SWATI MUKHOPADHYAY Vs. KUNTAL BOSE

JUDGEMENT

(1.) The present application is directed to assail the order dated 18.02.2009 passed by the West Bengal Administrative Tribunal in O.A. No. 3377 of 2007 whereby and whereunder the Learned Tribunal has been pleased to struck down the recommendation of the Public Service Commission for promotion to the post of Joint Block Development Officers containing memo No. III/T27 PSC/1 P-95/04 dated 17.04.2007 so far as it relates to the feeder post being Inspector Progress and Evaluation under Panchayat and Rural Development Department is concerned.

(2.) The Petitioners contend that they are all working as Joint Block Development Officers on promotion from the feeder cadre of Inspector Progress and Evaluation on the basis of recommendation of the State Public Service Commission and now joined their promotional post in terms of order of the Panchayat and Rural Development Department being notification No. 5132-RD(JT BDO)/IB-2/2004 dated 12.07.2007. It is their further submission that the promotion to the post of Jt. BDO is conducted and regulated by relevant recruitment rules containing the notification dated 23.02.1983 through Public Service Commission from out of the candidates recommended from 5 feeder posts namely, a) Extension Officer of Panchayat b) Extension Officer Social Education (redesignated as 'Extension Officer mass Education'); c) instructor of Gram Sevak Training Centre under Agricultural Department; d) Accountant cum Head Clerk in the office of BDO under Panchayat and Community Development Department and e) Inspector Progress and Evaluation (I.P.E.) under Panchayat and Rural Development Department. The eligibility criteria for such selection as prescribed in the said notification dated 23.02.1983 provide that 60 per cent of such appointment on promotion will be made from the aforesaid 5 feeder posts and 40 per cent by direct recruitment and that the minimum service from the feeder post on first day of the year of recruitment was prescribed as 6 years of service and selection shall be made on the basis of an interview and having certificate about the integrity of the candidate concerned and such interview shall be conducted by the Public Service Commission. In the instant case all the aforesaid departments supplied the names of all eligible candidates who fulfill the above criteria. According to them seniority in the respective feeder cadre have no manner of application in the matter of such promotion excepting in case where the candidates have got some marks in the selection test where inter se seniority will be treated as a criterion to place them in order of merit in the select list for promotion to the post of Jt. BDO. But the Learned Tribunal has come to a finding that without gradation list being prepared by the respective feeder posts, promotion cannot be regulated and seniority is to be taken into account for the purpose of such promotion and hence the selection so far as I.P.E. is concerned made by the Public Service Commission was set aside without affecting the selection of 4 other cadres whose selection also suffered from same infirmity on the ground that such other cadres did not appear before the learned Tribunal seeking any such redress. It is their further submission that seniority in the feeder cadre has no role to play for such promotion excepting the eligibility criteria which was fixed as 6 years service in the feeder post. At the time of forwarding the names of eligible candidates from the feeder post by the 5 departments the date of joining in the present post, date of entry in the government service etc. were all forwarded to the Public Service Commission and as per settled law those could be taken into consideration when identical marks were awarded to several candidates while their date of joining in the feeder post is to be taken into account. The Public Service Commission has made their recommendation strictly on the basis of merit of the candidates of 5 feeder posts and the said list was prepared afresh under order of the Hon'ble Writ Court. There is no common gradation list of 5 feeder posts belonging to different ministries of the state government and so when equal marks was obtained by more than one candidate the date of their appointment in the respective cadre was duly taken into account by the Public Service Commission in order to place them in the merit list according to the seniority in the feeder post. Therefore, preparation of any combined gradation list of 5 feeder posts for the purpose of such promotion by way of selection has no role to play and the relevant recruitment rule also does not provide for preparation of any such common gradation list. However, they are performing their duties for last 3 years and there is no illegality or infirmity in the selection process adopted by the State Public Service Commission which should be interfered with. During the pendency of this application the Petitioners prayed for amendment to the writ petition for inclusion of all other 4 cadres which was allowed and public notice was issued in the Statesman and the Aajkal dated 23.09.2009 inviting all interested persons from the 5 cadres, if they so desire to contest this matter, but none responded. Therefore, they have prayed for a direction upon the Respondent Nos. 6, 7 and 8 to refrain from giving any effect to the order dated 18.02.2009 passed in O.A. 3377 of 2007 by the West Bengal State Administrative Tribunal and from interfering with the service of these Petitioners in the post of Joint BDO. The state of West Bengal, the Respondent No. 6 here in has supported the contention of the present Petitioners. In an application being C.A.N. 3260/2010, a prayer has been made for vacating interim stay order dated 18.06.2009. The said application has also been taken up for consideration along with this writ petition.

(3.) The Respondent Nos. 1 to 5 have opposed the move and claimed that in terms of the recruitment rules different departments including Panchayat and Rural Development Department sent their requisitions to the Public Service Commission for selection and recommendation of candidates for promotion to the post of Joint BDOs. The Public Service Commission has followed their prevailing practice of such selection on the basis of interview after preparation of the common gradation list for different feeder posts. But such selection on the basis of merit in each case has not been made and seniority was given preference over the merit. Thus if such promotion need be reviewed as there cannot be two sets of promotes one on the basis of seniority and another on the basis of merit by invoking same recruitment rules. Learned lawyer representing these Respondents have relied upon the principles laid down in support of his contention. The Public Service Commission being Respondent No. 8 has defended their case and contended in their affidavit-in-opposition that on receipt of the requisition they have followed the existing recruitment rule and decided at their Full Commission meeting that minimum suitability criteria for promotion will be settled on interview in the following manner, a) for general cadre candidates 60 marks out of 100 marks and b) for SC/ST cadres 55 marks out of 100 marks. The select list would be prepared with reference to number of vacancies from among the suitable officers without disturbing their intra-grade seniority position holding the feeder post. It was also decided by the Commission that for the purpose of selection from heterogeneous feeder posts a combined seniority list will be prepared taking into consideration the date of continuation, officiation of the concerned officer in their respective feeder posts without disturbing the intra-grade seniority post.