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CASE NO.: Appeal (civil) 2671  of  2001 Appeal (civil)  2672     of  2001

PETITIONER: VINOD KUMAR SHARMA, J.K. SHARMA & ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND ANOTHER

DATE OF JUDGMENT:       10/04/2001

BENCH: M.B. Shah & S.N. Variava

JUDGMENT:

Shah, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Question  involved  in  these   matters  iswhether  the appellants  who  were substantively appointed  in  different branches  of  the  U.P.  Services of Engineers  by  Combined Competitive Test conducted by the Public Service Commission, U.P.   are entitled to the benefit of their services in  the said  branches though subsequently they appeared in  another competitive   examination   conducted  by   Public   Service Commission,   UP  and  were   appointed  in  the  Irrigation Department  against permanent post by way of transfer?   And also  whether they are entitled to tagging of the  aforesaid service in view of the Government orders?

   By a common judgment and order dated 24.4.2000, the High Court  of  Judicature at Allahabad, Lucknow  Bench,  Lucknow@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ dismissed  the writ petition Nos.1219 (SB) and 1220 (SB)  of@@ JJJJJJJJJJJJJJJJJJJ 1998  filed by the appellants herein by holding that (1) the ratio  of decision in Vijaya Kumar Shrotriya v.  State of UP & Ors.  [(1998) 3 SCC 397) is not applicable to the facts of the  present case for the reason that it is not the case  of the appellants that they were selected by the Public Service Commission  in a combined test.  There is nothing on  record to  indicate that their examination or interviews were  held for the combined services of U.P.  for the post of Assistant Engineers  either  in  LSGED,  PWD   or  in  the  Irrigation Department  by the U.P.  Public Service Commission and  they were  initially appointed in the Irrigation Department;  (2) the appellants never opted to be appointed in the Irrigation Department  and  they  never insisted to  be  relieved  from service  in  which they were initially appointed.  There  is nothing  on record to show that inspite of their  insistence or  option,  the  department  ever refused  to  relieve  the appellants  from the department in which they were initially appointed;   (3)  observations of this Court in  Shrotriyas

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case  (Supra)  were  in  respect   of  peculiar  facts   and circumstances of the case that the appellant was selected in the  combined  services of U.P.  for the post  of  Assistant Engineer  in  the PWD and Irrigation Department by the  U.P. Public  Services  Commission and he was allotted  to  P.W.D. His  appointment was approved by the P.W.D.  Chief Engineer, P.W.D.   issued  letter of his appointment, but he  was  not relieved by the Irrigation Department inspite of his consent to  join  the  P.W.D.;   and (4) in the  present  case,  the services  of  the appellants were transferred to  Irrigation Department  after  their  selection by  the  Public  Service Commission  held in 1971.  In pursuance of their  selection, appointment  order  was issued in 1974.  The order does  not show  any  benefit for the purposes of seniority.   But  the only  benefit given was for the purposes of fixation of  the last pay drawn in the salary.

At the  time  of hearing of these matters,  learned  senior counsel  Mr.  Dwivedi, appearing on behalf of the appellants submitted  that the impugned order passed by the High  Court is  contrary  to the decision of this Court  in  Shrotriyas case  (supra)  and  also to the facts which are  brought  on record.   It  has been pointed out that the appellant  Vinod Kumar  Sharma  (in SLP No.10335/2000) was appointed  in  the department  of  Community Development (Minor Irrigation)  in the year 1969 as he cleared Combined Competitive Examination held in that year.  For this purpose, he has relied upon the letter  dated 08.8.1969 (Annexure-P3) which reveals that  on the  basis  of  the  results  of  the  Combined  Competitive Engineering  Services Examination held by the Public Service Commission,  U.P.   in  the  year 1968,  the  persons  named therein  were appointed against the regular temporary  posts of  Assistant  Engineers on temporary basis, which  includes the  name  of appellant Vinod Kumar Sharma.  Annexure-P2  is the  list  published  by  Lok   Seva  Ayog  (Public  Service Commission), U.P., which also includes the name of appellant Vinod Kumar Sharma at Serial No.64.  It has been pointed out that  the  Combined Competitive Examination was held by  the Public  Service Commission for the four departments  namely, Public  Works  Department, Irrigation Department, LSGED  and Community   Development  (Minor    Irrigation)   Department. Appellant   was  posted  as   Assistant  Engineer  in  Minor Irrigation  Department.  Thereafter again he appeared in the Combined  examination held by the Public Service Commission, UP  in the year 1971 and was selected as Assistant  Engineer in the Irrigation Department on regular basis.

