State of
Andhra Pradesh & Anr Vs. K.S. Muralidhar &
Ors [1992] INSC 25 (22
January 1992)
Reddy,
K. Jayachandra (J) Reddy, K. Jayachandra (J) Sharma, L.M. (J)
CITATION:
1992 AIR 922 1992 SCR (1) 295 1992 SCC (2) 241 JT 1992 (1) 360 1992 SCALE
(1)176
ACT:
Civil
Services:
A.P.
Engineering Subordinate Service Rules:
Seniority-Government
orders issued from time to time- Supervisors upgraded as Junior Engineers on
acquiring degree-Degree holders directly appointed as Junior Engineers on
temporary basis-regularisation of-Weightage given to both categories for
service rendered-Inter-se seniority-Fixation of-Directions issued.
HEAD NOTE:
The
A.P. Engineering Subordinate Service Rules were amended in 1972 by way of
Government order. It provided that supervisors who acquired B.E./A.M.I.E.
degree while in service would be entitled to count 50 % of the services
rendered as Supervisors prior to acquiring the said qualification subject to a
maximum of four years. However, this was subject to certain conditions, the Chief
among them was that they should be considered to have been placed below the
last of the Junior Engineer of the year, after giving such weightage. Order
dated 10.6.76 required that the Supervisors who acquire the degree
qualification while in service would be appointed, as Junior Engineers with
immediate effect. The above said order was amended on 8.11.76 giving benefit of
the weightage to only those who acquired the degree qualification prior to
28.2.72.
In
1977, by another order of the State Government, the post of Junior Engineer was
made Gazetted post.
In
separate petition before the Andhra Pradesh Administrative Tribunal, the
Supervisors upgraded as Junior Engineers including those who acquired the
degree qualification after 28.2.72, as well as the State of A.P. agitated the issue regarding inter-se seniority
between the upgraded Junior Engineers and the direct recruit Junior Engineers.
The Tribunal heard all the matters together and gave a finding that there was
no bar to the retrospective regularisation 296 of the directly recruited
Engineers from the dates of their initial appointments. The Tribunal also
upheld the action of the Government in giving the benefit of the notional date
of appointment to the upgraded Junior Engineers and the benefit of the date of regularisation
of their services from the dates of their notional appointments subject to
maintenance of order or ranking given by the Public Service Commission. The
Tribunal also ordered that the ranking given by the Public Service Commission
in respect of directly recruited Junior Engineers his to be maintained and each
of them would be entitled to count has seniority from the date on which his
service has been regularised or from the date of regularisation of the service
of the person immediately below in the order of ranking given by the Public
Service Commission, whichever was earlier.
In
respect of upgraded Junior Engineers who acquired degree qualification after
28.2.1972, the Tribunal gave a specific direction that their seniority has to
be fixed on the basis of specific notional date of appointment given to them by
interspersing their names among regular Junior Engineers as arranged in
chronological order of dates from which such regular Junior Engineers are
entitled to count their seniority.
Aggrieved
against the Tribunal's order, the State Government and the supervisors upgraded
as Junior Engineers, preferred the present appeals.
On
behalf of the State, it was contended that the direction of the tribunal
particularly interspersing was not workable, since the upgraded Junior
Engineers have put in long years of service and were discharging the same
duties as the directly recruited Junior Engineers and this factor should be
taken into account in fixing the notional date of appointment and inter-se
seniority.
On
behalf of the upgraded Junior Engineers, it was contended that in G.O. Ms
No.559 it is specifically laid down that Supervisors who have acquired graduate
qualification may be appointed as Junior Engineers after 28.2.75 and the weightage
of four years should be reckoned from the date of acquiring the degree
qualification i.e.28.2.72 or thereafter; and their seniority should not be
fixed from the date of the order of appointment.
On the
order hand, the direct recruit Junior Engineers contended that the upgraded
Junior Engineers can under no 297 circumstances be treated as seniors to the
directly recruited Junior Engineers for the appointment of Junior Engineers was
suspended for some time and in view of the exigencies the degree-holders were
appointed on temporary basis and they have served for a number of years; the
Government decided to make regular appointments and accordingly a Special
Qualifying Test was held in which they qualified and they were given the
appointments; and a seniority list strictly on the basis of performance in the
test and on merit was prepared by the Public Service Commission and a
retrospective effect was given. It was further contended that so far as the
upgraded Junior Engineers are concerned all the relevant G.O.Ms. make it clear
that the crucial date has to be reckoned on the basis of the actual date of
appointment and not on the date of acquiring the degree.
Disposing
of the matters, this court,
HELD:
1.1.
The weightage of four years in respect of upgraded Junior Engineers as provided
in G.O.Ms. No.559 has to be reckoned from the date of appointment and not the
date of their acquiring the degree qualification. On the basis of that notional
date, their inter se seniority has to be fixed. [311 B-C]
1.2.G.O.
