M .B. Hiregoudar
Vs. State of Karnataka & Ors [1991] INSC 277 (29 October 1991)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Punchhi, M.M.
CITATION:
1992 AIR 410 1991 SCR Supl. (1) 599 1992 SCC Supl. (2) 491 JT 1991 (4) 329 1991
SCALE (2)951
ACT:
Karnataka
Civil Services (Classification, Control & Appeal) Rules, 1957: Rules 5 and
7- Schedule II- Column 2.
Junior
Engineers---Assistant Engineers--Inter--seniori- ty--Selection of Junior
Engineer by State Public Service Commission in the absence of Recruitment
Rules--Appointment by Director Recruitment Rules framed subsequently--Period
from the date of appointment to framing of rules reckoned for the purposes of
seniority--Appointment of Junior Engi- neers by Director held valid.
Karnataka
State Government's Memorandum dated 5th July, 1976--Guidelines for regularisation of
irregular appoint- ments--Applicability of.
HEAD NOTE:
The
appellant, a Rigman in the Department of Mines and Geology, State of Karnataka, was initially appointed as a local
candidate on the newly created post of Junior Engineer (Mechanical). Later he
was regularly selected by the State Public Service Commission and appointed on
the said post on 4.5.1970 by the Director and was confirmed on the said post on
29.9.1972. On 16.12.1974, he, alongwith respondents No. 3 to 7, who were
drillers in the Department was promoted as Assistant Drilling Engineer and was
shown senior to them.
However,
in the revised provisional seniority list as well as in the final seniority
list, he was shown junior to respondents No. 3 to 7 in the cadre of Assistant
Drilling Engineer.
The
appellant filed an application before the State Administrative Tribunal
challenging the seniority lists which was rejected holding (i) the appellant's
appointment as Junior Engineer was irregular because it was not support- ed by
Recruitment Rules and the Director was not the ap- pointing authority; (ii)
since the appellant had not ac- quired three years experience as regular
incumbent he was not qualified to be promoted as Assistant Drilling Engineer;,
his regular employment could only be related from the date of framing of the
Recruitment Rules. Accordingly, the Tribunal held that appellant's service from
4th May, 1970 to 23rd August, 1973 could not be taken into considera- tion for reckoning his
seniority and hence he was junior to Respondents No3 to 7.
599
600 The appellant filed an appeal in this Court challeng- ing the Tribunal's
order contending that (i) in view of his recruitment as a regular employe on
selection by the Service Commission his employment was regular in nature; (ii)
the post to which he was appointed was regularly created post and was higher
than that of respondents even during the period there existed recruitment
rules; in any case after his confirmation it was not open to the Tribunal to
hold his appointment irregular;, and (iii) in view of the guidelines issued by
the State Government, under which irregular ap- pointments were regularised,
even if it is assumed his initial appointment was irregular it has to be
treated regular throughout.
Allowing
the appeal and setting aside the order of the Tribunal this Court:
HELD
:1. Rule 7(2) of the Karnataka Civil Services (Classification, Control & Appeal
) Rules, 1957 read with column 2 of Schedule 11 thereto clearly shows that the
Director is the appointing authority for Junior Engineers.
The
appellant was found qualified and was duly selected by the Public Service
Commission and appointed as Junior Engi- neer in 1970. He worked on the post
uninterruptedly till he was promoted to the next higher post of Assistant
Drilling Engineer alongwith the respondents No. 3 to 7. The Tribunal was,
therefore, not right in holding that the appointment made was irregular and
that the Director was not the ap- pointing authority for Junior Engineers.
Accordingly his experience in the post of Junior Engineer from 1970 till his
promotion to the next higher post could not be ignored. [605-F, 604-G, 607-H,
608-A]
2.
Since the posts existed on the establishment and selection for appointment was
made by the State Public Service Commission and the Director was competent to
make the appointment, it cannot be said that the absence of recruitment rules
made the appointment illegal or irregular.
