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PETITIONER: VASANT KUMAR JAISWAL

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT08/09/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2322            1988 SCR  (1)  73  1987 SCC  (4) 450        JT 1987 (3)   550  1987 SCALE  (2)509  CITATOR INFO :  APL        1989 SC 278  (22)

ACT:      Service matter-Seniority  on the  basis  of  length  of service-Determination of-In  the absence  of  any  statutory rule  or   executive  memorandum   or  order   relating   to determination of seniority.

HEADNOTE:      This was  an appeal  against the  judgment and order of the High  Court of  Madhya Pradesh, which in accordance with the well-settled  principle laid  down by this Court as also the High  Court, held  that in  the absence of any statutory rule or  executive memorandum  or order laying down the rule for determination  of seniority  in a grade, the normal rule applicable would  be to determine the seniority on the basis of length of service.      Disposing of the Appeal, the Court, HELD: Counsel  for the  appellant contended  that there were two rules  in the  case being Rules 12 (b) and 12 (c) of the M.P. Civil  Services (General Conditions of Services) Rules, 1961, which  governed the  case. In  the proper perspective, these two  rules did  not apply in this case. The High Court was right  in the view it took in the matter. This Court was unable to sustain the reasoning and view of the Single Judge of the  Madhya Pradesh  High Court  in Umeshnarayan Mishra & ors. v. The State of M.P. & Ors. in Civil Misc. Petition No. 181 of 1983. [74C; 75F]      In  view   of  the  short  length  of  service  of  the appellant, if  the  appellant  made  a  representation,  the respondent would  consider the  same in  the  light  of  the principles of law and equity. [75G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 189 of 1987.      From the Judgment and order dated 21st January, 1985 of the Madhya  Pradesh High Court in Misc. Petition No. 1657 of 1984.

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    V.A. Bobde, and D.N. Mishra for the Appellant. 74      T.C. Sharma for the Respondent.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. Special leave granted.      This is an appeal against the judgment and order of the High Court  of Madhya  Pradesh which  in accordance with the well settled  principle of this Court as also the High Court held that  in the absence of any statutory rule of executive memorandum or  order laying  down the rule for determination of seniority in a grade, the normal rule applicable would be to determine  the  seniority  on  the  basis  of  length  in service. Counsel  for the  appellant contends  that  in  the instant case  there were  two rules being 12(b) and 12(c) of the M.P.  Civil Services  (General Conditions  of  Services) Rules 1961 governing the case. These rules read as follows:-           "(b). Promoted Government Servants:           A promoted  Government  servant  shall  count  his           seniority from the date of his confirmation in the           service to which he has been promoted and shall be           placed in the gradation list immediately below the           last confirmed  member of  that service  but above           all the probationers.                Provided that  where  two  or  more  promoted           Government servants are confirmed with effect from           the  same  date  the  appointing  authority  shall           determine their  inter-se-seniority in the service           in which  they are  confirmed, with  due regard to           the order in which they were included in the merit           list,  if   any  prepared  for  determining  their           suitability  for  promotion,  and  their  relative           seniority in  the lower  service from  which  they           have been promoted.           (c) Officiating Government Servants:-           The  inter-se-seniority   of  Government  servants           promoted to  officiate in  a higher  service or  a           higher category  of posts  shall during the period           of their  officiation, be  the same  as that  in .           their substantive service or grade irrespective of           the dates  on which they began to officiate in the           higher service or grade; Provided that- 75           (i)  If they  were selected for officiation from a                list in  which  A  the  names  of  Government                servants considered  suitable for trial in or                promotion to the higher service or grade were                arranged in  order of  merit. Their inter-se-                seniority shall  be determined  in accordance                with the order of merit in such list;           (ii) the  seniority   of   a   permanent   servant                appointed to  officiate in another service or                post by transfer shall be determined adhoc by                the appointing authority;                Provided that  the seniority  proposed to  be           assigned  to  such  Government  servant  shall  be           determined and  intimated to  him in  the order of           appointment; C           (iii)     where a  permanent Government servant is                reduced to a lower service, grade or category                of posts, he shall rank in the gradation list                of the  latter service,  grade or category of                posts above  all the  other in that gradation                list  unless   the  authority  ordering  such                reduction by  a  special  order  indicates  a                different position  in the gradation list for

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              such reduced Government servant,           (iv) where an  officiating Government  servant  is                reverted to this substantive service or posts                he shall  revert  to  his  position  in  that                gradation list  relating to  his  substantive                appointment  which  he  held  before  he  was                appointed to  officiate in  the other service                or post." In the  proper perspective  these two  rules do not apply in this matter.  In that  view of  the matter  we  are  of  the opinion that the High Court was right. We are unable in this connection to  sustain the  reasoning and the view expressed by the  learned Single Judge of the said High Court in Civil Misc. Petition  No. 181 of 1983-Umeshnaryan Mishra & ors. v. The State of M. P. & ors.      In the  aforesaid view  of the  matter we  are  of  the opinion that  the High  Court is  right  in  dismissing  the petition under appeal and the view it took was correct.      In  view   of  the  short  length  of  service  of  the appellant, if  the appellant  makes  a  representation,  the respondent in  the light of the principles of law and equity will consider such representation.      The appeal is disposed of accordingly. S.L.                                     Appeal disposed of. 76