   The  Under  Secretary, State of U.P.  sent the  list  of candidates  by  letter  dated 3.6.1971 who were  working  in other  departments of U.P.  Government and who were selected temporarily  on  the post of Assistant Engineer  (Civil)  in Irrigation  Department  to  the Chief  Engineer,  Irrigation Department, Lucknow.  Appellant Vijay Kumar Sharmas name in the  said  list  is at Serial No.14 specifying that  he  was working  in  Minor  Irrigation   Department.   He  has  also produced  on record Office Memorandum dated 17th August 1974 (Annexure  P-6)  written  by  the Deputy  Secretary  to  the Engineer  in  Chief,  Irrigation Department,  U.P.   on  the subject  of  transfer  of services  of  Assistant  Engineers working  in Community Development Department being  allotted to  Irrigation  Department  on   the  basis  of  competitive examination  shall  be  treated  as  transferred  from  that department  which inter alia provides that their services on joining  in  Irrigation  Department   shall  be  treated  as transferred  from that department and shall also be  counted

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towards  fixation  in  the  same  pay  scale  in  Irrigation Department.

   In  other appeal filed by JK Sharma, DPS Chauhan and  RS Chauhan-  they  were  also selected and  appointed  in  1969 against  the  temporary  post  of  Assistant  Engineers   on temporary  basis  in  different  departments  of  Irrigation Department.   Annexure-P7 is the letter dated 21.3.1974 sent by Deputy Secretary, UP Government to the Engineer-in-Chief, Irrigation  Department, UP, Lucknow mentioning the names  of selected candidates for appointment in Irrigation Department on  regular  basis  on   the  permanent/temporary  posts  of Assistant  Engineers  (Civil)  on   the  basis  of  Combined Competitive  Examination 1971 and their names are at  Serial Nos.17,  13  and 23 respectively.  The said letter (Para  4) specifically  mentions  as  under:   -  I  have  also  been directed  to  say  that  the   service  of  those  Assistant Engineers  who are being appointed in Irrigation  Department and  are presently working in PWD and LSGED, will be  deemed to  have been transferred from that department to Irrigation department and on joining Irrigation department the services rendered  by these officers in PWD and LSGED will be counted towards  their  services in Irrigation department  and  they will  get  the  same pay which they were  getting  in  their original departments.

   AppellantsJK  Sharma,  DPS Chauhan and RS Chauhan  were promoted  as Executive Engineers on ad hoc basis in 1988 and Vinod Kumar Sharma was promoted to the said post in the year 1991.   In the seniority list which was prepared in 1991  by the  Government,  as their earlier services were ignored  by the  Department,  appellants  made  representations  to  the Government.  Final seniority list was published on 28.4.1997 and  in that list also, they were not given benefit of their past  services  despite  the fact that 10 out  of  14  other officers  were  given benefit of their earlier services  and the  present  4  appellants  were   left  out.   They  again submitted  their representations and as no action was  being taken,  they preferred writ petitions before the High  Court of  Allahabad, Lucknow Bench as stated above.  By an interim order,  the  High  Court directed the  State  Government  to consider  their  representations  by a speaking  order.   On 5.9.1998,   Government  rejected    their   representations. Subsequently,  their petitions were also dismissed.   Hence, these appeals.

