Sankar Deb Acharya & Ors vs Biswanath Chakraborty & Ors

These two appeals have a chequered history. Avoiding prolixity, we may state few facts strictly for the purpose of disposal of these two appeals. As the question of facts and law raised are common, we are taking facts from Civil Appeal No.6383 of 2003. The dispute raised in these two appeals is with regard to inter se seniority and promotions of the appellants and the private respondents, under the applicable rules, namely the West Bengal Services (Training & Examination) Rules, 1953, as amended, the West Bengal Services (Revision of Pay and Allowances) Rules, 1970 and the West Bengal Services (Appointment, Probation & Confirmation) Rules, 1979, where according to the scheme of service rules the criteria for promotion is merit cum seniority and whether the private respondents can be made seniors to the appellants solely on the ground that they joined the service earlier to the appellants' date of joining. The facts, which are not disputed, are thus:

The two charts showing the detail of respective dates of joining the duty and passing of the departmental examination and confirmation by the appellants and private respondents are as under:

3. Anath Bandhu Biswas 5.5.78 5.6.92 5.6.92

43. Ashim Kumar Mitra 23.7.79 17.5.87 17.5.87

46. Jaydev Jana 27.5.77 26.6.83 26.6.83 To answer the aforesaid questions, it will be relevant to have a quick survey of the scheme of the rules framed from time to time. The Government of West Bengal framed the rules called Training and Examination Rules, 1953 (hereinafter the 1953 rules) as amended. The rules inter alia provided that a government servant appointed on probation, remains a probationer until confirmation. A probationer would have to pass before confirmation any test or examination, prescribed as a condition precedent for confirmation in the service. It also provided that no officer shall be eligible for promotion unless he has completely passed the departmental examination. Then came the West Bengal Services (Revision of Pay & Allowances) Rules. 1970 (hereinafter the ROPA Rules). It also provided that all appointment to a permanent post under the Government would be on probation, which shall include West Bengal Food & Supplies Service.

The Government of West Bengal framed rules called West Bengal Services (Appointment, Probation & Confirmation) Rules, 1979 (hereinafter the 1979 rules). The rules inter alia provided that where the rules for confirmation required passing of any academic, departmental or other examination before confirmation, the 1979 Rules would not be construed to relax to such requirement. The Government of West Bengal framed rules called West Bengal Services (Revision of Pay & Allowances) Rules, 1981 (hereinafter the ROPA Rules, 1981). On 5.8.1981 the Government of West Bengal announced a Promotional Policy for the state government employees inter alia provided that the posts in the scale 18 and 19 under ROPA Rules, 1981 would be filled through promotion, on the basis of merit cum seniority from within the respective service and departmental cadres. In West Bengal Food & Supplies Services cadre, 220 posts were redistributed as follows, 150 posts in scale 17, 61 posts in scale 18 and 9 posts in scale 19. Thereafter, vide memo dated 12.10.1983, the Government imposed an additional condition prescribing a minimum period of six years' service in scale 17 for promotion to scale 18 and a minimum combined period of 13 years' in scale 17 and 18 before promotion to scale 19. The additional condition imposed vide memo 12.10.1983 and the order passed thereunder were challenged by filing Writ Petition being C.O.No.590(W) of 1988 by some of the private respondents herein along with some other persons before the High Court. The only contention raised in the application was that the additional condition sought to be imposed was discriminatory, as the same had not been imposed in the cases of other state government Services. The learned Single Judge by an order dated 13.2.1990 allowed the Writ Petition and quashed the Government Memo dated 12.10.1983 imposing additional condition. The learned single Judge further directed that the respondents be given the higher scale 18 and 19 on the basis of their respective merit- cum-seniority w.e.f. the date when the promotion policy came into effect. Consequent to the order aforesaid the Government issued a fresh promotion order dated 11.9.1991. This, however, dispensed with the compliance of the rules about determination of merit-cum-seniority, which mistake was later acknowledged by the State Government. The mistake was corrected by an order dated 19.9.1991. By the said order the Government directed the compliance with the relevant service rules before giving effect to the promotion order dated 11.9.1991 and directed that no payment of arrear dues be made to officers promoted before confirmation. The appellants being aggrieved by the order dated 11.9.1991 moved Writ Petition being C.O.2031 (W) of 1993 before the High Court of Calcutta wherein the officers covered by the promotion order dated 11.9.1991 were also impleaded. In the Writ Petition the appellants raised a contention amongst others that unequals had been treated equally. An injunction sought for was rejected. An appeal being F.M.A.T.589 of 1993 was preferred before the Division Bench of the Calcutta High Court which was disposed of by the Division Bench on 27.11.1995 directing the State to consider the case of all eligible candidates including the appellants and others strictly in accordance with law and the relevant rules as applicable. The aforesaid direction of the Division Bench was sought to be complied with by a memo dated 16.2.1996. However, promotion order dated 11.9.1991 was left undisturbed. The same was challenged by some of the appellants before the Administrative Tribunal in O.A.No.759 of 1996 seeking proper implementation of the Division Bench order and also seeking refixation of seniority of officers. The Tribunal disposed of O.A.No.759 of 1996 by an order dated 17.11.1997. Being not satisfied with the order of the Tribunal the appellants challenged the order of the Tribunal by filing a Writ Petition, WPST No. 8 of 1998 before the Division Bench of the High Court in which 15 respondents illegally promoted by an order dated 11.9.1991 were also impleaded amongst others. It was contended before the Division Bench that non-observance of the promotion rules regarding eligibility was illegal but the Tribunal had failed to address the said issue. After referring to Rule 5(b) of the 1979 Rules, the Division Bench came to the following conclusion:

It appears that pursuant to a writ of mandamus issued by the Division Bench on 5.5.2000 the Government of West Bengal issued a fresh promotion order under the memo dated 28.3.2001. In the said memo the Government has acknowledged the mistake committed in the order dated 11.9.1991 in ignoring the Rules for the determination of merit- cum-seniority. In the said order the Government has considered the entire rules relevant for determination of merit- cum-seniority and grant of higher scale to the eligible officers and the same order was passed in accordance with the Rules. We are surprised to notice that aggrieved party (respondents herein) again approached the Tribunal in O.A.No.636 of 2001 and the Tribunal by its order dated 10.4.2002 set aside the Government order dated 28.3.2001 which was passed, as already noticed, pursuant to the writ of mandamus issued by the Division Bench of the High Court. The Tribunal was of the view that effected persons have not been heard and the matter be remanded back to the Government for fresh consideration. We are unable to subscribe to the view expressed by the Tribunal. Firstly, since the order of 28.3.2001 was issued pursuant to a mandamus issued by the Division Bench of the High Court, the Tribunal should not have interfered. Secondly, before the High Court the interest of the present respondents were adequately represented and there was no question of passing an order without hearing the parties who had been adversely affected. Aggrieved by the order of the Tribunal of remand the private respondents herein filed WPST No.1044 of 2002 before the Division Bench of the Calcutta High Court. The Division Bench of the High Court after hearing the parties by the impugned judgment and order set aide the directions of the Tribunal of remand of the matter for re-consideration. The High Court was of the view that the controversy has been finally settled in terms of the judgment and order passed in CO.No.590(W) of 1988 by learned single Judge, affirmed in appeal. The High Court further directed the authorities to act in terms of the promotion order dated 11.9.1991 by setting aside the order dated 28.3.2001 which was issued pursuant to a writ of mandamus issued by the Division Bench of the High Court.

The impugned judgment of the High Court has relied on the judgment in C.O.No.590(W) of 1988. As already noticed, the judgment in the aforesaid matter was confined to the imposition of additional condition, which has no relevancy in the facts of the present controversy. The High Court also erred in directing to restore the promotion order dated 11.9.1991, which was set aside earlier by co-ordinate bench by its judgment dated 27.11.1995 in FMAT No.589 of 1993. The High Court was also clearly in error in setting aside the order dated 28.3.2001 which was passed pursuant to a writ of mandamus issued by the co-ordinate bench earlier in WPST No.8 of 1998 on 5.5.2000. In any event, in our view, the impugned order of the High Court is unsustainable in law. We now proceed to make a quick survey of the set of rules, which are relevant for the purpose of disposal of these appeals. At the risk of repetition the appellants and respondents were recruited through the West Bengal Public Service Commission on temporary basis. It is also not disputed that the respondents were appointed earlier to the appointment of the appellants and joined duty earlier than the appellants' date of joining. It is also not disputed that the appellants passed departmental examination prior to the private respondents. The appellants also completed the period of probation and were confirmed at an earlier point of time than the respondents. The scheme of the rules, which we shall be dealing with presently, provides probation, passing of departmental examination and confirmation after the departmental examination and completion of probation. The Rules also provide that the consideration is merit-cum- seniority.

The High Court order is assailed mainly on two grounds (a) that the directions in the impugned judgment run counter to the Rules and (b) that the impugned judgment is contrary to earlier orders passed by the co-ordinate Bench of the High Court. In short, the impugned judgment of the High Court has set-aside two orders of the co-ordinate benches, passed earlier.

When the principle of merit cum seniority is applied, it is now well settled principle that great emphasis is on merit and ability and seniority plays a less significant role. Seniority has to be given weightage only when merit and ability are approximately equal. [ See: B.V.Sivaiah vs. K.Addanki Babu, (1998) 6 SCC 720, Central Council for Research in Ayurveda & Siddha vs. Dr.K. Santhakumari, (2001) 5 SCC 60 ]. It is, however, contended by Mr. Altaf Ahmad that seniority be linked with date of initial appointment and not from the date of passing the departmental examination. According to him, if one passes departmental examination later in point of time, his seniority must relate back to the date of original appointment. According to him, under merit cum seniority the test is merit and once an incumbent passes the examination he qualifies the test of merit and, therefore, his seniority relates back to the date of entry in the service. To accept such contention would negate the mandate of the Rules.