G.C.
Gupta & Ors Vs. N K. Pandey & Ors [1987] INSC 365 (8 December 1987)
SEN,
A.P. (J) SEN, A.P. (J) RAY, B.C. (J)
CITATION:
1988 AIR 654 1988 SCR (2) 185 1988 SCC (1) 316 JT 1987 (4) 593 1987 SCALE
(2)1314
CITATOR
INFO : RF 1989 SC 278 (21)
ACT:
United
Provinces Service of Engineers (Buildings and Roads Branch) Class Il Rules
1936: Rules 3(b). 5(ii), 17 and 13-Engineers-Seniority and promotion-'Member of
service'-Who is-Seniority to be determined from date employee becomes 'member
of service'.
Constitution
of lndia 1950: Articles 226 and 136- Service matters-Inordinate and unexplained
delay-Relief not to be granted-Division Bench deciding that case was barred by
laches and delay-Such decision cannot be reversed by another Division Bench of
same High Court treating the matter as res integra-Doctrine of stare decisis-
Applicability of.
HEADNOTE:
%
From the year 1942-43, two vacancies in the United Provinces Service of
Engineers, both in the Buildings and Roads as well as in the Irrigation
Department, were reserved for students of the Thomson College of Civil
Engineering, Roorkee who stood first and second in order of merit in the final
examination of the degree course. These two guaranteed posts were reserved by a
Notification dated August 31, 1942 issued by the then Provincial Government
under Rule 6 of the United Provinces of Engineers Buildings and Roads Branch
Class II Rules, 1936. This reserved quota of two guaranteed posts was later on
increased by the Government to four posts each year in each of the two
branches. This system of direct recruitment of merit scholars was, however,
discontinued by another Notification dated June 22, 1950.
By
a G.O. dated April 19, 1950 the State Government settled the principle that
persons appointed to the guaranteed posts every year as Engineer students would
take their seniority over persons appointed as temporary Assistant Engineers in
that year. By a subsequent G.O. dated June 22, 1950 the Government intimated
the Chief Engineer, Building and Roads, that engineer students who were
appointed to the guaranteed posts of temporary Assistant Engineers and working
in the Buildings and Roads Branch be absorbed. In the existing permanent
vacancies or those which might arise in the future. By an office Memorandum dated
December 7, 1961 the State Government brought a change in the method of
recruitment of Assistant Engineers in the U.P. Service of Engineers Building
and Roads Branch, i.e. direct recruitment by competitive examination through a
Public Service Commission from the year 1961.
The
respondents in the appeal (petitioners in the writ petition) were initially
appointed as temporary Assistant Engineers in the U.P. Service of Engineers
(Buildings and Roads Branch) by the Chief Engineer, PWD between 1947-48 subject
to the final approval of the Government. These were subsequently approved by
the Government during 1948-49 in accordance-with the provisions of Rule 5(i) of
the Rules.
Thereafter,
on January 20, 1950 the Government in consultation with the Public Service Commission
confirmed these provisional appointments and these respondents also passed the
requisite test held by the Government. They were confirmed as permanent
Assistant Engineers in permanent posts in the cadre during 1956-58 and the date
of their confirmation was fixed as April 1, 1956.
The
appellants in the appeal (respondent Nos. 3-5 and 7 in the writ petition) were
appointed between 1951-52 as temporary Assistant Engineers against the
guaranteed posts and after completion of the probationary period were confirmed
in 1955, vide Gazette Notification dated October 11, 1955.
Seniority
of Appellants 1 to 4 was fixed earlier from April 1, 1955 whereas seniority of
Respondents 1 to 12 was fixed below them from 1956 treating the date of
confirmation in the service as the date of their becoming members of the
service.
The
respondents filed representations before the Government in 1959-60 for
re-determination of the confirmation as well as conseqential determination of
seniority of the petitioners vis-a-vis the respondents.
Their
claim was they having been appointed as Assis- 187 tant Engineers. though
temporarily, they became 'members of the Service' earlier than the appellants
and as such they were entitled to be placed above the appellants in the
seniority list. In 1960-61 the appellants had been promoted as appellants
Executive Engineers on the basis of seniority and record of service. However,
respondents Nos. 1 to 12 who later on were also promoted as Officiating
Executive Engineers never filed any representations qua Executive Engineers and
the seniority of the appellants as Executive Engineers remained unchallenged.
It
was only on May 4, 1970 after a lapse of 15 years that the respondents filed a
petition under Art. 226 challenging the order dated October l l, 1955 by which
the appellants were confirmed with effect from April 1, 1955 and the
consequential determination of the inter se seniority between direct recruits
and promotees by the orders dated July 20, 1956 and May 29, 1961.
A
Single Judge of the High Court dismissed the petition holding that the
petitioners were guilty of laches and this was upheld by a Division Bench in
appeal by its Judgment dated October 26, 1971. The Division Bench, however,
under an impression that the representations made by the petitioners in regard
to their seniority were still pending, observed that there was no reason to
think that the Government will not decide them fairly and in accodance with
law.
Factually
there was no representations except one (by D.K. Laraiya a temporary Assistant
Engineer appointed to a guaranteed post) that was pending but pursuant to the
observations of the Division Bench, the Government invited representations from
all the aggrieved persons.
The
petitioners accordingly made representations in the matter of refixation of
their inter se seniority and the Government by its order dated June 29, 1973
rejected all the representations stating that the question of inter se
seniority of Assistant Engineers had been finally settled and could not be reopened.
The
respondents thereupon filed a fresh writ petition before the 188 High Court and
a Division Bench of the High Court this time by its judgment dated May 6, 1981
directed issuance of a writ in the nature of certiorari quashing the impugned
seniority list and a writ in the nature of mandamus directing the State
Government to redetermine the inter se seniority of Assistant Engineers in the
U.P. Service of Engineers Buildings and Roads Branch Class II.
Allowing
the Appeal, the Court, ^
HELD:
[Per A.P. Sen, J. Concurring] Temporary Assistant Engineers were entitled to
the benefit of their seniority reckoned according to the date of the order of
appointment to the Service in terms of r. 23 of the United Provinces Service of
Engineers (Buildings and Roads Branch) Rules, 1936, w.e.f. the date of their
absorption into the Service by the Government in consultation with the Public
Service Commission i.e. from the date from which they became 'Members of the
Service' within the meaning of r. 3(b) of the Rules. [221 C-D] Ashok Gulati v.
B.S. Jain, [1986] Supp. SCC 597 followed. Baleshwar Das v. State of U.P. [1981]
1 SCR 44 1980 4 CC 226; N.K. Chauhan c. State of Gujarat, [1977] 1 SC R 1037
and S.B. Patvardhan v. State of Maharashtra, [1977]3 SCR 775, referred to.
2(a)
When the decision of the earlier Division Bench was arrived at keeping in view
all the aspects and it was held that the claim for re-determination of inter se
seniority between direct recruits and promotees could not be agitated after a
lapse of 16 years the later Division Bench erred in proceeding upon the basis
that the matter was still res integra. 1230F 2(b) Inordinate delay is not
merely a factor for the Court to refuse appropriate relief but also a relevant
consideration for not unsettling settled things. [231B] Malcom Lawrence Cecil
D'Souza v. Union of India & Ors. [1975] Supp. SCR 409; R.S. Makashi &
Ors. v. I.M. Menon & Ors. [1982] 2 SCR 69; K.R. Mudgal v. R.P. Singh, 1986
4 SCC 531 and 189 Rabindra Nath Bose v. Union of lndia, [19701 2 SCR 697,
referred A to.
3.
Respondents Nos. 1 to 12 were disentitled to any relief under Art. 226 of the
Constitution due to inordinate delay and laches. If the judgment of the High
Court were to be sustained after a lapse of nearly 32 years, it cannot be gainsaid
that the entire structure of the administrative set-up of the U.P. Service of
Engineers, Buildings & Roads Branch would be upset. [232E]
4.
It is still open to the Government to grant the necessary relief to the sole
respondent at present in the service others having retired. If he is found
suitable for promotion to a higher post, without disturbing the appointment,
promotion and confirmation of the appellants, by creation of a supernumerary
post. [232G-Hl
5.
In legal matters, some degree of certainty is as valuable a part of justice as
perfection. One reason for consistency is that people often regulate their
conduct with reference to existing rules, which makes it important for Judges
to abide by them. Innovations can be unsettling and lead to a loss of
confidence. [230E] Dias Jurisprudence 4th Edition p. 286.
6.
An earlier decision may be over ruled if the Court comes to the conclusion that
it is manifestly wrong and not upon a mere suggestion that if the matter was
res integral, the Court on a later occasion would come to a different
conclusion.[230E]
7.
It cannot be doubted that an unlimited and perpetual threat of litigation leads
to disorder, sense of insecurity and uncertainty. May be, there may have been
isolated cases of hardship, but there must be some reservations about
limitation on the Court's power in the public interest.
Obvious
considerations of public policy make it a first importance that the person
aggrieved must take action requisite effectively to assert his right to that
end so that if the contention can be justified, the Government service may be
disturbed as little as possible.[230H;231A-B] 190 Per B.C. Ray, J: The date of
confirmation of the petitioners Nos. 1 to 12 as permanent Assistant Engineers
in the permanent posts of Assistant Engineer in the United Provinces Service of
Engineers (Buildings and Koads Branchl, Class 11, was fixed at 1.4.1956. Vide
G.O.. dated 29.5.1961, the orders for inter se seniority exclusively of the
petitioners Nos. l to 12 vis-a-vis 39 others including the opposite parties
Nos. 8 to 13 who were all confirmed as permanent Assistant Engineers, were
issued by the Government. [198A-B] The Government, by a Gazette Notification
dated 11.10.1955, confirmed the appointments of the opposite parties Nos. 3 to
5 and 7 in the permanent posts of Assistant Engineer with effect from April 1,
1955. By office memorandum dated 20.7.1956, the Government fixed the inter se
seniority of opposite parties Nos. 2 to 7 along with 18 other officers who were
confirmed as Assistant Engineers.[199E-F] Aggrieved by the order of
confirmation of the respondents Nos. 2 to 7, petitioners Nos. 1, 4, 6, 7 and 11
made representations to the Government for re-determination of the confirmation
and consequential determination of the seniority of the petitioners vis-a-vis
the respondents. As no action was taken by the Government on the
representations above-said, the petitioners Nos. 6, 7 and 11 filed a writ
petition in the High Court in 1970, challenging the order of confirmation of
the respondents and consequential fixation of seniority on its basis. The writ
petition was dismissed on the sole ground of inordinate delay and laches.
Special Appeal against the order of the High Court filed before a Division
Bench of the High Court was also dismissed with observations and a direction to
the Government to dispose of the representations of the petitioners. The
Government by its order dated 29.6.1973, rejected, on the ground of delay and
laches, all the representations against fixation of seniority, whereupon the
petitioners filed another writ petition, claiming relief of re-determination of
their seniority in accordance with the rules, governing the services of the
United Provinces Service of Engineers Class II (Buildings and Roads Branch), as
there had been no determination of inter se seniority of the petitioners and
the respondents according to rule 23 of the United Provinces Service of
Engineers (Buildings and Roads Branch) Class II Rules, 1936. The High Court, by
its judgment and order dated May 6, 1981, allowed 191 the writ petition in
part, issuing a writ in the nature of Certiorari quashing the gradation or
seniority lists (annexures 1, 2 and 28 to the writ petition), and a writ in the
nature of mundane commanding the opposite party No.
