Sukh Dev Singh v. The Lieutenant Governor

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [ CIRCUIT BENCH AT PORT BLAIR] ** WPA/103/2021 Sukh Dev Singh ... Petitioner Vs.

The Lieutenant Governor and others ... Respondent With WPA/115/2021 Abdul Gaffar ... Petitioner Vs.

The Lieutenant Governor and others ... Respondents Mrs. Anjili Nag, Advocate ... for the petitioners Mr. Arul Prasanth, Advocate ... for the respondents November 22, 2021 [SR] Item Nos.6 & 7 The matter has been heard at length.

Learned advocates for the petitioners as well as the respondents made their respective submissions. The matter is appearing in the list as 'for orders'.

The facts of the writ petitions being WPA/103/2021 and WPA/115/2021 are similar. Both the writ petitions are being disposed of by this common order.

The petitioners are the employees of Port Blair Municipal Council. By the office order dated 4th June, 2013 the petitioners were promoted in different grades on ad hoc basis with immediate effect for a period of six months or till the notification of the Recruitment Rules whichever is earlier.

The petitioners were serving as Heavy Vehicle Drivers attached to the Mechanical Section and SWM section of the Council. The petitioners accepted the promotion order without any objection and they never challenged the promotion which was made on ad hoc basis. The petitioners were accordingly paid the higher scale of pay in accordance with the promoted post.

The petitioners are aggrieved by the reduction of their pay on and from January, 2021.

It is the specific case of the petitioners that no opportunity of hearing was given to them prior to reduction of their pay. The petitioners were also not given any notice for effecting reduction in their pay.

The petitioners rely upon a communicating memo of the Deputy Secretary to the Government of India, Ministry of Home Affairs dated 14th October, 2014 whereby it has been mentioned that the promotion scheme enjoyed by the Staff Car Divers is being extended to the Heavy Vehicle Drivers working in the Administration of the Andaman and Nicobar Islands with effect from 24th August, 2010.

The said communication was issued with the approval of the Ministry of Finance, Department of Expenditure dated 7th October, 2014.

According to the petitioners, they ought to be covered by the aforesaid communication dated 14th October, 2014 and the promotion scheme as available to the Staff Car Drivers ought to be extended to them.

The learned advocate representing the Administration opposes the prayer of the petitioners. It has been specifically submitted that the promotion order dated 4th June, 2013 was made on ad hoc basis for a period of six months only or till the notification of the Recruitment Rules whichever is earlier. It has been submitted that the Port Blair Municipal Council has published the Recruitment Rules by way of a notification dated 20th December, 2019. It has further been specifically submitted that

the petitioners being the Heavy Vehicle Drivers are liable to be considered for promotion strictly in accordance with the notification dated 20th December, 2019 and not in accordance with the communication of the Govt. of India, Ministry of Home Affairs dated 14th October, 2014.

It is the further case of the respondents that there is no direction by the Administration upon the Port Blair Municipal Council to act in accordance with the communication made on 14th October, 2014.

The Port Blair Municipal Council, being a statutory body, is guided by its own Rules and Regulations. The Andaman and Nicobar Islands (Port Blair Municipal Council), Recruitment Rules, 2019 will be applicable in respect of the petitioners.

I have heard the rival contentions made on behalf of both the parties.

It is evident from records that the promotion order in favour of the petitioners was issued on 4th June, 2013 and the same was for a period of only six months or till the notification of the Recruitment Rules, whichever is earlier.

The Recruitment Rules of the Port Blair Municipal Council was notified on 20th December, 2019. Accordingly, the promotion which was made on ad hoc basis was limited only for a period of six months. The petitioners could not have claimed promotion for more than six months in terms of the promotion order dated 4th June, 2013.

There is nothing on record to show that the Andaman and Nicobar Administration directed the Port Blair Municipal Council to act with the communication of the Govt. of India, Ministry of Home Affairs dated 14th October, 2014.

Moreover, it appears that the 14th October, communication was made by the Deputy Secretary to the Govt. of India to the Assistant Secretary (Pers.), UT of Andaman and Nicobar Administration communicating a common order dated 20th January, 2012 passed by the Central Administrative Tribunal in certain Original Applications.

It does not appear that it was an order in rem and the same was or would be made applicable to each and every employee of either the Administration or the Port Blair Municipal Council. There is also no prayer made in the writ petition for implementing the communication dated 14th October, 2014 in favour of the petitioners.

The petitioners being employees of Port Blair Municipal Council will be bound by the Recruitment Rules that are applicable in favour of the employees of Port Blair Municipal Council. It is settled law that no employee has a legal vested right for promotion, instead the employee has a right for being considered for promotion in accordance with the relevant rules along with other eligible employees of the organization.

In the instant case, the notification dated 20th December, 2019 is the Recruitment Rules which is applicable in respect of the Heavy Vehicle Drivers of the Port Blair Municipal Council. It appears that the pay of the petitioners stood reduced as their pay was reverted to the earlier pay band. There does not appear to be any infirmity in the stand taken by the employer to pay the employees at the rates which they are legally entitled to. The petitioners can claim higher pay only after they are promoted to the next grade and not prior thereto.

In that view of the matter, no relief can be granted to the petitioners in the instant case.

The case of the petitioners shall be taken up for consideration by the Council for promotion as and when their turn comes. The writ petitions being WPA/103/2021 and WPA/115/2021 stand disposed of.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of usual necessary formalities.

(Amrita Sinha, J.)