Sudhangshu Sekhar Ganguly, J.:— These are two petitions for staying the operation of the judgment and order dated 23rd March, 1989 passed in Matter No. 1436 of 1988 one filed by the State of West Bengal and two others and the other by Shri Sabyasachi Sengupta and four others, all being officers in different departments of the Government of West Bengal and all belonging to the West Bengal Civil Service.

2. The facts relevant for the present purpose may be stated as follows:

West Bengal Civil Service (W.B.C.S henceforward) and the West Bengal Junior Civil Service (W.B.J.C.S henceforward) were two wings of the State Administrative Service. Half the recruits to the W.B.C.S were selected through competitive examinations and the other half by promotion from the members of the W.B.J.C.S vide The Bengal Provincial Services Recruitment Rules, 1930.

3. The two wings of the services were unified by the provisions of West Bengal Services (Unification of State Services) Rules, 1974. These Rules which came into effect from 1st March, 1974 virtually superseding the Rules of 1930 and such other Rules, provided a senior scale and a junior scale of pay. All the members of the erstwhile W.B.C.S were given the senior scale and all the members of the erstwhile W.B.J.C.S were given the junior scale, the junior scale officers being eligible for promotion to the senior scale after six years of service. After the coming into effect of these Rules, all new entrants had to start from the Junior Scale. The interests of the candidates under recruitment through competitive examinations already held were, however, fully protected under Rule 5.

4. Thereafter, came the West Bengal Civil Service (Executive) Recruitment Rules, 1978 in supersession of all previous Rules. These Rules which came into effect on and from 1st March 1974 provided recruitment to the unified West Bengal Civil Service through competitive examinations as well as by promotion from a number of specified feeder services. All new entrants to the service had to start from the junior scale of pay and work their way up to the senior scale by putting in at least six years of satisfactory service. An exception, however, was made with regard to the candidates, who appeared at the competitive examination held prior to 1st March, 1974 and qualified for appointment to the West Bengal Civil Service by specifically providing that they would be appointed to the senior scale.

5. Then came the West Bengal Services (Unification of State Services) Rules, 1979. These Rules which superseded the West Bengal Services (Unification of State Services) Rules 1974 were deemed to have come into effect on 1st April, 1970. Under the provisions of these Rules the W.B.J.C.S and similar other junior services stood abolished with effect from 1st April, 1970. All officers recruited in the aforementioned Junior Services prior to 1st March, 1974 or in the junior scale of the Unified Services on or after 1st March, 1974, were to be fitted in the Senior Scale of the Unified Service, with effect from the date they entered the respective Unified Service on or after 1st April, 1970. In spite of the changes introduced, the existing order of inter se seniority amongst the Officers of the Unified Services already determined as on the day immediately preceding the date of issue of the rules was fully protected. Though the pay of the officers of the erstwhile W.B.J.C.S was to be refixed in the senior scale of the unified service with effect from 1-4-70 or thereafter under the rules applicable on the day immediately preceding the date of issue of these rules, they were not to get any arrear on account of such refixation of pay for the period prior to 1-1-79.

6. Thereafter came the West Bengal Services (Determination of Seniority) Rules 1981. These rules apart from providing the method of recruitment to various services also provided for determining seniority amongst officers so recruited. Whereas the seniority amongst direct recruits coming, through examination were to be determined by the order of merit in which they were selected, the seniority of promotees was to be determined from the date of their joining their respective posts. It was further provided that the relative seniority between the promotees and the direct recruit was to be determined by the order of appointment or promotion of each in the post and it was further provided that the promotees en bloc would be senior to the direct recruits of the same year.

7. These Rules also provided that “there shall be no change in the existing order of inter se seniority amongst the officers of the services within the meaning of the 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 i.e the 18th of May, 1979.”

