold such enquiry. Article 311(2) relates to the holder of an office and not to the office itself, so that while a person's service may be terminated by the disciplinary authority under provisions of Article 311(2) the office he held continues--to be filled up again according to rules of recruitment. Abolition of a post which is not by way of penalty on the holder thereof does thus attract Article 311(2).
36. Though the power of abolition of a post is entirely a decision of the Executive which a Government possesses as a soverign authority courts have imposed conditions in the exercise of that power in that such power must be exercised bona fide. Though it is not for the Court to examine the wisdom of the executive in regard to the retention or abolition of a post, and substitute its decision for the one of the Government, even so the order will come under judicial security if it appears that the power has not been exercised bona fide but for some collateral or oblique purpose. As has been laid down it Sangur's case, the decision to abolish a post must not be a cloak or pretence to terminate the services of the person holding the post. If on consideration of facts of s case, it appears that abolition was mala fide or for, oblique purpose it will be struck down as unconstitutional and an abuse of power by the Government.
37. The position thus appears to be as follows:
(i) In the absence of a contract of term service a person in substantive appointment to a public service or posts in connection with the affairs of the Union or a State holds office during the pleasure of the President or the Governor as the case may be and until under the rules of service he attains either the age of superannuation or is retired earlier than the date of superannuation.
(ii) The pleasure of the President or the Governor as the case may be may be exercised by abolition of the post found redundant or otherwise unnecessary but such abolition must be in good faith and in public interest.
(iii) When the abolition of a post is bona-fide and in public interest, it is not open to the court to go behind the wisdom of the decision of the executive and to substitute its own opinion in respect thereof.
(iv) The decision to abolish a post taken in good faith and in public interest and consequent termination of service of the holder thereof does not attract Article 311(2) of the Constitution.
38. It has now to be examined if the abolition of the pest was bonafide and in public interest. Mr. Panja has submitted that the decision to abolish CMPO was made on the very day the Minister made his vitriolic attacks on the previous Ministry as also on the petitioner as if he gave out that he was a relative of the then Minister-in-Charge obviously to gain unfair advantage for himself though in fact on the evidence before us if appears that he was not such relative and never gave out to be so. It was submitted that while the entire personnel of the CMPO was absorbed in the Town and Country Planning Branch of the Development and Planning Department, the petitioner alone was left out by way of gross discrimination with the ulterior motive to deprive him of the post he had been given on sheer merit and had been holding for years with repute and without any complaint on his performance while his services had also been utilised till abolition in manifold planning activities of the Government in various spheres outside the sphere of activity of CMPO as would be evident from the mass of documents produced by affidavit evidence. Mr. Panja referred to the decisions in Lawrence D'Souza v. State of Bombay : 7SCR664 , where in respect of order of detention, it was held that for proving want of bona fides in addition non-application of mind is to be established. In S.D.S. Srivastava v. Union of India 1974-1 L.L.J. 270; : (1974)ILLJ270SC , it was held that the order abolishing a post having been passed with an oblique motive was not bona fide so that it could be ignored. The impugned abolition, it was contended, was without any application of mind, and made with the oblique motive as indicated in the speech on untrue assumptions and in any event was discriminatory.
39. C.M.P.O by the resolution of the Government of March 30, 1964 was made a Directorate under the control of the Development and Planning (Town and Country Planning) Department of the State Government and it has been functioning since then as such Directorate. The resolution dated September 28, 1977 recited that as CMDA was since established with the responsibility for development of the Calcutta Metropolitan District and preparation of plans for development of areas outside Calcutta Metropolitan District was to be undertaken in the Town and Country Planning Branch of the Development and Planning Department, continuation of CMPO was no longer considered necessary. It has been stated that out of the seven executing divisions under CMPO. six divisions had already been transferred to CMDA and one was then retained in view of a pending litigation and the process of liquidation CMPO had long started even before the present Government came in power.
