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PETITIONER: KESHAV DEO & ANR

       Vs.

RESPONDENT: STATE OF U.P.  & ORS.

DATE OF JUDGMENT:       16/10/1998

BENCH: SUJATA V. MANOHAR, M. SRINIVASAN,

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT Srinivasan. J. The first appellant was  appointed  as  an  Overseer (re-designated  as Junior Engineer) on adhoc basis in Public Works Department (for  short  P.W.D),  State  of  U.P.    on 17.7.1973.   The  second appellant was directly appointed as overseer substantively in the said  department  through  the Commission on  the  same  day.    Both  the  appellants were holders of Diploma in Civil Engineering.  In May, 1978  they passed   an   examination   known  as  Associate  Member  of Institution of Engineer (India), Section A and B, equivalent to B.E.  Degree.  On 31.5.1979 the appellants were  promoted to the post of Assistant Engineers on adhoc basis.  The said promotions  were made within the quota of posts reserved for the promotees according to the relevant Service Rules by the Departmental Promotion Committee  consisting  of  Secretary, P.W.D., Chief   Engineer,   P.W.D.      and  Chief  Engineer Irrigation Department.  The appointment orders  stated  that the  promotion  was being made to cope up with the work load in the Department since Assistant Engineers approved by  the Commission  were  not available and that the promotions were only for a period of one year.  Since then,  the  appellants have  been  working uninterruptedly on the post of Assistant Engineers. 2.Respondents 3 & 4 were selected through  the Commission  and appointed directly as Assistant Engineers in the P.W.D.  by order dated 9.8.1979.  The commission held in the year 1980, an interview of some of the  promotes  to  be considered for   the  post  of  Assistant  Engineers.    The appellants have a grievance that though their  juniors  were called  for  interview, they were not considered without any reason therefor.  However  that  grievance  is  outside  the scope of  the present controversy.  In the interview held in the year 1984, the appellants were also called and they were duly approved and selected by the Commission.  Consequently, they were confirmed as Assistant Engineers. 3.In the meanwhile, one D.N.  Saksena, who was an  adhoc  promotee  as  Assistant Engineer in the year 1970 just like the appellants and approved by the  commission  in the  year  1980,  filed  a  Writ  Petition in the High Court

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namely W.P.  No.  1536 of 1981.  claiming seniority  in  the post   of  Assistant  Engineer  from  the  date  of  initial appointment and officiation on the said  post.    That  Writ Petition  was  treated  to be one in representative capacity and  notice  was  given  to  all   concerned   through   the newspapers.   A  Division  Bench of the High Court upheld on 4.7.1989 the claim made by the petitioner in the  said  writ petition  and  held  that  the  promotees  would be assigned seniority from the date of  continuous  affliction  and  not from the date of approval by the Commission. 4.A similar controversy inter-se the promotees and direct recruits arose in another writ Petition No.  8966 of 1989 which was decided on 17.1.1990.  There also the same view  was  taken  by  another  Division  Bench   which   was challenged in S.L.P.    (c)  No.    4878  of 1990, V.K.Yadav Versus State of U.P.  in  this  Court.    The  S.L.P.    was dismissed on 19.11.1990. 5.The judgment in the case of Saksena referred to earlier was assailed in this Court in  S.L.P.    (C)  No. 9343  of  1990, C.P.Sharma Versus State of Uttar Pradesh and others.  The  appellant  therein  placed  reliance  on   the judgment  of this Court in P.O.Aggarwal Versus State of U.P. and Others (1987) 3 SCC 622. By judgment dated 1.2.1991, the S.L.P. was dismissed by this Court. 6.Pursuant  to  the  aforesaid  judgments  the State Government gave benefit of seniority to the promotees. A seniority list was published, vide letter dated  3.12.1984 issued  by  the Secretary. Govt. of U.P. inviting objections filed by the direct recruits, a  final  seniority  list  was prepared  and  published, vide notification dated 11.7.1995. The first appellant was placed at Serial No. 566 and  second appellant  at  Serial No. 567. respondents 3 & 4 were placed at Serial Nos. 712 and 722 respectively.  Aggrieved  by  the said  list,  respondents  3  & $ filed Writ Petition No. 684 (SB) of 1995 in the High Court. The main  ground  of  attack was   that   the   counting  of  the  period  of  continuous officiation  of  the  promotees  from  the  date  of   adhoc appointment  was  against the decision of this Court in P.D. Aggarwal Versus State of U.P. (1987) 3 SCC 622. No  promotee was   impleaded  as  a  party  to  the  Writ  Petition.  The application filed by the appellants for impleading  them  as parties  was  also dismissed by the High Court. However, the appellants were permitted to advance arguments through their counsel at the time of  hearing.  The  State  Govt.  in  its counter  affidavit justified the seniority list as one based on the rulings in D.N.Saksena and V.K.Yadav. 7.The Division Bench of  the  High  Court  has quashed the seniority list on the ground that it was against the  decision  of  this Court in P.D. Aggarwal. The Division Bench also held that the judgments in Saksena and Yadav  wer also  contrary  to  the  said decision of this Court and not good law. The Division Bench held that the period of service rendered by the promotee -  Assistant  Engineer  before  the appointment   in   accordance   with   the  rules,  that  is appointment with the consultaiton of the Commission, can not be counted for the purpose of determining the seniority. 8.That is the judgment which is challenged  in this  appeal.  Three  questions were posed by the appellants for consideration: 1.Whether in the facts and circumstances of  the  case the  appellants  are  entitled  to  seniority on the post of Assistant Engineers from the date they have been officiating as such or from the date they were selected and approved  by the Commission? II.Whether  the  appellants  can  be  deprived  of  the

