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PETITIONER: MAJOR YOGENDERA NARAIN YADAV ETC.

       Vs.

RESPONDENT: SHRI BINDESHWAR PRASAD & ORS. ETC.

DATE OF JUDGMENT:       10/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted in the special leave petitions.      These appeals  have a  chequered history. But it is not necessary to  burden the judgment with minute details of the entire history  of the  case Suffice  it to state that Major Yogendera Narain  Yadav, the  appellant in  the main appeal, was a short Commissioned Officer in the Army as Engineer and was appointed  on April  15, 1963  and was released from the Army on  October 25,  1970. Pursuant to an advertisement for appointment to a post of a temporary Asstt. Engineer made in 1973 he  was selected  by the  Public Service Commission and was appointed  to the  post on July 29, 1974. The Government of Bihar had issued Circular dated June 21, 1969 in which it was stated  that 30%  of the  posts of  permanent as well as temporary Engineers  were available  to the demobilised Army officers and  the date of entry into the State service would be the  date of  their attaining  the age of eligibility for appointment in the military service or actual date of entry, whichever is  later. Pursuant  thereto, the appellant made a request by  a memorandum  to the  Government to consider his case  for   permanent  post  available  to  the  demobilised officers and  appoint him  to that post with effect from the date on  which he  joined the  Army as Commissioned Officer. Request was  acceded to  and an  order came  to be passed by proceedings dated  December 6,  1977 giving  him the date of his permanent  appointment for  the purpose  of seniority in terms of  the Government  Circular dated  June 21, 1969 with effect from  April 15,  1963. Thus  be  became  a  permanent Assistant Engineer  in Bihar  Roads and Building Department, which was formerly known as Public Works Department.      The question  arose: whether  he would be senior to the respondents? After  giving him  the notional  date,  he  was promoted to  the post of Executive Engineer. It appears that the respondents  filed a  writ petition  in the  High  Court which is  the subject  matter of  C.A. No.1394/91. There was difference  of   opinion  between   to  learned  judges  and consequently reference  to third  learned Judge was made. It was held  per majority that the appointment of the appellant as Executive  Engineer without considering the claims of the respondents was  not correct  in law.  Pending  appeal,  the

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Court had  given direction  to the Government by order dated April 1, 1991 thus:      "the DPC  to be  constituted and to      take the  decision as  directed  by      the High  Court without  delay. The      decision being  taken by the DPC it      will be  implemented subject to the      result  of  the  Appeal.  Till  the      decision is  taken by  the DPC  the      appellant will not be reverted."      From the  record, it  is clear that DPC was constituted but his  case was  negatived. Consequently,  he filed a writ petition in the High Court, viz., CWOC No.1563/92 which went against the  appellant.  When  SLP  bearing  No.6794/94  was filed. this  Court directed  that a fresh DPC be constituted and in  furtherance thereof  the DPC was constituted and the claims of  all the  respective persons  were considered. The appellant was  found eligible for the promotion as Executive Engineer and  thereafter as  a Superintending  Engineer  and then as a chief Engineer and ultimately Engineer and then as a chief  Engineer  ad  ultimately  as  Engineer-in-Chief  by proceedings dated  May  16,  1994  and  he  was  accordingly promoted. this promotion gave rise to filing of further writ petitions in the High Court which are the subject matters in other appeals.  the High  Court  has  held  that  since  the respondents were  already working  as on  the date  when the appellant had  entered the  service as  Executive  Engineers though as temporary Assistant Engineers, their seniority has to be  reckoned from  the date of their initial appointment. Thereby they became senior to the appellant. As a result, he cannot be promoted as against them. It appears that pursuant to the directions issued in those writ petitions another DPC was  constituted   and  promotions   were   given   to   the respondents. When  it was  sought to  get  those  promotions stayed and  to continue  him is  his past  service, all  the matters were  directed to  be posted  together. Thus all the appeals have come up together.      Shri a.  Sharan,  learned  counsel  appearing  for  the appellant,  with  a  neat  presentation  of  the  facts  and analysis,  contends  that  once  the  appellant  has  become permanent Asstt.  Engineer w.e.f.  April 15,  1963  and  the respondents having  been, admittedly, recruited as temporary Asstt. Engineers,  unless they  were appointed substantively to the  post of permanent Asstt Engineers, they cannot steal a march  over the   appellant;  as a  consequence, he became senior to  them. He  also contends that by proceedings dated 17.2.1969 the claims of all the persons who were temporarily working as  Asstt. Engineers  were  considered;  one  Janaki Prasad  Sinha   of  1964  batch,  who  next  below  him  was regularised as  permanent Asstt. Engineer w.e.f.February 13, 1964 and R.R. Pathak, one of the respondents was regularised w.e.f.  December   29,  1966   and,  admittedly,  the  other respondents were  regularised as  permanent Asstt. Engineers in the  years 1973  and 1976 and thereby they are far junior to the  appellant in  the post  of Asstt.  Engineer. Without considering  appellants   case,  they   were  confirmed   as Executive Engineers  in 1985.  Rule 17  read with Rule 24 of the Bihar  Engineering  Class-I  Service  Rules,  1939  (for short,  the   ’Rules’)  provides   for  the   procedure  for promotion. Merit  and seniority  is  to  be  considered  for promotion to  the as  Executive  Engineer  and  merit  alone without any  consideration of seniority, would be considered for the  of supdt.  Engineer and  Chief  Engineer  etc.  The appellant who had reports of excellent record was considered by the DPC on his own merit and was found to be eligible for

