Full Judgment Text
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CASE NO.:
Appeal (civil) 6383 of 2003
PETITIONER:
Sankar Deb Acharya & Ors
RESPONDENT:
Biswanath Chakraborty & Ors
DATE OF JUDGMENT: 19/10/2006
BENCH:
H.K.SEMA & P.K.BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NO.6384 of 2003
The State of West Bengal & Ors. \005Appellants
Versus
Biswanath Chakraborty & Ors. \005Respondents
H.K.SEMA,J.
The challenge in these two appeals is to the
judgment and order dated 11.12.2002 passed in
W.P.S.T.No.1044 of 2002 by the Division Bench of the
Calcutta High Court.
Civil Appeal No. 6383 of 2003 has been filed by
Sankar Deb Acharya & Ors. and Civil Appeal No.6384 of 2003
has been filed by the State of West Bengal & Ors. both against
Biswanath Chakraborty & Ors. Both the appeals raise a
common question of law and as such they are being disposed
of by this common judgment.
We have heard the parties at length.
Mr.Raju Ramchandran, learned senior counsel
appeared for the appellants in Civil Appeal No. 6383 of 2003
and Mr. Altaf Ahmed, learned senior counsel, appeared for the
respondents. We have also heard Mr.Ranjit Kumar, learned
senior counsel for the appellants in Civil Appeal No. 6384 of
2003 and Mr. Tapas Ray, learned senior counsel, for the
respondents.
These two appeals have a chequered history.
Avoiding prolixity, we may state few facts strictly for the
purpose of disposal of these two appeals. As the question of
facts and law raised are common, we are taking facts from
Civil Appeal No.6383 of 2003.
The dispute raised in these two appeals is with
regard to inter se seniority and promotions of the appellants
and the private respondents, under the applicable rules,
namely the West Bengal Services (Training & Examination)
Rules, 1953, as amended, the West Bengal Services (Revision
of Pay and Allowances) Rules, 1970 and the West Bengal
Services (Appointment, Probation & Confirmation) Rules,
1979, where according to the scheme of service rules the
criteria for promotion is merit cum seniority and whether the
private respondents can be made seniors to the appellants
solely on the ground that they joined the service earlier to the
appellants’ date of joining.
The facts, which are not disputed, are thus:
(a) The appellants and private respondents are
direct recruits at entry scale 17. The next
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promotion is to scale 18 and then to scale 19.
(b) Private respondents joined the duty earlier than
the appellants’ date of joining.
(c) The appellants passed the departmental
examination and were confirmed in service in
terms of rules prior to the private respondents.
The two charts showing the detail of respective
dates of joining the duty and passing of the departmental
examination and confirmation by the appellants and private
respondents are as under:
A. POSITION OF APPELLANTS
Sl.No.
Name of
Appellants
Date of
Joining
Date of
passing
Departmental
Examination
Date of
Confirmation
1
Sankar Dev
Acharaya
07.03.79
26.06.83
26.06.83
2.
Gaur Hari
Khanra
17.06.80
01.12.85
01.12.85
3.
Pradip
Kr.Ghosh
12.05.80
29.12.82
29.12.82
4.
Niranjan
Das
12.06.80
13.01.85
13.01.85
5.
Sandip
Kr.Bisnu
18.08.81
29.12.82
18.08.83
6.
Asit Ranjan
Maity
04.09.81
01.12.85
01.12.85
B. POSITION OF PRIVATE RESPONDENTS
Sl.No.
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Name of
Respondents
Date of
Joining
Date of
passing
Departmental
Examination
Date of
Confirmation
1.
Biswanath
Chakraborty
10.1.78
16.12.88
16.12.88
2.
Goutam Mitra
24.5.77
21.11.91
21.11.91
3.
Anath
Bandhu
Biswas
5.5.78
5.6.92
5.6.92
4.
Shyamapada
Sarkar
20.5.77
26.11.92
26.11.92
5.
Samir Kumar
Ganguly
27.3.76
16.12.88
16.12.88
6.
