Holding

Inter‑se seniority between direct recruits and adhoc promotees is to be determined from the date of regular promotion approved by the Public Service Commission (June 1988), not from the date of the initial adhoc promotion.

Summary

The appellants were direct recruits appointed as Employment Officers in West Bengal between 1976 and 1982, while respondents 6‑30 were promoted on an adhoc basis in 1978‑79 with a six‑month tenure and a clause that the promotion was subject to West Bengal Public Service Commission (PSC) approval. The PSC approved their promotion only in June 1988, regularising them with effect from that date. The Calcutta High Court held that seniority of the adhoc promotees should be counted from the initial adhoc promotion date, but the Supreme Court reversed this, holding that promotion to the gazetted post of Employment Officer requires PSC consultation under Article 320(3) and the relevant state regulations, and that service rendered before PSC approval cannot be counted for seniority. Accordingly, inter‑se seniority must be calculated from the date of PSC‑approved regularisation (June 1988) for the promotees, while direct recruits’ seniority is measured from their original appointment dates.

Issues considered

The promotion to the post of Employment Officer by promotion requires consultation with the West Bengal Public Service Commission under Article 320(3) and the applicable state regulations.
Whether service rendered during an adhoc promotion without PSC approval can be counted for seniority in the cadre.
How inter‑se seniority between direct recruits and promotees should be determined under the West Bengal Services (Determination of Seniority) Rules, 1981, Rule 6.

Legislation cited

Constitution of Indias. Article 309 (proviso), s. Article 320(3)
West Bengal Services (Determination of Seniority) Rules, 1981s. Rule 6

Subjects

inter‑se seniorityadhoc promotionpublic service commissionWest Bengal Services RulesArticle 320recruitment rulesseniority determinationregularisationemployment officer

Judgment

MD. ISRAILS AND ORS. A
v.
STATE OF WEST BENGAL AND ORS.

JANUARY 7, 2002

[G.B. PATTANAIK AND Y.K. SABHARWAL, JJ.] B

Service Law :

West Bengal Services· (Determination of Seniority) Rules, 1981 : Rule
6. c
West Bengal Public Service Commission (Exemption from Consultation)
Regulations, 1995 : Section 3A

West Bengal Public Service Commission (Consultation by Governor)
Regulation, 1955 : Regulation 3. D
Seniority-State of West Bengal-Directorate of National Employment
Service-Employment Officer-Direct recruits and promotees-Determination
of inter se-seniority-Adhoc promotions in exigency of service-Appointment
letter specifically stating that appointment was purely adhoc and subject to
approval of Public Service Commission-Continuation without approval of E
Public 'Service Commission-Regularisation of appointment by Commission
subsequently-Held, period of adhoc appointment to regularisation cannot
be counted for determining seniority of promotees.

The dispute in this appeal pertains to determination of inter-se seniority
between direct recruits and the promotees in the cadre of Employment Officer p
in the Directorate of National Employment Service in the State of West Bengal.
On being selected by the West Bengal Public Service Commission, the
appellants were appointed to the post of Employment Officer, as direct recruits,
during the period 1976 to 1982. On the other hand respondents No. 6 to 30
were promoted during 1978-79 on adhoc basis to the post of Employment
Officer for a period of six months. Their letter of appointment on promotion G
unequivocally stated that the appointment was purely on adhoc basis subject
to the approval of the Public Service Commission and was liable to be
terminated at any time without notice. As the Government continued the
respondents beyond the period of six months without any approval of the Public
Service Commission, the direct recruits filed a writ petition in the Calcutta H
13
14 SUPREME COURT REPORTS [2002] J S.C.R.

