GOUTAM GHOSH vs STATE OF WEST BENGAL AND ORS.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE

PRESENT:
THE HON’BLE JUSTICE UDAY KUMAR

WPA 3601 OF 2021

GOUTAM GHOSH
-VS-
STATE OF WEST BENGAL AND ORS.

For the Petitioner : Mr. Indranath Mitra

For the State : Mr. Sukanta Ghosh
Mr. Arghya Chatterjee

For the Bankura Zilla Parishad : Mr. Soumik Ganguli

For the Respondent No.10 : Mr. Debashis Saha
Mr. Avirup Roy Sanyal
Ms. Scheta Pal
Mr. Jyotishman Saha

Reserved on : 12.10.2026
Pronounced on : 15.10.2026

UDAY KUMAR, J.: –

1. This constitutional writ petition comes up for final adjudication before
this Court upon remand by an Hon’ble Division Bench vide order dated
February 17, 2022, passed in MAT 401 of 2021 along with MAT 419 of
2021. By the said appellate order, earlier interim directions were set
aside solely on the ground of non-observance of the principles of
natural justice regarding the non-joinder of the added respondent no.

2
WPA 3601 OF 2021

10 at the nascent stage, and the matter was remitted back for a fresh
hearing on merits upon completion of affidavits.
2. The petitioner, Shri Goutam Ghosh, was serving as an Upper Division
Assistant (UDA) under the Bankura Zilla Parishad. He stood at Serial
No. 2 in the feeder gradation list published in 2019, whereas the added
Respondent No. 10, Smt. Nandita Mondal, occupied the top position
(Serial No. 1) in the said gradation list. To fill up an existing vacancy in
the promotional post of Head Assistant of the Bankura Zilla Parishad, a
selection process was initiated. In terms of the notification issued by
the Parishad (Annexure P-7), a written examination carrying 50 marks
was conducted on December 29, 2019, involving the senior-most UDAs.
3. Upon publication of the results, it transpired that the writ petitioner
secured the highest marks, thereby occupying the 1st position in the
written examination merit list. Conversely, Respondent No. 10 secured
lower marks but claimed entitlement to promotion to the post of Head
Assistant by virtue of her seniority at Serial No. 1 in the feeder
gradation list. Acting under the administrative cushion of executive
memorandums, the official respondents overlooked the petitioner's top
merit rank in the said written test and issued an order of promotion
dated February 22, 2021, in favour of Respondent No. 10. Aggrieved
thereby, the petitioner instituted the instant writ petition invoking the
extraordinary writ jurisdiction of this Court. It is an admitted position
on record that during the pendency of these protracted legal
proceedings, both the writ petitioner and the added Respondent No. 10
have reached the age of superannuation and retired from service.

3
WPA 3601 OF 2021

4. Mr. Indranath Mitra, learned counsel appearing for the writ petitioner,
forcefully contended that the entire selection process, insofar as it
bypassed the petitioner’s merit, is vitiated by patent illegality and runs
counter to the statutory rules governing the field. He submitted that the
promotion granted to Respondent No. 10 violates Rule 4(VII)(b) of the
West Bengal Panchayat (Recruitment and Conditions of Appointment of
Employees of Zilla Parishad) Rules, 1997 (hereinafter referred to as the
‘said Rules of 1997’), framed under Section 224 of the West Bengal
Panchayat Act, 1973. Drawing attention to said Rule 4(VII)(b) thereof,
he pointed out that the post of Head Assistant is required to be filled up
by promotion from amongst UDAs and Accountants selected strictly on
the basis of "merit-cum-seniority".
5. Relying upon the authoritative pronouncement of the Hon’ble Supreme
Court in B.V. Sivaiah & Ors. v. K. Addanki Babu & Ors., [(1998) 6 SCC
720] , Mr. Mitra argues that under a "merit-cum-seniority" regime, merit
is the paramount and dominant consideration, and seniority plays only
a secondary, tie-breaking role when competing candidates possess
roughly equal merit. Finally, relying upon the ratio of this Court in
Chinmoy Dey v. The State of West Bengal & Ors., [2014 SCC OnLine Cal
15868] , he submits that subordinate executive circulars or
memorandums cannot override, dilute, or restrict the substantive
mandate of statutory rules framed under legislative authority. Learned
counsel therefore prays for setting aside of the order of promotion
dated February 22, 2021 in favour of the Respondent no. 10.