Ms. No. 559 makes it abundantly clear that the appointments of the upgraded
Junior Engineers who acquired the graduate qualification while in service,
would be prospective only and that they would be entitled to the weightage of
four years of service rendered before the appointment. It does not anywhere
indicate that the weightage should be from the date of acquiring the degree
qualification. It is only after acquiring such degree qualification that a
Supervisor is appointed as Junior Engineer and having regard to the service
rendered by him, the Government, as a policy, decided to give weightage of four
years for the purpose of considering the eligibility for promotion as Assistant
Engineer. [308 C-D]
2.1.The
regularisation of the degree-holders Junior Engineers who passed the Special
Qualifying Test by giving restrospective effect cannot be held to be illegal,
and their seniority among themselves shall be subject to the order of ranking
given by the Public Service Commission on the basis of the Special Qualifying
Test. [311 D]
2.2.
The degree-holders were appointed temporarily because of a ban and later the
Government again, as a policy decision, decided 298 to make regular
appointments by direct recruitment but enabled the degree-holders who were in
temporary service to appear in a Special Qualifying Test. Here again, as a
matter of policy, the Government decided to give some weightage to the service
rendered by them before the appointment by selection. Thus, the Governement, in
fixing the seniority for the purpose of future promotion of the appointees-both
the upgraded Junior Engineers as well as those selected by the Public Service
Commission in the Special Qualifying Test has taken into account the past
service rendered by them. [308 E-F]
3. In
the case of upgraded Junior Engineers weightage of four years service was given
and in the other case two years, weightage was given. As a matter of policy,
the Government gave weightage to both the categories discharging the same
duties. The upgraded Junior Engineers who having got the benefit of four years`
service, therefore, cannot say that similar weightage should not be given to
the direct recruits who, prior to the selection, were working on temporary
basis. [308 F; 309 B, F] Devi Prasad and Ors. v. Government of Andhra Pradesh
and Ors., AIR 1980 SC 1185, relied on.
Smt.
M. Nirmala and Ors. v. State of Andhra Pradesh and Ors. etc., [1986] 3 SCC 647; Ashok Gulati and Ors. v. B.S.Jain
and Ors., [1986] Sup. SCC 597; Direct Recruit Class II Engineering Officers
Association v. State of Maharashtra and Ors., [1990] 2 SCC 715; Masood Akhtar
Khan and Ors. v. State of Madhya Pradesh
and Ors., [1990] 4 SCC 24, referred to.
4. The
Tribunal has rightly pointed out that under Rule 23-A of the A.P State and
Subordinate Service Rules, 1962 if a person having been appointed temporarily
under Rule 10 to a post borne on the cadre is subsequently appointed in the
service in accordance with the rules, he shall commence his probation from such
subsequent date or the earlier date as the appointing authority may determine.
The Tribunal was also right in holding that there was no bar to the
retrospective regularisation of the service of the direct recruit Junior
Engineers. [308 G-H; 309 A]
5. In
the light of this Judgment, the State Government shall prepare a common
seniority list of the degree holder Junior Engineers and the upgraded Junior
Engineers and that list shall be the 299 basis for all the subsequent
promotions. Any promotion already given shall be reviewed and readjusted in
accordance with the said seniority list. [311 D-E]
6.
Since this litigation has been pending for about two decades, it is high time a
finality has to be reached by resolving the controversies and in this context
the approval of the Public Service Commission in respect of these appointments
need not be sought, if the Government has not already obtained the approval of
the Public Service Commission. [311 A-B]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 752 of 1984 etc.etc.
From
the Judgment and Order dated 1.8.983 of Andhra Pradesh Administrative Tribunal,
Hyderabad in Representation Petition No. 799
of 1977.
K. Madhava
Reddy, T.V.S.N. Chari, Ms. Manjula Gupta, B. Kanta Rao, D. Prakash Reddy, B. Rageshwar
Rao, Vimal Dave, K. Ram Kumar, Y. Prabhakara Rao, K.R. Nagaraja, Krishan Kumar
and G. Prabhakara for the appearing parties.
The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. The questions
involved in these matters being common they are being disposed of by a common
judgment. All these matters arise out of a common order of the A.P.
Administrative Tribunal passed in Representation Petitions Nos. 799/77, 548/79
and 140/81.
S.L.P.
(Civil) No. 5218/85 is filed against a separate order of the Tribunal in R.P.
No. 1473/80. The dispute is regarding the inter-se seniority between the
Supervisors who are upgraded as Junior Engineers and the degree-holders who are
directly appointed as Junior Engineers. All of them belong to the different
branches in the A.P. Engineering Subordinate Service. First we shall state the
relevant facts in each of the appeals and then formulate the points that arise
for consideration. For convenience sake we shall refer to the parties as
arrayed before the Tribunal.
