Ashim Kumar Banerjee, J.
Preface
1. We heard all the counsel with rapt attention. After we concluded the hearing and reserved our judgment our dilemma started. The well-known
maxim, ""the equity follows the law"", if applied in the instant case, we are convinced that it would have a disastrous situation. Would there be a
departure to the said well-known maxim by stepping out to grant equitable relief for social good, it would ultimately benefit not only the parties
involved in the litigation but also the society at large. We are really at a fix. However, we venture to start writing the script without deciding on the
climax. Let the judgment take its own path and let us see what happens at the end. We frankly admit that this is a unique case where even before
writing the judgment we could not make up our mind. If someone follows the strict letters of law the result would be obvious. We have to put our
seal of approval on the decision of the Tribunal. As we have already observed, it would have disastrous effect, as Mr. Subhayu Banerjee
appearing for the State could impress us on that score. The situation became so complex because of the callousness on the part of the State, at
least, in his usual fairness, Mr. Banerjee admitted so. He however left it to the Court for an answer. He also admitted that despite frantic attempt he
could not find out any solution. We are faced with a puzzle whose answer is yet to be found out. This is, how we look at the controversy placed
before us.
Facts
2. Subject controversy relates to promotion and/or relative seniority amongst the cadres working in State Fire Service. As per the prevalent
Service Rules, there was no specific guideline with regard to promotion on year to year basis that created the complex situation resulting in the
present controversy. The conflict was between two groups, being one (hereinafter referred to as Direct Recruitment Sub-Officers Group shortly
DRSO) who were admittedly senior to the other group enjoying the post of Station Officer through a regular promotional process from the Feeder
Post of Sub-Officers whereas the other Group (hereinafter referred to as Promotee Sub-Officers Group, shortly PSO) who were also promotees
in the post of Station Officers from the Feeder Post of Sub-Officers. The junior group joined the post of Sub-officers in or about 90s after being
promoted from the Feeder Post whereas the other group was recruited in 1980s and became Sub-Officers. In 1980 Rule 5 of the West Bengal
Fire Service Recruitment Rules 1950 was challenged in CR. No. 9974 (W) of 1980. On May 3, 1984 this Court declared Rule 5 of the West
Bengal Fire Service Recruitment Rules, 1950 as unfair and contrary to the constitutional mandate stipulated in Articles 14 and 16 of the
Constitution. The selection made for promotion as per Rule 5 was quashed. State filed an appeal. The Division Bench allowed the appeal vide
judgment and order dated December 22, 1988 and set aside the order of the learned single Judge. The petitioners therein filed a SLP before the
Apex Court in 1989 being No.3099 of 1989. The Apex Court vide order dated February 12, 1990 passed an interim order to the extent that any
promotion made during the pendency of the Appeal would be subject to the final decision in the said matter. The SLP was admitted and the Civil
appeal was renumbered as 1137 of 1990. It now appears that on March 31, 1998 the said appeal was dismissed due to non-service of notice of
the said appeal for last eight years.
3. The State however did not conduct any promotional process since 1990. In fact, the entire promotional process was stalled from 1984 because
of the protracted litigation. Although, there was no specific restraint made by the Apex Court the State did not venture to carry out the promotional
process during the said period. The order of dismissal of the Apex Court appeal was also not in the knowledge of the State for a considerable
period, as a result the promotional process was stalled for two decades. Whenever the exigency arose the State granted ad hoc promotions.
Those were never confirmed. In 1994 to 1996 PSO joined as Sub-Officers. The next promotional post was the post of Station Officer. Regular
promotion to the said post would require clearing of an examination conducted by PSC for confirmation to the post of Sub-Officers. PSO (two of
them) cleared out the said examinations between the period of May 10, 1999 and November 1999 (others cleared on March 15, 1999). The
Government vide Notification dated January 25, 1999 started regular promotional process for the post of Station Officers. It was rather an attempt
to regularize the ad hoc appointees who got ad hoc promotions from the post of Sub-Officers to Station Officers. The Director, West Bengal Fire
Service vide Memo dated January 25/February 26, 1999 asked the concerned eligible candidates to appear at the departmental test followed by
interview for promotion on regular basis. In the mean time the result of the PSC examination held on different dates as referred to above, was
published on March 15, 1999 when the PSO being respondent No.6 to 10 were successful and were confirmed in the post of Sub-Officers
except two, as stated above. Accordingly, both the groups participated in the departmental examination held on August 29, 2000 and were all
qualified for promotion to the next higher post being the post of Station Officer. On September 13, 2000 the authority published a merit list on the
basis of the said departmental examination. On the next day the promotions were given to both the groups. Pertinent to note, PSOs secured better
merit in the said examination than that of DRSOs. However, both the groups were happy after being promoted on regular basis as Station Officers.
