{"id":98385,"date":"2002-01-07T00:00:00","date_gmt":"2002-01-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/md-israils-ors-vs-state-of-west-bengal-ors-on-7-january-2002"},"modified":"2018-09-05T19:05:35","modified_gmt":"2018-09-05T13:35:35","slug":"md-israils-ors-vs-state-of-west-bengal-ors-on-7-january-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/md-israils-ors-vs-state-of-west-bengal-ors-on-7-january-2002","title":{"rendered":"Md. Israils & Ors vs State Of West Bengal & Ors on 7 January, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Md. Israils & Ors vs State Of West Bengal & Ors on 7 January, 2002<\/div>\n
Author: Pattanaik<\/div>\n
Bench: G.B. Pattanaik, Y.K. Sabharwal<\/div>\n
           CASE NO.:\nAppeal (civil) 879  of  1998\n\n\n\nPETITIONER:\nMD. ISRAILS & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF  WEST BENGAL & ORS.\n\nDATE OF JUDGMENT:\t07\/01\/2002\n\nBENCH:\nG.B. Pattanaik & Y.K. Sabharwal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
PATTANAIK, J.\n<\/p>\n
Never ending dispute of inter se seniority between the direct
\nrecruits and the promotees in a cadre has cropped up  in
\nthis appeal, arising out of the judgment of the Division    Bench
\nof Calcutta High Court.\t The cadre in which the inter se
\nseniority  is required to be determined is the cadre of
\nEmployment  Officer   in the Directorate of National
\nEmployment   Service in the State of West Bengal.  The
\nGovernor of   West  Bengal   has  framed a set of Rules in
\nexercise of power conferred under    provisio  to Article 309 of
\nthe Constitution providing the method of recruitment and the
\nqualification required for the Gazetted post   in     the Directorate
\nof National Employment Services\t  (hereinafter referred to as
\n‘The Recruitment Rules’).  Under the Rules the cadre of
\nEmployment Officer (Technical) could be filled up by direct
\nrecruitment on the results of West Bengal Civil Services
\n(Executive and Allied Services)\t Examination for Group A as
\nwell as by promotion.  For the\tpromotion, to the feeder category
\nis the Junior Employment Officer,      Superintendent and U.D.
\nClerk of the Directorate of   NES West\t  Bengal;    Supdt. and
\nU.D. Clerks of Regional Employment  Exchanges  and U.D.
\nClerks of the  Sub-Regional   and District Employment Exchange
\n; Inspectors of Statistics and Statistical Assistants.\tUnder Rule 3
\nA (2) of the Recruitment Rules the ratio between the direct
\nrecruitment and the promotion is 50:50.\t  For being eligible for
\npromotion to the post of Employment Officer it is necessary that
\nthe person concerned should have 6 years’ of qualifying service
\nin the feeder post.  During the period 1976 to 1982 the appellants
\nwere appointed as District Employment Officers, as direct
\nrecruits, on being selected by the West Bengal Public Service
\nCommission on the basis of  their results of the Recruitment
\nexamination held for the post in West Bengal Civil Service
\n(Executive).  On 2.10.1978 and 13.9.1979, Government issued
\ntwo Notifications promoting  50 employees belonging to the
\nfeeder category on ad hoc basis to the post of Employment
\nOfficer for a period of 6 months, and respondents 6 to 30, the
\ncontesting respondents are included within the same 51.\t The
\nletter of appointment on promotion unequivocally indicated that
\nthe appointment is purely on ad hoc basis subject to the approval
\nof the Public Service Commission and is liable to be terminated
\nat any time without notice.  The post of Employment Officer
\nbeing a post carrying the pay scale of more than Rs.750\/- per
\nmonth, for filling up those posts on promotional basis it was
\nnecessary to consult Public Service Commission, as required
\nunder Section 3A of the West Bengal Public Service Commission
\n(Exemption from Consultation) Regulation 1955, (hereinafter
\nreferred to as “The Exemption Regulation”).  As has been stated
\nearlier, the post by direct recruitment is filled up on the basis of
\nthe competitive test held by the Public Service Commission for
\nthe West Bengal Civil Services.\t On 26.12.1980 the Labour
\nDepartment of the Government of West Bengal moved the Public
\nService Commission for approving the panel of the 51 persons
\nwho had been promoted on ad hoc basis as District Employment
\nOfficers.  Without the approval of the Public Service
\nCommission and because of the exigency of service Government
\nhad promoted respondents 6 to 30  in 1980-81.  As stated earlier,
