LexASIS KUMAR SAMANTA AND ORS. versus STATE OF WEST BENGAL AND ORS.
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[2014] 7 S.C.R. 645 ASIS KUMAR SAMANTA AND ORS. v. STATE OF WEST BENGAL AND ORS. (Civil Appeal No. 1331 OF 2001) SEPTEMBER 04, 2014 [R.M. LODHA CJI, KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.] A B Service law: Promotion - Retrospective effect - Vacancy occurring on 1. 1. 1989 - Private respondents seeking C promotion - Their case not processed due to interim order passed by High Court restraining the authorities from giving them promotion - Selection process for promotion commenced after vacation of stay order on 11. 12. 1990 - Public Service Commission recomrriended that private D respondents be given retrospective seniority with effect from 31.12.1990 - According to r.6(2) of the W.B. Services (Determination of Seniority) Rules, 1981, the promotees shall be en-bloc senior to the direct recruits of the same year - Therefore, private respondents given notional seniority with E effect from 01.01.1990 - Challenge against- Held: The private respondents could not have been made to suffer because of intervention by the court by way of interim relief - State Government was not in a position to proceed with the selection by way of promotion under the Rules in view of the stay order F passed by the court - No sooner the stay order was vacated, the process for the selection by way of promotion commenced - The impugned seniority list cannot, in these circumstances, be said to be legally flawed - WB. Services (Determination of Seniority) Rules, 1981 - r.6(2). U.D. Ldama and Ors. vs. State of Sikkim and Ors. (1997) 1 SCC 111: 1996 (9) Suppl. SCR 180 - relied on. I 645 G H A B 646 SUPREME COURT REPORTS (2014] 7 S.C.R. Case Law Reference: 1996 (9) Suppl. SCR 180 relied on Para 2 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1331 of 2001 From the Judgment and order dated 24.03.1999 passed by a Division Bench of the Calcutta High Court Dismissing W.P.S.T. No. 33 (W) of 1997. C Rupesh Kumar, Parvesh Bahugana, Pankhuri Shrivastava, for the Appellant. P.P. Rao, Anip Sachthey, Soumitra G. Chaudhuri, Shagun Matta, Sarla Chandra, Raj Kumar Mehta Rajani K. Prasad, Abha R. Sharma, Harry Mangsataban, Rameshwar Prasad D Goyal, Satyendr Kr. Singh, Somiran Sharma, Ahanthem Bimol Singh, Ahanthem Henry, Ahanthem Rohan Singh, Anil Kumar Mishra-I, Vivek Kumar for the Respondents. E F G The Judgment of the Court was delivered by R.M. LODHA, CJI : 1. It is not necessary to answer the reference for two reasons. 2. In the first place, there is already a three-Judge Bench decision, namely, U.D. Lama and Ors. Vs. State of Sikkim1 and Ors.1 on the issue referred by the two-Judge Bench. In U.D. Lama1, this Court held in paragraphs 20 and 21 of the report as follows :- "20. On the other hand, it cannot be overlooked that the appellants were not appointed by following the regular procedure of appointment. Under Rule 4(1 ), recruitment could be made to the newly-created State Civil Service by competitive examinations to be held by the Sikkim Public Service Commission. This competition is not H 1. (1997) 11 sec 111. ASIS KUMAR SAMANTA v. STATE OF WEST 64 7 BENGAL [R.M. LODHA, CJI.] confined to persons who are already in government A employment. The second method of recruitment is selection from persons "serving in connection with the affairs of the State of Sikkim''. In the second category of recruitment, specifically no provision of holding written and viva voce has been laid down. The respondents B claim that had the procedure in Rule 4(1)(b) been followed, they would have got into tt Service without any examination. But their lawful excep ·on was denied by the failure of the Government to set p a Commission or appoint a Chairman. What would have happened in _c normal course, did not happen because of the Government's failure. Only because of this, quite contrary to the Rules, written and oral tests were held. This was upheld by this Court principally on the ground of what was described as "peculiar situation" which was created by the D absence of a Commission and its Chairman. The selection and appointments made in 1982 were dictated by peculiar circumstances obtaining at that time. The appointments were not made strictly in accordance with the Rules but, as was held by this Court, in exercise of E the executive power of the State. It is true that some of the respondents appeared in the tests and did not qualify but there is substance in the content
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