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PETITIONER: SATPAL ANTIL ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT05/05/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) SAWANT, P.B.

CITATION:  1995 AIR 1858            1995 SCC  (4) 419  1995 SCALE  (3)554

ACT:

HEADNOTE:

JUDGMENT:                THE 5TH DAY OF MAY, 1995 Present:                Hon’ble Mr. Justice P.B. Sawant                Hon’ble Mr. Justice G.N. Ray Mr. Govind Mukhoty, Sr. Adv. Mr.B.S.Jain,Mrs.V.D.Khanna, Advs., with him for the Appellant in C.A.No. 5383/95 Mr. Randhir Jain and Ms. Binu Tamta, Advs. for the appellant in C.A.No. 5390/95 Mr. N.N.Goswami, Sr. Adv. Mr. Hemant Sharma and Ms. Anil Katiyar, Advs. with him for the Respondents.                J U D G M E N T The following Judgment of the Court was delivered:           IN THE SUPREME COURT OF INDIA           CIVIL APPELLATE JURISDICTION           CIVIL APPEAL NO. 5383 OF 1995           (Arising out of S.L.P. No.6350/93)           Satpal Antil                ..appellant           versus           Union of India and Anr.      ..respondents           WITH           CIVIL APPEAL NO. 5390 OF 1995           (Arising out of S.L.P.No.14234/94)           Jitendra kumar Gupta         ..appellant           versus           Union of India & Others      ..respondents                      J U D G M E N T G.N.RAY.J.      Leave granted.      Heard learned counsel for the parties. Both the appeals arise out  of a common judgment dated January 11,1993 passed by the  Central Administrative  Tribunal,  Jaipur  Bench  in O.A.No.152 of  1989 (Satpal  Antil Vs.  Union of  India  and another) and  in O.A.No.98 of 1989 (Jitendra Kumar Gupta Vs. Union of  India and  others). Both  these appeals  involving same cuestion  of law  and similar  facts  have  been  heard

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together and are disposed of by this common judgment.      The appellant, Satoal Antil, was initially appointed as Junior Engineer(Civil)  in the  Telecommunication Department Civil Division  on January  10, 1987.  For promotion  to the post of  Assistant  Engineer  (Civil),  a  Notification  was issued inviting  the persons  who are  already in service as Junior Engineer (Civil) in the Telecommunication Department, Civil Division  to  appear  in  the  qualifying  examination scheduled to  be held  on 16/17.3.1987.  Both the appellants Satpal Antil  and Jitendra  Kumar Gupta appeared in the said examination and  were declared  successful. It  appears that previously an  application was  filed before the Tribunal by the  appellants  inter  alia  contending  that  even  though qualified persons  like the  appellants were  available, the Department was  making ad  noc promotions  to  the  post  of Assistant Engineer without holding the DPC by the Department for regular  promotion. It appears that vide its Order dated November  4,  1988  in  O.A.No.  359  of  1987  the  Central Administrative Tribunal  directed the respondents to convene the DPC  for the  purpose of filling up the vacancies in the cadre of  Assistant Engineer(Civil)  out  of  the  promotion quota within  a period  of four  months from the date of the decision and co give the benefits to the eligible candidates by way  of promotion  in accordance with the recommendations of  DPC.  After  the  said  judgment  of  the  Tribunal  the Department  of  Telecommunications  issued  a  letter  dated November 21, 1988 duly signed so as to enable the Department to recast  the all  India eligibility  of Junior  Engineers. Pursuant to such letter, the Superintendent Engineer (Civil) sent the  seniority list  of Junior Engineers (Civil) of his circle vide  letter dated  January 5, 1989. The names of the appellants Satpal  Antil and  Jitendra Kumar  Gupta had been shown respectively  at Serial Nos.20 and 27 in the Seniority List. On  September 26, 1989, DPC considered the case of the eligible candidates. The appellants, however, contended that the  appellants  having  passed  qualifying  examination  in March, 1987,  should be treated as senior to the persons who had passed  the qualifying  examination at a later date. The appellants also  contended that  promotion to  the  post  of Assistant Engineer  should be  given in  accordance with the para 206  of the  P &  T  Manual  Vol.  IV.  The  appellants contended that  the eligibility  list on  all India basis of the persons who were qualified to be promoted to the post of Engineers should  be prepared  first  keeping  in  view  the provisions of  para 206  of P  & T  Manual and the judgments passed  by  the  Calcutta  and  Madras  Benches  of  Central Administrative Tribunal  should be  given effect  to in this regard. The  appellants also  contended that  they should be given promotion  to the  post of  Assistant Engineer (Civil) with effect  from the  date  on  which  the  appellants  had completed 8  years of  qualifying service  on  the  post  of Junior  Engineer   with  all   consequential  benefits.  The respondents, however,  contended before the Tribunal, Jaipur Bench, that the respondents had implemented the direction of the Jaipur  Bench passed in O.A.No.359 of 1987 and held DPC. It was also pointed out by the respondents that the Calcutta Bench of  the Central  Administrative Tribunal in O.A.No.599 of 1986  had observed  vide its order dated February 6, 1987 that  the  applicants  who  had  lost  two  years  in  which examination should  have been  held, should be given another chance to  appear in  the examination  to be  held within  a period of  six months after the publication of the result of the March,  1987 examination,  if any  of such applicant had failed in the examination in March, 1987. The Calcutta Bench further directed  that even  though the candidate who failed

