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CASE NO.: Appeal (civil)  6383 of 2003

PETITIONER: Sankar Deb Acharya & Ors

RESPONDENT: Biswanath Chakraborty & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: H.K.SEMA & P.K.BALASUBRAMANYAN

JUDGMENT: J U D G M E N T

WITH CIVIL APPEAL NO.6384 of 2003 The State of West Bengal & Ors.                         \005Appellants Versus Biswanath Chakraborty & Ors.                            \005Respondents

H.K.SEMA,J.

               The challenge in these two appeals is to the  judgment and order dated 11.12.2002 passed in  W.P.S.T.No.1044 of 2002 by the Division Bench of the  Calcutta High Court.                  Civil Appeal No. 6383 of 2003 has been filed by  Sankar Deb Acharya & Ors. and Civil Appeal No.6384 of 2003  has been filed by the State of West Bengal & Ors. both against    Biswanath Chakraborty & Ors.  Both the appeals raise a  common question of law and as such they are being disposed  of by this common judgment.                     We have heard the parties at length.

               Mr.Raju Ramchandran, learned senior counsel  appeared for the appellants in Civil Appeal No. 6383 of 2003  and Mr. Altaf Ahmed, learned senior counsel, appeared for the  respondents.   We have also heard Mr.Ranjit Kumar, learned  senior counsel for the appellants in Civil Appeal No. 6384 of  2003 and Mr. Tapas Ray, learned senior counsel, for the  respondents.                  These two appeals have a chequered history.   Avoiding prolixity, we may state few facts strictly for the  purpose of disposal of these two appeals.  As the question of  facts and law raised are common, we are taking facts from  Civil Appeal No.6383 of 2003.                 The dispute raised in these two appeals is with  regard to inter se seniority and promotions of the appellants  and the private respondents, under the applicable rules,  namely the West Bengal Services (Training & Examination)  Rules, 1953, as amended, the West Bengal Services (Revision  of Pay and Allowances) Rules, 1970 and the West Bengal  Services (Appointment, Probation & Confirmation) Rules,  1979, where according to the scheme of service rules the  criteria for promotion is merit cum seniority and whether the  private respondents can be made seniors to the appellants  solely on the ground that they joined the service earlier to the  appellants’ date of joining.                    The facts, which are not disputed, are thus: (a)     The appellants and private respondents are  direct recruits at entry scale 17.  The next

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promotion is to scale 18 and then to  scale 19.   (b)     Private respondents joined the duty earlier than  the appellants’ date of joining.

(c)     The appellants passed the departmental  examination and were confirmed in service in  terms of rules prior to the private respondents.                           The two charts showing the detail of respective  dates of joining the duty and passing of the departmental  examination and confirmation by the appellants and private  respondents are as under:

A. POSITION OF APPELLANTS Sl.No. Name of  Appellants Date of  Joining  Date of  passing  Departmental  Examination Date of  Confirmation 1 Sankar Dev  Acharaya 07.03.79 26.06.83 26.06.83 2. Gaur Hari  Khanra 17.06.80 01.12.85 01.12.85 3. Pradip  Kr.Ghosh 12.05.80 29.12.82 29.12.82 4. Niranjan  Das 12.06.80 13.01.85 13.01.85 5. Sandip  Kr.Bisnu 18.08.81 29.12.82 18.08.83 6. Asit Ranjan  Maity 04.09.81 01.12.85 01.12.85

B. POSITION OF PRIVATE RESPONDENTS Sl.No.

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Name of  Respondents Date of  Joining  Date of  passing  Departmental  Examination Date of  Confirmation 1. Biswanath  Chakraborty 10.1.78 16.12.88 16.12.88 2. Goutam Mitra 24.5.77 21.11.91 21.11.91 3. Anath  Bandhu  Biswas 5.5.78 5.6.92 5.6.92 4. Shyamapada  Sarkar 20.5.77 26.11.92 26.11.92 5. Samir Kumar  Ganguly 27.3.76 16.12.88 16.12.88 6. Haider Ali 3.2.78 16.12.88 16.12.88 7. Chunilal Ray 1.12.76 16.12.88 16.12.88 8. Subhijit  Sarkar 9.9.77 16.12.88 16.12.88 9. Ashis  Kr.Ghosh (1) 20.6.77 29.12.82 29.12.82 10. Debabrata  Das

