Moli Biswas vs The State Of West Bengal & Ors.

Ajay Kumar Gupta, J.:-

This instant writ petition, filed by the petitioner, is directed against the inaction of the respondents in giving promotion to the petitioner under the category of SC against the 18^th point vacancy in the 50-point roster.

The case of the petitioner, in brief, is that she joined the West Bengal Pollution Control Board (in short ‘WBPCB’), an autonomous institution under the administrative control of the Environment Ministry, Government of West Bengal, on 10.09.2009 against reserved vacancies (SC) in the post of Environmental Analyst after fulfilling all the criteria fixed for such appointment.

The petitioner, being a reserved category employee (SC), originally applied in 2005 for appointment against one of the four vacancies advertised for appointment of SC candidates and was selected along with others. However, she was not appointed by the WBPCB, thereby keeping the remaining two vacancies unfilled. The petitioner moved a writ petition being No. 21370(W) of 2005 and, in compliance with the order of this Hon’ble Court dated 19.02.2009, the WBPCB appointed the petitioner and joined the post on 10.09.2009.

The petitioner is subject to the Employee’s Service Regulation of WBPCB and in terms of the relevant Rules, 40% of the total posts of Junior Scientist shall be filled up by promotion from Environmental Analyst having minimum 8 years of experience in the past.

The petitioner completed 8 years of service on 09.09.2017 as Environmental Analyst and became eligible for the zone of consideration for promotion against 40% of promotional vacancies as available as notified in the 50-point roster. These 50-point roster vacancies for SC and ST employees are identified against specific points in the 50-point roster for promotion of SC/ST employees. In accordance with the 50-point roster, the 1^st, 7^th, 11^th, 15^th, 18^th, 21^st, 28^th, 32^nd, 36^th, 40^th and 47^th points are earmarked for promotion of SC employees.

The WBPCB identified the 13^th, 14^th and 15^th point in the 50-point roster as carry-forward reserved vacancies for SC employees. However, without appreciating the fact that the 13^th and 14^th vacancies are reserved for promotion of SC employees only, the WBPCB hurriedly filled the said carry-forward vacancies reflected in the 13^th, 14^th and 15^th points by general category employees in blatant violation of rules. Although these vacancies ought to be carried forward to next unreserved vacancies as per rules and in the manner 17^th, 19^th and 20^th points in the 50-point roster ought to be carry-forward reserved vacancies and the 18^th point already remains a reserved vacancy for promotion of SC employees in the 50-point roster. The petitioner was not promoted at the 17^th or 18^th point even though she was already eligible.

She made representations to the Appointing Authority, including the Director, National Commission for SC, ventilating her grievances against filling up of reserved vacancies earmarked in the 50-point roster by promoting a general category Environmental Analyst, violating applicable rules and prayed for her promotion against such reserved vacancies.

The Director, National Commission for SC, in terms of letter dated 03.04.2025 called for Action Taken Report in the matter of grievances of the petitioner and subsequently, sent a reminder dated 20.06.2025 but did not receive any reply thereto from the WBPCB.

So far, only one SC employee has been promoted against the 7^th vacancy in the 50-point roster and one vacancy at the 16^th point in the 50-point roster has been filled up by promoting an ST Environmental Analyst. All other reserved vacancies, as reflected in the 50-point roster, have been filled by promoting general category employees. In view of the fact that the 13^th, 14^th and 15^th roster point, being carry-forward reserved vacancies for SC employee, as also admitted in letter dated 19.01.2026 of the Assistant Commissioner, Backward Class, and given the fact that the said reserved vacancies have already been filled up by promotion of general category employees, then in terms of rules, the said vacancies ought to be carried forward against unreserved vacancies reflected at the 17^th, 19^th and 20^th points in the 50-point roster when the 18^th point is already reserved for SC.

Subsequently, the petitioner submitted ‘Demand Justice Notice’ dated 03.04.2025 to the Member Secretary, WBPCB protesting against arbitrary and wilful violation of rules in the matter of promotion of general category employees against the reserved vacancy/carry-forward reserved vacancy. However, she did not receive a reply.

