http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  62-65 of 1999 Appeal (civil)  66 of 1999

PETITIONER: Pramod K. Pankaj                                                 

RESPONDENT: State of Bihar and Ors.                                    

DATE OF JUDGMENT: 20/11/2003

BENCH: CJI, & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

INTRODUCTION :

       The usual problem which frequently arises in service matters i.e.  inter se seniority between two groups of employees is involved in these  appeals which arise out of a judgment and order dated 23.5.1997 passed  by the High Court of Patna in L.P.A. Nos. 100, 158, 101 of 1994 and  C.W.J.C. No.7826 of 1995.     

BACKGROUND FACTS :         The appellant and the contesting respondents were appointed in the  Bihar Subordinate Engineering Service Cadre as Junior Engineers.  The  sources for appointment to the rank of Assistant Engineer in Bihar  Engineering Service Class II were : (a) from Junior Engineer (Diploma  Holder) Cadre to 30% of cadre strength of Assistant Engineers; (b) from  Engineer Assistant Cadre (Engineering Graduate or equivalent Degree  Holder) to 20% of total cadre strength of Assistant Engineers; and (c)  50% of the posts of the Assistant Engineers from direct recruitment of  Engineering Graduate or equivalent Degree Holders from outside.   

On or about 17.8.1973, the cadre of Engineer Assistants was  abolished in various phases and only promotional avenue was left for  Junior Engineers from amongst the quota of 30% of the diploma-holders.   Keeping in view the fact that promotional avenue of those Junior  Engineers who had acquired degree in engineering during service was  taken away, the State of Bihar by reason of a resolution dated 17.1.1979  sought to provide special facility by way of incentive of promotion to  the post of Assistant Engineer to those Junior Engineers who had  acquired degree in engineering or passed equivalent examination during  their service to the extent of 3%.  The said employees besides holding  the degree of engineering or passing of equivalent examination were  further required to complete a minimum period of five years in service  in the cadre of Junior Engineers. The relevant clauses of the  aforementioned resolution are as under :

"Gha.  This facility of promotion to the post of  Assistant Engineer on the basis of quota  mentioned in paragraph (Ka) shall be equally  available to all those permanent/temporary  Junior Engineers who have passed the examination  of Graduate in Engineering or its equivalent  examination during their service period and have  completed a minimum of 5 years service on the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

post of Junior Engineer.

Cha.    Promotion to the vacant posts of Assistant  Engineer on the basis of the quota mentioned in  paragraph (Ka) be given in accordance with their  seniority.  With regard to inter se seniority of  these Junior Engineers, the decision be taken  after obtaining the opinion of the personnel  Department."          The Personnel Department of the State of Bihar indisputably did  not lay down any procedure for determination of the inter se seniority  of such Assistant Engineers who were promoted in the aforementioned 3%  quota.  Seniority list was, however, prepared by the Water Resources  Department in the light of the order dated 22.12.1992 wherein it was  laid down :

       "According to the provisions made in  Circular No.947 dated 17.1.79 of Public Works  Department, 3% posts of Assistant Engineer out of  total vacant posts of Assistant Engineers are to  be filled up by promotion of those Junior  Engineers who have passed Degree/AMIE after entry  into service.  In the Department the number of  available posts under the above quota basis is  less than the number of available such qualified  Junior Engineers. Applicants are more and posts  are less, under such situation it has become  inevitable for fixation of inter se, seniority of  Degree/AMIE holder Junior Engineers as per  Circular referred to.

2.      Generally, basis of seniority in a cadre is  the date of entry into service in that cadre but  in the case under reference fixation of seniority  on that basis is not justifiable, because on the  basis of seniority service 35% posts are reserved  for promotion to the posts of Assistant Engineer  separately.  Therefore, it has been decided by  the department to fix the inter se seniority on  the following basis :       (Ka) That the inter se seniority should be kept  as in service seniority of those officers who by  remaining in service have completed the period of  five years and have obtained qualification of  AMIE or Bachelors’ degree in Engineering within  those five years of service.

