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PETITIONER: M .B. HIREGOUDAR

       Vs.

RESPONDENT: STATE OF KARNATAKA AND ORS.

DATE OF JUDGMENT29/10/1991

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) PUNCHHI, M.M.

CITATION:  1992 AIR  410            1991 SCR  Supl. (1) 599  1992 SCC  Supl.  (2) 491 JT 1991 (4)   329  1991 SCALE  (2)951

ACT:     Karnataka  Civil  Services  (Classification,  Control  & Appeal) Rules, 1957: Rules 5 and 7- Schedule II- Column 2.     Junior Engineers---Assistant  Engineers--Inter--seniori- ty--Selection  of  Junior Engineer by State  Public  Service Commission in the absence of Recruitment  Rules--Appointment by  Director  Recruitment Rules framed  subsequently--Period from  the date of appointment to framing of  rules  reckoned for  the purposes of seniority--Appointment of Junior  Engi- neers by Director held valid.     Karnataka State Government’s Memorandum dated 5th  July, 1976--Guidelines  for regularisation of  irregular  appoint- ments--Applicability of.

HEADNOTE:     The  appellant, a Rigman in the Department of Mines  and Geology,  State of Karnataka, was initially appointed  as  a local candidate on the newly created post of Junior Engineer (Mechanical).  Later he was regularly selected by the  State Public Service Commission and appointed on the said post  on 4.5.1970 by the Director and was confirmed on the said  post on 29.9.1972. On 16.12.1974, he, alongwith respondents No. 3 to  7, who were drillers in the Department was  promoted  as Assistant  Drilling Engineer and was shown senior  to  them. However,  in the revised provisional seniority list as  well as  in  the  final seniority list, he was  shown  junior  to respondents  No. 3 to 7 in the cadre of  Assistant  Drilling Engineer.       The  appellant filed an application before  the  State Administrative  Tribunal  challenging  the  seniority  lists which  was rejected holding (i) the appellant’s  appointment as Junior Engineer was irregular because it was not support- ed  by  Recruitment Rules and the Director was not  the  ap- pointing  authority;  (ii) since the appellant had  not  ac- quired  three years experience as regular incumbent  he  was not   qualified  to  be  promoted  as   Assistant   Drilling Engineer;, his regular employment could only be related from the  date of framing of the Recruitment Rules.  Accordingly, the  Tribunal  held that appellant’s service from  4th  May, 1970 to 23rd August, 1973 could not be taken into considera- tion for reckoning his seniority and  hence he was junior to

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Respondents No3 to 7. 599 600        The appellant filed an appeal in this Court challeng- ing the Tribunal’s order contending that (i) in view of  his recruitment as a regular employe on selection by the Service Commission  his employment was regular in nature;  (ii)  the post  to which he was appointed was regularly  created  post and  was  higher than that of respondents  even  during  the period  there existed recruitment rules; in any  case  after his confirmation it was not open to the Tribunal to hold his appointment irregular;, and (iii) in view of the  guidelines issued  by the State Government, under which  irregular  ap- pointments  were  regularised,  even if it  is  assumed  his initial  appointment  was  irregular it has  to  be  treated regular throughout.       Allowing the appeal and setting aside the order of the Tribunal this Court:     HELD  :1.  Rule  7(2) of the  Karnataka  Civil  Services (Classification,  Control & Appeal ) Rules, 1957  read  with column  2  of  Schedule 11 thereto clearly  shows  that  the Director  is the appointing authority for Junior  Engineers. The  appellant was found qualified and was duly selected  by the Public Service Commission and appointed as Junior  Engi- neer in 1970. He worked on the post uninterruptedly till  he was  promoted to the next higher post of Assistant  Drilling Engineer alongwith the respondents No. 3 to 7. The  Tribunal was,  therefore, not right in holding that  the  appointment made  was  irregular and that the Director was not  the  ap- pointing  authority  for Junior Engineers.  Accordingly  his experience in the post of Junior Engineer from 1970 till his promotion  to  the next higher post could  not  be  ignored. [605-F, 604-G, 607-H, 608-A]     2.  Since  the posts existed on  the  establishment  and selection  for  appointment  was made by  the  State  Public Service  Commission and the Director was competent  to  make the  appointment,  it  cannot be said that  the  absence  of recruitment rules made the appointment illegal or irregular. Moreover, the irregular appointments were regularised by the Government Memorandum dated 5th July, 1976. [606 B-C]     3. The appellant’s seniority which had stabilised over a period  of  time  and on the basis whereof  he  was  granted promotions  by  the  Government could not  be  disturbed  by doubting the regularity of the initial appointment after  so many years. It was not as if he had gained experience as  an ad  hoc employee in a stop-gap arrangement that his  experi- ence  as a Junior Engineer could be  overlooked.  Therefore, his 601 seniority  in the promotion post could not be upset  on  the ground  that  he did not possess the  requisite  experience. [607 B-C]      Direct  Recruit Class H Engineering Officers’  Associa- tion  v. State of Maharashtra & Ors. [1990] 2 SCC 715,  fol- lowed.     4. The appellant’s seniority over respondents No. 3 to 7 shall  be  restored and he shall be shown to  be  senior  to them. [608-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.4375 OF 1991.     From the Judgment and Order dated 3.9.1990 of the Karna-

