Satpal
Antil Vs. Union of India & Anr [1995] INSC 256
(5 May 1995)
Ray,
G.N. (J) Ray, G.N. (J) Sawant, P.B. G.N.Ray.J.
CITATION:
1995 AIR 1858 1995 SCC (4) 419 1995 SCALE (3)554
ACT:
HEAD NOTE:
THE
5TH DAY OF MAY, 1995 Present:
Hon'ble
Mr. Justice P.B. Sawant Hon'ble Mr. Justice G.N. Ray Mr. Govind Mukhoty, Sr.
Adv. Mr.B.S.Jain, Mrs. V.D Khanna, Advs., with him for the Appellant in C.A. No.
5383/95 Mr. Randhir Jain and Ms. Binu Tamta, Advs. for the appellant in C.A. No.
5390/95 Mr. N.N.Goswami, Sr. Adv. Mr. Hemant Sharma and Ms. Anil Katiyar, Advs.
with him for the Respondents.
The
following Judgment of the Court was delivered:
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 5383 OF 1995 (Arising out of S.L.P. No.6350/93) Satpal Antil
..appellant versus Union of India and Anr. ..respondents
WITH CIVIL
APPEAL NO. 5390 OF 1995 (Arising out of S.L.P.No.14234/94) Jitendra kumar Gupta
..appellant versus Union of India & Others ..respondents
Leave
granted.
Heard
learned counsel for the parties. Both the appeals arise out of a common
judgment dated January
11,1993 passed by the
Central Administrative Tribunal, Jaipur Bench in Union of India and others).
Both these appeals involving same cuestion of law and similar facts have been
heard together and are disposed of by this common judgment.
The
appellant, Satoal Antil, was initially appointed as Junior Engineer(Civil) in
the Telecommunication Department Civil Division on January 10, 1987. For promotion to the post of Assistant Engineer (Civil), a
Notification was issued inviting the persons who are already in service as
Junior Engineer (Civil) in the Telecommunication Department, Civil Division to
appear in the qualifying examination scheduled to be held on 16/17.3.1987. Both
the appellants Satpal Antil and Jitendra Kumar Gupta appeared in the said
examination and were declared successful. It appears that previously an
application was filed before the Tribunal by the appellants inter alia
contending that even though qualified persons like the appellants were
available, the Department was making ad noc promotions to the post of Assistant
Engineer without holding the DPC by the Department for regular promotion. It
appears that vide its Order dated November 4, 1988 in O.A.No. 359 of 1987 the Central
Administrative Tribunal directed the respondents to convene the DPC for the
purpose of filling up the vacancies in the cadre of Assistant Engineer(Civil)
out of the promotion quota within a period of four months from the date of the
decision and co give the benefits to the eligible candidates by way of
promotion in accordance with the recommendations of DPC. After the said
judgment of the Tribunal the Department of Telecommunications issued a letter
dated November 21, 1988 duly signed so as to enable the
Department to recast the all India
eligibility of Junior Engineers.
Pursuant
to such letter, the Superintendent Engineer (Civil) sent the seniority list of
Junior Engineers (Civil) of his circle vide letter dated January 5, 1989. The names of the appellants Satpal
Antil and Jitendra Kumar Gupta had been shown respectively at Serial Nos.20 and
27 in the Seniority List. On September 26, 1989, DPC considered the case of the eligible candidates. The appellants,
however, contended that the appellants having passed qualifying examination in
March, 1987, should be treated as senior to the persons who had passed the
qualifying examination at a later date. The appellants also contended that
promotion to the post of Assistant Engineer should be given in accordance with
the para 206 of the P & T Manual Vol. IV. The appellants contended that the
eligibility list on all India basis of the persons who were qualified to be
promoted to the post of Engineers should be prepared first keeping in view the
provisions of para 206 of P & T Manual and the judgments passed by the
Calcutta and Madras Benches of Central Administrative Tribunal should be given
effect to in this regard. The appellants also contended that they should be
given promotion to the post of Assistant Engineer (Civil) with effect from the
date on which the appellants had completed 8 years of qualifying service on the
post of Junior Engineer with all consequential benefits. The respondents,
however, contended before the Tribunal, Jaipur Bench, that the respondents had
implemented the direction of the Jaipur Bench passed in O.A.No.359 of 1987 and
held DPC.
