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PETITIONER:

KESHAV DEO & ANR

Vs.

RESPONDENT:

STATE OF U.P. & ORS.

DATE OF JUDGMENT: 16/10/1998

BENCH:

Sujata V. Manohar, M. Srinivasan,

JUDGMENT:

Srinivasan. J.

The first appellant was appointed as an Overseer

(re-designated as Junior Engineer) on adhoc basis in Public

Works Department (for short P.W.D), State of U.P. on

17.7.1973. The second appellant was directly appointed as

overseer substantively in the said department through the

Commission on the same day. Both the appellants were

holders of Diploma in Civil Engineering. In May, 1978 they

passed an examination known as Associate Member of

Institution of Engineer (India), Section A and B, equivalent

to B.E. Degree. On 31.5.1979 the appellants were promoted

to the post of Assistant Engineers on adhoc basis. The said

promotions were made within the quota of posts reserved for

the promotees according to the relevant Service Rules by the

Departmental Promotion Committee consisting of Secretary,

P.W.D., Chief Engineer, P.W.D. and Chief Engineer

Irrigation Department. The appointment orders stated that

the promotion was being made to cope up with the work load

in the Department since Assistant Engineers approved by the

Commission were not available and that the promotions were

only for a period of one year. Since then, the appellants

have been working uninterruptedly on the post of Assistant

Engineers.

2. Respondents 3 & 4 were selected through the

Commission and appointed directly as Assistant Engineers in

the P.W.D. by order dated 9.8.1979. The commission held in

the year 1980, an interview of some of the promotes to be

considered for the post of Assistant Engineers. The

appellants have a grievance that though their juniors were

called for interview, they were not considered without any

reason therefor. However that grievance is outside the

scope of the present controversy. In the interview held in

the year 1984, the appellants were also called and they were

duly approved and selected by the Commission. Consequently,

they were confirmed as Assistant Engineers.

3. In the meanwhile, one D.N. Saksena, who was

an adhoc promotee as Assistant Engineer in the year 1970

just like the appellants and approved by the commission in

the year 1980, filed a Writ Petition in the High Court

namely W.P. No. 1536 of 1981. claiming seniority in the

post of Assistant Engineer from the date of initial

appointment and officiation on the said post. That Writ

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Petition was treated to be one in representative capacity

and notice was given to all concerned through the

newspapers. A Division Bench of the High Court upheld on

4.7.1989 the claim made by the petitioner in the said writ

petition and held that the promotees would be assigned

seniority from the date of continuous affliction and not

from the date of approval by the Commission.

4. A similar controversy inter-se the promotees

and direct recruits arose in another writ Petition No. 8966

of 1989 which was decided on 17.1.1990. There also the same

view was taken by another Division Bench which was

challenged in S.L.P. (c) No. 4878 of 1990, V.K.Yadav

Versus State of U.P. in this Court. The S.L.P. was

dismissed on 19.11.1990.

5. The judgment in the case of Saksena referred

to earlier was assailed in this Court in S.L.P. (C) No.

9343 of 1990, C.P.Sharma Versus State of Uttar Pradesh and

others. The appellant therein placed reliance on the

judgment of this Court in P.O.Aggarwal Versus State of U.P.

and Others (1987) 3 SCC 622. By judgment dated 1.2.1991, the

S.L.P. was dismissed by this Court.

6. Pursuant to the aforesaid judgments the

State Government gave benefit of seniority to the promotees.

A seniority list was published, vide letter dated 3.12.1984

issued by the Secretary. Govt. of U.P. inviting objections

filed by the direct recruits, a final seniority list was

prepared and published, vide notification dated 11.7.1995.

The first appellant was placed at Serial No. 566 and second

appellant at Serial No. 567. respondents 3 & 4 were placed

at Serial Nos. 712 and 722 respectively. Aggrieved by the

said list, respondents 3 & $ filed Writ Petition No. 684

(SB) of 1995 in the High Court. The main ground of attack

was that the counting of the period of continuous

officiation of the promotees from the date of adhoc

appointment was against the decision of this Court in P.D.

Aggarwal Versus State of U.P. (1987) 3 SCC 622. No promotee

was impleaded as a party to the Writ Petition. The

application filed by the appellants for impleading them as

parties was also dismissed by the High Court. However, the

appellants were permitted to advance arguments through their

counsel at the time of hearing. The State Govt. in its

counter affidavit justified the seniority list as one based

on the rulings in D.N.Saksena and V.K.Yadav.