Moreover,
the irregular appointments were regularised by the Government Memorandum dated 5th July, 1976. [606 B-C]
3. The
appellant's seniority which had stabilised over a period of time and on the
basis whereof he was granted promotions by the Government could not be
disturbed by doubting the regularity of the initial appointment after so many
years. It was not as if he had gained experience as an ad hoc employee in a
stop-gap arrangement that his experi- ence as a Junior Engineer could be
overlooked. Therefore, his 601 seniority in the promotion post could not be
upset on the ground that he did not possess the requisite experience. [607 B-C]
Direct Recruit Class H Engineering Officers' Associa- tion v. State of Maharashtra
& Ors. [1990] 2 SCC 715, fol- lowed.
4. The
appellant's seniority over respondents No. 3 to 7 shall be restored and he
shall be shown to be senior to them. [608-B]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No.4375 OF 1991.
From
the Judgment and Order dated 3.9.1990 of the Karna- taka Administrative
Tribunal, Bangalore in Application No. 2564 of 1989.
M.K.
Ramamurthy, S. Ravindra, K.V. Mohan and S.R. Bhat for the Appellant.
Raju Ramachandran,
M. Veerappa and Kh. Nobin Singh (N.P.) for the Respondents.
The
Judgment of the Court was delivered AHMADI, J. Special leave granted.
The
controversy which we are required to resolve in this appeal by special leave is
regarding the appellant's senior- ity vis-a-vis respondents Nos.3 to 7. The
factual background which has given rise to this controversy, briefly stated, is
as under:
In the
year 1966 posts of Junior Engineer (Mechanical) were created in the Department
of Mines and Geology (Ground Water Surveys and Drilling Unit) of the State of Karnataka.
The
appellant who was then working as a Rigman in the Drill- ing Unit of the
Department was appointed Junior Engineer (Mechanical) in the scale of Rs. 200 -
375 on one of the said posts by an order dated 14th August, 1967 issued by the Director of the department. Subsequently, he
was regularly recruited through the State Public Service Commission in the said
post w.e.f. 4th May,
1970. However, even
though the Director had requested the State Government to frame Re- cruitment
Rules for the newly created post immediately after its creation, the
Recruitment Rules were not finalised till the issuance of a Notification dated 26th June, 1973. Before the appellant was regularly
recruited through the State Public Service Commission in the year 1970 the
Director had apprised the Government of the action which he proposed to 602
take to fill up the post. The appointment order was issued after the Public
Service Commission had advertised the post and had selected persons for
appointment to the said posts.
The
appellant was initially appointed on probation for one year and on his
satisfactorily completing the probation period he was continued in service and
was later confirmed in the said post by an order dated 13th June, 1974 w.e.f.
29th September, 1972.
Respondents
Nos. 3 to 7 entered service as Drillers in 1964-65. The appellant and the
respondents Nos. 3 to 7 were promoted as Assistant Drilling Engineers by the
Director's order dated 16th
December, 1974. The
Office Order No.676/74-75 shows that the appellant and one another were working
as Junior Engineers at the relevant time whereas respondents Nos. 3 to 7 were
working as Drillers before their promotions as Assistant Drilling Engineers.
The State Government did not approve of the Director's action in promoting the
appellant since he was a local candidate and directed that he be reverted.
However, no such reversion took place. The State Government also did not take
any further action. The appellant was shown senior to respond- ents Nos. 3 to 7
in the said cadre of Assistant Drilling Engineers. The appellant was
subsequently promoted by the State Government to the next higher post of
Drilling Engi- neer in 1980 and further as Chief Drilling Engineer in 1984
which post he was holding at the date when his seniority came to be disturbed.
The appellant was throughout shown senior to respondents Nos. 3 to 7 till the
revised provi- sional seniority list in regard to the cadre of Assistant
Drilling Engineers was published on 31st December, 1987.