(Kha) That the fixation of inter se seniority be  fixed on the basis of the date of obtaining AMIE  or Bachelors Degree in Engineering of those  officers who, by remaining in service, have  completed the minimum service period of five  years but have obtained certificate of AMIE or  Bachelor’s degree in Engineering after five  years.

3.      On the basis of the principles enumerated  above, the fixation of inter se seniority of all  applicants received within the stipulated period  from the concerned applicants has been done  according to the enclosed list."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

       A gradation list dated 10.9.1992 was issued and the same was  purported to have been finalized on or about 22.12.1992 in terms of the  aforementioned circular letter.  The appellant herein submitted his  representations/objection to the said list on 12.1.1993.  Allegedly on  the premise that without disposing of the said objections, some Junior  Engineers were promoted, a writ petition was filed before the Patna High  Court, which was marked as C.W.J.C. No.2489 of 1993.  The said writ  petition was allowed by a learned Single Judge of the said High Court by  a judgment and order dated 25.4.1994 holding that as the Government  resolution dated 17.1.1979 had been issued by way of incentive of adding  the qualification during continuation of service for getting advantage  of acceleration in promotion; in the event the said gradation list dated  22.12.1992 is given effect to, the same would be violative of Articles  14 and 16 of the Constitution of India as thereby the incentive sought  to be given by reason of Resolution dated 17.1.1979 would become  nugatory.  Two letters patent appeals were filed by some respondents  against the said judgment which were marked as L.P.A. Nos.100 and 101 of  1994.  The State of Bihar, however, filed a special leave petition  before this Court but having regard to the fact that they had a remedy  by way of letters patent appeal, withdrew the same whereafter they filed  a letters patent appeal before the Division Bench which was marked as  L.P.A. No.158 of 1994.  The Division Bench by reason of a judgment and  order darted 23.5.1997 allowed the said appeals and writ petition which  was also filed in the meanwhile holding that the aforementioned  gradation list dated 22.12.1992 for promotion of Junior Engineers was  not in conflict with the Government Resolution dated 17.1.1979.  The  Division Bench in support of its aforementioned finding relied upon a  decision of this Court in N. Suresh Nathan and Another vs. Union of  India and Others [(1992) Supp. 1 SCC 584].  The High Court, therefore,  directed that inter se seniority of the concerned officers be determined  against the special quota of 3% in terms of the said circular letter  dated 22.12.1992.   

       The appellant in Civil Appeal Nos.62-65 of 1999 filed a special  leave petition, inter alia, on the ground that pursuant to or in  furtherance of the said judgment, 22 persons all of whom were junior to  the appellant, except Mr. Guru Saran Singh, had been promoted.   

        The appellant in  Civil Appeal No.66 of 1999 had filed a writ  petition on 12.12.1995 which was marked as C.W.J.C. No.11149 of 1995 on  the ground that he had been denied promotion to the post of Assistant  Engineer in terms of Resolution dated 17.1.1979.  During the pendency of  the writ petition as certain posts fell vacant in relation whereto he  filed representation which was not accepted as also on the ground that  the some persons junior to him had been promoted, he filed an  application for amendment of the writ petition. In the light of the  judgment in L.P.A. No.100 of 1994, the said Writ Petition No.11149 of  1995 was dismissed by an order dated 16.6.1997 stating :   

       "In view of the Division Bench judgment in  L.P.A. No.100 of 1994 and analogous cases, a  true copy of which has been annexed as Annexure  ’O’ to the show cause filed on behalf of the  Secretary-cum-Commissioner, Department of Road  Construction, Government of Bihar, Patna both  the writ applications are accordingly  dismissed."