A High Court praying that adhoc promotees should not be allowed to continue
in the post without approval of the Public Service Commission. During the
pendency of this writ petition the West Bengal Public Service Commission
approved the promotion of respondents 6 to 30 to the post of Employment
Officer with effect from 29th June, 1988. Consequently, State Government
B filed an affidavit in the pending writ petition praying that it may be allowed to
prepare a gradation list including all the Employment Officers treating the
adhoc employees since regularised with effect from 29th June, 1988 on the
basis of their continuous officiation. Rejecting the objection of the appellants,
direct recruits, a Single Judge of the High Court dismissed the writ petition
holding that the seniority of adhoc promotees has to be counted from the initial
C date of appointment on promotion and not from the date of their regularisation.
Thereafter the direct recruits approached the Division Bench in appeal which
was also dismissed. Against the decision of High Court direct recruits
preferred appeal before this Court. On their behalf it was contended that the
High Court erred in directing that the adhoc promotees would be entitled to
count their seniority from the initial date of their adhoc promotion because
D (1) the adhoc promotion of respondents 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 1955 as well as the Exemption Regulations, the services
rendered prior to the approval by the Public Service Commission cannot be
E counted for reckoning the seniority; (ii) under Rule 6 of the West Bengal
Services (Determination of Seniority) Rules, 1981 thereof, the relative
seniority between the promotee and direct recruit is 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 adhoc promotion made
F de hors the Rules; and (iii) there was unequivocal stipulation in the letter of
appointment in case of adhoc promotees that appointment and posting would
be purely on an adhoc basis subject to the approval of the Public Service
Commission and was liable to be terminated at any time without any notice.
Allowing the appeal and setting aside the impugned judgment, the Court
G
HELD : 1. The inter-se seniority of the direct recruits-(appellants) 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 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.
H (26-G)
MD. ISRAILS AND ORS. v. ST ATE OF WEST BENGAL 15
2. The post of Employment Officer by promotion, under the Recruitment A
Rules is required to be filled up only after consultation with the Public Service
Commission. (23-GJ

3. The post of Employment Officer being a gazetted civil post, under
Article 320 (3) of the Constitution, the State Public Service Commission is
required to be consulted for filling up the post by promotion unless in exercise B
of power under the proviso to Article 320 (3) of the Constitution the Governor
by way of making any Regulation specify the post for which it shall not be
necessary for a Public Service Commission to be consulted. The Governor
has framed a Regulation in exercise of such power in the State of West
Bengal, called, "The West Bengal Public Service Commission (Consultation C
by Governor) Regulation, 1955, and Rule 3 thereof provides that so far as
·~
clauses (a) and (b) of Article 320(3) are concerned, ifthe Appointing Authority
is not the State Government but is one subordinate to the State Government,
then it shall not be necessary to consult the Public Service Commission. So
far as the post of Employment Officer is concerned, the Appointing Authority
being the State Government, consultation with the Public Service Commission D
is required to be made while making promotion, as provided under Article
320(3)(b) and the same does not go out of the purview of consultation with the
Public Service Commission in view of the provisions contained in Regulation
3 of the West Bengal (Consultation by Governor) Regulation, 1955.
(22-F-G-H; 23-A) E
4. The West Bengal Public Service Commission (Exemption from
Consultation) Regulation, 1955 and Section 3A thereof unequivocally indicates
that even if the State Government is the Appointing Authority in respect of
the post, which is filled up by promotion, yet it will not be necessary to consult
the Public Service Commission provided the maximum of the scale of pay of F
such post does not exceed Rs. 750 p.m. as per West Bengal Services (Revision
of Pay and Allowances) Rules, 1970 and in the case of each post decision to
exclude is taken in consultation with the Commission and a provision to that
effect is incorporated in the relevant Recruitment Rules. A post of Employment
Officer having a pay scale of more than Rs. 750 per month under the West
Bengal Services (Revision of Pay & Allowances) Rules, 1970, and there being G
no decision to exclude the promotion to such post taken in consultation with
the Commission, the conclusion is irresistible that for filling up the post of
Employment Officer by promotion required consultation with the Public
Service Commission. (23-B-C, E]
5. In view of the analysis of different provisions of Recruitment Rules, H
16 SUPREME COURT REPORTS [2002] 1 S.C.R.

A the West Bengal Public Service Commission (Consultation by Governor)
Regulation, West Bengal Public Service Commission (Exemption from
consultation) Regulation, there is no doubt that the initial appointment of
r- i
respondents 6 to 30, purely on adhoc 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
B purposes of reckoning their seniority in the cadre. The order of promotion
in favour of respondents 6 to 30 also categorically indicated that the promotion
is purely on adhoc basis and subject to the approval of the Public Service ,,_
Commission. Consequently, the services rendered on such adhoc basis till
the approval of the Public Service Commission is obtained, will not count for
C reckoning the seniority in the cadre. (25-G-H; 26-A; 25-B-C)

6. 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
D 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 adhoc 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,
E the year when the Public Service Commission approved their promotion w.e.t:
29th June, 1988 and the State Government issued the necessary order on
11th August, 1988. (26-B-C)

Sura} Prakash Gupta v. State ofJ & K, (2000] 7 SCC 561, referred to.