CIVIL
APPEAL NOS. 752 AND 754/84 :
These
two appeals are filed against the order in R.P. No. 799/77. The first one is
filed by the State of A.P. and the other one by upgraded
Supervisors-Junior Engineers. The petitioners before the Tribunal are all
Junior Engineers in 300 Irrigation and Power Department. They were initially
appointed as temporary Junior Engineers in the year 1969/70.
Later
they appeared in a special qualifying test (`SQT' for short) held by the Public
Service Commission and on the basis of the result of the test their services
were regularised in the post of Junior Engineers with retrospective effect from
the date of the temporary appointment subject to the maintenance of the order
of ranking given by the Public Service Commission in the test.
The respondent
Nos. 3 onwards in these R.Ps. are also Junior Engineers in the same department
but they were appointed as Supervisors and on acquiring the degree they have
been redesignated as Junior Engineers. Several G.O.Ms were issued by the
Government and the important one is G.O.Ms. No. 559 (I & P) Department
dated 18.7.77. The post of Junior Engineers was made Gazetted post. The case of
the petitioners is that the respondents acquired degree qualification after
28.2.72 therefor they were not entitled to be appointed as regular Gazetted Junior
Engineers and at any rate they cannot be treated as seniors on the basis of
reckoning their seniority from the date of acquiring degree qualification and
that the seniority of these graduate Supervisors should be reckoned from the
date of their actual appointment as Junior Engineers and not from the date of
acquiring degree qualification. The respondent Supervisors, on the other hand
contended that they are entitled to upgradation and weightage of service from
the date of their appointment as Supervisors.
CIVIL
APPEAL NO. 753/84 :
This
appeal is filed against the order in R.P. No. 548/79. The petitioners in this
R.P. are all Supervisors who graduated after 28.2.72. Their contention was that
they were appointed much before the respondents namely the directly recruited
Junior Engineers and the services of the respondents Junior Engineers should
not be regularised in such a way so as to effect the seniority of the
petitioners and that the seniority of the petitioners should be reckoned from
the notional date of appointment.
CIVIL
APPEAL NO. 755/84 :
This
appeal is filed against the order in R.P. No. 140/81. The sole petitioners
before the Tribunal, who is a respondent here, questioned G.O.Ms. No. 466
Transport, Roads and Building and sought a declaration that he should be
declared as senior to respondent Nos. 3 and 5 and promote him to the post of
Assistant Engineer. The petitioner before the Tribunal was directly recruited
Junior Engineer.
He
also passed the SQT held in the year 1975. The respondents before the Tribunal
were upgraded Supervisors who acquired the graduate qualification. G.O. Ms. No.
466 was issued 301 directing that the respondent before the Tribunal namely the
upgraded Supervisors should be treated seniors to all the directly recruited Junior
Engineers whose services were regularised on the basis of the SQT. The Tribunal
held that the findings in the other R.Ps. Nos. 799/77 and 548/79 apply to the
facts of this case also and accordingly directed to prepare an inter-se
seniority list in the Transport, Roads and Buildings Department on the lines
indicated therein.
R.P.
was disposed of with those observations. The upgraded Supervisors-Junior
Engineers who were the respondents before the Tribunal have filed this appeal.
These
matters were heard together by the Tribunal.
After
considering the various G.O.Ms. and the arguments the Tribunal held that there
was no bar to the retrospective regularisation of the services of the directly
recruited Junior Engineers from the dates of their initial appointments. It
also held that the action of the Government in giving the benefit of the
notional date of appointment to the upgraded Junior Engineers and the benefit
of the date of regularisation of their services from the dates of their
notional appointments subject to maintenance of order of ranking given by the
Public Service Commission is justified. The Tribunal further held that the
order of ranking given by the Public Service Commission in respect of directly
recruited Junior Engineers has to be maintained and each of them will have to
be treated as being entitled to count his seniority from the date on which his
service has been regularised or from the date of the regularisation of the
service of the person immediately below him in the order of ranking given by
the Public Service Commission, whichever is earlier. In paragraph 23 of the
Order the Tribunal specifically held thus:
"23.
