Subrata Majumdar v. State of West Bengal — 1985 DIGILAW 406 (CAL)

JUDGMENT Ajit Kumar Sengupta, J. 1. This application has been made by two petitioners. The first petitioner has been working as Section Officer in the Home Department and the second petitioner has been working as Officer on Special Duty in the Department of Labour, Government of West Bengal. The first petitioner joined the service under the State respondent as Upper Division Assistant on 11.12.1963 whereas the second petitioner joined on 1.7.1965 as Upper Division Assistant. Both the petitioners were confirmed in the post of U.D. Assistant within 2 years after their respective appointments as U.D. Assistant. The first petitioner was promoted to the post of Head Assistant on 9.9.1970 whereas the second petitioner was promoted to the said post on 1.4.1973. Both of them were confirmed in the post of Head Assistant. Thereafter the first petitioner was promoted on 3.7.1975 to the post of Section Officer and the second petitioner was promoted to the said post on 17.8.1973. On diverse dates on 1979 both the petitioners were confirmed in the post of Section Officer. The petitioner No.2 was promoted to the post of Officer on Special Duty on 12.6.1978. 2. In this petition the petitioners have challenged West Bengal Services (Secretariat Common Cadre) Rules, 1984 and West Bengal Services (Secretariat Common Cadre of Deputy Secretaries and Assistant Secretaries) Rules, 1984. These Rules were framed under Article 309 of the Constitution of India. These Rules have been challenged on the ground that they are violative of Articles 14 and 16 of the Constitution of India. 3. To appreciate the contentions raised by the Learned Counsel appearing for the petitioners it is necessary to set out certain factual back ground and features of the administrative set up of the Secretariat. The Secretariat of the Government of West Bengal is organized under various Departments amongst which the business of the Government is distributed in accordance with rules and/or administrative instructions. West Bengal Secretariat Manual (hereinafter referred to as the said Manual) published by Home Department of the Government of West Bengal is a compilation of the various procedures relating to transaction of business by the Government of West Bengal in its various departments and matters connected therewith. The various Departments of the Secretariat and the distribution of work amongst them are specified in the appropriate Schedules to the said Manual. The various Departments of the Secretariat and the distribution of work amongst them are specified in the appropriate Schedules to the said Manual. It will appear from the relevant provisions of the said Manual and as the fact is that each department is assigned to the charge of a Minister of Ministers, who is or are assisted by the Departmental Staff. Paragraph 3 of Chapter 1 of the Secretariat Manual provides as follows:- "Each Department is assigned to the charge of a Minister or Ministers and with the modifications set forth below consists of a Secretary, who is the official head of the Department, with Gazetted and other staff subordinated to him. The work of a Department may be divided between two or more Secretaries (including an Additional Secretary) or may be allotted to a Joint Secretary. With respect to matters committed to his charge an Additional or a Joint Secretary discharges the functions of a Secretary. The gazetted staff under the Secretary varies indifferent Departments but may include a Deputy Secretary (or Deputy Secretaries) and Under Secretary (or under Secretaries), an Assistant Secretary (or Assistant Secretaries), a Special Officer (or Special Officers) and a Registrar." From the aforesaid narration it would appear that there are various Departments under the charge of Minister who is aided by different Grades of Departmental Staff. It will appear from the relevant provisions of the said Manual that the hierarchy of the Departmental Staff of a Department of the Secretariat is as follows:- (a) Secretary; (b) Additional Secretary or Joint Secretary; (c) Deputy Secretary/under Secretary; (d) Assistant Secretary; (e) Registrar/Special Officer/O.S.D. and allied posts; (f) Section Officer; (g) Head Assistant; (h) Upper Division Assistant; (i) Lower Division Assistant; The Status, duties/responsibilities and the scales of pay of the members of the staff of the Secretariat are different depending upon their postings in the hierarchy mentioned above. 4. The different duties and responsibilities have been assigned on different Grades of Departmental Staff. This is apparent from Rules 5, 6 and 8 of Chapter 1 of the Secretariat Manual. Rule 5 specifies the authority and function of the Registrar, Rule 6 mentions about the duties of the Section Officer and Head Assistant, Rule 8 provides as follows:- "The clerical establishment in each Department is divided into an Upper Division and a Lower Division, duties of a routine nature being ordinarily entrusted to the Lower Division." 5. Rule 5 specifies the authority and function of the Registrar, Rule 6 mentions about the duties of the Section Officer and Head Assistant, Rule 8 provides as follows:- "The clerical establishment in each Department is divided into an Upper Division and a Lower Division, duties of a routine nature being ordinarily entrusted to the Lower Division." 5. Before the introduction of the impugned Rules promotional system was broadly as follows:- (i) Promotions were given departmentally following the departmental channel; (ii) Only for promotion to the post of Registrar/Officer on Special Duty/Special Officer, the promotional pool consists Section Officer, Head Assistant and Upper Division Assistants; (iii) From 1976 from promotion to Assistant Secretaries post the promotional pool comprised Registrar downwards to Upper Division Assistants; 6. It is alleged that on true, proper and reasonable on fair interpretation of the Recruitment Rules relating to the recruitment of Assistant Secretaries by promotion, the Registrar Special Officer, Section Officer, Head Assistant and Upper Division Assistant constitute the promotional pool and in giving promotion the principles of exhaustion of the next lower rank was to be followed. 7. It is alleged that the respondent State deviated from the aforesaid principles in giving promotion to the post of Assistant Secretaries by having a combined panel and/or gradation list of Registers and/or Special Officers, Section Officers, Head Assistants and Upper Division Assistants according to their seniority determined on the basis of the initial substantive appointment as Upper Division Assistant. Although according to the petitioners said deviation is wrongful and illegal but there was no serious grievance regarding the system because of the department wise promotion and almost inveriably the senior most Section Officer (in the case of promotion to the Registrar) happened to be the person who had been substantively appointed as Upper Division Assistant earlier than any other person in the combined promotional pool. In other wards, the deviation of the criteria of initial substantive appointment as Upper Division Assistant (except in a few stary cases) concided with the principles of exhaustion of suitable candidate in the next lower rank. 8. Prior to 1978 recruitment of Upper Division Assistant was by promotion and direct recruitment in accordance with the prescribed quota. From 1978 direct recruitment was stopped in terms of Finance Department's Notification No. 8893-F dated 2.9.1978. 9. The principles as regards the seniority are contained in the Memorandum and/or the rules. 