Direct Recruit Class II Engineering Officers' Assn. v. State of
p Maharashtra & Ors., (1990) 2 Supreme Court Cases 715; Masood Akhtar
Khan & Ors. v. State of Madhya Pradesh & Ors., (1990) 4 Supreme Court
Cases 24 and MK. Shanmugam & Anr. v. Union of India & Ors., [2000) 4
Supreme Court Cases 476, relied on.
Sura) Prakash Gupta & Ors. v. State ofJ&K and Ors., [2000) 7 Supreme
G Court Cases 561, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 879 of 1998.

From the Judgment and Order dated 18-4-96 of the Calcutta High Court
in F.M.A.T. No. 3011of1989.

H Bhaskar Gupta, Rajesh Srivastava, Ujjawal Banerjee, Ms. A. Gupta for
MD. ISRAILS AND ORS. v. STATE OF WEST BENGAL [PATTANAIK, J.) 17
~ H.K. Puri and S.K. Puri for the Appellants. A
-;
Tapas Ray and R. Venkatramani, Avjit Bhattacherjee, Ms. Madhumita
Bhattacharjee, Atanu Saikia and Sanjoy Kr. Ghosh for D.P. Mukherjee for the
Respondents.

The Judgment of the Court was delivered by B

PATTANAIK, J. Never ending dispute of inter se seniority between the
direct recruits and the prcimotees 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
c
the State of West Bengal. The Governor of West Bengal has framed a set of
Rules in exercise of power c~nferred under provisio to Article 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
D

of West ~engal 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
E
Exchanges and U.D. Clerks of the Sub-Regional and District Employment
·( Exchange ; Inspectors of Statistics and Statistical Assistants. Under Rule 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 F
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
G
category on adhoc 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 adhoc 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 H
18 SUPREME COURT REPORTS [2002] l S.C.R.

A 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 Section 3A 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
B 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 adhoc basis as District Employment Officers. Without the
approval of the Public Service Commission and because of the exigency of
C 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
adhoc basis for a period of 5 months with effect from the date the appointees'
assume charges or until further order which ever is earlier, and the appointment
is subject to the approval of the Public Service Commission and is liable to
D be terminated at any time without any notice. Notwithstanding the aforesaid
terms and conditions in the appointment letter of the promotees, as Government
cqntinued 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 adhoc promotees should not be
allowed to continue in the post without approval of the Public Service
E 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 adhoc promotion
be approved and they be regularised with effect from the date of their adhoc
promotion. In the pending Writ Petition State Government filed its affidavit
indicating therein that as the question of regularisation of respondents 6 to
F 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
G the Governor in exercise of power conferred under proviso to Article 309 of
the Constitution. Rule 6 is the relevant provision for determining relative
seniority of direct recruits and promotees. The aforesaid Rules is extracted
herein below in extenso:-

"6. Relative seniority of direct recruits and promotees--{1) The
H relative seniority between a promotee and a direct recruit shall be
MD. ISRAILS AND ORS. v. STATE OF WEST BENGAL [PATTANAIK, J.] 19
determined•by the year of appointment or promotion of each in the A
post, cadre or grade irrespective of the date of joining.

(2) The promotees shall _be en-bloc senior to the direct recruits of
the same year."

The West Bengal Public Service Commission approved the promotion of B
respondents 6 to 30 to the post of Employment Officer with effect from 29th
June, 1988 and in pursuance to the same Government of West Bengal in
Labour Department issued letter on 18.8.1988 by which letter the Governor
was pleased to decide that the appointment of 63 officers to the West Bengal
Employment Service as Employment Officer be approved with effect from 29th
June, 1988. On 30th March, 1989, consequently an affidavit was filed on C
behalf of the State in the pending Writ Petition and a prayer was made that
the State Government be allowed to prepare a gradation list including all the
Employment Officers treating the adhoc employees since regularised with
effect from 29th June, 1988, on the basis of their continuous officiation. The
appellants, direct recruits filed a reply to the said affidavit filed on behalf of D
the State Government and respondents 6 to 30 also had filed a Supplementary
Affidavit. The Writ Petition was dismissed by a learned Single Judge on a
conclusion that the seniority of adhoc promotees 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 the Writ Petitioner. The direct recruits thereafter approached E
the Division Bench in appeal, and that appeal having been dismissed, the
<. present appeal has been preferred on grant of Special Leave.

