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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Arun Prakash Chatterjee
  • Manoranjan Basu
  • Bhupendra Kumar Das and Prafulla Kumar Roy (Jr.)
  • Prasanta Kumar Ghosh
Judges
  • D. Basu, J.
Acts
  • 19, 1957.22. Rule
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Arun Prakash Chatterjee
  • Manoranjan Basu
  • Bhupendra Kumar Das and Prafulla Kumar Roy (Jr.)
  • Prasanta Kumar Ghosh
Judges
  • D. Basu, J.
Acts
  • 19, 1957.22. Rule
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner was originally appointed as a Typist and confirmed in 1940. He later officiated as a Lower Division Clerk, and the posts of Typist and Lower Division Clerk were merged; the petitioner was confirmed in the post of Lower Division Clerk from 1 June 1948. The petitioner had additional stenography qualifications and was allowed to officiate as an Upper Division Assistant and as a Junior Stenographer; he was confirmed as a Junior Stenographer in November 1951.

In 1952 the respondents promulgated non‑statutory recruitment Rules (Annexure A) which (i) segregated the Stenographer post from Upper Division Clerk (though both had same pay scale), (ii) made Upper Division Clerks eligible for promotion to Deputy Superintendent but excluded Stenographers, and (iii) allowed Lower Division Clerks to be eligible for promotion as Upper Division Clerks.

The petitioner, after being promoted to officiate as Stenographer in 1953, sought promotion to Deputy Superintendent (representation dated 23 April 1954), which was refused on the ground that "Stenographers cannot be considered for promotion to the post of Deputy Superintendent" under Annexure A. He appealed and was informed in October 1956 that amendment of the Rules was under consideration and that, until amendment, his request could not be entertained. By letter dated 19 July 1957 (Annexure H) respondents assigned him a position in the seniority list but postponed the seniority dates of Stenographers by one year relative to Upper Division Assistants to account for a difference in minimum educational qualifications.

Some intermediate posts were later created; the petitioner was given an officiating appointment as a Junior Investigator effective 1 June 1959, but no retrospective effect was given. His representation for promotion to Deputy Superintendent since 1954 was finally turned down by letter dated 3 October 1966 (Annexure N). The petitioner filed this petition seeking (a) restraint on respondents from giving effect to the 1952 Rules (Annexure A) and the order at Annexure H; and (b) a direction to promote him to Deputy Superintendent effective from 1954.

Legal Issues Presented

  1. Whether the impugned recruitment Rules of 1952 (Annexure A) and the subsequent order (Annexure H) discriminated between Stenographers and Upper Division Assistants by altering seniority and promotion eligibility, and whether such discrimination, insofar as applied retrospectively to those recruited before 1952, violates Articles 14 and 16(1) of the Constitution.
  2. Whether the petitioner is estopped or has waived any claim to promotion in the clerical line by having accepted confirmation as a Junior Stenographer in November 1951.
  3. Whether the petitioner is entitled to a direction for promotion to Deputy Superintendent with effect from 1954, or alternatively relief under the "next below rule" (State of Mysore v. Bellary) or some other administrative remedy.

Arguments of the Parties

Petitioner's Arguments

  • The Rules of 1952 (Annexure A) and the order at Annexure H operate to the petitioner's prejudice by segregating Stenographers from Upper Division Assistants and denying Stenographers eligibility for promotion to Deputy Superintendent, despite previously being in the same cadre and treated together for promotion and seniority.
  • The petitioner alleges he had no opportunity to choose between the two lines for promotion and accepted promotion as Junior Stenographer believing the two posts were classed together and that his lien on the Lower Division Clerk post would not be terminated.
  • The petitioner contends that retrospective application of the impugned Rules to those recruited before 1952 is ultra vires and unconstitutional under Articles 14 and 16(1).
  • He seeks either restraint on the Rules being applied to his prejudice and/or a direction for promotion to Deputy Superintendent effective from 1954 (and alternatively reliance upon the "next below rule").