   Mr.   Rakesh  Dwivedi,  learned senior counsel  for  the appellants  submitted  that the question involved  in  these appeals is covered by the decision rendered by this Court in Shrotriyas  case  (Supra).   In the said case,  facts  were similar except that the appellant of that case was appointed on  25.8.1962  on  ad  hoc basis as  Assistant  Engineer  in Irrigation Department.  In September 1962 interview was held in  combined  services of U.P.  for the posts  of  Assistant Engineers  in  the  Public Works Department  and  Irrigation Department by UP Public Service Commission.  He continued to work  in  Irrigation  Department  and  appeared  in  another competitive   examination  which  was   held  in  1965   for substantive  permanent vacancy in the PWD.  He was  selected and  posted as Assistant Engineer in PWD on 01.1.1968.   The question  arosewhether his services prior to his posting in PWD  should  be counted for the purpose of  seniority.   The

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Court  considered  the Government Order (G.O.  for  short) dated  19th October 1968 which clarified that such  persons, in  case  are placed from one department to other,  will  be deemed to have been transferred from one department to other and  referred to the following concluding words of the G.O.: -

   Since the services of these Assistant Engineers will be deemed to have been transferred, they would also be entitled to  transfer TA, joining time for the journeys performed  by them  in connection with their transfer from one  department to another.

   In  that  case,  the Court also referred to  the  Office Memorandum  dated  12th  July,  1982  which  reiterated  the Government policy of counting the services in the Irrigation Department  towards the Public Works Department and observed that  the said policy is based on the decision given earlier by  the  Allahabad  High  Court in  Abdul  Khair  v.   Chief Justice,  Allahabad  [1970  SLR  425]  which  provides  that benefit  in  seniority  can be given on  transfer  from  one department to another department, if there is no prohibition in the rules and benefit of past services can be given.  The Court thereafter held that the appellant would be treated to have been borne in service on the date when he was appointed through  combined  services examination in 1962 and  not  in subsequent  examinations  held  in  1965.   The  Court  also referred  to  the following observations in K.  Madhavan  v. Union of India [(1987) 4 SCC 566]:

   There  is  not much difference between  deputation  and transfer.   Indeed,  when  a  deputationist  is  permanently absorbed  in  the  CBI, he is under the rules  appointed  on transfer.   In other words, deputation may be regarded as  a transfer from one government department to another.  It will be  against  all  rules  of   service  jurisprudence,  if  a government  servant holding a particular post is transferred to  the  same  or an equivalent post in  another  government department, the period of his 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 has been transferred.   As  against this, the learned senior  counsel Mr.   Subodh  Markandeya,  appearing   for  the  respondents submitted  that  the  candidates  in  higher  merit  in  the Combined  Examination  were  allotted Departments  of  their choice  as per option requirement, but those lower in  merit got   departments  depending  upon   the   availability   of vacancies.   They again tried their luck for the  department of  their choice by appearing in the Combined Examination in subsequent  years.  Once they did that, they cannot claim to count  the  past service.  For this purpose, he  has  placed reliance  on the decision of this Court in State of  Gujarat v.   C.G.  Desai [(1974) 1 SCC 188] where the Court observed thus:

   if  a person to avoid the long tortuous wait leaves his position     in     the       never-ending    queue     of temporary/officiating  Deputy  Engineers etc.,  looking  for promotion, and takes a short cut through the direct channel, to  Class  II  Service,  he  gives  up  once  for  all,  the advantages  and  disadvantages that go with the  channel  of promotion  and accepts all the handicaps and benefits  which attach  to  the group of direct recruits.  He cannot,  after

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his   direct   recruitment   claim   the  benefit   of   his pre-selection  service  and thus have the best of  both  the worlds.

