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PETITIONER: STATE OF ANDHRA PRADESH AND ANR.

       Vs.

RESPONDENT: K.S. MURALIDHAR AND ORS.

DATE OF JUDGMENT22/01/1992

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) SHARMA, L.M. (J)

CITATION:  1992 AIR  922            1992 SCR  (1) 295  1992 SCC  (2) 241        JT 1992 (1)   360  1992 SCALE  (1)176

ACT:      Civil Services:      A.P. Engineering Subordinate Service Rules:      Seniority-Government  orders issued from time to  time- Supervisors  upgraded  as  Junior  Engineers  on   acquiring degree-Degree holders directly appointed as Junior Engineers on temporary basis-regularisation of-Weightage given to both categories for service rendered-Inter-se  seniority-Fixation of-Directions issued.

HEADNOTE:      The  A.P.  Engineering Subordinate Service  Rules  were amended  in  1972 by way of Government order.   It  provided that supervisors who acquired B.E./A.M.I.E. degree while  in service  would  be entitled to count 50 %  of  the  services rendered   as  Supervisors  prior  to  acquiring  the   said qualification subject to a maximum of four years.   However, this was subject to certain conditions, the Chief among them was that they should be considered to have been placed below the  last of the Junior Engineer of the year,  after  giving such  weightage.   Order  dated 10.6.76  required  that  the Supervisors  who acquire the degree qualification  while  in service  would  be  appointed,  as  Junior  Engineers   with immediate  effect.   The  abovesaid  order  was  amended  on 8.11.76  giving benefit of the weightage to only  those  who acquired the degree qualification prior to 28.2.72.      In 1977, by another order of the State Government,  the post of Junior Engineer was made Gazetted post.      In   separate  petition  before  the   Andhra   Pradesh Administrative Tribunal, the Supervisors upgraded as  Junior Engineers   including   those  who   acquired   the   degree qualification  after 28.2.72, as well as the State  of  A.P. agitated the issue regarding inter-se seniority between  the upgraded  Junior  Engineers and the  direct  recruit  Junior Engineers.  The Tribunal heard all the matters together  and gave  a finding that there was no bar to  the  retrospective regularisation                                                         296 of the directly recruited Engineers from the dates of  their initial  appointments.  The Tribunal also upheld the  action of the Government in giving the benefit of the notional date

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of  appointment  to the upgraded Junior  Engineers  and  the benefit of the date of regularisation of their services from the   dates  of  their  notional  appointments  subject   to maintenance of order or ranking given by the Public  Service Commission.   The  Tribunal also ordered  that  the  ranking given  by  the  Public  Service  Commission  in  respect  of directly recruited Junior Engineers his to be maintained and each  of them would be entitled to count has seniority  from the  date on which his service has been regularised or  from the  date  of regularisation of the service  of  the  person immediately  below  in  the order of ranking  given  by  the Public Service Commission, whichever was earlier.      In  respect of upgraded Junior Engineers  who  acquired degree  qualification after 28.2.1972, the Tribunal  gave  a specific  direction that their seniority has to be fixed  on the basis of specific notional date of appointment given  to them  by  interspersing  their names  among  regular  Junior Engineers  as arranged in chronological order of dates  from which  such regular Junior Engineers are entitled  to  count their seniority.      Aggrieved  against  the  Tribunal’s  order,  the  State Government and the supervisors upgraded as Junior Engineers, preferred the present appeals.      On  behalf  of  the State, it was  contended  that  the direction of the tribunal particularly interspersing was not workable,  since the upgraded Junior Engineers have  put  in long  years of service and were discharging the same  duties as  the directly recruited Junior Engineers and this  factor should be taken into account in fixing the notional date  of appointment and inter-se seniority.      On  behalf  of the upgraded Junior  Engineers,  it  was contended  that  in G.O. Ms No.559 it is  specifically  laid down   that   Supervisors   who   have   acquired   graduate qualification  may  be appointed as Junior  Engineers  after 28.2.75  and the weightage of four years should be  reckoned from   the  date  of  acquiring  the  degree   qualification i.e.28.2.72 or thereafter; and their seniority should not be fixed from the date of the order of appointment.      On the order hand, the direct recruit Junior  Engineers contended  that the upgraded Junior Engineers can  under  no                                                        297 circumstances   be  treated  as  seniors  to  the   directly recruited  Junior  Engineers for the appointment  of  Junior Engineers  was  suspended for some time and in view  of  the exigencies  the degree-holders were appointed  on  temporary basis  and  they  have served for a  number  of  years;  the Government   decided  to  make  regular   appointments   and accordingly a Special Qualifying Test was held in which they qualified  and  they  were given  the  appointments;  and  a seniority  list strictly on the basis of performance in  the test  and  on  merit  was prepared  by  the  Public  Service Commission  and  a retrospective effect was given.   It  was further  contended  that  so  far  as  the  upgraded  Junior Engineers  are  concerned all the relevant G.O.Ms.  make  it clear that the crucial date has to be reckoned on the  basis of  the  actual date of appointment and not on the  date  of acquiring the degree.      Disposing of the matters, this court,      HELD:  1.1. The weightage of four years in  respect  of upgraded Junior Engineers as provided in G.O.Ms. No.559  has to be reckoned from the date of appointment and not the date of  their acquiring the degree qualification.  On the  basis of  that  notional date, their inter se seniority has to  be fixed. [311 B-C]      1.2.G.O. Ms. No. 559 makes it abundantly clear that the