Respondents' Arguments

  • The respondents justify the classification made by the 1952 Rules and Annexure H on the basis that Stenographers and Upper Division Assistants have different minimum educational qualifications; Annexure H seeks to address that by postponing seniority dates of Stenographers by one year.
  • They assert an estoppel/waiver argument that the petitioner, by voluntarily accepting confirmation as a Junior Stenographer on 1 November 1951, is precluded from claiming further benefits on the clerical line.
  • Another respondent contention (in para. 15 of the counter‑affidavit) is that the petitioner cannot be given the benefit of his Investigator post retrospectively prior to 1 June 1959 because although considered in 1955 by the Departmental Promotion Committee he was not found fit before 1959.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kishori v. Union of India, AIR 1962 SC 1139 Article 14 and Article 16 do not bar the State from dividing employees doing the same kind of work into different classes according to superior and inferior qualifications (i.e., a State may create classification based on qualifications). The court observed that the principle supports prospective classification — that is, creating separate classes is permissible — but distinguished that principle from the impermissible retrospective discrimination against persons who were integrated into one cadre before classification.
Sham Sunder v. Union of India, W.P. No. 31 of 1967 (15‑7‑1968) : (AIR 1969 SC 212) When classes are legitimately formed on the basis of superior qualifications, preference in promotion or seniority to those with superior qualifications is not discriminatory. The court used this to support the view that prospective differentiation between duly formed classes is permissible, while again indicating that this does not justify retrospective discrimination against integrated recruits.
Roshan Lal v. Union of India, AIR 1967 SC 1889 (p.1893) Once recruits from different sources are integrated into one class (cadre), no discrimination can thereafter be made in favour of recruits from one source against the other in the matter of promotion or other conditions of seniority. The court relied on this authority as directly applicable: because the respondents had treated Typists/Clerks and Stenographers as on the same cadre prior to 1952, retrospective differentiation in promotion and seniority was held impermissible and violative of Articles 14 and 16(1).
State of Mysore v. Bellary, AIR 1965 SC 868 Principle concerning the "next below rule" in certain deputation/appointment contexts. The court noted that the petitioner's alternative reliance on this decision had no application because there had been no deputation in the present case; therefore the "next below rule" was inapplicable.

Court's Reasoning and Analysis

The court proceeded in a structured manner, distinguishing between permissible prospective classification and impermissible retrospective reclassification of integrated personnel.

Step 1 — Prospective classification principle: The court acknowledged authorities (Kishori; Sham Sunder) establishing that Article 14 and Article 16(1) do not prevent the State from creating different classes of employees based on superior or inferior qualifications and that, when legitimately formed, preference for those with superior qualifications in promotion is not discriminatory as to prospective application.

Step 2 — Effect of prior integration: The court then turned to the central fact admitted in the pleadings and counter‑affidavit: prior to the 1952 Rules the posts of Junior Stenographer and Upper Division Assistant were borne on the same cadre and were treated as interchangeable for promotion and seniority. The petitioner had been recruited as a Typist, later placed in the same cadre as Clerks, and was not informed at confirmation that his prospects would be more limited.

Step 3 — Application of Roshan Lal principle: Relying on Roshan Lal v. Union of India, the court held that once recruits from different sources have been integrated into a single class, one cannot thereafter create discrimination in promotion or seniority to the detriment of one set of recruits. Because the respondents had already integrated the categories before the 1952 Rules, applying the new classification retrospectively to reduce the petitioner's seniority or eligibility would contravene Articles 14 and 16(1).

Step 4 — No retrospective effect in the Rules themselves: The court observed that the reproduced Rules do not state that they shall have retrospective effect. Imposing their consequences on those recruited earlier would be ultra vires and unconstitutional.

Step 5 — Rejection of estoppel: The respondents' estoppel argument — that the petitioner, having accepted confirmation as a Junior Stenographer, lost claims on the clerical line — was rejected. The court held that estoppel would operate only if the petitioner had been told that acceptance would terminate his further prospects in the clerical line; respondents' own pleading admitted that no such option arose because the posts "were not regarded to be outside cadre."

