Chief
Engineer and Secretary, Engineering Department Vs. K.S. Brar & Anr [1988] INSC
261 (1 September 1988)
Kania,
M.H. Kania, M.H. Dutt, M.M. (J)
CITATION:
1988 AIR 2106 1988 SCR 797 1988 SCC Supl. 756 JT 1988 (3) 581 1988 SCALE (2)766
ACT:
Punjab
Service of Engineers Class II P. W.D. (Buildings & Roadways Branch) Rules,
1965, Rules 10 and 12--Appointment of officer by transfer--Assignment of
seniority in public interest--Whether can be assigned from the date of
deputation which is prior to the date of absorption.
% Rule
10 of the Punjab Service of Engineers Class II, P.W.D. (Buildings and Roadways
Branch) Rules, 1965 provides that the Government may, in special circumstances,
with the approval of the Commission, appoint an of, officer to the service by
transfer. Sub-rule (5) of Rule 12 of the rules lays down that any person
appointed to a post in the service as an Assistant Engineer by transfer can be
assigned seniority as of a date earlier than the date of absorption provided
this is done in the interest of the public service and the seniority thus fixed
shall in no case be more favorable than the seniority determined after allowing
him credit for the period of service rendered by him in previous appointment as
Assistant Engineer.
HELD:
The
appellant, in Civil Appeal No. 3100 of 1988 (hereinafter referred to as
respondent No. 4 as in the Tribunal) was an Assistant Engineer in the Punjab
Public Works Department. He was deputed to work with the Engineering Department
of Chandigarh Administration on October 7, 1972 and was absorbed in the said Department on June 17, 1978, at his request, However, he was
granted seniority w.e.f. October
7, 1972 being the date
of his joining as an Assistant Engineer on deputation in the Chandigarh
Administration.
One
K.S. Brar (hereinafter referred to as petitioner as in the Tribunal) joined the
Chandigarh Administration as an Assistant Engineer on June 24, 1976. He challenged before the Tribunal
the seniority of respondent No. 4 on the ground that the order of absorption of
respondent No. 4 in the Chandigarh Administration and the order fixing his
seniority were not in public interest or in the interest of the PG NO 797 PG NO
798 service. The Tribunal allowed the petition holding that respondent No. 4
should be placed at the bottom of the gradation list of officers of his
category and granted seniority from the date he was absorbed in the cadre.
Hence these appeals by special leave by respondent No. 4 and the Chandigarh
Administration respectively.
It was
contended on behalf of respondent No. 4(a) that the question of regularity or
validity of the order of absorption was irrelevant to the question of fixation
of seniority; and (b) that the Chandigarh Administration was entitled to assign
a seniority to respondent No. 4 from a date prior to the date of his absorption
as per the provisions of subrule (5) of Rule 12 of the Rules. It was, on the
other hand, argued on behalf of the respondent (petitioner before the Tribunal)
that, as the transfer of respondent No. 4 and his appointment as an Assistant
Engineer in the Chandigarh Administration was at his own request, he should be
placed at the bottom of the seniority list as on the date of absorption.
Allowing
the appeals,
HELD:
(1) For the question of determining seniority, what one has to see is not Rule
10 but Rule 12(5) of the said Rules. The Tribunal completely failed to notice
Rule 12(5) and, probably, it was because of this that it fell into the error of
coming to the conclusion that it did. This appears clear from the fact that
there is no reference to Rule 12(5) at all in the judgment of the Tribunal.
[803C-D, 804B-C] 2(i) The Notification dated 14.1.19X0 relating to the fixation
of seniority of Respondent No. 4 expressly sets out that the order assigning a
higher seniority to him has been passed by the Chandigarh Administration taking
into account all the circumstances of the case and keeping in view public
interest and after considering the representations made in connection with the
tentative seniority list which was circulated earlier. By the said order
seniority is assigned to Respondent No. 4 with effect from 7.10.1972 which is
clearly within the limits laid down in the proviso to Rule 12(5) of the said
Rules. [803D-E,G] 2(ii) Respondent No. 4 was first appointed as an Assistant
Engineer through the Public Service Commission in July 1968 whereas the
petitioner was appointed to a similar post as late as on June 24, 1976.