Haider Ali
3.2.78
16.12.88
16.12.88
7.
Chunilal Ray
1.12.76
16.12.88
16.12.88
8.
Subhijit
Sarkar
9.9.77
16.12.88
16.12.88
9.
Ashis
Kr.Ghosh (1)
20.6.77
29.12.82
29.12.82
10.
Debabrata
Das
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20.5.77
26.11.92
26.11.92
11.
Dilip Kr.Dutta
19.7.79
16.12.88
16.12.88
12.
Dinendra
Kr.Chandra
1.6.77
1.6.84
1.6.84
13.
Amarendra
NathBhowmik
13.1.78
16.4.94
16.4.94
14.
Ramesh
Ch.Sarkar
16.7.77
26.11.92
26.11.92
15.
Subhendra
Bikash Mallik
28.7.78
1.6.84
1.6.84
16.
Bejoy Kumar
Banerjee
2.7.78
16.12.88
16.12.88
17.
Bidhan
Ch.Saha
28.12.76
21.11.91
21.11.91
18.
Bimal Kr.
Bhttacharjee
1.6.77
31.5.85
31.5.85
19.
Prem Das Roy
12.7.77
5.6.92
5.6.92
20.
Anindya
Kumar Mitra
1.6.77
16.5.95
16.5.95
21.
Prabir
Kr.Dutta
2.5.78
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1996
confirmed
22.
Asit Baran
Mudi
28.8.76
5.6.92
5.6.92
23.
Mrinal Kanti
Sarkar
31.12.76
25.11.83
25.11.83
24.
Amitava Saha
3.6.77
27.11.97
27.11.97
25.
Nil Kamal
Saha
16.4.80
5.6.92
5.6.92
26.
Md.Haider
16.9.76
21.11.91
21.11.91
27.
Shamal Kanti
Bal
1.8.79
16.12.88
16.12.88
28.
Paresh Nath
Das
8.12.76
1.6.84
1.6.84
29.
Abdus Suni
Nasir
19.7.76
16.12.88
16.12.88
30.
Kamal
Sengupta
22.1.75
1.6.84
1.6.84
31.
Ratan Kumar
Sandhukhan
18.8.76
21.7.91
21.7.91
32.
Sekhareswar
Kundu
6.8.77
16.12.88
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16.12.88
33.
Janardan
Mondal
26.4.78
18.5.88
1.5.88
34.
Jaydeb
Biswas
23.8.78
17.11.86
17.11.86
35.
Anil Kumar
Kesh
9.6.78
5.6.92
5.6.92
36.
Golam
Sarwar
1.6.77
16.12.88
16.12.88
37.
Habibul
Ahsan
1.7.77
5.6.92
5.6.92
38.
Rathindra N.
Bhattacharjee
30.6.76
5.6.92
5.6.92
39.
Subhas
Ch.Das
10.6.77
16.6.94
16.6.94
40.
Supriya
Ranjan
Ghosh
17.12.77
Not yet
passed
Not yet
confirmed
41.
Narayan
Ch.Ghosh
17.12.74
28.5.81
28.5.81
42.
Subodh
Kr.Sarkar
3.5.78
26.11.92
26.11.92
43.
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Ashim Kumar
Mitra
23.7.79
17.5.87
17.5.87
44.
Ananda
Mohan
Chakraborty
6.3.79
1.6.86
1.6.86
45.
Asish Kumar
Ghosh(II)
20.6.77
17.11.94
17.11.94
46.
Jaydev Jana
27.5.77
26.6.83
26.6.83
To answer the aforesaid questions, it will be relevant
to have a quick survey of the scheme of the rules framed from
time to time. The Government of West Bengal framed the
rules called Training and Examination Rules, 1953
(hereinafter the 1953 rules) as amended. The rules inter alia
provided that a government servant appointed on probation,
remains a probationer until confirmation. A probationer
would have to pass before confirmation any test or
examination, prescribed as a condition precedent for
confirmation in the service. It also provided that no officer
shall be eligible for promotion unless he has completely passed
the departmental examination. Then came the West Bengal
Services (Revision of Pay & Allowances) Rules. 1970
(hereinafter the ROPA Rules). It also provided that all
appointment to a permanent post under the Government
would be on probation, which shall include West Bengal Food
& Supplies Service.
