State of
Bihar & Ors Vs. Akhouri Sachindra Nath
& Ors [1991] INSC 108 (19 April 1991)
Ray,
B.C. (J) Ray, B.C. (J) Sahai, R.M. (J)
CITATION:
1991 AIR 1244 1991 SCR (2) 410 1991 SCC (1) 334 JT 1991 (2) 279 1991 SCALE
(1)748
ACT:
Service
Law: Bihar Public Works Departments Code: Rule 2-Bihar Engineering Service,
Class II-Assistant Engineers- 25 of posts to be filled up by promotion and 75%
by direct recruitment-Seniority promotees and direct recruits-Whether seniority
can be conferred on promotees retrospectively from a date they were not born in
the Cadre.
HEAD NOTE:
Under
Rule 2 of the Bihar Public Works Department Code, the Governor of Bihar took a
decision on 7.4.1958 providing that 25% of the posts of Assistant Engineers in
the Bihar Engineering Service, Class II (the Service) were to be filled by
promotion, subject to availability of suitable hands, from Overseers in the
Bihar Subordinate Engineering Service (Irrigation Department) and 75% of the
posts were to be filled by direct recruitment to the Service. Respondents no. 1
to 5 in both these appeals were appointed as Assistant Engineers in the Service
on the recommendation of the Bihar Public Service Commission in the year 1961;
and the appellants (in Civil Appeal No. 233 of 1978(respondents no.
6 to
23 in Civil Appeal No. 232 of 1978), who had been working as Overseers in the
Bihar Subordinate Engineering Service (Irrigation Department) were promoted to
the posts of Assistant Engineers in the Service in 1962 and thereafter.
However, by orders dated 12.7.1975, 20.1.1976 and 9.4.1977, the Government
changed the date of promotion of the appellants to the dates prior to the
appointment of respondents no. 1 to 5 in the Service, making the former Senior
to the letter.
Respondents
no. 1 to 5 filed writ petition before the High Court challenging the seniority
conferred on the appellants from the retrospective date and contended that the
orders giving promotions to the appellants from a date earlier to date of their
promotion in the Service purported to affect prejudicially respondents no. 1 to
5's right inasmuch as they were appointed to the Service earlier to the
promotion of the appellants; and that the seniority had to be reckoned amongst
the officials working as Assistant Engineers in the Service from the date of
their appointment or promotion to the said Service. The appellants contended
that they were entitled to be promoted retrospectively on the 411 basis of
reservation of 25% of the Cadre posts in the Service till 1958.
The
High Court. holding that the orders promoting the appellants with retrospective
effect were bad, quashed the same and allowed the writ petition. Hence the
present appeals.
On
consideration of the legality and validity of the orders of the Government
giving promotions to the appellants from a date earlier to the date of their
entry into the Service as Assistant Engineers, and its effect on the inter- se
seniority amongst the appellants and respondents no. 1 to 5, who were directly
appointed as Assistant Enginers in the Service before the appellants entered in
the said Service.
Dismissing
the appeals, this Court,
HELD:
1. The Government Orders dated 12.7.1975, 20.1.1976 and 9.4.1977 which
purported to give promotion to the appellants retrospectively were arbitrary,
illegal and inoperative inasmuch as these seriously affected rspondents no. 1
to 5. The appellants were not borne in the cadre of Assistant Engineers even in
officiating capacity at time when rspondents no. 1 to 5 were directly recruited
to the post of Assistant Egineer. As such, the promotee appellants could not be
under any circumstance given seniority over the directly recruited respondents
no. 1 to 5. The judgment of the High Court in quashing the impugned Government
Orders was, therefore, unexceptionable. [418F-H; 420A]
2.1 No
person can be promoted with retrospective effect from a date when he was not
borne in the Cadre so as to adversely affect others; and amongst members of the
same grade, seniority is reckoned from the date of their initial entry into the
service. [419F]
2.2
Seniority inter-se amongst the Assistant Engineers in Bihar Engineering
Service, Class II would be considered from the date of the length of service
rendered as Assistant Engineers. Therefore, the appellants could not be made
senior to respondents no. 1 to 5 by the impugned Government Orders as they
entered into the said Service in 1962 and thereafter by promotion subsequent to
respondent no. 1 to 5 who were directly recruited in the quota meant for them.