8. The West Bengal Services (Determination of Seniority) Rules, 1981 had no application to the members of the West Bengal Civil Service. The Government did not also determine the inter se seniority of the W.B.J.C.S officers in the unified scale as per the provisions of the West Bengal Services (Unification of State Services) Rules, 1979. It is because of this that the Matter No. 1436 of 1988 was initiated by a number of members of the erstwhile W.B.J.C.S on 5th April, 1988, by filing a petition under Art. 226 of the Constitution, for directing the State to award all service benefits to them and fellow members of the erstwhile W.B.J.C.S in the Unified W.B.C.S, after determining the inter se seniority amongst the officers in the unified W.B.C.S, pursuant to the West Bengal Services (Unification of State Services) Rules, 1979. They wanted that the seniority of all members of the W.B.J.C.S who were in service on 1st April, 1970 be counted from that day in the unified W.B.C.S They also wanted that the imbalance caused by recruiting officers directly to the W.B.C.S beyond the 50% quota during the years 1970 to 1974 be corrected and the seniority of these members of the W.B.J.C.S, who would have been promoted to the W.B.C.S in place of the officers in the W.B.C.S, recruited in excess of the quota Rule be calculated accordingly.

9. On hearing the parties the learned Trial Judge directed the State Government on 5th April, 1988 to frame seniority rules as desired and he also passed an order of temporary injunction restraining the State Government from giving any member of the unified W.B.C.S any service benefit including appointment to any higher post and the higher scale No. 19, till the determination of the said services Rules. Subsequently at the petition of the petitioners the learned Judge passed another order on 29-4-88 directing that the Rules, if made, be not given effect to without the leave of the Court and without notice to the petitioners. On 10-6-88 another order was passed prohibiting any action on the basis of the said rules. The State Government filed appeal against the orders dated 29-4-88 and 10-6-88. Subsequently the petitioners informed the learned Court by a supplementary affidavit that the State had drawn up the Rules, that the Cabinet had approved of them and that the State wanted to promulgate the same with the leave of the Court. The body of the Rules in its entirety was reproduced in this supplementary affidavit.

10. Rule 3 of these Rules declares unequivocally that the relative seniority of members shall be determined in accordance with the principles of determination of seniority as laid down in the West Bengal Services (Determination of Seniority) Rules, 1981. This general declaration is followed by a number of provisos from which together with the W.B Services (Determination of Seniority) Rules 1981, the following table of seniority may be framed.

Table of Seniority:

1. All serving members of the W.B.C.S prior to 1971 whether recruited directly through competitive examination or promoted from the members of the West Bengal Junior Civil Service.

2. W.B.J.C.S promotees of 1971.

3. Direct recruits through competitive examination of 1970.

4. W.B.J.C.S promotees of 1972.

5. Direct recruits through competitive examination of 1972.

6. W.B.J.C.S promotees of 1973.

7. Direct recruits through competitive examination of 1973.

8. Direct recruits to the Senior Scale of W.B.C.S through competitive examination of 1974.

9. Members of the W.B.J.C.S immediately before 1-4-70 who were not promoted to W.B.C.S in between the years 1971-73.

10. Direct recruits to the W.B.J.C.S after 1-4-70 but before 1-3-74 or to the junior scale of the unified service recruited through the competitive examination of 1974.

11. The other provisions determining seniority are not relevant for our present purpose.

12. The propriety of the above determination of seniority was questioned in the supplementary affidavit. The sum and substance of the objection was that though the W.B Services (Unification of State Service) Rules, 1979 made all the members of the erstwhile W.B.J.C.S members of W.B.C.S with effect from 1-4-70, yet by the provisos detailed above, they were sought to be made juniors to the direct recruits to the W.B.C.S through examinations of 1970, 1972 and 1973 and the direct recruits to the Senior Scale in 1974. The petitioners wanted the learned Judge to set aside the said Rules. It was urged from the side of the State that the prayer for setting aside the Rules was not maintainable (1) since the original writ petition did not contain any prayer for setting aside the Rules which have been framed as per the very order of the Court and (2) since the Rules in question were mere draft rules and were therefore not justiciable.

