Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 19
PETITIONER:
PRAN KRISHNA GOSWAMI & ORS.
Vs.
RESPONDENT:
STATE OF WEST BENGAL AND ORS.
DATE OF JUDGMENT24/04/1985
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
PATHAK, R.S.
MISRA, R.B. (J)
CITATION:
1985 AIR 1605 1985 SCR (3) 914
1985 SCC Supl. 221 1985 SCALE (1)1024
CITATOR INFO :
RF 1986 SC 638 (12)
F 1987 SC 424 (24)
ACT:
West Bengal Services (Determination of Seniority) Rules
1981. Rules 4, 5 and 6 :
Promotees and Direct Recruits-Seniority-Fixation of-
Seniority among promotees-Date of joining-Seniority between
promotees and direct recruits- Year of joining.
Civil Services:
Seniority-Fixation of-Direct Recruits and Promotees
Service Rules- Absence of-General principle is seniority
determined on basis of continuous officiation in non-
fortuitous vacancies.
HEADNOTE:
The appellants joined the State Police Force as
Constables, were promoted as Assistant Sub-Inspectors of
Police, and later as officiating Sub-Inspectors of Police
and confirmed as Sub-Inspectors. In the meanwhile, a large
number persons were directly recruited as Sub-Inspectors,
and also confined. All these persons were ranked above the
appellants in the seniority list.
In writ petitions to the High Court, the appellants
contended that their seniority must be reckoned from the
date of their continuous officiation as sub Inspectors, and
that they were never considered for promotion to the next
higher post of Inspector of Police, because of their delayed
confirmation, and of the insistence of the Rules that they
should be confirmed as Sub-Inspectors of Police before they
could be considered for promotion to the post of Inspector
of Police and that the offending Rule be quashed. The State
supported the claim of the appellants to seniority on the
basis of continuous officiation, but the direct recruits
contested the writ petition.
The High Court refused to recognise the claim of the
appellants to seniority from the dates of their continuous
officiation, on the ground that their promotion as
officiating Sub-Inspectors of Police could only be
considered as promotion to posts outside the cadre. It
further held, that their seniority could only be reckoned
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 19
from the date of their confirmation, and that the rule pres-
915
cribing confirmation as Sub-Inspector as a condition
precedent for promotion to the Post of Inspector of Police
was not invalid.
Allowing the Appeals,
^
HELD: 1. The three appellants are entitled to have the
benefit of their continuous officiating service as Sub-
Inspectors of Police counted for seniority as Sub-Inspectors
of Police.A writ will issue, directing the state to re-fix
the seniority of the appellants and other officers similarly
situated. [939 F]
2. It is not undisputed, that in the absence of Rules
to the contrary, regulating the question of seniority
between ’direct recruits’ and the ’promotees’ the general
principle to be implied and followed to determine seniority
is to base it on continuous offication in non-fortuitous
vacancies. [929B]
In the instant case, the officiating Sub-Inspectors of
Police were obviously appointed to officiate in permanent or
temporary vacancies in the existing subordinate ranks of the
Calcutta Police, governed by the same Rules and Regulations
as other Sub-Inspectors of Police, drawing the same pay and
discharging the same duties. There was not and there could
never be any question of officiating Sub-Inspectors
constituting a different cadre, class or category by
themselves. [934G-H]
3. Rule 4 of the West Bengal Services (Determination of
Seniority) Rules, 1981 which deals with seniority amongst
direct recruits, broadly provides that their relative
seniority shall be according to the cadre of merit when they
are selected at the same examination persons appointed on
the basis of an earlier examination taking precedence over
those appointed on the basis of a later examination. It
further provides that where seniority has not been
previously determined it shall be determined according to
the actual date of joining. Rule 5 deals with determination
of seniority of promotees and provides that seniority of a
person appointed to any post, cadre or grade shall be
determined from the date of joining such post, cadre or
grade, which by Rule 3 (vi) means tho date of continuous
officiation in the post, cadre or grade. Rule 6 prescribes
that 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, and that the promotees shall he en-
bloc senior to the direct recruits of the same year. Rules
4, 5 and 6 constitute a single scheme and if read together
the scheme becomes clear. While date of joining is important
to decide the question of seniority amongst promotees, it is
the year of joining that is relevant when the question of
relative seniority is to be deter- mined between promotees
and direct recruits. If direct recruits are appointed and
promotees are promoted in the same year, all promotees are
to take precedence over the direct recruit, irrespective of
the actual date of their joining but as amongst the
promotees themselves, the seniority is to be based on the
date of joining. That is the true and appropriate
construction of Rules 4, 5 and 6, and that was what the
State Government wanted to do and was done.
[935 F-H ;936 A-C]
916
Ganga Ram v. Union of India, [1970; 3 SCR 481, Katyani
Dayal v. Union of India [1980], 3 SCR 139, distinguished.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 19
S.B Patwardhan v. State of Maharashtra, [1977] 3 SCR
775 Baleshwar Dass v. State of UP. [1981] 1 SCR 449; A.
Janardhana v. Union of India, 1983 3 SCC 601, O.P. Singla ,-
. Union of India, AIR 1984 SC 1595; G.S. Lamba & Ors. v.
Union of India, [1985] 3 SCR 431, B.S. Gupta v. Union of
India, [1975] SUPP SCR 491; A.K. Subramana v. Union of
India, [1973] 2 SCR 979: P.S. Mahal v. Union of India. AIR
1984 SC 1291; referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 400-401
of 1984
From the Judgment and Order dated 15 7.1983 of the
Calcutta High Court in C.R. No. 7979 (W) Of 1981.
M.K. Ramamurthi, B. Datta, Rishi Kesh, Badri Prasad and
Pudisserry for the Appellants.