Respondent No. 4 was thus holding the post of an Assistant Engineer prior to
the petitioner. As far as the qualifications go, it appears prima facie that
the qualifications of Respondent No. 4 are PG NO 799 better than those of the
petitioner and certainly, not lower than those of the petitioner. No oblique
motive for granting a higher seniority to Respondent No. 4 is shown. In these
circumstances, it is not possible to say that the order assigning seniority to
Respondent No. 4 as aforesaid has been passed merely under the guise of Public
interest. [803- 804H, A-B]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 3099 and 3100 of 1988.
From
the Judgment dated 17.9.87 passed by the Central Administrative Tribunal,
Chandigarh Bench, Chandigarh in O.A. No. T-5/CH of 1987.
.Kapil
Sibbal, G.L. Sanghi, Ms. Kamini Jaiswal, P.N. Puri, R.K. Chopra and Ravinder
Chopra for the Petitioners V.C. Mahajan and S.C. Patel for the Respondents The
Judgment of the Court was delivered by KANIA, J. Special Leave granted in both
the petitions.
The
Registry is directed to register and number these petitions as Civil Appeals.
These
Appeals are both directed against a judgment of the Central Administrative
Tribunal, Chandigarh Bench, dated September 17, 1987. The Appeal arising out of Special
Leave Petition No 15073 of 1987 has been preferred by the Chandigarh
Administration, Chandigarh and the Appeal arising out of Special Leave Petition
No 11877 of 1987 has been preferred at the instance of Puranjit Singh Writ
petition No. 3287 of 1978 filed in the Punjab & Haryana High Court was
transferred to the said Tribunal and treated as T.A No T-5/CH of 1987 and it is
the judgment of the Tribunal in this petition which is impugned before us. The
said writ petition was filed by K.S Brar who is Respondent No. 1 in Special
Leave Petition No 15()73 of 1987 and Respondent No. 4 in Special Leave Petition
No. 11877 of 1987 Puranjit Singh, the petitioner in Special Leave Petition No
11877 of 1987 was Respondent No. 4 in the said writ petition and Chandigarh
Administration and its officers were Respondents Nos. 1 to 3 We propose to
refer to the parties by their description in the said writ petition.
Respondent
No. 4 was appointed as an Assistant Engineer in the Punjab Public Works
Department (Irrigation Wing) on PG NO 800 July 15, 1968 on selection through the Punjab
Public Service Commission. On October 7, 1972
Respondent No. 4 was deputed to work with the Chandigarh Administration in its
Engineering Department as an Assistant Engineer. On June 24 1976 the petitioner joined the Chandigarh Administration as an
Assistant Engineer as a direct recruit by his selection through the Union
Public Service Commission. Respondent No. 4 made an application, while on
deputation with the Administration of the Union Territory of Chandigarh, for
absorbing him in the cadre of Sub-Divisional Engineers in the Engineering
Department at Chandigarh. His request was acceded to by the
Administration and by an order passed by the Home Secretary on June 17, 1978 he was absorbed in the Engineering
Department as a Sub- Divisional Engineer (B & R) in the Chandigarh
Administration, working on deputation in the Housing Board, Chandigarh. The order absorbing him as a
Sub-Divisional Engineer was incorporated in a Notification dated March 1, 1979, which was duly Gazetted. The said
Notification sets out that the Chief Commissioner, Union Territory, Chandigarh,
in consulation with the Union Public Service Commission, New Delhi, is pleased
to appoint Puranjit Singh as Assistant Engineer (Civil), Class II, in the
Engineering Department of Chandigarh Administration on buildings and roads
side, by transfer from Punjab, P.W.D Buildings and Roads Branch, and that his
appointment will be subject to further provisions of P.W D Class II Rules, 1965
as applicable to the Engineering Department of the Chandigarh Administration.
There is no mention of public interest or interest of the service in this
order. The consent of the State of Punjab as well as the approval of the Union Public Service Commission with
regard to this appointment of Respondent No 4 was duly taken. On consideration,
a tentative seniority list was circulated on November 19, 1979 inviting objections and after hearing the objections
Respondent No. 4 was granted seniority with effect from October 7, 1972, being the date of his joining as
an Assistant Engineer on deputation in the P.W.D.