\nthe appointment letter had unequivocally indicated that the same
\nis on ad hoc basis for a period of 6 months with effect from the
\ndate the appointees’ assume charges or until further order which
\never is earlier, and the appointment is subject to the approval of
\nthe Public Service Commission and is liable to be terminated at
\nany time without any notice.  Notwithstanding the aforesaid
\nterms and conditions in the appointment letter of the promotees,
\nas Government continued them beyond the period of 6 months
\nwithout\t any approval of the Public Service Commission, the
\ndirect recruits filed the Writ Petition in the Calcutta High Court
\nwith the prayer that the ad hoc promotees should not be allowed
\nto continue in the post without approval of the Public Service
\nCommission.  In the year 1988 while the Writ  Petition was
\npending in the High Court, the State Government forwarded the
\ncases of the promotees to the Public Service Commission with
\nthe recommendation that their ad hoc promotion be approved and
\nthey be regularised with effect from the date of their ad hoc
\npromotion.  In the pending Writ Petition State Government filed
\nits affidavit indicating therein that as the question of
\nregularisation of respondents 6 to 30 has engaged the attention of
\nthe Public Service Commission, their inter se seniority in the
\ncadre will be fixed in accordance with the West Bengal Services
\n(Determination of Seniority) Rules, 1981 (hereinafter referred to
\nas “Seniority Rules”), with due regard to the recommendation of
\nthe West Bengal Public Service Commission.  The Seniority
\nRules of 1981 have been framed by the Governor in exercise of
\npower conferred under proviso to Article 309 of the Constitution.
\nRule 6 is the relevant provision for determining relative seniority
\nof direct recruits and promotees.  The aforesaid Rules is extracted
\nherein below in extenso:-\n<\/p>\n
\t“6. Relative seniority of direct recruits and
\npromotees —  (1) The relative seniority between a
\npromotee and a direct recruit shall be determined by
\nthe year of appointment or promotion of each in the
\npost, cadre or grade irrespective of the date of joining.\n<\/p>\n
\t(2) The promotees shall be en-bloc senior to the
\ndirect recruits of the same year.”\tRules to be quoted.\n<\/p>\n
The West Bengal Public Service Commission approved the
\npromotion of respondents 36 to 630 to the post of Employment
\nOfficer with effect from 29th June, 1988 and in pursuance to the
\nsame Government of West Bengal in Labour Department issued
\nletter on 18.8.1988 by which letter the Governor was pleased to
\ndecide that the appointment of 63 officers to the West Bengal
\nEmployment Service as Employment Officer be approved with
\neffect from 29th June, 1988.  On 30th March, 1989, consequently
\nan affidavit was filed on behalf of the State in the pending Writ
\nPetition and a prayer was made that the State Government be
\nallowed to prepare a gradation list including all the Employment
\nOfficers treating the ad hoc employees since regularised with
\neffect from 29th June, 1988, on the basis of their continuous
\nofficiation.  The appellants  direct recruits filed a reply to the
\nsaid affidavit filed on behalf of the State Government and
\nrespondents 6 to 30 also had filed a Supplementary Affidavit.
\nThe Writ Petition was dismissed by a learned Single Judge on a
\nconclusion that the seniority of ad hoc promotees has to be
\ncounted from the initial date of appointment on promotion  and
\nnot from the date of their regularisation, after obtaining approval
\nof the Public Service Commission, as contended by the Writ
\nPetitioner.  The direct recruits thereafter approached the Division
\nBench in appeal, and that appeal having been dismissed, the
\npresent appeal has been preferred on grant of Special Leave.\n<\/p>\n
\tMr. Bhaskar Gupta, learned senior counsel appearing for
\nthe appellants contended, that the ad hoc promotion of
\nrespondents 3 to 30 not being in accordance with the relevant
\nstatutory provisions contained in the Recruitment Rules read with
\nthe West Bengal Public Service Commission (Consultation by
\nGovernor) Regulation of 1995 as well as the Exemption
\nRegulations, the services rendered prior to the approval by the
\nPublic\tService Commission cannot be counted for reckoning the
\nseniority in the cadre and, therefore, the High Court was in error
\nin holding that the ad hoc promotees would be entitled to count
\ntheir seniority from the initial date of their ad hoc  promotion.
