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PETITIONER: PRAN KRISHNA GOSWAMI & ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL AND ORS.

DATE OF JUDGMENT24/04/1985

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) PATHAK, R.S. MISRA, R.B. (J)

CITATION:  1985 AIR 1605            1985 SCR  (3) 914  1985 SCC  Supl.  221     1985 SCALE  (1)1024  CITATOR INFO :  RF         1986 SC 638  (12)  F          1987 SC 424  (24)

ACT:      West Bengal Services (Determination of Seniority) Rules 1981. Rules 4, 5 and 6 :      Promotees and  Direct  Recruits-Seniority-Fixation  of- Seniority among  promotees-Date of joining-Seniority between promotees and direct recruits- Year of joining.      Civil Services:      Seniority-Fixation  of-Direct  Recruits  and  Promotees Service Rules-  Absence of-General  principle  is  seniority determined  on  basis  of  continuous  officiation  in  non- fortuitous vacancies.

HEADNOTE:      The  appellants   joined  the  State  Police  Force  as Constables, were  promoted as  Assistant  Sub-Inspectors  of Police, and  later as  officiating Sub-Inspectors  of Police and confirmed  as Sub-Inspectors.  In the meanwhile, a large number persons  were directly  recruited as  Sub-Inspectors, and also  confined. All  these persons were ranked above the appellants in the seniority list.      In writ  petitions to  the High  Court, the  appellants contended that  their seniority  must be  reckoned from  the date of  their continuous officiation as sub Inspectors, and that they  were never  considered for  promotion to the next higher post of Inspector of Police, because of their delayed confirmation, and  of the  insistence of the Rules that they should be  confirmed as Sub-Inspectors of Police before they could be  considered for  promotion to the post of Inspector of Police  and that the offending Rule be quashed. The State supported the  claim of  the appellants  to seniority on the basis of  continuous officiation,  but the  direct  recruits contested the writ petition.      The High  Court refused  to recognise  the claim of the appellants to  seniority from  the dates of their continuous officiation,  on   the  ground   that  their   promotion  as officiating  Sub-Inspectors   of  Police   could   only   be considered as  promotion to  posts  outside  the  cadre.  It further held,  that their  seniority could  only be reckoned

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from the date of their confirmation, and that the rule pres- 915 cribing  confirmation   as  Sub-Inspector   as  a  condition precedent for  promotion to  the Post of Inspector of Police was not invalid.      Allowing the Appeals, ^      HELD: 1.  The three appellants are entitled to have the benefit of  their continuous  officiating  service  as  Sub- Inspectors of Police counted for seniority as Sub-Inspectors of Police.A  writ will  issue, directing the state to re-fix the seniority of the appellants and other officers similarly situated. [939 F]      2. It  is not  undisputed, that in the absence of Rules to  the  contrary,  regulating  the  question  of  seniority between ’direct  recruits’ and  the ’promotees’  the general principle to  be implied and followed to determine seniority is to  base it  on continuous  offication in  non-fortuitous vacancies. [929B]      In the  instant case, the officiating Sub-Inspectors of Police were obviously appointed to officiate in permanent or temporary vacancies in the existing subordinate ranks of the Calcutta Police,  governed by the same Rules and Regulations as other  Sub-Inspectors of Police, drawing the same pay and discharging the  same duties.  There was not and there could never  be   any  question   of  officiating   Sub-Inspectors constituting  a   different  cadre,  class  or  category  by themselves. [934G-H]      3. Rule 4 of the West Bengal Services (Determination of Seniority) Rules,  1981 which  deals with  seniority amongst direct  recruits,   broadly  provides  that  their  relative seniority shall be according to the cadre of merit when they are selected  at the  same examination  persons appointed on the basis  of an  earlier examination taking precedence over those appointed  on the  basis of  a later  examination.  It further  provides   that  where   seniority  has   not  been previously determined  it shall  be determined  according to the actual  date of joining. Rule 5 deals with determination of seniority  of promotees  and provides that seniority of a person appointed  to any  post,  cadre  or  grade  shall  be determined from  the date  of joining  such post,  cadre  or grade, which  by Rule  3 (vi)  means tho  date of continuous officiation in  the post,  cadre or grade. Rule 6 prescribes that the  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, and that the promotees shall he en- bloc senior  to the  direct recruits of the same year. Rules 4, 5  and 6  constitute a single scheme and if read together the scheme becomes clear. While date of joining is important to decide the question of seniority amongst promotees, it is the year  of joining  that is  relevant when the question of relative seniority  is to  be deter- mined between promotees and direct  recruits. If  direct recruits  are appointed and promotees are  promoted in  the same year, all promotees are to take  precedence over the direct recruit, irrespective of the  actual  date  of  their  joining  but  as  amongst  the promotees themselves,  the seniority  is to  be based on the date  of   joining.  That   is  the   true  and  appropriate construction of  Rules 4,  5 and  6, and  that was  what the State Government wanted to do and was done.                                           [935 F-H ;936 A-C] 916      Ganga Ram  v. Union of India, [1970; 3 SCR 481, Katyani Dayal v. Union of India [1980], 3 SCR 139, distinguished.

