Sankar Kumar Ghosh vs State of West Bengal

Kalyan Jyoti Sengupta, J.—The applicants above named being unsuccessful before the learned Tribunal in getting reliefs for correction of the gradation list prepared by the State Respondent has approached with this application challenging the judgment and order of the learned Tribunal dated 31st March, 2006. The facts of the case placed before the learned Tribunal and repeated before us by the applicants are summarised as follows:

Before the learned Tribunal originally there were 16 applicants out of which three have been left out. All the applicants before the learned Tribunal stated that the applicants therein were senior to the Respondent No. 5 who is now working as upper division clerk in the office of the Superintendent and Legal Remembrancer, Government of West Bengal. They claimed their seniority because they were appointed Lower Division Assistants during 1973 to 1980 through Public Service Commission, West Bengal, whereas fifth Respondent was not appointed through Public Service Commission (hereinafter referred to as PSC) and his appointment was made in 1971 on ad hoc basis, however, subsequently his service was regularised later than the dates of joining of the applicants. Considering respective dates of appointment of the applicants in the cadre of Lower Division Assistant gradation list was prepared and published in the years, 1982 and 1989 and the same reached its finality and no one challenged the same. Thereafter all of a sudden, on 7th September, 2001 purported gradation list was approved by the learned Legal Remembrancer and published and displayed on the notice board placing the Respondent No. 5, Shyamal Kanti Das, who is a non-PSC candidate and whose service was regularised on 27th March, 1980, at serial No. 4 above the applicants. Thus, the applicants were made junior to fifth Respondent. No opportunity of being heard was given, no reason was assigned as to why the said final gradation lists prepared in 1982 and 1989 were modified and rectified. Thus, the right of the Petitioners has been denied. According to the applicants, under no circumstances, fifth Respondent, can be placed in the gradation list above the applicants who are recruited through Public Service Commission. It can be found from the notification No. 3241-F dated 27th March, 1980 that the clerks and typists who are not appointed through PSC shall be deemed to be junior to any clerk or typist, as the case may be, who had qualified in any Clerkship or Typist Recruitment Examination and were appointed in different Secretariat Departments and Directorates on the recommendation of the Public Service Commission, West Bengal, during the period from the 19th December, 1967 to the 8th November, 1973. Under such circumstances, the said gradation list approved by the Legal Remembrancer on 7th September, 2001 is bad in law in as much as the same has been prepared in gross violation of the rules framed by the provision of Article 309 of the Constitution of India. Before approval of the said gradation list of 7th September, 2001 no objection was called for from any of the incumbents.

The said application was opposed before the learned Tribunal by (he State Respondent as well as fifth Respondent. Their cases are almost similar to oppose the application. They say that, at no point of time, any gradation list was prepared in 1982 or 1989, or finally published in 1992. A gradation list was prepared subsequently and objection was invited to the said gradation list. Fifth Respondent filed objection urging for correction of the same as he was a senior in order of appointment to the post of Lower Division Assistant. He was appointed in 1971 without being cleared by P.S.C. though, as at that point of time there has been no appointment through PSC for administrative necessity. Later on fifth Respondent was regularised on 27th March, 1980 dispensing with the opinion of the Public Service Commission. Despite objection the State Respondent did not take any step and as such the applicants filed a writ petition in this Hon''ble Court in 1992 praying for appropriate relief. The said writ petition was transferred later on to the Tribunal being marked as T.A. No. 201 of 1998. In that application the applicants were added as the party Respondents. The said transferred application was ultimately disposed of by an order dated 8th March, 2001 whereby and whereunder the Legal Remembrancer, West Bengal was directed to prepare and finalise gradation list taking note of another employee viz. Ranjit Kumar Banerjee, who was similarly placed with the fifth Respondent and to fix up the seniority position of the Respondent No. 5. In case of Ranjit Kumar Banerjee, his date of joining was taken into account for fixing up of seniority as he was also a non-PSC candidate. In compliance of the said order of the learned Tribunal dated 8th March, 2001 this gradation list has been prepared and the applicants and each of them had enough chance to make representation or to file objection. Moreover, the order of the learned Tribunal dated 8th March, 2001 has become final as no appeal was preferred challenging the same. Therefore, they are estopped from raising any dispute as to legality, validity and correctness of preparation of gradation list placing the fifth Respondent above the applicants. As such, the gradation list does not call for any interference and the same is prepared in accordance with law.

