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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: PURSHOTTAM & ORS.

DATE OF JUDGMENT:       07/05/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAY, G.N. (J)

CITATION:  JT 1996 (5)    30        1996 SCALE  (4)385

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK. J.      Leave granted.      This appeal  by special  leave is  directed against the Order dated  25.10.1994 of  the  Maharashtra  Administrative Tribunal, Nagpur  Bench in  Transfer Application  No. 743 of 1992.      The respondents  1 to 4 herein were appointed as Junior Engineers on  work charged  establishment on different dates by concerned  Superintending Engineers  of the Circle. Later on they  were appointed  as Junior  Engineers in the regular establishment on  different dates.  There is no dispute that those respondents  had the minimum educational qualification for being  appointed as  Junior  Engineers  in  the  regular establishment. They filed a writ petition in the Bombay High Court claiming that their duties and responsibilities on the work  charged   establishment  being   the  same  as  Junior Engineers on  regular establishment,  the period  of service rendered  by  them  as  Junior  Engineers  on  work  charged establishment should  be counted  for their  seniority after they have  been absorbed in the regular establishment. After their  absorption,   when  the   seniority  list  of  Junior Engineers was  published in  respect of  Junior Engineers on regular establishment  upto 31.3.1980  as well as in respect of Junior  Engineers on regular establishment for the period 1.4.1980 till  31.3.1982, the  names of  the respondents did not find place, obviously because of the fact that they have been absorbed  in regular  establishment,  after  31.3.1982, they approached  the High Court. While the writ petition was pending,  the   Administrative  Tribunal   Act  having  been enforced  and  State  Administrative  Tribunal  having  been constituted,  the   petitions  stood   cransferred  to   the Tribunal. Before the Tribunal the respondents contended that the Government  having passed  Resolution  that  the  Junior Engineer having  work charged  service to his credit, should be assigned  "deemed date"  which should be one day prior to

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the date  on which  his immediate  Junior  on  work  charged establishment or  from open market was taken or appointed on regular temporary  establishment in  the  same  circle,  the services rendered on work charged establishment is therefore to be  counted for  the  purpose  of  seniority  on  regular establishment and  the authorities therefore committed error in not  granting them the said relief. It was also contended that the  relevant instructions  of the  Resolutions of  the State Government  dated 15.2.1977  and 19.3.1977  whereunder the services  rendered on  work charged establishment though is counted  for the  seniority of the employee at the Circle level but  the same  is  not  counted  for  the  purpose  of seniority of the employee in the State level and there is no reasonable nexus for making such differentiation and as such the Resolutions  are discriminatory  and  should  be  struck down.      The stand  of the  State Government before the Tribunal on the other hand was that the posts of Junior Engineers are posts in Class III cadre and such appointees within a Circle constitute  the   cadre.  The  appointment  of  such  Junior Engineers  within  Circle  is  made  by  the  Superintending Engineer both  in work  charged establishment  as well as in regular establishment. Though the work charged establishment is  a   completely  different   cadre   from   the   regular establishment and  the services rendered in the work charged establishment could  not have  been taken  into account  for determination of  seniority in the regular establishment but to  ameliorate  the  hardships  caused  in  such  cases  the Government had  passed the Resolutions in question. But when the question  of promotion  to the  post of  Sub  Divisional Engineer arises,  the same is considered from the state wise list of  Junior Engineers  maintained, as  the post  of  Sub Divisional  Engineer  is  a  state  cadre.  This  being  the position, question  of considering  the services rendered in the work  charged establishment  by an employee before he is absorbed in the regular establishment for the purpose of his seniority does  not arise and the two Government Resolutions cannot be  held to be arbitrary in any manner. The Tribunal, however, on  consideration of the rival stand of the parties and having come to the conclusion that the Resolutions dated 15th of  February, 1977  and 19th  of  March,  1977  of  the Government of  Maharashtra in  the Public  Works and Housing Department  are   violative  of   Article   16(1)   of   the Constitution, directed that the said Resolutions should also apply for drawing the seniority list at the state level. The Tribunal, therefore, called upon the State Government to re- draw the seniority list of Junior Engineers.      The learned counsel for the appellant contends that the work charged  establishment being  completely different from the regular  establishment and  employees working  under the work charged  establishment forming  a cadre  of  themselves completely different  from the  employees serving  under the regular  establishment,   the  services   rendered  by  such employees under the work charged establishment by no stretch of imagination  could be considered for his seniority in the regular establishment  and in  this view  of the  matter the impugned order  of the  Tribunal is  wholly  erroneous.  The learned counsel  further urged that the so called Government Resolution  merely  confers  the  benefit  of  counting  the services rendered  in a  work charged  establishment for the purpose  of   seniority  within  the  Circle  but  the  said seniority thus  determined is  not to  be reflected  in  the seniority drawn up at the State level and the impugned order of the  Tribunal is  vitiated The  learned counsel  for  the respondents on the other hand contended that even though the

