1989 Supreme(Cal) 344

High Court Of Calcutta
M. N. RAO , SUDHANSHU SEKHAR GANGULY
STATE OF WEST BENGAL - Appellant
Versus
NANI GOPAL DUTTA - Respondent
Matter 1436  Of  1988
Decided On : 07/10/1989

Draft Rules are not justiciable.

Headnote:

WEST BENGAL CIVIL SERVICE - UNIFICATION OF SERVICES - SENIORITY - RULES - INTERPRETATION - VALIDITY.

Fact of the Case:

The West Bengal Civil Service (WBCS) and the West Bengal Junior Civil Service (WBCS) were two wings of the State Administrative Service. Half the recruits to the WBCS were selected through competitive examinations and the other half by promotion from the members of the WBJS vide The Bengal Provincial Services Recruitment Rules, 1930. The two wings of the services were unified by the provisions of West Bengal Services (Unification of State Services) Rules, 1974. These Rules which came into effect from 1/03/1974 virtually superseding the Rules of 1930 and such other Rules, provided a senior Scale and a junior Scale of pay. All the members of the erstwhile WBCS were given the senior Scale and all the members of the erstwhile WBJS were given the junior Scale, the junior Scale officers being eligible for promotion to the senior Scale after six years of service. After the coming into effect of these Rules, all new entrants had to start from the Junior Scale. The interests of the candidates under recruitment through competitive examinations already held were, however, fully protected under Rule 5. Thereafter, came the West Bengal Civil Service (Executive) Recruitment Rules, 1978 in supersession of all previous Rules. These Rules which came into effect on and from 1/03/1974 provided recruitment to the unified West Bengal Civil Service through competitive examinations as well as by promotion from a number of specified feeder services. All new entrants to the service had to start from the junior Scale of pay and work their way up to the senior Scale by putting in at least six years of satisfactory service. An exception, however, was made with regard to the candidates, who appeared at the competitive examination held prior to 1/03/1974 and qualified for appointment to the West Bengal Civil Service by specifically providing that they would be appointed to the senior Scale. Then came the West Bengal Services (Unification of State Services) Rules, 1979. These Rules which superseded the West Bengal Services (Unification of State Services) Rules 1974 were deemed to have come into effect on 1/04/1970. Under the provisions of these Rules the WBJS and similar other junior services stood abolished with effect from 1/04/1970. All officers recruited in the aforementioned Junior Services prior to 1/03/1974 or in the junior Scale of the Unified Services on or after 1/03/1974, were to be fitted in the Senior Scale of the Unified Service, with effect from the date they entered the respective Unified Service on or after 1/04/1970. In spite of the changes introduced, the existing order of inter se seniority amongst the Officers of the Unified Services already determined as on the day immediately preceding the date of issue of the rules was fully protected. Though the pay of the officers of the erstwhile WBJS was to be refixed in the senior Scale of the unified service with effect from 1-4-70 or thereafter under the rules applicable on the day immediately preceding the date of issue of these rules, they were not to get any arrears on account of such refixation of pay for the period prior to 1-179. Thereafter came the West Bengal Services (Determination of Seniority) Rules 1981. These rules apart from providing the method of recruitment to various services also provided for determining seniority amongst officers so recruited. Whereas the seniority amongst direct recruits coming, through examination were to be determined by the order of merit in which they were selected, the seniority of promotees was to be determined from the date of their joining their respective posts. It was further provided that the relative seniority between the promotees and the direct recruit was to be determined by the order of appointment or promotion of each in the post and it was further provided that the promotees en bloc would be senior to the direct recruits of the same year. These Rules also provided that "there shall be no change in the existing order of inter se seniority amongst the officers of the services within the meaning of the West Bengal Services (Unification of State Services) Rules, 1979 (hereinafter referred to as the said Rules) as determined prior to the coming into force of the said Rules i. e. the 18th of May, 1979." The West Bengal Services (Determination of Seniority) Rules, 1981 had no application to the members of the West Bengal Civil Service. The Government did not also deter mine the inter se seniority of the WBJS officers in the unified Scale as per the provisions of the West Bengal Services (Unification of State Services) Rules, 1979. It is because of this that the Matter No. 1436 of 1988 was initiated by a number of members of the erstwhile WBJS on 5/04/1988, by filing a petition under Art. 226 of the Constitution, for directing the State to award all service benefits to them and fellow members of the erstwhile WBJS in the Unified WBCS; after determining the inter se seniority amongst the officers in the unified WBCS, pursuant to the West Bengal Services (Unification of State Services) Rules, 1979. They wanted that the seniority of all members of the WBJS who were in service on 1/04/1970 be counted from that day in the unified WBCS. They also wanted that the imbalance caused by recruiting officers directly to the WBCS beyond the 50% quota during the years 1970 to 1974 be corrected and the seniority of these members of the WBJS, who would have been promoted to the WBCS in place of the officers in the WBCS, recruited in excess of the quota Rule be Calculated accordingly.

Finding of the Court:

The Court held that the Draft Seniority Rules framed by the Government have been drawn up in the spirit of the Rules of 1974, 1978 and 1979. The writ petition now here invites the court to strike them down. On the other hand it desires the Court to direct the Government to give them their desired relief pursuant to the West Bengal Services (Unification of State Services) Rules, 1979 and settled principles of law. We find it difficult to hold that with the Rules of 1978 and 1979 remaining intact and unchallenged, how fault can be found with the impugned Draft Rules.

Issues: 1. Whether the Rules in question were Draft Rules or not? 2. Whether the Rules in question were justiciable? 3. Whether the Government has exercised its discretions wrongly or mala fide, while drawing up the impugned Draft Rules?

Ratio Decidendi: 1. The Court held that the Rules in question were Draft Rules and not full-fledged Government Orders or Statutory Rules having the authority of the Government behind them. They were not complete and did not have the signature of any Authority below them. 2. The Court held that the Rules in question being draft Rules could not have any application in law and that hence they were not justiciable. 3. The Court held that the Government has not exercised its discretions wrongly or mala fide, while drawing up the impugned Draft Rules.

Final Decision: The Court stayed the operation of the judgment and order passed by the learned Judge and directed the Government to be at liberty to proceed with the finalisation of the Seniority Rules governing the members of the unified WBCS.