40. In fact, as pointed out by Mr. Gooptu, the petitioner also admitted the transfer of these divisions of CMPO to CMDA as having been made before his confirmation on November 8, 1976. The petitioner even by his letter of October 8, 1977 referred to the abolition of CMPO and the office of E.C. and C.E. prayed for being provided with a post of equivalent scale and status suggesting the designation as ' Director, Planning and Chief Engineer, T and CP Branch.' On these facts and in the attending circumstances, particularly when it is common knowledge that the CMDA is planning and executing various development scheme in the Calcutta Metropolitan District (and the factual abolition of CMPO is not disputed), we are unable to hold that the abolition of a vast organisation like CMPO with about 1000 personnel and the transfer of its work to the C.M.D.A (So far as Calcutta Metropolitan District is concerned) and to the Town and Country Planning Branch (so far as the other areas of the State are concerned) along with the CMPO's personnel, was mala fide or done with the oblique motive simply for the purpose of depriving the petitioner of his post.
41. As a corollary, it is obvious that it is no longer possible to continue the appointment of the petitioner as the Exectutive Director and Chief Engineer of CMPO since CMPO is no longer in exisitance. The petitioner has contended that his service should have been continued as the technical head of the merged unit, since his service was also under the Country and Town Planning Branch of the Development and Planning Department of the Government in the cadre of West Bengal Senior Service of Engineers. It however appears that no cadre or service of technical officers has been constituted and there is no cadre or service of West Bengal Engineers as such constituting a main stream of a senior and other service of the engineers in the State, It further appears that different departments or directorates of the Government have separate cadres or service of engineers, some constituted under Rules framed under the proviso to Article 309 like, to cite as illustration Engineering Services (Civil) of Public Health Engineering Directorate under the Department of Health; Engineering Services (Civil and Mechanical Wings) of the Agriculture and Community Development Department, Engineering Services (Civil Engineering Wing) under the Department of Irrigation and Waterways, Public Works Department has also its cadre of service of engineers under rules framed long before Article 309 of the Constitution came into force on January 26, 196(sic) which being adopted and observed by the State has also the force of law as held in Amarjit Singh v. State of Punjab : (1975)ILLJ228SC . These rules, as it appears, provides for a category of service known as West Bengal Senior Service of Engineers, in respective directorate or departments consisting of posts of Chief Engineer, Superintending Engineers and Executive Engineers. These rules also provide for recruitment to these posts as also the terms and conditions of their service.
42. It will also appear from the notes of file No. T and CP/3E-82/72 II dated August 26, 1976 that the engineering posts under the CMPO till the material time had not been included in any existing service or cadre of the Government so that the petitioner can have no automatic claim for the post of the Chief Engineer in any other senior service of engineers of a Directorate or Department. Even so, when the entire personnel of the erstwhile CMPO has been absorbed in the Town and Country Planning Branch of the Development and Planning Department, even if the post of Executive Director and Chief Engineer of CMPO was abolished, the petitioner could not claim an office as the technical head of the unit as there is no case that a technical head of the merged unit had been appointed by the Government or such post has been retained or created. In the affidavit-in-opposition on behalf of the respondents, there is an averment that the work done by the CMPO is being done in consultation with the Development Commissioner (for the Town and Country Planning Commissioner then vacant), the Planning Adviser and the Minister-in-Charge of the Department and in such set up the post of any other incumbent would be a redundancy. There are no materials for our satisfaction that such decision is mala fide or not in public interest.
43. The speech made by Dr. Ashoke Mitra Minister-in-Charge of the Department in the Assembly in so far as it casts aspersions on the petitioner lacks in propriety and decorum and is unfortunate, coming as it does, from a person holding such high office since the Government servant had no opportunity to rebut the allegations which undoubtedly had no basis and particularly when a Government servant could reasonably expect protection from the Minister unless undeserved against attacks from others. The speech however does not refer to the abolition of the CMPO which was the result of policy decision but refers to the abolition of the post which was a resultant and inevitable consequence of the abolition of CMPO. In view of the case which the State Government has made in this Court, it however appears to us that the Minister's statement was not a correct disclosure of the relevant facts involved.