Since
objections were invited the appellant objected to his being shown junior to
respondents Nos.3 to 7 but to no avail. Even in the final seniority list dated
4th May, 1989 he was shown junior to respondents Nos. 3 to 7. Respondents Nos.3
to 7 were shown in both the provisional and final seniority list at Serial
Nos.1 to 5 whereas the appellant was shown at Serial No.6. Thus, for the first
time, since his regular appointment in the year 1970, he was shown junior to
respondents Nos. 3 to 7 under the provisional seniority list issued in 1987 and
the final seniority sen- iority list issued in 1989. The appellant, therefore, chal-
lenged the provisional seniority list as well as the final seniority list by an
Application No. 2564 of 1989 preferred to the Karnataka Administrative
Tribunal. The Tribunal by its order dated 3rd September, 1990 rejected his
application holding that his initial entry into service as a Junior Engineer
was itself irregular and since he did not have the requisite experience of
three years as a regular incumbent he was not qualified to be promoted to the
next higher post of Assistant Drilling Engineer because his regular employ- ment
could only be related from the date of framing of the Recruitment Rules for the
adre which came to be notified on 23rd August, 1973. In this view of 603 the
matter, the Tribunal held that the service of the appel- lant from 4th May, 1970 to 23rd August, 1973 could not be taken into consideration for the purpose of
determining his inter-se seniority vis-a-vis respondents Nos. 3 to 7. The
appellant feeling aggrieved by the dismissal of his applica- tion, has
approached this Court under Article 136 of the Constitution.
The
appellant contends that the order of the Tribunal suffers from a number of
fallacies, namely, firstly, the Tribunal has failed to realise that the
appellant was re- cruited as a regular employee on selection by the State Public
Service Commission pursuant to an advertisement issued in this behalf and,
therefore, the appellant's em- ployment was regular in nature and not that of a
mere local candidate; secondly, the post to which he was appointed was a
regularly created post and was a higher than that of respondents Nos. 3 to 7
even during the period there existed no recruitment rules and in any case after
his confirmation w.e.f. 29th September, 1972 it was not open to the Tribunal to
hold that his appointment was irregular and thirdly, the Tribunal had erred in
overlooking the guideline issued by the state Government on 5th July, 1976
which specifically provided that 'all appointments made by the Government or
under specific authority of Government either by direct recruitment or by
promotion or on or after 1st November, 1956 but prior to the commencement of
the Rules regarding recruitment to such cadres may be treated as regular'. The
appellant contends that in pursuance of this guideline issued by the State
Government even if it is assumed that his initial appointment was irregular it
had to be treated as regular throughout. The appellant, therefore, contends
that the Tribunal's order suffers from certain patent in- firmities and
deserves to be set aside. It appears that before the Tribunal respondents
Nos.1, 2, 4, 6 and 7 did not file any counter challenging the appellant's claim
to sen- iority but respondents Nos. 3 and 5 contested the appel- lant's claim
while the State Government avoided entering into the arena by filing a counter
but instead presented the relevant files to the Tribunal. So far as respondents
Nos. 3 and 5 are concerned, they supported the action taken by the state
Government in preparing both the impugued provisional as well as the final
seniority lists. They contended that since they were regular employees and had
entered service before the appellant and were promoted to the post of As- sistant
Drilling Engineers along with the appellant they were clearly senior to'the
appellant and the State Govern- ment was, therefore, justified in showing them
at Serial Nos.1 to 5 and the appellant at Serial No. 6 in the seniori- ty list.
They, therefore, contend that this 604 appeal is without substance and needs to
be dismissed.
We
have heard counsel for the rival contestants. Counsel of the State Government
submitted that they had prepared the seniority list for reasons already stated
but they would not like to take sides and would abide by the decision of this
court.
In
order to appreciate the controversy, it is necessary to refer to the Karnataka
Civil Services (Classification, Control and Appeal) Rules, 1957. According to
Rule 5, the Civil Services of the State of Karnataka are classified into Class I, Class II, Class II and Class IV posts.
Class I and Class II are gazetted Posts whereas Class III and Class IV consist
of non-gazetted Posts. So far as Class III posts are concerned the initial
appointments have to be made by the authorities mentioned in Column 2 of
Schedule II appended to the Rules. In regard to the posts of Junior Engineers
the lind Schedule makes the Director the Appointing Authority.
There
can, therefore, be no doubt that the initial appoint- ment of the appellant was
by an authority competent to appoint. It is indeed true that at the time when
the appel- lant was selected by the State Public Service Commission and
appointed as Junior Engineer w.e.f. 4th May, 1970 there were no specific Recruitment
Rules in existence for the post in question. As stated earlier, the posts were
created for the first time in 1966 and since then the Director had been in
correspondence with the State Government for framing of the Recruitment Rules
for the said posts. Since the Recruitment rules were not framed for one reason
or the other, in 1969 the Director wrote a letter to the State Public Service
Commission to advertise the vacancies and select candidates for appointment.
