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PETITIONER: A.P. MANCHANDA

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT14/10/1993

BENCH:

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.The  appellant was appointed as Engineer  Assistant  on January 19, 1967 by the Executive Engineer of the  concerned Division.  Subsequently, by an order dated February 17, 1968 he was appointed as Engineer Assistant by the Chief Engineer which  order was modified on November 28, 1969 to read  that the  period  of  his appointment from January  19,  1967  to February 16, 1968 shall be treated on work-charge basis  and his  appointment will be treated as from January  19,  1967. On  this basis, he claimed seniority over respondents 4  and 5. This claim of his was rejected by the High Court.   Hence this appeal. 2.We  do  not  see any merit in  this  appeal.   The  two respondents  over whom the appellant claimed seniority  were regularly   appointed   as  Engineer   Assistants   whereas, admittedly,  the appellant claims that he was  appointed  by the  Superintending  Engineer on the verbal  orders  of  the Chief  Engineer  on January 19, 1967.  The  High  Court  has stated that there is nothing on the record to show that  any such verbal order was given by the Chief Engineer.  Be  that as  it  may,  the fact remains that his  entry  was  not  in regular  course and by the subsequent order of February  17, 1968  his  entry  could not have  been  regularised  to  the detriment   of   the  two  respondents  who   were   regular appointees.  The High Court has, therefore, rightly observed that  no  such  retrospective appointment  could  have  been granted by the Chief Engineer affecting the rights of others and  in particular respondents 4 and 5,  regular  appointees who  were  already working as such on the post  of  Engineer Assistants.    The   view  taken  by  the  High   Court   is unassailable.  Hence the appeal fails and is dismissed  with no order as to costs.                            ORDER 1.The  appellants  were directly recruited  as  Assistant Engineers  (Mechanical)  in the  Public  Health  Engineering Department   of   the  State  of  Bihar.    The   contesting respondents   were   initially  appointed   as   Engineering Assistants  (Civil)  and on the basis of the 8.33  per  cent quota  fixed for them for promotion to the next higher  post of  Assistant  Engineers, they were  promoted  as  Assistant Engineers  (Mechanical) on different dates, but  were  given retrospective promotion w.e.f. August 22, 1970.  Respondents 4 and 6 were

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45 initially  promoted  on July 22, 1972 whereas  respondent  5 was  promoted  on June 26, 1976.  Respondents 4 and  6  were promoted retrospectively w.e.f. November 12, 1971 and  April 15,  1972  respectively whereas Respondent  5  was  promoted w.e.f. February 1, 1972.  By a further order dated  December 28,  1978 all the three respondents were  granted  promotion retrospectively  w.e.f.  August 22, 1970.  On the  basis  of this  retrospective promotion w.e.f. August 22,  1970,  they were  shown  as seniors to the appellants in  the  gradation list  prepared  by the State  Government.   The  appellants, therefore, challenged the gradation list essentially on  two grounds,  namely,  (1) that promotion could  not  have  been granted to respondents 4, 5 and 6 from a date prior to their having been borne on the cadre and (2) the seniority had  to be  determined  on  the basis of the relevant  rules  as  in existence  at  the material date which was  not  done.   The direct  recruits, therefore, challenged the  gradation  list but the High Court did not accept the challenge based on the aforesaid two grounds and dismissed the writ petitions.   It is  against  the said order of dismissal  that  the  present appeal is preferred. 2.The  learned  counsel for the  appellants  invited  our attention to the decision of this Court in State of Bihar v. Akhouri Sachindra Nath1.  The question in that case was more or  less  similar  to the question arising  in  the  present appeal.   In that case also the question was  regarding  the fixation  of inter se seniority between direct recruits  and promotees.   In  that case also the promotees  were  granted seniority  from  retrospective date.  That was the  bone  of contention  between  the parties.  This Court  held  in  the backdrop  of  those facts that no person could  be  promoted with retrospective effect from a date when he was not  borne on the cadre so as to adversely affect others.  It held that promotees  not  borne on the cadre at the time  when  direct recruits  came to be appointed cannot be given seniority  in service  over direct recruits.  The ratio of  that  decision applies squarely in the present appeal also.  In view of the same,  the  learned  counsel for the  State  also  found  it difficult to support the judgment of the High Court. 3.In  the result we allow this appeal and set  aside  the impugned  order  of the High Court and direct the  State  to refix  the  seniority in the light of the decision  of  this Court  referred  to  above.  There will be no  order  as  to costs. 46