- (1.) THIS is an appeal against the judgment and order dated 1. 2. 91 passed by the learned Trial Judge. In the writ application the writ petitioner opposite party challenged the validity of seniority list which was published in the year 1984 and in the seniority list the position of respondent No. 4 was 6th whereas the position of writ petitioner opposite party was 9th. It was the case of the writ petitioner opposite party that the regularisation of Bimal Kumar Roy, who was respondent no. 4 in the writ application, was irregular and as such the person whose appointment was regular from very beginning his name could not find place in the seniority list. The learned Trial Judge accepted the contention of the Writ petitioner and held that the appointment of bimal Kumar Roy from the very beginning was illegal.
(2.) THE facts of the case are that Bimal Kumar Roy's service was regularised from 1. 11. 86. Similarly, the persons who were occupying the no. 7th and 8th position in the gradation list were also regularised with effect from the said date. The learned Trial Judge has held that as the appointment of Bimal Kumar Roy was illegal in that event the position of the writ petitioner who was 9th in the seniority list should be revised. It appears that the initial gradation list was prepared in the year 1980 and on the basis of the said gradation list the said Bimal Kumar Roy was given promotion in the year 1982. The writ petitioner opposite party was promoted in the year 1987. In the meantime, for revising the gradation list a representation was filed by the writ petitioner before the Authorities concerned but that representation was turned down and ultimately a further memorial in the form of an appeal not provided in the statute was filed before the higher authorities but the same was also turned down on the ground that the seniority of Bimal Kumar Roy could not be disturbed unless the validity of the order of regularisation made in favour of Bimal kr. Roy was challenged and ultimately it was found that the appointment of Bimal Kumar Roy was void ab initio. In the writ application the gradation list was challenged on the ground that the initial appointment of bimal Kumar Roy was illegal and as such he could not get any seniority over the writ petitioner. The gradation list as well as the order of promotion passed in the year 1982 was challenged before the learned Trial judge in the year 1989 and the judgment was delivered on 1. 2. 91. In the meantime, on 31st October 1990 the said Bimal Kumar Roy, the respondent No. 4 in the writ application, retired from the service and that it is only after he has retired from the service a pronouncement was made that his appointment was irregular even though there was no direct challenge with regard to the invalidity of such appointment.
(3.) MR. D. P. Kundu, the learned counsel appearing on behalf of the appellant, submitted relying on the decision of the Supreme Court in the case of Babita Prasad vs. State of Bihar reported in 1993 Supp. (3) Supreme court Cases page 268 that those who have been appointed and were placed in the panel some vested right accrued to continue in service. In other words, it was submitted applying the principle of that case that the appointment of said respondent No. 4 in the writ application could not have been set at naught after lapse of so many years as that would create a havoc on the service career of respondent No. 4 Bimal Kumar Roy who has already retired from service and whose service was regularised with effect from 1. 11. 86.;