S.N. Kacker, H.K. Puri, D.N. Mukharjee, J.R. Das and
D.R. Sinha for the Respondents.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. The wars of the Roses go on. How
else is one to describe the perpetual battles waged between
the ’direct-recruits’ and the ’promotees’ ? This time the
front is the Calcutta Police, the posts are those of Sub-
Inspectors of Police and the question is the same old one of
seniority. Petitioners 1 and 2, who joined the Calcutta
Police as Constables in November 1947 were first promoted as
Assistant Sub-Inspectors of Police and later, on August 6,
1951, as officiating Sub-Inspector of Police. They were
confirmed as Sub-Inspectors of Police on January 1, 1975. In
the meanwhile, a large number of persons were directly
recruited as Sub-Inspectors of Police and also confirmed as
such, All of them are now ranked above the petitioners in
the seniority list, and the petitioners, therefore, have a
natural grievance. They claim that as laid down by a series
of decisions of this court, their seniority must be reckoned
from the date of their continuous officiation as Sub-
Inspectors of Police. Petitioner No.3, we may mention, was
promoted as officiating Sub-Inspector of Police on September
6, 1975, but the precise date of his confirmation is not
available from the record. Apart from the claim to
seniority,
917
the petitioners also alleged that they were never considered
for promotion to the next higher post of Inspector of Police
because of their delayed confirmation and because of the
insistence of the Rules that they should be confirmed as
Sub-Inspectors of Police before they could be considered for
promotion to the post of Inspector of Police. they want the
offending rule to be quashed. Other reliefs were claimed in
the writ petition filed by them in the High Court, but we
are not now concerned in this appeal with those other
reliefs. While the State of West Bengal appeared to support
the claim of the appellants to seniority on the basis of
continuous officiation, the direct-recruits contested the
writ petition in the High Court. The High Court refused to
recognise the claim of the appellants to seniority from the
dates of their continuous officiation on the ground that
their promotion as officiating Sub-Inspectors of Police
could only be considered as promotion to posts outside the
cadre. The High Court held that their seniority could only
be reckoned from the date of their confirmation. The High
Court further held that the rule prescribing confirmation as
Sub-Inspector as a condition precedent for promotion to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 19
post of Inspector of Police was not invalid. The ’promotee’
Sub-Inspectors have preferred this appeal by special leave
of the court under Art. 136 of the Constitution.
It is necessary now to refer to the various recruitment
and seniority rules made from time to time under the powers
conferred by the statute. Rule 2(b) of the Recruitment Rules
for the Subordinate Ranks of the Calcutta Police, 1936
provided that twenty five per cent of the vacancies shall be
filled by promotion of Assistant Sub-Inspectors and
Sergeants and the rest by direct recruitment. Rule 2(f)
prescribed the qualification for outside candidates meaning
thereby direct-recruits. What is important to be noted is
that they were required to be Graduates of a University.
Rule 2(g) prescribed the qualifications for departmental
candidates and it is necessary to extract the whole of it,
which is as follows:-
"(g) Qualifications for departmental candidates-
On the first of June, nominations shall be called
for from all District Officers of Assistant Sub-
Inspectors and Sergeants fit for promotion to the rank
of Sub-Inspectors. Nominees shall have had at least 3
years’ service as Ser-
918
geant or Assistant Sub-Inspector, be less than 40 years
of age and normally have passed one of the following
examination.
(1) Matriculation or the Indian Army Special
Certificate of Education,
(2) Junior Cambridge,
(3) First Class Army Certificate,
or have, in the opinion of the Selection Board,
other wise attained a satisfactory educational
standard. They shall sit in a preliminary departmental
test examination at the Calcutta Police Training
School. The names of all nominees who pass that
examination shall be submitted to the Selection Board.
The candidates shall have-
(i) a good record of service, and
(ii) a good social position;
The Judge of this should be the Selection Board.
Note-On passing out of the Calcutta Police Training
School officers shall remain on probation prior to
confirmation.
Rule 2 (j) which applied both to outside and
departmental candidates was as follows:-
"(j) Qualified Candidates shall be summoned before a
Selection Board consisting of the Commissioner of
Police, the Deputy Commissioner of Police, Head
quarters.’ a District Deputy Commissioner, and an
Assistant Commissioner of Police. The Selection Board
shall make the final selections for appointment."
The Probation Rules for the Subordinate Ranks of the
Calcutta Police, 1936 prescribed that for Sub-Inspectors,
the period of probation of a person directly recruited or of
an officer who was
919
promoted from a lower rank shall be two years counting from
the date of his joining the Calcutta Police Training School.
While Rule 2 sub-rule 3 provided that persons directly
recruited shall draw the minimum pay in the time-scale of
Sub-Inspectors through the period of their probation. Rule 2
sub-rule 4 provided that promoted officers shall draw the
minimum pay in the time scale of Sub-Inspectors, subject to
the condition that they shall count towards increment,
officiating and temporary service in that rank rendered
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 19
prior to their appointment as probationers and also their
probationary period or any part thereof and draw increment
that may fall due to them during the period of their
probation. It was further stipulated that a probationer
shall be confirmed on the termination of his probationary
period unless the Deputy Commissioner in charge of a
District shall during the period of probation make an order
extending this period of probation or discharging him from
service or reverting him to his substantive rank. An order
of extension of probation was not to extend beyond one year,
except with the sanction of the Commissioner of Police.
By an order dated December 16, 1940, it was provided
that when determining the relative seniority of probationary
Sub-Inspectors in the Calcutta Police, the following
principles were to be observed:
"(1) Departmentally appointed Sub-Inspectors will be
senior to direct recruits of the same year and will be
graded inter se according to the date of their confirmation
in the rank of Assistant Sub-Inspector.
(2) The seniority of directly recruited Sub-Inspectors
will be in accordance with their position In the final
examination at the Police Training School."
