Calcutta High Court (Appellete Side)
Subir Nag vs Nazrul Islam And Others on 7 April, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Kausik Chanda
M.A.T. No. 1038 of 2019
SUBIR NAG
-VERSUS-
NAZRUL ISLAM AND OTHERS
For the appellant : Mr. Rabilal Maitra, Sr. Adv.,
Mr. Debabrata Roy, Adv.,
Mrs. Karabi Roy, Adv.,
Mr. Souvik Mondal, Adv.,
Ms. Sarbani Mukhopadhyay, Adv.
For the respondent no.1/writ : Mr. Debabrata Saha Roy, Adv.,
petitioner Mr. Indranath Mitra, Adv.,
Mr. Subhankar Das, Adv.
For the State respondents : Mr. Rajarshi Basu, Adv.,
Mr. S.T. Mina, Adv.
For the Nadia Zilla Parishad : Mr. Amitava Chaudhuri, Adv.,
Mrs. M. Chaudhuri, Adv.,
Mr. N. Roy, Adv.
Hearing concluded on : 24.03.2022
Judgment on : 07.04.2022
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Kausik Chanda, J.:-
The dispute between the appellant and respondent no.1 revolves around
an appointment to a promotional post namely, Head Assistant under the Nadia
Zilla Parishad.
2. The relevant undisputed facts may be summarised as follows.
3. The appellant was initially appointed as a Lower Division Assistant on
July 3, 1990. Thereafter he was promoted as an Upper Division Assistant with
effect from July 2, 2008. The respondent no.1 was appointed as a Lower
Division Assistant on November 17, 1999, and he was also promoted as an
Upper Division Assistant with effect from the same date. In the gradation list,
however, the appellant was placed above respondent no.1 on the basis of his
seniority as per the initial date of appointment.
4. The relevant Zilla Parishad, thereafter, initiated the proceedings for the
appointment of Head Assistant, which was the next promotional post from
Upper Division Assistant.
5. When the admit cards were issued to the prospective candidates, it was
mentioned therein that the recruitment will be in terms of the notifications
no.2247/PN/O/3R-2/96 dated 20 th May 1997 and no.3734/PN/O/III/2E-
62/09 dated 3rd July 2012 of P&RD Department, Govt. of W.B.
6. In terms of the said circular dated July 3, 2012, a written test was held
wherein the appellant scored 20 marks out of 50 and respondent no.1 scored
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31.5 marks. Despite scoring above the appellant, the Zilla Parishad issued an
appointment letter to the appellant on the basis of a clarification dated May 2,
2017, from the Panchayat & Rural Development Department advising the Zilla
Parishad to promote the appellant "owing to seniority in terms of this
Department's Order No.3734/PN/2E-62/09 dated 03.07.2012."
7. Respondent no.1, thereafter, filed this writ petition seeking his
appointment to the post of Head Assistant. Following an interim order passed
in the said petition the appointment of the appellant to the said promotional
post was not given effect to.
8. The learned Single Judge by the order impugned dated April 17, 2019,
allowed the writ petition relying upon a judgment passed by another learned
Single Judge of this Court in WP No.15909(W) of 2013 (Chinmoy Dey v. The
State of West Bengal) and directed to promote the respondent no.1 with
consequential benefits.
9. The relevant part of the judgment rendered in Chinmoy Dey case is
quoted below:-
"The above observation is germane in the facts of the instant
case since the only point raised by the private respondent
no.6 as well as the North 24- Parganas Zilla Parishad is the
existence of the Government Order dated 3 rd July, 2012.
Relevant portion of the Government Order reads as follows:
"8) The written examination shall be only for the
purpose of screening and not for the purpose of
elimination nor for determining their seniority in
the promotional post. The seniority of promoted
candidates shall be determined solely on the
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basis of the position of the qualifying candidate
in the existing gradation list of the feeder post."
If one compares the above-quoted clause of the Government
Order with the relevant statutory Rule under Chapter II of
the West Bengal Panchayat (Recruitment and Conditions of
Appointment of Employees of Zilla Parishad) Rules, 1997,
with regard to method of recruitment, wherein it has been
clearly stated that in respect of Head Assistant, the method
of recruitment would be by way of promotion from amongst
the Upper Division Assistants and Accountants selected on
the basis of merit-cum-seniority, it would be clear that the
Government Order - to the extent which has been quoted
hereinabove - is wholly contradictory and contrary to the
statutory rule as applicable for promotion to the post of Head
Assistant. As such, the observations made by the Supreme
Court in Dr. Rajinder Singh's case (supra), as quoted
hereinbefore, are squarely applicable in the facts of the
instant case and there is no requirement of the petitioner to
challenge the Government Order dated 3 rd July, 2012,
separately.
