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PETITIONER: NIRMAL KUMAR CHOUDHARY & ORS. ETC.

       Vs.

RESPONDENT: STATE OF BIHAR AND ORS., ETC.

DATE OF JUDGMENT16/12/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1988 AIR  394            1988 SCR  (2) 410  1988 SCC  Supl.  107     JT 1987 (4)   660  1987 SCALE  (2)1385

ACT:      Service  matter-Amalganation  of  different  cadres  of employees and resultant gradation-Challenge thereto.

HEADNOTE: %      Civil Appeal  Nos. 2049  and 3129 of 1979 were filed in this Court by special leave against the judgment of the High Court in  a Writ  Petition filed  by respondents  6 to 51 of Civil Appeal  No. 2049  of 1979.  One  appeal  was.  by  the employees and  the other,  by  the  State  of  Bihar,  etc., against the judgment of the High Court above-said.      There were  three different  wings of  Engineers in the Department   of   Agriculture,   viz.,   Irrigation,   minor Irrigation and  River Valley  Projects. On  January 9, 1969, the State Government amalgamated the cadres of engineers and other employees  of the  Irrigation  and  the  River  Valley departments. Engineers  and other  employees  of  the  minor Irrigation wing were not amalgamated. Later, the Directorate of minor  Irrigation was  made permanent  and a distinct and permanent cadre of overseers termed as Junior Engineers, was created. 191  permanent posts  of overseers were sanctioned. Thereafter, the minor Irrigation - wing was also amalgamated with the  other two  wings, and  a combined  final gradation list prepared on the basis of the status of the overseers as obtaining on.January 9, 1969, was issued.      On the  Writ Petition of the respondents 6 to 51 above- mentioned, the  High Court  quashed the  orders contained in the various  annexures viz  11.11/1, 12, 13, 13/1, 15 and 16 directed the  State Government  to prepare  a fresh combined gradation list  in accordance  with the principles laid down by the High Court.      Allowing the appeals in part, the Court, ^      HELD: The  three wings  though under the administrative control of the Agricultural Department, were separate before amalgamation. Permanent  posts had  been sanctioned  in  the minor Irrigation wing to 411 which the  petitioners before  the High  Court belonged  and they were  appointed on  permanent basis.  When  integration

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takes place and officers in different cadres are merged into one, there  is bound  to be some difficulty in the matter of adjustment. That  has occurred in this case. The approach of the High  Court has  been that  if within  the cadre earlier confirmation gives  seniority why  should that  basis be not extended to  the combined  gradation list.  That may  not be applicable in  every situation-particularly  when there is a merger  of   cadres  and  the  combined  gradation  list  is proposed. [414C-D,FJ]      Seniority would  ordinarily depend  upon the  length of service, subject, of course, to the rules holding the field. This view has been taken by this Court in several cases. The High Court  recorded a  finding that  there is no applicable rule in  the matter  of  fixing  inter  se  seniority  in  a situation of  this type.  In the  absence of rules, the more equitable way of preparing the combined gradation list would be to  take the  total length of service in the common cadre as the  basis for  determining the  inter se  seniority  The Court does  not agree  with the High Court that confirmation should be the basis and would substitute it by the length of service test,  but the  Court upholds  the direction that in fixing the combined gradation list the inter se seniority of incumbents in  their respective  departments  would  not  be disturbed. The gradation list as published by the Government has to  be modified.  The conclusion  of the High Court that Annexures 11, 11/1, 12,13, 1311, 15 and 16 should be quashed and a  fresh combined gradation list has to be published, is confirmed. The  test  for  fixing  the  seniority  inter  se generally,  is  altered,  but  the  direction  of  inter  se seniority in  their  own  departments  to  be  respected  is approved.  The  respondent-State  directed  to  prepare  and publish the  fresh combined  gradation  list  keeping  these directions in view. [4t4G; 4t5C-F]      A. Janardhana  v. Union of India and Ors., [1983] 2 SCR 936 and  K.S. Vora  and Ors.  v. State of Gujarat and  Ors., [1987] 4 J.T. 179, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos.  2049 and 3 128 of 1979.      From the  Judgment and order dated 2.3.1979 of the High Court f Patna in C.W.J.C. NO.1820 of 1977.      Dr. Y.S.  Chitale, S.S.  Javali,  Narendra  Prasad  and Ranjit Kumar for the Appellants. 412      S.N. Kacker,  and L.N.  Sinha D.  Goburdhan, M.L. Verma and A Dalip Tandon for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. These  two appeals  are by special leave. They  are directed  against the  same judgment of the Patna High  Court in an application under Article 226 of the Constitution filed  by respondents  6 to  51 of Civil Appeal No. 2049  of  1979.  In  the  Writ  Petition  the  aforesaid respondents impleaded  the State of Bihar and certain public officers as  also  all  others  who  were  included  in  the gradation list  for purposes  of seniority  in the  combined cadre of  engineers in  the Department  of Agriculture.  The other appeal  is by  the  State  of  Bihar  and  its  public officers and  both the  appeals challenge the correctness of the decision  of the  Division Bench of the High Court. Both the appeals are disposed of by this judgment.      There were  three different  wings of  engineers in the Department of Agriculture being Irrigation, Minor Irrigation

