Research › Search › Judgment

Calcutta High Court · body

2023 DIGILAW 152 (CAL)

Dhananjoy Das v. State of West Bengal

2023-02-01

HARISH TANDON, PRASENJIT BISWAS

body2023
JUDGMENT : HARISH TANDON, J. 1. The aforesaid two writ petitions are taken up together having filed assailing the common judgment dated 17.6.2019 passed in OA 175 of 2016 and OA 1167 of 2016 by the West Bengal Administrative Tribunal. 2. OA 175 of 2016 was filed by the Private Respondent no. 8 to recall the judgment and order dated 14.2.2014 passed in OA 122 of 2022 filed by the petitioners solely on the ground that he was not made party therein and the said judgment and order affected his right of promotion to the post of the Assistant Engineer (Mechanical/Electrical). 3. OA 1167 of 2016 was filed by the petitioners challenging the Memo dated 30th March, 2016 by keeping the final gradation list dated 29.3.2016 in abeyance and formation of a committee by the PHE Department for promotion of the Sub-assistant Engineer (Mechanical/Electrical) to Assistant engineers (Mechanical/Electrical) having been issued without assigning any reasons and in absence of any provisions for formation of such committee. 4. The parties were subjected to several round of litigations in relation to the publication of the draft gradation list which was subsequently finalised and the private respondents who were put in a higher pedestal in the gradation list and promoted to the post of the Assistant Engineer (Mechanical/Electrical). 5. The genesis of the instant litigation originated after the petitioners after the petitioners and the private respondents were recruited through a selection process initiated by the Public Service Commission for the post of the Sub-assistant Engineer (Civil/Mechanical/Electrical) in the West Bengal Subordinate Service of Engineers in the various engineering departments of the Government of West Bengal duly advertised and initiated in the year 1999. By virtue of the said advertisement, the examinations were conducted in three branches namely Civil Engineering, Mechanical Engineering and Electrical Engineering. After the conclusion of the examinations, two separate lists were published by the PSC for the post of Sub-Assistant Engineers recommending 5 candidates under the electrical branch and 14 candidates under the mechanical branch for appointment in the post of a Sub-assistant Engineer in the department of Public Health Engineering Directorate. Both the memos were issued on the same date. In the first list relating to electrical, Petitioner no. 2 was shown in a 4th position in the general standard list and the Respondent no. 9 was shown in 12th position. Both the memos were issued on the same date. In the first list relating to electrical, Petitioner no. 2 was shown in a 4th position in the general standard list and the Respondent no. 9 was shown in 12th position. However, in the second list of the even date pertaining to the medical branch, the Respondent no. 8 was shown in 3rd position whereas the Petitioner no. 1 was shown in 5th position. Pursuant to the aforesaid lists the appointment letters were issued on 30th August, 2000 indicating that the inter se seniority shall be determined in accordance with the merit list prepared by the PSC. The petitioners joined the post on the next date i.e. 31st August, 2000 whereas the Respondent no. 8 joined on 31st October, 2000 and the Respondent no. 9 on 18th September, 2000 respectively. By virtue of the memo dated 5th November, 2007 issued by the Joint Secretary, Department of Public Health Engineering the direction was passed upon the Chief Engineer (W/Z) Public Health Engineering Directorate to prepare a combined gradation list to ascertain the seniority of the Sub-assistant Engineers of the combined electrical and mechanical cadre on consideration of the respective departments and issued the memos under which the names of the candidates were sponsored by the Public Service Commission, West Bengal. Pursuant to the said direction the draft gradation list of the Sub-assistant Engineers (Mechanical/Electrical) was prepared and intimated to the Superintendent Engineer, Mechanical Circle of the Public Health Engineering Directorate inviting the objection if any, with the supporting documents not only to correct the said draft gradation list but also in furtherance to the publication of the final gradation list. The petitioners raised objections and sought clarification in terms of the said letter dated 25.1.2008 but amidst the pendency of the decision to be taken thereupon, half yearly professional examination was conducted amongst the departmental candidates for the promotion to the post of Assistant Engineer and it is not in dispute that the petitioner participated in the said examination and were declared successful therein. The name of the petitioners were figured in Serial no. 1 and 2 under the head of Sub-assistant Engineers (Mechanical) in the notification dated 9.2.2009 which was duly forwarded to the department. Subsequently, a further draft gradation list of a combined cadre was published by the Chief Engineer (Mechanical/Electrical) on 28.1.2010 wherein the Respondent no. The name of the petitioners were figured in Serial no. 1 and 2 under the head of Sub-assistant Engineers (Mechanical) in the notification dated 9.2.2009 which was duly forwarded to the department. Subsequently, a further draft gradation list of a combined cadre was published by the Chief Engineer (Mechanical/Electrical) on 28.1.2010 wherein the Respondent no. 8 was shown in Serial no. 22 and the Respondent no. 9 in Serial no. 24 which, according to the petitioner was in violation of Rule 4 Note 3 of the West Bengal Service (Determination of Seniority) Rules, 1981. Further objections were raised by the petitioners to the said draft gradation list dated 28.1.2010 but was not attended to nor any decision was taken thereupon which constrained the petitioner to approach the Tribunal by filing OA 1288 of 2010. In the said Tribunal Application, the petitioners not only alleged the inaction on the part of the authorities in not considering the objections raised to the draft gradation list dated 28.1.2010 but also challenged the said gradation list being violative of the provisions contained in the West Bengal Service (Determination of Seniority) Rules, 1981 and the promotion given on the basis thereof. The said Tribunal Application was disposed of on 18.1.2011 by the Tribunal directing the Chief Engineer (Mechanical/Electrical), Public Health Engineering Directorate to consider the said Tribunal Application as representation and dispose of the same by passing a speaking and reasoned order in accordance with law within a period of 4 months from the date of the communication and communicate the decision thereof to the petitioners herein within a period of 3 weeks therefrom. 6. Pending the decision the relevant authority granted promotion to 6 Sub-Assistant Engineers (Mechanical/Electrical) on 24.1.2011 which, according to the petitioner includes the name of one person who was junior to them in violation of the aforesaid rules. 