Deb Acharya & Ors Vs. Biswanath Chakraborty & Ors  Insc 684 (19 October 2006)
APPEAL NO.6384 of 2003 The State of West Bengal & Ors. Appellants Versus Biswanath Chakraborty &
Ors. Respondents H.K.SEMA,J.
challenge in these two appeals is to the judgment and order dated 11.12.2002
passed in W.P.S.T.No.1044 of 2002 by the Division Bench of the Calcutta High
Appeal No. 6383 of 2003 has been filed by Sankar Deb Acharya & Ors. and
Civil Appeal No.6384 of 2003 has been filed by the State of West Bengal &
Ors. both against Biswanath Chakraborty & Ors. Both the appeals raise a
common question of law and as such they are being disposed of by this common
have heard the parties at length.
Ramchandran, learned senior counsel appeared for the appellants in Civil Appeal
No. 6383 of 2003 and Mr. Altaf Ahmed, learned senior counsel, appeared for the
respondents. We have also heard Mr.Ranjit Kumar, learned senior counsel for the
appellants in Civil Appeal No. 6384 of 2003 and Mr. Tapas Ray, learned senior
counsel, for the respondents.
two appeals have a chequered history.
prolixity, we may state few facts strictly for the purpose of disposal of these
two appeals. As the question of facts and law raised are common, we are taking
facts from Civil Appeal No.6383 of 2003.
dispute raised in these two appeals is with regard to inter se seniority and
promotions of the appellants and the private respondents, under the applicable
rules, namely the West Bengal Services (Training & Examination) Rules,
1953, as amended, the West Bengal Services (Revision of Pay and Allowances)
Rules, 1970 and the West Bengal Services (Appointment, Probation &
Confirmation) Rules, 1979, where according to the scheme of service rules the
criteria for promotion is merit cum seniority and whether the private
respondents can be made seniors to the appellants solely on the ground that
they joined the service earlier to the appellants' date of joining.
facts, which are not disputed, are thus:
The appellants and private respondents are direct recruits at entry scale 17.
The next promotion is to scale 18 and then to scale 19.
Private respondents joined the duty earlier than the appellants' date of
The appellants passed the departmental examination and were confirmed in
service in terms of rules prior to the private respondents.
two charts showing the detail of respective dates of joining the duty and
passing of the departmental examination and confirmation by the appellants and
private respondents are as under:
POSITION OF APPELLANTS Sl.No.
of Appellants Date of Joining Date of passing Departmental Examination Date of
Dev Acharaya 07.03.79 26.06.83 26.06.83
Gaur Hari Khanra 17.06.80 01.12.85 01.12.85
Kr.Ghosh 12.05.80 29.12.82 29.12.82
Das 12.06.80 13.01.85 13.01.85
Kr.Bisnu 18.08.81 29.12.82 18.08.83
Ranjan Maity 04.09.81 01.12.85 01.12.85
of Respondents Date of Joining Date of passing Departmental Examination Date of
Chakraborty 10.1.78 16.12.88 16.12.88
Mitra 24.5.77 21.11.91 21.11.91
Bandhu Biswas 5.5.78 5.6.92 5.6.92
Sarkar 20.5.77 26.11.92 26.11.92
Kumar Ganguly 27.3.76 16.12.88 16.12.88
Ali 3.2.78 16.12.88 16.12.88
Ray 1.12.76 16.12.88 16.12.88
Sarkar 9.9.77 16.12.88 16.12.88
Kr.Ghosh (1) 20.6.77 29.12.82 29.12.82
Das 20.5.77 26.11.92 26.11.92
Kr.Dutta 19.7.79 16.12.88 16.12.88
Kr.Chandra 1.6.77 1.6.84 1.6.84
