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PETITIONER: SH. I.K. SUKHIJA & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       08/07/1997

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati. J.      The point  involved in  these 4  appeals being the same they were  heard together  are   disposed of  by this common judgment.      The appellants  (in all eleven) started their career as Junior Engineers  in the Central Public Works Department. On formation at  P&T (Civil  Wing) on 1.7.1963 the construction and maintenance  work of  P&T buildings  was taken over from C.P.W.D. The  services of  the Junior  Engineers (Elect.) of C.P.W.D. who  are earlier  looking after the building of P&T were transferred  to the  P&T (Civil  Wing). Initially, they were treated  on deputation without any deputation allowance but in  1969 they  were absorbed  in the  P&T Department and were also designated as Section Officers. They were promoted as Assistant  Engineers (Elect.),  on ad  hoc basis  between 1970 to  1977. All  of them  were appointed  as A.Es. (E) on regular basis  with effect  from 20.3.1978.  At that time it was directed  that their names shall be arranged in order of their seniority  in the  grade of Assistant Engineers. Their seniority  vis-a-vis   direct  recruits   was  to  be  fixed subsequently.      A provisional seniority list of Assistant Engineers was prepared in  1986 and  finalised in  1987. It was challenged before  the  Bombay  Bench  of  the  Central  Administrative Tribunal in O.A. No. 373 of 1987. The Tribunal quashed it in so far as it determined seniority between direct recruit and promotee Assistant Engineers. The department was directed to prepare a fresh seniority list in accordance with O.M. dated 22.12.59 of the Ministry of Home Affairs and the observation made in  its judgment.  Accordingly a revised seniority list was prepared  and notified   on  22.5.92. The  new seniority list was  prepared by  following the  principle of quota and rota prescribed  by the  said O.M.  dated  22.12.59  as  the Tribunal had  held that  quota rota  system had  not  broken down.  In  the  new  seniority  list  the  date  of  regular appointment of the appellants was shown as 20.3.78,      The  appellants   were  not   satisfied  with  the  new seniority list;  and therefore, they challenge it before the Principle Bench  of the  Central Administrative  Tribunal at

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New Delhi.  The appellants  sought a  direction to determine their  seniority   by  taking   into   consideration   their uninterrupted and  continuous ad  hoc service.  They  wanted this relief  even if  there was break down of the quota rota rule. They  had also prayed for other consequential reliefs. The contention of the appellants was that there was no break down of  the quota  rota  rule,  that  they  were  appointed against regular  vacancies on  their  being  found  fit  and suitable by  Department Promotion  Committee and  that their appointments  were   made  in   accordance  with  the  rules prevailing then.      The  Tribunal,  after  taking  into  consideration  the reason for  making ad hoc appointments of the appellants and the procedure  followed for the purpose, the orders of their appointment, proceedings  of the  meeting of  the D.P.C.  in February-March  1978   pursuant   to   which   the   regular appointments were made and conduct of the appellants in that they had  offered them  selves for  the test held for making regular  promotion,   came  to   the  conclusion   that  the appointments of the appellants were not only ad hoc but also by way  of stop  gap arrangement  in order  to meet with the exigencies of  service due  to heavy constructional activity undertaken by  the P&T (Civil Win) at the relevant time. The Tribunal also  held that the decision of the Bombay Bench of the Tribunal in O.A. No. 373 of 1987 having become final and conclusive it  had to proceed on the basis that there was no break down of the quota and rota rule. On these premises the Tribunal further  held that  the case  of the  appellant  is governed by  proposition ‘A’  laid down  in  Direct  Recruit Class II  Engineering Officers’  Association  vs.  State  of Maharashtra 1990  (2) SCC  715 and,  therefore, they are not entitled to  the benefit  of continuous  officiation for the purpose of  considering their  seniority. The  Tribunal also examined the  case  of  the  appellants  with  reference  to proposition ‘B’  laid down  in that  case. As  the period of service rendered  by the  appellants  as  ad  hoc  Assistant Engineers varied  from 1  to 8  years only it  held that the period cannot  be regard  as  sufficiently  hong  so  as  to entitle them to count it for the purpose of their seniority, particularly when  between 1975  and January  1978 they  had prevented the  department from  holding the test for regular selection under  the 1975 Rules. The Tribunal also held that the appellants  were not  entitled to such benefit either on the basis  of the decision in Keshav Chandra Joshi vs. Union of India  1992 Supp.  (1) SCC  272 or  on the  basis of  the decision in  State of West Bengal vs. Aghore Nath JT 1993(2) 598.  The   Tribunal  dismissed   the  O.As.  filed  by  the appellants and  upheld the  seniority list  prepared by  the department. Hence these appeals.      