SANKAR KUMAR GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The applicants above named being unsuccessful before the learned Tribunal in getting reliefs for correction of the gradation list prepared by the State Respondent has approached with this application challenging the judgment and order of the learned Tribunal dated 31st March, 2006. The facts of the case placed before the learned Tribunal and repeated before us by the applicants are summarised as follows:

(2.) Before the learned Tribunal originally there were 16 applicants out of which three have been left out. All the applicants before the learned Tribunal stated that the applicants therein were senior to the Respondent No. 5 who is now working as upper division clerk in the office of the Superintendent and Legal Remembrancer, Government of West Bengal. They claimed their seniority because they were appointed Lower Division Assistants during 1973 to 1980 through Public Service Commission, West Bengal, whereas fifth Respondent was not appointed through Public Service Commission (hereinafter referred to as PSC) and his appointment was made in 1971 on ad hoc basis, however, subsequently his service was regularised later than the dates of joining of the applicants. Considering respective dates of appointment of the applicants in the cadre of Lower Division Assistant gradation list was prepared and published in the years, 1982 and 1989 and the same reached its finality and no one challenged the same. Thereafter all of a sudden, on 7th September, 2001 purported gradation list was approved by the learned Legal Remembrancer and published and displayed on the notice board placing the Respondent No. 5, Shyamal Kanti Das, who is a non -PSC candidate and whose service was regularised on 27th March, 1980, at serial No. 4 above the applicants. Thus, the applicants were made junior to fifth Respondent. No opportunity of being heard was given, no reason was assigned as to why the said final gradation lists prepared in 1982 and 1989 were modified and rectified. Thus, the right of the Petitioners has been denied. According to the applicants, under no circumstances, fifth Respondent, can be placed in the gradation list above the applicants who are recruited through Public Service Commission. It can be found from the notification No. 3241 -F dated 27th March, 1980 that the clerks and typists who are not appointed through PSC shall be deemed to be junior to any clerk or typist, as the case may be, who had qualified in any Clerkship or Typist Recruitment Examination and were appointed in different Secretariat Departments and Directorates on the recommendation of the Public Service Commission, West Bengal, during the period from the 19th December, 1967 to the 8th November, 1973. Under such circumstances, the said gradation list approved by the Legal Remembrancer on 7th September, 2001 is bad in law in as much as the same has been prepared in gross violation of the rules framed by the provision of Article 309 of the Constitution of India. Before approval of the said gradation list of 7th September, 2001 no objection was called for from any of the incumbents.

(3.) The said application was opposed before the learned Tribunal by (he State Respondent as well as fifth Respondent. Their cases are almost similar to oppose the application. They say that, at no point of time, any gradation list was prepared in 1982 or 1989, or finally published in 1992. A gradation list was prepared subsequently and objection was invited to the said gradation list. Fifth Respondent filed objection urging for correction of the same as he was a senior in order of appointment to the post of Lower Division Assistant. He was appointed in 1971 without being cleared by P.S.C. though, as at that point of time there has been no appointment through PSC for administrative necessity. Later on fifth Respondent was regularised on 27th March, 1980 dispensing with the opinion of the Public Service Commission. Despite objection the State Respondent did not take any step and as such the applicants filed a writ petition in this Hon'ble Court in 1992 praying for appropriate relief. The said writ petition was transferred later on to the Tribunal being marked as T.A. No. 201 of 1998. In that application the applicants were added as the party Respondents. The said transferred application was ultimately disposed of by an order dated 8th March, 2001 whereby and whereunder the Legal Remembrancer, West Bengal was directed to prepare and finalise gradation list taking note of another employee viz. Ranjit Kumar Banerjee, who was similarly placed with the fifth Respondent and to fix up the seniority position of the Respondent No. 5. In case of Ranjit Kumar Banerjee, his date of joining was taken into account for fixing up of seniority as he was also a non -PSC candidate. In compliance of the said order of the learned Tribunal dated 8th March, 2001 this gradation list has been prepared and the applicants and each of them had enough chance to make representation or to file objection. Moreover, the order of the learned Tribunal dated 8th March, 2001 has become final as no appeal was preferred challenging the same. Therefore, they are estopped from raising any dispute as to legality, validity and correctness of preparation of gradation list placing the fifth Respondent above the applicants. As such, the gradation list does not call for any interference and the same is prepared in accordance with law.