NathBhowmik 13.1.78 16.4.94 16.4.94
Ch.Sarkar 16.7.77 26.11.92 26.11.92
Bikash Mallik 28.7.78 1.6.84 1.6.84
Kumar Banerjee 2.7.78 16.12.88 16.12.88
Ch.Saha 28.12.76 21.11.91 21.11.91
Kr. Bhttacharjee 1.6.77 31.5.85 31.5.85
Das Roy 12.7.77 5.6.92 5.6.92
Kumar Mitra 1.6.77 16.5.95 16.5.95
Kr.Dutta 2.5.78 1996 confirmed
Baran Mudi 28.8.76 5.6.92 5.6.92
Kanti Sarkar 31.12.76 25.11.83 25.11.83
Saha 3.6.77 27.11.97 27.11.97
Nil Kamal Saha 16.4.80 5.6.92 5.6.92
16.9.76 21.11.91 21.11.91
Kanti Bal 1.8.79 16.12.88 16.12.88
Nath Das 8.12.76 1.6.84 1.6.84
Suni Nasir 19.7.76 16.12.88 16.12.88
Sengupta 22.1.75 1.6.84 1.6.84
Kumar Sandhukhan 18.8.76 21.7.91 21.7.91
Kundu 6.8.77 16.12.88 16.12.88
Mondal 26.4.78 18.5.88 1.5.88
Biswas 23.8.78 17.11.86 17.11.86
Anil Kumar Kesh 9.6.78 5.6.92 5.6.92
Sarwar 1.6.77 16.12.88 16.12.88
Ahsan 1.7.77 5.6.92 5.6.92
N. Bhattacharjee 30.6.76 5.6.92 5.6.92
Ch.Das 10.6.77 16.6.94 16.6.94
Ranjan Ghosh 17.12.77 Not yet passed Not yet confirmed
Ch.Ghosh 17.12.74 28.5.81 28.5.81
Kr.Sarkar 3.5.78 26.11.92 26.11.92
Kumar Mitra 23.7.79 17.5.87 17.5.87
Mohan Chakraborty 6.3.79 1.6.86 1.6.86
Kumar Ghosh(II) 20.6.77 17.11.94 17.11.94
Jana 27.5.77 26.6.83 26.6.83
answer the aforesaid questions, it will be relevant to have a quick survey of
the scheme of the rules framed from time to time. The Government of West Bengal
framed the rules called Training and Examination Rules, 1953 (hereinafter the
1953 rules) as amended. The rules inter alia provided that a government servant
appointed on probation, remains a probationer until confirmation. A probationer
would have to pass before confirmation any test or examination, prescribed as a
condition precedent for confirmation in the service. It also provided that no
officer shall be eligible for promotion unless he has completely passed the
departmental examination. Then came the West Bengal Services (Revision of Pay
& Allowances) Rules. 1970 (hereinafter the ROPA Rules). It also provided
that all appointment to a permanent post under the Government would be on
probation, which shall include West Bengal Food & Supplies Service.
Government of West Bengal framed rules called West Bengal Services
(Appointment, Probation & Confirmation) Rules, 1979 (hereinafter the 1979
rules). The rules inter alia provided that where the rules for confirmation
required passing of any academic, departmental or other examination before
confirmation, the 1979 Rules would not be construed to relax to such
Government of West Bengal framed rules called West Bengal Services (Revision of
Pay & Allowances) Rules, 1981 (hereinafter the ROPA Rules, 1981). On
5.8.1981 the Government of West Bengal announced a Promotional Policy for the
state government employees inter alia provided that the posts in the scale 18
and 19 under ROPA Rules, 1981 would be filled through promotion, on the basis
of merit cum seniority from within the respective service and departmental
cadres. In West Bengal Food & Supplies Services cadre, 220 posts were redistributed
as follows, 150 posts in scale 17, 61 posts in scale 18 and 9 posts in scale
vide memo dated 12.10.1983, the Government imposed an additional condition
prescribing a minimum period of six years' service in scale 17 for promotion to
scale 18 and a minimum combined period of 13 years' in scale 17 and 18 before
promotion to scale 19.