We are of the opinion that once the dates from which the directly-recruited
Junior Engineers can claim seniority are thus fixed on the basis of this
formula, it should not be difficult to fix their inter-se seniority vis-a-vis
the upgraded Junior Engineers on the basis of the notional dates of appointment
given to the latter. In this connection we would like to point out that,
whereas in the case of an upgraded Junior Engineer who acquired degree
qualification before 28.2.1972, seniority will have to be fixed by putting him
below all the regular Junior Engineers including directly-recruited Junior
Engineers who are entitled to claim seniority from any date during the year in
which such upgraded Junior Engineer has been given the notional date of
appointment, this practice cannot be followed in case of an upgraded junior
Engineer who has acquired degree qualification after 28.2.1972, in view of the
fact that the provision for fixing his seniority below other Junior Engineers
302 of the particular year (as was made in G.O. Ms. No. 893 dated 15.6.72) was
not made in the amended Rule as issued under G.O.Ms. No. 54 dt. 15.2.1983 His
seniority will, therefore have to be fixed on the basis of the specific
notional date of appointment given to him by interspersing his name among the
regular Junior Engineers as arranged in chronological order of dates from which
such regular Junior Engineers (including directly recruited Junior Engineers)
are entitled to count their seniority." It is this part of the Order that
has given rise to all these appeals before us.
The
State of A.P. being aggrieved by this Order filed
C.A. No. 752/84 and both petitioners and respondents namely the Junior
Engineers directly recruited and upgraded Supervisors as Junior Engineers are
the main respondents before us. Civil Appeal Nos. 753-54 are filed by the
upgraded Supervisors-Junior Engineers. In these two matters the Junior
Engineers directly recruited are the respondents.
Thus
in all these matters the Junior Engineers directly recruited are the
respondents.
It is
contended on behalf of State of A.P.
that the direction given by the Tribunal particularly interspersing is not
workable. Learned counsel for the State, however, pointed out that the upgraded
Supervisors have put in long years of service and they have been discharging
the same duties as directly recruited Junior Engineers and that this fact also
has to be borne in mind in fixing the notional date of appointment of the two
categories officers and in fixing their inter-se seniority.
Shri B.Kanta
Rao, learned counsel appearing for all the upgraded Supervisors-Junior
Engineers contended that in G.O. Ms. No. 559 it is specifically laid down that
Supervisor who have acquired graduate qualification may be appointed as Junior
Engineers after 28.2.72 and the weightage of four years should be reckoned from
the date of acquiring the degree qualification i.e. 28.2.72 or thereafter. He
also contended that the seniority of the upgraded Supervisor- Junior Engineers
should not be fixed from the date of the Order of appointment dated 8.8.77. On
behalf of the directly recruited Junior Engineers Shri K.Madhava Reddy, learned
counsel submitted that the upgraded Supervisors can under no circumstances be
treated as seniors to the directly recruited Junior Engineers. According to him
appointment of Junior Engineers was suspended for some time and in view of the
exigencies the degree-holders were appointed on temporary basis and they have
served for a number of years.
Later
the Government decided to make regular appointments and accordingly a Special
303 Qualification Test was held and such of those temporary Junior Engineers
who were degree-holders got qualified and were given the appointments and a
seniority list strictly on the basis of performance in the test and on merit
was prepared by the Public Service Commission and a retrospective effect was
given. His further submission was that so far as the upgraded Supervisors are
concerned all the relevant G.O.Ms. make it clear that the crucial date has to
be reckoned on the basis of the actual date of appointment and not on the date
of acquiring the degrees.
For
appreciating these rival contentions it becomes necessary to refer to some of
the G.O.Ms. particularly with a view to arrive at the ("crucial
date") in respect of each of these categories for the purpose of fixation
of the seniority. In respect of upgraded Supervisors who acquired a degree,
certain G.O.Ms. were issued from time to time. In the year 1972 G.O.Ms. No. 893
dated 15.6.72 was issued amending the special rules for the A.P. Engineering
Subordinate Service. The same provided that Supervisors who while in service
acquire B.E./A.M.I.E. degree qualification, shall be entitled to count 50% of
the service rendered as Supervisors prior to the acquisition of such
qualification subject to a maximum limit of four years. This was subject to
certain conditions. One of the conditions was that they should be considered to
have been placed below the last of the Junior Engineer of the year after giving
such weightage.
In the
year 1976 another G.O.Ms No. 451 (I & P) dated 10.6.76 ordered that the
Supervisors who acquire the graduate qualification while in service should be
appointed as Junior Engineers with immediate effect. On 8.11.76 G.O.Ms. No.815
(I & P) was issued. Clause 4 of the Conditions stipulated in G.O.Ms. No.893
was amended and the benefit of the weightage was directed to be given effect
only to those who acquired the aforesaid degree qualification prior to 28.2.72.
Then came the important G.O.Ms. No. 559 (I & P) dated 18.7.77. Relying on
the contents of the above G.O.Ms. the upgraded Supervisors claimed that the weightage
of four years should be reckoned from the date of acquiring the qualification
and not from the date of actual appointment.
The
directly recruited Junior Engineers also based their claim on G.O. Ms. Ms. Nos.
