JUDGMENT 1. THREE Sub Inspectors two of whom are confirmed while the third one is officiating belonging to the unarmed Branch of the Calcutta Police, obtained the present Rule on Writ petition which has since been referred to us under rule 3 Chapter V of the Original Side Rules since another Rule, obtained by another group of Sub Inspectors belonging to the same branch on another writ petition, was directed to he heard analogously with the present Rule, we have heard them as such. We propose to deal with the first of the writ petitions, as aforesaid, first. 2. AS recruitment to the rank to which the petitioners belong is made from two sources, namely, direct recruits and promo tees, the primary dispute that has been raised In this writ petition by the three petitioners who are promotees, is with regard to relative seniority vis-a-vis the direct recruits and consequent benefits flowing therefrom. All the three petitioners have risen from lower ranks. While petitioner Nos. 1 and 2 were appointed to officiate as Sub Inspectors in the year 1957 petitioner no. 3 was so appointed in the year 1975. According to the petitioners neither the quota rule nor the rules regarding recruitment had been followed in their true spirit in making recruitment to the rank of Sub Inspectors and long years of service rendered by them as officiating Sub Inspectors have not been counted either for confirmation or for seniority They claim that the quota rule should have been applied at the intial stage of recruitment irrespective of whether the posts to which recruitment was being made were permanent or temporary. So far as recruitment by promotion is concerned, it is claimed that such pro motion should always be made only from the rank of Assistant Sub Inspector and an assistant Sub Inspector once promoted even if to officiate as Sub Inspector must be confirmed in due course and seniority must be determined having regard to the date from which he continues to officiate. The petitioners have made out a grievance that contrary to the rules, the promotees from the rank of Assistant Sub Inspectors are being first promoted to officiate as officiating Sub Inspectors and then in filling up the permanent vacancies the authorities are applying the quota rule when such vacancies are being filled up by direct recruitment and promotion from officiating Sub inspectors and not from Asst. Sub Inspectors Thus long years of service rendered by the promotees as officiating Sub Inspectors in between are being totally wasted as they are not being given any credit for such service either for confirmation or for seniority. The procedure so adopted, they claim, is not in consonance with the true spirit of the rules and is resulting in hostile discrimination as against the promotees. Incidentally they have made a further grievance that even recruitment to the rank of permanent Sub Inspectors had hot always been made in strict observance of the quota rules; for several years at a stretch the authorities have not constituted selection board for selection of departmental candidates for giving them promotion in their quota. 3. THE petitioners have in particular challenged the gradation or the seniority list made Annexure "a" to the writ petition. According to them, such a gradation list could not have been prepared in three parts separately setting out the permanent Sub inspectors in the first group, temporary Sub inspectors in the second group and the officiating Sub Inspectors in the third group. Petitioners claim that it being an integrated cadre, all the Sub Inspector should be put on one and the same list, seniority being determined with reference to the dace of continuous service in the cadre irrespective of whether the post in which such service is being rendered is permanent, temporary or officiating. 4. THE next grievance of the petitioners is with regard to the conferment of intermediate selection grade with effect from the year 1974. According to the petitioners such a grade was created with the object of giving relief to such employees who had reached the maximum in the existing grade and had been held up there for years having no proximate chance of further promotion. The West Bengal Services (Revision of Pay and Allowances) Rules 1970 herein after referred to as the Revision of Pay Rules was revised further for their benefit and an intermediate selection grade was created in terms of the recommendations of a committee set up by the Government. The West Bengal Services (Revision of Pay and Allowances) Rules 1970 herein after referred to as the Revision of Pay Rules was revised further for their benefit and an intermediate selection grade was created in terms of the recommendations of a committee set up by the Government. In implementing this sanction in the field of Sub inspectors the posts in the intermediate selection grade so created had been given mostly to the direct recruits by virtue of their seniority in the permanent cadre defeating the claim of the promotees who had either not been confirmed against a vacancy in the permanent cadre and were still officiating or having been so confirmed, had been given the bottom seniority determined with reference to the date of entering the cadre against the permanent vacancies. The petitioners claim that the intermedial selection grade had not been implemented in accordance with the rules and its implementation had further resulted in hostile discrimination against the promotees. The last grievance of the petitioners is with reference to their right of promotion to the next higher rank of Inspector. They have challenged the constitutional validity of Rule 1 (3) of Recruitment Rules on the ground that such a rule, having prescribed varying standard of eligibility as between the promotees and the direct recruits not being based on any reasonable ground of differentiation nor having nexus with the efficiency in service, is violative of Articles 14 and 16 of the Constitution. In particular the petitioners' claim that confirmation in the rank of Sub Inspectors having been made a condition precedent to such eligibility and so far as the confirmation of the promotees is concerned, the same hot being automatic as in the case of direct recruits but being dependent on the whims, of the authorities, the promotees are always discriminated against in the matter of conferment of promotion to the rank of Inspector which has been made into a reserve for the directly recruited Sub Inspectors only. They have, therefore, challenged the approved list of Sub Inspectors who had been so empanelled as fit for promotion to the rank of inspectors on July-24/25, 1978, and referred to in the writ petition. 5. ON the grievances thus made out, the petitioners have prayed for the following reliefs: i) A declaration that Rule 1 (3) of chapter XV of the Police Regulations, calcutta, 1968, is illegal, wrongful and unconstitutional. 5. ON the grievances thus made out, the petitioners have prayed for the following reliefs: i) A declaration that Rule 1 (3) of chapter XV of the Police Regulations, calcutta, 1968, is illegal, wrongful and unconstitutional. ii) For a writ in the nature of mandamus directing the authorities to cancel the impugned gradation list and for preparation of such a list afresh giving the petitioners appropriate seniority therein with reference to the date of their appointment in the rank and therein revising the date of confirmation of the petitioner Nos. 1 and 2. iii) For a writ in the nature of mandamus directing the respondents to cancel the panel of persons adjudged eligible to the intermediate selection grade and prepare the said panel afresh giving benefit to the officers on the basis of their seniority. iv) For a writ in the nature of mandamus directing the respondents to make appointment henceforth to the rank of Sub Inspector following the quota rule whether such appointment be temporary, officiating or substantive. v) For a writ in the nature of mandamus directing the respondents to cancel the purported approved list of Sub Inspectors fit for appointment as Inspectors and to make a fresh selection in accordance with law. 6. THIS Rule is being contested by two sets of respondents, namely, State' of West bengal and some of its authorities including the Commissioner of Police, Calcutta (hereinafter referred to as Commissioner) in one set and the directly recruited Sub Inspectors on the other. Separate affidavits -in -opposition have been filed on behalf of the two sets of contesting respondents but since the defence taken by both the sets are more or less the same, I would refer to the defence taken by the first set in the affidavit sworn by the Commissioner. The commissioner in his affidavit has substantially controverted all the allegations made and claims put forward by the petitioners in their writ petition. According to the affidavit of the Commissioner, the rank of sub Inspectors does not mean and include such of the Assistant Sub Inspectors who are allowed to officiate against temporary vacancies. Such officiating Sub Inspectors remain substantively the Assistant Sub inspectors and are often reverted to that rank in the absence of a berth in the temporary cadre of Sub Inspector. Such officiating Sub Inspectors remain substantively the Assistant Sub inspectors and are often reverted to that rank in the absence of a berth in the temporary cadre of Sub Inspector. According to the affidavit of the Commissioner, no direct recruitment is either possible or is ever made against a temporary vacancy. Such recruitment is always made only against a permanent vacancy and the quota rule is applied only at the stage of recruitment against permanent vacancy. An officiating Sub Inspector is absorbed only in an allotted quota vacancy of permanent posts of Sub Inspectors when available. Seniority is determined with reference to the date of appointment as a probationer for confirmation and never with reference to date of appointment to officiate, it is stated by him that if direct recruitment be made against temporary posts as suggested then that would not only create administrative problems but would also lead to deprivation of the facility which the Assistant sub Inspectors are enjoying by way of holding all those temporary posts as officiating Sub Inspectors. For implementing the quota rule, the Commissioner states that officiating service cannot be classified as initial appointment. In this affivavit in opposition the definite case of the commissioner is that under the rules applicable to the Sub Inspectors the seniority cannot be determined with reference to the dates of continuous officiating services as officiating sub Inspectors holding the substantive rank of Assistant Sub Inspectors stand in a position different from Sub Inspectors substantively holding posts in the permanent cadre. Since seniority is determined with reference to the date of joining the latter which both the groups join in their respective quota there is no discrimination between the two groups. As for the claim to the intermediate selection grade is concerned, according to the affidavit of the Commissioner, the benefit of such a grade has been given to both the direct recruits and the promotees in consideration of service and seniority in the gradation list. Since the petitioners are junior to many of the direct recruits they are not getting the benefit of the said grade. So far as the dispute with reference to the right to promotion as an Inspector is concerned, according to the affidavit of the commissioner unless a Sub Inspector is confirmed in the rank of Sub Inspector he cannot be considered for promotion as an inspector under the terms of the rule itself. So far as the dispute with reference to the right to promotion as an Inspector is concerned, according to the affidavit of the commissioner unless a Sub Inspector is confirmed in the rank of Sub Inspector he cannot be considered for promotion as an inspector under the terms of the rule itself. He has disputed the challenge to the constitutional validity of the said rule. The Commissioner in his affidavit has fairly admitted that the authorities had failed to constitute annual selection board for approving the officiating Sub inspector considered fit for promotion as sub Inspectors during certain years but he claims that notwithstanding the said failure in the matter of allotment of berths to assistant Sub Inspectors or officiating Sub inspectors for promotion to the rank of Sub inspectors, the quota rule had been strictly followed. This in substance is the defence taken to the writ petition. Mr. Bose appearing on behalf of the petitioners has pressed the grievances made out in the writ petition. He has first contended that the temporary posts of Sub inspectors in which the petitioners had been officiating are part of the cadre and therefore, the authorities should have observed the quota rule at the stage of recruitment to such posts and the seniority too should be determined having due regard to such officiating service. In any event, yearly promotions not have been made strictly in compliance with the quota rule such seniority should be readjusted with reference to the date when the respective promotions were due. Mr. Bose has next contended that officiating service rendered by the promotees should count for determination of eligibility to get the new intermediate Selection Grade. According to him most of the promotees have been denied the 'benefit of such a grade because the officiating service rendered by them had not been taken into account. The next contention of Mr. Bose is with regard to the requirement of confirmation as an eligibility for promotion to the next higher rank of an inspector. According to Mr. Bose when the promotees are not being confirmed in spite of long years of officiating service, the requirement of confirmation as an eligibility should be held to be mere directory which must be deemed to have been waived. According to Mr. Bose when the promotees are not being confirmed in spite of long years of officiating service, the requirement of confirmation as an eligibility should be held to be mere directory which must be deemed to have been waived. The promotee Sub Inspectors therefore should be considered for promotion to the next higher rank even when they are still officiating as and when they complete 7 years of service. Alternatively it is contended by him that to hold it otherwise would result in hostile discrimination so far as promotee Sub Inspectors are concerned, in as much as, for them confirmation being uncertain, their chance of promotion would be an inglorious uncertainty. 7. MR. Chatterji, the learned Standing counsel appearing on behalf of the State has accepted the position that temporary posts of Sub Inspectors are a part of the cadre and he has further conceded that promotions not having been effected in due compliance with the quota rule, filling up of vacancies as between the two groups has to be readjusted. So far as seniority is concerned according to Mr. Chatterji, the government has now recognised the claim that officiating service must count for determination of seniority and has framed a new set of Rules in 1981 which would meet the petitioners' grievance in this regard. 