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PETITIONER: VIJAYA KUMAR SHROTRIYA

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       13/02/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The short  question raised is, whether the appellant is entitled to  the benefit  of his earlier service rendered in the Irrigation Department for his promotion and seniority in the Public  Works Department  (PWD). The  foundation for the impugned order  dated 19th  August, 1993, is the decision of the High  Court in  Gokaran Singh  v.  State  of  U.P  (Writ Petition  No,   4396  of  1990),  in  which  the  appellant, admittedly, was  not a  party wherein  it was  held that the benefit for the said earlier period was not admissible.      On 25th August, 1962, the appellant was appointed on ad hoc  basis   as  Assistant   Engineer  in   the   irrigation Department. In  September, 1962,  interview was  held in the combined  services   of  Uttar  Pradesh  for  the  posts  or Assistant  Engineers   in  Public   Works  Department  (PWD) Irrigation Department by the U.P. Public Service Commission. The appellant was recommended at Sl. No.55. In view of this, he was  allotted the  Public Works Department. On 29th July, 1963, the  Public Works  Department approved the appellant’s appointment and  indicated the  appellant’s merit at Sl. No. 21. On  8th August,  1963, the  Chief Engineer,  PWD, issued letter of  his appointment.  However, the  appellant was not relieved  by  the  Irrigation  Department,  inspite  of  his consent earlier to join PWD through a letter dated 10th May, 1963. So, he continued to work in the Irrigation Department. In 1965,  another competitive  examination was  held by  the said Commission  for substantive  permanent vacancies in the Public Works  Department. On  13th  September  ,  1967,  the appellant was  again selected  and appointed  through letter dated  23rd  November,  1967.  On  1st  January,  1968,  the appellant joined  the post  of Assistant  Engineer  in  PWD. Subsequently, on  10th October,  1968, appellant’s  case is, that he  was transferred  from the  Irrigation Department to the PWD.  By means  of Government  Order dated 19th October, 1968, it was directed that Assistant Engineers in the Public Works, Irrigation and L.S.B.E. Departments, who came through competitive examination  and are  working in any of the said Departments, if allocated to any such other department, they would be deemed to have been transferred from one department to the  other. In  June, 1972, the appellant was promoted to

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the post  of Executive Engineer, PWD. This was only possible by  accepting   the  earlier   service  in   the  Irrigation Department, since after the selection through Public Service Commission in  the year 1962. Admittedly this appointment by promotion was  not challenged.  It is  urged, later when the question of the appellant’s appointment to the post of Super intending Engineer  came up for consideration, his right was ignored on  the same  basis, viz. absence of minimum request to period  in the  PWD. This issue if at all could have been raised when  he was  promoted as Executive Engineer in 1972. To raise  it now  after the  being  Executive  Engineer  for twentyone years  is neither justifiable nor valid. It is not in dispute  if his  service in  the Irrigation Department is taken  into   consideration,  he   is  qualified  for  being appointed as such. Aggrieved by this the appellant filed his Claim Petition  before the  U.P. Public Service Tribunal. On 22nd June,  1992 the Tribunal allowed the Claim Petition and directed  the   respondents  to   consider  posting  of  the appellant as  Superintending Engineer  on the  basis of  the service records  as that  existed on  1st December, 1962. It also held  that the  basis of  such placement  would also be merit list  of 1962  issued by the Public Service Commission and  thus   the  appellant   would  be   entitled  to  other consequential benefits. Accordingly, the Government by order dated 20th  February, 1993 fixed his seniority at serial No. 319A. It,  however, recorded  that this  would be subject to the  orders  of  the  higher  courts  where  the  matter  of finalisation  of   the  principles  of  seniority  is  still pending. As aforesaid, the decision then came in the case of Gokaran Singh  (supra). The  High Court  in that  case  with reference to  the case  of P.D.Aggarwal  & Ors.  v. State of U.P. & Ors.: (1987) 3 SCC 622 held in the matter of inter se dispute, a claim of seniority by a person could only be from the date  he becomes member of that service. In other words, it would  be from  the date  one  joined  the  Public  Works Department from  the Irrigation  Department. In  the case of appellant, it  would only  be when  he joined PWD after 1965 selection.  Any  period  prior,  would  not  be  admissible. Further the  Government itself  treated such  cases and  the appellant’s  case   to  be  a  case  of  transfer  from  the Irrigation Department  to the  Public Works  Department  for valid reason.  The reason  was that  for no  fault  of  his, inspite of being selected in 1962 on account of for a public cause he  was not  relieved from  the Irrigation Department. Hence, the said period has to be computed.      The appellant  referred to the letters dated 18th June, 1963, of  the  Chief  Engineer,  Irrigation  Department  and letter dated  15th September, 1963 of the Joint Secretary to the Government of Uttar Pradesh to bring home his point that the appellant  was not  relieved  in  1963  from  Irrigation Department in  public interest. Inspite of all this, on 19th August, 1993,  the appellant  was served  with a  letter  by which the  State  of  U.P.  withdrew  its  earlier  decision conferring  higher  seniority  to  the  appellant.  On  23rd August,  1993,  respondents’  impugned  order  excluded  the appellant from  the promotion  to the post of Superintending Engineer and  his junior  was  promoted.  This  led  to  the filling of the Writ Petition in the High Court in September, 1993 for  quashing the  aforesaid order  dated 19th  August, 1993 and  for directions  to the  respondent to maintain his seniority at Serial No. 319A and promoted him to the post of Superintending Engineer.  The High  Court dismissed the Writ Petition. Aggrieved by the same, the present appeal is filed by special leave.      We have  heard learned counsel for the parties at great