The Government of West Bengal framed rules called
West Bengal Services (Appointment, Probation & Confirmation)
Rules, 1979 (hereinafter the 1979 rules). The rules inter alia
provided that where the rules for confirmation required
passing of any academic, departmental or other examination
before confirmation, the 1979 Rules would not be construed to
relax to such requirement.
The Government of West Bengal framed rules called
West Bengal Services (Revision of Pay & Allowances) Rules,
1981 (hereinafter the ROPA Rules, 1981). On 5.8.1981 the
Government of West Bengal announced a Promotional Policy
for the state government employees inter alia provided that the
posts in the scale 18 and 19 under ROPA Rules, 1981 would
be filled through promotion, on the basis of merit cum
seniority from within the respective service and departmental
cadres. In West Bengal Food & Supplies Services cadre, 220
posts were redistributed as follows, 150 posts in scale 17, 61
posts in scale 18 and 9 posts in scale 19.
Thereafter, vide memo dated 12.10.1983, the
Government imposed an additional condition prescribing a
minimum period of six years’ service in scale 17 for promotion
to scale 18 and a minimum combined period of 13 years’ in
scale 17 and 18 before promotion to scale 19.
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The additional condition imposed vide memo
12.10.1983 and the order passed thereunder were challenged
by filing Writ Petition being C.O.No.590(W) of 1988 by some of
the private respondents herein along with some other persons
before the High Court. The only contention raised in the
application was that the additional condition sought to be
imposed was discriminatory, as the same had not been
imposed in the cases of other state government Services. The
learned Single Judge by an order dated 13.2.1990 allowed the
Writ Petition and quashed the Government Memo dated
12.10.1983 imposing additional condition. The learned single
Judge further directed that the respondents be given the
higher scale 18 and 19 on the basis of their respective merit-
cum-seniority w.e.f. the date when the promotion policy came
into effect. Consequent to the order aforesaid the Government
issued a fresh promotion order dated 11.9.1991. This,
however, dispensed with the compliance of the rules about
determination of merit-cum-seniority, which mistake was later
acknowledged by the State Government. The mistake was
corrected by an order dated 19.9.1991. By the said order the
Government directed the compliance with the relevant service
rules before giving effect to the promotion order dated
11.9.1991 and directed that no payment of arrear dues be
made to officers promoted before confirmation.
The appellants being aggrieved by the order dated
11.9.1991 moved Writ Petition being C.O.2031 (W) of 1993
before the High Court of Calcutta wherein the officers covered
by the promotion order dated 11.9.1991 were also impleaded.
In the Writ Petition the appellants raised a contention amongst
others that unequals had been treated equally. An injunction
sought for was rejected. An appeal being F.M.A.T.589 of 1993
was preferred before the Division Bench of the Calcutta High
Court which was disposed of by the Division Bench on
27.11.1995 directing the State to consider the case of all
eligible candidates including the appellants and others strictly
in accordance with law and the relevant rules as applicable.
The aforesaid direction of the Division Bench was sought to be
complied with by a memo dated 16.2.1996. However,
promotion order dated 11.9.1991 was left undisturbed. The
same was challenged by some of the appellants before the
Administrative Tribunal in O.A.No.759 of 1996 seeking proper
implementation of the Division Bench order and also seeking
refixation of seniority of officers. The Tribunal disposed of
O.A.No.759 of 1996 by an order dated 17.11.1997. Being not
satisfied with the order of the Tribunal the appellants
challenged the order of the Tribunal by filing a Writ Petition,
WPST No. 8 of 1998 before the Division Bench of the High
Court in which 15 respondents illegally promoted by an order
dated 11.9.1991 were also impleaded amongst others. It was
contended before the Division Bench that non-observance of
the promotion rules regarding eligibility was illegal but the
Tribunal had failed to address the said issue.
