- (1.) This writ application has been preferred challenging, inter alia, the denial of the respondents to grant promotion to the petitioners in the posts of Upper Division Assistant (hereinafter referred to as UDA) in terms of the reservation policy of the State and the impugned denial of the respondents to follow the provisions of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 (hereinafter referred to as the said Act of 1976) while granting promotion to the post of UDA and the primary reliefs as prayed for in the writ application are as follows : a) A writ of and/or in the nature of mandamus commanding the respondent no.2 to forthwith recall the orders being Nos. 176 and 177 dated 30th July, 2010 and 03rd August, 2010 respectively and consider the candidature of the petitioners no.1 to 4 for giving promotion to the post of Upper Division Assistants in the 1st, 4th, 7th and 11th vacancy respectively in the lot of promotions sought to be given in the aforesaid orders being Nos. 176 and 177 with retrospective effect from 03rd August, 2010 in lieu of the private respondents no. 4, 7, 10 and 14; b) A writ of and/or in the nature of mandamus commanding the respondents to pay arrear salary being the difference in salary and other emoluments payable to Upper Division Assistants and the salary and emoluments received by the petitioners at present, from 03rd August, 2010 till the date they are allowed to join the posts of Upper Division Assistants together with interest @ 12% per annum, if salary equivalent to the amount payable to Upper Division Assistants has not already been paid to the petitioners during the pendency of this proceeding. Mr. Ray, learned senior advocate appearing for the petitioners submits that amongst the four petitioners, who have approached this Court, the petitioner nos.1, 3 and 4 belongs to Scheduled Caste community and the petitioner no.2 belongs to Scheduled Tribe community. The petitioner nos.1 and 2 were initially appointed as Lower Division Assistant (hereinafter referred to as LDA) by an order dated 14th December, 1998 and the petitioner no.3 was initially appointed as LDA by an order dated 30th September, 1999 and the petitioner no.4, who was initially appointed in a Group-'D' post, availed promotion to the post of LDA by an order dated 20th January, 2005. Presently, all the petitioners are continuing in the cadre of LDA. However, by virtue of different administrative orders the petitioner nos.1, 2 and 3 are occupying the post of Bench Clerk- II and the petitioner no.4 is occupying the post of Nazir. He further submits that in compliance with the direction of the Hon'ble Supreme Court to implement the recommendation of the Justice Shetty Commission, the Secretary, Government of West Bengal, Judicial Department issued a memorandum dated 20th July, 2009, wherein it was inter alia stated as follows : " Governor has been pleased to decide to implement the following recommendations w.e.f. 01.04.2003 :- 1) There will be three grades of Bench Clerks for the three levels of Courts namely :- i) Bench Clerk Grade-III, attached to the court of Civil Judge (Jr. Division/Magistrate). ii) Bench Clerk Grade-II, attached to court of Civil Judge (Sr. Divn./CJM/CMM). iii) Bench Clerk Grade-I, attached to District Court, Additional District Judge Court. 2) Mode of Recruitment The Bench Clerks are to be appointed generally from the respective cadres in the service and not by restrictive channel of promotion from Bench Clerk Grade-III to Bench Clerk Grade-II and from Bench Clerk-II to Bench Clerk Grade-I. If necessary, additional posts may be created. i) Bench Clerk Grade-III Appointment from the cadre of officials in the pay scale of Rs.4000-8850/- (U.D. Assistants, Bench Clerk, Accountants) etc. ii) Bench Clerk Grade-II Appointment from the cadre of officials in the pay scale of Rs.4500-9700 (Head Clerk-cum-Translators, Cashier and Accountants, Nazirs) etc. iii) Bench Clerk Grade-I By promotion from the cadre of Bench Clerk Grade- II/Head Clerk-cum-Translators, Cashiers, Accountants, Nazirs and appointment of Sheristedars of the court of Civil Judge (Jr. Divn.) to whom the pay scale of Rs.4800- 10925/- is recommended."
(2.) Drawing the attention of this Court to the averments made in the writ application, Mr. Ray submits that pursuant to the said memorandum dated 20th July, 2009 the respondent no.2 passed two orders being nos.141 and 142 dated 28th June, 2010 identifying the posts to be designated in each of the three cadres and accordingly, 10 posts were identified under Bench Clerk Grade-I, 13 posts were identified under Bench Clerk Grade-II and 11 posts were identified in Bench Clerk Grade-III and that subsequent to such identification 13 persons in the list of UDA were first of all appointed to the post of Bench Clerk Grade-II and thereafter 10 amongst them were promoted to the post of Bench Clerk Grade-I since in the midst thereof three persons retired prior to promotion. Thus, 13 vacancies arose consequentially in the posts of Bench Clerk Grade II, which were filled up by the respondent no.2 from the incumbents then occupying the post of UDA, immediately below the aforesaid 13 persons in the gradation list and thereafter the next 11 incumbents in the post of UDA were promoted to the 11 vacant posts of Bench Clerk Grade-III, apart from two of such persons, who were notionally so promoted since they had already retired before the date of the order of promotion.
(3.) According to Mr. Ray, as a consequence of the memorandum no.141 and memorandum no.142 dated 28th June, 2010 (Pages 40 and 42 of WP), 13 vacancies arose in the cadre of UDA and the same were erroneously filled up by issuing an order no.176 dated 30th July, 2010 (Page 46 of WP) as modified by a subsequent order no.177 dated 3rd August, 2010 (Page 47 of WP) by ignoring the rightful claim of preferential promotion of the petitioners against the vacancies reserved for Scheduled Caste and Scheduled Tribe candidates as per 50-Point Roster detailed in schedule-II of the said Act of 1976.;