8. Prior to 1978 recruitment of Upper Division Assistant was by promotion and direct recruitment in accordance with the prescribed quota. From 1978 direct recruitment was stopped in terms of Finance Department's Notification No. 8893-F dated 2.9.1978. 9. The principles as regards the seniority are contained in the Memorandum and/or the rules. By Memorandum No. 568-F/FIS-4/66 dated 20.2.1968 the principles for determination of seniority in the various services and posts under the State Government were laid down. The said memorandum, inter alia, provides that the persons appointed in a substantive or officiating capacity to a Grade prior to the issue of the said general principles shall retain the relative seniority already assigned to them or such seniority as may thereafter be assigned to them under the existing order applicable to their cases and shall en block be senior to all others in that grade. In other words, the date of substantive appointment was the guiding principle under the said Memorandum. By the West Bengal Services (Determination of Seniority) Rules, 1981, the principles of seniority have been thoroughly recast. Under the said Rules seniority of persons appointed on promotion to any post or cadre or grade shall be determined from the date of joining such post, cadre or grade, the dale of joining being reconed from the date of continuous officiation in all posts/cadres/grades. 10. A gradation list was published on 5.2.1982. This was a combined gradation list of the Registrar downward to Upper Division Assistant following the principles laid down in 1981 Seniority Rules, Since continuous officiation was counted towards seniority and the promotes to Upper Division Assistant had been given officiating promotion to Upper Division Assistant. They obtained higher seniority position in the said gradation list. This was because of the definition of date of joining in 1981 Seniority Rules as indicated earlier. The gradation list was challenged in a writ petition filed in September, 1983. 11. During the pendency of the said writ application by Notification dated 31.3.1984 the respondent State published the West Bengal Services (Secretariat Common Cadre) Rules, 1984. Similarly by a Notification No. 3856-F dated 31.3.1984 the respondent State published the West Bengal Services Secretariat Common Cadre of Dy. Secretaries and Assistant Secretaries) Rules, 1984. 11. During the pendency of the said writ application by Notification dated 31.3.1984 the respondent State published the West Bengal Services (Secretariat Common Cadre) Rules, 1984. Similarly by a Notification No. 3856-F dated 31.3.1984 the respondent State published the West Bengal Services Secretariat Common Cadre of Dy. Secretaries and Assistant Secretaries) Rules, 1984. On the basis of the said Rules, which are impugned in these proceedings, separate gradation lists have been made of all the employees in the Upper Division Assistant Grade, Head Assistant Grade and Section Officer Grade respectively. However, the combined lists of Upper Division Assistant to Section Officer for promotion to Registrars grade and the combined list of Upper Division Assistant to Registrar for promotion to Assistant Secretaries Grade have not been published. 12. Mr. S. Pal, Learned Counsel appearing for the petitioners has submitted that 1984 Rules do not integrate different cadres in the Secretariat. Cadres remain separate only. Similar posts in different departments are categorized as single cadre. There is no vertical integration of the cadres. 13. Rule 3(b)(iii) of the West Bengal Services (Secretariat Common Cadre) Rules 1984 provides as follows:- "Common Cadre" means a cadre of same category of posts in the Secretariat Department and Officers formed into a cadre under these rules. Rule 4 of the said Rules provides as follows:- 14. There shall be constituted separate cadres for each of the following categories of posts:- (i) Lower Division Assistants, (ii) Typists, (iii) Upper Division Assistants, (iv) Typists Grade I, (v) Head Assistants, (vi) Section Officers, (vii) Registrars, Officers on Special Duty and Special Officers in the revised scale of pay of Rs. 660-1,600/- 15. The combined reading of the said Rules would show that the cadres remain separate. They have not been integrated at all only same category of posts in different Departments have been categorized as single cadre. It is also provided under Rule 6 that for each of the common cadres constituted under Rule 4 there shall be a common gradation list. Rule 7 is also relevant in this connection. It provides as follows:- 16. Notwithstanding anything contained in any other rules for the time being in force, the recruitment to posts in the common cadre constituted under rule 4 shall be regulated in the following manner. 17. Similar is the case with the West Bengal Services (Secretariat Common Cadre of Deputy Secretaries and Assistant Secretaries) Rules, 1984. It provides as follows:- 16. Notwithstanding anything contained in any other rules for the time being in force, the recruitment to posts in the common cadre constituted under rule 4 shall be regulated in the following manner. 17. Similar is the case with the West Bengal Services (Secretariat Common Cadre of Deputy Secretaries and Assistant Secretaries) Rules, 1984. The common cadre has been defined under the said Rules as follows:- "Common Cadre" means a cadre of same category of posts in the secretariat Departments and offices formed into a common cadre under these rules. Rule 4 provides as follows:- 18. There shall be constituted separate cadres for each of the following categories of posts:- (i) Assistant Secretaries (other than such posts of Assistant Secretaries as are filled up by transfer of Officers belonging to W.B.C.S. (Ex). W.B.C.S. (Judicial) West Bengal Health Service and West Bengal Engineering Services). (ii) Deputy Secretaries (other than such posts of Deputy Secretaries as are filled up by transfer of officers belonging to I.A.S., W.B.C.S. (Ex). W.B.C.S. (Judicial) West Bengal Health Service and West Bengal Senior Service of Engineers). Government in the Finance Department may decide if any other post/posts in the Secretariat Departments and offices mentioned in the Schedule will be equivalent to any of the above categories of posts for the purpose of inclusion in common cadres herein constituted. 19. Each on the common Cadres mentioned in sub-rule (1) will be formed with all posts in the respective category in the secretariat Departments and Offices mentioned in the Schedule. 20. Any one holding on the date of commencement of these rules, a post of Assistant Secretary or Deputy Secretary as are now being constituted into common cadres under the rule, shall belong to the respective common cadre with effect from the said dated and shall come within the management and control of the Home (P.A.R.) Department of this Government. Rule 7 provides as follows:- 21. Notwithstanding anything contained in any other rules, for the time being in force, the recruitment to posts in the Common Cadres constituted under rule 4 shall be regulated in the following manner. 22. Thus in none of the cases there has been any vertical integration of the cadres. Only for the purpose of promotion of the different officers, different Cadres have been grouped together and categorized as single cadre. 23. Mr. 22. Thus in none of the cases there has been any vertical integration of the cadres. Only for the purpose of promotion of the different officers, different Cadres have been grouped together and categorized as single cadre. 