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length.      It appears  from letter  dated 20th July, 1993 from the Deputy Secretary to Government, that the appellants name was approved for  appointment on temporary basis for the post of Assistant Engineer  (Civil) in  Public Works Department as a result  of   the  interview   held  by  the  Public  Service Commission in  August/September,  1962  and  was  placed  at Serial No.  21. Thereafter  by means  of  Office  Memorandum dated 8th  August, 1963,  the appellant was appointed on the said post  with a  direction to  join  the  duties  by  15th September, 1963.  The appellant gave his consent for joining the Public  Works Department.  Thereafter, as aforesaid, the Chief Engineer,  Irrigation Department  through  his  letter date 18th July, 1963, did not relieve the appellant from the Irrigation Department  in  public  interest  which  is  also confirmed by  a letter  from  the  Joint  Secretary  to  the Government of Uttar Pradesh dated 15th September. 1992.      It is  in this  background the  question is,  once  the appellant being  selected through  a combined test held both for Irrigation  and Public  Works Department in 1962 and not being permitted  to join Public Works Department, inspite of he having  opted, should  he be  deprived  of  the  services rendered by  him in Irrigation Department for the purpose of computing his  eligibility, seniority  and promotion  in the Public Works  Department. In  this regard  we also find G.O. No.  822  EBR/XXIII-PWD  dated  19th  October,  1968,  which decided  such   cases  to  be  of  transfer  inter  se  from Irrigation Department  to Public  Works Department  and vice versa  of  the  persons  who  were  recruited  as  Assistant Engineers through  combined examinations.  By  this  it  was clarified  such   persons,  in  case  are  placed  from  one department to other, will be deemed to have been transferred from one  department to  the other.  It  further  clarified, where any difficulty is felt in fixation of their pay in the department to  which they  are transferred,  that  could  be resolved under F.R.22 of Finance Hand Book Volume 11 part 11 to IV.  To the  latter  part,  we  are  not  concerned,  the concluding words of this G.O. are:      "Since  the   services   of   these      Assistant Engineers  will be deemed      to  have   been  transferred,  they      would also  be entitled to Transfer      T.A., joining time for the journeys      performed  by  them  in  connection      with  their   transfer   from   one      department to another."      Thus stand  of the  Government is absolutely clear, and on this  basis the  appellant would  be treated to have been transferred  from  Irrigation  Department  to  Public  Works Department when  he was  appointed/absorbed  in  the  Public Works Department  on the  basis of combined examination held in the year 1965. We also find Office Memorandum No. 5060/23 Irri-1/42/WP/80 dated  12th July,  1982 which reiterated the aforesaid Government  policy of counting the services in the Irrigation Department towards the Public Works Department it clearly spelled out its policy relying on the decision given earlier by  the High  Court in  Abdul Kher vs. Chief Justice Allahabad (1971  SLR, 25)  that the  benefit of  the service rendered in  the erstwhile department can be granted in case a person  is transferred  from one  department  to  another. Relevant  port   of  this   Office  Memorandum   is   quoted hereunder:-      "As  per   the  provision   in  the      judgment in  matters of  Abdul Kher      v.  Chief  Justice  Allahabad  1970