In supersession of this order, a further order was
issued on December 14, 1960 laying down the principles to be
followed in determining the relative seniority of
probationary Sub-Inspectors of the Calcutta Police. The
principles were as follows:-
"(1) The seniority of departmentally promoted and
directly recruited Sub-Inspectors will be determined in
accor
920
dance with the dates of their probationary appointment
in the rank.
(2) Where a departmentally promoted Sub-Inspector and
a directly recruited Sub-Inspector are appointed on
probation with effect from the same date, the depart-
mental officer will be senior to the direct recruit,
provided they undergo training at the Police Training
College the same year.
(3) The seniority of the directly recruited Sub-
Inspectors will be in order of their position in the
final examination held at the Police Training College
and that of the departmentally promoted officers be in
accordance with their position in the approved list of
officiating Sub-Inspectors, fit for confirmation in the
rank of Sub-Inspector."
In 1962, the Calcutta and Suburban Police (subordinate
ranks recruitment, conditions of service and discipline)
Rules were made. Schedule I prescribed the method of
recruitment, qualifications for appointment including age
and conditions of service. Paragraph 2 of the Schedule dealt
with Sub-Inspectors not belonging to the Armed Branch and to
the extent it is relevant, is extracted below:
"Sub-Inspectors not belonging to the Armed Branch
2. (1) Method of recruitment: Recruitment in the rank
of Sub-Inspector shall be made each year in the month
of January. Twenty-five per cent of the vacancies shall
be filled by promotion of Assistant Sub-Inspectors and
the remaining vacancies shall be filled by direct
recruitment.
(2) For filling up vacancies by promotions candidates
shall be selected on the basis of merit only.
(3) (a) For filling up vacancies by direct
recruitment applications from outsiders shall be
invited through the Press in the 1st week of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 19
August...........
921
(b)...............................
(c)..............................
(4) Qualifications for outside candidates-The
candidates shall-
(i) be graduates of one of the lndian universities;
(ii) .........
(iii) ........
(iv) ..........
(V) ...........
(5) Qualifications for departmental candidates-
On the first day of June every year nominations shall
be called for from all Deputy Commissioners of
Assistant Sub-Inspectors fit for promotion to the rank
of Sub-Inspector. Nominees shall have had at least 3
years of service as Assistant Sub-Inspector, be less
than 40 years of age and normally have passed one of
the following examinations:
(a) Matriculation, School Final or Higher Secondary
Examination or the Indian Army Special Certificate
of Education Examination:
(b) Junior Cambridge Examination;
(c) First class Army Certificate Examination;
or have, in the opinion of the Selection Board referred
to insub-rule (7), otherwise attained a satisfactory
educational standard. They shall be required to sit in
a preliminary departmental test examination. The names
of all nominees who pass that examination shall be
submitted to the said Selection Board. The candidates
shall have in the the opinion of the said Selection
Board a good record of service,
922
Note-Selected candidates shall have to undergo a
course of training in the Police Training College. On
passing out of the Police Training College, officers
shall remain on probation prior to confirmation.
(6) .........
(7) Qualified candidates shall be summoned before a
Selection Board consisting of the Deputy
Commissioner, Headquarters, a Divisional Deputy
Commissioner and an Assistant Commissioner of
Police. Appointment shall be made of candidates
included in an approved list of candidates
prepared on the recommendation of the Selection
Board.
(8) .........
Paragraph 19 of Schedule I deals with the probation of
Sub Inspectors and to the extent necessary it is extracted
below:-
"Sub-InsPectors
19. 1) The period of probation of a person directly
recruited as a Sub-Inspector shall be two years
counting from the date of leaving the Police
Training College and that of an officer promoted
as a Sub-Inspector from a lower rank shall be one
year counting from the date of joining the Police
Training College on such promotion.
(2) ..........
(3) Promoted Sub-lnspectors shall draw the grade pay
in the time-scale of Sub-Inspectors, subject to
the condition that they shall count towards
increment officiating and temporary service in
that rank rendered prior to their appointment as
probationers and also their probationary period or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 19
any part thereof and draw increment that may fall
due to them during the period of their probation.A
probationer Sub lnspector shall be confirmed on
the completion of his probationary period unless
the Deputy Commissioner, Headquarters, shall make
an order extending his period of probation or
discharging him from service
923
or reverting him to his substantive rank. Any order for
such extension of the probationary period or reversion
or discharge shall indicate grounds on which the order
is made. Such an order of extension shall not
ordinarily extend the period of probition beyond one
year. For extension for any Period beyond one year, the
sanction of the Commissioner shall be obtained.
(4) (a) The training period of promoted Sub-
Inspectors shall be one year, of which the first six
months shall be spent in the Police Training College.
The training period of direct recruits as Sub-
Inspectors shall be two years of which one year shall
be spent in the Police Training College.
(b) The initial pay of direct recruits as Sub-
Inspectors when posted to the Police Training
College shall be Rs. 200 per mensem, the minimum
of the time scale of pay of Sub-Inspectors.
(csuch part of the training period of direct recruits
as Sub-Inspectors as is spent in the Police Training
College, namely, one year, shall be exclusive of the
probationary period and count towards increment of pay.
(d) The training period of promoted Sub-Inspectors shall
count towards increment of pay."
In 1967, the Police Regulations, Calcutta were framed under
section 3 of the Calcutta Suburban Police Act, 1866 and
section 9 of the Calcutta Police Act. Chapter XV dealt with
method of recruitment, qualifications for appointment
including age and conditions of service. Paragraph 3 of
Chapter XV dealt with Subspectors not belonging to the Armed
Branch. To the extent necessary, paragraph 3 is extracted
again:
"3. Sub-Inspectors not belonging to the Armed Branch:
(1) Method of recruitment-Recruitment in the rank of
Sub-lnspector shall be made each year in the month
of January. One-third of the vacancies shall be
filled
924
by promotion of Assistant Sub-Inspectors, and the
remaining vacancies shall be filled by direct
recruitment.
