Judgment :- (1.) THE above application has been filed, questioning the judgment and order passed by the learned State Administrative Tribunal dated 20th March, 2003. By the judgment and order impugned two applications being T. A. No. 23 of 2000 and T. A. No. 244 of 2001 were dismissed. The application of T. A. No. 23 of 2000 was dismissed as it was found by the learned Tribunal that the same has become infructuous on the date of hearing in view of the retirement of the applicant and the second one was dismissed on merit. The applicant filed two writ petitions in this Honble Court one being C. O. No. 15278 (W) of 1992 and another being C. O. No. 12745 (W) of 1993 in this Honble Court. Later on the said applications were transferred by operation of law on formation of the learned Tribunal and then it was renumbered as above. The second writ petition was filed by the applicant challenging order of transfer dated 19th March, 1993 and 13th April, 1993. The learned Tribunal dismissed the said application and rightly so as the same has become infructuous in view of his retirement from services. Therefore, we feel that the judgment and order relating to the dismissal of the action against order of transfer does not require any consideration. Indeed there has been no argument and in fact no prayer was made to examine the dismissal of the second matter relating to the order of transfer. The first writ petition, which was later on transferred to the Tribunal was filed concerning the petitioners prayer for granting retrospective promotion to the post of Lecturer (Neurology) with effect from 7th March, 1977 and consequential promotions to the post of Assistant Professor, Reader, Associate Professor and professors and further declaration and confirmation that the petitioner as professor of Neurology with effect from 7th March, 1985, withdrawing and cancelling any order of transfer of service from present place to teaching post to any State Hospitals to any post equivalent to the rank of Assistant professor. The petitioner has prayed for further relief allowing him to exercise option for West Bengal Medical Education Services under State health Services Act, 1990 and alternatively to direct the respondents to transfer if necessary to a post of equivalent to a post of Professor by directing pay and allowances attached to and available under the said act, directing the respondents to consider the question of option under the said Act of 1990 available to the petitioner until his status and posting as Professor is confirmed. For the aforesaid relief following facts which are stated in short hereinafter are made out in the said writ petition, albeit difficulty in culling out because of irritating repetition leading to confusion. (2.) SO we have read and gathered the fact narrated by the learned tribunal in its impugned judgment. We have adopted this course of action, because grounds mentioned in the instant writ petition do not question correctness of recording of fact by the learned Tribunal. (3.) THE applicant having passed MBBS Examination from the university of Galcutta in the year 1966 and thereafter on 16th October, 1969 he joined as GD Medical Officer at Jawaharlal Nehru Memorial hospital, Kalyani thereafter the applicant was transferred to Bangur institute of Neurology as Medical Officer on supernumerary duty on 1st March, 1973 and while working as Medical Officer in the said Bangur hospital the applicant obtained degree of MD in General. Medicine. Thereafter, the applicant was promoted as Clinical Tutor-cum-Resident medical Officer in the Department of Neurology, Institute of Post Graduate medical Education and Research and joined the said post on 12th January, 1974. The applicant worked there till 7th March, 1977. In 1977 he obtained specialisation Degree in DM in Neurology. According to the petitioner on 7th March, 1977 he became eligible for appointment to the post of Lecturer in Neurology as per the stipulation of Medical Council of India. Two panels were prepared and published by Academic Advisory Committee (hereinafter "aac" in short) in Neurology, one on 4th May, 1978 and another one on 29th April, 1979, however, the petitioners name amazingly did not figure in either of them and no reason was disclosed as to why he was not included. Therefore, his exclusion from the panel was arbitrary. Surprisingly some of the Doctors viz. Therefore, his exclusion from the panel was arbitrary. Surprisingly some of the Doctors viz. Saral Sankar Roy, Sunil Kanti Roy, n. N. Sarangi and K. K. Chatterjee who were not having requisite qualification as per Medical Council of India stipulation were promoted to the post of Lecturers/assistant Professor. The said promotion of the aforesaid Doctors is ex facie bad, motivated and discriminatory. According to him for becoming a Lecturer/assistant Professor one has to has specialised degree namely DM in Neurology for the same. However, without having any such qualification the said Doctors served as