44. We have seen that the Government has the right to abolish a post in interest of public. CMPO was abolished as a result of the Government decision in public interest as averred and its personnel was absorbed in the Town and Country Planning Branch of the Development Planning Department. The petitioner's post as the Executive Director and Chief Engineer of CMPO became incompatible in the new set up though he might be entitled to be posted as the technical Chief of the transferred unit if such post was retained in the new set up. Since this was not done, and no such post is existing and would be redundant according to the Government, the petitioner cannot claim such post which was never in existence, retained or created. As the decision in these matters is of the Government as a matter of policy, it is beyond the power of the Court to direct the Government to create such post to accommodate the petitioner and post him in such office.
45. The question now for determination is as to the relief the petitioner is entitled in law. This requires the survey of the petitioner's service during the course of relevant years to determine his status. As we have seen the petitioner was appointed on basis of advertisement and selection by the Public Service Commission, as Structural Engineer on April 3, 1965 and was redesignated on August 1, 1968 as Superintending Engineer of CMPO until further orders and thereafter as Chief Structural Engineer vide order of November 8, 1976. On December 31, 1970 the petitioner was declared to be in service with permanent status in the post of Superintending Engineer under CMPO until further orders. This ad hoc appointment it appears was on the basis of the recommendation made by Minister of State-in-Charge of the department and the Chief Minister approved of the same on April 25, 1972. The petitioner assumed the office as the Chief Engineer CMPO on August 31, 1972 until further orders. On retirement of the existing incumbent the petitioner was thereafter appointed the Executive Director and Chief Engineer of CMPO by order dated October 12, 1972. This temporary post it appears was created by the Government Memo. No. 7104-T ECP/1E-52/72 in lien of the post of the Chief Engineer which is as follows:
GOVERNMENT OF WEST BENGAL
(T. and C.P.) DEPARTMENT
18, Rabindra Sarani, Cal-1.
No. 7104-T and CP/1E-52/72
Dated the 12th October, 1972
From: Shri J.C. Sen Gupta I.A.S.,
Commissioner, T and C.P. Ex-Officio
Secretary to the Govt. of West Bengal.
To: The Accountant General, West Bengal
Treasury Buildings, Cal. 1
Sir, I am directed by order of the Governor to State that a temporary post of Executive Director and Chief Engineer under Calcutta Metropolitan Planning Organisation, created with effect from the 2nd January 1962 in Govt. Order No. CMPO 499/E-33/61 dated the 29th December, 1961 was retained up to the 31st May, 1966 in Govt. order No. T and CP/11439/1E-106/64 dated the 14th October, 1965. The post was abolished with effect from the 1st June, 1966. It is now considered essential to revive the said post of Executive Director and Chief Engineer, Calcutta Metropolitan Planning Organisation in lieu of they existing permanent posts of Chief Engineer, Calcutta Metropolitan Planning Organisation and Director, CMPO and Dy. Secy. T and CP Dept. in the interest of work.
2. The Governor is, therefore pleased to sanction the creation of a permanent post Executive Director and Chief Engineer, Calcutta Metropolitan Panning Origination....
46. The Cabinet took into consideration the question of revival and creation of the permanent post of the Executive Director and Chief Engineer and decided at its meeting dated May 2, 1973, the creation of the permanent post of Executive Director and Chief Engineer under the CMPO and the appointment of the petitioner thereto. The Public Service Commission raised an objection to the said appointment being confirmed straightway since there were no rules of recruitment and it would otherwise offend Article 16. The matter was referred to the Legal Remembrancer on two points whether (i) the petitioner's appointment as Executive Director and Chief Engineer could be looked upon as regularized one and (ii) he could be confirmed in that post without reference to any recruitment rules and without consulting the P.S.C. The Additional Joint Legal Remembrancer by his note dated September 21, 1976 was of the opinion that the said post was not covered by exemption of Regulation 5 or 6 of the West Bengal Public Service Commission (Consultation by the Governor) Regulation, 1955 and Recruitment Rules for the post were required to be framed. He had further said that the said post was not a mere redesignation of an old and existing post of the Chief Engineer for it that were so, there would have been no necessity for creating the new post. The Additional L.R. further was of opinion that the appointment of the petitioner as Executive Director and Chief Engineer could not be looked upon as the regularised one and he could not be confirmed without reference to any Recruitment Rules and without consulting the P.S.C. Accordingly he agreed with the similar views expressed by the Finance Department, P.S.C. and the Administrative Department.