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    S.B Patwardhan  v. State  of Maharashtra,  [1977] 3 SCR 775 Baleshwar  Dass v.  State of  UP. [1981]  1 SCR  449; A. Janardhana v. Union of India, 1983 3 SCC 601, O.P. Singla ,- . Union  of India,  AIR 1984  SC 1595;  G.S. Lamba & Ors. v. Union of  India, [1985]  3 SCR  431, B.S.  Gupta v. Union of India, [1975]  SUPP SCR  491; A.K.  Subramana  v.  Union  of India, [1973]  2 SCR  979: P.S. Mahal v. Union of India. AIR 1984 SC 1291; referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 400-401 of 1984      From the  Judgment and  Order dated  15 7.1983  of  the Calcutta High Court in C.R. No. 7979 (W) Of 1981.      M.K. Ramamurthi, B. Datta, Rishi Kesh, Badri Prasad and Pudisserry for the Appellants.      S.N. Kacker,  H.K. Puri,  D.N. Mukharjee,  J.R. Das and D.R. Sinha for the Respondents.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. The  wars of  the Roses go on. How else is  one to describe the perpetual battles waged between the ’direct-recruits’  and the  ’promotees’ ?  This time the front is  the Calcutta  Police, the  posts are those of Sub- Inspectors of Police and the question is the same old one of seniority. Petitioners  1 and  2, who  joined  the  Calcutta Police as Constables in November 1947 were first promoted as Assistant Sub-Inspectors  of Police  and later, on August 6, 1951, as  officiating Sub-Inspector  of  Police.  They  were confirmed as Sub-Inspectors of Police on January 1, 1975. In the meanwhile,  a large  number  of  persons  were  directly recruited as  Sub-Inspectors of Police and also confirmed as such, All  of them  are now  ranked above the petitioners in the seniority  list, and  the petitioners, therefore, have a natural grievance.  They claim that as laid down by a series of decisions of this court, their seniority must be reckoned from the  date  of  their  continuous  officiation  as  Sub- Inspectors of  Police. Petitioner  No.3, we may mention, was promoted as officiating Sub-Inspector of Police on September 6, 1975,  but the  precise date  of his  confirmation is not available  from   the  record.   Apart  from  the  claim  to seniority, 917 the petitioners also alleged that they were never considered for promotion to the next higher post of Inspector of Police because of  their delayed  confirmation and  because of  the insistence of  the Rules  that they  should be  confirmed as Sub-Inspectors of Police before they could be considered for promotion to  the post of Inspector of Police. they want the offending rule  to be quashed. Other reliefs were claimed in the writ  petition filed  by them  in the High Court, but we are not  now concerned  in  this  appeal  with  those  other reliefs. While  the State of West Bengal appeared to support the claim  of the  appellants to  seniority on  the basis of continuous officiation,  the direct-recruits  contested  the writ petition  in the  High Court. The High Court refused to recognise the  claim of the appellants to seniority from the dates of  their continuous  officiation on  the ground  that their promotion  as  officiating  Sub-Inspectors  of  Police could only  be considered  as promotion to posts outside the cadre. The  High Court  held that their seniority could only be reckoned  from the  date of  their confirmation. The High Court further held that the rule prescribing confirmation as Sub-Inspector as  a condition precedent for promotion to the

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post of  Inspector of Police was not invalid. The ’promotee’ Sub-Inspectors have  preferred this  appeal by special leave of the court under Art. 136 of the Constitution.      It is necessary now to refer to the various recruitment and seniority  rules made from time to time under the powers conferred by the statute. Rule 2(b) of the Recruitment Rules for the  Subordinate Ranks  of  the  Calcutta  Police,  1936 provided that twenty five per cent of the vacancies shall be filled  by   promotion  of   Assistant  Sub-Inspectors   and Sergeants and  the rest  by direct  recruitment.  Rule  2(f) prescribed the  qualification for outside candidates meaning thereby direct-recruits.  What is  important to  be noted is that they  were required  to be  Graduates of  a University. Rule 2(g)  prescribed the  qualifications  for  departmental candidates and  it is  necessary to extract the whole of it, which is as follows:-           "(g) Qualifications for departmental candidates-           On the  first of June, nominations shall be called      for  from  all  District  Officers  of  Assistant  Sub-      Inspectors and  Sergeants fit for promotion to the rank      of Sub-Inspectors.  Nominees shall  have had at least 3      years’ service as Ser- 918      geant or Assistant Sub-Inspector, be less than 40 years      of age  and normally  have passed  one of the following      examination.           (1)  Matriculation  or  the  Indian  Army  Special           Certificate of Education,           (2) Junior Cambridge,           (3) First Class Army Certificate,           or have,  in the  opinion of  the Selection Board,      other  wise   attained   a   satisfactory   educational      standard. They  shall sit in a preliminary departmental      test  examination   at  the  Calcutta  Police  Training      School.  The  names  of  all  nominees  who  pass  that      examination shall  be submitted to the Selection Board.      The candidates shall have-           (i) a good record of service, and           (ii) a good social position;           The Judge of this should be the Selection Board.      Note-On passing  out of  the Calcutta  Police  Training      School officers  shall remain  on  probation  prior  to      confirmation.      Rule  2   (j)  which   applied  both   to  outside  and departmental candidates was as follows:-      "(j) Qualified Candidates  shall be  summoned before  a      Selection  Board  consisting  of  the  Commissioner  of      Police,  the   Deputy  Commissioner   of  Police,  Head      quarters.’  a  District  Deputy  Commissioner,  and  an      Assistant Commissioner  of Police.  The Selection Board      shall make the final selections for appointment."      The Probation  Rules for  the Subordinate  Ranks of the Calcutta Police,  1936 prescribed  that for  Sub-Inspectors, the period of probation of a person directly recruited or of an officer who was 919 promoted from  a lower rank shall be two years counting from the date of his joining the Calcutta Police Training School. While Rule  2 sub-rule  3  provided  that  persons  directly recruited shall  draw the  minimum pay  in the time-scale of Sub-Inspectors through the period of their probation. Rule 2 sub-rule 4  provided that  promoted officers  shall draw the minimum pay  in the time scale of Sub-Inspectors, subject to the condition  that  they  shall  count  towards  increment, officiating and  temporary service  in  that  rank  rendered

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prior to  their appointment  as probationers  and also their probationary period  or any  part thereof and draw increment that may  fall due  to  them  during  the  period  of  their probation. It  was further  stipulated  that  a  probationer shall be  confirmed on  the termination  of his probationary period  unless  the  Deputy  Commissioner  in  charge  of  a District shall  during the period of probation make an order extending this  period of  probation or discharging him from service or  reverting him  to his substantive rank. An order of extension of probation was not to extend beyond one year, except with the sanction of the Commissioner of Police.      By an  order dated  December 16,  1940, it was provided that when determining the relative seniority of probationary Sub-Inspectors  in   the  Calcutta   Police,  the  following principles were to be observed:      "(1) Departmentally  appointed Sub-Inspectors  will  be senior to  direct recruits  of the  same year  and  will  be graded inter  se according to the date of their confirmation in the rank of Assistant Sub-Inspector.      (2) The  seniority of directly recruited Sub-Inspectors will be  in accordance  with their  position  In  the  final examination at the Police Training School."      In supersession  of this  order, a  further  order  was issued on December 14, 1960 laying down the principles to be followed  in   determining   the   relative   seniority   of probationary Sub-Inspectors  of  the  Calcutta  Police.  The principles were as follows:-      "(1) The  seniority   of  departmentally  promoted  and      directly recruited Sub-Inspectors will be determined in      accor 920      dance with  the dates of their probationary appointment      in the rank.      (2)  Where a  departmentally promoted Sub-Inspector and      a directly  recruited Sub-Inspector  are  appointed  on      probation with  effect from  the same date, the depart-      mental officer  will be  senior to  the direct recruit,      provided they  undergo training  at the Police Training      College the same year.      (3)  The  seniority  of  the  directly  recruited  Sub-      Inspectors will  be in  order of  their position in the      final examination  held at  the Police Training College      and that  of the departmentally promoted officers be in      accordance with  their position in the approved list of      officiating Sub-Inspectors, fit for confirmation in the      rank of Sub-Inspector."      In 1962,  the Calcutta and Suburban Police (subordinate ranks recruitment,  conditions of  service  and  discipline) Rules  were  made.  Schedule  I  prescribed  the  method  of recruitment, qualifications  for appointment  including  age and conditions of service. Paragraph 2 of the Schedule dealt with Sub-Inspectors not belonging to the Armed Branch and to the extent it is relevant, is extracted below:      "Sub-Inspectors not belonging to the Armed Branch      2.   (1) Method of recruitment: Recruitment in the rank      of Sub-Inspector  shall be  made each year in the month      of January. Twenty-five per cent of the vacancies shall      be filled  by promotion of Assistant Sub-Inspectors and      the remaining  vacancies  shall  be  filled  by  direct      recruitment.      (2)  For filling  up vacancies by promotions candidates      shall be selected on the basis of merit only.      (3)  (a)  For   filling    up   vacancies   by   direct           recruitment applications  from outsiders  shall be           invited through  the Press  in  the  1st  week  of