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20.5.77 26.11.92 26.11.92 11. Dilip Kr.Dutta 19.7.79 16.12.88 16.12.88 12. Dinendra  Kr.Chandra 1.6.77 1.6.84 1.6.84 13. Amarendra  NathBhowmik 13.1.78 16.4.94 16.4.94 14. Ramesh  Ch.Sarkar 16.7.77 26.11.92 26.11.92 15. Subhendra  Bikash Mallik 28.7.78 1.6.84 1.6.84 16. Bejoy Kumar  Banerjee 2.7.78 16.12.88 16.12.88 17. Bidhan  Ch.Saha 28.12.76 21.11.91 21.11.91 18. Bimal Kr.  Bhttacharjee 1.6.77 31.5.85 31.5.85 19. Prem Das Roy 12.7.77 5.6.92 5.6.92 20. Anindya  Kumar Mitra 1.6.77 16.5.95 16.5.95 21. Prabir  Kr.Dutta 2.5.78

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1996 confirmed 22. Asit Baran  Mudi 28.8.76 5.6.92 5.6.92 23. Mrinal Kanti  Sarkar 31.12.76 25.11.83 25.11.83 24. Amitava Saha 3.6.77 27.11.97 27.11.97 25. Nil Kamal  Saha 16.4.80 5.6.92 5.6.92 26. Md.Haider 16.9.76 21.11.91 21.11.91 27. Shamal Kanti  Bal 1.8.79 16.12.88 16.12.88 28. Paresh Nath  Das 8.12.76 1.6.84 1.6.84 29. Abdus Suni  Nasir 19.7.76 16.12.88 16.12.88 30. Kamal  Sengupta 22.1.75 1.6.84 1.6.84 31. Ratan Kumar  Sandhukhan 18.8.76 21.7.91 21.7.91 32. Sekhareswar  Kundu 6.8.77 16.12.88

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16.12.88 33. Janardan  Mondal 26.4.78 18.5.88 1.5.88 34. Jaydeb  Biswas 23.8.78 17.11.86 17.11.86 35. Anil Kumar  Kesh 9.6.78 5.6.92 5.6.92 36. Golam  Sarwar 1.6.77 16.12.88 16.12.88 37. Habibul  Ahsan 1.7.77 5.6.92 5.6.92 38. Rathindra N.  Bhattacharjee 30.6.76 5.6.92 5.6.92 39. Subhas  Ch.Das 10.6.77 16.6.94 16.6.94 40. Supriya  Ranjan  Ghosh 17.12.77 Not yet  passed Not yet  confirmed 41. Narayan  Ch.Ghosh 17.12.74 28.5.81 28.5.81 42. Subodh  Kr.Sarkar 3.5.78 26.11.92 26.11.92 43.

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Ashim Kumar  Mitra 23.7.79 17.5.87 17.5.87 44. Ananda  Mohan  Chakraborty 6.3.79 1.6.86 1.6.86 45. Asish Kumar  Ghosh(II) 20.6.77 17.11.94 17.11.94

46. Jaydev Jana 27.5.77 26.6.83 26.6.83

               To answer the aforesaid questions, it will be relevant  to have a quick survey of the scheme of the rules framed from  time to time.  The Government of West Bengal framed the  rules called Training and Examination Rules, 1953           (hereinafter the 1953 rules) as amended.  The rules inter alia  provided that a government servant appointed on probation,  remains a probationer until confirmation.  A probationer  would have to pass before confirmation any test or  examination, prescribed as a condition precedent for  confirmation in the service. It also provided that no officer  shall be eligible for promotion unless he has completely passed  the departmental examination.  Then came the West Bengal  Services (Revision of Pay & Allowances) Rules. 1970  (hereinafter the ROPA Rules).  It also provided that all  appointment to a permanent post under the Government  would be on probation, which shall include West Bengal Food  & Supplies Service.                     The Government of West Bengal framed rules called  West Bengal Services (Appointment, Probation & Confirmation)  Rules, 1979 (hereinafter the 1979 rules).  The rules inter alia  provided that where the rules for confirmation required  passing of any academic, departmental or other examination  before confirmation, the 1979 Rules would not be construed to  relax to such requirement.                 The Government of West Bengal framed rules called  West Bengal Services (Revision of Pay & Allowances) Rules,  1981 (hereinafter the  ROPA Rules, 1981).  On 5.8.1981 the  Government of West Bengal announced a Promotional Policy  for the state government employees inter alia provided that the  posts in the scale 18 and 19 under ROPA Rules, 1981 would  be filled through promotion, on the basis of merit cum  seniority from within the respective service and departmental  cadres.  In West Bengal Food & Supplies Services cadre, 220  posts were redistributed as follows, 150 posts in scale 17, 61  posts in scale 18 and 9 posts in scale 19.                     Thereafter, vide memo dated 12.10.1983, the  Government imposed an additional condition prescribing a  minimum period of six years’ service in scale 17 for promotion  to scale 18 and a minimum combined period of 13 years’ in  scale 17 and 18 before promotion to scale 19.

