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PETITIONER: VIJAY SINGH DEORA ETC.ETC.

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ANR. ETC. ETC.

DATE OF JUDGMENT:       03/10/1996

BENCH: K. RAMASWAMY, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                             WITH      CIVIL  APPEAL NOS.120/94   121/94   122/94                             AND                CIVIL APPEAL NO. 14086 OF 1996            (Arising out of SLP (C) No. 21724 /96)                        (C.C.15985/92)                          O R D E R      Delay condoned.      Leave granted in the special leave petition.      I.As. are allowed.      These appeals by special leave arises from the judgment of the Division Bench of the Rajasthan High Court dated July 29, 1991  made in  W.P. Nos.4983/89  and batch.  Due to long drawn history  of litigation and frequent amendments made to rules, there  is lot  of confusion in this case. But for the purpose of disposal of these appeals, it is not necessary to traverse the  whole gamut of litigation. Suffice it to state that there  are three  sets of  officers in  Rajasthan Civil Engineering Subordinate Service (Irrigation Branch) Graduate Junior Engineers  appointed temporarily  prior to  June  30, 1978 drawn from the Department of Manpower are called Group- A officers.  Sub-Engineers, who  are  diploma-holders,  were appointed by advertisement. Thereafter, they acquired degree of Engineering,  either B.E.  or  A.M.I.E.  and  are  called Group-B  Officers.   Sub-Engineers  with  diploma  who  were appointed substantively  in the  lower cadre,  on  acquiring degree qualifications  were appointed  by  transfer  to  the cadre of  Junior  Engineers  and  they  are  called  Group-C Officers. Rules  prescribe  20%  of  the  quota  for  direct recruitment of  Graduate Junior   Engineers. Earlier, Junior Engineer Graduates and Junior Engineers Diploma-holders were two distinct  cadres but  later, by amendment dated December 7, 1985, the distinction was done away. The question relates to integration  and fixation  of seniority among these three sets of  officers for  the purpose of promotion to the cadre of  Assistant   Engineers  which  is  the  next  channel  of promotion .      The   Rajasthan    Engineering   Subordinate    Service (Irrigation Branch)  Rules, 1967  issued  under  proviso  to Article 309  of the  Constitution  are  applicable  to  this

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service. Group-A  and Group-B  officers came to be appointed under Rule  27 of  the Rules.  In other words, they were not appointed in  accordance with  Rule 6  of the Rules. Group-A officers were  temporarily appointed  prior to June 30, 1978 but were  fully qualified  for appointment.  Group B  and  C officers were  appointed subsequent  to  Group  A  officers. Group C  officers were  appointed by  transfer into quota of Graduate Junior Engineers.      Rule 2(i) defines "substantive appointment" to mean "an appointment made  under the  provisions of  these Rules to a substantive vacancy  after  the  selection  by  any  of  the methods of  recruitment prescribed  under  these  Rules  and includes an  appointment on  probation or  as a  probationer followed  by   confirmation  on   the  completion   of   the probationary  period".  Rule  6  prescribes  the  method  of recruitment. It  envisages that  recruitment to the service, after the  comencement of  the Rules,  shall be  made by the following methods  in the  proportion  as  is  lndicated  in Column  3   of  the   Schedule  (a)  direct  recruitment  in accordance with  Part IV  of the Rules, and (b) promotion in accordance with  Part I of the Rule. Sub-rule (1A) which was brought by amendment dated December 7, 1985 reads as under:      "(1A) If  a Diploma  Holder  Junior      Engineer attains  the qualification      of                             B.E.      (Civil/Mechanical/Electrical),   or      AMIE he  shall be  entitled on  his      application    and    subject    to      availability  of   vacancy,  to  be      appointed   as    Junior   Engineer      (Degree   Holder),    by   transfer      against   the   quota   of   direct      recruitment but  in that  case  his      seniority   amongst    the   Junior      Engineers (Degree Holders) shall be      determined   from   the   date   of      occurrence of vacancy against which      such  Junior   Engineer  has   been      appointed on  the  post  of  Junior      Engineer (Degree  Holder)  and  one      third of  his  previous  experience      shall be  counted as  experience on      the post of Junior Engineer for the      purpose of  promotion to  the  next      higher post."      The crux  of the  question is  integration of the three groups of officers. What will be the method or procedure for the  purpose   of  determination   of  inter  se  seniority? Undoubtedly, the appellant and his companions were appointed temporarily under  Rule 27  prior to June 30,1978 and orders do  indicate   that  they  were  appointed  subject  to  the availability  of   the  regularly  recruited  candidates  in accordance with  the Rules.  Admitted position is that there was no  regular recruitment  made by  the Chief  Engineer in accordance  with the Rules under Rule 6(a). The appointments temporarily made  are now  sought to  be  regularised  by  a screening  committee  appointed  under  the  Rules  in  that behalf.  Admittedly,  the  screening  committee  found  them eligible for  appointment as  was done in the year 1984. The question is:  whether  the  graduate  qualified    Engineers appointed  temporarily   in  the   initial  in  the  initial appointment could  be treated  to  have  been  substantively appointed to  the post  of Junior Engineers from the date of initial appointment  after screening?  In this  behalf,  one should not  lose sight  of the  hard  reality,  namely,  the