1,
the State (Government to prepare a fresh seniority list in accordance with law
in the light of the observations made in the judgment, and to take
consequential steps thereafter.
Aggrieved
by the decision of the High Court, the appellants appealed to this Court by
special leave. [199G-H; 200A-G] The vital question that required to be
considered in this appeal was what was the yardstick or standard or norm for
determination of the seniority of the respondents who had been appointed
temporary or officiating Assistant Engineers against temporary posts of the
United Provinces Service of Engineers (Buildings and Roads Branch) Class II, as
well as toppers from the Thomson College of Civil Engineering who were directly
appointed some time in 1950 and 1951 on probation against the reserved
temporary posts and confirmed immediately after the expiry of the period of
probation against the permanent posts before the confirmation of the temporary
Assistant Engineers recruited from the Thomson College of Engineering some time
between 1948 and 1950 [205B-D) The petitioners in the writ petition who were
respondents in the appeal, were initially appointed temporary Assistant
Engineers subject to the final approval of the Government by the Chief
Engineer, P.W.D., between 1947 and 1948. Undoubtedly, these appointments were
approved by the Government between 1948 and 1949 in accordance with the
provisions of Rule S(i) of the United Provinces Service of Engineers (Buildings
and Roads Branch) Class 11 Rules 1936. Thereafter, the Government, in
consultation with the Public Service Commission, confirmed the provisional
appointments of the petitioners as temporary Assistant Engineers and these
petitioners had also passed the requisite tests held by the Government. They
were confirmed vide notifications dated 7.11.1956, 19.4.1957 and 14.5.1958.
The
date of confirmation of all these petitioners was fixed as 1.4.1956. The
respondents Nos. 3 to 5 and 7, appellants in the appeal, were appointed between
1951 and 1952 as temporary Assistant Engineers against guaranteed posts on
probation and after completion of the probationary period they were confirmed
in 1955.
192
Seniority of these appellants Nos. 1 to 4 was fixed earlier from 1.4.1955,
whereas the seniority of the respondents Nos. 1 to 12 was fixed below them from
1956, treating the date of confirmation in the service as the date of their
becoming members of the service. [206FH; 207A-C] On a consideration of the
letters of provisional appointments issued by the Chief Engineer, P.W.D., as
well as the sanctions accorded to such appointments by the Government
thereafter and confirmation of the service of the temporary Assistant Engineers
in 1950 after obtaining the approval of the Public Service Commission and also
after the passing of the tests by the respondents as provided in Rule 18 of the
said Rules, it could not but be held that they had become appointed in a
substantive capacity against temporary posts of the cadre of Assistant
Engineers and as such they had become members of the service since that date in
accordance with the provisions of Rule 3(b) of the said Rules. The argument
that their appointment being made against temporary posts and not against
permanent posts and not on probation as well as their not being confirmed and
their confirmation not being notified in the United Provisions Gazette before
1956, they were not entitled to be treated as members of the service, being
appointed in the substantive capacity, could not be sustained under any
circumstances. Rule 4 of the Service Rules clearly states that the cadre of
Assistant Engineers will comprise both permanent and temporary posts and as
such the argument that unless and until the respondents were appointed on
probation against permanent posts and unless they were confirmed, they could
not be treated as members of the service, is wholly untenable. One can be a
member of the service if one is appointed in a substantive capacity as
distinguished from a fortuitous appointment or on appointment for a fixed
tenure or on a purely temporary basis against a temporary post of an Assistant
Engineer in the cadre. Rule 4 of the Rules provides that the Government may,
subject to the provisions of Rule 40 of the Civil Services (classification,
Control and Appeal) Rules 1930, increase the strength of the cadre by creating
permanent or temporary posts from time to time as may be found necessary. So, a
cadre post may be either permanent or temporary and if an engineer is appointed
substantively to a temporary post or a permanent post, he becomes a member of
the service. Therefore, merely because a Government servant has been appointed
to a temporary post after fulfillment of all the requirements of the Rules for
regular appointment, including consultation with the Public Service Commission,
he 193 cannot be said to be appointed substantively in the temporary post of
the cadre and he cannot be said to be treated to be not a member of the service
under Rule 3(b) of the Rules for the purpose of determination of seniority
under Rule 23 of the Rules on the mere plea that he has not been appointed
against a permanent post on probation; such a contention is not tenable. In
this case, as already stated, though initially the appointments of these
respondents were not appointments in accordance with the Rules as they were
appointed not by the Government but by the Chief Engineer, yet, after the
approval of their appointments by the Government, and also confirmation of
their provisional appointments by the Government after the respondents had
passed all the requisite tests for confirmation, it could not be questioned
that these respondents had not been appointed in a substantive capacity as they
had not been confirmed by the Government prior to 1961 and their confirmations
had not been published in the U.P. Gazette. It is pertinent to mention that for
an appointment to be an appointment in a substantive capacity, it is not
necessary that the appointment should be made to a permanent post. If the
appointment is made to a temporary post of long duration in a department,
having both permanent and temporary posts of a quasi-permanent nature, there is
nothing to distinguish the quality of service between the two. [208F-H; 209A-C;
210B-H;
211A-Bl There was no rational or legal justification for preventing the
respondents from having their services, rendered from the date they were
appointed in the cadre of Assistant Engineers in a substantive capacity,
reckoned for determination of their seniority in service, on the mere ground that
no order of confirmation had been issued by the Government, as required under
Rule 19 of the Rules even though all the essential requirements for being
confirmed had been clearly fulfilled by the respondents; the respondents had
been duly appointed in a substantive capacity in the cadre of the service by
the Government in consultation with the United Provinces Public Service
Commission, as required under Rule 5(iii) of the said Rules as well as after
fulfilling the other requirements stipulated in Rule 19 of the Rules in 1950.
The point from which service is to be counted is the commencement of the
service by the Assistant Engineer which might not have been a permanent
appointment in the beginning, and, in that sense, might still be temporary but
for all other purposes has been regularised and is fit to be absorbed into
permanent post as and when it is vacant. [211G-H; 212A, D-E] 194 The cadre of
the service of the Engineers, as already held, consisted of both temporary and
permanent posts and as such there can be substantive appointment against a
temporary post of the cadre in accordance with provisions of the Service Rules.
Once a Government servant is appointed in a substantive capacity against a
temporary post of the cadre after due observance of the requirements as
provided in the Rules, he will be deemed to be a member of the Service in
accordance with the provisions of Rule 3(b) and his seniority in service shall
be determined from the date of the order of appointment to the service
notwithstanding that no order of confirmation has been made and there has been
no publication of the order of confirmation in the official gazette. The
respondents had been appointed temporarily in an officiating capacity as
Assistant Engineers against temporary posts and those temporary posts had been
continued for years together and the Government had duly sanctioned their
appointments. The respondents had thus become members of the United Provinces
Service of Engineers (Buildings and Roads Branch) Class II at least from the
date they had been confirmed in the service by the Government order issued in
May, 1950, and they were entitled to have their seniority reckoned from that
date when they had become regular members of the service after fulfilling all
the requirements of Rules 18 and 19 of the said Rules. There is the specific
Rule 23, said to be the "mariner's compass" in determining the
seniority of the members of the service, which provides for determination of
seniority from the date a person has been substantively appointed and has
become a member of the cadre of service of Assistant Engineers in the United
Provinces Engineering Service (Buildings and Roads Branch) Class II.[214B-G;
217F-G] on a due consideration of the relevant Rules, particularly, Rules 3 (b)
and 23 of the Rules, it has already been held that when an employee has been
appointed substantively to a temporary post in the cadre of service and has
become a member of the service of the Assistant Engineers in the United
Provinces Engineers Service under the United Provinces Service of Engineers
(Buildings and Roads Branch) Class II Rules, his seniority will be counted from
the date of his becoming a member of the service. It does not matter whether he
has been appointed against the permanent post and has been duly confirmed in
that post.
However
the respondents (Petitioners in the writ petition) could not be given any
relief by directing, redetermination of the seniority of the respondents as
well as the 195 appellants on The ground of unusual laches and delay. The
appellants Nos. 1 to 4 were confirmed in 1955 and their seniority was
determined by the Government order of July 20, 1956, The writ petition which
gave rise to this appeal was moved in 1973, challenging the determination of
the seniority of the appellants. At that time, the appellants Nos. 1 to 4 were
officiating as Superintending Engineers and the respondents Nos. 2 and 3 were
officiating as Superintending Engineers but were junior to all the four appellants
and respondents 1 and 4 to 12 were then Executive Engineers. At present, the
appellants Nos. 1, 2 and 3 are permanent Superintending Engineers and
officiating as Additional Chief Engineers. The Appellant No. 4 is also a
permanent Superintending Engineer. At this juncture, if the seniority of these
appellants vis-a-vis the respondents in the appeal is directed to be
determined, it will create much administrative difficulties and would amount to
depriving the appellants of their valuable rights which have accrued to them.
This Court in Rabindra Nath Bose and Ors. v. Union of India and Ors.J [1970] 2
SCR 697 observed that the attack on the seniority list prepared on the basis of
the 1952 rules 15 years after the rules were promulgated and effect given to
the seniority list prepared on August 1, 1953, should not be allowed because of
the inordinate delay and laches in challenging the rules. Similar observations
have been made by this Court in many other cases. [1218B-H;
219A-Dl]
The challenge to the seniority of the appellants in this case, determined by
order dated July 20, 1956, was made and relief sought of re-determination of
the seniority in 1973 i.e. after nearly 17 years. This could not be permitted
as it would amount to unjust deprivation of the rights of the appellants which
have accrued to them in the meantime.
Considering
all the aspects, it would be just and proper not to give any relief to the
respondents on the ground of inordinate delay and laches in challenging in 1973
the seniority list made in July, 1956. Out of the 12 respondents, 11 were
reported to have already retired. Only one respondent was in service. In these
circumstances, the cause of justice would be served if the authorities
considered the case of the said remaining respondent for promotion in
accordance with law. [220C-D,E,F-G] Henceforth, the seniority of the employees
in the service in question would be determined from the date when an employee
became a member of the service being appointed substantively to a post in the
cadre of service, no matter whether the said post was permanent or temporary,
as held in this case. Appeal allowed.
Judgment
of the High Court set aside. [220H; 221A]
CIVIL
APPELLATE JURlSDICTION: Civil Appeal No. 1717 of 1981.
From
the Judgment and order dated 6.5.1981 of the Allahabad High Court in W.P. No.
1080 of 1973.
S.N.
Kacker, G.L. Sanghi and R.B. Mehrotra for the Appellants.
Shanti
Bhushan, A.K. Gupta, Brij Bhushan, K.C. Dua, Gopal Subramaniam, Pradeep Misra,
Mrs. S. Dikshit and Sudhir Kulshreshtha.for the Respondents.
S.S.
Khanduja, S.K. Passi, Yashpal Dhingra and Mrs. Urmiia Kapoor for the
Interveners.
The
following Judgments were delivered:
RAY,
J. This appeal by special leave arises out of the judgment and order passed in
Civil Miscellaneous Writ Petition No. 1080 of 1973 by the High Court of
Allahabad delivered on 6th May, 1981. While the writ petition was allowed in
part a writ in the nature of certiorari quashing the gradation or seniority
list annexures 1, 2 and 28 to the writ petition, was directed to be issued.
There was a further direction for the issue of a writ of mandamus commanding
the opposite party No. 1, the State Government to prepare a fresh seniority
list in accordance with law in the light of the observations made in the said
judgment, within a period of three months and thereafter to take other
consequential steps.
