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2001 DIGILAW 371 (CAL)

Haragopal Ghosh v. State of West Bengal

2001-06-29

Hrishikesh Banerji, Tarun Chatterjee

body2001
JUDGMENT The Court. : This Writ petition is directed against the order dated July 12, 1999 passed by the West Bengal Administrative Tribunal (“the Tribunal” for short) in O.A. No. 3126 of 1998 whereby the writ petitioner's application, inter alia, for treating him senior to the respondent No.7 (the private respondent herein) in the cadre of Lower Division Clerk of Civil Defence Organisation at Malda, was dismissed. 2. By virtue of an order dated April 15, 1985 by the Controller of Civil Defence, Malda, the petitioner, Haragopal Ghosh was appointed as a Lower Division Clerk in the aforesaid Organisation at Malda and he joined the post on April 23, 1985. 3. The petitioner was confirmed in Group ‘C’ post w.e.f. April 23, 1988. The respondent No.7, Sanat Kumar Majhi who also joined the post of L.D.C. in the same organisation at Malda was confirmed in Group ‘C’ post w.e.f. April 24, 1988. The final Gradation List of the non-gazetted staff of Civil Defence Organisation, Malda was published on May 31, 1992 by the District Magistrate and. Collector of Civil Defence, Malda. In that list the name of the petitioner appeared at serial No.3 and that of the private respondent at serial No.4. 4. The private respondent filed a Writ Petition being C.O. No. 3627(W) of 1992 challenging the draft Gradation List of the non-gazetted employees as on February 5, 1992 of Civil Defence Organisation as by his Memo No. 68-CD dated May 22, 1992, the Deputy Controller, Civil Defence, Malda rejected the objection of the private respondent, Sanat Kumar Majhi who claimed to be senior to the petitioner herein. 5. On transfer to the Tribunal the said Writ Application was re-numbered as T.A. No. 1034 of 1996. 6. In the said proceeding before the Tribunal it was the contention of the private respondent herein that at the time of initial recruitment to the post of L.D.C. he was placed in the first position in order of merit and as such his relative seniority in the cadre/a post of L.D.C. should be maintained in the Gradation List in accordance with the provisions of Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 (‘1981 Rules’ for short). However, in the Gradation List it is alleged, his seniority was not properly maintained. 7. However, in the Gradation List it is alleged, his seniority was not properly maintained. 7. The petitioner herein contested the said T.A. No. 1034 of 1996 and contended that no merit list was maintained at the time of recruitment of Group 'C' staff. It was his case that after central selection at the State level the Director of Civil Defence sent lists of selected candidates district wise to appropriate authorities for issuance of formal letters of appointment to the selected candidates and that no list of all the selected candidates according to their merit was maintained. 8. On April 30, 1997 the Tribunal disposed of the application (T.A. No. 1034 of 1996) directing the respondents authorities to revise and prepare the Gradation List in accordance with the 1981 Rules read with the Finance Department Memo dated June 12, 1981 within six weeks from the date of communication of the order. It was clarified in the said order that the promotion already made in accordance with the impugned Gradation List should not, be disturbed but suitable adjustment if required should be made for final preparation of the Gradation List in accordance with the guidelines as mentioned in the said order. 9. The aforesaid order dated April 30, 1997 passed by the Tribunal was challenged in this Court in W.P.S.T. No. 68 of 1997 in which a Division Bench of this Court by its order dated March 3, 1998 granted leave to the petitioner, Haragopal Ghosh, to make a fresh application before the Tribunal if he was aggrieved by the determination made by the Tribunal. The following reliefs were claimed by the private respondent herein, in the said fresh application before the Tribunal. The following reliefs were claimed by the private respondent herein, in the said fresh application before the Tribunal. "a) Order being Memo No. 114/1(4)/CD dated 24.7.97 (Annexure 'M' last sheet) and/or any subsequent order passed by the District Magistrate and Controller of Civil Defence, Malda be set aside/quashed/withdrawn and not to give any effect or further effect to the said order; b) The revised gradation list (Annexure 'M' second sheet) prepared as per direction of the Hon'ble Tribunal in TA-1034 of 1996 be set aside/quashed/withdrawn and no effect of further effect be given to than revised gradation list; c) A declaration that the Final Gradation List of non-gazetted staff Grade II-L.D.C, store keeper Civil Defence Organisation, Malda, already prepared by the District Magistrate & Controller of Civil Defence Malda, and published on 31.5.92 (being annexure I) be confirmed.” 10. After central selection at State Level, a list of successful candidates was received in the Tribunal from the Director of Civil Defence, West Bengal. In that list the name of the petitioner, Haragopal Ghosh, appeared at serial No.4 and the name of Sanat Kumar Majhi was at serial No.1. 11. As per G.O. No. 2635 (15) HCD dated April 20, 1990 a Gradation List was prepared for Group 'C' staff as per their date of joining. In the said List the name of Haragopal Ghosh (petitioner) was at serial No.3 and that of Sanat Kumar Majhi (respondent No.7) was at serial No.4. 12. It is submitted on behalf of the respondent No.7 that the list of selected candidates sent by the Controller of Civil Defence, West Bengal was not a merit list. According, to the order of the Tribunal a fresh Gradation List was prepared and the position of Sanat Kumar Majhi (respondent No.7) was shown above the position of Haragopal Ghosh. Haragopal then moved the Hon'ble High Court against the order passed by the Tribunal which was disposed of by giving certain directions without going into the merits of the claims and counter claims. 