47. The Legal Remembrancer by his note of September 22, 1976 thereon observed as follows:
I agree. The point No. 1 will be answer in negative and the point No. 2 in the affirmative.
The reply to point 2 seems to be inconsistent with the general agreement as indicated in the earlier part of his note. Be that as it may, it appears that the then Minister-in-Charge Mr. B.N. Sen endorsed the following office note by putting his signature thereto on November 8, 1976 the note is as follows:
MIC (Minister-in-Charge) may kindly see the clearance of the Vigilance Commission (PUD) in respect of the confirmation of Shri R.N. Mukherjee EDCE. In this connection L.R's view at Q at NSP 8 ante may be seen to the note 2 at NSP 5 ante. L.R's views are in favour of confirmation. In this circumstance confirmation may be approved waiving period of probation for one year as he has already been working as EDCE since his date of appointment as EDCE on 12-10-72, vide notification mentioned in 'Y' on NSP 2 ante (notification No. 7105/T and CP/1E/52/72 dated 12-10-1972. L.R's recommendation and opinion may be seen at 'Z' in NSP ante.
Sd/. S. Choudhury, 21-11-76
Sd/. B.N. Sen, 8-11-78.
On the basis of this letter of confirmation was issued on November 8, 1976 which is quoted earlier.
48. Counsel of parties have been at pains to establish the status of the petitioner favourable to their respective cases. According to Government there could be or was no confirmation of the petitioner in the post of Executive Director and Chief Engineer in CMPO as there was in fact no confirmation and in any event there was or could be no legal or valid confirmation in absence of Cabinet approval and of consultation with the Public Service Commission and of rules consistent with Article 16. Such confirmation even if made will not be in accordance with law and thus be deemed non-est.
49. From the file as pointed by the learned Counsel for the petitioner, the appointment was with the approval of the Cabinet and confirmation thereto was by the Minister-in-Charge. Court's attention was drawn to Rule 8(2) of Chapter X of the Secretariat Manual which provide for the approval of the Cabinet when the recommendation of the Public Service Commission is not acceptable to the Minister-in-Charge. Under Rule 11 of the Rules of Business framed under Article 166(3) all matters referred to in the second schedule should be considered at a meeting of the Cabinet and item 26 of the Second Schedule is about 'proposal for appointment inconsistent with the recommendation of the Public Service Commission.' According to the petitioner only appointment in a post is to be referred to the Cabinet under item 26 of Schedule II and not confirmation therein.
50. It has been said that appointment if it is intended to be substantive and permanent should have under the rules indicated above the cabinet approval. If an ad hoc appointment is to be converted to permanent and substantive appointment as here the approval of the cabinet. It is said, is imperative and absence thereof, in view of the opposition of the Public Service Commission consultation with whom was not exempted under the Regulations is fatal to confirmation.
51. Apart from the procedural aspect it appears that no rules for recruitment in the substantive post of Executive Director and Chief Engineer C.M.P.O. has been flamed either under Article 309 proviso or under Article 162 the power where under has not been abridged by Article 309 as held in B.N. Nagarajan v. State of Mysore 0043/1966 : (1967)ILLJ698SC . As was said in Krishna Chandra Nayar v. Chairman Central Tractor Organisation : (1963)ILLJ661SC , the fundamental right to citizens guaranteed by the Constitution under Article 16 is not only to make an application for a post but the further right to be considered on merits for the post. Any act of confirmation of an incumbent in a post without advertisement and rules of service framed by the Government according to the above decision, may amount to deprivation of the right under Article 16 which guarantees equality of opportunity to citizens in public employment and as such would be void. In B.N. Nagranjan's case it was further observed that if the Government advertises the appointments and lays down conditions of service without making rules in that behalf under proviso to Article 309, there would be no breach of Articles 15 and 16. In State of Punjab v. Jadgip Singh : (1966)ILLJ749SC , it has been observed that where a Government servant has no right to the post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given that particular status.