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taka  Administrative Tribunal, Bangalore in Application  No. 2564 of 1989.     M.K.  Ramamurthy, S. Ravindra, K.V. Mohan and S.R.  Bhat for the Appellant.     Raju  Ramachandran,  M.  Veerappa and  Kh.  Nobin  Singh (N.P.) for the Respondents. The Judgment of the Court was delivered AHMADI, J. Special leave granted.     The controversy which we are required to resolve in this appeal by special leave is regarding the appellant’s senior- ity vis-a-vis respondents Nos.3 to 7. The factual background which has given rise to this controversy, briefly stated, is as under:     In  the year 1966 posts of Junior Engineer  (Mechanical) were created in the Department of Mines and Geology  (Ground Water Surveys and Drilling Unit) of the State of  Karnataka. The appellant who was then working as a Rigman in the Drill- ing  Unit  of the Department was appointed  Junior  Engineer (Mechanical)  in  the scale of Rs. 200 - 375 on one  of  the said posts by an order dated 14th August, 1967 issued by the Director  of the department. Subsequently, he was  regularly recruited through the State Public Service Commission in the said  post  w.e.f. 4th May, 1970. However, even  though  the Director  had  requested the State Government to  frame  Re- cruitment Rules for the newly created post immediately after its creation, the Recruitment Rules were not finalised  till the issuance of a Notification dated 26th June, 1973. Before the  appellant  was regularly recruited  through  the  State Public Service Commission in the year 1970 the Director  had apprised the Government of the action which he proposed to 602 take  to fill up the post. The appointment order was  issued after the Public Service Commission had advertised the  post and had selected persons for appointment to the said  posts. The  appellant was initially appointed on probation for  one year  and  on his satisfactorily  completing  the  probation period  he was continued in service and was later  confirmed in  the said post by an order dated 13th June,  1974  w.e.f. 29th September, 1972.     Respondents  Nos. 3 to 7 entered service as Drillers  in 1964-65. The appellant and the respondents Nos. 3 to 7  were promoted  as Assistant Drilling Engineers by the  Director’s order   dated   16th  December,  1974.  The   Office   Order No.676/74-75  shows that the appellant and one another  were working  as  Junior Engineers at the relevant  time  whereas respondents  Nos.  3 to 7 were working  as  Drillers  before their promotions as Assistant Drilling Engineers. The  State Government  did  not  approve of the  Director’s  action  in promoting  the appellant since he was a local candidate  and directed  that  he be reverted. However, no  such  reversion took  place.  The  State Government also did  not  take  any further  action. The appellant was shown senior to  respond- ents  Nos.  3 to 7 in the said cadre of  Assistant  Drilling Engineers.  The appellant was subsequently promoted  by  the State  Government to the next higher post of Drilling  Engi- neer in 1980 and further as Chief Drilling Engineer in  1984 which  post  he was holding at the date when  his  seniority came  to  be disturbed. The appellant was  throughout  shown senior  to respondents Nos. 3 to 7 till the  revised  provi- sional  seniority list in regard to the cadre  of  Assistant Drilling  Engineers  was published on 31st  December,  1987. Since objections were invited the appellant objected to  his being  shown  junior  to respondents Nos.3 to 7  but  to  no avail. Even in the final seniority list dated 4th May,  1989 he was shown junior to respondents Nos. 3 to 7.  Respondents

