SAMBHU NATH MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This writ application is directed against a judgment and order dated 8.5.98 passed by the West Bengal Administrative Tribunal, whereby and whereunder the writ application filed by the petitioner herein was disposed of directing -

(2.) The basic fact of the matter is not at all disputed. There are three cadres in the Forest Department in the State of West Bengal, namely (1) Divisional Cadre, (2) Regional Cadre and (3) Directorate Cadre. The petitioner was appointed as clerk/typist in the Divisional Cadre on 9th Aug., 1964. He was appointed as Lower Division Clerk in the Divisional Cadre on 3rd Feb., 1975. He was thereafter appointed to vacant post of lower division clerk in the Directorate Office with effect from 4th Jan., 1977. Admittedly, such appointment had been made in the Directorate Cadre in excess of 10% quota. However, the petitioner did not opt for such transfer but it appears from a letter dated 2.2.94 issued by the Principal Chief Conservator of Forests and addressed to the Secretary to the Government of West Bengal, Department of Forest that such transfer was effected for smooth work of the office. In another letter dated 15.7.94 issued by the said authority to the Secretary to the Government of West Bengal, Department of Forests it has been stated that the petitioner was taken into Directorate Cadre in excess of 10% quota and Rule under which his seniority has already been fixed as explained in the penultimate para of the office letter No. 13899/PNC/2E-207 dated 2.9.92. Attention was also drawn to Finance Deptt. No. 3930-F dated 20.5.81 which is a clarification of West Bengal Services (Determination of Seniority) Rules, 1981, wherein at Para 3(ii) Finance Deptt. has clarified that appointments in excess of quota are not at all irregular and the seniority should be fixed as laid down in rule 6 of 1981 rules between promotion and direct recruit. Attention was also drawn to sub-rule (10) of the said seniority Rules which deem to have repealed all other Rules made previously. In the said letter the Deptt. of Forests was requested to reconsider if the petitioner can be given benefit of the West Bengal Services (Determination of Seniority) Rules, 1981 as his seniority was fixed on the basis of the earlier notification of Finance Department dated 27.3.80. In the said letter it was stated that in case of cadres of Deputy Ranger/Forester and Forest Ranger retrospective effect of this seniority Rule was given and seniority fixed by earlier order were modified.

(3.) Admittedly the petitioner had been promoted as Upper Division Clerk in Divisional Cadre as no promotional post was vacant in the Directorate Cadre with effect from 1.4.81. It has also been stated that the transfer of the petitioners were effected in the interest of public service. The only question which, therefore, fell for consideration before the learned Tribunal was as to whether the petitioner's seniority in the Directorate Cadre should have been accounted from 4.1.77 or not. The Tribunal in its judgment, inter alia held that his induction as L.D.C. in the Directorate Cadre in excess of the quota was not illegal. But the tribunal proceeded to hold that, however, keeping in view the fact that he was promoted as U.D.C. in the Divisional Cadre with effect from 1.4.81 he again migrated or was allowed to migrate to Divisional Cadre as U.D.C.