JUDGMENT :

Kausik Chanda, J.

The dispute between the appellant and respondent no.1 revolves around an appointment to a promotional post namely, Head Assistant under the Nadia Zilla Parishad.

2. The relevant undisputed facts may be summarised as follows.

3. The appellant was initially appointed as a Lower Division Assistant on July 3, 1990. Thereafter he was promoted as an Upper Division Assistant with effect from July 2, 2008. The respondent no.1 was appointed as a Lower Division Assistant on November 17, 1999, and he was also promoted as an Upper Division Assistant with effect from the same date. In the gradation list, however, the appellant was placed above respondent no.1 on the basis of his seniority as per the initial date of appointment.

4. The relevant Zilla Parishad, thereafter, initiated the proceedings for the appointment of Head Assistant, which was the next promotional post from Upper Division Assistant.

5. When the admit cards were issued to the prospective candidates, it was mentioned therein that the recruitment will be in terms of the notifications no.2247/PN/O/3R-2/96 dated 20th May 1997 and no.3734/PN/O/III/2E-62/09 dated 3rd July 2012 of P&RD Department, Govt. of W.B.

6. In terms of the said circular dated July 3, 2012, a written test was held wherein the appellant scored 20 marks out of 50 and respondent no.1 scored 31.5 marks. Despite scoring above the appellant, the Zilla Parishad issued an appointment letter to the appellant on the basis of a clarification dated May 2, 2017, from the Panchayat & Rural Development Department advising the Zilla Parishad to promote the appellant “owing to seniority in terms of this Department’s Order No.3734/PN/2E-62/09 dated 03.07.2012.”

7. Respondent no.1, thereafter, filed this writ petition seeking his appointment to the post of Head Assistant. Following an interim order passed in the said petition the appointment of the appellant to the said promotional post was not given effect to.

8. The learned Single Judge by the order impugned dated April 17, 2019, allowed the writ petition relying upon a judgment passed by another learned Single Judge of this Court in WP No.15909(W) of 2013 (Chinmoy Dey v. The State of West Bengal) and directed to promote the respondent no.1 with consequential benefits.

9. The relevant part of the judgment rendered in Chinmoy Dey case is quoted below:-

“The above observation is germane in the facts of the instant case since the only point raised by the private respondent no.6 as well as the North 24-Parganas Zilla Parishad is the existence of the Government Order dated 3rd July, 2012. Relevant portion of the Government Order reads as follows:

“8) The written examination shall be only for the purpose of screening and not for the purpose of elimination nor for determining their seniority in the promotional post. The seniority of promoted candidates shall be determined solely on the basis of the position of the qualifying candidate in the existing gradation list of the feeder post.”

If one compares the above-quoted clause of the Government Order with the relevant statutory Rule under Chapter II of the West Bengal Panchayat (Recruitment and Conditions of Appointment of Employees of Zilla Parishad) Rules, 1997, with regard to method of recruitment, wherein it has been clearly stated that in respect of Head Assistant, the method of recruitment would be by way of promotion from amongst the Upper Division Assistants and Accountants selected on the basis of merit-cum-seniority, it would be clear that the Government Order – to the extent which has been quoted hereinabove – is wholly contradictory and contrary to the statutory rule as applicable for promotion to the post of Head Assistant. As such, the observations made by the Supreme Court in Dr. Rajinder Singh’s case (supra), as quoted hereinbefore, are squarely applicable in the facts of the instant case and there is no requirement of the petitioner to challenge the Government Order dated 3rd July, 2012, separately.

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