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in two  examinations should  be allowed  to  appear  in  the qualifying examination  for the third time but in that case, the seniority  of the applicants who would pass in the third chance, would  not be  protected and their regularisation to the post  of Assistant  Engineer would  be from  the date of passing the examination.      The applicants  before  the  Calcutta  Bench  had  been officiating as  Assistant Engineers  and they had been asked to appear in the departmental examination for regularisation of their  service and the question of inter se seniority was not involved  in the proceeding before the Calcutta Bench of Central  Administrative   Tribunal.  The   respondents  also contended that  provisions of  para 206 of P & T Manual Vol. IV are applicable to the cadre of Telegraph, Engineering and wrieless Service  Class I  and the  said provisions  are not applicable to  the applicants  who do  not  belong  to  such service. It  was also contended by the respondents that even otherwise, under  the said  para 206. the candidates passing the qualifying examination in a year irrespective of chances in a  year would  be senior  to those  passing in subsequent years. The  respondents contended  that the  appellants were not entitled  to claim  seniority with reference to the date of passing  the examination  and accordingly not entitled to claim seniority  over the candidates who had also passed the examination in  the same year though in the second and third chances. The Tribunal, Jaipur Bench in disoosing of the said O.A.No.152 of  1989, O.A.No.  98 of  1989 inter alia came to the finding that from the plain reading of para 206 of P & T Manual Vol.  IV it  was quite  clear that  the said Rule was applicable  to   the  cadre  of  Telegraph  Engineering  and wireless Service  only. The  Tribunal pointed  out that  the heading in  para 206  ’Deputy Assistant  Engineers wireless’ points out  the  applicability  of  the  said  para  to  the wireless service.  The Tribunal  also noted that the learned counsel for the appellants also conceded before the Tribunal that the  said para  206 was  applicable for  the  cadre  of Telegraph Engineering  and Wireless  Service.  The  Tribunal further noted  that even  under para  206, the officials who passed the  examination held  in 1956  would  come  en-block senior to  those who  passed in  1957. The  said  para  206, therefore, only  provided that  the persons who qualified in the examination held in the earlier year would become senior to those  who passed  in the  subsequent year.  The Tribunal also noted  that the decision of the Allahabad High Court in P.N.Lal’s  case  was  not  produced.  The  Tribunal  further indicated that  so far as the judgment of the Calcutta Bench was concerned,  the question involved in the proceedings was that of  regularisation of  Junior Engineer  officiating  as Assistant Engineer and the said decision did not support the contention of the applicants.      The appellants  relied on  the decision  of the  Madras Bench of  Central Administrative Tribunal passed in O.A.No.5 of 1987  passed on  June 15, 1987 (S.Anantharaman and others vs. Union  of India and others) before the Jaipur Bench. The Tribunal indicated  that a bare perusal of the said judgment would show  that the case for consideration in that case was regularisation of  Junior Engineers  (Civil)  who  had  been working as  Assistant Engineer  (Civil) on ad hoc basis. The Madras Bench  decided that  the applicants  had to appear in the  departmental  qualifying  examination  as  a  condition precedent  for   regularisation  and   the  applicants  were entitled to  get. In addition to the chance to appear in the examination in  March, 1987, two more consecutive chances to appear in the qualifying examination.      In the  impugned judgment  of the  Jaipur Bench  of the