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         August........... 921      (b)...............................      (c)..............................      (4)  Qualifications    for    outside    candidates-The           candidates shall-      (i)  be graduates of one of the lndian universities;      (ii) .........      (iii)     ........      (iv) ..........      (V)  ...........      (5)  Qualifications for departmental candidates-      On the  first day  of June every year nominations shall      be  called   for  from   all  Deputy  Commissioners  of      Assistant Sub-Inspectors  fit for promotion to the rank      of Sub-Inspector.  Nominees shall  have had  at least 3      years of  service as  Assistant Sub-Inspector,  be less      than 40  years of  age and  normally have passed one of      the following examinations:      (a)  Matriculation, School  Final or  Higher  Secondary           Examination or the Indian Army Special Certificate           of Education Examination:      (b)  Junior Cambridge Examination;      (c)  First class Army Certificate Examination;      or have, in the opinion of the Selection Board referred      to insub-rule  (7), otherwise  attained a  satisfactory      educational standard.  They shall be required to sit in      a preliminary  departmental test examination. The names      of all  nominees who  pass that  examination  shall  be      submitted to  the said  Selection Board. The candidates      shall have  in the  the opinion  of the  said Selection      Board a good record of service, 922           Note-Selected candidates  shall have  to undergo a      course of  training in  the Police Training College. On      passing out  of the  Police Training  College, officers      shall remain on probation prior to confirmation.      (6)  .........      (7)  Qualified candidates  shall be  summoned before  a           Selection   Board   consisting   of   the   Deputy           Commissioner, Headquarters,  a  Divisional  Deputy           Commissioner  and  an  Assistant  Commissioner  of           Police. Appointment  shall be  made of  candidates           included  in   an  approved   list  of  candidates           prepared on  the recommendation  of the  Selection           Board.      (8)  .........      Paragraph 19  of Schedule I deals with the probation of Sub Inspectors  and to  the extent necessary it is extracted below:-      "Sub-InsPectors      19.  1)   The period  of probation of a person directly           recruited as  a Sub-Inspector  shall be  two years           counting from  the  date  of  leaving  the  Police           Training College  and that  of an officer promoted           as a  Sub-Inspector from a lower rank shall be one           year counting  from the date of joining the Police           Training College on such promotion.      (2)  ..........      (3)  Promoted Sub-lnspectors  shall draw  the grade pay           in the  time-scale of  Sub-Inspectors, subject  to           the  condition   that  they  shall  count  towards           increment officiating  and  temporary  service  in           that rank  rendered prior  to their appointment as           probationers and also their probationary period or

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         any part  thereof and draw increment that may fall           due to them during the period of their probation.A           probationer Sub  lnspector shall  be confirmed  on           the completion  of his  probationary period unless           the Deputy  Commissioner, Headquarters, shall make           an order  extending his  period  of  probation  or           discharging him from service 923      or reverting him to his substantive rank. Any order for      such extension  of the probationary period or reversion      or discharge  shall indicate grounds on which the order      is  made.   Such  an   order  of  extension  shall  not      ordinarily extend  the period  of probition  beyond one      year. For extension for any Period beyond one year, the      sanction of the Commissioner shall be obtained.      (4) (a)   The  training   period   of   promoted   Sub-      Inspectors shall  be one  year, of  which the first six      months shall  be spent  in the Police Training College.      The  training   period  of   direct  recruits  as  Sub-      Inspectors shall  be two  years of which one year shall      be spent in the Police Training College.      (b)  The  initial   pay  of  direct  recruits  as  Sub-           Inspectors when  posted  to  the  Police  Training           College shall  be Rs.  200 per mensem, the minimum           of the time scale of pay of Sub-Inspectors.      (csuch part  of the  training period of direct recruits as  Sub-Inspectors  as  is  spent  in  the  Police  Training College,  namely,  one  year,  shall  be  exclusive  of  the probationary period and count towards increment of pay. (d)  The training  period of  promoted Sub-Inspectors  shall      count towards increment of pay." In 1967,  the Police Regulations, Calcutta were framed under section 3  of the  Calcutta Suburban  Police Act,  1866  and section 9  of the Calcutta Police Act. Chapter XV dealt with method  of   recruitment,  qualifications   for  appointment including age  and conditions  of service.  Paragraph  3  of Chapter XV dealt with Subspectors not belonging to the Armed Branch. To  the extent  necessary, paragraph  3 is extracted again:      "3.  Sub-Inspectors not belonging to the Armed Branch:      (1)  Method of  recruitment-Recruitment in  the rank of           Sub-lnspector shall be made each year in the month           of January.  One-third of  the vacancies  shall be           filled 924      by  promotion  of  Assistant  Sub-Inspectors,  and  the      remaining  vacancies   shall  be   filled   by   direct      recruitment.      (2)  For filling  up vacancies  by promotion candidates           shall be  selected on  the basis of merit with due           regard to seniority,      (3)(a)    .....      (b)  .........      (c)  ..........      (4)  Qualifications   for    candidates   for    direct           recruitment-      The candidates shall-      (i).........      (ii) be graduates of one of the Indian Universities.      (iii)     .........      (iv) ..........      (v)  ..........      (vi) ..........      (5)  Qualified candidates  shall be  required to appear           for  an   interview  before   a  Selection   Board

