Kumar Choudhary & Ors Vs. State of Bihar & Ors,  INSC 381 (16
RANGNATH MISRA RANGNATH OZA, G.L. (J)
1988 AIR 394 1988 SCR (2) 410 1988 SCC Supl. 107 JT 1987 (4) 660 1987 SCALE
matter-Amalganation of different cadres of employees and resultant gradation-challenge
Civil Appeal Nos. 2049 and 3129 of 1979 were filed in this Court by special
leave against the judgment of the High Court in a Writ Petition filed by respondents
6 to 51 of Civil Appeal No. 2049 of 1979. One appeal was. by the employees and
the other, by the State of Bihar, etc., against the judgment of the High Court
were three different wings of Engineers in the Department of Agriculture, viz.,
Irrigation, minor Irrigation and River Valley Projects. On January 9, 1969, the
State Government amalgamated the cadres of engineers and other employees of the
Irrigation and the River Valley departments. Engineers and other employees of
the minor Irrigation wing were not amalgamated. Later, the Directorate of minor
Irrigation was made permanent and a distinct and permanent cadre of overseers
termed as Junior Engineers, was created. 191 permanent posts of overseers were
the minor Irrigation - wing was also amalgamated with the other two wings, and
a combined final gradation list prepared on the basis of the status of the
overseers as obtaining on.January 9, 1969, was issued.
the Writ Petition of the respondents 6 to 51 above- mentioned, the High Court
quashed the orders contained in the various annexure viz 11.11/1, 12, 13, 13/1,
15 and 16 directed the State Government to prepare a fresh combined gradation
list in accordance with the principles laid down by the High Court.
the appeals in part, the Court, ^
The three wings though under the administrative control of the Agricultural
Department, were separate before amalgamation. Permanent posts had been
sanctioned in the minor Irrigation wing to 411 which the petitioners before the
High Court belonged and they were appointed on permanent basis. When
integration takes place and officers in different cadres are merged into one,
there is bound to be some difficulty in the matter of adjustment. That has
occurred in this case. The approach of the High Court has been that if within
the cadre earlier confirmation gives seniority why should that basis be not
extended to the combined gradation list. That may not be applicable in every
situation-particularly when there is a merger of cadres and the combined
gradation list is proposed. [414C-D,FJ] Seniority would ordinarily depend upon
the length of service, subject, of course, to the rules holding the field.
view has been taken by this Court in several cases. The High Court recorded a
finding that there is no applicable rule in the matter of fixing inter se
seniority in a situation of this type. In the absence of rules, the more
equitable way of preparing the combined gradation list would be to take the
total length of service in the common cadre as the basis for determining the
inter se seniority The Court does not agree with the High Court that
confirmation should be the basis and would substitute it by the length of
service test, but the Court upholds the direction that in fixing the combined
gradation list the inter se seniority of incumbents in their respective
departments would not be disturbed. The gradation list as published by the
Government has to be modified. The conclusion of the High Court that Annexure 11,
11/1, 12,13, 1311, 15 and 16 should be quashed and a fresh combined gradation
list has to be published, is confirmed. The test for fixing the seniority
interested generally is altered, but the direction of inter se seniority in
their own departments to be respected is approved. The respondent-State
directed to prepare and publish the fresh combined gradation list keeping these
directions in view. [4t4G; 4t5C-F] A. Janardhana v. Union of India and Ors.,
 2 SCR 936 and K.S. Vora and Ors. v. State of Gujarat and Ors.,  4
J.T. 179, referred to.
APPELLATE JURISDICTION: Civil Appeal Nos. 2049 and 3 128 of 1979.
the Judgment and order dated 2.3.1979 of the High Court f Patna in C.W.J.C.
NO.1820 of 1977.
Y.S. Chitale, S.S. Javali, Narendra Prasad and Ranjit Kumar for the Appellants.
S.N. Kacker, and L.N. Sinha D. Goburdhan, M.L. Verma and A Dalip Tandon for the
Judgment of the Court was delivered by RANGANATH MISRA, J. These two appeals
are by special leave. They are directed against the same judgment of the Patna
High Court in an application under Article 226 of the Constitution filed by
respondents 6 to 51 of Civil Appeal No. 2049 of 1979. In the Writ Petition the
aforesaid respondents imp leaded the State of Bihar and certain public officers
as also all others who were included in the gradation list for purposes of
seniority in the combined cadre of engineers in the Department of Agriculture.
The other appeal is by the State of Bihar and its public officers and both the
appeals challenge the correctness of the decision of the Division Bench of the
High Court. Both the appeals are disposed of by this judgment.
were three different wings of engineers in the Department of Agriculture being
Irrigation, Minor Irrigation and River Valley Projects. On 9th January, 1969,
the State Government amalgamated the cadre of engineers and other employees of
the Irrigation and the River Valley departments. Engineers and other employees
of the Minor Irrigation wing were, however, not amalgamated. On 17th November,
1969 the Directorate of Minor Irrigation was made permanent and the State
Government created a distinct and permanent cadre of overseers who came to be
known as Junior Engineers. 191 permanent posts of overseers were sanctioned.
were held and committees were appointed for the purpose of merging the Minor
Irrigation wing with the other two wings which had already been amalgamated in
1969. On 17th May, 1976, the Government ultimately approved the Minor Irrigation
wing to amalgamate. On 29th August, 1977, the Engineer-in-Chief cum Special
Secretary, Irrigation Department, circulated a combined final gradation list
said to have been prepared, taking into consideration the status of the
overseers as obtaining on 9th January, 1969. On 30th June, 1978, an amended
combined gradation list was published which was further changed on 18th July,
1978. Respondents 6 to S 1 had already filed their writ application before the
Patna High Court being C.W.J. Case No. 1820 of 1977 which the High Court by the
impugned judgment dated 2nd March, 1979 allowed. The High Court quashed the
orders contained in Annexure 11, 11/1, 12, 13, 13/1, 15 and 16 and called upon
the State Government and its officers to prepare a fresh combined gradation
list in accordance with the principles laid down in the judgment.
