Executive instructions cannot convert statutory merit-cum-seniority promotion into seniority-based selection.

The petitioner and Respondent No. 10 were Upper Division Assistants (UDAs) in the Bankura Zilla Parishad. Respondent No. 10 ranked first and the petitioner second in the 2019 feeder gradation list.

In a written examination held for promotion to Head Assistant, the petitioner secured the highest marks, while Respondent No. 10 obtained lower marks. The Zilla Parishad nevertheless promoted Respondent No. 10 on the basis of her feeder-cadre seniority, relying on a 2012 Government Order. The petitioner challenged that promotion. During the proceedings, both candidates retired; a Division Bench had earlier remitted the matter for decision on the merits after the added respondent was joined.

Whether Paragraph 8 of the Government Order dated 3 July 2012 could make feeder-cadre seniority the sole determinant of promotion where Rule 4(VII)(b) of the 1997 Rules prescribed “merit-cum-seniority”.

Whether the petitioner’s superior marks in the written examination entitled him to promotion, and whether relief could be granted notwithstanding the parties’ retirement.

Section 224 of the West Bengal Panchayat Act, 1973 empowers the framing of rules governing Zilla Parishad employees. Rule 4(VII)(b) of the West Bengal Panchayat (Recruitment and Conditions of Appointment of Employees of Zilla Parishad) Rules, 1997 requires promotion to Head Assistant to be made from eligible UDAs and Accountants on the basis of “merit-cum-seniority”. Executive instructions may fill procedural gaps but cannot override or dilute a statutory rule.

In B.V. Sivaiah v. K. Addanki Babu, (1998) 6 SCC 720, the Supreme Court held that “merit-cum-seniority” gives greater weight to merit and ability, with seniority relevant when merit and ability are approximately equal. The Court also relied on Chinmoy Dey v. The State of West Bengal & Ors., 2014 SCC OnLine Cal 15868, for the principle that executive circulars cannot override statutory rules.

The Court held that Paragraph 8 of the 2012 Government Order treated the written examination only as a screening test and made feeder-cadre seniority determinative after candidates qualified.

That approach, in the Court’s view, contradicted Rule 4(VII)(b) and the principle in B.V. Sivaiah, because it rendered comparative merit immaterial. Since the petitioner obtained the highest marks and Respondent No. 10 was promoted on the basis of seniority despite lower marks, the promotion was inconsistent with the statutory criterion. The Court further held that retirement did not make the dispute infructuous because the claimed promotion affected the petitioner’s notional pay and retiral benefits.

No recovery of salary or emoluments already paid to Respondent No. 10 was ordered; her retiral benefits were to be calculated on the stated feeder-post basis or protected equitably without conferring promotional seniority over the petitioner. No order as to costs was made.