Step 6 — Limited relief as to promotion direction: The court explained that it could not directly order a promotion to Deputy Superintendent effective from 1954 unless there existed a statutory rule giving the petitioner such a right. The petitioner's Article 16(1) entitlement was to be considered equally for promotion with Upper Division Clerks, and the court's role was to remove the discriminatory handicap in seniority so that administrative authorities could carry out the promotion process. The court also refused to apply the "next below rule" from State of Mysore v. Bellary because it was not factually applicable.

Step 7 — Final direction fashioned: Having found retrospective application of Annexure A/Annexure H discriminatory in the petitioner's case, the court made an injunction preventing application of the impugned Rules to the petitioner and directed respondents to consider him for promotion to posts superior to Upper Division Assistants, taking him at par with Upper Division Assistants in seniority and ignoring the one‑year seniority penalty in Annexure H.

Holding and Implications

Holding: Rule made absolute. More specifically, the court restrained the respondents from applying the impugned Rules of 1952 to the prejudice of the petitioner and directed the respondents to consider the petitioner for promotion to posts superior to Upper Division Assistants, treating him at par with Upper Division Assistants in the matter of seniority and disregarding the one‑year seniority postponement in Clause (2) of Annexure H dated 19 July 1957. There was no order as to costs.

Implications:

  • Direct effect: The respondents must not apply the 1952 Rules and the discriminatory seniority adjustment in Annexure H so as to prejudice the petitioner; instead they must administratively consider him for promotion on an equal footing with Upper Division Assistants.
  • No abstract promotion order: The court declined to fix the exact post or to order promotion to Deputy Superintendent with retrospective effect because the petitioner did not have a statutory right to such promotion; the court's direction requires administrative compliance in considering the petitioner without the discriminatory seniority handicap.
  • Precedential scope: The court applied established principles distinguishing permissible prospective classification from impermissible retrospective discrimination of an already integrated cadre. The decision enforces the principle in Roshan Lal that integration of recruits into one class bars subsequent discriminatory treatment between sources of recruitment in matters of promotion and seniority.

Note: The court also held the petitioner's alternative reliance on the "next below rule" (State of Mysore v. Bellary) inapplicable because there was no deputation in the case.

This summary is based exclusively on the text of the provided opinion and does not add or infer facts beyond that opinion.

Show full summary ...

    Kamal Mukharji v. Union Of India And Others

    1. The prayers in this Petition are—

    (a) That the Respondents be restrained from giving effect to the non-statutory Rules of 1952 (Annexure A to the Petition) for recruitment to non-Gazetted posts in the Department of Commercial Intelligence and Statistics under the Union of India (Respondent No. 1) and the order at Annexure H, dated July 19, 1957, modifying the Rule (the reference in the Prayer clause of the Petitioner to Annexure G is wrong); and

    (b) That the Respondents be commended to promote the Petitioner to the post of Deputy Superintendent in that Department with effect from the year 1954.

    2. The petitioner was initially appointed a Typist and confirmed as such in 1940. Later on, he was allowed to officiate as Lower Division Clerk and eventually the two posts of Typist and Lower Division Clerk were merged and the petitioner was confirmed in the post of Lower Division Clerk from June 1, 1948 (para. 2 of the affidavit-in-opposition). The petitioner says that he has additional qualification in Stenography and that in view thereof, the petitioner was allowed to officiate occasionally as an Upper Division Assistant as well as a Junior Stenographer, till November, 1951, when he was confirmed as Junior Stenographer.

    3. The Petitioner's case is that he was given no opportunity to choose between the two lines, Upper Division Assistant and Junior Stenographer, in the matter of promotion and that he accepted promotion as Junior Stenographer in consideration of the fact that the pay of the two posts was the same and that they were classed together, in practice, for further promotion, and upon the belief that his lien on his permanent post of Lower Division Clerk would not be terminated by reason of promotion to the post of Junior Stenographer. He further states that even after his promotion to the latter post, he was, during the period from December, 1951 to January, 1952, allowed to officiate as Upper Division Assistant.

    4. The Petitioner complains that his chances of getting promotion to higher posts in the Clerical line have been obviated by the promulgation of the Rules at Annexure A, in 1952. The substance of these Rules is that—

    (i) The post of Stenographer has been segregated from that of Upper Division Clerk, though both carry the same Pay-scale of Rs. 80 to 220.