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appointments  of the upgraded Junior Engineers who  acquired the  graduate  qualification  while  in  service,  would  be prospective  only  and that they would be  entitled  to  the weightage  of  four  years of service  rendered  before  the appointment.   It  does  not  anywhere  indicate  that   the weightage  should be from the date of acquiring  the  degree qualification.   It  is  only after  acquiring  such  degree qualification  that  a  Supervisor is  appointed  as  Junior Engineer  and having regard to the service rendered by  him, the  Government, as a policy, decided to give  weightage  of four  years for the purpose of considering  the  eligibility for promotion as Assistant Engineer. [308 C-D]      2.1.The  regularisation  of the  degree-holders  Junior Engineers  who passed the Special Qualifying Test by  giving restrospective  effect  cannot be held to  be  illegal,  and their  seniority  among themselves shall be subject  to  the order  of ranking given by the Public Service Commission  on the basis of the Special Qualifying Test. [311 D]      2.2.  The  degree-holders  were  appointed  temporarily because of a ban and later the Government again, as a policy decision, decided                                                        298 to  make  regular  appointments by  direct  recruitment  but enabled the degree-holders who were in temporary service  to appear  in  a  Special Qualifying Test.  Here  again,  as  a matter  of  policy,  the Government  decided  to  give  some weightage  to  the  service  rendered  by  them  before  the appointment by selection.  Thus, the Governement, in  fixing the  seniority  for the purpose of future promotion  of  the appointees-both  the  upgraded Junior Engineers as  well  as those  selected  by  the Public Service  Commission  in  the Special  Qualifying  Test has taken into  account  the  past service rendered by them. [308 E-F]      3.  In the case of upgraded Junior Engineers  weightage of  four years service was given and in the other  case  two years,  weightage  was given.  As a matter  of  policy,  the Government gave weightage to both the categories discharging the  same duties.  The upgraded Junior Engineers who  having got  the benefit of four years‘ service,  therefore,  cannot say that similar weightage should not be given to the direct recruits  who,  prior  to the  selection,  were  working  on temporary basis. [308 F; 309 B, F]      Devi  Prasad and Ors. v. Government of  Andhra  Pradesh and Ors., AIR 1980 SC 1185, relied on.      Smt. M. Nirmala and Ors. v. State of Andhra Pradesh and Ors.  etc.,  [1986]  3 SCC 647; Ashok  Gulati  and  Ors.  v. B.S.Jain and Ors., [1986] Sup. SCC 597; Direct Recruit Class II Engineering Officers Association v. State of  Maharashtra and  Ors., [1990] 2 SCC 715; Masood Akhtar Khan and Ors.  v. State of Madhya Pradesh and Ors., [1990] 4 SCC 24,  referred to.      4. The Tribunal has rightly pointed out that under Rule 23-A of the A.P State and Subordinate Service Rules, 1962 if a person having been appointed temporarily under Rule 10  to a  post borne on the cadre is subsequently appointed in  the service in accordance with the rules, he shall commence  his probation  from such subsequent date or the earlier date  as the  appointing authority may determine.  The  Tribunal  was also  right  in  holding  that  there  was  no  bar  to  the retrospective  regularisation of the service of  the  direct recruit Junior Engineers. [308 G-H; 309 A]      5. In the light of this Judgment, the State  Government shall  prepare a common seniority list of the degree  holder Junior Engineers and the upgraded Junior Engineers and  that list shall be the

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                                                      299 basis  for  all the subsequent  promotions.   Any  promotion already given shall be reviewed and readjusted in accordance with the said seniority list. [311 D-E]      6. Since this litigation has been pending for about two decades,  it  is high time a finality has to be  reached  by resolving the controversies and in this context the approval of  the  Public  Service  Commission  in  respect  of  these appointments  need not be sought, if the Government has  not already   obtained  the  approval  of  the  Public   Service Commission. [311 A-B]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 752  of 1984 etc.etc.      From  the  Judgment and Order dated 1.8.983  of  Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 799 of 1977.      K. Madhava Reddy, T.V.S.N. Chari, Ms. Manjula Gupta, B. Kanta  Rao, D. Prakash Reddy, B. Rageshwar Rao, Vimal  Dave, K.  Ram  Kumar, Y. Prabhakara Rao,  K.R.  Nagaraja,  Krishan Kumar and G. Prabhakara for the appearing parties.      The Judgment of the Court was delivered by      K.  JAYACHANDRA  REDDY, J.  The questions  involved  in these  matters being common they are being disposed of by  a common  judgment.  All these matters arise out of  a  common order   of  the  A.P.  Administrative  Tribunal  passed   in Representation  Petitions  Nos. 799/77, 548/79  and  140/81. S.L.P. (Civil) No. 5218/85 is filed against a separate order of  the  Tribunal  in  R.P. No.  1473/80.   The  dispute  is regarding the inter-se seniority between the Supervisors who are upgraded as Junior Engineers and the degree-holders  who are  directly  appointed as Junior Engineers.  All  of  them belong  to  the different branches in the  A.P.  Engineering Subordinate  Service.   First we shall  state  the  relevant facts in each of the appeals and then formulate  the  points that arise for consideration.  For convenience sake we shall refer to the parties as arrayed before the Tribunal.      CIVIL APPEAL NOS. 752 AND 754/84 :      These  two appeals are filed against the order in  R.P. No. 799/77.  The first one is filed by the State of A.P. and the other one by upgraded Supervisors-Junior Engineers.  The petitioners before the Tribunal are all Junior Engineers  in                                                    300 Irrigation  and  Power  Department.   They  were   initially appointed as temporary Junior Engineers in the year 1969/70. Later they appeared in a special qualifying test (‘SQT’  for short)  held  by the Public Service Commission  and  on  the basis  of  the  result  of  the  test  their  services  were regularised   in   the  post  of   Junior   Engineers   with retrospective   effect  from  the  date  of  the   temporary appointment  subject  to  the maintenance of  the  order  of ranking given by the Public Service Commission in the  test. The respondent Nos. 3 onwards in these R.Ps. are also Junior Engineers in the same department but they were appointed  as Supervisors  and  on  acquiring the degree  they  have  been redesignated  as  Junior  Engineers.   Several  G.O.Ms  were issued  by the Government and the important one  is  G.O.Ms. No.  559  (I  & P) Department dated 18.7.77.   The  post  of Junior  Engineers was made Gazetted post.  The case  of  the petitioners   is  that  the  respondents   acquired   degree qualification after 28.2.72 therefor they were not  entitled to be appointed as regular Gazetted Junior Engineers and  at

