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PETITIONER:

M.K.SHANMUGAM & ANR.

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 25/04/2000

BENCH:

N.S.Hegde, S.R.Babu, S.S.Ahmad

JUDGMENT:

RAJENDRA BABU, J. :

Civil Appeal No. 5086 of 1994

This appeal is directed against the order made by the

Central Administrative Tribunal, Bombay Bench [hereinafter

referred to as `the Tribunal'] on November 5, 1993 in O.A.

No. 286/92. Respondents Nos. 3 and 4 filed an application

O.A. No. 286/92 before the Tribunal. The pleadings raised

in the application, briefly stated, are as under.

The respondents were directly recruited through the

Union Public Service Commission as Assistant Executive

Engineers (Electrical) Class I in the Ministry of

Communications, while respondents Nos. 3 to 5 before the

Tribunal were recruited as Assistant Engineers (Electrical)

Class II and both the applicants and the other respondents

were subsequently promoted on ad hoc basis and thereafter

they were regularised as Executive Engineers (Electrical).

The two respondents were aggrieved by the letter sent on

February 6, 1992 which was accompanied by a seniority list

of the Department of Telecommunications whereby the ad hoc

services rendered by respondents 3 to 5 before the Tribunal

as Executive Engineers from May 25, 1977, February 21, 1982

and April 16, 1982 respectively being treated as regular

services and counted for the purpose of seniority in that

grade and proposed to re-fix that position in the final

seniority list of Executive Engineers as on April 1, 1985

and thus the applicants before the Tribunal being pushed

down in the seniority list.

There are two channels of recruitment under the

relevant recruitment rules and promotions to the post of

Executive Engineer are to be made from two categories,

namely, Assistant Executive Engineer Class I with five years

regular service on seniority-cum-fitness basis

(non-selection) in the 2/3rd quota and the other being

Assistant Engineer Class II with eight years regular service

on seniority-cum-merit basis (selection method) in the 1/3rd

quota selection being made by the Departmental Promotion

Committee with a member of the UPSC as Chairman.

The stand taken by the applicants before the Tribunal

is that while regular promotions to the grade of Executive

Engineers from the Assistant Executive Engineers cadre was

made regularly from 1976. However, the seniority in respect

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of Assistant Engineers Class II was not finalised till

November 1987 in view of certain disputes inter se the

promotees in the cadre. The D.P.C. thereafter selected

from the category of Assistant Engineers Class II in a

meeting held only in May 1988 when the D.P.C. selected the

appellants for the vacancies belonging to their quota for

the years 1977 to 1982. The appellants had thus worked for

long period varying from 6 to 11 years in the post of

Executive Engineer on ad hoc before the D.P.C. could meet

for finalising regular promotion. The revision of the

seniority list which was challenged before the Tribunal, it

was submitted, was only a corrective action though belated

to render justice to the affected persons and is in

compliance of the judgment of the Madras Bench of the

Tribunal dated October 12, 1990 in O.A. No. 113/89

directing disposal of the representation regarding the

seniority of one of the appellants. It was further made

clear in the said direction that it has to be decided after

taking into account the decision of the Principal Bench of

the Tribunal in N.N. Chakraborty case in O.A. No. 978/87

and of this Court in Direct Recruit Class II Engineering

Officers' Association v. State of Maharashtra & Ors., 1990

(2) SCC 715. After noticing several decisions of this Court

and of the Tribunal, it was held that under the statutory

recruitment rules promotions to the post of Executive

Engineer were to be made from among the Assistant Engineers

Class II with eight years regular service on

seniority-cum-merit by selection method in the 1/3rd quota

and admittedly the appellants were promoted on ad hoc basis

as Executive Engineers on different dates mentioned earlier.

