In the absence of a merit list, the seniority of candidates selected in the same selection process should be determined according to the date of birth.

The Court. : This Writ petition is directed against the order dated July 12, 1999 passed by the West Bengal Administrative Tribunal (“the Tribunal” for short) in O.A. No. 3126 of 1998 whereby the writ petitioner's application, inter alia, for treating him senior to the respondent No.7 (the private respondent herein) in the cadre of Lower Division Clerk of Civil Defence Organisation at Malda, was dismissed.

2. By virtue of an order dated April 15, 1985 by the Controller of Civil Defence, Malda, the petitioner, Haragopal Ghosh was appointed as a Lower Division Clerk in the aforesaid Organisation at Malda and he joined the post on April 23, 1985.

3. The petitioner was confirmed in Group ‘C’ post w.e.f. April 23, 1988. The respondent No.7, Sanat Kumar Majhi who also joined the post of L.D.C. in the same organisation at Malda was confirmed in Group ‘C’ post w.e.f. April 24, 1988. The final Gradation List of the non-gazetted staff of Civil Defence Organisation, Malda was published on May 31, 1992 by the District Magistrate and. Collector of Civil Defence, Malda. In that list the name of the petitioner appeared at serial No.3 and that of the private respondent at serial No.4.

4. The private respondent filed a Writ Petition being C.O. No. 3627(W) of 1992 challenging the draft Gradation List of the non-gazetted employees as on February 5, 1992 of Civil Defence Organisation as by his Memo No. 68-CD dated May 22, 1992, the Deputy Controller, Civil Defence, Malda rejected the objection of the private respondent, Sanat Kumar Majhi who claimed to be senior to the petitioner herein.

5. On transfer to the Tribunal the said Writ Application was re-numbered as T.A. No. 1034 of 1996.

6. In the said proceeding before the Tribunal it was the contention of the private respondent herein that at the time of initial recruitment to the post of L.D.C. he was placed in the first position in order of merit and as such his relative seniority in the cadre/a post of L.D.C. should be maintained in the Gradation List in accordance with the provisions of Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 (‘1981 Rules’ for short). However, in the Gradation List it is alleged, his seniority was not properly maintained.

7. The petitioner herein contested the said T.A. No. 1034 of 1996 and contended that no merit list was maintained at the time of recruitment of Group 'C' staff. It was his case that after central selection at the State level the Director of Civil Defence sent lists of selected candidates district wise to appropriate authorities for issuance of formal letters of appointment to the selected candidates and that no list of all the selected candidates according to their merit was maintained.

8. On April 30, 1997 the Tribunal disposed of the application (T.A. No. 1034 of 1996) directing the respondents authorities to revise and prepare the Gradation List in accordance with the 1981 Rules read with the Finance Department Memo dated June 12, 1981 within six weeks from the date of communication of the order. It was clarified in the said order that the promotion already made in accordance with the impugned Gradation List should not, be disturbed but suitable adjustment if required should be made for final preparation of the Gradation List in accordance with the guidelines as mentioned in the said order.

9. The aforesaid order dated April 30, 1997 passed by the Tribunal was challenged in this Court in W.P.S.T. No. 68 of 1997 in which a Division Bench of this Court by its order dated March 3, 1998 granted leave to the petitioner, Haragopal Ghosh, to make a fresh application before the Tribunal if he was aggrieved by the determination made by the Tribunal. The following reliefs were claimed by the private respondent herein, in the said fresh application before the Tribunal.

"a) Order being Memo No. 114/1(4)/CD dated 24.7.97 (Annexure 'M' last sheet) and/or any subsequent order passed by the District Magistrate and Controller of Civil De