Decided on February 10,1976

UNION OF INDIA Respondents


- (1.)THE Rules mentioned above have been referred to the Division Bench by A. K. Sen, J. in view of the questions of public importance involved therein. The petitioners in Civil Rule No. 5165 (W) of 1970, who are lower Division employees in the Government of West Bengal. have challenged as ultra vires certain amendments made with retrospective effect in the recruitment Rules of the clerical services of the West Bengal secretariat as also other notifications, rules and regulations framed under proviso to Article 309 and Article 320 of the Constitution. The ground for challenge, inter alia, is that the said amendments have been made for the specific purpose of regularising the temporary appointments otherwise invalid of about 1100 Lower Division clerks and typists with effect from november 1, 1966. These employees by another Rule framed under proviso to Article 309 of the constitution were also conferred seniority from the said date to the great prejudice of the petitioners. The said employees in their turn have challenged the seniority rule in Civil Rule No. 1330 (W)of 1971 claiming seniority from the dates of their respective appointments. Common questions of fact and law have thus arisen in these two rules which accordingly have been heard analogously and will be governed by this judgment.
(2.)BY notification No. 2083f/f/is8 (30)54 dated July 21, 1954, under powers conferred by the proviso to article 309 of the Constitution, the governor of West Bengal framed rules for the regulation of recruitment to the clerical establishment of the West bengal Government Secretariat and its certain other officers. As to lower division clerks, Rule 7 provided the method of recruitment. Rule 7 is as follows:
"7. Method of recruitment -Except as provided in rules 8 and 9 of these rules vacancies in the lower Division of the Secretariat and of office to which these rules apply will be filled up by means of a competitive examination to be held by the Public Service Commission, West Bengal. "
The said Rules are known as "rules for the regulation of recruitment to the clerical services of the Secretariat and certain other offices of the Government of West Bengal" hereinafter referred to as the Recruitment Rules, 1954.
(3.)RULE 8 provides that a specific percentage of vacancies is to be filled up by the said Public Service Commission, West Bengal, hereinafter referred to as PSC, from candidates qualified in clerkship examination and holding temporary and officiating vacancies for specified years. Rule 9 provides for promotion in specified percentage of assistants to lower division posts in the Secretariat to be made by the department.

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