SAROJENDRA NATH BOSE Vs. CHIEF JUSTICE, HIGH COURT

JUDGEMENT

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

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

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