11.09.2026 Sl. No.15 Ct. No.14 gd IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPA/4043/2026 Uttam Samadder VS The State of West Bengal and Ors. Mr. Subir Sanyal , Sr. Adv. Mr. Ratul Biswas Mr. Somesh Kr. Ghosh Ms. Soumoyadipa Kanu Ms. Bipasha Bhattacharyya …for the Petitioner. Mr. Brijendra Pratap Singh Mr. Asit Kumar De …for the State. Mr. Pinaki Bhattacharyya …for DPSC, North 24 Parganas. 1. By the present writ petition the petitioner seeks direction upon the respondent authorities, particularly respondent nos.4, 5 and 6 to grant notional benefits of service in favour of the petitioner such as fixation of pay with all increment, seniority etc. and effect such notional fixation of pay on all consequential service benefits with effect from the date of provisional approval of panel i.e. 17th June, 2015. 2. The petitioner contends that pursuant to an advertisement dated 23rd April, 2010 of District Primary School Council, North 24 Parganas (in short ‘DPSC’) for recruitment of primary teachers, the petitioner submitted application in order to participate in the said recruitment process. Subsequent thereto, petitioner appeared in the written examination conducted by the concerned DPSC. However, since certain irregularities were detected in the examination procedure, the written examination was cancelled vide Order No.255- SSE/12/ES/P10M-141/2010 (Pt) dated 21st June, 2012 of Principal Secretary to the Government of West Bengal, School Education Department and direction was issued for conducting the examination de novo. As per the said notification, denovo examination was conducted. The petitioner appeared in the de novo written examination and on being successful was called for interview. Though the panel was provisionally approved on 17th June, 2015, however, the DPSC failed to publish the panel and consequently issue appointment letters to the successful candidates on a misconceived plea of judicial restraint despite there being no subsisting order of stay. Several candidates being aggrieved by such action of the DPSC approached this Hon’ble Court by filing writ petitions and ultimately those writ petitions were considered including the writ petition filed by the present petitioner being WPA 15128 of 2017 and the Coordinate Bench on 8th January, 2021 directed DPSC, North 24 Parganas and DPSC, Malda to publish panels as provisionally approved vide Memo dated 11th June, 2015/17th June, 2015 in their respective websites within a period of two weeks from 2 the date of communication of the order. Pursuant to such order, the panel of successful candidates were finally published on 10th February, 2021 and appointment was given to the petitioner in the month of January, 2022. Owing to such illegal and arbitrary action of respondent authorities, the appointment of the petitioner was given belatedly. Such inordinate delay in giving appointment is solely attributable to the respondents. The petitioner for such reason has lost considerable period of service. Hence this writ petition seeking for notional benefit from the date of provisional approval of the panel i.e. 17th June, 2015. 3. Mr. Subir Sanyal, learned senior advocate appearing for the petitioner submits that the recruitment process was initiated vide Notification dated 23rd April, 2010. After the written examination was conducted some irregularities were detected and the same was cancelled and the examination was directed to be proceeded de novo. The petitioner appeared in the de novo examination. On being successful, the petitioner was provisionally empanelled for appointment on 17th June, 2015. Thereafter as neither the panel was published nor appointment letters were issued, the petitioner approached the Hon’ble Court which passed order for publication of the panel and ultimately after lapse of 6 years appointment letter was issued in favour of the petitioner on 5th January, 2022 and he joined on 11th January, 2022. The delay in recruitment of the 3 petitioner is solely attributable to the respondent authorities particularly DPSC and as such the petitioner is entitled to notional benefits from 17th June, 2015 i.e. the date of provisional approval of the panel. He indicates that in the earlier round of litigation in Nihar Biswas & ors. versus State of West Bengal & Others [WPA 15128 of 2017] along with batch of other writ petitions the Coordinate Bench of this Court has categorically held that the respondents are to be blamed for having denied appointment to the candidates empanelled. Therefore, it cannot be contended at this stage that there was no such delay on the part of the Council in granting appointment to successful candidates. Due to such conduct of the Council, the petitioner cannot be left to suffer, who was otherwise entitled to appointment from the date of provisional approval of the panel i.e. 17th June, 2015. To buttress his contention, he relies upon the decision of the Hon'ble Division Bench of this Court passed in (i) State of West Bengal & ors. versus Sumohan Mondal & ors. [Re: MAT 1211 of 2019] (ii) State of West Bengal & Others versus Aparesh Chandra Datta & ors. reported in 2016 SCC OnLine Cal 486 (iii) Goalbadan Mandal versus State of West Bengal & ors. reported in 2023 SCC OnLine Cal 2267. He also informs the Court that a Special Leave Petition was preferred against the order passed in Sumohan Mondal (supra) which has been dismissed by the Hon'ble Supreme 4 Court. In light of his aforesaid submissions, he seeks for appropriate orders be passed granting notional benefit to the petitioner on and from the date of provisional approval of empanelment of the petitioner i.e. 17th June, 2015. 