\nMr. Gupta further contended that under the Seniority Rules, more
\nspecifically Rule 6 thereof, the relative seniority between the
\npromotee and direct recruit being required to be determined by
\nthe year of appointment or promotion of each of the promotee in
\nthe post, cadre or grade.  It necessarily stipulates the year of
\nregular promotion having been made in accordance with the
\nRules and not any ad hoc promotion made de hors the Rules, and
\ntherefore, the High Court committed error by directing that even
\nperiod of ad hoc promotion could be counted for reckoning the
\nseniority in the cadre.\t The learned counsel urged that in view of
\nunequivocal stipulation in the letter of appointment in case of ad
\nhoc promotees that appointment and posting is purely on an ad
\nhoc basis subject to the approval of the Public Service
\nCommission and is liable to be terminated at any time without
\nany notice and further the appointment initially having been made
\nfor a period of 6 months or until further order, which ever is
\nearlier, it is highly illegal to count such period of service as a
\nregular service in the cadre for the purpose of seniority, and
\nconsequently, the High Court committed grave error in directing
\nthat the said period would be reckoned for the purpose of
\nseniority in the cadre of  Employment Officer.\n<\/p>\n
\tMr. Tapas Ray, learned senior counsel appearing for the
\nState of West Bengal, on the other hand submitted, that the
\nStatutory Recruitment Rules do not require in terms that the
\nPublic Service Commission should be consulted for filling up the
\npost of Employment Officer on promotion.  In that view of the
\nmatter the Government itself having approached the Public
\nService Commission since December 1980 for the approval to the
\nad hoc promoteesion, such ad hoc promotees should not suffer
\nmerely because Public Service Commission kept the matter
\npending for more than 8 years.\tThe counsel next urged that the
\npromotion being made according to the Recruitment Rules there
\nis no rhyme or reason not to consider the ad hoc service for the
\npurpose of seniority in the cadre and continuous length of service
\nfrom the date of appointment should be the criteria for
\ndetermining the seniority in the cadre, the High Court, therefore
\ndid not commit any error.  Mr. Ray lastly urged that the Writ
\nPetition itself not having contained any prayer for determination
\nof inter se seniority and the only prayer being that the ad hoc
\npromotee should not be permitted to continue in the cadre
\nwithout the approval of the Public Service Commission, and that
\napproval having been accorded the Writ Petitions were rendered
\ninfructuous and, therefore the question of seniority ought not to
\nhave been considered.\n<\/p>\n
\tMr. Venkatramani, learned senior counsel  appearing for
\nrespondents 36 to 30 argued with vehemence that the ad hoc
\npromotees having got the essential pre requisites for being
\npromoted, and they having been promoted after being duly
\nconsultedselected, non approval of the Public Service
\nCommission would not render the services rendered as void, and
\ntherefore,  the High Court was fully justified in directing that the
\nperiod of ad hoc service has to be counted for the purpose of
\nseniority.  Mr. Venkataramani further urged that there is no fetter
\non the power of the Appointing Authority from regularising the
\nad hoc services from an enterior date after consultation with the
\nPublic Service Commission with effect from the date when the
\nvacancy in the promotee quota was available, and in the case in
\nhand there being no case that the promotees were in excess of the
\n50% quota available for them, the High Court was  fully justified
\nin directing that the ad hoc services also has to be counted for
\nreckoning their seniority in the cadre of Employment Officer.