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any  rate they cannot be treated as seniors on the basis  of reckoning their seniority from the date of acquiring  degree qualification  and  that  the seniority  of  these  graduate Supervisors should be reckoned from the date of their actual appointment  as  Junior Engineers and not from the  date  of acquiring degree qualification.  The respondent Supervisors, on  the  other  hand contended that  they  are  entitled  to upgradation and weightage of service from the date of  their appointment as Supervisors.      CIVIL APPEAL NO. 753/84 :      This  appeal  is filed against the order  in  R.P.  No. 548/79.   The petitioners in this R.P. are  all  Supervisors who graduated after 28.2.72.  Their contention was that they were  appointed  much  before  the  respondents  namely  the directly recruited Junior Engineers and the services of  the respondents  Junior Engineers should not be  regularised  in such a way so as to effect the seniority of the  petitioners and that the seniority of the petitioners should be reckoned from the notional date of appointment.      CIVIL APPEAL NO. 755/84 :      This  appeal  is filed against the order  in  R.P.  No. 140/81.  The sole petitioners before the Tribunal, who is  a respondent here, questioned G.O.Ms. No. 466 Transport, Roads and  Building  and sought a declaration that  he  should  be declared  as senior to respondent Nos. 3 and 5  and  promote him  to  the  post of Assistant  Engineer.   The  petitioner before the Tribunal was directly recruited Junior  Engineer. He  also  passed  the  SQT  held  in  the  year  1975.   The respondents  before the Tribunal were  upgraded  Supervisors who  acquired the graduate qualification.  G.O. Ms. No.  466 was issued                                                        301 directing that the respondent before the Tribunal namely the upgraded  Supervisors should be treated seniors to  all  the directly  recruited  Junior Engineers  whose  services  were regularised on the basis of the SQT.  The Tribunal held that the findings in the other R.Ps. Nos. 799/77 and 548/79 apply to  the facts of this case also and accordingly directed  to prepare  an inter-se seniority list in the Transport,  Roads and  Buildings  Department on the lines  indicated  therein. R.P. was disposed of  with those observations.  The upgraded Supervisors-Junior Engineers who were the respondents before the Tribunal have filed this appeal.      These  matters  were heard together  by  the  Tribunal. After considering the various G.O.Ms. and the arguments  the Tribunal  held  that there was no bar to  the  retrospective regularisation  of  the services of the  directly  recruited Junior   Engineers   from  the  dates   of   their   initial appointments.    It  also  held  that  the  action  of   the Government  in  giving the benefit of the notional  date  of appointment  to  the  upgraded   Junior  Engineers  and  the benefit of the date of regularisation of their services from the   dates  of  their  notional  appointments  subject   to maintenance of order of ranking given by the Public  Service Commission is justified.  The Tribunal further held that the order  of ranking given by the Public Service Commission  in respect  of  directly recruited Junior Engineers has  to  be maintained and each of them will have to be treated as being entitled  to count his seniority from the date on which  his service  has  been  regularised  or from  the  date  of  the regularisation  of  the service of  the  person  immediately below  him  in  the order of ranking  given  by  the  Public Service  Commission, whichever is earlier.  In paragraph  23 of the Order the Tribunal specifically held thus:          "23. We are of the opinion that once the dates from