4
WPA 3601 OF 2021

6. Per contra , Mr. Sukanta Ghosh, learned counsel appearing for the
State, ably supported by Mr. Soumik Ganguli, learned counsel for the
Bankura Zilla Parishad, and Mr. Debashis Saha, learned counsel for
the added Respondent No. 10, submitted that the selection process was
conducted in absolute conformity with the prevailing executive policy
guidelines issued by the competent authority of the State Government.
He argued that while Chapter II of the 1997 Rules broadly specifies
"merit-cum-seniority" as the benchmark for promotion to the post of
Head Assistant from the feeder post of UDA, the statutory rules
themselves did not outline a definitive methodology, syllabus, or
standard metric for assessing and quantifying "merit". Consequently, to
bridge this operational vacuum and ensure transparent uniformity
across Zilla Parishads, the State Government, in exercise of the power
conferred under Rule 10 of the said Rules of 1997, framed a
comprehensive policy vide Government Order bearing Memo No.
3734/PN/O/III/2E-62/09 dated July 3, 2012, subsequently
supplemented by Government Order bearing Memo No.
499/PN/O/III/2E-62/09 dated March 7, 2017.

7. Placing strong reliance on Paragraph 8 of the Government Order dated
July 3, 2012, learned counsel for the State contended that the written
examination of 50 marks was explicitly structured only as a screening
mechanism requiring a minimum qualifying threshold of 15 marks and
not as an elimination test for determining relative rank or seniority in
the promotional post. Once eligible candidates cross the qualifying
benchmark, their inter-se seniority and placement in the promotional

5
WPA 3601 OF 2021

cadre must be determined solely on the basis of their standing in the
existing feeder post gradation list. He urged that these memorandums
operated as legitimate administrative scaffolding designed to give
practical shape and workable machinery to the statutory concept of
"merit-cum-seniority" under the said Rule 4(VII)(b) of the said Rules of
1997. Thus, the promotion of Respondent No. 10, who possessed
superior rank in the existing gradation list of the feeder posts and
unblemished Annual Performance Reports (APRs), is fully sustainable
in law.
8. I have heard the learned counsel appearing for the respective parties at
length, perused the pleadings, and carefully examined the statutory
rules, the executive Government Orders, and the judicial authorities
cited across the bar.
9. The core issue that falls for determination in this writ petition is,
whether an executive memorandum or government circular can legally
override, restrict, dilute, or alter the substantive mandate of a statutory
rule which explicitly prescribes promotion on the basis of "merit-cum-
seniority".

10. The legislative power to frame binding rules regarding recruitment and
conditions of service of Zilla Parishad employees flows directly from
Section 224 of the West Bengal Panchayat Act, 1973. It is a cardinal,
well-settled principle of administrative law and service jurisprudence
that subordinate executive circulars, administrative memorandums, or
departmental clarifications cannot override, amend, restrict, or dilute
substantive statutory rules. While an executive instruction can fill up

6
WPA 3601 OF 2021

operational gaps or provide procedural machinery where a statute is
silent, it can never run counter to the express mandate of a statutory
rule. Any administrative order issued by the executive branch derives
its validity entirely from its delegated legislative source and must
strictly conform to the parent statute and rules framed thereunder.
11. To appreciate the statutory architecture governing the field, it is
apposite to reproduce Rule 4(VII) of the West Bengal Panchayat
(Recruitment and Conditions of Appointment of Employees of Zilla
Parishad) Rules, 1997, hereinbelow:
“Rule 4(VII). Head Assistant
(a) Scale of Pay: (As prescribed under the applicable revision
of pay and allowances structure/pay bands)
(b) Method of Recruitment: By promotion from amongst the
Upper Division Assistants and the Accountants selected on
the basis of merit-cum-seniority.
(c) Appointing Authority: Executive Officer.”

12. It is evident that the parent statutory rule unequivocally mandates that
promotion to the post of Head Assistant shall be effected on the basis of
"merit-cum-seniority". However, to bridge perceived administrative gaps
in evaluating merit, the State Government issued Government Order
No. 3734/PN/O/III/2E-62/09 dated July 3, 2012. Paragraph 8 of the
said G.O. stipulated as follows:
"8. The written examination shall be only for the purpose of
screening and not for the purpose of elimination nor for
determining their seniority in the promotional post. The
seniority of promoted candidates shall be determined solely

7
WPA 3601 OF 2021

on the basis of the position of the qualifying candidate in the
existing gradation list of the feeder post."


13. Furthermore, the Apex Court, in the case of B.V. Sivaiah (supra), while
distinguishing between "seniority-cum-merit" and "merit-cum-
seniority," authoritatively held at paragraph 9 of the report:
"9. The principle of 'merit-cum-seniority' lays greater emphasis on
merit and ability and seniority plays a less significant role.
Seniority is to be given weight only when merit and ability are
approximately equal. …..