6. Pending the decision the relevant authority granted promotion to 6 Sub-Assistant Engineers (Mechanical/Electrical) on 24.1.2011 which, according to the petitioner includes the name of one person who was junior to them in violation of the aforesaid rules. Subsequently, the Chief Engineer (Mechanical/Electrical), Public Health Engineering Directorate acted in terms of the order passed by the Tribunal in OA 1288 of 2010 and disposed of the same on 15.6.2011 holding that the procedure adopted in determining the relatives/inter se seniority of persons appointed in different posts in the same cadre having different qualifications through a selection procedure, the method of determining relative/inter se seniority in terms of the memo dated 5.11.2007 is not only wrong but violating of statutory rule in this regard and ultimately showed his inability to pass the speaking and/or reasoned order. 7. Even after taking the aforesaid decision another draft gradation list was prepared on 18.7.2011 in the tune with the earlier draft gradation list which was challenged by the petitioners in OA 1288 of 2010 as the petitioners were put at Serial no. 16 and 20. Astonishingly the names of the Respondent nos. 8 and 9 was not included in the said draft gradation list who were already promoted to the post of Assistant Engineer in terms of the notification dated 24.1.2011. Immediately a contempt notice was issued upon the authority at the behest of the petitioners to have acted in violation of the order dated 18.1.2011 passed in OA no. 1288 of 2010 which was duly responded by the Chief Engineer (Mechanical/Electrical) admitting that as a result of the odd decision the inter se seniority of the Sub-assistant Engineers (Mechanical/Electrical) were erroneously determined. Subsequently the representation was made and the hearing was conducted by the Chief Engineer (Mechanical/Electrical) and were disposed of on 24.8.2011holding that the gradation list ought to have been prepared under the aforesaid Rules of 1981 instead of adopting an arbitrary method of fixing seniority. The petitioners thereafter requested the authority to implement the said order of the Chief Engineer dated 24.8.2011 by amending the gradation list and accorded the promotion to the applicants to the post of Assistant Engineer from the retrospective date i.e. the date when the juniors have been promoted to such posts. The petitioners thereafter requested the authority to implement the said order of the Chief Engineer dated 24.8.2011 by amending the gradation list and accorded the promotion to the applicants to the post of Assistant Engineer from the retrospective date i.e. the date when the juniors have been promoted to such posts. The petitioners were communicated that the decision to implement the said decision of the Chief Engineer is pending before the Finance Department and the advisory was to keep the post of the Assistant Engineer (Mechanical/Electrical) vacant till the finalisation of the disputes. The petitioner again raised objection not only against the decision keeping the post vacant but also challenging the decision of the authority to seek the vetting from the Finance Department which has no role to play in this regard. Despite the same there was no response from the concerned authority and, therefore, the petitioner filed another Tribunal application being OA 122 of 2012 before the Tribunal to give effect to the reasoned order dated 24.8.2011 and promote the petitioners to the post of Assistant Engineer upon making suitable amendments in the draft gradation list. It is pertinent to record that since the private respondents were not figured in the said gradation list erroneously published, they were not made party in the said Tribunal Application. The said Tribunal Application being OA 122 of 2022 was disposed of by a judgment and order dated 14.2.2014 directing the Principal Secretary to the Government of West Bengal, Finance Department to reconsider the issue in terms of Note 3 of Rule 4 of the said Rules of 1981. Pursuant to the said order the draft gradation list was rectified and further published on 25.11.2014 inviting the objections and/or grievances from the incumbents. In the said rectified draft gradation list, the petitioners were figured in Serial nos. 47 and 48. Subsequently, the observations of the Finance Department taken on 4.12.2015 was forwarded by a letter dated 16.12.2015 to the Chief Engineer PHE Department to the effect that if the petitioners are found senior upon the rectification of the said gradation list they may be promoted to the post of the Assistant Engineer upon the cancellation of the erroneous promotion given to 2 juniors and the overdrawn may be recovered from them. The Respondent no. The Respondent no. 9 challenged the said draft gradation list dated 25.11.2014 and the decision of the Finance Department dated 4.12.2015 by filing a OA No. 170 of 2016 before the Tribunal. Upon coming to know of the institution of the said Tribunal Application, the petitioners applied for their addition which was eventually allowed. Subsequently the gradation list was published on 29.3.2016 and the petitioners were placed above the position of the private respondents in terms of the provision contained in the aforesaid Rules of 1981. The Respondent no. 9 herein further challenged the order dated 14.2.2014 passed in OA 120 (2 of 2012) by filing a writ petition being WPST 197 of 2016 before this Court. The said writ petition was disposed of granting liberty to the said Respondent no. 9 to challenge the final gradation list dated 29th March, 2016 as well as the order of the Tribunal dated 14.2.2014 passed in OA no. 122 of 2012 before the Tribunal and also granted liberty to the said Respondent no. 9 to withdraw the earlier Tribunal Application being OA 170 of 2016 filed by the said respondent and pending before the Tribunal with liberty to file the fresh in terms of the aforesaid leave. It is not in dispute that pursuant to the said order and the liberty having granted to the Respondent no. 9 the said OA 170 of 2016 was withdrawn but the said respondent choose not to file a fresh Tribunal Application challenging the said aforesaid orders and the gradation list so published. Interestingly, the authority however decided to keep the final gradation list dated 29.3.2016 in abeyance upon issuing the memo dated 30th March, 2016 until further decision of the committee so constituted by an earlier order. Challenging the said memo dated 30th of March, 2016 the petitioners filed OA 1167 of 2016 and amidst the pendency of the same respondent authority withdrew the memo dated 30th March, 2016 by which the final gradation list dated 29.3.2016 was kept in abeyance. Now it was a turn of the Respondent no. 8 to challenge the order dated 14.2.2014 passed in OA 122 of 2012 and the decision of the Finance Department dated 4.12.2015 by filing the Tribunal Application