ASIS KUMAR SAMANTA AND ORS.versusSTATE OF WEST BENGAL AND ORS.

                    [2014] 7 S.C.R. 645

           ASIS KUMAR SAMANTA AND ORS.                        A
                             v.
          STATE OF WEST BENGAL AND ORS.
            (Civil Appeal No. 1331 OF 2001)
                  SEPTEMBER 04, 2014
                                                              B
       [R.M. LODHA CJI, KURIAN JOSEPH AND
            ROHINTON FALi NARIMAN, JJ.]

     Service law: Promotion - Retrospective effect - Vacancy
occurring on 1. 1. 1989 - Private respondents seeking C
promotion - Their case not processed due to interim order
passed by High Court restraining the authorities from giving
them promotion - Selection process for promotion
commenced after vacation of stay order on 11. 12. 1990 -
Public Service Commission recomrriended that private D
respondents be given retrospective seniority with effect from
31.12.1990 - According to r.6(2) of the W.B. Services
(Determination of Seniority) Rules, 1981, the promotees shall
be en-bloc senior to the direct recruits of the same year -
Therefore, private respondents given notional seniority with E
effect from 01.01.1990 - Challenge against- Held: The private
respondents could not have been made to suffer because of
intervention by the court by way of interim relief - State
Government was not in a position to proceed with the selection
by way of promotion under the Rules in view of the stay order F
passed by the court - No sooner the stay order was vacated,
the process for the selection by way of promotion commenced
- The impugned seniority list cannot, in these circumstances,
be said to be legally flawed - WB. Services (Determination
of Seniority) Rules, 1981 - r.6(2).
                                                               G
     U.D. Ldama and Ors. vs. State of Sikkim and Ors. (1997)
1 SCC 111: 1996 (9) Suppl. SCR 180 - relied on.
                                                 I




                            645                               H
    646        SUPREME COURT REPORTS                 (2014] 7 S.C.R.


A                              Case Law Reference:
          1996 (9) Suppl. SCR 180 relied on               Para 2
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1331 of 2001
B
        From the Judgment and order dated 24.03.1999 passed
    by a Division Bench of the Calcutta High Court Dismissing
    W.P.S.T. No. 33 (W) of 1997.

C         Rupesh Kumar, Parvesh Bahugana, Pankhuri Shrivastava,
    for the Appellant.

        P.P. Rao, Anip Sachthey, Soumitra G. Chaudhuri, Shagun
    Matta, Sarla Chandra, Raj Kumar Mehta Rajani K. Prasad,
    Abha R. Sharma, Harry Mangsataban, Rameshwar Prasad
D   Goyal, Satyendr Kr. Singh, Somiran Sharma, Ahanthem Bimol
    Singh, Ahanthem Henry, Ahanthem Rohan Singh, Anil Kumar
    Mishra-I, Vivek Kumar for the Respondents.

           The Judgment of the Court was delivered by
E        R.M. LODHA, CJI : 1. It is not necessary to answer the
    reference for two reasons.

         2. In the first place, there is already a three-Judge Bench
    decision, namely, U.D. Lama and Ors. Vs. State of Sikkim1 and
F   Ors.1 on the issue referred by the two-Judge Bench. In U.D.
    Lama1, this Court held in paragraphs 20 and 21 of the report
    as follows :-

           "20. On the other hand, it cannot be overlooked that the
           appellants were not appointed by following the regular
G          procedure of appointment. Under Rule 4(1 ), recruitment
           could be made to the newly-created State Civil Service
           by competitive examinations to be held by the Sikkim
           Public Service Commission. This competition is not

H   1.    (1997) 11 sec 111.
ASIS KUMAR SAMANTA v. STATE OF WEST                    64 7
       BENGAL [R.M. LODHA, CJI.]

confined to persons who are already in government              A
employment. The second method of recruitment is
selection from persons "serving in connection with the
affairs of the State of Sikkim''. In the second category of
recruitment, specifically no provision of holding written
and viva voce has been laid down. The respondents              B

followed, they would have got into tt
claim that had the procedure in Rule 4(1)(b) been
                                         Service without any
examination. But their lawful excep ·on was denied by the
failure of the Government to set p a Commission or
appoint a Chairman. What would have happened in                _c
normal course, did not happen because of the
Government's failure. Only because of this, quite contrary
to the Rules, written and oral tests were held. This was
upheld by this Court principally on the ground of what was
described as "peculiar situation" which was created by the     D
absence of a Commission and its Chairman. The
selection and appointments made in 1982 were dictated
by peculiar circumstances obtaining at that time. The
appointments were not made strictly in accordance with
the Rules but, as was held by this Court, in exercise of       E
the executive power of the State. It is true that some of
the respondents

