I.K. Sukhija & Ors Vs. Union of India & Ors  INSC 563 (8 July
AGRAWAL, G.T. NANAVATI
involved in these 4 appeals being the same they were heard together are
disposed of by this common judgment.
appellants (in all eleven) started their career as Junior Engineers in the
Central Public Works Department. On formation at P&T (Civil Wing) on
1.7.1963 the construction and maintenance work of P&T buildings was taken
over from C.P.W.D. The services of the Junior Engineers (Elect.) of C.P.W.D.
who are earlier looking after the building of P&T were transferred to the
P&T (Civil Wing). Initially, they were treated on deputation without any
deputation allowance but in 1969 they were absorbed in the P&T Department
and were also designated as Section Officers. They were promoted as Assistant
Engineers (Elect.), on ad hoc basis between 1970 to 1977. All of them were
appointed as A.Es. (E) on regular basis with effect from 20.3.1978. At that
time it was directed that their names shall be arranged in order of their
seniority in the grade of Assistant Engineers. Their seniority vis-a-vis direct
recruits was to be fixed subsequently.
provisional seniority list of Assistant Engineers was prepared in 1986 and finalised
in 1987. It was challenged before the Bombay Bench of the Central
Administrative Tribunal in O.A. No. 373 of 1987. The Tribunal quashed it in so
far as it determined seniority between direct recruit and promotee Assistant
Engineers. The department was directed to prepare a fresh seniority list in
accordance with O.M. dated 22.12.59 of the Ministry of Home Affairs and the
observation made in its judgment. Accordingly a revised seniority list was
prepared and notified on 22.5.92. The new seniority list was prepared by
following the principle of quota and rota prescribed by the said O.M. dated
22.12.59 as the Tribunal had held that quota rota system had not broken down.
In the new seniority list the date of regular appointment of the appellants was
shown as 20.3.78, The appellants were not satisfied with the new seniority
list; and therefore, they challenge it before the Principle Bench of the
Central Administrative Tribunal at New Delhi. The appellants sought a direction to determine their seniority by taking
into consideration their uninterrupted and continuous ad hoc service. They
wanted this relief even if there was break down of the quota rota rule. They
had also prayed for other consequential reliefs.
contention of the appellants was that there was no break down of the quota rota
rule, that they were appointed against regular vacancies on their being found
fit and suitable by Department Promotion Committee and that their appointments
were made in accordance with the rules prevailing then.
Tribunal, after taking into consideration the reason for making ad hoc
appointments of the appellants and the procedure followed for the purpose, the
orders of their appointment, proceedings of the meeting of the D.P.C. in
February-March 1978 pursuant to which the regular appointments were made and
conduct of the appellants in that they had offered them selves for the test
held for making regular promotion, came to the conclusion that the appointments
of the appellants were not only ad hoc but also by way of stop gap arrangement
in order to meet with the exigencies of service due to heavy constructional
activity undertaken by the P&T (Civil Win) at the relevant time. The
Tribunal also held that the decision of the Bombay Bench of the Tribunal in
O.A. No. 373 of 1987 having become final and conclusive it had to proceed on
the basis that there was no break down of the quota and rota rule. On these
premises the Tribunal further held that the case of the appellant is governed
by proposition `A' laid down in Direct Recruit Class II Engineering Officers'
Association vs. State of Maharashtra 1990 (2) SCC 715 and, therefore, they are
not entitled to the benefit of continuous officiation for the purpose of
considering their seniority. The Tribunal also examined the case of the
appellants with reference to proposition `B' laid down in that case. As the
period of service rendered by the appellants as ad hoc Assistant Engineers
varied from 1 to 8 years only it held that the period cannot be regard as
sufficiently hong so as to entitle them to count it for the purpose of their
seniority, particularly when between 1975 and January 1978 they had prevented
the department from holding the test for regular selection under the 1975
Rules. The Tribunal also held that the appellants were not entitled to such
benefit either on the basis of the decision in Keshav Chandra Joshi vs. Union
of India 1992 Supp. (1) SCC 272 or on the basis of the decision in State of
West Bengal vs. Aghore Nath JT 1993(2) 598. The Tribunal dismissed the O.As. filed
by the appellants and upheld the seniority list prepared by the department. Hence
we consider the rival submission, certain facts which are not in dispute may be
stated. On 1.7.63 P&T (Civil Wing) was formed by taking over the construction
and maintenance work of P&T buildings from C.P.W.D. Some J.Es.
