A candidate cannot be deprived of his entitlement due to an action taken by the authorities which was wrong and held to be wrong by a Court of law.

JUDGMENT :

DEBANGSU BASAK, J.

1. The writ petition is directed against an order dated May 11, 2015 passed by the West Bengal Administrative Tribunal in O.A.1280 of 2013.

2. By the impugned order, the Tribunal, directed the authorities to grant the private respondent herein, notional seniority with reference to his junior in the merit list for the purpose of Career Advancement Scheme (CAS) benefit and promotion and also pay protection with reference to his junior.

3. The writ petition is at the behest of the State.

4. Learned Senior Advocate appearing for the State submits that, the writ petitioner initially participated in a selection process. He was found to cross the upper age limit. Consequently, his candidature was rejected. Subsequently, after litigation, by the judgment and order dated April 29, 2011 passed by the Hon’ble High Court in W.P.S.T.599 of 2009, the writ petitioner was directed to grant the private respondent employment forthwith. He submits that such judgment and order was complied with and appointment letter was issued on December 15, 2011 to the private respondent.

5. Learned Senior Advocate appearing for the writ petitioners submits that, the seniority of the private respondent will commence from his appointment and not from anterior date. In support of his contention he relies upon (2000) 7 Supreme Court Cases 561 (Suraj Parkash Gupta and others vs. State of J & K and others).

6. Learned Senior Advocate appearing for the writ petitioners submits that, never ever, did the private respondent agitate the point of seniority before any forum. Consequently, the claim for seniority or the claim that the writ petitioner should be treated in service from an anterior date than the date of his appointment is barred under the principles of res judicata and/or principles akin to Order II Rule 2 of the Code of Civil Procedure, 1908.

7. Learned advocate for the private respondent submits that, the private respondent participated in a selection process. He was unfairly treated in the selection process by denying the appointment on the basis of private respondent allegedly breaching the upper age limit. He submits that, litigation ensued which ultimately resulted in the judgment and order dated April 29, 2011 passed by the High Court in W.P.S.T.599 of 2009. The writ petitioners were directed to grant appointment to the private respondent. However, appointment letter was not issued, although, the private respondent was allowed to join the services. The private respondent approached the Tribunal once again, by way of O.A.1574 of 2012, where, two primary prayers were made namely, issuance of formal appointment letter and secondly, protection of seniority notionally. He draws attention of the Court to the order dated June 26, 2013 passed by the West Bengal Administrative Tribunal in O.A.1574 of 2012. He submits that, during the pendency of the O.A., formal appointment letter was issued. The Tribunal, directed the authorities to consider the prayer for seniority as a representation and to pass final order after holding that the private respondent was with the legitimate claim of pay protection and seniority against his juniors. He refers to the reasoned order passed by the Commissioner of Police which negated the claim for seniority of the private respondent. He submits that, the private respondent thereafter approached the Tribunal by way of O.A.1280 of 2013 which was disposed of by the impugned order granting relief of seniority and pay protection. He submits that, the private respondent was in serial no.15 in the merit list. The serial no.18 was appointed. He submits that the private respondent is entitled to seniority notionally, from the date of appointment of Serial no.18 in the merit list, at the barest minimum.

8. The private respondent participated in the selection process for the post of Constable in the Kolkata Police. He was called for interview on August 13, 1988. Private respondent was empanelled as serial no.15 in the se