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Central Administrative  Tribunal, it has been indicated that although Madras  Bench had  directed  that  if  any  of  the applicant  had   qualified  in  the  first  attempt  in  the departmental examination held in 1987, such candidates would be regularised with effect from the date of their completion of 8  years of  service as Junior Engineer and this facility would not  be available to the applicants if they would pass the examination  to be  held in future. The said decision of the Madras  Bench  had  no  application  in  the  facts  and contentions raised  in the petitions filed by the appellants because the  appellants had  not been  officiating on ad hoc basis as  Assistant Engineer  (Civil). The Jaipur Bench also held in disposing of the said applications of the appellants that there was no force in the contentions of the appellants that they  should be  considered as  senior  to  the  Junior Engineers  who   had  also   qualified  in   the  subsequent qualifying examination  although held  in the same year. The Tribunal further held that the respondents were justified in preparing a  combined list  from out of those who had passed the qualifying  examination held  in 1987 and preparation of such combined  list had not violated any rule. The Tribunal, Jaipur Bench, therefore, dismissed the said application made by the appellants.      Mr. Mukhoty,  learned senior  counsel appearing for the appellants, had contended that the candidates who had become eligible for  promotion earlier  by passing  the  qualifying examination at an earlier point of time, would rank en-block senior and would be entitled to be promoted earlier than the candidates who  became eligible  for promotion on subsequent occasions. Mr.  Mukhoty has contended that para 206 of P & T Manual Vol.IV  and the  decision of  the Madras Bench of the Central Administrative  Tribunal in O.A.No.5 of 1987 decided on June  15, 1987  clearly support  the contentions  of  the appellants  and  the  learned  Tribunal,  Jaipur  Bench  had misappreciated the  case of  the appellants  and has wrongly decided their  case. Mr.Mukhoty  has contended  that in writ Petition No.2739  of 1981  filed by  Shri Parmanand  Lal and Shri Brij  Mohan, Junior  Engineers  Telephones  of  P  &  T Department, the  decision rendered  by  the  Allahabad  High Court also  supports the  contention of the appellants. Such decision of  the Allahabad  High Court was challenged before this Court and the said decision of the Allahabad High Court has been  upheld by the Supreme Court. It, therefore, cannot be contended  that para  206 P  &  T  Manual  would  not  be applicable and it is not correct to contend that even though the subsequent  examinations are  held  in  the  same  year, candidates passing  the said  examination at any time in the year will not be affected by any other candidate passing the said examination  earlier though  held  in  the  same  year. Mr.Mukhoty has  contended that  para 206 P & T Manual Vol.IV is applicable  to the  appellants because the appellants are Junior Engineers  (Civil) in the Engineering Branch of P & T Department. P  & T  Manual Vol.IV  is equally  applicable to officers of  all the  branches of  P &  T services.  He  has submitted that  if a reference is made to para 1 and Chapter 7 of  the said  Manual. It  will be  quite evident  that the manual was  applicable to all branches of post and Telegraph Services. Mr.Mukhoty  has contended  that although there are three sections,  para 206  under Chapter  7 is applicable to all the  engineering branches  equally. Mr.Mukhoty  has also contended  that   the  Recruitment  Rules,  1976  for  Civil Engineers (Gazetted officers) are silent as to how the inter se seniority  of qualified  candidates could be prepared for the purpose  of promotions.  In the case of Junior Engineers (Telephones) the  Recruitment Rules,  1976 and  the modified

