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Bhey Ram Sharma Vs. Haryana State Electricity Board [1993] INSC 344 (8 September 1993)

Singh N.P. (J) Singh N.P. (J) Agrawal, S.C. (J)

CITATION: 1993 AIR 2573 1994 SCC Supl. (1) 276 JT 1993 (5) 185 1993 SCALE (3)668

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by N.P. SINGH, J.- The appellants in three appeals filed a writ application before the High Court, claiming seniority over Respondents 2 to 29 of the said application and sought a direction from the High Court, for correction of the seniority list of Assistant Engineers Class 11, published by the Haryana State Electricity Board (hereinafter referred to as "the Board"). The said writ application was dismissed by a learned Judge of the High Court. The appeal filed on behalf of the appellants was also dismissed by the said High Court.

2.An advertisement dated June 30, 1967 was published by the Board inviting applications for the posts of Assistant Engineers Class II (Electrical) and Apprentice Engineers (Electrical). Pursuant to the said advertisement, the appellants made applications for Apprentice Engineers (Electrical). The advertisement prescribed three conditions. The first condition was in respect of the academic qualifications. The second condition relating to the period of apprenticeship was as follows:

"He will have to undergo apprenticeship for a period of six months or such period as may be decided by the Board which can be extended up to a maximum of three years. After completion of the said training, they will be considered for appointment to the post of Assistant Engineer Class II in the scale of Rs 350-25- 450/30-600/EB-40-800 with starting salary of Rs 350 p.m. on the basis of their work and conduct." The third condition was in respect of giving an undertaking in writing that the candidate shall serve the Board for a period of two years after completion of his training. In the offer of appointment issued to the appellants, it was said:

"APPRENTICESHIP:You will have to undergo apprenticeship for a period of one year or such period as may be decided by the Board.

After completion of the above said training, you will be considered for appointment to the post of Asstt. Engineer Class II in the scale of Rs 35025-450/30-600/EB-40-800 at the basic pay of Rs 350 p.m. on the basis of your work and conduct." 3.After completion of the training in terms of the advertisement and the offer of appointment, the appellants were appointed as Assistant Engineers Class 11, w.e.f. January 1, 1969.

4.It may be mentioned that another advertisement dated July 14, 1968 had been published by the Board for filling up the posts of Assistant Engineers Class II and pursuant to that advertisement, Respondents 2 to 29 (hereinafter referred to as "the respondents") made applications and they were selected and appointed between October and December 1968 as Assistant Engineers Class II. As the respondents aforesaid had been appointed between October and December 1968 and the appellants had been appointed w.e.f. January 1, 1969 in the seniority list which was published, the respondents were shown above the appellants. There is no dispute that so far the appellants are concerned, they were appointed as Assistant Engineers Class II by an order dated April 18, 1969, w.e.f. January 1, 1969 after completion of their apprenticeship, whereas 279 the respondents were appointed as Assistant Engineers Class II before January 1, 1969. There was some confusion in respect of Respondents 6, 16, 17 and 28 as to whether they had also been appointed prior to January 1, 1969, but during hearing of the appeals, an affidavit was filed on behalf of the Board giving the dates of their appointments as October 23, 1968, November 21, 1968, November 21, 1968 and December 6, 1968 respectively. Photo copies of their appointment letters have been annexed along with the affidavit. They, however, joined later. It is well known that while determining the seniority of an officer, the date of his appointment is a more important factor than the date of his joining. In many compelling circumstances like accident, the distance at which a particular candidate resides and the time taken by him to join, cannot be ignored. So far the present case is concerned, Respondents 6, 16, 17 and 28 were not only appointed before the appellants but they joined also before April 18, 1969 the date of the appointment of the appellants. The notional seniority given to the appellants with effect from January 1, 1969 shall not affect the seniority of Respondents 6, 16, 17 and 28.

5.This Court has examined the question of fixation of seniority inter-se between officers appointed from different sources i.e. by promotion and by process of direct recruitment. It is almost settled that while determining the inter-se seniority amongst officers recruited from different sources or between officers appointed by the same process at different times, the date of entering in the service is relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise which can be held to be consistent with Articles 14 and 16 of the Constitution. Reference in this connection may be made to the cases of N.K. Chauhan v. State of Gujarat', Paramjit Singh Sandhu v. Ram Rakha Mal2, A. Janardhana v. Union of India3, A.N. Pathak v. Secy. to the Govt., Ministry of Defence4. The same view was approved by a Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra5.

6.Once it is established that the appellants were appointed Assistant Engineers Class 11 on April 18, 1969 w.e.f. January 1, 1969, whereas the respondents had been appointed between October and December 1968 as Assistant Engineers Class II, then the respondents shall rank senior to the appellants, as they entered in the cadre of Assistant Engineers Class 11 of the Board before the appellants. The High Court has rightly pointed out that in fact the appellants were appointed as Assistant Engineers Class 11 on April 18, 1969, but notional seniority was given to them with effect from January 1, 1969. In this process they cannot affect the seniority of even Respondents 6, 16, 17 and 28.

1 (1977) 1 SCC 308: 1977 SCC (L&S) 127 : AIR 1977 SC 251 2 (1982) 3 SCC 191 1982 SCC (L&S) 266: AIR 1983 SC 314 3 (1983) 3 SCC 601 1983 SCC (L&S) 467: AIR 1983 SC 769 4 1987 Supp SCC 763 :1988 SCC (L&S) 370: (1988) 6 ATC 626: AIR 1987 SC 716 5 (1990) 2 SCC 715 : 1990 SCC (L&S) 339: (1990) 13 ATC 348 280 7.According to the appellants, as in the advertisement aforesaid, it had been said that they had to undergo apprenticeship for a period of six months, after expiry of that period they should have been appointed as Assistant Engineers Class II. It was urged that if they had been appointed as Assistant Engineers Class II just after the expiry of the period of six months of apprenticeship, they would have ranked senior to the respondents. It need not be pointed out that the advertisement while saying that the candidate concerned will have to undergo apprenticeship for a period of six months had also said that he will have to undergo training for such period, as may be decided by the Board, which can be extended up to a maximum of three years.

Even in the offer of appointment, referred to above, it had been said in clear and unambiguous terms that the candidate will have to undergo apprenticeship for a period of one year or such period as may be decided by the Board. We fail to appreciate as to how the appellants while challenging the seniority list can make a grievance in respect of the period of apprenticeship which was specifically mentioned in the advertisement and in the offer of appointment. According to us, if the appellants were required to undergo apprenticeship for a period exceeding six months, no in justice has been done to them and that cannot be a ground for questioning the seniority list.

8.On behalf of the appellants, it was also pointed out that in the past in respect of some of the candidates, the period of apprenticeship, was for six months only. That is of no consequence when in the advertisement as well as in the offer of appointment with which we are concerned, it had been clearly stated that such period of six months could be extended up to a maximum of three years. Accordingly, the appeals fail. But in the facts and circumstances of the case, there shall be no order as to costs.

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