There
was nothing to show that the appellants could be deemed to be recruited in 1958
quota and that these vacancies were carried forward. [419G; 418E-F] A.K. Subraman
and Ors. v. Union of India and Ors., [1975] 1 SCC 319, relied on.
412
V.B. Badami v. State of Mysore and Ors., [1976] 1 SCR 815 and Gonal Bihimappa
v. State of Karnataka, [1987] Supp. SCC 207, held
inapplicable.
D.K. Mitra
and Ors. v. Union of India and Ors., [1985] Supp. SCC 243, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 232-233 of 1978.
From
the Judgment and Order dated 19.7.1977 of the Patna High Court in C.W.J.C. No.
756 of 1977.
Ashok Sen,
Shankar Ghosh, Tapas Ray, Ms. S. Janani, Ms. Minakshi, Mrs. Urmila Kapoor, D. Goverdhan,
Rakesh K. Khanna, Salman Khurshid, R.P. Singh, D.D. Mishra, Mrs. G.S. Mishra
and D.P. Mukherjee for the appearing parties.
The
Judgment of the Court was delievered by RAY, J. These two appeals were filed
against the common judgment and order dated 29th July, 1978 made by the Division Bench of the High Court at Patna in C.W.J.C. No. 756 of 1977 whereby
the High Court quashed the orders of the government contained in Annexures 8, 9
and 10 to the writ petition. The facts unfurled from the writ petition are as
follows:
The
respondent Nos. 1 to 5 in these appeals (the petitioners in the writ petition)
were directly appointed in the Bihar Engineering Service Class II as Assistant
Engineers of the Irrrigation Department on the recommendation of Bihar Public
Service Commission and were posted in River Valley Project in 1961. The
respondent Nos. 6 to 23 in C.A. No. 232 of 1978 (who are appellants in C.A. No.
233 of 1978 and respondent Nos. 5 to 22 in the writ petition) were working at
that time as overseers in the Bihar Subordinate Engineering Service (Irrigation
Department). On 7th April, 1958 the the Governor took a decision under rule 2
of the Public Works Department Code that 25% of the posts in the Bihar
Engineering Service, Class II shall be filled up by promotion, subject to
availability of suitable hands. Thus, out of the total vacancies in Bihar
Engineering Service, Class II, 75% of the vacant posts as determined by the
Government will be filled up by direct recruitment and 25% of the vacant posts
will be filled up by promotion subject to availability of suitable candidates.
By notification dated 413 18th July, 1964/27th August, 1964, respondent Nos. 6
to 13 in C.A. No. 232 of 1978 (appellant Nos. 1 to 8 in C.A. No. 233 of 1978
and respondent Nos. 5 to 12 in the writ petition) who were members of the Bihar
Subordinate Engineering Service (Overseers) were promoted to the post of
Assistant Engineer in Class II and by another notification dated 21st July,
1969, respondent Nos. 14 to 23 in C.A. No. 232 of 1978 (appellant Nos. 9 to 18
in C.A. No. 233 of 1978 and respondent Nos. 13 to 22 in the writ petition) were
also promoted to Bihar Engineering Service, Class II as Assistant Engineers. On
February 25, 1969, a seniority list of Assistant Engineers was published by the
Department wherein the names of the respondent Nos. 1 to 5 (the petitioners)
were mentioned at Sl. Nos. 170, 199, 208, 211 and 226 and the names of the
respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in writ petition) were
mentioned at Sl. Nos. 253, 254, 256 to 262, 687 to 695 and 701 respectively The
respondent Nos. 6 to 23 were thus shown as juniors to the respondent Nos. 1 to
5 (the petitioners). The respondent Nos. 6 to 23 feeling aggrieved by the said
seniority list made representations claiming seniority over respondent Nos. 1
to 5. On 3rd May, 1972 the State of Bihar constituted a Committee known as Ramanand
Committee by a resolution to consider the inter se seniority of Civil Engineers
including the Assistant Engineers. On April 19, 1973 the Ramanand Committee submitted a
report making certain recommendations.
