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1 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1331 OF 2001

ASIS KUMAR SAMANTA AND ORS.       ...APPELLANT(S)                        VERSUS STATE OF WEST BENGAL AND ORS.     ...RESPONDENT(S)

J  U  D  G  M  E  N  T R.M. LODHA, CJI :   

It  is  not  necessary  to  answer  the  reference for two reasons. 2. In the first place, there is already a  three-Judge Bench decision, namely, U.D. Lama and  Ors.  Vs.  State of Sikkim and Ors.1 on the issue  referred by the two-Judge Bench. In  U.D. Lama1,  this Court held in paragraphs 20 and 21 of the  report as follows :-

1    (1997) 1 SCC 111

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2 “20. On the  other hand, it cannot be  overlooked  that the appellants were  not  appointed  by  following the   regular  procedure  of  appointment.  Under  Rule  4(1), recruitment could be  made  to  the  newly-created  State  Civil Service  by  competitive examinations  to be held  by  the  Sikkim   Public  Service  Commission.  This competition  is  not confined   to  persons  who  are  already  in  government  employment.  The  second  method  of  recruitment  is  selection  from  persons  "serving in connection with the affairs  of the State of Sikkim". In the second  category of recruitment, specifically no  provision of holding written and  viva  voce    has  been  laid  down.  The  respondents  claim   that  had   the  procedure   in  Rule   4(1)(b)  been  followed, they  would  have  got  into  the  Service  without  any  examination.   But  their  lawful exception  was denied by  the failure  of the  Government to  set  up  a Commission  or appoint a  Chairman.  What  would  have happened   in   normal  course, did  not happen because of the  Government's  failure.  Only  because  of  this,  quite  contrary  to  the  Rules,  written and oral  tests were  held. This  was upheld  by this  Court principally on  the  ground  of  what  was  described  as  "peculiar situation" which  was created  by the absence of a Commission and its  Chairman. The selection and  appointments  made  in 1982 were  dictated by peculiar  circumstances obtaining at that time. The  appointments  were  not  made strictly  in accordance with the Rules but, as was  held by this Court, in exercise of the  executive  power of  the State.  It  is  true  that   some   of   the  respondents

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3 appeared in  the  tests  and  did  not  qualify  but there is substance in the  contention of the respondents that  they  were   entitled  to  be  appointed  even  without these  tests if Rule 4(1)(b) was  followed. They were deprived  of   this  chance.  Even  for  Rule  4(1)(b),  the  instrumentality  of  Public  Service  Commission was necessary for making  any  appointment. Now that the Public  Service  Commission  has  been  set  up,  the  State  Government has to undo  the wrong  that  was  initially done to these  employees  by subjecting them to tests  which was  not warranted by Rule 4(1)(b). Therefore,  they should not be made to suffer in the  matter of  seniority or promotion in  any  way by failure of the State Government to  implement the Rules laid down by it. In  these  circumstances by  directing the  new recruits to be treated to  have been  recruited  on   the  day   the  appellants  were recruited, the  State   Government  has not done anything contrary or wrong  but has really restored (sic removed) the  injustice done to the respondents by the  State  Government's failure to recruit  them  into  the Service in  accordance  with Rule 4(1)(b).  In  fact,  the  only  door  that  was  open  to the appellants  under  the Rules to enter the Service was  through  Rule 4(1)(b).  They might  have  also  joined  through open competition  but neither of the two steps were taken  or  could  be  taken.  In  these  circumstances, the appellants have really  tried to  steal  a  march  upon  the  respondents  by  being successful in  the  tests  which should not have been held in  any event.  (emphasis supplied)

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4 21. We  are   of  the view  that  the  contention  of  the respondents must  be  upheld.  The point  in  dispute  has  been  examined  in   depth  by   two  Committees  set up  by the  State Government. The  earlier judgment of this Court upholding  the recruitment of the   appellants  was  because  of  the  failure  of  the  State  Government to  appoint the  State Public  Service  Commission.  As  no  appointments  were being made for a number of years,  the  Government   adopted  the  device  of  holding  a  written  test   which  was  not  laid  down by  the Rules. This  Court  held  that under the  peculiar  circumstances, it  was  justified.  This,  however, does  not   mean   that   the  State Government would  not be  entitled  to regularise the service on the basis  of  the rules  framed. The appellants who  were  appointed  under  very  special  circumstances  cannot  claim  any  special  right  in the  matter of  promotion or  seniority. It was not the fault  of  the  respondents  that appointments  according  to  rules could  not be  made in  time.  Taking  an overall view  of the  matter,  we are of the opinion that the High Court  has come  to a  correct decision. The  appeal is, therefore, dismissed with no  order as to costs.”

3. We are in respectful agreement with the  legal position exposited in U.D. Lama1.   4. Applying the above legal position to the  facts of the present case, it may be noted that  vacancy against promotion quota in the cadre of 22

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5 Forest  Rangers  occurred  on  1.1.1989.  But  their  case could not be processed because of the interim  order  passed  by  the  High  Court  restraining  the  authorities from giving them promotion to the West  Bengal Forest Service. The stay order was vacated  on  11.12.1990.  It  was  only  thereafter  the  selection process for promotion commenced. It was  for this reason that the Public Service Commission  recommended  that  private  respondents  be  given  retrospective  seniority  with  effect  from  31.12.1990.  As per Rule 6(2) of the W.B. Services  (Determination  of  Seniority)  Rules,  1981  (for  short, '1981 Rules') the promotees shall be en- bloc senior to the direct recruits of the same  year, the private respondents in the writ petition  were  given  notional  seniority  with  effect  from  01.01.1990. 5. The  legal  position  in  U.D.  Lama1  

squarely applies to the present fact situation.  The private respondents could not have been made  to suffer because of intervention by the court by  way of interim relief.   The  State Government was

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6 not in a position to proceed with the selection by  way of promotion under the Rules in view of the  stay order passed by the court.  No sooner the  stay  order  was  vacated,  the  process  for  the  selection  by  way  of  promotion  commenced.  The  impugned  seniority  list  cannot,  in  these  circumstances, be said to be legally flawed. 6. Secondly,  some  of  the  private  respondents who were given promotion on 01.01.1990  by virtue of Rule 6(2) of the 1981 Rules have  already superannuated. 7. In light of the above, we think, it is  not necessary to send the matter back to the two- Judge Bench.  Civil Appeal is dismissed with no  order as to costs.

..........................CJI. (R.M. LODHA)

............................J. (KURIAN JOSEPH)

NEW DELHI; ............................J. SEPTEMBER 4, 2014 (ROHINTON FALI NARIMAN)