       The appellant filed a letters patent appeal which was barred by  limitation of 36 days.  By an order dated 18.9.1997, the said letters

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

patent appeal was dismissed stating :                  

"Flag ’A’ is an application under Section  5 of the Limitation Act seeking condonation of  delay of 36 days in filing the appeal.

       It is contended that the appellant was  advised to prefer S.L.P. before the Apex Court  which had delayed the filing of the appeal.  On  being asked to show the order passed in the  S.L.P.  Learned Counsel said that no S.L.P. was  filed.  This being so no ground is made out for  condoning the delay in filing the appeal.  The  application at flag ’A’ is accordingly rejected.   Consequently, the appeal is dismissed being  barred by limitation."

       Mr. Vikas Singh, learned counsel appearing on behalf of the  appellants, inter alia, would submit that the basic qualification for  promotion to the post of Assistant Engineer being acquisition of a  degree in engineering or passing of an equivalent examination  together  with five years experience in the post of Junior Engineer, the inter se  seniority of the concerned officers should have been directed to be  determined on the basis of the gradation list in the post of the Junior  Engineer.  The learned counsel would urge that the purported direction  issued by the Water Resources Department in terms of order dated  22.12.1992 was illegal. Mr. Singh pointed out that the decision of this  Court in N. Suresh Nathan (supra) which has been relied upon by the  Division Bench has been distinguished and explained in subsequent  decisions by this Court in M.B. Joshi and Others etc. vs. Satish Kumar  Pandey and Others etc. [(1993) Supp. 2 SCC 419], Satpal Antil etc. vs.  Union of India and Others [(1995) 4 SCC 419] and D. Stephen Joseph vs.  Union of India and Others [(1997) 4 SCC 753].                Mr. B.B. Singh, learned counsel appearing on behalf of the State  of Bihar; and Mr. Akhilesh Kumar Pandey and Mr. Manan K. Mishra, learned  counsel appearing on behalf of the private respondents, however, would  submit that the date of eligibility should be determined on the basis of  the general principles with reference to the date of qualification.  It  was urged that eligibility of a candidate for promotion to the post of  Assistant Engineer was required to be determined on fulfillment of both  the conditions, namely, acquisition of a degree in engineering or  passing of an equivalent examination as also five years’ experience in  the post of Junior Engineer and, thus, the circular letter dated  22.12.1992 cannot be said to be illegal. It was further submitted that  the principles evolved by the Water Resources Department had been given  effect to and in terms thereof several persons having been promoted, the  settled position should not be unsettled.

ISSUE :

       The short question which arises for consideration before us is  that as to whether the purported qualification issued by the Water  Resources Department as contained in order dated 22.12.1992 is valid?  

THE POLICY DECISION :

The policy decision of the State as contained in the resolution of  the State Government dated 17.1.1979 is not in question. It is accepted  that the said resolution was adopted in the special situation that 20%  quota which was earlier reserved for graduate engineers was abolished,  as a result whereof they suffered immense prejudice.  Clause ’Cha’ of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

the said circular states that the promotion on the vacant posts of  Assistant Engineer under the quota mentioned in clause ’Ka’ i.e. 3%  would be made on the basis of seniority.  In absence of any statutory  provision or rules made thereunder or under the proviso appended to  Article 309 of the Constitution of India, it is trite, that once an  incumbent is appointed to a post according to rules his seniority has to  be counted from the date of his appointment.  

The aforementioned Resolution dated 17.1.1979 was introduced as a  special measure.  The promotion of the holders of the post of Junior  Engineers to the post of Assistant Engineer was not to be done on  selection basis.  No written examination was to be held nor any oral  interview was to be taken.  No criteria whatsoever was laid down for  selecting the candidates.  For the purpose of granting promotion to the  post of Assistant Engineer in the aforementioned category, only two  conditions which were required to be fulfilled on the relevant date are  : (a) the employee must be holder of a degree or must have passed an  equivalent examination; (b) he must have completed five years of service  in the post of Junior Engineer.  