8. MR. Deb and Mr. Pal appearing on behalf of the direct recruits have contested each of these contentions of Mr. Bose. They have strongly contested the concession made by the Standing Counsel, that the posts in which the petitioners had been officiating are part of the cadre. According to them, these posts are not part of the cadre to which recruitment is contemplated by Rule 3. Quota rule had never been applied at the stage of officiating appointment nor can there be any direct recruitment to temporary posts held by assistant Sub Inspectors promoted to officiate as Sub Inspectors. They have contended that both the seniority and consequential benefits, viz. the new intermediate selection grade and further promotions have been duly given to the promotees and, as such, the grievances made are unfounded. These are the basic contentions put forward on behalf of the respective parties and I would refer to further details of such contentions as and when I deal with each one of them. 9. the new intermediate selection grade and further promotions have been duly given to the promotees and, as such, the grievances made are unfounded. These are the basic contentions put forward on behalf of the respective parties and I would refer to further details of such contentions as and when I deal with each one of them. 9. FOR deciding the points of dispute thus raised, it would be necessary in the first place to consider the relevant rules of recruitment and the subsequent changes thereof made from time to time. For our present purposes it would be sufficient if I start with the Rules framed by the Government on October 14, 1935. These were statutory rules framed with necessary approval under section 9 of the Calcutta police Act, 1886 and section 3 of the Calcutta Suburban Police Act, 1886, Rule 1 of these Rules prescribed the method of recruitment to the rank of Inspector. Such vacancies were to be filled by promotion from the rank of Sub Inspectors and Sergeants on the basis of merit cum seniority as adjudged by a selection board. Officers so promoted should, in the first instance, be put on probation. 10. RULE 2 of these Rules prescribed the method of recruitment to the rank of Sub inspector in the Unarmed Branch. It provided that appointment in the rank of Sub inspector should be made in the month of september each year from two sources, namely, promotees and direct recruits; 25% of the posts were allotted to the promotees the promotion being made from Assistant sub Inspectors and Sergeants ; the rest of the posts was allotted to the direct recruits. For effecting direct recruitments this Rule prescribed that applications from outsider candidates should be invited through press in the first week of September ; all applications were to be made in the prescribed form on satisfactory proof of educational, qualifications ; qualifications prescribed for the direct recruits were (i) must be a graduate of an Indian University, (ii) must be born of respectable parents ; (iii) be between the ages of 21 and 25 years on the 1st September of the year of appointment, (iv)must be at least 5'3" in height and 31" round the chest after exhalation and (v)must possess a through knowledge of bengali language. So far as the promotees were concerned, the Rule prescribed that on the first day of June nominations should be called for from all the District Officers of Assistant sub Inspectors and Sergeants fit for promotion to the rank of Sub Inspector having rendered at least 3 years service as a Surgeant or an Assistant Sub Inspector and having normally passed one of the following examinations, namely (i) Matriculation or the Indian Army Special certificate of education, (ii) Junior Cambridge, (iii) First class Army Certificate or in the opinion of the selection board the candidate had otherwise attaired satisfactory educational standaro. Such can idates were to sit in a preliminary departmental test examination at the Calcutta Police Training School and the names of those who would pass that examinations should be submitted to selection board. The candidates were also to possess a good record of service and a good social position. 11. RULE 2 (j) of these Rules provided that qualified candidates should be summoned before a selection board consisting of the commissioner of Police, Deputy Commissioner of Police, Headquarters, a District deputy Commissioner and an Assistant commissioner of Police and the selection board should make the final selection for appointment. A note added to these Rules indicated that the selected candidates were required to pass out of the Calcutta Police training School before they were to be put on probation prior to their confirmation. 12. AT that material time Government further framed another set of Rules described as Probation Rules (vide Calcutta Police gazette dated August 29, 1936). Rule 1 (1)of these Rules provided that for Inspectors the period of probation should be 2 years from the date of appointment which might be extended by the Commissioner. Sub-rule (2) of Rule 1 of these Rules provided as follows : "probationers shall draw the minimum pay in the time scale of Inspectors subject to the condition that they shall count towards increment officiating service in that rank rendered prior to their appointment as probationers and also their probationery period or any part thereof and draw" increment that may fall due to them during the period of their probation. " Sub rule (3) provided that at the end of probation the Commissioner might confirm the probationer and it further provided that any time during the probation the Commissioner might revert the promotee to his substantive rank. 13. " Sub rule (3) provided that at the end of probation the Commissioner might confirm the probationer and it further provided that any time during the probation the Commissioner might revert the promotee to his substantive rank. 13. RULE 2 (1) of these Rules provided that for the Sub-Inspectors both directed recruits and Promotees - the period of probation should be 2 years counted from the date of joining Calcutta Police Training School. Sub-rule (3) of these Rules provided further that persons directly recruited should draw the minimum in the time scale of Sub-Inspectors throughout the. period of probation. Sub-rule (4) incorporating the material provision in this regard so far as the promotees were concerred, was in analogous terms to Rule 1 (2) set out hereinbefore. This Rule further provided for confirmation or discharge obsereversion as the case may be after or during the probation. 14. AT this stage it would be convenient to point out a significant aspect of these 'rules which would have much bearing on the considerations that follow. The recruitment rules above referred to, contemplated no officiating appointment on recruitment to the rank. On the terms of the recruitment rules, recruitment was to be made at the stage when the person so recruited was to be appointed on probation, obviously against a substantive vacancy in the permanent cadre of Inspector or Sub-Inspector. But the probation rules clearly recognised that so far as promotees were concerned, they might be put on officiating appointment but such appointment should be before recruitment to the cadre on being appointed on probation. In the year 1962, a set of rules, more comprehensive in nature was framed by the Governor in exercise of his powers under the Calcutta Police Act, 1886, Calcutta Port Act, 1890 and Calcutta Suburban Police Act, 1886. In the main body of these Rules originally there were only 4 Rules. Rule 1 having set out the name of the Rules prescribed that it would apply in respect of members of subordinate ranks of the forces. Rule 2 incorporated the definition clauses. Rule 3 prescribed that the methods of recruitment, qualifications far appointment including age and conditions of service of the different grades: of subordinate ranks of the forces should be as specified in Schedule I to these Rules. Rule 2 incorporated the definition clauses. Rule 3 prescribed that the methods of recruitment, qualifications far appointment including age and conditions of service of the different grades: of subordinate ranks of the forces should be as specified in Schedule I to these Rules. Rule 4 similarly provided that disciplinary proceedings and punishments for such subordinate ranks would be regulated by the Rules laid down in Schedule II to these Rules. In 1963 one more Rule was added to the main body of these Rules by way of rule 5 authorising the State Government to dispose with or relax in public interest the requirements of any of the Rules to such extent and subject to such conditions as it may deem fit for tine purpose of dealing with the case in a just and equitable manner. 15. SCHEDULE 1 to these Rules incorporated the Regulations providing for methods of recruitment, qualifications for appointment including age and conditions of service. Paragraph 1 of this schedule adopted with certain minor changes the same scheme and method of recruitment to the rank of Inspector as were prescribed by the 1935 Rules referred to hereinbefore. Similarly paragraph 2 of this schedule adopted with minor changes the same scheme and method of recruitment to the rank of Sub-Inspector from two sources, namely, direct recruits and promotees as were prescribed by the 1935 Rules. 16. PARAGRAPH 18 of this Schedule dealing with probation for Inspectors adopted the same scheme as in Rule 1 of the previous probation Rules of 1936 as indicated hereinbefore. For the Sub-Inspectors, some changes were introduced. Paragraph 19 (1) prescribed that the period of probation for a person directly recruited as Sub-Inspector should be two years counting from the date of leaving the Police Training College and that of a promotee the same should be one year counting from the date of joining the Police Training College on such promotion. Paragraph 19 (3) provided as follows :- "promoted Sub Inspectors 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 a probationer and also their probationery period or any part thereof and draw any increment that may fall due to them during the period of their probation. A probationery Sub Inspector shall be confirmed on the completion of his probationery period unless the deputy Commissioner Headquarters shall make an order extending his period of probation or discharging him from service or reverting him to his substantive rank. Any order for such extension of the probationery period of reversion or discharge shall indicate the grounds on which the order is made. For an order of extension for any period beyond one year the section of the Commissioner shall be obtained". Paragraph 19 (4) prescribed that while the training period of a promotee should be one year of which the first six months should be spent in the police Training College, the training period of a direct recruit should be 2 years of which one year should be spent in the Police Training College. It further prescribed that the initial pay of a direct recruit when in the Police training College should be Rs. 200/-that is, the minimum in the time scale and that the period spent by them in the Police Training College should be exclusive of probationery period but should count towards increment of pay. This Rule further prescribed that the training period of promotees should also count towards increment of pay. 17. IN the manner similar to the Probation Rule of 1936, these rules too clearly recognised the position that a promotee Sub-Inspector might be put on officiating appointment but that must be before his recruitment to the rank of Sub-Inspector contemplated by the recruitment rules. Such officiating service would again count only for the limited purposes set out in paragraph 19. 18. ON June 3, 1967, the 1962 Rules were materially amended when Schedule I thereof was replaced by a new schedule. The new Schedule thus adopted is to be found in Chapter XV of the police Regulations Calcutta, 1968. Paragraph 1 in this new Schedule prescribes the method of recruitment to the rank of Inspector. Sub-paragraph (1)of the said paragraph prescribes that)such recruitment shall be made by promotion from the rank of Sub-Inspector. Sub-Paragraph (2) of the said paragraph prescribes that such promotion shall be based on merit cum seniority adjudged by a selection board provided that for the purpose of appearing before the selection board for interview it shall be necessary for the candidate to pass a departmental examination. Sub-Paragraph (2) of the said paragraph prescribes that such promotion shall be based on merit cum seniority adjudged by a selection board provided that for the purpose of appearing before the selection board for interview it shall be necessary for the candidate to pass a departmental examination. I next set out sub-paragraphs (3) to (5) of the said paragraph which are as follows :- "(3) Sub Inspector and Sergeants recruited direct to their posts shall be eligible to sit for the said departmental examination after their confirmation and on completion of 7 years service including temporary service in their rank. The departmental Sub-Inspectors, that is, to say, the Sub-Inspectors who have been so appointed on promotion from lower ranks shall be eligible to sit for the aforesaid examination after their confirmation in the rank of Sub-Inspector provided that their total length of service as Sub-Inspector is not less than 7 years. (4) An Officiating Inspector having completed 2 years of continuous service in the rank shall be eligible for appearing before the selection board referred to above for inclusion of his name in the panel of officiating Inspector fit for confirmation as Inspector. (5) Inspectors so promoted, shall, in the first instance, be on Probation". 19. PARAGRAPH 3 of this new Schedule prescribes the method of recruitment of unarmed Sub-Inspectors. Sub- Paragraph (1) of Paragraph 3 prescribes that recruitment to the rank of Sub-Inspectors shall be made each year in the month of January; l/3rd of the vacancies shall be filled by promotion from the rank of Assistant Sub-Inspectors and the rest shall be filled by direct recruitment. 20. SUB-PARAGRAPHS (3) and (4) of that paragraph prescribes the qualifications for the direct recruits and the method of filing applications by them in answer to advertisements issued in that regard. Qualifications prescribed are similar to those prescribed by the earlier rules except for the fact that under these rules a direct recruit has to qualify himself in a written test before he is called for interview by a selection board. Sub-paragraph (5) of that paragraph provides for a selection board for the direct recruits on whose recommendation an approved list of candidates is to be prepared. A candidate so selected goes on a course of training (Vide Note to Sub paragraph 9) one. Sub-paragraph (5) of that paragraph provides for a selection board for the direct recruits on whose recommendation an approved list of candidates is to be prepared. A candidate so selected goes on a course of training (Vide Note to Sub paragraph 9) one. year at the police Training College and one year in different branches of the Calcutta Police (Vide paragraph 46 (4) (b ). Once he completes the College training successfully he is then put on probation for two years (Vide paragraph 46 (l)f. Confirmation follows for those who complete the probation satisfactorily. For the departmental candidates, that is, the Assistant Sub-Inspectors sub-paragraph (2) of paragraph 3 prescribes that their promotion shall be on selection made on the basis of merit cum seniority. Sub-paragraph (7) of that paragraph prescribes qualifications which are more or less similar to those prescribed by the earlier Rules) and how nominations shall be called for from all Deputy Commissioners of all assistant Sub Inspectors fit for promotion. Sub-paragraphs (7), (8) and (9) of that paragraph further prescribe that an Assistant Sub Inspector before he is called for an initial Selection under sub-paragraph (9) must pass a departmental examination completely and must also be confirmed as an Assistant sub Inspector. The new Schedule then introduces an innovation in sub-paragraph (10) which provides as follows : "10. An Officiating Sub Inspector having completed two years of continuous service in the rank and on completion of the required course of training shall be eligible 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." 