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               The additional condition imposed vide memo  12.10.1983 and the order passed thereunder were challenged  by filing Writ Petition being C.O.No.590(W) of 1988 by some of  the private respondents herein along with some other persons  before the High Court.  The only contention raised in the  application was that the additional condition sought to be  imposed was discriminatory, as the same had not been  imposed in the cases of other state government Services.  The  learned Single Judge by an order dated  13.2.1990 allowed the  Writ Petition and quashed the Government Memo dated  12.10.1983 imposing additional condition.  The learned single  Judge further directed that the respondents be given the  higher scale 18 and 19 on the basis of their respective merit- cum-seniority w.e.f. the date when the promotion policy came  into effect.  Consequent to the order aforesaid the Government  issued a fresh promotion order dated 11.9.1991.  This,   however, dispensed with the compliance of the rules about  determination of merit-cum-seniority, which mistake was later  acknowledged by the State Government.   The mistake was  corrected by an order dated 19.9.1991.  By the said order the  Government directed the compliance with the relevant service  rules before giving effect to the promotion order dated  11.9.1991 and directed that no payment of arrear dues be  made to officers promoted before confirmation.                   The appellants being aggrieved by the order dated  11.9.1991 moved Writ Petition being C.O.2031 (W) of 1993  before the High Court of Calcutta wherein the officers covered  by the promotion order dated 11.9.1991 were also impleaded.   In the Writ Petition the appellants raised a contention amongst  others that unequals had been treated equally.  An injunction  sought for was rejected.  An appeal being F.M.A.T.589 of 1993  was preferred before the Division Bench of the Calcutta High  Court which was disposed of by the Division Bench on  27.11.1995 directing the State to consider the case of all  eligible candidates including the appellants and others strictly  in accordance with law and the relevant rules as applicable.   The aforesaid direction of the Division Bench was sought to be  complied with by a memo dated 16.2.1996.  However,  promotion order dated 11.9.1991 was left undisturbed.  The  same was challenged by some of the appellants before the  Administrative Tribunal in O.A.No.759 of 1996 seeking proper  implementation of the Division Bench order and also seeking  refixation of seniority of officers.   The Tribunal disposed of  O.A.No.759 of 1996 by an order dated 17.11.1997.  Being not  satisfied with the order of the Tribunal the appellants  challenged the order of the Tribunal by filing a Writ Petition,  WPST No. 8 of 1998 before the Division Bench of the High  Court in which 15 respondents illegally promoted by an order  dated 11.9.1991 were also impleaded amongst others.  It was  contended before the Division Bench that non-observance of  the promotion rules regarding eligibility was illegal but the  Tribunal had failed to address the said issue.                       After referring to Rule 5(b) of the 1979 Rules, the  Division Bench came to the following conclusion: "Having heard the learned Counsel, we are of  the opinion that keeping in view the fact that  in the instant case confirmation is not to be  granted automatically or being not a fortuitous  circumstances, as a result whereof the  seniority of the respective employee would be  normally determined, from the date of their  initial appointment, this aspect of the matter  may also be considered by the authorities  concerned afresh.  Such consideration may be  made at an early date, and preferably within a

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period of 8 weeks from the date of  communication of this order.  The order of the  learned Tribunal is modified to the  aforementioned extent and the writ petition is  disposed of".

