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PETITIONER: D.N. AGRAWAL AND ANR.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH AND ORS.

DATE OF JUDGMENT23/03/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KULDIP SINGH (J)

CITATION:  1990 AIR 1311            1990 SCR  (2) 131  1990 SCC  (2) 553        JT 1990 (2)     9  1990 SCALE  (1)540  CITATOR INFO :  R          1992 SC1188  (7)

ACT:     Madhya  Pradesh  P.W.D.  (Gazetted)  recruitment  Rules, 1969: Rule 19(1)--Assistant Engineers--Appointment on ad hoc basis  for purely administrative exigencies right  to  claim seniority from date of initial appointment--Whether  promis- sible.

HEADNOTE:     The two appellants had joined as overseers in the P.W.D. of the respondent Madhya Pradesh State. Thereafter they were appointed  as Junior Engineers. The grievance of the  appel- lants  is with regard to their seniority in the next  promo- tional post viz, that of Assistant Engineer.     Recruitment Rules which govern the promotional post  lay down  that the Departmental promotion Committee is  required to  consider the names of all eligible candidates on  merits and  judge their suitability in all respects  on  merit-cum- seniority basis. The D.P.C. is also required to arrange  the names  of all the selected candidates in the order of  their merit. In the case of exceptionally meritorious junior he is given  a higher number in the selection list. This  list  is sent  to Public Service Commission for its  approval.  After approval the list becomes the select list and the promotions are  made from this list serial wise. Under the Rules to  be eligible  to  be  considered for promotion to  the  post  of Assistant Engineer a Junior Engineer has to have an  experi- ence of two years as Junior Engineer.     As the State Govt. wanted a certain number of  Assistant Engineers but enough number with requisite qualifying  serv- ice  were  not  available so taking resort to  the  Rule  of Administrative  Exigency  contained in the proviso  to  Rule 19(1) of the Rules the Govt. promoted some Junior  Engineers including both the appellants is Assistant Engineers on July 22, 1971 on purely ad hoc basis. On August 7, 1972  respond- ents  40  to  63 were appointed as  Assistant  Engineers  by direct recruitment and on November 22, 1972 respondents 2 to 39  and the appellants were selected as Assistant  Engineers by  the  D.P.C. On the same date the State Govt.  issued  an order of appointment of the appellants and respondents 2  to

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39 in which appellant No. 1 was shown at 132 serial  No.  14 and appellant No. 2 at serial  No.  28.  The State Govt. thereafter prepared a seniority list of  Assist- ant  Engineers  as per the order of November 22,  1972.  The appellants  challenged  the seniority list before  the  High Court by a Writ Petition. The High Court dismissed the  Writ Petition. Hence the present appeal. Dismissing the appeal, this Court,     HELD:  Under the Rules to be eligible to  be  considered for  promotion to the post of Assistant Engineer,  a  Junior Engineer  has to have an experience of two years  as  Junior Engineer.  [133G]     In the instant case, unless the D.P.C. makes the  selec- tion, none can be appointed as Assistant Engineer regularly. The appellants were ineligible to be appointed as  Assistant Engineers  initially. Their appointments were made  specifi- cally under the power given to the Government to make ad hoc appointments  for administrative exigency.  The  appointment orders made it clear that the appointments were in the  said Special  Circumstances and that they will not be  deemed  to determine seniority for any purpose whatsoever. [138C-D]     Once it is held that the appellants were appointed on ad hoc basis, what comes into play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc  appoint- ments for purely administrative exigencies. [139D]     Baleshwar  Dass  &  Ors. v. State of U.P.  &  Ors  etc., [1981]  1 S.C.R. 449 and G.P. Doval & Ors. v.  Chief  Secre- tary,  Government of U.P. & Ors., [1984] 4 S.C.C.  329,  re- ferred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  931  of 1986.     From  the  Judgment  and Order dated  3.10.1985  of  the Madhya  Pradesh High Court in Civil Misc. W.P. No. 15 10  of 1981.     P.N.  Lekhi, M.K. Garg, Aman Lekhi and Lokesh Kumar  for the appellants.     R.B.  Datar,  Sakesh Kumar, Uma Nath  Singh,  Satish  K. Agnihotri and Ashok Singh for the respondents. The Judgment of the Court was delivered by 133     SAWANT,  J. The two appellants in this case  had  joined the  service in the Public Works Department of the  respond- ent-Madhya Pradesh State, as Overseers. They were thereafter appointed  as  Junior Engineers by  direct  recruitment--the first appellant on August 29, 1969 and the second  appellant on  September 12, 1969. Although the High Court in  its  im- pugned judgment has stated that they were promoted as Junior Engineers from the posts of Overseers, it appears that  that statement  is not correct since their orders of  appointment to  the post of Junior Engineer which are Annexures P-1  and P-2  to the writ petition filed in the High Court show  that their  appointments as Junior Engineers were not by  way  of promotion. This, however, makes no difference to the  issues involved  in the present appeal. We have stated it  to  keep the record straight. The grievance of the appellants is with regard  to  their seniority in the  next  promotional  post, viz., that of Assistant Engineer.     2.  The Recruitment Rules which govern the  said  promo- tional  post are known as Madhya Pradesh  P.W.D.  (Gazetted) Recruitment  Rules,  1969 (hereinafter referred  to  as  the