C.P.W.D. who were handling the said work were also transferred to the P&T
(Civil Wing). Initially, they were treated as on deputation without any
deputation allowance but in 1969 they were absorbed in the P&T Department.
Fro 1964 onwards the P&T Department had also started its own recruitment to
the grades of J.Es. (E) and A.Es.(E). Though there were recruitment rules for
the post of J.E. (E) there was no provision for absorption of J.Es., brought on
transfer in that cadre. There were no recruitment rules for the posts of
Assistant Engineer (E). For the first time in 1969 Draft Recruitment Rules for
Communication Electrical Engineering Service Class II were framed by the
P&T Department. The post of Assistant Engineer (E) was a Class II post in
Communication Electrical Engineering Service.
draft rules were not prepared in exercise of any statutory power. They provided
filling up of the vacant posts in the grade of Assistant Engineers Class II in
the ratio of 50:50 i.e. 50% by direct recruitment and 50% by promotion. Promotion
were to be given on the basis of recommendations made by the Departmental
Promotion Committee by selecting the candidates on merits. The eligibility
criteria was five years approved service in case of graduates and 8 years
approved service in case of non- graduates. It could be relaxed upto three
years in case of graduates and six years in case of non-graduates. Rules 5 also
gave power to the Government to relax any provision to such extent as was found
necessary to ensure satisfactory working or to remove inequitable result. Even
though the draft rules were framed in 1969 they could not be finalised till
1975. No regular appointments of Assistant Engineers were made between 1970 and
1975 because the rules could not be finalised. In 1975 rules called `The Posts
and Telegraphs Civil Engineering (Electrical Gazetted Officers) Rules 1975'
were framed under Article 309. Even thereafter no regular promotion were made
till 1978 as the departmental qualifying examination which was a pre-requisite
for promotion could not be held till that year. Thus all the promotions,
including those of the appellants, were made only on ad hoc basis.
has been submitted on behalf of the appellants is that though in the letters of
their appointments as A.Es.
was stated that their appointments were `on purely ad hoc basis' that was not
by way of stop-gap arrangement made for the purpose of meeting with some urgent
administrative exigencies. They were eligible for promotion and their merits
were duly considered by the D.P.C. When they were promoted as A.Es. (E) regular
vacancies in the promotion quota were available. Therefore, the only reason why
they were not regularly promoted and their promotions were described as ad hoc
was the delay on the part of the Department in finalising the draft recruitment
other hand it was contended on behalf of the respondents that the ad hoc
promotion of the appellants were made as the construction activity has
increased considerably and pending finalisation of the recruitment rules they
could not have been regularly promoted. They has also not under gone the
required process of selection in view of the criteria of merit. Though they had
undergone some process of selection at the hands of the D.P.c. That was only
for the purpose for promotion them on ad hoc basis. Therefore, they cannot
claim the benefit of their ad hoc service as A.Es. for the purpose of
determining their seniority in that grade.
department could not produce any record, as it was not available, to show what
was the position between 1964 and 1969 regarding recruitment to the cadre of
A.E. (E), how the appellants were absorbed in the cadre of J.Es. and under what
circumstance they came to be promoted on ad hoc basis.
only material which throws some light and which has been brought on record of
these cases is (1) two letters dated 1.6.70 and 8.10.71 regarding filing up of
some vacancies of Assistant Engineers(E) by promotion (2) minute of the meeting
of the D.P.C held in February-March 1978 and (3) letter dated 22.8.1977 written
by the U.P.S.C to the Government.
