Full Judgment Text
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CASE NO.:
Appeal (civil) 879 of 1998
PETITIONER:
MD. ISRAILS & ORS.
Vs.
RESPONDENT:
STATE OF WEST BENGAL & ORS.
DATE OF JUDGMENT: 07/01/2002
BENCH:
G.B. Pattanaik & Y.K. Sabharwal
JUDGMENT:
PATTANAIK, J.
Never ending dispute of inter se seniority between the direct
recruits and the promotees in a cadre has cropped up in
this appeal, arising out of the judgment of the Division Bench
of Calcutta High Court. The cadre in which the inter se
seniority is required to be determined is the cadre of
Employment Officer in the Directorate of National
Employment Service in the State of West Bengal. The
Governor of West Bengal has framed a set of Rules in
exercise of power conferred under provisio to Article 309 of
the Constitution providing the method of recruitment and the
qualification required for the Gazetted post in the Directorate
of National Employment Services (hereinafter referred to as
’The Recruitment Rules’). Under the Rules the cadre of
Employment Officer (Technical) could be filled up by direct
recruitment on the results of West Bengal Civil Services
(Executive and Allied Services) Examination for Group A as
well as by promotion. For the promotion, to the feeder category
is the Junior Employment Officer, Superintendent and U.D.
Clerk of the Directorate of NES West Bengal; Supdt. and
U.D. Clerks of Regional Employment Exchanges and U.D.
Clerks of the Sub-Regional and District Employment Exchange
; Inspectors of Statistics and Statistical Assistants. Under Rule 3
A (2) of the Recruitment Rules the ratio between the direct
recruitment and the promotion is 50:50. For being eligible for
promotion to the post of Employment Officer it is necessary that
the person concerned should have 6 years’ of qualifying service
in the feeder post. During the period 1976 to 1982 the appellants
were appointed as District Employment Officers, as direct
recruits, on being selected by the West Bengal Public Service
Commission on the basis of their results of the Recruitment
examination held for the post in West Bengal Civil Service
(Executive). On 2.10.1978 and 13.9.1979, Government issued
two Notifications promoting 50 employees belonging to the
feeder category on ad hoc basis to the post of Employment
Officer for a period of 6 months, and respondents 6 to 30, the
contesting respondents are included within the same 51. The
letter of appointment on promotion unequivocally indicated that
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the appointment is purely on ad hoc basis subject to the approval
of the Public Service Commission and is liable to be terminated
at any time without notice. The post of Employment Officer
being a post carrying the pay scale of more than Rs.750/- per
month, for filling up those posts on promotional basis it was
necessary to consult Public Service Commission, as required
under Section 3A of the West Bengal Public Service Commission
(Exemption from Consultation) Regulation 1955, (hereinafter
referred to as "The Exemption Regulation"). As has been stated
earlier, the post by direct recruitment is filled up on the basis of
the competitive test held by the Public Service Commission for
the West Bengal Civil Services. On 26.12.1980 the Labour
Department of the Government of West Bengal moved the Public
Service Commission for approving the panel of the 51 persons
who had been promoted on ad hoc basis as District Employment
Officers. Without the approval of the Public Service
Commission and because of the exigency of service Government
had promoted respondents 6 to 30 in 1980-81. As stated earlier,
the appointment letter had unequivocally indicated that the same
is on ad hoc basis for a period of 6 months with effect from the
date the appointees’ assume charges or until further order which
ever is earlier, and the appointment is subject to the approval of
the Public Service Commission and is liable to be terminated at
any time without any notice. Notwithstanding the aforesaid
terms and conditions in the appointment letter of the promotees,
as Government continued them beyond the period of 6 months
without any approval of the Public Service Commission, the
direct recruits filed the Writ Petition in the Calcutta High Court
with the prayer that the ad hoc promotees should not be allowed
to continue in the post without approval of the Public Service
Commission. In the year 1988 while the Writ Petition was
pending in the High Court, the State Government forwarded the
cases of the promotees to the Public Service Commission with
the recommendation that their ad hoc promotion be approved and
they be regularised with effect from the date of their ad hoc
promotion. In the pending Writ Petition State Government filed
its affidavit indicating therein that as the question of
regularisation of respondents 6 to 30 has engaged the attention of
the Public Service Commission, their inter se seniority in the
cadre will be fixed in accordance with the West Bengal Services
(Determination of Seniority) Rules, 1981 (hereinafter referred to
as "Seniority Rules"), with due regard to the recommendation of
the West Bengal Public Service Commission. The Seniority
Rules of 1981 have been framed by the Governor in exercise of
power conferred under proviso to Article 309 of the Constitution.
