Holding

The case is referred to a larger Bench to resolve the controversy regarding retrospective seniority of promotees over direct recruits.

Summary

The petitioners, who were directly recruited to the West Bengal State Forest Service in March 1990, challenged the grant of retrospective seniority to officers promoted in 1991 under Rule 6(2) of the West Bengal Service (Determination of Service) Rules, 1981, which made the promotees senior to the direct recruits. The State Administrative Tribunal upheld the retrospective seniority, and the Calcutta High Court dismissed the writ petition filed under Article 226 of the Constitution. The appellants appealed to the Supreme Court, raising the question of whether such en bloc seniority for promotees is legally permissible. The Court observed that Supreme Court jurisprudence on this issue is split, with some decisions supporting retrospective seniority and others declaring it ultra vires. Owing to this conflict, the Court decided to refer the matter to a larger Bench for a definitive resolution. The Registry was directed to place the case before the Chief Justice of India for constitution of a larger Bench.

Issues considered

Whether officers promoted to the State Forest Service can be granted retrospective seniority over directly recruited officers under Rule 6(2) of the West Bengal Service (Determination of Service) Rules, 1981.
Whether such retrospective seniority is constitutionally valid in view of conflicting Supreme Court precedents.

Legislation cited

Constitution of Indias. Article 226

Subjects

senioritypromotionretrospective seniorityservice lawState Forest ServiceRule 6(2)larger benchconflicting judgments

Judgment

ASIS KUMAR SAMA NTA & ORS. A,
v.
ST ATE OF WEST BENGAL & ORS.

JULY 12, 2007

[A.K. MATHUR AND DAL VEER BHANDARI, JJ.] B

Service Law: Seniority-State Forest Service-Appointment by
promotion as also by direct recruitment-The question: Whether the officers
promoted to the service can en bloc be given seniority retrospectively over C
the officers directly recruitted to the sen:ice-Referred to the larger Bench.

The instant appeal arose out of the controversy whether the officers
promoted in 1991 to the State Forest Service can en bloc be given seniority
retrospectively w.e.f. 31.12.1990 over the officers directly recruited to the
said service. Noticing the conflicting decisions of the Supreme Court on the D
issue, the Court

HELD: 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 ofa E
' 71 (332-A-B)
larger Bench. (Para

Devi Prasad & Ors. v. Government of A.P. & Ors., (19801 Supp. SCC
206; U.D. Lama and Ors. v. State of Sikkim & Ors., (1997) 1 SCC 111; State
ofAndhra Pradesh & Anr. v. KS. Af_uralidhar & Ors. Etc., (1992) 2 SCC 241;
Ram Pal Malik v. State of Haryana & Ors., AIR (1994) SC 2481; State of F
Gujarat v. CG. Desai, (1974) i SCC 188; G.S. Venkata Reddy & Ors. Etc.
etc. v. Government ofA.P., AIR (1993) SC 2306; K. Narayanan & Ors. v. State
of Karnataka & Ors., (I 994 I Su pp. 1 SCC 44; State oj Bihar & Ors. v. Sri
Akhouri Sachindra Nath & Ors., AIR (1991) SC 1244 and Uttaranchal Forest
Rangers' Association (Direct Recruit) & Ors. v. State of UP. & Ors., (2006) G
10 sec 346, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 133 l of200l.

From the Final Judgment & Order dated 24.3.1999 of the High Court at
329 H
(

330 SUPREME COURT REPORTS [2007) 8 S.C.R.

A Calcutta in W.P.S.T. No. 33(W) of 1997. -~ '
Arijit Bhattacharjee for the Appellants.

Sarla Chandra, (N.P.) Ajay Sharma, T.C. Sharma and Nelam Sharma for
the Respondents.
B
The Judgment of the Court was delivered by
1
A.K. MA THUR, J. I. 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
c 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_ l .2.1991. They were
given retrospective seniority with effect from 3 lst December, 1990, According
D to Rule 6(2) of West Bengal Service (Determination of Service) Rules, 1981 j.

(hereinafter to be referred to as 'the Rules'), the promotee shall be en bloc ...,.
senior to tile 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
E 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 tbe High Court. Hence the present appeal by the
F 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
G 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
H is carried on but the recruitment through promotion is held up on account of
-~
ASIS KUMAR SAMANTA i·. STA TE OF WEST BENGAL [MATHUR, J.] 331

dispute in the seniority among the promotees or sometimes by the intervention A
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 B
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 connection, two sets of cases can be classified as under:

5. In the under mentioned cases the promotees were given retrospective C
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 ofA.P.&
Ors.
D
[1997] I SCC I I I U.D. Lama and Ors. v. State of Sikkim & Ors.,
..I

(1992] 2 SCC 241 State ofAndhra Pradesh & Anr. v. K.S. Muralidhar
& Ors. etc.

AIR (1994) SC 248 I Ram Pal Malik v. State of Haryana & Ors.
E
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] I SCC 188 State of Gujarat v. C. G. Desai, F

AIR (1993) SC 2306: G.S. Venkata Reddy & Ors.etc.etc. v. Government
ofA.P.

[1994] Supp. I SCC 44 : K Narayanan & Ors. v. State of Karnataka
&fu, G
AIR (1991) SC 1244: State of Bihar & Ors. v. Sri Akhouri Sachindra
Nath & Ors.

[2006] 10 SCC 346: Uttaranchal ForestRangers' Assn. (Direct Recruit)
& Ors. v. State of U. P. & Ors. H
332 SUPREME COURT REPORTS [2007] 8 S.C.R.

A 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
B 2002.

RP. Referred to larger Bench.

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