The relevant appointments were purely temporary and on ad

hoc basis and were for a limited duration and it was also

made clear that services on ad hoc basis will not confer any

claim in the matter of seniority, confirmation, etc. Thus

it was noticed that the ad hoc promotions were made in

administrative exigencies since seniority lists of Assistant

Engineers could not be finalised in view of pending

litigation and, therefore, the D.P.C. meeting for regular

selection could not be arranged. Non- selection for a

selection post can hardly be considered to be a minor

procedural deficiency and, therefore, the Tribunal concluded

that selection was not by a competent D.P.C. and the ad hoc

promotion was itself for a limited time and, therefore, does

not fulfil the conditions mentioned in the decision in State

of West Bengal & Ors. v. Aghore Nath Dey & Ors.., 1993 (3)

SCC 371. The Tribunal is of the view that ad hoc service to

count for seniority must be rendered continuously till the

date of regularisation for 15 years or more and, therefore,

it held that the appellants could not take advantage of the

ad hoc promotions made purely as a stop gap arrangement and

it is only in special circumstances such ad hoc service

could be counted for purpose of seniority as noticed in some

of the decisions of this Court. Consequently, the

application filed by the contesting respondents was allowed

and it was declared that the appellants were not entitled to

count their ad hoc service in the post of Executive

Engineers (Electrical) for seniority, confirmation,

promotion, etc.

It is contended before us that regular promotions from

Executive Engineers, which is a feeder cadre, to the grade

of Superintending Engineer could not take place immediately

and four vacancies of Superintending Engineers had arisen by

the time the meeting of D.P.C. was held on October 17,

1984. Strong reliance was placed on the counter affidavit

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filed before the Tribunal which is to the following effect

:- "The first two points after Point No. 7 of seniority

list dated 10-4- 85 thus, go to the officers promoted from

the rank of AEE(E) and SL No. 10 goes to the officer

promoted from the rank of AE(E). A point was left blank in

seniority list to accommodate an officer promoted from Group

B. This was erroneously shown as Sl No. 9 instead of SL

No. 10. This mistake has later on been rectified. The

applicant cannot presume that in the selection process, he

will find the top most position on the panel. The DPC

chaired by a Member of UPSC will draw a select panel

according to statutory Recruitment Rules."

Appellant No. 1 claimed that he was assigned top most

position by the D.P.C. held on May 13, 1988 but the

provisional seniority list dated January 12, 1989 did not

reflect his position and in those circumstances he sought

permission to withdraw the pending application with liberty

to file a fresh application. So far as appellant No. 2 is

concerned, he filed an O.A. before the Madras Bench of the

Tribunal claiming seniority from the year 1982 when he was

promoted on ad hoc basis to the grade of Executive Engineer

(Electrical). The Tribunal rejected the contention raised

by the Department that he is deemed to be on regular basis

only with effect from May 13, 1988 when the D.P.C. met.

Since the seniority list dated January 12, 1989 was only

provisional the Tribunal directed appellant No. 2 to make

another representation to the Department which the

Department was directed to dispose of in accordance with

law. Pursuant to this direction given by the Madras Bench

of the Tribunal it is stated that the seniority had to be

re-fixed and, therefore, it is contended that inasmuch as

they had rendered service for a long period at any rate in

higher cadre and their promotions having been subsequently

regularised ought to be treated as giving them seniority in

the matter.

The stand taken by the contesting respondents is that

under the relevant rules the D.P.C. should be headed by a

member of UPSC which was not done in the case of the

appellants at the time of their ad hoc appointment and

appellant No. 1 was duly considered in 1978 and was not

found suitable and for that reason his name did not figure

in the selection list and there was no additional quota

vacancy in the grade of Executive Engineer (Electrical)

meant for group B cadre officers upto 1985. As a matter of

fact, B.V. Ramanamurthy, who is admittedly senior to both

the appellants, was only regularised on June 28, 1985 with

effect from April 1, 1975 as he came under the purview of

clause 4C of amended rules published on September 22, 1984.

Since the appellants herein were not covered under clause 4C

of amended rules 1984 and also additional quota was not

available as such, they could not be regularised prior to

1985. The Tribunal has taken note of the fact that the ad

hoc promotions given to the appellants were not de hors the

rules. It was contended that there were four vacancies

against Assistant Engineers' quota but Department had

informed the D.P.C. to fill two vacancies from direct

recruitment and the D.P.C. accordingly selected K.