Buildings
and Roads Branch of the Chandigarh Administration.
The
Notification dated 14.1.1980 granting him final seniority sets out inter alia
as follows:
"AND
WHEREAS the Chandigarh Administration considered all the circumstances of the
case and keeping the public interest in view, fixed the tentative seniority of Shri
Puranjit Singh w.e.f. 7.10.1972, the date of his joining as Assistant Engineer
in P.W.D. Buildings & Roads Branch PG NO 801 Now, therefore, in pursuance
of rule 12.5 of Punjab Service of Engineers, Class II, P.W.D. (Buildings and
Roads Branch) Rules, 1965, the Chief Commissioner, Chandigarh Administration is
pleased to order the fixation of seniority of Shri Puranjit Singh as Assistant
Engineer w.e.f. 7.10.1972 ........." From this it is clear that Respondent
No. 4 was granted seniority with effect from 7.10.1972 when he was appointed on
deputation as Assistant Engineer in P.W.D. (Buildings and Roads Branch) as
stated earlier.
The
petitioner in the writ. petition challenged both the order of absorption of
Respondent No. 4 in the Chandigarh Administration and the order fixing his
seniority on the ground that these orders were not in public interest or in the
interest of the service. However, at the hearing before the Tribunal, at the
very outset, learned Counsel for the petitioner made it clear that he was not
challenging the absorption of Respondent No. 4 but only the placement of the
petitioner in the seniority list and the assigning of seniority to Respondent
No. 4 from the date he was taken on deputation, namely, 7.10.1972. The
contention of the petitioner was that, since Respondent No. 4 was appointed by
transfer to the Chandigarh Administration at his own request, he ought to have
been placed at the bottom of the seniority list in the year of absorption and
below the petitioner. Curiously, although the challenge to the order absorbing
Respondent No. 4 in the service of the Chandigarh Administration was given up
by the petitioner, the Tribunal came to the conclusion, on the basis of Rule lO
of the Punjab Service of Engineers, Class II, P.W.D. (Buildings and Roads
Branch) Rules (referred to hereinafter as "the said Rules''). that the
order of absorption was not valid as no special circumstances had been set out
or shown justifying the same and hence, there was a lacuna in the order. The
Tribunal held that, as a result of this Respondent No. 4 should be placed at
the bottom of the gradation list of officers of his category and granted
seniority from the date he was absorbed in the cadre, namely, February 9, 1979. It is against this decision that
both, the Chandigarh Administration and Respondent No. 4, have come by way of
these Appeals.
It was
urged by learned Counsel for the Chandigarh Administration as well as learned
Counsel for Respondent No. 4 that the question of regularity or validity of the
order of absorption was irrelevant to the question of fixation of seniority. It
was submitted by them that, in view of the challenge to the order of absorption
of Respondent No. 4 having been specifically given up by learned Counsel for
the petitioner before the Tribunal, it was not open to the PG NO 802 Tribunal
to consider the question of validity of the absorption at all, and that as per
the provisions of sub- rule (5) of Rule 12 of the said Rules the Chandigarh
Administration was entitled to assign a seniority to Respondent No. 4 from a
date prior to the date of his absorption in the interest of the public service
and after taking into account all the circumstances of the case provided that
Respondent No. 4 could not be granted seniority more favourably than the
seniority determined after allowing him credit for the period of service
rendered by him in his previous appointment as Assistant Engineer. It was, on
the other hand, contended by learned Counsel for the petitioner that, as the
transfer of Respondent No. 4 and his appointment as an Assistant Engineer in
the Chandigarh Administration was at his own request, he should be placed at
the bottom of the seniority list as on the date of absorption.
In
order to appreciate these respective contentions, it is necessary to set out
the relevant provisions. Rule 10 of the said Rules provides for the appointment
in Class II service by transfer and reads as under:
"The
Government may in special circumstances with the approval of the Commission,
appoint an Officer to the service by transfer." Sub-Rule (5) of Rule 12 of
the said Rules reads thus:
"
12(5) in the case of an of officer appointed by transfer as an Assistant
Engineer, while normally he would be placed junior to all the officers
appointed directly or by promotion as Assistant Engineers in a particular year,
the Government may in the interest of the public service and taking into
consideration all the circumstances of the case, fix his seniority on ad hoc
basis.