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    SLR-25, Hon.  High Court  has  held      that benefit  in seniority  can  be      given   on    transfer   from   one      Department to  another  Department,      if there  is no  prohibition on the      rules and  benefit of past services      can be  given and cannot be held as      unfair.  In   the  present  matter,      there is  no  prohibition  in  1936      service rules,  but  in  Government      Order  No   23  I.A.-144/64   dated      13.6.1963   provides    that    the      services rendered  by  officers  in      that  the   services  rendered   by      officers  in   P.W.D.,   shall   be      counted  in  Irrigation  Department      after joining  and shall  draw  the      same salary as they were drawing in      PWD. After careful consideration as      natural justice  and legally, it is      decided that  the benefit  of  past      service of  other department  is to      be given in seniority fixing.      The Tribunal  also gave  a finding  in  favour  of  the appellant  that  there  is  no  reason  not  to  follow  the seniority as mentioned in the merit list of 1962 made by the Public Service Commission.      We find,  the appellant  in  this  case  could  not  be faulted  as  inspite  of  he  being  selected  through  1962 combined selection  examination and  he having consented was not  relieved  by  the  Irrigation  Department  due  to  his requirement  in   that  department.  This  fact,  as  stated earlier, is  also recorded in Government’s Office Memorandum NO.402 EPOR.  12.3.93.   915/91 dated  20th February,  1993. This is  also referred in the letter of the joint Secretary, Government of  U.P., Irrigation  Department,  to  the  Joint Secretary, Public  Works Department  dated  19th  September, 1992. The main reason, to reject the claim by the Government is the  decision of Gokaram Singh (supra) which was also the basis of  the impugned  judgment  of  the  High  Court  viz. relying on P.D.Aggarwal’s case (supra). This decision merely declares, a  claim of  seniority could only be from the date one is  borne in  service. But  the question still is, as to when did  the appellant  enter service  or could  be said to have been  borne in  service. If the appellant could be said to have  entered service  only on  his  appointment  in  the Public Works  Department as a result of combined examination held in 1965, he would be borne in service then. But in case his selection  and appointment  in pursuance to the combined selection examination  of 1962  is accepted this he would be borne in  service then,  we find  he not being relieved from the Irrigation  Department for  public purpose  coupled with the policy  in such  cases to  treat it  to  be  a  case  of transfer  for  all  this.  We  unhesitatingly  come  to  the irresistable conclusion  that the appellant would be treated to have  been borne  in service  on the  date  when  he  was appointed through  1962 combined  selection examination  and not in 1965 examination. We have already referred to various letter as  also the decision of the Government treating such placement in  the departments  inter se  to  be  a  case  of transfer. The  government throughout,  has also  treated the appellant  to   be  a   case  of  transfer  from  Irrigation Department to  Public Works  Department. His  claim was only rejected by  the Government  as aforesaid  in  view  of  the decision in  the case  of Gokaran  Singh (supra)  relying on

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P.D.Aggarwal (supra),  about  this  we  would  be  referring later.      We feel  that it would be unjust, to disallow the claim of the appellant inspite of the being selected and appointed to the  P.W.D. through  1962 Commission Selection when on no fault of  his if  he was  not being permitted to join in the Public Works Department. In Shri Anand Chandra Das vs. State of Orissa  & Ors.  : JI  1988 (1) S.C.98, on the question of the seniority of the appellant who had gone on deputation to labour department  as Senior  Auditor, it was held, since he never agreed  to go  on deputation,  therefore his seniority has to  be re-fixed  by  including  period  in  the  Revenue Department and thus notional promotion to be given.      "We find  sufficient force  int  he      aforesaid contention of the learned      counsel    appearing     for    the      appellant. That  the appellant  was      appointed as  a Senior  Auditor  on      Revenue  on   28.10.1996   is   not      disputed. It  is also  not disputed      that his services were brought over      to  the   Labour   Departments   on      requisition being  made to  all the      Government Departments  and on  his      name being sponsored by the Revenue      Department. It  is  no  doubt  true      that  the   Labour  Department  had      indicated that  the seniority  will      be determined  on the  basis of the      date  of   joining  of  the  Labour      Department itself but the appellant      had no  point of time agreed to the      said condition,  and on  the  other      hand, unequivocally  expressed  his      unwillingness to  come over  to the      Labour Department  by letter  dated      6.11.1970 and without consideration      of the  same the Revenue Department      relieved him  requiring him to join      in the  Labour Department.  In  the      aforesaid  premisses   we  see   no      justification   in   ignoring   the      service rendered  by the  appellant      as  a   Senior  Auditor  under  the      Revenue Department.  The  Tribunal,      in    our    considered    opinion,      committed  an  error  by  directing      that seniority  of the appellant in      the cadre of Senior Auditor will be      determined by  taking his  services      from the  date he joined the Labour      Department.   In   our   considered      opinion   the   services   of   the      appellant as  a Senior Auditor from      28.10.1995  shall   be  taken  into      account   for    determining    his      seniority in  the cadre  of  Senior      Auditor in the Labour Department."      In K.Madhavan  & Anr.  etc. vs.  Union of  India & Ors. etc. 1988  (1) SCR  421, also  there  was  a  dispute  about seniority and  the questions for consideration were, whether the petitioner’s  appointment should  be treated as transfer and whether  the earlier  period spent to be counted towards seniority or not. The Court observed:      "There  is   not  much   difference