A plain reading of the aforementioned resolution dated 17.1.1979  would clearly go to show that no further requirement was prescribed  therefor.  Clause ’Cha’ of the said resolution merely stated that with  regard to inter se seniority of these Junior Engineers, the decision be  taken after obtaining opinion from the Personnel Department.

       In the aforementioned premise, it was obligatory on the part of  the Personnel Department itself to take a firm decision laying down the  criteria for fixation of inter se seniority in absence of any statute or  rules having the force of law.  Admittedly, the Personnel Department did  not issue any such order.  The said resolution dated 17.1.1979 was an  executive order passed by the State of Bihar in terms of Article 162 of  the Constitution of India.  By reason of the said policy decision, the  Personnel Department alone was delegated with the power to lay down the  criteria for determining the inter se seniority. The Personnel  Department neither in fact delegated the said power to the Water  Resources Department nor in law could do the same.  The purported order  dated 22.12.1992 issued by the Water Resources Department was,  therefore, illegal having been rendered by an authority which had no  jurisdiction therefor.

       ’Delegatus Non Potest Delegare’ is a well-known maxim which means  in absence of any power a delegatee cannot sub- delegate its power to  another person. It is beyond any cavil that the Water Resources  Department did not have the requisite competence to issue the said order  dated 22.12.1992. If a guideline for determining the inter seniority was  to be laid down, the State could do so in terms of Article 162 of the  Constitution of India.  The said order dated 22.12.1992 also does not  satisfy the requirements of Article 162 of the Constitution of India.   This aspect of the matter unfortunately was not adverted to before the  High Court.

CASE LAWS :         In N. Suresh Nathan (supra) on the basis whereof the learned  Division Bench upheld the validity of the said order dated 22.12.1992 to  the effect that the inter se seniority be determined on the basis of the  date of acquisition of a degree in engineering and not on the basis of  service, the factual matrix was different.  Therein the dispute was as  to whether a diploma-holder Junior Engineer who had obtained a degree  while in service had become entitled for appointment as Assistant  Engineer by promotion on completion of three years’ service including  the period of service prior to obtaining of such degree or whether the  three years’ service as a degree-holder for the said purpose shall be  reckoned from the date of obtaining such degree.  The Central

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

Administrative Tribunal before which the application was filed held that  the diploma-holders were entitled to be considered for promotion to the  post of Assistant Engineer on par with the degree-holder Junior  Engineers having regard to the total length of service rendered in grade  of Junior Engineer irrespective of the fact that as to whether he had  acquired the necessary degree qualification earlier than the applicants.

       This Court in N. Suresh Nathan (supra) held :

"In our opinion this appeal has to be  allowed. There is sufficient material including  the admission of respondents diploma-holders  that the practice followed in the department for  a long time was that in the case of diploma- holder Junior Engineers who obtained the degree  during service, the period of three years’  service in the grade for eligibility for  promotion as degree-holders commenced from the  date of obtaining the degree and the earlier  period of service as diploma-holders was not  counted for this purpose. This earlier practice  was clearly admitted by the respondents diploma- holders in para 5 of their application made to  the Tribunal at page 115 of the paper book. This  also appears to be the view of the Union Public  Service Commission contained in their letter  dated December 6, 1968 extracted at pages 99-100  of the paper book in the counter-affidavit of  respondents 1 to 3. The real question,  therefore, is whether the construction made of  this provision in the rules on which the past  practice extending over a long period is based  is untenable to require upsetting it. If the  past practice is based on one of the possible  constructions which can be made of the rules  then upsetting the same now would not be  appropriate. It is in this perspective that the  question raised has to be determined."   

The scheme under the recruitment rules in said case were  different. The scheme obtaining therein postulated that the period of  three years’ service in the cadre required for degree-holders as a  qualification for promotion in the said category  would mean three  years’ service in the grade as a degree-holder.  In the instant case,  experience of five years upon acquisition of a degree in the engineering  is not a qualification laid down in terms of the aforementioned  Resolution dated 17.1.1979.