               It appears that pursuant to a writ of mandamus  issued by the Division Bench on 5.5.2000 the Government of  West Bengal issued a fresh promotion order under the memo  dated 28.3.2001.  In the said memo the Government has  acknowledged the mistake committed in the order dated  11.9.1991 in ignoring the Rules for the determination of merit- cum-seniority.  In the said order the Government has  considered the entire rules relevant for determination of merit- cum-seniority and grant of higher scale to the eligible officers  and the same order was passed in accordance with the Rules.                 We are surprised to notice that aggrieved party  (respondents herein) again approached the Tribunal in  O.A.No.636 of 2001 and the Tribunal by its order dated  10.4.2002 set aside the Government order dated 28.3.2001  which was passed, as already noticed, pursuant to the writ of  mandamus issued by the Division Bench of the High Court.   The Tribunal was of the view that effected persons have not  been heard and the matter be remanded back to the  Government for fresh consideration.  We are unable to  subscribe to the view expressed by the Tribunal.  Firstly, since  the order of 28.3.2001 was issued pursuant to a mandamus  issued by the Division Bench of the High Court, the Tribunal  should not have interfered.  Secondly, before the High Court  the interest of the present respondents were adequately  represented and there was no question of passing an order  without hearing the parties who had been adversely affected.                 Aggrieved by the order of the Tribunal of remand the  private respondents herein filed WPST No.1044 of 2002 before  the Division Bench of the Calcutta High Court.  The Division  Bench of the High Court after hearing the parties by the  impugned judgment and order set aide the directions of the  Tribunal of remand of the matter for re-consideration.  The  High Court was of the view that the controversy has been  finally settled in terms of the judgment and order passed in  CO.No.590(W) of 1988 by learned single Judge, affirmed in  appeal.  The High Court further directed the authorities to act  in terms of the promotion order dated 11.9.1991 by setting  aside the order dated 28.3.2001 which was issued pursuant to  a writ of mandamus issued by the Division Bench of the High  Court.                  The High Court order is assailed mainly on two  grounds (a) that the directions in the impugned judgment run  counter to the Rules and (b) that the impugned judgment is  contrary to earlier orders passed by the co-ordinate Bench of  the High Court. In short, the impugned judgment of the High  Court has set-aside two orders of the co-ordinate benches,  passed earlier.                    The impugned judgment of the High Court has  relied on the judgment in C.O.No.590(W) of 1988.  As already  noticed, the judgment in the aforesaid matter was confined to  the imposition of additional condition, which has no relevancy  in the facts of the present controversy.   The High Court also  erred in directing to restore the promotion order dated  11.9.1991, which was set aside earlier by co-ordinate bench  by its judgment dated 27.11.1995 in FMAT No.589 of 1993.   The High Court was also clearly in error in setting aside the  order dated 28.3.2001 which was passed pursuant to a writ of  mandamus issued by the co-ordinate bench earlier in WPST

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No.8 of 1998 on 5.5.2000.   In any event, in our view, the  impugned order of the High Court is unsustainable in law.                 We now proceed to make a quick survey of the set of  rules, which are relevant for the purpose of disposal of these  appeals.  At the risk of repetition the appellants and  respondents were recruited through the West Bengal Public  Service Commission on temporary basis.  It is also not  disputed that the respondents were appointed earlier to the  appointment of the appellants and joined duty earlier than the  appellants’ date of joining.  It is also not disputed that the  appellants passed departmental examination prior to the  private respondents.  The appellants also completed the period  of probation and were confirmed at an earlier point of time  than the respondents.  The scheme of the rules, which we  shall be dealing with presently, provides probation, passing of  departmental examination and confirmation after the  departmental examination and completion of probation.  The  Rules also provide that the consideration is merit-cum- seniority.         The 1953 Rules deal with General Rules regulating  the Probation and Training of Officers appointed on probation  to IAS, IPS, and West Bengal State Services.          Rule 1(ii) defines "Probationer" as a Government  servant appointed on probation and remains a probationer  until he is confirmed.             Rule 3 deals with assigning special reasons, if the  appointing authority so decides to extend a probationer’s  prescribed period of probation not exceeding half the  prescribed period.         Rule 4 deals with the completion of period of  probation or the extended period of probation, as the case may  be, and provides that the appointing authority shall record an  order either confirming the probationer from such date as it  may deem fit, subject to the restrictions prescribed in rule 8,  or discharging him.                  Rule 8 deals with the confirmation.  It reads:-

"A probationer may not be confirmed until he  has served on probation, for the period  prescribed under rule 2, passed any test or  examination the passing of which may by rule  be prescribed as a condition of confirmation in  the service or post in which it is proposed to  confirm him, and been declared by the  appointing authority to be fit for confirmation".  

Note: The departmental examinations  prescribed in Chapter II-VI or parts thereof as  are applicable to particular service or posts  should be considered to be examinations, the  passing of which is a pre-condition of  confirmation under this rule.    

