http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: CHIEF ENGINEER AND SECRETARY, ENGINEERINGDEPARTMENT, FOR AND

       Vs.

RESPONDENT: K.S. BRAR & ANR. ETC.

DATE OF JUDGMENT01/09/1988

BENCH: KANIA, M.H. BENCH: KANIA, M.H. DUTT, M.M. (J)

CITATION:  1988 AIR 2106            1988 SCR  797  1988 SCC  Supl.  756     JT 1988 (3)   581  1988 SCALE  (2)766

ACT:     Punjab Service of Engineers Class II P. W.D.  (Buildings     & Roadways Branch) Rules, 1965, Rules 10 and 12--Appointment     of  officer by transfer--Assignment of seniority  in  public     interest--Whether   can      be  assigned  from  the   date   of     deputation which is prior to the date of absorption.     %         Rule  10  of the Punjab Service of Engineers  Class      II,     P.W.D. (Buildings and Roadways Branch) Rules, 1965  provides     that the Government may, in special circumstances, with      the     approval  of  the Commission, appoint an of,officer  to      the     service      by transfer. Sub-rule (5) of Rule 12 of  the  rules     lays down that any person appointed to a post in the service     as  an      Assistant  Engineer  by  transfer  can  be  assigned     seniority  as of a date earlier than the date of  absorption     provided this is done in the interest of the public  service     and  the  seniority  thus fixed shall in  no  case  be      more     favorable  than the seniority determined after allowing      him     credit for the period of service rendered by him in previous appointment as Assistant Engineer.

HELD:

   The  appellant,  in  Civil  Appeal  No.  3100  of   1988 (hereinafter  referred  to  as respondent No. 4  as  in  the Tribunal)  was  an Assistant Engineer in the  Punjab  Public Works   Department.  He  was  deputed  to  work   with   the Engineering  Department  of  Chandigarh  Administration   on October  7, 1972 and was absorbed in the said Department  on June  17,  1978,  at his request, However,  he  was  granted seniority  w.e.f.  October  7, 1972 being the  date  of  his joining  as  an  Assistant Engineer  on  deputation  in  the Chandigarh   Administration.     One K.S. Brar (hereinafter referred to as petitioner  as in the Tribunal) joined the Chandigarh Administration as  an Assistant  Engineer on June 24, 1976. He  challenged  before the Tribunal the seniority of respondent No. 4 on the ground that  the  order of absorption of respondent No.  4  in  the Chandigarh Administration and the order fixing his seniority were  not  in  public interest or in  the  interest  of  the                                                    PG NO 797                                                    PG NO 798 service.  The  Tribunal allowed the  petition  holding  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

respondent  No.  4  should be placed at the  bottom  of  the gradation  list  of  officers of his  category  and  granted seniority from the date he was absorbed in the cadre.  Hence these  appeals by special leave by respondent No. 4 and  the Chandigarh Administration respectively.     It  was contended on behalf of respondent No. 4(a)  that the  question  of  regularity or validity of  the  order  of absorption  was  irrelevant to the question of  fixation  of seniority;  and (b) that the Chandigarh  Administration  was entitled  to assign a seniority to respondent No. 4 from   a date  prior  to  the  date of  his  absorption  as  per  the provisions  of subrule (5) of Rule 12 of the Rules. It  was, on  the  other  hand, argued on  behalf  of  the  respondent (petitioner  before the Tribunal) that, as the  transfer  of respondent  No.  4  and  his  appointment  as  an  Assistant Engineer  in  the Chandigarh Administration was at  his  own request, he should be placed at the bottom of the  seniority list as on the date of absorption.            Allowing the appeals,     HELD:  (1)  For the question of  determining  seniority, what  one  has to see is not Rule 10 but Rule 12(5)  of  the said  Rules. The Tribunal completely failed to  notice  Rule 12(5)  and,  probably, it was because of this that  it  fell into the error of coming to the conclusion that it did. This appears  clear from the fact that there is no  reference  to Rule 12(5) at all in the judgment of the Tribunal.  [803C-D, 804B-C]     2(i)  The Notification dated 14.1.19X0 relating  to  the fixation of seniority of Respondent No. 4 expressly sets out that the order assigning a higher seniority to him has  been passed by the Chandigarh Administration taking into  account all the circumstances of the case and keeping in view public interest  and after considering the representations made  in connection  with  the  tentative seniority  list  which  was circulated earlier. By the said order seniority is  assigned to  Respondent  No. 4 with effect from  7.10.1972  which  is clearly  within the limits laid down in the proviso to  Rule 12(5) of the said Rules. [803D-E,G]     2(ii)  Respondent  No.  4  was  first  appointed  as  an Assistant Engineer through the Public Service Commission  in July 1968 whereas the petitioner was appointed to a  similar post as late as on June 24, 1976. Respondent No. 4 was  thus holding  the  post  of an Assistant Engineer  prior  to  the petitioner.  As  far as the qualifications  go,  it  appears prima facie that the qualifications of Respondent No. 4 are                                                    PG NO 799 better than those of the petitioner and certainly, not lower than those of the petitioner. No oblique motive for granting a  higher seniority to Respondent No. 4 is shown.  In  these circumstances,  it  is not possible to say  that  the  order assigning  seniority  to Respondent No. 4 as  aforesaid  has been passed merely under the guise of Public interest. [803- 804H, A-B]