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benefits  of their officiating service prior to the approval of the Commission for the purpose of seniority  in  view  of the fact that the delay in granting approval for making them regular  on  the post of Assistant Engineer was attributable to  the  State  Government  and  the  Commission,   as   the appellants were fully qualified to be appointed and approved as Assistant Engineers even on the date, they were appointed to officiate as such? IIIWhether  the  High  Court was right in reopening the issues which have been decided in favour of the promotees by three different Division Benches of the same  Court  without retiring the matter to a larger Bench? 9.We do not  propose  to  consider  the  third question  as  an answer in the negative would only lead to a remand to the High Court  for  fresh  consideration  of  the matter.  As  the  dispute  between  the promotees and direct recuits has been pending for a long time, a remand will only prolong the agony of the parties and the matter may have  to come  again to this Court for decision. Hence, we propose to decide the appeal on merits. 10We are also of the opinion that  it  is  not proper to decide the second of the above questions.  In this case  the  appellants or other promotees were not parties to the writ petition and the High Court has  decided  only  the general  principle  applicable  in  the  dispute between the promotees and direct recruits in the matter of seniority and not considered the individual grievances if any, against the seniority list dated 11.7.1995.   Any  individual  grievance against  the  said  seniority list is a matter for agitation before the appropriate forum.  We leave that question open. 11.What remains to be considered  is  only  the first question  set out above.  The Service Rules applicable in this case are the U.P.  Services of Engineers  (Buildings and  Roads  Branch), Class-II Rules, 1936 as amended in 1969 and 1971 hereinafter referred to as Rules.  Rule 5  provides that  recruitment to the post of Assistant Engineer shall be made by direct recruitment as well as  promotion.    Rule  6 says   that   the   Governor  shall  decide  the  number  of appointments to be made at each selection in  each  kind  of post from  the sources mentioned in Rule 5.  The provisos to the rule specify the proportion from each source.  According to the provisos twenty five percent of the  vacancies  shall be filled by promotion of members of the P.W.D.  Subordinate Engineering Service and P.W.D.  Computers’ Services.  As per Rule  12,  recruitment by promotion shall consider the cases of all eligible candidates and draw up, in order of merit  a list of  candidates  considered  suitable  for promotion.  A supplementary  list  of  candidates   whom   the   Secretary considers suitable for officiating or temporary appointments shall  also  be  drawn  and both lists should be sent to the Commission along with Character Rolls, etc.  The  Commission after  examining  the rolls may add to the lists as they may like and return them to the Govt.  Thereafter the candidates will be interviewed by a Selection Committee preside over by a representative of the Commission.    The  Committee  shall thereafter  prepare  two  lists  and  place  them before the Commission.   The  Commission   shall   make   their   final recommendations to  the  Govt.  Appointments will be made on the basis of such recommendations.   Rule  23  provides  for seniority and sub rule (d) is very relevant in this case and it reads thus:            "As  and  when cacancies are allocated in any year            according to the promotion specified in the  first            proviso to rule 6, the inter-se seniority of those            referred to in clauses (a), (b) and (c) above will