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and River  Valley Projects.  On 9th January, 1969, the State Government amalgamated  the cadre  of  engineers  and  other employees  of   the  Irrigation   and   the   River   Valley departments. Engineers  and other  employees  of  the  Minor Irrigation wing  were, however,  not  amalgamated.  On  17th November, 1969  the Directorate of Minor Irrigation was made permanent and  the State  Government created  a distinct and permanent cadre  of overseers who came to be known as Junior Engineers. 191 permanent posts of overseers were sanctioned. Discussions were  held and committees were appointed for the purpose of  merging the Minor Irrigation wing with the other two wings  which had  already been  amalgamated in  1969. On 17th May, 1976, the Government ultimately approved the Minor Irrigation wing  to amalgamate.  On 29th  August, 1977,  the Engineer-in-Chief   cum    Special   Secretary,   Irrigation Department, circulated  a combined final gradation list said to have  been prepared, taking into consideration the status of the  overseers as obtaining on 9th January, 1969. On 30th June, 1978, an amended combined gradation list was published which was  further changed on 18th July, 1978. Respondents 6 to S  1 had  already filed their writ application before the Patna High  Court being  C.W.J. Case  No. 1820 of 1977 which the High  Court by  the impugned  judgment dated  2nd March, 1979 allowed. The High Court quashed the orders contained in Annexures 11,  11/1, 12, 13, 13/1, 15 and 16 and called upon the State  Government and  its officers  to prepare  a fresh combined gradation  list in  accordance with  the principles laid down in the judgment. 413      The High  Court referred to all the materials that were placed before  it by the different parties and in para 17 of the judgment came to the conclusion:                "From the discussion of the facts of the case           before us,  it is  clear that  the petitioners got           their substantive  appointments earlier  than  the           respondents concerned  and if seniority would have           ranked on that consideration, then the petitioners           would have  ranked senior in the integrated cadre.           This was  also the recommendation of both the High           Powered  Committees   which  suggested   that  two           seniority lists,  one for the permanent incumbents           and the  other for  the temporary  incumbents,  be           framed. No specific rule was brought to our notice           by either  side which could govern the case of the           petitioners and the respondents.                On the  other hand,  learned counsel  for the           petitioners  has   referred  to  the  instructions           issued by  the Personnel  Department of  the State           Government to  all Principal Secretaries and Heads           of Departments  etc. in its memo No 3/RI-106/72-F-           15784 dated  the 26th  August, 1972. Clause 3(vii)           thereof provides that in the event of amalgamation           of cadres  seniority is  determined with reference           to the date of appointment in the particular grade           on substantive  or continuous  officiating  basis,           whichever is earlier, without. however, disturbing           the inter  se seniority of incumbents in any group           of posts as amongst themselves in that process. No           other rule  was brought to our notice on behalf of           either the learned counsel appearing for the State           or the contesting respondents. An attempt  had been made before the High Court to rely upon the executive instructions issued in a Government resolution (Annexure 9). The High Court found that the circular had got no application  to the  case before  it and  it  related  to