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         consisting    of    the    Deputy    Commissioner,           Headquarters, and  two other  Deputy Commissioners           nominated by  the Commissioner.  Appointment shall           be made of candidates included in an approved list           of candidates  prepared on  the recommendation  of           the Selection Board.      (6)  ..........      (7)  Qualifications   for    departmental   candidates-           Nominations  shall  be  called  for  as  and  when           necessary from  all Deputy  Commissioners  of  all           Assistant Sub-Inspec. 925      tors fit  for promotion  to the rank of Sub-Inspector.A      Nominees shall have had at least three years of service      as Assistant Sub-Inspector and normally have passed one      of the following examinations:-      (a)  Matriculation, School  Final or  Higher  Secondary           Examination or the Indian Army Special Certificate           of Education Examination,      (b)  Junior Cambridge Examination;      (c)  First Class Army Certificate Examination; or      have, in  the opinion  of the Selection Board, referred      to  in   Sub-rule  (8)   below  otherwise   attained  a      satisfactory educational standard.                They  shall   be  required   to  sit   in   a      departmental examination the procedure and syllabus for      which shall  be  such  as  may  be  determined  by  the      Commissioner.      (8)  The  names   of  all   nominees  who   pass   that           examination shall  be submitted  to the  Selection           Board. The candidates shall have in the opinion of           the Selection  Board, good records of service. The           S  election   Board  shall   consist   of   Deputy           Commissioner, Headquarters,  and two  other Deputy           Commissioners nominated by the Com missioner.      (9)  Candidates  must   have  passed  the  departmental           exami-   nation   completely   before   they   are           interviewed  by  the  Selection  Board.  Candidate           shall be  eligible for the examination referred to           above after  they are  confirmed in  the  rank  of           Assistant Sub-Inspector.           Note. Selected candidate (both direct recruits and      departmental)  shall   have  to  undergo  a  course  of      training in the Police Training College.      (10) An officiating  Sub-Inspector having completed two      years’ continuous service in the rank and on completion      of the required course of training shall be eligible 926      for appearing  before the Selection Board concerned for      inclusion of  his name in the panel of officiating Sub-      Inspector fit  for confirmation  in  the  rank  of  Sub      Inspector."      Paragraph 46 may also be extracted here:      (1)  The period  of  probation  of  a  person  directly           recruited as a Sub-lnspector or a Sub-lnspectoress           shall be  two years  counting  from  the  date  of           leaving the  Police Training College or School, as           the case  may be,  and that of an officer promoted           as a  Sub-Inspector or  Sub lnspectoress  from the           lover rank  shall be  one year  counting from  the           date of  his or her appointment on probation. Such           part of  the training  period of direct recruit as           Sub-Inspectors or  Sub-Inspectoress as is spent in           the Police Training College or School, namely, one           year, shall  be exclusive  of  the  probation  any

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         period and count towards increment of pay.      (2)  .............      (3)  Promoted     Sub-Inspectors     including     Sub-           Inspectoresses shall  draw the  grade pay  in  the           time  scale  of  Sub-Inspectors,  subject  to  the           condition that  officiating and  temporary service           in that  rank rendered  prior to their appointment           as probationers and also their probationary period           or any  part thereof  shall counttowards increment           and they shall draw increment that may fall due to           them  during   the  period  of  their  probation.A           probationary  Sub-Inspector   or  Sub-Inspectoress           shall be confirmed on the completion of his or her           pro   bationary    period   unless    the   Deputy           Commissioner, Head-quarters,  shall make  an order           extending  his  or  her  period  of  probation  or           discharging him or her from service or in the case           of a  promoted Sub-Inspector  or  Sub-lnspectoress           reverted him  or her  to his  or  her  substantive           rank.  Any   order  for   such  extension  of  the           probationary  period  or  reversion  or  discharge           shall indicate grounds on which the order is made.           Such an  order of  extension shall  not exceed the           period 927      of probation  beyond one  year in  the case of a direct      recruit and  six months  in the case of a promotee. For      extension of  any period beyond one year or six months,      as the  case may  be, sanction  of Government  shall be      obtained."      In 1981  the West  Bengal  Services  (Determination  of Seniority) Rules  were made and it is not disputed before us that these rules are applicable to the Calcutta Police. Rule 3 (iv)  defines "post","  cadre" or  "grade" as  meaning any post, cadre  or grade  in connection with the affairs of the State of  West Bengal.  Rule 3  (vi) says, "date of Joining" shall be reckoned from the date of continuous officiation in a post/cadre  or grade.  Rules 4,  5 and  6 which  deal with ’Determination   of    seniority   of    direct   recruits’, ’determination  of  seniority  of  promotees,  and  relative seniority of  direct recruits  and promotees,  are important and have to be extracted in full. They are as follows:      "4.  Determination of seniority of direct recruits. The      relative seniority  of all  persons appointed  directly      through competitive  examination or  interview or after      training or  otherwise shall  be determine by the order      of  merit   in  which   they  are   selected  for  such      appointment on  the recommendation of the Commission or      other selecting  authority, persons  appointed  on  the      result of  an earlier  selection being  senior to those      appointed on the result of a subsequent selection:      Provided that  where appointment  of persons  initially      made otherwise  than in  accordance with  the  relevant      recruitment  rules   is  subsequently   regularised  in      consultation  with  the  Commission,  where  necessary,      seniority of  such persons shall be determined from the      date  of  regularisation  and  not  from  the  date  of      appointment.  The   inter-se-seniority   amongst   such      persons  shall   how  ever,   depend  on  the  date  of      appointment of  each such  person in  the department or      office concerned:      Provided further  that if  any person  selected for ap-      pointment to  any post  does not join within two months      of the  offer of appointment, his seniority shall count      from the date on which he joins the post unless the

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928      appointing authority  for reasons  to  be  recorded  in      writing condones the delay.      Note-(1) A  list  of  candidates  for  the  purpose  of      selection for  appointment shall  be  prepared  in  all      cases by  the selecting  authority, when  there will be      recruitment in  a single  process of  selection Or more      than one person.           (2) Where  the inter-se-seniority  amongst several      persons has  not been  determined prior  to the  coming      into force of these rules; such seniority shall, on the      coming into  force of these rules, be determined on the      basis of actual date of their joining. When the date of      joining of  all such  persons is  the  same,  seniority      shall be  determined on  the basis  of date  of  birth,      person retiring  earlier being adjudged as senior. When      the date  of birth  is the  same,  seniority  shall  be      determined on the basis of total marks obtained by each      in  the   examination,  passing   of   which   is   the      qualification  prescribed   for  recruitment   to   the      particular cadre or grade.      (3)  In  so   far  as  the  determination  of  relative           seniority Of    persons  selected  either  by  the           Commission or  by other  selecting  authority  for           appointment to  different posts  in the same grade           with different  qualifications such  as  posts  of           Assistant  Professors   in   History,   Economics,           Physics, Chemistry,  etc., is concerned, seniority           shall be determined from the date of joining.      5.   Determination of seniority of promotees-      (1)  Seniority of  person appointed on promotion to any           Post, cadre or grade shall be determined fro n the           date of joining such post, cadre or grade.      (2)  When there will be appointment in a single process           of selection of more than one person the; relative           seniority  of   persons  so   appointed  shall  be           determined by the order in which they are selected           for such promotion. 929      (3)  Persons appointed  on the  result  Or  an  earlier           selection   shall be  senior to those appointed on           the results of a subsequent selection.      (4)  Where promotions  to a  post, cadre  or grade  are           made from  more than one post, cadre or grade, the           relative seniority of the promotees from different           posts, cadre  or grades  shall be according to the           order of merit determined by the commission or the           selecting authority,  if  such  posts,  caders  or           grades do  not come  within  the  purview  of  the           commission.      Note  1-A   list  of  candidates  for  the  purpose  of      selection for  promotion shall be prepared in all cases      by the  selecting authority  when appointments are made      on promotion  in a  single process of selection of more      than one person.      Note 2-Where  the  inter-se-seniority  amongst  several      persons has  not been  determined prior  to the  coming      into force of these rules, such seniority shall, on the      coming into  force of these rules, be determined on the      basis of  date of  joining. When the date of joining of      such person  is the  same, seniority  in the  promotion      post, cadre  or grade shall follow the seniority in the      lower feeder post, cadre or grade.      6.   Relative  seniority   of   direct   recruits   and      promotees-

