Debasis Pradhan & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 6468 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 200 of 2016
                                    IA NO: CAN/1/2023

                                Debasis Pradhan & ors.
                                          Vs.
                            The State of West Bengal & ors.




For the writ petitioners       :      Mr. Pratik Bhattacharyya, Advocate,
                                      Mr. Manoranjan Karmakar, Advocate


For the State                  :      Mr. Tapan Kr. Mukherjee,
                                            Senior Advocate & Ld. A.G.P.
                                      Mr. Somnath Naskar, Advocate


Hearing on                     :      25.09.2023

Judgment on                    :      25.09.2023


DEBANGSU BASAK, J.:-

1.

In Re: CAN/1/2023

CAN/1/2023 is an application for restoration.

2. For the ends of justice and in view of the pleadings made in the

application for restoration, the order dated July 28, 2023 is recalled.

3. CAN/1/2023 is allowed.

4. WP.ST 200 of 2016 is restored to its file and number.

5. In Re: WP.ST 200 of 2016

The writ petitioners are aggrieved by an order dated July 8, 2016

passed by the West Bengal Administrative Tribunal in O.A.701 of 2015.

6. Learned advocate appearing for the writ petitioners submits that,

the writ petitioners were entitled to promotion from 1998. They made

representations to the authorities which were never considered. The writ

petitioners approached the Tribunal on at least two occasions. The last is

the impugned order, where, the writ petitioners were found to be entitled

to promotion and were granted such promotion with retrospective effect

from March 27, 2007.

7. Learned advocate appearing for the writ petitioners submits that,

there was no basis for the Tribunal granting promotion to the writ

petitioners from March 27, 2007. The writ petitioners are entitled to

promotion from the respective dates of the writ petitioners attaining the

requisite qualification for consideration of the promotion. The authorities

sat tight over the request for grant of promotion for no reason at all.

None of the writ petitioners were recommended to the Public Service

Commission (PSC) for promotion, for the Public Service Commission to

decide thereon. The plea taken by the State that, no recommendation

was made by the P.S.C is misplaced.

8. Relying upon (2014) 3 Supreme Court Cases 670 (Major General

H.M. Singh, VSM versus Union of India and another), learned

advocate appearing for the writ petitioners submits that, there, the

Supreme Court found that the petitioner therein was entitled to

promotion and was granted promotion from the date when the post

became vacant. In the facts of the present case, the writ petitioners

should also be granted promotion from the dates when the respective

posts became vacant or from the respective writ petitioners attaining the

requisite qualification for grant of promotion, whichever is earlier.

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

promotional avenue of the writ petitioners are governed by the

notification dated May 17, 1957 which was subsequently modified on

May 15, 1980. According to the modified rules for promotion, a candidate

must be found to be fit for the higher post. He submits that, subsequent

to the direction passed by the Tribunal, the writ petitioners were

considered for the grant of promotion and was granted the same from

2009. However, the Tribunal fixed the date as March 27, 2007 from

which date, State is willing to grant promotion to the writ petitioners.

10. The writ petitioners were working as Research Assistant

(Hydraulic), Group-A of River Research Institute. The next promotional

post of the writ petitioners is Assistant Research Officer (Hydraulic)

Group-A.

11. The writ petitioners made several representations for promotion to

the next higher post of Assistant Research Officer (Hydraulic), Group-A

as will appear from the documents annexed to the writ petition. The writ

petitioners claimed that they put in the requisite five years of service on

the date of their application for promotion and that they were eligible to

be considered for grant of promotion.

12. We find from the records that, by a writing dated February 4,

2000, the Directorate of River Research Institute wrote to the Chief

Engineer (D & R) Irrigation and Waterways Directorate for filling up the

post of Assistant Research Officer (Hydraulic) 'Group-A' by promotion

from Research Assistant (Hydraulic) of the River Research Institute. The

writing dated February 4, 2000 contains the names of the writ

petitioners before us.

13. Neither the representations of the writ petitioners made from

August 11, 1998 nor was the writing dated February 4, 2000 were

considered by the authorities.

14. The rules governing the post of Assistant Research Officer Group-A

allow it to be filled up either by direct promotion from the feeder post or

by selection through recruitment wherein, departmental candidates were

also allowed to apply.

15. The authorities did not fill up the vacant posts through the process

prescribed. Instead, the authorities issued a memo prescribing 50% post

to be filled up by direct recruitment and balance by promotion.

16. The writ petitioners approached the Tribunal by way of O.A.105 of

2004 challenging the memo and praying for promotion. Such original

application was disposed of by an order dated March 27, 2007 by the

Tribunal. By such order, the Tribunal quashed the memo of the

authorities directing filling up of the post of Assistant Research Officer in

Group-A by 50% direct recruitment and 50% by way of promotion. The

authorities were directed to take urgent step for the purpose of filling up

of such post in terms of the rules either by promotion from Research

Assistant or by selection through direct recruitment where departmental

candidate along with present petitioners were to be given an opportunity

to apply.

17. No steps were taken by the authorities either for direct recruitment

or for the purpose of promotion.

