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2017 DIGILAW 642 (CAL)

Pronab Kumar Paul v. State of W. B.

2017-07-25

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. By an order dated 31st July, 2013 impugned in the present writ petition, the learned Tribunal dismissed the petitioner’s original application being OA 1257 of 2011 in which prayer was made to fix the inter se seniority among the petitioner and the private respondents and to amend the gradation list published in the month of April, 2011 and to grant consequential promotion to cadre of IAS on the rudiments of the facts that at the time of initial appointment in the year 1983 there was no gradation list for West Bengal Civil Service (hereinafter referred to as WBSR) (Executive) officers and for the first time a draft gradation list was published in the State website in the month of April, 2011. From the said gradation list, the petitioner came to learn that he had been placed below the private respondent nos.4 and 5 accordingly he sought for certain information under the Right to Information Act, 2005 (hereinafter referred to as the said Act of 2005) from the respondent no.3 regarding the basis of determination of ranks when more than one candidate gets the same marks. In response thereto, names appearing at serial nos.12 to 16 in the list of successful candidates of WBCS (Executive) officers, 1983 were disclosed. However, as all the information as prayed for was not disclosed, the petitioner preferred an appeal under the said Act of 2005 and pursuant to the order passed by the West Bengal Information Commission on 15th June, 2011 such information was furnished and from the same it transpired that the petitioner and both the private respondent Nos.4 & 5 scored 607 marks in the selection test for 1983. The petitioner is seniormost in terms of age amongst the said three candidates since his recorded date of birth is 22nd August, 1956 while that of private respondent No.4 is 3rd November, 1956 and that of respondent No.5 is 28th June, 1958. 2. Mr. Dhar, learned senior advocate appearing for the petitioner submits that the West Bengal Services (Determination of Seniority) Rules, 1981 (hereinafter referred to as the said Rules of 1981) said Rules of 1981 were not applicable for members of the West Bengal Civil Service. 2. Mr. Dhar, learned senior advocate appearing for the petitioner submits that the West Bengal Services (Determination of Seniority) Rules, 1981 (hereinafter referred to as the said Rules of 1981) said Rules of 1981 were not applicable for members of the West Bengal Civil Service. However, when West Bengal Civil Service (Executive) (Determination of Seniority) Rules, 2008 (hereinafter referred to as the said Rules of 2008) came into operation with effect from 11th September, 2008, by virtue of Rule 3(ix), the Rules of 1981 were made applicable to the members of the WBCS (Executive) officers to the extent those were not inconsistent with the provisions in clauses (i) to (viii) of Rule 3 of the said Rules of 2008 for the purpose of determination of the seniority of the members of the service. When more than one candidate obtained the same aggregate marks in qualifying examination, the Public Service Commission (hereinafter referred to as PSC) had set ranks arbitrarily ignoring the government’s intention indicated in the note (2) of rule 4 of said Rules of 1981 which provides that “where the inter-se-seniority amongst several persons has not been determined prior to the coming into force of these rules, such seniority shall on the coming into force of these rules be determined on the basis of actual date of their joining. When the date of joining of all such persons is the same, seniority shall be determined on the basis of date of birth, person retiring earlier being adjudged as senior. When the date of birth is the same, seniority shall be determined on the basis of total marks obtained by each of the examination, passing of which is the qualification prescribed for recruitment to the particular post, cadre or grade”. 3. He further contends that the appointment in the year 1983 was by direct recruitment on the basis of total marks obtained in the examination. Once it was found that three candidates had obtained identical marks seniority ought to have been determined on the basis of date of birth and that PSC could not have broken the tie on the basis of the marks obtained by the candidates in the personality test. Once it was found that three candidates had obtained identical marks seniority ought to have been determined on the basis of date of birth and that PSC could not have broken the tie on the basis of the marks obtained by the candidates in the personality test. The moment such method is adopted, results get the back seat and such action is not permissible particularly when Rule 3(ix) of the Rules of 2008 read with Rule 4 Note 2 of the said Rules of 1981 provide a different method for breaking tie. PSC is a recommendatory body and it has no jurisdiction to determine seniority. Seniority is an incidence of service and the same is required to be determined on the basis of the service rules framed by the employer. In support of such contention reliance has been placed upon the judgments delivered in the case of Miss Neelima Shangla, Ph.D. Candidate Vs. State of Haryana and Others, reported in (1986) 4 SCC 268 and in the case of D. P. Das Vs. Union of India and Others, reported in (2011) 8 SCC 115 . 