letter dated 1.6.70 it is stated that "some vacancies of the Assistant
Engineers (Elec.) in the Posts & Telegraphs Civil Wing are to be filled by
promotion and the Department Promotion Committee will be held shortly to select
suitale officials for promotion. The crucial date for relaxing service
requirement for his Department Promotion Committee would be First July, 1970. It is proposed to consider the
officials under the relaxed service requirement i.e. three years for graduates
and 6 years for non- graduates." After stating so he directed the
Superintending Engineer to furnish particulars of all Section Officers who were
eligible for consideration. This letter refer to the draft recruitment rules
made for Communication Electrical Engineering Service Class II. It also refer
to the eligibility criteria contained in the said rules. A similar letter was
written, except the relaxation part, by the Assistant Director General on
8.10.71l to the Superintending Engineers of New Delhi, Bombay and Calcutta. Both these letters make it clear that though the draft
recruitment rules has not been finalised the promotions in 1970 and thereafter
were made in accordance with the said rules.
appellant in their application before the Tribunal and asserted that the D.P.C.
had made the selection on regular basis. However, there is nothing on record to
show in which manner the selection was made by it. It appears that the D.P.C.
has followed some process of selection to find out their comparative merit
because some persons senior to the appellants thought considered were not
recommended for promotion and the merit list was not prepared according to the
seniority of the candidates selected. It is, however, significant to note that
the draft rules of 1969 did not contain any provision prescribing how selection
was to be made by the D.P.C. They did not contain any requirement of passing an
examination like departmental qualifying examination. The Post and Telegraph
(Civil Engineering Electrical Gazetted Officers) Recruitment Rules, 1975 which
came into force on 5.4.75 prescribed for the first time passing of the
department qualifying examination as a condition for promotion to the grade of
A.E. (E). There was no rule which permitted and prescribed procedure for making
of ad hoc appointments. Even otherwise also there was no separate procedure
prescribed for making such ad hoc appointments of appellants were described as
ad hoc was that the draft recruitment were described as ad hoc was that the
draft recruitment rules were pending consideration and were not finalised.
contended by the respondents and the finding of the Tribunal is also that the appellants
has not undergone any regular selection process as they had not passed the
required qualifying examination. As stated earlier there was no requirement of
passing a departmental qualifying examination for promotion as A.E. (E) till
the year 1975.
thing stated in the draft rules was that the post of A.E. was a selection post.
This aspect has been completely missed by the Tribunal. Therefore it wrongly
came to the conclusion that the appellants had not undergone the regular
selection process and for that reason their appointments were made on temporary
and ad hoc basis by way of stop-gap arrangement only. Really, the appellants
were promoted on those terms because the draft rules has not been finalised.
not relevant for this case to consider whether it was rightly believed that
pending consideration of the Draft Rules no regular recruitment could be made.
The fact remains that carrying that impression the Department thought it proper
to promote the appellants only on temporary and ad hoc basis.
next relevant document is the minutes of the meeting of the D.P.C. held in
February-March, 1978 recorded in connection with considering the ad hoc promotees
for regular promotion. It refers to the taking over of construction work from
the C.P.W.D. and formation of P&T (Civil Wing). It further records that as
the Rules could not be finalised till 1975 and as heavy constructional activity
was undertaken by P&T department some J.Es. were promoted to the grade of A.E.s
on ad hoc basis. As the rules came to be finalised a question of making regular
promotion to that grade arose and it was for that reason that it had met on
that day for considering the cases of eligible candidates.
minutes further records that according to the Recruitment Rules which came to
be finalised in 1975, the eligibility criteria was certain number of years
service plus passing of the departmental qualifying examination. It is also
recorded therein that in respect of those who were already promoted as A.E.s on
ad hoc basis it was decided in consultation with the D.O.P. and U.P.S.C that
one time relaxation should be made in favour of those promote and instead of
taking a written test they should be subject to only oral test. The D.P.C.
considered the C.Rs. of eligible persons, number of vacancies in each year in
promotion quota and recommended who should be promoted on regular basis from
which year. On important thing that emerges form this minutes is that between
1970 and 1975 there were regular 8 vacancies. From the other material on record
it appears that in between 1970 and 1978 direct appointment on the basis of
competitive examination held by U.P.S.C. were also made. It was possibly for
that reason held by the Bombay Bench of the Central Administrative Tribunal
that the quota rule had not broken down. The department in its counter
affidavit has also maintained that the quota rules had not broken down, that it
was strictly followed and that number of vacancies falling under the direct
recruitment quota were regularly intimated to the U.P.S.C. and appointments
were made. It has not been denied that regular vacancies were available in the
promotion quota during those year. Thus the finding of the Tribunal that there
is nothing on record to show if there existed regular vacancies when the
promotion of the appellants were made is clearly erroneous. The minutes do not
support the case of the respondents that appointments of appellants as A.Es. were
made ad hoc because they had not undergone regular process of selection.