being OA 175 of 2016. Now it was a turn of the Respondent no. 8 to challenge the order dated 14.2.2014 passed in OA 122 of 2012 and the decision of the Finance Department dated 4.12.2015 by filing the Tribunal Application being OA 175 of 2016. Both the aforesaid Tribunal Applications were taken up together and by the impugned order the Tribunal disposed of the same with the following directions: “15. With the above discussions and analysis of various issues involved, we would like to briefly summarise below our observations and directions: (i) The judgment of the Tribunal dated February 14, 2014 in OA-122 of 2012 has been taken up for reconsideration and the issues involved have been re-examined. (ii) Note 3 Rule 4 of the seniority Rules of 1981 is not applicable in the instant case. (iii) The final gradation list published on March 29, 2016 was prepared based on Note 3 Rule 4 of the seniority Rules of 1981, and as such the same is set aside. (iv) The main prayer of the applicants in OA-1167 of 2016 was to direct the respondents to act on the basis of finally published gradation list dated March 29, 2016, but we set-aside the said final gradation list and as such the OA-1167 of 2016 is dismissed. (v) The communication of the Joint Secretary of PHE Department dated November 5, 2007 is set aside as it is not in conformity with the provisions of the Seniority Rules of 1981. (vi) The draft gradation list published on January 25, 2008 prepared on the basis of the communication of the Joint Secretary and all the subsequent gradation lists published by the PHE Directorate are set aside. (vii) Two separate cadres are to be constituted - one for SAEs (Mechanical) and the other for SAEs (Electrical) and they cannot be included in a single gradation list, as their names have not been recommended by the PSC, WB in a common merit list. (viii) The promotion to the post of Assistant Engineer (Mechanical/Electrical) is to be done on the basis of quota to be fixed on the basis of cadre strength of SAEs (Mechanical) and SAEs (Electrical) as discussed above with the rider that the quota for one service cannot be diverted to the other service but can be carried forward in the absence of the availability for suitable candidate for promotion. (ix) The observations of the Finance Department dated February 24, 2012 and dated February 4, 2015 are justified the law in view of our discussions in the preceding paragraphs. (x) The department will be at liberty to amend the Recruitment Rules for Assistant Engineer (Mechanical/Electrical) and for the feeder posts of SAEs (Mechanical) and SAEs (Electrical).” 8. Mr. Pratik Dhar, learned Senior Advocate appearing for the petitioner submits that the Tribunal exceeded jurisdiction in passing several directions which are contrary to the notifications issued by the Government of West Bengal by assuming the legislative functions which is impermissible in law. He further submits that the Tribunal/the Court cannot legislate nor can direct the authorities to legislate the law by transgressing the jurisdiction and placed reliance upon a judgment of the Supreme Court in case of Mallikarjuna Rao and Others vs. State of Andhra Pradesh and Others, (1990) 2 SCC 707 . Mr. Dhar vehemently submits that the State prevaricated its stands at the different stages of the litigations which would be manifestly seen from the various decisions taken in terms of the order of the Tribunal and therefore, have acted contrary to their own notifications and the rules applicable in this regard. He arduously submits that since 1994 there was a combined gradation list of Sub-Assistant Engineer (Mechanical/Electrical) and therefore, the direction for separate gradation list as directed by the Tribunal is contrary to the aforesaid rules and the notifications applicable in this regard. Mr. Dhar was emphatic on his submission that when the rules framed by the competent authority provided the modalities for determining the seniority in the gradation list, the same is required to be adhered to and the respondent cannot act contrary thereto. According to Mr. Dhar, because of the unique nature of the work entrusted upon the Sub-Assistant Engineers in a Public Health Engineering Directorate which required both the Mechanical and the Electrical component to be installed and maintained, the decision of the Government to prepare a combined gradation list cannot be faulted with and therefore, the direction of the Tribunal to prepare a separate gradation list for the Sub-Assistant Engineer (Mechanical) and Sub-Assistant Engineer (Electrical) is impractical and violative of the rules. Mr. Mr. Dhar, placed reliance upon a notification dated December 10, 1994 framed by the Governor in exercise of power under Article 309 of the Constitution of India in order to regulate the recruitment and the condition of service in Engineering Services (Mechanical/Electrical) of the Public Health Engineering Directorate in support of his contention that for recruitment to the post of Sub-Assistant Engineer (Mechanical/Electrical) by way of promotion through a selection process undertaken by the Public Service Commission, West Bengal would indicate that the Sub-Assistant Engineer both in Mechanical or Electrical or Supervisor are eligible for the posts and in absence of any differentiation the common gradation list is required to be prepared which in fact was done and therefore, the order of the Tribunal to prepare a separate gradation list for Mechanical and Electrical is contrary to the said rule promulgated by notification dated December 10, 1994. In support of the aforesaid contention, the reliance is placed upon a judgment of the Supreme Court in case of Union of India and Others vs. Arun Kumar Roy, (1986) 1 SCC 675 . Mr. Dhar submits that the recruitment process was initiated by the Public Service Commission to fill up the post of the Sub-Assistant Engineer (Civil/Mechanical/Electrical) from the eligible candidates having a requisite educational qualification in the respective stream but are placed in the common gradation list prepared for Mechanical/Electrical in the order of the merit as determined by the Public Service Commission and placed reliance upon a judgment of the Supreme Court in case of Sudhir Kumar Atrey vs. Union of India and Others, (2022) 1 SCC 352 . Mr. Dhar further submits that the West Bengal Services (Determination of Seniority) Rules, 1981 contained an exhaustive provision relating to determination of seniority of a direct recruits and Note 3 of Rule 4 has its applicability when the selection authority undertake the selection process for appointment to the different posts in the same grade with different qualifications on the basis of the date of the joining. According to Mr. Dhar, the said Note 3 Rule 4 of the said rules was in fact applied when the final gradation list was published and the position of the petitioner was higher than the private respondents and therefore, they should have been placed in a position above, the private