23. Mr. S. Pal learned Counsel has contended that 1984 Rules have purported to club together. Section Officers to U.D. Assistant for promotion to the next higher grade of Registrar/Officer on Special Duty and Registrar to U.D. Assistant for promotion to next higher grade of Assistant Secretary. Such clubbing, according to the contention of the learned Counsel is violative of Articles 14 and 16 of the Constitution of India. It has also been contended by Mr. S. Pal that this has also treated unequal as equals. He has also emphasized that the reasons for laying down the Rules and principles for promotion and seniority etc. are to achieve efficiency in Government service. There is no nexus between these provisions of the Rules and the object to be achieved. 24. The contention of Mr. S. Pal has substance. Each of the cadres mentioned in 1984 Rules are admittedly separate cadres that is, Deputy Secretary, Assistant Secretary, Registrar, Officer on Special Duty, Special Officer, Section Officer, Head Assistant, U.D. Assistant etc. It is only at the Stage of promotion from Section Office to Registrar, Officer on Special Duty of Special Officer etc. And from Registrar to Assistant Secretary the cadres have been clubbed together. After promotion from lower to higher grade, the promotee is to be confirmed in the higher grade and upon confirmation he loses his lien in the lower grade. What the Rules purport to do are to treat such a promotee notionally as belonging to lower grade for promotion from higher grade (e.g. Section Officer) to a still higher grade (e.g. Registrar/ Officer on Special Duty/Special Officer). There is no rational or reasonable basis for such treatment. Such treatment on the face of it is absured, irrational and arbitrary. The respondents have not given any valid reasons for adopting such a principle. In absence of any such principles the treatment of higher grade and lower grade at par for pro motion to the next higher grade in this case must be held to be discriminatory against the higher grade. The respondents have by these rules treated the unequal as equals. In absence of any such principles the treatment of higher grade and lower grade at par for pro motion to the next higher grade in this case must be held to be discriminatory against the higher grade. The respondents have by these rules treated the unequal as equals. It cannot be disputed that the Rules and principles of promotion seniority and confirmation are intended to achieve efficiency in government service. It is not possible to say in this case that by adopting the aforesaid basis for promotion the efficiency in the government service would be achieved. On the contrary the efficiency will be at a low ebb. Having regard to the fact that a deserving candidate in the higher grade may be by passed to accommodate a senior in lower grade resulting in frustration and humiliation. The decisions cited by Mr. S. Pal also discussed hereafter also support his contention. 25. Mr. S. Pal has relied on a decision of the Supreme Court in the case of Marvyn continre vs. Collector of customs, Bombay, AIR 1967 SC 52 . In that case certain Appraisers in the Custom Department of the Government of India moved the petition under Article 32 of the Constitution of India against the seniority list prepared in 1963 under the order of the Central Board of Revenue. The petitioners therein contended that the list in question denies them equality of opportunity in matters relating to employment under the State enshrined in Article 16(1) of the Constitution. The system for recruitment to the post of Appraisers is that 50% is reserved for direct recruits while the remaining 50% is filled up by promotion from subordinates in the Customs Department. It further appears that seniority is determined by the system of rotation, i.e. list is arranged in such a way that there is one person from the direct recruits and one from the promotees alternatively. The contention of the petitioner was that the system has resulted in discriminately treatment against them with the consequence that promotees of much longer service in the cadre of Appraisers are put in the seniority list below direct recruits with much shorter service. This according to the petitioners offends against equality of opportunity guaranteed under Article 16(1) of the Constitution. The contention of the petitioner was that the system has resulted in discriminately treatment against them with the consequence that promotees of much longer service in the cadre of Appraisers are put in the seniority list below direct recruits with much shorter service. This according to the petitioners offends against equality of opportunity guaranteed under Article 16(1) of the Constitution. The other grievance of the petitioners was that in the cadre of Principal Appraisers who are all promoted from Appraisers there is again discrimination and violation of equality of opportunity inasmuch as the same method is followed in the matter of fixation of seniority of Principal Appraisers, though in that case there is only one source of recruitment i.e. by promotion from the cadre of Appraisers. The Supreme Court in that case held as follows:- "We are of the opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, viz. from the grade of Appraisers. There is, therefore no question of any quota being reserved from two sources in their cases. The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case, therefore, where there is only one source of recruitment, the normal rule will apply, viz. that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over in such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers grade when they are promoted to the principal Appraisers grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers raisers, the promotion being by selection and five years' experience as Appraisers is the minimum qualification. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers raisers, the promotion being by selection and five years' experience as Appraisers is the minimum qualification. Subject to the above all Appraisers selected for the post of principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the principal Appraisers grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as principal Appraisers whether they are promotees or direct recruits. The present method by which they respondent puts a direct recruit from the grade of Appraisers, though he is promoted later above a promotee who is promoted to the grade of principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of principal Appraiser has only one source of recruitment namely, from the grade of Appraisers. In such a case the seniority in the grade of principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers' grade is a direct recruit or a promotee. This will as we have already said be subject to the Government's right to revert anyone promoted as a principal Appraiser if be is not found fit for the post during the period of probation. The petition, therefore, will have to be allowed with respect to the method by which seniority is fixed in the grade of principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one." (Emphasis Supplied) 26. The next decision relied on by Mr. S. Pal is in the case of Rashanlal Tandon vs. Union of India, AIR 1967 SC 1889 . In that case there are 2 grades of Train Examiners i.e. Grade 'D' and the higher Grade 'C'. The next decision relied on by Mr. S. Pal is in the case of Rashanlal Tandon vs. Union of India, AIR 1967 SC 1889 . In that case there are 2 grades of Train Examiners i.e. Grade 'D' and the higher Grade 'C'. A Notification was issued by the Government on 27.10.1965. According to the said Notification the existing Apprentice Train Examiners who had