(2) For filling up vacancies by promotion candidates
shall be selected on the basis of merit with due
regard to seniority,
(3)(a) .....
(b) .........
(c) ..........
(4) Qualifications for candidates for direct
recruitment-
The candidates shall-
(i).........
(ii) be graduates of one of the Indian Universities.
(iii) .........
(iv) ..........
(v) ..........
(vi) ..........
(5) Qualified candidates shall be required to appear
for an interview before a Selection Board
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 19
consisting of the Deputy Commissioner,
Headquarters, and two other Deputy Commissioners
nominated by the Commissioner. Appointment shall
be made of candidates included in an approved list
of candidates prepared on the recommendation of
the Selection Board.
(6) ..........
(7) Qualifications for departmental candidates-
Nominations shall be called for as and when
necessary from all Deputy Commissioners of all
Assistant Sub-Inspec.
925
tors fit for promotion to the rank of Sub-Inspector.A
Nominees shall have had at least three years of service
as Assistant Sub-Inspector and normally have passed one
of the following examinations:-
(a) Matriculation, School Final or Higher Secondary
Examination or the Indian Army Special Certificate
of Education Examination,
(b) Junior Cambridge Examination;
(c) First Class Army Certificate Examination; or
have, in the opinion of the Selection Board, referred
to in Sub-rule (8) below otherwise attained a
satisfactory educational standard.
They shall be required to sit in a
departmental examination the procedure and syllabus for
which shall be such as may be determined by the
Commissioner.
(8) The names of all nominees who pass that
examination shall be submitted to the Selection
Board. The candidates shall have in the opinion of
the Selection Board, good records of service. The
S election Board shall consist of Deputy
Commissioner, Headquarters, and two other Deputy
Commissioners nominated by the Com missioner.
(9) Candidates must have passed the departmental
exami- nation completely before they are
interviewed by the Selection Board. Candidate
shall be eligible for the examination referred to
above after they are confirmed in the rank of
Assistant Sub-Inspector.
Note. Selected candidate (both direct recruits and
departmental) shall have to undergo a course of
training in the Police Training College.
(10) An officiating Sub-Inspector having completed two
years’ continuous service in the rank and on completion
of the required course of training shall be eligible
926
for appearing before the Selection Board concerned for
inclusion of his name in the panel of officiating Sub-
Inspector fit for confirmation in the rank of Sub
Inspector."
Paragraph 46 may also be extracted here:
(1) The period of probation of a person directly
recruited as a Sub-lnspector or a Sub-lnspectoress
shall be two years counting from the date of
leaving the Police Training College or School, as
the case may be, and that of an officer promoted
as a Sub-Inspector or Sub lnspectoress from the
lover rank shall be one year counting from the
date of his or her appointment on probation. Such
part of the training period of direct recruit as
Sub-Inspectors or Sub-Inspectoress as is spent in
the Police Training College or School, namely, one
year, shall be exclusive of the probation any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 19
period and count towards increment of pay.
(2) .............
(3) Promoted Sub-Inspectors including Sub-
Inspectoresses shall draw the grade pay in the
time scale of Sub-Inspectors, subject to the
condition that officiating and temporary service
in that rank rendered prior to their appointment
as probationers and also their probationary period
or any part thereof shall counttowards increment
and they shall draw increment that may fall due to
them during the period of their probation.A
probationary Sub-Inspector or Sub-Inspectoress
shall be confirmed on the completion of his or her
pro bationary period unless the Deputy
Commissioner, Head-quarters, shall make an order
extending his or her period of probation or
discharging him or her from service or in the case
of a promoted Sub-Inspector or Sub-lnspectoress
reverted him or her to his or her substantive
rank. Any order for such extension of the
probationary period or reversion or discharge
shall indicate grounds on which the order is made.
Such an order of extension shall not exceed the
period
927
of probation beyond one year in the case of a direct
recruit and six months in the case of a promotee. For
extension of any period beyond one year or six months,
as the case may be, sanction of Government shall be
obtained."
In 1981 the West Bengal Services (Determination of
Seniority) Rules were made and it is not disputed before us
that these rules are applicable to the Calcutta Police. Rule
3 (iv) defines "post"," cadre" or "grade" as meaning any
post, cadre or grade in connection with the affairs of the
State of West Bengal. Rule 3 (vi) says, "date of Joining"
shall be reckoned from the date of continuous officiation in
a post/cadre or grade. Rules 4, 5 and 6 which deal with
’Determination of seniority of direct recruits’,
’determination of seniority of promotees, and relative
seniority of direct recruits and promotees, are important
and have to be extracted in full. They are as follows:
"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 determine by the order
of merit in which they 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
appointed on the result of a subsequent selection:
Provided that where appointment of persons initially
made otherwise than in accordance with the relevant
recruitment rules is subsequently regularised in
consultation with the Commission, where necessary,
seniority of such persons shall be determined from the
date of regularisation and not from the date of
appointment. The inter-se-seniority amongst such
persons shall how ever, depend on the date of
appointment of each such person in the department or
office concerned:
Provided further that if any person selected for ap-
pointment 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 19
928
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 Or 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,
person 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 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 Professors in History, Economics,
Physics, Chemistry, etc., is concerned, seniority
shall be determined from the date of joining.
5. Determination of seniority of promotees-
(1) Seniority of person appointed on promotion to any
Post, cadre or grade shall be determined fro n the
date of joining such post, cadre or grade.
(2) When there will be appointment in a single process
of selection of more than one person the; relative
seniority of persons so appointed shall be
determined by the order in which they are selected
for such promotion.
929
(3) Persons appointed on the result Or an earlier
selection shall be senior to those appointed on
the results of a subsequent selection.
(4) Where promotions to a post, cadre or grade are
made from more than one post, cadre or grade, the
relative seniority of the promotees from different
posts, cadre or grades shall be according to the
order of merit determined by the commission or the
selecting authority, if such posts, caders or
grades do not come within the purview of the
commission.