Subramanian and T.Mohan Rao though B.V. Ramanamurthy and

the first appellant were also eligible and vacancies were

existing they were not regularly promoted by wrong

interpretation of rules and separately reserving two

vacancies for promotee cadre. Such provision is not

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existing in recruitment rules and the petitioners are the

initial constituents in Assistant Engineer (Electrical)

grade and are much above promotees in the Assistant Engineer

(Electrical) seniority list. There was considerable delay

in the introduction of initial constitution clause and the

same was published only in 1984 after a gap of 9 years and

came into force with effect from April 5, 1975. The

Screening Committee was thereafter convened by the

Department on August 16, 1985 and appellants and officers,

including B.V. Ramanamorthy and several other officers,

were promoted on the dates indicating against their names.

Appellant No. 1 and R. Ravindran were not included as

initial constituents since they neither completed eight

years of service nor on ad hoc before April 5, 1975. Their

promotions fall under maintenance clause 4A and 4B of

amended rules 1984. They, however, formed the initial

constituents in Assistant Engineer (Electrical) or Assistant

Executive Engineer (Electrical) cadre separately. On that

basis it was contended that the seniority list published is

in order.

The Union of India has also filed two appeals - one

(Civil Appeal No. 3018 of 1997) arising out of judgment

dated June 27, 1996 in O.A. No. 108/96 passed by the

Madras Bench of the Central Administrative Tribunal and

other (Civil Appeal No. 5081 of 1994) against judgment and

order dated November 5, 1993 passed by the Tribunal in O.A.

No. 286/92. In O.A. No. 108/96 the Madras Bench of the

Central Administrative Tribunal merely followed the judgment

of the Tribunal which is under appeal before us in Civil

Appeal No. 3018 of 1997.

There is another dimension to the case by reason of

the introduction of the Rules called "The Posts & Telegraphs

Civil Engineering (Electrical Gazetted Officers) Recruitment

(Amendment) Rules, 1984", which were given retrospective

effect from April 5, 1975. It is explained that the reason

for introduction of these Rules is that for recruitment to

the various posts in the Electrical Branch of the Civil Wing

of the Posts & Telegraphs Department, the rules of

recruitment were published on the April 5, 1975. Prior to

commencement of the said Rules, there were officers who had

joined directly as Assistant Executive Engineer (Electrical)

through the Combined Engineering Services Examination held

by the Union Public Service Commission. Those who had come

on deputation from C.P.W.D. were also deemed to have been

regularly appointed in the Posts & Telegraphs Department

pursuant to a decision of the High Court of Allahabad. Some

of the officers were promoted to the higher grades on ad hoc

basis. In order to ensure that these officers are not

deprived of the service rendered by them before commencement

of the rules, it was proposed to incorporate retrospectively

a provision for initial constitution of these posts.

Therefore, though the rules were amended by a notification

issued on April 22, 1984 published in the Gazette of India

and it was given retrospective effect but the purpose of

giving retrospective effect to the provision relating to the

initial constitution of these posts would not prejudicially

affect the interests of any person already in service. It

is in this background, it is contended before us, that the

cases of the appellants could not be considered to the post

of Superintendent Engineers although they were functioning

as the Executive Engineers without determining their

position in the initially constituted cadre and that could

be done with reference to the rules, as amended in 1984

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which came into effect from April 5, 1975. Though there may

have been some delay and complications arising thereto there

is another factor which needs to be considered in these

cases. The case of the 1st appellant was considered by the

Departmental Promotion Committee in which Air Marshal

T.S.Virk was present on behalf of the UPSC and who presided

over that meeting for selection of officers for officiating

promotion to the grade of Executive Engineer (Electrical)

and it was noticed that out of four vacancies, two vacancies

are to be filled by promotion of direct recruit Assistant

Engineer (Electrical) and the remaining two vacancies were

kept reserved for the promotion of Assistant Engineer

(Electrical). As no officer was available for consideration

at present and the Committee accordingly considered the 4

eligible officers and assessed them. While K.Subramanian,

T.Mohan Rao and B.V.Ramnamurthi were found to be `very

good', the 1st appellant was assessed to be only `good'.