It was
alleged that a revised seniority list was prepared wherein the respondent Nos.
1 to 5 were shown juniors to the respondent Nos. 6 to 23. This, of course, has
been denied in affidavit-in-counter filed on behalf of the Government
(appellants in C.A. No. 232 of 1978, respondent Nos. 6 to 9 in C.A. 233 OF
1978, and respondent Nos. 1 to 4 in the writ petition). On 21st of July, 1975,
an order was made whereby the date of promotion of respondent Nos. 6 to 13 was
changed from 21st July,
1962 to 27th February, 1961 thereby making the respondent Nos.
1 to 5 juniors to respondent Nos. 6 to 13. This order is contained in annexure
8 to the writ petition. In other words, the respondent Nos. 6 to 13 were
promoted retrospectively from the State against it but the State government
instead of redressing their grievances made another order on January 20, 1976
(annexure 9 to the writ petition) re-fixing the seniority of respondent Nos. 6
& 7 promoting them to the Bihar Engineering Service with effect from
December 19, 1958. Again, to the prejudice of the respondent Nos. 1 to 5, an
order was passed by the State Government by which the date of promotion of
respondent Nos. 14 to 23 was pushed back to February 27, 1961 making them also senior to the respondent Nos. 1 to 5. This
order is contained in annexure 10 to the writ petition. 414 The respondent Nos.
1 to 5, therefore, filed a writ petition in the High Court at Patna being Civil
Writ Petition No. 756 of 1977 challenging the seniority conferred on the
respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) by annexures
8, 9 and 10 on the ground that these orders were wholly arbitrary illegal, void
and inoperative and ineffective and so prayed for appropriate writ for quashing
those orders.
A
counter-affidavit was filed on behalf of the State Government. In Para 3(iii)
of the said affidavit, it has been averred that till 1957, 25% of the vacancies
in Bihar Engineering Service, Class II, were being filled up by promotion from
the Bihar Subordinate Engineering Service (commonly known as `Overseers').
Subsequently, in the year 1958, it was decided that 25% of the cadre posts in
the Bihar Engineering Service, Class II Both permanent and temporary, shall be
reserved for being filled up through promotion from the members of the Bihar
Subordinate Engineering Service. It has been further averred in para 3(iv) that
all the posts of temporary Assistant Engineers to which the Overseers were
entitled to be promoted on the basis of 25% reservation in the cadre were not
filled up by promotion of Overseers, only 3 overseers were given promotion with
effect from 19.12.1958 vide order No. A/P1- 409-64-1-14294 dated
18.7.64/27.8.64. In the said affidavit it has also been stated that on a
careful examination of the matter it was found that on the basis of total
number of posts of Assistant Engineers in the Department, the Overseers were
entitled to 60 posts on the basis of 25% reservation till 1958, out of which
they were already given 33 posts and 27 more posts of Assistant Engineers were
still due to them and accordingly by an order dated 20th January, 1976 the 21
Overseers who had earlier been given promotion as temporary Assistant Engineers
from later dates in 1960, 1961 and 1962 by the order dated 18.7.64/27.8.64. were
given promotion, with effect from 19.12.1958. Due to this correction,
respondent Nos. 6 and 7 and one Shri Mithileshwari Sahay (since retired) were
promoted as temporary Assistant Engineers with effect from 19.12.1958 in
partial modification of the Government order dated 18.7.64/27.8.64 and another
order dated July 12, 1975. It has been further stated that as a result of this
modification in the dates of promotion as Assistant Engineer who by the order
dated 20th January, 1976 were allowed promotion as temporary Assistant Engineers
with effect from 19.12.1958 as against promotions from later dated in 1960,
1961 and 1962 given to them by earlier Government Order dated 27.8.1964 and
order dated 21.7.1969. It has also been stated that the respondent Nos. 6 and 7
were entitled to promotion in 1958 and respondent Nos. 8 to 23 to promotions in
415 1960 and 1961, on the basis of the reservation of 25% of the cadre post in
the Bihar engineering Service, Class II, for promotion of Overseers from the
Bihar Subordinate Engineering Service. It has been further averred that as
against 21 consequential vacancies, the case of only 17 Overseers was modified
accordingly in supersession of the earlier Government order dated
18.7.64/27.8.64 and respondent Nos. 8 to 13 were given promotion as temporary
Assistant Engineer with effect from 27.2.1961, from which date the promotion
was due to them on the basis of the quota by a Government Order No. 10501
(annexure 8 to the writ petition) dated July 12, 1975 and No. 17328 dated
November 8, 1975 respectively. It has also been stated that the seniority list
that was prepared and published in 1969 was tentative.