already been absorbed in Grade 'D' by 31.3.1966 should first be accommodated in Grade 'C' in 80% of the vacancies reserved for them without under going any selection. with regard to 20% of the vacancies, there is a reservation in favour of the departmental Train Examiners, but the promotion is by selection and not by the test of seniority-cum-suitability which prevailed before the date of the said notification. The case of the petitioner is that he along with the direct recruits formed one class in Entry Grade 'D' and their condition of service was that seniority was to be reckoned from the date of appointment as Train Examiner in Grade 'D' and promotion to Grade 'C' was on the basis of seniority-cum-suitability test irrespective of the source of recruitment. The petitioner challenged the said Notification dated 27.10.1965 as violative of Articles 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade 'C'. The Supreme Court held as follows:- "In our opinion the Constitutional objection taken by the petitioner to this part of the Notification is well founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade 'D' there was one class in Grade 'D' formed of direct recruits and the promotees from the Grade of artisans. The recruits from both the sources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits hem one source as against the recruits from the other source in the matter of promotion to Grade 'C'. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade 'C'. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade 'C'. In the present case, it is not disputed on behalf of the first respondent that before the impugned Notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority-cum-suitability, and there was no rule of promotion separately made for application to the direct recruits. As a consequence of the impugned Notification a discriminatory treatment is made in favour of the existing apprentice Train Examiners who have already been absorbed in Grade 'D' by 31.3.1966, because the Notification provides that this group of Apprentice Train examiners who first be accommodated en block in Grade 'C' upto 80% of vacancies reserved for them without under going any selection. As regards the 20% of the vacancies made available for the category of Train Examiners to which the petitioner belong the basis of recruitment was selection on merit and the test of seniority-cum-suitability was abandoned. In our opinion, the present case falls within the principle of the recent decision of this Court in Marvyn continre vs. Collector of customs, Bombay, AIR 1967 SC 52 : 1966 (3) SCR 600 ." (Emphasis Supplied) 27. The next decision relied on by Mr. S. Pal is in the case of S.K. Ghosh & another vs. Union of India, AIR 1968 SC 1385 . In that case on the basis of the examination for recruitment to the Indian Audit & Accounts Service the petitioners therein were selected for appointments to the Postal Superintendent Services Class 2. First petitioner joined the post on probation with effect from 9.4.1947 while second petitioner joined as probationer on 11.2.1947. At that time there was no Class I service in the postal Department. In Class II service to which the two petitioners were appointed, recruitment was made by a competitive examination to the extent of 50% while the remaining 50% posts were filled by promotion from lower cadres of the department. On 24.5.1948, the Government sanctioned the creation of Indian Postal Service Class I with four Grades. Both the petitioners completed their probation in Class II service in the year 1949 and the petitioner No.2 on 5.12.1949. They were shown as officiating in this service. On 24.5.1948, the Government sanctioned the creation of Indian Postal Service Class I with four Grades. Both the petitioners completed their probation in Class II service in the year 1949 and the petitioner No.2 on 5.12.1949. They were shown as officiating in this service. Subsequently, the petitioner no.1 was confirmed in the said post with effect from 11.5.1951, while the petitioner No.2 was confirmed with effect from 12.2.1952. In the meantime, direct recruitment to Class I service was also made on the basis of the competitive examination held in the years 1948 and 1949 and a number of direct recruits were selected for appointment to this service. The respondent Nos. 3 to 7 joined Class I service as probationer on various dates falling between 16.3.1950 and 22.11.1950. Thereafter, the question of fixation of seniority inter se between direct recruits and officers promoted from Class II service came up for consideration of the Government. According to the seniority list prepared the two petitioners were placed at nos. 31 and 32 while the five respondents were placed juniors to them at Nos. 33, 36, 41, 42 and 44. Subsequently the petitioners as well as the respondent Nos. 3 to 7 were promoted as Directors. The common case of both the parties was that by the time those promotions were made the two grades of Directors of postal Services were amalgamated into one single grades and the promotions of the petitioners as will as respondent Nos. 3 to 7 were to that grade. Toe case of the petitioners was that respondent Nos. 3 to 7 were promoted as Directors after the petitioner, so that the petitioners were recognized as seniors in the Grade of Directors also. These promotions, according to the petitioners were made some time in the years 1961 and 1962. Subsequently by an order dated 5.6.1965 the Government suddenly revised the seniority of these various officers. As a result of this revision of seniority in the junior time scale of the Indian Postal Service Class I, respondents Nos. 3 to 7 were shown as senior to the petitioners. The places allotted to the respondents Nos. 3 to 7 were 17, 20, 22, 23 and 25 while the two petitioners were placed below them at Nos. 26 and 27. 3 to 7 were shown as senior to the petitioners. The places allotted to the respondents Nos. 3 to 7 were 17, 20, 22, 23 and 25 while the two petitioners were placed below them at Nos. 26 and 27. Latter, again by another order the seniority was revised in the grade of Directors of Postal Services and in that revision also, respondent Nos. 3 to 7 were placed as senior at Nos. 14, 15, 17, 18 and 19 while the two petitioners were shown as junior to them at Nos. 20 and 21. The petitioners consequently filed the petition under Article 32 of the Constitution challenging the revision of their seniority in the junior time scale as well as the revision of their seniority in the grade of Directors of Postal Services. The Supreme Court held:- "This Rule also makes it clear that appointment to the grade of Directors of Postal Services is made by selection and not on the basis of promotion the accordance with seniority. The presumption exists that the promotion of the petitioners and respondents 3 to 7 to the grade of Directors must have been made in accordance with those instructions and rules, so that the appointment of all these concerned parties as Directors was based on merit to be taken into account at the time of selection and not on seniority in the time scale of Class I service. Once a member of the Class I service in the time scale was selected for promotion to the grade of Director and give seniority over another Officer selected later, the seniority so determined as a result of selection could not be made dependent on the seniority in the time scale. It is clear that in these circumstances, even if there was justification for revising the seniority inter se of the petitioners and respondents 3 to 7 in the time scale of Class I Service that revision of seniority could not in any way affect their order