Note 1-A list of candidates for the purpose of
selection for promotion shall be prepared in all cases
by the selecting authority when appointments are made
on promotion in a single process of selection of more
than one person.
Note 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 date of joining. When the date of joining of
such person is the same, seniority in the promotion
post, cadre or grade shall follow the seniority in the
lower feeder post, cadre or grade.
6. Relative seniority of direct recruits and
promotees-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19
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."
A certain amount of confusion has been created by the
reliance placed by the High Court upon the decisions of this
Court in Ganga Ram v. Union of India(l) and Katyani Dayal v.
Union of Media.(2) We wish to make it clear, straightaway,
that neither of
(1) [1970] 3 SCR 481.
(2) [l980] 3 SCR 139.
930
these cases has any application to the facts of this case,
as we shall presently explain.
The proposition is now undisputed, and, indeed none of
the Counsel who appeared before us disputed it, that in the
absence of Rules to the contrary regulating the question of
seniority between direct-recruits’ and the ’promotees’, the
general principle to be implied and followed to determine
seniority is to base it on continuous officiation in non-
fortuitous vacancies. In the case of S. B. Patwardhan v.
State of Maharashtra (1) Chandrachud, CJ. Observed:
"We, however, hope that the Government will bear
in mind the basic principle that if a cadre consists of
both permanent and temporary employees, the accident of
confirmation cannot be an intelligible criterion for
deter mining seniority as between ’direct-recruits’ and
the ’promotees’. All other factors being equal,
continuous officiation in a non-fortuitous vacancy
ought t receive due recognition in determining rules of
seniority as between persons recruited from different
sources, so long as they belong to the same cadre,
discharge similar functions and bear the same
responsibilities."
In Roleshwar Dass v. State of U. P.(2), Krishna Iyer,
J. had occasion to observe:
We must emphasise that while temporary and
permanent posts have great relevancy in regard to the
career of Government servants, keeping posts temporary
for long, sometimes by annual renewal for several
years, and denying the claims of the incumbents on the
score that their posts are temporary makes no sense and
strikes us as arbitrary, especially when both temporary
and permanent appointees are functionally identified.
If, in the normal course, a post is temporary in the
real sense and the appointee knows that his tenure
cannot exceed the post in longevity, there cannot be
anything unfair or capricious in clothing him with no
rights. Not so, if the post is, for certain
departmental or like purposes, declared temporary,
(I) [l977] 3 S.C.R. 775
(2) [l981] 1 S.C.R. 449.
931
but it is with in the ken of both the Government and
the appointee that the temporary posts are virtually
long lived. It is irrational to reject the claim of the
’temporary’ appointee on the nominal score of the
terminology of the post. We must also express
emphatically that the principle which has received the
sanction of this Court’s pronounce -ments is that
officiating service in a post is for all practical
purposes of seniority as good as service on a regular
basis. It may be permissible, within limits, for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19
Government to ignore officiating service and count only
regular service when claims of seniority come before
it, provided the rules in that regard are clear and
categorical and do not admit of any ambiguity and
cruelly arbitrary cut-off of long years of service does
not take place or there is functionally and
qualitatively, substantial difference in the service
rendered in the two types of posts While rules
regulating conditions of service are within the
executive power of the State or its legislative power
under proviso to Article 309, even so, such rules have
to be reasonable, fair and not grossly unjust if they
are to survive the test of Arts. 14 and 16.’’
To the same effect in A. Janardhana v. Union of
India,(1), D. A. Desai, J. Observed:
".. In other words, after having rendered service
in a post included in the service, he is hanging
outside the service, without finding a berth in
service, whereas direct recruits of 1976 have found
their place and berth in the service. This is the
situation that stares into one’s face while
interpreting the quota-rota rule and its impact on the
service of an individual. But avoiding any humanitarian
approach to the problem, we shall strictly go by the
rele- vant Rules and precedents and the impact of the
Rules on the members of the service and determine
whether the impugned seniority list is valid or not.
But, having done that we do propose to examine and
expose an extremely undesirable, unjust and inequitable
situation emerging in service, jurisprudence from the
precedents namely, that a
(1) [1983]3 SCC 601.
932
person already rendering service as a promotee has to
go down below a person who comes into service decades
after the promotee enters the service and who may be a
schoolian, if not in embryo, when the promotee on being
promoted on account of the exigencies of service as
required by the Government started rendering service.A
time has come to recast service jurisprudence on more
just and equitable foundation by examining all
precedents on the subject to retrieve this situation."
These cases were quoted with approval by
Chandrachud,CJ. and one of us (Pathak, J.) in O.P. Singla v.
Union of India(1). In that case as a result of the
application of Rules 16 and 17 of the Delhi Higher Judicial
Service Rules, the quota and rota’ Rule ceased to apply and
the question arose what was the criterion to be adopted to
determine the seniority between ’direct recruits’ and
’promotees’. Chandrachud, CJ. and Pathak, J. Observed:
Since the rule of ’quota and rota’ ceases to apply
when appointments are made under Rr. 16 and 17, the
seniority of direct recruits and prormotees appointed
under those Rules must be determined according to the
dates on which direct recruits were appointed to their
respective posts and the dates from which the promotees
have been officiating continuously either in temporary
posts created in the ser vice or in substantive
vacancies to which they were appoint- ted in a
temporary capacity,
G..S. Lamba & Ors. v. Union of India,(2) there was a
break. down of the ’quoto-rota’ Rule as it had not been
followed. The problem was how seniority to be determined
between direct recruits and promotees. D.A. Desai, 1. with
whom Khalid, J. agreed after noticing the decisions in B.S.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 19
Gupta v. Union of Indiu(3). A.K. Subrarnana v. Union of
India.(4) P.S. Mahal v. Union of India, Janardhana v. Union
of India, O.P. Singla v. Union of India (Supra) observed .