JUDGMENT:

CIVIL  APPELLATE  JURISDICTION: Civil Appeal Nos.  3099  and 3100 of 1988.     From  the Judgment dated 17.9.87 passed by  the  Central Administrative  Tribunal,  Chandigarh Bench,  Chandigarh  in O.A. No. T-5/CH of 1987.     .Kapil  Sibbal,  G.L. Sanghi, Ms. Kamini  Jaiswal,  P.N. Puri, R.K. Chopra and Ravinder Chopra for the Petitioners V.C. Mahajan and S.C. Patel for the Respondents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

The Judgment of the Court was delivered by KANIA,  J. Special Leave granted in both the  petitions. The  Registry  is  directed to  register  and  number  these petitions as Civil Appeals.     These  Appeals are both directed against a  judgment  of the Central Administrative Tribunal, Chandigarh Bench, dated September 17, 1987. The Appeal arising out of Special  Leave Petition  No  15073  of  1987  has  been  preferred  by  the Chandigarh Administration, Chandigarh and the Appeal arising out  of  Special Leave Petition No 11877 of  1987  has  been preferred  at the instance of Puranjit Singh  Writ  petition No.  3287 of 1978 filed in the Punjab & Haryana  High  Court was  transferred to the said Tribunal and treated as T.A  No T-5/CH  of  1987 and it is the judgment of the  Tribunal  in this  petition  which is impugned before us. The  said  writ petition  was filed by K.S Brar who is Respondent No.  1  in Special Leave Petition No 15()73 of 1987 and Respondent  No. 4  in  Special  Leave Petition No. 11877  of  1987  Puranjit Singh, the petitioner in Special Leave Petition No 11877  of 1987  was  Respondent No. 4 in the said  writ  petition  and Chandigarh Administration and its officers were  Respondents Nos.  1  to 3 We propose to refer to the  parties  by  their description in the said writ petition.     Respondent No. 4 was appointed as an Assistant  Engineer in  the Punjab Public Works Department (Irrigation Wing)  on                                                    PG NO 800 July 15, 1968 on selection through the Punjab Public Service Commission. On October 7, 1972 Respondent No. 4 was  deputed to   work   with  the  Chandigarh  Administration   in   its Engineering Department as an Assistant Engineer. On June  24 1976 the petitioner joined the Chandigarh Administration  as an  Assistant Engineer as a direct recruit by his  selection through the Union Public Service Commission. Respondent  No. 4  made  an  application,  while  on  deputation  with   the Administration  of  the Union Territory of  Chandigarh,  for absorbing  him in the cadre of Sub-Divisional  Engineers  in the  Engineering Department at Chandigarh. His  request  was acceded  to by the Administration and by an order passed  by the  Home Secretary on June 17, 1978 he was absorbed in  the Engineering Department as a Sub- Divisional Engineer (B & R) in  the Chandigarh Administration, working on deputation  in the Housing Board, Chandigarh. The order absorbing him as  a Sub-Divisional  Engineer was incorporated in a  Notification dated  March  1,  1979, which was duly  Gazetted.  The  said Notification  sets  out that the Chief  Commissioner,  Union Territory, Chandigarh, in consulation with the Union  Public Service  Commission,  New  Delhi,  is  pleased  to   appoint Puranjit  Singh as Assistant Engineer (Civil), Class II,  in the  Engineering Department of Chandigarh Administration  on buildings  and  roads side, by transfer from  Punjab,  P.W.D Buildings and Roads Branch, and that his appointment will be subject to further provisions of P.W D Class II Rules,  1965 as   applicable  to  the  Engineering  Department   of   the Chandigarh  Administration.  There is no mention  of  public interest  or  interest  of the service in  this  order.  The consent  of the State of Punjab as well as the  approval  of the  Union  Public Service Commission with  regard  to  this appointment   of  Respondent  No  4  was  duly   taken.   On consideration, a tentative seniority list was circulated  on November 19, 1979 inviting objections and after hearing  the objections  Respondent  No.  4 was  granted  seniority  with effect  from October 7, 1972, being the date of his  joining as  an  Assistant  Engineer  on  deputation  in  the  P.W.D. Buildings and Roads Branch of the Chandigarh Administration. The   Notification  dated  14.1.1980  granting   him   final