13. The learned Judge directed both parties to submit their written notes of submissions. The writ petitioner did that though long after the time allowed. The State opposite parties did not file any written notes. Thereafter on 23-3-89 the matter appeared in the list of the learned Judge for judgment and on that day, the learned Judge read out an order containing the salient features of his judgment. We had the privilege of going through the judgment of the learned Judge. It appears from the judgment that the learned Judge set aside the aforementioned Rules so far as they purported to fix the inter se seniority of the writ petitioners and fellow officers similarly placed. The learned Judge also directed the State Government to frame seniority Rules afresh in such a way whereby all W.B.J.C.S officers on 1-4-70 are placed just below all W.B.C.S officers as on that date and the seniority of officers recruited thereafter to be fixed according to general rules of seniority. Alternatively the writ petitioners and officers similarly placed could be given weightage counting one year in the W.B.C.S for every three years in W.B.J.C.S The learned Judge also injuncted the State Government from granting any promotion without first fixing the inter se seniority of the members of the W.B.C.S covered by W.B Services (Unification of State Services) Rules, 1979. Though finding that during the years 1970 to 1974, officers beyond 50% had been recruited to the W.B.C.S directly, diminishing the chances of promotions of eligible W.B.J.C.S Officers to the W.B.C.S to that extent the learned Judge felt that the quota rules should not be enforced and the officers recruited beyond 50% should not be disturbed.

14. The submissions made from the side of the State Appellant and the aforementioned Sabyasachi Sengupta and his four colleagues in their stay petitions may be summarised as follows:—

1. The original writ petitioners prayed for a direction on the State Government for framing Rules. The State Government has framed Seniority Rules. The scope of the writ petition was exhausted with that. The learned Judge should not have entered into the question of propriety of the Rules which was beyond the scope of the writ petition since the writ petition did not contain any submission or prayer with regard to the Rules.

2. The Rules struck down by the learned Judge were merely draft Rules and hence not justiciable, just as draft bills pending before the Legislature are not justiciable.

It was urged that because of the order of injunction passed by the learned Judge, 84 important posts in the cadre of the W.B.C.S were lying vacant, causing great inconvenience to the Government as well as to the officers who were to fill up these posts. In the circumstances stated, an order was prayed for in the present petitions for staying the operation of the judgment and order passed by the learned trial Judge on 23rd March, 1989 and the other interim orders passed by him. The prayer for stay is opposed by the writ petitioners (respondents Nos. 1 to 8) and added respondents Nos. 9 to 15.

15. So far as the first point taken from the side of the State and others is concerned, it was urged by Mr. Gupta, the learned Counsel appearing for the petitioner-respondents, that since the Court can take notice of subsequent events, for doing justice between the parties and shortening litigation, the Court in this case was fully justified in considering the Rules in question and striking them down. It is argued further that since the Rules in question were produced before the Court, along with a supplementary affidavit and an opportunity was given to the State to controvert the petitioner-respondents' criticism against them (the Rules), they (Rules) had become part and parcel of the original writ petition. Mr. Mitra, the learned Counsel for the State-Appellant argues on the other hand that the doctrine of subsequent events does not apply here, since the subsequent event in this case was the Court's own creation. He argues next that by a supplementary affidavit no relief can be prayed for extraneous to the prayer in the original writ petition. He points out that even the original writ petition has not been amended by adding to it a prayer for setting aside the Rules in question.

16. It is true the Court can take notice of subsequent events to shorten litigation, to do justice between parties and where the original relief as prayed for has become inappropriate due to changed circumstances or the changes in law affecting rights of the parties: Nair Service Society v. K.C Alexander, AIR 1968 SC 1165, 1177; Satish Chand v. Govardhan Das, (1984) 1 SCC 369 : (AIR 1984 SC 143) B.R Ramabhadrish v. Secretary Food and Agriculture Department AIR 1981 SC 1653. None of the above three requirements is present in this case. The subsequent event or change in circumstances flows in this case from the very order of the Court and there has not been any change in the law. In Nair Service Society v. K.C Alexander (Supra), the necessity of an appropriate amendment has been hinted at. In Rama Bhadriah's case (supra) relief was actually sought for in respect of a gradation list and the subsequent relief was also sought for with regard to the selfsame gradation list and the court granted relief on the principle that when a larger relief has been prayed for, the Court can grant a smaller relief. That is not the case here. The fact that the prayer was made by a supplementary affidavit and that it was controverted by the State before the learned judge can hardly make any difference. Besides, it appears that two appeals were preferred from the side of the State, challenging the learned Judge's orders, directing the State Government not to take any action as per the provisions of the Rules in question. The course adopted by the learned Judge cannot also be said to have shortened litigation. At our asking Mr. Gupta, the learned counsel for the writ petitioner respondents told us that his clients would have to file another writ petition if the State Government framed Rules, which according to them were not in accordance with the directions of the learned Judge. How can it be said, therefore, that exercise, of jurisdiction with regard to the Rules in question has or will shorten litigation? The ld. counsel has also cited State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006, where after declaring a taxing law to be invalid, the Supreme Court by way of consequential relief directed the Government to pay back to the assessees, the amounts collected from them. Such an order was passed in the case, since the Supreme Court held that the assessees should not be pushed to another suit for recovery of the amounts which the Government had collected from them on the strength of an Act which was ultra vires the Constitution. The facts are very different here since it was nobody's case that the State Government has gained illegally in any way at the cost of the plaintiff-respondents and officers placed similarly with them.