   In  our  view,  the decision rendered by this  Court  in Shrotriyas  case  (Supra)  would squarely cover  the  issue involved  in  the  matter.    Admittedly,  appellants   were appointed  in  the year 1968/1969 on the basis  of  combined competitive  examination  conducted  by the  Public  Service Commission,  U.P on temporary basis on temporary posts.  For their  regular  appointment,  they   appeared  in   combined competitive  examination  conducted  by the  Public  Service Commission,  U.P.   for  the post  of  Assistant  Engineers, Irrigation  Department.  They were selected in 1971 and were posted in the Irrigation Department as stated above in 1974. The  letter  dated 21.3.1974 quoted above  clearly  mentions that  on  joining  Irrigation   Department,  the   services rendered  by these officers in PWD and LSGED will be counted towards their services in Irrigation Department.  This would be  further  clear  from the G.O.  referred to  above  which specifically provides that such officers are deemed to have been  transferred from one department to another, after  the allocation.   In  view of the letter, G.O.  and the  office memorandum  dated 17.8.1974, the stand taken by the  learned counsel for respondent No.1-State of U.P.  is unjustifiable. Further,  there is no substance in the contention raised  by the  learned senior counsel Mr.  Markandeya on the basis  of the  decision in C.G.  Desais case (supra).  In the present case,  appellants were selected and appointed on a temporary post  on temporary basis in 1969.  They continued to work on the  said  post.   They  were  required  to  appear  in  the competitive  examination  in  1971 for  being  appointed  on regular  basis  which  they  cleared.  Hence,  there  is  no question  of their looking for promotion and taking a  short cut  through direct channels by appearing in examination for direct  recruitment.   Appellants  were in  the  same  cadre holding  the posts of Assistant Engineers on temporary basis and  were  appointed on regular basis in the same  cadre  on permanent/temporary posts.

   Further, the High Court materially erred in holding that the  ratio  of  Shrotriyas case was not applicable  to  the facts  of the present case for the reason that it was not  a case of the appellants that they were selected by the Public Service  Commission  in the combined test.  It appears  that the  High Court overlooked the documents produced on  record which  establishes that the Combined Competitive Examination was  conducted  by the Public Service Commission,  U.P.   in 1968  and  1971  for recruitment to  Government  Engineering Service  for  the  post of Assistant  Engineers  in  various departments.   Similarly, the letter by which the appellants were  posted  in  the  Irrigation  Department,  specifically reveals that the past services will be counted towards their service  in the Irrigation Department.  The High Court  also materially  erred in not referring to the ratio laid down by this  Court  in Shrotriyas case wherein it is held that  a person  even appointed on 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  born 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. Thereafter this Court held that the services rendered by the appellant in that case should be counted from the year 1962,

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that  is,  on the date when he was appointed on a  temporary basis.  Further, the High Court ought to have considered the G.O.   dated 19th October 1968 entirely, which  specifically provides  that  such  officers  are  deemed  to  have  been transferred  from  one  department  to  another  after   the reallocation   in  accordance  with   the  aforesaid   G.O. Thereafter it also provides for fixation of pay in identical scale  of pay in that department.  It appears that the  High Court has overlooked the first part which provides that such officers are transferred from one department to another.  If the  High Court had referred to paragraph 13 of  Shrotriyas case  (Supra),  it would have been clear that the stand  and the  policy  of the State Government was also to the  effect that  appellants  services were required to be counted  for the purpose of seniority.

   Hence,  these  appeals are required to be allowed.   The respondent-  Government is directed to fix the seniority  of the  appellants  in the light of the above findings.   While re-fixing seniority, if any person is affected, it shall fix the  seniority  after  giving an opportunity to  the  person concerned.   Consequent  promotions   and  benefits  flowing thereunder  will also be granted to the appellants, if  they are otherwise eligible.

   In  the result, the appeals are allowed accordingly  and the  impugned judgment and order passed by the High Court in the  writ  petitions filed by the appellants is quashed  and set aside.  However, there shall be no order as to costs.