On the aforesaid backdrop of the fact, Mr. L. K. Gupta, learned senior Advocate for the applicants, submits that the judgment of the learned Tribunal is erroneous as its decision is based on seniority of Lower Division Assistants and applied Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981. Both the Petitioners and the Respondent No. 5 were promoted as Upper Division Assistants. The gradation list, at page 47 of the petition, is of Upper Division Assistants. Hence, Rule 5 of 1981 Rules which provides method of determination of seniority of the promotees is relevant and not Rule 4. Initial appointment of the fifth Respondent was purely adhoc and for 10 days only or till recruitment of PSC candidates. He was non-PSC candidate and not regularly appointed like the Petitioners. His appointment was later on regularised on 27th March, 1980. According to him, initial date of appointment has been made on adhoc basis and does not give any right to the appointees vis-a-vis the candidates recruited through Public Service Commission. All other benefits except seniority can be given to these ad hoc appointees. This position of law, according to him, has been well settled for fixation of seniority in the following decisions of the Supreme Court reported in State of Tamil Nadu and another etc. Vs. E. Paripoornam and others, : P.D. Aggarwal and Others Vs. State of U.P. and Others, and State of W.B. and Others Vs. Aghore Nath Dey and Others, .

Mr. Amal Baran Catterjee, appearing for the State as well as the Respondent No. 4, submits that the case placed before the learned Tribunal was that the gradation list of 2001 was prepared without giving any hearing and as the Respondent No. 5 was a non-PSC candidate he is not at par with the PSC candidate. According to him, on regularisation being made date of appointment of the Respondent No. 5 relates back to his initial date of appointment and in that sense he is senior to all the applicants. Therefore, seniority has been fixed up following Rule 4 of the Seniority Rule of 1981. There has been no gradation list at any point of time and in 1992 a draft gradation list was published amongst the Lower Division Assistants and the same was objected to by the fifth Respondent. Pursuant to the judgment of the learned Tribunal a seniority list was prepared in 2001 for the first time under Rule 4(2) of the Seniority Rule for the clerks appointed through both the PSC and non-PSC. The applicants were very much parties to the earlier application on which the learned Tribunal passed order for fixing seniority and no objection was raised. He submits that the officiation of the fifth Respondent before regularisation cannot be ignored in the matter of fixation of seniority. In support of his submission he has relied on a decision of the Supreme Court reported in AIR 1977-SC 2051.

Mr. P.K. Mukherjee, learned senior Advocate appearing for the fifth Respondent, has adopted substantially the argument of Mr. Amal Baran Chatterjee, and submits that the gradation lists for Lower Division Assistant cadre and Upper Division Assistant cadre were published in 1992 against which the fifth Respondent submitted his representation. In fact, the learned Legal Remembrancer has published a gradation list for Upper Division Assistants only on 7th September, 2001. According to him, an anomalous position has been created in fixing seniority because of publishing a gradation list for Upper Division Assistant cadre only. To solve this problem, two separate final gradation lists, one for Lower Division Assistant cadre and another for Upper Division Assistant cadre are published keeping in view the fact of non-determination of the seniority prior to the seniority Rule, 1981 was coming into force, as stated above. Fixation of seniority position of the Respondent No. 5 in the post of Upper Division Assistant cadre was/is not possible. Therefore, he prays that Legal Remembrancer should be directed to prepare the gradation list for the Lower Division Assistants first and then a list for Upper Division Assistants. According to him, Rule 5 of 1981 Seniority Rules is not applicable to the facts of the case. Moreover, it is no one''s case either before the learned Tribunal or before this Hon''ble Court that while preparing the seniority list of 2001 Rule 5 has been ignored. It was the issue before the learned Tribunal that the first proviso to Rule 4 was relied on while fixing seniority. He lastly submits that the gradation list has been prepared and published in 2001 pursuant to the judgment and order of the learned Tribunal which was passed upon hearing the parties including the applicants herein and no appeal has been preferred against the same. Under such circumstances, the applicants are estopped from challenging the gradation list prepared by Legal Remembrancer in 2001 which is the outcome of the final order of the learned Tribunal. Hence the said application should be dismissed.