neurologist in Calcutta Medical College and Hospital. Other Doctors, like dr. Dipesh Mondal, Dr. M. Panja and Dr. A. K. Maity who were juniors were granted academic elevation superseding the petitioner. (4.) MR. Saktinath Mukherji, learned Senior Advocate, with Mr. Milan chandra Bhattacharya, learned Advocate, appearing for the applicants while highlighting the facts, submits that the fact stated originally in the writ petition which was later on transferred to the learned Tribunal was not traversed or rebutted by filing any affidavit-in-opposition. Similarly, here no affidavit-in-opposition has been filed. Therefore, statement and averment made by the applicants are deemed to be correct or admitted. Besides, the statements made in the application disposed of by the learned Tribunal are supported by unimpeachable documents. He submits that there has been gross discrimination meted out throughout against the petitioner who happens to be a senior doctor, by illegal, arbitrary, super session by the juniors and the names of those junior doctors are stated in the petition. They were given their due promotion in their academic field right from lecturer to Professor not only in the Neurology Department but also in Cardiology and Psychiatric departments. It is an admitted position that those doctors who superseded the petitioner, got promotion right from Lecturer up to the Professor, stepped up three ladders without having basic qualifications and training whereas the petitioner is left out systematically year after year. Panels were published excluding the name of the applicant though representations were made from time to time. He submits that in the public employment protection available under Articles 14 and 16 of Constitution of India will be defeated unless a candidate is chosen with reference to his eligibility and performance. Panels were published excluding the name of the applicant though representations were made from time to time. He submits that in the public employment protection available under Articles 14 and 16 of Constitution of India will be defeated unless a candidate is chosen with reference to his eligibility and performance. He urges that when a person is not selected for promotion, nor promoted to higher scale it may not be necessary to communicate reasons for non-selection but reasons must be discernable from the records to make the constitutional protection meaningful. In this case, record was not produced either before the learned Tribunal or before this Court, even no affidavit was filed by the competent officer disclosing reasons for not including the petitioners in the panel though he was eligible in 1977 in the post of Lecturer. Under such circumstances, a public servant is entitled to have judicial review of non-selection by taking recourse to a proceeding before the appropriate forum. Upless reasons are ascertainable the right of having judicial review becomes illusory. He further submits that it is the duty of the Tribunal as well as the superior Court whenever approached, to examine whether there has been fair and "objective consideration of the case of the employees and further whether non-selection of the persons was vitiated by the doctrine of perversity or by non-consideration of the material fact or by consideration of irrelevant fact. He emphasises referring to the decision of the Supreme Court in case of The Manager, Government branch Press and Am. v. D. B. Belliappa, reported in AIR 1979 SC 429 about the necessity of recording reasons. He says that it is not for the sake of formality but to record the same in the file lest it is required by the Court for its scrutinisation in the exercise of judicial review. Unless reasons are recorded the superior Court is not in a position to examine the decision making process. He further submits while referring to another decision of the Supreme Court reported in AIR 1975 SC 550 that in a Government Act and action there is nothing like unfettered decision immune from judicial reviewability. The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16 (1). The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16 (1). He further reminds us citing the Supreme Court judgment in M. L. Kapoors Case, AIR 1974 SC 87 about the significance and importance of the reasons. He says that the reasons are the links between the materials on which certain conclusions are based. The reasons are always safeguards against possible injustice and arbitrariness in making selections. They disclose how the mind is applied in the subject-matter for a decision whether it is purely administrative or quasi judicial. The reason reveals a rational nexus between the facts considered and the conclusions arrived at and the same is not required to be elaborate. He draws support of Supreme Court decision in case of Gurdial Singn Fijji, reported in AIR 1979 SC 1622 and 2000 (8) SCC 395 , AIR 1996 SC 1328 (State Bank of India v. Kashinath Kher), AIR 1978 SC 597 . Fairness in the administrative