Before we  consider the rival submission, certain facts which are not in dispute may be stated. On 1.7.63 P&T (Civil Wing)  was  formed  by  taking  over  the  construction  and maintenance work  of P&T  buildings from C.P.W.D. Some J.Es. (E) of  C.P.W.D. who  were handling  the said work were also transferred to  the P&T  (Civil Wing).  Initially, they were treated as  on deputation  without any  deputation allowance but in  1969 they  were absorbed  in the P&T Department. Fro 1964 onwards  the P&T  Department had  also started  its own recruitment to  the grades of J.Es. (E) and A.Es.(E). Though there were  recruitment rules for the post of J.E. (E) there was  no  provision  for  absorption  of  J.Es.,  brought  on transfer in  that cadre. There were no recruitment rules for the posts  of Assistant Engineer (E). For the first time  in 1969 Draft  Recruitment Rules  for Communication  Electrical Engineering  Service   Class  II  were  framed  by  the  P&T

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Department. The  post of  Assistant Engineer (E) was a Class II post  in Communication  Electrical Engineering   Service. These draft  rules were  not prepared  in  exercise  of  any statutory power.  They provided  filling up  of  the  vacant posts in  the grade  of Assistant  Engineers Class II in the ratio of  50:50 i.e.  50% by  direct recruitment  and 50% by promotion. Promotion  were to  be  given  on  the  basis  of recommendations made by the Departmental Promotion Committee by selecting  the  candidates  on  merits.  The  eligibility criteria  was   five  years  approved  service  in  case  of graduates and  8 years  approved service  in  case  of  non- graduates. It  could be  relaxed upto three years in case of graduates and  six years  in case  of non-graduates. Rules 5 also gave  power to the Government to relax any provision to such extent  as was  found necessary  to ensure satisfactory working or  to remove  inequitable result.  Even though  the draft rules  were framed in 1969 they could not be finalised till 1975.  No regular  appointments of  Assistant Engineers were made  between 1970 and 1975 because the rules could not be finalised. In 1975 rules called ‘The Posts and Telegraphs Civil Engineering (Electrical Gazetted Officers) Rules 1975’ were framed  under Article  309. Even  thereafter no regular promotion were made till 1978 as the departmental qualifying examination which  was a  pre-requisite for  promotion could not be  held  till  that  year.  Thus  all  the  promotions, including those  of the appellants, were made only on ad hoc basis.      What has  been submitted on behalf of the appellants is that though  in the  letters of  their appointments as A.Es. (E) it  was stated   that their appointments were ‘on purely ad hoc  basis’ that  was not  by way of stop-gap arrangement made  for   the  purpose   of  meeting   with  some   urgent administrative exigencies.  They were eligible for promotion and their  merits were  duly considered  by the  D.P.C. When they were  promoted as  A.Es. (E)  regular vacancies  in the promotion quota  were available.  Therefore, the only reason why they  were not  regularly promoted  and their promotions were described  as ad  hoc was  the delay on the part of the Department in finalising the draft recruitment rules.      On the  other hand  it was  contended on  behalf of the respondents that the ad hoc promotion of the appellants were made as the construction activity has increased considerably and pending finalisation of the recruitment rules they could not have  been regularly  promoted. They  has also not under gone the  required process  of  selection  in  view  of  the criteria of merit. Though they had undergone some process of selection at  the hands  of the D.P.c. That was only for the purpose for  promotion them on ad hoc basis. Therefore, they cannot claim  the benefit  of their  ad hoc service as A.Es. for the  purpose of  determining  their  seniority  in  that grade.      The department  could not produce any record, as it was not available,  to show  what was  the position between 1964 and 1969 regarding recruitment to the cadre of A.E. (E), how the appellants were absorbed in the cadre of J.Es. and under what circumstance  they came to be promoted on ad hoc basis. The only material which throws some light and which has been brought on  record of  these cases  is (1) two letters dated 1.6.70 and  8.10.71 regarding filing up of some vacancies of Assistant  Engineers(E)  by  promotion  (2)  minute  of  the meeting of  the D.P.C  held in  February-March 1978  and (3) letter  dated  22.8.1977  written  by  the  U.P.S.C  to  the Government.      In the  letter dated  1.6.70 it  is stated  that  "some vacancies of  the Assistant Engineers (Elec.) in the Posts &