               Rule 13 in Chapter II provides that no probationer  will be confirmed until he has passed completely the  departmental examination prescribed for him.  Failure to pass  the examination within the probationary period will make him  liable to discharge.                                             Part 20 of the Rules deal with the Officers of the  Departments of Food and of Supplies.  Clause 1 deals with the  requirement to pass a departmental examination as prescribed  under the Rules of the Officers of Department of Food and of  Supplies and above the rank of Chief Inspectors.  There is no  dispute that both the appellants and respondents are above

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the rank of Chief Inspectors and they are required to pass the  departmental examination prescribed under the Rules in Part  20.                   Rule 10 of Part 20 provides that no officer will  ordinarily be eligible for promotion unless he has passed the  examination completely.                  Then comes West Bengal Services (Appointment,  Probations and Confirmation) Rules, 1979.  Rule 5 of the  Rules deals with the appointment on probation and  appointment on permanent basis.  It reads:-  "R.5 Appointment on probation and  appointment on permanent basis \026 (1) A  Government employee-

(a)     shall be deemed to be on probation  on completion of continuous  temporary service for two years  after  his initial appointment in a post of  service or cadre; (b)     shall be confirmed and made  permanent on satisfactory  completion of the period of  probation.  Where passing of any  departmental examination is  essential before confirmation, the  provisions of Chapter I of the  Services (Training and Examination)  Rules, West Bengal, shall have to be  complied with.    (2) Except as otherwise provided elsewhere in  these rules, the period of probation shall be  one year.  (3) No formal declaration shall be necessary in  respect of appointment on probation.   (4) On completion of the period of probation  the appointing authority shall either issue  formal declaration making the probationer  permanent or take such action as may be  considered necessary in terms of the  provisions of Part A of Chapter 1 of the  Services (Training and Examination) Rules,  West Bengal, within six months from the date  of completion of the period of probation, or of  the extended period of probation, if any, and  the appointing authority shall ensure that  confirmation on satisfactory completion of the  period of probation is not delayed in any case.

      Rule 6(2) provides inter alia that where the Rules for  confirmation required the passing of any academic,  departmental or other examination before confirmation, the  1979 Rules would not be construed to relax such requirement.                  The mandate of the Rules, as noticed above, is that  the Government employees shall be deemed to be on probation  on completion of continuous temporary service for two years.   The Rule further mandates that an employee shall be  confirmed and made permanent on satisfactory completion of  period of probation and where passing of any departmental  examination is essential before confirmation, the provisions of  the Services (Training & Examination) Rules shall be complied  with.   Sub-Rule (4) of Rule 5 further mandates that on  completion of the period of probation the appointing authority  shall issue a formal declaration making the probationer  permanent.                 Rule 7 deals with repeal and savings.

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               We may, at this stage, deal with one of the  arguments of Mr. Altaf Ahmad, appearing for the respondents.   Referring to the appointments of the respondents, it is  contended by Mr. Altaf Ahmad that the appointments of the  respondents were made through the examination conducted  by the West Bengal Public Service Commission and on the  recommendation of the Commission.    According to him,  therefore, the appointments of the respondents were not on  probation and, therefore, 1979 Rules would have no  application.  We are unable to countenance  this contention.   No doubt, the respondents were appointed to the service after  the examination conducted by the Public Service Commission  and recommended by the Commission, however, the  appointments were purely temporary and terminable at the  discretion of the Government with one month’s notice on  either side or on payment of one month’s pay in lieu thereof.   Rule 5(1)(a) as quoted above contemplates two conditions.   Firstly, that an employee appointed on temporary service after  serving for two years after his initial appointment in post of  service or cadre, shall be deemed to be on probation and  secondly, the words "employee shall be deemed to be on  probation" visualizes the pre 1979 situation, if one were  working on temporary basis.   We have noticed that the  respondents were appointed on temporary basis and not on  permanent basis and therefore the services of the respondents  would fall within the mischief of Rule 5 of the 1979 Rules  where the requirement of passing of the departmental  examination is essential before confirmation by a declaration  by the appointing authority in that behalf.                     The next question to be considered is the criteria of  merit-cum-seniority in the promotion to scale 18 and scale 19.   By a circular dated 5.8.1981 the Government has brought out  statement of promotion policy.  Paragraph 4 of the said  circular reads:-  "4.  In the case of the State Services, including  the State Civil Service, State Health Service  and the State Engineering Service, the number  of posts currently available in Scales 18 and  19 are being increased with effect from April 1,  1981, those posts will be filled through  promotion, on the basis of merit cum seniority,  from within the respective Service and  Departmental Cadres.  The rearrangement of  posts within each cadre is listed in the  Annexure".                       (emphasis supplied)