This was recorded in the minutes of the meeting of the

Departmental Promotion Committee held on June 2, 1978 in the

office of the UPSC. Thereafter, in the minutes of the

meeting of the meeting of the Departmental Promotion

Committee held on May 13, 1988, the 1st appellant was found

to be `very good' for the year 1977 as an Executive Engineer

(Electrical) Group A. It is in these circumstances, it is

to be considered whether the case of the 1st appellant could

have been considered earlier to the date he was found fit to

be promoted. The initially constituted cadre is of the date

April 5, 1975 and on that date the 1st appellant had not

been considered for promotion to the post of Executive

Engineer and he was found fit to be promoted as Executive

Engineer only with effect from 1977, i.e., much later to the

promulgation of these rules. Reliance has been placed on

the decision of this Court in Direct Recruit Class II

Engineering Officers' Association [supra]. That is a case

where the quota rule between the direct recruits and the

promotees had broken down and the appointments were made

from one source in excess of the quota, but were made after

following the procedure prescribed by the rules for the

appointment; therefore, it was held that the appointees

should not be pushed down below the appointees from the

other source inducted in the service at a later date. In

that case the direct recruits were not available in adequate

number for appointment and appropriate candidates in the

subordinate rank capable of efficiently discharging the

duties of Deputy Engineers were waiting in their queue. The

development work of the State pre-emptorily required

experienced and efficient hands and in that situation the

State Government took a decision to fill up the vacancies by

promotion in excess of the quota, but only after subjecting

the officers to the test prescribed by the rules.

Therefore, in those peculiar conditions certain directions

had been given by this Court inasmuch as the rigours of the

quota rule having been neutralised and the seniority being

dependent on continuous officiation, the seniority so fixed

would not be defeated by the ratio fixed by the rules. It

is difficult to appreciate as to how the principle stated in

that case could be extended to the case of 1st appellant in

the present case as the quota rule had not broken down in

any manner nor is there any material before the court to

show that he has not been duly considered by the

Departmental Promotion Committee before appointment to the

higher grade. Again in the case of State of West Bengal &

Ors. vs. Aghore Nath Dey [supra] the same question arose.

In that case it was noticed that when reckoning seniority

the length of the service may be a relevant factor. If the

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ad hoc selection is followed by regular selection, then the

benefit of ad hoc service is not admissible if ad hoc

appointment is in violation of the rules. If the ad hoc

appointment has been made as the stop gap arrangement and

where there was a procedural irregularity in making

appointments according to rules and that irregularity was

subsequently rectified, the principle to be applied in that

case was stated once again. There is difficulty in the way

of the appellants to fight out their case for seniority

should be reckoned by reason of the length of the service

whether ad hoc or otherwise inasmuch as they had not been

recruited regularly. As stated earlier, the appellants were

regularly found fit for promotion only in the year 1977 and

if that period is reckoned their cases could not be

considered as found by the Tribunal. The view expressed by

this Court in these cases have been again considered in the

decisions in Dr. Anuradha Bodi & Ors. v. Municipal

Corporation of Delhi & Ors., 1998 (5) SCC 293; Keshav Deo &

Anr. v. State of U.P. & Ors., 1999 (1) SCC 280; Major

Yogendra Narain Yadav & Ors. v. Bindeshwar Prasad & Ors.,

1997 (2) SCC 150; I.K. Sukhija & Ors. v. Union of India

& Ors., 1997 (6) SCC 406; Government of A.P. & Anr. v.

Y. Sagareshwara Rao, 1995 Supp. (1) SCC 16, but all these

decisions do not point out that in case the promotions had

been made ad hoc and they are subsequently regularised in

the service in all the cases, ad hoc service should be

reckoned for the purpose of seniority. It is only in those

cases where initially they had been recruited even though

they have been appointed ad hoc the recruitment was subject

to the same process as it had been done in the case of

regular appointment and that the same was not a stop gap

arrangement. That is not the position in the present cases

at all. Therefore, we are of the view that conclusions

reached by the Tribunal appear to us to be correct and call

for no interference. However, we make it clear, as noticed

earlier, that while amending the rules of recruitment in the

1984 all those who are already in service will be borne in

mind in adjusting the seniority amongst the promotees inter

se and suitable adjustments could be made and so far as the

direct recruits are concerned, their cases will go by their

quota rule and the view taken by the Tribunal in this regard

cannot be taken exception of.

Appeals stand dismissed accordingly.