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Nos.3  to  7 were shown in both the  provisional  and  final seniority  list at Serial Nos.1 to 5 whereas  the  appellant was  shown at Serial No.6.  Thus, for the first time,  since his  regular  appointment  in the year 1970,  he  was  shown junior  to  respondents Nos. 3 to 7  under  the  provisional seniority  list issued in 1987 and the final seniority  sen- iority list issued in 1989. The appellant, therefore,  chal- lenged  the provisional seniority list as well as the  final seniority list by an Application No. 2564 of 1989  preferred to  the Karnataka Administrative Tribunal. The  Tribunal  by its order dated 3rd September, 1990 rejected his application holding  that  his initial entry into service  as  a  Junior Engineer was itself irregular and since he did not have  the requisite  experience of three years as a regular  incumbent he was not qualified to be promoted to the next higher  post of  Assistant Drilling Engineer because his regular  employ- ment  could only be related from the date of framing of  the Recruitment Rules for the adre which came to be notified  on 23rd August, 1973. In this view of 603 the matter, the Tribunal held that the service of the appel- lant  from 4th May, 1970 to 23rd August, 1973 could  not  be taken into consideration for the purpose of determining  his inter-se  seniority vis-a-vis respondents Nos. 3 to  7.  The appellant feeling aggrieved by the dismissal of his applica- tion,  has  approached this Court under Article 136  of  the Constitution.     The  appellant contends that the order of  the  Tribunal suffers  from  a number of fallacies, namely,  firstly,  the Tribunal  has failed to realise that the appellant  was  re- cruited  as  a regular employee on selection  by  the  State Public  Service  Commission  pursuant  to  an  advertisement issued  in this behalf and, therefore, the  appellant’s  em- ployment was regular in nature and not that of a mere  local candidate; secondly, the post to which he was appointed  was a  regularly  created  post and was a higher  than  that  of respondents Nos. 3 to 7 even during the period there existed no recruitment rules and in any case after his  confirmation w.e.f. 29th September, 1972 it was not open to the  Tribunal to hold that his appointment was irregular and thirdly,  the Tribunal  had erred in overlooking the guideline  issued  by the  state Government on 5th July, 1976  which  specifically provided  that ’all appointments made by the  Government  or under  specific  authority of Government  either  by  direct recruitment  or  by promotion or on or after  1st  November, 1956  but prior to the commencement of the  Rules  regarding recruitment  to such cadres may be treated as regular’.  The appellant  contends  that  in pursuance  of  this  guideline issued  by the State Government even if it is  assumed  that his  initial appointment was irregular it had to be  treated as  regular throughout. The appellant,  therefore,  contends that  the Tribunal’s order suffers from certain  patent  in- firmities  and  deserves to be set aside.  It  appears  that before the Tribunal respondents Nos.1, 2, 4, 6 and 7 did not file  any counter challenging the appellant’s claim to  sen- iority  but  respondents Nos. 3 and 5 contested  the  appel- lant’s  claim  while the State Government  avoided  entering into the arena by filing a counter but instead presented the relevant files to the Tribunal. So far as respondents Nos. 3 and 5 are concerned, they supported the action taken by  the state Government in preparing both the impugued  provisional as  well as the final seniority lists. They  contended  that since  they were regular employees and had  entered  service before  the appellant and were promoted to the post  of  As- sistant  Drilling  Engineers along with the  appellant  they