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’Rules’). According to these Rules, Junior Engineers,  Over- seers,  Head  Draftsmen  and Draftsmen are  eligible  to  be considered  for promotion to the post of Assistant  Engineer on  their securing the requisite experience. Each  of  these categories further has a fixed quota of its own. The Depart- mental  Promotion Committee, D.P.C. to be short, whose  con- stitution is also prescribed in these Rules, is required  to consider the names of all the eligible candidates on merits, and  judge their suitability in all respects  on  merit-cum- seniority basis. The D.P.C. is also required to arrange  the names of all the selected candidates ordinarily in the order of their seniority unless a junior is exceptionally  merito- rious in which case, of course, he is given a higher  number in  the selection list. This list is then sent  through  the State  Government to the Public Service Commission  for  its consideration  and  approval. The list as  approved  by  the Commission then becomes the select list, and promotions  are made from this list in the same order as is arranged in  the list.     However,  in  case of an  administrative  exigency,  the State  Government is given power to appoint anyone  not  in- cluded in the said list if the vacancy is not likely to last for more than three months. Under the Rules, to be  eligible to  be  considered for promotion to the  post  of  Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer. 3. It appears that the State Government wanted a certain 134 number  of Assistant Engineers, but enough number of  Junior Engineers with requisite qualifying service were not  avail- able  at the relevant time. Admittedly the  appellants  were two of such unqualified Junior Engineers since they had  not completed  their  two  years’ qualified  service  as  Junior Engineers at the relevant time. Hence, taking resort to  the Rule of Administrative Exigency contained in the proviso  to Rule  19(1) of the said Rules, the Government promoted  some Junior Engineers including both the appellants as  Assistant Engineers  on July 22, 1971 on purely ad hoc basis.  In  the order  appointing  then, it was stated  as  follows:  "Since adequate number of Junior Engineers with requisite  qualify- ing  service are not available for appointment as  Assistant Engineers,  and  but for these promotions  large  number  of Assistant  Engineers’  posts would remain  vacant  adversely affecting  the  construction  work   ....................... These appointments will not be deemed to determine seniority as Assistant Engineer for any purpose whatsoever."     4.  It  is not disputed that on July 22, 1971  when  the appellants  were so appointed as Assistant Engineers  on  ad hoc basis, appellant no. 1 was short of’two years’  qualify- ing service period by one month and appellant No. 2, by  two months.  They  became qualified on August 22,  1971  and  on September 11, 1971 respectively.     5. It appears that while the appellants continued to act as  Assistant Engineers on ad hoc basis, on August 7,  1972. respondents  40 to 63 were appointed as Assistant  Engineers by  direct  recruitment. Thereafter, on  November  22,  1972 respondents  2  to 39 and the appellants  were  selected  as Assistant  Engineers  by the D.P.C. On the  same  date,  the State  Government  issued  an order of  appointment  of  the appellants and respondents 2 to 39 in which appellant no.  1 was shown at Serial No. 14 and appellant no. 2 at Serial No. 28.  The  State Government thereafter prepared  a  seniority list of Assistant Engineers which reflected the seniority of appellants as having been appointed on and from November 22, 1972  and  as  per the ranking given in the  said  order  of