Provided
that the seniority thus fixed shall in no case, be more favourably than the
seniority determined after allowing him credit for the period of service
rendered by him in previous appointment as Assistant Engineer or on a post the
duties of which in the opinion of the Government are of equivalent or greater
responsibility The decision of Government on this point shall be final "
As far as the appointment of Respondent No 4 as PG NO 803 Assistant Engineer in
the chandigarh Administration is concerned, we must proceed on the footing that
it was made at his own request. Rule 10 of the said Rules clearly provided that
such an appointment can be made only in special circumstances. In our view,
where the request made by the officer concerned is based on circumstances
showing the request for transfer is justified, this might be looked up as a
special circumstance. It was, however, pointed out by learned Counsel for the
petitioner that the order of appointment by transfer does not refer to any special
circumstance and hence, the appointment of Respondent No. 4 in the Chandigarh
Administration by transfer is itself not regular. However, we do not wish to go
into the question as to whether such an appointment could be said to be invalid
or irregular merely because no special circumstances has been recited in the
order because the challenge to the order appointing Respondent No 4 by transfer
has been specifically given up by the petitioner in the Tribunal. In our view,
for the question of determining seniority, what one has to see is not Rule 10
but Rule 12(5) of the said Rules which, in terms, provides that any person
appointed to a post in the service in question by transfer can be assigned
seniority as of a date earlier than the date of absorption provided this is
done in the interest of the public service The Notification dated 14 1 1980
relating to the fixation of seniority of Respondent No 4 expressly sets out
that the order assigning a higher seniority to him has been passed by the
Chandigarh Administration taking into account all the circumstances of the case
and keeping in view public interest and after considering the representations
made in connection with the tentative seniority list which was circulated
earlier The said Notification, in its earlier portion, recites that Respondent
No 4 was appointed on July 15, 1968 as an Assistant Engineer (Civil) in the
Punjab P.W D (Irrigation Branch) and that he was appointed as an Assistant
Engineer (Civil) in the Buildings and Roads Branch of Punjab P W D on October 7
1972 through the Public Service Commission and joined on deputation in the
Engineering Department of the Chandigarh Administration By the said order
seniority is assigned to Respondent No. 4 with effect from 7.10.1972 which is
clearly within the limits laid down in the proviso to Rule 12(5) of the said
Rules In view of this, the order granting him seniority as aforesaid appears ex
facie to be in order. It was urged by learned Counsel for the petitioner that,
although public interest has been referred to in the said Notification, it is
clear that this consideration was not in the mind of the Chandigarh
Administration at all but the appointment was made to favour Respondent No l We
are afraid that there is no basis on which such a submission can be founded.
Respondent No. 4 was first appointed as an Assistant Engineer through the
Public PG NO 804 Service Commission in July 1968 whereas the petitioner was
appointed to a similar post as late as on June 24, 1976.
Respondent
No. 4 was thus holding the post of an Assistant Engineer prior to the
petitioner. As far as the qualifications go, it appears prima facie that the
qualifications of Respondent No. 4 are better than those of the petitioner and
certainly, not lower than those of the petitioner. No oblique motive for
granting a higher seniority to Respondent No. 4 is shown to us. In these
circumstances, it is not possible to say that the order assigning seniority to
Respondent No. 4 as aforesaid has been passed merely under the guise of public
interest. In our view, the Tribunal completely failed to notice Rule 12(5) of
the said Rules and, probably, it was because of this that it fell into the
error of coming to the conclusion that it did. This appears clear from the fact
that there is no reference to Rule 12(5) at all in the judgment of the
Tribunal.
In the
result, the appeals are allowed, the judgment and order passed by the Tribunal
are set aside and validity of the order dated 14 1.198() fixing seniority of
Respondent No 4 is upheld.
Looking
to the circumstances of the case, there will be no order as to costs M.L.A
Appeals allowed .
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