Ad-hoc promotees can be considered as within the cadre from the dates of their respective ad-hoc promotions if all other criteria needed for such promotees to be considered as within the cadre are fulfilled, even if the requirement of consultation with the PSC was not met.

Mookherjee, J.:

1. This appeal is directed against an order, passed by a learned Single Judge, on 25th of September, 1989, inter alia, dismissing a writ application, preferred on behalf of the present appellants.

2. The appellants were employed as Employer Officers in different Employment Exchanges of the Government of West Bengal. They were recruited to the said posts directly after becoming successful in the examinations held by the West Bengal Public Service Commission in the year 1976. The respondent Nos. 6 to 30 were holding the post of Investigating Inspectors, Statistical Assistant etc. and by two notifications, dated 2.10.78 and 13.9.79, were promoted, on an ad hoc basis as Employment Officers, along with 26 other persons. In the Senior Selection Grade, subject to the approval of Public Service Commission West Bengal, such employment being terminable any time without notice. It is pertinent to note, however, that such ad-hoc promotees were given the same scale, which your petitioners were enjoying at the relevant point of time. The Public Service Commission approved the regularisation of the above ad-hoc employees on 29th of June, 1988. The dispute in the present case arose as the State Government proposed to prepare a single gradation list of all the Employment Officers, treating the ad-hoc Officers, since regularised, with effect from the dates of their continuous officiations, as within the cadre.

3. The appellants have founded their contentions mainly, in the provisions of West Bengal Services (Determination of Seniority) Rules, 1981 (hereinafter referred to as Seniority Rules) and West Bengal Public Service Commission (Consultation by Governor Regulation), 1955. According to Rule 5(4) of the Seniority Rules, when promotions are made to a post, cadre or grade from more than one posts, cadres or grades, the relative seniority shall be according to order of merit, determined by the Public Service Commission or the Selecting Authority. Rule 6 of the said Rules, by sub-rule 1. provides that between promotees and direct recruits, seniority shall be determined by the year of appointment or promotion in the post, cadre or grade concerned irrespective of the date of joining and so far as the promotees and direct recruits of any particular year are concerned, the promotees would be treated to be en-bloc senior to the direct recruits. The respondents, on the other hand, have tried to sustain their contention, regarding absence of necessity of regularisation upon recommendation by the Public Service Commission, by placing reliance upon amended Rule 3(A) of the W.B.P.S.C. (Exemption from Consultation by Governor) Regulation, 1955, as because the said amended Rule 3(A) expressly lays down that it shall not be necessary to consult the Public Service Commission in regard to promotions though at the same time it has been also stated in also said Rule that the decision to exclude the Rule must be incorporated In the relevant Recruitment Rules specifically in consultation with the Commission. It was contended that the Recruitment Rules did not nobody any requirement or recommendation of upon consultation with the Commission.

4. Points, as are involved in the present case fell for consideration by the Apex Court on different occasions and the decisions of the laid Court have settled the legal position. The ratio propounded by such decisions appears to be that for the purpose of determining seniority, the period of temporary or ad-hoc appointment may be counted, provided the concerned employee upon satisfaction of requisite conditions had been promoted to the cadre or post and can be said to have been justly borne in such cadre. The requisite conditions were held to include availability of the posts and fulfilment of the eligibility criteria and also uninterrupted continuance in the post regularisation.

5. In the case of (1) State of Bihar v. Akhouri Sachindranath reported in AIR 1991 SC 1244, the claim of respondent Nos. 6 to 23