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November  22, 1972. The appellants challenged the  seniority list  before the High Court by a writ petition. Although  it appears  the  appellants had also joined  to  the  petition, those Junior Engineers who were promoted as Assistant  Engi- neers along with the appellants by the same order and  whose seniority  in the list had reflected their placement in  the order  of  appointment, the challenge to  the  seniority  of those  Junior  Engineers  was given up at the  time  of  the arguments before the High Court, and it was confined to  the seniority of respondents 2 to 39 who were Overseers and were selected by the D.P.C. 135 from  their own quota as Assistant Engineers along with  the appellants, and to the seniority of respondents 40 to 63 who were appointed by direct recruitment on August 7, 1972.       The first challenge common to the seniority of all the respondents  2  to 63 was based on the contention  that  the appellants’ ad hoc service as Assistant Engineers from  July 22, 1971, when they were promoted on ad hoc basis, to Novem- ber,  22, 1972, on which date they were selected as  regular appointees, was not taken into account. The second challenge was  confined to the seniority given to respondents 2 to  39 by giving them a weightage of their experience as Overseers. The  High Court negatived both the challenges and  dismissed the writ petition. Hence the present appeal.     7.  The same contentions which were advanced before  the High Court was advanced before us. We will, therefore, first examine the grievance that the ad hoc service of the  appel- lants  was  not counted for the purpose of  the  appellants’ seniority.  A  heavy  reliance is placed on  behalf  of  the appellants on the decision of this Court reported in Balesh- war Dass & Ors. etc. v. State of U.P. & Ors. etc., [1981]  1 S.C.R. 449 in support of the contention that ad hoc officia- tion is entitled to be counted for the purpose of seniority. The ratio of the said decision however is not applicable  to the present case. In that case there was no dispute that the temporary appointees to the posts, who were claiming benefit of their temporary appointment or officiation were qualified to  be appointed to the posts when they were  initially  ap- pointed.,  All the procedural formalities of their  appoint- ments  were also followed, namely, they had completed  their probationary period, the Public Service Commission had given its  approval and they had also been medically examined  and found it. No rule was breached in making their  appointment. The  vacancies to which they were appointed were  also  sub- stantive vacancies. Their appointments, however, had contin- ued  for  a number of years although there was  no  obstacle whatsoever in making them regular or permanent. All that had remained  to be done was the issuance of a format  order  of regularisation  of  the appointment  which  for  unexplained reasons,  the Govt. had failed to do for a number of  years. The Court therefore observed that "a post of short duration, say  of  a few months, is different from  another  which  is terminologically  temporary  but is kept on for 10  or  more years  under  the head "temporary" for  budgetary  or  other technical  reasons. Those who are appointed and hold  tempo- rary  posts of the latter category are also members  of  the service  provided they have been appointed substantively  to that temporary post". A 136 little  later, the Court made further observations  in  this connection, as follows:           "Government will ascertain from this angle whether the  capacity in which posts have been held was  substantive or  temporary. If it is not, the further point to notice  is

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as to whether the appointments are regular and not in viola- tion  of any rule, whether the Public  Service  Commission’s approval  has been obtained and whether  probation,  medical fitness  etc.,  are  complete. Once  these  formalities  are complete,  the incumbents can be taken as holding  posts  in substantive  capacities and the entire  officiating  service can be considered for seniority. For other purposes they may remain temporary  ...............           The  normal  rule consistent with equity  is  that officiating service, even before confirmation in service has relevancy  to seniority if eventually no infirmities in  the way  of confirmation exist. We see nothing in the scheme  of the  Rules contrary to that principle. Therefore, the  point from which service has to be counted is the commencement  of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes,  have been regularised and are fit to be  absorbed into permanent posts as and when they are vacant. ’ ’ (Emphasis supplied) It  will thus be seen that in that case the appointments  to the substantive vacancies were made according to rules after complying with the procedure for regular appointment.  There was  no requirement of the Recruitment Rules which was  left to be complied with. In our case unless the D.P.C. makes the selection,  none  can  be appointed  as  Assistant  Engineer regularly.     Similar were the facts in the case of G.P. Doral &  Ors. v.  Chief  Secretary, Government of U. P. & Ors.,  [1984]  4 S.C.C.  329  in that case the petitioners  were  temporarily appointed  as Khandsari Inspectors having been  selected  in the  departmental  competitive  test  and  interview.  Their appointments  were  however "subject to final  selection  by Public  Service  Commission at a later date".  Some  of  the respondents 137 were  also appointed to the same posts subsequently  in  the same manner. The names of these recruits were later forward- ed  to  the  Public Service Commission  which  accorded  its approval  to  their appointments. The Department drew  up  a provisional  seniority list on the basis of the  recommenda- tions  of  the  said  Commission  by  taking  the  date   of approval/selection  by  the Commission in  respect  of  each candidate as the basis for determining the length of contin- uous officiation. The Department supported its action on the ground that it had prepared the list by reckoning  seniority from the date of their "substantive appointments" in accord- ance  with  an earlier Government Order of 1940  which  pre- scribed certain guidelines or model rules for framing  rules governing  conditions of service. The model set out  in  the order  suggested two independent principles for  determining seniority,  namely, (i) the date of substantive  appointment and (ii) the date of the order of first appointment, if such appointment  is followed by confirmation. In  the  seniority list,  the  petitioners were placed  below  the  respondents though  they were initially appointed prior to the  respond- ents. This Court quashed the seniority list holding that the question as to from what date the service is to be  reckoned will  depend upon the facts and circumstances of each  case. It was observed there that:          "Where  officiating  appointment  is  followed   by confirmation,  unless a contrary rule is shown, the  service rendered  as officiating appointment cannot be  ignored  for reckoning  length of continuous officiation for  determining the place in the seniority list. If the first appointment is