The High Court referred to all the materials that were placed before it by the
different parties and in para 17 of the judgment came to the conclusion:
the discussion of the facts of the case before us, it is clear that the
petitioners got their substantive appointments earlier than the respondents
concerned and if seniority would have ranked on that consideration, then the
petitioners would have ranked senior in the integrated cadre.
was also the recommendation of both the High Powered Committees which suggested
that two seniority lists, one for the permanent incumbents and the other for
the temporary incumbents, be framed. No specific rule was brought to our notice
by either side which could govern the case of the petitioners and the
the other hand, learned counsel for the petitioners has referred to the
instructions issued by the Personnel Department of the State Government to all
Principal Secretaries and Heads of Departments etc. in its memo No
3/RI-106/72-F- 15784 dated the 26th August, 1972. Clause 3(vii) thereof
provides that in the event of amalgamation of cadres seniority is determined
with reference to the date of appointment in the particular grade on
substantive or continuous officiating basis, whichever is earlier, without.
however, disturbing the inter se seniority of incumbents in any group of posts
as amongst themselves in that process. No other rule was brought to our notice
on behalf of either the learned counsel appearing for the State or the
attempt had been made before the High Court to rely upon the executive
instructions issued in a Government resolution (Annexure 9). The High Court
found that the circular had got no application to the case before it and it
related to secretariat assistants. The High Court was not prepared to act upon
it because it was not laying down any general principles. According to the High
appointment in a service gives the incumbent a right and if that cannot be
taken away by a temporary incumbent of the same department, we do not see why
that right should be allowed to be taken away if a question of integration or
merger comes in by such incumbents who were similarly temporary and thereby
junior to the permanent employees. In our opinion.
the gradation list in this case (Annexure 12) is violative of the principles
contained in Articles 14 and 16 of the Constitution and impinges upon the civil
rights of the petitioners, making them several hundreds places junior in the
integrated or combined cadre on a basis which cannot, in any view of the matter,
be said to be reasonable in the light of the principles discussed in the
aforesaid authorities." It is not in dispute that the three wings, though
under the administrative control of the Agricultural Department, were separate
before amalgamation. As already pointed out, permanent posts had been
sanctioned in the Minor irrigation wing to which the petitioners before the
High Court belonged and they were appointed on permanent basis. The High
Powered Committees had taken all aspects into consideration and had recommended
relevant aspects to be kept in view to regulate seniority in the merged cadre.
When integration takes place and officers in different cadres are merged into
one, there is bound to be some difficulty in the matter of adjustment.
obviously has occurred here. The High Court has found that the petitioners
before it had held, on the basis of confirmation, permanent posts and on that
basis directed that the combined seniority list should be prepared taking dates
of substantive appointments as the basis for fixing inter se seniority. That
indeed might create problems because depending upon availability of
opportunities in the different wings, confirmation may have been granted while
in the absence of the same, though officers in the other wings may be senior
they may not have been confirmed. The approach of the High Court has been, as
extracted above by us, that if within the cadre earlier confirmation gives
seniority why should that basis be not extended to the combined gradation list.
This may not be applicable in every situation- particularly when there is a
merger of cadres and the combined gradation list is proposed.
is a well-settled position in law that seniority would ordinarily depend upon
length of service subject, of course, to rules holding the field. That view has
been taken by this Court in several cases and it is unnecessary to refer to all
of them. In A. Janardhana v. Union of India & Ors.,  2 SCR 936 the
situation was somewhat the same as here. The Court found that the method
adopted for fixing seniority overlooked the character of appointments and
pushed down persons validly appointed below others who had no justification to
be given higher place. At page 960 of the Reports, the Court observed:
"It is an equally well recognised canon of service jurisprudence that in
the absence of any other valid rule for determining inter se seniority of
members belonging to the same service, the rule of continuous officiation or
the length of service or the date of entering in service and continuous
uninterrupted service thereafter would be valid and would satisfy the tests of
Article 16." We may also refer to a very recent decision of this Court in
K.S. Vora & ors. v. State of Gujarat & Ors.,  4 Judgment Today 179.
The High Court recorded a finding that there is no applicable rule in the
matter of fixing inter se seniority in a situation of this type. In the absence
of rules, the more equitable way of preparing the combined gradation list would
be to take the total length of service in the common grade as the basis for
determining inter se seniority. We would like to add that in regard to the
Supervisors (now called Junior Engineers) serving in the three wings there is
no dispute of the grade being the same.
we do not agree with the High Court that confirmation should be the basis and
would substitute it by the length of service test, we would uphold the
direction that in fixing the combined gradation list the inter se seniority of
the incumbents in their respective departments would not be disturbed. Even if
this be the test, the gradation list as published by Government has to be
modified. We would accordingly confirm the conclusion of the High Court that Annexure
1 1, 11/1, 12, 13, 13/1, 15 and 16 should be quashed and a fresh combined
gradation list has to be published. We have altered the lest for fixing the
seniority inter se generally but we have approved the direction of inter se
seniority in their own departments to be respected.
respondent-State and its officers are directed to prepare and pubIish the fresh
combined gradation list keeping the aforesaid directions in view.
the appeals are allowed to the extent indicated above. Parties shall bear their
own costs throughout.