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

PETITIONER: M.K.SHANMUGAM & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       25/04/2000

BENCH: N.S.Hegde, S.R.Babu, S.S.Ahmad

JUDGMENT:

RAJENDRA BABU, J.  :

     Civil Appeal No.  5086 of 1994

     This  appeal is directed against the order made by the Central  Administrative Tribunal, Bombay Bench  [hereinafter referred  to as ‘the Tribunal’] on November 5, 1993 in  O.A. No.  286/92.  Respondents Nos.  3 and 4 filed an application O.A.  No.  286/92 before the Tribunal.  The pleadings raised in the application, briefly stated, are as under.

     The  respondents  were directly recruited through  the Union  Public  Service  Commission  as  Assistant  Executive Engineers   (Electrical)   Class  I  in  the   Ministry   of Communications,  while  respondents Nos.  3 to 5 before  the Tribunal  were recruited as Assistant Engineers (Electrical) Class  II and both the applicants and the other  respondents were  subsequently  promoted on ad hoc basis and  thereafter they  were regularised as Executive Engineers  (Electrical). The  two  respondents were aggrieved by the letter  sent  on February  6, 1992 which was accompanied by a seniority  list of  the Department of Telecommunications whereby the ad  hoc services  rendered by respondents 3 to 5 before the Tribunal as  Executive Engineers from May 25, 1977, February 21, 1982 and  April  16, 1982 respectively being treated  as  regular services  and  counted for the purpose of seniority in  that grade  and  proposed  to re-fix that position in  the  final seniority  list  of Executive Engineers as on April 1,  1985 and  thus  the applicants before the Tribunal  being  pushed down in the seniority list.

     There  are  two  channels  of  recruitment  under  the relevant  recruitment  rules and promotions to the  post  of Executive  Engineer  are  to be made  from  two  categories, namely, Assistant Executive Engineer Class I with five years regular    service    on     seniority-cum-fitness     basis (non-selection)  in  the  2/3rd quota and  the  other  being Assistant Engineer Class II with eight years regular service on seniority-cum-merit basis (selection method) in the 1/3rd quota  selection  being made by the  Departmental  Promotion Committee with a member of the UPSC as Chairman.

     The  stand taken by the applicants before the Tribunal is  that while regular promotions to the grade of  Executive Engineers  from the Assistant Executive Engineers cadre  was made regularly from 1976.  However, the seniority in respect

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

of  Assistant  Engineers  Class II was  not  finalised  till November  1987  in  view of certain disputes  inter  se  the promotees  in  the cadre.  The D.P.C.   thereafter  selected from  the  category  of Assistant Engineers Class  II  in  a meeting  held only in May 1988 when the D.P.C.  selected the appellants  for  the vacancies belonging to their quota  for the  years 1977 to 1982.  The appellants had thus worked for long  period  varying  from  6 to 11 years in  the  post  of Executive  Engineer on ad hoc before the D.P.C.  could  meet for  finalising  regular  promotion.  The  revision  of  the seniority  list which was challenged before the Tribunal, it was  submitted, was only a corrective action though  belated to  render  justice  to  the  affected  persons  and  is  in compliance  of  the  judgment  of the Madras  Bench  of  the Tribunal  dated  October  12,  1990  in  O.A.   No.   113/89 directing  disposal  of  the  representation  regarding  the seniority  of  one of the appellants.  It was  further  made clear  in the said direction that it has to be decided after taking  into account the decision of the Principal Bench  of the  Tribunal in N.N.  Chakraborty case in O.A.  No.  978/87 and  of  this Court in Direct Recruit Class  II  Engineering Officers’  Association v.  State of Maharashtra & Ors., 1990 (2) SCC 715.  After noticing several decisions of this Court and  of  the Tribunal, it was held that under the  statutory recruitment  rules  promotions  to  the  post  of  Executive Engineer  were to be made from among the Assistant Engineers Class   II   with   eight     years   regular   service   on seniority-cum-merit  by selection method in the 1/3rd  quota and  admittedly the appellants were promoted on ad hoc basis as Executive Engineers on different dates mentioned earlier. The  relevant  appointments were purely temporary and on  ad hoc  basis  and were for a limited duration and it was  also made clear that services on ad hoc basis will not confer any claim  in the matter of seniority, confirmation, etc.   Thus it  was  noticed  that the ad hoc promotions  were  made  in administrative exigencies since seniority lists of Assistant Engineers  could  not  be  finalised   in  view  of  pending litigation  and, therefore, the D.P.C.  meeting for  regular selection  could  not  be arranged.  Non-  selection  for  a selection  post  can  hardly  be considered to  be  a  minor procedural deficiency and, therefore, the Tribunal concluded that selection was not by a competent D.P.C.  and the ad hoc promotion was itself for a limited time and, therefore, does not fulfil the conditions mentioned in the decision in State of West Bengal & Ors.  v.  Aghore Nath Dey & Ors.., 1993 (3) SCC 371.  The Tribunal is of the view that ad hoc service to count  for seniority must be rendered continuously till  the date  of regularisation for 15 years or more and, therefore, it  held that the appellants could not take advantage of the ad  hoc promotions made purely as a stop gap arrangement and it  is  only  in special circumstances such ad  hoc  service could be counted for purpose of seniority as noticed in some of   the  decisions  of   this  Court.   Consequently,   the application  filed by the contesting respondents was allowed and it was declared that the appellants were not entitled to count  their  ad  hoc  service  in  the  post  of  Executive Engineers   (Electrical)   for    seniority,   confirmation, promotion, etc.