additional condition imposed vide memo 12.10.1983 and the order passed thereunder
were challenged by filing Writ Petition being C.O.No.590(W) of 1988 by some of
the private respondents herein along with some other persons before the High
Court. The only contention raised in the application was that the additional
condition sought to be imposed was discriminatory, as the same had not been
imposed in the cases of other state government Services. The learned Single
Judge by an order dated 13.2.1990 allowed the Writ Petition and quashed the
Government Memo dated 12.10.1983 imposing additional condition. The learned
single Judge further directed that the respondents be given the higher scale 18
and 19 on the basis of their respective merit- cum-seniority w.e.f. the date
when the promotion policy came into effect. Consequent to the order aforesaid
the Government issued a fresh promotion order dated 11.9.1991. This, however,
dispensed with the compliance of the rules about determination of
merit-cum-seniority, which mistake was later acknowledged by the State
Government. The mistake was corrected by an order dated 19.9.1991. By the said
order the Government directed the compliance with the relevant service rules
before giving effect to the promotion order dated 11.9.1991 and directed that
no payment of arrear dues be made to officers promoted before confirmation.
appellants being aggrieved by the order dated 11.9.1991 moved Writ Petition
being C.O.2031 (W) of 1993 before the High Court of Calcutta wherein the
officers covered by the promotion order dated 11.9.1991 were also impleaded.
Writ Petition the appellants raised a contention amongst others that unequals
had been treated equally. An injunction sought for was rejected. An appeal
being F.M.A.T.589 of 1993 was preferred before the Division Bench of the
Calcutta High Court which was disposed of by the Division Bench on 27.11.1995
directing the State to consider the case of all eligible candidates including
the appellants and others strictly in accordance with law and the relevant
rules as applicable.
aforesaid direction of the Division Bench was sought to be complied with by a
memo dated 16.2.1996. However, promotion order dated 11.9.1991 was left
undisturbed. The same was challenged by some of the appellants before the
Administrative Tribunal in O.A.No.759 of 1996 seeking proper implementation of
the Division Bench order and also seeking refixation of seniority of officers.
The Tribunal disposed of O.A.No.759 of 1996 by an order dated 17.11.1997. Being
not satisfied with the order of the Tribunal the appellants challenged the
order of the Tribunal by filing a Writ Petition, WPST No. 8 of 1998 before the
Division Bench of the High Court in which 15 respondents illegally promoted by
an order dated 11.9.1991 were also impleaded amongst others. It was contended
before the Division Bench that non-observance of the promotion rules regarding
eligibility was illegal but the Tribunal had failed to address the said issue.
referring to Rule 5(b) of the 1979 Rules, the Division Bench came to the
heard the learned Counsel, we are of the opinion that keeping in view the fact
that in the instant case confirmation is not to be granted automatically or
being not a fortuitous circumstances, as a result whereof the seniority of the
respective employee would be normally determined, from the date of their
initial appointment, this aspect of the matter may also be considered by the
authorities concerned afresh. Such consideration may be made at an early date,
and preferably within a period of 8 weeks from the date of communication of
this order. The order of the learned Tribunal is modified to the aforementioned
extent and the writ petition is disposed of".
appears that pursuant to a writ of mandamus issued by the Division Bench on
5.5.2000 the Government of West Bengal issued a fresh promotion order under the
memo dated 28.3.2001. In the said memo the Government has acknowledged the
mistake committed in the order dated 11.9.1991 in ignoring the Rules for the
determination of merit- cum-seniority. In the said order the Government has
considered the entire rules relevant for determination of merit- cum-seniority
and grant of higher scale to the eligible officers and the same order was
passed in accordance with the Rules.
surprised to notice that aggrieved party (respondents herein) again approached
the Tribunal in O.A.No.636 of 2001 and the Tribunal by its order dated
10.4.2002 set aside the Government order dated 28.3.2001 which was passed, as
already noticed, pursuant to the writ of mandamus issued by the Division Bench
of the High Court.
Tribunal was of the view that effected persons have not been heard and the
matter be remanded back to the Government for fresh consideration. We are
unable to subscribe to the view expressed by the Tribunal. Firstly, since the
order of 28.3.2001 was issued pursuant to a mandamus issued by the Division
Bench of the High Court, the Tribunal should not have interfered. Secondly,
before the High Court the interest of the present respondents were adequately
represented and there was no question of passing an order without hearing the
parties who had been adversely affected.
by the order of the Tribunal of remand the private respondents herein filed
WPST No.1044 of 2002 before the Division Bench of the Calcutta High Court. The
Division Bench of the High Court after hearing the parties by the impugned
judgment and order set aide the directions of the Tribunal of remand of the
matter for re-consideration. The High Court was of the view that the
controversy has been finally settled in terms of the judgment and order passed
in CO.No.590(W) of 1988 by learned single Judge, affirmed in appeal. The High
Court further directed the authorities to act in terms of the promotion order
dated 11.9.1991 by setting aside the order dated 28.3.2001 which was issued
pursuant to a writ of mandamus issued by the Division Bench of the High Court.