respondents in the post of Sub-Assistant Engineer (Mechanical/ Electrical). Mr. According to Mr. Dhar, the said Note 3 Rule 4 of the said rules was in fact applied when the final gradation list was published and the position of the petitioner was higher than the private respondents and therefore, they should have been placed in a position above, the private respondents in the post of Sub-Assistant Engineer (Mechanical/ Electrical). Mr. Dhar further submits that Note appended to the statutory provision is a part of the rule which is required to be construed in such manner as held by the Supreme Court in Samurai Electronics Pvt. Ltd. and Another vs. Municipal Council and Another, (1998) 2 SCC 707 . He further submits that the Note appended to the statutory provision is a tool not only for applying the rules but also interpreting the true impart thereof and placed reliance upon the judgment of the Supreme Court in case of Tara Singh and Others vs. State of Rajasthan and Others, (1975) 4 SCC 86 . It is thus, submitted that the Note being the part of the statutory provisions has to be given effect for the purpose of ascertaining the legislative intent behind the incorporation of the rules and cannot be overlooked and/or ignored as surplus age. Mr. Dhar emphatically submits that the order of the Tribunal directing the Authority to take decision on the basis of the Note 3 of Rule 4 of the said Rules cannot be set aside in a subsequent round of litigation as the Tribunal cannot act as a Court of Appeal over its own decision/order. He thus, submits that the respondent no. 8 challenged the order of the Tribunal directing the authority to give effect to the said Note which could not fructify into a positive result in his favour, such order cannot be challenged at the behest of the respondent no. 9 solely on the ground that the said order was passed behind his back. According to Mr. Dhar, the interference with the said orders have given a premium to the respondent no. 8 who could not succeed in getting the same set aside in a validly instituted proceeding. Mr. Dhar thus, submits that the Tribunal has transgressed his jurisdiction not only usurping the legislative function but also sitting as a Court of Appeal over its own order and therefore, the impugned order is liable to be quashed and set aside. 9. Mr. 8 who could not succeed in getting the same set aside in a validly instituted proceeding. Mr. Dhar thus, submits that the Tribunal has transgressed his jurisdiction not only usurping the legislative function but also sitting as a Court of Appeal over its own order and therefore, the impugned order is liable to be quashed and set aside. 9. Mr. Sirsanya Bandyopadhyay, learned Advocate appearing for the State submits that Rule 4 of the said Rules being the substantive provision cannot be overridden by an insertion of a Note which can at best be regarded as explanatory and in harmony with the said provision and in case of inconsistency between the substantive provision and the Note, substantive provision must prevail and place reliance upon a judgment of the Supreme Court in case of Rai Sudhir Prasad vs. State of Bihar and Others, (2004) 13 SCC 25 and V.B. Prasad vs. Manager, P.M.D. Upper Primary School and Others, (2007) 10 SCC 269 . Mr. Bandyopadhyay further submits that proviso inserted to a statutory provision cannot travel beyond the said enabling provision to it which it is a proviso and therefore, to be interpreted harmoniously as held by the Supreme Court in case of Union of India and Others vs. Dileep Kumar Singh, (2015) 4 SCC 421 . He thus, submits that Rule 4 of the said Rules contain an exhaustive provision relating to the determination of seniority by an order of merit in which they were selected on the recommendation of the Commission and therefore, Note 3 appended thereto has no manner of application in the instant case. 10. Mr. Kar, learned senior Advocate appearing for the respondent no. 9 submits that there is no fetter on the part of the party in challenging the order by instituting the separate proceeding; even a review is permissible at the instance of a non-party to the proceedings against an order vitally affecting the right and relied upon a Division Bench judgment of this Court in case of Smt. Diblu Naskar vs. State of West Bengal and Others, (2010) 2 CHN 280 . Mr. Mr. Kar further submits that the order passed in a Tribunal application filed by the petitioners directing the authorities to take a decision in terms of the Note 3 of Rule 4 of the said Rules affecting the right of his client and therefore, the said order is amenable to be challenged in an independent Tribunal application which in fact has been done despite the fact that the respondent no. 8 could not succeed in getting the order set aside. He further submits that his client has been promoted and placed in a higher position that of the writ petitioners herein and have been promoted to a promotional post which should not be interfered with. 11. Mr. Asok Kumar Banerjee, learned Senior Counsel for the respondent no. 8 submits that Note 3 Rule 4 of the said Rules has no application as the said Note runs counter to the enabling provision. He further submits that even if his client could not succeed in getting the earlier order passed by the Tribunal set aside yet there is no impediment on the part of the respondent no. 9 to file the independent proceeding to get the said order set aside as he was neither a party therein nor in the proceeding initiated by his client. 12. On the conspectus of the aforesaid submission two points are involved, in our opinion, in the instant appeal. Firstly, whether the Note appended to the statutory rules can be given effect to in the event, it whittled down or runs counter to the enabling provision or to be so construed to give harmony to the legislative intent and utilized for the purpose of interpretation of the enabling provision. Secondly, whether the Tribunal/Court can usurp the legislative functions in directing the appropriate legislation to be framed by the competent authority or in other words whether the mandamus cannot issue upon the legislative authority to promulgate a Rule or bring amendments thereto. Point 1: 13. The aforesaid point has arisen because of the unique features discerned from the working of the Public Health Engineering Department where the utility of civil, electrical and mechanical engineers are required. Point 1: 13. The aforesaid point has arisen because of the unique features discerned from the working of the Public Health Engineering Department where the utility of civil, electrical and mechanical engineers are required. By common examination for recruitment to the post of Sub-Assistant Engineer which is now designated as a junior engineer are conducted by the Public Service Commission from the candidates having requisite educational qualification in civil engineering, mechanical engineering and electrical engineering as the case may be. The candidates having an electrical, civil and mechanical engineering are required to undergo a written test in their respective subject through a same process of selection and the recommendations are made by the Public Service Commission on the basis of the merit of the candidates in their respective subject. 