After referring to Rule 5(b) of the 1979 Rules, the
Division Bench came to the following conclusion:
"Having heard the learned Counsel, we are of
the opinion that keeping in view the fact that
in the instant case confirmation is not to be
granted automatically or being not a fortuitous
circumstances, as a result whereof the
seniority of the respective employee would be
normally determined, from the date of their
initial appointment, this aspect of the matter
may also be considered by the authorities
concerned afresh. Such consideration may be
made at an early date, and preferably within a
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period of 8 weeks from the date of
communication of this order. The order of the
learned Tribunal is modified to the
aforementioned extent and the writ petition is
disposed of".
It appears that pursuant to a writ of mandamus
issued by the Division Bench on 5.5.2000 the Government of
West Bengal issued a fresh promotion order under the memo
dated 28.3.2001. In the said memo the Government has
acknowledged the mistake committed in the order dated
11.9.1991 in ignoring the Rules for the determination of merit-
cum-seniority. In the said order the Government has
considered the entire rules relevant for determination of merit-
cum-seniority and grant of higher scale to the eligible officers
and the same order was passed in accordance with the Rules.
We are surprised to notice that aggrieved party
(respondents herein) again approached the Tribunal in
O.A.No.636 of 2001 and the Tribunal by its order dated
10.4.2002 set aside the Government order dated 28.3.2001
which was passed, as already noticed, pursuant to the writ of
mandamus issued by the Division Bench of the High Court.
The Tribunal was of the view that effected persons have not
been heard and the matter be remanded back to the
Government for fresh consideration. We are unable to
subscribe to the view expressed by the Tribunal. Firstly, since
the order of 28.3.2001 was issued pursuant to a mandamus
issued by the Division Bench of the High Court, the Tribunal
should not have interfered. Secondly, before the High Court
the interest of the present respondents were adequately
represented and there was no question of passing an order
without hearing the parties who had been adversely affected.
Aggrieved by the order of the Tribunal of remand the
private respondents herein filed WPST No.1044 of 2002 before
the Division Bench of the Calcutta High Court. The Division
Bench of the High Court after hearing the parties by the
impugned judgment and order set aide the directions of the
Tribunal of remand of the matter for re-consideration. The
High Court was of the view that the controversy has been
finally settled in terms of the judgment and order passed in
CO.No.590(W) of 1988 by learned single Judge, affirmed in
appeal. The High Court further directed the authorities to act
in terms of the promotion order dated 11.9.1991 by setting
aside the order dated 28.3.2001 which was issued pursuant to
a writ of mandamus issued by the Division Bench of the High
Court.
The High Court order is assailed mainly on two
grounds (a) that the directions in the impugned judgment run
counter to the Rules and (b) that the impugned judgment is
contrary to earlier orders passed by the co-ordinate Bench of
the High Court. In short, the impugned judgment of the High
Court has set-aside two orders of the co-ordinate benches,
passed earlier.
The impugned judgment of the High Court has
relied on the judgment in C.O.No.590(W) of 1988. As already
noticed, the judgment in the aforesaid matter was confined to
the imposition of additional condition, which has no relevancy
in the facts of the present controversy. The High Court also
erred in directing to restore the promotion order dated
11.9.1991, which was set aside earlier by co-ordinate bench
by its judgment dated 27.11.1995 in FMAT No.589 of 1993.
The High Court was also clearly in error in setting aside the
order dated 28.3.2001 which was passed pursuant to a writ of
mandamus issued by the co-ordinate bench earlier in WPST
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No.8 of 1998 on 5.5.2000. In any event, in our view, the
impugned order of the High Court is unsustainable in law.