action particularly in choosing a candidate and leaving out another candidate is a matter of considerable importance in the service jurisprudence. Fair decision always conforms to the provisions of Articles 14 and 16 of the Constitution of India. (5.) HE submits that the learned Tribunal is very unkind to refuse relief in this matter despite the aforesaid glaring infirmity and further discrimination being meted out on the ground of delay also. He contends in this case delay hardly stands in the way when the petition was admitted initially by the High Court and matter was considered on merit. (6.) HE further submits that the petitioner should be allowed to exercise option as required under the West Bengal Medical Education Service since the matter was pending in the Court. 1n any view of the matter there are many instances where option was allowed to be exercised in terms of the order of the Court. He, therefore, concludes that the petitioner should be granted relief as prayed for giving notional benefit placing him in the post of Lecturer from 1977 and promotional post. At present, if it is not possible, he should be given promotional benefit from the date when Dr. He, therefore, concludes that the petitioner should be granted relief as prayed for giving notional benefit placing him in the post of Lecturer from 1977 and promotional post. At present, if it is not possible, he should be given promotional benefit from the date when Dr. Dipesh kumar Mondal got in terms of the order of the Court promotional benefit right from the post of Lecturer to the post of Professor. The petitioner has retired, so retirement benefit should be fixed reckoning him to be in the post of Professor and pensionary benefit befitting to the post of Professor should be released forthwith. Ironically, he has been receiving since date of retirement a meagre amount of Rs. 4,000/-per month as pension and he is not given any benefit of revision of pay scale which came into force later on in view of the pendency of the matter. (7.) MR. Subrata Mukhopadhyay, learned Counsel for the State, submits that from the fact it is clear that the petitioner was not selected by the AAC and such decision was never challenged and he has accepted such decision. He further submits that it is the Committee who has examined the eligibility and qualification of all the doctors whose names were mentioned. The petitioner could not and cannot get the promotional benefit of the post of Professor unless he was chosen by AAC. The instances given by the applicant are not applicable in this case as after bifurcation of the said Health Services by the said Act he did not exercise any option. The instance of Dr. Dipesh Kumar Mondal is also inappropriate since it was given in terms of the order of the Court and not by the decision of the Government. Therefore, the action and grievance of the applicant against the Government are baseless and barred by limitation and the learned Tribunal has rightly dismissed this application. (8.) CONSIDERING the submissions of both the learned Counsels and unrebutted fact stated in the petition both before us and the learned tribunal it appears to us that the petitioners basic grievance is, that all the Junior Doctors in the order of date of appointments, have been given benefit of promotion to the post of lecturer, Assistant Professor, Reader, associate Professor, Professor superseding him. The Doctors namely Dr. Kalyan Kumar Chatterjee, Dr. Monotosh Panja, Dr. The Doctors namely Dr. Kalyan Kumar Chatterjee, Dr. Monotosh Panja, Dr. Maity and others were given the above post respectively way back on 7th March, 1979, 7th March, 1981 and 7th March, 1983 and 7th March, 1985. It appears to us also going by the statement and averment of the petition that the aforesaid doctors were given promotion flouting the norms laid down by Medical council of India with regard to qualification. It is true according to norms of the Medical Council of India, those persons would not have been given promotion as they did not acquire qualification. At that time all those persons were in erstwhile West Bengal Health Services. Their promotions were given by forming a panel preceded by constituting AAC. The decision making process of the said Committee might or might not be a flawed. But this had happened in 1978 and 1979 and the petitioner did not challenge at that time asserting his own right and sat tight over the matter. Therefore, it is difficult for this Court while agreeing with the conclusion arrived at by the learned Tribunal to grant relief at par with the aforesaid persons either notionally or otherwise. The petitioner for the first time in 1990 and thereafter from time to time made representation for redressal of his grievances and thereafter he filed writ petition in 1992. We have examined the statement and averment of the petition and other materials annexed to the petition we find without any denial or objection that the petitioner in 1977 acquired qualification