For The vs Union
2021 Latest Caselaw 4097 Cal

Dl.   August 6,
10.    2021
                                   Through Video Conference

                                      W.P.C.T. 124 of 2015

                              Mr. Piyush Chaturvedi,
                              Mr. Anujit Mookherji,
                                   ...for the petitioner.

                              Mr. A. K. Chattopadhyay,
                                   ...for the respondent no. 2.

Ms. Chaitali Bhattacharyya, Mr. Subhendu Roy Chowdhury, ...for the State.

The writ petition is at the instance of one Sri Gurupada

Konar, whose prayer for promotion under the Indian Administrative

Services for the vacancies which arose in the year 2004 amongst the

eligible West Bengal Civil Services (Executives) officers was

denied.

The matter has a chequered history. The writ petitioner

initially approached the Central Administrative Tribunal in the year

2006 by way of an original application being O.A. 230 of 2006

praying for review of the selection process in Indian Administrative

Services for the year 2003-04 in accordance with the Indian

Administrative Services (Appointment by Promotion) Regulations,

1955. Initially, the tribunal denied the right to get the promotion by

the petitioner. The said order was challenged by the State of West

Bengal in W.P.C.T. 765 of 2006 before a co-ordinate bench of this

court. The said writ petition was disposed of by the co-ordinate

bench on January 31, 2007 by quashing the aforesaid proceeding in

Original Application No. 230 of 2006.

Upon being moved before the Hon'ble Supreme Court

by way of a special leave petition, the Hon'ble Supreme Court, by

its judgment and order dated July 30, 2007, set aside the order dated

January 31, 2007 and remanded the matter for hearing before the

co-ordinate bench. The Hon'ble Supreme Court requested the co-

ordinate bench to hear out the original application (O.A. 230 of

2006) filed by Gurupada before the Central Administrative

Tribunal.

The original application was heard by the co-ordinate

bench. Before the co-ordinate bench, the Union Public Service

Commission contended that the present writ petitioner was found to

be "very good". However, on overall consideration the writ

petitioner was not selected in view of his position at serial no. 21 in

accordance with the seniority list furnished by the State

Government. According to Union Public Service Commission, this

appears to be the precise reason for non inclusion of the petitioner's

name in the select list. The co-ordinate bench observed that it has

not been stated by the Union Public Service Commission in its

affidavit what would be the position of the petitioner in the final

select list judging by an overall relative assessment going by sub-

regulation (5) of Regulation 5 of the Indian Administrative Services

(Appointment by Promotion) Regulations, 1955. It was observed

that the Union Public Service Commission as well as the committee

has mechanically accepted the seniority list forming the basis for

recommendation and selection finally. In that context, the following

direction was passed by the co-ordinate bench :-

"In view of this vague and inaccurate statement on oath

we cannot say that the final select list and consequently

recommendations of the candidates in 2004 was done

correctly unless it is made specifically clear by UPSC.

We, therefore, direct the UPSC to give a chance of

hearing to the applicant and give him access to all the

records relating to the list prepared by the Committee

and the final select list prepared by UPSC. Upon

hearing and considering if it is found that the seniority

list prepared by the Committee is not done as per norms

and observation made by us, it must be reassessed

under sub regulation (5) considering his performance.

In the process, if the applicant comes amongst first 10

candidates then he must be selected notionally with

retrospective effect from the year 2004 as if he were

selected. However, by this, we do not mean to say that

position of those candidates who have been selected

already should be disturbed. Naturally, added

respondents' position shall not be disturbed. The

applicants' appointments if found selected, is to be

adjusted against the vacancy of the next year. However,

the applicant shall be given all notional benefit

consequent upon appointment, if he is found to have

been ignored going by the norms laid down in the

aforesaid sub regulation (5). Aforementioned exercises

must be completed within two months from the date of

communication of this order."

The matter was thus disposed of.

On March 12, 2009, in purported exercise carried out

by the Union Public Service Commission in terms of the aforesaid

order, the Commission reiterated its stand that the selection for the

year 2004 has been held in accordance with the Promotion

Regulations and, as such, no change in the recommendation was

warranted.

