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CASE NO.: Appeal (civil)  1331 of 2001

PETITIONER: Asis Kumar Samanta & Ors

RESPONDENT: State of West Bengal & Ors

DATE OF JUDGMENT: 12/07/2007

BENCH: A.K.MATHUR & DALVEER BHANDARI

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

1.              This appeal is directed against the order dated 24th  March, 1999  passed by the Division Bench of Calcutta High Court  in   W.P.S.T. No. 33 of 1997 whereby the Division Bench  dismissed the  writ petition.  This Writ Petition was filed against the order passed by  the  West Bengal State Administrative Tribunal in Case No. TA  1293/1996 on 21st April, 1997, wherein  11 petitioners (appellants  herein)  were recruited  directly to State Forest Service in March,  1990.  Respondent Nos. 4 to 19  to the original  petition  were  promoted to  the State Forest Service  vide  Notification No. 940  dated  1.2.1991.    They were given retrospective  seniority with effect  from  31st December, 1990,    According to Rule 6(2) of West Bengal  Service (Determination of Service) Rules, 1981 (hereinafter to be  referred to as ’the Rules’),   the promotee shall be  en bloc senior to  the  direct recruits of the same year.   Consequently , the  respondents 4 to 19  who were promoted in 1991 were given   retrospective seniority w.e.f  31.12.1990.  Therefore,   as per Rule   6(2) of the Rules,  those  respondents 4 to  19  got the seniority  over  directly recruited candidates. That was challenged by the  direct  recruits of the State Forest Service before the Tribunal.  The State  Tribunal upheld the grant of retrospective seniority and  rejected their  contention.   Aggrieved against this, present writ petition was filed   under Article 226 of the Constitution of India by direct recruits which  was rejected by the Division Bench of the High Court.  Hence the  present appeal by the direct recruits.  2.             The  main question  involved in this matter is whether  such retrospective promotion or seniority can be granted or not? 3.              The moot question came up before this Court in  various  matters.    But there is a conflict of opinion  on this issue.  Some  judgments have recognized  the retrospective seniority and  in some  cases it has not been accepted.   4.              Normally,  there are  two  modes  of service i.e. one by  way of recruitment or  other by way  of promotion.  Sometimes the  process of direct recruitment is carried on  but the recruitment  through promotion is held  up on account of dispute in   the seniority  among the promotees or sometimes by the intervention of  the Court  and for some other  reasons.   In most of the  States, the rule is that  whenever direct recruitment  and promotion is in the same year then  the promotees are ranked senior to the direct recruits. The problem  arises when the direct recruits do not accept this proposition,   it leads  to litigation that the promotees  do not  find their berth  in the service,  therefore,   they cannot be given benefit of their service  from  retrospective date so as to make them senior to direct recruits.    In  some cases, this Court  has affirmed this line of argument and in  some other judgments, this line has not been accepted.   In this

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connection,  two sets of cases can be classified as under: 5.              In the under mentioned cases the promotees  were given  retrospective promotions and seniority was accepted by this Court.   The following decisions have upheld such line of reasoning: 1980 Supp. SCC 206: Devi Prasad & Ors  v.  Government of  A.P.& Ors.

(1997)1 SCC 111 U.D. Lama and Ors. v State of Sikkim & Ors. (1992) 2 SCC 241 State of Andhra Pradesh & Anr. v. K.S.  Muralidhar & Ors. etc.

AIR 1994 SC 2481 Ram Pal Malik v State of Haryana & ors.

6.              As against this, the other line of reasoning which has  been affirmed by this  Court is that in case   the promotees are  promoted and given retrospective seniority as against  the direct  recruits  that was   held to be ultra vires  in the following cases:   (1974)1 SCC 188  State of Gujarat v. C.G. Desai  AIR 1993 SC 2306:  G.S. Venkata Reddy & Ors.etc.etc.  v.  Government of A.P.

1994 Supp. (1) SCC 44 : K. Narayanan & Ors. v. State of       Karnataka & Ors.

AIR 1991 SC 1244: State of Bihar & Others  v.  Sri Akhouri  Sachindra Nath & Ors.

(2006)10 SCC 346   : Uttaranchal Forest Rangers’ Assn. (Direct  Recruit)  & Ors.  v. State of U.P. & Ors.  

7.              In view of conflicting views expressed by this Court, it  would be appropriate to refer this case to a larger  Bench  so that the  controversy can finally be resolved and put to rest.   Therefore, the  Registry is directed to place the matter  before the Hon’ble the Chief  Justice of India for constitution of larger Bench. Similar request has  been made in Civil Appeal Nos.1712-1713 of 2002.