The
High Court, Patna held that no person can be promoted
with retrospective effect from a date when he was not born in the cadre so as
to adversely effect others.
The
respondent Nos. 1 to 5 were recruited to the post of Assistant Engineer, Class
II before the respondent Nos. 6 to 23 were promoted to the post of Assistant
Engineer, Class II in the Bihar Engineering Service, Class II. The High Court,
therefore, held that the orders contained in Annexure 8, 9 and 10 promoting the
respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) with
retrospective effect are bad and so quashed those Government orders referred to
in the said annexures.
Against
this judgment and order made by the High Court, the instant appeals on special
leave were filed.
The
sole question which falls for decision in these appeals is whether the inter-se
seniority between the petitioners-respondent Nos. 1 to 5 who are direct
recruits and the Overseers belonging to the Bihar Subordinate Engineering
Service (Irrigation Department) who had been promoted retrospectively in their
25% quota for the year 1958 as revised by the Government orders mentioned in annexures
8, 9 and 10 to the writ petition, is arbitrary, illegal and inoperative as
those orders purport to affect prejudicial the seniority of the
petitioners-respondent Nos. 1 to 5 in the service of Bihar Engineering Service,
Class II. It is not disputed that in 1958 under Rule 2 of the Public Works
Department Code, the Government of Bihar took a decision to the effect that 25%
of the posts in the Bihar Engineering Service, Class II shall be filled up by
promotion, subject to availability of suitable hands. It also appears from the
counter-affidavit filed on behalf of the Government that in 1958, the the total
number of posts to be filled up by promotion from the Overseers in the Bihar
Subordinate Engineering Service 416 (Irrigation Department) to the post of
Assistant Engineer, in Bihar Engineering Service, Class II was 60 out of which
only 33 posts were filled up by promotion, leaving 27 more posts of Assistant
Engineers to be filled up by promotion from the Overseers in the Bihar
Subordinate Engineering Service (Irrigation Department). It is also clear from
the averments made in the said counter-affidavit that the
petitioners-respondent Nos. 1 to 5 were appointed in Bihar Engineering Service,
Class II on the recommendation of the Bihar Public Service Commission in the
year 1961 and the respondent Nos. 6 to 13 who had been working in the Bihar
Subordinate Engineering Service (Irrigation Department) as Overseers and having
independent charge of the sub-division were promoted to the post of Assistant
Engineer, Class II by notification dated 18.7.64/27.8.64. The respondent Nos.
14 to 23 were also promoted by notification dated 21.7.1969.
On the
basis of these appointments and promotions in the post of Assistant Engineer in
the Bihar Engineering Service, Class II, a seniority list was prepared and
published in february, 1969 tentatively wherein the petitioners- respondent
Nos. 1 to 5 were shown as senior to respondent Nos. 6 to 23. However, the
Government by its order dated 21st July, 1962 changed the date of promotion of respondent
Nos. 6 to 13 from 21.7.1962 to 27.21961 (Annexure 8 to the writ petition)
thereby making the petitioners-respondent Nos. 1 to 5 junior to respondent Nos.