Being aggrieved by such communication, the writ

petitioner filed Original Application No. 691 of 2010 on March 22,

2010 challenging the aforesaid order dated March 12, 2009 passed

by the Union Public Service Commission. During the pendency of

such application before the tribunal, the writ petitioner, on June 16,

2011 obtained information from the Department of Personnel and

Training, Ministry of Personnel, Public Grievances and Pension,

Government of India, under the Right to Information Act,

wherefrom it appears that thirteen (13) vacancies arose for the year

2004 (from January 1, 2004 to December 31, 2004) against which

the select list was prepared. Department of Personnel and Training

also informed that the select list for the year 2004 was prepared

against ten (10) vacancies that arose in the year 2003 (from January

1, 2003 to December 31, 2003). The said two documents were

brought to the notice of the tribunal during the first hearing held on

August 10, 2011. The tribunal dismissed the said original

application being O.A. 691 of 2010 on the ground of res judicata

and non joinder of parties.

However, the said order of the tribunal was set aside on

September 5, 2014 in W.P.C.T. 75 of 2013 and the matter was

remanded to the tribunal with a direction to decide the matter on

merits.

In course of hearing before the tribunal, on March 13,

2015, the writ petitioner submitted the documents obtained under

the Right to Information Act. The tribunal, on May 11, 2015

directed the State to produce annual confidential report of the

petitioner for the years from 1999 to 2003. The tribunal, on

consideration of materials on record, observed that the respondent

authorities having followed the procedure with regard to promotion

as laid down in Indian Administrative Service (Appointment by

Promotion) Regulation, 1955 and it could not be said that any

irregularity was committed in the selection process and, as such,

dismissed the original application.

This order of the tribunal has been challenged in the

instant writ petition.

The writ petition was admitted as the writ petitioner has

made out an arguable case.

We have heard the learned advocates appearing on

behalf of the parties. The undisputed fact that has emerged from the

materials placed before us is that the petitioner was born on January

3, 1950 and was below the age of 54 years as on January 1, 2004

when the vacancy for the year 2004 arose. By reason of Regulation

5(3) of the Indian Administrative Service (Appointment by

Promotion) Regulation, 1955, he is entitled to be considered for

promotion against the vacancies that occurred in the year 2004. The

selection committee meeting was held on November 8, 2005 for the

purpose of preparation of selection list for the vacancies which

arose in the year 2004 could not have ignored the petitioner as he

was admittedly below the age of 54 years as on January 1, 2004

when the vacancy arose. The cut off date of January 1, 2005 for the

purpose of filling up the vacancy for the year 2004 is contrary to the

rules and regulations produced before us. This is also an admitted

position as borne out from records that the performance of the

petitioner was "very good" and the persons, who have been given

the benefit of promotion, are also having the same remarks as that

of the writ petitioner. The only reason for not granting him the

promotion was an erroneous interpretation of Regulations 5(1) and

5(3) of the Indian Administrative Service (Appointment by

Promotion) Regulation, 1955. The detailed order passed by the

Union Public Service Commission in purported implementation of

the order passed by the co-ordinate bench of this court appears to

have ignored the basic facts.

Mr. Piyush Chaturvedi, learned advocate appearing on

behalf of the writ petitioner, has relied on a division bench

judgment of the High Court of Punjab and Haryana at Chandigarh

in C.W.P. 15798 of 2009 in the case of Parveen Kumar vs. Union

Public Service Commission and ors. decided on February 1, 2010

for the purpose of showing that these regulations came up for

consideration before the Hon'ble Division Bench which has taken

the same view that we have taken as the effect of any contrary

interpretation would be that officers like the petitioner would be

deprived from entering the zone of consideration without any fault

of theirs. The meeting of the Selection Committee is immaterial

unless it falls within the first proviso of Regulation 5(1), which is

not the case here. In view of the admitted position that he was

within the zone of consideration in the select list for the year 2004,

the authorities could not have ignored the writ petitioner by wrongly

applying such Regulation.

In absence of any document to show that the writ

petitioner was otherwise found to be unsuitable for the promotion

and the only reason for which he was not considered for promotion

was the age bar, which does not apply to the writ petitioner, we set

aside the order of the tribunal dated June 1, 2015 and the order

passed by the Union Public Service Commission on March 12,

2009.

By reason of the aforesaid order, the writ petitioner is

entitled to the benefits of the decision of the co-ordinate bench

rendered on August 8, 2008, the relevant portion of which has been

set out earlier. The writ petitioner is directed to be selected

notionally with retrospective effect from the date when his juniors

were promoted. The writ petitioner shall be given all benefits

consequent upon his notional appointment within a period of three

months from date.

The writ petition is, thus, succeeds without, however,

any order as to costs.

Photostat certified copy of this order, if applied for, will

be made available to the applicant within a week from the date of

putting in the requisites.

( Soumen Sen, J. )

( Hiranmay Bhattacharyya, J. ) dns