State Of West Bengal & Ors vs Sri Goutam Sural
2023 Latest Caselaw 4877 Cal

Form No. J(2)
                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi

                           WP.ST 212 of 2015

                       State of West Bengal & ors.
                                   VS.
                            Sri Goutam Sural


For the Petitioners        :   Mr. Tapan Kr. Mukherjee, Sr. Advocate
                               Mr. Pinaki Dhole, Advocate
                               Mr. Avishek Prasad, Advocate

For the Respondent         :   Mr. Subir Sanyal, Advocate

Mr. Suthirtha Das, Advocate Ms. Chandrani Bhattacharya, Advocate

Hearing on : 09.08.2023

Judgment on : 09.08.2023

DEBANGSU BASAK, J.:-

1. The writ petition is directed against an order dated May 11, 2015

passed by the West Bengal Administrative Tribunal in O.A.1280 of 2013.

2. By the impugned order, the Tribunal, directed the authorities to

grant the private respondent herein, notional seniority with reference to

his junior in the merit list for the purpose of Career Advancement

Scheme (CAS) benefit and promotion and also pay protection with

reference to his junior.

3. The writ petition is at the behest of the State.

4. Learned Senior Advocate appearing for the State submits that, the

writ petitioner initially participated in a selection process. He was found

to cross the upper age limit. Consequently, his candidature was rejected.

Subsequently, after litigation, by the judgement and order dated April 29,

2011 passed by the Hon'ble High Court in W.P.S.T.599 of 2009, the writ

petitioner was directed to grant the private respondent employment

forthwith. He submits that such judgment and order was complied with

and appointment letter was issued on December 15, 2011 to the private

respondent.

5. Learned Senior Advocate appearing for the writ petitioners submits

that, the seniority of the private respondent will commence from his

appointment and not from anterior date. In support of his contention he

relies upon (2000) 7 Supreme Court Cases 561 (Suraj Parkash Gupta

and others vs. State of J & K and others).

6. Learned Senior Advocate appearing for the writ petitioners submits

that, never ever, did the private respondent agitate the point of seniority

before any forum. Consequently, the claim for seniority or the claim that

the writ petitioner should be treated in service from an anterior date than

the date of his appointment is barred under the principles of res judicata

and/or principles akin to Order II Rule 2 of the Code of Civil Procedure,

1908.

7. Learned advocate for the private respondent submits that, the

private respondent participated in a selection process. He was unfairly

treated in the selection process by denying the appointment on the basis

of private respondent allegedly breaching the upper age limit. He submits

that, litigation ensued which ultimately resulted in the judgment and

order dated April 29, 2011 passed by the High Court in W.P.S.T.599 of

2009. The writ petitioners were directed to grant appointment to the

private respondent. However, appointment letter was not issued,

although, the private respondent was allowed to join the services. The

private respondent approached the Tribunal once again, by way of

O.A.1574 of 2012, where, two primary prayers were made namely,

issuance of formal appointment letter and secondly, protection of

seniority notionally. He draws attention of the Court to the order dated

June 26, 2013 passed by the West Bengal Administrative Tribunal in

O.A.1574 of 2012. He submits that, during the pendency of the O.A.,

formal appointment letter was issued. The Tribunal, directed the

authorities to consider the prayer for seniority as a representation and to

pass final order after holding that the private respondent was with the

legitimate claim of pay protection and seniority against his juniors. He

refers to the reasoned order passed by the Commissioner of Police which

negated the claim for seniority of the private respondent. He submits

that, the private respondent thereafter approached the Tribunal by way

of O.A.1280 of 2013 which was disposed of by the impugned order

granting relief of seniority and pay protection. He submits that, the

private respondent was in serial no.15 in the merit list. The serial no.18

was appointed. He submits that the private respondent is entitled to

seniority notionally, from the date of appointment of Serial no.18 in the

merit list, at the barest minimum.

8. The private respondent participated in the selection process for the

post of Constable in the Kolkata Police. He was called for interview on

August 13, 1988. Private respondent was empanelled as serial no.15 in

the selection process. There was an issue with regard to the upper age

limit prescribed in the selection process. According to the authorities, the

private respondent breached the upper age limit prescribed in the

selection process and therefore, his candidature was rejected.

9. Assailing the rejection of such candidature, the private respondent

filed an original proceeding before the West Bengal Administrative

Tribunal being O.A.225 of 2009. Such original proceeding was dismissed

by an order dated August 10, 2009. Assailing the order dated August 10,

2009 of the Tribunal, a writ petition was filed being W.P.S.T.599 of 2009.

Such writ petition was disposed of by a judgment and order dated April

29, 2011, the relevant portion of which is as follows:-

"The petitioner herein was admittedly selected to the post of constable in Kolkata Police on the basis of the interview held on 13th August, 1998 i.e. long after the issuance of the memorandum

dated 19th May, 1998 by the Finance Department, Government of West Bengal notifying the policy decision of the State Government with regard to the relaxation of the upper age limit for direct recruitment to posts/service. The petitioner herein therefore, is entitled to enjoy the benefit of the aforesaid policy decision of Government of West Bengal with regard to relaxation of the upper age limit.