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

seniority  sets out inter alia as follows:     "AND  WHEREAS the Chandigarh  Administration  considered all  the  circumstances of the case and keeping  the  public interest  in  view, fixed the tentative  seniority  of  Shri Puranjit Singh w.e.f. 7.10.1972, the date of his joining  as Assistant Engineer in P.W.D. Buildings & Roads Branch                                                    PG NO 801     Now,  therefore,  in pursuance of rule  12.5  of  Punjab Service of Engineers, Class II, P.W.D. (Buildings and  Roads Branch)  Rules,  1965, the  Chief  Commissioner,  Chandigarh Administration is pleased to order the fixation of seniority of   Shri  Puranjit  Singh  as  Assistant  Engineer   w.e.f. 7.10.1972 ........."     From this it is clear that Respondent No. 4 was  granted seniority  with effect from 7.10.1972 when he was  appointed on deputation as Assistant Engineer in P.W.D. (Buildings and Roads Branch) as stated earlier. The petitioner in the writ. petition   challenged  both  the  order  of  absorption   of Respondent  No. 4 in the Chandigarh Administration  and  the order  fixing his seniority on the ground that these  orders were  not  in  public interest or in  the  interest  of  the service. However, at the hearing before the Tribunal, at the very  outset,  learned Counsel for the  petitioner  made  it clear  that  he  was  not  challenging  the  absorption   of Respondent No. 4 but only the placement of the petitioner in the  seniority  list  and  the  assigning  of  seniority  to Respondent  No. 4 from the date he was taken on  deputation, namely,  7.10.1972.  The contention of  the  petitioner  was that,  since Respondent No. 4 was appointed by  transfer  to the  Chandigarh Administration at his own request, he  ought to  have been placed at the bottom of the seniority list  in the year of absorption and below the petitioner.  Curiously, although the challenge to the order absorbing Respondent No. 4 in the service of the Chandigarh Administration was  given up  by the petitioner, the Tribunal came to the  conclusion, on the basis of Rule lO of the Punjab Service of  Engineers, Class   II,  P.W.D.  (Buildings  and  Roads  Branch)   Rules (referred  to  hereinafter as "the said Rules’’).  that  the order   of   absorption  was  not  valid   as   no   special circumstances had been set out or shown justifying the  same and  hence,  there was a lacuna in the order.  The  Tribunal held  that, as a result of this Respondent No. 4  should  be placed  at the bottom of the gradation list of  officers  of his  category  and granted seniority from the  date  he  was absorbed  in  the  cadre, namely, February 9,  1979.  It  is against   this   decision   that   both,   the    Chandigarh Administration  and  Respondent No. 4, have come by  way  of these Appeals.     It  was  urged  by learned Counsel  for  the  Chandigarh Administration as well as learned Counsel for Respondent No. 4  that the question of regularity or validity of the  order of absorption was irrelevant to the question of fixation  of seniority.  It  was submitted by them that, in view  of  the challenge  to  the order of absorption of Respondent  No.  4 having been specifically given up by learned Counsel for the petitioner  before  the  Tribunal, it was not  open  to  the                                                    PG NO 802 Tribunal  to  consider  the  question  of  validity  of  the absorption  at all, and that as per the provisions  of  sub- rule  (5)  of  Rule  12 of the  said  Rules  the  Chandigarh Administration  was  entitled  to  assign  a  seniority   to Respondent  No.  4  from a date prior to  the  date  of  his absorption  in the interest of the public service and  after taking  into  account  all the  circumstances  of  the  case provided  that  Respondent  No.  4  could  not  be   granted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