4. On the contrary, Mr. Brijendra Pratap Singh, learned advocate appearing for the State, at the outset, indicates that the prayer made by the petitioner for grant of seniority from 2015 is not sustainable for the reason that the seniority starts from the date of substantive appointment and cannot be given effect retrospectively. To buttress his contention, he relies on the decision of the Hon'ble Supreme Court passed in (i) State of Uttaranchal & Anr. versus Dinesh Kumar Sharma reported in 2007 (1) SCC 683 (ii) Pawan Pratap Singh & Ors. versus Reevan Singh & Ors. reported in 2011 (3) SCC 267. Reliance is also placed on the decision of a Co-ordinate Bench of this Court in Bijoy Pradhan & Ors. versus The State of West Bengal & Ors. (Re: WPA 1259 of 2026). Furthermore, a person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In support of his submissions, he relies on the decision 5 of Hon’ble Supreme Court passed in State of Orissa & Anr. versus Rajkishore Nanda & Ors. reported in 2010 (6) SCC 777 . The petitioner though empanelled at an earlier date cannot claim notional benefit since his appointment has been made only in the year 2022. Further, in Nihar Biswas (supra) the Coordinate Bench of this Court did not direct for grant of notional benefit to the successful candidate pertaining to seniority, increment, pay fixation etc. Moreover, a Co-ordinate Bench in Kakali Mondal & Ors. versus The State of West Bengal & Ors. (In Re: WPA 20966 of 2022) along with batch of other writ petitions having similar matter regarding appointment of petitioners through recruitment process of 2009 has clearly held that the appointment shall be prospective and the petitioners shall not be entitled to claim arrears or benefits before the date of appointment notional or monetary. Therefore, the petitioner at this stage cannot claim notional benefit be granted to him from the date of provisional approval of panel i.e. 17th June, 2015. He seeks for dismissal of the writ petition. 5. Mr. Pinaki Bhattacharyya, learned advocate appearing for District Primary School Council, North 24 Parganas submits that there is no delay or laches on the part of District Primary School Council. The appointments were granted pursuant to orders passed by the Hon’ble Court and, therefore, the delay cannot be attributed to the Council solely. 6 6. Mr. Sanyal, learned Senior Advocate appearing for the petitioner, in reply, submits that the decision cited on behalf of the State respondents is factually distinguishable. Further the claim of the petitioner is not of inter se seniority but for treating the appointment of the petitioner notionally from date of provisional approval of panel. Moreover, the decisions cited are passed taking into consideration certain existing rules which does not apply to this case. 7. Upon hearing the learned advocates for respective parties, the only issue which falls for consideration is whether the petitioner, in facts and circumstances of this case, is entitled to notional benefit from the date of his provisional empanelment i.e. 17th June, 2015 or not. 8. Undeniably, the petitioner participated in the recruitment process of 2009 conducted by District Primary School Council, North 24 Parganas pursuant to notification dated 23rd April, 2010. The written examination was conducted, however, since there was irregularities found in conducting of such examination, the same was cancelled by the Principal Secretary to the Government of West Bengal, School Education Department, with a direction for conducting the examination de novo. The petitioner was successful in de novo examination and was provisionally empanelled on 17th June, 2015. The petitioner approached this Hon’ble Court since the panel was not published and the court considered 7 such prayer and disposed of the writ petitions on 8th January, 2021 observing as follows: “39. In the GO dated 21st June, 2012 there was a categoric direction towards publication of the panel, after conducting the de novo examination, within 90 days from the date of issuance of the said GO. The validity of the said GO having been upheld by this Court, the respondents cannot evade their obligation to publish the panels. 40. Accordingly, this Court directs the North 24 Parganas, DPSC and the Malda, DPSC to publish the panels, as provisionally approved vide memoranda dated 11th June, 2015/17th June, 2015, in their respective websites within a period of two weeks from the date of communication of this order. 