(1) AIR [1984] SC. 1595.
(2) [1985] 3 S.C.R. 431.
(3) [1975] SUPP. SCR 401.
(4) [1979] 2 SCR 979.
933
"In the absence of any other valid principle of
senio- rity it is well-established that the continuous
officiation in the cadre, grade or service will provide
a valid principle of seniority. The seniority lists
having not been prepared on this principle are liable
to be quashed and set aside."
We may now refer to the two decisions of this Court
upon which reliance was placed by the High Court. In Ganga
Ram v. Union of India (1), the question arose with regard to
the validity of a provision of the Indian Railways
Establishment Manual according to which amongst Clerks Grade
I who had been promoted from the rank of Clerks Grade Il
after passing the prescribed qualifying examination, those
who had been promoted earlier because they had passed the
examination earlier, were, nevertheless required to take
their place in the seniority list after those who were
promoted later because they had passed the examination later
if the latter happened to be senior in Grade 11. In other
words, notwithstanding their actual dates of commencement of
continuous officiation, promotees to Grade I carried with
them their seniority in Grade Il. The Rule was challenged on
the ground of discrimination. It was said that in the case
of direct recruit to Grade I seniority was reckoned from the
date of appointment to Grade I whereas in the case of
promotees amongst themselves their seniority was based on
their seniority in Grade Il. This argument was repelled by
this Court on the ground that direct recruits and promotees
constituted different classes and the classification was
sustainable. It was said that promotion to Grade I was
guided by the consideration of seniority-cum-merit and it
was, therefore, difficult to find fault with the provision
which placed in one group all those Grade II clerks who had
qualified by passing the examination. The fact that the
promotees from Grade II who had OFFICIATED for some time
were not given the credit of that period when a permanent
vacancy arose also did not attract the prohibition contained
in Arts. 14 and 16. It did not constitute any hostile
discrimination and was neither arbitrary nor unreasonable.
It applied uniformly to all Grade 11 clerks who had
qualified and become eligible. The onus, it was said, was on
the petitioners to establish discrimination. The difference
emphasized on behalf of the petitioners, it was finally
observed, was too tenuous to form the basis of a serious
argument. It will be seen that the case was not concerned at
all with the rival claim of direct recruits and promo-
A.I.R. 1984 SC. 1291
934
themselves. The comparison with direct recruits was only for
the purpose of advancing the claim that since amongst direct
recruits seniority was reckoned in a particular way, there
was no reason why the same principle should not be adopted
in the case of promotees also instead of the principle of
basing seniority in Grade I on seniority in Grade ll. We do
not think that this case is of any avail to the II direct
recruits in the present case.
In Katyani Dayal Y. Union of India, in order to meet
some special requirements of new situations created by new
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 19
projects, some new posts of temporary Assistant Officers,
were created under a special scheme. These Temporary
Assistant Officers belonged neither to class I nor to class
II service, though on completion of three years service it
was declared that they could be considered for absorption in
Class I, Junior Scale. The temporary Assistant Officers
filed a writ petition claiming that they were appointed to
the Indian Railway Service of Engineers Class I right from
the beginning and that the Railway Board was wrong in
treating them as belonging to neither class I nor class II.
The court held that the service comprising the Temporary
Assistant Officers and the Indian Railway Service of
Engineers Class I started separately and never become one.
The objects of their recruitment were dissimilar and the
appointing authority was not the same. The training that was
imparted was also unlike. The very tenure of the Temporary
Assistant Officers was precarious and their immediate
aspiration was only to be absorbed into the Indian Railway
Service of Engineers Class I. These distinctive features
marked out the Temporary Assistant Officers as a Class apart
from the Indian Railway Service of Engineers Class I and
therefore there was no question of entitlement of equal
rights with the later. Of course, once they were absorbed
into the Indian Railway Service of Engineers they would be
entitled not to be treated differently thereafter. Their
seniority would ordinarily be reckoned from the date of
their absorption into the Railway service of Engineers, as
promised in their letters of appointment. It was further
pointed out that there was a fundamental qualitative
difference, linked with the method of recruitment. Though
the minimum educational qualification was the same, those
who were recruited directly to the Indian Railway Service of
Engineers Class I were subjected to stiff and competitive,
written and personality tests. Only the very best could
aspite to come out successful. The Temporary Assistant
Officers were not subjected either to a written test or to a
personality
935
test but were selected on the basis of an interview by the
Union Public Service Commission. In addition to the minimum
educational qualification, three years’ experience as a
Civil Engineer was also prescribed. Thus while brilliance
was the beacon light which beckoned those aspiring to become
members of the Indian Railway Service of Engineers Class 1,
it was replaced by experience in the case of those wanting
to be Temporary Assistant Officers. Again the appointing
authority in the case of Indian Railway Service of Engineers
Class I was the President while the appointing authority in
the case of temporary assistant Officers was the Railway
Board, no doubt, pursuant to the authority given by the
President. Different courses of training were prescribed for
the Indian Railway Service of Engineers and the Temporary
Assistant Officers. For the Indian Railway Service of
Engineers the training was an intensive and comprehensive
one designed to equip them for higher posts in the
Department too while the training for Temporary Assistant
Engineers was a brief six months’ training intended merely
to equip them for carrying out the specific jobs. In the
matter of terms and conditions of service, while the
provisions of the Indian Railway Establishment Code were
fully applicable to the Indian Railway Service of Engineers
Class 1, those provisions were applicable to ’Temporary
Assistant Officers’ to the extent there was no specific
provision in their letter of appointment and agreement.