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were  clearly senior to’the appellant and the State  Govern- ment  was,  therefore, justified in showing them  at  Serial Nos.1 to 5 and the appellant at Serial No. 6 in the seniori- ty list. They, therefore, contend that this 604 appeal is without substance and needs to be dismissed.     We have heard counsel for the rival contestants. Counsel of the State Government submitted that they had prepared the seniority list for reasons already stated but they would not like  to take sides and would abide by the decision of  this court.     In order to appreciate the controversy, it is  necessary to  refer to the Karnataka Civil  Services  (Classification, Control  and Appeal) Rules, 1957. According to Rule  5,  the Civil Services of the State of Karnataka are classified into Class I, Class II, Class II and Class IV posts. Class I  and Class  II are gazetted Posts whereas Class III and Class  IV consist of non-gazetted Posts. So far as Class III posts are concerned  the initial appointments have to be made  by  the authorities mentioned in Column 2 of Schedule II appended to the  Rules. In regard to the posts of Junior  Engineers  the lind  Schedule makes the Director the Appointing  Authority. There can, therefore, be no doubt that the initial  appoint- ment  of  the  appellant was by an  authority  competent  to appoint. It is indeed true that at the time when the  appel- lant was selected by the State Public Service Commission and appointed as Junior Engineer w.e.f. 4th May, 1970 there were no  specific Recruitment Rules in existence for the post  in question. As stated earlier, the posts were created for  the first  time in 1966 and since then the Director had been  in correspondence with the State Government for framing of  the Recruitment Rules for the said posts. Since the  Recruitment rules  were not framed for one reason or the other, in  1969 the  Director  wrote a letter to the  State  Public  Service Commission to advertise the vacancies and select  candidates for appointment. Simultaneously, he wrote a letter informing the State Government of the action taken by him in  request- ing  the  State Public Service Commission to  advertise  the posts and select candidates for appointment. Pursuant to the requisition  sent by him the Commission selected  candidates and forwarded the list to the Director who was the  Appoint- ing Authority under the Karnataka Civil Service (Classifica- tion, Control and Appeal) Rules, 1957. The Director who  was competent to make the appointment by virtue of Rule 7 issued a letter of appointment dated 24th April, 1970 whereapon the appellant  took charge w.e.f. 4th May, 1970. It,  therefore, becomes  apparent  that  the posts  were  regularly  created sometime in 1966 and the appellant was duly selected by  the State Public Service Commission and appointed to the post in question in 1970. The appellant being an engineering  gradu- ate was qualified for appointment to post in question.     The  state Government’s approach while sliding down  the appellant in seniority vis-a-vis the respondents Nos. 3 to 7 may be briefly noticed. 605 After  the recruitment rules for Junior Engineers  (Mechani- cal) were framed and brought into effect w.e.f. 23rd August, 1973,  it  was felt that the two posts of  Junior  Engineers were filled by direct recruitment contrary to the said rules which provided a ratio of 50% by promotion from the cadre of Drillers and 50% by direct recruitment. Since both the posts were  filled  by direct recruitment, it was felt  that  this ratio  was violated. The date of the  appellant’s  seniority was,  therefore, reckoned from 23rd August, 1973  and  since the appellant had not acquired experience of three years  he

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was  held ineligible  for promotion to the next higher  post of  Assistant Drilling Engineer. His entry into  the  promo- tional post was, therefore, pushed down to 23rd August, 1976 and  accordingly respondents Nos. 3 to 7 were  placed  above him in the seniority list. The Tribunal concurred with  this approach. The Tribunal held that the initial appointment  of the appellant as Junior Engineer (Mechanical) by the  Direc- tor  was  not supported by any rules and  the  Director  not being  the appointing authority for the said posts in  1970, the  appellant’s appointment was not regular. Secondly,  the Tribunal concurred with the Government that the  appellant’s entry into the cadre of Assistant Drilling Engineer must  be assumed to be w.e.f. 23rd August, 1976 and hence respondents nos. 3 to 7 were clearly senior to him. In short the  Tribu- nal approved of the Government’s approach in      With  respect  we find it difficult to approve  of  the said approach. As pointed out earlier, the posts were  sanc- tioned  in 1966. Initially the appellant was appointed as  a local  candidate but later the Director requested the  State Public  Service Commission to advertise the said  two  posts and  select  candidates for appointment to the  said  posts. Pursuant  to the advertisement so issued the  appellant  ap- plied, was found qualified and was selected for appointment. The Director, therefore, made the appointment as he was  the appointing authority for Class III posts under the Karnataka Civil  Services  (Classification, Control &  Appeal)  Rules, 1957,  vide  Rule  7(2) read with Column 2  of  Schedule  II thereto.  That rule clearly shows that the Director  is  the appointing authority for Junior Engineers, a Class III post. The  Tribunal was, therefore, not right in holding that  the appointment made was irregular as it was not by the appoint- ing  authority. The Tribunal was wrong in holding  that  the Director  was not the appointing authority for Junior  Engi- neers.  Strictly speaking, that was not the approach of  the Government. The Government held the appointment irregular as in  its opinion it had exceeded the quota of 50% for  direct recruits.  This view is based on the premise that the  serv- ices must be regularised applying the 1973 Rules  retrospec- tively. Here there are two fallacies, firstly the  appellant being senior of the two direct recruits appointed as  Junior Engineers, he would fill the slot for the one post which 606 went to direct recruits on the 50% quota and secondly it was not permissible to question the appointment made in 1970  in 1987 when in the intervening period none had challenged  the appellant’s appointment. The objection which the  Government had raised on his promotion to the next higher post was that he  was  a local candidate and not a regular  appointee,  an objection which was not pursued presumably on realising that he  was  selected  by the State  Public  Service  Commission before appointment. Not only that the Government  acquiesced in his appointment by promoting him to the next higher posts in 1980 and 1984. Since the posts existed on the  establish- ment  and  selection for appointment was made by  the  State Public Service Commission and the Director was competent  to make the appointment, it cannot be said that the absence  of recruitment rules makes the appointment illegal or irregular when  it is found that the appellant, a degree  holder,  was eligible  for appointment to the post. This is so  also  be- cause irregular appointments were regularised by the Govern- ment  Memorandum  dated 5th July, 1976,  the  relevant  part whereof reads as under: "3(a). All appointments made by Government or under specific authority  of Government either by direct recruitment or  by promotion  on or after 1st November, 1956, but prior to  the

