- (1.) FACTS On August 12, 1985 petitioner was selected through Public Service Commission (hereinafter referred to as PSC) for the post of Electrical Inspector. He was a Scheduled Caste candidate. On December 26, 1990 the Assistant Secretary, Power Department issued a letter asking the petitioner to appear for Medical Examination. Ultimately, on January 9, 1991 the State issued notification appointing petitioner in the post of Electrical Inspector. on May 28, 1997 petitioner was elevated to the post of Deputy Chief Electrical Inspector. He claimed that he was appointed in such post as a Scheduled Caste candidate after seven years as the earlier Scheduled Caste candidate got such promotion in 1994. On September 15, 1998 the State published a provisional gradation list. The petitioner objected to the same as according to him he was placed as serial no.14 after three juniors including one Moni Shankar Mukherjee, the respondent no.7 herein. His objection was overruled. He did not challenge the same. According to the petitioner, during his promotion to the post of Deputy Chief Electrical Inspector, he was at sixth position in the list. There were three vacant posts, the first post being reserved for Scheduled Caste and as per Rule 10 of the West Bengal Scheduled Caste and Scheduled Tribe (Reservation of Vacancy in Services and Post) Rules, 1976 the petitioner being a scheduled caste candidate should have filled up the first post. Hence, his position in the gradation list should have been four in place of six. His objection was turned down. He did not raise any protest before the appropriate forum against such refusal. On April 27, 2001 the authority published the final gradation list wherein his position remained the same. He also claimed that pursuant to the 85th amendment of Article 16(4A) the State issued a circular where Scheduled Caste and Scheduled Tribe candidates were permitted to retain their seniority in the promotional post. Petitioner contended that the private respondent could not have been given the benefit of restoration of his seniority on his promotion that was contrary to the mandate of the Constitution as amended by the 85th amendment. Challenging the non-action on the part of the authority in restoration of his seniority the petitioner approached the Tribunal, inter alia, praying for direction upon the respondent to set aside the gradation list published on September 15, 1998 after rectifying the same by placing the petitioner at serial no.4 instead of serial no.6 in the grade of Deputy Chief Electrical Inspector. He also prayed for the appropriate promotion to the next higher post. The Tribunal however disallowed such prayer and granted him liberty to apply for the same by separate proceeding that gave rise to another litigation that was pending before the Tribunal as we were told.
(2.) Vide judgment and order dated April 9, 2009 the Tribunal dismissed his application by observing that there was nothing wrong in acceptance of the gradation list published by the State in 2001. Hence, this petition before us. CONTENTIONS BEFORE US Mr. L.K. Gupta, learned senior counsel appearing for the petitioner contended as follows :- i) As per Article 16(4A) of the Constitution the State was empowered to make provision for reservation in appointment whereas Article 16(4A) that came into effect on June 17, 1995. The State became empowered to make provisions for reservation in the matter of promotion as well as consequential seniority provided the State was satisfied that a particular class was not adequately represented in the service of the State. In view of such provision the petitioner was entitled to be placed as the Deputy Electrical Inspector in the first vacant post in preference to the general candidates being the respondent no.7, 8 and9. ii) Mukherjee, the respondent no.7 abovenamed got promotion in the post of Joint Chief Inspector on March 1, 2006 whereas the Trinath, the petitioner got such promotion on September 15, 2007 in view of erroneous position in the gradation list that was contrary to Rule 5 of the Seniority Rules. iii) The combined list prepared by the State clubbing all the posts was not permissible in law. iv) Seniority would give right to be considered for promotion earlier than the juniors. Such right could not be by-passed and/or taken away by dint of earlier promotion of Mukherjee in the post of Joint Chief Inspector. v) As per Rule 5, seniority of persons appointed on promotion to any post, cadre or grade would be determined from the date of joining of such post, cadre or grade. The petitioner got the post of Deputy Chief on May 28, 1997 whereas Moni Sankar got the said appointment after six years. Hence, Trinath should be placed above Moni Sankar in the gradation list to be prepared for the post of Deputy Chief Electrical Inspector. Such factor was totally ignored by the State.
(3.) Per contra, Mr. Apurbalal Basu, learned senior counsel appearing for Moni Sankar contended as follows :- i) Draft gradation list was published inviting objections. Once objection was submitted and overruled without challenge being thrown to such rejection before the appropriate forum the final list could not be called in question. ii) The post of Electrical Inspector is one uniform cadre being called as Electricity Service. It was a single cadre post having separate designation working in different fields allotted to them. iii) The post of Deputy Chief Electrical Inspector, Joint Chief Electrical Inspector and Chief Electrical Inspector and Inspector of Lift were covered by one single cadre being Electricity Service. Hence, the State was entitled to publish a combined gradation list as per the date of joining of the respective candidates. iv) To find out whether a post is superior to other, four tests were required to be performed and if the result of at least three tests became positive the post could not be called as superior to the other. v) Electricity Service was constituted in 1989 as appearing at page 152. The said resolution dated April 29, 1989 was not called in question. Hence, the subsequent challenge to the gradation list prepared on such basis was not maintainable. vi) The prayer made in the petition before the Tribunal for a direction to cancel the final gradation list was not maintainable in absence of a challenge to the order of rejection of objection raised against the provisional gradation list. ;