52. We have noted in the immediately foregoing paragraphs the respective corrections of the parties in respect of the petitioner's appointment as EDCE of CMPO and his confirmation in the said post. Since we have already come to the conclusion on the basis of the Supreme Court's judgments noted above that the abolition of the post, on the facts and in circumstances of the case, was not made mala-fide or with any oblique motive we refrain from expressing our views on these issues.
52. We have seen that the petitioner was appointed the Superintending Engineer in the C.M.P.O. and was declared to be in service with permanent status in the post of Superintending Engineer under the C.M.P.O. with effect from July 24, 1970 in terms of Rule 4(1)(b) of the West Bengal Services (Temporary and Quasi Permanent Service and Service with Permanent Status) Rules, 1967 which was made effective from July 9, 1967. The petitioner thereby acquired the lien to the said post and it is no party's case nor are there any materials to hold that such lien ever ceased to exist. The lien accordingly subsisted all through, and, even it may be assumed that such lien was suspended during the period as the petitioner held the office of the Chief Engineer and later of the Executive Director in Chief Engineer both in C.M.P.O. which in absence of Rules cannot be said to be a cadre post. The lien in the post of Superintending Engineer in the C.M.P.O. continued or revived as soon as the post of E.D.C.E. in C.M.P.O. was abolished. The petitioner accordingly was entitled to suitable fixation in. the Government on the basis of the resolution of the Government dated September 28, 1977.
54. We may refer to the order of the Government dated August 9, 1977 mentioned by the petitioner in support to his contention whereby for the purpose of West Bengal. Services (Classification, Control and Appeals) Rules 1967, all posts in the C.M.P.O. were to be deemed within the Secretariat Department, namely, Development and Planning (Town and Country Planning) Department. This order merely provides that the employees of the C.M.P.O., though were not otherwise within the Development and Planning Department of the Government, will be deemed to be so far the purpose of the disciplinary proceedings under the Rules.
55. The resolution of the Government dated September 28, 1977 abolishing C.M.P.O. and also abolishing the post of E.D.C.E., C.M.P.O., provides that all other posts in the C.M.P.O. were to be deemed as the posts in the Town and Country Planning Branch of the Development and Planning Department of the Government. The petitioner's post accordingly as Superintending Engineer. C.M.P.O. is to be deemed to be the post, in the said Department of the Government and he is entitled as of right to suitable fixation on that basis. It would not and could not be an act of grace or on compassionate grounds that the petitioner was offered the post since the petitioner had the legal right to such fixation.
56. The petitioner concentrated his attack on the resolution of the Government abolishing the C.M.P.O. and the discriminatory nature of the transfer of the personnel of C.M.P.O. to the Development and Planning Department of the Government excluding its E.D.C.E. We have not been addressed at all if the post offered to the petitioner is not equated to the status of Superintending Engineer C.M.P.O. We presumed it to be so and if otherwise this judgment will not preclude the petitioner to have his appropriate rights to suitable fixation. We desire that in view of the qualifications and the performance of the petitioner while in the service of the C.M.P.O. the Government should consider the petitioner in accordance with law in respect of the appointment as the technical chief in its projects under taken and to be undertaken by it if such post is created hereinafter.
57. The appeal in the premises subject to the above observations is dismissed without any order as to costs in the circumstances.
Sankar Prasad Mitra, C.J.
58. I agree.
59. Appeal dismissed subject to certain observation, no costs.