The
crucial question of controversy in this appeal relates to the determination of
seniority between the respondents i.e. petitioners in writ petition who are all
appointed as temporary Assistant Engineers in the United Provinces Service of
Engineers (Buildings & Roads Branch) and subsequently made permanent
therein and the appellants appointed on probation in the permanent posts of
Assistant Engineers reserved for toppers of the Thomson College of Civil Engineering
later incorporated in Roorkee University and made permanent after expiry of
period of probation. The respon- 197 dents Nos. 2 and 3 who passed the final
Civil Engineering Examination of Thomson College, Roorkee in 1946 were
appointed as temporary and officiating Assistant Engineers by the Chief
Engineer subject to final approval of the Government vide CE-P/ W/D/ C.M. No.
2736-E/8E-1917 dated 2.6.1947. This provisional appointment as temporary
Assistant Engineers was approved by the Government vide G.O. No. 89-EBR/2-1947
dated 20.2.1948. Thereafter on the advice of the Public Service Commission the
Government confirmed their provisional appointment as temporary Assistant
Engineers vide o. No 1427/EBR 2 EBR-1947 dated 16.10.1948.
The
petitioners Nos 1 and 4 to 12 passed the final Civil Engineering Examination of
the Thomson College, Roorkee in the year 1948. They were appointed by Chief
Engineer as temporary Assistant Engineers subject to the final approval of the
Government vide Chief Engineer, P.W D.
O.M.
dated 10.8.1949 these appointments were made subject to the final approval of
the Government and on their being declared medically fit by the Medical Board.
The appointment of these temporary Assistant Engineers was sanctioned by the
government by its order dated 15.10.1949. These appointments were made in
accordance with Rule 5(i)of the United Provinces Service of Engineers
(Buildings and Roads Branch), Class Il Rules, 1936. Thereafter on 20th January,
1950, vide G.O. No 3968 EBR/2-1949 the Government on the advice of the Public
Service Commission confirmed the provisional appointments of the said
petitioners as temporary Assistant Engineers in the Buildings and Roads Branch
of United Provinces Service of Engineers. The petitioners were examined by the
State Medical Board and all of them were declared fit By Gazette Notification
dated 7.11.1956 the Government was pleased to issue orders of confirmation of
the appointment of petitioners Nos. 1, 2, 3, 4, 7 and 8 as permanent Assistant
Engineers in permanent posts, in the cadre of United Provinces Service of
Engineers (Buildings and Roads Branch), Class II. By this Notification the
Government reserved the right to determine the seniority subsequently.
Similarly, the petitioners Nos. 5, 6, 9 and 10 were confirmed as permanent
Assistant Engineers in permanent posts by Gazette Notification dated 9.4.1957.
The petitioners Nos. 11 and 12 were also confirmed as permanent Assistant
Engineers in permanent posts in the cadre of United Provinces Service of
engineers (Buildings and Roads Branch) Class II by Notification dated 14
5.1958. It is specifically 198 mentioned therein that the government reserved
the right to determine the seniority subsequently. Thus the date of
confirmation of the petitioners Nos. 1 to 12 as permanent Assistant Engineers
in the permanent posts of Assistant Engineers in United Provinces Service of
Engineers (Buildings and Roads Branch), Class II was fixed at 1.4.1956. Vide
G.O. dated 29.5.1961 the orders for inter se seniority exclusively of petitioners
Nos. 1 to 12 vis-a-vis 39 others including opposite parties Nos. 8 to 13 who
were all confirmed as permanent Assistant Engineers, were issued by the
Government.
Rule
6 of the said Rules i.e. United Provinces Service of Engineers (Buildings and
Roads Branch), Class II Rules, 1936 empowers the Government to decide in each
case the source from which the vacancy in the cadre has to be filled up. Under
these powers the Government by G.o. dated 31.8.1942 provided that with effect
from 1942-43, two vacancies in the Provincial Service of Engineers shall be
reserved for the two students of Thomson College of Civil Engineering, Roorkee
who passed out highest in the order of merit in the final examination of the
civil engineering.
This
quota was increased by G.O. dated 1.7.1944 from two to four posts each year
(two for the P W.D. (Buildings and Roads Branch) and two for the Irrigation
Branch). This reservation was also guaranteed each year to the top students.
The Government however by G.o. dated 22.6.1950 abolished the system of
guaranteed posts with effect from the batch which was to enter the civil
engineering class of the Roorkee University in October 1950. It was
specifically mentioned therein that no reservations were to be made in the
cadre of the U.P.S.E. (Junior Scale) B & R and Irrigation Branches for
students who passed out highest in the final examination of the Civil
Engineering Class in 1953 and subsequent years. It was also mentioned therein
that the guaranteed Civil Engineer students who passed from Thomson College of
Engineering, Roorkee/Roorkee University and who had been working in the
Buildings and Roads Branch should be absorbed in the existing permanent
vacancies which might arise in future. In accordance with the Government orders
the opposite parties Nos. 2 and 3 who passed out from the Roorkee University in
the year 1949 securing top positions were appointed in January 1951 as
Temporary Assistant Engineers. The opposite parties Nos. 4 and 5 namely Shri
G.C. Gupta and Shri S.P. Goel who passed out from the Roorkee University in
1950 were appointed in 1951 as temporary Assistant Engineers in two tem 199
porary posts. The opposite party No. 6 namely Shri S.K. Ojha who was one of the
toppers passing out from Roorkee University in 1952 was appointed in October
1953 as a temporary Assistant Engineer. The opposite party No. 7 namely Shri
Brijendra Singh who passed out from Roorkee University Civil Engineering
Examination in 1952 was first appointed as a temporary Assistant Engineer on a
provisional basis but subsequently as he secured Fourth position in Civil
Engineering final examination in 1952 from the Roorkee University he was
appointed to the guaranteed post of temporary Assistant Engineer in 1954. The
opposite party No. 8 who passed the departmental qualifying examination for
promotion to the Service was appointed to a temporary post of Assistant
Engineer on 16.4. 1949. Similarly, the opposite parties Nos. 9, 10, 11, 12 and
13 who passed the qualifying departmental examination were appointed under Rule
5(IV) and 6(a) to the temporary post of Assistant Engineers in 1955.
In
accordance with the provisions of regulation 3(i) of the United Provinces
Public Service Commission (Limitation of Function) Regulations, 1941 made by
the Provisional Government. The appointment of opposite parties Nos. 3 to 5 and
7 (appellants in this appeal) who had been appointed to the guaranteed posts
reserved for toppers of Thomson Engineering College, Roorkee did not require
consultation with the Public Service Commission. The Government by Gazette
Notification No. 2205-EBR/XXIII-PWD16EB-53 dated 11.10.1955 confirmed the
appointment of the opposite parties Nos. 3 to 5 and 7 in the permanent post of
Assistant Engineers with effect from April 1,1955. By office Memorandum No.
1933 EBR/XXIII-PWD/55 dated 20.7.1956, the Government fixed the inter se
seniority of opposite parties Nos. 2 to 7 along with 18 other officers who were
confirmed as Assistant Engineers.
Aggrieved
by the order of confirmation of the respondents Nos. 2 to 7, the petitioner No.
4 made representation to the Government for re-determination of the
confirmation as well as consequential determination of seniority of the
petitioner vis-a-vis the respondents. This representation was made on 15.7.1959
and a reminder was also given on 9.8.1960. Similarly, petitioner Nos. 6, 7 and
11 also made representations on 19.8.1959, 5.8.1959 and 23.7.1959 respectively.
The petitioner No. 6 gave reminder in June 1965 and April, 1970. The petitioner
No. 7 also sent reminders on 200 2.3.1960 and 3.7.1960. The petitioner No. I
also sent a representation on 12.9.1963. As no steps were taken to consider the
representations and to re-determine the date of confirmation of the
petitioners, the petitioners Nos. 6, 7 and 11 filed writ petition No. 2254 of
1970 in the Allahabad High Court challenging the order of confirmation of the
respondents and also the consequential fixation of seniority on its basis. The
said petition was dismissed by order dated 16.4.1971 on the sole ground that
the petition was highly belated and the petitioners were guilty of laches and
delay in challenging the impugned notification dated 11.10.1955 and 20.7. 1956
regarding confirmation and fixation of seniority. Against the said order
Special Appeal No. 287 of 1971 was filed before the Division Bench of Allahabad
High Court. The said appeal was also dismissed. It was observed that though the
petitioners could not be permitted to question the propriety of confirmation
orders yet they were entitled to claim seniority over the rcspondents as per
rules regulating the service of engineers. The claim of the petitioners was
that they being appointed as Assistant Engineers though temporarily became
members of the Service earlier than the respondents and as such they were
entitled to claim seniority over the respondents. The representations made by
the petitioners as far back as in 1959 were still pending and as such the
relief regarding determination of seniority in accordance with rules was not
barred by delay.
It
was observed further that the Government would consider and dispose of the
representations fairly and in accordance with law.
The
Government by their order dated 29.6.1973 rejected all the representations
against fixation of seniority as permanent Assistant Engineers. Hence the writ
petition was filed by the petitioners claiming the relief of re- determination
of their seniority in accordance with the rules governing the services of
United Provinces Service of Engineers Class II (Buildings and Roads Branch) as
there had been no determination of inter se seniority of the petitioners and
the respondents according to Rule 23 of the said Rules.
It
is pertinent to note in this connection that in spite of the observations of
the Division Bench of the Allahabad High Court in special appeal No. 287 of
1971 that so far as the claim of the appellants for consideration of their
representations regarding determination seniority in accordance with the
Service Rules, was not 201 barred by the rejection of the writ petition on the
ground of delay and observations were made for consideration of those
representations by the opposite party No. 1, i.e. the Government instead of
considering and disposing of the said representations in accordance with law
dismissed the same merely on the ground of delay and laches.
Before
proceeding to consider the merits of the controversy raised in this case, it is
pertinent to refer to the relevant rules i.e. United Provinces Service of
Engineers (Buildings and Roads Branch) Class II Rules, 1936 which regulate the
appointment and conditions of service of United Provinces Service of Engineers
(Buildings and Roads Branch). The relevant Rules are quoted herein below:- Rule
3(b)"Members of the Service" means a Government appointed in a
substantive capacity, under the provision of these rules or of rules in force
previous to the introduction of these rules, to a post in the cadre of the
service.
Rule
4 The sanctioned strength of the cadre is 24 assistant engineers, provided that
subject to the provisions of rule 40 of the Civil Services (Classification,
Control and Appeal) Rules, 1930, the Government may .............
.............
(ii)
Increase the cadre by creating permanent or temporary posts from time to time
as may be found necessary.
Rule
5 Recruitment to the Services shall by made by the Government (i) by direct
appointment from amongst engineer students who have passed out of the Thomson
Civil Engineering College, Roorkee, and who 202 have completed a course of
training in the Buildings and Roads Branch as Engineer Students after
consulting the Public Service Commission, U. P.
(ii)
by direct appointment after advertisement and after consulting the Public
Service Commission, U.P.
(iii)
by the appointment of officers in the temporary service of the United Provinces
Public Works Department (Buildings and Roads Branch), after consulting the
Public Service Commission, U.P. provided that it will not be necessary to
consult the Commission in the case of appointed appointment of a temporary
officer to a permanent vacancy if he has already been appointed to a temporary
post in the cadre of the service after consultation with the Commission.
(iv)
by promotion of members of the United Provinces Subordinate Engineering Service
or of Upper Subordinates in the Public Works Department, Buildings and Roads
Branch, who have shown exceptional merit.