7. The Division Bench of the High Court has

quashed the seniority list on the ground that it was against

the decision of this Court in P.D. Aggarwal. The Division

Bench also held that the judgments in Saksena and Yadav wer

also contrary to the said decision of this Court and not

good law. The Division Bench held that the period of service

rendered by the promotee - Assistant Engineer before the

appointment in accordance with the rules, that is

appointment with the consultaiton of the Commission, can not

be counted for the purpose of determining the seniority.

8. That is the judgment which is challenged in

this appeal. Three questions were posed by the appellants

for consideration:

1. Whether in the facts and circumstances of the case

the appellants are entitled to seniority on the post of

Assistant Engineers from the date they have been officiating

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as such or from the date they were selected and approved by

the Commission?

II. Whether the appellants can be deprived of the

benefits of their officiating service prior to the approval

of the Commission for the purpose of seniority in view of

the fact that the delay in granting approval for making them

regular on the post of Assistant Engineer was attributable

to the State Government and the Commission, as the

appellants were fully qualified to be appointed and approved

as Assistant Engineers even on the date, they were appointed

to officiate as such?

III Whether the High Court was right in reopening the

issues which have been decided in favour of the promotees by

three different Division Benches of the same Court without

retiring the matter to a larger Bench?

9. We do not propose to consider the third

question as an answer in the negative would only lead to a

remand to the High Court for fresh consideration of the

matter. As the dispute between the promotees and direct

recuits has been pending for a long time, a remand will only

prolong the agony of the parties and the matter may have to

come again to this Court for decision. Hence, we propose to

decide the appeal on merits.

10 We are also of the opinion that it is not

proper to decide the second of the above questions. In this

case the appellants or other promotees were not parties to

the writ petition and the High Court has decided only the

general principle applicable in the dispute between the

promotees and direct recruits in the matter of seniority and

not considered the individual grievances if any, against the

seniority list dated 11.7.1995. Any individual grievance

against the said seniority list is a matter for agitation

before the appropriate forum. We leave that question open.

11. What remains to be considered is only the

first question set out above. The Service Rules applicable

in this case are the U.P. Services of Engineers (Buildings

and Roads Branch), Class-II Rules, 1936 as amended in 1969

and 1971 hereinafter referred to as Rules. Rule 5 provides

that recruitment to the post of Assistant Engineer shall be

made by direct recruitment as well as promotion. Rule 6

says that the Governor shall decide the number of

appointments to be made at each selection in each kind of

post from the sources mentioned in Rule 5. The provisos to

the rule specify the proportion from each source. According

to the provisos twenty five percent of the vacancies shall

be filled by promotion of members of the P.W.D. Subordinate

Engineering Service and P.W.D. Computers' Services. As per

Rule 12, recruitment by promotion shall consider the cases

of all eligible candidates and draw up, in order of merit a

list of candidates considered suitable for promotion. A

supplementary list of candidates whom the Secretary

considers suitable for officiating or temporary appointments

shall also be drawn and both lists should be sent to the

Commission along with Character Rolls, etc. The Commission

after examining the rolls may add to the lists as they may

like and return them to the Govt. Thereafter the candidates

will be interviewed by a Selection Committee preside over by

a representative of the Commission. The Committee shall

thereafter prepare two lists and place them before the

Commission. The Commission shall make their final

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recommendations to the Govt. Appointments will be made on

the basis of such recommendations. Rule 23 provides for

seniority and sub rule (d) is very relevant in this case and

it reads thus:

"As and when cacancies are allocated in any year

according to the promotion specified in the first

proviso to rule 6, the inter-se seniority of those

referred to in clauses (a), (b) and (c) above will

be determined by framing a cycle of 4 according to

the following formula "-

3. D

4. D

----------------------

Repeat

Note (1) in the Rule reads as follows :-

"Not :-

Where the appointment order specifies a

particular back date with effect from which

aperson is to be appointed substantively (on

probation against a clear vacancy on a permanedt

post) that date will be deemed to be the date of

order of substantive appointment In other cases it

will mean the date of issue of the order."

12. From the Rules applicable to the parties, the

following position emerges:

(a) The number of vacancies for each year has to

be determined.

(b) They have to be filled from the sources

mentioned in the rules in the proportion specified.

(c) Selection of candidates from each source to

bemade in the prescribed manner.

(d) In the case of promotions from Subordinate

Engineering service, 25 per cent of the vacancies are

reserved for them.

(e) Such of the candidates who are recommended by

the Commission after following the prescribed procedure will

be appointed to fill up the vacancies for the specified year.

(f) If anybody is appointed with effect from a

back date, that date will be deemed to be the date of

substantive appointment.

(g) Seniority of such person has to be counted

from that date whether he was working on that post on

officiating or ad hoc basis.

(h) It follows as a Corollary that any person

appointed subsequent to he said date will be junior to him.