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promotion as against the respondents. Therefore, he was duly prompted. The  high Court has not considered the case of the appellant in the proper perspective.      Shri S.B.  Sanyal and  Shri Uday  Sinha, learned senior counsel for  the respondents,  contend that  the respondents were regularly  selected, though  to the  temporary posts by the BPSC  and subsequently  they  were  regularised  to  the permanent posts.  Their initial  a appointments on temporary posts  and   subsequent  regularisation   is  a   fortuitous circumstance, viz.,  availability of  permanent  posts;  but they having  been recruited  and selected  by  the  BPSC  on regular basis,  their appointment  to the posts as permanent Assistant Engineers would date back to their earlier regular selection. though  they were  promoted on temporary basis as Executive Engineers,  they were  confirmed thereafter in the post of Executive Engineers and thereby, the respondents are far senior to the appellants in both the cadres. Even before the  appellant’s  entering  into  the  service  they  became Executive  Engineers  in  the  post  and  thereby  the  non- consideration of  their claims  was bad  in law. Shri sanyal placed reliance  on Rule  27 of  the Rules stating that when the respondents were appointed substantively to the posts of Executive  Engineer,   the  appellant   would  not  get  any seniority over the respondents. In support thereof he placed reliance on  the judgments  of this  court in Direct Recruit Class II  Engineering  Officers’  Association  v.  State  of Maharashtra &  Ors. [(1992)  2 SCC  715] and  State of  West Bengal v.  Aghore Nath  Day [(1993)  3 SCC  371]. Shri Sinha further contends  that the  appellant had  not worked  as an Executive Engineer  at  all  and,  therefor,  he  cannot  be considered for the post of Supdt. Engineer straight from the post of Asstt. Engineer and, therefore, the view of the High Court is  perfectly consistent  with the  Rules and  the law laid down by this Court.      In view  of the  respective contentions,  the  question that arises  for consideration  is: whether the appellant is senior to  the respondents  in the  cadre as Asstt. Engineer and not  notionally, as held by one of the learned Judges of the High  Court, in  the post  of Executive Engineer for the purpose of  promotion to  the post of Supdt. Engineer in the service? It  is seen  that Class  II Service, namely, Asstt. Engineers shall  be recruited - (i) by direct recruitment in accordance with  the Rules  in  Part  II,  or  (ii)  by  the promotion or  transfer of  officers  already  in  Government service, permanent  or temporary,  in  accordance  with  the Rules in  part III.  Thereby, it  is clear that the posts of Asstt. Engineers  in  Class  II  consist  of  permanent  and temporary Engineers. Admittedly, the permanent and temporary posts are  treated as distinct and separate posts, though in the same  cadre. The  Rules envisage substantive appointment to a  post as is evident under Rule 27 of the Rules. Rule 27 reads as under:      "27, Seniority.  - Seniority in the      service shall  be determined by the      date of  the officer’s  substantive      appointment    to    the    Service      irrespective of  the pay  drawn  by      him provided  that a  member of the      service who  holds a superior to an      officer who  holds an inferior post      substantively.  The   seniority  of      officers appointed on the same date      shall be  determined  according  to      the order  of merit  in which  they      were placed  at the  time of  their