(v)
by promotion of computers in the Public Works Department, Buildings and Roads
Branch, who have shown exceptional merit and who are technically qualified.
Rule
16 Training and Probation Engineer students who pass from the Thomson College
shall be required to undergo a course of training for one year. This period may
be extended by the Government for one more year in the case of candidates who
are not selected for appointment at the end of their first year of training,
but who are considered to have 203 justified their retention in training for
one more year.
Rule
17 All persons appointed to the Service, who are not already in the permanent
employ of the Buildings and Roads Branch of the United Provinces Government,
shall be placed on probation for four years, provided that such of them as have
undergone training as Engineer students, or have served as temporary engineers
in the Buildings and Roads Branch of the United Provinces Government, may be
permitted to count the period of such training and service respectively towards
this period of probation. The Government may extend the period of probation
fixed in any case.
At
any time during the probationary period the Government may dispense with the
services of an officer at one month's notice.
Rule
19 (i) A probationer shall be confirmed in his appointment when- (a) he has
completed the prescribed period of probation;
(b)
he has passed all the tests prescribed in the last preceding rule; and (c) the
Government are satisfied that he is fit for confirmation.
(ii)
All confirmations under the rule shall be notified in the United Provinces
Gazette.
Rule
23 Seniority in the service shall be determined according to the date of the
order of appointment to it, provided that if the order of appointment of two or
more candidates bears the same date, their seniority inter-se shall be
determined according to the order in which their appointment has been notified.
204
Two preliminary objections were raised on behalf of the petitioners about the
maintainability of the writ petition before the High Court. The first objection
was regarding the delay in making the application challenging the determination
of seniority of the petitioners vis-a-vis the respondents which were determined
as early as in 1956, in 1973 i.e. after 17 years. This objection was duly
considered by the Court below and it was over-ruled. In 1959 re presentations
had been made against the determination of seniority in contravention of the
provisions of Rule 23 of the United Provinces Service of Engineers (Buildings
and Roads Branch), Class II Rules, 1936. These representations were kept
pending by the government and they were not disposed of. Secondly, in 1970 a
challenge was thrown in writ petition No. 2254 of 1970 by Shri R.C. Mangal and
two others i.e. respondent Nos. 6, 7 and 11 challenging the order of
confirmation of the petitioners Nos. 1 to 4 who were appointed long after the
appointment of the petitioners and the con sequent determination of seniority.
This writ petition, however, was unsuccessful as the writ petition as well as
the Special Appeal were dismissed on the ground of inordinate delay and laches
in moving the Court for redress against the order of confirmation of the
petitioner Nos. 1 to 4 which was made by the Government vide notification dated
11.10.1955. But in that case the question of determination of seniority in
derogation of the provisions of Rules did not arise nor it was considered and
determined.
It
was further observed that the Government would decide these representations
fairly and in accordance with law.
These
observations were made in the Special Appeal No. 287 of 1971 decided in October
1971. The High Court while disposing of the civil Writ Petition No. 1080 of
1973 observed that the petition did not suffer from delay and laches and the
question of determination of seniority was required to be considered by the
Court. It was further observed that the plea of wrong fixation in the cadre was
not raised in the earlier writ petition. As such there was no determination on
the question of seniority in the cadre itself in the said writ petition and the
principles of res judicata were not attracted.
The
other preliminary objection raised was that if the question of seniority was
considered it might seriously prejudice the rights of the opposite parties. On
this point it was observed by the High Court that the matter of seniority of
the opposite parties vis-a-vis the petitioners was never settled and as such no
question arises as to the accrual of any right legal or equitable in favour of
the opposite 205 parties because of lapse of time.
It
is a well established principle that where there are no specific rules for
determination of seniority in service the length of continuous service is the
yardstick for determining the seniority of the members of service. The vital
question that requires to be considered in this appeal is what is the yardstick
or standard or norm for determination of seniority of the respondents who have
been appointed as temporary or officiating Assistant Engineers against
temporary posts of United Provinces Service of Engineers (Buildings and Roads
Branch) Class 11, as well as the toppers from Thomson College of Civil
Engineering who were directly appointed sometime in 1950 and 1951 on probation
against reserved temporary posts and confirmed immediately after the expiry of
the period of probation against permanent posts before the confirmation of the
temporary Assistant Engineers recruited from the Thomson College of Engineering
sometime between 1948 to 1950. To decide this question it is very relevant to
consider the Service rules as in the instant case there are admittedly the
Service Rules namely United Provinces Service of Engineers (Buildings and Roads
Branch) Class Il rules, 1936 which regulate the appointments and conditions of
service of United Provinces Service of Engineers (Buildings and Roads Branch).
Rule 23 of the said Rules which is said to be the mariners' compass in
determining the seniority of the members of the service provides that seniority
in service shall be determined "according to the date of order of
appointment to it" provided that if the order of appointment of two or
more candidates bears the same date their seniority inter-se shall be
determined according to the order in which their appointment has been notified.
Therefore,
it is evident from this Rule that the touchstone of determination of seniority
in service is the date of order of appointment to the service or in other words
the date when an appointee becomes a member of the service after fulfilling all
the necessary requirements provided in the various provisions of the said
Rules. Rule 3(b) defines further that "Member of the Service" means a
Government servant appointed in a substantive capacity under the provisions of
these rules or of rules in force prior to the introduction of these rules to a
post in the cadre of this service. In other words, it states categorically that
an appointee to be a member of the service has to be appointed in a substantive
capacity in the cadre of the service. The cadre of the service in Rule 4(ii)
clearly provides that it consists of both permanent and temporary posts and the
strength of the cadre 206 may be increased by the Government by creating
permanent and temporary posts from time to time as may be found necessary.
The
sanctioned strength of the cadre of Assistant Engineers though originally was
24 yet the said strength of the cadre could be increased by creation of both
permanent and temporary posts. Rule 5 specifically lays down the sources of
recruitment to the service. There are five sources for recruitment to the
service. These sources have been stated hereinbefore and as such it is not
necessary to reiterate them once again here. Rule 16 enjoins that engineer
students who pass from the Thomson College are to undergo a course of training
for one year. This period of training may be extended by the Government by one
more year in the case of candidates who are not selected for appointment at the
end of their first year of training but who are considered to have justified their
retention in training for one more year. Rule 17 provides that all persons
appointed to the service who are already in the permanent employment of
Buildings and Roads Branch of the United Provinces Government shall be placed
on probation for four years provided that such of them as have undergone
training as engineer students, or have served as temporary engineers in the
Buildings and Roads Branch of United Provinces Government, may be permitted to
count the period of such training and service respectively towards the period
of probation. Rule 19 deals with confirmation of a probationer when the
requirements provided therein have been fulfilled or completed namely the
completion of the prescribed probation period, the passing of all the tests
prescribed in Rule 18 and the Government is satisfied that the probationer is
fit for confirmation. It has also been provided therein that all confirmations
under the Rules shall be notified in the United Provinces Gazette.
The
petitioners in the writ petition who are respondents in this appeal were
initially appointed as temporary Assistant engineers subject to the final
approval of the Government by the Chief Engineer, P.W.D. between 1947 and 1948.
Undoubtedly, these appointments were subsequently approved by the Government
between 1948 and 1949 in accordance with the provisions of Rule 5(i) of the
United Provinces Service of Engineers (Buildings and Roads Branch) Class II
Rules, 1936. Thereafter on January 20, 1950 the Government in consultation with
the Public Service Commission confirmed the provisional appointments of the
petitioners as temporary Assistant Engineers and these petitioners have also
passed the requisite tests held by the government. They were con- 207 firmed
vide Gazette Notifications dated 7.11.1956, 19.4.1957 and 14.5.1958. The date
of confirmation of all these petitioners was fixed as 1.4.1956 (vide G.O. dated
29.5.1961). The respondents Nos. 3 to 5 and 7 who are appellants in this appeal
were appointed between 1951 and 1952 as temporary Assistant Engineers against
guaranteed posts on probation and after competition of the probationary period
they were confirmed in 1955 vide Gazette Notification dated 11.10.1955.
Seniority of these appellants Nos. 1 to 4 was fixed earlier from 1.4.1955
whereas the seniority of the Respondents Nos. 1 to 12 of this appeal was fixed
below them from 1956 treating the date of confirmation in the service as the
date of their becoming member of the service.
It
has been urged on behalf of the appellants as well as by the State that unless
a person is appointed as temporary Assistant Engineer against a permanent post
on probation and thereafter unless he becomes confirmed after successful
completion of the period of probation and passing of all the tests mentioned in
Rule 19(b) of the said rules and he is considered to be fit for confirmation by
government he cannot be considered to be appointed to the service and he does
not become a member of the service. The seniority of an Assistant Engineer will
be reckoned only from the date when an Assistant Engineer is substantively
appointed against a permanent post and duly confirmed in the post in accordance
with provisions of Rule 19 and thereby becomes a member of the service. In
other words, it was tried to be contended before this Court that the
provisional, fortuitous, temporary or officiating appointment of the
respondents as Assistant Engineers will not be taken into consideration in
determining their seniority in service unless and until they are duly appointed
against permanent posts on probation and are confirmed after the successful
completion of the probation period and on passing of the requisite tests and
after their confirmation is notified by the Government in the United Provinces
Gazette. Relying on these contentions it has been urged that the services of
the respondent Nos. 1 to 12 were confirmed and duly notified in the Gazette in
1961 and accordingly by office memo dated May 29, 1961 their inter-se seniority
was fixed. As they were confirmed much later than the appellants so their
seniority was fixed below that of the appellants.
It
was on the other hand, urged on behalf of the respondents who passed civil
engineering examination from Thomson College of 208 Engineering between 1947
and 1948 that the appellants did not enter into the Thomson College of
Engineering when they were appointed as officiating temporary Assistant
Engineers subject to final approval of the Government by the Chief Engineer,
P.W.D. between 1947 and 1948. Thereafter the Government duly sanctioned their
appointment by order made between 1948 and 1949,subject to the final approval
of the United Provinces Public Service Commission. These provisional
appointments were ultimately made final by the Government after the receipt of
the approval of the U.P. Public Service Commission in 1950 . It has been urged
on behalf of the respondents that from 1950 at least these respondents should
be deemed or treated to be substantively appointed in accordance with the
provisions of Rule 3(b) of the said Service Rules. As they have become members
of the service in as much as their appointments have been duly approved by the
Government and the Public Service Commission and on their passing the medical
test and other tests the Government has confirmed their provisional appointments
and the period of service these temporary Assistant Engineers rendered
previously was counted towards their probation in accordance with the
provisions of Rule 17 of these Rules, they are entitled to have their seniority
reckoned at least from the date of their confirmation in the service by the
Government in 1950 i.e. from the date of their substantive appointment in the
service The seniority list that has been published is wholly arbitrary, illegal
and in utter contravention of the provisions of Rule 23 of the Rules.