14. It is not in dispute that the candidate who qualified in the said common recruitment process offering their candidature in a civil engineer category are separately recommended so the case of the electrical and mechanical engineers. In the instant case, the Public Service Commission recommended the list of the meritorious candidate in the respective category for being posted in the post of Sub-Assistant Engineer in Public Health Engineering Directorate. The unique feature of the electrical and the mechanical category invited the attention of the authorities to put such candidates in the gradation list in order to ascertain the seniority in the same cadre. It is manifest from the pleadings of the respective parties that the nature of the work assigned to the mechanical and electrical engineer in relation to the pumping of the water which involved both the mechanical and electrical components, a common gradation list of the Sub-Assistant Engineer (Mechanical/ Electrical) was prepared. 15. The dispute arose when the merit was considered as a foundation for preparation of the said combined gradation list as each Government employee secured the merit position in their respective category but were placed below one and another on the basis of the date of joining. As indicated above, several proceedings were initiated by the respective parties and it is beyond cavil of doubt that the State Government has prevaricated its stands at the different stages; more particularly, when the tribunal directed to consider the representation and resolve the grievance raised by the aggrieved person. As indicated above, several proceedings were initiated by the respective parties and it is beyond cavil of doubt that the State Government has prevaricated its stands at the different stages; more particularly, when the tribunal directed to consider the representation and resolve the grievance raised by the aggrieved person. It would be manifest from the record that initially the combined gradation list of Sub-Assistant Engineer (Mechanical/Electrical) was prepared but subsequently, the same was withdrawn and a separate gradation list for Mechanical and Electrical Engineer was sought to be prepared which was also later on withdrawn thereby creating a confusion and/or impasse into such Government employees in relation to their seniority in the gradation list. By the impugned order of the tribunal sought to resolve such impasse and directed not only amendment of the Rules but issued writ of mandamus upon the authority to prepare a separate gradation list for Sub-Assistant Engineer (Mechanical) and Sub-Assistant Engineer (Electrical). 16. Both the contesting parties have relied upon the West Bengal Services (Determination of Seniority) Rules, 1981 promulgated by an authority of the Governor entrusted under proviso to Article 309 of the Constitution which came into effect on and from 11th March, 1981 Rule 4 of the said Rule of 1981 assumes a centre of debate with regard to the enabling provision and the Note appended thereto. The said Rule is quoted as under: “4. Determination of seniority of direct recruits:- The 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 selection being senior to those appointed on the result of a subsequent selection: Provided that where appointment of persons initially made otherwise than in accordance with the relevant recruitment rules is subsequently regularized in consultation with the Commission, where necessary, seniority of such persons shall be determined from the date of regularization 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: 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. Note: (1) A list of candidates for the purpose of selection for appointment shall be prepared in all cases by the selecting authority, when there will be recruitment in a single process of selection of more than one person. (2) 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 in the examination, passing of which is the qualification prescribed for recruitment to the particular post, cadre or grade. (3) In so far as the determination of relative seniority of persons selected either by the Commission or by other selection authority for appointment to different posts in the same grade with different qualifications such as posts of Assistant Professors in History, Economics, Physics, Chemistry, etc. is concerned, seniority shall be determined from the date of joining.” 17. For the purpose of clarity, it is recorded that the recruitment to the post of Sub-Assistant Engineer is made directly through competitive examination. The enabling provision of the said Rules provides that in such situation the inter se relative seniority of all such persons shall be determined by an order of merit in which they are selected for such appointment on the recommendation of the Public Service Commission or the Selecting authority as the case may be. The enabling provision of the said Rules provides that in such situation the inter se relative seniority of all such persons shall be determined by an order of merit in which they are selected for such appointment on the recommendation of the Public Service Commission or the Selecting authority as the case may be. The second proviso to the said Rule further provides that in the event, the selected candidate does not join the post within 2 months from the date of the offer of the appointment his seniority shall be counted from the date of which he joins the posts unless the appointing authority condones the delay for the reasons to be recorded in the writing. 18. What can be manifestly seen from the enabling provision of the second proviso appended thereto that the relative seniority shall be determined by an order of merit and not from the date of joining if the joining is within 2 months from the date of the letter of offer. However, power to condone the delay is also reserved upon the authority by recording the reasons in writing. There is no ambiguity in this regard that the relative seniority is to be determined by an order of merit and not from the date of joining if the same falls within the time limit given in second proviso thereto. However, the Note is appended to the aforesaid provision engulfing within its several eventualities wherein the Note 3 assumes significance and the parties are not ad idem on its applicability in the facts of the instant case. 19. By virtue of Note 3 to Rule 4 of the said Rule the relative seniority of a person selected for appointment to different posts in the same grade with different qualifications shall be determined from the date of the joining. The said Note also gives an example in order to bring more clarity into its applicability and its relevance in relation to the enabling