17. The second objection appeared to be more crucial. Mr. Gupta, the learned counsel for the petitioner-respondents argued, first, that the Rules in question were not draft Rules and that on the other hand they are complete final Rules on which, without anything more, action could be taken by the State Government.

18. Rules relating to the recruitment and conditions of service of State Government employees are to be framed under authority of the Governor in a State till provisions in that behalf are made by the appropriate Legislature under the provisions of Art. 309 of the Constitution. State Rules when framed have to be authenticated by the authority of the Governor under Art. 166 of the Constitution. Citing Dattatraya v. State of Bombay AIR 1952 SC 181, 185 (r.h.c), R. Chitralekha v. State of Mysore AIR 1964 SC 1823 and Muncl. Corporation Delhi v. Birla Mills (1968) 3 SCR 251, 275 : (AIR 1968 SC 1232 at p. 1247), Mr. Gupta urged that non-authentication in this case will only deprive the Rules of the immunity conferred by Art. 166 and it will not vitiate them as such. Citing Sant Ram v. State of Rajasthan, AIR 1967 SC 1910, 1914 he urged next that apart from Art. 309, the State Government by exercising its executive powers under Art. 162 in respect of Schedule 7, List II Entry 4, State Public Services can issue administrative instructions governing service conditions parallel with the State Legislature.

19. We cannot agree with Mr. Gupta with his submission that the Rules in this case are not Draft Rules. The files containing the Rules have been produced before us. A cursory glance at the Rules will show that they are nothing but Draft Rules. In the files also they have been described as Draft Rules and even as Draft Rules they were not complete. The space provided for showing the date on which the Rules would come into force is lying blank. Signature of no Authority also appears below the Rules. The Id. Judge also treated them as Draft Rules. Till they have been given their final shape, they cannot be considered as full-fledged Government Orders or Statutory Rules having the authority of the Government behind them. Besides, it appears that the Government really wanted to frame these Rules under the provisions of Art. 309 of the Constitution. Till authentication, they could not be called validly made and effective Govt. Rules. In the circumstances stated Dattatraya v. State of Bombay (AIR 1952 SC 181), Chitralekha v. State of Mysore (AIR 1964 SC 1823) and Muncl. Corporation of Delhi v. Birla Mills (AIR 1968 SC 1232) (supra) cannot have any application to the facts of this case. The argument based upon Sant Ram v. State of Rajasthan (AIR 1967 SC 1910) (Supra) also cannot be accepted since the impugned Rules have not been framed and issued under the authority of Art. 162 of the Constitution. Besides it has been decided by the Supreme Court that Art. 162 does not confer power on the Govt. to make rules for the recruitment or conditions of service and that such rules can be made only under Art. 309 of the Constitution, vide R.N Nanjundappa v. T. Thimmaia, AIR 1972 SC 1767, 1775 (para 34) referred to with approval in Ramendra Singh v. Jagdish Prasad, AIR 1984 SC 885, 891-892 (para 29). By no stretch of imagination it can be said, therefore, that the Rules in question were not Draft Rules or that they have all the strength and authority of a validly passed Govt. order behind them.