451 and 559 and they further contended that the upgraded Supervisors should be
treated as regularly appointed only with effect from the date of their
appointment.
It may
not be necessary for the purpose of this case to extract the entire contents of
the G.O. Ms. that preceded G.O. Ms. Nos. 451 and 559. It would suffice if we
just give the gist of those respective G.O.Ms. Under G.O.Ms. No. 787 dated
9.6.71 the Government declared that posts of 304 Junior Engineers would be
filled in by graduate Engineers which will be made a separate category and they
will be made gazetted. Therefore G.O.Ms. No.240 dated 28.2.72 was issued. Under
the said G.O.Ms. 1870 posts of Supervisors in Public Works Department were
declared to constitute a category of Junior Engineers and similarly in the
Roads and Buildings Department 620 posts were declared to constitute as a
category of Junior Engineer as distinct from Supervisors and both these
categories were made gazetted with effect from that date. The G.O.Ms. also
provided for temporary appointments in the case of qualified Junior Engineers
being not available for filling up all such gazetted posts, and all these posts
of Junior Engineers in both the Departments were declared to be within the
purview of the A.P. Public Service Commission and the method of recruitment to
the post of Junior Engineer should be by direct recruitment. Then came the G.O.
Ms. No. 893 dated 15.6.72 amending the special rules for the A.P. Engineering
Subordinate Service under which the Supervisors who acquired the qualification
were declared to be entitled to count 50% of their service subject to a maximum
limit of four years for the purpose of promotion to the post of Assistant
Engineer from Junior Engineer. G.O. Ms. No. 782 dated 3.5.74 was issued
permitting the Junior Engineers recruited during emergency on temporary basis
to apply for SQT held by the Public Service Commission. Accordingly the Rules
were amended as per G.O. Ms. No. 786 dated 7.8.74 and the adhoc rules were
framed enabling the computation of period of two years with or without break in
the service rendered by such degree-holders Junior Engineers who appeared in
the SQT held by the Public Service Commission and were declared to be selected
and thus their services were regularised retrospectively giving them the
benefit of the service of two years rendered prior to the actual selection. In
conformity with the same Rule 33A was also relaxed for the purpose of fixing
their inter-se seniority. The next important G.O.Ms. with which we are
concerned is G.O.Ms. No.
451
dated 10.6.76. It reads as under:
"GOVERNMENT
OF ANDHRA PRADESH
ABSTRACT
Establishment-Irrigation
and Power Department- Appointment of Supervisors who have acquired Graduate
Qualification as Junior Engineers-Orders- Issued.
Irrigation
and Power (Ser.II) Department G.O. MS. No. Dated: 10-6-1976 ORDER: Consequent
on the declaration of the posts of Junior 305 Engineers as Gazetted with effect
from 28.2.1972, the upgradation of Supervisors who acquired Graduate
Qualification while in service, as Junior Engineers, ceased. Since then representations
have been made to Government by several Associations that the benefit of upgradation
should be extended also to Supervisors who acquired the Graduate qualification
on or after 28.2.1972.
"2.
On a reconsideration of the matter, the Governement are of the view that some
consideration should be shown to the Supervisors who have acquired the Graduate
qualification while in service. Accordingly the Government have decided that
the Supervisors in P.W. (Irrigation) Department who have acquired Graduate
qualification while in service should be appointed temporarily as Junior
Engineers (Prospectively) with immediate effect.
The
Chief Engineer (General) is requested to take action accordingly, Orders
regarding other consequential matters will issue separately.
(BY
ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.) M. GOPALAKRISHNAN, SECRETARY TO
GOVERNMENT " Under this G.O. Ms. it is proposed to extend the benefit of upgradation
to Supervisors who acquired the graduate qualification on or after 28.2.72 but
the second para makes it clear that they should be appointed temporarily as
Junior Engineers and that too prospectively only.
The
next and the important G.O.Ms. is No.559 dated 18.7.77 which reads as under:
"GOVERNMENT
OF ANDHRA PRADESH
ABSTRACT
ESTABLISHMENT-Irrigation
& Power Department Appointment by transfer of Supervisors who have acquired
Graduate qualification from 28.2.1972 onwards as Junior Engineers-Further
orders-Issued.
306
IRRIGATION & POWER (SERVICE-III) DEPARTMENT G.O. Ms. No.559 Dated 18th
July, 1977 Read the following:- G.O. Ms. No.451, Irrigation & Power (Ser.III)
Department, dated 10.6.76.
ORDER:
It was
ordered in the G.O., cited that the Supervisors in the Public Works
(Irrigation) Department, should be appointed temporarily as Junior Engineers
(Prospectively) with immediate effect. It was also indicated therein that
orders regarding other consequential matters would issue separately.
2.
