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PETITIONER: D. HANMANTH  RAO AND ORS.

       Vs.

RESPONDENT: STATE OF A.P. AND ORS. ETC.

DATE OF JUDGMENT25/04/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION:  1990 SCR  (2) 703        1990 SCC  524  JT 1990 (2)   560        1990 SCALE  (1)84

ACT:     Civil   Services: A.P.  (Roads  and   Buildings)   Engi- neering  Service Rules, 1965: Rule 3(3)(a)--Assistant  Engi- neers--Promotees      and      direct      recruits--lnterse seniority--Fixation of.

HEADNOTE:     Sub-rule 3(a) of rule 3 of the Andhra Pradesh (Roads and Buildings)  Engineering Service Rules, 1965 prescribes  that the  substantive  vacancies  in the  category  of  Assistant Engineers  37-1/2  per  cent shall be filled  up  by  direct recruitment  and the remaining 62-1/2 per cent  by  transfer and promotion of junior officers.     In  K.  Siva Reddy v. State of  Andhra  Pradesh,  [1988] Suppl.  SCC  225, filed by direct recruits,  the  Court  had directed  the State Government to ascertain the  exact  sub- stantive vacancies in the category of Assistant Engineers in the  service  as on December 31, 1982, work  out  the  quota prescribed  under  rule 3(3)(a) of the Rules and draw  up  a seniority list accordingly.     In  the draft seniority list drawn up by the State  Gov- ernment  on the basis of the guidelines, it placed the  1982 direct recruits from serial Nos. 234 to 269 without disturb- ing  promotees  upto  serial No. 233 and  the  remainder  of promotees given promotion prior to 1982 were placed  against serial Nos. 270 to 300. In C. Radhakrishna Reddy v. State of A.P., W.P. No. 369 of 1989 decided on November 10, 1989  the Court found the said list in accord with the directions.     In  these writ petitions preferred by the  promotee  As- sistant  Engineers, it was contended for them  that  serious injustice  had  been done to them as the accrued  rights  of theirs  had been disturbed and some of the  direct  recruits had been given the benefit of seniority above them by count- ing service prior to their actual recruitment. Dismissing the writ petitions, the Court, HELD:  1. A Government servant is justified in taking  legal action 704 when he feels that a stigma or punishment is undeserved  but he  is expected to bear with fortitude and reconcile to  his lot  suppressing  disappointment when he finds  a  co-worker

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raised to a position which he himself aspired after. [707G]     Dr. G. Marulasiddaiah v. Dr. T.G. Siddapparadhya & Ors., [1971] 1 SCC 568, referred to.     2.  In K. Siva Reddy’s case, the Court had taken a  very equitable view in not disturbing the regularisation contrary to  the  quota and had taken every care to ensure  that  the cause  of justice was not made to suffer and a  balance  was maintained by an appropriate admixture of relief by  confin- ing  the reconsideration for a period after 1982.  The  year 1982 was fixed on account of two features, (i) that  regular disputes  had been raised from that time, and (ii) a  period of  5-6  years was not too long a period to give rise  to  a sense of conclusiveness generated by long lapse of time. The promotee-engineers  should have been happy and  thankful  to their  lot that their regularisation was not  disturbed  and even  seniority prior to 1982 was not being affected  though they had acquired these benefits out of turn. [707C-E]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 1275 of 1989 etc. (Under Article 32 of the Constitution of India).     Ms. Rani Chhabra, K. Ramkumar, Govind Mukhoty and  Vimal Dave for the Petitioners.     M.K. Ramamurthy (NP), K.K. Venugopal, H.S. Gururaj  Rao, Ms. Chandan Ramamurthi, M.A. Krishnamurthi, T.V.S.N.  Chaff, S. Markandeya, W.A. Nomani, G.S. Giri Rao and A.K. Raina for the Respondents. The Judgment of the Court was delivered by     RANGANATH MISRA, J. These are petitions under Art. 32 of the Constitution. Petitioners are promotee-Engineers of  the Roads  &  Buildings Wing of the Andhra  Pradesh  Engineering Service and challenge mainly is to certain earlier decisions of  this Court resolving similar disputes by judgments  ren- dered in writ petitions and to the guidelines formulated  by the State Government in the matter or’ the drawing up of the seniority  list  by way of implementation  of  this  Court’s directions. 705     Facts  are  not in dispute. Shortly  stated,  under  the Rules  substantive  vacancies in the category  of  Assistant Engineers have to be filled up from two sources--37-I/2  per cent  by direct recruitment and the remainder of 62-1/2  per cent  by  transfer  of Supervisors and  Draughtsmen  and  by promotion  of Junior Engineers. Regular  direct  recruitment had  not been made as and when due and promotees beyond  the limit had been put in in the place of direct recruits. While disposing of a group of petitions in a contest of this  type in  K.  Siva Reddy & Ors. v. State of A.P.  &  Ors.,  [1988] Suppl.  SCC 225, a two-Judge Bench of this Court instead  of disturbing the entire group of promotee Engineers in  excess of the quota, made the following direction: "Reopening  the question of inter se seniority on the  basis of non-enforcement of the rules from the very beginning  may create hardship and that would be difficult to mitigate  but we see no justification as to why the benefit of the  scheme under  the  rules  should not be made  available  to  direct recruits  at least from 1982. When the State  Government  by rules  duly framed prescribed the method of recruitment  and put  the  scheme  into operation it had  the  obligation  to comply with it. The explanation offered by the State Govern- ment  for  non-compliance of the requirements of  the  rules does not at all impress us. We, therefore, direct that as on