20. Mr. Gupta urged next that since the Rules in this case had received approval from the Cabinet, then even granting that the Rules in question were Draft Rules, the petitioner-respondent could very reasonably infer that they (the Rules) would be given a final shape and promulgated in due course, to their detriment and that in the circumstances stated, they could have taken pre-emtive steps for protecting their own interest without waiting till they were actually hit and harmed by the Rules. He cites in this connection K.K Kochunni v. State of Madras AIR 1959 SC 725, a case involving Art. 32 of the Constitution, where it is laid down that where an enactment may immediately on its coming into force take away or abridge the fundamental rights of a person by its very terms and without any overt act being done, in such a case the infringement of the fundamental right is complete eo instanti the passing of the enactment and, therefore, there can be no reason why a person so prejudicially affected by the Act should not be entitled immediately to avail himself of the Constitutional remedy under Art. 32.

21. This argument of Mr. Gupta leaves us cold. In K.K Kochunni's case, there was a full-fledged Act passed by the Legislature and the Act by its very enactment affected the interest of the petitioners. That was not the case here.

22. Considering all the circumstances, we find it very difficult to repel the arguments of Mr. Mitra the learned Counsel for the State and Mr. Ghosh the learned Counsel for the appellant-petitioners Sabhyasachi Sengupta and 4 others that the Rules in question being Draft Rules could not have any application in law and that hence they were not justiciable.

23. Mr. Gupta cited next The Comptroller and Auditor General v. K.S Jagannathan AIR 1987 SC 537, where the Supreme Court has discussed the circumstances under which the Court can pass a mandatory order or even pass an order or give directions which the Government or a public authority should have passed or given had it properly and lawfully exercised its discretions. The decision makes it quite clear that the Court can pass such orders where the Government/Public Authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a Statute, or a rule or a policy decision of the Government or has exercised such discretions mala fide or in such a manner as to frustrate the object of conferring such discretion. Can it be said that the Government has exercised its discretions in this case wrongly and mala fide?

24. In the present case, the Rules have been framed in accordance with the principles of determination of seniority as laid down in the West Bengal (Determination of Seniority) Rules, 1981 with certain reservations. It is these reservations which have given rise to the present litigation. We have already stated previously, what these reservations were. In view of the provisions of the West Bengal Services (Unification of State Services) Rules, 1979, the members of the W.B.J.C.S became members of the W.B.C.S with effect from 1-4-1970, yet by virtue of the reservations in the shape of the proviso (a) below Rule 3 of the impugned draft Seniority Rules, they were made juniors to the members of the W.B.C.S or the Senior Scale of the Unified Service recruited directly on the results of examinations held in the years 1970 to 1974. Prima facie this appeared to be unfair to those members of the W.B.J.C.S, who became members of the W.B.C.S with effect from 1-4-70. But there is another side of the matter. The process of unification of the two services started with the West Bengal Service (Unification of State Services) Rules of 1974, which merged with effect from 1st March, 1974 the two cadres into one with a senior scale and a junior scale of pay. Rule 5 of these Rules clearly provided that the unification of the services would not affect in any way the interests of the candidates, who were already under recruitment through the competitive examination already held. Obviously, the Rules of 1974 not only maintained the seniority of the existing officers of the W.B.C.S, they also maintained the seniority of those officers of the W.B.C.S, who were in the process of coming into the service through competitive examination held in 1973 presumably by giving them the senior scale straightway over the then officers of the junior scale who must have been none other than, the then unpromoted officers of the W.B.J.C.S The spirit of Rule 5 was confirmed by the proviso below Rule 6 of the West Bengal Civil Service (Executive) Recruitment Rules, 1978, which provided that the candidates who had qualified themselves for appointment to the W.B.C.S (Executive) through examinations held prior to 1st March, 1974 would be appointed to the senior scale of pay. These Rules came into effect from 1st March 1974. This trend was also continued in the West Bengal Services (Unification of State Services) Rules, 1979. These Rules abolished the W.B.J.C.S and the Junior Scale and fitted all officers of the W.B.J.C.S, recruited prior to 1st March, 1974 and all officers of the Junior Scale recruited after 1st March, 1974 in one and only one scale of the W.B.C.S with effect from 1-4-70. Rule 3 of these Rules provided, however, that in spite of the above, there would be no change in the existing order of inter se seniority amongst the officers of the unified services already determined as on the day immediately preceding the date of issue of these Rules, viz., 18th May, 1979.