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Telegraphs Civil  Wing are to be filled by promotion and the Department Promotion  Committee  will  be  held  shortly  to select suitale officials for promotion. The crucial date for relaxing service  requirement for  his Department  Promotion Committee would  be First  July, 1970.  It  is  proposed  to consider the officials under the relaxed service requirement i.e.  three  years  for  graduates  and  6  years  for  non- graduates." After  stating so he directed the Superintending Engineer to  furnish particulars of all Section Officers who were eligible  for consideration.  This letter  refer to the draft recruitment  rules made  for Communication  Electrical Engineering  Service   Class  II.   It  also  refer  to  the eligibility criteria  contained in the said rules. A similar letter was  written, except  the  relaxation  part,  by  the Assistant Director General on 8.10.71l to the Superintending Engineers of  New Delhi,  Bombay and  Calcutta.  Both  these letters make  it clear  that though  the  draft  recruitment rules has  not been  finalised the  promotions in  1970  and thereafter were made in accordance with the said rules.      The appellant  in their application before the Tribunal and asserted  that the  D.P.C. had  made  the  selection  on regular basis.  However, there  is nothing on record to show in which  manner the  selection was  made by  it. It appears that the  D.P.C. has  followed some  process of selection to find out their comparative merit because some persons senior to the  appellants thought  considered were  not recommended for promotion  and the merit list was not prepared according to the seniority of the candidates selected. It is, however, significant to  note that  the draft  rules of  1969 did not contain any  provision prescribing  how selection  was to be made by  the D.P.C.  They did not contain any requirement of passing  an   examination   like   departmental   qualifying examination.  The  Post  and  Telegraph  (Civil  Engineering Electrical Gazetted  Officers) Recruitment Rules, 1975 which came into  force on  5.4.75 prescribed  for the  first  time passing  of  the  department  qualifying  examination  as  a condition for  promotion to the grade of A.E. (E). There was no rule  which permitted and prescribed procedure for making of ad  hoc appointments.  Even otherwise  also there  was no separate  procedure   prescribed  for  making  such  ad  hoc appointments of appellants were described as ad hoc was that the draft  recruitment were described as ad hoc was that the draft recruitment  rules were pending consideration and were not finalised.      It was  contended by the respondents and the finding of the Tribunal  is also  that the appellants has not undergone any regular  selection process  as they  had not  passed the required qualifying examination. As stated earlier there was no  requirement   of  passing   a  departmental   qualifying examination for  promotion as  A.E. (E)  till the year 1975. Only thing  stated in  the draft  rules was that the post of A.E. was  a selection  post. This aspect has been completely missed by  the Tribunal.  Therefore it  wrongly came  to the conclusion that the appellants had not undergone the regular selection process  and for  that reason  their  appointments were made  on temporary  and ad hoc basis by way of stop-gap arrangement only.  Really, the  appellants were  promoted on those terms  because the draft rules has not been finalised. It is  not relevant for this case to consider whether it was rightly believed  that pending  consideration of  the  Draft Rules no regular recruitment could be made. The fact remains that carrying  that impression  the  Department  thought  it proper to  promote the  appellants only  on temporary and ad hoc basis.      The next  relevant  document  is  the  minutes  of  the

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meeting of  the D.P.C. held in February-March, 1978 recorded in connection  with considering  the ad  hoc  promotees  for regular  promotion.   It  refers   to  the  taking  over  of construction work  from the  C.P.W.D. and  formation of  P&T (Civil Wing). It further records that as the Rules could not be finalised  till 1975 and as heavy constructional activity was undertaken by P&T department some J.Es. were promoted to the grade  of A.E.s on ad hoc basis. As the rules came to be finalised a  question of  making regular  promotion to  that grade arose  and it  was for  that reason that it had met on that day  for considering  the cases of eligible candidates. The  minutes   further  records   that  according   to   the Recruitment Rules  which came  to be  finalised in 1975, the eligibility criteria  was certain  number of  years  service plus passing  of the departmental qualifying examination. It is also  recorded therein  that in respect of those who were already promoted  as A.E.s on ad hoc basis it was decided in consultation with  the D.O.P.  and  U.P.S.C  that  one  time relaxation should  be made  in favour  of those  promote and instead of  taking a  written test they should be subject to only oral  test. The D.P.C. considered the C.Rs. of eligible persons, number of vacancies in each year in promotion quota and recommended who should be promoted on regular basis from which year.  On  important  thing  that  emerges  form  this minutes is  that between  1970 and 1975 there were regular 8 vacancies. From the other material on record it appears that in between  1970 and 1978 direct appointment on the basis of competitive examination  held by U.P.S.C. were also made. It was possibly for that reason held by the Bombay Bench of the Central Administrative  Tribunal that the quota rule had not broken down.  The department  in its  counter affidavit  has also maintained  that the  quota rules  had not broken down, that it  was strictly  followed and that number of vacancies falling under  the direct  recruitment quota  were regularly intimated to the U.P.S.C. and appointments were made. It has not been denied that regular vacancies were available in the promotion quota  during those  year. Thus the finding of the Tribunal that  there is  nothing on  record to show if there existed  regular   vacancies  when   the  promotion  of  the appellants were  made is  clearly erroneous.  