It was
also pointed out by the respondents that the Calcutta Bench of the Central
Administrative Tribunal in O.A.No.599 of 1986 had observed vide its order dated
February 6, 1987 that the applicants who had lost two years in which
examination should have been held, should be given another chance to appear in
the examination to be held within a period of six months after the publication
of the result of the March, 1987 examination, if any of such applicant had
failed in the examination in March, 1987. The Calcutta Bench further directed
that even though the candidate who failed in two examinations should be allowed
to appear in the qualifying examination for the third time but in that case,
the seniority of the applicants who would pass in the third chance, would not
be protected and their regularisation to the post of Assistant Engineer would
be from the date of passing the examination.
The
applicants before the Calcutta Bench had been officiating as Assistant
Engineers and they had been asked to appear in the departmental examination for
regularisation of their service and the question of inter se seniority was not
involved in the proceeding before the Calcutta Bench of Central Administrative
Tribunal. The respondents also contended that provisions of para 206 of P &
T Manual Vol. IV are applicable to the cadre of Telegraph, Engineering and wrieless
Service Class I and the said provisions are not applicable to the applicants
who do not belong to such service. It was also contended by the respondents
that even otherwise, under the said para 206. the candidates passing the
qualifying examination in a year irrespective of chances in a year would be
senior to those passing in subsequent years. The respondents contended that the
appellants were not entitled to claim seniority with reference to the date of
passing the examination and accordingly not entitled to claim seniority over
the candidates who had also passed the examination in the same year though in
the second and third chances. The Tribunal, Jaipur Bench in disoosing of the
said O.A.No.152 of 1989, O.A.No. 98 of 1989 inter alia came to the finding that
from the plain reading of para 206 of P & T Manual Vol. IV it was quite
clear that the said Rule was applicable to the cadre of Telegraph Engineering
and wireless Service only. The Tribunal pointed out that the heading in para
206 'Deputy Assistant Engineers wireless' points out the applicability of the
said para to the wireless service. The Tribunal also noted that the learned
counsel for the appellants also conceded before the Tribunal that the said para
206 was applicable for the cadre of Telegraph Engineering and Wireless Service.
The Tribunal further noted that even under para 206, the officials who passed
the examination held in 1956 would come en-block senior to those who passed in
1957. The said para 206, therefore, only provided that the persons who
qualified in the examination held in the earlier year would become senior to
those who passed in the subsequent year. The Tribunal also noted that the
decision of the Allahabad High Court in P.N.Lal's case was not produced. The
Tribunal further indicated that so far as the judgment of the Calcutta Bench was
concerned, the question involved in the proceedings was that of regularisation
of Junior Engineer officiating as Assistant Engineer and the said decision did
not support the contention of the applicants.
The
appellants relied on the decision of the Madras Bench of Central Administrative
Tribunal passed in O.A.No.5 of 1987 passed on June 15, 1987 (S.Anantharaman and
others vs. Union of India and others) before the Jaipur Bench. The Tribunal
indicated that a bare perusal of the said judgment would show that the case for
consideration in that case was regularisation of Junior Engineers (Civil) who
had been working as Assistant Engineer (Civil) on ad hoc basis. The Madras
Bench decided that the applicants had to appear in the departmental qualifying
examination as a condition precedent for regularisation and the applicants were
entitled to get. In addition to the chance to appear in the examination in
March, 1987, two more consecutive chances to appear in the qualifying
examination.