13. Bearing the above principles in mind the

facts of the case may analysed. Undisputedly, the appellants

possessed the requisite qualifications for the post of

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Assistant Engineer. Their promotions were within the quota

prescribed for them as there were sufficient number of

vacancies reserved for promotees. They were selected by the

Departmental Promotion Committee even for their ad hoc

promotion. They were recommended by the Commission after

some years but with reference to 1979. After such

recommendation their promotions were confirmed with effect

from 30.5.1979. The impugned seniority list was prepared on

that basis after the issue of directions by the High court in

D.N.Saksena and V.K.Yadav. It goes without saying that the

said seniority list is in accordance with the Rules and can

not be disturbed. But unfortunately the High Court has upset

that list on the ground that it violates the rule in

'P.D.Aggarwal.'

14. We shall now advert to 'P.D.Aggarwal' and all

the other rulings cited by counsel on both sides in the

chronological order, In G.P. Doval and ors. Versus Chief

Secretary. Govt. of U.P. and Ors. (1984) 4 S.C.C. 329,

it was held that subsequent approval by Public Service

Commission to temporary appointments already made will relate

back to the date of initial appointment for the purpose of

reckoning seniority on the basis of the general rule of

continuous officiation in the absence of any particular rule

framed in that regard. That case related however to a

dispute between two sets of direct recruits.

15. In O.P.Singla versus Union of India (1984) 4

S.C.C. 450 the contest was between promotees and direct

recruits. A Bench of Three Judges held that the seniority of

direct recruits and promotees appointed under the Rules must

be determined according to the dates on which direct recruits

were appointed to their respective posts and the dates from

which the promotees have been officiating continuously either

in temporary posts Created in the Service or in substantive

vacancies to which they were appointed in a temporary

capacity.

16. In P.O. Aggarwal and others versus State of

U.P. (1987) 3 S.C.C. 622 the dispute was between two sets

of direct recruits. Whatever observation was made in that

case must be taken along with the context. The respondents

in that case were directly recruited as Asstt. Civil

Engineers in substantive capacity against temporary vacancies

in consultation with the Public service Commission under

Rules, 1936. The appellants were also similarly recruited

but later on the basis of the competitive examination

conducted by the Commission they were appointed directly on

probation against permanent vacancies. Both categories of

Assistant Engineers were graduates in Engineering and were

performing the same nature of work. In December 1961. the

Govt. issued an D.M.Laying down principles for recruitment

to permanent and temporary vacancies and pursuant thereto the

Rules were amended in 1969 and 1971. The effect of the

amendments was that the Assistant Engineers who had become

members of service under the 1936 Rules would no longer be

members of service and required to wait till selection and

appointment as Assistant Engineers under Rule 5 (a)(ii)

against quota fixed by Rule 6 of 1969 Amendment Rules.

Consequently the Assistant Engineers appointed several years

ago to the temporary posts had to wait until their selection

and appointment to permanent posts against the prescribed

quota whereas the Assistant Engineers recruited to permanent

posts several years after would supersede the former in the

matter of determination of seniority from the date of their

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appointment against the permanent vacancies. This Court

quashed the amended rules as well as the seniority lists. In

the course of the judgment, this Court said that the period

of service rendered by the ad hoc appointees before their

service had been duly regularised in accordance with the

regularisation rules, cannot be taken into account in

reckoning their seniority in service and that their seniority

will be counted only from the date when such ad hoc

appointees after regularisation in accordance with concerned

rules had become members of the service. The Bench had no

occasion to consider a situation similar to the one which has

arisen in this case. Unfortunately, the High Court has

without understanding the ruling correctly observed

repeatedly that the decisions in D.N.Saksena and V.K.Yadav

and the seniority list prepared in 1995 in accordance with

the same are contrary thereto.

17. In D.N.Aggarwal and Anr. versus State of M.P.

and others (1990) 2 S.C.C. 2 553 ad hoc promotions were made

when the persons concerned were not eligible and had not

completed qualifying period of service. Though they were

later selected by D.P.C. on regular basis and appointed as

such to the promotion post on their completing the qualifying

period of service, it was held that their ad hoc period of

service cannot be counted for the purposes of their

seniority.

18. In Direct Recruit Class II Engineering

Officers Association versus State of Maharashtra and others

(1990) 2 S C C 715, the Constitution Bench held that once an

incumbent is appointed to a post according to rule, his

seniority has to be counted from the date of his appintment

and not according to the date of his confirmation. The Bench

summed up the law in the form of eleven propositions. It is

sufficient to refer to the first two propositions which are

the following terms :

"(A) Once an incumbent is appointed to a post

according to rule, his seniority has to be rule,

his seniority has to be counted from the date of

his appointment and not according to the date of

his confirmation.