High Court order is assailed mainly on two grounds (a) that the directions in
the impugned judgment run counter to the Rules and (b) that the impugned
judgment is contrary to earlier orders passed by the co-ordinate Bench of the
High Court. In short, the impugned judgment of the High Court has set-aside two
orders of the co-ordinate benches, passed earlier.
impugned judgment of the High Court has relied on the judgment in C.O.No.590(W)
of 1988. As already noticed, the judgment in the aforesaid matter was confined
to the imposition of additional condition, which has no relevancy in the facts
of the present controversy. The High Court also erred in directing to restore
the promotion order dated 11.9.1991, which was set aside earlier by co-ordinate
bench by its judgment dated 27.11.1995 in FMAT No.589 of 1993.
High Court was also clearly in error in setting aside the order dated 28.3.2001
which was passed pursuant to a writ of mandamus issued by the co-ordinate bench
earlier in WPST No.8 of 1998 on 5.5.2000. In any event, in our view, the
impugned order of the High Court is unsustainable in law.
proceed to make a quick survey of the set of rules, which are relevant for the
purpose of disposal of these appeals. At the risk of repetition the appellants
and respondents were recruited through the West Bengal Public Service
Commission on temporary basis. It is also not disputed that the respondents
were appointed earlier to the appointment of the appellants and joined duty
earlier than the appellants' date of joining. It is also not disputed that the
appellants passed departmental examination prior to the private respondents.
The appellants also completed the period of probation and were confirmed at an
earlier point of time than the respondents. The scheme of the rules, which we
shall be dealing with presently, provides probation, passing of departmental
examination and confirmation after the departmental examination and completion
of probation. The Rules also provide that the consideration is merit-cum-
1953 Rules deal with General Rules regulating the Probation and Training of
Officers appointed on probation to IAS, IPS, and West Bengal State Services.
1(ii) defines "Probationer" as a Government servant appointed on
probation and remains a probationer until he is confirmed.
deals with assigning special reasons, if the appointing authority so decides to
extend a probationer's prescribed period of probation not exceeding half the prescribed
deals with the completion of period of probation or the extended period of
probation, as the case may be, and provides that the appointing authority shall
record an order either confirming the probationer from such date as it may deem
fit, subject to the restrictions prescribed in rule 8, or discharging him.
deals with the confirmation. It reads:- "A probationer may not be
confirmed until he has served on probation, for the period prescribed under
rule 2, passed any test or examination the passing of which may by rule be
prescribed as a condition of confirmation in the service or post in which it is
proposed to confirm him, and been declared by the appointing authority to be
fit for confirmation".
The departmental examinations prescribed in Chapter II-VI or parts thereof as
are applicable to particular service or posts should be considered to be
examinations, the passing of which is a pre-condition of confirmation under
13 in Chapter II provides that no probationer will be confirmed until he has
passed completely the departmental examination prescribed for him. Failure to
pass the examination within the probationary period will make him liable to
20 of the Rules deal with the Officers of the Departments of Food and of
Supplies. Clause 1 deals with the requirement to pass a departmental
examination as prescribed under the Rules of the Officers of Department of Food
and of Supplies and above the rank of Chief Inspectors. There is no dispute
that both the appellants and respondents are above the rank of Chief Inspectors
and they are required to pass the departmental examination prescribed under the
Rules in Part 20.
10 of Part 20 provides that no officer will ordinarily be eligible for promotion
unless he has passed the examination completely.
West Bengal Services (Appointment, Probations and Confirmation) Rules, 1979.