               The promotion policy announced by the  Government would clearly disclose that the consideration is  merit-cum-seniority.  The streams of Rules as referred to  above and considered, also contemplates passing of  departmental examination as a condition precedent for  completion of probation and confirmation. In the scheme of  Rules and policy of promotion, the consideration being merit  cum seniority, the sole basis of judging merit is the passing of  the departmental examination.                  In Commissioner of Police    vs.  R.S. More, (2003)  2 SCC 408, this Court held that confirmation of service on a  particular post is preceded by satisfactory performance of the  incumbent unless service rules otherwise prescribe.                   In High Court of M.P.  vs.  Satya Narayan Jh  avar, (2001) 7 SCC 161, this Court held in paragraph 11 at  scc p.169 as under:-  "11. The question of deemed confirmation in  service jurisprudence, which is dependent  upon the language of the relevant service

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rules, has been the subject matter of  consideration before this Court, times without  number in various decisions and there are  three lines of cases on this point. One line of  cases is where in the service rules or in the  letter of appointment a period of probation is  specified and power to extend the same is also  conferred upon the authority without  prescribing any maximum period of probation  and if the officer is continued beyond the  prescribed or extended period, he cannot be  deemed to be confirmed. In such cases there is  no bar against termination at any point of time  after expiry of the period of probation. The  other line of cases is that where while there is  a provision in the rules for initial probation  and extension thereof, a maximum period for  such extension is also provided beyond which  it is not permissible to extend probation. The  inference in such cases is that the officer  concerned is deemed to have been confirmed  upon expiry of the maximum period of  probation in case before its expiry the order of  termination has not been passed. The last line  of cases is where though under the rules  maximum period of probation is prescribed,  but the same requires a specific act on the  part of the employer by issuing an order of  confirmation and of passing a test for the  purposes of confirmation. In such cases, even  if the maximum period of probation has  expired and neither any order of confirmation  has been passed nor has the person concerned  passed the requisite test, he cannot be deemed  to have been confirmed merely because the  said period has expired".                 When the principle of merit cum seniority is  applied, it is now well settled principle that great emphasis is  on merit and ability and seniority plays a less significant role.   Seniority has to be given weightage only when merit and  ability are approximately equal. [ See: B.V.Sivaiah   vs.   K.Addanki Babu, (1998) 6 SCC 720,  Central Council for  Research in Ayurveda & Siddha   vs. Dr.K.  Santhakumari, (2001) 5 SCC 60 ].                 It is, however, contended by Mr. Altaf Ahmad that  seniority be linked with date of initial appointment and not  from the date of passing the departmental examination.   According to him, if one passes departmental examination  later in point of time, his seniority must relate back to the date  of original appointment.  According to him, under merit cum  seniority the test is merit and once an incumbent passes the  examination he qualifies the test of merit and, therefore, his  seniority relates back to the date of entry in the service.   To  accept such contention would negate the mandate of the  Rules.                 Mr.Altaf Ahmad has also drawn our attention to the  rules called the West Bengal Service (Determination of  Seniority) Rule, 1981.  He particularly referred to Rule 4 of the  Rules.  Rule 4 reads:- "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  determined by the order of merit in which they

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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 appointment on the result of a  subsequent selection;

       Provided that where appointment of  persons initially made otherwise than in  accordance with the relevant rules is  subsequently regularized in consultation with  the Commission, where necessary, seniority of  such persons shall be determined from the  date of regularization and not from the date of  appointment.  The inter-se seniority amongst  such persons shall, however, depend on the  date of appointment of each such person in the  department or office concerned;    

       Provided further that if any person  selected for appointment 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  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 of 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, persons 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 post, 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 Professor in History,  Economics, Physics, Chemistry etc. is  concerned, seniority shall be determined from  the date of joining.  