Disputes arose after about six years when a gradation list was published placing DRSOs much above the PSOs, although, they faired well in the
examination and as such were senior to the other group. Objections poured in. Being aggrieved, PSO filed application before the Tribunal being
O.A. No.2736 of 2007. During pendency of the said application the authorities revised the gradation list and published the same giving effect from
May 28, 2007 being revised final gradation list. On a close look to the said list it would appear that the position of the PSOs became worse in the
final gradation list.
4. The Tribunal passed an interim order staying the effect of the original gradation list dated November 7, 2006. PSOs also challenged the final
gradation list by filing a supplementary application. The Tribunal finally heard the matter and disposed of the same vide judgment and order dated
April 19, 2010 appearing at pages 143-155(F) of the paper book. By the said order the Tribunal quashed both the gradation lists being list dated
November 7, 2006 and May 28, 2007. The Tribunal asked the authority to prepare a final gradation list in terms of Rule 5(2) of the West Bengal
Determination of Seniority Rules, 1981. Pertinent to note, in terms of Rule 5(2) in case of a single process of selection the relative seniority would
be determined in order of merit. Following such analogy the Tribunal held that merit would prevail since both the groups were considered in a
single selection process in the post of Station Officers. Being aggrieved, the DRSO filed the instant application before us which was heard by us on
the above mentioned dates.
Issues Raised by the Petitioners
5. Mr. Partha Sarathi Sengupta, learned Senior Counsel appearing for the petitioners raised the following issues :-
i) The DRSOs came in the post of Sub-Officers in early part of 1980s. Hence, they were entitled to be considered for promotion in the next higher
post of Station Officer after becoming eligible for the same. The State however failed to consider them contemporaneously.
ii) PSOs joined the post of Sub-Officer in 1994-96, much after the other group was borne in the cadre. Hence, they could not be treated at par.
iii) The Apex Court did not pass any order of restraint upon the State to conduct a promotional process. The State was negligent enough by not
holding regular promotional process for decades for which DRSOs should not suffer.
iv) Assuming but not admitting that the State was entitled to hold a single selection process considering both the groups, PSOs were not entitled to
participate in such process as PSOs were not borne in the cadre on the day when the notification was issued for holding the single selection
process not being confirmed in the post of Sub-Officers after clearing Public Service Commission Examination.
v) The Tribunal erred in applying the analogy of Rule 5(2) that could not be made applicable in the instant case in view of the fact that both the
groups could not be treated at par for the reasons stated in clauses (i) and (iv) above.
6. Mr. Dibyendra Narayan Roy, learned Counsel also appearing for DRSOs raised the following additional issues :-
i) As per the notification the eligible candidates were to apply within ten days from the date of such notification. AH the PSOs were not qualified
for the post within the stipulated period and as such could not be considered in a single promotional process.
ii) When the promotions were given in 2000 DRSOs did not feel aggrieved as no gradation list was published at that time. They were also not
aggrieved earlier as ad hoc promotions were given from time to time. They were happy when the gradation list was published. Right to sue accrued
only when gradation list was sought to be disturbed by the other group. Hence they felt aggrieved and approached the Tribunal for being added as
party respondents therein.
Issues Raised By The Respondents
7. Mr. Lakshmi Kumar Gupta, learned Senior Counsel appearing for PSOs raised the following issues: -
i) PSOs had cleared Public Service Commission Examination to qualify before the departmental promotional examination was held. Hence, there
could be no irregularity on that score.
ii) As per Rule 5(2), in a single recruit process merit would prevail while determining inter se seniority. Hence, the Tribunal was right in directing the
authority to follow the said Rule.
iii) The DRSOs participated in the selection process. They were much below the PSOs in the merit list. They did not challenge the merit list or the
result published by the authority. Hence, the belated objection would be of no consequence.
iv) The authority published the gradation list ignoring the merit. A final gradation list further down graded the meritorious candidates and the
Tribunal was right in quashing both the lists.
v) In case the DRSOs felt aggrieved for non-holding of the promotional process year to year they could have approached the Tribunal compelling
the State to hold such process. Once they accepted such position and the ad hoc promotions and participated in a single promotional process they
were not entitled to raise a belated plea that their seniority would be governed as per their position in the Feeder Post and not in terms of Rule
5(2).
vi) The notification for single recruitment process was published on February 26, 1999. All PSOs cleared out the Public Service Commission
Examination in early 1999 whereas the examination for the promotional process were held on May 15, August 28 and August 29, 2008 i.e. much
after all the candidates cleared Public Service Commission Examination and got confirmed in the Post of Sub - Officers. Hence, the plea raised by
DRSOs on that count could not hold good.
vii) In absence of any appropriate Rule it was not incumbent upon the State to conduct promotional process on year to year basis. In any event
since the DRSOs did not raise such issue contemporaneously, belated attempt on that score would not be valid.
