Asis Kumar Samanta & Ors Vs. State of West Bengal & Ors  Insc
729 (12 July 2007)
A.K.MATHUR & DALVEER BHANDARI
A.K. MATHUR, J.
1. This appeal is directed against the order dated 24th March, 1999 passed by the Division Bench of Calcutta High Court in W.P.S.T. No. 33 of 1997
whereby the Division Bench dismissed the writ petition. This Writ Petition was
filed against the order passed by the West Bengal State Administrative Tribunal
in Case No. TA 1293/1996 on 21st April, 1997, wherein 11 petitioners (appellants
herein) were recruited directly to State Forest Service in March, 1990.
Respondent Nos. 4 to 19 to the original petition were promoted to the State
Forest Service vide Notification No. 940 dated 1.2.1991. They were given
retrospective seniority with effect from 31st December, 1990, According to Rule 6(2) of West Bengal Service (Determination of Service) Rules, 1981
(hereinafter to be referred to as 'the Rules'), the promotee shall be en bloc
senior to the direct recruits of the same year. Consequently , the respondents
4 to 19 who were promoted in 1991 were given retrospective seniority w.e.f
31.12.1990. Therefore, as per Rule 6(2) of the Rules, those respondents 4 to 19
got the seniority over directly recruited candidates. That was challenged by the
direct recruits of the State Forest Service before the Tribunal. The State
Tribunal upheld the grant of retrospective seniority and rejected their
contention. Aggrieved against this, present writ petition was filed under
Article 226 of the Constitution of India by direct recruits which was rejected
by the Division Bench of the High Court. Hence the present appeal by the direct
2. The main question involved in this matter is whether such retrospective
promotion or seniority can be granted or not?
3. The moot question came up before this Court in various matters. But there
is a conflict of opinion on this issue. Some judgments have recognized the
retrospective seniority and in some cases it has not been accepted.
4. Normally, there are two modes of service i.e. one by way of recruitment
or other by way of promotion. Sometimes the process of direct recruitment is
carried on but the recruitment through promotion is held up on account of
dispute in the seniority among the promotees or sometimes by the intervention
of the Court and for some other reasons. In most of the States, the rule is
that whenever direct recruitment and promotion is in the same year then the
promotees are ranked senior to the direct recruits. The problem arises when the
direct recruits do not accept this proposition, it leads to litigation that the
promotees do not find their berth in the service, therefore, they cannot be
given benefit of their service from retrospective date so as to make them
senior to direct recruits. In some cases, this Court has affirmed this line of
argument and in some other judgments, this line has not been accepted. In this
connection, two sets of cases can be classified as under:
5. In the under mentioned cases the promotees were given retrospective promotions
and seniority was accepted by this Court.
The following decisions have upheld such line of reasoning:
1980 Supp. SCC 206: Devi Prasad & Ors v. Government of A.P.& Ors.
(1997)1 SCC 111 U.D. Lama and Ors. v State of Sikkim & Ors.
(1992) 2 SCC 241 State of Andhra Pradesh & Anr. v. K.S.
Muralidhar & Ors. etc.
AIR 1994 SC 2481 Ram Pal Malik v State of Haryana & ors.
6. As against this, the other line of reasoning which has been affirmed by
this Court is that in case the promotees are promoted and given retrospective
seniority as against the direct recruits that was held to be ultra vires in the
(1974)1 SCC 188 State of Gujarat v. C.G. Desai AIR 1993 SC 2306: G.S.
Venkata Reddy & Ors.etc.etc. v.
Government of A.P.
1994 Supp. (1) SCC 44 : K. Narayanan & Ors. v. State of Karnataka &
AIR 1991 SC 1244: State of Bihar & Others v. Sri Akhouri Sachindra Nath
(2006)10 SCC 346 : Uttaranchal Forest Rangers' Assn. (Direct Recruit) &
Ors. v. State of U.P. & Ors.
7. In view of conflicting views expressed by this Court, it would be
appropriate to refer this case to a larger Bench so that the controversy can
finally be resolved and put to rest. Therefore, the Registry is directed to
place the matter before the Hon'ble the Chief Justice of India for constitution
of larger Bench. Similar request has been made in Civil Appeal Nos.1712-1713 of