21. READING Sub paragraphs (7) to (10) of paragraph 3 along with paragraph 46, it appears to me that a modified method of recruitment to the rank of sub Inspector was introduced for the departmental candidates when a two tier selection was brought in contract to the earlier rules. It appears to me that after the departmental candidates qualify themselves in the first selection they are allowed to officiate but that does not mean entry into the cadre of Sub Inspector for the recruitment to which the rules provide. For entering such a cadre they are still required to pass through another Selection viz. the one prescribed by Subparagraph (10) which renders them eligible to be put on probation and thus enter the cadre. For entering such a cadre they are still required to pass through another Selection viz. the one prescribed by Subparagraph (10) which renders them eligible to be put on probation and thus enter the cadre. Successfully completing the course of training prescribed by paragraph 46 (4) (a) (i) and (ii) as amended and the two years continuous officiating service are the twin requirements prescribed by the Rules to be fulfilled to acquire eligibility for the second Selection. In that way the rules contemplate officiating service as qualifying service for acquiring eligibility for final entry into the Cadre. 22. PARAGRAPHS 45 and 46 provide for probation and they incorporate provisions comparable to those that were there in 1962 rules. There are two subsequent amendments to the Rules incorporated in the aforesaid substituted Schedule. By an amendment dated July 6, 1971, the quota prescribed by paragraph 3 (1) was altered into a ratio of 50:50, between the two sources while by an amendment dated February 3, 1975 the quota was further altered, 60% being allotted to the promotee and the rest to the direct recruits. 23. HAVING set out the material rules except the seniority rules to which reference will be made hereinafter. I shall mow proceed to consider the different grievances put forward by the petitioners in the light of these rules. Principal grievance as I have pointed out there in before of the three petitioners is that long years of officiating service are not being counted for determination of their relative seniority vis-a-vis the direct recruits. As already pointed out mr. Bose claims that the posts in which the promotees are made to officiate though mostly temporary are of indefinite tenure and are a part of the same cadre as that of the permanent sub Inspectors and, therefore, the promotees who on proper selection by the Selection board are allowed to officiate on promotion, should be given the benefit of their continuous officiating service and their seniority must be: adjudged on the total length of service including such officiating service. According to Mr. Bose, Supreme Court has now laid down as an uniform Rule that length of. service is the best and fairest basis of determination of seniority. Reliance is placed by Mr. Bose on the decisions of the Supreme Court in the cases of S. B. Patwardhan and anr. vs. State of Maharastra and Ors. According to Mr. Bose, Supreme Court has now laid down as an uniform Rule that length of. service is the best and fairest basis of determination of seniority. Reliance is placed by Mr. Bose on the decisions of the Supreme Court in the cases of S. B. Patwardhan and anr. vs. State of Maharastra and Ors. A. I. R. 1977 s. C. 2051 and Baleshwar Das vs. State of U. P. A. I. R. 1981 S. C. 41. 24. MR. Chatterji, the Senior Standing Counsel appearing on behalf of the state has supported Mr. Bose on this point though the affidavit filed on behalf of the State does not do so. According to Mr. Chatterji, the State Government in order to implement the fair principle for determination of seniority as indicated by the Supreme Court in Patwardhan's case has framed a new set of seniority rules in 1981 which. meets the grievance of the petitioners in this regard. Mr. Chatterji in his turn has relied on the decisions of the Supreme Court in the case of N. K. Chauhan and Ors. v. State of Gujarat and Ors. A. I. R. 1977 S. C. 251, B. L. Goel vs. State of V. P. and Ors. A. I. R. 1979 S. C. 222 and K. B. Shukla and ors. vs. Union of India and Ors. A. I. R. 1979 S. C. 1136. Mr. Banerji appearing for the promotee respondents in the analogous rule and Mr. Gooptu, the Government pleader therein appearing on behalf of the State have also supported the contention of Mr. Bose in this regard. 25. MR. Pal following Mr. Deb appearing on behalf of the direct recruits who are some of the respondents in the present writ petition and some of whom are the petitioners in the other analogous writ petition has seriously contested the above contention of Mr. Bose. According to Mr. Pal, length of service may be a fair basis for determination of seniority but not in all cases and in any event that does not preclude the government from laying down any other basis of seniority provided the basis so prescribed passes the test of constitutional validity. According to Mr. Pal the statutory rules prescribed a fixed quota for each year both for the promotees and the direct recruits and seniority cannot be determined by giving credit for officiating service if that infringe the said quota. According to Mr. Pal the statutory rules prescribed a fixed quota for each year both for the promotees and the direct recruits and seniority cannot be determined by giving credit for officiating service if that infringe the said quota. Secondly it has been contended by Mr. Pal that length of service may count for seniority provided it is rendered in the same cadre or grade and not on ex-cadre or ex-grade post. Here, in the present case, Mr. Pal has seriously disputed the claim of Mr. Bose that temporary posts of Sub Inspectors constitute a part of the cadre of permanent Sub Inspectors. According to Mr. Pal under the recruitment rules, it would be quite evident that a promotee sub Inspector enters the cadre only when after he is considered fit and is put on probation. According to him, it would appear from the said rules that officiating service rendered is considered as qualifying service for entry into the cadre and that can never be considered to be service in the cadre. Mr. Pal in his turn has relied on the decisions of the Supreme Court in the case of Gangaram V. Union of India A. I. R. 1970 S. C. 2178, V. B. Badamia V. State of Mysore A. I. R. 1980 S. C. 1561 and katayani Dayal v. Union of India A. I. R. 1980 (3) S. C. 245. Mr. Pal has drawn our attention to the affidavit filed on behalf of the Government in order to show that factually the posts held by the officiating Sub Inspector are not posts in the cadre of permanent Sub-Inspectors and the concession made by the standing counsel is contrary to the pleading of the State respondent. The government has not produced the material sanction to show that these officiating posts were sanctioned as part of the cadre of Sub Inspectors as a whole. According to him there can be no rule of law under which seniority can be conferred except with reference to the date of entry into a cadre and to concele the claim of the petitioners would mean treating unequals as equals resulting in hostile discriminetion in the reverse. He has relied on the decision of the Supreme Court in the case of State of Kerala v. Hazi M. Kutty AIR 1969 S. C. 378. 26. He has relied on the decision of the Supreme Court in the case of State of Kerala v. Hazi M. Kutty AIR 1969 S. C. 378. 26. IN deciding the point of dispute thus raised, one has to bear in mind certain basic Principles. It is now well settled that in the absence of any valid rule to the contrary, normally length of service rendered by the rival claimants to seniority would be the ideal criterion for determination of such seniority if services so rendered by both are otherwise equivalent. It would be equivalent if the services rendred, be it officiating or temporary, are in the same cadre or grade and persons, rendering such service were appointed in a regular manner on due fulfilment of all the requirements for such appointment. Thus, where temporary posts are added to the cadre itself, promotees, when promoted in due compliance of the rules and made to officiate non-for-tediously and continuously against such temporary posts till the date of their confirmation, can legitimately claim seniority with reference to the date of their such continuous officiation if the confirmation is to follow such officiation as a matter of course and is not otherwise contingent by way of being subject-to any further test or acqusition of any other eligibility. Though such in the normal rule there may be exceptions thereto. Specific rules may be made directing seniority to be determined having regard to some basis other than such length of service provided the basis so prescribed is based on intelligible differentia which would pass the constitutionality test. It is also to be remembered that where appointments are made from more than one source the basis for determination of the inter se seniority must not be such as may amount to unresonable discrimination as against the appointees from one or some of those sources. Moreover, persons recruited from different sources when integrated in one cadre or grade, should not any further be differentiated having regard to their source of recruitment and not on a basis which may have reasonable nexus with the efficiency in public service or the nature of the duties to be rendered. Moreover, persons recruited from different sources when integrated in one cadre or grade, should not any further be differentiated having regard to their source of recruitment and not on a basis which may have reasonable nexus with the efficiency in public service or the nature of the duties to be rendered. Keeping in mind these principles i shall first try to determine whether the temporary posts of Sub-Inspectors in which the petitioners officiated and the permanent posts of Sub-Inspectors from a single integrated cadre and whether officiating services rendered by the promotees can be said to be equivalent to the service rendered by those appointed or promoted against permanent vacancies. I shall first refer to the facts in this regard as they appear from the affidavits filed by the parties. The petitioners have not expressly pleaded in the writ petition that the temporary post held by them along with the other officiating Sub Inspectors were a part and parcel of the cadre of Sub Inspectors, to which cadre the permanent sub Inspector belong. But that appear to be their case by necessary implication as would appear from the other averments made in the writ petition. In paragraph 16 they stated "according to the true spirit of the said rules the respondents Nos. 1, 2 and 3 were and are bound to make appointment in the rank of Sub Inspectors whenever there are vacancies in such posts either temporary or permanent and such appointment so far departmental candidates are concerned, should have been and must be made from the Assistant Sub inspectors and not from Assistant Sub inspectors promoted to the rank of Sub inspector and kept unconfirmed for more than 15 to 20 years. " Again in paragraph 18 they stated that the respondents had no power to differentiate as between the Sub Inspectors as those who are confirmed, those who are temporary and those who are officiating. They have further stated in paragraphs 33 and 34 of their petition that the respondents 1, 2 and 3 should have followed the quota rule at the time of initial appointment and once so appointed both the direct recruits and the promotees should have been treated as one integrated cadre. 27. THIS claim of the petitioners has been seriously controverted by the state in the affidavit filed by the Commissioner. 27. THIS claim of the petitioners has been seriously controverted by the state in the affidavit filed by the Commissioner. In pragraph 8 of the affidavit-in-opposition the Commissioner has unequivocally stated that recruitment in the rank of Sub Inspector does not mean and include the Assistant Sub Inspectors being allowed to officiate in the rank of Sub 'inspectors on purely temporary basis against temporary vacancies. In this paragraph the Commissioner has further stated that no direct recruitment is made except against a permanent vacancy. In paragraph 9 of the said affidavit the Commissioner further stated : "that as direct recruitments in the rank of Sub Inspector are not made against temporary vacancy other than permanent one, qualified Assistant sub Inspectors in general get the benefit of officiating in the rank of Sub Inspector and consequently eligible constables gei temporary promotion to officiate in the rank of Assistant Sub Inspector in the temporary vacancies caused by temporary promotion of Assistant sub Inspectors. "in paragraph 12 thereof, the Commissioner has further stated; "that there is no rank or post as officiating Sub Inspector. An Assistant sub Inspector when officiating in the rank of sub Inspector is departmentally conventionally called officiating Sub Inspector for Identification but his substantive rank is Assistant Sub Inspector and not sub Inspector. " in paragraphs 13 of that affidavit, the Commissioner stated that an officiating Sub Inspector is absorbed only against an allotted quota in the vacancies in the permanent cadre of sub Inspectors. He has further stated in paragraphs 16 and 18 of his affidavit that direct recuritment against temporary post is not possible under the rules of recruitment and that would create administrative problems and that officiating service cannot be classified as initial appointment as claimed by the petitioner. Similar is the stand taken by the direct recruits. It is, therefore, evident from the affidavit of the Commissioner that according to the State Government officiating service rendered by officiating Sub Inspector is not considered as service in the cadre and necessarily the temporary posts in which they are officiating are not a part and parcel of the cadre of Sub Inspector. In an answer to an interrogatory by the direct recruits, the Deputy Commissioner Hd. Qrs. made a statement that temporary posts of sub Inspectors are part of the cadre -of sub Inspectors. This statement however is not in answer to any particular relevant interrogatory. In an answer to an interrogatory by the direct recruits, the Deputy Commissioner Hd. Qrs. made a statement that temporary posts of sub Inspectors are part of the cadre -of sub Inspectors. This statement however is not in answer to any particular relevant interrogatory. This is a voluntary statement not fairly made. It is wholly contrary to the affidavit of the Commissioner and I place no reliance on this statement. 