It was on those facts and circumstances that it was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 19
held that there was no discrimination directed against the
temporary Assistant Officers. We are unable to see how this
case can possible help the direct recruits in the present
case. It was suggested that the officiating Sub-Inspectors
of Police who had been promoted from the rank of Assistant
Sub-Inspectors were appointed to posts outside the cadre as
in Katyani Dayal s case and it was this argument that found
favour with the High Court. There is no basis whatsoever for
the supposition that there was any new cadre or any new
class of posts created by the Government, known as
officiating Sub-Inspector of police. The officiating Sub-
lnspectors of Police were obviously appointed to officiate
in permanent or temporary vacancies in the existing
subordinate ranks of the Calcutta Police, governed by the
same Rules and regulations as other Sub-lnspectors of
police, drawing the same pay and discharging the same
duties. There was not and there could never be any question
of officiating Sub-Inspectors constituting a different
cadre, class or category by themselves.
936
The next question is whether the Rules regulating the
recruitment, seniority etc. Of Sub-Inspectors of Police in
the Calcutta Police make any departure from the general pri-
nciple laid down in the whole series of cases commencing
with Patwardhan to which we have already referred. Earlier
we have set out in great detail all the relevant rules in
force from time to time. We do not find anything in any of
the rules indicating an intention to depart from the gene -
ral principle. Shri S. N. Kacker, learned counsel for the
direct recruits invited our attention to Rule 6 of the West
Bengal Services (Determination of Seniority) Rules, 1981 and
asked us to read it in the light of Rule 3 (vi) which
defines ’date of joining’ and stipulates that date of
joining shall be reckoned from the date of continuous
officiation in a post/cadre or grade. Rule 6 (i) provides
that relative seniority between a promotee and a direct
recruit shall be deter mined by the year of appointment or
promotion of each in the post, cadre or grade irrespective
of the date of joining and Rule 6 (2) provides that the
promotees shall be en-block senior to the direct recruits of
the same year. The submission of Shri Kackar was that ’date
of joining’ as defined in Rule 3 (vi) was expressly made
irrelevant by Rule 6 (1) for the purpose of determining
Seniority between a promotee and a direct recruit and it
meant that the period of continuous officiation was not to
be taken into account in determining relative seniority
between promotees and direct recruits. The argument though
superficially attractive lacks substance.A perusal of Rule 4
and 5 makes the position clear. Rules 4, 5 and 6 constitute
a single scheme. Now Rule 4 which deals with seniority
amongst direct recruits, broadly, provides that their
relative seniority shall be according to the cadre of merit
when they are selected at the same examination persons
appointed on the basis of an earlier examination taking
precedence over those appointed on the basis of a later
examination. Rule 4 further provides that where seniority
has not been previously determined it shall be determined
according to the actual date of joining Rule 5 deals with
determination of seniority of promotees and broadly again,
provides that seniority of person appointed to any post,
cadre of grade shall be determined from the date of joining
such post, cadre or grade. which we know from Rule 3 (vi)
means the date of continuous officiation in the post, cadre
or grade. Then comes Rule 6 which prescribes that the
relative seniority between a promotees and a direct recruit
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 19
shall be determined by the year of appointment or promotion
of each in the post, cadre or grade irrespective of the date
of joining and that the promotees
937
shall be en-blow senior to the direct recruits of the same
year Now, if Rules 4, 5 and 6 are read together the scheme
becomes clear. While date of joining is important to decide,
the question of seniority amongst promotees, it is the year
of joining that is relevant when the question of relative
seniority is to be determined between promotees and direct
recruits. If direct recruits are appointed and promotees are
promotee in the same year, all promotees are to take
precedence over the direct recruit, irrespective of the
actual date of their joining but as amongst the promotees
themselves, the seniority is to be based on the date of
joining. That according to us is the true and appropriate
construction of Rules 4, 5 and 6. We are indeed very happy
to note that this is precisely what the West Bengal
Government wanted to do and it was done with a view to give
effect to the judgments of this Court. Paragraph 5 (Il) the
affidavit of Nirupom Som, Commissioner of Police, Calcutta,
is worth extracting and it is as follows :-
"5 (1).............."
5 (II) With effect from 11. 3. 81, the West Bengal
Services (Determination of Seniority) Rules, 1981 were
promulgated under Article 209 of the Constitution.
These rules were made following the judgment of the
Hon’ble Supreme Court in the Patwardhan v. State of
Maharashtra case (AIR 1977 SC 2051). Previously the
seniority was determined under provisions laid down in
the Finance Department Memo No. 568-F dated 20. 2. 68.
Prior to 20.2.68, there was no codified principles, the
respective Departments following principles that might
be different in different departments.
" (b) The Hon’ble Supreme Court made observations,
inter-alia as follows in the aforesaid case:-
(i) The vice of the seniority rule (with
determines seniority between direct recruits and
promotees from the date of confirmation) is that it
leaves the valuable right of seniority to depend upon
the mere accident of confir- mation. That under Article
14 and 16 of the Constitution is impermissible and
therefore, we must strike down the said rule as being
unconstitutional."
938
"(ii) We do not want to take upon ourselves task
of framing rules of seniority. That is not the function
of this Court and frankly it lacks the expertise and
data-to do so. We, however, hope that the Government
will bear in mind the basic‘ principles that if a cadre
consists of both perma- nent and temporary employees,
the accident of confirmation cannot be an intelligible
criterion for determining seniority as between direct
recruits and promotees. All others factors being equal
continuous officiating in a non fortuitous vacancy
ought to receive due recognition in terminating rules
of seniority as between person recruited from different
sources, so long as they belong the same cadres
discharge similarly functions and bear similar res-
ponsibilities."
" (c) In the light of the aforesaid observations
of the Hon’ble Supreme Court the provisions in Finance
Department Memo no. 568-F dated 20. 2. 68 were examined
in Consultation with the law officers of Government and
the public service commission. The West Bengal Service
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 19
(Determination of Seniority) Rules 1981 were
promulgated with effect from 11. 3. 81 after due
observance of all formalities and considering all
aspects of the matter."