On
a consideration of the letters of provisional appointment issued by the Chief
Engineer, P.W.D. (Buildings and Roads Branch) as well as the sanctions accorded
to such appointments by the Government thereafter and the confirmation of the
service of the temporary Assistant Engineers in 1950 after obtaining the
approval of the Public Service Commission and also after passing of the tests
by the respondents as provided in Rule 18 of the said Rules, I cannot but hold
that they have become appointed in a substantive capacity against temporary
posts of the cadre of Assistant Engineers and as such they have become members
of the service since that date in accordance with the provisions of Rule 3(b)
of the said Rules. The argument that their appointment being made against
temporary posts and not against permanent posts and not on probation as well as
they being not confirmed and their confirmation being not notified in the
United Provinces Gazette before 1956, 209 they are not entitled to be treated
as members of the service being appointed in the substantive capacity, cannot
be sustained under any circumstances. Rule 4 of the Service Rules clearly
states that the cadre of Assistant Engineers will comprise of both permanent
and temporary posts and as such the argument that unless and until the
respondents are appointed on probation against permanent posts and unless they
are confirmed they cannot be treated as members of the service is wholly
untenable. One can be a member of service if he is appointed in a substantive
capacity as distinguished from a fortuitous appointment or an appointment for a
fixed tenure or on a purely temporary basis against a temporary post of
Assistant Engineer in the cadre. This Court in the case of Parshotam Lal
Dhingra v. Union of India, [1958l S.C.R. 828 at 842 has held that an
appointment to a temporary post in Government service may be substantive or on
probation or on an officiating basis.
Similar
observation has been made by this Court in the case of Baleshwar Dass &
Ors. v. State of U.P. & Ors., [1981] 1 S.C.R. 449 wherein this very rule
came to be considered in the case of a similar dispute regarding the seniority
amongst the engineers in the Irrigation Department of the Uttar Pradesh
Government. It has been observed as follows:- "It is not correct to say
that when Engineers are appointed to temporary posts but after fulfilling all
the tests for regular appointment they are not appointed in a substantive
capacity .............................. That is to say although they are
temporary appointees, if their probation was completed and other formalities
fulfilled, they become members of the service.
Merely
because the person is a temporary appointee it cannot be said that he is not
substantively appointed if he fulfills the necessary conditions for regular
appointment such as probation and consultation with the Public Service
Commission. " It has been further observed:
"Rule
23 is the relevant rule when a question of seniority arises. The order of
appointment in a substantive capacity is the significant starting point for
reckoning seniority. The appointment in a substantive capacity need not
necessarily be to a permanent post. It is 210 significant even if it is to a
temporary post of long duration . " Rule 4 prescribes the sanctioned strength
of a cadre.
It
provides that the Government may subject to the provisions of Rule 40 of the
Civil Services (Classification, Control and Appeal) Rules, 1930 increase the
strength of the cadre by creating permanent or temporary posts from time to time
as may be found necessary. So a cadre post may be either permanent or temporary
and if an engineer is appointed substantively to a temporary post or permanent
post he becomes a member of the service. Therefore merely because a Government
servant has been appointed to a temporary post after fulfillment of all the
requirements of the rules for regular appointment including consultation with
the Public Service Commission, he cannot be said to be appointed substantively
in the temporary post of the cadre and he cannot be said to be treated to be
not a member of the service under Rule 3(b) of the Rules for the purpose of
determination of seniority under Rule 23 of the Rules on the mere plea that he
has not been appointed against a permanent post on probation. Such a contention
is not tenable. This point has been very clearly settled by this Court in the
case of Baleshwar Dass & Ors. v. State of U.P. & Ors., (supra). It has
been observed in this case as follows:- "We see no reason to hold that
when engineers are appointed to temporary posts but after fulfillment of all
the tests for regular appointments, including consultation with the Public
Service Commission, they are not appointments in a substantive capacity. "
In the instant case as I have stated hereinbefore that though initially the
appointments of these respondents were not appointments in accordance with the
Rules as they were appointed not by the Government but by the Chief Engineer,
P.W.D. but after approval of their appointments by the Government and also
confirmation of their provisonal appointments by the Government in consultation
with the Public Service Commission and after the respondents had passed all the
requisite tests for confirmation, it cannot be questioned that these
respondents have not been appointed in a substantive capacity as they were not
confirmed by the Government prior to 1961 and their confirmations were not
published in the U.P. 211 Gazette. It is pertinent to mention that for an
appointment in order to be an appointment in a substantive capacity it is not
necessary that the appointment should be made to a permanent post. If the
appointment is made to a temporary post of long duration in a department having
both permanent and temporary posts of a quasi-permanent nature, there is nothing
to distinguish the quality of service as between the two.
It
is pertinent to refer in this connection the observations of this Court in S. B.
Patwardhan and Ors. v.
State
of Maharashtra and Ors., AIR 1977 SC 2051=[1977] 3 SCR 775 where it has been observed:
"There
is no universal rule either that a cadre cannot consist of both permanent and
temporary employees or that it must consist of both. That is primarily a matter
of rules and regulations governing the particular service in relation to which
the question regarding the composition of the cadre arises." It has been
further observed that confirmation cannot be the sole touchstone of seniority
as that will be indefensible. "Confirmation is one of the inglorious
uncertainties of Government service depending neither on efficiency of the
incumbent nor on the availability of the substantive vacancies. " It does
not show that confirmation has to conform to any set of rules and whether an
employee should be confirmed or not depends on the sweet will and pleasure of
the government. I do not find any rational or legal justification for
preventing the respondents to have their services rendered from the date they
are appointed in the cadre of Assistant Engineers in a substantive capacity
reckoned for determination of their seniority in service on the mere ground
that no order of confirmation has been issued by the Government as required
under Rule 19 of the Rules even though all the essential requirements for being
confirmed have been clearly fulfilled by the respondents. The respondents, as
has been stated herein before, have been duly appointed in a substantive
capacity in the cadre of the Service by the Government in consultation with the
United Provinces Public Service Commission as required under Rule 5(iii) of the
said Rules as well as after fulfilling the other requirements as provided in
Rule 19 of the said Rules in 1950. It will be relevant to mention in this
connection that this Court in the case of Baleshwar Dass & Ors. v. state of
U.P. & Ors., (supra) while considering the identical rules so far as the
determination of seniority of the U.P. Engineers in the Irrigation Department
has observed that substantive capacity referred to the capacity in which a
person holds the post and not necessarily to the nature and character of the
post. A person is said to hold a post in a substantive capacity when he holds
it for an indefinite period especially of long duration, in contradistinction
to a person who holds it for a definite or temporary period or holds it on
probation subject to confirmation. It has also been observed that an official
in service even before confirmation in service has a relevancy to seniority if
eventually no infirmities in the way of confirmation exist. There is P nothing
in the scheme of rules contrary to that principle. Therefore the point from
which service is to be counted is the commencement of the service by the
Assistant Engineer which might not have been permanent appointment in the
beginning and in that sense may still be temporary but for all other purposes
has been regularised and is fit to be absorbed into permanent post as and when
it is vacant.
The
decision in the case of A.K. Subraman & Ors. v. Union of India & Ors.,
AIR 1975 SC 483 which was cited before us is not relevant in as much as in that
case there was no statutory rule for determination of seniority unlike the
instant case where there are specific rules for the determination of seniority.
The method of filling up of the post of Executive Engineers Class I was by promotion
of Assistant Executive Engineers Class I as well as by promotion on selection
by Departmental Promotion Committee of Assistant Engineers in Central
Engineering Service Class II according to prescribed quota. In the seniority
list published in 1971 the petitioners were shown junior to respondents who
were appointed to the service of Central Engineers long after the petitioners
were appointed in the grade of Executive Engineer, Class I. The petitioners
were promoted to officiate as Executive Engineer Class I by the Departmental
Promotion Committee between December 1956 213 and September 1959 whereas
respondents were promoted to the posts of Executive Engineers Class I between
March 1957 and February 1966. It was held that once the Assistant Engineers are
regularly appointed to officiate as Executive Engineers within their quota they
will be entitled to consideration in their own rights as Class I officers to
further promotion.
It
was also held therein that Assistant Engineers (Class II) who are initially appointed
in a regular manner in accordance with the rules to officiate as Assistant
Engineers, their seniority in service in Grade I will count from the date of
their initial officiating appointment in Class I provided their initial
appointment as Assistant Engineer was within their quota. Their seniority will
not count from the date of their future confirmation in the service.
In
G.P. Doval and Ors. v. Chief Secretary, Govt. Of U.P. & Ors., AIR 1984 SC
1527 this Court has observed that it is well settled that if there was no
binding rule of seniority, the length of continuous officiation prescribed a
valid principle of seniority.
Where
officiating appointment is followed by confirmation unless a contrary rule is
shown, the service rendered as officiating appointment cannot be ignored for
reckoning length of continuous officiation for determining the place in the
seniority list. This decision which runs contrary to the decision cited herein
is distinguishable as this decision was rendered on the peculiar facts of that
case Due to exigencies of service the Khandsari Inspectors were recruited to
that post pending regular selection through Public Service Commission. A
provisional seniority list of the Khandsari Inspectors was drawn on the
principle of length of continuous officiation reckoned from the date of
selection/approval by Public Service Commission in respect of each employee
belonging to the cadre. All officiating service rendered by the Inspectors
prior to their confirmation by Public Service Commission was totally ignored
while determining seniority. It was held that seniority list prepared of
Khandsari Inspectors without considering their officiating service prior to
confirmation by the Public Service Com- 214 mission was violative of Article 16
and the list drawn up on this basis must be quashed. In that case there was no
specific statutory rule laying down the conditions of service governing the
cadre as well as for the determination of seniority of the members of the
service.
I
have already held hereinbefore after due consideration of the said Rules
governing the appointment and conditions of service of United Provinces Service
of Engineers (Buildings and Roads Branch) Class lI that the cadre of the
service of Engineers consists of both temporary and permanent posts and as such
there can be C; substantive appointment against a temporary post of the cadre
in accordance with the provisions of the Service Rules. Once a Government
servant is appointed in a substantive capacity against a temporary post of the
cadre after due observance of the requirements as provided in the Rules he will
be deemed to be a member of the service in accordance with the provisions of
Rule 3(b) and his seniority in service shall be determined from the date of
order of appointment to the service notwithstanding that no order of
confirmation has been made and there has been no publication of order of
confirmation in the official Gazette. The respondents were appointed
temporarily in an officiating capacity as Assistant Engineers against temporary
posts and these temporary appointments were continued for years together and
the Government duly sanctioned their appointment after consultation with the
Public Service Commission. The respondents thus have become members of the
United Provinces Service of Engineers (Buildings and Roads Branch) Class Il at
least from the date when they have been confirmed in the Service by the
Government order issued in May 1950 after complying with all the tests
prescribed and they are entitled to have their seniority reckoned from that
date when they have become regular Members of the Service after fulfilling all
the requirements provided in Rule 18 and 19 of the said Rules. The decisions in
Baleshwar Dass & Ors. v. State of U.P. & Ors., (supra) as well as in
Ashok Gulati & Ors. v. B.S. Jain & Ors., AIR 1987 SC 424 clearly go to
establish that as soon as a Government servant becomes a member of the Service
fulfilling all the requirements specified under the Rules governing the terms
and conditions of service as well as of seniority in service, the seniority of
the Government servant has to 215 be computed and reckoned from the date when
he becomes a member of the Service. As l have held already that confirmation
has nothing to do with the Government servants becoming a member of the Service
eligible to have his service reckoned for the purpose of determination of his
seniority in service in accordance with Rule 3(b) read with Rule 23 of the said
Rules. In Ashok Gulati's case (in which one of us Justice A.P. Sen-was a party)
the following five yardsticks have been laid down for reckoning seniority:-
"The date from which seniority is to be reckoned may be laid down by rules
or instructions (i) on the basis of the date of appointment;
(ii)
on the basis of confirmation;
(iii)
on the basis of regularisation of service;
(iv)
on the basis of length of service; or (v) on any other reasonable basis.