Rule 6 is the relevant provision for determining relative seniority
of direct recruits and promotees. The aforesaid Rules is extracted
herein below in extenso:-
"6. Relative seniority of direct recruits and
promotees -- (1) The relative seniority between a
promotee and a direct recruit shall be determined by
the year of appointment or promotion of each in the
post, cadre or grade irrespective of the date of joining.
(2) The promotees shall be en-bloc senior to the
direct recruits of the same year." Rules to be quoted.
The West Bengal Public Service Commission approved the
promotion of respondents 36 to 630 to the post of Employment
Officer with effect from 29th June, 1988 and in pursuance to the
same Government of West Bengal in Labour Department issued
letter on 18.8.1988 by which letter the Governor was pleased to
decide that the appointment of 63 officers to the West Bengal
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Employment Service as Employment Officer be approved with
effect from 29th June, 1988. On 30th March, 1989, consequently
an affidavit was filed on behalf of the State in the pending Writ
Petition and a prayer was made that the State Government be
allowed to prepare a gradation list including all the Employment
Officers treating the ad hoc employees since regularised with
effect from 29th June, 1988, on the basis of their continuous
officiation. The appellants direct recruits filed a reply to the
said affidavit filed on behalf of the State Government and
respondents 6 to 30 also had filed a Supplementary Affidavit.
The Writ Petition was dismissed by a learned Single Judge on a
conclusion that the seniority of ad hoc promotees has to be
counted from the initial date of appointment on promotion and
not from the date of their regularisation, after obtaining approval
of the Public Service Commission, as contended by the Writ
Petitioner. The direct recruits thereafter approached the Division
Bench in appeal, and that appeal having been dismissed, the
present appeal has been preferred on grant of Special Leave.
Mr. Bhaskar Gupta, learned senior counsel appearing for
the appellants contended, that the ad hoc promotion of
respondents 3 to 30 not being in accordance with the relevant
statutory provisions contained in the Recruitment Rules read with
the West Bengal Public Service Commission (Consultation by
Governor) Regulation of 1995 as well as the Exemption
Regulations, the services rendered prior to the approval by the
Public Service Commission cannot be counted for reckoning the
seniority in the cadre and, therefore, the High Court was in error
in holding that the ad hoc promotees would be entitled to count
their seniority from the initial date of their ad hoc promotion.
Mr. Gupta further contended that under the Seniority Rules, more
specifically Rule 6 thereof, the relative seniority between the
promotee and direct recruit being required to be determined by
the year of appointment or promotion of each of the promotee in
the post, cadre or grade. It necessarily stipulates the year of
regular promotion having been made in accordance with the
Rules and not any ad hoc promotion made de hors the Rules, and
therefore, the High Court committed error by directing that even
period of ad hoc promotion could be counted for reckoning the
seniority in the cadre. The learned counsel urged that in view of
unequivocal stipulation in the letter of appointment in case of ad
hoc promotees that appointment and posting is purely on an ad
hoc basis subject to the approval of the Public Service
Commission and is liable to be terminated at any time without
any notice and further the appointment initially having been made
for a period of 6 months or until further order, which ever is
earlier, it is highly illegal to count such period of service as a
regular service in the cadre for the purpose of seniority, and
consequently, the High Court committed grave error in directing
that the said period would be reckoned for the purpose of
seniority in the cadre of Employment Officer.