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made by not following the prescribed procedure but later  on the  appointee is approved making his  appointment  regular, then in the absence of the contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend  for appointment,  will  relate back to the date on  which  first appointment  is made  ..................  If a  stopgap  ap- pointment  is  made  and the appointee  appears  before  the Public Service Commission when the latter proceeds to select the  candidates and is selected, there is  no  justification for  ignoring  his past service. At any rate,  there  is  no justification  for two persons selected in the  same  manner being differently treated." (emphasis ours) The  Court also found there that the earlier order  of  1940 had not prescribed any binding rule of seniority and  assum- ing that it did, the 138 seniority  list did not conform to the model. The model  set out in the Government Order prescribed two different  start- ing  points for reckoning seniority and it was difficult  to assume  that  the department adopted one  and  rejected  the other without making a specific rule in that behalf.     It will thus be clear that the Court was dealing with an altogether different situation in both the aforesaid  cases. There  was  no dispute in those cases that  except  for  the terminology  and nomenclature there was no  distinction  be- tween  a  temporary and permanent appointment and  all  that remained to be done in those cases was the formalisation  of the  appointments. That is not the situation in the  present case.  The  appellants were ineligible to  be  appointed  as Assistant Engineers initially. Their appointments were  made specifically under the power given to the Government to make ad  hoc  appointments for administrative exigency.  The  ap- pointment orders made it clear that the appointments were in the  said  special circumstances and that they will  not  be deemed  to determine seniority for any  purpose  whatsoever. There  is further no dispute that no appointments  could  be made  as Assistant Engineers except by way of either  direct recruitment through the Public Service Commission or  promo- tion  through  the selection made by the D.P.C. as  per  the quota  assigned  to different categories. The  first  D.P.C. which met for selection, after the appellants became  quali- fied for being promoted, was held on October 12, 1972. It is in this meeting that the appellants were selected along with the other qualified promotees, namely, respondents 2 to  39. The D.P.C. further had the power also to arrange the senior- ity of the promotees according to merits. For all  purposes, therefore,  the  appointment of the appellants on  July  22, 1971   was  ad  hoc  and  not  according  to  rules.   Their selection/appointment on November 22, 1972 by the D.P.C  was further  not a mere formality or a process  undertaken  only for  formalisation  of  their earlier  appointment.  In  the circumstances, their appointment on November 22, 1972  could not  relate  back to July 22, 1971 and hence they  were  not entitled  to claim their officiation between July  22,  1971 and November 22, 1972 for being counted for the purposes  of their seniority for placing them either above respondents 40 to  63,  who were directly recruited on August  7,  1972  or above  respondents 2 to 39, who were promoted by the  D.P.C. along  with them, on November 22, 1972, and who happened  to be senior to them even as Junior Engineers.     8.  The other leg of the aforesaid contention  was  that the  appellants were appointed under Rule 7(4) of  the  said Rules and not under