of seniority in the grade of Directors to which they were promoted on the basis of selection in accordance with the rules. It is, therefore, clear that, even if it be held that the order of the Government dated 5.6.1965 revising the seniority of these officers in the junior time scale was valid, the order dated 17.1.1966 revising the seniority in the grade of Directors of Postal Services is not valid and justified. The seniority in the grade of Director of Postal Services was not dependent on the inter se seniority in the junior time scale and any alteration in the seniority in the latter could not form the basis for revising the seniority in the former grade. No other justification for the revision of the seniority in the grade of Directors of Postal Services was put forward on behalf of any of the respondents. It is, thus, clear that grade of Directors of Postal Services was put forward on behalf of any of the respondents. It is, thus, clear that the revision of seniority in the grade of Directors of Postal Services by the order dated 17.1.1966 was not based on any rule or appropriate principle applicable to determination of seniority in that grade, and must, therefore, be held to be totally arbitrary. Such an arbitrary order, which affects the civil rights of the petitioners in respect of future promotion must therefore be struck down as violating Article 16 of the Constitution." (Emphasis Supplied) The next decision relied on by Mr. S. Pal is in the case of Ismail Md. & other vs. State of Maharastra & other, 1979 (2) SLR 583. In that case the Gradation Lists were challenged by the Rationing Inspector or Assisting Rationing Officers in the Office of the Controller of Food Grains Distribution (hereinafter referred to as the C.F.D.) C.F.D. was in existence till 1.3.1966 and the petitioners were directly recruited as Supply Inspectors in C.F.D. on various dates between 1964 and 1965. On and from 1.3.1966, statutory rationing was introduced in the State of Bombay and the Bombay Rationing Organization (briefly referred to as B.R.O.) was constituted on and from that date. At the time of constitution of B.R.O. the staff of C.F.D. was merged in B.R.O. and the post of Supply Inspectors were equated with the posts of Rationing Inspectors. On and from 1.3.1966, statutory rationing was introduced in the State of Bombay and the Bombay Rationing Organization (briefly referred to as B.R.O.) was constituted on and from that date. At the time of constitution of B.R.O. the staff of C.F.D. was merged in B.R.O. and the post of Supply Inspectors were equated with the posts of Rationing Inspectors. On 22.3.1968 a Resolution was passed by the Government of Maharashtra enunciating rules to be applied for fixation of the seniority of the personnel working in B.R.O. and directed that the rules made thereunder should be deemed to have come into effect from 21.10.1965 i.e. From a date even prior to the date of the merger of C.F.D. with B.R.O. which took place on 1.3.1966. In that case the Court was concerned with the seniority of the cadre of Rationing Inspector. The combined effect of the relevant Rules was that while determining the seniority of the former Supply Inspectors i.e. the present cadre of Rationing Inspectors, the persons who were initially appointed as Clerk or Typists or Clerks-Cum-Typists (hereinafter referred to for the sake of convenience as the Clerical Cadre) but subsequently promoted to the cadre of Senior Clerk/Rationing Inspector/Deputy Accountant (hereinafter for the sake of convenience called the cadre of Rationing Inspectors) in B.R.O., the length of service in the clerical cadre was to be taken into consideration and they were to be given seniority in the cadre of Rationing Inspectors after deducting two years from their service in the Clerical cadre. Secondly, as regards persons coming from the same department, their seniority was to be fixed according to their inter se seniority in the said department. For this purpose deemed dates worked out on the above two principles were to be given to the promo tees. Thereafter, the seniority of the direct recruits was to be fixed according to whether their dates of actual appointments were prior or subsequent to the said deemed dates of the promotees. The direct recruits were also then to be assigned deemed dates which were to be a day earlier to the deemed date of the promotee next below. 28. Thereafter, the seniority of the direct recruits was to be fixed according to whether their dates of actual appointments were prior or subsequent to the said deemed dates of the promotees. The direct recruits were also then to be assigned deemed dates which were to be a day earlier to the deemed date of the promotee next below. 28. On 18.11.1975 a provisional Gradation List was published showing the seniority of the Rationing Inspector's cadre as on 1.4.1974 and on 27.11.1975 a provisional Gradation list of Assistant Rationing Officers and Junior Accountants which were the posts higher to the posts of Rationing Inspector cadre was published showing their seniority as on 1.4.1974. It is these lists which are challenged in the present petition. "The net result of the aforesaid rules contained in the said Resolution may be summarized as follows:- (a) The rules give deemed dated of seniority to those belonging to the clerical cadre in the higher cadre of Senior Clerks/Rationing Inspectors/Deputy Accountants by allowing the entire service in the clerical cadre minus two years to be calculated for the purpose. (b) The inter se seniority of the persons belonging to the same Department is fixed on the basis of their seniority in their respective departments. (c) Seniority of the direct recruits to the cadre of Senior Clerks/Rationing Inspectors/ Deputy Accountants is fixed on the basis of the seniority of the promotees from the Clerical cadre fixed as per (a) and (b) above. For this purpose, as stated earlier, deemed dates are worked out as per (a) and (b) and assigned to the promotees. Thereafter the seniority of the direct recruits is fixed according to whether the dates of their actual appointments are prior or subsequent to the deemed dates of the promotees. The direct recruits are then given deemed dates which are a day prior to the deemed dates of the promotees next-below. Thereafter the seniority of the direct recruits is fixed according to whether the dates of their actual appointments are prior or subsequent to the deemed dates of the promotees. The direct recruits are then given deemed dates which are a day prior to the deemed dates of the promotees next-below. In other words, the seniority of direct recruits depends upon the inter se seniority of the promotees whose seniority is worked out as in (a) and (b) above and it fluctuates as the seniority of the promotees keeps fluctuating." "There is no doubt whatsoever that the effect of the said Resolution of 22.3.1968 is to place the petitioners at inequitably disadvantageous position as against the promotees from the Clerical Cadre inasmuch as the petitioners being direct recruits to the cadre of Rationing Inspectors having been directly recruited as Supply Inspectors in the former C.F.D., the promotees appointed to the said post much latter are given seniority above the petitioners by giving them the deemed dates of appointment on the basis of their continuous service in the Clerical cadre minus two years and also on the basis of their infer se seniority in their own department. This is against the normal rule which determines seniority on the basis of the dates of appointment to the post. The normal rule is in conformity with the provisions of Articles 14 and 16 of the Constitution