41. Vacancies arise every year due to retirement/ resignation/ removal or dismissal/ death of appointees. The 2001 Rules also provide for sanction of additional posts of primary teachers due to increase in roll strength in primary schools of the district or the sub-division. Having regard to the peculiar facts and circumstances that have emerged and as the respondents are to be blamed for having denied appointment to the candidates empanelled, they must take necessary steps and ensure that the empanelled candidates are appointed in the existing vacancies and in the vacancies arising in immediate future. The respondents including the State respondents shall also take steps towards creation of new posts to accommodate and appoint the empanelled candidates.” 9. It manifests that the Coordinate Bench of this Court in the aforesaid decision has made categorical observation that the respondents are to be blamed for having denied appointment to the candidates empanelled and they must take necessary steps and ensure that the empanelled candidates are appointed in the existing vacancies and in the vacancies arising in immediate future. Thus, it leaves no manner of doubt that the delay in appointment of the petitioner in the present case is solely attributable to the respondent-Council. It is informed by the learned advocate for the petitioner that there is no appeal preferred against such order passed in Nihar Biswas (supra), which has also not been refuted by the 8 learned advocates for the respondents. Therefore, such observation having reached finality it can precisely be concluded that due to the conduct of the respondent authorities particularly the Council, the petitioner’s appointment could not be secured promptly in expeditious manner and ultimately led to delay in such appointment. From the materials on record, it is revealed that the petitioner got his appointment on 5th January 2022 after lapse of more than six years. 10. At this stage it would be profitable to reproduce the observation of the Hon’ble Division Bench In Sumohan Mondal (supra) as follows: “The delay was attributable to the conduct of the authorities and the appointment could not be secured promptly the moment it was crystallized. The remedies though available were sought to be exhausted unsuccessfully and for such purpose the social justice demands that the person should not lose the benefits when the others have actually received the same with the prompt action of the authorities.” 11. The aforesaid decision of Hon’ble Division Bench has also been followed in Goalbadan Mandal (supra). 12. In Aparesh Chandra Datta (supra) the petitioner sought for Condonation of shortfall of service and the Hon’ble Division Bench held that the concerned authority cannot take advantage of their own wrong and penalise the petitioner by refusing to grant pension to the petitioner on the ground of deficiency of two months and one day service of the petitioner. 13. In the backdrop of aforesaid facts as well as bearing in mind the observations made in the aforementioned citations and further since in Nihar Biswas (supra) 9 the Co-ordinate Bench found that the respondents were to be blamed for denying appointment to the candidates empanelled, this Court is of the view that the petitioner is entitled to notional benefit on and from June, 2015 as such delay in appointment is solely attributable to the respondent authorities. 14. Before parting let me deal with the decisions cited on behalf of the State respondents. (a) In Dinesh Kumar Sharma (supra) on 25.10.1977, the respondent, was appointed in Subordinate Agriculture Service Group I on the post of Senior Chemical Assistant, Research (Chemistry Branch) through the Public Service Commission, U.P., Allahabad and after fifteen years of service in Subordinate Agriculture Service Group I he became eligible as per existing criteria to be considered for next higher promotion in 1992-93. The question which fell for consideration before the Hon’ble Court was whether the respondent has the right to claim promotion and seniority from 1995-96 when the vacancy arose or whether his seniority will be reckoned from the date of substantive appointment which is in the year 1999. In such factual background the Hon’ble Court considered the provisions of Rule 21 of U.P. Agriculture Group II Service Rules, 1995, providing for the selection, appointment, probation, seniority, promotion, etc, which stated that the date of substantive appointment will be 10 the basis of promotion. The facts are quite distinct and different from the case at hand and therefore does not apply to this case. (b) In Pawan Pratap Singh (supra) the question presented for consideration before the Hon’ble Supreme Court relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group C post), one appointed in 1991 through the selection made by the Uttar Pradesh Subordinate Services Selection