Mr. Bhaskar Gupta, learned senior counsel appearing for the appellants
contended, that the adhoc promotion of respondents 6 to 30 not being in
accordance with the relevant statutory provisions contained in the Rei;ruitment F
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 ccunted for reckoning the seniority in the cadre and, therefore, the
High Court was in error in holding that the adhoc promotees would be G
, entitled to count their seniority from the initial date of their adhoc promotion.
Mr. Gupta further contended that under the Seniority Rules, more specifically
Rule 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 H
20 SUPREME COURT REPORTS [2002) l S.C.R.

A not any adhoc promotion made de hors the Rules, and therefore, the High
Court committed error by directing that even period of adhoc 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 adhoc promotees that appointment and posting is purely on an adhoc
B 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,
which ever 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
C be reckoned for the purpose of seniority in the cadre of Employment Officer.

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
D the matter the Government itself having approached the Public Service
Commission since December 1980 for the approval to the adhoc promotion
on, such adhoc 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 adhoc services for the
E 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 nnt 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 adhoc
F 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.
Mr. Venkatramani, learned senior counsel appearing for respondents 6
to 30 argued with vehemence that the adhoc promotees having got the
G essential pre requisites for being promoted, and they having .been promoted
after being duly selected, non approval of the Public Service Commission
would not render the services rendel'lld as void, and therefore, the High Court
was fully justified in directing that the period of adhoc services has to be
counted for the purpose of seniority. Mr. Venkataramani further urged that
H there is no fetter on the power of the Appointing Authority from regularising
MD. ISRAILS AND ORS. v. STATE OF WEST BENGAL [PATTANAIK, J.) 2J
the adhoc services from an interior date after consultation with the Public A
Service Commission with effect from the date when the vacancy in the promotee
quota was available, and in the case in hand there being no case that the
promotees were in excess of the 50% quota available for them, the High Court
was fully justified in directing that the adhoc services also has to be counted
for reckoning their seniority in the cadre of Employment Officer. According B
to the learned counsel, the services rendered by adhoc promotees without
consultation with the Public Service Commission cannot be treated as non est
I and can be regularised from the date of the promotion, so long as substantive

'J vacancy in the cadre within the promotee quota was available and that being
the position, there is no error in the impugned judgment in the matter of
determining the inter se seniority between the direct recruit and the promotees C
in the cadre of Employment Officer. In support of this contention the learned
counsel relied upon several observations of this Court in the case of Suraj
Prakash Gupta v. State of J & K., [2000] 7 SCC 561. According to Mr.
Venkataramani, the promotee Employment Officers having rendered continuous
service in the cadre of Employment Officer, after being duly selected by the
Appointing Authority, and such promotion having been made in the exigency D
of public service, even without consultation with the Public Service
Commission as it could not brook any delay, it will be wholly inequitable to
ignore the services from the date of promotion till 1988, the date on which
the Public Service Commission accorded the approval. The rival submissions
require a careful scrutiny of the relevant Rules and decisions of this Court E
indicating the principle on which seniority could be counted. But the moot
question would be as to whether promotion to the post of Employment Officer
being required to be made in consultation with the Public Service Commission
under the Recruitment Rules, the period rendered prior to such approval can
be counted for seniority? It may be stated that in the supplementary affidavit
that was filed on behalf of the State Govt. in the High Court, though it was F
stated that the appointment of adhoc officers were regularised after obtaining
the approval of the Public Service Commission with effect from 29th June,
1988 by the Government order dated 18.8.1988, but a prayer was made to
permit the Government to prepare a single Gradation List treating the former
adhoc officers who were then regularised as regular officers with effect from G
the dates of their continuous officiation.

A combined reading of the Recruitment Rules and the West Bengal
Public Service Commission (Consultation by Governor) Regulation, 1955 as
well as the Exemption Regulation of 1955 would unequivocally indicate that
the post of Employment Officer could be filled up by promotion to the extent H
22 SUPREME COURT REPORTS [2002] I S.C.R.

A of 50% of the vacancies available in the cadre, after due consultation with the
Public Service Commission. In fact the very appointment letter in favour of
the respondents clearly indicated that the appointment is being made purely
on adhoc basis subject to the approval of the Public Service Commission.
Then again the State Government being the Appointing Authority for the
post of Employment Officer and the said post being a gazetted post with a
B pay scale of more than Rs. 750 per month, appointment by promotion could
not be made without the approval of the Public Service Commission. It is in
this context the questions raised are required to be answered.

