A.P. Manchanda
Vs. State of Haryana [1993] INSC 440 (14 October 1993)
ACT:
HEADNOTE:
ORDER
1.The appellant was appointed as Engineer Assistant on January 19, 1967 by the Executive Engineer of the
concerned Division. Subsequently, by an order dated February 17, 1968 he was appointed as Engineer Assistant by the Chief
Engineer which order was modified on November 28, 1969 to read that the period of his
appointment from January
19, 1967 to February 16, 1968 shall be treated on work-charge
basis and his appointment will be treated as from January 19, 1967.
On
this basis, he claimed seniority over respondents 4 and 5. This claim of his
was rejected by the High Court. Hence this appeal.
2.We
do not see any merit in this appeal. The two respondents over whom the
appellant claimed seniority were regularly appointed as Engineer Assistants
whereas, admittedly, the appellant claims that he was appointed by the
Superintending Engineer on the verbal orders of the Chief Engineer on January 19, 1967. The High Court has stated that
there is nothing on the record to show that any such verbal order was given by
the Chief Engineer. Be that as it may, the fact remains that his entry was not
in regular course and by the subsequent order of February 17, 1968 his entry could not have been regularised to the detriment
of the two respondents who were regular appointees. The High Court has,
therefore, rightly observed that no such retrospective appointment could have
been granted by the Chief Engineer affecting the rights of others and in
particular respondents 4 and 5, regular appointees who were already working as
such on the post of Engineer Assistants. The view taken by the High Court is
unassailable. Hence the appeal fails and is dismissed with no order as to
costs.
ORDER
1.The appellants were directly recruited as Assistant Engineers (Mechanical) in
the Public Health Engineering Department of the State of Bihar. The contesting respondents were
initially appointed as Engineering Assistants (Civil) and on the basis of the
8.33 per cent quota fixed for them for promotion to the next higher post of
Assistant Engineers, they were promoted as Assistant Engineers (Mechanical) on
different dates, but were given retrospective promotion w.e.f. August 22, 1970. Respondents 4 and 6 were 45
initially promoted on July
22, 1972 whereas
respondent 5 was promoted on June 26, 1976.
Respondents 4 and 6 were promoted retrospectively w.e.f. November 12, 1971 and April 15, 1972 respectively whereas Respondent 5 was promoted w.e.f. February 1, 1972. By a further order dated December 28, 1978 all the three respondents were
granted promotion retrospectively w.e.f. August 22, 1970. On the basis of this retrospective
promotion w.e.f. August
22, 1970, they were
shown as seniors to the appellants in the gradation list prepared by the State
Government. The appellants, therefore, challenged the gradation list
essentially on two grounds, namely, (1) that promotion could not have been
granted to respondents 4, 5 and 6 from a date prior to their having been borne on
the cadre and (2) the seniority had to be determined on the basis of the
relevant rules as in existence at the material date which was not done. The
direct recruits, therefore, challenged the gradation list but the High Court
did not accept the challenge based on the aforesaid two grounds and dismissed
the writ petitions. It is against the said order of dismissal that the present
appeal is preferred.
2.The
learned counsel for the appellants invited our attention to the decision of
this Court in State of Bihar v. Akhouri Sachindra Nath1. The
question in that case was more or less similar to the question arising in the
present appeal. In that case also the question was regarding the fixation of
inter se seniority between direct recruits and promotees. In that case also the
promotees were granted seniority from retrospective date. That was the bone of
contention between the parties. This Court held in the backdrop of those facts
that no person could be promoted with retrospective effect from a date when he
was not borne on the cadre so as to adversely affect others. It held that promotees
not borne on the cadre at the time when direct recruits came to be appointed
cannot be given seniority in service over direct recruits. The ratio of that
decision applies squarely in the present appeal also. In view of the same, the
learned counsel for the State also found it difficult to support the judgment
of the High Court.
3.In
the result we allow this appeal and set aside the impugned order of the High
Court and direct the State to refix the seniority in the light of the decision
of this Court referred to above. There will be no order as to costs.
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