...
In the facts of the instant case, it is noticed that on the basis
of the written examination held on 14th and 15th of May,
2013, the petitioner secured the highest score. Yet the
private respondent no.6 was chosen over the petitioner by
the concerned authority by referring to the Government
Order dated 3rd July, 2012, which, as discussed
hereinbefore, is wholly contradictory and contrary to the
statutory rule governing the field."
10. The learned Single Judge observed as follows:-
"Nothing has been brought to the notice of this Court that
the solemn Judgement and Final Order dated the 23 rd of
July, 2014 has been upset to revive the so-called GO dated
3rd July, 2012. This Court is therefore conscientiously urged
to hold that repeated references to the so-called GO dated 3 rd
July 2012 in similar individual fact situations, without the
said so-called GO dated 3rd July, 2012 being in any way
sanctified by law, would be a legally culpable exercise."
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11. In compliance with the said order of the learned Single Judge,
respondent no. 1 was appointed to the promotional post.
12. The appellant preferred this appeal and his interim prayer for the stay of
the operation of the order was refused by the Appeal Court on September 17,
2019.
13. When this appeal was taken up for final hearing before us, we were
informed that by that time the appellant had retired from his service.
14. Mr. Rabilal Maitra, learned senior advocate appearing for the appellant
submitted before us that it was known to all prospective candidates that
selection will be made in terms of the notification dated July 3, 2012.
Therefore, the writ petitioner/respondent no.1 after participation in the
selection process could not contend that said notification did not apply to the
selection process in question. The said order dated July 3, 2012, speaks for the
selection of a candidate on the basis of seniority if he obtains the qualifying
marks in the written examination. In the present case, admittedly, the
appellant was placed above respondent no.1 in the gradation list, and
therefore, the Zilla Parishad rightly appointed him to the said post considering
his seniority.
15. On the other hand, it has been submitted by Mr. Debabrata Saha Roy
that the order dated July 3, 2012, is not in conformity with the West Bengal
Panchayat (Recruitment and Conditions of Appointment of Employees of Zilla
Parishad) Rules, 1997. Mr. Debabrata Saha Roy submitted that the said rules
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speak of selection on the basis of merit-cum-seniority, but the order dated July
3, 2012, is in contradiction with the said principle. The order dated July 3,
2012, speaks of selection on the basis of seniority. Therefore, the learned
Single Judge rightly held that the said circular is in violation of the principle of
merit-cum-seniority.
16. Since the whole controversy, in this case, relates to the applicability of
the government circular dated July 3, 2012, it is necessary to quote the said
circular in-extenso.
"Government of West Bengal
Panchayats & Rural Development Department
63, N.S.Road, Jessop Building, Kolkata 700 001
Memo.No. 3734/PN/O/III/2E-62/09 Dated: 03 .07.2012
ORDER
Whereas promotional aspects in respect of the
employees of Zilla Parishad has been dealt with in the
Chapter -II of the West Bengal Panchayat (Recruitment and
Conditions of Appointment of Employees of Zilla Parishad)
Rules, 1997;
And whereas promotion is allowed on the basis of
merit-cum-seniority as envisaged in the said recruitment
rule;
And whereas method and policy of assessing merit of
the prospective candidates has not been defined in the said
rule;
And whereas a well-defined and clear cut guideline on
extending promotion on merit-cum-seniority basis is
required for the employees of Zilla Parishad;
Now, therefore after careful consideration of all aspects
and in exercise of power conferred under Rule 10 of the West
Bengal Panchayat (Recruitment and Conditions of
Appointment of Employees of Zilla Parishad) Rules, 1997,
the Governor is pleased to frame the following policy for
assessing the merit of Z. P. employees in Gr. B and C posts
for promotion on merit-cum-seniority basis.
l) The eligible candidates shall be required to appear in a
written test for 50 (fifty) marks for the purpose of
screening. The syllabus of such test will be as follows:-
a. The W.B. Panchayat Act, 1973.
b. The W.B. Zilla Parishad (Leave & Recruitment of
Staff) Rules, 1973.
c. D.C.R.B Scheme, 1985.
d. ROPA Rules for PRI Employees.
e. Reservation Policy.
f. Provident Fund rules for the employees of P.R. bodies,
1991.
2) The qualifying marks required for promotion shall be 15
out of 50 in the written screening test.
3) The APR of the candidates for last three years (1 st April
to 31st March) shall be considered at the time of
preparation of panel of prospective candidates.
4) 50 point roster shall be maintained strictly.
5) There should not be any break in service, vigilance case
or any adverse report including Disciplinary/Criminal
proceedings against the employee.
6) The prospective candidate must have submitted the
'Declaration of Assets as on 1st day of January' for last
three years before the competent authority within
scheduled date.