In that case, the practice followed by the State was, thus,  upheld.

In M.B. Joshi (supra), this Court distinguished N. Suresh Nathan  (supra). Therein, this Court was considering a case where promotions  from the post of Sub-Engineer to the post of Assistant Engineer were  inter alia required to be made from amongst the persons who were  graduate Sub-Engineers completing eight years of service.  In that case,  the State Government had applied the principle of counting the seniority  of graduate Sub-Engineers from the date of their continuous officiation  irrespective of the date on which such diploma-holder Sub-Engineers  acquired degree in engineering.  A contention similar to one raised  before us by the respondents was raised therein on behalf of the  respondent.  Rejecting the said contention, this Court  distinguishing  N. Suresh Nathan (supra), and upon taking into consideration, the fact

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

situation obtaining therein as also the findings rendered by this Court,  held : "11. A perusal of the above observations made  by this Court clearly show that the respondents  diploma-holders in that case has admitted the  practice followed in that department for a long  time and the case was mainly decided on the  basis of past practice followed in that  department for a long time. It was clearly laid  down in the above case that if the past practice  is based on one of the possible constructions  which can be made of the rules then upsetting  the same now would not be appropriate. It was  clearly said "it is in this perspective that the  question raised has to be determined". It was  also observed as already quoted above that the  Tribunal was not justified in taking the  contrary view and unsettling the settled  practice in the department. That apart the  scheme of the rules in N. Suresh Nathan case  (1992 Supp (1) SCC 584 : 1992 SCC (L&S) 451 :  (1992) 19 ATC 928) was entirely different from  the scheme of the Rules before us. The rule in  that case prescribed for appointment by  promotion of Section Officers/Junior Engineers  provided that 50 per cent quota shall be from  Section Officers possessing a recognised degree  in Civil Engineering or equivalent with three  years’ service in the grade failing which  Section Officers holding Diploma in Civil  Engineering with six years’ service in the  grade. The aforesaid rule itself provided in  explicit terms that Section Officers possessing  a recognised Degree in Civil Engineering was  made equivalent with three years’ service in the  grade. Thus, in the scheme of such rules the  period of three years’ service was rightly  counted from the date of obtaining such degree.  In the cases in hand before us, the scheme of  the rules is entirely different."

It was further observed : "...The Rules in our case do not contemplate  any equivalence of any period of service with  the qualification of acquiring degree of  graduation in engineering as was provided in  express terms in N. Suresh Nathan case (1922  Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992)  19 ATC 928) making three years service in the  grade equivalent to degree in engineering. In  our opinion, the Rules applicable in the cases  before us clearly provide that the diploma- holders having obtained a degree of engineering  while continuing in service as Sub-Engineers  shall be eligible for promotion to the post of  Assistant Engineer in 8 years of service and  quota of 10 per cent posts has been earmarked  for such category of persons."  

This aspect of the matter was also considered in Satpal Antil  (supra), holding :          "...Such rules for promotion do not contain any  provision for determining inter se seniority for  the purpose of giving promotion earlier or later

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

with reference to date of passing the qualifying  examination. In our view, Mr Goswami is  justified in his contention that in the absence  of any specific rule indicating inter se  seniority to be observed with reference to the  date of passing the qualifying examination and  promotion to be given on the basis of such inter  se seniority, general principle of length of  service as a basis for promotion amongst  eligible candidates with qualifying service  should be made applicable..."