28. THIS is the state of records but in my view the more important thing to be taken into consideration is the position under the rules. I have set out the material provisions of the 1935 and 1962 recruitment rules hereinbefore. On a fair reading of these provisions, it appears to me that these rules contemplated entry into the cadre of Sub Inspectors on appointment on probation and did not recognise any officiating or temporally appointment against any temporary post in the cadre. Having allotted the quota in respect of the vacancies in the cadre to the two sources, these rules prescribed a method of yearly recruitment from each source. Method so prescribed was that on fulfilment of certain requirements and qualifications the candidate, the direct recruit or the promotee was to be called before a selection board on whose recommendation the recruitment was to be made. But under these rules, the next stage after such selection was probation. Under the rules regarding probation, unless the probationary period was to be extended an order for confirmation had to be made as a matter of a course once the probationer completed his probation satisfactorily. These rules contemplated no officiating appointment after completion of probation. On the scheme of such recruitment rules temporary posts could not constitute a part of the cadre because there could be no confirmation against a temporary vacancy. Though such were the rules of recruitment, the contemporaneous probation rules contemplated officiating appointments as indicated hereinbefore and that again only by the departmental candidates. Such service was to be rendered on promotion as an officiating Sub Inspector either de hotrs the selection or on advance department by selection awaiting a regular promotion against a substantive vacancy in the cadre of Sub Inspector. Such service was to be rendered on promotion as an officiating Sub Inspector either de hotrs the selection or on advance department by selection awaiting a regular promotion against a substantive vacancy in the cadre of Sub Inspector. It would be significant to refer to the terms of rule 1 (2) and rules 2 (4) of the Probation rules of 1936 which provided that the promotee-probationers in respective rank "shall count towards increment officiating service in that rank rendered prior to their appointment as probationers. " Similar were the provisions incorporated in paragraph 18 (2) and paragraph 19 (3) of the First Schedule of 1962 rules. Two things follow by necessary implication from these rules, namely, (i) officiating service is a service which is to be rendered prior to the entry in the cadre as a probationer and (ii) such service can be counted by the promotees for the limited purpose of determination of their increment in the time scale. The very fact that these rules provided for limited benefit to follow from such officiating service is clearly indicative of the fact that such service is not counted as service in the cadre. Had such service been service in the cadre all the benefits would have followed as a matter of course and would not have required a specific grant to a limited extent. Next comes the amendment of 1967. But before I come to consider the amended rules, it would be necessary to refer to a fact over which there is no great controversy. The gradation list as officially prepared and published by the authorities in the year 1967 was produced before us at the time of hearing. This list shows that on the date of its publication the sanctioned strength of permanent Sub Inspectors was 619. There were as a matter of fact 560 permanent Sub Inspectors in the gradation list, consisting both of direct recruits and promotees while 59 post on the cadre were lying vacant. But the said gradation list further indicates that 403 Assistant Sub Inspectors were Officiating as sub Inspectors (including two described as unpassed). These officiating Sub Inspectors were separately enlisted. There is no declared strength for such officiating sub Inspectors. Similar. is the position with the gradation list of 1973 which shows that the declared strength of permanent Sub-Inspectors to be 572 all held by direct recruits and promotees while 511 asstt. These officiating Sub Inspectors were separately enlisted. There is no declared strength for such officiating sub Inspectors. Similar. is the position with the gradation list of 1973 which shows that the declared strength of permanent Sub-Inspectors to be 572 all held by direct recruits and promotees while 511 asstt. Sub-Inspectors were holding the posts of officiating Sub-Inspectors without any declared strength for such posts. Unfortunately, the State Government too did/not disclose under what sanction these Assistant Sub-Inspectors were made to officiate as Sub-Inspectors. Be that as it may, one fact is clearly established viz. that posts of officiating Sub inspectors nearly having the same strength as the strength of the cadre of permanent Sub Inspectors had been brought into existence and all these posts had been filled in by Assistant Sub-Inspectors serving on temporary promotion. These posts were not treated as a part of the cadre as the Commissioner has clearly acknowledged and no direct recruitment was ever made in respect of these posts. 29. IN that background the 1967 amendment brought about a material change. I have set out the material part of these amended rules hereinbefore. In the matter of recruitment of Inspectors, where all the vacancies are to be filled in by promotion only, sub-paragraph (4) of paragraph 1 introduced a new eligibility when it provided that an officiating Inspector having completed 2 years of continuous service shall be eligible for appearing before the selection board for inclusion of his name in the panel of officiating Inspectors fit for confirmation as Inspector. Reading this sub-paragraph with sub-paragraph (3), it is quite evident that it is only on the basis of such selection that promotion is to be given to the rank of Inspector and subparagraph (5) makes it clear that it is at that stage the promotees go on probation. The recruitment rules for the first time recognised officiating service and recognised the same as qualifying service for-the purpose of regular promotion. So far as Sub Inspectors are concerned sub-paragraph (10) to paragraph 3 incorporated a similar provision with this much of distinction namely, that in case of Sub Inspectors, the amended rules introduced two tier selection. The first selection is in the nature of preliminary selection contemplated by sub-paragraphs (7), (8) and (9). It is not disputed that the selection contemplated by sub-paragraph (10) follows the earlier first selection. The first selection is in the nature of preliminary selection contemplated by sub-paragraphs (7), (8) and (9). It is not disputed that the selection contemplated by sub-paragraph (10) follows the earlier first selection. It is also not disputed before us by any of the parties that it is only after the final selection under sub-paragraph (10) that a promotee is put on probation and thus gets an entry into the cadre recruitment to which is provided for by the rules. That being the scheme of recruitment when sub-paragraph (10) provides that 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 for appearing before the selection board therein contemplated, officiating service cannot be equated with service in the cadre because such service under the rules is qualifying service for attaining the eligibility for entering the cadre. It would be so even if the officiating appointment had been made on the basis of selection in the first part contemplated by Sub-paragraphs (7), (8) and (9) Necessarily posts hi which the Assistant Sub-Inspectors are made to officiate on promotion cannot be considered to be a part of the cadre itself. I feel no hesitation in accepting the contention of Mr. Pal that service rendered prior to entry into the cadre can never (count for determining seniority in the cadre. 30. THE counsel for the promotees as also the State felt difficulty in reconciling the provision so incorporated in sub-paragraph (10) to paragraph 3 of the amended Schedule. Mr. Bose appearing on behalf of the petitioners in the present writ petition tried to contend that this sub-paragraph has no universal application. According to him it applied only to pre-1967 officiating Sub-Inspectors who are yet to be confirmed. On the scheme of the rules as a whole and on the terms of this sub-paragraph it is difficult" to accept such a contention. There is no indication that this sub-paragraph was intended to prescribe an alternative method of recruitment or confirmation for the pre-existing officiating Sub-Inspectors. On the other hand, this sub-paragraph appears to be a part of the scheme introducing a method of selection for the promotees at two stages. Mr. There is no indication that this sub-paragraph was intended to prescribe an alternative method of recruitment or confirmation for the pre-existing officiating Sub-Inspectors. On the other hand, this sub-paragraph appears to be a part of the scheme introducing a method of selection for the promotees at two stages. Mr. Banerji appearing for the promotees in the other writ petition and the learned Government Pleader therein appearing suggested on the other hand that this rule prescribed only a test for confirmation and not for entry into the cadre. According to them, a promotee enters the cadre of sub-Inspectors, no sooner he is promoted to officiate after the first selection. He is only required to render two more years officiating service for acquiring the eligibility for confirmation. This contention in my view cannot be accepted for two reasons. The first reason is that such a construction would not be consistent with the other rules and the second reason is that such a special provision applicable only to the promotees for their confirmation would not stand the test of constitutional validity because that would discriminate the promotees in the matter of confirmation from the direct recruits with reference to the origin but not based on any intelligible differentia. Once the direct recruits and the promotees are appointed on selection to posts in the cadre, the confirmation for both must be based on the same test or standard the promotees cannot be called upon to stand another selection for such conformation while for the direct recruits confirmation would follow as a course. 31. I now turn back to the first reason assigned by me to indicate how such construction would not be consistent with other provisions of these rules. As I have indicated hereinbefore the fact that probation contemplated by paragraph 46 follows the second selection contemplated by sub-paragraph (10)is universally conceded (Rules too contemplate no officiating appointment; after probation ). It is, therefore difficult the postulate a situation where the promotees enter the cadre itself as a result of the first selection and then having rendered two more years of service as officiating Sub Inspectors get themselves declared fit for confirmation and then at that stage they are put back to the position of a probationer for trial. It is, therefore difficult the postulate a situation where the promotees enter the cadre itself as a result of the first selection and then having rendered two more years of service as officiating Sub Inspectors get themselves declared fit for confirmation and then at that stage they are put back to the position of a probationer for trial. Moreover, paragraph 46 like the parallel provision in the earlier probation rules clearly recognises the position that temporary service (i. e. during their training in College rendered by direct recruits) and officiating service rendered by the promotees are both prior to appointment on probation and such-service can be counted for the limited purpose of determination of their increment in the time scale. For reasons already given such a provision would be wholly inconsistant with the idea that put on officiating promotion an Assistant sub Inspector joins the cadre of Sub inspector and renders service therein. There is positive indication that such services rendered by the two groups are not considered to be service in the cadre which they enter only on appointment on probation that follows. 32. SUCH a construction again would introduce serious anomalies in the position of direct recruits. Temporary posts to which such Officiating promotions are being made, are quite numerous and they are not considered a part of the cadre for the purpose of allotment of quota. In the result all these posts are held by Assistant Sub Inspectors promoted as officiating Sub Inspectors. Had these posts constituted a part of the cadre then admittedly 40% of these posts which should have gone to the direct recruits were being held by the promotees. If as suggested by the learned government pleader, quota rule is to be applied at the stage of confirmation then these Assistant Sub Inspectors deputising for the direct recruits will continue to officiate and though they may be confirmed in a later year they will be entitled to a higher seniority over the direct recruits of earlier years having regard to the date of officiation. In other words they benefit by unauthorised usurption of posts due to the direct recruits and adversely against them. In other words they benefit by unauthorised usurption of posts due to the direct recruits and adversely against them. Again in that event-the seniority of the direct recruits would become a matter of fluctuating uncertainty because the promotees who are yet to come in the years to follow may from year to year push the direct recruits down in the gradation list claiming higher seniority with reference to the date of officiation. Moreover if I accept such a construction then even amongst the promotees there would be discrimination because a promotee officiating from an earlier date even if he fails in a selection for confirmation, will supersede the others who succeed in such selection in the event he is once selected in later years. This would violate the seniority rule to which reference would be made hereinafter. In my view, that would be unreasonable discrimination so far as the direct recruits are concerned and on the interpretation suggested the rule will not stand the test of constitutionality. For these reasons, I am unable to accept the contention put forward by Mr. Banerji and the government pleader that a promotee enters the cadre after the first selection and the second selection contemplated by sub-paragraph (10) is meant only for confirmation. In my view, sub-paragraph (10) had not been