7) Number of candidates for the post will be five times of
the available vacancies. In case of insufficiency in
number of eligible candidates, the minimum
requirement may be waived off by the appointing
authority.
8) The written examination shall be only for the purpose of
screening and not for the purpose of elimination nor for
determining their seniority in the promotional post. The
seniority of promoted candidates shall be determined
solely on the basis of the position of the qualifying
candidate in the existing gradation list of the feeder
post.
9) If a candidate, being senior in gradation list, fails to
secure qualifying marks in the written test, shall not be
considered for promotion.
This order issues in supercession of previous
orders/clarifications in similar matter including memo. no.
155(361)P.N./O/cell III/2E-65/2004 dated 12 th January
2005 of this Deptt.
By order of the Governor
Sd/-
(Saurabh Kumar Das)
Principal Secretary
to the Govt. of West Bengal.
Memo. No. 3734/1(39)/PN/O/III/2E-62/09 Dated: 03.07.2012
Copy forwarded for information & necessary action to:-
1. The Commissioner, Panchayats & Rural Development Department.
2. The Joint Secretary (Policy Cell), Panchayats & Rural Development
Department.
3. The Joint Secretary (Law), Panchayats & Rural Development Department.
4. The Executive Officer, .................................. Zilla Parishad(All)/Siliguri
Mahakuma Parishad.
5. The Additional Executive Officer ...................Zilla Parishad (All)/Siliguri
Mahakuma Parishad.
Sd/-
OSD & Ex-Officio Deputy Secretary
to the Govt. of West Bengal
Panchayats & Rural Development Department"
17. We regret our inability to persuade ourselves to hold that the said
circular dated July 3, 2012, is contrary to the principle of merit-cum-seniority.
In our reading, the aforesaid circular does not provide for selection on the basis
of seniority, rather it gives due weightage to merit.
18. It was glossed over in Chinmoy Dey (supra) as well as by the learned
Single Judge that the circular provides for a two-fold merit test. Firstly, the
candidates are to be scrutinized on the basis of a qualifying written test for
50(fifty) marks. If a candidate secures less than 15(fifteen) marks, he will not
be considered for the promotion notwithstanding his seniority position in the
gradation list. The merits of the candidates, who have been screened having
secured the qualifying marks, have to be thereafter adjudged on the basis of
their last three years' annual performance report. The circular further clarifies
that the seniority of the promoted candidate shall be determined solely on the
basis of the position in the existing gradation list of the feeder post.
19. It is quite reasonable that in the case of in-service promotion, the merit
of a candidate should be adjudged on the basis of his recent past performance.
It is, inter alia, the evaluation of an employee's skill, ability, devotion, sincerity,
and sense of discipline by the superior officer. Therefore, the annual
performance of a candidate is one of the most important yardsticks for
consideration of his merit. In the case of in-service promotion, mere academic
knowledge of a candidate may not be the sole criterion to test his merit.
20. The relevant recruitment rules namely, West Bengal Panchayat
(Recruitment and Conditions of Appointment of Employees of Zilla Parishad)
Rules, 1997 provide for selection on the basis of merit-cum-seniority. The
principle of merit-cum-seniority has been explained by the Supreme Court in a
number of decisions. It has been held that in selection on the merit-cum-
seniority basis, the seniority will be considered only where the merit and ability
of the candidates are approximately equal. [See: (1995) Supp 1 SCC 434
(Sarat Kumar Dash v. Biswajit Patnaik) ].
21. Therefore, we are of the opinion that the circular dated July 3, 2012, in
fact, adheres to the principle of merit-cum-seniority and is not in violation of
the extant recruitment rules. The learned Judge, therefore, fell into error in
allowing the writ petition on the basis of the observations made in Chinmoy
Dey (supra).
22. In the present case, however, we find that the annual performance
reports of the prospective candidates were not at all considered. It is the stand
of the Zilla Parishad that there was no practice of maintaining the annual
performance reports of the employees. We are, therefore, not in a position to
assess the inter-se merit of the appellant and respondent no.1 on the basis of
their annual performance reports. The fact, however, remains that the
respondent no.1 scored higher marks than the appellant in the written test,
and in absence of annual performance reports, in the facts of this case, the
merits have to adjudged on the basis of the performance in the written test.
Admittedly, the respondent no. 1 performed better than the appellant in the
written test. The appellant has already retired from service. At this juncture,
therefore, we are not inclined to interfere with the direction of the learned
Single Judge, though we do not approve of the reasoning in the impugned
order.
23. Accordingly, M.A.T. No. 1038 of 2019 is dismissed.
24. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite formalities.
I agree.
(Arijit Banerjee, J.) (Kausik Chanda, J.)