The Petitioner submits that illegality in awarding promotion to a general category employee, not eligible to get promotion against reserved vacancy and such illegality is subject to the amenability of this Hon’ble Court and violation of Constitutional provision by the concerned authority’s nullity.

The WBPCB has violated the rules and the constitutional provisions enumerated in the 77^th Constitutional Amendment Act, 1995, introducing Article 16(4A) to the Indian Constitution, enabling States to provide reservations for SC and ST in promotion; and the 81^st Constitution Amendment Act, 2000, introducing 16(4B), which enabled the carry forward of unfilled SC/ST quota. Therefore, the WBPCB trampled down the provisions contained in Constitutional Amendments, in providing the benefits of reservation in promotion and carry forward of vacancies, thereby violating Article 335 of the Constitution of India. Hence, this writ petition.

Learned counsel appearing on behalf of the petitioner submitted that the WBPCB violated the provisions by not providing reservation to the petitioner in accordance with the 50-point roster. Although the petitioner was eligible for promotion on and from 09.09.2017, after completion of 8 years of satisfactory service, the petitioner is entitled to immediate promotion against the 18^th point in the 50-point roster.

It was further submitted that the petitioner has come under the zone of consideration for promotion in the year 2017, but she was not given promotion as per the rules. The authorities did not consider her representation and Demand Justice Notice; as such, the petitioner was compelled to file this writ petition. The petitioner prays for direction in the nature of mandamus commanding the respondent authorities to promote the petitioner against the reserved vacancy at the 18^th point in the 50-point roster.

It was finally submitted that during pendency of this case, the petitioner retired from her service on 30^th June, 2026. Therefore, after giving promotion at reserved vacancy, her consequent benefits should be provided by the respondent authorities.

Per contra, learned counsel appearing on behalf of the Respondent nos. 2, 3 and 4 vehemently opposed the prayer and further submitted that the respondents are denying and disputing all the contentions of the petitioner by filing their affidavit-in-opposition.

It was further submitted that the petitioner had made representations before the National Commission for SC and WBPCB has replied vide letter dated 1^st August, 2025, indicating in detail that the Board has duly followed the rules and promoted the Environmental Analyst to the post of Junior Scientist according to their eligibility criteria in the position set in the 50-point roster. As per the gradation list, the petitioner was much below the other candidates who were eligible and given promotion strictly as per the 50-point roster.

Learned counsel drew the attention of this Court to paragraph nos. 8 and 9 of the affidavit-in-opposition and further submitted that the petitioner was ineligible for promotion at that point of time, when other employees were given promotion, not having completed the requisite eight years of service, and the petitioner completed eight years of service on 09.09.2017.

Sri Indrajit Chaudhuri and Smt. Aishi Sengupta, who have been placed at serial nos. 1 and 2 respectively, in the gradation list of Environmental Analysts, were promoted to the post of Junior Scientist against 13^th and 14^th vacancies of the roster respectively under UR category as on 04.06.2013. Subsequently, in June 2015, another post of Junior Scientist was filled up from among Environmental Analysts. As per Rule 10(a) under Chapter IV of the Reservation Rules dated 16.08.1976, which mandates that five times the number of vacancies shall be considered for promotion, candidates placed at serial nos. 3 to 7 in the gradation list were considered. Accordingly, Sri Jagannath Koley, who was placed at serial no. 3, was promoted against the 15^th vacancy of the roster under UR category. The petitioner was placed at serial no. 10 in the gradation list of Environmental Analyst as on 04.06.2013 and, therefore, her name could not be considered.

The petitioner was not eligible for promotion at the time of filling up the 11^th, 12^th, 13^th, 14^th and 15^th vacancies of Junior Scientist, as she had not fulfilled the essential criterion of promotion. Consequently, the said vacancy was filled up by a candidate from the UR category and the 15^th SC vacancy was carried forward to the 16^th vacancy. While filling up the 16^th vacancy (UR/SC) in May 2023, one ST candidate, Smt. Dechen Doma Bhutia, who held the 8^th position in the gradation list, was considered for promotion in view of the non-availability of eligible SC candidates within the zone of consideration, in accordance with the applicable reservation Rules. The 17^th vacancy, being earmarked for UR, was accordingly filled by a UR candidate, namely, Smt. Soumya Chakraborty as per the gradation list as on 06.01.2025. The 18^th vacancy, earmarked for SC, was filled up by Samanway Mazumdar (SC) on 16^th December, 2025, as he held the 9^th position in the gradation list, right above the petitioner. As such, no legally protected right of the petitioner which can be judicially enforced has been infringed. Therefore, the writ petition is required to be dismissed.

