SHANAKR DEB ACHARYAND ORS. versus BISWANATH CHAKRABORTY AND ORS.

Citation: [2006] SUPP. 7 S.C.R. 651 · Decided: 19-10-2006 · Supreme Court of India · Bench: H.K. SEMA

Judgment (excerpt)

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SHANAKR DEB ACHARY A AND ORS. 
A 
v. 
BISWANATH CHAKRABORTY AND ORS. 
OCTOBER 19, 2006 
[H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.) 
B 
Service Law: 
West Bengal Services (Appointment, Probation and Confirmation) Rules, 
1979: Rule 5. 
C 
Promotion-Merit-cum-seniority-Inter se seniority-Determination 
of-Appointment on probation and appointment on permanent basis-
Distinction between-Some candidates were appointed through the State 
Public Service Commission on temporary basis-Some candidates joined 
duty earlier than others-Those who joined later passed the departmental D 
examination prior to those who joined earlier-These employees also 
co1!1pleted the period of probation and were confirmed at an earlier point 
of time than the other employees-Rules provided that consideration was on 
the basis of merit-cum-seniority-However, High Court directed that higher 
scales of pay be given to those employees who passed the departmental E 
examination later-Correctness of-Held: Requirement of passing of the 
departmental examination 'is essential before confirmation by a declaration 
by the appointing authority in that behalf-The sole basis of judging merit, 
therefore, is the passing of departmental examination-In the policy of merit-
cum-seniority great emphasis is on merit and the ability and seniority plays 
a less significant role-Seniority has to be given weightage only when merit F 
and ability are approximately equal-High Court judgment set aside-West 
Bengal Services (Training and Examination) Rules, 1953 (as amended)-The 
West Bengal Services (Revision of Pay and Allowances) Rules, 1970. 
The appellants and the respondents were recruited through the State 
Public Service Commission on temporary basis. The respondents were G 
appointed earlier to the appointment of the appellants and joined duty earlier 
than the appellants' date of joining. The appellants passed the departmental 
examination prior to the private respondents. The appellants also completed 
the period of probation and were confirmed at an earlier point of time than 
651 
H 
652 
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R. 
A the respondents. The scheme of the West Bengal Services (Training and 
Examination) Rules, 1953 (as amended), the West Bengal Services (Revision 
of Pay and Allowances) Rules, 1970 and the West Bengal Services 
(Appointment, Probation and Confirmation) Rules, 1979 provided for 
probation, passing of departmental examination and confirmation after the 
departmental examination and completion of probation. The Rules also provided 
B that the consideration is merit-cum-seniority. 
The State Government vide its memo imposed an additional condition 
prescribing a minimum period of six years' service in scale 17 for promotion 
to scale 18 and a minimum combined period of 13 years' service in scales 17 
and 18 before promotion to scale 19. This additional condition was challenged 
C by some of the private respondents before the High Court The High Court 
quashed the said memo imposing additional condition and further directed 
that the respondents be given the higher scales 18 and 19 on the basis of 
their respective merit-cum-seniority w.e.f. the date when the promotion policy 
came into effect. Hence the appeal. 
D 
The following question arose before the Court: 
Whether the private respondents could be made seniors to the appellants 
solely on the ground that they joined the service earlier to the appellants' 
date of joining? 
E 
Allowing the appeal, the Court 
HELD: I. The mandate of the West Bengal Services (Training and 
Examination) Rules, 1953 (as amended), the West Bengal Services (Revision 
of Pay and Allowances) Rules, 1970 and the West Bengal Services 
(Appointment, Probation and Confirmation) Rules, 1979 is that the 
F Government employees shall be deemed to be on probation on completion of 
continuous temporary service for two years. The Rule further mandates that 
an employee shall be confirmed and made permanent on satisfactory 
completion of period of probation and where passing of any departmental 
examination is essential before confirmation, the provisions of the Services 
G (Training and Examination) Rules sh"all be complied with. Rule 5(4) further 
mandates that on completion of the period of probation the appointing authority 
shall issue a formal declaration making the probationer permanent. 
(663-E, F, G( 
2. The respondents were appointed on temporary basis and not on 
H permanent basis and, therefore, the s

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