Simultaneously, he wrote a letter informing the State Government of the action
taken by him in request- ing the State Public Service Commission to advertise
the posts and select candidates for appointment. Pursuant to the requisition
sent by him the Commission selected candidates and forwarded the list to the
Director who was the Appoint- ing Authority under the Karnataka Civil Service (Classifica-
tion, Control and Appeal) Rules, 1957. The Director who was competent to make
the appointment by virtue of Rule 7 issued a letter of appointment dated 24th
April, 1970 whereapon the appellant took charge w.e.f. 4th May, 1970. It,
therefore, becomes apparent that the posts were regularly created sometime in
1966 and the appellant was duly selected by the State Public Service Commission
and appointed to the post in question in 1970. The appellant being an
engineering gradu- ate was qualified for appointment to post in question.
The
state Government's approach while sliding down the appellant in seniority vis-a-vis
the respondents Nos. 3 to 7 may be briefly noticed.
605
After the recruitment rules for Junior Engineers (Mechani- cal) were framed and
brought into effect w.e.f. 23rd August, 1973, it was felt that the two posts of
Junior Engineers were filled by direct recruitment contrary to the said rules
which provided a ratio of 50% by promotion from the cadre of Drillers and 50%
by direct recruitment. Since both the posts were filled by direct recruitment,
it was felt that this ratio was violated. The date of the appellant's seniority
was, therefore, reckoned from 23rd August, 1973 and since the appellant had not
acquired experience of three years he was held ineligible for promotion to the
next higher post of Assistant Drilling Engineer. His entry into the promo- tional
post was, therefore, pushed down to 23rd August, 1976 and accordingly
respondents Nos. 3 to 7 were placed above him in the seniority list. The Tribunal
concurred with this approach. The Tribunal held that the initial appointment of
the appellant as Junior Engineer (Mechanical) by the Direc- tor was not
supported by any rules and the Director not being the appointing authority for
the said posts in 1970, the appellant's appointment was not regular. Secondly,
the Tribunal concurred with the Government that the appellant's entry into the
cadre of Assistant Drilling Engineer must be assumed to be w.e.f. 23rd August, 1976 and hence respondents nos. 3 to 7
were clearly senior to him. In short the Tribu- nal approved of the
Government's approach in With respect we find it difficult to approve of the
said approach. As pointed out earlier, the posts were sanc- tioned in 1966.
Initially the appellant was appointed as a local candidate but later the
Director requested the State Public Service Commission to advertise the said
two posts and select candidates for appointment to the said posts.
Pursuant
to the advertisement so issued the appellant ap- plied, was found qualified and
was selected for appointment.
The
Director, therefore, made the appointment as he was the appointing authority
for Class III posts under the Karnataka Civil Services (Classification, Control
& Appeal) Rules, 1957, vide Rule 7(2) read with Column 2 of Schedule II
thereto. That rule clearly shows that the Director is the appointing authority
for Junior Engineers, a Class III post.
The
Tribunal was, therefore, not right in holding that the appointment made was
irregular as it was not by the appoint- ing authority. The Tribunal was wrong
in holding that the Director was not the appointing authority for Junior Engi- neers.
Strictly speaking, that was not the approach of the Government. The Government
held the appointment irregular as in its opinion it had exceeded the quota of
50% for direct recruits. This view is based on the premise that the serv- ices
must be regularised applying the 1973 Rules retrospec- tively. Here there are
two fallacies, firstly the appellant being senior of the two direct recruits
appointed as Junior Engineers, he would fill the slot for the one post which
606 went to direct recruits on the 50% quota and secondly it was not
permissible to question the appointment made in 1970 in 1987 when in the
intervening period none had challenged the appellant's appointment. The
objection which the Government had raised on his promotion to the next higher
post was that he was a local candidate and not a regular appointee, an
objection which was not pursued presumably on realising that he was selected by
the State Public Service Commission before appointment. Not only that the
Government acquiesced in his appointment by promoting him to the next higher
posts in 1980 and 1984. Since the posts existed on the establish- ment and
selection for appointment was made by the State Public Service Commission and
the Director was competent to make the appointment, it cannot be said that the
absence of recruitment rules makes the appointment illegal or irregular when it
is found that the appellant, a degree holder, was eligible for appointment to
the post. This is so also be- cause irregular appointments were regularised by
the Govern- ment Memorandum dated 5th July, 1976, the relevant part whereof
reads as under:
"3(a).
