ISRAIL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) 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 proviso to Art. 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 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, 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 R. 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 S. 3-A 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 whichever 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 Art. 309 of the Constitution. Rule 6 is the relevant provision for determining relative seniority of direct recruits and promotees. The aforesaid Rule is extracted herein-below in extenso :-

(2.) 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 R. 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, whichever 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.

(3.) 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 promotion, 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.