letter dated 22.8.77 written by U.P.S.C. to the Government it is stated that
prior to 1975 no recruitment rules existed for the post of Assistant Engineers
in P&T (Civil Engineering Wing). It further points out that 1975 Rules did
not apply to persons appointed before they came into force. It further refers
to its earlier letter dated 3.3.76 wherein the Ministry was advised to consider
the question of regular absorption of existing incumbents of various posts in
consultation with the Commission. It then pointed out that the 1975 Rules did
not contain any provision for absorption of Junior Engineers who were taken
over on transfer from the C.P.W.D. The said rules also did not contain any
provision for regularisation of those incumbent who were holding the posts on
ad hoc basis. It was, therefore, suggested to amend the rules and provide for
absorption of the then existing employees in their respective grades. It
appears from the order dated 7.1.78 passed by the P&T Department (Civil
Wing) that after considering the question of regularisation of the cadres of
A.E. (Civil/Elect) it was decided that "in view of the need to regularise
the cadre of A.E. (Civil/Elect) expeditiously, the Department qualifying
examination provided for in the Recruitment Rules for the grade of A.E.
(Civil/Elect) may be held orally this time only." What is to be noted from
this letter and the order dated 8.1.78 is that though the appellants and
similarly situated J.Es. were absorbed by the P&T Department (Civil Wing)
in its service their regular absorption in the cadre of J.Es (E) had not taken
place and it was for that reason that they were required to pass the
examination contemplated by the 1975 Rules. This aspect also has been missed by
the Tribunal and, therefore, it erroneously held that the conduct of the
appellants in offering themselves for the test held for making regular
promotions indicated that they had not earlier gone through the required
process of selection and for that reason their appointments were ad hoc.
emerges from the above discussion is that the promotion of the appellants as A.Es.
(E) were not contrary to any statutory recruitment rules. Even if we proceed on
the basis that in absence of statutory rules the draft recruitment rules of
1969 were applicable, what we find is that the appellants were eligible for
promotion and their cases were duly considered by the D.P.C. They were promoted
after they were found suitable by the D.P.C. and their promotions were made
according to their placement in the merit list and not according to their
seniority. When the appellants were promoted, though on ad hoc basis, clear
vacancies were available in the promotion quota. the only reason for making
their appointments as temporary and ad hoc was that the draft recruitment rules
could not be finalised till 1975. The was no unusual spurt in the construction
activity between 1970 and 1977 which necessitated giving of urgent temporary
promotions. For all the reason stated above, it is not possible to accept that
the appointments of the appellants as A.Es., though temporary and ad hoc, were
by way of stop-gap arrangements only.
Tribunal was, therefore, wrong in holding that the case of the appellants was
governed by the corollary to the rule stated by this Court as Proposition `A'
in Direct Recruits case (supra). The appellants are in a better position than
the situation contemplated by Proposition `B' in that case. If the appointees
contemplated by Proposition `B' are held entitled to the benefit of the period
of officiating service we see no reason why the appellants should not be held
entitled to such a benefit. The learned counsel for the respondents had relied
upon the decisions of this Court in A.P.M. Mayakutty vs. Secretary Public
Service Department 1977 (2) SCR 937, D.N. Agawal vs. State of Madhya Pradesh
1990 (2) SCR 131 and Masood Akhtar Khan vs. State of Madhya Pradesh 1990 (4)
SCC 24 but they have no application to the facts of these cases. In the first
two cases it was found by this Court that the appointments were ad hoc and by
way of stop-gap or emergency arrangement and, therefore, the appointees were
not entitled to the benefit of the period of their ad hoc service for the
purpose of counting their seniority. In Masood Akhtar Khan's case (supra) it
was held that the appointment were not made in accordance with the recruitment
therefore, allow these appeals, set aside the judgment of the Tribunal and hold
that the appellants are entitled to get their seniority counted from the dates
they were initially promoted as A.Es. (E). In view of the facts and
circumstances of the case there shall be no order as to costs.