We now proceed to make a quick survey of the set of
rules, which are relevant for the purpose of disposal of these
appeals. At the risk of repetition the appellants and
respondents were recruited through the West Bengal Public
Service Commission on temporary basis. It is also not
disputed that the respondents were appointed earlier to the
appointment of the appellants and joined duty earlier than the
appellants’ date of joining. It is also not disputed that the
appellants passed departmental examination prior to the
private respondents. The appellants also completed the period
of probation and were confirmed at an earlier point of time
than the respondents. The scheme of the rules, which we
shall be dealing with presently, provides probation, passing of
departmental examination and confirmation after the
departmental examination and completion of probation. The
Rules also provide that the consideration is merit-cum-
seniority.
The 1953 Rules deal with General Rules regulating
the Probation and Training of Officers appointed on probation
to IAS, IPS, and West Bengal State Services.
Rule 1(ii) defines "Probationer" as a Government
servant appointed on probation and remains a probationer
until he is confirmed.
Rule 3 deals with assigning special reasons, if the
appointing authority so decides to extend a probationer’s
prescribed period of probation not exceeding half the
prescribed period.
Rule 4 deals with the completion of period of
probation or the extended period of probation, as the case may
be, and provides that the appointing authority shall record an
order either confirming the probationer from such date as it
may deem fit, subject to the restrictions prescribed in rule 8,
or discharging him.
Rule 8 deals with the confirmation. It reads:-
"A probationer may not be confirmed until he
has served on probation, for the period
prescribed under rule 2, passed any test or
examination the passing of which may by rule
be prescribed as a condition of confirmation in
the service or post in which it is proposed to
confirm him, and been declared by the
appointing authority to be fit for confirmation".
Note: The departmental examinations
prescribed in Chapter II-VI or parts thereof as
are applicable to particular service or posts
should be considered to be examinations, the
passing of which is a pre-condition of
confirmation under this rule.
Rule 13 in Chapter II provides that no probationer
will be confirmed until he has passed completely the
departmental examination prescribed for him. Failure to pass
the examination within the probationary period will make him
liable to discharge.
Part 20 of the Rules deal with the Officers of the
Departments of Food and of Supplies. Clause 1 deals with the
requirement to pass a departmental examination as prescribed
under the Rules of the Officers of Department of Food and of
Supplies and above the rank of Chief Inspectors. There is no
dispute that both the appellants and respondents are above
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the rank of Chief Inspectors and they are required to pass the
departmental examination prescribed under the Rules in Part
20.
Rule 10 of Part 20 provides that no officer will
ordinarily be eligible for promotion unless he has passed the
examination completely.
Then comes West Bengal Services (Appointment,
Probations and Confirmation) Rules, 1979. Rule 5 of the
Rules deals with the appointment on probation and
appointment on permanent basis. It reads:-
"R.5 Appointment on probation and
appointment on permanent basis \026 (1) A
Government employee-
(a) shall be deemed to be on probation
on completion of continuous
temporary service for two years after
his initial appointment in a post of
service or cadre;
(b) shall be confirmed and made
permanent on satisfactory
completion of the period of
probation. Where passing of any
departmental examination is
essential before confirmation, the
provisions of Chapter I of the
Services (Training and Examination)
Rules, West Bengal, shall have to be
complied with.
(2) Except as otherwise provided elsewhere in
these rules, the period of probation shall be
one year.
(3) No formal declaration shall be necessary in
respect of appointment on probation.
(4) On completion of the period of probation
the appointing authority shall either issue
formal declaration making the probationer
permanent or take such action as may be
considered necessary in terms of the
provisions of Part A of Chapter 1 of the
Services (Training and Examination) Rules,
West Bengal, within six months from the date
of completion of the period of probation, or of
the extended period of probation, if any, and
the appointing authority shall ensure that
confirmation on satisfactory completion of the
period of probation is not delayed in any case.
Rule 6(2) provides inter alia that where the Rules for
confirmation required the passing of any academic,
departmental or other examination before confirmation, the
1979 Rules would not be construed to relax such requirement.
The mandate of the Rules, as noticed above, is that
the Government employees shall be deemed to be on probation
on completion of continuous temporary service for two years.