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    selection for appointment."      It would  thus be  clear  that  the  appointment  to  a temporary post,  though in  the cadre,  is not a substantive appointment  as   contemplated  by   the  Rule.  Substantive appointment  to   the  permanent   post  gives  right  to  a substantive status  in the  post on  permanent basis.  It is seen that  the Government  had issued  the orders, obviously for that  reason, on  February 17,  1969 and  Janaki  Prasad Sinha, who was recruited and was last among the selectees of 1964 was  given confirmation  from February  13, 1964;  R.R. Pathak was given confirmation w.e.f. December 29, 1966. Thus they became  the members  of the  service in  a  substantive capacity with  respect to the above dates. It is also not in dispute that  other respondents  also were  confirmed in the year  1973  on  permanent  posts.  Though  Major  Yadav  was recruited in  1973 and  was appointed  in 1974, by virtue of Government circular,  his seniority  dated back of April 15, 1963 as  permanent Asstt.  Engineer. Thus  they  became  far junior to the appellant as permanent Asstt. Engineers. It is seen that  Rule 17  of the  Rules prescribes  procedure  for promotion to the post of Executive Engineer with a condition that merit  should be  the consideration  and seniority also may be taken into consideration. It reads thus:      "17. - Procedure for recruitment by      promotion. -  (a) When the Governor      has decided  that  any  vacancy  or      vacancies in  the service  shall be      filled  by   promotion,  the  Chief      Engineer    will    nominate    for      promotion officers  from the  Bihar      Engineering service,  Class II. The      nomination   will    be   made   by      seniority and  merit  combined  but      more important  will be attached to      merit. The  officers  nominated  by      the   Chief   Engineer   shall   be      arranged in order of preference and      the number  should ordinarily be 50      per cent in excess of the number of      vacancies to be filled."      Thus due  weight is given only to merit and where merit and ability are approximately equal. Seniority also could be considered. It  is also  not in  dispute that  the appellant being senior  to the  respondents by  more than 10 years the question is: whether he could be considered for promotion as Executive Engineer?  It is not in dispute that the appellant while in  the Army, was a Class I officer and had held three ranks, namely, Lt. Colonel, Captain and Major. All the three posts were  Class I  posts equivalent  to Executive Engineer Class I  post. It  is also  not in  dispute that  one of the learned Judges,  in the circumstances, and in our view quite rightly, has  given direction  to consider him notionally as if he  is eligible to be considered as an Executive Engineer for promotion to the post of Supdt. Engineer. It is also not in dispute  that throughout his career he earned "excellent" confidential reports.  Merit under  Rule  17  alone  is  the consideration for  promotion as Supdt. Engineer and upwards. Under these  circumstances, the  DPC has  considered, as per the directions  referred to  earlier, the relative merits of all  the   persons  and   considered  the   appellant   more meritorious and  accordingly directed the Government to give promotion in  him and  in furtherance  thereof promotion was given. In  the same  proceedings further  consideration  was made for  promotion to  the post  of Supdt.  Engineer, Chief Engineer and  Engineer-in-Chief. Rule 24 of the Rules speaks