In view of the rival stand of the parties, the first question that requires
C to be answered is whether the promotion to the post of Employment Officer
under the Recruitment Rules could be made by the State Government without
consultation with the Public Service Commission? The Recruitment Rules
merely provide that all the posts in the West Bengal National Employment
Services excepting the post of Employment Officer (Technical) could be filled
up either by direct recruitment or by promotion, the feeder category being the
D post mentioned in Clauses (a) to (e) of Rule 3(A) of the said Rules. The post
of Employment Officer is undoubtedly a post borne in the West Bengal
National Employment Service. The Recruitment Rules, unfortunately is totally
silent as to how recruitment by promotion could be made to the said post of
Employment Officer borne in the West Bengal National Employment Service,
E though so far as direct recruitment is concerned, it is categorical that it would
be by selection on the results of the West Bengal Civil Services examination
for Group A services which is conducted by the Public Service Commission.
The post in question being a gazetted civil post, under Article 320(3) of the
Constitution the State Public Service Commission is required to be consulted
for filling up the post by promotion unless in exercise of power under the
F proviso to Article 320(3) of the Constitution the Governor by way of making
any Regulation specify the post for which it shall not be necessary for a
Public Service Commission to be consulted. The Governor has framed a
Regulation in exercise of such power in the State of West Bengal, called, 'The
West Bengal Public Service Commission (Consultation by Governor) Regulation,
G 1955, and Rule 3 thereof provides that so far as clauses (a) and (b) of Article
320 (3) are concerned, if the Appointing Authority is not the State Government
but is one subordinate to the State Government, then it shall not be necessary
to consult the Public Service Commission. So far as the post of Employment
officer is concerned, the Appointing Authority being the State Government,
consultation with the Public Service Commission is required to be made while
H making promotion, as provided under Article 320(3)(b) and the same does not
MD. ISRAILS AND ORS. v. STATE OF WEST BENGAL [PATTANAIK, J.) 23
go out of the purview of consultation with the Public Service Commission in A
view of the provisions contained in Regu!ation 3 of the Consultation by
Governor Regulation, 1955. There has been another order issued by the
Governor, called The West Bengal Public Service Commission (Exemption
from Consultation) Regulation, 1955 and Section 3A thereof unequivocally
indicates that even if the State Government is the Appointing Authority in B
respect of the post, which is filled up by promotion, yet it will not be
necessary to consult the Public Service Commission provided the maximum
of the scale of pay of such post does not exceed Rs. 750 p.m. as per West
Bengal Services (Revision of Pay and allowances) Rules, 1970 and in the case
of each post decision to exclude is taken in consultation with the Commission
and a provision to that effect is incorporated in the relevant Recruitment C
Rules. Rule 3A of the Exemption Regulation is extracted herein below in
extenso:-

"Rule 3A.-It shall not be necessary to consult the Commission in
regard to promotion to posts and services, the appointing authority
of which is the State Government provided that the maximum of the D
scale of pay of such posts/services does not exceed Rs. 750 per month
as per West Bengal Services (Revision of Pay & Allowances) Rules,
1970 and provided further that the decision to exclude such promotion
in the case of each post/service is taken in consultation with the
Commission and a provision to that effect is incorporated in the E
relevant recruitment rules."

A post of Employment Officer having a pay scale of more than Rs.750 per
month under the West Bengal Services (Revision of Pay & Allowances)
Rules, 1970, and there being no decision to exclude the promotion to such
post taken in consultation with the Commission, the conclusion is irresistible F
that for filling up the post of Employment officer by promotion requires
consultation with the Public Service Commission. It is also apparent from Rule
3 of the Recruitment Rules, which says that all the posts in the West Bengal
National Employment Services excepting the post of Employment Officer
(Technical) is required to be made under the procedure prescribed under the G
said Rules and for the post of Employment Officer (Technical) Rule 4 has been
.<:: specifically provided. In view of the aforesaid legal provisions, 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. H
24 SUPREME COURT REPORTS (2002] l S.C.R.