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          be determined by framing a cycle of 4 according to            the following formula "-            3.          D            4.          D            ----------------------                   Repeat            Note (1) in the Rule reads as follows :-            "Not :-            Where   the  appointment  order  specifies  a            particular  back  date  with  effect  from   which            aperson  is  to  be  appointed  substantively  (on            probation against a clear vacancy on  a  permanedt            post)  that  date will be deemed to be the date of            order of substantive appointment In other cases it            will mean the date of issue of the order." 12.From the Rules applicable to the parties, the following position emerges: (a)The number of vacancies for each year has  to be determined. (b)They  have  to  be  filled  from  the sources mentioned in the rules in the proportion specified. (c)Selection of candidates from each  source  to bemade in the prescribed manner. (d)In  the  case  of promotions from Subordinate Engineering  service,  25  per  cent  of  the  vacancies  are reserved for them. (e)Such of the candidates who are recommended by the  Commission after following the prescribed procedure will be appointed to fill up the vacancies for the specified year. (f)If anybody is appointed with  effect  from  a back  date,  that  date  will  be  deemed  to  be the date of substantive appointment. (g)Seniority of such person has  to  be  counted from  that  date  whether  he  was  working  on  that post on officiating or ad hoc basis. (h)It  follows  as  a  Corollary that any person appointed subsequent to he said date will be junior to him. 13.Bearing  the  above  principles  in  mind the facts of the case may analysed.  Undisputedly, the appellants possessed  the  requisite  qualifications  for  the  post  of Assistant Engineer.    Their promotions were within the quota prescribed for  them  as  there  were  sufficient  number  of vacancies reserved  for promotees.  They were selected by the Departmental  Promotion  Committee  even  for  their  ad  hoc promotion.   They  were  recommended  by the Commission after some years  but  with  reference  to  1979.      After   such recommendation  their  promotions  were confirmed with effect from 30.5.1979.  The impugned seniority list was prepared  on that basis after the issue of directions by the High court in D.N.Saksena and  V.K.Yadav.   It goes without saying that the said seniority list is in accordance with the Rules  and  can not be disturbed.  But unfortunately the High Court has upset that  list  on  the  ground  that  it  violates  the  rule in ’P.D.Aggarwal.’ 14.We shall now advert to ’P.D.Aggarwal’ and all the  other  rulings  cited  by  counsel  on both sides in the chronological order, In G.P.  Doval and ors.    Versus  Chief Secretary.  Govt.  of U.P.    and Ors.  (1984) 4 S.C.C.  329, it was  held  that  subsequent  approval  by  Public  Service Commission to temporary appointments already made will relate back  to  the  date of initial appointment for the purpose of reckoning seniority on the  basis  of  the  general  rule  of continuous  officiation in the absence of any particular rule framed in that regard.    That  case  related  however  to  a dispute between two sets of direct recruits.