     It is contended before us that regular promotions from Executive  Engineers, which is a feeder cadre, to the  grade of  Superintending Engineer could not take place immediately and four vacancies of Superintending Engineers had arisen by the  time  the  meeting of D.P.C.  was held on  October  17, 1984.   Strong reliance was placed on the counter  affidavit

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

filed  before the Tribunal which is to the following  effect :-  "The  first two points after Point No.  7  of  seniority list  dated 10-4- 85 thus, go to the officers promoted  from the  rank  of  AEE(E)  and SL No.  10 goes  to  the  officer promoted  from the rank of AE(E).  A point was left blank in seniority list to accommodate an officer promoted from Group B.   This  was erroneously shown as Sl No.  9 instead of  SL No.   10.   This mistake has later on been  rectified.   The applicant  cannot presume that in the selection process,  he will  find  the  top most position on the  panel.   The  DPC chaired  by  a  Member  of UPSC will  draw  a  select  panel according to statutory Recruitment Rules."

     Appellant No.  1 claimed that he was assigned top most position  by  the  D.P.C.   held on May  13,  1988  but  the provisional  seniority  list dated January 12, 1989 did  not reflect  his  position and in those circumstances he  sought permission  to withdraw the pending application with liberty to  file a fresh application.  So far as appellant No.  2 is concerned,  he filed an O.A.  before the Madras Bench of the Tribunal  claiming seniority from the year 1982 when he  was promoted  on ad hoc basis to the grade of Executive Engineer (Electrical).   The Tribunal rejected the contention  raised by  the Department that he is deemed to be on regular  basis only  with  effect from May 13, 1988 when the  D.P.C.   met. Since  the  seniority list dated January 12, 1989  was  only provisional  the Tribunal directed appellant No.  2 to  make another   representation  to  the   Department   which   the Department  was  directed to dispose of in  accordance  with law.   Pursuant to this direction given by the Madras  Bench of  the  Tribunal it is stated that the seniority had to  be re-fixed  and,  therefore, it is contended that inasmuch  as they  had rendered service for a long period at any rate  in higher  cadre and their promotions having been  subsequently regularised  ought to be treated as giving them seniority in the matter.

     The  stand taken by the contesting respondents is that under  the relevant rules the D.P.C.  should be headed by  a member  of  UPSC  which  was not done in  the  case  of  the appellants  at  the  time of their ad  hoc  appointment  and appellant  No.   1 was duly considered in 1978 and  was  not found  suitable and for that reason his name did not  figure in  the  selection  list and there was no  additional  quota vacancy  in  the  grade of Executive  Engineer  (Electrical) meant  for group B cadre officers upto 1985.  As a matter of fact,  B.V.  Ramanamurthy, who is admittedly senior to  both the  appellants, was only regularised on June 28, 1985  with effect  from  April 1, 1975 as he came under the purview  of clause  4C of amended rules published on September 22, 1984. Since the appellants herein were not covered under clause 4C of  amended  rules  1984 and also additional quota  was  not available  as  such, they could not be regularised prior  to 1985.   The Tribunal has taken note of the fact that the  ad hoc  promotions given to the appellants were not de hors the rules.   It  was  contended that there were  four  vacancies against  Assistant  Engineers’  quota   but  Department  had informed  the  D.P.C.   to fill two  vacancies  from  direct recruitment   and  the  D.P.C.    accordingly  selected   K. Subramanian  and  T.Mohan Rao though B.V.  Ramanamurthy  and the  first  appellant were also eligible and vacancies  were existing   they  were  not   regularly  promoted  by   wrong interpretation  of  rules  and   separately  reserving   two vacancies  for  promotee  cadre.    Such  provision  is  not