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        which  the directly-recruited Junior Engineers  can          claim seniority are thus fixed on the basis of this          formula,  it should not be difficult to  fix  their          inter-se  seniority vis-a-vis the  upgraded  Junior          Engineers  on  the basis of the notional  dates  of          appointment   given   to  the  latter.    In   this          connection we would like to point out that, whereas          in  the  case of an upgraded  Junior  Engineer  who          acquired  degree  qualification  before  28.2.1972,          seniority  will  have to be fixed  by  putting  him          below  all the regular Junior  Engineers  including          directly-recruited   Junior   Engineers   who   are          entitled  to claim seniority from any  date  during          the year in which such upgraded Junior Engineer has          been  given the notional date of appointment,  this          practice cannot be followed in case of an  upgraded          junior    Engineer   who   has   acquired    degree          qualification after 28.2.1972, in view of the  fact          that  the provision for fixing his seniority  below          other Junior Engineers                                                        302          of the particular year (as was made in G.O. Ms. No.          893  dated  15.6.72) was not made  in  the  amended          Rule  as issued under G.O.Ms. No. 54 dt.  15.2.1983          His  seniority will, therefore have to be fixed  on          the   basis  of  the  specific  notional  date   of          appointment  given  to  him  by  interspersing  his          name among the regular Junior Engineers as arranged          in  chronological  order of dates from  which  such          regular   Junior  Engineers   (including   directly          recruited  Junior Engineers) are entitled to  count          their seniority."      It is this part of the Order that has given rise to all these appeals before us.      The  State of A.P. being aggrieved by this Order  filed C.A. No. 752/84 and both petitioners and respondents  namely the   Junior  Engineers  directly  recruited  and   upgraded Supervisors  as  Junior Engineers are the  main  respondents before  us.   Civil  Appeal Nos. 753-54  are  filed  by  the upgraded Supervisors-Junior Engineers.  In these two matters the Junior Engineers directly recruited are the respondents. Thus  in  all these matters the  Junior  Engineers  directly recruited are the respondents.      It  is  contended on behalf of State of A.P.  that  the direction  given by the Tribunal particularly  interspersing is  not workable.  Learned counsel for the  State,  however, pointed  out that the upgraded Supervisors have put in  long years  of  service and they have been discharging  the  same duties as directly recruited Junior Engineers and that  this fact  also  has to be borne in mind in fixing  the  notional date  of appointment of the two categories officers  and  in fixing their inter-se seniority.      Shri B.Kanta Rao, learned counsel appearing for all the upgraded Supervisors-Junior Engineers contended that in G.O. Ms. No. 559 it is specifically laid down that Supervisor who have  acquired  graduate qualification may be  appointed  as Junior  Engineers  after 28.2.72 and the weightage  of  four years  should  be reckoned from the date  of  acquiring  the degree  qualification i.e. 28.2.72 or thereafter.   He  also contended  that  the seniority of the  upgraded  Supervisor- Junior  Engineers should not be fixed from the date  of  the Order  of  appointment  dated  8.8.77.   On  behalf  of  the directly  recruited Junior Engineers Shri  K.Madhava  Reddy, learned counsel submitted that the upgraded Supervisors  can under no circumstances be treated as seniors to the directly

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recruited Junior Engineers.  According to him appointment of Junior Engineers was suspended for some time and in view  of the   exigencies  the  degree-holders  were   appointed   on temporary basis and they have served for a number of  years. Later  the Government decided to make  regular  appointments and accordingly a Special                                                        303 Qualification  Test  was held and such  of  those  temporary Junior  Engineers who were degree-holders got qualified  and were given the appointments and a seniority list strictly on the  basis  of  performance in the test  and  on  merit  was prepared   by   the   Public  Service   Commission   and   a retrospective effect was given.  His further submission  was that  so far as the upgraded Supervisors are  concerned  all the relevant G.O.Ms. make it clear that the crucial date has to  be  reckoned  on  the  basis  of  the  actual  date   of appointment and not on the date of acquiring the degrees.      For  appreciating  these rival contentions  it  becomes necessary to refer to some of the G.O.Ms. particularly  with a view to arrive at the ("crucial date") in respect of  each of  these  categories  for the purpose of  fixation  of  the seniority.  In respect of upgraded Supervisors who  acquired a degree, certain G.O.Ms. were issued from time to time.  In the  year  1972  G.O.Ms. No. 893 dated  15.6.72  was  issued amending   the  special  rules  for  the  A.P.   Engineering Subordinate Service.  The same provided that Supervisors who while in service acquire B.E./A.M.I.E. degree qualification, shall  be entitled to count 50% of the service  rendered  as Supervisors  prior to the acquisition of such  qualification subject to a maximum limit of four years.  This was  subject to certain conditions.  One of the conditions was that  they should  be considered to have been placed below the last  of the Junior Engineer of the year after giving such weightage. In  the  year  1976 another G.O.Ms No. 451  (I  &  P)  dated 10.6.76  ordered  that  the  Supervisors  who  acquire   the graduate qualification while in service should be  appointed as  Junior  Engineers  with immediate  effect.   On  8.11.76 G.O.Ms.  No.815  (I  &  P) was  issued.   Clause  4  of  the Conditions stipulated in G.O.Ms. No.893 was amended and  the benefit  of  the weightage was directed to be  given  effect only   to   those   who  acquired   the   aforesaid   degree qualification  prior  to 28.2.72.  Then came  the  important G.O.Ms.  No.  559  (I & P) dated 18.7.77.   Relying  on  the contents  of  the  above G.O.Ms.  the  upgraded  Supervisors claimed that the weightage of four years should be  reckoned from  the date of acquiring the qualification and  not  from the date of actual appointment.      The  directly  recruited Junior  Engineers  also  based their  claim  on  G.O. Ms.  Ms. Nos. 451 and  559  and  they further  contended that the upgraded Supervisors  should  be treated  as  regularly appointed only with effect  from  the date of their appointment.      It may not be necessary for the purpose of this case to extract  the entire contents of the G.O. Ms.  that  preceded G.O. Ms. Nos. 451 and 559. It would suffice if we just  give the gist of those respective G.O.Ms.  Under G.O.Ms. No.  787 dated 9.6.71 the Government declared that posts of                                                        304 Junior  Engineers would be filled in by  graduate  Engineers which will be made a separate category and they will be made gazetted.   Therefore  G.O.Ms.  No.240  dated  28.2.72   was issued.  Under the said G.O.Ms. 1870 posts of Supervisors in Public  Works  Department  were  declared  to  constitute  a category of Junior Engineers and similarly in the Roads  and Buildings  Department 620 posts were declared to  constitute