Issues Raised By The State
8. Mr. Subhayu Banerjee, learned Counsel appearing for the State took the following pleas :-
i) It was a mistake on the part of the State not holding regular promotional process on periodical basis. This happened due to misconstruing the
order of the Apex Court resulting in a complex situation that arose subsequently,
ii) Seniority should be given due regard. The State was supposed to conduct the promotional process on regular basis. It could not do so. Hence,
the subsequent process in 1999-2000 could not be said to be a single process that would make Rule 5(2) applicable. Tribunal erred in
appreciating so.
iii) When there was conflict between law and equity the Court should grant equitable relief, particularly sitting in writ jurisdiction, stretching the law
to the permissible extent to end the crisis.
iv) Upholding of the order of the Tribunal, would create a disastrous situation as it would, in course of time, make the seniors sub-ordinate to the
juniors as the next promotional process was based on seniority and the PSOs would automatically get such promotion to the exclusion of the
DRSOs making them sub-ordinate to them.
Cases Cited
i) Reserve Bank of India Vs. N.C. Paliwal and Others,
ii) A. Janardhana Vs. Union of India (UOI) and Others,
iii) H.V. Pardasani and Others Vs. Union of India (UOI) and Others,
iv) Vinod Kumar Sangal v. Union of India (UOI) and Ors., (1995) 4 SCC 246
v) U.P. Co-operative Cane Union Federation Ltd. Vs. Commissioner of Income Tax,
vi) Baidyanath Jena and Another Vs. Union of India and Others,
vii) S.P. Badrinath Vs. Govt. of A.P. and Others etc. etc.,
viii) Vijay Singh Charak Vs. Union of India (UOI) and Others,
ix) M.P. Palanisamy and Others Vs. A. Krishnan and Others,
x) 2011 Lab.I.C. 20 (State of Uttar Pradesh & Anr. vs. Santosh Kumar Mishra & Anr.)
xi) Pawan Pratap Singh and Others Vs. Reevan Singh and Others,
Our View
Before we go into the controversy, let us first discuss the cases cited at the Bar.
9. The decision in the case of H. V. Pardasani & Ors. (supra) and Baidyanath Jena (supra) were cited to support the contention that the
promotional rules should be strictly followed and no departure could be made therefore. In the case of H. V. Pardasani and Ors., the Apex Court
observed that in absence of any special provision regarding determination of seniority length of continuous service in any particular grade would be
the basis of determining seniority in such grade. However, if a rule prescribes a method of fixation of inter se seniority, such rule would prevail.
Identical view was expressed in the case of Baidyanath Jena (supra). The Apex Court in the earlier case of Reserve Bank of India (supra) also
observed in the same way. The Apex Court therein held that it would be open to the State to lay down any rule which it thinks appropriate for
determining seniority in service. The Court is not competent to strike down such rule on the ground that it needs another rule which would have
served better. It could only be done when the said rule was arbitrary or irrational or results in ""inequality of opportunity amongst the employees
belonging to the same class.
10. The decisions in the case of Union of India & Ors. vs. N. R. Banerjee & Ors. (supra), Vinod Kumar Sangal (supra) and Vijay Singh Charak
(supra) were cited on the issue of backlog. Paragraphs 5 and 6 in the case of N. R. Banerjee (supra), the Apex Court observed the DPC should
be convened at regular annual intervals to draw panels which could be utilized for giving promotions against the vacancies occurring during the
course of a year. In the case of Vinod Kumar Sangal (supra), identical view was taken by the Apex Court. However, Mr. Gupta distinguished
these three cases by saying that the Apex Court therein considered a situation where the rules specifically provided for holding DPC on regular
intervals. According to him, the Apex Court did not want to make such observation, rather did not make such observation in a case where there
was no such rule prevalent. Similar view was taken by the Apex Court in the latest decision in the case of State of U. P. & Anr. vs. Santosh
Kumar Mishra & Anr. (supra). Here year to year theory was discontinued subsequently. In paragraph 32, the Apex Court observed that on
account of a deliberate decision by the State, private respondents were left out of the zone of consideration. The decision taken by the State at that
time to accommodate the diploma holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the
disadvantage all those who had been deprived of an opportunity of being appointed by virtue of the same rules.