Mr. Tapas Ray, learned senior counsel appearing for the
State of West Bengal, on the other hand submitted, that the
Statutory Recruitment Rules do not require in terms that the
Public Service Commission should be consulted for filling up the
post of Employment Officer on promotion. In that view of the
matter the Government itself having approached the Public
Service Commission since December 1980 for the approval to the
ad hoc promoteesion, such ad hoc promotees should not suffer
merely because Public Service Commission kept the matter
pending for more than 8 years. The counsel next urged that the
promotion being made according to the Recruitment Rules there
is no rhyme or reason not to consider the ad hoc service for the
purpose of seniority in the cadre and continuous length of service
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from the date of appointment should be the criteria for
determining the seniority in the cadre, the High Court, therefore
did not commit any error. Mr. Ray lastly urged that the Writ
Petition itself not having contained any prayer for determination
of inter se seniority and the only prayer being that the ad hoc
promotee should not be permitted to continue in the cadre
without the approval of the Public Service Commission, and that
approval having been accorded the Writ Petitions were rendered
infructuous and, therefore the question of seniority ought not to
have been considered.
Mr. Venkatramani, learned senior counsel appearing for
respondents 36 to 30 argued with vehemence that the ad hoc
promotees having got the essential pre requisites for being
promoted, and they having been promoted after being duly
consultedselected, non approval of the Public Service
Commission would not render the services rendered as void, and
therefore, the High Court was fully justified in directing that the
period of ad hoc service has to be counted for the purpose of
seniority. Mr. Venkataramani further urged that there is no fetter
on the power of the Appointing Authority from regularising the
ad hoc services from an enterior date after consultation with the
Public Service Commission with effect from the date when the
vacancy in the promotee quota was available, and in the case in
hand there being no case that the promotees were in excess of the
50% quota available for them, the High Court was fully justified
in directing that the ad hoc services also has to be counted for
reckoning their seniority in the cadre of Employment Officer.
According to the learned counsel, the services rendered by ad hoc
promotees without consultation with the Public Service
Commission cannot be treated as non est and can be regularised
from the date of the promotion, so long as substantive vacancy in
the cadre within the promotee quota was available and that being
the position, there is no error in the impugned judgment in the
matter of determining the inter se seniority between the direct
recruit and the promotees in the cadre of Employment Officer. In
support of this contention the learned counsel relied upon several
observations of this Court in the case of Suraj Prakash Gupta
vs. State of J & K. (2000) 7 SCC 561. According to Mr.
Venkataramani, the promotee Employment Officers having
rendered continuous service in the cadre of Employment Officer,
after being duly selected by the Appointing Authority, and such
promotion having been made in the exigency of public service,
even without consultation with the Public Service Commission as
it could not brook any delay, it will be wholly inequitable to
ignore the services from the date of promotion till 1988, the date
on which the Public Service Commission accorded the approval.
The rival submissions require a careful scrutiny of the relevant
Rules and decisions of this Court indicating the principle on
which seniority could be counted. But the moot question would
be as to whether promotion to the post of Employment Officer
being required to be made in consultation with the Public Service
Commission under the Recruitment Rules, the period rendered
prior to such approval can be counted for seniority? It may be
stated that in the supplementary affidavit that was filed on behalf
of the State Govt. in the High Court, though it was stated that the
appointment of ad hoc officers were regularised after obtaining
the approval of the Public Service Commission with effect from
29th June, 1988 by the Government order dated senko
18.8.1988, but a prayer was made to permit the Government to
prepare a single Gradation List treating the former ad hoc officers
who were then regularised as regular officers with effect from the
dates of their continuous officiation.