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139 the  proviso to Rule 19 of the Rules inasmuch as  under  the latter  provision,  their appointments could not  have  been made.  The argument was that the latter provision  permitted appointments  for an administrative exigency only in  vacan- cies  which did not last for more than three  months.  Since the  appellants continued in the post for more than  a  year before they were selected on November 22, 1972, it should be held  that  their  appointment was under Rule  7(4)  of  the Rules.  As has been pointed out by the High Court,  the  re- course  to Rule 7(4) is unwarranted because  that  provision deals  with the method of recruitment and permits the  State Government  to  adopt any method other than  those  provided there.One of the methods permitted by that provision  admit- tedly is promotion, and since the appellants were admittedly promoted, though they were not qualified on that date, their case would not be covered by the third method of recruitment which is other than the one prescribed there. Therefore, the argument  that  they should be considered to have  been  re- cruited to the post of Assistant Engineer by a method  other than  that expressly provided by the said Rule 7(4) is  only to be stated to be rejected. Once it is held that they  were promoted  on  ad hoc basis, what comes in the  play  is  the proviso to Rule 19(1) which permitted the Government to make such  ad hoc appointments for purely administrative  exigen- cies.     It  was  then contended that since the proviso  to  Rule 19(1) permitted appointments in vacancies which were to last for more than three months, it should be held that after the appellants became eligible during the first three months  of their appointment, their further continuation was on regular basis.  This  argument has also no substance in it,  for  as pointed  out earlier, for being selected for appointment  as Assistant  Engineers, the appellants had to face the  D.P.C. and the Government had no power to make regular appointments to  the said post unless the D.P.C. had selected the  candi- dates for the posts. Secondly, the proviso to Rule 19(1) has to  be read liberally. The said provision has to  be  inter- preted  to mean that the appointments under the said  provi- sion can be made for three months at a time. Thus there  was nothing  to prevent the State Government from  renewing  the appointment of the appellants every three months.     9. The second contention is directed against the senior- ity  of respondents 2 to 39 and proceeds on the ground  that the weightage given to them is illegal. This contention must also fail for the following reasons. Admittedly the Rules of Recruitment prescribe appointments to the post of  Assistant Engineer from two sources, namely, (i) by direct recruitment and (ii) by promotion in the proportion of 50--50. 140 The  promotional posts are further required to be filled  in from three different cadres in the following proportion: ’(i) 25% from Junior Engineers (ii) 20% from Overseers (iii) 5% from Head Draftsmen/Draftsmen. Under  the Madhya Pradesh P.W.D. (non-gazetted)  Recruitment Rules  of 1972 (hereinafter referred to as 1972 Rules),  the Overseers  who acquire an Engineering degree or qualify  for A.M.I.E. become eligible for promotion to the post of Junior Engineers  as soon as the vacancy arises. The inter se  sen- iority between the Overseers and the Junior Engineers in the cadre of Junior Engineers is to be fixed in accordance  with Rule  14(3)  of the said Rules by giving  weightage  of  two months  for  every year of their service to  the  Overseers. When  the D.P.C. met on October 12, 1972 and considered  the

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cases  both of the appellants and the respondents, the  Com- mittee  had submitted the names of the  selected  candidates cadre-wise, i.e.. separately of Junior Engineers, Overseers, Head-Draftsmen/Draftsmen. The General Administration Depart- ment thereafter considered the matter. Under the Rules,  the Overseers  were required to obtain an Engineering degree  or qualify for A.M.I.E. and were also required to serve for  12 years  as Overseers to become eligible for being  considered for appointment as Assistant Engineers. As against this, the Junior  Engineers who were degree holders were  required  to serve  only for two years to become eligible for being  con- sidered to the said post. Taking these aspects into  consid- eration  their inter se seniority, namely, the interse  sen- iority of the appellants and the Overseers promotee  respon- deets was fixed by the Government according to the following formula which was in vogue for a number of years: (a) In the cadre of Junior Engineers, Overseers so  promoted were  given weightage as per Rules of 1972, and  promotional dates for seniority in the cadre were fixed accordingly. (b) In the cadre of Assistant Engineers, the date of reckon- ing  of  seniority was the one on which Junior  Engineer  or Overseer  or Head-Draftsman/Draftsman completed the  respec- tive span of service for eligibility. Hence, when seniority was fixed as per the impugned seniori- ty list of 141 the cadre of Assistant Engineers, when admittedly the  Rules of 1972 were in vogue, it was fixed according to the  afore- said formula. There is no dispute that according to the said formula,  which can hardly be faulted, respondents 2  to  39 who  were senior as Junior Engineers, were entitled to  sen- iority  over the appellants. It may further be  pointed  out that the Rules of 1972 were not challenged either before the High Court or before us. All that was challenged before  the High  Court  was that these Rules were restricted  in  their application  only  to  the promotions made to  the  post  of Junior  Engineers and were not applicable to the  promotions made to the post of Assistant Engineers. On the face of  it, such a challenge is meaningless because Rule 14 of the  said Rules  is  clearly meant for the promotions to the  post  of Assistant  Engineers. Otherwise the seniority given  to  the Overseers etc. in the seniority list of Junior Engineers  on the basis of the their service as Overseers, is meaningless. For all these reasons, we find no substance in this  conten- tion either.     10.  We,  therefore, confirm the decision  of  the  High Court  and  dismiss the appeal. There will, however,  be  no order as to costs. R. N.J.                                    Appeal dismissed. 142