The minutes do not support the case of the respondents that appointments of appellants as  A.Es. were  made ad  hoc because they had not undergone regular process of selection.      In the  letter dated 22.8.77 written by U.P.S.C. to the Government it  is stated  that prior  to 1975 no recruitment rules existed  for the  post of  Assistant Engineers  in P&T (Civil Engineering  Wing). It  further points  out that 1975 Rules did  not apply  to persons  appointed before they came into force.  It further  refers to  its earlier letter dated 3.3.76 wherein  the Ministry  was advised  to  consider  the question of  regular absorption  of existing  incumbents  of various posts  in consultation  with the Commission. It then pointed  out  that  the  1975  Rules  did  not  contain  any provision for  absorption of Junior Engineers who were taken over on  transfer from  the C.P.W.D. The said rules also did not  contain  any  provision  for  regularisation  of  those incumbent who  were holding  the posts  on ad  hoc basis. It was, therefore, suggested to amend the rules and provide for absorption  of   the  then   existing  employees   in  their respective grades.  It appears  from the  order dated 7.1.78 passed  by  the  P&T  Department  (Civil  Wing)  that  after considering the  question of regularisation of the cadres of A.E. (Civil/Elect)  it was decided that "in view of the need to regularise the cadre of A.E. (Civil/Elect) expeditiously, the Department  qualifying examination  provided for  in the

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Recruitment Rules for the grade of A.E. (Civil/Elect) may be held orally  this time  only." What is to be noted from this letter and  the  order  dated  8.1.78  is  that  though  the appellants and similarly situated J.Es. were absorbed by the P&T Department  (Civil Wing)  in its  service their  regular absorption in  the cadre of J.Es (E) had not taken place and it was  for that  reason that they were required to pass the examination contemplated by the 1975 Rules. This aspect also has  been   missed  by   the  Tribunal  and,  therefore,  it erroneously held  that the  conduct  of  the  appellants  in offering themselves  for the  test held  for making  regular promotions indicated  that they had not earlier gone through the required  process of selection and for that reason their appointments were ad hoc.      What emerges  from the  above discussion  is  that  the promotion of  the appellants  as A.Es. (E) were not contrary to any  statutory recruitment  rules. Even  if we proceed on the basis  that in  absence of  statutory  rules  the  draft recruitment rules  of 1969  were applicable, what we find is that the  appellants were  eligible for  promotion and their cases were  duly considered by the D.P.C. They were promoted after they  were found  suitable by  the  D.P.C.  and  their promotions were  made according  to their  placement in  the merit list  and not  according to  their seniority. When the appellants were  promoted, though  on ad  hoc  basis,  clear vacancies were  available in  the promotion  quota. the only reason for making their appointments as temporary and ad hoc was that  the draft recruitment rules could not be finalised till 1975.  The was  no unusual  spurt in  the  construction activity between  1970 and 1977 which necessitated giving of urgent temporary  promotions.  For  all  the  reason  stated above, it is not possible to accept that the appointments of the appellants  as A.Es.,  though temporary and ad hoc, were by way of stop-gap arrangements only.      The Tribunal  was, therefore, wrong in holding that the case of  the appellants was governed by the corollary to the rule stated  by this  Court as  Proposition  ‘A’  in  Direct Recruits case  (supra).  The  appellants  are  in  a  better position than  the situation contemplated by Proposition ‘B’ in that  case. If the appointees contemplated by Proposition ‘B’ are  held entitled  to the  benefit  of  the  period  of officiating service  we see  no reason  why  the  appellants should not  be held  entitled to such a benefit. The learned counsel for the respondents had relied upon the decisions of this Court  in A.P.M. Mayakutty vs. Secretary Public Service Department 1977 (2) SCR 937, D.N. Agawal vs. State of Madhya Pradesh 1990 (2) SCR 131 and Masood Akhtar Khan vs. State of Madhya Pradesh  1990 (4) SCC 24 but they have no application to the  facts of  these cases. In the first two cases it was found by this Court that the appointments were ad hoc and by way of stop-gap or emergency arrangement and, therefore, the appointees were not entitled to the benefit of the period of their ad  hoc service  for the  purpose  of  counting  their seniority. In  Masood Akhtar Khan’s case (supra) it was held that the  appointment were  not made  in accordance with the recruitment rules.      We, therefore,  allow  these  appeals,  set  aside  the judgment of  the Tribunal  and hold  that the appellants are entitled to  get their seniority counted from the dates they were initially  promoted as  A.Es. (E). In view of the facts and circumstances  of the case there shall be no order as to costs.