    (ii) For promotion to the higher post of Deputy Superintendent at the scale of Rs. 250 to 400, Upper Division Clerks shall be eligible, — on the recommendation of the Departmental Promotion Committee,—but not Stenographers.

    (iii) Lower Division Clerks are eligible for promotion as Upper Division Clerks.

    5. In 1953, the Petitioner was promoted to officiate as Stenographer and on the strength of that appointment, on April 23, 1954, the Petitioner made a representation to the Director-General of the Department (Respondent No. 3) for being considered for promotion to the post of Deputy Superintendent, but this representation was turned down (Annexure B) on the ground that under the Recruitment Rules at Annexure A, “Stenographers cannot be considered for promotion to the post of Deputy Superintendent.” The Petitioner eventually appealed to the President of India against the decision at Annexure B and in reply thereto he was informed (Annexure G of October 10, 1956) that the question of amending the Recruitment Rules, so as to ensure that Upper Division Clerks and Stenographers could be treated at par for promotion to the post of Deputy Superintendent was already under consideration and that so long as the Rules were not so amended, the Petitioner's request for promotion could not be entertained.

    6. Eventually, in response to his further representation, the Petitioner was informed by the letter at Annexure H, dated July 19, 1957 that the Petitioner has been assigned a position in the Seniority List, on the basis of the following principles—

    (a) Stenographers should be considered for promotion to all posts for which Upper Division Assistants are eligible for promotion;

    (b) While so ranking with Upper Division Assistants, the seniority dates of Stenographers shall be postponed by one year “to make up the difference in the minimum educational qualifications between the two posts”.

    7. Subsequently, some intermediate posts were created between the post of Upper Division Assistant and Deputy Superintendent and, in 1959, the Petitioner was given an officiating appointment to one such intermediate post, namely, that of a Junior Investigator, on June 1, 1959, but even then no retrospective effect was given to such promotion, and his representation for promotion to the post of Deputy Superintendent since 1954 has been turned down finally by the letter at Annexure N, dated October 3, 1966.

    8. The Petitioner challenges the validity of the Rules at Annexure A and the order at Annexure H, on various grounds. The Petition is opposed by an affidavit on behalf of all the Respondents filed by Respondent No. 3.

    9. I. The principal ground upon which the Petitioner's case has been fought is that the impugned Rules read with Annexure H are discriminatory inasmuch as Cl. (b) of the Rules seeks to make a discrimination between Stenographers and Upper Division Assistants, in the matter of seniority while they, in fact, constituted one class.

    10. Initially of course, the two categories constituted separate classes, the Petitioner having been recruited as a Typist (para. 2 of the Petition). But subsequently the two categories were merged and the Petitioner was confirmed as a Lower Division Clerk (para. 2 of the Affidavit-in-opposition). It is also admitted in the counter-affidavit that until the promulgation of the new Rules in 1952, “the two posts” of Junior Stenographer and Upper Division Assistant “were borne on the same cadre”. Annexure H also places the two categories together for the purpose of promotion, but a differentiation has been made by Annexure H in the matter of seniority on the ground that there is a difference in the “minimal educational qualifications between the two posts”. The impugned Rules do, in fact, prescribe, that while a Matriculate may be appointed a Stenographer, and Upper Division Asstt. must possess a University degree.

    11. So far as the prospective application of the impugned Rules of Recruitment are concerned, there is little to challenge (nor is the Petitioner interested to do that) since it has been laid down by the Supreme Court that neither Article 14 nor Article 16 debars the State from dividing employees doing the same kind of work into different classes according to superior and inferior qualifications: Kishori v. Union of India, AIR 1962 SC 1139, and that when this done, there is no discrimination if in the matter of promotion or seniority as between two classes so formed, preference is shown to those having superior qualifications — Sham Sunder v. Union of India, W.P No. 31 of 1967, D/- 15-7-1968 : (AIR 1969 SC 212).