Rule 5 of the Rules deals with the appointment on probation and appointment on
permanent basis. It reads:- "R.5 Appointment on probation and appointment
on permanent basis
be deemed to be on probation on completion of continuous temporary service for
two years after his initial appointment in a post of service or cadre;
be confirmed and made permanent on satisfactory completion of the period of
probation. Where passing of any departmental examination is essential before
confirmation, the provisions of Chapter I of the Services (Training and
Examination) Rules, West
Bengal, shall have to
be complied with.
Except as otherwise provided elsewhere in these rules, the period of probation
shall be one year.
formal declaration shall be necessary in respect of appointment on probation.
completion of the period of probation the appointing authority shall either
issue formal declaration making the probationer permanent or take such action
as may be considered necessary in terms of the provisions of Part A of Chapter
1 of the Services (Training and Examination) Rules, West Bengal, within six
months from the date of completion of the period of probation, or of the
extended period of probation, if any, and the appointing authority shall ensure
that confirmation on satisfactory completion of the period of probation is not
delayed in any case.
6(2) provides inter alia that where the Rules for confirmation required the
passing of any academic, departmental or other examination before confirmation,
the 1979 Rules would not be construed to relax such requirement.
mandate of the Rules, as noticed above, is that the Government employees shall
be deemed to be on probation on completion of continuous temporary service for
Rule further mandates that an employee shall be confirmed and made permanent on
satisfactory completion of period of probation and where passing of any
departmental examination is essential before confirmation, the provisions of
the Services (Training & Examination) Rules shall be complied with.
Sub-Rule (4) of Rule 5 further mandates that on completion of the period of
probation the appointing authority shall issue a formal declaration making the
deals with repeal and savings.
may, at this stage, deal with one of the arguments of Mr. Altaf Ahmad,
appearing for the respondents.
to the appointments of the respondents, it is contended by Mr. Altaf Ahmad that
the appointments of the respondents were made through the examination conducted
by the West Bengal Public Service Commission and on the recommendation of the
Commission. According to him, therefore, the appointments of the respondents
were not on probation and, therefore, 1979 Rules would have no application. We
are unable to countenance this contention.
doubt, the respondents were appointed to the service after the examination
conducted by the Public Service Commission and recommended by the Commission,
however, the appointments were purely temporary and terminable at the
discretion of the Government with one month's notice on either side or on
payment of one month's pay in lieu thereof.
5(1)(a) as quoted above contemplates two conditions.
that an employee appointed on temporary service after serving for two years
after his initial appointment in post of service or cadre, shall be deemed to
be on probation and secondly, the words "employee shall be deemed to be on
probation" visualizes the pre 1979 situation, if one were working on
temporary basis. We have noticed that the respondents were appointed on
temporary basis and not on permanent basis and therefore the services of the
respondents would fall within the mischief of Rule 5 of the 1979 Rules where
the requirement of passing of the departmental examination is essential before
confirmation by a declaration by the appointing authority in that behalf.
next question to be considered is the criteria of merit-cum-seniority in the
promotion to scale 18 and scale 19.
circular dated 5.8.1981 the Government has brought out statement of promotion
policy. Paragraph 4 of the said circular reads:-
In the case of the State Services, including the State Civil Service, State
Health Service and the State Engineering Service, the number of posts currently
available in Scales 18 and 19 are being increased with effect from April 1,
1981, those posts will be filled through promotion, on the basis of merit cum
seniority, from within the respective Service and Departmental Cadres. The
rearrangement of posts within each cadre is listed in the Annexure". (emphasis
supplied) The promotion policy announced by the Government would clearly
disclose that the consideration is merit-cum-seniority. The streams of Rules as
referred to above and considered, also contemplates passing of departmental
examination as a condition precedent for completion of probation and
confirmation. In the scheme of Rules and policy of promotion, the consideration
being merit cum seniority, the sole basis of judging merit is the passing of
the departmental examination.
Commissioner of Police vs. R.S. More, (2003) 2 SCC 408, this Court held that
confirmation of service on a particular post is preceded by satisfactory
performance of the incumbent unless service rules otherwise prescribe.