Again in paragraph 10 it was said,
"10... I submit that in the instant case it can
hardly be disputed that both the direct recruits as
well as the promotees Sub-lnspectors of Police form one
class. They are both known by the same designation,
they have the same scales of pay, they discharge the
same functions, and the posts held by them arc
interchangeable. Thus there is nothing to show that the
two groups are kept apart, and both are merged together
in the same class. It is not competent to the
Government thereafter to discriminate between directly
recruited Sub-lnspectors and promotee Sub-lnspectors in
the matter of further promotion to the posts of
Inspectors, as that would be violation of Article 16 of
the Constitution. It is submitted that the rule of pro
motion is inextricable linked with the rule of
weightage and seniority in the lower grade. There is a
well recognised discrimination between promotion and
confirmation
939
and the tests to be supplied for the purposes of
promotion are entirely different from those that had to
be applied at the time of confirmation. Though drawn
from two different sources, the direct recruits and
promotees constitute in the instant case a single
integrated cadre. They discharge in dentical functions,
bear similar responsibilities and acquire an equal
amount of experience in their respective aisignment.
The superseded principles for Determination of
Seniority denied to the promotees the benifit of their
long and valuable experience. If there was some
intelligible grounds for this differentiation being
nexus with efficiencies in public services, it might
perhaps have been possible to sustain such a
classification. Confirmation is one of the inglorions
uncertainities of Government Service depending within
an efficiency of the incumbent nor on the availability
of substantive vacancies. The vice of the seniority
rule (which determines seniority between direct
recruits and promotees) from the date of confirmation
is that it leaves the valuable right of seniority to
depend upon the mere accident of confirmation. that
under Article 14 and 16 of the constitution, is
impermissible. If a cadre consist of both permanent and
temporary employees, the accident of confirmation
cannot be an intelligible criterion for determining
seniority as between direct recruits and promotees. All
other facts being equal continuous officiating in a
non-fortuitous vacancy ought to receive due recognition
in determining rules of seniority as between persons
recruits from different sources, so long as they belong
to the same cadre discharge similarly functions and
bear similar responsibilities."
We think it is needless to further dilate on this topic
except to express our appreciation of the stand taken by the
West Bengal Government in these paragraphs.
The final submission of Mr. Kacker was that the
appellants had never appeared at the prescribed examination,
had never been called before the Selection Board and had
never been sent to the Police Training College. They had
never gone through the selection process prescribed by the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 19
Rules and could not therefore have been validly appointed as
Officiating Sub-lnspectors of Police or confirmed as Sub-
lnspectors of Police. The appellants, at least two
940
of them, have been officiating as Sub-Inspectors of Police
since almost three decades and even confirmed as Sub-
Inspectors of Police for a decade. We are afraid it is
rather late in the day for Mr. Kacker to raise this question
at almost the final stages of a long drawn out battle. It is
true that in their writ petition in the High Court, the
appellants made the barest of allegations in regard to their
process of selection which they went through before they
were promoted to the rank of Sub-lnspectors of Police. They
had said,
"After passing the departmental examination for
pro motion to the rank of Sub-Inspector, your
petitioners were declared fit for promotion to the rank
of Sub-Inspector and your petitioners Nos. 1 and 2 were
promoted to the rank of Sub-Inspector on the 6th
August, 1957 while your petitioner No. I was promoted
to the rank of Sub-lnspector on the 8th September, 1975
"
Even this bare allegation was not properly denied in the
counter filed by the respondents and that was never
seriously put in issue. At the conclusion of the hearing we
called upon the State of West Bengal to produce all the
relevant records pertaining to the service careers of the
three appellants but we do not purpose to wait for them.
Enough for us to do justice is it appears from the records
now before us. We think that the three appellants are
entitled to have the benefit of their continuous officiating
service as Sub-Inspectors of Police counted for seniority as
Sub-lnspectors of Police.A writ will, therefore, issue
directing the respondents to re-fix the seniority of the
appellants and other officers similarly situated in
accordance with what we have said above.
A further question was raised by the appellants
regarding the validity of the paragraph 1 (iii) of the
Police Regulation, Calcutta, 1967 which provides that
directly recruited Sub-Inspectors shall be eligible to
sit for the departmental examination to qualify
themselves for promotion after their confirmation and
on completion of 7 years’ service, including temporary
service in their rank. On the other hand, they complain
that the rule provides that department Sub-Inspectors
who have been so appointed by promotion shall be
eligible to sit for the examination after their
confirmation in the rank of Sub-lnspectors provided
that their total length of service as Sub-lnspector is
not less than 7 years . Seemingly, the rule
941
appears to treat both the direct recruits and promotees on
the same footing, but it was submitted by a learned counsel
for the petitioners that in practice the rule works harshly
on the promotees because of the ’inglorious’ uncertainty of
the confirmation of the promotees. It was said that the date
of confirmation of a promotee was so incurably uncertain,
compelling a promotee to wait for more than a decade for
confirmation and thus he will not be eligible to appear for
the qualifying examination for promotion as Inspector of
Police even though he has completed 7 years of continuous
officiating service as Sub-Inspector of Police. There
appears to be some legitimate scope for grievance on this
question because of the vagaries of dates of confirmation of
promotees, but we are not inclined to examine this question
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 19
in the present case as petitions 1 and 2 made no efforts to
qualify themselves for promotion by appearing in the
examination after their confirmation in 1975 even though
they had already completed 7 years of service. In the case
of the 3rd petitioner, he had not even completed 7 years’
service by the date of the filing of the writ petition and
we are told that he had also now retired from service. In
the circumstances, we do not think it necessary to examine
this question. The appeal is, therefore, allowed in the
manner and to the extent indicated. Such other benefits to
which the appellants are entitled under the judgment of the
High Court will remain uneffected. The appellants will get
their cost, which we quantify to Rs. 5, 000.
N. V. K. Appeals allowed.
942