\nAccording to the learned counsel, the services rendered by ad hoc
\npromotees without consultation with the Public Service
\nCommission cannot be treated as non est and can be regularised
\nfrom the date of the promotion, so long as substantive vacancy in
\nthe cadre within the promotee quota was available and that being
\nthe position, there is no error in the impugned judgment in the
\nmatter of determining the inter se seniority between the direct
\nrecruit and the promotees in the cadre of Employment Officer.  In
\nsupport of this contention the learned counsel relied upon several
\nobservations of this Court in the case of Suraj Prakash Gupta
\nvs. State of J & K.<\/a> (2000) 7 SCC 561.\tAccording to Mr.
\nVenkataramani, the promotee Employment Officers having
\nrendered continuous service in the cadre of Employment Officer,
\nafter being duly selected by the Appointing Authority, and such
\npromotion having been made in the exigency of public service,
\neven without consultation with the Public Service Commission as
\nit could not brook any delay, it will be wholly inequitable to
\nignore the services from the date of promotion till 1988, the date
\non which the Public Service Commission accorded the approval.
\nThe rival submissions require a careful scrutiny of the relevant
\nRules and decisions of this Court indicating the principle on
\nwhich seniority could be counted.  But the moot question would
\nbe as to whether promotion to the post of Employment Officer
\nbeing required to be made in consultation with the Public Service
\nCommission under the Recruitment Rules, the period rendered
\nprior to such approval can be counted for seniority?   It may be
\nstated that in the supplementary affidavit that was filed on behalf
\nof the State Govt. in the High Court, though it was stated that the
\nappointment of ad hoc officers were regularised after obtaining
\nthe approval of the Public Service Commission with effect from
\n29th June, 1988 by the Government order dated senko
\n18.8.1988, but a prayer was made to permit the Government to
\nprepare a single Gradation List treating the former ad hoc officers
\nwho were then regularised as regular officers with effect from the
\ndates of their continuous officiation.\n<\/p>\n
A combined reading of the Recruitment Rules and the West
\nBengal Public Service Commission (Consultation by Governor)
\nRegulation 1955 as well as the Exemption Regulation of 1955
\nwould unequivocally indicate that the post of Employment
\nOfficer could be filled up by promotion to the extent of 50% of
\nthe vacancies available in the cadre, after due consultation with
\nthe Public Service Commission.\tIn fact the very appointment
\nletter in favour of the respondents clearly indicated that the
\nappointment is being made purely on ad hoc basis subject to the
\napproval of the Public Service Commission.  Then again the State
\nGovernment being the Appointing Authority for the post of
\nEmployment Officer and the said post being a gazetted post with
\na pay scale of more than Rs.750\/- per month, appointment by
\npromotion could not be made without the approval of the Public
\nService Commission.  It is in this context the questions raised are
\nrequired to be answered.\n<\/p>\n
In view of the rival stand of the parties, the first question
\nthat requires to be answered is whether the promotion to the post
\nof Employment officer under the Recruitment Rules could be
\nmade by the State Government without consultation with the
\nPublic Service Commission?  The Recruitment Rules merely
\nprovide that all the posts in the West Bengal National
\nEmployment Services excepting the post of Employment officer
\n(Technical) could be filled up either by direct recruitment or by
\npromotion, the feeder category being the post mentioned in
\nClauses(a) to (e) of Rule 3(A) of the said Rules.  The post of
\nEmployment officer is undoubtedly a post borne in the West
\nBengal National Employment Service.  The Recruitment Rules,
\nunfortunately is totally silent as to how recruitment by promotion
\ncould be made to the said post of  Employment officer borne in
\nthe West Bengal National Employment Service, though so far as
\ndirect recruitment is concerned, it is categorical that it would be
\nby selection on the results of the West Bengal Civil Services
\nexamination for Group A services which is conducted by the
\nPublic Service Commission.  The post in question being a
\ngazetted civil post, under Article 320(3) of the Constitution the
\nState Public Service Commission is required to be consulted for
\nfilling up the post by promotion unless in exercise of power under
\nthe proviso to Article 320(3) of the Constitution the Governor by
\nway of making any Regulation specify the post for which it shall
\nnot be necessary for a Public Service Commission to be
\nconsulted.  The Governor has framed  a Regulation in exercise of
\nsuch power in the State of West Bengal, called, ‘The West
\nBengal Public Service Commission (Consultation by Governor)
\nRegulation, 1955, and Rule 3 thereof provides that so far as
\nclauses (a) and (b) of Article 320 (3) are concerned, if the
\nAppointing Authority is not the State Government but is one
\nsubordinate to the State Government, then it shall not be
\nnecessary to consult the Public Service Commission.  So far as
\nthe post of Employment officer is concerned, the Appointing
\nAuthority being the State Government, consultation with the
\nPublic Service Commission is required to be made while making
\npromotion,  as provided under Article 320(3)(b) and the same
\ndoes not go out of the purview of consultation with the Public
\nService Commission in view of the provisions contained in
\nRegulation 3 of the Consultation by Governor Regulation 1955.