The Rule further mandates that an employee shall be
confirmed and made permanent on satisfactory completion of
period of probation and where passing of any departmental
examination is essential before confirmation, the provisions of
the Services (Training & Examination) Rules shall be complied
with. Sub-Rule (4) of Rule 5 further mandates that on
completion of the period of probation the appointing authority
shall issue a formal declaration making the probationer
permanent.
Rule 7 deals with repeal and savings.
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We may, at this stage, deal with one of the
arguments of Mr. Altaf Ahmad, appearing for the respondents.
Referring to the appointments of the respondents, it is
contended by Mr. Altaf Ahmad that the appointments of the
respondents were made through the examination conducted
by the West Bengal Public Service Commission and on the
recommendation of the Commission. According to him,
therefore, the appointments of the respondents were not on
probation and, therefore, 1979 Rules would have no
application. We are unable to countenance this contention.
No doubt, the respondents were appointed to the service after
the examination conducted by the Public Service Commission
and recommended by the Commission, however, the
appointments were purely temporary and terminable at the
discretion of the Government with one month’s notice on
either side or on payment of one month’s pay in lieu thereof.
Rule 5(1)(a) as quoted above contemplates two conditions.
Firstly, that an employee appointed on temporary service after
serving for two years after his initial appointment in post of
service or cadre, shall be deemed to be on probation and
secondly, the words "employee shall be deemed to be on
probation" visualizes the pre 1979 situation, if one were
working on temporary basis. We have noticed that the
respondents were appointed on temporary basis and not on
permanent basis and therefore the services of the respondents
would fall within the mischief of Rule 5 of the 1979 Rules
where the requirement of passing of the departmental
examination is essential before confirmation by a declaration
by the appointing authority in that behalf.
The next question to be considered is the criteria of
merit-cum-seniority in the promotion to scale 18 and scale 19.
By a circular dated 5.8.1981 the Government has brought out
statement of promotion policy. Paragraph 4 of the said
circular reads:-
"4. In the case of the State Services, including
the State Civil Service, State Health Service
and the State Engineering Service, the number
of posts currently available in Scales 18 and
19 are being increased with effect from April 1,
1981, those posts will be filled through
promotion, on the basis of merit cum seniority,
from within the respective Service and
Departmental Cadres. The rearrangement of
posts within each cadre is listed in the
Annexure". (emphasis supplied)
The promotion policy announced by the
Government would clearly disclose that the consideration is
merit-cum-seniority. The streams of Rules as referred to
above and considered, also contemplates passing of
departmental examination as a condition precedent for
completion of probation and confirmation. In the scheme of
Rules and policy of promotion, the consideration being merit
cum seniority, the sole basis of judging merit is the passing of
the departmental examination.
In Commissioner of Police vs. R.S. More, (2003)
2 SCC 408, this Court held that confirmation of service on a
particular post is preceded by satisfactory performance of the
incumbent unless service rules otherwise prescribe.
In High Court of M.P. vs. Satya Narayan Jh
avar, (2001) 7 SCC 161, this Court held in paragraph 11 at
scc p.169 as under:-
"11. The question of deemed confirmation in
service jurisprudence, which is dependent
upon the language of the relevant service
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rules, has been the subject matter of
consideration before this Court, times without
number in various decisions and there are
three lines of cases on this point. One line of
cases is where in the service rules or in the
letter of appointment a period of probation is
specified and power to extend the same is also
conferred upon the authority without
prescribing any maximum period of probation
and if the officer is continued beyond the
prescribed or extended period, he cannot be
deemed to be confirmed. In such cases there is
no bar against termination at any point of time
after expiry of the period of probation. The
other line of cases is that where while there is
a provision in the rules for initial probation
and extension thereof, a maximum period for
such extension is also provided beyond which
it is not permissible to extend probation. The
inference in such cases is that the officer
concerned is deemed to have been confirmed
upon expiry of the maximum period of
probation in case before its expiry the order of
termination has not been passed. The last line
of cases is where though under the rules
maximum period of probation is prescribed,
but the same requires a specific act on the
part of the employer by issuing an order of
confirmation and of passing a test for the
purposes of confirmation. In such cases, even
if the maximum period of probation has
expired and neither any order of confirmation
has been passed nor has the person concerned
passed the requisite test, he cannot be deemed
to have been confirmed merely because the
said period has expired".