In the
impugned judgment of the Jaipur Bench of the Central Administrative Tribunal,
it has been indicated that although Madras Bench had directed that if any of
the applicant had qualified in the first attempt in the departmental
examination held in 1987, such candidates would be regularised with effect from
the date of their completion of 8 years of service as Junior Engineer and this
facility would not be available to the applicants if they would pass the
examination to be held in future. The said decision of the Madras Bench had no
application in the facts and contentions raised in the petitions filed by the
appellants because the appellants had not been officiating on ad hoc basis as
Assistant Engineer (Civil). The Jaipur Bench also held in disposing of the said
applications of the appellants that there was no force in the contentions of
the appellants that they should be considered as senior to the Junior Engineers
who had also qualified in the subsequent qualifying examination although held
in the same year. The Tribunal further held that the respondents were justified
in preparing a combined list from out of those who had passed the qualifying
examination held in 1987 and preparation of such combined list had not violated
any rule. The Tribunal, Jaipur Bench, therefore, dismissed the said application
made by the appellants.
Mr. Mukhoty,
learned senior counsel appearing for the appellants, had contended that the
candidates who had become eligible for promotion earlier by passing the
qualifying examination at an earlier point of time, would rank en-block senior
and would be entitled to be promoted earlier than the candidates who became
eligible for promotion on subsequent occasions. Mr. Mukhoty has contended that para
206 of P & T Manual Vol.IV and the decision of the Madras Bench of the
Central Administrative Tribunal in O.A.No.5 of 1987 decided on June 15, 1987
clearly support the contentions of the appellants and the learned Tribunal, Jaipur
Bench had misappreciated the case of the appellants and has wrongly decided
their case. Mr.Mukhoty has contended that in writ Petition No.2739 of 1981
filed by Shri Parmanand Lal and Shri Brij Mohan, Junior Engineers Telephones of
P & T Department, the decision rendered by the Allahabad High Court also
supports the contention of the appellants. Such decision of the Allahabad High
Court was challenged before this Court and the said decision of the Allahabad
High Court has been upheld by the Supreme Court. It, therefore, cannot be
contended that para 206 P & T Manual would not be applicable and it is not
correct to contend that even though the subsequent examinations are held in the
same year, candidates passing the said examination at any time in the year will
not be affected by any other candidate passing the said examination earlier
though held in the same year.
Mr. Mukhoty
has contended that para 206 P & T Manual Vol.IV is applicable to the
appellants because the appellants are Junior Engineers (Civil) in the
Engineering Branch of P & T Department. P & T Manual Vol.IV is equally
applicable to officers of all the branches of P & T services. He has
submitted that if a reference is made to para 1 and Chapter 7 of the said
Manual. It will be quite evident that the manual was applicable to all branches
of post and Telegraph Services. Mr. Mukhoty has contended that although there
are three sections, para 206 under Chapter 7 is applicable to all the
engineering branches equally. Mr. Mukhoty has also contended that the
Recruitment Rules, 1976 for Civil Engineers (Gazetted officers) are silent as
to how the inter se seniority of qualified candidates could be prepared for the
purpose of promotions. In the case of Junior Engineers (Telephones) the
Recruitment Rules, 1976 and the modified rules 1981 are also silent as to how
the fixation of seniority for the purpose of promotions should be made after
passing the qualifying examination. In these circumstances, Shri P.N.Lal approched
the Allahabad High Court by filing Write Petition and the Allahabad High Court
held that question of seniority to be determined according to the provisions of
P & T Manual Vol.IV para 206 (2). Mr. Mukhoty has contended that the
Recruitment Rules of 1976 are also silent about the maintenance of inter se
seniority applicable to the cases of the appellants and the appellants are
entitled to clain inter se seniority according to the provisions of para 206 of
P & T Manual Vol.IV. Mr.MUkhoty has contended that in the Notification
inviting applications for appearing in the examination it was indicated that
after passing the examination the Junior Engineers who had completed 8 years of
service will be promoted on regular basis to the Grade of Assistant Engineer
(Civil). Although the appellants passed the said examination at earlier point
of time, the Junior Engineers who were unsuccessful in the first chance but had
passed such examination in third or fourth chance were preferred and given
promotion simply on the basis of their length of service. Mr. Mukhoty has
contended that such course is not only contrary to para 206 P & T Manual
but also contrary to equity and justice because person qualifying in the first
chance of the examination is deprived of the fruit of his success and candidate
failing in the first chance but qualifying in the second or third attempt is
given premium over the successful candidate in the very first chance. Mr.Mukhoty
has, therefore, contended that the decision of the Jaipur Bench has occasioned
a grave failure of justice and the same should be set aside and the appeal
should be allowed by directing the authorities to decide the question of
promotion of the Engineers on the basis of their becoming eligible at earlier
point of time by passing the examination and consequently being entitled to be
considered for promotion before the other candidates passing the said examination
at a later point of time.