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Graduate Engineers  Group-A officers have been substantively discharging the  duties of  the posts right from the date of their appointment.  It is  settled  rule  that  a  temporary appointee has no right to the post nor does he get seniority unless regularly  recruited in accordance with the rules and seniority would  be reckoned  from the  date of  substantive appointment when  he started  discharging the  duty  of  the post. If  appointments were  made de  hors  the  rules,  the entire length  of service  was required  to  be  treated  as fortutous and  excluded. If  appointment are  made after due consideration and  according to  the  procedure,  though  on temporary basis,  the seniority would start from the date of appointment. But  when recruitment  was temporarily made and appointments are  regularised later  the question  would be: from  what   date  their   seniority  would   be   reckoned? Admittedly, on  appointment made prior to 30.6.1978, Group A officers  started   with  10  advance  increments  from  the inception. Group  B officers  were  appointed  with  diploma qualification and  later as  Group-A officers  and  acquired degree  qualification   subsequently  Group-C   officers  on acquiring degree qualification were appointed on application by transfer  later to 30.6.1978. In other words, unqualified became qualified  subsequent to the appointment of qualified graduates. The  question is:  whether Group-A officers, when appointed as  per rules  were made  juniors to  Groups B & C officers due  to delay  and laches on the part of Government in  getting   them   screened   and   appointed   regularly? Necessarily, therefore,  when  they  were  screened  by  the committee, all  those found eligible for confirmation in the temporary appointments made prior to June 30, 1978, must, of necessity and  under equityand  justice be construed to have been regularly  appointed to  the post  in the above factual backdrop. Since  there was  no recruitment made by the Chief Engineer, the  qualified Group A officers need to be treated as  appointed   on  regular  basis.  Otherwise,  unqualified officers would  become senior  to the qualified graduates at the inception.  The Chief  Engineer necessarily,  therefore, has to  find out  the following  method in  determining  the inter se  seniority of  the three groups of officers. First, it is  to be ascertained as to how manysubstantive vacancies are available  within the quota of 20% of the direct recruit Graduate  Junior   Engineers.  Seniority   of  the  Graduate Engineers appointed, i.e., Group A Officers, to the posts of the Junior  Engineer should be reckoned from  the respective dates on  which substantive  vacancies  were  available  and Group A  officers  were  appointed  to  those  posts.  Their seniority  reckons  from  the  respective  dates  of  either initial appointment  or date  of availability of substantive vacancies, whichever  occurs later,  i.e., if as on the date of initial  appointment, there  existed substantive vacancy, the seniority  should be determined from the date of initial appointment or  in its  absence from the date of substantive vacancy.      The second step should be that the Group-B officers who were appointed through selection by advertisement subsequent to  June   30,  1978  and  obtained  degree  qualifications, thereafter would  get into  the quota  prescribed for direct recruitment of  the Graduate  Engineers from  the respective dates on  which they  became qualified  i.e. obtained degree qualification. Their  seniority requires  to  be  determined with  reference   to  the   date  on   which  they  acquired qualification  or   on  which   substantive  vacancy  became available, whichever  occurred later. The inter se seniority among Group  B officers  requires to  be determined from the date of  their acquiring  qualification or  availability  of

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substantive vacancy  of the Group B officers since all Group B officers were appointed as diploma-holder Junior Engineers subsequent to  June 30,  1978. Group  C officers  also  were appointed by transfer. Seniority of those who were appointed by transfer  is required to be determined in the service and they are  required to be fitted into service either from the actual  date   of  their   respective  appointment   against substantive vacancies  available or  from the  date when the substantive vacancies  became available  to  them  whichever occurred later  since they  were appointed,  by transfer, to the Junior  Engineers degreeholders quota in the Subordinate Service (Civil  Engineering) The  general inter se seniority should  be  determined  according  to  the  above  procedure following the rule of reservation and roster.      The next  question is:  what is  the inter se seniority for the  purpose of  promotion to  the  cadre  of  Assistant Engineers? Since  Graduate Engineers were directly appointed substantively from  the date  when the substantive vacancies became  available  to  them  within  the  20%  quotas  their eligibility for  promotion as Asstt. Engineer requires to be determined from  the date  the substantive  vacancies became available for  them though  they might  have been  appointed earlier on  temporary basis. Their qualifying service should be counted  accordingly. The qualifying service of all those Group-B officers  appointed and  fitted into the substantive vacancies from their respective dates of availability of the substantive  vacancies   should  be   reckoned  from   their respective dates  of coming  into substantive  vacancies. If there is any short-fall of qualifying service prescribed for the post  of the Asstt. Engineer the balance period be taken into consideration  from their  l/3rd  service  rendered  as diploma-holder Junior  Engineers. This should stop upsetting the general  seniority determined in that order as laid down earlier. Regarding  Group-C  officers,  their  seniority  as stated is to be reckoned from the date of the appointment by transfer or  from the  date of  availability of  substantive vacancy,  whichever   occurred  later.  In  determining  the qualifying service  for promotion  as Assistant Engineers if there  is  any  shortfall,  the  one-third  of  the  service rendered by them in the post of Sub-Engineers would be taken into account  only for making good the balance of qualifying service but  not the  entire l/3rd  service to be tagged. In case even  one third  of service  as Sub-Engineers  was  not sufficient as  qualifying service,  they  would  not  become qualified for  consideration for  promotion. This  procedure would do  justice to  all the  three Groups and no one would jump over  the other  and would  not illeghtimately  steal a march over  the legitimate right of the other. Otherwise, in effect the qualified graduates would be pushed downwards and unqualified later  entrants on  acquisition of qualification would steal  a march  over the qualified. The High Court was not  justified   in  treating   amended  Rule   6(1A)   with retrospective effect,  since admittedly  it has  beer, given prospective  operation.   The  High  Court  also  was    not justified in  striking down  the latter  clause of the rules for computation of one-third service for the purpose Of next higher post.      The Government  is, therefore,  directed  to  determine inter se  seniority in the light of above law and directions and  prepare   the  seniority  list  accordingly.  It  would consider their  respective claims  for promotion to the next higher  post   i.e.,   Assistant   Engineers   and   onwards accordingly.      The appeals  are  accordingly  disposed  of.  The  writ petitions in that behalf stand disposed of. No costs.

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