- (1.) This is an application by several petitioners, who were originally appointed to act as binders. They were appointed between 11th and 31st October, 1947 in the Department of Binding under the Government of West Bengal, Alipore, who are permanent staff of the State of West Bengal enjoying provident fund, annual increment, promotion and other facilities as State Government employees. The question involved in this case is about the seniority between the petitioners and the respondents Nos. 3 to 15. The relevant facts for the purpose of adjudicating this question admittedly are that the petitioners, as I said, who were originally appointed some time on different dates in 1947, were on probations up to 1st January, 1950 and they were confirmed on or about 1st January, 1952 in those posts. The respondents Nos. 1 to 13 were appointed in the year 1947 and they were on probation up to different dates in the year 1950. But they were confirmed on different dates between 1952 and 1953 but the dates of their confirmations were subsequent to the dates of confirmation of the petitioners.
(2.) The question agitated in this application centres around the controversy as to whether the date of appointment as such or the date of confirmation in the post should be considered to be material or relevant for considering their seniority. In this connection my attention was drawn to certain Government orders dated 20th February, 1968 which were regarding the principles of determination of seniority in the various services and posts under the State Government. These principles so far as relevant for my present purpose, inter alia, provide as follows: "(2) Subject to the provision of para 3 below, persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall retain the relative seniority already assigned to them or such seniority as may hereafter be assigned to them under the existing order applicable to their cases and shall en bloc be senior to all others in the grade. Note: For the purpose of these principles (a) persons who are confirmed retrospectively with effect from a date earlier than the issue of these general principles; and (b) persons appointed on probation to a permanent post, substantively vacant in a grade, prior to the issue of these general principles shall be considered to be permanent officers of the grade. (3) Subject to the provisions of para 4 below, permanent officers of each grade shall be ranked senior to persons who are officiating in that grade. (4) Direct Recruits: (a) The relative seniority of all direct recruits recruited through competitive examinations, interview or after training shall be determined by the order of merit in which they were selected for such appointment on the recommendation of the State Public Service Commission or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection: Provided that where persons recruited initially on a temporary basis are subsequently appointed on a substantial basis in order of merit indicated at the time of their temporary appointment, seniority shall follow the order of substantive appointment and not the original order of merit: Provided further that where persons recruited initially otherwise than in accordance with the recruitment rules and whose appointments are subsequently regularised in relaxation of the recruitment rules in consultation with the State Public Service Commission; where necessary, seniority shall be counted from the date of regularisation and not from the original date of appointment. The inter se seniority among such persons will, however, depend on the date of appointment. Note: A question may be raised whether the principle above can be adopted for determining the relative seniority of persons selected either by the State P.S.C. or by other selecting authorities for appointment to different posts in the same grade with different qualification. In so far as such posts are concerned the seniority should be determined from the date of substantive appointment. (b) Seniority will be determined on the basis of the position in the selection list irrespective of the date of joining. If a candidate does not join within two months of the offer of appointment his seniority will count from the date of appointment unless the appointing authority for reasons to be recorded in writing condones the delay "
(3.) According to the 'note', the seniority should be determined in accordance with the date of 'substantive appointment'. Thereafter, it appears that on the 6th May, 1978 an order was issued by the Government which, inter alia, provided as follows: "2. I am now directed by order of the Governor to say that after careful consideration of the matter the Governor has been pleased to direct that action be taken on the following lines : I. (a) Those employees who have been already confirmed in the posts to which they were earlier promoted or appointed after superseding their senior colleagues need not be disturbed. (b) The employees who were superseded by their junior colleagues as in (a) above should substantively be promoted to higher posts or appointed to Selection Grade posts, as the case may be, by creation of an equivalent number of such posts on substantive and supernumerary basis. (c) The seniority of the employees thus promoted or appointed substantively to the supernumerary posts should be reckoned with effect from the date on which the last of the employees in (a) above was confirmed in the Cadre concerned. (d) The substantive supernumerary posts created as in (b) above will be subject to future adjustment and during the continuance of the supernumerary posts an equal number of posts belonging to the cadre lowest in the ladder of feeder posts will be kept vacant. Example: If a substantive post of Head Assistant is required to be created, a post of lower Division Clerk will remain vacant. (e) Sub-paras (a), (b), (c) and (d) above would equally apply, mutatis mutandis, to these cases where the confirmation in supersession of senior colleagues was made in basic posts. (f) Where the supersession of senior colleagues was made in consultation with the P. S. C. action as indicated in (b) and (c) above should also be taken in consultation with the P. S.C. II. (a) Those employees who are still confirmed in the posts (including Selection Grade posts) to which they were earlier promoted or appointed after superseding their senior colleagues should be reverted to their former posts in the lower rank by necessary cancellation of the earlier orders of their officiating promotion appointment.";