drafted very happily. Though the words used are fit for confirmation this sub-paragraph contemplates a selection which would entitle a promotee to enter the cadre of the substantive rank of confirmed Sub Inspectors. His fitness is tested in that selection but for the entry he is put to probation contemplated by paragraph 46. Before I conclude this part of my consideration it is necessary to dispose of a small point raised by Mr. Bose. Relying upon paragraph 7 of Chapter 1 of the Regulation read with Appendix ii thereof, it has been contended by Mr. Bose that the next higher rank to, the rank of an Assistant Sub-Inspector is the', rank of Sub Inspector and the regulations do not contemplate any rank in between the two. Therefore, according to Mr. Bose, if the posts of officiating sub Inspectors be treated as posts subordinate to the Sub-Inspectors belonging to the permanent cadre that would infringe v the regulation and would create a rank not recognised by such regulations. I may agree with Mr. Therefore, according to Mr. Bose, if the posts of officiating sub Inspectors be treated as posts subordinate to the Sub-Inspectors belonging to the permanent cadre that would infringe v the regulation and would create a rank not recognised by such regulations. I may agree with Mr. Bose that on the provisions of paragraph 7 chapter I of regulations read with Appendix II thereof, it would not be permissible to create any intermediate rank between a Sub Inspector and an Assistant Sub Inspector. But the view that I have taken to the effect that the temporary posts of Sub Inspectors on the basis of which the petitioners were promoted to officiate do not constitute a part of the cadre of Sub Inspector contemplated by the recruitment rules, does not offend either paragraph 7 or appendix II above referred to. On such officiating promotion undoubtedly the petitioners hold the rank of a Sub Inspector. Distinction however, should be made between rank on the one hand and cadre or grade on the other. Paragraph 7 read with Appendix II may not sanction creation of any rank different from those enumerated but those regulations do not stand in the way of the Government sanctioning more than one cadre or grade in a rank or create ex-cadre posts having the same rank but not constituting a part of the cadre. In my view, in the present case, the posts on which the petitioners are made to officiate belong to the same rank and have the same scale of pay but nonetheless they do not constitute an integral part of the cadre of Sub-Inspector, these posts are materially different and distinct from the posts constituting the cadre of Sub Inspectors. In this view, I find little merit in this contention of Mr. Bose. 33. FOR reasons given I, therefore, conclude that in the present case on the application of general principles with regard to determination of seniority as recognised by courts, service rendered by officiating Sub Inspectors against temporary posts cannot be counted for determination of their seniority When finally absorbed in the cadre of Sub-Inspectors because (i) such service is net equivalent service, (ii) such service is service rendered prior to the entry into the cadre and (iii) such service is qualifying service determining the eligibility for entry into the cadre. In view of these distinctive features, the case now under consideration bears a close similarity with the case of Gangaram V. Union of India (supra) where the Supreme Court held that not giving credit for service rendered' on officiating promotion under similar circumstances would not constitute any hostile discrimination. And 34. THIS being the position under the general principles, it remains to be considered whether the specific rules of seniority make any difference. This question has to be considered carefully particularly in view of the contention of the learned Standing Counsel to the effect that the seniority rules of 1981, were frairfed to give recognition to such officiating service in the matter of determination of seniority. Before I come to the 1981 Rules, it would be convenient to refer to the earlier Rules which were, however, mostly administrative rules. Our attention has been drawn to a circular order No. 3681 dated December 16, 1940 which provided the following rule for determination of relative seniority as between the two groups of sub Inspectors. " (1) Departmental appointed Sub Inspectors will be senior to direct recruits for the same year and will be graded inter se according to the date of their confirmation in the rank of Assistant Sub Inspector. " this Rule was superseded in or about the year 1960 by a circular order No. 1483 which prescribed : "the seniority of departmentally promoted and directly recruited Sub Inspectors will be determined in accordance with the date of their probationary appointment in the rank." Under neither of these two Rules an assistant Sub Inspector temporarily promoted to officiate as a Sub Inspector could claim seniority on the basis of the date of such officiating appointment. These Rules contemplated determination of seniority having regard to the entry' into the cadre so that when officiating promotion does not constitute such entry, services rendered on officiating promotion can not count for seniority under these rules. These rules were superseded in 1968 when a set of rules was framed laying down the principles for determination of seniority in the various services and posts under the State Government. These rules were superseded in 1968 when a set of rules was framed laying down the principles for determination of seniority in the various services and posts under the State Government. Rule 6 of these rules provided for determination of relative seniority of direct recruits and promotees and it prescribed as follows : "where a percentage has been prescribed in the recruitment rules for direct recruitment and promotion, the relative seniority as between a promotee and a direct recruit shall be determined by the date of substantive appointment of each in the particular post or grade. " 35. ON my findings made hereinbefore, the posts of officiating Sub-Inspectors not being a part of the cadre this rule could be of no help to the officiating sub Inspectors for supporting the claim that officiating service must count for determination of relative seniority. 36. ALL these rules, however have now been superseded by the West Bengal services (Determination of Seniority) Rules, 1981, framed under Article 309 of the Constitution. Rule 3 (vi) explains the term 'date of joining' by prescribing that the same "shall be reckoned from the date of continuous officiation in a post/cadre or grade". Rule 4 prescribes the mode of determination of seniority of direct recruits and the material part of this rule is as follows : "4. 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 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. " Rule 5 prescribes the method of determination of seniority of the promotees and the material part of it reads as follows : "5 (1) Seniority of persons appointed on promotion to any post, cadre or grade shall be determined from 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. (3) Persons appointed on the result of an earlier selection shall be senior to those appointed on the result of a subsequent selection. (3) Persons appointed on the result of an earlier selection shall be senior to those appointed on the result 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, cadres or grades do not come within the purview of the commission. Rule 6 provides for the method of determination of relative seniority of direct recruits and the promotees and it reads as follows :- "6 (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-block senior to the direct recruits of the same year. " Rule 8 provides for service benefits and it reads as follows : "8. With effect from the date of coming into force of these rules for the purpose of service benefits available on the basis of seniority such seniority shall mean the seniority determined under these rules." Rule 10 provides for repeal and saving and it reads as follows :- 10. All rules, orders or memoranda concerning matters covered by these rules are hereby repealed. Provided that the cases of benefits already given on the basis of seniority determined in accordance with the principles in force prior to the coming into force of these rules shall not be affected. Provided further that there shall be no change in the existing order of inter-se-seniority amongst the officers of services within the meaning of West Bengal Services (Unification of State Services) Rules, 1979 (hereinafter referred to as the said Rules) as determined prior to the coming into force of the said rules, that is, the 18th May 1979". According to Mr. Chatterji, under Rule 5 of these Rules the seniority of a promotee is to be determined from the date of joining which again under rule 3 shall be reckoned from the date of continuous officiation. Therefore, according to Mr. Chatterji, the promotees are entitled to count services rendered as officiating Sub Inspectors if it is continuous service for determination of their seniority. This contention of Mr. Therefore, according to Mr. Chatterji, the promotees are entitled to count services rendered as officiating Sub Inspectors if it is continuous service for determination of their seniority. This contention of Mr. Chatterji, however, overlooks the fact that under Rule 5, the date of joining must be date of joining "such post, cadre or grade." Continuous officiation may count for seniority under this Rule if it is in the same post, order or grade: but not in a different post, cadre or grade. When on the interpretation of the recruitment rules, it has been found by me that the posts in which the petitioners had been officiating are not a part of the cadre, such officiation necessarily cannot count for the purpose of determination of seniority even under rule 5. But that apart Mr. Chatterji overlooks the express provision in Rule 6 which prescribes that in determining the inter se seniority between the direct recruits and the promotees what is to be counted is the year of appointment or promotion irrespective of the date of joining. Obviously it contemplates that promotees or direct recruits so promoted or recruited against the vacancies of a particular year in a cadre or grade would be senior to those, be they direct recruits or "promotees, so recruited or promoted against vacancies of a subsequent year. Sub-Rule (3) of Rule 5 further provides, expressly that persons appointed on the result of an earlier selection shall be senior to those appointed on the result of a subsequent selection. If I accept the contention of Mr. Chatterji, namely, that irrespective of the date when an officiating Sub-Inspector qualifies himself in a selection for entry into the cadre of permanent Sub Inspectors, his seniority must be determined with reference to his date of continuous appointment as an officiating Sub Inspector, in that event an officiating -Sub Inspector who qualifies himself in a later selection may supersede the earlier selected candidates, both promotees and direct recruits because of his continuous officiation with effect from an earlier date but contrary to Sub-rule (3) of Rule 5 of these Rules. In my view, Sub-Rule (1) of Rule 5 must be read harmoniously with the other rules including sub-rule (3) of the said Rule. In my view, Sub-Rule (1) of Rule 5 must be read harmoniously with the other rules including sub-rule (3) of the said Rule. So read, sub-rule (1) only means that on an entry to a post, cadre or grade on promotion, the promotees promoted on the basis of one and the same selection would be entitled to have their seniority determined having regard to the continuous service rendered on officiation in the same post, cadre or grade. This Rule, therefore, lays down nothing contrary to the basic principles which I have referred to hereinbefore and these rules do not support the claim of the petitioners that officiating service rendered by them in posts outside the cadre and before the final selection should count for determination of their inter se seniority with direct recruits. 37. IT now remains for me to consider the different decisions of the Supreme Court relied on by the counsel for the respective parties. Quite naturally both Mr. Bose and Mr. Chatterji have strongly relied on the decision of the Supreme Court in the case of S. B. Patwardhan vs. State of Maharastra A. I. R. 1977. S. C. 2051. In this case the supreme Court no doubt laid much emphasis on the principles "if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct uecruits and promotees. " But it should lie remembered that the said principle was emphasised by the Supreme Court in the context of that case; There the supreme Court was considering the constitutional validity of a bombay Rule which prescribed that while seniority of direct recruits shall be determined with reference to the date of probation, the seniority of promotees shall be so determined with reference to the date of their confirmation. Both on facts and on interpretation of the rules, the Supreme Court found that there the cadre consisted of both temporary and permanent posts. It was further found that the promotees promoted to officiate otherwise fulfilled all the requirements for promotion except confirmation, that the quota rule was not operative at the stage of confirmation and that the promotees were not confirmed inspite of substantive vacancies being available to them for confirmation. It was further found that the promotees promoted to officiate otherwise fulfilled all the requirements for promotion except confirmation, that the quota rule was not operative at the stage of confirmation and that the promotees were not confirmed inspite of substantive vacancies being available to them for confirmation. Only on the facts so found, the supreme Court struck down the Bombay Rule and held instead of adopting an intelligible differentia Rule 8 (iii)left seniority to be determined on the sole touchstone of confirmation though confirmation itself was one of the inglorious uncertainties of Government service. 