appeared in the tests and did not qualify but there is
substance in the contention of the respondents that they
were entitled to be appointed even without 'these tests if F
Rule 4(1)(b) was followed_ They were deprived of this
chance. Even for Rule 4(1)(b), the instrumentality of
Public Service Commission was necessary for making
any appointment. Now that the Public Service
Commission has been set up, the State Government has G
to undo the wrong that was initially done to these
employees by subjecting them to tests which was not
warranted by Rule 4(1)(b), Therefore, they should not be
                                                     ----
made to suffer in the matter of seniority or pr;ofnotion ia
                                              ,
     648      SUPREME COURT REPORTS                  {2014) 7 S.C.R.

A          any way by failure of the State Government to implement
           the Rules laid down by it. In these circumstances by
           directing the new recruits to be treated to have been
           recruited ·on the day the appellants were recruited, the
           State Government has not done anything contrary or
B          wrong but has really restored (sic removed) the injustice
           done to the respondents by the State Government's
           failure to recruit them into the Service in accordance with
           Rule 4(1)(b). In fact, the only door lhat was open to the
           appellants under the Rules to enter the Service was
           through Rule 4(1)(b). They might have also joined
.C
           through open competition but neither of the two steps
           were taken or could be taken. In these circumstances, the
           appellants have really tried to steal a march upon the
           respondents by being successful in the tests which
           should not have been held in any event. (emphasis sup
D
           plied)

           21. We are of the view that the contention of the
           respondents must be upheld. The point in dispute has
           been examined in depth by two Committees set up by
E          the. State Government. The earlier judgment of this Court
           upholding the recruitment of the appellants was because
           of the failure of the State Government to appoint the State
           Public Service Commission. As no appointments were
           being made for a number of years, the Government
F          adopted the device of holding a written test which was not
           laid down by the Rules. This Court held that under the
           peculiar circumstances, it was justified. This, however,
           does not mean that the State Government would not be
           entitled to regularise the service on the basis of the rules
           framed. The appellants who were appointed under very
           special circumstances cannot claim any special right in
           the matter of promotion or seniority. It was not the fault
           of the respondents that appointments according to rules
           could not be made in time. Taking an overall view of the
 H
    ASIS KUMAR SAMANTA v. STATE OF WEST                    649
           BENGAL [R.M. LODHA, CJI.]
      matter, we are of the opinion that the High Court has A
    . come to a correct decision. The appeal is, therefore,·
      dismissed with no order as to costs. "

    3. We are in respectful agreement with the legal position
exposited in U. D. Lama 1•
                                                                   B
       4. Applying the above legal position to the facts of the
 present case, it may be noted that vacancy against promotion
 quota in the cadre of 22 Forest Rangers occurred on 1.1.1989.
. But their case could not be processed because of the interim
  order passed by the High Court restraining the authorities from C
 giving them promotion to the West Bengal Forest Service. The
  stay order was vacated on 11.12.1990. It was only thereafter
 the selection .process for promotion commenced. It was for this
  reason that the Public Service Commission recommended that
  private respondents be given retrospective seniority with effect D
  from 31.12.1990. As per Rule 6(2) of the W.B. Services
  (Determination of Seniority} Rules, 1981 (for short, '1981.
  Rules'} the promotees shall be en-bloc senior to the direct
  recruits of the same year, the private respondents in the writ
  petition were given notional seniority with effect from E
  01.01.1990.

     5. The legal position in U.D. Lama1 squarely applies to
the present fact situation. The private respondents could not
have been made to suffer because of intervention by the court
by way of interim relief. The State Government was not in a        F
position to proceed with the selection by way of promotion under
the Rules in view of the stay order passed by the court. No
sooner the stay order was vacated, the process for the
selection by way of promotion commenced. The impugned
seniority list cannot, in these circumstances, be said to be       G
legally flawed.

    ·6. Secondly, some of the private respondents who were
given promotion on 01.01.1990 by virtue of Rule 6(2) of the
1981 Rules have already superannuated.                             H
    650       SUPREME COURT REPORTS                  [2014] 7 S.C.R.

A       7. In light of the above, we think, it is not necessary to send
    the matter back to the two-Judge Bench. Civil Appeal is
    dismissed with no order as to costs.

    Devika Gujral                                     Appeal dismissed.