Shyamal Kanti Das vs Sankar Kumar Ghosh and Ors

Heard learned counsel for the parties.

This appeal has been filed against the judgment and order of the High Court dated 04.04.2008 by which judgment C.O.S.T No.14 of 2006 filed by the respondents was disposed of while setting aside the order of the Tribunal and directing for legal remembrance to prepare a fresh gradation list for Lower Division Assistant following the proposition of law as noted in the judgment. Aggrieved by the direction of the High Court, the appellant, who was respondent before the High Court, has come up. The appellant before us was appointed temporarily to officiate as Lower Division Clerk by appointment order dated 18.02.1971 for 10 days only. The appointment was extended for further period of one year w.e.f. 01.03.1971 or till PSC candidates report for duty whichever is earlier. Appellant was allowed to continue in that capacity till he was regularized by order dated 14.08.1980. On 27.03.1980 a notification was issued providing that during the period from 19.12.1967 to 08.11.1973 to the posts of Clerks and Typists consultation with West Bengal Public Service Commission was not necessary. Under the order of the High Court, the benefit of services of the appellant, till he was regularized in service, has not been given. Aggrieved by the said judgment this appeal has been filed.

Counsel for the appellant relying on the judgment of this Court in Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others (1990) 2 SCC 715, submits that since the initial appointment of the appellant is followed by regularization, he is entitled to add that period into his seniority. He has relied in paragraph 47(B) which is to the following effect.

"47(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."

Learned counsel appearing for the State as well as private respondents have refuted the submission of counsel for the appellant and submitted that no error has been committed by the High Court in disposing of the writ petition, setting aside the order of the Tribunal. It is submitted that the appellant was not entitled for benefit of the aforesaid period since the said appointment was not even made in accordance with Rules. He has also placed reliance on the judgment of the Direct Recruit Class II Engineering Officers' Association (supra) and  especially on direction 47(A) which is extracted for ready reference:

"47(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority."

The appointment of the appellant was admittedly not through Public Service Commission nor his name was sponsored by the employment exchange. There was no advertisement in the newspaper and it is on the record that only by notice board advertisement he entered into service temporarily initially for a period of 10 days. The appointment of the appellant cannot be said to have been made in accordance with the Rules. Hence, the reliance placed on the judgment of this Court in Direct Recruit Class II Engineering Officers' Association (supra) on para 47B is misplaced. The benefit of seniority could not be claimed when the appointment even if temporary was not made in accordance with Rules.

We do not find any error in the judgment of the High Court setting aside the order of the Tribunal and directing the legal remembrance to redraw the gradation list. Furthermore, it is relevant to notice that under the West Bengal Services Determination of Seniority Rule, 1981, Rule 4 proviso clearly provides that where appointment of persons initially made otherwise than in accordance with the relevant Recruitment Rules and subsequently regularize seniority of such persons shall be determined from the date of regularization and not from the date of appointment. Rule 4 proviso fully supports the submissions made on behalf of the respondents in the present appeal.

We, thus, do not find any error in the judgment of the High Court. The appeal is dismissed.