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Assailing the order dated 2nd April, 2009 passed in O.A. No.1456 of 2001 by the West Bengal Administrative Tribunal, this writ application has been filed by the private respondents of the said original application, being total six in numbers. By the impugned order in this writ application, learned tribunal below had set aside and quashed the entire selection process and directed to take de-
novo steps to select candidates for the post of Assistant Engineer (Mechanical/ Electrical) afresh by holding competitive examination following the relevant rules for selecting the candidates and to complete such selection process within one month from the date of judgement. The applicants of the original application were allowed to participate in such selection process subject to their eligibility. The impugned order passed by the learned Tribunal reads such:-

In the order of the Hon'ble High Court, there was direction for selection of the candidates for Assistant Engineers (Mechanical/Electrical) afresh by holding competitive examination for filling up two vacancies from the General Category with further indication that the said selection process should be completed as early as possible, preferably within 6 (six) months from the date of the order.

Taking cue from the aforesaid direction of the Hon'ble High Court, serous challenge has been thrown by the petitioners regarding the impugned selection process initiated through Memo dated 04-04-2000, alleging firstly that through direction was given by the Hon'ble High Court for filling up two vancancies in the General Category, but in the aforesaid selection process, total number of vacancies were 8 (5 General Category, 2 Scheduled Caste, and 1 Scheduled Tribe). Secondly, the Commission though made advertisement in the newspaper regarding selection to the aforesaid post, yet, by the letter, issued dated 04th April, 2000, they made a request to the concerned department to return the original applications of the 7 (seven) candidates, who were recommended by them earlier in connection with earlier appointment on the basis of the selection made by them in 1994, though in the order of the Hon'ble High Court, there was no such direction for doing the same.

There is no doubt that for two vacancies of general category, the applicants/respondents approached the writ Court earlier and was successful to have an order in their favour to this effect that selection process for two general category posts should be completed de-novo following recruitment rule, but that does not mean that High Court by earlier judgement debarred the Public Service Commission not to take into account other vacancies as matured to be filled up before proceeding with de-novo process of selection of two general category vacancies in terms of order of the High Court. In fact the total five vacancies of general category were declared taking note of earlier two vacancies of general category and additional three new vacancies created in the meantime. The applicants/respondents knowing very well of such declaration of vacancies by advertisement as published, did not oppose inclusion of other three new vacancies and they participated in the selection process to test their fate. We are of the view that by enhancing the total number of vacancies to five in lieu of two as was the subject matter of the lis in earlier writ proceeding, service commission did not commit any illegality. As per the selection procedure and norms, the same is permissible and Tribunal held accordingly. No challenge has been made assailing the said finding of the Tribunal by the applicants/respondents by filing any writ application in this High Court alleging that under the recruitment procedures of service commission there was no scope to consider all vacancies as would be available prior to completion of the selection process for consideration of the candidatures of candidates on merit by taking note of total vacancies of posts occasioned prior to the date of selection process. Besides such, if we apply the question of prejudice theory, the respondents/applicants did not suffer any prejudice due to such increase of total number of vacancies of general category to five. As per order of the High Court if the selection process was made confined only with reference to the two vacancies, their chance of success would have been less than the chance of success with reference to more number of vacancies. As such, practically declaration of more vacancies was beneficial to them and they were not prejudiced in any manner. Hence, there was no breach of Article 14 and 16 of the Constitution of India. As from the findings of the Learned Tribunal below it appears that five vacancies of general category were duly declared by advertising the vacancies and inviting applications from the eligible candidates, there was no breach of the earlier order of the High Court. Had it been a case that despite the order of the Division Bench passed in earlier writ application as referred to, service commission advertised only one vacancy for general category, then surely it would have been a direct breach of the order of the High Court as the High Court directed completion of selection process relating to two general category vacancies for which the writ application was moved by the writ petitioner therein. Since service commission enhanced the vacancies, the contention raised by the applicants/respondents and the findings made by the Learned Tribunal below that there was breach of the order of the High Court as earlier passed, has no basis on that score.

Hence, having regard to the fact that there was no positive pleading against any individual person alleging malafide action, Learned Tribunal below, was wrong to reach a finding of bias and malafide action.

From the records before us as produced it appears that the original applicants/respondents were already reached their superannuation stage prior to the order passed by the Learned Tribunal directing to process the selection de-

novo by canceling all appointments. This fact was not brought to the notice of the Learned Tribunal below. The original applicants before the Learned Tribunal got their promotional berth to the post of Assistant Engineer prior to their superannuation and after working in the post of Assistant Engineer which is the concerned post of the present lis, they retired from service. Hence, the order of the Learned Tribunal if is considered in the angle of the present fact when the applicants/respondents retired prior to the order passed by the tribunal holding promotional post of Assistant Engineer, the answer would be that there was no necessity of passing any order in the manner as passed by the Learned Tribunal below directing de-novo selection process canceling the appointments made through a selection process completed in the year 2004. At the present moment, if the order of the Tribunal is confirmed, the original applicants/respondents will not be benefited in any way, as they will not get any chance for appearance further and more so when they have already retired from service prior to the order passed by the Tribunal on having elevation of their berth from lower feeder post to Assistant Engineer post. Hence, there was no justification of passing impugned order by the Learned Tribunal due to superannuation of applicants from service. The original application practically became infractuous as soon as the original applicants were promoted to the post of Assistant Engineer from the departmental promotional quota, namely 40% of vacancies of the total posts, in the organisation.