In the aforesaid circumstances, the decision of the Additional Chief Secretary Government of West Bengal rejecting the prayer of the petitioner by the written communication dated 30th December, 2008 cannot be sustained and the same is accordingly quashed. For the identical reasons, the judgment and order dated 10th August, 2009 passed by the learned West Bengal Administrative Tribunal in O.A.

No.225 of 2009 cannot be sustained and the same is therefore, set aside.

           The     respondents            herein       are,
directed     to        issue     formal       letter     of

appointment to the petitioner to the post of Constable in Kolkata Police forthwith since the said petitioner was declared selected by the competent authority of the Kolkata Police on the basis of the interview held on 13th August, 1998. The petitioner will however, comply with other official

formalities, if there be any, for the purpose of joining the post of constable."

10. Pursuant to the judgment and order dated April 29, 2011, the

private respondent was allowed to join the services in the post of

Constable. Formal appointment letter was not issued. Private

respondent, approached the Tribunal for the second time by way of

O.A.1574 of 2012 which was disposed of by an order dated June 26,

2013. There he sought issuance of formal appointment letter as prayer

(a) and seniority and pay parity with his junior in prayer (b).

11. During the pendency of the O.A.1574 of 2012, formal appointment

letter was issued. Therefore, prayer (a) was taken care of.

12. O.A.1574 of 2012, was disposed of by the Tribunal, by observing as

follows:

"Thus, we hold that the petitioner has a legitimate claim of pay protection and seniority against his juniors which should be determined by the respondents who are sole authorities to take appropriate decision in such matter.

Therefore, we find that there is sufficient merit in this application so far as prayer (b) is concerned. Accordingly, we dispose of this application and direct the respondents to consider prayer (b) of the instant application treating the same as a representation and to pass a reasoned order in accordance with law and in light of

the direction given by the Hon'ble High Court in the aforesaid judgment and order passed in WPST 599 (W)/2009 as claimed by the petitioner within a period of four months from the date of communication of this order and the decision so taken shall be communicated to the petitioner within three weeks thereafter. On receipt of such decision, petitioner will, however, be at liberty to approach this Tribunal if he is aggrieved by such decision."

13. The Commissioner of Police, pursuant to the order dated June 26,

2013 of the West Bengal Administrative Tribunal, considered the prayer

for seniority of the private respondent and negated the claim.

14. Aggrieved thereby, the private respondent filed the third proceeding

before the West Bengal Administrative Tribunal being O.A.1280 of 2013

which was disposed of by the impugned order dated May 11, 2015.

15. By the impugned order, the Tribunal, directed as follows:-

................"Accordingly, we allow the application and direct the respondent authorities to grant the petitioner due seniority with reference to his junior in the merit list for the purpose of CAS benefit and promotion and also pay protection with reference to his junior. Where, however, successful completion of training or passing of any examination is required for the

purpose of confirmation/promotion/CAS benefit, such promotion/CAS benefit shall actually be granted with effect from the date of completion of training or passing of examination and till then, protection of pay shall be on notional basis. The order in this regard must be issued within a period of four months from the date of communication of this judgment."

16. Candidature of the private respondent was wrongfully rejected

despite the private respondent being empanelled as serial no.15 of the

selection process on the ground of alleged breach of the upper age limit.

The stand of the petitioners, stood resolved by the judgment and order

dated April 29, 2011 of the High Court.

17. In the selection process, a candidate who was empanelled as serial

no.18 was granted appointment. Private respondent herein seeks

seniority on the same strata as that of serial no. 18 in the panel.

18. A candidate cannot be deprived his entitlement due to an action

taken by the authorities which was wrong and held to be wrong by a

Court of law, in denying his candidature in the selection process. On

such prayer, by the impugned order, Tribunal directed the authorities to

restore the seniority and cash benefit as that of the junior of the private

respondent.

19. Suraj Parkash Gupta and others (supra) considered a different

scenario. There, the issue was with regard to antedating and

appointment. It was held that direct recruitment can claim seniority only

from the date of his regular appointment. He cannot claim seniority from

a date, when he was not born in the service.

20. In the facts and circumstances of the present case, the private

respondent was denied his rightful appointment, wrongfully by the

authorities and was held to be so by the High Court. The Tribunal by the

impugned order directed grant of notional benefit to the private

respondent. We find no error in the impugned order of the Tribunal.

21. In such circumstances, we find no merit in the present writ petition.

22. WP.ST 212 of 2015 is dismissed without any order as to costs.

(Debangsu Basak, J.)

23. I agree.

(Md. Shabbar Rashidi, J.)

CHC