14. When Paragraph 8 of the 2012 Government Order is tested against the
binding exposition of law laid down by the Hon’ble Supreme Court in
B.V. Sivaiah (supra), the aforementioned executive clause stands in
direct contradiction to settled jurisprudence that in the context of a
promotion policy where merit-cum-seniority is the criterion,
comparative merit of the candidates has to be evaluated and those who
are found to be more meritorious are entitled to be promoted.
15. When an executive order attempts to redefine a statutory expression
like "merit-cum-seniority" to mean its exact opposite, converting a
merit-based evaluation into a pure seniority-driven exercise under the
guise of a threshold screening test, such instructions are legally non-est
to the extent of their inconsistency with the parent rules. To mandate a
competitive examination, set a 50-mark syllabus, evaluate performance,
and then discard the actual comparative scores of a candidate who
objectively topped the merit list is arbitrary, unreasonable, and defeats
the very purpose of a merit-based selection process. This principle was

8
WPA 3601 OF 2021

aptly reinforced by this Court in Chinmoy Dey (supra) , wherein it was
held that executive circulars cannot serve as an illegal fetter or embargo
against a candidate's statutory right to promotion based on true merit.
16. Concluding the legal discussion made hereinabove, Paragraph 8 of the
Government Order dated July 3, 2012, to the extent that it makes
feeder-cadre seniority the sole determinative factor while
rendering comparative merit redundant, is ultra vires of the said
Rules of 1997 and legally non-est.
17. Applying these foundational legal principles to the facts of the present
case, the writ petitioner, Shri Goutam Ghosh, participated in the
competitive written examination conducted on December 29, 2019, and
secured the highest marks, claiming the 1st position in the merit list.
The added Respondent No. 10 secured lower marks but was granted
promotion solely on the basis of her higher serial number in the feeder
gradation list, relying on Paragraph 8 of the 2012 Government Order.
This inversion of merit and seniority in the said Paragraph 8 directly
violates Rule 4(VII) of the 1997 Rules and the binding ratio of B.V.
Sivaiah (supra) . Therefore, the impugned promotion order dated
February 22, 2021, cannot be sustained in the eye of the law and must
be set aside to restore the sanctity of statutory rules and fair play in
service jurisprudence.
18. Finally, this Court takes note of the admitted position that both the writ
petitioner and the added Respondent No. 10 have reached the age of
superannuation and retired from service during the pendency of these
proceedings. However, retirement does not render the lis infructuous.

9
WPA 3601 OF 2021

The petitioner's accrued legal right to fair consideration and promotion
based on his superior merit; which was unlawfully denied to him in
2021, directly impacts his continuous service status, notional fixation
of pay, pensionary benefits, and retiral dues.
19. In view of the foregoing discussions, concurrent findings, and
authoritative legal principles, the writ petition being W.P.A. 3601 of
2021 is allowed with the following definitive orders and directions:

a) Quashing of Impugned Promotion: The impugned order of
promotion dated February 22, 2021, promoting the added
Respondent No. 10 (Smt. Nandita Mondal) to the post of Head
Assistant under the Bankura Zilla Parishad, is hereby set aside
and quashed.
b) Protection of Retiral Benefits of Respondent No. 10: Taking
into humanitarian consideration the fact that Respondent No.
10 has already retired from service and discharged duties in the
promotional post, it is directed that no recovery of salary or
financial emoluments already disbursed to her during her
tenure as Head Assistant shall be undertaken. However, her
pensionary and retiral benefits shall be calculated on the basis
of the substantive feeder post from which she drew her regular
grade prior to the disputed promotion, or protected as a
measure of equity without conferring permanent promotional
seniority over the petitioner.
c) Declaration of Petitioner’s Legal Entitlement: It is declared
that the writ petitioner, Shri Goutam Ghosh, having secured the

10
WPA 3601 OF 2021

highest marks (1st position) in the competitive written
examination held on December 29, 2019, was legally entitled to
be promoted to the post of Head Assistant under the statutory
"merit-cum-seniority" framework of Rule 4(VII) of the 1997
Rules, superseding the illegal denial by the official respondents.
d) Mandatory Consequential Reliefs: The competent authority of
the Bankura Zilla Parishad and the District Level Selection
Committee (DLSC) are directed to issue a notional order of
promotion in favour of the writ petitioner (Shri Goutam Ghosh)
to the post of Head Assistant with effect from February 22,
2021. The official respondents shall calculate his notional last
drawn pay, revise his pension, gratuity, and all other retiral
dues accordingly, and disburse the consequential arrears to the
petitioner within a period of eight weeks from the date of
communication of this order.
20. Pending applications, if any, are disposed of accordingly.
21. Interim orders, if any, stand vacated.
22. There shall be no order as to costs.

23. Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.

(Uday Kumar, J.)