\nThere has been another order issued by the Governor , called The
\nWest Bengal Public Service Commission (Exemption from
\nConsultation) Regulation, 1955 and Section 3A thereof
\nunequivocally indicates that even if the State Government is the
\nAppointing Authority in respect of the post, which is filled up by
\npromotion, yet\tit will not be necessary to consult the Public
\nService Commission provided the maximum of the scale of pay
\nof such post does not exceed Rs.750\/- p.m. as per West Bengal
\nServices (Revision of Pay and allowance) Rules, 1970 and   in the
\ncase of each post decision to exclude is taken in consultation with
\nthe Commission and a provision to that effect is incorporated in
\nthe relevant Recruitment Rules.\t Rule 3A of the Exemption
\nRegulation is extracted hereinbelow in extenso:-\n<\/p>\n
“Rule 3A.- It shall not be necessary to consult the
\nCommission in regard to promotion to posts and
\nservices, the appointing authority of which is the State
\nGovernment provided that the maximum of the scale of
\npay of such posts\/services does not exceed Rs.750\/-
\nper month as per West Bengal Services (Revision of
\nPay & Allowances) Rules, 1970 and provided further
\nthat the decision to exclude such promotion in the case
\nof each post\/service is taken in consultation with the
\nCommission and a provision to that effect is
\nincorporated in the relevant recruitment rules.”\n<\/p>\n
A post of Employment Officer having a pay scale of more than
\nRs.750\/- per month under the West Bengal Services (Revision of
\nPay &Allowances) Rules, 1970, and there being no decision to
\nexclude the promotion to such post taken in consultation with the
\nCommission, the conclusion is irresistible that for filling up the
\npost of Employment officer by promotion requires consultation
\nwith the Public Service Commission.  It is also apparent from
\nRule 3 of the Recruitment Rules, which says that all the posts in
\nthe West Bengal National Employment Services excepting the
\npost of Employment Officer (Technical) is required to be made
\nunder the procedure prescribed under the said Rules and for the
\npost of Employment Officer (Technical) Rule 4 has been
\nspecifically provided. In view of the aforesaid legal provisions,
\nwe unhesitatingly hold that the post of Employment Officer by
\npromotion, under the Recruitment Rules required to be filled up
\nonly after consultation with the Public Service Commission.  In
\nfact the very appointment letters in favour of respondents 6 to 30
\ncategorically indicate the same.\n<\/p>\n
\tThe next question that requires to be considered is, what
\nwould be the nature of services rendered by such promotees who
\nwere promoted on ad hoc basis prior to the consultation with the
\nPublic Service Commission, and whose appointment by
\npromotion was approved by the Public Service Commission only
\non 29th June, 1988?  In the Constitution bench decision of this
\nCourt in Direct Recruit Class II Engineering Officers’
\nAssociation vs. State of Maharashtra and others<\/a>\t (1990) 2
\nSupreme Court Cases 715, this Court after a thorough discussions
\nof several earlier cases of the Court came to hold, that once an
\nincumbent is appointed to a post according to the rule, his
\nseniority has to be counted from the date of his appointment and
\nnot according to the date of his confirmation.\tThe corollary of
\nthe above Rule is, where the initial appointment is only ad hoc
\nand not according to the rules and made as a stop-gap