and any departure from the same must be justified by rational relevant and cogent reasons." The Bombay High Court then observed as follows:- "As regards the contention that whereas the entire service as a supply Inspector has been taken into consideration while fixing the seniority of direct recruit, it is not the whole of the service rendered in the Clerical cadre but the said service minus two years alone is taken into consideration while fixing the seniority of the promotees from that cadre, in the first instance, it must be remembered that while fixing seniority in the higher post it is not open to take in to consideration any service rendered in the lower post and that by itself spells out discrimination." (Emphasis supplied) 29. The next decision relied on by Mr. The next decision relied on by Mr. Pal is in the case of Bisan Swaroop vs. Union of India, AIR 1974 SC 1618 , the Supreme Court considered the judgments in Marvyn continre vs. Collector of customs, Bombay (supra) and Rashanlal Tandon vs. Union of India (supra) and observed as follows:- "In Marvyn continre vs. Collector of customs, Bombay, AIR 1967 SC 52 : 1966 (3) SCR 600 , the point was whether Appraisers promoted to the grade of Principal Appraisers could be discriminated in the matter of seniority in the grade Principal Appraisers on the ground that they had entered the grade of Appraisers as either promotees or direct recruits. The Customs Department sought to carry their birth marks into the grade of the Principal Appraisers and determine their seniority accordingly. This court disallowed it pointing out that once officers from two sources came into one integrated grade viz. the grade of Principal Appraisers was to be governed by their length of service in that grade and was not liable to be altered with reference to their original position in the Appraisers' grade. In other words, the Court held that all the Appraisers lost their birth marks after they were integrated in the cadre of appraises and they could not be revived after promotion to the higher grade of Principal Appraisers." (Emphasis Supplied) 30. The fundamental principle that may de culled out from the aforesaid decisions is that for the purpose of promotion seniority when relevant is seniority in the feeder post and not seniority according to the total length of the service under the same employer. Such an idea is inherently absurd. Thus a senior man, if superseded by a junior in the lower post will be entitled to claim prior eligibility over such promoted junior man in the case of further promotion to a still higher post. This is patently absurd. The seniority therefore, for the purpose of promotion must be the seniority in the feeder post and not the seniority counted from the date of entry in the initial grade. Every time a promotion is made from one post to other the seniority in the lower post cannot have any relevance at all for further promotion. It is only the seniority in the promoted post that will count for the purpose of promotion to the next higher post. Every time a promotion is made from one post to other the seniority in the lower post cannot have any relevance at all for further promotion. It is only the seniority in the promoted post that will count for the purpose of promotion to the next higher post. The impugned rules which devise an irrational method of determining the seniority for the purpose of promotion taking the seniority in the lowest rung and ignoring the seniority in the feeder post are arbitrary and discriminatory. 31. The next contention of Mr. S. Pal that there is discrimination and arbitrationess in the method adopted by the Rules for promotion on is not unfounded. Under the Memorandum dated 1.12.1972 the principles to be followed in the matter of promotion had been laid down. It, inter-alia, provides that a Government servant should be selected for promotion on grounds of merits and suitability in all respects and not of seniority and seniority should be taken into account only when it is impossible to choose between two or more persons on grounds of merit alone. The open performance report of officers below Section Officers and Annual Confidential Report of Officers in the rank of Section Officers and above are based on totally different standards. By the Memorandum dated 11.6.1980 the Government prescribed, inter alia, the procedure for writing of the performance reports. The said Memorandum inter-alia provided as follows:- (a) The existing system of Annual Confidential Reports will be replaced by a system of Open Reports. (b) The report will be written six monthly in place of annually as at present. The first report will be written immediately, after the 31.3.1981. (c) The Report will contain factual information regarding. (i) Regularity in attendance. (ii) Performance of duty. The said Memorandum further provides the nature of the report will depend on the nature of the job and Administrative Departments will envolve their own points on the basis of the form prescribed in Appendix-I which should give a clear objective assessment of work. Subjective assessment should be totally avoided. The said Notification further provides:- 1. (ii) Performance of duty. The said Memorandum further provides the nature of the report will depend on the nature of the job and Administrative Departments will envolve their own points on the basis of the form prescribed in Appendix-I which should give a clear objective assessment of work. Subjective assessment should be totally avoided. The said Notification further provides:- 1. That the principle of seniority as laid down in the memo aforesaid win continue to operate in general in respect of all matters referred to therein and departure from the same may be made in matters of promotion in cases where on the basis of the six monthly reports it is found that in respect of either or both the attendance and performance, the concerned officer is not discharging his duties even at the qualifying minimum level. For, this purpose the authorities will consider maximum of five such six monthly reports. 32. The form which has been prescribed in Appendix-I provides for recording the attendance of the officer concerned and the disposal of work load. It also provides that amount of work load performed, preciseness in the performance of work, percentage of work correctly performed and percentage of work not correctly performed have to be recorded. In the case of other officers, Annual Confidential Reports have to be prepared. The form which is prescribed for such Annual Confidential Report provides for assessment of work of the officer concerned under different categories like personality capacity for sustained work, tact and ability to work with others, ability to control subordinates, reliability in carrying out instructions, ability to state a case, initiative, power of taking responsibility, power to inspire confidence in general public, devotion to duty, knowledge of his work and assessment of integrity. 33. As indicated earlier the duties and responsibilities of officers of different cadres are different. The nature of work to be performed is different. The performance of the officers are to be determined on different principles. The standard of judging merits of promotion on merit would be different. Since the standards are different, merit cannot be judged on different standards for promotion to the next higher grade. 34. In the case of Vijaydavarajurs vs. G.V. Rao, 1983(1) SLR 292 Karnataka High Court held that:- "The term seniority in the public service is longer length of service in the very grade or cadre. Since the standards are different, merit cannot be judged on different standards for promotion to the next higher grade. 