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2023 DIGILAW 929 (CAL)

Milan Kumar Santra v. State of West Bengal

2023-06-14

DEBANGSU BASAK, MD.SHABBAR RASHIDI

body2023
JUDGMENT : (Debangsu Basak, J.) : 1. Three writ petitions are taken up for consideration as they emanate out of the same order of the learned Tribunal passed in two Original Applications. 2. The issues falling for consideration in the three writ petitions may be enumerated as follows:- “(i) Whether irregularly appointed employees subsequently regularised on October 19, 2005 and working as District Statistical Officer and Assistant Statistician with the West Bengal Statistical Service promoted to the post of Assistant Director/Statistician of West Bengal Statistical Service can claim seniority to persons who were appointed as District Statistical Officer and Assistant Statistician from 1995 onwards and promoted to the post of Assistant Director/Statistician? (ii) What would be the interpretation of Rules 4 and 55 of the West Bengal Services (Determination of Seniority) Rules, 1981 in the facts of the present case?” 3. As noted above, there are three writ petitions. The Tribunal was faced with two Original Applications. Largely, the writ petitioners before us can be classified in to two categories. One category is “irregularly appointed” employees whose appointment commenced from 1986 onwards as District Statistical Officer and Assistant Statistician. They were also granted promotions to the post of Assistant Director/Statistician from time to time. 4. The other group of writ petitioners were appointed through a selection process to the post of District Statistical Officer and Assistant Statistician. However, their appointments were later in point of time than the irregular appointees. The second group of writ petitioners were also promoted to the post of Assistant Director/Statistician. 5. A draft gradation list of Assistant Director/Statistician was published. In such draft gradation list, the group of persons who were irregularly appointed was placed prior to the group of writ petitioners who were appointed through a regular selection process. When the final gradation list was published, the sequence was reversed, that is to say, persons who were regularly appointed in the initial post and subsequently promoted were placed prior to those persons who were irregularly appointed to the initial post and subsequently promoted, in the final gradation list. 6. The contention is that, reading Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 with the letter of regularisation dated October 19, 2005, the irregular appointees were regularised with retrospective effect from the date of their initial appointment. 6. The contention is that, reading Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 with the letter of regularisation dated October 19, 2005, the irregular appointees were regularised with retrospective effect from the date of their initial appointment. Since, their initial appointments were prior in point of time than the regular appointees, they must find place in the gradation list prior to the regular appointees. 7. Relevant portion of Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 is as follows:- “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 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 regularisation 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.” 8. In our understanding, the relevant portion of Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 contains two provisions. The first paragraph, relates to relevant seniority amongst regular appointees. The proviso to the first paragraph relates to appointees whose appointments were regularised. 9. The proviso to the first paragraph of the Rules of 1981 states that, where appointment of persons initially made otherwise than in accordance with the relevant recruitment Rules, was subsequently regularised in consultation with the Commission, where necessary, seniority of such persons shall be determined from the date of regularisation and not from the date of appointment. 10. Such provisions are clear on a plain reading thereof. The date for reckoning of seniority between an irregular appointee whose appointment was regularised and a person who was appointed on a regular basis, would be for the purpose of an irregular appointee the date of regularisation and for the purpose of regular appointee, the date of appointment of the regular appointee. The date for reckoning of seniority between an irregular appointee whose appointment was regularised and a person who was appointed on a regular basis, would be for the purpose of an irregular appointee the date of regularisation and for the purpose of regular appointee, the date of appointment of the regular appointee. Inter-se seniority amongst the irregular appointees will depend on the date of appointment of such irregular appointees. Initial date of appointment of an irregular appointee would be of no consequence in determining seniority between a regular appointee and an irregular appointee. The relevant date for reckoning seniority for the irregular appointee would be the date of regularisation. The regularisation does not relate back to the date of initial appointment for them. 11. In the facts of the present case, the draft gradation list took into account, the initial appointment of the irregular appointees as also of the regular appointees. It therefore placed the irregular appointees ahead of the regular appointees. 