Tapabrata Chakraborty, J. - (1.) By an order dated 31st July, 2013 impugned in the present writ petition, the learned Tribunal dismissed the petitioner's original application being OA 1257 of 2011 in which prayer was made to fix the inter se seniority among the petitioner and the private respondents and to amend the gradation list published in the month of April, 2011 and to grant consequential promotion to cadre of IAS on the rudiments of the facts that at the time of initial appointment in the year 1983 there was no gradation list for West Bengal Civil Service (hereinafter referred to as WBSR) (Executive) officers and for the first time a draft gradation list was published in the State website in the month of April, 2011. From the said gradation list, the petitioner came to learn that he had been placed below the private respondent nos.4 and 5 accordingly he sought for certain information under the Right to Information Act, 2005 (hereinafter referred to as the said Act of 2005) from the respondent no.3 regarding the basis of determination of ranks when more than one candidate gets the same marks. In response thereto, names appearing at serial nos.12 to 16 in the list of successful candidates of WBCS (Executive) officers, 1983 were disclosed. However, as all the information as prayed for was not disclosed, the petitioner preferred an appeal under the said Act of 2005 and pursuant to the order passed by the West Bengal Information Commission on 15th June, 2011 such information was furnished and from the same it transpired that the petitioner and both the private respondent Nos.4 & 5 scored 607 marks in the selection test for 1983. The petitioner is seniormost in terms of age amongst the said three candidates since his recorded date of birth is 22nd August, 1956 while that of private respondent No.4 is 3rd November, 1956 and that of respondent No.5 is 28th June, 1958.
(2.) Mr. Dhar, learned senior advocate appearing for the petitioner submits that the West Bengal Services (Determination of Seniority) Rules, 1981 (hereinafter referred to as the said Rules of 1981) said Rules of 1981 were not applicable for members of the West Bengal Civil Service. However, when West Bengal Civil Service (Executive) (Determination of Seniority) Rules, 2008 (hereinafter referred to as the said Rules of 2008) came into operation with effect from 11th September, 2008, by virtue of Rule 3(ix), the Rules of 1981 were made applicable to the members of the WBCS (Executive) officers to the extent those were not inconsistent with the provisions in clauses (i) to (viii) of Rule 3 of the said Rules of 2008 for the purpose of determination of the seniority of the members of the service. When more than one candidate obtained the same aggregate marks in qualifying examination, the Public Service Commission (hereinafter referred to as PSC) had set ranks arbitrarily ignoring the government's intention indicated in the note (2) of rule 4 of said Rules of 1981 which provides that "where the inter-se-seniority amongst several persons has not been determined prior to the coming into force of these rules, such seniority shall on the coming into force of these rules be determined on the basis of actual date of their joining. When the date of joining of all such persons is the same, seniority shall be determined on the basis of date of birth, person retiring earlier being adjudged as senior. When the date of birth is the same, seniority shall be determined on the basis of total marks obtained by each of the examination, passing of which is the qualification prescribed for recruitment to the particular post, cadre or grade".
(3.) He further contends that the appointment in the year 1983 was by direct recruitment on the basis of total marks obtained in the examination. Once it was found that three candidates had obtained identical marks seniority ought to have been determined on the basis of date of birth and that PSC could not have broken the tie on the basis of the marks obtained by the candidates in the personality test. The moment such method is adopted, results get the back seat and such action is not permissible particularly when Rule 3(ix) of the Rules of 2008 read with Rule 4 Note 2 of the said Rules of 1981 provide a different method for breaking tie. PSC is a recommendatory body and it has no jurisdiction to determine seniority. Seniority is an incidence of service and the same is required to be determined on the basis of the service rules framed by the employer. In support of such contention reliance has been placed upon the judgments delivered in the case of Miss Neelima Shangla, Ph.D. Candidate vs. State of Haryana and Others, 1986 4 SCC 268 and in the case of D. P. Das vs. Union of India and Others, 2011 8 SCC 115.;