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commencement of rules regulating recruitment to such  cadres may be treated as regular".     This  was clarified by the subsequent letter dated  17th September, 1977 as under: "Para 3(a) states that all the appointments made by  Govern- ment  or  under specific authority of Government  either  by direct recruitment or by promotion on or after 1.11.1956 and prior to the commencement of the Cadre and Recruitment Rules of the concerned cadre may be treated as regular, that is to say,  the  action taken by Government  on  other  Appointing authorities in resorting either of the modes of  recruitment is  regular. This para does not say that the appointment  of local candidates as a stop-gap arrangement is regular".     The  Tribunal refused to place reliance on the above  on the erroneous ground that the Director was not the  appoint- ing authority and the appellant was a local candidate.  Once both  these are found to be erroneous there is no reason  to brush aside the said guidelines. It may also be  appreciated that  the  services of local candidates in Class  III  cadre were  regularised  by Office Order No.177/71-72  dated  31s1 August, 1971 and had the 607 appellant  not  have been appointed as a  regular  candidate w.e.f. 4th May, 1970 his service would also have been  regu- larised as a local candidate.     From what we have discussed above it is obvious that the entire approach of the State Government and the Tribunal was erroneous.  Besides, the appellant was shown senior  to  re- spondents  Nos.  3  to 7 right from 1970 to  1987  when  his seniority came to be disturbed. During the said period of 17 years all attempts to disturb his seniority had ’failed.  No one  successfully  challenged it in Court.  The  appellant’s seniority which had stabilised over a period of time and  on the  basis whereof he was granted promotions by the  Govern- ment  could not be disturbed by doubting the. regularity  of the  initial appointment after so many years. It was not  as if  he  had  gained experience as an ad hoc  employee  in  a stop-gap  arrangement that his experience as a Junior  Engi- neer could be overlooked. We are, therefore, of the  opinion that his seniority in the promotion post could not be  upset on the ground that he did not possess the requisite  experi- ence till 23rd August, 1976.     In Direct Recruit Class H Engineering Officer’s Associa- tion  v. State of Maharashtra & Ors, [1990] 2 SCC 715,  this Court held in paragraph 13 as under:     "The  principle for deciding inter se seniority  has  to conform to the principles of equality spelt out by  Articles 14  and  16. If an appointment is made by  way  of  stop-gap arrangement,  without  considering  the claims  of  all  the eligible  available persons and without following the  rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee,  because of the qualitative difference in the appointment. To  equate the two would be to treat two unequals as equal which  would violate the equality clause. But if the appointment is  made after considering the claims of all eligible candidates  and the appointee continues in the post uninterruptedly till the regularisation  of his service in accordance with the  rules made  for  regular  substantive appointments,  there  is  no reason  to  exclude the officiating service for  purpose  of seniority. Same will be the position if the initial appoint- ment itself is made in accordance with the rules  applicable to substantive appointments as in the present case. To  hold otherwise will be discriminatory and arbitrary".     In the present case also the appellant’s appointment was

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made in 1970 after all eligible candidates were  interviewed by  the  State  Public Service Commission.  As  pointed  out earlier,  the posts were borne on the establishment and  the Director was the appointing authority who made the  appoint- ment  pursuant  to the selection made by  the  State  Public Service Commission. The appellant worked on that post  unit- erruptedly till he was 608 promoted to the next higher post along with respondents Nos. 3  to 7. In these circumstances, his experience in the  post of Junior Engineer (Mechanical) from 1970 till his promotion to the next higher post could not be ignored. We are, there- fore, of the opinion that the ratio laid down by the Consti- tution  Bench in the aforequoted paragraph applies with  all force in the present case also.     In  the result, we allow this appeal and set  aside  the order of the Tribunal. We hold that the appellant’s seniori- ty over respondents Nos. 3 to 7 as was obtaining before 31st December,  1987  when  the provisional  seniority  list  was published  shall  be restored and he shall be  shown  to  be senior to respondents Nos. 3 to 7 by correcting the impugned final seniority list. The appeal is allowed accordingly with no order as to costs. T.N.A.                                                Appeal allowed.                               609