18. The writ petitioners thereafter approached the Tribunal by the

second Original Application being O.A.3296 of 2008 which was disposed

of by the order dated April 24, 2008. By such order, the Chief Engineer

(Designer and Research) Irrigation and Waterways Directorate,

Government of West Bengal was directed to consider the application

along with its annexures treating it as representation and dispose it of by

reasoned and speaking order.

19. Before the representation was disposed of in terms of the order of

the Tribunal, by a notification dated August 20, 2009 corrected by the

notification dated October 30, 2009, nine Research Assistants were

directed to officiate as temporary Assistant Research Officer.

20. These two notifications were assailed by the writ petitioners by way

of a third Original Application being O.A.602 of 2010 which was disposed

of by an order dated July 22, 2011 directing the Secretary, Irrigation and

Waterways Department to consider the pending representations of the

writ petitioners and to take a decision thereon.

21. No decision being taken in terms of the order dated July 22, 2011,

the writ petitioners applied under the Contempt of Courts Act, 1971

being CCP 124 of 2012 before the Tribunal. Such contempt petition was

disposed of by an order dated September 27, 2013.

22. During the pendency of the contempt proceedings a compliance

report was submitted where, the authorities granted promotion to the

writ petitioners with effect from August 20, 2009.

23. Aggrieved by such decision, the writ petitioners approached the

Tribunal for the fourth time by way of O.A.701 of 2015 which was

disposed of by the impugned order directing the authorities to grant

promotion to the writ petitioners with effect from March 27, 2007.

24. As noted above, the writ petitioners are concerned with regard to

the promotion to the post of Assistant Research Officer (Hydraulic),

Group-A. Again, as noted above, two avenues, were prescribed for filling

up the post. One by of direct recruitment and the other through

promotion. Although vacancies occurred in the post of Assistant

Research Officer (Hydraulic) Group-A, they were not filled up either by

promotion or by direct recruitment.

25. The writ petitioners as noted above applied for promotion in 1998.

Their applications for promotion were never considered.

26. There was a recommendation dated February 4, 2000 for

promoting the Research Assistants including the writ petitioners to the

post of Assistant Research Officer (Hydraulic), Group-A. Such

recommendation was not implemented.

27. By an order dated March 27, 2007, the Tribunal directed filling up

the vacant post of Assistant Research Officer (Hydraulic) either by

promotion or by direct recruitment. Even thereafter, no steps were taken

for filling up the vacancies by direct recruitment or by promotion.

28. Thereafter, a temporary promotion was sought to be granted which

was impugned before the Tribunal. The Tribunal directed consideration

of the pending representations of the writ petitioners.

29. Ultimately, the authorities decided to promote the writ petitioners

to the post of Assistant Research Officer (Hydraulic), Group-A with effect

from 2009.

30. Major General H.M. Singh, VSM (Supra) is of the view that, where

the query as to non-consideration of the claim of the writ petitioners for

promotion would violate the fundamental rights vested under Articles 14

and 16 of the Constitution of India is raised and if the answer to such

query is in the affirmative then, relief should be granted.

31. In the facts of that case the incumbent concerned was granted

promotion with retrospective effect from January 1, 2007 since, it was

found that, the incumbent was entitled to such promotion from such

date and that he was found suitable for grant of such promotion,

although, such promotion was granted two days before his

superannuation.

32. In the facts of the present case, although the writ petitioners were

found to be suitable for grant of promotion, however, as in Major

General H.M. Singh (Supra), the writ petitioners were granted promotion

from 2009 by the authorities and from March 27, 2007 by the Tribunal.

33. The Tribunal proceeded on the basis that, the writ petitioners were

entitled to promotion with retrospective effect. While finding what should

be the retrospective date of the promotion, the Tribunal decided that, the

earlier order of the Tribunal dated March 27, 2007 should be the date

from which, the writ petitioners should be granted promotion.

34. In our view, the Tribunal overlooked the fact that there were

vacancies in the higher post and that, the recommendation to fill up the

vacancies to the post of Assistant Research Officer (Hydraulic), Group-A

by promotion was made on February 4, 2000. Since then such writ

petitioners were not promoted for no fault of theirs. Moreover, the

authorities did not undertake the exercise of filling up the higher post

through direct recruitment despite an opportunity being granted to them

to do so. The vacancies to the higher post occurred prior to February 4,

2000 when the writ petitioners were recommended for appointment as

promotion. They were not promoted for no fault of theirs. Consequently,

the writ petitioners should be entitled to promotion from February 4,

2000. As in Major General H.M. Singh (Supra), the writ petitioners were

also found suitable for grant of promotion by the authorities as

appearing from their compliance report filed before Tribunal in the

contempt proceeding. Therefore, suitability of their candidature for

promotion also stood established factually.

35. In such circumstance, we modify the impugned order to the extent

that, the authorities are directed to grant promotion to the writ

petitioners to the post of Assistant Research Officer (Hydraulic), Group-A

with retrospective effect from February 4, 2000 and grant all

consequential financial and other service benefits accordingly. This

direction is to be completed within 16 (sixteen) weeks from the date of

communication of this order.

36. WP.ST 200 of 2016 is disposed of without any order as to costs.

(Debangsu Basak, J.)

37. I agree.

(Md. Shabbar Rashidi, J.)

CHC