When the principle of merit cum seniority is
applied, it is now well settled principle that great emphasis is
on merit and ability and seniority plays a less significant role.
Seniority has to be given weightage only when merit and
ability are approximately equal. [ See: B.V.Sivaiah vs.
K.Addanki Babu, (1998) 6 SCC 720, Central Council for
Research in Ayurveda & Siddha vs. Dr.K.
Santhakumari, (2001) 5 SCC 60 ].
It is, however, contended by Mr. Altaf Ahmad that
seniority be linked with date of initial appointment and not
from the date of passing the departmental examination.
According to him, if one passes departmental examination
later in point of time, his seniority must relate back to the date
of original appointment. According to him, under merit cum
seniority the test is merit and once an incumbent passes the
examination he qualifies the test of merit and, therefore, his
seniority relates back to the date of entry in the service. To
accept such contention would negate the mandate of the
Rules.
Mr.Altaf Ahmad has also drawn our attention to the
rules called the West Bengal Service (Determination of
Seniority) Rule, 1981. He particularly referred to Rule 4 of the
Rules. Rule 4 reads:-
"4. Determination of seniority of direct
recruits:-
The relative seniority of all persons appointed
directly through competitive examination or
interview or after training or otherwise shall be
determined by the order of merit in which they
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are selected for such appointment on the
recommendation of the Commission or other
selecting authority, persons appointed on the
result of an earlier selection being senior to
those appointment on the result of a
subsequent selection;
Provided that where appointment of
persons initially made otherwise than in
accordance with the relevant rules is
subsequently regularized in consultation with
the Commission, where necessary, seniority of
such persons shall be determined from the
date of regularization and not from the date of
appointment. The inter-se seniority amongst
such persons shall, however, depend on the
date of appointment of each such person in the
department or office concerned;
Provided further that if any person
selected for appointment to any post does not
join within two months of the offer of
appointment, his seniority shall count from the
date on which he joins the post unless the
appointing authority for reasons to be recorded
in writing condones the delay.
Note-(1) A list of candidates for the purpose of
selection for appointment shall be prepared in
all cases by the selecting authority, when there
will be recruitment in a single process of
selection of more than one person.
(2) Where the inter-se seniority amongst
several persons has not been determined prior
to the coming into force of these rules, such
seniority shall, on the coming into force of
these rules, be determined on the basis of
actual date of their joining. When the date of
joining of all such persons is the same,
seniority shall be determined on the basis of
date of birth, persons retiring earlier being
adjudged as senior. When the date of birth is
the same, seniority shall be determined on the
basis of total marks obtained by each in the
examination, passing of which is the
qualification prescribed for recruitment to the
particular post, cadre or grade.
(3) In so far as the determination of relative
seniority of persons selected either by the
Commission or by other selecting authority for
appointment to different posts in the same
grade with different qualifications such as
posts of Assistant Professor in History,
Economics, Physics, Chemistry etc. is
concerned, seniority shall be determined from
the date of joining.
On a fascicule reading of the Rule, it appears to us
that the said Rule has no application in the facts of the
present case. Rule 4, in our opinion, deals with the
appointment directly through the competitive examination on
permanent basis. There is no quarrel with the provision of the
Rule that if the Commission recommends and appoints the
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incumbents on permanent basis, such seniority has to be
determined in the order of merit in which they are selected for
such appointment on the recommendation of the Commission.
As already noticed, the respondents were not appointed on
permanent basis though appointed through the examination
conducted by the Commission. They were appointed purely on
temporary basis terminable with one month’s notice on either
side or on payment of one month’s pay in lieu thereof. In our
view, therefore, Rule 4 is of no assistance to the respondents’
case.
