ASHIM KUMAR BANERJEE - (1.) MOOT QUESTION
(2.) THE moot question involved herein as to what would be the effect of Article 16(4A) of the Constitution in the light of the Apex Court decisions in the case of Ajit Singh Januja1; Ajit Singh2 and Nugraj3 so culminated in Rajasthan Case4. The petitioner Keshob Chandra Dakshy joined the State Engineering Service as Assistant Engineer (Electrical) in Public Works Department in the year 1994 through Public Service Commission. In the same year the private respondents Subhasis Biswas, Nikhil Kumar Saha and Pradyot Kumar Sikdar being the respondent nos. 7, 8 and 9 also joined as Assistant Engineer in the same Department. As per the Gradation List Keshob was admittedly senior to all three in the post of Assisting Engineer. However by dint of their caste status (Scheduled Caste) the respondent nos. 7, 8 and 9 were promoted to the post of Executive Engineer before Keshob. Subhasis got the promotion on 1 1996(2) SCC 715 (Ajit Singh Januja & Ors. VS- State of Punjab & Ors.) 2 AIR 1999 SCC 3471 (Ajit Singh & Ors. VS- State of Punjab & Ors.) 3 2006 (8) SCC 212 (N. Nugraj & Ors. VS- Union of India & Ors.) September 24, 2001 whereas Nikhil and Pradyot got it on April 8, 2002 and November 25, 2002 respectively. Keshob as a general candidate got the post of Executive Engineer on March 27, 2003. Accordingly, the Gradation List in the post of Executive Engineer was prepared and published on November 5, 2004 showing respondent nos. 7, 8 and 9 senior to Keshob. In 2008 Subhasis, Nikhil and Pradyot got further promotion in the post of Superintendent Engineer. However Keshob is still languishing in the post of Executive Engineer and thus became subordinate to Subhasis, Nikhil and Pradyot. Keshob approached the Tribunal in 2010 by filing O.A. no.898 of 2010 by making a grievance that he should have regained his seniority after moving to the post of Executive Engineer by dint of Rule 5(5) of the Seniority Rules. He also complained that Rule 5(5) so introduced in 2001 could not have been deleted in May 21, 2004 that too, retrospectively with effect from November 18, 2001. He challenged the vires of such deletion. The Tribunal considered the issue upon hearing the rival contentions. The Tribunal rejected the claim by finding the said application without any merit. 4 2011 (1) SCC 467 (Suraj Bhan Meena & Anr. VS- State of Rajasthan & Ors.) ANALYSIS OF The TRIBUNALS JUDGMENT i) Keshob was admittedly senior to the private respondents. He did not raise any objection when they got promotion before him and was placed in the Gradation List before him despite he got the promotion in 2003. He also did not object when Subhasis and Nikhil got promotion in 2008. It was only when Pradyot was about to be considered for the post of Superintending Engineer, he approached the Tribunal. ii) Regaining of seniority was not possible in view of deletion of Rule 5(5) with retrospective effect from October 18, 2001. iii) Seniority Rule in promotion would be determined by length of service in the promotional post unless such promotion was decided on the basis of merit. The situation stood altered in view of the decision in the case of Birpal Chauhan5 and Ajit Singh Januja. The Parliament however by the 85th amendment in 2001 introduced Article 16(4A) as amended nullifying the effect of the Supreme Court judgment in the case of Bir Singh and Ajit Singh Januja. Hence, in view of Article 16(4A) as amended would stand in the way of giving relief to Keshob. Nagaraj upheld the 85th amendment. Hence, deletion of Rule 5(5) was valid and could not be assailed. 5 1995(6)SCC684 (Union of India VS- Birpal Chauhan) iv) West Bengal Scheduled Caste and Scheduled Tribe (Reservation of Vacancies in Services and Posts) Act, 1978 was enacted on May 5, 1976 making provision for reservation for the Scheduled Caste and Scheduled Tribe candidates both at the time of recruitment as well as promotion particularly by Rule 10 of the West Bengal SC and ST (Reservation of Vacancies in Services and Post) Rules, 1978. Neither the said Act nor the Rules were under challenge. v) The deletion of rule 5(5) of the Seniority Rules 1981 was not affected by Suraj Bhan Meena.
(3.) INSTANT PROCEEDING Being aggrieved, Keshob approached us by filing this application. Precedent CREATED BY ONE OF US The identical issue was considered by me sitting in a Division Bench in the case of Ranjit Halder 6. In the said decision almost an identical situation arose, however Ranjit did not delay his challenge. He contemporaneously objected and came before the Tribunal and subsequently to us when his junior by dint of his backward status superceded him in the Gradation List. We held in favour of Ranjit by observing that Ranjit was entitled to regain his Ranjit Haldar VS- State of West Bengal & Ors. (WPST 448 of 2004) seniority by dint of original Rule 5(5) as introduced in 2001. Pertinent to note, Ranjit got the promotion in 1995 whereas his colleagues got the promotion in 1996. In 2004 combined Gradation List was published that gave rise to the grievance of Ranjit. We applied the ratio decided in Ajit Singh and observed that original 4(A) in Article 16 was introduced with effect from June 17, 1995. Hence, Ranjit was entitled to such benefit in view of the decision in the case of Ajit Singh. Rule 5(5) was introduced by the State in deference to the desire of the Apex Court in the case of Ajit Singh. It was prevalent on the date when the Gradation List was published and Ranjit was entitled to such benefit. The decision in Ranjit is now under challenge before the Apex Court in Civil appeal No.8436-8437 of 2010 although the effect of the order was not stayed by the Apex Court. Our observation on this score being relevant herein is quoted below :- On a plain reading of Rule 5(5) it appears to us that such rule was introduced in the line of the observation of the Apex Court quoted supra.;