38. THE next case relied on by Mr. Bose is the case of Baleswar Das vs. State of 17. P. A. I. R. 1981 S. C. 41. The principles laid down in this case are similar to those laid down in Patwardhan's case. In this case seniority was to be determined with reference to the order of appointment to service and the rule further denned 'member of the service' to mean one appointed in a substantive capacity to a post in the cadre of service. Having found that temporary posts of indefinite tenure were part of the cadre and having further found that the appointment to such temporary posts had been made substantively on fulfilment of all the necessary conditions for regular appointment, the Supreme court directed that seniority of persons so appointed though against temporary posts must be counted with reference to their service rendered as such. Chattrjee has relied on the decision or the Supreme Court in the: case of N. K. Chauhan vs. State of Gujarat A. I. R. 1977 S. C. 251. This decision, in my view, instead of supporting the case of the petitioners may go against them. Here, seven directly recruited Deputy Collectors who were recruited in the year 1963 claimed seniority over such of the promotees as were promoted beyond their quota between the years 1960 and 1963 during which period there was no direct recruitment. They claimed such seniority on an assumption that the rule of rotation must be deemed to be applicable by necessary implication in view of the quota rule. They claimed that vacancies earmarked for the direct recruits for the years 1960 to 1963 must be carried forward for their benefit. Supreme Court overruled such a claim. It was held that rotation rules cannot be invoked by implication. They claimed that vacancies earmarked for the direct recruits for the years 1960 to 1963 must be carried forward for their benefit. Supreme Court overruled such a claim. It was held that rotation rules cannot be invoked by implication. It was further found that the quota fixed was not inflexible until 1966 and it was also found that for the years 1960 to 1962 the Government tried as far as practicable to fill up 50% of the substantive vacancies by direct recruitment but having failed there was within its; right to fill up all the vacancies by promotion. But even in this case the Supreme Court directed that in case of promotion beyond the fixed quota in the years following 1966, the promotees were to be pushed down for being absorbed against vacancies in subsequent years in strict compliance with the quota rule. This part of the Supreme Court's decision really goes against the claim of the petitioners now before us. 39. MR. Chatterjee has next relied on the decision in the case of B. L. Goel vs. State of U. P., A. I. R. 1979 S. C. 228. In this case, the appellant, a District and Sessions Judge was not confirmed for no fault of his though 22 permanent posts of District and sessions Judges were created with effect from 1. 4. 66 and he could have otherwise been confirmed against one such posts. He was later confirmed with effect from 1. 1. 69 while three directly recruited District and Sessions Judge who were so recruited 6 years after the appellant, were confirmed with effect from various dates in 1968. The appellant's challenge to such notional confirmation with effect from a subsequent date and consequent loss of seniority was upheld by the Supreme Court on a finding that the quota rule had no application and that the deferred confirmation of the appellant was purely arbitrary. 40. RELIANCE is also placed by Mr. Chatterji on the decision in the case of k. B. Sukla vs. Union of India, A. I. R. 1979 S. C. 1136. But in this case the point for consideration was totally different. 40. RELIANCE is also placed by Mr. Chatterji on the decision in the case of k. B. Sukla vs. Union of India, A. I. R. 1979 S. C. 1136. But in this case the point for consideration was totally different. Here the Supreme Court was upholding the constitutional validity of a rule which permitted appointment to a cadre by transfer from other services for exigencies of service and conferment of seniority to such transferee irrespective of quota fixed for promotion held to be not applicable to such transfer. Incidentally the Supreme Court was only referring to the principles laid down in Patwardhan's case with approval. The latest decision of the Supreme Court in the case of A. Janardhan vs. Union of India, 1983 L and I Cases 849 too does not help the petitioners. In this case the Supreme Court found that the quota rule was relaxed and the petitioner was otherwise promoted to a post in the same cadre unconditionally and without any reservation. 41. THESE are the decisions mainly relied on in support of the contention that officiating service rendered by the officiating Sub Inspectors should count for the purpose of determination of their seniority vis-a-vis the direct recruits. In my view, however, none of these decisions support such a contention. In all these cases where benefit of temporary or officiating service had been allowed to be reckoned for the purpose of determination of seniority it has been so done on a specific finding that the person rendering such service had otherwise been duly appointed and/or promoted to hold a post in the cadre and that his confirmation was not dependent on any quota and/or any other test or eligibility to be acquired but was entirely dependent of the Government. None of these decisions can be read as an authority for a proposition that services rendered in a post outside the cadre or officiating service rendered by a promotee who is yet to undergo a regular selection for obtaining the promotion can count for the purpose of seniority when absorbed in the cadre. 42. ON the other hand, Mr. Pal has referred to two decisions of the Supreme Court which materially go against the claim in this respect put forward by the petitioners. Mr. 42. ON the other hand, Mr. Pal has referred to two decisions of the Supreme Court which materially go against the claim in this respect put forward by the petitioners. Mr. Pal has first referred to the decision of the Supreme Court in the case of Kalyani Dayal vs. Union of India 1980 (3) S. S. C. 245. In this case, the Railways were in urgent need of some additional engineers for some of their projects. Such requirement could not be met by immediate recruitment or promotion to Indian Railway Service of Engineers, Class-I. Hence, the Railways recruited a number of temporary assistant engineers through the Union public Service Commission to these temporary posts 'of additional engineers. On the express terms of appointment such temporary engineers on rendering 3 years service could be considered for absorption in Class-I Service. Art the time of recruitment these temporary engineers no doubt held the minimum qualification for being recruited to Class I Service and it was also not disputed that on such appointment they were given the same scale of pay and that they discharged the same duties as those in Class I Service. These temporary engineers being gradually absorbed in Class I Service claimed that when appointed as temporary engineers they were so appointed in temporary posts in the cadre of Class I service and their seniority must reckon on the basis of length of continuous service and not from the date of their absorption in Class I. According to them, to treat them otherwise, would be violative of Articles 14 and 16 of the Constitution. This claim was overruled by the Supreme Court. It was held that though a cadre may consist of permanent as well as temporary posts, it was open to the Railways to create temporary posts outside the cadre. It was further held that when the temporary posts so created was a source of recruitment to Class I Service, such posts cannot be treated as part of the cadre of Class i Engineers. That the temporary posts were of indefinite tenure was of no consequence. It was specifically held by the supreme Court in this case that persons so appointed to such non-cadre temporary posts cannot claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and to posts borne on the cadre of service. It was specifically held by the supreme Court in this case that persons so appointed to such non-cadre temporary posts cannot claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and to posts borne on the cadre of service. The fact that such temporary engineers held the minimum qualification, enjoyed the same scale of pay and rendered the same duties as Class I Engineers would not be a matter of importance for treating them as equal to those recruited to the cadre in strict compliance with the rules. 43. RELIANCE is also placed by Mr. Pal on the decision of in the case of V. B. Badami vs. State of Mysore A. I. R. 1980 S. C 1561. Here the Supreme Court found that the cadre consisted of only permanent posts and hence it was held that where promotees have been recruited beyond their quota, though they need not be reverted, the quota rule has to be implemented by adjustment of seniority consistent to the quota. 44. ON a careful consideration of these two decisions of the Supreme Court it appears to me that the decision in kalyani Dayal's case materially covers the field now under consideration by us in the present case. Here, as I have pointed out previously that officiating service is contemplated by the rules to be outside the cadre and before the entry therein. Further, such service for a prescribed period is an eligibility for entry into the cadre. Moreover, though there is a rule prescribing mandatory quota for the direct recruits and the promotees that is not applicable at the stage of recruitment to the officiating posts. In that view, the posts held by officiating Sub-Inspectors cannot be considered to be a part of the cadre nor can the service rendered as such be reckoned for seniority vis-a-vis the direct recruits irrespective of their respective date of entry into the cadre. Before I conclude considerate on of the petitioner's grievance with regard to the non-conferment of appropriate seniority it is necessary for me to consider another aspect of this grievance strongly placed before us by Mr. Bose appearing on their behalf. According to Mr. Before I conclude considerate on of the petitioner's grievance with regard to the non-conferment of appropriate seniority it is necessary for me to consider another aspect of this grievance strongly placed before us by Mr. Bose appearing on their behalf. According to Mr. Bose yearly promotion for departmental candidates not having been made strictly in compliance with the quota rule, many of the promotees could not enter the cadre of permanent sub Inspectors in their respective appropriate turn. In the result such entry being delayed they have necessarily lost their position in seniority to those direct recruits who got their appointment in the meantime. Seniority having; been determined with reference to the date of entry and/or consequent confirmation under the prevailing" rules, such a consequence had followed to the prejudice of the promotees. Though not very expressly, in paragraphs 12, 16 and 34 of the petition the petitioners have made out such a grievance apart from the fact that Mr. Bose expressly made out such a grievance at the very outset of the hearing before us. Though the Commissioner in his affidavit has vaguely challenged the correctness of such, a claim, at the time of hearing of the Rule Mr. Chatterji, the learned Standing Counsel appearing for the State fairly con-ceded that recruitments had not been made in strict compliance with the quota rule and he further conceded that in few years the Government failed to constitute any Board for selection of departmental candidates for promotion to the rank of permanent Sub Inspectors. In course of the hearing we directed the Government to rile an affidavit disclosing before us the early vacancies in the permanent cadre of Sub Inspectors and how and in what proportions such posts were filled up as between the promotees and the direct recruits. An affidavit was filed incorporating a chart but that is hardly intelligible. In my view, on that affidavit it is not possible for this court to determine as to whether all the yearly vacancies had been duly filled in from amongst the promotees and direct recruits in accordance with the quota rule. In a subsequent answer to an interrogatory the Deputy commissioner of Police, Headquarters stated that between the years 1957-1981 the total number of vacancies in the cadre of permanent Sub Inspectors would be 1603. In a subsequent answer to an interrogatory the Deputy commissioner of Police, Headquarters stated that between the years 1957-1981 the total number of vacancies in the cadre of permanent Sub Inspectors would be 1603. He has further stated that against these vacancies there had been 472 direct recruitments and 547 promotions. Of the balance 584 vacancies 472 vacancies have been otherwise filled in and the remaining 112 vacancies are being processed. In spite of efforts made by the learned Standing Counsel it had not been possible for him to explain what is really meant by 472 vacancies being otherwise filled in. In any event, in spite of express opportunity being given to the State, the State had failed to satisfy this Court that yearly vacancies in the cadre of permanent Sub-Inspectors had been filled in from two sources strictly in accordance with the quota rule. On the other hand, the learned standing Counsel has been fair enough to concede that it had not been possible for the State co abide by the said rule. It goes without saying that the: failure of the authorities to fill in yearly vacancies strictly in accordance with the quota rule would affect the seniority. 45. PARAGRAPH 3 (1) Chapter XV prescribes the quota and permits no relaxation save and except to the extent as the state Government may do in exercise of its powers under Rule 5 of the said rules as it may deem fit for the purpose of dealing with a case in a just and equitable manner. It is nobody's case that there had been any relaxation made under Rule 5. It is now well settled that a quota rule has to be strictly adhered to. Therefore, in "my opinion, the petitioners promotees have made out a case for readjustment of their seniority upon re-adjustment of their promotions with effect from the date may be found due to them in their quota. This point raised by the petitioners, therefore, succeeds. 46. NEXT I proceed to consider the grievance of the petitioners with regard to implementation of intermediate selection grade sanctioned with effect from the year 1974. This grievance has been made out expressly in paragraphs 35 to 42 of the petition. This point raised by the petitioners, therefore, succeeds. 