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as   a  category  of  Junior  Engineer  as   distinct   from Supervisors  and  both these categories were  made  gazetted with  effect from that date.  The G.O.Ms. also provided  for temporary  appointments  in  the case  of  qualified  Junior Engineers  being  not  available for  filling  up  all  such gazetted  posts, and all these posts of Junior Engineers  in both the Departments were declared to be within the  purview of  the  A.P. Public Service Commission and  the  method  of recruitment  to  the post of Junior Engineer  should  be  by direct  recruitment.  Then came the G.O. Ms. No.  893  dated 15.6.72 amending the special rules for the A.P.  Engineering Subordinate Service under which the Supervisors who acquired the qualification were declared to be entitled to count  50% of  their service subject to a maximum limit of  four  years for  the  purpose  of promotion to  the  post  of  Assistant Engineer  from  Junior  Engineer.  G.O. Ms.  No.  782  dated 3.5.74 was issued permitting the Junior Engineers  recruited during  emergency on temporary basis to apply for  SQT  held by  the  Public Service Commission.  Accordingly  the  Rules were  amended as per G.O. Ms. No. 786 dated 7.8.74  and  the adhoc  rules were framed enabling the computation of  period of  two years with or without break in the service  rendered by such degree-holders Junior Engineers who appeared in  the SQT held by the Public Service Commission and were  declared to  be  selected and thus their  services  were  regularised retrospectively  giving them the benefit of the  service  of two  years  rendered  prior to  the  actual  selection.   In conformity  with the same Rule 33A was also relaxed for  the purpose  of  fixing  their  inter-se  seniority.   The  next important G.O.Ms. with which we are concerned is G.O.Ms. No. 451 dated 10.6.76.  It reads as under:                "GOVERNMENT OF ANDHRA PRADESH                          ABSTRACT          Establishment-Irrigation   and  Power   Department-          Appointment   of  Supervisors  who  have   acquired          Graduate Qualification as Junior  Engineers-Orders-          Issued.          Irrigation and Power (Ser.II) Department          G.O. MS. No.                   Dated: 10-6-1976          ORDER:  Consequent on the declaration of the  posts          of Junior                                                        305          Engineers  as Gazetted with effect from  28.2.1972,          the   upgradation  of  Supervisors   who   acquired          Graduate Qualification while in service, as  Junior          Engineers, ceased.  Since then representations have          been  made  to Government by  several  Associations          that the benefit of upgradation should be  extended          also  to  Supervisors  who  acquired  the  Graduate          qualification on or after 28.2.1972.          "2.   On  a  reconsideration  of  the  matter,  the          Governement are of the view that some consideration          should  be  shown  to  the  Supervisors  who   have          acquired  the  Graduate   qualification  while   in          service.   Accordingly the Government have  decided          that   the   Supervisors  in   P.W.    (Irrigation)          Department who have acquired Graduate qualification          while in service should be appointed temporarily as          Junior  Engineers  (Prospectively)  with  immediate          effect.          The  Chief Engineer (General) is requested to  take          action   accordingly,   Orders   regarding    other          consequential matters will issue separately.      (BY ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.)                                       M. GOPALAKRISHNAN,