A combined reading of the Recruitment Rules and the West
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Bengal Public Service Commission (Consultation by Governor)
Regulation 1955 as well as the Exemption Regulation of 1955
would unequivocally indicate that the post of Employment
Officer could be filled up by promotion to the extent of 50% of
the vacancies available in the cadre, after due consultation with
the Public Service Commission. In fact the very appointment
letter in favour of the respondents clearly indicated that the
appointment is being made purely on ad hoc basis subject to the
approval of the Public Service Commission. Then again the State
Government being the Appointing Authority for the post of
Employment Officer and the said post being a gazetted post with
a pay scale of more than Rs.750/- per month, appointment by
promotion could not be made without the approval of the Public
Service Commission. It is in this context the questions raised are
required to be answered.
In view of the rival stand of the parties, the first question
that requires to be answered is whether the promotion to the post
of Employment officer under the Recruitment Rules could be
made by the State Government without consultation with the
Public Service Commission? The Recruitment Rules merely
provide that all the posts in the West Bengal National
Employment Services excepting the post of Employment officer
(Technical) could be filled up either by direct recruitment or by
promotion, the feeder category being the post mentioned in
Clauses(a) to (e) of Rule 3(A) of the said Rules. The post of
Employment officer is undoubtedly a post borne in the West
Bengal National Employment Service. The Recruitment Rules,
unfortunately is totally silent as to how recruitment by promotion
could be made to the said post of Employment officer borne in
the West Bengal National Employment Service, though so far as
direct recruitment is concerned, it is categorical that it would be
by selection on the results of the West Bengal Civil Services
examination for Group A services which is conducted by the
Public Service Commission. The post in question being a
gazetted civil post, under Article 320(3) of the Constitution the
State Public Service Commission is required to be consulted for
filling up the post by promotion unless in exercise of power under
the proviso to Article 320(3) of the Constitution the Governor by
way of making any Regulation specify the post for which it shall
not be necessary for a Public Service Commission to be
consulted. The Governor has framed a Regulation in exercise of
such power in the State of West Bengal, called, ’The West
Bengal Public Service Commission (Consultation by Governor)
Regulation, 1955, and Rule 3 thereof provides that so far as
clauses (a) and (b) of Article 320 (3) are concerned, if the
Appointing Authority is not the State Government but is one
subordinate to the State Government, then it shall not be
necessary to consult the Public Service Commission. So far as
the post of Employment officer is concerned, the Appointing
Authority being the State Government, consultation with the
Public Service Commission is required to be made while making
promotion, as provided under Article 320(3)(b) and the same
does not go out of the purview of consultation with the Public
Service Commission in view of the provisions contained in
Regulation 3 of the Consultation by Governor Regulation 1955.
There has been another order issued by the Governor , called The
West Bengal Public Service Commission (Exemption from
Consultation) Regulation, 1955 and Section 3A thereof
unequivocally indicates that even if the State Government is the
Appointing Authority in respect of the post, which is filled up by
promotion, yet it will not be necessary to consult the Public
Service Commission provided the maximum of the scale of pay
of such post does not exceed Rs.750/- p.m. as per West Bengal
Services (Revision of Pay and allowance) Rules, 1970 and in the
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case of each post decision to exclude is taken in consultation with
the Commission and a provision to that effect is incorporated in
the relevant Recruitment Rules. Rule 3A of the Exemption
Regulation is extracted hereinbelow in extenso:-
"Rule 3A.- It shall not be necessary to consult the
Commission in regard to promotion to posts and
services, the appointing authority of which is the State
Government provided that the maximum of the scale of
pay of such posts/services does not exceed Rs.750/-
per month as per West Bengal Services (Revision of
Pay & Allowances) Rules, 1970 and provided further
that the decision to exclude such promotion in the case
of each post/service is taken in consultation with the
Commission and a provision to that effect is
incorporated in the relevant recruitment rules."