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

existing  in  recruitment rules and the petitioners are  the initial  constituents  in  Assistant  Engineer  (Electrical) grade and are much above promotees in the Assistant Engineer (Electrical)  seniority list.  There was considerable  delay in  the introduction of initial constitution clause and  the same  was published only in 1984 after a gap of 9 years  and came  into  force  with  effect from  April  5,  1975.   The Screening   Committee  was  thereafter   convened   by   the Department  on August 16, 1985 and appellants and  officers, including  B.V.   Ramanamorthy and several  other  officers, were  promoted on the dates indicating against their  names. Appellant  No.   1  and R.  Ravindran were not  included  as initial  constituents  since  they neither  completed  eight years  of service nor on ad hoc before April 5, 1975.  Their promotions  fall  under  maintenance  clause 4A  and  4B  of amended  rules  1984.   They, however,  formed  the  initial constituents in Assistant Engineer (Electrical) or Assistant Executive  Engineer (Electrical) cadre separately.  On  that basis  it was contended that the seniority list published is in order.

     The  Union  of India has also filed two appeals -  one (Civil  Appeal  No.  3018 of 1997) arising out  of  judgment dated  June  27,  1996 in O.A.  No.  108/96  passed  by  the Madras  Bench  of  the Central Administrative  Tribunal  and other  (Civil Appeal No.  5081 of 1994) against judgment and order  dated November 5, 1993 passed by the Tribunal in O.A. No.   286/92.  In O.A.  No.  108/96 the Madras Bench of  the Central Administrative Tribunal merely followed the judgment of  the  Tribunal which is under appeal before us  in  Civil Appeal No.  3018 of 1997.

     There  is  another dimension to the case by reason  of the introduction of the Rules called "The Posts & Telegraphs Civil Engineering (Electrical Gazetted Officers) Recruitment (Amendment)  Rules,  1984", which were  given  retrospective effect  from April 5, 1975.  It is explained that the reason for  introduction of these Rules is that for recruitment  to the various posts in the Electrical Branch of the Civil Wing of  the  Posts  &  Telegraphs   Department,  the  rules   of recruitment  were published on the April 5, 1975.  Prior  to commencement  of the said Rules, there were officers who had joined directly as Assistant Executive Engineer (Electrical) through  the Combined Engineering Services Examination  held by  the Union Public Service Commission.  Those who had come on  deputation from C.P.W.D.  were also deemed to have  been regularly  appointed  in the Posts &  Telegraphs  Department pursuant to a decision of the High Court of Allahabad.  Some of the officers were promoted to the higher grades on ad hoc basis.   In  order  to ensure that these  officers  are  not deprived of the service rendered by them before commencement of the rules, it was proposed to incorporate retrospectively a  provision  for  initial   constitution  of  these  posts. Therefore,  though the rules were amended by a  notification issued  on April 22, 1984 published in the Gazette of  India and  it  was given retrospective effect but the  purpose  of giving retrospective effect to the provision relating to the initial  constitution of these posts would not prejudicially affect  the interests of any person already in service.   It is  in this background, it is contended before us, that  the cases  of the appellants could not be considered to the post of  Superintendent Engineers although they were  functioning as  the  Executive  Engineers   without  determining   their position  in the initially constituted cadre and that  could be  done  with  reference to the rules, as amended  in  1984

