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