    12. But the question becomes different where retrospective application is sought to be made of the Rules in making such discrimination as between those who were recruited prior to 1952, at a time when the two categories of Typists and Clerks formed ‘the same cadre’, and in making inter-class appointments from one post to another, no distinction was made on the ground of difference in qualification. It has been clearly laid down in Roshan Lal v. Union of India, AIR 1967 SC 1889 at p. 1893 that once recruits from different sources are integrated into one class, no discrimination can thereafter be made in favour of recruits from one source as against the other in the matter of promotion or other conditions of seniority.

    13. In the instant case, it is admitted in the pleading of the Respondents that even though persons had been recruited as Typists and Clerks separately, the personnel of the two categories were treated as on the same cadre and the posts on the two lines were interchangeable. Thus, when the Petitioner who had been initially appointed as a Typist was later confirmed as a Lower Division Assistant, the Respondents did not tell him that he would have lower prospects owing to having inferior qualifications. This is patent on reading paragraphs 1-2 of the Petition with the corresponding paragraphs of the counter affidavit. If so, now to make a differentiation between the Stenographers and the Upper Division Assistants on the ground of qualifications with retrospective application to those who had been appointed before the impugned Rules of 1952 were promulgated, would be a contravention of Articles 14 and 16(1).

    14. It may be mentioned, further, that the Rules, reproduced at pp. 17-18 of the Petition, do not say that they shall have retrospective effect. To affect the Petitioner by an application of the impugned Rules would both be ultra vires and unconstitutional.

    15. II. The substantive plea of the Respondents, however, is that the Petitioner is estopped from claiming any benefits by way of promotion on this Clerical line inasmuch as the Petitioner voluntarily accepted confirmation as a Junior Stenographer on November 1, 1951, while a Clerk senior to him could not get a chance of confirmation as Upper Division Clerk prior to March. 1, 1953 (para. 3). But the Petitioner may rightly say that he got a chance on the Stenographer's line because he possessed the technical qualification of a Stenographer which an Upper Division Clerk, as such did not possess.

    16. Any sort of estoppel or waiver might operate to the prejudice of the Petitioner only if he had been told that by accepting confirmation as a Stenographer, he would lose all further chance on the Clerical line. In fact, according to the Respondents themselves (para. 3 of the counter-affidavit), no question of giving any such option to the Petitioner at that time arose because “they were not regarded to be outside cadre”.

    17. This plea must, accordingly, be rejected.

    18. III. Another point taken in para. 15 of the counter-affidavit is that the Petitioner cannot be given the benefit of his present post as Investigator with effect from any earlier date than June 1, 1959 because even though he was considered by the Departmental Promotion Committee in 1955 he was not found fit prior to 1959. If that be so, the claim made in para, 23 of the Petition cannot be entertained, but that is no reason why the discriminatory application of the impugned Rules, read with Annexure H to reduce the seniority of the Petitioner by one year in the matter of promotion in the Clerical line should not be struck down.

    19. The Petitioner has, of course, claimed that the Court should issue a direction upon the Respondents to promote the Petitioner as a Deputy Superintendent with effect from 1954. No such direction can be given unless the Petitioner succeeds in showing that there is some statutory rule which gives him a right to be promoted. His only right, under Article 16(1), is to be considered for promotion, equally with the Upper Division Clerks, without being affected by the handicap in the matter of seniority in the combined list, which is being introduced by the impugned Rules.

    20. It is not the business of this Court to fix the exact post due to him either. That would be done administratively by the Respondents, in compliance with the direction issued by the Court relating to the impugned Rules.

    21. I must say, in this context that the alternative claim made by the Petitioner for application of the ‘next below rule’ or the decision in State of Mysore v. Bellary, AIR 1965 SC 868 has no application here because there has been no deputation in this case. In the result, the Rule is made absolute in a modified form, as follows, and without any order as to costs. Respondents are restrained from applying the impugned Rules of 1952 to the prejudice of the Petitioner and are directed to consider him for promotion to posts superior to Upper Division Assistants, taking him at par with Upper Division Assistants, in the matter of seniority, — regardless of the discrimination sought to be made by Cl. (2) of the letter at Annexure H, dated July 19, 1957.

    22. Rule made absolute.

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    Comments

    Kamal Mukharji v. Union Of India And Others
    (Sep 30, 1969)