6 to 13. On January 20, 1976, the Government passed another order re-fixing the
seniority of respondent Nos. 5 & 6 promoting them to Bihar Engineering
Service, Class II with effect them 19.12.1958 (Annexure 9 to the writ
petition). Again an order contained in Annexure 10 to the writ petition was
passed by which the date of promotion of respondent Nos. 14 to 23 was pushed
back to February 27, 1961, thus making them senior to the
petitioners-respondent Nos. 1 to 5. The petitioners- respondent Nos. 1 to 5
challenged these three Government orders mainly on the ground that these orders
giving promotion to the respondent Nos. 6 to 23 from a date earlier to their
date of promotion to the post of Assistant Engineer in Bihar Engineering
Service, Class II purport to affect prejudicially the rights of the
petitioners-respondent Nos. 1 to 5 in as much as they were appointed to the
post of Assistant Engineer in the Bihar Engineering Service, Class II earlier
to the promotion to the said post of the respondent Nos. 6 to 23. It has also
been submitted in this connection that he seniority has to be reckoned amongst
the officials working as Assistant Engineers in the Bihar Engineering Service,
Class II from the date of their appointment on promotion to the said Service.
The petitioners-respondent Nos. 1 to 5 being appointed earlier directly in the
quota of direct recruits than the promoted respondents who were promoted later
cannot be given 417 seniority in service to the petitioners-respondent Nos. 1
to 5 and it was contended that the impugned orders are wholly illegal and
unwarranted and so the High Court has rightly quashed the said orders. It has
been further urged in this connection that the State can promote its employees
with retrospective effect provided such retrospective promotion does not affect
the right and seniority already earned by others. The petitioners-respondent
Nos. 1 to 5 who were senior to the petitioners-respondents Nos. 6 to 23 were
made junior to them by the said Government orders as contained in Annexure 8, 9
and 10 to the writ petition. It has, therefore, been contended that the
promotion to the respondent Nos. 6 to 23 was illegal and arbitrary as the same
had prejudicially affected the petitioners-respondent Nos. 1 to 5 in regard to
their seniority.
The
High Court while rendering its judgment relied on the decision in the case of
A.K. Subraman and Ors. v. Union of India and Ors., [1975] 1 SCC 319 specially
on the observation made therein as under:
"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 promotions. Their "birth
marks" in their earlier service will be of no relevance once they are
regularly officiating in the grade of Executive Engineer within their
quota." The High Court held that no person can be promoted with
retrospective effect from a date when he was not born in the cadre so as to
adversely affect others.
It is
the admitted position that the respondent Nos. 6 to 23 were working as
Overseers in the Bihar Subordinate Engineering Service and were promoted to the
post of Assistant Engineer in Bihar Engineering Service, Class II much after
the petitioners-respondents Nos. 1 to 5 were directly recruited and appointed
on the basis of the recommendation of the Bihar Service Commission, to the post
of Assistant Engineers in 1961 and as such they have been working in the grade
of Assistant Engineers much before the respondent Nos. 6 to 23. Undoubtedly, on
the basis of the order of the Governor in 1958, the posts of Assistant
Engineers are to be filled up from two sources i.e. by direct recruitment as
well as by promotion from Overseers working in the Bihar Subordinate
Engineering Service and the ratio of the vacan- 418 cies to be filled up has
been fixed as 75% from the direct recruits and 25% from the promotees. It has
been urged on behalf of the respondent Nos. 6 to 23 that in view of the quota
rule the respondent Nos. 6 to 23 who were promoted in the quota set out for promotees
in respect of the vacancies of 1958 shall be taken to be promoted in 1958
notwithstanding that they have been actually promoted long after 1958 and after
the direct recruits i.e. respondent Nos. 1 to 5 were recruited directly to the
post of Assistant Engineers. In other words even though the respondent Nos. 6
to 23 have been promoted after the date of recruitment of respondent Nos. 1 to
5 to the post of Assistant Engineer, still then the promote respondent Nos. 6
to 23 should be deemed to be senior to the direct recruit respondent Nos. 1 to
5 as they were promoted in the vacancies for 1958 quota set up for promotees.