Yet again in D. Stephen Joseph (supra), this Court following M.B.  Joshi (supra), observed : "It appears to us that the State Government is  labouring under a wrong impression as to the  applicability of the past practice as indicated  in Suresh Nathan case [1992 Supp (1) SCC 584 :  1992 SCC (L&S) 451 : (1992) 19 ATC 928]. This  Court in the said decision, has only indicated  that past practice should not be upset provided  such practice conforms to the rule for promotion  and consistently for some time past the rule has  been made applicable in a particular manner. In  our view, the decision in Nathan case [1992 Supp  (1) SCC 584 : 1992 SCC (L&S) 451 : (1992) 19 ATC  928] only indicates that past practice must be  referable to the applicability of the rule by  interpreting it in a particular manner  consistently for some time. Any past practice  dehors the rule cannot be taken into  consideration as past practice consistently  followed for long by interpreting the rule. It  may be indicated here that a similar question  also came up for consideration before this Court  in M. B. Joshi v. Satish Kumar Pandey [1993 Supp  (2) SCC 419 : 1993 SCC (L&S) 810 : (1993) 24 ATC  688]. The decision in Suresh Nathan case [1992  Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992)  19 ATC 928] was distinguished in the facts of  that case and it was indicated that when the  language of the rule is quite specific that if a  particular length of service in the feeder post  together with educational qualification enables  a candidate to be considered for promotion, it  will not be proper to count the experience only  from the date of acquisition of superior  educational qualification because such  interpretation will violate the very purpose to  give incentive to the employee to acquire higher  education."  

Mr. Pandey, the learned counsel appearing on behalf of the  respondents, however, relied upon Ashok Kumar   Sharma and Others vs. Chander Shekhar and Another [(1997) 4 SCC 18].  In  that case, this Court was considering a matter of direct recruitment.   The question which arose for consideration therein was as to whether in  the advertisement or notification issued/published calling for  applications constituted a representation to the public and the  authority issuing it is bound by such representation. Having regard to  the importance of adhering to the representation made to the public and  the binding nature thereof upon the authorities issuing the same, it was  held  that no action contrary thereto would be permissible, stating :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

"...One reason behind this proposition is that  if it were known that persons who obtained the  qualifications after the prescribed date but  before the date of interview would be allowed to  appear for the interview, other similarly placed  persons could also have applied. Just because  some of the persons had applied notwithstanding  that they had not acquired the prescribed  qualifications by the prescribed date, they  could not have been treated on a preferential  basis..."  

We are not concerned in this case as regard acquisition of a  qualification by a prescribed date.  No date for acquisition of the  qualification has been prescribed by reason of the aforementioned  resolution dated 17.1.1979.

It is further not a case where a practice had been followed for a  long time.  It is also not a case where the appellants herein had  allowed a seniority list to operate without protest and stood by the  same for a long time.  The seniority list dated 22.12.1992 was  questioned in the year 1993 in C.W.J.C. 2489 of 1993 and the litigations  are continuing since then.  From the very beginning, thus, the position  remained fluid and the position of the parties was not settled.  

GRADATION LIST : Submission of Mr. Pandey to the effect that the appellants had  filed objections after a final gradation list was published on  22.12.1992 cannot be accepted. If a gradation list was published by an  authority relying on or on the basis of criteria which was illegal, the  seniority list issued pursuant thereto or in furtherance thereof must  necessarily fall.  

FINDINGS :

The proposition of law, therefore, which emerges from the  aforementioned discussions is that in absence of any statutory rule  governing the field the criteria for promotion should be construed upon  applying the principle of literal meaning as also continuous officiation  in the lower post.

We are, therefore, of the view that the impugned judgment cannot  be sustained.

We, therefore, are of the opinion that the aforementioned order  dated 22.12.1992 passed by the Water Resources Department being illegal  and without jurisdiction, the impugned seniority list cannot be  sustained which is set aside accordingly.  We are further of the opinion  that having regard to the facts and circumstances of the case, the order  of the High Court dated 18.9.1997 passed by the High Court in L.P.A.  No.1018 of 1997 refusing to condone the delay must also be set aside.   We condone the delay and direct that the writ petitions filed by the  appellants herein should also be disposed of on the above terms.

For the reasons aforementioned, the appeals are allowed and the  judgments under appeals are set aside.  No costs.