Accordingly, matters relating to weightage, seniority, etc., have been examined
by the Government and the following orders are issued:- (i) Supervisors who
acquire Graduate qualification may be appointed as Junior Engineers on or after
28.2.1972, subject to the availability of vacancies in the cadre of Junior
Engineers.
They
will not be entitled for appointment as Junior Engineers automatically from the
date of acquisition of degree qualification;
(ii) A
Supervisor, who is appointed as Junior Engineer, shall be entitled to count
1/3rd of the service rendered by him as Supervisor, before his appointment as
Junior Engineer, subject to a maximum of four years, for the purpose of
computing the service as Junior Engineer, which will render him eligible for
consideration for promotion as Assistant Engineer.
(iii)
The seniority of the Supervisors, who are appointed as Junior Engineers, shall
be fixed with reference to the notional date arrived at after giving weightage
of service;
(iv) A
Supervisor, who is appointed as Junior Engineer, shall put in a minimum service
of one year as Junior Engineer to become eligible for promotion as Assistant
Engineer;
(v) No
Supervisor shall ordinarily be eligible for appointment as Junior Engineer
unless he has put in a minimum service of three years as Supervisors. A
Supervisor with less than three years of service, who is appointed as Junior
Engineer for any special reason, shall not be entitled to any weightage for his
past service.
307
3.
Necessary amendment to the Special Rules for the Andhra Pradesh Engineering
Service will be issued separately. The Transport, Roads & Building/Panchayati
Raj/Housing, Municipal Administration & Urban Development Department will
issue amendments to the Special Rules with which they are concerned in
accordance with the above decisions in consultation with the Andhra Pradesh
Public Service Commission.
4. The
cadre strength of Junior Engineers was last fixed in G.O.Ms. No. 240, Public
Works (VI) Department, dated 28.2.1972. Since then a large number of posts of
Junior Engineers/Supervisors have been sanctioned by Government.
The
Chief Engineer (General) is requested to submit proposals for suitably
enhancing the strength of the two orders.
(BY
ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.) M. GOPALAKRISHNAN, SECRETARY TO
GOVERNMENT." G.O. Ms. No. 451 is referred to in this G.O.Ms. and in the
Preamble it is clearly noted that the appointments of the upgraded Supervisors
as Junior Engineers should be temporary and prospectively only. In Paragraph 2
(i) it is also made abundantly clear that they will not be entitled for
appointment as Junior Engineers automatically from the date of acquisition of
degree qualification. Coming to the weightage it is clarified in paragraph 2
(ii) to the effect that a Supervisor who is appointed as Junior Engineer shall
be entitled to count 1/3rd of the service rendered by him as Supervisor, before
his appointment as Junior Engineer, subject to a maximum of four years and the
same would be taken into account to render the appointee eligible for
consideration for promotion as Assistant Engineer.
Paragraph
2 (iii) is very important regarding the seniority and the same has to be fixed
with reference to the notional date arrived at after giving weightage of
service, Paragraph 2 (v) gives a clue that the weightage could be from the date
of appointment. The Government, however, issued proceedings dated 8.8.77 and
fixed the seniority of these upgraded Supervisors who acquired the degree
qualification from the date of acquiring the degree. We have already noted that
vide G.O. Ms. No. 893 the special rules were amended. After the G.O. Ms. No.
559 was issued, representations were made by the Association of Andhra Junior
Engineers as well as from the Diploma-holders Engineers Association. Having
considered these representations, the Government came out with another G.O. Ms.
No. 593 dated 29.7.77 and clarified that the rules only refer to the date of
appointment and does not refer to selection and that the seniority of an
individual or a class or category has to be fixed according to the date of his
first 308 appointment and not with reference to the date of selection and the
Chief Engineer (General) was requested to fix the seniority accordingly. The
Chief Engineer (General) Vide proceedings No. Rc. Gel. MI/58062/74-75 dated
8.8.77 fixed the seniority. But in doing so he has taken the date of passing
the examination by the upgraded Junior Engineers as the date of appointment. As
already noted this fixation of seniority was questioned before the Tribunal.
From
the above resume of all the G.O.Ms. it is clear that an interpretation of G.O.
Ms. No. 559 would be decisive in the these matters.