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December  31, 1982, the State Government must ascertain  the exact  substantive  vacancies in the category  of  Assistant Engineers in the service. On the basis that 37-1/2 per  cent of  such vacancies were to be filled up by  direct  recruit- ment, the position should be worked out. Promotees should be confined to 62 1/2 per cent of the substantive vacancies and in  regard to 371/2 per cent of the vacancies the  shortfall should  be  filled up by direct recruitment.  General  Rules shall  not be applied to the posts within the limits  of  37 1/2 percent of the substantive vacancies and even if  promo- tees are placed in those posts, no seniority shall be count- ed.The State Government shall take steps to make recruitment of the shortfail in the direct recruitment vacancies  within the limit of 37 1/2 per cent of the total substantive vacan- cies  up to December 31, 1987 within four months from  today by  following ,the normal method of recruitment  for  direct recruits.  The  seniority  list in the  cadre  of  Assistant Engineers shall be redrawn up, as directed by the  Tribunal, by  the  end of September 1988, keeping the  directions  re- ferred to above in view. There 706 shall  be a direction issued to the State of Andhra  Pradesh to  make recruitment to the category of Assistant  Engineers by strict compliance of Special Rules henceforth."     The  State  Government  came forward  to  implement  the direction and published the draft seniority list drawn up on the basis of discussed guidelines. Keeping the directions in view  the  draft list placed the 1982 direct  recruits  from serial  nos.  234 to 269 without disturbing  promotees  upto serial  no. 233 and the remainder of promotees given  promo- tion  prior to 1982 were placed against serial nos.  270  to 300.     Writ  petition no. 369 of 1989--C. Radhakrishna Reddy  & Ors.  v. State of A. P. & Ors., had earlier raised the  same dispute. By judgment dated November 10, 1989, while dismiss- ing  the said writ petition a two-Judge Bench of this  Court said: "In  Siva Reddy’s case this Court found that  promotees  had exceeded  the quota and even got regularised in  respect  of the posts in excess of the limit. Taking into  consideration the fact that regularisation had been done after the  promo- tees  had put in some years of service and disturbing  regu- larisation would considerably affect the officers concerned, regularisation was not interfered with. This Court’s  inten- tion obviously was not to take away the benefit of regulari- sation in respect of the officers belonging to the  promotee group in excess of their quota but the Court did not  intend to allow such regularised officers in excess of the quota to also  have the benefit of such service for purposes of  sen- iority.  A  reading  of the judgment in  Siva  Reddy’s  case clearly indicates that this Court intended what the  Govern- ment have laid down by way of guideline. We see no  justifi- cation  to interfere with the Government direction. A  draft seniority  list on the basis of such direction  has  already been  drawn  up and has been circulated. We  are  told  that objections  have  been received and would be dealt  with  in usual  course  by  the appropriate  authorities.  This  writ petition had been entertained in view of the allegation that the Government direction was on a misconception of what  was indicated  in  the judgment and in case there was  any  such mistake  the same should be rectified at the  earliest.  Now that  we have found that the Government order is  in  accord with  the Court direction, this writ petition must  be  dis- missed and individual grievances, if any, 707

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against the draft seniority list would, we hope, be  consid- ered  on  the  basis of objections filed  by  the  competent authority."     At the hearing Mr. Mukhoty, appearing in support of  the main  petition, vehemently contended that serious  injustice had been done to the promotees and accrued rights of  theirs had  been  disturbed. He submitted that some of  the  direct recruits had been given the benefit of seniority by counting service  prior to their actual recruitment and  relied  upon observations made by this Court in some cases to the  effect that  for computation of length of service the period  prior to  selection  was being counted by a  deeming  position  of employment  prior to recruitment. When called upon  to  sub- stantiate his allegation, he has not been able to do so.  On the other hand, the Court had taken a very equitable view in not disturbing the regularisation contrary to the quota  and had taken every care to ensure that the cause of justice was not made to suffer and a balance was maintained by an appro- priate admixture of relief by confining the  reconsideration for  a  period after 1982. The year 1982 was fixed,  as  the reasonings  indicate, on account of two  features--(i)  that regular disputes had been raised from that time; and (ii)  a period  of 5-6 years was not too long a period to give  rise to  a  sense of conclusiveness generated by  long  lapse  of time.  The  promotee-Engineers should have  been  happy  and thankful  to  their lot that their  regularisation  was  not disturbed  and  even seniority prior to 1982 was  not  being affected.  Oblivious of these benefits which they  have  re- tained  though acquired out of turn, they have proceeded  on the  footing that their cause has been affected and  justice to them has been denied by placing a group of them below the 1982  recruits.  We do not think that  for  dismissing  this group of petitions anything more should be said excepting to quote  with  approval  what this Court had said  in  Dr.  G. Marulasiddaiah  v. Dr. T.G. Siddapparadhya & Ors., [1971]  1 SCC 568: "The canker of litigiousness has spread even to a sphere  of life  where  discipline  should  check  ambition  concerning personal preferment." A  government  servant is justified in taking  legal  action when he feels that a stigma or punishment is undeserved  but he is expected to bear with fortitude and reconcile  himself to  his lot suppressing disappointment when he finds  a  co- worker raised to a position which he himself aspired after. 708     Ordinarily,  we would have awarded exemplary  costs  but with a view to allowing an appropriate reconciliation of the petitioners  to their lot and not to give them a feeling  of infliction of any new injury, we refrain from doing so. P.S.S.                                       Petitions  dis- missed. 709