\narrangement, the officiation in such post cannot be taken into
\naccount for considering the seniority.\tAccording to Mr. Gupta,
\nthe learned counsel appearing for the appellant, the corollary
\nwould apply to the respondents 6 to 30 and, therefore, the
\nofficiation in the promoted post would not count for their
\nseniority.  According to Mr. Venkataramani, the corollary laid
\ndown in the case applies only to the case of a direct recruit and
\ncannot have any application to the respondents 6 to 30.\t It is no
\ndoubt true, in the aforesaid case the question for consideration
\nwas whether in case of a direct recruit his seniority has to be
\ncounted from the date of his appointment or from the date of his
\nconfirmation, and the Court answered the same that it should be
\nfrom the date of the appointment.\n<\/p>\n
In Masood Akhtar Khan and Others vs. State of Madhya
\nPradesh & Others<\/a>   – (1990) 4 Supreme Court Cases 24, which
\nalso dealt with the case of a direct recruit,  the question for
\nconsideration was as to from what date the seniority in the cadre
\nof an appointee could be considered?  In that case also the very
\nappointment letters indicate that the appointments are made for a
\nperiod of 6 months, pending regular selection by Public Service
\nCommission, and appointees, however, were allowed to continue
\nbeyond the period of 6 months and later on regularly selected by
\nthe Public Service Commission.\tThis Court came to hold\t that
\nthe appointees, who have been allowed to continue beyond the
\nperiod of 6 months and later on were regularly selected by the
\nPublic Service Commission can claim seniority from the date of
\ntheir regular absorption in the cadre after being selected by the
\nPublic Service Commission, and services rendered from the date
\nof their initial stop gap appointment till regular selection will not
\ncount for their seniority in the cadre.\n<\/p>\n
In the case of M.K. Shanmugam and another vs. Union of
\nIndia & Others –  (2000) 4 Supreme Court Cases 476, this Court
\ncame to hold that any ad hoc service does not count for seniority
\nin the cadre and it can only count in those cases where the initial
\nappointment, though ad hoc is made by the same process,\t as is
\napplicable to the regular appointment and is not a stop-gap
\nappointment.  In this case also the promotions had been made
\npurely\ttemporary and on  ad hoc basis and for a limited period
\nand it had been made clear in promotion order that the promotion
\nis subject to the approval of the Public Service Commission and
\nwould not confer any seniority.\t In the case in hand also the order
\nof promotion in favour of respondents 6 to 30 categorically
\nindicated that the promotion is purely on ad hoc basis and subject
\nto the approval of the Public Service Commission.  Consequently
\nthe services rendered on such ad hoc basis till the approval of the
\nPublic Service Commission is obtained, will not count for
\nreckoning the seniority in the cadre.  The only other decision
\nwhich requires consideration is the judgment of this Court in
\nSuraj Prakash Gupta and Others vs. State of J& K and
\nOthers –   (2000) 7 Supreme Court Cases 561, on which Mr.
\nVenkataramani, learned senior counsel appearing for the private
\nrespondents strongly relied upon.  Question no. 3 in this case
\nwas, whether ad hoc, stop-gap promotion of Assistant Engineers
\ncould be made beyond 6 months and till regularisation, by the
\nGovernment without consulting the Public Service Commission?