In our
view the G.O. Ms. No. 559 makes it abundantly clear that the appointments of
these upgraded Supervisors who acquired the graduate qualification while in
service, would be prospective only and that they would be entitled to the weightage
of four years of service rendered before the appointment. The G.O. Ms. does not
anywhere indicate that the weightage should be from the date of acquiring the
degree qualification. It must be borne in mind that it is only after acquiring
such degree qualification that a Supervisor is appointed as Junior Engineer and
having regard to the service rendered by him the Government as a policy decided
to give weightage of four years for the purpose of considering the eligibility
for promotion as Assistant Engineer. In this context it is pertinent to note
that the degree-holders were appointed temporarily because of a ban and later
the Government again as a policy decision decided to make regular appointments
by direct recruitment but enabled the degree-holders who are in temporary
service to appear in a SQT. Again as a matter of policy the Government decided
to give some weightage to the service rendered by them before the appointment
by selection. It can thus be seen that the Government in fixing the seniority
for the purpose of future promotion of the appointees both the upgraded as well
as those selected by the Public Service Commission in SQT has taken into
account the past service rendered by them. In the case of upgraded Junior
Engineers weightage of four years' service is given and in the other case two
years' weightage is given. In this context it is contended on behalf of the
upgraded Junior Engineers that the regularisation of the direct Junior
Engineers retrospectively that is with effect from two years prior to the date
of their appointments is unwarranted. In this context the Tribunal has rightly
pointed out that under Rule 23-A of the A.P. State and Subordinate Service
Rules, 1962 if a person having been appointed temporarily under Rule 10 to a
post borne on the cadre is subsequently appointed in the service in accordance
with the rules he shall commence his probation from such subsequent date or the
earlier date as the appointing authority may determine. We agree with the
Tribunal that there is no bar to the retrospective regularisa- 309 tion of the
service of the direct Junior Engineers.
However,
in the instant case, it was a special selection by SQT restricted to the
directly recruited Junior Engineers who had put in two years of service and the
objective was to regularise their services. As stated supra as a matter of
policy the Government gave weightage to both the categories.
In Devi
Prasad and others v. Government of Andhra Pradesh and others. AIR 1980 SC 1185,
G.O. Ms. No.893 referred to above was questioned on the ground of
unreasonableness in the matter of giving weightage to the upgraded supervisors.
This
Court held that in the light of their experience there is nothing unreasonable
in giving them limited benefit or weightage. It was further observed as under:
"Ultimately;
it is a matter of Government policy to decide what weightage should be given as
between two categories of Government servants rendering somewhat similar kind
of service. In the present case, there may be truth in the case of the
appellants that they are hit hard because of the new rule. Dr. Chitale tried to
convince us of the hardship that his clients sustain consequent on this rule
and weightage conferred thereby. But mere hardship without anything arbitrary
in the rule does not call for judicial intervention, especially when it flows
out of a policy which is not basically illegal. However, Government must be
interested in keeping its servants specially in strategic areas like
engineering contended and efficient. In so producing contentment, it may have
to evolve a flexible policy which will not strike a group as inflicting
hardship on them. A sense of justice must permeate both the groups."
However, the upgraded Junior Engineers who having got the benefit of four
years' service cannot be heard to say that similar weightage cannot be given to
the direct recruits who prior to the selection were working on temporary basis.
Shri Kanta
Rao, learned counsel relied on the decisions of this Court in Smt. M.Nirmala
and other v. State of Andhra Pradesh and others etc., [1986]3 SCC 647; Ashok Gulati
and others v. B.S. Jain and others., [1986] Supp. SCC597; Direct Recruit Class
II Engineering Officers' Association v. State of Maharashtra and others, [1990]
2SCC 715 and Masood Akhtar Khan and others v. State of Madhya Pradesh and
others, [1990] 4 SCC 24 and contended that both the categories were discharging
the same duties and there should not be any discrimination.
Learned
counsel also relied on some unreported judgments of the Andhra Pradesh High
Court in writ Petitions Nos. 1929, 1006 and 2387/ 310 73 and also Writ
Petitions Nos. 3897/72. We have perused all these judgments and we are of the
view that such a question did not arise in these cases. The question to be
considered is from which date the weightage of four years' service should be
given to the upgraded Junior Engineers namely the Supervisors. Is it the date
of acquiring the degree qualification or the date of their appointment? Having
given our earnest consideration and for the reasons stated above we hold that
the weightage can be given only from the date of their appointment.
The
Tribunal in the course of its order, however, observed that in accordance with
the existing rules the appointments of these Junior Engineers from the notional
date have to be cleared by the Public Service Commission and the appointments
cannot be held to be regular appointments as long as they are not approved by
the Public Service Commission. Having referred to the Rules, the Tribunal in
paragraph 18 observed thus:
"We
thus find that the appointment of the upgraded JEs as well as the direct JEs to
the Gazetted posts have not been made strictly in accordance with the Rules
and, hence, it is necessary for the Government to issue specific orders after
following the procedure laid down in the Rules, in regard to their appointment
to the Gazetted post of `Junior Engineers." Having so observed the
Tribunal suggested some working formula in the meanwhile. In evolving this
formula the Tribunal further held thus.