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rules 1981  are also  silent  as  to  how  the  fixation  of seniority for the purpose of promotions should be made after passing the  qualifying examination. In these circumstances, Shri P.N.Lal  approched the  Allahabad High  Court by filing Write Petition  and  the  Allahabad  High  Court  held  that question of  seniority to  be determined  according  to  the provisions of  P & T Manual Vol.IV para 206 (2). Mr. Mukhoty has contended  that the  Recruitment Rules  of 1976 are also silent  about   the  maintenance   of  inter   se  seniority applicable to the cases of the appellants and the appellants are entitled  to clain  inter se  seniority according to the provisions of  para 206  of P  & T Manual Vol.IV. Mr.MUkhoty has contended that in the Notification inviting applications for appearing in the examination it was indicated that after passing  the   examination  the  Junior  Engineers  who  had completed 8  years of  service will  be promoted  on regular basis to  the Grade  of Assistant Engineer (Civil). Although the appellants  passed the said examination at earlier point of time,  the Junior  Engineers who were unsuccessful in the first chance  but had  passed such  examination in  third or fourth chance  were preferred  and given promotion simply on the basis  of their  length  of  service.  Mr.  Mukhoty  has contended that  such course is not only contrary to para 206 P & T Manual but also contrary to equity and justice because person qualifying  in the first chance of the examination is deprived of  the fruit  of his success and candidate failing in the  first chance  but qualifying  in the second or third attempt is  given premium  over the  successful candidate in the very first chance. Mr.Mukhoty has, therefore,  contended that the decision of the Jaipur Bench has occasioned a grave failure of  justice and the same should be set aside and the appeal should  be allowed  by directing  the authorities  to decide the  question of  promotion of  the Engineers  on the basis of their becoming eligible at earlier point of time by passing the  examination and  consequently being entitled to be considered  for promotion  before  the  other  candidates passing the said examination at a later point of time.      Mr.Goswami, learned  senior counsel  appearing for  the respondents, has,  however, contended  that para  206 P  & T Manual Vol.IV is not at all applicable to the appellants and the learned  counsel appearing for the appellants before the Tribunal,  Jaipur   Bench  fairly  conceded  that  the  said provisions were  not applicable  to the persons belonging to the P  & T  Engineering Division.  Mr.Goswami has  contended that such  concession was not given on a wrong understanding of the  position in law. He has contended that para 1 of the said Manual reads as follows:-      "the following  general rules apply equally to officers      of all  the different branches of the service unless it      is otherwise  expressly specified  as applicable  to  a      particular class  of Government  servants. The  Special      rules which  are applicable  to particular branches are      laid down in Chapter V to XVIII."      Mr.Goswami has contended that admittedly the appellants are governon  by different  set of  rules known  as post and Telegraph  Civil   Engineering  (Civil   Gazetted  Officers) Recruitment Rules 1976 which appear at pages 33 to 41 of the Paper Book  of the  Appeal preferred  by Shri  Satpal Antil. Para 205  of P  & T Manual which governs Assistant Engineers of Telecommunication  Branch has  no applicability so far as the appellants  are concerned. Mr.Goswami has contended that a strong  reliance has  been placed by the appellants on the decision of  the calcutta  and  Madras  Benches  of  Central Administrative Tribunal.  Mr.Goswami has  contended that the Madras Bench in its decision referred to the decision of the

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Calcutta Bench  and relied  on the  decision of the Calcutta Bench to the following effect:-      "1)  the   applicants  will   have  to  appear  in  the      departmental qualifying  examination for regularisation      in the post of Assistant Engineers.      ii) the  applicant are  at liberty  to  appear  in  the      examination to  be held  on March  16/17.3.87.  If  the      applicants pass  in the said examination proposed to be      held on  16/17.3.87, they  will be  deemed to have been      regularised as Assistant Engineers with effect from the      respective dates  of their  completion of  8  years  of      service as Junior Engineer.      iii) if  they fail  in the  examination to  be held  in      March, 1987,  the applicants  therein will be given one      more chance  to appear  in the  departmental qualifying      examination to  be held  within a period of six months,      after the publication of the results of the examination      held in March, 1987.      iv) in  consideration of  the fact  that the applicants      had already  worked for  8 years as Assistant Engineers      they should  be allowed  cc appear  in the departmental      qualifying examination  for the third time also in case      they fail in the two congecutive chances. But in such a      case, the  seniority of  the applicants who pass in the      third  chance   will  not   be  protected   and   their      regularisation in  the post of Assistant Engineers will      be  with   effect  from   the  date  of  passing  their      examination.      v) none of the applicants will be reverted before he is      given three  chances  to  appear  in  the  departmental      qualifying examination, as aforesaid."      Mr.Goswami has  contended that  it is apparent from the findings of  the Calcutta  Bench that  some of the Assistant Engineers had  continued on  ad hoc basis for about 7 years. In such  situation, the  Calcutta Bench  directed that  they should be  allowed three  more chances  for appearing in the qualifying test.  It was,  however, held  that in  case  the Junior Engineers would pass the qualifying test in first two chances their  seniority would  be preserved and they should be regularised from the date of qualifying service as Junior Engineers. Mr.Goswami  has contended  that since  concession was given  before the  Calcutta Bench  to allow  some of the Junior Engineers  to pass in three chances, it was held that in case  the candidate would pass a test in the third chance then his  seniority would  not be preserved. Such finding of the Calcutta  Bench does not indicate that para 206 of P & T Manual   Vol.IV    was   made    applicable.Mr.Goswami   has contendended that  even if it is assumed that oara 206 P & T Manual was  made applicable  such decision cannot be held to be proper  and the decision correctly rendered by the Jaipur Bench  since   impugned  in  these  appeals  should  not  be interfered with.  Mr.Goswami has  also  contended  that  the Rules regarding promotion in the 1976 rules is as under:-      "Promotion: Junior Engineers (Civil) who have qualified      in the  departmental examination  and have rendered not      less than  8  years  of  service  in  the  grade  after      appointment thereto on a regular basis."      There is  not provision  in the  said  rules  regarding determination  of   inter  as  seniority.  Accordingly,  the general rules  of  length  of  service  in  determining  the seniority must  be made applicable. Mr.Goswami has contended that it  is well  settled that  on the face of specific rule governing a  particular service,  reliance to any other rule should not  be made.  Admittedly, the  rules  governing  the appellants are 1976 rules and the provisions of dara 206 P &

