2002 Supreme(SC) 1

2002(1) Supreme 20
SUPREME COURT OF INDIA
(From Calcutta High Court)
G.B. Pattanaik and Y.K. Sabharwal, JJ.
Md. Israils & Ors. -Appellants
versus
State of West Bengal & Ors. -Respondents
Civil Appeal No. 879 of 1998
Decided on 7-1-2002
Counsel for the Parties :
For the Appellants : Bhaskar Gupta, Senior Advocate, Rajesh Srivastava, Ujjwal Banerjee, Ms. A. Gupta, Advocates for H.K. Puri and S.K. Puri, Advocates.
For the Respondents : Tapas Ray and R. Venkatramani, Senior Advocates, Avjit Bhattacherjee, Ms. Madhumita Bhattacharjee, Atanu Saikia, Sanjoy Kumar Ghosh, Advocate for D.P. Mukherjee, Advocate/Advocates.

IMPORTANT POINT
The inter se seniority of the direct recruits-appellants and the promotees - respondents 6 to 30 in the cadre of Employment Officer in the Directorate of National Employment Service in the State of West Bengal 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 Govt. w.e.f. June, 1988. The seniority list may accordingly be re-drawn up.

Headnote:Service Jurisprudence-Dispute of inter-se seniority between the direct recruits and the promotees in the cadre of Employment Officer in the Directorate of National Employment service in the State of West Bengal-West Bengal Services (Determination of Seniority) Rules, 1981-Rule 6-Relative seniority of direct recruit and promotees-Inter-se seniority of the direct recruits-Appellate and the promotees-Respondents 6 to 30-How to be worked out? High Court concluding that the seniority of the ad hoc appointees 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 direct recruits-Whether correct? (No) (Para 12)-Whether promotion to the post of Employment Officer under the Recruitment Rules could be made by the State Govt. without consultation with the Public Service Commission? (No) (see para 6)- 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 29.6.1988 ? (see paras 7 to 9)-Result-High Court reversed-Appeal allowed-Case law dismissed.

       Held : 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. (Para 6)

       Held : Further 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. (Para 9)

       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. (Paras 10 to 12)