Having heard the submissions of the learned counsels appearing on behalf of the respective parties and upon perusal of the record, this Court finds that the petitioner has already superannuated from service on 30th June, 2026. However, she had filed this writ petition, prior to her superannuation. This court has to decide the case in hand based on the relevant provisions of promotion applicable for the petitioner.

Article 16(4A) of the Constitution, introduced by the Constitution (Seventy-Seventh Amendment) Act, 1995, enables the State to make provision for reservation in matters of promotion in favour of the Scheduled Castes and Scheduled Tribes. Article 16(4B), introduced by the Constitution (Eighty-First Amendment) Act, 2000, permits unfilled reserved vacancies of a year to be treated as a distinct class of carried-forward vacancies in subsequent years. These provisions frame the WBPCB's 50-point roster and its carry-forward mechanism.

Under the Reservation Rules dated 16.08.1976 governing the WBPCB, as reflected in the 50-point roster relied upon by both parties, specific numbered points are earmarked for the Scheduled Caste and Scheduled Tribe categories. On the scheme as placed before this Court, a point so earmarked is required to be filled, as and when a vacancy arises at that point, by an eligible candidate of the category for which it is reserved; where no such candidate is available within the zone of consideration, the reservation is carried forward rather than treated as extinguished, a position reflected in the respondents' own account of the 15th point being "carried forward to the 16th vacancy."

It is equally well settled that promotion is not a vested right but a right to be considered when a vacancy arises, and that this right to consideration itself presupposes the existence of a vacancy. Where no vacancy has arisen at all, there is nothing against which the right to consideration can operate, and no enforceable claim comes into being.

It is an undisputed fact that on 09.09.2017, the petitioner became eligible for the promotion after completion of 8 years of service as Environmental Analysts.

The gradation list of Environmental Analysts as on 04.06.2013 places the petitioner at serial no. 10. The SC-reserved points on the roster subsequent to the 15th point were filled as follows: the 16th point (SC, carried forward via ST substitution as earlier noted) went to Smt. Dechen Doma Bhutia, placed at serial no. 8 in the gradation list; and the 18th point (SC) went to Sri Samanway Mazumdar, placed at serial no. 9. Both candidates rank senior to the petitioner.

Applying the principle recorded at paragraph 22 above, this Court finds no infirmity in the filling of the 16^th and 18^th points. The petitioner, ranked 10th, stood behind both Dechen Doma Bhutia and Samanway Mazumdar in seniority, and her claim to the 18^th point specifically, as originally advanced, cannot be sustained.

The petitioner's claim, on a proper appreciation of the roster and her seniority position, could at best have matured against the next SC-reserved point in sequence, namely the 21^st point. It is, however, now on record, and not disputed, that no Junior Scientist vacancy corresponding to the 21st roster point arose at any point during the petitioner's service, and none had arisen as on the date of her superannuation, 30.06.2026 as per materials available on record.

In the absence of any vacancy having arisen at the 21^st point, the petitioner's claim in respect thereof never crystallised into an existing right capable of enforcement. The reservation attaching to the 21st point remains, on the record, will fall to be filled in the ordinary course by the senior-most eligible SC candidate within the zone of consideration, whenever a Junior Scientist vacancy arises. However, it is a contingency that did not materialise during the petitioner's tenure, and her retirement has, as a matter of fact, taken her outside the zone of consideration for it.

Therefore, this court does not find merit in the writ petition filed by the petitioner.

Consequently, WPA 15319 of 2025 stands dismissed without order as to costs. Connected applications, if any, are also, thus, disposed of.

Interim order, if any, stands vacated.

Parties shall act on the server copies of this Judgment downloaded from the official website of the High Court at Calcutta.

Urgent Photostat certified copies of this Judgment, if applied for, be supplied to the parties upon compliance of all the necessary and legal formalities.