Commission and the other in 1994 by the Uttar Pradesh Public Service Commission. Thus, the facts of the cited decision is distinguishable from the case at hand. (c) In Rajkishore Nanda (supra) in order to fill up 15 posts of Junior Clerks in District Sonepur, applications were invited by an advertisement dated 25.06.1995. The advertisement made it clear that the number of vacancies could be increased. The respondents applied in pursuance of the said advertisement along with a large number of persons and written examination was held in accordance with the Orissa Ministerial Service (Method of Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985. Before completion of selection process, the number of vacancies were increased from 15 to 33 and as per the requirement of the 1985 Rules, a merit list of 66 candidates was published on 06.11.1995. The 11 appointments were made on the said posts. The respondents, whose names appeared in the merit list and could not be offered appointment, being much below in the merit list, filed applications before the Tribunal praying for a direction to the State to offer them appointments. The Tribunal, vide its judgment and order dated 07.04.2000, came to the conclusion that appointments were to be offered to all the candidates till the entire select list stood exhausted. Therefore, the Tribunal directed to offer appointment to all leftover candidates in the select list of 1995. Being aggrieved, the State preferred a writ petition against the said common judgment and order of the Tribunal in the High Court of Orissa and the High Court, vide judgment and order dated 26.10.2005, modified the order of the Tribunal issuing direction to the appellants to offer appointment to those persons who had approached the Tribunal., such order was challenged in appeal before the Hon’ble Supreme Court. In the said decision the Hon’ble court held that a person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the 12 statutory rules and in conformity with the constitutional mandate. Be that as it may, in the instant case the petitioner is not claiming appointment on the ground that despite been empanelled he has not given appointment but for treating his appointment notionally from date of his empanelment. The facts of the cited decision are distinct and different from the case at hand and hence is not applicable to the instant case. (d) In Bijoy Pradhan (supra) the respondent authorities were directed to consider the prayer of the petitioners, in the event they submit application, seeking notional appointment from the date of their empanelment for the purpose of calculation of pensionary and retiral benefit. The Co-ordinate Bench did not decide any issue with regard to grant of notional benefit in the said case. (e) Though the petitioners in Kakali Mandal (supra) appeared in the same recruitment process of 2009 but they are not similarly circumstanced as of the present petitioner, who indisputably was provisionally empanelled on 17th June 2015. 15. In the above conspectus, the concerned respondents authorities are directed as follows: (i) To fix the pay of the petitioner granting notional benefits from June, 2015. (ii) On upward fixation of pay of the petitioner by granting notional benefits, payment shall be made from the date of appointment of the petitioner. If 13 any increment has been given to the teacher who joined at a prior date till January, 2022, the same shall be made available to the petitioner prospectively from the date of his joining. The salary slip and the pay scale of the petitioner shall be revised accordingly. (iii) It is clarified that the petitioner will not be entitled to monetary benefits from June, 2015. (iv) The petitioner shall also be entitled to the notional increments and the length of his service shall be calculated from June, 2015. (v) Arrears, if any, from January, 2022 till date shall be paid to the petitioner. 16. Respondent no.3, Commissioner of School Education is directed to pass formal order on completion of aforesaid exercise within a period of six weeks from the date of communication of this order. 17. Learned advocate for the petitioner is directed to communicate this order to respondent no.3, Commissioner of School Education, Government of West Bengal and respondent no.5, District Primary School Council, North 24-Parganas, for necessary compliance. 18. With the above direction, the writ petition being WPA 4043 of 2026 stands disposed of. 19. Since no affidavits have been called for, the allegation made in the writ petition is deemed to be not admitted. 20. Interim order, if any, stands vacated. 14 21. All connected applications, if any, stand disposed of. 22. There shall be no order as to costs. 23. All concerned parties shall act in terms of the copy of the order duly downloaded from the official website of this Court. 24. Urgent Photostat certified copy of the order, if applied for, be given to the parties on compliance of all necessary legal formalities. (Bivas Pattanayak, J.) 15