13. The seniority of the State Government employees is determined according to the West Bengal Services (Determination of Seniority) Rules, 1981. ‘Select List’ means the list of candidates prepared in the order of merit in which candidates are selected through a competitive examination and/or interview and/or after training or otherwise. 13. The seniority of the State Government employees is determined according to the West Bengal Services (Determination of Seniority) Rules, 1981. ‘Select List’ means the list of candidates prepared in the order of merit in which candidates are selected through a competitive examination and/or interview and/or after training or otherwise. Rule 4 of the said 1981 Rules runs as follows: “Relative seniority of all persons appointed directly through competitive examination or interview or after training or otherwise shall be determined by the order of merit in which they are selected for such appointment on the recommendation of the Commission or other selecting authority, persons appointed on the result of an earlier selecting being senior to those appointed on the result of a subsequent selection.” The second proviso to Rule 4 of this 1981 Rules runs as follows : “Provided further that if any person selected for appointment to any post does not join within two months of the offer of appointment, his seniority shall count from the date on which he joins the post unless the appointing authority for reasons to be recorded in writing condones the delay.” 14. There is a clarification of the above Rule in Finance Department Memo No. 4444-F dated June 12, 1981 where it is provided that when appointment on promotion or direct recruitment is made of more than one person through selection, the seniority will be according to the order of selection and not according to the date of joining. 15. In the present case we find that in the select list the name of Sanat Kumar Majhi is at serial No.1 and that of Haragopal Ghosh is at serial No. 4. The Tribunal held that although the respondent No.7 joined the post one day after the petitioner, the seniority of the respondent No.7 would not be affected inasmuch as in the select list the name of Sanat Kumar Majhi was found at serial No.1 and that of Haragopal Ghosh (petitioner) was at serial No.4 and accordingly the Tribunal dismissed the application of the applicant, Haragopal Ghosh. 16. The learned Counsel, appearing for the petitioner herein contends that Group 'c' posts in the Civil Defence Organisation of West Bengal being no-P.S.C. posts no merit list was required to be maintained and had not actually been maintained at the time of selection of the Group 'C' staff. 17. 16. The learned Counsel, appearing for the petitioner herein contends that Group 'c' posts in the Civil Defence Organisation of West Bengal being no-P.S.C. posts no merit list was required to be maintained and had not actually been maintained at the time of selection of the Group 'C' staff. 17. Our attention was drawn by the learned Counsel for the petitioner to Annexure 'G' being a copy of Memo. No. 8980-HCD Calcutta, December 10, 1991 regarding the preparation of Gradation List of Group 'C' and Group 'D' staff of Civil Defence Organisation, West Bengal From this department Memo it appears that no merit list had been maintained at the time of selection of Group 'C' and Group 'D' staff of Civil Defence Organisation, West Bengal. Although it was observed in the said Memo that it was hardly essential for non-P.S.C. posts, there was a direction in the said Memo for the preparation and publication of a Gradation List prepared and finalised by the District Magistrate and Controller of Civil Defence of the concerned Districts maintaining their seniority in accordance with their date of joining in the District/date of recruitment (where the date of joining is the same.) Referring to this Memo the learned Counsel for the petitioner contends that there having been no Gradation List at the time of the selection of the petitioner, the respondent No.7 should be held to be junior to the latter as the petitioner joined the post one day earlier than the date on which the respondent No.7 joined. 18. However, we are not impressed with this argument on behalf of the petitioner. Admittedly, the petitioner and the respondent were selected in petitioner. Admittedly, the petitioner and the respondent were selected in the same selection process and no merit list of the selected candidates was prepared following the said selection of the candidates as contemplated under Rule 4 of the 1981 Rules. “Date of joining” also cannot be a criterion for determining the seniority of the selected candidates in the present case, in view of the specific provision in Rule 4 as mentioned above that only when the selected candidate does not join the post within two months of the offer of appointment, his seniority shall count from the date he joins. 19. 19. The private respondent in this case does not come within the said proviso as both the petitioner and the private respondent joined the posts long before the expiry of two months from the date of the offer of appointment. 20. In such circumstances, we are of the opinion, that the only reasonable course to determine the respective seniority of the petitioner and the respondent No.7, in this case, would be to fix their seniority according to the date of birth. The candidate older in age i.e. the private respondent whose date of birth is 5-1-1952 should be determined, in this case, to be senior to the petitioner whose date of birth is 9-12-1959. 21. Accordingly, we do not find any infirmity in the final order of the Tribunal holding the private respondent (respondent No.7 herein) to be senior to the petitioner and dismiss the present Writ Application. 22. No order as to costs. Tarun Chatterjee, J.: Hrishikesh Banerji, J.: Writ petition dismissed.