High Court of M.P. vs. Satya Narayan Jh avar, (2001) 7 SCC 161, this Court held
in paragraph 11 at scc p.169 as under:- "11. The question of deemed
confirmation in service jurisprudence, which is dependent upon the language of
the relevant service rules, has been the subject matter of consideration before
this Court, times without number in various decisions and there are three lines
of cases on this point. One line of cases is where in the service rules or in
the letter of appointment a period of probation is specified and power to
extend the same is also conferred upon the authority without prescribing any
maximum period of probation and if the officer is continued beyond the
prescribed or extended period, he cannot be deemed to be confirmed. In such
cases there is no bar against termination at any point of time after expiry of
the period of probation. The other line of cases is that where while there is a
provision in the rules for initial probation and extension thereof, a maximum
period for such extension is also provided beyond which it is not permissible
to extend probation. The inference in such cases is that the officer concerned
is deemed to have been confirmed upon expiry of the maximum period of probation
in case before its expiry the order of termination has not been passed. The
last line of cases is where though under the rules maximum period of probation
is prescribed, but the same requires a specific act on the part of the employer
by issuing an order of confirmation and of passing a test for the purposes of
confirmation. In such cases, even if the maximum period of probation has
expired and neither any order of confirmation has been passed nor has the
person concerned passed the requisite test, he cannot be deemed to have been
confirmed merely because the said period has expired".
the principle of merit cum seniority is applied, it is now well settled
principle that great emphasis is on merit and ability and seniority plays a
less significant role.
has to be given weightage only when merit and ability are approximately equal. [See:
B.V.Sivaiah vs. K.Addanki Babu, (1998) 6 SCC 720, Central Council for Research
in Ayurveda & Siddha vs. Dr.K. Santhakumari, (2001) 5 SCC 60].
however, contended by Mr. Altaf Ahmad that seniority be linked with date of
initial appointment and not from the date of passing the departmental
to him, if one passes departmental examination later in point of time, his
seniority must relate back to the date of original appointment. According to
him, under merit cum seniority the test is merit and once an incumbent passes
the examination he qualifies the test of merit and, therefore, his seniority
relates back to the date of entry in the service. To accept such contention
would negate the mandate of the Rules.
Ahmad has also drawn our attention to the rules called the West Bengal Service
(Determination of Seniority) Rule, 1981. He particularly referred to Rule 4 of
the Rules. Rule 4 reads:- "4. Determination of seniority of direct
recruits:- The relative seniority of all persons appointed directly through
competitive examination or interview or after training or otherwise shall be
determined by the order of merit in which they are selected for such
appointment on the recommendation of the Commission or other selecting
authority, persons appointed on the result of an earlier selection being senior
to those appointment on the result of a subsequent selection;
that where appointment of persons initially made otherwise than in accordance
with the relevant rules is subsequently regularized in consultation with the
Commission, where necessary, seniority of such persons shall be determined from
the date of regularization and not from the date of appointment. The inter-se
seniority amongst such persons shall, however, depend on the date of
appointment of each such person in the department or office concerned;
further that if any person selected for appointment to any post does not join
within two months of the offer of appointment, his seniority shall count from
the date on which he joins the post unless the appointing authority for reasons
to be recorded in writing condones the delay.
Note-(1) A list of candidates for the
purpose of selection for appointment shall be prepared in all cases by the
selecting authority, when there will be recruitment in a single process of
selection of more than one person.
Where the inter-se seniority amongst several persons has not been determined
prior to the coming into force of these rules, such seniority shall, on the
coming into force of these rules, be determined on the basis of actual date of
their joining. When the date of joining of all such persons is the same,
seniority shall be determined on the basis of date of birth, persons retiring
earlier being adjudged as senior. When the date of birth is the same, seniority
shall be determined on the basis of total marks obtained by each in the
examination, passing of which is the qualification prescribed for recruitment
to the particular post, cadre or grade.
so far as the determination of relative seniority of persons selected either by
the Commission or by other selecting authority for appointment to different
posts in the same grade with different qualifications such as posts of
Assistant Professor in History, Economics, Physics, Chemistry etc. is
concerned, seniority shall be determined from the date of joining.
fascicule reading of the Rule, it appears to us that the said Rule has no
application in the facts of the present case. Rule 4, in our opinion, deals
with the appointment directly through the competitive examination on permanent
basis. There is no quarrel with the provision of the Rule that if the
Commission recommends and appoints the incumbents on permanent basis, such
seniority has to be determined in the order of merit in which they are selected
for such appointment on the recommendation of the Commission.
already noticed, the respondents were not appointed on permanent basis though
appointed through the examination conducted by the Commission. They were appointed
purely on temporary basis terminable with one month's notice on either side or
on payment of one month's pay in lieu thereof. In our view, therefore, Rule 4
is of no assistance to the respondents' case.