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Junior Engineers within a Circle constitute a cadre but when promotion to  the post  of Sub-Divisional  Engineer is  mace from amongst  those Junior  Engineers and for that purpose a State wise seniority list of Junior Engineers is maintained, it would be wholly unreasonable to maintain the said list on the basis  of their  absorption in the regular establishment even though  by virtue  of the  Resolution of the Government they have  already acquired  a deemed  date of absorption in the regular  establishment  by  taking  into  account  their services   rendered    as   work    charged   establishment. Consequently, it  was contended  that the  Tribunal  rightly directed to  take the Resolution into account for drawing up the seniority  list of  the Junior  Engineers in  the  State Gradation List  and there  is no infirmity with the same. It was also  contended  that  an  employee  after  having  been absorbed  in  the  cadre  of  Junior  Engineers  in  regular establishment cannot  have two  different seniority  one for the purpose  of the  circle and the other for the purpose of the State Cadre and such determination would be violative of Article 16 of the Constitution.      At the  outset, it  may be  stated that  a work charged establishment means  an establishment of which the expenses, including  the  wages  and  allowances  of  the  staff,  are chargeable to  "works". The  pay and allowances of employees who are  borne on a work charged establishment are generally shown as  a separate  sub-head of  the estimated cost of the work. The  work charged  establishment employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their  services automatically  come to an end on the completion  of the  works for  the sole purpose of which they are  employed. The character and nature of their tenure has been  fully discussed  by this  Court  in  the  case  of Jaswant Singh  and others  etc. etc., vs. Union of India and others, (1979)  4 SCC  440. In the service jurisprudence the expression ’cadre’  means the  unit of strength of a service or a part of it as determined by the employer. And it is too well settled  that services  rendered by  an employee in one cadre cannot  be taken  into  account  for  determining  the seniority in  another cadre unless by any rules of seniority this  privilege  is  conferred.  This  being  the  position, ordinarily the  services rendered  by an  employee in a work charged establishment  is not  to be  taken into account for his seniority in the regular establishment particularly when the tenure  in  the  work  charged  establishment  is  of  a precarious nature  and it  automatically  ceases  after  the project is over. The normal rule of seniority is the date of entry into  the  cadre  or  the  position  obtained  in  the examination when  appointment is  made  by  and  competitive examination.  Therefore,  in  the  present  case  ordinarily seniority would  have been  determined on  the basis  of the date  of   absorption  of   the  employee   in  the  regular establishment, but  the State  Government itself  has passed the Resolution  deciding a  deemed date of absorption of the employees  who  were  initially  recruited  in  the  charged establishment  and   later  on   absorbed  in   the  regular establishment.  Therefore,   the  Government  itself  having passed  the   Resolution  determining  the  deemed  date  of absorption the  said date  has to  be taken into account for reckoning seniority.  The Government  of Maharashtra  in the Public Works and Housing Department by its Resolutions dated 15th of  February, 1977  and 19th  of February, 1977 decided that a  Junior Engineer  having work  charged service to his credit should  be assigned  a "deemed  date" which should be one day  prior to  the date on which his immediate junior on

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work charged establishment or from open market was appointed on regular  temporary establishment in the same Circle. This deemed date  obviously is  the deemed  date of absorption in the regular  establishment and  on the  basis of that deemed date the  seniority of the Junior Engineers in the Circle is maintained. It  is undisputed that the promotion to the post of Sub-Divisional Engineer, which is Class II post and is in the State  Cadre is  made from amongst the Junior Engineers. The questions therefore. arises for consideration is whether it is  open for the employer to maintain a seniority list of Junior Engineers  of different Circles on the basis of their actual date  of absorption  in regular establishment and not on the basis of their deemed date of absorption and consider promotion on that basis? The answer must be in the negative. the promotion to the post of Sub-Divisional Engineer is made according to  a set  of Rules called the Maharashtra Service of Engineers,  Class I  and Class II Cadre Rules. Under Rule 13(c) of  the said  Rules, appointments to the cadre of Sub- Divisional Engineers  is  made  by  promotion  from  amongst Junior Engineer  graduates from  the Subordinate  Service of Engineers. Under  Rule 15,  a  person  to  be  eligible  for promotion to  the post  of Sub-Divisional Engineer must have rendered 3  years of  minimum service  as a Junior Engineer. Under  Rule  16(a),  the  promotion  to  the  post  of  Sub- Divisional Engineer  is made  by a  selection from the State wise seniority  list of  Junior Engineers  maintained by the Irrigation   and   Power   Department   and   Building   and Communications Department,  separately.  But  the  Rules  is totally silent  as to  how the  State wise seniority list of Junior Engineers  will be  drawn up. In other words, it does not stipulate  that the  State wise seniority list of Junior Engineer will  be drawn  up on the basis of their respective dates of  absorption/employment  as  a  Junior  Engineer  in regular establishment  or on  the basis  of the  deemed date which is  to  be  determined  in  accordance  with  the  two Government Resolutions  referred to  earlier. In the absence of any  specific provision  it would  be only  reasonable to construe that  the State  wise  seniority  list  has  to  be prepared on  the basis of seniority list already prepared in the Circle  indicating the  respective deemed  dates of each such Junior Engineer. The counsel for the appellant no doubt is fully  justified in  raising the  contention that the two Government Resolutions  having been  specifically meant  for drawing up of the seniority list in the Circle, the Tribunal erred in  law in  directing to draw up the seniority list by giving the benefits of those Regulations in question. But as has been  stated earlier, in the absence of any provision in the Recruitment  Rules the  seniority  list  of  the  Junior Engineers when  is prepared under Rule 16(a) for the purpose of giving  promotion to  the post of Sub-Divisional Engineer the same  should be made taking into account the deemed date of each of the Junior Engineer in the Circle and prepare the State wise seniority list.      In the  aforesaid circumstances,  we would  modify  the direction given  by the  Tribunal to  the  effect  that  the appropriate  authority   should  prepare   the  State   wise seniority list  of Junior  Engineers under Rule 16(a) of the Maharashtra Service of Engineers, Class I and Class II Cadre Rules by  taking into  account the  deemed date of each such Junior  Engineer  in  the  respective  Circles  and  not  by ignoring the said deemed date which is found by applying the two Government  Resolutions referred  to earlier. Subject lo the aforesaid  observation the  appeal is  dismissed, but in the circumstances there will be no order as to costs.

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