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    1.   The 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.      2.   The promotees  shall  be  en-bloc  senior  to  the      direct recruits of the same year."      A certain  amount of  confusion has been created by the reliance placed by the High Court upon the decisions of this Court in Ganga Ram v. Union of India(l) and Katyani Dayal v. Union of  Media.(2) We  wish to make it clear, straightaway, that neither of (1) [1970] 3 SCR 481. (2) [l980] 3 SCR 139. 930 these cases  has any  application to the facts of this case, as we shall presently explain.      The proposition  is now undisputed, and, indeed none of the Counsel  who appeared before us disputed it, that in the absence of  Rules to the contrary regulating the question of seniority between  direct-recruits’ and the ’promotees’, the general principle  to be  implied and  followed to determine seniority is  to base  it on  continuous officiation in non- fortuitous vacancies.  In the  case of  S. B.  Patwardhan v. State of Maharashtra (1) Chandrachud, CJ. Observed:           "We, however,  hope that  the Government will bear      in mind the basic principle that if a cadre consists of      both permanent and temporary employees, the accident of      confirmation cannot  be an  intelligible criterion  for      deter mining seniority as between ’direct-recruits’ and      the  ’promotees’.   All  other   factors  being  equal,      continuous  officiation  in  a  non-fortuitous  vacancy      ought t receive due recognition in determining rules of      seniority as  between persons  recruited from different      sources, so  long as  they belong  to the  same  cadre,      discharge  similar   functions  and   bear   the   same      responsibilities."      In Roleshwar  Dass v.  State of U. P.(2), Krishna Iyer, J. had occasion to observe:           We  must   emphasise  that   while  temporary  and      permanent posts  have great  relevancy in regard to the      career of  Government servants, keeping posts temporary      for long,  sometimes  by  annual  renewal  for  several      years, and  denying the claims of the incumbents on the      score that their posts are temporary makes no sense and      strikes us as arbitrary, especially when both temporary      and permanent  appointees are  functionally identified.      If, in  the normal  course, a  post is temporary in the      real sense  and the  appointee knows  that  his  tenure      cannot exceed  the post  in longevity,  there cannot be      anything unfair  or capricious  in clothing him with no      rights.  Not   so,  if   the  post   is,  for   certain      departmental or like purposes, declared temporary, (I) [l977] 3 S.C.R. 775 (2) [l981] 1 S.C.R. 449. 931      but it  is with  in the  ken of both the Government and      the appointee  that the  temporary posts  are virtually      long lived. It is irrational to reject the claim of the      ’temporary’ appointee  on  the  nominal  score  of  the      terminology  of   the  post.   We  must   also  express      emphatically that  the principle which has received the      sanction of  this  Court’s  pronounce  -ments  is  that      officiating service  in a  post is  for  all  practical      purposes of  seniority as  good as service on a regular      basis.  It  may  be  permissible,  within  limits,  for

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    Government to ignore officiating service and count only      regular service  when claims  of seniority  come before      it, provided  the rules  in that  regard are  clear and      categorical and  do not  admit  of  any  ambiguity  and      cruelly arbitrary cut-off of long years of service does      not  take   place  or   there   is   functionally   and      qualitatively, substantial  difference in  the  service      rendered  in   the  two  types  of  posts  While  rules      regulating  conditions   of  service   are  within  the      executive power  of the  State or its legislative power      under proviso  to Article 309, even so, such rules have      to be  reasonable, fair  and not grossly unjust if they      are to survive the test of Arts. 14 and 16.’’      To the  same  effect  in  A.  Janardhana  v.  Union  of India,(1), D. A. Desai, J. Observed:           ".. In  other words, after having rendered service      in a  post included  in  the  service,  he  is  hanging      outside  the   service,  without  finding  a  berth  in      service, whereas  direct recruits  of 1976  have  found      their place  and berth  in the  service.  This  is  the      situation   that   stares   into   one’s   face   while      interpreting the  quota-rota rule and its impact on the      service of an individual. But avoiding any humanitarian      approach to  the problem,  we shall  strictly go by the      rele- vant  Rules and  precedents and the impact of the      Rules on  the members  of  the  service  and  determine      whether the  impugned seniority  list is  valid or not.      But, having  done that  we do  propose to  examine  and      expose an extremely undesirable, unjust and inequitable      situation emerging  in service,  jurisprudence from the      precedents namely, that a (1) [1983]3 SCC 601. 932      person already  rendering service  as a promotee has to      go down  below a  person who comes into service decades      after the  promotee enters the service and who may be a      schoolian, if not in embryo, when the promotee on being      promoted on  account of  the exigencies  of service  as      required by  the Government started rendering service.A      time has  come to  recast service jurisprudence on more      just  and   equitable  foundation   by  examining   all      precedents on the subject to retrieve this situation."      These   cases    were   quoted    with   approval    by Chandrachud,CJ. and one of us (Pathak, J.) in O.P. Singla v. Union  of  India(1).  In  that  case  as  a  result  of  the application of  Rules 16 and 17 of the Delhi Higher Judicial Service Rules,  the quota and rota’ Rule ceased to apply and the question  arose what  was the criterion to be adopted to determine  the   seniority  between  ’direct  recruits’  and ’promotees’. Chandrachud, CJ. and Pathak, J. Observed:           Since the rule of ’quota and rota’ ceases to apply      when appointments  are made  under Rr.  16 and  17, the      seniority of  direct recruits  and prormotees appointed      under those  Rules must  be determined according to the      dates on  which direct recruits were appointed to their      respective posts and the dates from which the promotees      have been  officiating continuously either in temporary      posts  created  in  the  ser  vice  or  in  substantive      vacancies  to   which  they  were  appoint-  ted  in  a      temporary capacity,      G..S. Lamba  & Ors.  v. Union  of India,(2) there was a break. down  of the  ’quoto-rota’ Rule  as it  had not  been followed. The  problem was  how seniority  to be  determined between direct  recruits and  promotees. D.A. Desai, 1. with whom Khalid,  J. agreed after noticing the decisions in B.S.