All appointments made by Government or under specific authority of Government
either by direct recruitment or by promotion on or after 1st November, 1956,
but prior to the commencement of rules regulating recruitment to such cadres
may be treated as regular".
This
was clarified by the subsequent letter dated 17th September, 1977 as under:
"Para
3(a) states that all the appointments made by Govern- ment or under specific
authority of Government either by direct recruitment or by promotion on or
after 1.11.1956 and prior to the commencement of the Cadre and Recruitment
Rules of the concerned cadre may be treated as regular, that is to say, the
action taken by Government on other Appointing authorities in resorting either
of the modes of recruitment is regular. This para does not say that the
appointment of local candidates as a stop-gap arrangement is regular".
The
Tribunal refused to place reliance on the above on the erroneous ground that
the Director was not the appoint- ing authority and the appellant was a local
candidate. Once both these are found to be erroneous there is no reason to
brush aside the said guidelines. It may also be appreciated that the services
of local candidates in Class III cadre were regularised by Office Order
No.177/71-72 dated 31s1 August, 1971 and had the 607 appellant not have been
appointed as a regular candidate w.e.f. 4th May, 1970 his service would also
have been regu- larised as a local candidate.
From
what we have discussed above it is obvious that the entire approach of the
State Government and the Tribunal was erroneous. Besides, the appellant was
shown senior to re- spondents Nos. 3 to 7 right from 1970 to 1987 when his
seniority came to be disturbed. During the said period of 17 years all attempts
to disturb his seniority had 'failed. No one successfully challenged it in
Court. The appellant's seniority which had stabilised over a period of time and
on the basis whereof he was granted promotions by the Govern- ment could not be
disturbed by doubting the. regularity of the initial appointment after so many
years. It was not as if he had gained experience as an ad hoc employee in a
stop-gap arrangement that his experience as a Junior Engi- neer could be
overlooked. We are, therefore, of the opinion that his seniority in the
promotion post could not be upset on the ground that he did not possess the
requisite experi- ence till 23rd August, 1976.
In
Direct Recruit Class H Engineering Officer's Associa- tion v. State of Maharashtra
& Ors, [1990] 2 SCC 715, this Court held in paragraph 13 as under:
"The
principle for deciding inter se seniority has to conform to the principles of
equality spelt out by Articles 14 and 16. If an appointment is made by way of
stop-gap arrangement, without considering the claims of all the eligible
available persons and without following the rules of appointment, the
experience on such appointment cannot be equated with the experience of a
regular appointee, because of the qualitative difference in the appointment. To
equate the two would be to treat two unequals as equal which would violate the
equality clause. But if the appointment is made after considering the claims of
all eligible candidates and the appointee continues in the post uninterruptedly
till the regularisation of his service in accordance with the rules made for
regular substantive appointments, there is no reason to exclude the officiating
service for purpose of seniority. Same will be the position if the initial
appoint- ment itself is made in accordance with the rules applicable to
substantive appointments as in the present case. To hold otherwise will be
discriminatory and arbitrary".
In the
present case also the appellant's appointment was made in 1970 after all
eligible candidates were interviewed by the State Public Service Commission. As
pointed out earlier, the posts were borne on the establishment and the Director
was the appointing authority who made the appoint- ment pursuant to the
selection made by the State Public Service Commission. The appellant worked on
that post unit- erruptedly till he was 608 promoted to the next higher post
along with respondents Nos. 3 to 7. In these circumstances, his experience in
the post of Junior Engineer (Mechanical) from 1970 till his promotion to the
next higher post could not be ignored. We are, there- fore, of the opinion that
the ratio laid down by the Consti- tution Bench in the aforequoted paragraph
applies with all force in the present case also.
In the
result, we allow this appeal and set aside the order of the Tribunal. We hold
that the appellant's seniori- ty over respondents Nos. 3 to 7 as was obtaining
before 31st December,
1987 when the
provisional seniority list was published shall be restored and he shall be
shown to be senior to respondents Nos. 3 to 7 by correcting the impugned final
seniority list. The appeal is allowed accordingly with no order as to costs.
T.N.A.
Appeal allowed.
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