to become lecturer. He would have been chosen by AAC, as since appointment to the post of lecturer was not based on test or examination, rather attainment of due qualification experience, sequelly seniority. Now question is whether he is entitled to get benefit of promotion at par with Dr. Dipesh Mondal who was also junior in all respects to the petitioners as prayed for in the petition here departing from his earlier prayer before Tribunal. The argument advanced by the learned Lawyer for the State that he was given benefit on the strength of the judicial pronouncement, he therefore, cannot be treated at par with the aforesaid Doctor is not convincing. The argument advanced by the learned Lawyer for the State that he was given benefit on the strength of the judicial pronouncement, he therefore, cannot be treated at par with the aforesaid Doctor is not convincing. When judicial pronouncement has been accepted by the State Government, in all fairness the same benefit ought to have been given to the eligible candidates who were similarly placed or circumstanced whether he approached Court or not. The petitioners qualification, eligibility, experience is undoubtedly not only at par with if not more than others who had got the benefit long back. The plea of not exercising option after commencement of State Health Services act, 1990 is completely misplaced here. Factually, he could not exercise option within the time extended by the Honble Supreme Court as order of status quo has been granted by this Honble Court in the writ petition before the Honble Supreme Court passed order and this order of status quo continued till the impugned judgment and order was passed. The learned tribunal has overlooked the aforesaid injustice meted out by the State government to the writ petitioner. We are unable to accept the reasoning of the learned Tribunal that judgment of the Apex Court is standing in the way in granting relief to the petitioner. We are of the view that the subject-matter before the Apex Court related to vires of the aforesaid Act. It is absurd to hold that judgment and order regarding exercise of option nullifies order of status quo granted by the Court in different proceedings. Dr. Dipesh mondal who is admittedly junior to the applicant in all respects, with same grievance filed writ petition in 1989 being C. O. No. 17377 (W) of 1989. On 6th November, 1990 by an order this Court granted all the promotions which he would have got by that time even without being screened by the academic Advisory Committee. This judgment was not appealed against, rather implemented. The learned Tribunal unfortunately did not examine the question of discrimination in the context of judgment rendered in the case of Dr. Mondal. Had there been any legal Impediment in accepting and implementing the said judgment would have been challenged. Therefore, the petitioner should be given all benefits of promotion to the post of Professor with retrospective effect from the date when Dr. Mondal. Had there been any legal Impediment in accepting and implementing the said judgment would have been challenged. Therefore, the petitioner should be given all benefits of promotion to the post of Professor with retrospective effect from the date when Dr. Dipesh mondal was given in terms of the judgment of the Honble High Court. The principle laid down in the Supreme Court decisions on the question of non-assigning reason resulting arbitrariness cited by Mr. Saktinath mukherji is not disputed but the aforesaid judgment cannot be applied in this case for the simple reason that it is too late to apply the same as the hands of the clock cannot be put back to upset settled administrative arrangement as far as the Junior Doctors who were empanelled ignoring the case of the petitioner in 1977,1979, 1981 are concerned. Moreover, before us the applicant wants relief of parity with Dr. Mondal specifically. The petitioner really woke up to assert his right in 1990. By that time those doctors must have gone up very high position or may be nearing to the end of service career. Under such circumstances we are unable to accept this portion of argument of Mr. Mukherjee regarding exclusion of the petitioners name in the earlier panel of 1977 and 1979. (9.) THEREFORE, we allow the petitioner to exercise his option once again under the said Act and the Director State Health Services is directed to accept such option and to give benefit to the rank of Professor from the date when Dr. Dipesh Mondal was granted promotion in terms of the judgment of this Court. (10.) ALL his pay shall be fixed, naturally pensionery benefit has also to be fixed after giving notional promotion. All retirement benefit had also to be released with difference of arrears if any within a period of three months from the date of communication of this order. (11.) THUS, the judgment and order of the learned Tribunal is set aside and this application is allowed to the extent as above. There will be no order as to costs.