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Gupta v.  Union of  Indiu(3). A.K.  Subrarnana v.  Union  of India.(4) P.S.  Mahal v. Union of India, Janardhana v. Union of India, O.P. Singla v. Union of India (Supra) observed . (1) AIR [1984] SC. 1595. (2) [1985] 3 S.C.R. 431. (3) [1975] SUPP. SCR 401. (4) [1979] 2 SCR 979. 933           "In the  absence of  any other  valid principle of      senio-  rity it is well-established that the continuous      officiation in the cadre, grade or service will provide      a valid  principle of  seniority. The  seniority  lists      having not  been prepared  on this principle are liable      to be quashed and set aside."      We may  now refer  to the  two decisions  of this Court upon which  reliance was  placed by the High Court. In Ganga Ram v. Union of India (1), the question arose with regard to the  validity   of  a   provision  of  the  Indian  Railways Establishment Manual according to which amongst Clerks Grade I who  had been  promoted from  the rank  of Clerks Grade Il after passing  the prescribed  qualifying examination, those who had  been promoted  earlier because  they had passed the examination earlier,  were, nevertheless  required  to  take their place  in the  seniority list  after  those  who  were promoted later because they had passed the examination later if the  latter happened  to be  senior in Grade 11. In other words, notwithstanding their actual dates of commencement of continuous officiation,  promotees to  Grade I  carried with them their seniority in Grade Il. The Rule was challenged on the ground  of discrimination.  It was said that in the case of direct recruit to Grade I seniority was reckoned from the date of  appointment to  Grade I  whereas  in  the  case  of promotees amongst  themselves their  seniority was  based on their seniority  in Grade  Il. This argument was repelled by this Court  on the ground that direct recruits and promotees constituted different  classes and  the  classification  was sustainable. It  was said  that promotion  to  Grade  I  was guided by  the consideration  of seniority-cum-merit  and it was, therefore,  difficult to  find fault with the provision which placed  in one group all those Grade II clerks who had qualified by  passing the  examination. The  fact  that  the promotees from  Grade II  who had  OFFICIATED for  some time were not  given the  credit of  that period when a permanent vacancy arose also did not attract the prohibition contained in Arts.  14 and  16. It  did  not  constitute  any  hostile discrimination and  was neither  arbitrary nor unreasonable. It  applied  uniformly  to  all  Grade  11  clerks  who  had qualified and become eligible. The onus, it was said, was on the petitioners  to establish discrimination. The difference emphasized on  behalf of  the petitioners,  it  was  finally observed, was  too tenuous  to form  the basis  of a serious argument. It will be seen that the case was not concerned at all with the rival claim of direct recruits and promo- A.I.R. 1984 SC. 1291 934 themselves. The comparison with direct recruits was only for the purpose of advancing the claim that since amongst direct recruits seniority  was reckoned  in a particular way, there was no  reason why  the same principle should not be adopted in the  case of  promotees also  instead of the principle of basing seniority  in Grade I on seniority in Grade ll. We do not think  that this  case is  of any avail to the II direct recruits in the present case.      In Katyani  Dayal Y.  Union of  India, in order to meet some special  requirements of  new situations created by new

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projects, some  new posts  of temporary  Assistant Officers, were  created   under  a  special  scheme.  These  Temporary Assistant Officers  belonged neither to class I nor to class II service,  though on  completion of three years service it was declared that they could be considered for absorption in Class I,  Junior Scale.  The  temporary  Assistant  Officers filed a  writ petition  claiming that they were appointed to the Indian  Railway Service  of Engineers Class I right from the beginning  and that  the  Railway  Board  was  wrong  in treating them  as belonging to neither class I nor class II. The court  held that  the service  comprising the  Temporary Assistant  Officers   and  the  Indian  Railway  Service  of Engineers Class  I started  separately and never become one. The objects  of their  recruitment were  dissimilar and  the appointing authority was not the same. The training that was imparted was  also unlike.  The very tenure of the Temporary Assistant  Officers   was  precarious  and  their  immediate aspiration was  only to  be absorbed into the Indian Railway Service of  Engineers Class  I. These  distinctive  features marked out the Temporary Assistant Officers as a Class apart from the  Indian Railway  Service of  Engineers Class  I and therefore there  was no  question of  entitlement  of  equal rights with  the later.  Of course,  once they were absorbed into the  Indian Railway  Service of Engineers they would be entitled not  to be  treated differently  thereafter.  Their seniority would  ordinarily be  reckoned from  the  date  of their absorption  into the  Railway service of Engineers, as promised in  their letters  of appointment.  It was  further pointed  out   that  there  was  a  fundamental  qualitative difference,   linked with  the method of recruitment. Though the minimum  educational qualification  was the  same, those who were recruited directly to the Indian Railway Service of Engineers Class  I were  subjected to stiff and competitive, written and  personality tests.  Only the  very  best  could aspite to  come  out  successful.  The  Temporary  Assistant Officers were not subjected either to a written test or to a personality 935 test but  were selected  on the basis of an interview by the Union Public  Service Commission. In addition to the minimum educational qualification,  three  years’  experience  as  a Civil Engineer  was also  prescribed. Thus  while brilliance was the beacon light which beckoned those aspiring to become members of  the Indian Railway Service of Engineers Class 1, it was  replaced by  experience in the case of those wanting to be  Temporary Assistant  Officers. Again  the  appointing authority in the case of Indian Railway Service of Engineers Class I  was the President while the appointing authority in the case  of temporary  assistant Officers  was the  Railway Board, no  doubt, pursuant  to the  authority given  by  the President. Different courses of training were prescribed for the Indian  Railway Service  of Engineers  and the Temporary Assistant  Officers.  For  the  Indian  Railway  Service  of Engineers the  training was  an intensive  and comprehensive one  designed   to  equip  them  for  higher  posts  in  the Department too  while the  training for  Temporary Assistant Engineers was  a brief  six months’ training intended merely to equip  them for  carrying out  the specific  jobs. In the matter  of  terms  and  conditions  of  service,  while  the provisions of  the Indian  Railway Establishment  Code  were fully applicable  to the Indian Railway Service of Engineers Class 1,  those provisions  were  applicable  to  ’Temporary Assistant Officers’  to the  extent there  was  no  specific provision in their letter of appointment and agreement.      It was  on those  facts and  circumstances that  it was