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                               SECRETARY TO GOVERNMENT "      Under  this  G.O.  Ms. it is  proposed  to  extend  the benefit  of  upgradation  to Supervisors  who  acquired  the graduate  qualification on or after 28.2.72 but  the  second para makes it clear that they should be appointed temporarily as Junior Engineers and that too prospectively only.      The  next  and the important G.O.Ms.  is  No.559  dated 18.7.77 which reads as under:             "GOVERNMENT OF ANDHRA PRADESH                      ABSTRACT          ESTABLISHMENT-Irrigation & Power Department          Appointment  by  transfer of Supervisors  who  have          acquired  Graduate  qualification  from   28.2.1972          onwards as Junior Engineers-Further orders-Issued.                                                        306          IRRIGATION & POWER (SERVICE-III) DEPARTMENT G.O. Ms. No.559                      Dated 18th July, 1977                          Read the following:-           G.O.  Ms.  No.451, Irrigation  &  Power  (Ser.III)           Department, dated 10.6.76. ORDER:      It was ordered in the G.O., cited that the  Supervisors in  the  Public  Works (Irrigation)  Department,  should  be appointed  temporarily as Junior  Engineers  (Prospectively) with  immediate effect.  It was also indicated therein  that orders  regarding  other consequential matters  would  issue separately.          2.  Accordingly,  matters  relating  to  weightage, seniority,  etc., have been examined by the  Government  and the following orders are issued:-          (i) Supervisors who acquire Graduate  qualification          may  be appointed as Junior Engineers on  or  after          28.2.1972, subject to the availability of vacancies          in the cadre of Junior Engineers.          They will not be entitled for appointment as Junior          Engineers   automatically   from   the   date    of          acquisition of degree qualification;          (ii)  A  Supervisor,  who is  appointed  as  Junior          Engineer,  shall be entitled to count 1/3rd of  the          service  rendered by him as Supervisor, before  his          appointment  as  Junior  Engineer,  subject  to   a          maximum of four years, for the purpose of computing          the  service as Junior Engineer, which will  render          him  eligible  for consideration for  promotion  as          Assistant Engineer.          (iii)  The  seniority of the Supervisors,  who  are          appointed as Junior Engineers, shall be fixed  with          reference  to  the notional date arrived  at  after          giving weightage of service;          (iv)  A  Supervisor,  who is  appointed  as  Junior          Engineer,  shall  put in a minimum service  of  one          year  as  Junior Engineer to  become  eligible  for          promotion as Assistant Engineer;          (v) No Supervisor shall ordinarily be eligible  for          appointment as Junior Engineer unless he has put in          a minimum service of three years as Supervisors.  A          Supervisor  with less than three years of  service,          who is appointed as Junior Engineer for any special          reason, shall not be entitled to any weightage  for          his past service.                                                        307 3.  Necessary amendment to the Special Rules for the  Andhra Pradesh Engineering Service will be issued separately.   The Transport,   Roads   &   Building/Panchayati    Raj/Housing, Municipal Administration & Urban Development Department will

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issue  amendments to the Special Rules with which  they  are concerned   in  accordance  with  the  above  decisions   in consultation   with  the  Andhra  Pradesh   Public   Service Commission. 4. The cadre strength of Junior Engineers was last fixed  in G.O.Ms.  No.  240,  Public  Works  (VI)  Department,   dated 28.2.1972.   Since  then a large number of posts  of  Junior Engineers/Supervisors  have been sanctioned  by  Government. The   Chief  Engineer  (General)  is  requested  to   submit proposals  for  suitably enhancing the strength of  the  two orders.      (BY ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.)                                       M. GOPALAKRISHNAN,                                SECRETARY TO GOVERNMENT."      G.O. Ms. No. 451 is referred to in this G.O.Ms. and  in the  Preamble it is clearly noted that the  appointments  of the  upgraded  Supervisors  as Junior  Engineers  should  be temporary and prospectively only.  In Paragraph 2 (i) it  is also  made abundantly clear that they will not  be  entitled for  appointment as Junior Engineers automatically from  the date of acquisition of degree qualification.  Coming to  the weightage it is clarified in paragraph 2 (ii) to the  effect that a Supervisor who is appointed as Junior Engineer  shall be entitled to count 1/3rd of the service rendered by him as Supervisor,  before  his  appointment  as  Junior  Engineer, subject  to  a maximum of four years and the same  would  be taken  into  account to render the  appointee  eligible  for consideration   for   promotion   as   Assistant   Engineer. Paragraph 2 (iii) is very important regarding the  seniority and the same has to be fixed with reference to the  notional date arrived at after giving weightage of service, Paragraph 2 (v) gives a clue that the weightage could be from the date of appointment.  The Government, however, issued proceedings dated  8.8.77  and  fixed the seniority  of  these  upgraded Supervisors  who acquired the degree qualification from  the date  of acquiring the degree.  We have already  noted  that vide G.O. Ms. No. 893 the special rules were amended.  After the  G.O. Ms. No. 559 was issued, representations were  made by  the  Association of Andhra Junior Engineers as  well  as from  the  Diploma-holders  Engineers  Association.   Having considered  these representations, the Government  came  out with  another G.O. Ms. No. 593 dated 29.7.77  and  clarified that  the  rules only refer to the date of  appointment  and does  not  refer to selection and that the seniority  of  an individual or a class or category has to be fixed  according to the date of his first                                                        308 appointment and not with reference to the date of  selection and  the Chief Engineer (General) was requested to  fix  the seniority  accordingly.  The Chief Engineer  (General)  Vide proceedings  No. Rc. Gel. MI/58062/74-75 dated 8.8.77  fixed the  seniority.   But in doing so he has taken the  date  of passing the examination by the upgraded Junior Engineers  as the date of appointment.  As already noted this fixation  of seniority was questioned before the Tribunal.      From  the above resume of all the G.O.Ms. it  is  clear that an interpretation of G.O. Ms. No. 559 would be decisive in the these matters.      In  our view the G.O. Ms. No. 559 makes  it  abundantly clear  that the appointments of these  upgraded  Supervisors who  acquired the graduate qualification while  in  service, would be prospective only and that they would be entitled to the  weightage of four years of service rendered before  the appointment.   The G.O. Ms. does not anywhere indicate  that the  weightage  should  be from the date  of  acquiring  the