Mr. Goswami,
learned senior counsel appearing for the respondents, has, however, contended
that para 206 P & T Manual Vol.IV is not at all applicable to the
appellants and the learned counsel appearing for the appellants before the
Tribunal, Jaipur Bench fairly conceded that the said provisions were not
applicable to the persons belonging to the P & T Engineering Division. Mr. Goswami
has contended that such concession was not given on a wrong understanding of
the position in law. He has contended that para 1 of the said Manual reads as
follows:- "the following general rules apply equally to officers of all
the different branches of the service unless it is otherwise expressly
specified as applicable to a particular class of Government servants. The
Special rules which are applicable to particular branches are laid down in
Chapter V to XVIII." Mr. Goswami has contended that admittedly the
appellants are governon by different set of rules known as post and Telegraph
Civil Engineering (Civil Gazetted Officers) Recruitment Rules 1976 which appear
at pages 33 to 41 of the Paper Book of the Appeal preferred by Shri Satpal Antil.
Para
205 of P & T Manual which governs Assistant Engineers of Telecommunication
Branch has no applicability so far as the appellants are concerned. Mr.Goswami
has contended that a strong reliance has been placed by the appellants on the
decision of the calcutta and Madras Benches of Central
Administrative Tribunal. Mr.Goswami has contended that the Madras Bench in its
decision referred to the decision of the Calcutta Bench and relied on the
decision of the Calcutta Bench to the following effect:-
"1)
the applicants will have to appear in the departmental qualifying examination
for regularisation in the post of Assistant Engineers.
ii) the
applicant are at liberty to appear in the examination to be held on March
16/17.3.87. If the applicants pass in the said examination proposed to be held
on 16/17.3.87, they will be deemed to have been regularised as Assistant
Engineers with effect from the respective dates of their completion of 8 years
of service as Junior Engineer.
iii) if
they fail in the examination to be held in March, 1987, the applicants therein
will be given one more chance to appear in the departmental qualifying
examination to be held within a period of six months, after the publication of
the results of the examination held in March, 1987.
iv) in
consideration of the fact that the applicants had already worked for 8 years as
Assistant Engineers they should be allowed cc appear in the departmental
qualifying examination for the third time also in case they fail in the two congecutive
chances. But in such a case, the seniority of the applicants who pass in the
third chance will not be protected and their regularisation in the post of
Assistant Engineers will be with effect from the date of passing their
examination.
v) none
of the applicants will be reverted before he is given three chances to appear
in the departmental qualifying examination, as aforesaid." Mr.Goswami has
contended that it is apparent from the findings of the Calcutta Bench that some
of the Assistant Engineers had continued on ad hoc basis for about 7 years.
In
such situation, the Calcutta Bench directed that they should be allowed three
more chances for appearing in the qualifying test. It was, however, held that
in case the Junior Engineers would pass the qualifying test in first two
chances their seniority would be preserved and they should be regularised from
the date of qualifying service as Junior Engineers. Mr.Goswami has contended
that since concession was given before the Calcutta Bench to allow some of the
Junior Engineers to pass in three chances, it was held that in case the
candidate would pass a test in the third chance then his seniority would not be
preserved. Such finding of the Calcutta Bench does not indicate that para 206
of P & T Manual Vol.IV was made applicable.Mr.Goswami has contendended that
even if it is assumed that oara 206 P & T Manual was made applicable such
decision cannot be held to be proper and the decision correctly rendered by the
Jaipur Bench since impugned in these appeals should not be interfered with. Mr.Goswami
has also contended that the Rules regarding promotion in the 1976 rules is as
under:- "Promotion: Junior Engineers (Civil) who have qualified in the
departmental examination and have rendered not less than 8 years of service in
the grade after appointment thereto on a regular basis." There is not
provision in the said rules regarding determination of inter as seniority.