12. With the deepest respect, draft gradation list was therefore, incorrect and not in consonance with Rule 4. 13. The subsequent final gradation list, was in consonance with Rule 4 of the Rules 1981. It placed the regular appointees first in accordance with the date of appointment and thereafter placed irregular appointees subsequent to their regularisation with effect from October 19, 2005. Inter-se seniority amongst irregular appointees were taken on the basis of their initial appointment again which is provided in Rule 4 of Rules of 1981. 14. By the impugned order, the learned Tribunal noted that, the irregular appointees were allowed to withdraw salaries which otherwise they were not entitled to on the basis of the draft gradation list which was prepared and brought into effect prior to the disbursement of the pay benefits to the irregular appointees. 15. In such circumstances, the learned Tribunal thought it prudent to protect the overdrawn amount and the pay received by the irregular appointees over the period of time. 16. Apparently, the irregular appointees discharged functions at the relevant post over a given period of time. Asking them to refund the overdrawal amount at this stage would be harsh on them. Therefore, we deem it appropriate that we continue with the pay protection granted by the learned Tribunal as recorded in the impugned order of the learned Tribunal. 17. 16. Apparently, the irregular appointees discharged functions at the relevant post over a given period of time. Asking them to refund the overdrawal amount at this stage would be harsh on them. Therefore, we deem it appropriate that we continue with the pay protection granted by the learned Tribunal as recorded in the impugned order of the learned Tribunal. 17. So far as the irregular appointees who retired from services, the authorities will grant them pension in terms of the impugned order of the Tribunal granting them the pay protection. 18. Learned advocate appearing in support of the writ petition being WPST 68 of 2021, that is the regular appointees, rely upon Rule 55 of Service Rules and in particular to sub-rule (4) thereof. He contends that, since the irregular appointees drew salary at a particular rate the regular appointees should be granted the same rate from the date of the disbursement of such salary to the irregular appointees and the pay package of the regular appointees be refixed in terms of Rule 55(4) of the Service Rules. He submits, since the regular appointees were acknowledged to be senior to the irregular appointees the terms of Rule 55(4) of the Service Rules will apply. 19. We gave our anxious consideration to the contention raised on behalf of the regular appointees. We find that there was a draft gradation list for the post of Assistant Director/Statistician. Payment of salary at a particular rate to the irregular appointees is sought pinned as the starting point for consideration of pay to regular appointees claiming that they are entitled to higher pay. 20. Such contentions of the regular appointees is falacious in the facts and circumstances of the present case. Both the irregular and regular appointees were validly promoted to the post of Assistant Director/Statistician. None officiated at such post. Regularisation of the irregular appointees validated the promotion granted to them. The draft gradation list was reworked and a final gradation list was published. In the final gradation list the regular appointees were placed ahead of the irregular appointees. The mistake committed by the State in preparation of the draft gradation list was corrected by the final gradation list. Regularisation of the irregular appointees validated the promotion granted to them. The draft gradation list was reworked and a final gradation list was published. In the final gradation list the regular appointees were placed ahead of the irregular appointees. The mistake committed by the State in preparation of the draft gradation list was corrected by the final gradation list. While the mistake remained between the draft and the final gradation list, due to their promotion to the subsequent post the irregular appointees were granted certain pay benefits which was protected by the Tribunal and by us also. 21. Rule 55(4) deals with a person officiating to a post. It does not contemplate a situation of a person in the substantive post. In the facts of the present case, both the regular and irregular appointees were appointed to a substantive post. Both were promoted to a substantive post of Assistant Director/Statistician. The irregular appointees were not and cannot be said to be officiating in the substantive post on their promotion. Subsequent to their regularisation their promotion was also validated. 22. In such perspective, we do not find that the regular appointees can justifiably claim refixation of their pay package in terms of the wrong committed by the State during the preparation of the gradation list. The claim of the regular appointees in such aspect in our view is one of negative equality which they are not entitled to. We are, therefore, unable to accede the request made by the regular appointees. 23. We clarify that the regular appointees are entitled to their pay in terms of the final gradation list. 24. With the aforesaid observations three writ petitions being W.P.S.T. 80 of 2021, W.P.S.T.68 of 2021 and W.P.S.T. 81 of 2021 are disposed of. 25. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.