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held that  there was  no discrimination directed against the temporary Assistant  Officers. We are unable to see how this case can  possible help  the direct  recruits in the present case. It  was suggested  that the officiating Sub-Inspectors of Police  who had  been promoted from the rank of Assistant Sub-Inspectors were  appointed to posts outside the cadre as in Katyani  Dayal s case and it was this argument that found favour with the High Court. There is no basis whatsoever for the supposition  that there  was any  new cadre  or any  new class  of   posts  created   by  the  Government,  known  as officiating Sub-Inspector  of police.  The officiating  Sub- lnspectors of  Police were  obviously appointed to officiate in  permanent   or  temporary   vacancies  in  the  existing subordinate ranks  of the  Calcutta Police,  governed by the same  Rules  and  regulations  as  other  Sub-lnspectors  of police, drawing  the  same  pay  and  discharging  the  same duties. There  was not and there could never be any question of  officiating   Sub-Inspectors  constituting  a  different cadre, class or category by themselves. 936      The next  question is  whether the Rules regulating the recruitment, seniority  etc. Of  Sub-Inspectors of Police in the Calcutta Police make any departure from the general pri- nciple laid  down in  the whole  series of  cases commencing with Patwardhan  to which  we have already referred. Earlier we have  set out  in great  detail all the relevant rules in force from  time to  time. We do not find anything in any of the rules  indicating an intention to depart from the gene - ral principle.  Shri S.  N. Kacker,  learned counsel for the direct recruits  invited our attention to Rule 6 of the West Bengal Services (Determination of Seniority) Rules, 1981 and asked us  to read  it in  the light  of Rule  3  (vi)  which defines ’date  of  joining’  and  stipulates  that  date  of joining shall  be  reckoned  from  the  date  of  continuous officiation in  a post/cadre  or grade.  Rule 6 (i) provides that relative  seniority between  a promotee  and  a  direct recruit shall  be deter  mined by the year of appointment or promotion of  each in  the post, cadre or grade irrespective of the  date of  joining and  Rule 6  (2) provides  that the promotees shall be en-block senior to the direct recruits of the same  year. The submission of Shri Kackar was that ’date of joining’  as defined  in Rule  3 (vi)  was expressly made irrelevant by  Rule 6  (1) for  the purpose  of  determining Seniority between  a promotee  and a  direct recruit  and it meant that  the period  of continuous officiation was not to be taken  into account  in  determining  relative  seniority between promotees  and direct  recruits. The argument though superficially attractive lacks substance.A perusal of Rule 4 and 5  makes the position clear. Rules 4, 5 and 6 constitute a single  scheme. Now  Rule 4  which  deals  with  seniority amongst  direct   recruits,  broadly,  provides  that  their relative seniority  shall be according to the cadre of merit when they  are selected  at  the  same  examination  persons appointed on  the basis  of an  earlier  examination  taking precedence over  those appointed  on the  basis of  a  later examination. Rule  4 further  provides that  where seniority has not  been previously  determined it  shall be determined according to  the actual  date of  joining Rule 5 deals with determination of  seniority of  promotees and broadly again, provides that  seniority of  person appointed  to any  post, cadre of  grade shall be determined from the date of joining such post,  cadre or  grade. which  we know from Rule 3 (vi) means the  date of continuous officiation in the post, cadre or grade.  Then comes  Rule  6  which  prescribes  that  the relative seniority  between a promotees and a direct recruit

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shall be  determined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining and that the promotees 937 shall be  en-blow senior  to the direct recruits of the same year Now,  if Rules  4, 5 and 6 are read together the scheme becomes clear. While date of joining is important to decide, the question  of seniority amongst promotees, it is the year of joining  that is  relevant when  the question of relative seniority is  to be  determined between promotees and direct recruits. If direct recruits are appointed and promotees are promotee in  the  same  year,  all  promotees  are  to  take precedence over  the direct  recruit,  irrespective  of  the actual date  of their  joining but  as amongst the promotees themselves, the  seniority is  to be  based on  the date  of joining. That  according to  us is  the true and appropriate construction of  Rules 4,  5 and 6. We are indeed very happy to  note  that  this  is  precisely  what  the  West  Bengal Government wanted  to do and it was done with a view to give effect to  the judgments of this Court. Paragraph 5 (Il) the affidavit of  Nirupom Som, Commissioner of Police, Calcutta, is worth extracting and it is as follows :-      "5 (1).............."           5 (II) With effect from 11. 3. 81, the West Bengal      Services (Determination  of Seniority) Rules, 1981 were      promulgated under  Article  209  of  the  Constitution.      These rules  were made  following the  judgment of  the      Hon’ble Supreme  Court in  the Patwardhan  v. State  of      Maharashtra case  (AIR 1977  SC 2051).  Previously  the      seniority was  determined under provisions laid down in      the Finance  Department Memo No. 568-F dated 20. 2. 68.      Prior to 20.2.68, there was no codified principles, the      respective Departments  following principles that might      be different in different departments.           " (b) The Hon’ble Supreme Court made observations,      inter-alia as follows in the aforesaid case:-           (i)  The   vice  of   the  seniority   rule  (with      determines  seniority   between  direct   recruits  and      promotees from  the date  of confirmation)  is that  it      leaves the  valuable right  of seniority to depend upon      the mere accident of confir- mation. That under Article      14 and  16 of  the Constitution  is  impermissible  and      therefore, we  must strike  down the said rule as being      unconstitutional." 938           "(ii) We  do not  want to take upon ourselves task      of framing rules of seniority. That is not the function      of this  Court and  frankly it  lacks the expertise and      data-to do  so. We,  however, hope  that the Government      will bear in mind the basic‘ principles that if a cadre      consists of  both perma-  nent and temporary employees,      the accident  of confirmation cannot be an intelligible      criterion for  determining seniority  as between direct      recruits and  promotees. All others factors being equal      continuous officiating  in  a  non  fortuitous  vacancy      ought to  receive due  recognition in terminating rules      of seniority as between person recruited from different      sources,  so  long  as  they  belong  the  same  cadres      discharge similarly  functions and  bear  similar  res-      ponsibilities."           " (c)  In the  light of the aforesaid observations      of the  Hon’ble Supreme Court the provisions in Finance      Department Memo no. 568-F dated 20. 2. 68 were examined      in Consultation with the law officers of Government and      the public  service commission. The West Bengal Service