Before we discuss the contention and submission of the parties advanced by their learned lawyers we feel it appropriate that the proceedings on which the judgment and impugned order was passed the learned Tribunal had passed an interim order on 25th February, 2002 inter alia that the authority shall not act on the basis of the gradation list without the leave of the Tribunal or till the disposal of this application. Thereafter, on the application of the Respondent earlier interim order was modified by an order dated 28th March, 2003 to the extent that the authority may act upon the gradation lists published on 7th September, 2001 and give promotion for the purpose of filling up the promotional post but, it is made clear that Shri Shyamal Kanti Das, whose name was brought forward in the list, gets promotion to any higher post by the result of the said proceedings (O.A. No. 1447 of 2001). The applicants before us filed an application being WPST No. 315 of 2003 against the said order of modification in this Court. By order dated 12th May, 2003 the Division Bench of this Court did not interfere with the modified order but observed amongst others that the impugned order does not decide the matter finally and it being an interlocutory order cannot govern the fate of the proceedings in which the interim order was passed nor the proceedings which has been initiated by the present writ Petitioner challenging the orders whereof the gradation list has been modified. Thereafter promotion was given to the respective employees basing on the said gradation list which was under challenge. In the process some of the applicants and the Respondent No. 5 herein got the promotion. Consequent upon promotion being granted the gradation list on the promoted post is required to be prepared.

Necessity for recording the aforesaid fact which is borne out by the records indisputably, is that the learned lawyer for the Respondents has taken plea of estoppel as the applicants have got the benefit of promotion which was granted basing on the said gradation list which was challenged and it has been contended further that after having accepted promotion without any reservation they cannot turn round and challenge the same. We are of the view that such contention is meritless since it has been made clear not only by the learned Tribunal but also by this Court that subsequent promotion basing on the gradation list will abide by the result of the said Tribunal application. This application is undoubtedly continuation of the original proceedings. Therefore, legality and validity of preparation of the gradation list for the Lower Division Assistants, which is the root of the problem and subsequently granting promotion following the same is still debatable and such debate is still subsisting in this matter also. Under no stretch of imagination, therefore, we think that the question of estoppel does not and cannot arise if any of the parties accepts any benefit during pendency of the matter even if without reservation. Nowhere it has been proved that the applicants and each of them have accepted such benefit withdrawing their application or contention. The applicants and each of them had no option but to accept the interim order as their contention is protected and preserved by the order of the learned Tribunal and also that of this Court.

Now, the basic problem involved is whether the learned Legal Remembrancer viz. Respondent No. 4, has prepared the gradation list in terms of the judgment and order of the learned Tribunal dated 8th March, 2001 for the cadre of Lower Division Assistant or not.

We have gone through the records and found that the learned Tribunal has correctly felt that prior to 1992.there has been no gradation list. The problem arose when Respondent No. 4 published two draft gradation lists on 4th May, 1992 and 2nd May, 1992 respectively for the posts of the cadre of Lower Division Assistant and Upper Division Assistant respectively. The Respondent No. 5 objected to the same claiming that his placement in the gradation list was not made reckoning his actual date of appointment i.e. on 28th February, 1971. Since his grievance was not addressed he filed the writ petition as above which was ultimately disposed of by the learned Tribunal by passing order dated 8th March, 2001 on the same being transferred to the Tribunal (T.A. No. 201 of 1998). In the said proceeding three applicants were made parties and they came to be added later on. Upon hearing the applicants also the said order was passed. It is contended by Mr. Amal Baran Chatterjee and Mr. P. K. Mukherjee that the Respondent No. 4 was obliged to rectify gradation list placing the Respondent No. 5 in appropriate position since on similar fact another candidate viz. Ranjit Kumar Banerjee who was a non-PSC candidate was given the same benefit of seniority reckoning his actual date of promotion as it is rectified in the said judgment and order on 8th March, 2001. Admittedly this order is not challenged rather acted upon. We have read carefully the said judgment and order of the learned Tribunal and we found that the learned Tribunal no where directed the Respondent No. 4 herein to give the same benefit as it was given to another employee viz. Shri Ranjit Kumar Banerjee. We notice that mere submission was made on behalf of the Respondent No. 5 before the learned Tribunal but ultimately learned Tribunal without accepting the same expressly passed the following order:

On the submission of the Id. Advocate the case is disposed of with direction that L. R. Department to take a decision regarding fixation of inter-se seniority and the service benefit that have accrued to the Petitioner within a period of 3 months. The case is disposed of.

So it is plain that the Respondent No. 4 is to prepare gradation list fixing up seniority in accordance with the law not as per submission recorded by the learned Tribunal. Therefore, the question has boiled down to one thing whether the seniority list in the cadre of Lower Division Assistant has been prepared fixing inter-se seniority or not. Logically lawful preparation of gradation list and fixing up seniority is the foundation for giving subsequent service benefit. While scrutinising this aspect minutely it appears to us that the date of appointment of the Respondent No. 5 who was a non-PSC candidate was reckoned for fixing his seniority and with this process the applicants before us who are recruitees by the Public Service Commission (in short PSC recruitees) have been placed below him. From the letter of appointment it appears that he was appointed on test conducted not by the Public Service Commission but by the department on that date purely on ad hoc basis and subsequently his appointment was regularised by notification dated 27th March, 1980 being No. 3240-F to 3243-F. Thus, it is clear that during this period from 20th February, 1971 till 27th March, 1980 he had served as a temporary employee not being a regular one. In exercise of the power under Article 309 of the Constitution of India the State Government has framed a rule called West Bengal Services (Determination of Seniority) Rules, 1981. Rule 4 of the aforesaid Rules provide for determination of seniority. Admittedly all the employees who are not the parties in the proceedings were direct recruitees. Admittedly the aforesaid posts were required to be filled in through the selection process to be conducted by the Public Service Commission but the Respondent No. 5 because of the necessity, as it is contended by Mr. Chatterjee, had to be appointed through examination conducted by the department concerned. On the date mentioned above the Public Service Commission for some reason or other, despite request, did not undertake such test. Thus the Respondent No. 5 belongs to a different class from that of the applicants who are PSC recruitees. The aforesaid rule has provided mechanism for determination of seniority in such situation. We, conveniently, set out the same:

Provided that where appointment of persons initially made otherwise than in accordance with the relevant recruitment rules is subsequently regularised in consultation with the Commission, where necessary, seniority of such persons shall be determined from the date of regularisation and not from the date of appointment. The inter-se seniority amongst such persons shall however, depend on the date of appointment of each such person in the department or office concerned.

(Emphasis supplied)

Thus, upon analysis of the aforesaid proviso it appears to us that in case of non-PSC recruitees seniority will be determined from the date of regularisation and not from the date of appointment in the cadre. But while doing so seniority amongst non-PSC recruitees is to be fixed reckoning date of their respective appointment and it is clear from the qualifying words "such persons". We fail to understand why the Respondent No. 5 who was regularized later than the dates of appointment of the applicants was given his position in preference to the applicants who are admittedly appointed through PSC. It is true that the Respondent No. 5 has worked on a temporary basis on and from 20th February, 1971 till 27th February, 1980. But then he was an irregular recruitee, and this will appear from the terms of his letter of appointment and subsequent decision of regularisation. Whatever may be the reasons the Respondent No. 5 keeping his eyes open has accepted this appointment and knowing well that it was done without routing through PSC he cannot get any benefit except what is provided under the law as. it is discussed later on. It further appears that subsequently even consultation with the PSC was dispensed with but this exercise on the part of the Government does not change the position of law for fixation of seniority. What would be the position of the seniority in the eye of law in case of temporary/irregular appointee vis-a-vis regular PSC recruitee has been consistently decided by the Supreme Court as urged by Mr. Gupta and in our view rightly so. The law in sum and substance laid down therein on reading ratio of this decision is that the temporary or irregular appointees who are subsequently regularised can get all service benefits viz. payment of increment, pensionary benefit, promotion etc. (where seniority is not the criteria) except the right of inter-se seniority in the same cadre vis-a-vis the regular recruitees. In the case of P.D. Aggarwal and Others Vs. State of U.P. and Others, in paragraph 25 it was held as a proposition of law that the temporary employees cannot claim any seniority from the date of the appointment and their claim of seniority will be reckoned only when they become members of the service in accordance with the provisions of the service rules.