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15.In O.P.Singla versus Union of India (1984)  4 S.C.C.  450  the  contest  was  between  promotees and direct recruits. A Bench of Three Judges held that the seniority  of direct  recruits and promotees appointed under the Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the  dates  from which the promotees have been officiating continuously either in  temporary  posts Created in the Service or in substantive vacancies  to  which  they  were  appointed  in  a  temporary capacity. 16.In P.O.  Aggarwal and others versus State  of U.P.  (1987)  3  S.C.C.  622 the dispute was between two sets of direct recruits.  Whatever observation was  made  in  that case must  be  taken along with the context.  The respondents in that  case  were  directly  recruited  as  Asstt.    Civil Engineers in substantive capacity against temporary vacancies in  consultation  with  the  Public  service Commission under Rules, 1936.  The appellants were  also  similarly  recruited but  later  on  the  basis  of  the  competitive  examination conducted by the Commission they were appointed  directly  on probation against  permanent  vacancies.   Both categories of Assistant Engineers were graduates in  Engineering  and  were performing the same  nature  of work.  In December 1961.  the Govt.  issued an D.M.Laying down principles  for  recruitment to permanent and temporary vacancies and pursuant thereto the Rules were  amended  in  1969  and  1971.   The effect of the amendments was that the Assistant Engineers  who  had  become members  of  service  under the 1936 Rules would no longer be members of service and required to wait  till  selection  and appointment  as  Assistant  Engineers  under  Rule  5 (a)(ii) against quota fixed  by  Rule  6  of  1969  Amendment  Rules. Consequently  the Assistant Engineers appointed several years ago to the temporary posts had to wait until their  selection and  appointment  to  permanent  posts against the prescribed quota whereas the Assistant Engineers recruited to  permanent posts  several  years after would supersede the former in the matter of determination of seniority from the date  of  their appointment against  the  permanent  vacancies.    This Court quashed the amended rules as well as the seniority lists.  In the course of the judgment, this Court said that  the  period of  service  rendered  by  the ad hoc appointees before their service had been duly  regularised  in  accordance  with  the regularisation   rules,  cannot  be  taken  into  account  in reckoning their seniority in service and that their seniority will  be  counted  only  from  the  date  when  such  ad  hoc appointees  after regularisation in accordance with concerned rules had become members of the service.  The  Bench  had  no occasion to consider a situation similar to the one which has arisen in  this  case.    Unfortunately,  the  High Court has without   understanding   the   ruling   correctly   observed repeatedly  that  the  decisions in D.N.Saksena and V.K.Yadav and the seniority list prepared in 1995  in  accordance  with the same are contrary thereto. 17.In D.N.Aggarwal and Anr. versus State of M.P. and others (1990) 2 S.C.C. 2 553 ad hoc promotions were  made when  the  persons  concerned  were  not eligible and had not completed qualifying period  of  service.  Though  they  were later  selected  by  D.P.C. on regular basis and appointed as such to the promotion post on their completing the qualifying period of service, it was held that their ad  hoc  period  of service   cannot   be  counted  for  the  purposes  of  their seniority. 18.In   Direct   Recruit  Class  II  Engineering Officers Association versus State of Maharashtra  and  others (1990)  2 S C C 715, the Constitution Bench held that once an

