Pran Krishna Goswami & Ors Vs.
State of West Bengal & Ors [1985] INSC 100 (24 April 1985)
REDDY, O. CHINNAPPA (J) 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 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.
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.
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 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 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 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 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 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 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 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-
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 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.
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 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 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 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 (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 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 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.
Back