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T Manual Vol.IV which governs the Deputy Assistant Engineers Wireless do  not apply  to  the  cases  of  the  appellants. Mr.Goswami has  also contended  that  the  decision  of  the Allahabad High  Court in  Parmanand Lal  Vs. Union  of India since relied on by the learned counsel for the appellants is also not  applicable in  the facts  and circumstances of the present appeals.  The  service  of  the  Parmanand  Lal  was governed either  by the  said rules  of 1976  or by  service rules of  1981 which will be quite evident from the decision of the  Allahabad High  Court. Mr.Goswami has submitted that in 1992,  the 1976  rules have  been amended  and as per the amended recruitment  rules, the  condition  of  passing  the departmental examination  to the  post of Assistant Engineer for promotion  has been  deleted. Hence,  for promotion from the promotion  quota of  50%, the  only condition prescribed now is  that a  Junior Engineer  should complete  8 years of service in  the grade.  He has, therefore, submitted that no interference is  called for  against  the  decision  of  the Central  Administrative   Tribunal,  Jaipur  Bench  and  the appeals should be dismissed.      After considering  the facts  and circumstances  of the case  and  the  submissions  made  by  the  learned  counsel appearing for the parties, It appears to us that there is no express provision  in 1976 rules which controls the inter se seniority between  the candidates  passing the  departmental examination in  the same  year  for  being  eligible  to  be promoted to  the post of Assistant Engineer (Civil). It also appears to  us that  para 206  of P & T Manual, in terms are not applicable  to the  cadre of  the service  to which  the appellants belong.  The appellants are governed by different set of  rules known  as Post and Telegraph Civil Engineering (Civil Gazetted  Officers) Recruitment  Rules. 1976 and para 206 of  P &  T Manual  governs the  service of the Assistant Engineers Wireless.  For promotion under the 1976 rules, the Junior  Engineers   (Civil)  who   have  qualified   in  the departmental examination and have not rendered not less than 8 years  of service  in  the  grade  will  be  eligible  for promotion. Such  rules for  promotion does  not contain  any provision for determining inter se seniority for the purpose of giving  promotion earlier or later 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. Para 1 of P & T Manual Vol.IV indicates that the general rules  will apply  equally to  Officers of  all  the branches  of   service  unless  it  is  otherwise  expressly specified to  a particular  branch of  service. The  special rules which  are applicable to particular branches have been laid down  in Chapter  5 to  Chapter 8. Since the appellants are  governed  by  the  special  rules  known  as  post  and Telegraph   Civil   Engineer   (Civil   Gazetted   Officers) Recruitment Rules,  1976, para  206 of  P &  T Manual is not applicable to  the appellants. That apart, para 206 of P & T Manual provides that persons who qualifiy in the examination in an  earlier year would become senior to those who pass in subsequent year. Para 206 does not provide for any seniority to be  given to  a candidate passing in the same year but at different point of time. Hence, even under para 206 of P & T Manual a  candidate though he has passed the qualifying test in the  same year  but at a later date availing of a further

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chance, cannot  be by  passed for  promotion by  a candidate passing the same qualifying examination in the same year but at an earlier point of time even though the former candidate is otherwise  senior in  the cadre on the basis of length of service. We,  therefore, find  no merit in these appeals and the appeals  are, therefore,  dismissed without any order as to costs.