34. In the case of Vijaydavarajurs vs. G.V. Rao, 1983(1) SLR 292 Karnataka High Court held that:- "The term seniority in the public service is longer length of service in the very grade or cadre. If the seniority is to be determined with reference to the very original entry into service of the officers ignoring the various developments that take place in their career, it would undoubtly destroy the very concept of promotions and all the incidents flowing from the same. A person may be senior to another in the initial cadre. But, that by itself cannot be a justification to ignore the promotions, supersessions and hold that a person promoted earlier would still be junior to the person superseded in the promotional post also. An Officer may be senior to another in the initial cadre of when both of them join service in one and the same cadre. But, that cannot be the position in the superior posts filled by promotion. By holding that the officer promoted earlier to the officer promoted later, the seniority in the initial cadre is neither affected nor destroyed. One is not antithesis to another. On any principle of logic or law, the contention urged for the respondents that respondent No.1 is senior to the petitioner even in the cadre of Special IGP is not sound. A person appointed or promoted earlier is always senior to the persons appointed or promoted later." 35. The Court also held that where promotion is by selection the authority concerned must make a comparative assessment of the merits of the officers as piring for promotion. The Court observed as follows:- "The term outstanding employed by the Chief Minister is not capable of an easy and precise definition. In matters of promotion, that is also an aspect of merit of the highest grading of merit. In any event such a conclusion cannot be reached by merely asserting that there are no outstanding officers without making a comparative assessment of the merits of the officers. By making a mere bold statement to that effect that none are outstanding and then take up the case for promotion on the basis of seniority-cum-merit, is to really avoid or burk the issue. By making a mere bold statement to that effect that none are outstanding and then take up the case for promotion on the basis of seniority-cum-merit, is to really avoid or burk the issue. After all to except a Caesar, a Napolean or a Shivaji in an administrative service or a police service is to ask for the moon itself on earth." 36. Let me assume that the opinion of the Chief Minister that none of the eligible officers were outstanding is correct. In such an event also, it was not open to the promoting authority to convert the post into a non-selection post as has been done. Any such attempt is fraught with grave dangers and destroys the very concept and content of a selection post. In such a situation also, the best among all the eligible officers has to be selected to the promotion post. Unfortunately the promoting authority bas not attempted to do the same as it was bound to. One other aspect also requires consideration. If a vacancy is to be filled up in a particular higher grade, then all employees functioning in lower grade are not considered. There is a field of choice or zone of consideration. This field or zone is determined by Rules or Administrative instructions which provide that for particular number of vacancy a particular number of employees in the lower grade would be considered. The Normal zone of consideration for Promotion Rules, 1982 have fixed the ratio at 1:5. In this context seniority becomes relevant. The combined gradation list under 1984 Rules for promotion to the Registrar's grade and to the Assistant Secretary's grade will be prepared applying 1981 seniority Rules. The effect would be that earliest Upper Division Assistant will be senior most wherever he is now even if he is still working as Upper Division Assistant. He comes within the field of choice. 37. In the case of Union of India vs. S.K. Srivastava & other, 1979(3) SLR 724, Delhi High Court was considered a question whether seniority for the higher grade can be based on the seniority list of the lower cadre following the judgment of the Supreme Court in the case of Marvyn continre vs. Collector of customs, Bombay (supra). The Court held that seniority must the based on the date of appointment in the higher grade, it cannot reflect the seniority in the lower grade. The Court held that seniority must the based on the date of appointment in the higher grade, it cannot reflect the seniority in the lower grade. There the respondent Srivastava was selected and promoted earlier than one of the respondents and the Court held that he would get the benefits of longer service and earlier promotion. This cannot be taken away from him without the sanction of law. The Court further held that the post of Director is a selection post, seniority alone is not sufficient to determine that he will be chosen. But seniority is a factor which will determine whether he comes within the zone of consideration. As his seniority has been erroneously down graded, he has not come within the field of choice and others junior to him have been considered. The consequence of such impugned rules would be that Registrar might be left out of consideration for promotion to Assistant Secretary. Similarly section Officer may not be considered for promotion to Registrar. The learned Counsel has submitted that in fact such a situation has taken place in relation to one Gopal Chandra Halder who had been continuously officiating as Upper Division Assistant since 11.12.1958 and ultimately and significantly promoted. To the grade of Assistant Secretary in 1983 without going through the intermediate grade. It is significant that in the case of promotion from Assistant Secretary to the Deputy Secretary and in the case of promotion from Head Assistant to Section Officer there is no such clubbing together. There is no rational basis for such classification. Discrimination in inherent and patent. 38. The Learned Advocate for the State has drawn my attention to certain features of this case. He has submitted that prior to 2.9.1978 there was a duel method of recruitment to the posts of Upper Division Assistants in the Secretariat i.e. (a) Promotion from the rank of Lower Division Assistants, (b) Director Recruitment. With effect from 2.9.1978 direct recruitment to the posts of Upper Division Assistants was abolished. The promotee Upper Division Assistants was recruited initially on officiating basis and got their substantive appointment much later. Since the prevailing rules of Seniority (i.e. Finance Department Memo No. 568-F dated 20.2.1968) provided for reckoning of seniority from the date of substantive appointment in a cadre the officiating services rendered by the promotee Upper Division Assistants before their substantive appointment was not counted towards seniority. Since the prevailing rules of Seniority (i.e. Finance Department Memo No. 568-F dated 20.2.1968) provided for reckoning of seniority from the date of substantive appointment in a cadre the officiating services rendered by the promotee Upper Division Assistants before their substantive appointment was not counted towards seniority. The West Bengal Services (Determination of Seniority) Rules 1981 (hereinafter referred to as the 1981 Seniority Rules) was made with a view to include service rendered during officiating period in reckoning seniority of cadre/post. 39. On the aforesaid facts two principal contentions have been raised. Firstly, the Upper Division Assistants who got their promotion to higher posts by virtue of their unjustified seniority before promulgation of the seniority Rules, 1981 should not claim any further promotion on the basis of their seniority in the elevated posts. 