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IN THE HIGH COURT OF CALCUTTA
Sambuddha Chakrabarti, J.
Dipak Bandhapadhyay - Appellant
Vs.
Kolkata Metropolitan Development Authority and Ors. - Respondents
W.P. No. 19722 (W) of 2016
Decided On : 11-08-2017
Seniority - Gradation List - West Bengal Services (Determination of Seniority) Rules, 1981 - The court set aside and quashed the gradation list of Technical Assistants (Civil) prepared by the respondents on July 26, 2016, and directed the preparation of a fresh gradation list strictly in accordance with the law and the procedure laid down. The court found that the preparation of the gradation list did not adhere to the principles for determining seniority of direct recruits and was not in line with the West Bengal Services (Determination of Seniority) Rules, 1981. The court held that the subsequent appointments were the result of a different selection process and that the concept of merit-cum-seniority had no place in the preparation of a seniority list. The court emphasized that the relative seniority should be determined by the order of merit in which candidates are selected for such appointment, and the order of merit in which the petitioners were selected placed them miles ahead of the subsequently appointed employees.
Fact of the Case:
The petitioners challenged the validity of the gradation list of Technical Assistants (Civil) published by the respondents, alleging that the seniority of the petitioners over the private respondents was not maintained. The respondents filled up vacancies with subsequent appointments without adhering to the rules for reservation and without holding further interviews or selection processes. The court found that the subsequent appointments were the result of a different selection process and did not adhere to the principles for determining seniority of direct recruits.
Finding of the Court:
The court found that the preparation of the gradation list did not adhere to the principles for determining seniority of direct recruits and was not in line with the West Bengal Services (Determination of Seniority) Rules, 1981. The court held that the subsequent appointments were the result of a different selection process and that the concept of merit-cum-seniority had no place in the preparation of a seniority list. The court emphasized that the relative seniority should be determined by the order of merit in which candidates are selected for such appointment, and the order of merit in which the petitioners were selected placed them miles ahead of the subsequently appointed employees.
Issues: The issues involved in the case were whether the subsequent appointments could be placed above the previously recruited petitioners in the gradation list prepared by the respondents authorities and whether the subsequent appointments were the result of a different selection process.
Ratio Decidendi: The court held that the preparation of the gradation list did not adhere to the principles for determining seniority of direct recruits and was not in line with the West Bengal Services (Determination of Seniority) Rules, 1981. The court emphasized that the relative seniority should be determined by the order of merit in which candidates are selected for such appointment, and the order of merit in which the petitioners were selected placed them miles ahead of the subsequently appointed employees.
Final Decision: The court set aside and quashed the gradation list of Technical Assistants (Civil) prepared by the respondents on July 26, 2016, and directed the preparation of a fresh gradation list strictly in accordance with the law and the procedure laid down. The writ petition was allowed with no order as to the costs.
Sambuddha Chakrabarti, J.
1. The petitioners, 31 in number, have challenged the validity of the gradation list published by the respondents on July 26, 2016. They have inter alia prayed for setting aside and quashing of the said gradation list and preparing a fresh gradation list of Technical Assistants (Civil), (TA, for short) by restoring seniority of the petitioners over the private respondents.
2. The case of the petitioners, in short, is that they are members of Scheduled Caste, Scheduled Tribes, O.B.C., and persons in Physically Handicapped categories. The respondents Nos. 4 to 31 are the employees of Kolkata Metropolitan Development Authority (KMDA, for short) who have been given higher places in the seniority/gradation list of TAs in the civil wing.
3. In the year 2007 KMDA invited applications for filling up the posts of TAs against the total vacancies of 127 posts. The petitioners along with others applied and a panel of 91 selected candidates was prepared and published on May 2, 2008. Ultimately, the petitioners joined the said posts between July 29, 2008 and September 3, 2008. The petitioners have given a breakup of the panel of 91 selected candidates, viz., 51 belonging to the General Category, 20 belonging to the S.C, 8 belonging to the S.C (E.C) and others. The private respondents who belonged to the General/Unreserved category also participated in the selection process pursuant to the advertisement; but their names were not included in the panel of the selected candidates.
4. The petitioners were all confirmed on January 3, 2011.
5. On September 23, 2015, the respondents published a provisional gradation list of the TAs in which the petitioners were included. They, however, through several letters highlighted the fact of the respondent authority that the total number of posts for the TAs was 127, whereas the total number of appointed candidates became 145. About 57 candidates were appointed in the year 2009 and thus there was an excess of 21 candidates. The list of 148 candidates was never published and the appointments made in the year 2009 were unauthorized as the rules for reservation had not been followed in the true sense. The candidates of the 2008 batch should come before the 2009 batch in the gradation list. A specific case has been made out by the petitioners that two of the private respondents holding Serial Nos. 22 and 51 and who joined in June and July, 2009 respectively have been placed much above the petitioners in the gradation list.
6. It is the further contention of the petitioners that the S.C, S.T. and O.B.C candidates who joined in the 2008 were placed much below the general candidates joining in the year 2009 without following the 100 point roster for reservation. The petitioners further allege that by a letter dated March 8, 2016, the respondents intimated the petitioner No. 1 that in connection with the objection against the provisional gradation list, he was directed to attend a hearing on March 11, 2016. Similar letters were also issued to other petitioners who had protested against the provisional gradation list directing them to attend the hearing on some other dates.
7. About the hearing, the petitioners complained that the respondents authorities did not consider their claims and grievances and no relief was forth-coming.
8. Since about 36 out of 127 posts were lying vacant, the Joint Secretary sent a letter to the Joint Director of Employment seeking permission to fill up those posts by the general candidates instead of General (E.C.) candidates. The Joint Director of Employment wrote back confirming that there were no suitable candidates for the posts of Assistant Engineer and Technical Assistant conforming to the specification in the live register of Exempted Category candidates. Since 36 posts were lying vacant the authority approached the Joint Director of Employment seeking his permission to fill up the vacancies meant for EC candidates by the non-EC category candidates. By
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