A post of Employment Officer having a pay scale of more than
Rs.750/- per month under the West Bengal Services (Revision of
Pay &Allowances) Rules, 1970, and there being no decision to
exclude the promotion to such post taken in consultation with the
Commission, the conclusion is irresistible that for filling up the
post of Employment officer by promotion requires consultation
with the Public Service Commission. It is also apparent from
Rule 3 of the Recruitment Rules, which says that all the posts in
the West Bengal National Employment Services excepting the
post of Employment Officer (Technical) is required to be made
under the procedure prescribed under the said Rules and for the
post of Employment Officer (Technical) Rule 4 has been
specifically provided. In view of the aforesaid legal provisions,
we unhesitatingly hold that the post of Employment Officer by
promotion, under the Recruitment Rules required to be filled up
only after consultation with the Public Service Commission. In
fact the very appointment letters in favour of respondents 6 to 30
categorically indicate the same.
The next question that requires to be considered is, what
would be the nature of services rendered by such promotees who
were promoted on ad hoc basis prior to the consultation with the
Public Service Commission, and whose appointment by
promotion was approved by the Public Service Commission only
on 29th June, 1988? In the Constitution bench decision of this
Court in Direct Recruit Class II Engineering Officers’
Association vs. State of Maharashtra and others (1990) 2
Supreme Court Cases 715, this Court after a thorough discussions
of several earlier cases of the Court came to hold, that once an
incumbent is appointed to a post according to the rule, his
seniority has to be counted from the date of his appointment and
not according to the date of his confirmation. The corollary of
the above Rule is, where the initial appointment is only ad hoc
and not according to the rules and made as a stop-gap
arrangement, the officiation in such post cannot be taken into
account for considering the seniority. According to Mr. Gupta,
the learned counsel appearing for the appellant, the corollary
would apply to the respondents 6 to 30 and, therefore, the
officiation in the promoted post would not count for their
seniority. According to Mr. Venkataramani, the corollary laid
down in the case applies only to the case of a direct recruit and
cannot have any application to the respondents 6 to 30. It is no
doubt true, in the aforesaid case the question for consideration
was whether in case of a direct recruit his seniority has to be
counted from the date of his appointment or from the date of his
confirmation, and the Court answered the same that it should be
from the date of the appointment.
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In Masood Akhtar Khan and Others vs. State of Madhya
Pradesh & Others - (1990) 4 Supreme Court Cases 24, which
also dealt with the case of a direct recruit, the question for
consideration was as to from what date the seniority in the cadre
of an appointee could be considered? In that case also the very
appointment letters indicate that the appointments are made for a
period of 6 months, pending regular selection by Public Service
Commission, and appointees, however, were allowed to continue
beyond the period of 6 months and later on regularly selected by
the Public Service Commission. This Court came to hold that
the appointees, who have been allowed to continue beyond the
period of 6 months and later on were regularly selected by the
Public Service Commission can claim seniority from the date of
their regular absorption in the cadre after being selected by the
Public Service Commission, and services rendered from the date
of their initial stop gap appointment till regular selection will not
count for their seniority in the cadre.
In the case of M.K. Shanmugam and another vs. Union of
India & Others - (2000) 4 Supreme Court Cases 476, this Court
came to hold that any ad hoc service does not count for seniority
in the cadre and it can only count in those cases where the initial
appointment, though ad hoc is made by the same process, as is
applicable to the regular appointment and is not a stop-gap
appointment. In this case also the promotions had been made
purely temporary and on ad hoc basis and for a limited period
and it had been made clear in promotion order that the promotion
is subject to the approval of the Public Service Commission and
would not confer any seniority. In the case in hand also the order
of promotion in favour of respondents 6 to 30 categorically
indicated that the promotion is purely on ad hoc basis and subject
to the approval of the Public Service Commission. Consequently
the services rendered on such ad hoc basis till the approval of the
Public Service Commission is obtained, will not count for
reckoning the seniority in the cadre. The only other decision
which requires consideration is the judgment of this Court in
Suraj Prakash Gupta and Others vs. State of J& K and
Others - (2000) 7 Supreme Court Cases 561, on which Mr.