25. Mr. Gupta drew our attention to the West Bengal Civil Lists Nos. 307 and 308 corrected as on 1st January, 1975 and 1st January, respectively, showing that inter se seniority of officers from serial No. 541 and onwards (in No. 307) and serial No. 551 and onwards (in No. 308) was not yet fixed. He argued that the Civil Lists clearly show that the inter se seniority of all officers of the unified Service was not fixed. This, of course, was so. The Civil Lists, however, show that the inter se seniority of officers above serial Nos. 541 and 551 was fixed. R. 3 presumably protected their seniority and that was in keeping with the trend of the Rules starting from 1974. It becomes difficult, therefore, to find fault with R. 3.

26. From the above it becomes quite clear that ever since the unificatory process started in 1974, the Government felt obliged to maintain the seniority of the direct recruits to the W.B.C.S, who entered this service through competitive examinations held before the year 1974. Had the Government struck to 1-3-74 as the crucial date in the Rules of 1979 as in the Rules of 1974 and 1978, there would not have been any problem. Adoption of 1-4-70 as the date of coming into effect of the Rules of 1979 has caused all the problems. It appears that even though the Government wanted the unpromoted members of the W.B.J.C.S to have the benefits of an increment in their pay, by treating them as members of the W.B.C.S with effect from 1-4-70 though in fact, they were not so on that day the Government did not want thereby to harm the interest or seniority of the officers, who had actually been recruited to the W.B.C.S (Ex) directly on the basis of examinations held up to 1974 and who, on the dates of their joining the W.B.C.S, started as seniors of those very members of the W.B.J.C.S who became members of the W.B.C.S with effect from 1-4-70 by virtue of the Rules of 1979, drawn up much later.

27. The Government may have considered that it would be only fit and proper for it to protect the interest and seniority of those officers, whom it has recruited as members of the W.B.C.S through competitive examinations held up to 1974 directly over and above the interest and seniority of those officers, whom they had given the status of being members of the W.B.C.S with effect from 1st March, 1974 and then from 1st April, 1970, on the basis of Rules made in 1974 and 1979, respectively. One may or may not agree with the view point of the Government, but one cannot deny that considered from this angle, the Government has a very good case and that the impugned provisions of the Draft seniority Rules cannot off hand be dismissed as arbitrary or discriminatory. Had the directly recruited officers of 1970-1974 been suddenly made juniors to those members of the W.B.J.C.S, who before the making of the Rules of 1979 were their juniors, that perhaps also would have been castigated as discriminatory and arbitrary and for more valid reasons. In the circumstances stated, we feel unable to hold that the prima facie case is entirely on the side of respondents in this case or that prima facie, the Government has exercised its discretions wrongly or mala fide, while drawing up the impugned Draft Rules. We find it difficult to hold, therefore, that in the present state of affairs, the decision in Comptroller and Auditor General v. K.S Jagannathan (AIR 1987 SC 537) (supra) could be resorted to.

28. There is also another point to consider. It will appear from what has been stated above that the impugned Draft Seniority Rules framed by the Government have been drawn up in the spirit of the Rules of 1974, 1978 and 1979. The writ petition now here invites the court to strike them down. On the other hand it desires the Court to direct the Government to give them their desired relief pursuant to the West Bengal Services (Unification of State Services) Rules, 1979 and settled principles of law. We find it difficult to hold that with the Rules of 1978 and 1979 remaining intact and unchallenged, how fault can be found with the impugned Draft Rules.

29. Mr. Gupta urged next that the balance of convenience and inconvenience tilts in this case in favour of the petitioner-respondents. He pointed out that if following the decision of the learned Trial Judge, the members of the W.B.J.C.S are placed in order of seniority after the members of the W.B.C.S recruited up to 1970, in that case they would get a number of special or promotional postings and such other benefits no doubt, but they being all very senior members of the service would be retiring very soon. The members of the W.B.C.S recruited directly on the basis of examinations held in between 1970 to 1974 so argued Mr. Gupta were comparatively young and they would also surely get and enjoy these benefits when their turns come.