provision. The word “Grade” appearing in the said Note is of wide import having varied shades of meaning in the service jurisprudence. It may sometimes connote pay scale; sometimes a cadre depending upon the intention of the Rules applicable in this regard. The word “Grade” appearing in the said Note is of wide import having varied shades of meaning in the service jurisprudence. It may sometimes connote pay scale; sometimes a cadre depending upon the intention of the Rules applicable in this regard. The aforesaid expression may lends support from the Constitution Bench decision rendered a case of A.K. Subraman and Others vs. Union of India and Others, (1975) 1 SCC 319 wherein it is held: “20. Now the question which arises for consideration is what is the meaning of the words ‘vacancies in the grade of Executive Engineer’ as used in the aforesaid paragraph of Rule 4(2). When does a vacancy in the grade of Executive Engineer arise? To answer this question it is necessary to ascertain what are the posts which the grade of Executive Engineer consists of, for the vacancies can only be in the posts in the grade of Executive Engineer. The word ‘grade’ has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously used in the sense of cadre. A cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts. To give one example, the cadre of Income Tax Officers, Class I, Grade II, as pointed out by this Court in Bishan Sarup Gupta vs. Union of India in Para 18 of the report, consisted of ‘permanent and temporary posts’. Here in the present case it has been stated on oath by P.B. Kulkarni, Under Secretary to the Ministry of Works and Housing, in paragraph 7 of his Affidavit-in-reply at page 252 of the Paper Book that the available vacancies obviously being in the permanent and temporary posts in the grade of Executive Engineer. Paragraph 23 of the same Affidavit-in-reply at page 257 of the record is also to the same effect: ‘I say that there are permanent and temporary posts sanctioned in the grade of Executive Engineer’. It is, therefore, clear that the cadre of Executive Engineer consists both of permanent posts and temporary posts. Even from the statement of sanctioned strength of Engineering Officer Class I, Central P.W.D. from 1960 to 1972 filed by the Solicitor General in the course of argument it is apparent that the cadre includes both permanent and temporary posts. It is, therefore, clear that the cadre of Executive Engineer consists both of permanent posts and temporary posts. Even from the statement of sanctioned strength of Engineering Officer Class I, Central P.W.D. from 1960 to 1972 filed by the Solicitor General in the course of argument it is apparent that the cadre includes both permanent and temporary posts. Whenever, therefore, a vacancy arises in a permanent post or in a temporary post it would be a vacancy in the grade of Executive Engineer and the quota rule for promotion would apply.” 20. Even if it is construed that the “Grade” not only includes the pay scale but sometimes the cadre depending upon the object and purpose of the applicable rules yet the question which required an answer in the instant case is whether the such note if it runs contrary to the spirit of the enabling provision can be given effect to in a specific situation for which it is a Note. 21. In T.G. Shivacharana Singh and Others vs. State of Mysore, AIR 1965 SC 280 , the Constitution Bench of the Supreme Court was considering a case where a writ petition under Article 32 of the Constitution of India was filed by several persons challenging the validity of Note 1 to Rule 285 of the Mysore Civil Services Rules, 1958 wherein the said Rule provides that a retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for 30 years or such less time as the case may be, for any class of Government servants as may be prescribed. The Note 1 appended thereto confers power upon the Government to retire any Government servant any time after he has completed 25 years of qualifying service or on attaining 50 years of age as special case if it is necessary in the public interest. Upholding the applicability of Note 1 to Rule 285, the Apex Court held that even the normal age of retirement envisaged under Rule 95 (a) of the said Rules is 55 years yet the Rule 285 and the Note appended thereto confers power upon the Government to enforce pre-mature retirement in the following: “4. Upholding the applicability of Note 1 to Rule 285, the Apex Court held that even the normal age of retirement envisaged under Rule 95 (a) of the said Rules is 55 years yet the Rule 285 and the Note appended thereto confers power upon the Government to enforce pre-mature retirement in the following: “4. It would thus be clear that though the normal age of retirement under Rule 95 (a) is 55 years, under Rule 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest. This power can, however, be exercised only in cases where the government servant has completed 25 years qualifying service or has attained 50 years of age. In other words, ordinary retirement by superannuation occurs after attaining 55 years or completing 30 years’ service, which premature retirement can be forced on the government servant if he has either completed 25 years of service, or has attained 50 years of age. In the case of premature compulsory retirement, the government servant is entitled to pension as indicated in Note 1 to Rule 285.” 22. In the case of Samurai Electronics Pvt. Ltd. and Another vs. Municipal Council and Another, (1998) 2 SCC 707 , the Apex Court held that the Note being a part of the Rule should be construed as such in the following: “1. The only question that falls for consideration in this appeal is whether customs duty and landing charges are to be included in the value for the purpose of imposition of octroi duty by Respondent 1-Municipal Council. We have perused Rule 14 relating to determination of the value of goods for assessment of octroi, framed by Respondent 1. Clause (2) of the said Rules is in these terms: (2) All goods, on which an ad valorem octroi is leviable will be taxed according to their full value as given in the original bill or invoice (Bijak). Note: Full value includes all taxes or excise duty and charges but does not include railway freight, commission or other incidental charges on the goods. 2. The note expressly indicates that all taxes are to be included in the value which means that customs duty is included in the value for the purpose of imposition of octroi duty. Note: Full value includes all taxes or excise duty and charges but does not include railway freight, commission or other incidental charges on the goods. 2. The note expressly indicates that all taxes are to be included in the value which means that customs duty is included in the value for the purpose of imposition of octroi duty. The note is a part of the rule which must be construed accordingly. In these circumstances we do not find any infirmity in the impugned judgment. The appeal is, therefore, dismissed. No order as to costs.” 