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that promotion  to the post of Supdt. Engineer and the Chief Engineer "shall  be made  by selection  and seniority  alone shall confer no claim". Thus it could be seen that promotion should be  only on  merit. The  appellant having  been found more  meritorious   than  others,   obviously  the  DPC  had considered  and  directed  him  to  be  promoted  as  Supdt. Engineer, Chief  Engineer  and  thereafter  as  Engineer-in- Chief. Thus,  his promotion to the above posts is consistent with the Rules and according to law.      It is  true that  the respondents  entered into service much earlier to the entry into the service by the appellant. That  is   obvious.  But   the  question   is:  whether  the respondents who entered service later than the appellant can deny  him  the  seniority?  But  for  the  Circular  of  the Government of Bihar, giving the benefit of past service as a demobilised military officer, obviously the appellant has no right to  claim seniority  over them.  The Government  order giving such a benefit to the ex-servicemen, when challenged, was upheld  and thereafter  in was  not challenged  in  this Court, It  cannot be  challenged since  in several cases the policy has been upheld by this court for the reason that the persons like  the appellant  rendered service to the country at the  time when  their service was needed by the nation to defend  it  from  foreign  aggression.  Further  though  the appellant was  initially  appointed  to  a  temporary  post, admittedly, permanent  post was  available to the demobilisd officers as  Asstt. Engineer. His representation to consider his case  for fitment into the permanent post was acceded to and the Government had passed that order and that order also had become  final. Thus  the appellant  became senior to the respondents as permanent Asstt. Engineer much earlier to the respondents’.      The ratio  in Direct  Recruit Class  II Engineers’ case (supra) has  no application  to  the  facts  in  this  case. Therein para  13 and  proposition A  and   B In paragraph 47 have to be read in the light of the fact therein. Though the respondents were  regularly recruited  as  temporary  Asstt. Engineer in  accordance with  the Rules,  until they  became members of  the service  in a substantive capacity, they had not become  members of Class II service. As seen they became members of Class II service in 1966, 1973 and onwards. Under those circumstances,  though they  were appointed on regular basis by  selection by  the Public  Service Commission, they cannot steal  a march over the appellant to claim seniority. Rule 27  amplifies the  legal position. In this regard, this Court has  considered a  case similarly  arising  under  the Medical services  of the  State  of  Bihar  in  Dr.  (Capt.) Akhouri‘ Ramesh  Chandra Sinha  & Ors.  v. State  of Bihar & Ors. [(1966)  2 SCC  20]. Therein  also, the appellant was a demobilised Army  officer and  he claimed seniority pursuant to the  above circular  of the Government. When the inter-se seniority was  to be  considered, it  was stated  in para  3 thus:      "As  a  consequence  of  the  above      circular,  on  appointment  to  the      post  and   on  completion  of  the      probation  for   a  period  of  two      years,  the   candidate  would   be      confirmed in  the  cadre  as  Civil      Assistant  Surgeon   in  the  Bihar      State  Medical   Service.   It   is      settled law  that on  completion of      the  satisfactory   probation,  his      confirmation would date back to his      initial appointment. Admittedly, he

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    was    regularly    appointed    on      6.9.1966.  Consequently,   he   was      regularly   appointed    as   Civil      Assistant Surgeon w.e.f. 6.9.1966."      Thus it  was held  that the seniority would be from the date  of  the  entry  into  the  service  on  a  substantive appointment. Though the respondents were senior in temporary posts or  in temporary  promotions  as  Executive  Engineers their  status   remained  as   temporary  until   they  were confirmed. Before their confirmation as Executive Engineers, the  case  of  the  appellant,  a  senior  permanent  Asstt. Engineer was not considered. So that confirmation was bad in law.  Though   for  purposes  other  than  seniority,  their temporary service  would be  counted,  for  the  purpose  of seniority only  confirmation as  permanent Asstt.  Engineers would be  the criteria.  The ratio in the above case applies to the  facts in  this  case.  Though  the  respondents  are entitled to  other benefits  by virtue  of  their  temporary appointment, for  the purpose  of inter  se seniority  their seniority would  be considered  only from  the date of entry into the  service as  permanent Asstt. Engineers. Since they entered into  service much  later  to  the  appellant,  they cannot  claim   any  seniority   over  the  appellant.  Thus considered, we hold that the view of the High Court that the appellant is not entitled to seniority and other benefits is clearly bad in law.      It is  contended by  Shri Sinha  that  his  client  has already retired from service and pursuant to the directions, though now  upset, by  this Court,  he  was  considered  and promoted and,  therefore, whatever  benefits that were given to him  may be  retained. We  cannot give  any direction  as contended for.  They were  subject to  the result  of  these appeals. However,  it would  be open to his client to make a representation and  it is for the Government to consider one decide accordingly.      The appeals  are  accordingly  allowed.  All  the  writ petitions filed  by  the  respondents  stand  dismissed.  No costs.