seniority  more  favourably than  the  seniority  determined after allowing him credit for the period of service rendered by him in his previous appointment as Assistant Engineer. It was, on the other hand, contended by learned Counsel for the petitioner that, as the transfer of Respondent No. 4 and his appointment  as  an  Assistant Engineer  in  the  Chandigarh Administration  was at his own request, he should be  placed at  the  bottom  of the seniority list as  on  the  date  of absorption.     In order to appreciate these respective contentions,  it is necessary to set out the relevant provisions. Rule 10  of the  said  Rules provides for the appointment  in  Class  II service by transfer and reads as under:     "The  Government may in special circumstances  with  the approval  of  the  Commission, appoint  an  Officer  to  the service by transfer." Sub-Rule (5) of Rule 12 of the said Rules reads thus:     "  12(5)  in  the case of an  of  officer  appointed  by transfer  as an Assistant Engineer, while normally he  would be  placed junior to all the officers appointed directly  or by  promotion as Assistant Engineers in a  particular  year, the Government may in the interest of the public service and taking into consideration all the circumstances of the case, fix his seniority on ad hoc basis.     Provided that the seniority thus fixed shall in no case, be  more  favourably  than the  seniority  determined  after allowing  him credit for the period of service  rendered  by him  in previous appointment as Assistant Engineer or  on  a post  the duties of which in the opinion of  the  Government are of equivalent or greater responsibility The decision  of Government on this point shall be final "      As  far  as  the  appointment of  Respondent  No  4  as                                                    PG NO 803 Assistant  Engineer  in  the  chandigarh  Administration  is concerned,  we must proceed on the footing that it was  made at  his  own  request. Rule 10 of  the  said  Rules  clearly provided  that  such  an appointment can  be  made  only  in special  circumstances. In our view, where the request  made by  the officer concerned is based on circumstances  showing the request for transfer is justified, this might be  looked up  as a special circumstance. It was, however, pointed  out by  learned  Counsel for the petitioner that  the  order  of appointment  by  transfer  does not  refer  to  any  special circumstance and hence, the appointment of Respondent No.  4 in  the Chandigarh Administration by transfer is itself  not regular. However, we do not wish to go into the question  as to  whether such an appointment could be said to be  invalid or  irregular  merely because no special  circumstances  has been recited in the order because the challenge to the order appointing Respondent No 4 by transfer has been specifically given up by the petitioner in the Tribunal. In our view, for the  question of determining seniority, what one has to  see is  not Rule 10 but Rule 12(5) of the said Rules  which,  in terms,  provides that any person appointed to a post in  the service in question by transfer can be assigned seniority as of a date earlier than the date of absorption provided  this is   done  in  the  interest  of  the  public  service   The Notification  dated  14 1 1980 relating to the  fixation  of seniority  of  Respondent No 4 expressly sets out  that  the order assigning a higher seniority to him has been passed by the  Chandigarh Administration taking into account  all  the circumstances  of  the  case  and  keeping  in  view  public interest  and after considering the representations made  in connection  with  the  tentative seniority  list  which  was circulated  earlier  The said Notification, in  its  earlier

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

portion, recites that Respondent No 4 was appointed on  July 15, 1968 as an Assistant Engineer (Civil) in the Punjab  P.W D  (Irrigation  Branch)  and that he  was  appointed  as  an Assistant Engineer (Civil) in the Buildings and Roads Branch of Punjab P W D on October 7 1972 through the Public Service Commission  and  joined  on deputation  in  the  Engineering Department  of  the Chandigarh Administration  By  the  said order seniority is assigned to Respondent No. 4 with  effect from 7.10.1972 which is clearly within the limits laid  down in  the proviso to Rule 12(5) of the said Rules In  view  of this, the order granting him seniority as aforesaid  appears ex facie to be in order. It was urged by learned Counsel for the  petitioner  that,  although public  interest  has  been referred to in the said Notification, it is clear that  this consideration  was  not  in  the  mind  of  the   Chandigarh Administration at all but the appointment was made to favour Respondent  No  l We are afraid that there is  no  basis  on which such a submission can be founded. Respondent No. 4 was first appointed as an Assistant Engineer through the  Public                                                    PG NO 804 Service Commission in July 1968 whereas the  petitioner  was appointed  to  a similar post as late as on June  24,  1976. Respondent  No. 4 was thus holding the post of an  Assistant Engineer   prior   to  the  petitioner.  As   far   as   the qualifications   go,  it  appears  prima  facie   that   the qualifications of Respondent No. 4 are better than those  of the  petitioner and certainly, not lower than those  of  the petitioner.   No  oblique  motive  for  granting  a   higher seniority  to  Respondent  No. 4 is shown to  us.  In  these circumstances,  it  is not possible to say  that  the  order assigning  seniority  to Respondent No. 4 as  aforesaid  has been  passed merely under the guise of public  interest.  In our  view,  the Tribunal completely failed  to  notice  Rule 12(5)  of  the said Rules and, probably, it was  because  of this that it fell into the error of coming to the conclusion that it did. This appears clear from the fact that there  is no  reference  to Rule 12(5) at all in the judgment  of  the Tribunal.     In the result, the appeals are allowed, the judgment and order  passed by the Tribunal are set aside and validity  of the order dated 14 1.198() fixing seniority of Respondent No 4 is upheld.     Looking to the circumstances of the case, there will  be no order as to costs      M.L.A                         Appeals allowed .