"Thus,
after having examined the points raised for and against the action taken by the
Government in giving the upgraded Junior Engineers the benefit of the notional
dates of appointment given to them and in giving the direct Junior Engineers
benefit of the dates of the regularisation of their services from the dates of
their initial appointment subject to the maintenance of the order ranking given
by the P.S.C., we feel that the Government action in this respect was quite
justified." Towards the end the Tribunal, however, observed that the
seniority of the upgraded Junior Engineers who acquired the degree
qualification before 28.2.72 will have to be fixed by putting them below all
the regular Junior Engineers. Likewise those who have acquired the degree
qualification after 28.2.72 their seniority have to be fixed on the basis of
notional date of appointment by "interspersing" among the regular
Junior Engineers. The learned counsel for the State of A.P. submitted that this exercise of
"interspersing" becomes impossible at this stage.
311
Having given our careful consideration particularly to the fact that this
litigation has been pending for the last so many years, about two decades. We
feel that it is high time a finality has to be reached by resolving the
controversies and in this context we are of the view that the approval of the
Public Service Commission in respect of these appointments need not be sought,
if the Government has not already obtained the approval of the Public Service
Commission. To sum up, our conclusions are as under:
(i)
The weightage of four years in respect of upgraded Junior Engineers as provided
in G.O. Ms.
No.
559 has to be reckoned from the date of appointment and not the date of their
acquiring the degree qualification;
(ii)
On the basis of that notional date, their inter-se seniority has to be fixed;
(iii)
The regularisation of the degree-holder Junior Engineers who passed the SQT by
giving retrospective effect cannot be held to be illegal, and their seniority
among themselves shall be subject to the order of ranking given by the Public
Service Commission on the basis of the SQT;
(iv)
The Government shall prepare a common seniority list of the degree-holders
Junior Engineers and the upgraded Junior Engineers on the above lines and that
list shall be the basis for all the subsequent promotions. Promotions, if any,
already given shall be reviewed and readjusted in accordance with the said
seniority list; and (v) The approval of the Public Service Commission in
respect of these appointments and their seniority thus fixed need not be sought
at this distance of time.
Accordingly
Civil Appeal Nos. 752-55/84 are disposed of as per the directions given above.
There will be no order as to costs.
S.L.P.(C)
No. 5218/85:
This
Special Leave Petition arises out of a separate order passed by the A.P.
Administrative Tribunal in R.P. No. 1473/80. The petitioners before the
Tribunal belong to A.P. Panchayati Raj Engineering Department in Zone No. 1.
They are all graduates in Civil Engineering and were temporarily appointed as
Junior Engineers originally in the Public Works Department in 1969. Their
services were terminated for want of vacancies. However, during the year 1973
they were again appointed in the A.P. Panchayati Raj Engineering Department.
They
also appeared in the Spe- 312 cial Qualifying Test and they were selected by
the Public Service Commission and they were appointed as regular Junior
Engineers. They commenced their probation. The respondents before the Tribunal
were appointed as Supervisors and after they acquired the degree qualification
they were designated as Junior Engineers. The grievance of the petitioners was
that the respondents could not have been put above the petitioners in the
matter of seniority and their seniority should have been reckoned from the date
of their acquiring the graduate qualification. G.O. Ms. No. 422 issued by the
Department declaring them as seniors to the petitioners, was specifically
questioned before the Tribunal. The Tribunal held that the impugned G.O.Ms. is
vitiated firstly on the ground that the principles of natural justice have not
been observed and secondly that the petitioners before the Tribunal who were
the direct recruits and who were selected by the Public Service Commission
after holding the SQT, are entitled to count their service in the ranking of
Junior Engineers from the date of their appointment subject to the order
regarding the maintenance of ranking given by the Public Service Commission.
The said order of Tribunal is questioned in this Special Leave Petition by the
upgraded Junior Engineers who were the respondents before the Tribunal. In this
petition also the grounds raised are the same as in Civil Appeal Nos.
752-55/84. The conclusion reached by us in the above matters also govern the
points in this petition. Accordingly this Special Leave Petition is disposed of
in terms of the directions given in Civil Appeal Nos. 752-55/84. There will be
no order as to costs.
W.P.
(C) No. 3566/85:
This
Writ Petition is filed under Article 32 of the Constitution of India. The
petitioners are all upgraded Junir Engineers of A.P. Panchayati Raj Engineering
Service.
They
have questioned G.O.Ms. No. 376/84 under which some promotions were made on the
basis of the inter-se seniority list of the direct recruits and upgraded Junior
Engineers.
The
conclusions reached by us in Civil Appeals Nos. 752- 55/84 also govern the
points raised in this Writ Petition.
Accordingly
the Writ Petition is disposed of in terms of the directions given in Civil
Appeals Nos. 752-55/84. There will be no order as to costs.
G.N.
Matters disposed of.
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