Yet again another case in the Supreme Court State of Tamil Nadu and another etc. Vs. E. Paripoornam and others, reported in paragraph 13 it is ruled amongst others that the services rendered in the temporary post is available either for earning employment or for commencement of probation but this will not be counted for fixation of seniority. Upon combined reading of the paragraphs 25 and 26 of the judgment of the three Judge Bench of the Supreme Court in case of State of W.B. and Others Vs. Aghore Nath Dey and Others, reported in the same view has been expressed that the service rendered during the temporary period and until the service is regularised the seniority cannot be given from the date of initial ad hoc appointment. A similar view was taken in earlier decision of the Supreme Court reported in Masood Akhtar Khan and Others Vs. State of Madhya Pradesh and Others, In paragraph 3 it has been held clearly that initial appointment if not made according to the rules subsequent regularisation of service does not entitle an employee to the benefit of intervening service for seniority.

That apart we find as rightly drawn our attention to a notification dated 27th March, 1980 that temporary appointment covered by the orders contained in the financial department, notification No. 3241-F dated 27th March, 1980 (as quoted above) shall be deemed to have been made with effect from 27th March, 1980 for the'' purpose of these Rules. Hence, we fail to understand how the aforesaid established proposition of law and the rules determining seniority could be ignored by the Respondent No. 4. We, therefore, are unable to accept the contention of Mr. Chatterjee and Mr. Mukherjee that fixation of seniority has been made in accordance with the rules and thereby Respondent No. 5 has been given his right position. Under such circumstances, we do not think that the Legal Remembrancer, in terms of the Tribunal order, has taken a correct decision placing the Respondent No. 5 above the applicants in the gradation list prepared for Lower Division Assistants taking into consideration his ad hoc service prior to regularisation. The decision cited by Mr. Amal Baran Chatterjee of the Supreme Court S.B. Patwardhan and Another Vs. State of Maharashtra and Others, is not applicable in this case. In that case factually the issue was for determination of seniority of the deputy engineers drawn from direct recruits and promotees. Factually, in that case departmental rules prescribed for particular mode for determination of seniority consequently preparation of seniority list and the same was held to be unconstitutional.

Here there is an established rule for determination of seniority in ''case of PSC recruitee and non-PSC recruitee. If the rule itself has been provided and when there has been no challenge as against the rules the Respondent No. 4 cannot ignore the same.

Unfortunately, the learned Tribunal did not address those issues nor examined the aforesaid legal proposition. The learned Tribunal had gone on a different aspect altogether. Learned Tribunal proceeded on the question of violation of the principle of natural justice as urged before it. We, therefore, cannot uphold the decision and findings of the learned Tribunal. The same is accordingly set aside. The gradation list prepared for the Lower Division Assistant cadre is also set aside and we direct the Legal Remembrancer to prepare the gradation list for Lower Division Assistant first following the aforesaid proposition of law and thereafter revise the gradation list for Upper Division Assistant. After preparing this gradation list and fixing seniority if the applicant No. 5 becomes entitled to be promoted in accordance with the rules then promotion already granted in terms of interim order shall be regularized. Thereafter the fresh gradation list in the promotional post shall be prepared in accordance with Rule 5 of the aforesaid determination of the seniority rules. It is made clear in this process if any employee who has got promotion in terms of the interim order is deprived of the promotion he shall be given hearing and the payment made to them in that case should not be recovered for his service during this period.

Prasenjit Mandal, J.

I agree