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degree  qualification.  It must be borne in mind that it  is only  after  acquiring  such  degree  qualification  that  a Supervisor is appointed as Junior Engineer and having regard to  the service rendered by him the Government as  a  policy decided  to give weightage of four years for the purpose  of considering  the  eligibility  for  promotion  as  Assistant Engineer.  In this context it is pertinent to note that  the degree-holders  were appointed temporarily because of a  ban and later the Government again as a policy decision  decided to  make  regular  appointments by  direct  recruitment  but enabled  the degree-holders who are in temporary service  to appear in a SQT.  Again as a matter of policy the Government decided  to give some weightage to the service  rendered  by them  before the appointment by selection.  It can  thus  be seen  that  the Government in fixing the seniority  for  the purpose  of  future  promotion of the  appointees  both  the upgraded  as  well as those selected by the  Public  Service Commission  in SQT has taken into account the  past  service rendered by them.  In the case of upgraded Junior  Engineers weightage  of four years’ service is given and in the  other case  two years’ weightage is given.  In this context it  is contended  on behalf of the upgraded Junior  Engineers  that the   regularisation   of  the   direct   Junior   Engineers retrospectively that is with effect from two years prior  to the  date  of their appointments is  unwarranted.   In  this context the Tribunal has rightly pointed out that under Rule 23-A  of the A.P. State and Subordinate Service Rules,  1962 if a person having been appointed temporarily under Rule  10 to  a post borne on the cadre is subsequently  appointed  in the service in accordance with the rules he shall commence his probation from such subsequent date or the earlier  date as  the appointing authority may determine.  We  agree  with the  Tribunal  that  there is no bar  to  the  retrospective regularisa-                                                        309 tion  of  the  service  of  the  direct  Junior   Engineers. However, in the instant case, it was a special selection  by SQT  restricted to the directly recruited  Junior  Engineers who had put in two years of service and the objective was to regularise  their services.  As stated supra as a matter  of policy the Government gave weightage to both the categories. In  Devi Prasad and others v. Government of  Andhra  Pradesh and  others.  AIR 1980 SC 1185, G.O. Ms. No.893 referred  to above  was questioned on the ground of  unreasonableness  in the matter of giving weightage to the upgraded  supervisors. This Court held that in the light of their experience  there is  nothing unreasonable in giving them limited  benefit  or weightage.  It was further observed as under:          "Ultimately; it is a matter of Government policy to          decide  what weightage should be given  as  between          two  categories  of Government  servants  rendering          somewhat  similar kind of service.  In the  present          case,  there  may  be  truth in  the  case  of  the          appellants  that they are hit hard because  of  the          new rule.  Dr. Chitale tried to convince us of  the          hardship  that  his clients sustain  consequent  on          this  rule  and weightage conferred  thereby.   But          mere  hardship  without anything arbitrary  in  the          rule  does  not  call  for  judicial  intervention,          especially  when it flows out of a policy which  is          not basically illegal.  However, Government must be          interested  in  keeping its servants  specially  in          strategic  areas  like  engineering  contended  and          efficient.   In  so producing contentment,  it  may          have  to  evolve a flexible policy which  will  not

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        strike  a group as inflicting hardship on them.   A          sense of justice must permeate both the groups."      However,  the upgraded Junior Engineers who having  got the  benefit of four years’ service cannot be heard  to  say that  similar  weightage  cannot  be  given  to  the  direct recruits  who  prior  to  the  selection  were  working   on temporary basis.      Shri Kanta Rao, learned counsel relied on the decisions of this Court in Smt. M.Nirmala and other v. State of Andhra Pradesh  and others etc., [1986]3 SCC 647; Ashok Gulati  and others v. B.S. Jain and others., [1986] Supp. SCC597; Direct Recruit Class II Engineering Officers’ Association v.  State of Maharashtra and others, [1990] 2SCC 715 and Masood Akhtar Khan  and  others  v. State of Madhya  Pradesh  and  others, [1990] 4 SCC 24 and contended that both the categories  were discharging  the  same duties and there should  not  be  any discrimination.      Learned   counsel  also  relied  on   some   unreported judgments  of  the  Andhra  Pradesh  High  Court  in    writ Petitions Nos. 1929, 1006 and 2387/                                                        310 73  and also Writ Petitions Nos. 3897/72.  We  have  perused all  these  judgments  and we are of the view  that  such  a question  did not arise in these cases.  The question to  be considered  is from which date the weightage of four  years’ service  should be given to the upgraded   Junior  Engineers namely  the  Supervisors.  Is it the date of  acquiring  the degree  qualification  or  the date  of  their  appointment? Having  given our earnest consideration and for the  reasons stated  above we hold that the weightage can be  given  only from the date of their appointment.      The  Tribunal  in  the course of  its  order,  however, observed  that  in accordance with the  existing  rules  the appointments  of  these Junior Engineers from  the  notional date have to be cleared by the Public Service Commission and the  appointments cannot be held to be regular  appointments as  long  as  they are not approved by  the  Public  Service Commission.   Having referred to the Rules, the Tribunal  in paragraph 18 observed thus:          "We thus find that the appointment of the  upgraded          JEs as well as the direct JEs to the Gazetted posts          have not been made strictly in accordance with  the          Rules   and,  hence,  it  is  necessary   for   the          Government to issue specific orders after following          the procedure laid down in the Rules, in regard  to          their  appointment to the Gazetted post of  ‘Junior          Engineers."      Having so observed the Tribunal suggested some  working formula  in  the meanwhile.  In evolving  this  formula  the Tribunal further held thus.          "Thus, after having examined the points raised  for          and  against the action taken by the Government  in          giving the upgraded Junior Engineers the benefit of          the notional dates of appointment given to them and          in  giving the direct Junior Engineers  benefit  of          the  dates of the regularisation of their  services          from the dates of their initial appointment subject          to  the maintenance of the order ranking  given  by          the  P.S.C., we feel that the Government action  in          this respect was quite justified."      Towards  the end the Tribunal, however,  observed  that the seniority of the upgraded Junior Engineers who  acquired the  degree  qualification before 28.2.72 will  have  to  be fixed   by  putting  them  below  all  the  regular   Junior Engineers.   Likewise  those who have  acquired  the  degree