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

which came into effect from April 5, 1975.  Though there may have been some delay and complications arising thereto there is  another  factor  which needs to be considered  in  these cases.   The case of the 1st appellant was considered by the Departmental  Promotion  Committee  in   which  Air  Marshal T.S.Virk  was present on behalf of the UPSC and who presided over  that meeting for selection of officers for officiating promotion  to  the grade of Executive Engineer  (Electrical) and it was noticed that out of four vacancies, two vacancies are  to  be filled by promotion of direct recruit  Assistant Engineer  (Electrical) and the remaining two vacancies  were kept  reserved  for  the  promotion  of  Assistant  Engineer (Electrical).  As no officer was available for consideration at  present  and the Committee accordingly considered the  4 eligible  officers and assessed them.  While  K.Subramanian, T.Mohan  Rao  and  B.V.Ramnamurthi were found  to  be  ‘very good’,  the  1st appellant was assessed to be  only  ‘good’. This  was  recorded  in the minutes of the  meeting  of  the Departmental Promotion Committee held on June 2, 1978 in the office  of  the  UPSC.  Thereafter, in the  minutes  of  the meeting  of  the  meeting  of  the  Departmental   Promotion Committee  held on May 13, 1988, the 1st appellant was found to be ‘very good’ for the year 1977 as an Executive Engineer (Electrical)  Group A.  It is in these circumstances, it  is to be considered whether the case of the 1st appellant could have been considered earlier to the date he was found fit to be promoted.  The initially constituted cadre is of the date April  5,  1975 and on that date the 1st appellant  had  not been  considered  for  promotion to the  post  of  Executive Engineer  and  he was found fit to be promoted as  Executive Engineer only with effect from 1977, i.e., much later to the promulgation  of  these rules.  Reliance has been placed  on the  decision  of  this  Court in Direct  Recruit  Class  II Engineering  Officers’ Association [supra].  That is a  case where  the  quota rule between the direct recruits  and  the promotees  had  broken down and the appointments  were  made from  one source in excess of the quota, but were made after following  the  procedure  prescribed by the rules  for  the appointment;   therefore,  it was held that  the  appointees should  not  be  pushed down below the appointees  from  the other  source  inducted in the service at a later date.   In that case the direct recruits were not available in adequate number  for  appointment and appropriate candidates  in  the subordinate  rank  capable  of efficiently  discharging  the duties of Deputy Engineers were waiting in their queue.  The development  work  of  the   State  pre-emptorily   required experienced  and  efficient hands and in that situation  the State Government took a decision to fill up the vacancies by promotion  in excess of the quota, but only after subjecting the   officers  to  the  test   prescribed  by  the   rules. Therefore,  in those peculiar conditions certain  directions had  been given by this Court inasmuch as the rigours of the quota  rule having been neutralised and the seniority  being dependent  on continuous officiation, the seniority so fixed would  not be defeated by the ratio fixed by the rules.   It is difficult to appreciate as to how the principle stated in that  case could be extended to the case of 1st appellant in the  present  case as the quota rule had not broken down  in any  manner  nor is there any material before the  court  to show   that  he  has  not   been  duly  considered  by   the Departmental  Promotion Committee before appointment to  the higher  grade.  Again in the case of State of West Bengal  & Ors.   vs.  Aghore Nath Dey [supra] the same question arose. In  that  case it was noticed that when reckoning  seniority the  length of the service may be a relevant factor.  If the

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

ad  hoc selection is followed by regular selection, then the benefit  of  ad  hoc  service is not admissible  if  ad  hoc appointment  is  in violation of the rules.  If the  ad  hoc appointment  has  been made as the stop gap arrangement  and where   there  was  a   procedural  irregularity  in  making appointments  according  to rules and that irregularity  was subsequently  rectified, the principle to be applied in that case  was stated once again.  There is difficulty in the way of  the  appellants  to fight out their case  for  seniority should  be  reckoned by reason of the length of the  service whether  ad  hoc or otherwise inasmuch as they had not  been recruited regularly.  As stated earlier, the appellants were regularly  found fit for promotion only in the year 1977 and if  that  period  is  reckoned  their  cases  could  not  be considered  as found by the Tribunal.  The view expressed by this  Court in these cases have been again considered in the decisions  in  Dr.   Anuradha  Bodi &  Ors.   v.   Municipal Corporation of Delhi & Ors., 1998 (5) SCC 293;  Keshav Deo & Anr.   v.   State of U.P.  & Ors., 1999 (1) SCC 280;   Major Yogendra  Narain Yadav & Ors.  v.  Bindeshwar Prasad & Ors., 1997  (2) SCC 150;  I.K.  Sukhija & Ors.  v.  Union of India &  Ors.,  1997 (6) SCC 406;  Government of A.P.  & Anr.   v. Y.   Sagareshwara Rao, 1995 Supp.  (1) SCC 16, but all these decisions  do not point out that in case the promotions  had been  made  ad hoc and they are subsequently regularised  in the  service  in  all the cases, ad hoc  service  should  be reckoned  for the purpose of seniority.  It is only in those cases  where  initially they had been recruited even  though they  have been appointed ad hoc the recruitment was subject to  the  same  process as it had been done in  the  case  of regular  appointment  and that the same was not a  stop  gap arrangement.   That is not the position in the present cases at  all.   Therefore,  we are of the view  that  conclusions reached  by the Tribunal appear to us to be correct and call for  no interference.  However, we make it clear, as noticed earlier, that while amending the rules of recruitment in the 1984  all those who are already in service will be borne  in mind  in adjusting the seniority amongst the promotees inter se  and suitable adjustments could be made and so far as the direct  recruits are concerned, their cases will go by their quota rule and the view taken by the Tribunal in this regard cannot be taken exception of.

     Appeals stand dismissed accordingly.