S.B. Sinha, J. - (1.) The writ application is directed against a judgment and order dated 17.11.97 passed by the West Bengal Administrative Tribunal in O.A. No. 759 of 1996, whereby and whereunder the application filed by the petitioners herein had been disposed of directing : "In view of the facts as stated above, it is found that the same issues have been decided by the Hon'ble Court and we cannot open the issues again. It would be better to limit the consideration in the light of the judgment passed by the Hon'ble High Court in F.M.A.T. No. 589 of 1993. The authority concerned have given promotions to 3 petitioners and have stated that the cases of the others would be considered in due course. Such being the case, the authority concerned have complied with the orders of the Hon'ble Appeal Court to some extent. But the judgment in the appeal being delivered on 27.11.95 and the promotion order being issued on 16.2.96 much time have already been elapsed and the remaining petitioners have been awaiting promotions anxiously. We are, therefore, inclined to give direction to the authority concerned, i.e. respondent No. 2, the Secretary, Food and Supplies Department, Govt. of West Bengal, to consider the cases of other petitioners for promotion, and in case of any of these officers is found ineligible for promotion, a reasoned order should be passed, within a period of 90 days from the date of communication of this order." The petitioners as well as the private respondents were at all material times and still are working as Assistant Directors and/or equivalent posts. A question arose as regards their inter se seniority depending on their respective dates of confirmation. The promotion policy as engrafted in West Bengal Service (Appointment, Probation and Confirmation) Rules, 1979, was sought to be amended. The said appointment was questioned before this court, and the same had been set aside. The case of the petitioners is that the private respondents although had not passed the departmental examination, which is a pre-requisite for their confirmation, they had been granted a higher scale of pay, whereas the writ petitioners herein had passed the departmental examination and thus are liable to confirmation in terms of the rules, and in that view of the matter, they are entitled to emoluments higher than the private respondents. The relevant Rule 5(b) of the said Rules reads thus : "A Government employee shall be confirmed and made permanent on satisfactory completion of the period of probation. Where passing of any Departmental Examination is essential before confirmation, the provision of the Chapter-I of the Services (Training and Examination) Rules, West Bengal shall have to be complied with." Despite the same, the position of the private respondents was as under : JUDGEMENT_52_LAWS(CAL)5_2000.HTML
(2.) Mr. Neogi submits that although in terms of the order passed by this court on the earlier occasion, cases of the parties as regards their respective position in the gradation list had been considered, but the respondents have failed and/or neglected to consider this vital aspect of the matter. According to Mr. Neogi, those officers who had not been confirmed consequent upon their non-passing of the departmental examination as was required in terms of Rule 5(b) aforementioned, their position cannot be higher up in the gradation list in comparison to that of the writ petitioners who had been confirmed having passed the departmental examination.
(3.) Having heard the learned counsel, we are of the opinion that keeping in view the fact that in the instant case confirmation is not to be granted automatically or being not a fortuitous circumstance, as a result whereof the seniority of the respective employees would be normally determined, from the date of their initial appointment, this aspect of the matter may also be considered by the authorities concerned afresh. Such consideration may be made at an early date, and preferably within a period of 8 weeks from the date of communication of this order. The order of the learned Tribunal is modified to the aforementioned extent and the writ petition is disposed of. Xerox certified copy, if applied for, be supplied on priority basis. Order accordingly.;