A The next question that requires to be considered is, what would be the
nature of services rendered by such promotees who were promoted on adhoc
basis prior to the consultation with the Public Service Commission, and
whose appointment by promotion was approved by the Public Service
Commission only on 29th June, 1988? In the Constitution bench decision of
B this Court in Direct Recruit Class II Engineering Officers' Association v.
State ofMaharashtra and Ors., (1990] 2 Supreme Court Cases 715, this Court
after a thorough discussions of several earlier cases of the Court came to
hold, that once an incumbent is appointed to a post according to the rule,
his seniority has to be counted from the date of his appointment and not
according to the date of his confirmation. The corollary of the above Rule is,
C where the initial appointment is only adhoc and not according to the rules
and made as a stop-gap arrangement, the officiation in such post cannot be
taken into account for considering the seniority. According to Mr. Gupta, the
learned counsel appearing for the appellant, the corollary would apply to the
respondents 6 to 30 and, therefore, the officiation in the promoted post would
D not count for their seniority. According to Mr. Venkataramani, the corollary
laid down in the case applies only to the case of a direct recruit and cannot
have any application to the respondents 6 to 30. It is no doubt true, in the
aforesaid case the question for consideration was whether in case of a direct
recruit his seniority has to be counted from the date of his appointment or
from the date of his confirmation, and the Court answered the same that it
E should be from the date of the appointment.
In Masood Akhtar Khan and Ors. v. State of Madhya Pradesh & Ors.,
(1990] 4 Supreme Court Cases 24, which also dealt with the case of a direct
recruit, the question for consideration was as to from what date the seniority
in the cadre of an appointee could be considered? In that case also the very
F appointment letters indicate that the appointments are made for a period of
6 months, pending regular selection by Public Service Commission, and
appointees, however, were allowed to continue beyond the period of 6 months
and later on regularly selected by the Public Service Commission. This Court
came to hold that the appointees, who have been allowed to continue beyond
the period of 6 months and later on were regularly selected by the Public
G Service Commission can claim seniority from the date of their regular absorption
in the cadre after being selected by the Public Service Commission, and
services rendered from the date of their initial stop gap appointment till
regular selection will not count for their seniority in the cadre.
In the case of MK. Shanmugam and Anr. v. Union of India & Ors.,
H (2000] 4 Supreme Court Cases 476, this Court came to hold that any adhoc
MD. ISRAILS AND ORS. v. STATE OF WEST BENGAL [PATTANAIK, J.] 25
service does not count for seniority in the cadre and it can only count in A
those cases where the initial appointment, though adhoc is made by the same
process, as is applicable to the regular appointment and is not a stop-gap
appointment. In this case also the promotions had been made purely temporary
and on adhoc basis and for a limited period and it had been made clear in
promotion order that the promotion is subject to the approval of the Public B
Service Commission and would not confer any seniority. In the case in hand
also the order of promotion in favour of respondents 6 to 30 categorically
indicated that the promotion is purely on adhoc basis and subject to the
approval of the Public Service Commission. Consequently the services rendered
on such adhoc basis till the approval of the Public Service Commission is
obtained, will not count for reckoning the seniority in the cadre. The only C
other decision which requires consideration is the judgment of this Court in
Suraj Prakash Gupta and Ors. v. State ofJ & Kand Ors., [2000] 7 Supreme
Court Cases 561, on which Mr. Venkataramani, learned senior counsel appearing
for the private respondents strongly relied upon. Question no. 3 in this case
was, whether adhoc, stop-gap promotion of Assistant Engineers could be
made beyond 6 months and till regularisation, by the Government without D
consulting the Public Service Commission? And question l(b) was whether
the entire adhoc service of Assistant Engineers, who were promoted without
consultation of the Public Service Commission can be counted for the purpose
of seniority? So far as question no. 3 is concerned, the Court answered by
referring to Regulation 4(d)(iii) of J&K Public Service Commission (Limitation E
of Functions) Regulations, 1957 and Rule 23 of the J&K Civil Services (CCA)
Rules 1956, that the State Government has the power to regularise the services
from an anterior date, as provided under Rule 23, and therefore, when
appointment is made without consultation with the Public Service Commission,
entire service will not be wiped off. This conclusion was possible because of
the existence of Rule 23. In the case in hand we do not have any Rule F
corresponding to Rule 23, and therefore, the ratio of the aforesaid case will
have no application. Mr. Venkataramani, however, vehemently urged that the
observations made in the aforesaid case are of general nature and should
... apply to every case irrespective of existence of any Rule corresponding to
Rule 23 of the J&K Civil Services (CCA) Rules. We are, however, not persuaded G
to accept this submission of learned counsel for the respondents. 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 adhoc basis without consultation with the Public Service Commission H
26 SUPREME COURT REPORTS [2002] I S.C.R

A 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.
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
B 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 adhoc promotion

C
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 of West Bengal, that in the Writ Petition filed by the direct
D recruits there was no prayer for determination of inter se seniority and the
only prayer was not to allow the adhoc 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
E adhoc prcmotees 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
adhoc 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
F 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
.
G 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.
H T.N.A. Appeal allowed