Apropos
to mention in this connection that the decision rendered by this Court in the
case of N.K. Chauhan & Ors. v. State of Gujarat & Ors., [1977] 1 SCR
1037 is not applicable as the facts of that case are different from the facts
of this case. In that case the dispute arose regarding the claim of the direct
recruits to the posts of Deputy Collectors to be declared senior to the
appellants who were promotees from Mamlatdars to the post of Deputy Collectors.
ln
the State of Bombay prior to bifurcation the source of recruitment to the post
of Deputy Collector was two-fold i.e. (1) by promotion from Mamlatdar and (2)
by direct recruitment to the post of Deputy Collector. A resolution was adopted
by the Bombay Government on 30.7.1959 laying down the method of recruitment to
the post of Deputy Collectors. lt is in the following terms:- "Appointment
to the posts of Deputy Collector shall be 216 m made either by nomination or by
promotion of suitable Mamlatdars:
Provided
that the ratio of appointment by nomination and by promotion shall, as far as
practicable, be 50:50".
The
question arose whether the direct recruits who were recruited subsequent to the
promotees can claim seniority over the promotees as the quota of direct
recruits was not fulfilled. It was held that since the rule was that as far as
possible the quota system must be kept and if not practicable, promotees in the
place of direct recruits or direct recruits in the place of promotees may be
inducted by applying the regular procedure without suffering the seats to lie
indefinitely vacant. It was further held that the quota rule does not,
inevitably, invoke the application of the rota rule. The impact of this
position is that if sufficient number of direct recruits have not been
forthcoming in the years since 1960 to fill in the ratio due to them and those
deficient vacancies have been filled up by promotees, later direct recruits
cannot claim 'deemed' dates of appointment for seniority in service with effect
from the time, according to the rota or turn the direct recruits' vacancy
arose. Seniority will depend on the length of continuous officiating service
and cannot be upset by later arrivals from the open market save to the extent
to which any excess promotees may have to be pushed down as indicated earlier.
It was also held that normally seniority is measured by length of continuous
officiating service- actually is easily acceptable as the legal. It does not
preclude a different prescription constitutional tests being satisfied. It has
also been observed that the decision in the case of S. C. Jaisinghani v. Union
of India, [1967] 2 S.C.R. 703 at 718 as well as the decision in the case of
B.S. Gupta v. Union of India [1975] 1 S.C.R. 104 cannot be considered to hold
the field in as much as in case where recruitment is from two independent
sources subject to prescribed quota and power is conferred on the Government to
make recruitment in relaxation of the rules any recruitment made contrary to
the quota rule could not be held to be invalid unless it is shown that the
power of relaxation was exercised mala fide. Similar observation has been made
in the case of A. Janardhana v. Union of India, [1983] 2 S.C.R. 936 at 956, 217
where it has been observed that in a system governed by rule of law discretion
when conferred upon executive authority must be confined within clearly defined
limits. In this case rule (3) of the Military Engineering Service (RTS) Rule
provides method of recruitment indicating the source from which the recruitment
can be made. There were two sources of recruitment to the service one by direct
recruitment another by promotion, according to quota prescribed by the said
rule. The question arises whether promotees in excess of quota provided for
promotion on the basis of power of relaxation rule can be pushed down as such
filling up of the quota by promotion would be illegal and the excess recruits
unless they find their place by adjustment in subsequent years in the quota
would not be members of the service. It was held that even though the rule
prescribed the method of recruitment and quota and if the very rule
simultaneously confers power on the government to recruit in relaxation of the
rules unless malafide are alleged and attributed such excess recruitments by
promotion could not be illegal and the said promotees cannot be pushed down
where the rule confers a discretion on the Government to relax rules to meet
exigencies of service. Any recruitment made contrary to quota rule would not be
invalid unless it is shown that the power of relaxation was exercised mala
fide. This decision thus followed the observation made in the Chauhan's case
referred to earlier. These two decisions, of course, have no application to the
instant case in as much as no such question does arise for decision in this
case.
In
the instant case there is a specific rule i.e. Rule 23 providing for
determination of seniority from the date a person has been substantively
appointed and has become a member of the cadre of service of Assistant Engineer
in the United Provinces Engineering Service (Buildings and Roads Branch) Class
II. Therefore in this case there is no quota for recruitment to the service and
as such the decision in Chauhan's case is not applicable.
I
have already decided hereinbefore that when an employee has been appointed
substantively to a temporary post in the cadre of service and has become a
member of service of Assistant Engineers 218 in the United Provinces Engineers
Service under the United Provinces Service of Engineers (Buildings and Roads
Branch) Class II Rules, his seniority in service will be counted from the date
of his becoming member of the service. It does not matter whether he has, been
appointed against the permanent post and has been duly confirmed in that post.
l have come to this finding on a due consideration of the provisions of the
aforesaid rules more particularly Rules 3(b) and 23 of the said rules which lay
down the mode of determination of seniority in service.
In
the instant case, however, l am not inclined to give any relief to the
respondents (petitioners in the writ petition) by directing redetermination of
the seniority of the respondents as well as the appellants on the ground of
unusual laches and delay. The appellant Nos. to 4 was confirmed in 1955 and
their seniority was determined by Government order of 20th July, 1956. Out of
the petitioners of the writ petition, the petitioner Nos. 4 and 5 made
representations in 1959 against the aforesaid seniority list. Subsequently,
petitioner No. 6 filed another representation. Petitioner Nos. 6, 7 and 4 made
their representation in 1959 and petitioner No. 6 gave a reminder in June 1965
and April 1970. The other petitioner Nos. 2, 3, 9 and 10 did not make any
representation in the matter of seniority. It is only in 1970 that the writ
petition No. 2254 of 1970 was moved challenging the confirmation of the
petitioner Nos. 1 to 4 (appellants in the instant appeal).
This
challenge was negatived on the ground of laches and delay. An appeal being
Special Appeal No. 287 of 1971 was also dismissed on the ground of laches and
delay as regards the confirmation of the appellants was concerned. Of course,
it had been observed that the seniority in service of these appellants was not
questioned in the said writ petition and the Government would consider the
representation made by the petitioners of the writ petition (appellants in the
instant appeal) as far back as in 1959, which were pending before the
Government. The writ petition No. 1080 of 1973 which gave rise to the Civil
Appeal was moved in 1973 challenging the determination of seniority of the
appellants in the instant appeal. It appears from the affidavit-in-opposition
sworn by one of the appellants Shri G.C. Gupta that at the time when the writ
petition was moved the appellant Nos. 1 to 4 were officiating as Superintending
Engineers and the respondent Nos. 2 and 3 were officiating as Superintending
Engineers but junior to all the four appellants and the respondent Nos. 1 and 4
to 12 were 219 then Executive Engineers. At present the appellant Nos. -1, 2
and 3 are permanent Superintending Engineers and officiating as Additional
Chief Engineers. The appellant No. 4 is also a permanent Superintending
Engineer. At this juncture if the seniority of these appellants vis a-vis the
respondents of this appeal is directed to he determined it will create much
administrative difficulties and would amount to deprive the appellants of their
valuable rights which have accrued to them. It is pertinent to refer in this
connection to the observation made by this Court in the case of Rabindra Nath
Bose & Ors. v. Union of India & Ors., [1970] 2 SCR 697. It has been
observed that the attack to the seniority list prepared on the basis of 1952
rules 15 years after the rules were promulgated and effect given to the
seniority list prepared on August 1, 1953 should not be allowed because of the
inordinate delay and laches in challenging the said rule.
Similar
observations have been made by this Court in the case of State of Orissa v.
Pyarimohail Samantaray & Ors., [1977] 3 SCC 396; State of M.P. & Ors.
etc. etc. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251; Ramanna Dayaram
Shetty v. lnternational Airport Authority of India, [1979] 3 SCR 101 4; Ashok
Kumar v. Collector, Raipur, AIR (1980) (SC) 112:1980 1 SCR 491; K.R. Mudgal v.
R.P. Singh, [1986] 4 SCC 531 and R.S. Makashi & Ors. v. I.M. Menon &
Ors., [1982] (1) SCC 379 where relief was refused on the ground of laches in
moving the Court for redress of the grievances after lapse of a period of years
after the cause of action arose. lt has been observed in State of M. P. &
Ors., v. Nandlal Jaiswal & Ors., (supra):- "Now, it is well settled
that the power of the High Court to issue an appropriate writ under Article 226
of the Constitution is discretionary and the High Court in the exercise of its
discretion does not ordinarily assist the tardy and the indolent or the
acquioscent and the lethargbic. If there is inordinate delay on the part of the
petitioner in filing a writ petition and such delay is not satisfactorily
explained, the High Court may decline to intervence and grant relief in the
exercise of its writ jurisdiction. The evolution of this rule of laches or
delay is premised upon a number of factors. The High Court does not ordinarily
permit a belated resort to the extraordinary remedy under the writ jurisdiction
because it is likely to cause confusion and public inconvenience and bring in
its train new injustices. The rights of third parties may intervene and if the
writ 220 jurisdiction is exercised on a writ petition filed after unreasonable
delay, it may have the effect of inflicting not only hardship and inconvenience
but also injustice on third parties. When the writ jurisdiction of the High
Court is invoked, unexplained delay coupled with the creation of third party
rights in the meanwhile is an important factor which always weighs with the
High Court in deciding whether or not to exercise such jurisdiction." In
this case the challenge to the seniority of the appellants which was determined
by order dated 20th July, 1956 was made in 1973 i.e. after nearly 17 years and
they have sought relief for redetermination of the seniority in accordance with
the provisions of the aforesaid service rules. This cannot be permitted as it
would amount to unjust deprivation of the rights of the appellants which had
accrued to them in the meantime. The observation that 'Every person ought to be
entitled to sit back and consider that his appointment and promotion effected a
long time ago would not be set aside after the lapse of a number of years' as
made in the above case Rabindra Nath Bose & Ors. v. Union of India &
Ors. will be applicable to this case. Considering all these aspects it would be
just and proper not to give any relief to the respondents on the ground of
inordinate laches and delay in challenging the seniority list made in July,
1956. I have already mentioned hereinbefore that at the time of moving the writ
petition in 1973 all the appellants had been confirmed as Superintending
Engineers in the United Provinces Service of Engineers and the appellant Nos. 1
to 3 had been officiating as Additional Chief Engineers. The appellant No. 4
who was also a permanent Superintending Engineer we were told by the parties at
the time of hearing of this appeal, had been promoted and appointed as
Additional Chief Engineer. Whereas out of the 12 respondents 10 have already
retired from services as it appears from the affidavit sworn by appellant No. 1
Mr. G.C. Gupta in accordance with the directions of this Court. We are also
told that out of the remaining 2 respondents, 1 has already retired from
service. So, only 1 respondent is at present in service. In these circumstances
I think that the cause of justice will be served if the authorities concerned
consider the case of the said respondent for promotion in accordance with law.
For
the reasons aforesaid the appeal is allowed and the judgment and order of the
High Court is set aside. There will be no order as to costs.
221
I also make it clear that henceforth seniority of the employees in service in
question will be determined from the date when an employee has become a member
of the service being appointed substantively to a post in the cadre of service,
no matter whether the said post is permanent or temporary as I have held
hereinbefore.
SEN
J. I have had the benefit of going through the judgment prepared by my learned
brother Ray, J. and I agree with the order proposed to be made. In view of the
importance of the questions involved, I would however like to add a few words.