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    (Determination   of    Seniority)   Rules   1981   were      promulgated with  effect  from  11.  3.  81  after  due      observance  of  all  formalities  and  considering  all      aspects of the matter." Again in paragraph 10 it was said,           "10... I  submit that  in the  instant case it can      hardly be  disputed that  both the  direct recruits  as      well as the promotees Sub-lnspectors of Police form one      class. They  are both  known by  the same  designation,      they have  the same  scales of  pay, they discharge the      same  functions,   and  the  posts  held  by  them  arc      interchangeable. Thus there is nothing to show that the      two groups are kept apart, and both are merged together      in  the   same  class.  It  is  not  competent  to  the      Government thereafter  to discriminate between directly      recruited Sub-lnspectors and promotee Sub-lnspectors in      the  matter  of  further  promotion  to  the  posts  of      Inspectors, as that would be violation of Article 16 of      the Constitution.  It is submitted that the rule of pro      motion  is   inextricable  linked   with  the  rule  of      weightage and  seniority in the lower grade. There is a      well recognised  discrimination between  promotion  and      confirmation 939      and the  tests to  be  supplied  for  the  purposes  of      promotion are entirely different from those that had to      be applied  at the  time of  confirmation. Though drawn      from two  different sources,  the direct  recruits  and      promotees constitute  in  the  instant  case  a  single      integrated cadre. They discharge in dentical functions,      bear similar  responsibilities  and  acquire  an  equal      amount of  experience in  their respective  aisignment.      The  superseded   principles   for   Determination   of      Seniority denied  to the promotees the benifit of their      long  and   valuable  experience.  If  there  was  some      intelligible grounds  for  this  differentiation  being      nexus with  efficiencies in  public services,  it might      perhaps  have   been  possible   to  sustain   such   a      classification. Confirmation  is one  of the inglorions      uncertainities of  Government Service  depending within      an efficiency  of the incumbent nor on the availability      of substantive  vacancies. The  vice of  the  seniority      rule  (which   determines  seniority   between   direct      recruits and  promotees) from  the date of confirmation      is that  it leaves  the valuable  right of seniority to      depend upon  the mere  accident of  confirmation.  that      under  Article  14  and  16  of  the  constitution,  is      impermissible. If a cadre consist of both permanent and      temporary  employees,   the  accident  of  confirmation      cannot be  an intelligible  criterion  for  determining      seniority as between direct recruits and promotees. All      other facts  being equal  continuous officiating  in  a      non-fortuitous vacancy ought to receive due recognition      in determining  rules of  seniority as  between persons      recruits from different sources, so long as they belong      to the  same cadre  discharge similarly  functions  and      bear similar responsibilities." We think  it is  needless to  further dilate  on this  topic except to express our appreciation of the stand taken by the West Bengal Government in these paragraphs.      The  final  submission  of  Mr.  Kacker  was  that  the appellants had never appeared at the prescribed examination, had never  been called  before the  Selection Board  and had never been  sent to  the Police  Training College.  They had never gone  through the  selection process prescribed by the

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Rules and could not therefore have been validly appointed as Officiating Sub-lnspectors  of Police  or confirmed  as Sub- lnspectors of Police. The appellants, at least two 940 of them,  have been  officiating as Sub-Inspectors of Police since almost  three  decades  and  even  confirmed  as  Sub- Inspectors of  Police for  a decade.  We are  afraid  it  is rather late in the day for Mr. Kacker to raise this question at almost the final stages of a long drawn out battle. It is true that  in their  writ petition  in the  High Court,  the appellants made the barest of allegations in regard to their process of  selection which  they went  through before  they were promoted  to the rank of Sub-lnspectors of Police. They had said,           "After passing  the departmental  examination  for      pro  motion   to  the   rank  of   Sub-Inspector,  your      petitioners were declared fit for promotion to the rank      of Sub-Inspector and your petitioners Nos. 1 and 2 were      promoted to  the  rank  of  Sub-Inspector  on  the  6th      August, 1957  while your  petitioner No. I was promoted      to the rank of Sub-lnspector on the 8th September, 1975      " Even this  bare allegation  was not  properly denied  in the counter  filed   by  the  respondents  and  that  was  never seriously put  in issue. At the conclusion of the hearing we called upon  the State  of West  Bengal to  produce all  the relevant records  pertaining to  the service  careers of the three appellants  but we  do not  purpose to  wait for them. Enough for  us to  do justice is it appears from the records now before  us. We  think  that  the  three  appellants  are entitled to have the benefit of their continuous officiating service as Sub-Inspectors of Police counted for seniority as Sub-lnspectors  of  Police.A  writ  will,  therefore,  issue directing the  respondents to  re-fix the  seniority of  the appellants  and   other  officers   similarly  situated   in accordance with what we have said above.           A further  question was  raised by  the appellants      regarding the  validity of the paragraph 1 (iii) of the      Police Regulation,  Calcutta, 1967  which provides that      directly recruited  Sub-Inspectors shall be eligible to      sit  for   the  departmental   examination  to  qualify      themselves for  promotion after  their confirmation and      on completion  of 7 years’ service, including temporary      service in their rank. On the other hand, they complain      that the  rule provides  that department Sub-Inspectors      who have  been  so  appointed  by  promotion  shall  be      eligible  to   sit  for  the  examination  after  their      confirmation in  the rank  of  Sub-lnspectors  provided      that their  total length of service as Sub-lnspector is      not less than 7 years . Seemingly, the rule 941 appears to  treat both  the direct recruits and promotees on the same  footing, but it was submitted by a learned counsel for the  petitioners that in practice the rule works harshly on the  promotees because of the ’inglorious’ uncertainty of the confirmation of the promotees. It was said that the date of confirmation  of a  promotee was  so incurably uncertain, compelling a  promotee to  wait for  more than  a decade for confirmation and  thus he will not be eligible to appear for the qualifying  examination for  promotion as  Inspector  of Police even  though he  has completed  7 years of continuous officiating  service   as  Sub-Inspector  of  Police.  There appears to  be some  legitimate scope  for grievance on this question because of the vagaries of dates of confirmation of promotees, but  we are not inclined to examine this question

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in the  present case as petitions 1 and 2 made no efforts to qualify  themselves   for  promotion  by  appearing  in  the examination after  their confirmation  in 1975  even  though they had  already completed  7 years of service. In the case of the  3rd petitioner,  he had  not even completed 7 years’ service by  the date  of the filing of the writ petition and we are  told that  he had  also now retired from service. In the circumstances,  we do  not think it necessary to examine this question.  The appeal  is, therefore,  allowed  in  the manner and  to the  extent indicated. Such other benefits to which the  appellants are entitled under the judgment of the High Court  will remain  uneffected. The appellants will get their cost, which we quantify to Rs. 5, 000. N. V. K.                                    Appeals allowed. 942