46. NEXT I proceed to consider the grievance of the petitioners with regard to implementation of intermediate selection grade sanctioned with effect from the year 1974. This grievance has been made out expressly in paragraphs 35 to 42 of the petition. According to the petitioners, such an intermadiate selection grade was created on the recommendation of a committee to give benefit to such employees as having reached the last stage of their pay scale, are held up there without any proximate chance of further promotion. Though the intermediate selection grade posts were created with this object, benefit thereof had been given mostly to direct recruits by virtue of their seniority in the cadre of permanent Sub Inspectors who reached the last stage much later than the officiating Sub Inspectors. As a result, the promotees who have rendered 20 to 25 years service and have reached the last stage in the scale are excluded from the benefit which had been' given to such of the direct recruits who have been working for not more than 10 to 1 years and had not reached the last stage of scale of pay. In the affidavits filed on behalf of the State and on behalf of the direct recruits there has been a vague denial of this claim. According to the commissioner the promotees like the petitioners being junior to directly recruited Sub Inspector as per rules, some of the directly recruited Sub Inspectors shown as senior in gradation list have no doubt been given the benefit of intermediate selection grade which has not been given to many of the promotees but that had been done on the basis of seniority (vide paragraph 31). More or less the same position has been taken by the direct recruits in paragraph 26 of their affidavit -in -opposition. On a careful review of the legal position, it appears to me that the authorities implementing this scheme have failed to appreciate the true nature of the sanction. More or less the same position has been taken by the direct recruits in paragraph 26 of their affidavit -in -opposition. On a careful review of the legal position, it appears to me that the authorities implementing this scheme have failed to appreciate the true nature of the sanction. It is not in dispute that the West Bengal Services (Revision of pay and Allowances) Rules, 1970 (hereinafter referred to as the Revision of pay Rules) was amended by the Governor in exercise of his powers under article 309 of the Constitution to create intermediate selection grades for different services in the light of the recommendation of a Committee referred to in the petition. At first 10% of the service and/or cadre was converted into a higher intermediate selection grade with effect from March 1974. Later this percentage was increased and 15% of such service or cadre was converted into an intermediate selection grade. By a Notification dated April 23, 1976, the Government accorded sanction to the creation of "permanent New / Intermediate Selection Grade posts of 59 Sub inspectors" with effect from 1st March 1974 (vide paragraph 1 of the notification ). By the same Notification, the Government accorded sanction to the creation of temporary new intermediate selection grade posts of 44 Sub Inspectors with effect from the said date (vide paragraph 2 thereof ). The Notification further directed as follows : "the Governor is further pleased to direct that identical number of basic grade post in each cadre mentioned in paragraphs 1 and 2 above shall remain suspended so long as a new intermediate selection grade post sanctioned in the order remain filled up." By another Notification of the same date issued on same terms the strength of permanent intermediate selection grade posts of Sub Inspectors was raised to 88 and that of temporary intermediate selection grade post of Sub Inspectors was raised to 69 with effect from 1st August 1974. 47. ONE has to refer to a Memorandum dated February 21, 1975, issued by the state Government to find the reason for such separate sanction of intermediate selection grade posts for permanent Sub-Inspectors and temporary sub Inspectors. This Memorandum reads as follows :- "subject : Clarification regarding mode of calculation of new intermediate selection grade posts. 47. ONE has to refer to a Memorandum dated February 21, 1975, issued by the state Government to find the reason for such separate sanction of intermediate selection grade posts for permanent Sub-Inspectors and temporary sub Inspectors. This Memorandum reads as follows :- "subject : Clarification regarding mode of calculation of new intermediate selection grade posts. Reference have been received from various departments/offices regarding the mode of calculation of new/intermediate selection grade posts sanctioned in the Department's Notification No. 10303f dated 19th November 1974. I am directed by order of the Governor to say that in calculating the number of new/intermediate selection grade posts in a cadre the number of permanent and temporary posts shall be taken separately and separate selection grade posts shall be sanctioned thereon. It shall, however, be noted in this connection that with the creation of posts in the new intermediate selection grade of an equivalent number of posts in the basic grade of the cadre shall remain suspended. " 48. IT is obvious, therefore, that the government accorded sanction to the creation of 88 permanent intermediate selection grade posts of Sub Inspectors against the cadre strength of permanent sub Inspectors by converting 88 posts of that cadre into intermediate selection grade posts as would be found from paragraph 1 of the Notification dated April 23, 1976. Similarly it is quite evident that the Government simultaneously accorded sanction to the creation of 69 temporary intermediate selection grade posts of Sub-Inspectors by converting 69 such temporary posts into the intermediate selection grade. This position appears to me to be quite evident in view of the Memorandum of the State Government dated February 21, 1975, referred to hereinbefore. In order to be assured in this regard, we called upon the State Government to produce before us the file incorporating the minutes leading to the sanction dated April 23, 1976. Our object for such a requisition was to see that 69 temporary intermediate selection grade posts were actually sanctioned against temporary posts of Sub Inspectors but we regret that the State Government refused to produce the said file. We make no secret of the fact that in the matter of disposal of this Rule we have received the best of assistance only from the respondents other than the State and its officials. We make no secret of the fact that in the matter of disposal of this Rule we have received the best of assistance only from the respondents other than the State and its officials. Be that as it may, on the materials referred to hereinbefore, I have satisfied myself that the 69 temporary intermediate selection grade posts of Sub-Inspectors were created against temporary posts of Sub-Inspectors held exclusively by the officiating Sub inspectors. I have already indicated hereinbefore that both according to the state Government and the direct recruits these temporary posts of Sub-Inspectors are not a part of the cadre of permanent Sub-Inspectors and that had been my finding having regard' to the rules referred to hereinbefore. The said fact necessarily disentitles the members of the cadre of permanent Sub Inspectors to claim any of these 69 temporary intermediate selection grade posts of sub Inspectors created on conversion of equal number of temporary posts of sub-Inspectors. Admittedly in implementing this sanction the authorities concerned were not aware of this position when all the sanctioned posts were allotted merely on the basis of seniority in the gradation list of permanent Sub inspectors. In my view such separate allotment for the permanent Sub Inspectors and temporary Sub Inspectors would also be in consonance with the object 'of creation of such intermediate selection grade. It was created to give some benefit to such of the employees who have been stagnating at the highest stage of their grade for years not having any proximate chance of promotion. It is not disputed that Assistant Sub Inspectors promoted to officiate as Sub Inspectors do not get a chance even to enter the permanent cadre of Sub Inspectors for 20 to 25 years. Obviously they would be held up at the highest stage of the scale for more years than the direct recruits for whom chance of promotion is much brighter. Therefore, if the object of creation of such intermediate selection grade is to be fulfilled it is eminently necessary that separate intermediate selection grade posts should also be created for these temporary sub Inspector and that exactly was the sanction in the present case. Therefore, if the object of creation of such intermediate selection grade is to be fulfilled it is eminently necessary that separate intermediate selection grade posts should also be created for these temporary sub Inspector and that exactly was the sanction in the present case. In the result, i find much substance in the grievance made by the petitioner in this regard and I am of the opinion that the allotment of intermediate selection grade posts should be revised 88 posts being given to the permanent Sub Inspectors and 69 posts being, given to the officiating Sub Inspectors. I am however conscious of an anomaly which would follow but which cannot be avoided viz. that as and when an officiating Sub inspector enjoying the intermediate selection grade gets his promotion to the permanent cadre, he would loose the benefit. This can be remedied by special pay protection given by the State as personal pay. But in my view because of a few cases of such anomaly, the benefit otherwise given specifically to these officiating Sub Inspectors separately is not be taken away. 49. NEXT I proceed to consider the last grievance made out by the petitioners. This relates to their right to further promotion to the rank of Inspector. I have already indicated hereinbefore that the only mode of recruitment of an Inspector is by promotion from the rank of Sub-Inspector. Under paragraph 1 Chapter XV such promotion is effected through a selection made on the basis of merit with due regard to seniority. It is further provided that before a Sub-Inspector can be called for selection he is required to pass departmental examination. Sub-paragraph (3) of Paragraph 1 set out hereinbefore provides that -while direct recruits shall be eligible to sit for the departmental examination after their confirmation and on compliance of 7 years' service, the promotee shall be so eligible after their confirmation in the rank of Sub-Inspector provided their total length of service as Sub Inspector is not less than 7 years. 50. IN their application the petitioners have challenged the constitutional validity of this sub-Paragraph. 50. IN their application the petitioners have challenged the constitutional validity of this sub-Paragraph. It has been so challenged cm the view that while fertile direct recruits confirmation follows as a matter of course an completion of temporary service followed by the period of probation and they acquire eligibility once they complete 7 years of service as Sub Inspector including the temporary service, for the promotees eligibility is not acquired on rendering of 7 years service as for them confirmation is wholly uncertain. Petitioners contend that under this sub-rule while a direct recruit attains eligibility for promotion to the rank of Inspector on completion of 7 years service including temporary service, for the promo tees 7 years of service is merely the minimum so that in actual field they have to tender more than 15 to 20 years of service before they can be promoted as Inspector. Petitioners claim that the Sub-Para thus makes a hostile discrimation as against the promotees. In course of argument Mr. Bose appearing on behalf of the petitioners suggested that the requirement of contirmation as prescribed by this sub-rule for the promotees may be interpreted as directory so that the confirmation for the promotees being delayed that requirement may be waived for the purpose of conferring promotion to the rank of Inspector to the promotee Sub-Inspectors. It has been so suggested by mr. Bose in order to uphold the constitutional validity of subparagraph (3 ). incidentally in paragraph 58 and 59 the petitioners challenged the approved list of Sub inspectors declared fit on selection for promotion as Inspector on 24/25th July 1978. This claim has been strongly contested by the respondents in their affidavit. On a careful analysis of the requirements prescribed by paragraph 1, I am unable to accept the claim put forward in the petition that sub-paragraph (3) can not stand the test of constitutional validity or that the requirement of confirmation is merely directory. Indeed this rule makes confirmation in the rank of Sub Inspectors the basic eligibility for promotion to the next higher rank of Inspector and there is nothing unreasonable in it because it is not expected that persons holding the rank either as a probationer or on officiation should supersede those already confirmed in the matter of further promotion to the rank of Inspector. It would be quite reasonable to prescribe that a person only when confirmed in the rank can aspire for the promotion to this next higher rank and his precarious existence in the basic rank is not considered as eligibility for such promotion. Sub- paragragh (3) makes no distinction between a direct recruit or a promotee for both of whom confirmation and 7 years minimum service is the basic qualification. It Is not correct to think that every directly recruited Sub Inspector gets his promotion no sooner he complete 7 years of service including temporary service. Rendering of such service confers the eligibility, the chance of promotion being dependent upon the vacancies available The position of the promoted Sub Inspectors is no different because once confirmed, the eligibility for a promotion is the same 7 years of service, obviously including service rendered as an officiating Sub inspector; his chance of promotion being dependent upon the availability of vacancy. There is a clear indication in this rule, that 7 years of required service is service as a Sub-Inspector and need not be only after entry into the cadre. Temporary service rendered by the direct recruits before the entry or officiating service rendered by the promotees equally count for their eligibility. Therefore, once integrated though recruited from two sources, the Sub inspectors are not differentiated for the purpose of conferring on them promotion to the next higher rank of Inspector. It may be true that an Assistant Sub Inspector who is promoted to officiate as Sub Inspector has to render long years of service before he is confirmed but that delay is not due to any uncertainty in the matter of confirmation. It is due to the fact that he is so promoted not against a cadre vacancy but against a temporary non-cadre post and the officiating service rendered, is not in the cadre and as such, is not counted for confirmation. I have considered at length the unsustainability of the, basic claim of the petitioners that years of service rendered by them as officiating Sub-Inspectors should count for further benefit of service by way of seniority and promotion. Since challenge to the constitutional validity of sub-paragraph (3) is materially based upon such a claim, I am unable to sustain the same. For the same reason, I am unable to accept the contention of Mr. Since challenge to the constitutional validity of sub-paragraph (3) is materially based upon such a claim, I am unable to sustain the same. For the same reason, I am unable to accept the contention of Mr. Bose that the requirement of confirmation should be interpreted as mere directory. I, therefore, overrule the last claim of the petitioners and the contention of Mr. Bose with regard thereto. Though the petitioners have challenged incidentally the approved list of sub Inspectors declared fit for promotion to the rank of Inspectors on the selection held on the 24/25th July, 1978. Mr. Bose had been fair enough not to press this part of the petitioners' claim, obviously the petitioners are not entitled to do so for the simple reason that the candidates so declared fit have not been made parties to the writ petition, some of whom have already been promoted as Inspector. It would not be just and proper for this court to set aside the said list in their absence. This, concludes consideration of the first writ petition on which the Rule bearing the number 0. S. Matter No. 388 of 1980 was issued. 