In support of this submission the decision in V.B. Badami etc. v. State of Mysore
and Ors., [1976] 1 SCR 815 as well as Gonal Bihimappa v. State of Kanataka,
[1987] Supp. SCC 207 were cited at the bar. In both these cases the promotees
occupied the quota of direct recruits as direct recruits were not available to
fill up the quota meant for them. It was held that direct recruits who were
appointed within their quota subsequently were entitled to the vacancies within
their quota which had not been filled up and they would become senior to the promotees
The promotees would be pushed down to later years when their appointment could
be regularised as a result of absorption in their lawful quota of those years.
The promotees cannot claim any right to hold promotional posts unless the
vacancies fall within their quota. These cases have no application in the
instant case in as much as the direct recruits i.e. respondent Nos. 1 to 5 were
recruited in their quota i.e. the quota meant for them. This being so, the
decision in these two cases has no application to the instant case. Moreover,
there is nothing to show that the respondent Nos. 6 to 23 who were promoted in
1962 and thereafter i.e. subsequent to the direct recruits i.e. respondent Nos.
1 to 5 could be deemed to be recruited in 1958 quota as there was nothing to
show that these vacancies were carried forward.
The
Government's orders as contained in annexures 8, 9 and 10 which purport to give
promotion to the respondent Nos. 6 to 23 retrospectively are arbitrary, illegal
and inoperative in as much as these seriously affect the respondent Nos. 1 to
5. The respondent Nos. 6 to 23 were not in the cadre of Assistant Engineers
even in officiating capacity at the time when the respondent Nos. 1 to 5 were
directly recruited to the post of Assistant Engineer. As such, the said promotee
respondent Nos. 6 to 23 could not be under any circumstances, given seniority
over the directly recruited respondent Nos. 1 to 5. The 419 High Court has
rightly quoted the observation made by this Court in the case of A.K. Subraman
& Ors. (supra) as mentioned in the preceding paragraphs.
It is
pertinent to mention in this connection, the observation of this Court in the
case of D.K. Mitra and Ors. v. Union of India and Ors., [1985] Supp. SCC 243.
In this case the petitioners were confirmed as Assistant Medical Officers in
1962 and 1963 and they were placed in the higher scale of Assistant Divisional
Medical Officers to the Indian Railways with effect from January 1, 1973.
Thereafter
they were appointed as officiating Divisional Medical Officers in 1972, 1973
and 1974 and they had been continuing there uninterrupted. Respondent Nos. 4 to
64 were given substantive appointments as Divisional Medical Officers later on
but they were confirmed earlier than the petitioners because of the zone-wise
confirmation given by the Railway Administration. It was held that the
petitioners should be considered at par for the purpose of fixing seniority,
with those appointed to permanent posts in a substantive capacity. For the
purpose of determining seniority among promotees, the petitioners should be
treated as having been appointed to permanent vacancies from the respective
dates of their original appointment and the "entire period of officiating
service performed by them should be taken into account as if that service was
of the same character as that performed by the substantive holders of permanent
posts." In the instant case, the promotee respondent Nos. 6 to 23 were not
born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class
II at the time when the respondent Nos. 1 to 5 were directly recruited to the
post of Assistant Engineer and as such they cannot be given seniority in the
service of Assistant Engineers over the respondent Nos. 1 to 5. It is well
settled that no person can be promoted with retrospective effect from a date
when he was not born in the cadre so as to adversely affect others. It is well
settled by several decisions of this Court that amongst members of the same
grade seniority is reckoned from the date of their initial entry into the
service. In other words, seniority inter-se amongst the Assistant Engineers in
Bihar Engineering Service, Class II will be considered from the date of the
length of service rendered as Assistant Engineers. This being the position in
law the respondent Nos. 6 to 23 can not be made senior to the respondent Nos. 1
to 5 by the impugned Government orders as they entered into the said Service by
promotion after the respondent Nos. 1 to 5 were directly recruited in the quota
of 420 direct recruits. The judgment of the High Court quashing the impugned
Government orders made in annexures, 8, 9 and 10 is unexceptionable.
In the
premises aforesaid, we confirm the judgment and order rendered by the High
Court. The appeals are, therefore, dismissed. In the facts and circumstances of
the case, there will be no order as to costs.
R.P.
Appeals dismissed.
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