I
have no doubt in my mind that temporary Assistant Engineers were entitled to
the benefit of their seniority reckoned according to the date of the order of
appointment to the Service in terms of r. 3 of the United Provinces Service of
Engineers (Buildings & Roads Branch) Rules, 1936, w.e.f. the date of their
absorption into the Service by the Government in consultation with the Public
Service Commission i.e. from the date from which they became 'Members of the
Service' within the meaning of r. 3(b) of the Rules. I had expressed the same
view in Ashok Gulati & Ors. v. B.S. Jain & Ors., [1986] Suppl. SCC 597
and I still adhere to it.
As
a matter of policy, the then Provincial Government by a notification dated
August 31, 1942 directed under r. 6 of the Rules that from the year 1942-43,
two vacancies in the United Provinces Service of Engineers, both in the
Buildings and Roads as well as in the Irrigation Departments, shall be reserved
for two students of Thomson College of Civil Engineering, Roorkee who stood
first and second in order of merit in the final examination of the Degree
Course of Engineering i.e. to the guaranteed posts.
The
reserved quota of guaranteed posts was later increased by the Government from
two to four posts each year in each of the two Branches. The system of direct
recruitment of such Engineer Students to the two guaranteed posts was however
discontinued by its notification dated June 22, 1950, w.e.f. the year 1953 i.e.
the system of direct recruitment of merit scholars to the guaranteed posts was
abolished in respect of the batch of students who joined the Thomson College of
Civil Engineering, Roorkee University of Roorkee from the month of October
1950, i.e. after the inauguration of the Constitution.
Again,
as a matter of policy, the State Government by an office 222 memorandum dated
December 7, 1961 brought about a change in the method of recruitment of
Assistant Engineers in the U.P. Service of Engineers, Buildings & Roads
Branch. It provided for direct recruitment of such Assistant Engineers by
competitive examination through the Public Service Commission from the year
1961. Paragraphs 1 and 2 of the said memorandum read as follows:
The
principles regulating selection for recruitment to permanent and temporary
posts of Assistant Engineer in the various State Engineering Services have been
under the consideration of Government for some time past and after thorough
consideration, the Governor is pleased to order that in future direct
recruitment to both permanent and temporary vacancies of Assistant Engineers
(Civil, Electric and Mechanical) in the Public Works, Irrigation and Local Self
Government Engineering Departments, will be made on the results of competitive
examination to be conducted by the Public Service Commission. Candidates
possessing technical and other qualifications prescribed in the rules for the
United Provinces Service of Engineers in the Departments concerned will be
eligible to apear at the examination for that particular service."
"(2) Successful candidates in order of merit will subject to the relevant
rules regarding physical fitness and other matters, be appointed directly on
probation against vacant permanent posts and those following will be appointed
against temporary posts." By a G.O. dated April 19, 1950, the State
Government settled the principle that persons appointed to the guaranteed posts
every year as Engineer Students would take their seniority over persons
appointed as temporary Assistant Engineers in that year. A person appointed to
a guaranteed post in a particular year however was made junior to all those who
were appointed as Assistant Engineers in earlier years, irrespective of whether
they were appointed to guaranteed or to non-guaranteed posts. By a subsequent
G.O. dated June , 1950 the Government intimated the Chief Engineer, Buildings
& Roads that Engineer Students who were appointed to the guaranteed posts
of temporary Assistant Engineers and working in 223 the Buildings & Roads
Branch be absorbed in the existing permanent vacancies or those which might
arise in future.
Thus,
the appellants who were appointed to the guaranteed posts of temporary
Assistant Engineers, as reserved for the top students of Thomson College of
Civil Engineering, Roorkee/University of Roorkee, constituted a class apart.
One D.K. Laroiya who had been appointed as a temporary Assistant Engineer to
one of the guaranteed posts in 1945 and confirmed in the year 1949 made a
representation dated April 15, 1955 claiming seniority over all the Assistant
Engineers appointed to guaranteed or non- guaranteed posts, irrespective of the
order of appointment.
While
this representation was pending, the State Government passed an order dated
October 11, 1955 confirming the appellants i.e. holders of guaranteed posts W.E.F.
April 1, 1955 in the permanent posts of Assistant Engineers, and later on by
order dated July 20, 1956 determined their order of seniority. Subsequently,
the Government by orders dated November 7, 1956, April 9, 1957 and May 14, 1958
confirmed the temporary Assistant Engineers i.e. persons appointed to
non-guaranteed posts as permanent Assistant Engineers, all W.E.F. April 1,
1956. By order dated May 29, 196' the Government determined the seniority of
respondents nos. 1-12 and 39 others referable to the date of their substantive
appointment. On a combined reading of the impugned orders dated July 20, 1956
and the subsequent order dated May 29, 1961, the appellants i.e. the directly
recruited Engineer Students who had passed out from the Thomson College of
Civil Engineering, Roorkee/University of Roorkee in order of merit i.e. to the
guaranteed posts, were placed above respondents nos. 1-12 and 39 others i.e.
the temporary Assistant Engineers. On the basis of their seniority and in view
of their record of service, the appellants had in the meanwhile been promoted
as Offg. Executive Engineers in the years 1960 and 1961. Admittedly,
respondents nos. 1-12 who later on were promoted as Offg. Executive Engineers
never filed any representation qua Executive Engineers and the seniority of the
appellants as Executive Engineers remained unchallenged throughout the period
of 14 years.
It
was not till May 4, 1970 i.e. after a lapse of 15 years that respondents nos.
6,7, and 11 viz. I.P. Gupta, R.C. Mangal and R.K. Mathur filed a petition under
Art. 26 of the Constitution in the High Court challenging the impugned order
dated October 11, 1955 by 224 which the appellants were confirmed w.e.f. April
1, 1955 and the consequential determination of the inter-se seniority between
direct recruits and promotees vide orders dated July 20, 1956 and May 29, 1961
assigning them higher seniority.
The
writ petition came to be heard by Broome,J. and the learned Judge by his
judgment and order dated April 6, 1971 dismissed the writ petition holding that
the petitioners were guilty of laches. That judgment of his was upheld in
appeal by a Division Bench consisting of R.S. Pathak and H.N. Seth, JJ. by its
judgment dated October 26, 1971. The Division Bench following the decision of
this Court in Rabindra Nath Bose & Ors. v. Union of India & Ors.,
[1970] SCR 697 held that the learned Single Judge was fully justified in
holding that no relief could be granted to the petitioners who, without any
reasonable explanation, approached the High Court under Art. 216 of the
Constitution after inordinate delay. It was also observed relying upon the
decision of this Court in S. G. Jaisinghani v. Union of India & Ors.,
[1967] 2 SCR 703 that it would be highly unjust to deprive the appellants of
the rights which had accrued to them as such. The learned Judges firmly
repelled the contention that even if the petitioners could not be permitted to
question the legality and propriety of the impugned order of confirmation, they
were still entitled to claim seniority over the directly recruited Engineer
Students as per rules regulating seniority observing that:
"Since
the petitioners cannot be allowed to re- agitate and question the propriety of
the confirmation order passed long time back, it would not be desirable to go
into the question of consequential determination of seniority either.
In
the concluding part of the judgment, there is a direction in the following
terms:
"Moreover,
representations made by the petitioners, as admitted in the counter-affidavit
filed on behalf of the State Government, are still pending. The State
Government has taken up the stand that these representations have not been
decided as writ petitions had been filed by Sri K.C. Agarwal and the
petitioners before this Court and the matter became sub-judice. We have no
reason to 225 think that after disposal of the petitions the State Government
will not decide the representations fairly and in accordance with law.
In
the circumstances, we are not inclined to examine the correctness of this
submission made by the petitioners in this petition." If the sentence was
read in the context, it meant 'Left to themselves, they would not have
interfered'.
Misconstruing
this direction, the State Government afforded an opportunity to the temporary
Assistant Engineers to make their representations, if any. Factually. there
were no representations pending except the one filed by Laroiya.
Eventually,
the State Government realised the mistake and by its order dated June 29, 1973
rejected the representation stating that the question of inter-se seniority of
Assistant Engineers had been finally settled and could not be reopened.
It
is somewhat strange that the Division Bench (T.S. Misra and U.S. Srivastava.
JJ) by its judgement dated May 6, 1981 should have, after a lapse of nearly 26
years, thought that merely because of the fact that the State Government
erroneously invited representations afresh, 'the matter of inter-se seniority
was still alive and not a closed chapter . Upon that wrongful assumption, the
High Court has fallen into an error in directing the issuance of a writ in the
nature of certiorari quashing the impugned seniority list and a writ in the
nature of mandamus directing the State government to re-determine the inter-se
seniority of Assistant Engineers in the U.P. Service of Engineers, Buildings
& Roads Branch, Class Il. There can be no doubt whatever that it was not a
proper exercise of jurisdiction on the part of the High Court to have
interfered with the impugned seniority list after nearly three decades. When
way back in the year 1971 Broome, J. had declined to interfere with the
inter-se seniority between the appellants i.e. the direct recruits and
respondents nos. 1-12 and 39 others i.e. the promotes on a similar petition
under Art. 226 of the Constitution on the ground of inordinate delay and laches
and that judgment of his was upheld by a Division Bench which observed that it
would be unjust to deprive the appellants of the rights which had accrued to
them as they were entitled to consider that their appointments to the
promotional posts would not be set aside after a lapse of so many 226 years, there
was no occasion for the later Division Bench to have interfered with the
impugned orders and given a direction to the State Government to re-determine
the inter- se seniority between the appellants and respondents nos. 1- 12 and
39 others under r. 23 of the Rules afresh, with advertence to the observations
made by it.
My
learned brother Ray, J. has taken immense pain in discerning the principles
emerging from all the relevant authorities on the subject, including those of
N.K. Chauhan v. State of Gujarat [1977] 1 SCR 1037; S.B. Patwardhan v.
State
of Maharashtra, [1977] 3 SCR 775 and the subsequent decision in Baleshwar Dass
v. State of U.P. [1981] 1 SCR 449 and I do not wish to traverse the ground over
again except to touch upon certain aspects. The principle deducible from the
two well-known decisions of N.K. Chauhan and S.B. Patwardhan is that in the
absence of a seniority rule, the promotees within the quota are entitled to the
benefit of the period of continuous officiation in reckoning their seniority
vis-a-vis direct recruits. The importance of the decision in Baleshwar Dass'
case lies in the meaningful interpretation of the words 'substantive capacity'.
The
question must turn on a proper construction of the unamended r. 3 of the Rules
which provided:
"23.
Seniority in the service shall be determined according to the date of the order
of appointment to it, provided that if the order of appointment of two or more
candidates bears the same date, their seniority inter-se shall be determined
according to the order in which their appointment has been notified." It
is plain upon the language of r. 23 that it does not in terms use the words
substantive capacity' but speaks of 'the date of order of appointment to it'
i.e. the Service which brings in the concept of 'substantive capacity' as those
words are used in the definition of the expression 'Members of the Service' as
contained in r. 3(b) of the Rules.
In
Baleshwar Dass' case, the seniority list challenged before the High Court was
the one relating to Assistant- Engineers belonging to the Irrigation Department
prepared in December 1965 under r. 23 of the Rules prior to the amendment, but
after the issuance of the 227 aforesaid memorandum dated December 7, 1961 by
which a, new method of recruitment was introduced. The Court referred to Rules
for recruitment in particular to rr. 5, 6, 17 and 19 as well as the aforesaid
office memorandum dated December 7, 1961. The Court in Baleshwar Dass case
firmly repelled the contention that the aforesaid office memorandum
incorporating a change in the method of recruitment had no statutory force, not
being expressed in the name of the Governor, on the ground that it had been
published under Government authority, acted upon for two decades when
recruitments were made by the Public Service Commission and universally
accepted as binding. It held that the office memorandum was relatable to a
statutory source, namely, rr. 5 and 6 of the rules as 'filling up the gaps and
not flouting the provisions'. It was observed:
"Two
vital factors must guide us in this interpretative exercise. If a dated rule of
colonial times is to be applied today, that meaning which sustains it as
constitutionally valid must be preferred to another which may be appealing,
going by officialise or literal sense.