Mr.Altaf Ahmad has also referred to Rule 10 of 1953
Rules. Rule 10 of 1953 Rules reads:-
"10. When a probationer is confirmed
otherwise than with effect from the date of
expiry of the period of probation prescribed
under rule 2, he will unless it be otherwise
provided by rule draw as from the date of effect
of his confirmation the pay he would have
drawn had he been confirmed on the expiry of
the prescribed period of probation, and unless
it be otherwise provided by rule, the whole of
his services from the date of his appointment
on probation shall count for increments".
In our view, Rule 10 will be of no assistance to the
respondents’ case. Rule 10 simply provides that if an
incumbent is confirmed on the expiry of the prescribed period
of probation and unless the rules provided otherwise, the
whole of his service from the date of his appointment on
probation shall count for increments.
Mr.Altaf Ahmad also referred to Notification dated
21.12.1966 framing the Rules under proviso to Article 309 of
the Constitution regulating the recruitment to the West Bengal
Food and Supplies service. According to him, they were
appointed under 1966 Rules and there is no provision in the
said rules, which required the passing of the departmental
examination. According to him, requirement of passing the
departmental examination was introduced for the first time by
a Notification dated 10.1.1995. This contention is factually
incorrect. In fact on earlier occasion a Notification dated
21.4.1977 was issued, which required that candidates
appointed by direct recruitment against posts of West Bengal
Food and Supplies Services and subordinate Food and
Supplies services Grade-I would be required to pass the
departmental examination to qualify for being declared quasi
permanent in status and for the purpose of confirmation and
the subject of the departmental examination was also
prescribed. The Notification dated 10.1.1995 only brought an
amendment and it is not correct to say that it was for the first
time that requirement of departmental examination was
introduced on 10.1.1995.
By Notification dated 29.6.1985, the Government of
West Bengal, Department of Food and Supplies, brought out
18 Officers of the Food and Supplies, who have completely
passed the departmental examination. In serial No.5 one
Ratan Kumar Mukhopadhayay is shown to have passed the
departmental examination on 26.7.77. Therefore, it is not
correct to say that the requirement of departmental
examination was for the first time introduced by Notification
dated 10.1.1995.
Mr.Altaf Ahmad referred to the decision of this
Court in Jagidsh Kumar vs. State of H.P., (2005) 13 SCC
606, particularly paragraph 16. The aforesaid decision is not
relatable to appointment on probation and will be of no help to
the respondents’ case.
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On the question of departmental examination vis-‘-
vis reckoning of seniority, he has referred to the decision
rendered by this Court in M.H. Patil vs. State of
Maharashtra, (1999) 1 SCC 249. This Court referred to Rule
3, which was relied upon by the appellant in the case; the
same is reproduced as under:
"3. Seniority among the Non-Gazetted
Prohibition and Excise Officers and Clerks for
the purpose of confirmation shall be decided
according to the dates of their passing the
departmental examination held after
completion of one year’s continuous service in
the Prohibition and Excise Department".
This Court accepted the view of the department that
the seniority lists were prepared on the basis of continuous
officiation right from 1977 onwards. The seniority lists so
prepared were not disturbed, notwithstanding Rule 3
prescribing the fixation of seniority otherwise. Therefore, no
law has been laid down which can be followed as a precedent.
There is yet another difficulty to sustain the order of
the High Court. The High Court has also relied on the
communication dated 31.7.1978 wherein an Assistant
Secretary in a departmental communication has stated that
none of the direct recruits were working in the department as
Probationary Officers. Such departmental communication has
no role to play in the face of statutory rules.
For the reasons aforestated, we are unable to
sustain the impugned order of the High Court. The judgment
and order dated 11.12.2002 passed in WPST No.1044 of 2002
is set aside. The Notification dated 28.3.2001 issued pursuant
to a writ of mandamus by the earlier Division Bench of the
High Court is restored. The appeals are allowed. No costs.