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incumbent is appointed to  a  post  according  to  rule,  his seniority  has  to be counted from the date of his appintment and not according to the date of his confirmation. The  Bench summed  up  the law in the form of eleven propositions. It is sufficient to refer to the first two propositions  which  are the following terms :            "(A)Once an  incumbent  is  appointed  to  a  post            according  to  rule,  his seniority has to be rule,            his seniority has to be counted from  the  date  of            his  appointment  and  not according to the date of            his confirmation.            The  corollary  of the above rule is that where the            initial  appointment  is  only  ad  hoc   and   not            according   to   rules   and  made  as  a  stop-gap            arrangement, the officiation in such post cannot be            taken into account for considering the seniority.            (B)If the initial  appointment  is  not  made  by            following  the procedure laid down by the rules but            the appointee continues in the post uninterruptedly            till  the  regularisation   of   his   service   in            accordance   with   the   rules,   the   period  of            officiating service will be counted." 19.Masood Akhtar Khan case (1990) 4 S C C 24  has no  bearing  in  this  case as the initial appointments of the appellants therein who were direct recruits were not according to the Rules. 20.In State of Bihar versus Akhouri Sachindranath and others 1991 Supp.  (1) SCC 334, it was held that no person can be promoted with retrospective effect from a date when  he was  not  born  in the cadre so as to adversely affect others. The respondents 1 to 5 in that case were directly appointed as Asstt.  Engineers on the recommendation of the Public  Service Commission in  1961.  Respondents 6 to 13 were promoted to the post in 1964 and the appellants were promoted in  1969.    The promotees  were shown as juniors to the direct recruits in the seniority list.  On the representation of  the  promotees,  an order was passed by the Govt.  on 21.7.75 changing the date of promotion   of   the  promotees  to  a  prior  date  in  1961. Subsequently other orders were passed pushing back  the  dates of  promotion still further to December 1958 for respondents 6 & 7 and February 1961 for respondents 14 to 23.  Those  orders were challenged by respondents 1 to 5 who were direct recruits and the  orders were quashed.  That ruling has no relevance in the present case. 21.IN Keshav Chandra Joshi vs Unior of India 1992 Supp. (1) SCC 272 promotion was made in excess of the quota on ad hoc basis as a stop-pag arrangement as direct recruits were not available. Such appointment by promotion being contrary to rules, the Bench held that the promotees could not  claim  the benefit  of  their officiation in the promoted post before the date of the vacancy within  the  quota  as  such  service  was fortuitous. 22.In  ’Aghore  Nath  Dey’ (1993) 3 SCC.371, this Court explained the scope of  applicability  of  corollary  to Conclusion  (A)  and Conclusion (B) in Direct Recruit Class II Engg. Officers’ Association case (supra) and  reiterated  that the benefit of ad hoc service is not admissible if appointment was  in violation of Rules. In V. Srinivasa Reddy vs. Govt. of A.P. 1995 Supp. (1) SCC 572 the contest was only  between  two sets  of  direct  recruits  and  the  decision  turned  on  an interpretation of the relevant Service Rules. 23.In V.P.  Shrivastava and ors.  Versus State of M.P.  (1996) 7 SCC, 759 the promotees who  were  appointed  de horse  the  rules  and  not  approved  by  the  Public Service Commission,  were  held  to  be  juniors  to  direct  recruits

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regularly  appointed  after  selection  through Public Service Commission in spite of their longer service. 24.In U.P.  Secretariat case J.T.  1997 (2)  S  C 461  the  promotees  were  appointed  in officiations capacity against vacancies reserved for direct recruitment as no direct recruitment had taken Place.  This Court affirmed the judgment of the High Court  holding  that  direct  recruit  was  to  be treated  from the date on which he actually joined the service and the promotee was to be fitted into the  service  from  the date  when he was entitled to figment in accordance with quota and rota prescribed under the Rules. 25.The ruling  in ’Jagdish Ch.  Patnaik’ J.T.1998 (3) S C 105 has no application in this case.    It  is  wholly unnecessary to invoke the principle stated in Mohd.  Sadar Ali J.T.   1998  (5)  S  C 627 that the earlier judgment cannot be reconsidered after a lapse of nine years. 26.We  have  no  hesitation  to  hold  that   the impugned   seniority  list  of  1995  prepared  by  the  Govt. pursuant  to  the  directions  contained  in  D.N.Saksena  and V.K.Yadav  is  in  accordance  with  the  Rules  and cannot be interfered with on the ground that promotees have  been  given the benefit  of  their  service  in officiating capacity.  The question is answered in favour of the appellants.   As  stated already  individual  relevances against their placement in the list have to be agitated in appropriate forum.   The  judgment of the  High  Court is unsustainable and it is set aside.  The Writ Petition filed by respondents 3 & 4 is  dismissed.    The parties will bear their respective costs. 27.Before parting with the case, we wish to place on record our strong disapproval of the  stand  taken  by  the State Government   in   this  appeal.    In  the  High  Court, Government stood by the seniority list and justified it.  When the High Court allowed the writ petition, the Govt.  ought  to have  filed  an  appeal in this Court particularly because the promotees were not made parties to the  writ  petition.    Not only did  the  Govt.    fail  to  do  so  but in this Court it actively supported the case of  the  writ  petitioners.    The conduct of the  Govt.    is  highly reprehensible.  It is only because of such attitude, the disputes between direct recruits on the one hand and promotees on the other  became  perennial. It is  hightime  the Govt.  released that if the employees are made  to  live  through  endless  litigations,  administration cannot be carried on properly.