51. I now proceed to consider the other rule which had been heard analogously. This Rule, C. R. 7979 (W) of 1981, was obtained by 10 Sub Inspectors who were all directly recruited as such and some of whom were made respondents to the writ petition just dealt with. The petitioners in this Rule were recruited on different dates between 1963 and. 1969 and were confirmed as Sub Inspectors between 1966 and 1972. In this Rule which again had been obtained on a writ petition, the directly recruited Sub Inspectors have challenged the constitutional validity of the 'seniority rules 1981 referred to hereinbefore and certain clarifications thereof. Such challenge is based upon an apprehension that on implementation of the new seniority rules, the existing gradation list of Sub Inspectors would be revised and all the promotee Sub inspectors being given seniority from the date of their respective officiating appointment would en block be put on the top of the list completely blocking all the chances of the direct recruits for any further promotion. Or in other words they were appre-hending that 1981 seniority Rules would be interpreted in the manner suggested by the learned Standing Counsel. 52. Or in other words they were appre-hending that 1981 seniority Rules would be interpreted in the manner suggested by the learned Standing Counsel. 52. REFERRING to the recruitment rules and the pre-existing seniority rules, the petitioners in this Rule have stated that the inter se seniority in between the direct recruits and the promotees had been determined and assigned on the existing gradation list prepared according to such rules. They further state that they have been given the benefits like the intermediate selection grade on the basis of such seniority and they stand chances of promotion to the next higher rank of Inspectors on that basis. Then they refer to the new seniority rules of 1981 and the Government clarifications dated May 20, 1981 and June 12, 1981, indicating that for conferment of benefits of service, the existing seniority lists have to be revised and seniority of the members has to be re-determined in accordance with the new Rules. The petitioners complain that the new Rules when implemented in terms of the clarification would not only change the entire inter se seniority but would take away the valuable rights of the directly recruited Sub Inspectors. It would confer promotional benefit even to unconfirmed officiating Sub Inspectors some of whom are not even confirmed as Assistant Sub inspectors. They claim that the officiating sub Inspectors can not be treated at per with those holding cadre posts until they are confirmed according to the rules. Such officiating Sub Inspectors not having acquired any right to a post in [the cadre can not be equated with those already. On the cadre. They thus challenge the constitutional validity of such Rules of 1981 and the clarifications on the ground that it would entail civil and penal consequences by- way of (1) Disturbing the seniority already determined and (2) affecting the right to other benefits of such a seniority including right to higher promotion. It is claimed' the same would be violative of articles 14,16 and 309 of the Constitution because in that event unequals would be treated as equals and holders of substantive posts in the cadre would be accorded unequal treatment vis-a-vis those who are not holding any such post. It is claimed' the same would be violative of articles 14,16 and 309 of the Constitution because in that event unequals would be treated as equals and holders of substantive posts in the cadre would be accorded unequal treatment vis-a-vis those who are not holding any such post. They further challenge the validity of Rule-6 (2) which confers en block seniority to the promotees of a year over the direct recruits of that year on the ground that such a provision is not based on any reasonable ground. On the case so made the petitioners have prayed for the following reliefs :- (a) a declaration that the seniority list and the clarifications made thereof are ultra vires Article 309 of the Constitution. (b) a writ in the nature of Mandamus directing the respondents not to change or modify the existing gradation list on the basis of the new rules for the purpose of giving further promotion and further directing them to cancel/withdraw and/or rescind the said Rules and its clarifications and to give promotion only on the basis of the gradation list as prepared under the old rules. This Rule has been contested both by the State and its authorities as also by a group of promotee Sub Inspectors who have been made parties respondents. 53. ON the conclusions with regard to the scope and effect of these new seniority rules of 1981 already arrived at, I think that the present challenge to the constitutional validity of the Rules must fail. It would fail on the ground that merely a misapprehension constitutes the basis of such challenge. Under the Rules of 1981 no doubt a person officiating in a cadre post is entitled to count continuous officiating service rendered by him for seniority. But it would be limited to the determination of interse seniority of promotees promoted on one selection; where promotion is based on selection persons promoted on an earlier selection cannot be superseded on basis merely of earlier officiation. Then again where, as in the present case, recruitment is made from two sources on the basis of earmarked quota, those promoted or directly recruited in a later year cannot supersede those who were recruited or promoted in earlier years. Then again where, as in the present case, recruitment is made from two sources on the basis of earmarked quota, those promoted or directly recruited in a later year cannot supersede those who were recruited or promoted in earlier years. The Government clarification has also pointed out correctly that though benefits already acquired on the existing seniority list are not to be affected, for conferment of future benefits, the existing seniority list has to be revised. Any change in the seniority position to that extent would not be invalid, and none can claim a protected position in the seniority list nor open to alteration by a duly framed Rule having the force of law. Such a change may affect the chance of promotion but not the right to it and to that extent is within constitutional sanction if it does not violate the rule of equality. 54. BUT the real grievance or apprehension for the petitioners is that for redetermination of seniority under the 1981 rules, officiating service rendered by the promotees prior to their entry into the cadre would count for determination of their seniority when they enter the cadre. For reasons given I have rejected such a claim put forward by the promotees, I have already held that such officiating service is not service in the cadre and as such cannot count for determination of seniority under Rule 5 and in any event the inter se seniority between the direct recruits and promotees cannot be so determined in violation of the specific rule viz., rule 6 which should prevail in determining such inter se seniority. Thus the basis of the challenge goes. The unequals are not treated as equals and there is no discrimination as against the direct recruits. What remains to be considered is the challenge to sub Rule (2) of Rule 6. In the matter of determination of inter se seniority between the direct recruits and promotees of a particular year, this sub Rule prescribes that the promotees en block should be given seniority above the direct recruits of that year. Such a provision is being challenged on the ground that it is not based upon an intelligible differentia and furnishes an arbitrary basis for determination of inter se seniority between the two groups recruited in a year. I am, however, unable to accept such a contention. Such a provision is being challenged on the ground that it is not based upon an intelligible differentia and furnishes an arbitrary basis for determination of inter se seniority between the two groups recruited in a year. I am, however, unable to accept such a contention. In my view such a provision is based on a ground quite reasonable and intelligible. It is obvious that those who come up on promotion come up with wider experience and later in their age on the consideration whereof the sub rule gives them the said precedence over the direct recruits of that year. The reason for the differentiation is apparent on the Rule and it has in my view, reasonable nexus with the object to be achieved viz, higher efficiency and infusing greater spirit and motivisation for those coming from lower ranks. 55. OUR attention has been drawn to an unreported decision of a learned Single judge in the case of Amalendu Saha and Ors.-vs- State of W. B. and Ors C. O. 8865 (W)/81 disposed of on December 24,1982, where he has struck down this sub Rule. In striking down the provision the learned Single judge has not taken into consideration the material aspects. He has done so only observing as follows :- "the only objection to the Rules of 1981 which in my view can be sustained is that under Rule 6 (2) in respect of appointments in a year the promo tees small be enbloc senior to the direct recruits. If the criterion is length of service than the exact date of appointment or joining within the meaning of the Rules of 1981 should govern seniority." 56. WITH due respect to the learned Judge it should be pointed out that 1981 Rules, having adopted length of service as the basic principle for determination of seniority, has engrafted an exception in Rule 6 (2). It was competent of the Rule-makers to frame a rule in that manner and incorporate an exception. Such an exception would stand, if it could pass the test of constitutionality -which it does for reasons given. Merely because it differs from the basic principle adopted, it does not become invalid as the Ld. Judge seems to think. Whether it can still stand as an exception was not considered by him. Such an exception would stand, if it could pass the test of constitutionality -which it does for reasons given. Merely because it differs from the basic principle adopted, it does not become invalid as the Ld. Judge seems to think. Whether it can still stand as an exception was not considered by him. With respect therefore I am unable to accept his view that the Sub-rule (2) of Rule 6 is invalid and that it should be struck down as such. In the result, the second writ petition referred to hereinbefore on which C. R. 7979 of 1981 was issued fails and the Rule is discharged. There will be no order for costs. 57. SO far as the first writ petition is concerned, on the findings recorded hereinbefore, the same succeeds in part and the rule issued thereon," being C. S. Matter No. 388 of 1980 is made absolute accordingly. The impugned gradation list of permanent sub Inspectors is set aside. The State of west Bengal and the appropriate authorities thereunder are directed to prepare the said gradation list afreah in accordance with law. In doing so they are directed to determine the yearly vacancies available in the cadre of permanent Sub Inspectors with effect from the year 1957 (the earliest year since which two of the petitioners have been officiating ). It should be so determined having regard to the wastage, that is, by promotion, retirement, death, resignation, dismissal, or termination in any other manner of service as also having regard to the general addition to the cadre excluding, however, the specific addition to the cadre for adopting into the cadre a person or a group separately sanctioned as such. Once the yearly vacancies are so determined they would then determine the number of vacancies that would be available from year to year for the direct recruits and the promo tees having regard to the respective quota under the quota rule then prveailing. If in a given year, the number to promo tees so promoted is less than the vacancies available to them than those promoted later should be conferred notional promotion from the earlier year provided the promo tee or promo tees otherwise fulfil the eligibility excepts the selection of the material year. If in a given year, the number to promo tees so promoted is less than the vacancies available to them than those promoted later should be conferred notional promotion from the earlier year provided the promo tee or promo tees otherwise fulfil the eligibility excepts the selection of the material year. On the other hand, if the number of promo tees promoted in a particular year exceeds the quota, those promoted in excess should be pushed down for notional absorption against vacancies for subsequent years. If in a given year, direct recruits be found to have been recruited in excess of their quota then instead of pushing down such direct recruits for absorption against subsequent years, the State Government will be at liberty to enlarge the total vacancy of the year notionally and absorb promo tees proportionately to maintain the quota if necessary in the process indicated hereinbefore. In the event, however, in a particular year if it be found that direct recruits had been recruited short of the due quota, it would be open to the State and its authorities either to reduce the total vacancy for the year in order to maintain the appropriate, proportion for the two sources or to fill up the deficiency by adjustment of excess number of direct recruits in the years to follow but not giving them any appointment with effect from any earlier year. For this purpose the State Government and the appropriate authorities thereunder would be entitled to create super numerary posts so as not to affect persons already promoted beyond the quota due to them. Before finalising the gradation list the State government and the appropriate authorities thereunder would within 6 months prepare and publish a draft gradation list in terms of this order and invite objections thereto from all persons interested and then prepare the final gradation list on due consideration of any objection that may be preferred. 58. THE State Government and the appropriate authorities thereunder are directed to re allot the benefit of intermediate selection grade giving benefit for such permanent and temporary posts separately to the Sub Inspectors on the permanent cadre and officiating Sub Inspectors having regard to their respective seniority in the light of the findings recorded hereinbefore. 58. THE State Government and the appropriate authorities thereunder are directed to re allot the benefit of intermediate selection grade giving benefit for such permanent and temporary posts separately to the Sub Inspectors on the permanent cadre and officiating Sub Inspectors having regard to their respective seniority in the light of the findings recorded hereinbefore. For implementing this direction, the State Government will be at liberty to create super numerary posts in the intermediate selection grade without affecting those who might have been given such benefit in an irregular manner. Let a Writ in the nature of Mandamus do issue accordingly on the respondent state and its authorities who are parties respondents to the above Rule. The petitioners are entitled, to costs from the State of West Bengal. This Rule, is accordingly made absolute in part with costs, the costs being payable by the State of West Bengal. Hearing fee being assessed at 30 gold mohurs.