The corollary of the above rule is that where the

initial appointment is only ad hoc and not

according to rules and made as a stop-gap

arrangement, the officiation in such post cannot be

taken into account for considering the seniority.

(B) If the initial appointment is not made by

following the procedure laid down by the rules but

the appointee continues in the post uninterruptedly

till the regularisation of his service in

accordance with the rules, the period of

officiating service will be counted."

19. Masood Akhtar Khan case (1990) 4 S C C 24 has

no bearing in this case as the initial appointments of the

appellants therein who were direct recruits were not according

to the Rules.

20. In State of Bihar versus Akhouri Sachindranath

and others 1991 Supp. (1) SCC 334, it was held that no person

can be promoted with retrospective effect from a date when he

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was not born in the cadre so as to adversely affect others.

The respondents 1 to 5 in that case were directly appointed as

Asstt. Engineers on the recommendation of the Public Service

Commission in 1961. Respondents 6 to 13 were promoted to the

post in 1964 and the appellants were promoted in 1969. The

promotees were shown as juniors to the direct recruits in the

seniority list. On the representation of the promotees, an

order was passed by the Govt. on 21.7.75 changing the date of

promotion of the promotees to a prior date in 1961.

Subsequently other orders were passed pushing back the dates

of promotion still further to December 1958 for respondents 6

& 7 and February 1961 for respondents 14 to 23. Those orders

were challenged by respondents 1 to 5 who were direct recruits

and the orders were quashed. That ruling has no relevance in

the present case.

21. IN Keshav Chandra Joshi vs Unior of India 1992

Supp. (1) SCC 272 promotion was made in excess of the quota on

ad hoc basis as a stop-pag arrangement as direct recruits were

not available. Such appointment by promotion being contrary to

rules, the Bench held that the promotees could not claim the

benefit of their officiation in the promoted post before the

date of the vacancy within the quota as such service was

fortuitous.

22. In 'Aghore Nath Dey' (1993) 3 SCC.371, this

Court explained the scope of applicability of corollary to

Conclusion (A) and Conclusion (B) in Direct Recruit Class II

Engg. Officers' Association case (supra) and reiterated that

the benefit of ad hoc service is not admissible if appointment

was in violation of Rules. In V. Srinivasa Reddy vs. Govt. of

A.P. 1995 Supp. (1) SCC 572 the contest was only between two

sets of direct recruits and the decision turned on an

interpretation of the relevant Service Rules.

23. In V.P. Shrivastava and ors. Versus State of

M.P. (1996) 7 SCC, 759 the promotees who were appointed de

horse the rules and not approved by the Public Service

Commission, were held to be juniors to direct recruits

regularly appointed after selection through Public Service

Commission in spite of their longer service.

24. In U.P. Secretariat case J.T. 1997 (2) S C

461 the promotees were appointed in officiations capacity

against vacancies reserved for direct recruitment as no direct

recruitment had taken Place. This Court affirmed the judgment

of the High Court holding that direct recruit was to be

treated from the date on which he actually joined the service

and the promotee was to be fitted into the service from the

date when he was entitled to figment in accordance with quota

and rota prescribed under the Rules.

25. The ruling in 'Jagdish Ch. Patnaik' J.T.1998

(3) S C 105 has no application in this case. It is wholly

unnecessary to invoke the principle stated in Mohd. Sadar Ali

J.T. 1998 (5) S C 627 that the earlier judgment cannot be

reconsidered after a lapse of nine years.

26. We have no hesitation to hold that the

impugned seniority list of 1995 prepared by the Govt.

pursuant to the directions contained in D.N.Saksena and

V.K.Yadav is in accordance with the Rules and cannot be

interfered with on the ground that promotees have been given

the benefit of their service in officiating capacity. The

question is answered in favour of the appellants. As stated

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already individual relevances against their placement in the

list have to be agitated in appropriate forum. The judgment

of the High Court is unsustainable and it is set aside. The

Writ Petition filed by respondents 3 & 4 is dismissed. The

parties will bear their respective costs.

27. Before parting with the case, we wish to place

on record our strong disapproval of the stand taken by the

State Government in this appeal. In the High Court,

Government stood by the seniority list and justified it. When

the High Court allowed the writ petition, the Govt. ought to

have filed an appeal in this Court particularly because the

promotees were not made parties to the writ petition. Not

only did the Govt. fail to do so but in this Court it

actively supported the case of the writ petitioners. The

conduct of the Govt. is highly reprehensible. It is only

because of such attitude, the disputes between direct recruits

on the one hand and promotees on the other became perennial.

It is hightime the Govt. released that if the employees are

made to live through endless litigations, administration

cannot be carried on properly.