Accordingly, the general rules of length of service in determining the
seniority must be made applicable. Mr.Goswami has contended that it is well
settled that on the face of specific rule governing a particular service, reliance
to any other rule should not be made. Admittedly, the rules governing the
appellants are 1976 rules and the provisions of dara 206 P & T Manual Vol.IV
which governs the Deputy Assistant Engineers Wireless do not apply to the cases
of the appellants.
Mr.Goswami
has also contended that the decision of the since relied on by the learned
counsel for the appellants is also not applicable in the facts and
circumstances of the present appeals. The service of the Parmanand Lal was
governed either by the said rules of 1976 or by service rules of 1981 which
will be quite evident from the decision of the Allahabad High Court. Mr.Goswami
has submitted that in 1992, the 1976 rules have been amended and as per the
amended recruitment rules, the condition of passing the departmental
examination to the post of Assistant Engineer for promotion has been deleted.
Hence, for promotion from the promotion quota of 50%, the only condition
prescribed now is that a Junior Engineer should complete 8 years of service in
the grade. He has, therefore, submitted that no interference is called for
against the decision of the Central Administrative Tribunal, Jaipur Bench and
the appeals should be dismissed.
After
considering the facts and circumstances of the case and the submissions made by
the learned counsel appearing for the parties, It appears to us that there is
no express provision in 1976 rules which controls the inter se seniority
between the candidates passing the departmental examination in the same year
for being eligible to be promoted to the post of Assistant Engineer (Civil). It
also appears to us that para 206 of P & T Manual, in terms are not
applicable to the cadre of the service to which the appellants belong. The
appellants are governed by different set of rules known as Post and Telegraph
Civil Engineering (Civil Gazetted Officers) Recruitment Rules. 1976 and para
206 of P & T Manual governs the service of the Assistant Engineers
Wireless. For promotion under the 1976 rules, the Junior Engineers (Civil) who
have qualified in the departmental examination and have not rendered not less
than 8 years of service in the grade will be eligible for promotion. Such rules
for promotion does not contain any provision for determining inter se seniority
for the purpose of giving promotion earlier or later with reference to date of
passing the qualifying examination. In our view, Mr.Goswami is justified in his
contention that in the absence of any specific rule indicating inter se
seniority to be observed with reference to the date of passing the qualifying
examination and promotion to be given on the basis of such inter se seniority,
general principle of length of service as a basis for promotion amongst
eligible candidates with qualifying service should be made applicable. Para 1
of P & T Manual Vol.IV indicates that the general rules will apply equally
to Officers of all the branches of service unless it is otherwise expressly
specified to a particular branch of service. The special rules which are
applicable to particular branches have been laid down in Chapter 5 to Chapter
8. Since the appellants are governed by the special rules known as post and
Telegraph Civil Engineer (Civil Gazetted Officers) Recruitment Rules, 1976, para
206 of P & T Manual is not applicable to the appellants. That apart, para
206 of P & T Manual provides that persons who qualifiy in the examination
in an earlier year would become senior to those who pass in subsequent year.
Para 206 does not provide for any seniority to be given to a candidate passing
in the same year but at different point of time. Hence, even under para 206 of
P & T Manual a candidate though he has passed the qualifying test in the
same year but at a later date availing of a further chance, cannot be by passed
for promotion by a candidate passing the same qualifying examination in the
same year but at an earlier point of time even though the former candidate is
otherwise senior in the cadre on the basis of length of service. We, therefore,
find no merit in these appeals and the appeals are, therefore, dismissed
without any order as to costs.
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