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secretariat assistants.  The High  Court was not prepared to act upon  it because  it was  not laying  down  any  general principles. According to the High Court:                "Substantive appointment  in a  service gives           the incumbent  a right and if that cannot be taken           away  by   a  temporary   incumbent  of  the  same           department, we do not see why that right should be           allowed  to   be  taken  away  if  a  question  of           integration or merger comes in by such incum- 414           bents who  were similarly  temporary  and  thereby           junior to the permanent employees. In our opinion.           therefore,  the   gradation  list   in  this  case           (Annexure  12)  is  violative  of  the  principles           contained in  Articles 14  and 16  of the Constitu           tion and  impinges upon  the civil  rights of  the           petitioners, making  them several  hundreds places           junior in  the integrated  or combined  cadre on a           basis which  cannot, in any view of the matter, be           said  to   be  reasonable  in  the  light  of  the           principles    discussed     in    the    aforesaid           authorities." It is  not in dispute that the three wings, though under the administrative control  of the Agricultural Department, were separate  before   amalgamation.  As  already  pointed  out, permanent posts  had been sanctioned in the Minor irrigation wing to which the petitioners before the High Court belonged and they were appointed on permanent basis. The High Powered Committees had  taken all aspects into consideration and had recommended relevant  aspects to be kept in view to regulate seniority in  the merged cadre. When integration takes place and officers  in different cadres are merged into one, there is bound  to be some difficulty in the matter of adjustment. That obviously  has occurred  here. The High Court has found that the  petitioners before  it had  held, on  the basis of confirmation, permanent  posts and  on that  basis  directed that the  combined seniority  list should be prepared taking dates of  substantive appointments  as the  basis for fixing inter  se  seniority.  That  indeed  might  create  problems because depending  upon availability of opportunities in the different wings, confirmation may have been granted while in the absence  of the same, though officers in the other wings may be senior they may not have been confirmed. The approach of the  High Court  has been, as extracted above by us, that if within the cadre earlier confirmation gives seniority why should that  basis be not extended to the combined gradation list.  This  may  not  be  applicable  in  every  situation- particularly when  there is  a  merger  of  cadres  and  the combined gradation list is proposed.      It is  a well-settled  position in  law that  seniority would ordinarily  depend upon  length of service subject, of course, to rules holding the field. That view has been taken by this  Court in  several cases  and it  is unnecessary  to refer to  all of  them. In A. Janardhana v. Union of India & Ors., [1983]  2 SCR  936 the situation was somewhat the same as here.  The Court found that the method adopted for fixing seniority  overlooked  the  character  of  appointments  and pushed down  persons validly  appointed below others who had no justification  to be  given higher  place. At page 960 of the Reports, the Court observed: 415                "It is  an equally  well recognised  canon of           service jurisprudence  that in  the absence of any           other  valid   rule  for   determining  inter   se           seniority  of   members  belonging   to  the  same

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         service, the rule of continuous officiation or the           length of  service or  the  date  of  entering  in           service  and   continuous  uninterrupted   service           thereafter would  be valid  and would  satisfy the           tests of Article 16." We may also refer to a very recent decision of this Court in K.S. Vora  & ors.  v. State  of Gujarat  &  Ors.,  [1987]  4 Judgment Today  179. The  High Court recorded a finding that there is no applicable rule in the matter of fixing inter se seniority in  a situation  of this  type. In  the absence of rules, the  more equitable  way of  preparing  the  combined gradation list  would be to take the total length of service in the  common grade  as the  basis for determining inter se seniority. We  would like  to add  that  in  regard  to  the Supervisors (now  called Junior  Engineers) serving  in  the three wings there is no dispute of the grade being the same. While we  do not agree with the High Court that confirmation should be the basis and would substitute it by the length of service test,  we would  uphold the direction that in fixing the combined  gradation list  the inter  se seniority of the incumbents in  their respective  departments  would  not  be disturbed. Even  if this  be the test, the gradation list as published  by  Government  has  to  be  modified.  We  would accordingly confirm  the conclusion  of the  High Court that Annexures 1  1, 11/1,  12, 13,  13/1, 15  and 16  should  be quashed and  a fresh  combined  gradation  list  has  to  be published. We have altered the lest for fixing the seniority inter se  generally but  we have  approved the  direction of inter se seniority in their own departments to be respected. The  respondent-State  and  its  officers  are  directed  to prepare  and  pubIish  the  fresh  combined  gradation  list keeping the aforesaid directions in view.      Both the  appeals are  allowed to  the extent indicated above. Parties shall bear their own costs throughout. S.L.                                        Appeals allowed. 416