11. In the case of A. Janardhana (supra), the Apex Court considered a similar situation and observed that when someone was working and
gathering experience in the post, a fresh recruit from the market comes and joins them at par much after the past recruits were borne in service,
would have demoralizing effect on service. The Apex Court appreciated the situation and observed, ""if this has not a demoralizing effect on service
we fail to see what other iniquitous approach would be more damaging."" The Apex Court observed that the direct recruit should not be permitted
by any principle of seniority to score a march over a promotee as it would be arbitrary and violative of Articles 14 and 16 of the Constitution of
India.
12. If we take a sum total of the precedents as discussed above, we would find that if the strict letters of law are followed, the Tribunal order must
be upheld as it would mean the survival of the fittest. We, however, wish to look at the problem from a different angle. DRSO group was borne in
the cadre of Sub-Officers before PSO. Hence, they were admittedly senior to PSO. It is true that the rules do not specifically mandate DPC to sit
on year to year basis. However, such was the healthy rule of practice in case of promotion and/or recruitment. In case the State conducted the
process on year to year basis DRSO would have got opportunity to compete for the post and such competition would have been restricted to
themselves till PSO joined them in later part of 1990s. The State admittedly misconstrued the order of the Apex Court which did not impose any
restraint on the State to conduct the promotional process. The subject litigation as we gather from the pleadings was a challenge to Rule 5 of the
West Bengal Fire Service Recruitment Rules, 1950. This was challenged by a group of fire operators who were aspiring for promotion in the post
of Sub Officers. In any event, the State adopted a peculiar mode of promotion giving ad hoc promotions for decades without regularizing them by
holding a regular recruitment process. If someone is to be blamed, it must be the State and not its employees belonging to either group. The State
created the situation and made it so complex and then tries in vain to wriggle out of the situation and ultimately leaves it to the Court for a solution.
We fully agree that if the order of the Tribunal is upheld today in course of time the seniors would become subordinate to the juniors which is not
expected in an emergency service like fire service where the employees must not suffer from frustration. We, sitting in equitable jurisdiction, must
oversee such circumstance, otherwise we would be failing in our duty to do substantive justice which is not only beneficial for the State and its
employees but also good for the public at large who are the ultimate beneficiaries of the service rendered by both the groups at the time of disaster.
We are prompted to say so looking at the observation made by the Apex Court in A. Janardhana (supra). It is true that under Rule 5(2), single
selection process would fix interse seniority in accordance with the merit. However, if we have a close look to the circular dated January 25,
2009/February 26, 2009 and on a combined reading of both the circulars, we would find that this was nothing but a one time process to regularize
all ad hoc appointees who were promoted on ad hoc basis on different dates. It would be difficult to describe such process as a single recruitment
process. It was rather a process initiated by the State to regularize their irregularity. Hence, it would not be proper to apply Rule 5 (2) while
determining interse seniority.
13. The applications, thus, succeed. The order of the Tribunal impugned hereby is set aside.
14. We find that only 5 (five) persons approached the Tribunal challenging the gradation list. The State committed a mistake, the State would find
out ways and means to accommodate those five in the next promotion which would be strictly on the basis of seniority, if required by creating
supernumerary post. However, such promotion must not disturb the gradation list that was prepared finally by the State applying the logic of
seniority. We are told that provisional list contained mistakes. However, while preparing the final gradation list, the position became worse. Hence,
before giving effect to the final gradation list, the State would also verify each case to minimize the errors and then proceed for the next promotional
process in the next promotional post. Such regular process of promotion must not be disturbed by the State while accommodating the five PSO
who approached the Tribunal.
15. The dispute started in the year 2007 when five (5) applicants approached the Tribunal challenging the gradation list. The others neither joined
them nor made any independent approach up till date, although four years have passed in between. Hence, the special privilege given by this order
to those five (5) must not be extended to others, although being similarly circumstanced. We purposely make it clear as it would have another
complex situation disturbing the regular process of promotion.
16. The W.P.S.T. No.295 of 2010 and W.P.S.T. No.33 of 2011 are disposed of without, however, any order as to costs.
17. Urgent photostat copy will be given to the parties, if applied for.
Dr. Mrinal Kanti Chaudhuri, J.
18. I agree.