30. There is not much force in the contentions of Mr. Gupta since it becomes difficult to accept his contentions, before we can find a prima facie case in favour of his clients.

31. Mr. Paul appearing for added respondents Nos. 9 to 15 raised the plea of Quota Rule. He pointed out that under the Bengal Provincial Services Recruitment Rules, 1930, 50% of the entrants to the W.B.C.S were to come by promotion from the members of the W.B.J.C.S He pointed out that the Rule was not adhered to in between 1970 and 1974 when officers exceeding 50% were recruited directly to the W.B.C.S depriving a proportionate number of officers of the W.B.J.C.S of their promotions to the W.B.C.S Citing V.B Badami v. State of Mysore reported in AIR 1980 SC 1561 and Sonal Sihimappa v. State of Karnataka reported in AIR 1987 SC 2359, he urged that the shortfall should be made good and the position or seniority of the members of the W.B.J.C.S, who should have been promoted to the W.B.C.S, but whose places were taken over by direct recruits in excess of the quota, should be restored and that the latter should be pushed down the ladder of seniority. The learned Judge also considered this question, but ultimately he did not grant the petitioners/respondents any relief on this ground. The difficulty with this problem is that the mischief, if any, occurred in this case in between the years 1970 and 1974 and more than fourteen years have passed since then. Fourteen years is a considerably long period of time and much must have happended in the service during this long period. It becomes difficult to ignore all these changes and to hold after all these years even prima facie that the petitioners respondents have a live cause on this ground of violation of the Quota Rules. Besides, it was nobody's case that all the officers of the erstwhile W.B.C.S, who will be adversely affected if the quota rule is enforced, have been added as parties to the present dispute. It is not understood, therefore, how an order can be passed for enforcing the quota rule affecting their interest.

32. On a consideration of all the submissions made before us, we are inclined to hold, therefore that the appellants petitioners have made out a prima facie case for staying the operation of the judgment and order passed by the learned Judge. Since the respondents have not been able to establish that the prima facie case is in their favour, it cannot be held that the balance of convenience and inconvenience tilts in their favour. The learned Judge has restrained the appellant-state from filling up a number of important posts till the making of the Seniority Rules and determination of seniority of the respondents. Such a stay order has been there since the filing of the original writ petition. It is obvious that the Government has been suffering because of this embargo and it is also obvious that the officers who would have otherwise been appointed to these posts have also been suffering financially. The operation of this order of injunction shall also, therefore, have to be stayed along with the operation of the judgment and decree passed by the learned Judge.

33. In the circumstances stated it is hereby ordered that the operation of the judgment and order dated 23rd March, 1989 passed by the Hon'ble Mr. Justice Ajit Kumar Sengupta in the matter No. 1436 of 1988 together with all interim orders passed by His Lordship in the said matter are hereby stayed. Pending the disposal of this appeal the Government will be at liberty to proceed with the finalisation of the Seniority Rules governing the members of the unified W.B.C.S The Government will be also at liberty to file up all the vacancies and award all service benefits including appointments to higher posts or higher scale which will be subject to the results of these appeals. Since many such posts are lying vacant at present, the Court desires the Government to consider, if it will take in its consideration, the cases of the writ petitioners and the respondents Nos. 9 to 15, while filling up these posts.

34. Let the hearing of the appeal be expedited. Paper Books, typewritten or cyclostyled, as prayed for, be filed by 3 weeks. Filing of index is dispensed with. Notices of appeals are waived upon remaining respondents. Paper Books as directed may be filed without the copy of the judgment, if the same is not available as yet. On receipt of the same, the appellants will have liberty to file a supplimentary paper book incorporating the same. Liberty to mention.

35. The applications are disposed of. There will be no order as to costs.

36. The operation of this judgment together with the order shall remain stayed for eight weeks.

37. All parties to act on the basis of a signed copy of the ordering portion of the judgment.

M.N Roy, J.:— 38. I agree.

Order accordingly.