               On a fascicule reading of the Rule, it appears to us  that the said Rule has no application in the facts of the  present case.  Rule 4, in our opinion, deals with the  appointment directly through the competitive examination on  permanent basis.  There is no quarrel with the provision of the  Rule that if the Commission recommends and appoints the

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incumbents on permanent basis, such seniority has to be  determined in the order of merit in which they are selected for  such appointment on the recommendation of the Commission.   As already noticed, the respondents were not appointed on  permanent basis though appointed through the examination  conducted by the Commission.  They were appointed purely on  temporary basis terminable with one month’s notice on either  side or on payment of one month’s pay in lieu thereof. In our  view, therefore, Rule 4 is of no assistance to the respondents’  case.         Mr.Altaf Ahmad has also referred to Rule 10 of 1953  Rules.  Rule 10 of 1953 Rules reads:- "10. When a probationer is confirmed  otherwise than with effect from the date of  expiry of the period of probation prescribed  under rule 2, he will unless it be otherwise  provided by rule draw as from the date of effect  of his confirmation the pay he would have  drawn had he been confirmed on the expiry of  the prescribed period of probation, and unless  it be otherwise provided by rule, the whole of  his services from the date of his appointment  on probation shall count for increments".  

 In our view, Rule 10 will be of no assistance to the  respondents’ case.  Rule 10 simply provides that if an  incumbent is confirmed on the expiry of the prescribed period  of probation and unless the rules provided otherwise, the  whole of his service from the date of his appointment on  probation shall count for increments.                   Mr.Altaf Ahmad also referred to Notification dated  21.12.1966 framing the Rules under proviso to Article 309 of  the Constitution regulating the recruitment to the West Bengal  Food and Supplies service.  According to him, they were  appointed under 1966 Rules and there is no provision in the  said rules, which required the passing of the departmental  examination.   According to him, requirement of passing the  departmental examination was introduced for the first time by  a Notification dated 10.1.1995.   This contention is factually  incorrect.    In fact on earlier occasion a Notification dated  21.4.1977 was issued, which required that candidates  appointed by direct recruitment against posts of West Bengal  Food and Supplies Services and subordinate Food and  Supplies services Grade-I would be required to pass the  departmental examination to qualify for being declared quasi  permanent in status and for the purpose of confirmation and  the subject of the departmental examination was also  prescribed.  The Notification dated 10.1.1995 only brought an  amendment and it is not correct to say that it was for the first  time that requirement of departmental examination was  introduced on 10.1.1995.                   By Notification dated 29.6.1985, the Government of  West Bengal, Department of Food and Supplies, brought out  18 Officers of the Food and Supplies, who have completely  passed the departmental examination.  In serial No.5 one  Ratan Kumar Mukhopadhayay is shown to have passed the  departmental examination on 26.7.77.  Therefore, it is not  correct to say that the requirement of departmental  examination was for the first time introduced by Notification  dated 10.1.1995.                 Mr.Altaf Ahmad referred to the decision of this  Court in Jagidsh Kumar  vs.  State of H.P., (2005) 13 SCC  606, particularly paragraph 16.  The aforesaid decision is not  relatable to appointment on probation and will be of no help to  the respondents’ case.  

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       On the question of departmental examination vis-‘- vis reckoning of seniority, he has referred to the decision  rendered by this Court in M.H. Patil   vs.  State of  Maharashtra, (1999) 1 SCC 249.  This Court referred to Rule  3, which was relied upon by the appellant in the case; the  same is reproduced as under: "3. Seniority among the Non-Gazetted  Prohibition and Excise Officers and Clerks for  the purpose of confirmation shall be decided  according to the dates of their passing the  departmental examination held after  completion of one year’s continuous service in  the Prohibition and Excise Department".

This Court accepted the view of the department that  the seniority lists were prepared on the basis of continuous  officiation right from 1977 onwards.  The seniority lists so  prepared were not disturbed, notwithstanding Rule 3  prescribing the fixation of seniority otherwise. Therefore, no  law has been laid down which can be followed as a precedent.                   There is yet another difficulty to sustain the order of  the High Court.  The High Court has also relied on the  communication dated 31.7.1978 wherein an Assistant  Secretary in a departmental communication  has stated that  none of the direct recruits were working in the department as  Probationary Officers.  Such departmental communication has  no role to play in the face of statutory rules.                   For the reasons aforestated, we are unable to  sustain the impugned order of the High Court.  The judgment  and order dated 11.12.2002 passed in WPST No.1044 of 2002  is set aside. The Notification dated 28.3.2001 issued pursuant  to a writ of mandamus by the earlier Division Bench of the  High Court is restored.  The appeals are allowed.  No costs.