\nAnd question 1(b) was whether the entire ad hoc service of
\nAssistant Engineers, who were promoted without consultation of
\nthe Public Service Commission can be counted for the purpose of
\nseniority?  So far as question no. 3 is concerned, the Court
\nanswered by referring to Regulation 4(d)(iii) of J&K Public
\nService Commission (Limitation of Functions) Regulations, 1957
\nand   Rule 23 of the J&K Civil Services (CCA) Rules 1956, that
\nthe State Government has the power to regularise the services
\nfrom an anterior date, as provided under Rule 23, and therefore,
\nwhen appointment is made without consultation with the Public
\nService Commission, entire  service will not be wiped off.  This
\nconclusion was possible because of the existence of Rule 23.  In
\nthe case in hand we do not have any Rule corresponding to Rule
\n23, and therefore the ratio of the aforesaid case will have no
\napplication.  Mr. Venkataramani, however, vehemently urged that
\nthe observations made in the aforesaid case are of general nature
\nand should apply to every case irrespective of existence of any
\nRule corresponding to Rule 23 of the J&K Civil Services (CCA)
\nRules.\tWe are, however, not persuaded to accept this submission
\nof learned counsel for the respondents.\t In view of the analysis of
\ndifferent provisions of Recruitment Rules,  the West Bengal
\nPublic Service Commission (Consultation by Governor)
\nRegulation, West Bengal Public Service Commission (Exemption
\nfrom Consultation) Regulation, we have no doubt that the initial
\nappointment of respondents 6 to 30, purely on ad hoc basis
\nwithout consultation with the Public Service Commission cannot
\nbe held to be a regular service in the cadre of Employment
\nofficer, and as such the same cannot be counted for the purposes
\nof reckoning their seniority in the cadre.\n<\/p>\n
\tThe question of seniority is governed by a set of rules called
\n‘The West Bengal Services Determination of Seniority Rules,
\n1981 and under Rule 6 thereof relative seniority of direct recruits
\nand promotees is required to be determined.  The expression
\n‘relative seniority’ between a promotee and a direct recruit shall
\nbe determined by the year of appointment or promotion of each in
\nthe post, cadre or grade, irrespective of the date of joining would
\nobviously mean the year of regular promotion and not any ad hoc
\npromotion which is made contrary to the statutory rule.\t That
\nbeing the position, so far as respondents 6 to 30 are concerned,
\ntheir year of promotion would be 1988, the year when the Public
\nService Commission approved their promotion w.e.f. 29th June,
\n1988 and the State Government issued the necessary order on 11th
\nAugust, 1988.\n<\/p>\n
\tIt is true, as contended by Mr. Ray learned senior counsel
\nappearing for the State Bengal, that in the Writ Petition filed by
\nthe direct recruits there was no prayer for determination of inter
\nse seniority and the only prayer was not to allow the ad hoc
\npromotee to continue in the cadre without approval of the Public
\nService Commission, but it is the State Government who filed an
\napplication seeking permission of the Court to draw up an
\nintegrated gradation list of direct recruits and promotees treating
\nthe ad hoc promotees to be in the cadre from their initial date of
\nappointment and not from the date of their regular service after
\nbeing approved by the Public Service Commission; and on this
\napplication the High Court considered the question of
\ndetermination of inter se seniority between the direct recruits and
\nad hoc promotees. That being the position, it is difficult for us to
\naccept the submission of Mr. Ray, learned senior counsel
\nappearing for the State of West Bengal that the claim of inter se
\nseniority need not be gone into in the present appeal.\n<\/p>\n
\tIn the aforesaid premises, the impugned judgment of the
\nCalcutta High Court, both of the learned Single Judge and that of
\na Division Bench are set aside and the appeal is allowed.  It is
\nheld that the inter se seniority of the direct recruits\t appellant
\nand the promotees  respondents 6 to 30 has to be worked out
\ntreating the services of the direct recruits from the date of their
\ninitial appointment and the services of the respondents
\npromotees from the date of their service being approved by the
\nPublic Service Commission and notified by the State Government
\nw.e.f. June 1988.  The seniority list may accordingly be re-drawn
\nup.  There will be no order as to costs.\n<\/p>\n
\t\t\t……………J
\n\t\t\t(G.B.  PATTANAIK)<\/p>\n
\t\t\t…………….J.\n<\/p>\n
\t\t\t(Y.K. SABHARWAL)<\/p>\n
January\t 07, 2002.\n<\/p>\n
29<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Md. Israils & Ors vs State Of West Bengal & Ors on 7 January, 2002 Author: Pattanaik Bench: G.B. Pattanaik, Y.K. Sabharwal CASE NO.: Appeal (civil) 879 of 1998 PETITIONER: MD. ISRAILS & ORS. Vs. RESPONDENT: STATE OF WEST BENGAL & ORS. DATE OF JUDGMENT: 07\/01\/2002 BENCH: G.B. Pattanaik & Y.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-98385","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMd. 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