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    between  deputation  and  transfer.      Indeed,  when  a  deputationist  is      permanently absorbed in the CBI, he      is under  words, deputation may b e      regarded as  a  transfer  from  one      government department  to  another.      It will  be against  all  rules  of      service   jurisprudence,    it    a      government   servant    holding   a      particular   post is transferred to      the same or an equivalent period of      h is service in the post before his      transfer   is    not   taken   into      consideration  in   computing   his      seniority in  the transferred post.      The transfer  cannot wipe  out  his      length of  service in the post from      which he had been transferred."      Regarding  the   question  of  length  of  service  for computing seniority,  whether could it be only from the date of his  appointment on  permanent post  in the  year 1969 or will also  include the  period when  he was appointed on the temporary  post  in  the  year  1962,  the  appointed  on  a substantive vacancy  on a  temporary post after due approval by the  Public  Service  Commission  if  fulfils  all  other essential criteria  as prescribed  he shall  be deemed to be borne in service from such date of his appointment. In other words his  entire length of service from that date should be reckoned in  computing seniority. This point is well settled and is  reasserted in  the aforesaid  case  of  P.D.Aggarwal (supra) itself.      We further  find this  question whether the said period to be  computed for  the purpose  of seniority  was a matter which the  Government ought  to have  considered and we feel must have  been considered while appointing him as Executive Engineer in  Public Works  Department which  was in the year 1972. He  suffered from  the same disability for the post of Superintending Engineer.  But after  due considerations then after appointing  him two  decades back, none challenging it then, to  raise it now, has no justiciable reasons to stand. By that  time the  policy of  the Government  was also  well known which  is evident from the aforesaid G.U.of 1968. When the question  of appointment as Superintending Engineer came up for  consideration in  the year  1993 i.e.  more than  21 years after  appellant’s appointment  as Executive Engineer, we do  not find, it was proper for the Government, to revert back and  deprive the appellant by withdrawing his seniority by  excluding   the  period  he  worked  in  the  Irrigation Department.      Even otherwise,  we  find  from  the  record  that  the Government’s own  stand and its policy accepted the stand of the appellant  but the  reason for  this change  was only in view of the decision of the High Court, as aforesaid, in the case of  Gokaran Singh  relying on the case of P.D.Aggarwal. The High  Court committed  wrong by wrong application of the principle of   P.D.Aggarwal.  The  same  is  not  eroded  or violated when  the appellants  appointment  to  the  PWD  is treated to be by way of transfer from Irrigation Department.      The High  Court did  not properly  scrutinize the facts and circumstances  of this  case and  merely on the basis of the earlier  decision of  its Court in the aforesaid Gokaran Singh’s case (supra) rejected his claim.      We find  that both,  the Government’s  Order dated 19th August, 1993  and the  impugned order  of the High Court are nor sustainable in the eye of law and are hereby quashed. On

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the facts of this case, we hold that the appellant’s service in the Irrigation Department since after he was selected and appointed in  1962 in  the  PWD  through  combined  services examination, cannot  be excluded for fixing his seniority in the PWD.  Hence the  period, the  appellant  worked  in  the Irrigation Department,  be treated  to be  valid period  for computing his seniority in the PWD.      The respondent Government will now fix the seniority of the appellant  in the light of the above observations and if any person if affected, the fixation to be made after giving due  opportunity   to  the   person  concerned.   Consequent promotion and other benefits flowing thereunder will also be admissible to the appellant.      In the  result, this  appeal succeeds  and the impugned Government Order  dated 19th  August, 1993  and the impugned order of  the High  Court in  the Writ Petition filed by the appellant are  quashed with  the aforesaid  observations and directions. Cost on the parties.