We
have to regard it as a case of 'new wine in old bottle'. We must reinterpret
the rules to comport with Arts. 4 and 16 by constitutionally acceptable
construction, not rigid connotation given to expressions in the vintage
vocabulary of British Indian days." Acting upon the basis that the
aforesaid office memorandum dated December 7, 1961. was constitutionally valid,
the Court went into the intent and effect of rr. 23, 3, 4, 5, 6, 17 and 18 and
their impact on r. 23 read in the context of the memorandum of 1961 with a view
to rationalise the scheme of recruitment, classification, seniority and
promotion and held that there was nothing arbitrary in the 1961 memorandum
bringing about a change in the method of recruitment by competitive examination
through Public Service Commission, and observed:
"(Although
in its application, we have to remember the prior Rules and when the two are
woven into each other or, rather, when the later 1961 Memorandum is dovetailed
to the .936 Rules the results that may follow will have to be ascertained with
care and consistently with the ratio of the decisions of this Court in cognate
situations." 228 Further that:
"(The
Government decided in 1961 to resort to direct recruitment of Assistant
Engineers through competitive examinations held by the Public Service
Commission. It was, however, alive to the fact that massive appointments had
already been made, in the years gone by, to the posts of Assistant Engineers
from among graduates in engineering by direct selection and later approval by
the Public Service Commission.. " The importance of the decision in
Baleshwar Dass' case lies in the meaningful interpretation of the words
'substantive capacity'. Krishna Iyer, J. affirming the principle in his own
charismatic and picturesque language, observed:
"We
must emphasise that while temporary and permanent posts have great relevancy in
regard to the career of government servants, keeping posts temporary for long,
sometimes by annual renewals for several years, and denying the claims of the
incumbents on the score that their posts are temporary makes no sense and
strikes us as arbitrary, especially when both temporary and permanent
appointees are functionally identified.
If,
in the normal course, a post is temporary in the real sense and the appointee
knows that his tenure cannot exceed the post in longevity, there cannot be
anything unfair or capricious in clothing him with no rights. Not so, if the
post is, for certain departmental or like purposes, declared temporary, but it
is within the ken of both the government and the appointee that the temporary
posts are virtually long lived. It is irrational to reject the claim of the
'temporary' appointee on the nominal score of the terminology of the post. We
must also express emphatically that the principle which has received the
sanction of this Court's pronouncements is that officiating service in a post
is for all practical purposes of seniority as good as service on a regular
basis.
It
may be permissible, within limits, for government to ignore officiating service
and count only regular service when claims of seniority come before it,
provided the rules in that regard are clear and categoric and do not admit of
any ambiguity and cruelly arbitrary cut-off of 1 long years of service does not
take place or there is functionally and qualitatively, substantial difference
in the service rendered in two types of posts.
While
rules regulating conditions of service are within the executive power of the
State or its lagislative power under provision to Art. 309, even so, such rules
have to be reasonable, fair and not grossly unjust if they are to survive the
test of Arts. 14 and 16." Adverting to the oft-quoted observations of
Chandrachud. CJ in S. B. Pathwardhan's case that 'seniority cannot depend on
the inglorious uncertainties of confirmation' and to his own in N. K. Chauhan's
case that 'seniority, normally, is measured by length of continuous officiating
service' the learned Judge observed that although an appointee to a permanent
post acquires certain rights which one who fills a temporary post cannot claim,
nevertheless. when the post is not purely temporary or ad-hoc or of short
duration or of an adventitious nature, the holder of such temporary post cannot
be degraded to the position of one who by accident of circumstances, or for a
fugitive tenure occupies the temporary post for a fleeting term. The learned
Judge while accepting that there was a distinction between permanent and
temporary posts inasmuch as permanency carries with it other rights than mere
seniority and promotion, brought out the 'propinquity in status' of permanent
and temporary Assistant Engineers in the special conspectus of the facts before
him and found no justification to hold that when Engineers were appointed to
temporary posts but after fulfillment of the tests for regular appointment,
including consultation with the Public Service Commission, they were not
appointed in a substantive capacity.
The
ultimate ratio of the decision in Baleshwar Dass' case is best brought out in
the words of Krishna Iyer, J in the following passage:
"Substantive
capacity refers to the capacity in which a person holds the post and not
necessarily to the nature or character of the post .. A person is said to hold
a post in a substantive capacity when he holds it for an indefinite period
especially of long duration in contradistinction to a person who holds it for a
definite or temporary period or holds it on probation subject to confirmation
....... once we understand 'substantive capacity' in the above sense, we may be
able to rationalise the situation. If the appointment is to a post and the
capacity in which 230 the appointment is made is of indefinite duration, if the
Public Service Commission has been consulted and has approved, if the tests
prescribed have been taken and passed, if probation has been prescribed and has
been approved, one may well say that the post was held by the incumbent in a
substantive capacity." It is to be emphasised that the court in Baleshwar
Dass' case did not take upon itself the task of determining whether the
temporary Assistant Engineers were entitled to have the benefit of their entire
period of service in reckoning seniority under r. 23 of the rules, but left it
to the Government to ascertain the facts and determine the question in the
light of the principles laid down whether the capacity in which the posts had
been held was substantive or temporary. The emerging principle is that the
temporary Assistant Engineers were entitled to the benefit of their seniority
reckoned according to the date or order of appointment to the Service in terms
of r. 23 of the rules W.E.F. the date of their absorption into the Service by
the Government in consultation with the Public Service Commission i.e. from the
date from which they became 'Members of the Service' within the meaning of r.
3(b) of the Rules.
In
legal matters, some degree of certainty is as valuable a part of justice as
perfection. One reason for consistency is that people often regulate their
conduct with reference to existing rules, which makes it important for Judges
to abide by them. Innovations can be unsettling and lead to a loss of
confidence: Dias' Jurisprudence, 4th edn., p. 286. In the present case, the
High Court was obviously wrong in proceeding upon the basis that the matter was
still res integra. The decision of the earlier Division Bench was arrived at
keeping in view all the aspects and it was held that the claim for
re-determination of inter-se seniority between direct recruits and promotees
could not be agitated after a lapse of 16 years. It is sufficient for invoking
the rule of stare decisis that a certain decision was arrived at on a question
or was argued, no matter on what reason the decision rests or what is the basis
of the decision. In other words, an earlier decision may be overruled if the
Court comes to the conclusion that it is manifestly wrong and not upon a mere
suggestion that if the matter was res integra, the Court on a later occasion
could come to a different conclusion. It cannot be doubted that an unlimited
and perpetual threat of litigation leads to disorder, sense of insecurity and
uncertainty. May be, there may have been isolated cases of hardship but there
must be some reservation about limitation 231 on the Court's power in the
public interest. Obvious considerations of public policy make it a first
importance that the person aggrieved must take action requisite effectively to
assert his right to that end so that if the contention can be justified, the Government
service may be disturbed as little as possible.
Inordinate
delay is not merely a factor for the Court to refuse apropriate relief but also
a relevant consideration it be so minded not to unsettle settled things. As
observed by Khanna, J. in delivering the judgment of the Court in Maloon
Lawrence Cecil D'Souza v. Union of India & Ors., [1975] Suppl. SCR 409:
"(B)y
and large one of the essential requirements of contentment and efficiency in
public service is a feeling of security. It is difficult no doubt to guarantee
such security in all its varied aspects it should at least be possible to
ensure that matters like one's position in the seniority list after having been
settled for once should not be liable to be reopened after lapse of many years
at the instance of a party who has during the intervening period chosen to keep
quiet. Raking up old matters like seniority after a long time is likely to
result in administrative complications and difficulties. It would, therefore,
appear to be in the interest of smoothness and efficiency of service that such
matter should be given a quietus after lapse of some time.
So
also in R.S. Makashi & Ors. v. I.M. Menon & Ors., [1982] 2 SCR 69;
Eradi, J. speaking for a three-Judge Bench stated that belated petitions cannot
be entertained under Art 32 of the constitution. See also: K.R. Mudgal &
Ors. v. R.P. Singh & Ors., [1986] 4 SCC 531. It would clearly be unjust, as
observed by Sikri, J. in Rabindra Nath Bose' case to deprive the appellants of
the rights which have accrued to them. As a result of the G.O. Of April 19,
1950, although initially the guarantee to the merit scholars who had passed out
from the Thomson College of Civil Engineering, Roorkee in order of merit was in
regard to appointment to the guaranteed post, but later it was amplified into
assuring to the holders of such guaranteed posts like the appellants preference
in the matter of permanency and seniority. This necessarily perpetuated some
amount of injustice, as brought out in the Report of Lal Committee, to the
holders of non- guaranteed posts i.e. the temporary Assistant Engineers, due to
permanent appointments having been given to the holders of guaranteed posts 232
i.e. directly recruited engineer students in preference to them, though they
joined service earlier. There is, however, nothing that can be done for the
Court is faced with a fait accompli. At times, the court is overtaken by the
events. As a matter of policy, the Government of the day thought that it would
bring greater efficiency and merit to the Service if certain number of posts
were kept reserved for the merit scholars graduating from the Thomson College
of Civil Engineering, Roorkee, which in those days was the most prestigeous
institution of its kind in the country and was later incorporated into the
University of Roorkee. The evidence about relevant consideration which prompted
the then Government into taking such a policy decision a long time back may
have been lost by passage of time but there is always a presumption that every official
act is done in good faith. Although Krishna Iyer, J. in Baleshwar Dass's case
calls the directly recruited Engineer Students to be a 'relic of the Imperial
days', nevertheless the system of reservation of posts for the engineer
Students served its own purpose in attracting persons of undoubted talent and
outstanding merit to the Service and thereby promoted efficiency, and it has
also withstood the test of time.
In
view of these considerations, I agree with my learned brother Ray, J. that
respondents nos. 1-12 were disentitled to any relief under Art. 226 of the
Constitution due to inordinate delay and laches. If the judgment of the High
Court were to be sustained after a lapse of nearly 32 years, it cannot be
gainsaid that the entire structure of the administrative set-up of the U.P.
Service of Engineers, Buildings & Roads Branch would be upset. We are
informed that the four appellants before us by reason of their seniority and
record of service, have reached the higher echelons of service. One of them has
been the offg. Engineer-in-Chief i.e. Head of the Public Works Department,
Buildings & Roads Branch, and the remaining three are offg.
Chief
Engineers. As against this, eleven of the 12 respondents have since retired,
leaving only one of them. It is always open to the State Government to
reconsider the case of the remaining respondent in the light of the principles
settled by this judgment that the temporary Assistant Engineers on absorption
were entitled to the benefit of their seniority from the date from which their
services were regularised i.e. the date from which they became 'Members of the
Service' within the meaning of r. 3(b) of the Rules. It is still open to the
Government to grant him the necessary relief, if he is found suitable for promotion
to a higher post, without disturbing the appointment, promotion and
confirmation of the appellants, by the creation of a supernumerary post.
233
I would, for these reasons, allow the appeal and set aside the A judgment and
order passed by the High Court quashing the seniority list. with out any order
as to costs.
N.V.K.
Appeal allowed S.L.
Back