4. Mr. Roy, learned advocate appearing for PSC submits that as per resolution of the Full Commission meeting dated 21st December, 1982, PSC decided, inter alia, that at the time of preparation of merit list of successful candidates, the preference will be given to the candidates with higher marks in personality test. As the respondent nos.4 and 5 secured more marks than the petitioner in the personality test, the respondent no.4 ranked at Serial No.13 and the respondent no.5 ranked at Serial No.14 and the petitioner ranked at Serial No.15 in the merit list and vide memorandum dated 25th January, 1984 PSC recommended the names of the selected candidates according to the said merit list to the appointing authority to give them employment. The petitioner’s appointment was in the year 1983 and he had approached the learned Tribunal with his grievance after a lapse of about 30 years and such belated application has been rightly dismissed by the learned Tribunal. 5. Mr. Mukherjee, learned advocate appearing for the State respondents adopts the arguments advanced by Mr. Roy. 6. In reply, Mr. The petitioner’s appointment was in the year 1983 and he had approached the learned Tribunal with his grievance after a lapse of about 30 years and such belated application has been rightly dismissed by the learned Tribunal. 5. Mr. Mukherjee, learned advocate appearing for the State respondents adopts the arguments advanced by Mr. Roy. 6. In reply, Mr. Dhar has sought to explain the delay by contending that since his appointment in the year 1983 till the publication of draft gradation list in the year 2011, the petitioner was in the dark as regards his inter se seniority with his colleagues. Furthermore, the petitioner has agitated a point of law as to whether on the basis of Rules of 1981 and 2008, the inter se seniority is liable to be determined on the basis of total marks or on the basis of the marks obtained by the candidates in the written test and personality test respectively. 7. Heard the learned advocates appearing for the respective parties and considered the materials on record. The explanation given by the petitioner towards the delay which occasioned in preferring the original application was rightly discounted by the learned Tribunal since at the time of appointment itself the petitioner had knowledge that he was junior to the respondent nos.4 & 5 as it was explicit from the letter of allotment for appointment to WBCS (Executive) post dated 25th January, 1984 that he had been placed at Serial No.12 whereas the private respondent nos.4 & 5 had been placed at Serial Nos.10 and 11 respectively and that subsequent thereto pay scale No.19 was awarded to the respondent no.4 prior to the petitioner. Furthermore, the petitioner himself had stated that in paragraph 4(vii) of the original application that prior to publication of the gradation list he approached the Public Service Commission, West Bengal under the provision of Right to Information Act, 2005. 8. On the date of appointment of the petitioner, the said Rules of 1981 were not applicable to the members of WBCS. Such appointment was made on the basis of recommendation issued by PSC upon holding a written test and a personality test. 8. On the date of appointment of the petitioner, the said Rules of 1981 were not applicable to the members of WBCS. Such appointment was made on the basis of recommendation issued by PSC upon holding a written test and a personality test. On the date of adoption of such resolution there was no existing Rule towards determination of seniority and as such the judgments delivered in the cases of D. P. Das (Supra) and Miss Neelima Shangla (Supra) are distinguishable on facts and accordingly have no manner of application in the present case. 9. The examination for appointment to the post of WBCS (Executive) officer was conducted in consonance with the resolution adopted by the Full Commission on 21st December, 1982. In the event there was a tie amongst the candidates the process towards breaking the same was laid down in the said resolution. It was resolved that in the event of a tie preference would be given to the candidate who secures higher marks in the personality test and even thereafter if there is a tie preference would be given to the candidate who secures higher aggregate marks in compulsory subjects and even thereafter if there is still a tie, preference would be given to the candidates with higher age. There is no infirmity in the said procedure and the rationale behind the same is neither unreasonable nor arbitrary. PSC has to perform its functions and duties in an independent and objective manner uninfluenced by the dictates of any other authority. 10. In the present case though in the aggregate the petitioner and the private respondents secured equal marks (607), in the personality test, the respondent no.4 secured 110 marks, the respondent no.5 secured 104 marks whereas the petitioner secured 100 marks. Applying the procedure as laid down in the resolution dated 21st December, 1982, the tie amongst the petitioner and the respondent nos.4 & 5 was broken by granting weightage to the marks obtained by them in the personality test and we do not find any infirmity in such decision. 11. The petitioner was inexplicably insouciant and the learned Tribunal, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the same. The order stands fortified with cogent reasons and the same does not suffer from any jurisdictional error or any manifest injustice warranting interference of this Court. 11. The petitioner was inexplicably insouciant and the learned Tribunal, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the same. The order stands fortified with cogent reasons and the same does not suffer from any jurisdictional error or any manifest injustice warranting interference of this Court. 12. For the reasons discussed above, we do not find any reason to interfere with the order impugned and the writ petition is, accordingly, dismissed. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.