Ahmad has also referred to Rule 10 of 1953 Rules. Rule 10 of 1953 Rules reads:-
"10. When a probationer is confirmed otherwise than with effect from the
date of expiry of the period of probation prescribed under rule 2, he will
unless it be otherwise provided by rule draw as from the date of effect of his
confirmation the pay he would have drawn had he been confirmed on the expiry of
the prescribed period of probation, and unless it be otherwise provided by
rule, the whole of his services from the date of his appointment on probation
shall count for increments".
view, Rule 10 will be of no assistance to the respondents' case. Rule 10 simply
provides that if an incumbent is confirmed on the expiry of the prescribed
period of probation and unless the rules provided otherwise, the whole of his
service from the date of his appointment on probation shall count for
Ahmad also referred to Notification dated 21.12.1966 framing the Rules under
proviso to Article 309 of the Constitution regulating the recruitment to the
West Bengal Food and Supplies service. According to him, they were appointed
under 1966 Rules and there is no provision in the said rules, which required
the passing of the departmental examination. According to him, requirement of
passing the departmental examination was introduced for the first time by a
Notification dated 10.1.1995. This contention is factually incorrect. In fact
on earlier occasion a Notification dated 21.4.1977 was issued, which required
that candidates appointed by direct recruitment against posts of West Bengal
Food and Supplies Services and subordinate Food and Supplies services Grade-I
would be required to pass the departmental examination to qualify for being
declared quasi permanent in status and for the purpose of confirmation and the
subject of the departmental examination was also prescribed. The Notification
dated 10.1.1995 only brought an amendment and it is not correct to say that it
was for the first time that requirement of departmental examination was
introduced on 10.1.1995.
Notification dated 29.6.1985, the Government of West Bengal, Department of Food
and Supplies, brought out 18 Officers of the Food and Supplies, who have
completely passed the departmental examination. In serial No.5 one Ratan Kumar Mukhopadhayay
is shown to have passed the departmental examination on 26.7.77. Therefore, it
is not correct to say that the requirement of departmental examination was for
the first time introduced by Notification dated 10.1.1995.
Ahmad referred to the decision of this Court in Jagidsh Kumar vs. State of H.P., (2005) 13 SCC 606, particularly paragraph 16. The
aforesaid decision is not relatable to appointment on probation and will be of
no help to the respondents' case.
question of departmental examination vis-`- vis reckoning of seniority, he has
referred to the decision rendered by this Court in M.H. Patil vs. State of Maharashtra, (1999) 1 SCC 249. This Court
referred to Rule 3, which was relied upon by the appellant in the case; the
same is reproduced as under:
Seniority among the Non-Gazetted Prohibition and Excise Officers and Clerks for
the purpose of confirmation shall be decided according to the dates of their
passing the departmental examination held after completion of one year's
continuous service in the Prohibition and Excise Department".
Court accepted the view of the department that the seniority lists were
prepared on the basis of continuous officiation right from 1977 onwards. The
seniority lists so prepared were not disturbed, notwithstanding Rule 3
prescribing the fixation of seniority otherwise. Therefore, no law has been
laid down which can be followed as a precedent.
is yet another difficulty to sustain the order of the High Court. The High
Court has also relied on the communication dated 31.7.1978 wherein an Assistant
Secretary in a departmental communication has stated that none of the direct
recruits were working in the department as Probationary Officers. Such
departmental communication has no role to play in the face of statutory rules.
the reasons aforestated, we are unable to sustain the impugned order of the
High Court. The judgment and order dated 11.12.2002 passed in WPST No.1044 of
2002 is set aside. The Notification dated 28.3.2001 issued pursuant to a writ
of mandamus by the earlier Division Bench of the High Court is restored. The
appeals are allowed. No costs.