23. The Constitution Bench decision rendered in a case of Tara Singh and Others vs. State of Rajasthan and Others, (1975) 4 SCC 86 throws light on the nuances of the Note in conjunction with the enabling provision. The Constitution Bench held that the Notes when promulgated along with the Rules in exercise of legislative powers it is intended to provide a procedure and to control discretion it is aimed to guide the authorities in dealing with the situations and circumstances whether Rules are silent. Above all, it is intended to fill up the gaps noticed in the interpretative process and to ascertain the true impact of the Rules which contained the enabling provision in the following: “25. In the present case, the notes are part of the rules because they are for the guidance of the authorities. They are not inconsistent with the rules but are intended to fill up gaps where the rules are silent. The only question here is that formerly the rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the old rule. The deletion of that part of the rule does not mean that the orders of compulsory retirement are not made in public interest. The notes to the rule make explicit what is implicit in the rules.” 24. It is gathered from the aforesaid observation of the Constitution Bench that the Note being a part of the legislation and sees his birth along with the promulgation of the Rules is a guiding tool to the authorities in giving effect to the objective sublime incorporation thereof and intended to fill up the gaps if found in the enabling provision. It is gathered from the aforesaid observation of the Constitution Bench that the Note being a part of the legislation and sees his birth along with the promulgation of the Rules is a guiding tool to the authorities in giving effect to the objective sublime incorporation thereof and intended to fill up the gaps if found in the enabling provision. It may sometimes be used to interpret the enabling provision in a given situation to uphold the legislative intent in order to achieve the effective result. The Notes are sometimes used as clarificatory or explanatory without diluting the spirit of the main provision to which it is a note, sometimes the note is appended to give a meaning to the word or the expression used in the enabling provision in order to give an effectual meaning thereto and, therefore, have varied meaning to be understood in juxtaposition with the spirit object, purpose and the intention of the legislature incorporating the statutory provisions. It is, thus, apparent that the Note appended to a statutory provision is to be read in the context of the substantive provision and not in derogation therewith as held in a case of V.B. Prasad vs. Manager, P.M.D. Upper Primary School and Others, (2007) 10 SCC 269 . 25. Even in case of Rai Sudhir Prasad vs. State of Bihar and Others, (2004) 13 SCC 25 , the Apex Court held that the note appended to a rule if runs counter to the spirit of the substantive provision cannot be given effect to but a harmonious construction is required provided it does not offend the enabling provision in the following: “16. A note to a rule cannot derogate from the explicit words of the substantive provision and must be read as explanatory and in harmony with it. The substantive provision is Rule 103 (b) and the relevant note is Note 4, both of which clearly provide for additional pay at 20% of the pay of the officiating post. These provisions entitle the appellant to additional pay of the post of both Medical Superintendent and Principal.” 26. What can be culled out from the above discussion that note being a part of the legislative provisions is to be given its full effect provided it does not offend the explicit words and the legislative intention behind the incorporation of the enabling provision. What can be culled out from the above discussion that note being a part of the legislative provisions is to be given its full effect provided it does not offend the explicit words and the legislative intention behind the incorporation of the enabling provision. It is used as an explanatory and/or clarificatory tool and sometimes to give effect to the enabling provision as an additional tool to uphold the legislative intent. The effect of the note is not diluted as it is a note simplicitor but assumes the statutory character in a limited sphere and intended to fill up the gaps or to effectuate the applicability of the enabling provision in special and exceptional circumstances. The moment the note is appended along with the enabling provision at the time of promulgation of the Rule, the applicability has to be ascertained as the legislatures does not use any words unnecessary nor incorporate any provision which runs counter to the enabling provision. 27. At the time of promulgation of the rules all conceivable circumstances cannot be visualized, yet the moment the note is incorporated simultaneously or contemporaneously with the enabling provision it has to be understood and given effect to effectuate the meaning of the enabling provision. Ordinarily the note is distinct from proviso which are primarily used to control the enabling provision or sometimes used as clarificatory or explanatory. Since it is not a case where there is any dispute with regard to the applicability of the proviso, we did not venture to deal with the judgments cited by the appearing Counsels on the nuances of the proviso appended to an enabling provision. 28. Bearing in mind the broad principles enunciated from the above report it is examined whether Note 3 to Rule 4 abridges or whittle down or runs counter to the enabling provision contained in the said rule. There is no infirmity in understanding that the relative seniority of a person appointed directly through a competitive examination shall be determined by order of merit in which they are selected on the recommendation of the Public Service Commission or by selecting authority and the person who have been selected through the same process at an earlier point of time shall be placed in a position above the persons who have been selected in a subsequent selection process. The second proviso is explicit in the sense that the period of joining is provided therein which is capable of being condoned by a competent authority upon recording the reasons in writing. The examples given in Note 3 of Rule 4 is to be seen in the perspective of the present case. The said Note 3 indicates that in the event, the post of the Assistant Professors in various subjects are appointed in a same selection process as they have different qualifications, then in such event, the seniority shall be counted from the date of joining. The case in hand would show that the common competitive examination was conducted to appoint a person to the post of Sub-Assistant Engineer in the said directorate having different qualifications and emerged successful in a relevant subject in which they have acquired qualification. The post of the