40. This contention is based on misconception. Firstly, it wrongly assumed that the Upper Division Assistants got their unjustified seniority before promulgation of 1981 Seniority Rules. Promotions to higher posts before 1981 Seniority Rules could only be given on the basis of the Seniority Rules as they prevailed at the relevant time. It is nobody's case that the Seniority Rules prior to 1981 were invalid or void. Therefore, there is no justification in using the expression unjustified seniority. Secondly, the submission that Upper Division Assistants who got their promotions to higher posts by virtue of the pre 1981 Seniority Rules should not claim any further promotion on the basis of their seniority in the elevated posts is totally misconceived in law. It is not based on any reason. Seniority, when relevant for promotion, must be the seniority in the feeder post. 41. The Learned Advocate for the State has admitted that apparently there is an anomaly that an Upper Division Assistant and Section Officer are being considered jointly for a post of Registrar or Assistant Secretary. Having admitted this petition the Learned Advocate has tried to explain it by showing that the Section Officer is actually, junior in the Upper Division cadre and his position as Section Officer is based on a faulty and unjustified position of seniority. It is absurd to suggest that a Section Officer who admittedly belongs to higher rank than an Upper Division Assistant and has reached that position after obtaining promotion from the rank of Upper Division Assistant to the rank of Head Assistant is junior to the Upper Division Assistant. It is absurd to suggest that a Section Officer who admittedly belongs to higher rank than an Upper Division Assistant and has reached that position after obtaining promotion from the rank of Upper Division Assistant to the rank of Head Assistant is junior to the Upper Division Assistant. Seniority is to be considered with reference to a particular Grade or Rank. One cannot say that an Officer holding a higher rank should be treated as junior to an officer holding a lower rank. The State appears to be obsessed with the idea that because under the pre 1981 Seniority Rules the determination of Seniority resulted in certain direct recruits to the rank of Upper Division Assistants being assigned a higher seniority in that rank and because they were promoted on the basis of such higher seniority, they should now suffer. 42. The other contention urged is that clubbing together of different ranks of Officers for forming promotional pool to the post of Registrar and Assistant Secretary by Rule 7 of the Common Cadre Rules is nothing new but was in existence even before the introduction of such Rules. 43. This contention again cannot be accepted. The clubbing together of officers of different ranks by promotion to a common higher rank is prima facie arbitrary and violative of Articles 14 and 16. A promotional Rule which is violative of Articles 14 and 16 cannot be rendered valid because it has been in existence for sometime. There is no estoppel against the Constitution and/or enforcement of fundamental rights. Secondly, it has been explained by the writ petitioners why no complaint made by them earlier. The reason is that promotions were made department wise and almost invariably the senior most section officer (in the case of promotion to Registrar) happened to be the person who had been substantively appointed as Upper Division Assistant earlier then any other person in the combined promotional pool. Thus the implementation of the said rules did not adversely affect the petitioners at all. Thirdly, the writ petitioners are not concerned with the earlier position but with validity of the provisions of the 1984 Rules which arbitrarily provide that only for the purpose of promotion to the post of Assistant Secretaries and Registrars, Officers belonging to different ranks above the Upper Division Assistants shall be treated as belonging to the Upper Division Assistant Cadre. Thirdly, the writ petitioners are not concerned with the earlier position but with validity of the provisions of the 1984 Rules which arbitrarily provide that only for the purpose of promotion to the post of Assistant Secretaries and Registrars, Officers belonging to different ranks above the Upper Division Assistants shall be treated as belonging to the Upper Division Assistant Cadre. I have already indicated earlier that such a provision, which in effect provides for the reflection of the seniority in lower rank in determining the seniority in higher rank, is discriminatory. The only justification which has been urged in support of the impugned Rules is that since some directly recruited Upper Division Assistants on the basis of their seniority determined in accordance with the pre 1981 Seniority Rules had obtained promotions to higher posts on the basis of such seniority, they should now suffer and be treated in such a manner that seniority which they had enjoyed and promotions which they had obtained are rendered nugatory. Common cadre Rules were framed to solve previous promotional problems arising out of departmental exigencies because promotion followed departmental channel. After creation of separate cadres for same categories of posts in the different departments the normal fair and proper course to be followed is to promote step by step. This cannot cause injustice to anybody. However, many U.D. Assistants had been promoted to higher grades from time to time, e.g. some had become Section Officer. Step by step rule would hurt only such persons who preferred the existing rule of combined promotional pool at the stage of Registrar and Assistant Secretary. Such persons are those whose seniority as U.D. Assistant is higher. Such persons are naturally promotees as would be evident from gradation lists. It appears to be that the clubbing together for the purpose of promotion to the grade of Registrar/OSD/Special Officer and to the grade of Assistant Secretary has been thrust upon the Government at the instance and behest of the promotees who are the overall majority in service. The grounds urged in support of introduction of the impugned Rules are not tenable. These rules have caused serious prejudice to the petitioners who would be deprived of the chance of promotion. They may not even come within the Zone of Consideration. The grounds urged in support of introduction of the impugned Rules are not tenable. These rules have caused serious prejudice to the petitioners who would be deprived of the chance of promotion. They may not even come within the Zone of Consideration. In the name of rationalization of the Rules for promotion no one can be deprived irrationally or arbitrarily of one of the most vital service benefits e.g. seniority. 44. For the reasons aforesaid this application succeeds. The Rule is made absolute. Let appropriate writs be issued. There will be stay of operation of this order for four weeks after the long vacation on the condition that the respondents shall not give any effect or further effect to the first and second impugned rules being Notification dated 31.3.1984 Annexure 'A' & 'I' so far as the petitioners are concerned. Let a plain copy of this order duly countersigned by Assistant Registrar (Court) be handed over to the learned Advocate of the petitioners upon undertaking of the learned advocate to apply for certified copy and to put in requisite stamps and folios.