Venkataramani, learned senior counsel appearing for the private
respondents strongly relied upon. Question no. 3 in this case
was, whether ad hoc, stop-gap promotion of Assistant Engineers
could be made beyond 6 months and till regularisation, by the
Government without consulting the Public Service Commission?
And question 1(b) was whether the entire ad hoc service of
Assistant Engineers, who were promoted without consultation of
the Public Service Commission can be counted for the purpose of
seniority? So far as question no. 3 is concerned, the Court
answered by referring to Regulation 4(d)(iii) of J&K Public
Service Commission (Limitation of Functions) Regulations, 1957
and Rule 23 of the J&K Civil Services (CCA) Rules 1956, that
the State Government has the power to regularise the services
from an anterior date, as provided under Rule 23, and therefore,
when appointment is made without consultation with the Public
Service Commission, entire service will not be wiped off. This
conclusion was possible because of the existence of Rule 23. In
the case in hand we do not have any Rule corresponding to Rule
23, and therefore the ratio of the aforesaid case will have no
application. Mr. Venkataramani, however, vehemently urged that
the observations made in the aforesaid case are of general nature
and should apply to every case irrespective of existence of any
Rule corresponding to Rule 23 of the J&K Civil Services (CCA)
Rules. We are, however, not persuaded to accept this submission
of learned counsel for the respondents. In view of the analysis of
different provisions of Recruitment Rules, the West Bengal
Public Service Commission (Consultation by Governor)
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Regulation, West Bengal Public Service Commission (Exemption
from Consultation) Regulation, we have no doubt that the initial
appointment of respondents 6 to 30, purely on ad hoc basis
without consultation with the Public Service Commission cannot
be held to be a regular service in the cadre of Employment
officer, and as such the same cannot be counted for the purposes
of reckoning their seniority in the cadre.
The question of seniority is governed by a set of rules called
’The West Bengal Services Determination of Seniority Rules,
1981 and under Rule 6 thereof relative seniority of direct recruits
and promotees is required to be determined. The expression
’relative seniority’ between a promotee and a direct recruit shall
be determined by the year of appointment or promotion of each in
the post, cadre or grade, irrespective of the date of joining would
obviously mean the year of regular promotion and not any ad hoc
promotion which is made contrary to the statutory rule. That
being the position, so far as respondents 6 to 30 are concerned,
their year of promotion would be 1988, the year when the Public
Service Commission approved their promotion w.e.f. 29th June,
1988 and the State Government issued the necessary order on 11th
August, 1988.
It is true, as contended by Mr. Ray learned senior counsel
appearing for the State Bengal, that in the Writ Petition filed by
the direct recruits there was no prayer for determination of inter
se seniority and the only prayer was not to allow the ad hoc
promotee to continue in the cadre without approval of the Public
Service Commission, but it is the State Government who filed an
application seeking permission of the Court to draw up an
integrated gradation list of direct recruits and promotees treating
the ad hoc promotees to be in the cadre from their initial date of
appointment and not from the date of their regular service after
being approved by the Public Service Commission; and on this
application the High Court considered the question of
determination of inter se seniority between the direct recruits and
ad hoc promotees. That being the position, it is difficult for us to
accept the submission of Mr. Ray, learned senior counsel
appearing for the State of West Bengal that the claim of inter se
seniority need not be gone into in the present appeal.
In the aforesaid premises, the impugned judgment of the
Calcutta High Court, both of the learned Single Judge and that of
a Division Bench are set aside and the appeal is allowed. It is
held that the inter se seniority of the direct recruits appellant
and the promotees respondents 6 to 30 has to be worked out
treating the services of the direct recruits from the date of their
initial appointment and the services of the respondents
promotees from the date of their service being approved by the
Public Service Commission and notified by the State Government
w.e.f. June 1988. The seniority list may accordingly be re-drawn
up. There will be no order as to costs.
...............J
(G.B. PATTANAIK)
................J.
(Y.K. SABHARWAL)
January 07, 2002.
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