Sub-assistant Engineer is a feeder post to the Assistant Engineer in the Public Health Engineering Directorate and the silver line may be found from the Rules promulgated on December 10, 1994 for regulation of recruitment to and the condition of service in the engineering services (Mechanical/Electrical) of the Public Health Engineering Directorate. The Rule 6 relatable to the Assistant Engineer indicates a combined cadre of an Assistant Engineer (Mechanical/Electrical) to be filled up by direct recruitment and by promotion amongst the concerned Sub-Assistant Engineer (Mechanical), Sub-Assistant Engineer (Technical) or Electrical Supervisor. The eligibility criteria enshrined therein indicate the manifest intention of the legislature that the promotion to the rank of Assistant Engineer shall be made from the Sub-Assistant Engineer (Mechanical/Electrical), Supervisor provided they fulfil the conditions incorporated therein. The intention is laudable because of the unique nature of the work and precisely for such reason the combined gradation list was prepared in order to determine the relative seniority amongst the Sub-Assistant Engineers (Mechanical/Electrical). Note 3 to Rule 4 is clarificatory and explanatory and applies to a situation like the one before us and, therefore, cannot be regarded as operating in derogation with the enabling provision. The said note has its applicability to a specific situation and, therefore, has its applicability to effectuate the legislative intentions and cannot be regarded to offending the enabling provision. Point 2: 29. The said note has its applicability to a specific situation and, therefore, has its applicability to effectuate the legislative intentions and cannot be regarded to offending the enabling provision. Point 2: 29. It is not in dispute that the West Bengal Services (Determination of Seniority) Rules, 1981 promulgated in exercise of power under Article 309 of the Constitution of India by the Governor has a statutory force and applicable in the instant case. The said Rule was intended to be promulgated in order to ascertain the seniority amongst the persons selected for a post which would be evident from the object and the purpose sublime its incorporation. Rule 4 of the said Rules which is a centre of debate in the instant case postulates that the relative seniority of persons appointed directly through competitive examination shall be determined by order of merit in which they are selected for appointment on recommendation of the Commission. Two provisos have been inserted therein, wherein the first proviso relates to the seniority of the persons whose appointment was subsequently regularized which is of no relevance in the present context. The second proviso provides that if any person selected for appointment to any posts does not join within two months from the date of the offer of appointment his seniority shall be counted from the date on which he joins the posts unless the appointing authority for reasons to be recorded in writing condones the delay. Note 3 appended thereto which assumes significance in the present context provides the determination of relative seniority of persons selected by the Commission for appointment of different posts in the same grade with different qualifications and in this regard the seniority shall be determined from the date of joining. The Tribunal after noticing the aforesaid provisions surreptitiously jump to the conclusion that Note 3 of Rule 4 of the Seniority Rules of 1981 is not applicable and further held that there should be two separate cadres; one for Sub-Assistant Engineers (Mechanical) and other for Sub-Assistant Engineers (Electrical) to be prepared and should not be included in the single gradation list as their names were not recommended by the Public Service Commission in a common merit list. Even for the sake of argument, it is construed that Note 3 of Rule 4 of the Seniority Rules, 1981 has no manner of application, the only course open to the Tribunal/Court was to apply the substantive provision contained in Rule 4 of the said Rules and the direction in this regard appears to have transgressed the powers and the jurisdiction. 30. In Mallikarjun Rao (supra), the Apex Court has cautioned the Tribunal or Court to usurp the legislative function or to issue a direction or advisory sermons to the executive in respect of the matter within the exclusive domain of the executives under the Constitution in these words: “11. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word “advisable” while making the observations. It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scowlingly to any such advice. 12. This Court relying on Narinder Chand Hem Raj vs. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and State of Himachal Pradesh vs. A Parent of a Student of Medical College, Simla, held in Asif Hameed vs. State of Jammu and Kashmir as under: (SCC p. 374, Para 19) “When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate Bench of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate Bench of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advice the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive........” 13. The Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.” 31. It has been enunciated in the above report that the Tribunal should confine its determination to examine the decision of the State under challenge within the contour of the legislative or the statutory provisions and should not transgress its jurisdiction into the executive or the legislative domain of an authority entrusted under the Constitution nor the Court or the Tribunal should mandate the State to legislate the law in exercise of power under Article 309 of the Constitution of India which is to be exercised by the President or the Governor of a State as the case may be. Therefore, directing the separate gradation list to be prepared when the regulation in this regard was promulgated by the Governor in exercise of power under Article 309 of the Constitution of India by notification dated December 10, 1994, the aforesaid direction of the Tribunal is contrary to the judgment of the Supreme Court and therefore, cannot be sustained. 32. In view of the discussions made hereinabove the impugned order of the Tribunal cannot be sustained. The same is hereby set aside. 32. In view of the discussions made hereinabove the impugned order of the Tribunal cannot be sustained. The same is hereby set aside. Since the private respondents have been promoted to the post of Assistant Engineer, such promotion shall not be disturbed. However, in the event the petitioners are not promoted to such posts, though it is claimed that they are now, the inter se seniority of the petitioner vis-a-vis the private respondents shall be determined strictly in terms of Note 3 to Rule 4 of the said Rules. The entire exercise shall be completed within a span of 4 weeks from date. The writ petition is allowed. 33. No order as to costs. I agree - Prasenjit Biswas, J.