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qualification after 28.2.72 their seniority have to be fixed on   the   basis  of  notional  date   of   appointment   by "interspersing"  among  the regular Junior  Engineers.   The learned  counsel for the State of A.P. submitted  that  this exercise  of  "interspersing"  becomes  impossible  at  this stage.                                                        311      Having given our careful consideration particularly  to the fact that this litigation has been pending for the  last so  many years, about two decades.  We feel that it is  high time  a  finality  has  to  be  reached  by  resolving   the controversies  and in this context we are of the  view  that the approval of the Public Service Commission in respect  of these appointments need not be sought, if the Government has not  already  obtained the approval of  the  Public  Service Commission.  To sum up, our conclusions are as under:          (i)  The  weightage  of four years  in  respect  of          upgraded  Junior Engineers as provided in G.O.  Ms.          No.  559  has  to  be reckoned  from  the  date  of          appointment and not the date of their acquiring the          degree qualification;           (ii)  On  the basis of that notional  date,  their          inter-se seniority has to be fixed;          (iii)  The  regularisation  of  the   degree-holder          Junior  Engineers  who  passed the  SQT  by  giving          retrospective effect cannot be held to be  illegal,          and  their  seniority  among  themselves  shall  be          subject to the order of ranking given by the Public          Service Commission on the basis of the SQT;          (iv)   The  Government  shall  prepare   a   common          seniority   list  of  the   degree-holders   Junior          Engineers and the upgraded Junior Engineers on  the          above  lines and that list shall be the  basis  for          all the subsequent promotions.  Promotions, if any,          already  given shall be reviewed and readjusted  in          accordance with the said seniority list; and           (v) The approval of the Public Service  Commission          in   respect  of  these  appointments   and   their          seniority  thus  fixed need not be sought  at  this          distance of time.      Accordingly Civil Appeal Nos. 752-55/84 are disposed of as  per the directions given above.  There will be no  order as to costs.      S.L.P.(C) No. 5218/85:      This  Special Leave Petition arises out of  a  separate order passed by the A.P. Administrative Tribunal in R.P. No. 1473/80.  The petitioners before the Tribunal belong to A.P. Panchayati  Raj Engineering Department in Zone No. 1.   They are all graduates in Civil Engineering and were  temporarily appointed as Junior Engineers originally in the Public Works Department in 1969.  Their services were terminated for want of vacancies.  However, during the year 1973 they were again appointed in the A.P. Panchayati Raj Engineering Department. They also appeared in the Spe-                                                        312 cial  Qualifying Test and they were selected by  the  Public Service Commission and they were appointed as regular Junior Engineers.  They commenced their probation.  The respondents before the Tribunal were appointed as Supervisors and  after they acquired the degree qualification they were  designated as  Junior Engineers.  The grievance of the petitioners  was that  the  respondents  could not have been  put  above  the petitioners  in the matter of seniority and their  seniority should  have been reckoned from the date of their  acquiring the graduate qualification.  G.O. Ms. No. 422 issued by  the

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Department declaring them as seniors to the petitioners, was specifically  questioned before the Tribunal.  The  Tribunal held  that the impugned G.O.Ms. is vitiated firstly  on  the ground that the principles of natural justice have not  been observed  and  secondly  that  the  petitioners  before  the Tribunal who were the direct recruits and who were  selected by the Public Service Commission after holding the SQT,  are entitled  to  count their service in the ranking  of  Junior Engineers from the date of their appointment subject to  the order  regarding  the maintenance of ranking  given  by  the Public  Service Commission.  The said order of  Tribunal  is questioned  in this Special Leave Petition by  the  upgraded Junior  Engineers  who  were  the  respondents  before   the Tribunal.  In this petition also the grounds raised are  the same  as  in Civil Appeal Nos.  752-55/84.   The  conclusion reached by us in the above matters also govern the points in this  petition. Accordingly this Special Leave  Petition  is disposed of in terms of the directions given in Civil Appeal Nos. 752-55/84. There will be no order as to costs.      W.P. (C) No. 3566/85:      This  Writ  Petition is filed under Article 32  of  the Constitution  of  India.  The petitioners are  all  upgraded Junir Engineers of A.P. Panchayati Raj Engineering  Service. They  have  questioned G.O.Ms. No. 376/84 under  which  some promotions were made on the basis of the inter-se  seniority list  of the direct recruits and upgraded Junior  Engineers. The  conclusions  reached by us in Civil Appeals  Nos.  752- 55/84  also govern the points raised in this Writ  Petition. Accordingly  the Writ  Petition is disposed of in  terms  of the directions given in Civil Appeals Nos. 752-55/84.  There will be no order as to costs. G.N.                                    Matters disposed of.                                                        313