Full Judgment Text
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PETITIONER:
S.L. CHOPRA AND ORS. ETC. ETC.
Vs.
RESPONDENT:
STATE OF HARYANA AND ORS. ETC. ETC.
DATE OF JUDGMENT05/04/1991
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
SINGH, K.N. (J)
CITATION:
1991 AIR 1126 1991 SCR (2) 221
1992 SCC Supl. (1) 391 JT 1991 (2) 203
1991 SCALE (1)612
ACT:
Haryana Service of Engineers, Class I, P.W.D. (Public
Health Branch) Rules, 1961: rules 2(12), 3(2), 5(2), 8(11),
11(4) and 12(3), (5), (6) and (7)-Direct recruits and
promotees-When become members of service-Inter se seniority-
Fixation of -Year of allotment-Whether alterable.
HEADNOTE:
The appellants in Civil Appeal No. 1643 of 1991, who
were promoted as Executive Engineers on officiating basis in
1971-72 in the Haryana Service of Engineers Class I, P.W.D.
(Public Health Branch) challenged before the High Court the
promotion, by grant of relaxation of probation, and
confirmation, as Executive Engineer, and subsequent
promotion as Superintending Engineer, of the respondent, who
was appointed as Assistant Executive Engineer, in the Class
I Junior Scale in 1977, by direct recruitment. The High
Court held that the appellants were not members of the
service till they were appointed substantively to the cadre
posts and, therefore, they had no locus standi to challenge
the promotions. Hence the appeal.
One of the appellants had also filed a Writ Petition
before this Court challenging the respondent’s promotion,
and the State Government’s power to grant relaxation and
fixation of seniority.
In the connected appeal the respondent, who was
appointed by direct recruitment as Assistant Executive
Engineer in the Class I Junior Scale in1965 filed a Writ
Petition before the High Court challenging the confirmation
of the appellants, who were promoted on officiating basis as
Executive Engineers in the Senior Scale in 1962-64 and were
confirmed in 1977-79. Quashing the confirmations of the
appellants, the High Court held that promotions and
confirmations of the appellants were in excess of their 50%
quota and directed the State Government to refix their
seniority afresh. Hence the appeal.
On behalf of the appellants, it was contended that the
moment the appellants were promoted, though officiating in
regular vacancies as Executive Engineers they should be
deemed to be members of the
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service from the date of their initial officiating
promotion, and their seniority determined retrospectively
with effect from their due dates, counting their continuous
length of service towards the seniority.
Disposing of Civil Appeal No. 1643 of 1991 and Writ
Petition No. 6311 of 1982 and dismissing Civil,l Appeal
No.2316 of 1986, this Court,
HELD: 1. Under Rule 2(12)(a) only a direct recruit
appointed to the cadre post, though on probation, is a
member of the service from the date of appointment by
operation of the main part of Rule 2(12) (a) read with Rule
2(1) to a cadre post within the meaning of Rule 2(3). The
inclusive definition in Rule 2(2)(a) is applicable only to a
‘direct appointee’ i.e., Asstt. Executive Engineer, under
Rule 2(7) and put on probation, officiating in a ex-cadre
post as contemplated in para 11 of Appendix ‘A’ but having
successfully completed his probation and awaits appointment
to a cadre post. The promotee Class II officers are not
direct recruits as per Rule 2(7) but are officiating as
Executive Engineers. Hence they would not become members of
the service, as declared by Rule 2(7), but become members of
the service only after they are appointed substantively to a
cadre post. [227H, 228A-B]
2.1 Sub-rule (2) of Rule 5 prescribed a quota for
promotees at 50% and 50% to the direct recruits and by
appointment by promotion to the cadre posts of Executive
Engineers and above. The proviso is a built-in relaxation
which empowers the State Government to promote Class II
officers as Executive Engineers in excess of their 50%
quota. The promotion of Class II officers in excess of 50%
quota would be illegal or irregular in the teeth of the
mandatory language of Rule 5(2). However, with a view to
have smooth functioning of the administration this power of
relaxation was given as a breathing facility. The moment a
direct recruit is available, the promotee shall give place
in him. [228C-D]
2.2 Appointment by promotion made an ex-cadre post or
to any cadre post in an officiating capacity from the list
prepared in accordance with procedure prescribed under Rule
8 would remain temporary till the promotee officer is
confirmed in a cadre post, on satisfactory completion of
probation, under Rule 11(4). [228F]
3.1 On a conjoint reading of all the relevant rules, a
promotee holding a cadre post on an officiating basis as an
Executive Engineer or above, within the quota, would be
eligible to be considered for appointment in a substantive
capacity to a cadre post. His seniority shall be
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determined with effect from the date of his initial
promotion to a cadre post, unless he is reverted or there is
break in service or from the date of continuous officiation
either in the ex-cadre or cadre post. [228G]
3.2 If a promotee Class II officer holds the cadre post
within the quota of direct recruit, his period of service
from the date of initial promotion till the date of
availability of a cadre post is rendered for. A direct
recruit, though promoted later steals a march over the
promotee and gets the right to consideration and if found
fit gets promotion within his 50% quota and thereby becomes
senior to the officiating promotee. [229E]
3.3 Rule 2(12) is neither arbitrary nor creates
invidious discrimination offending Articles 14 and 16,
Direct recruits get seniority from the date of appointment
as Asstt. Executive Engineer, it is unalterable. But
promotee’s seniority is variable by operation of Rules 8(11)
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JUDGMENT:
3.4 Since the respondent in Civil Appeal No.1643/91 is
a direct recruit, his seniority as Executive Engineer, shall
be with effect from the date of this initial appointment as
Asstt. Executive Engineer, as contemplated by Rules 12(3)
and (5). Similarly, seniority of the respondent in Civil
Appeal No.2316/86 would be determined with effect from
1.1.1966. Their seniority is unalterable and they are
eligible for promotion within 50% quota of cadre post as
Executive Engineer, superintending Engineer and Chief
Engineer respectively, counting the seniority with effect
from their respective years of allotment. The appellants
shall be considered for appointment to a substantive vacancy
against a cadre post within their 50% quota of the promotees
and their seniority would be counted next below the
immediate senior promotee of the same year of junior most
promotee of the preceding year of allotment either
officiating or confirmed, in accordance with sub-rules (6)
and (7) of Rule 12 and Rules 8(11) & 11(4). The year of
allotment is accordingly, alterable. [227B-D]
3.5 The State Government should determine the cadre
strength of the Service under the rules, consider the cases
of the appellants and the two contesting respondents for
promotion to the senior posts within their respective quota
of 50% and make appointment, if found eligible and fit for
promotion. [229H, 230A-B]
J.C. Yadav v. State of Haryana, [1990] 2 SCC 189 and
K.K. Khosla v. State of Haryana, [1990] 2 SCC 199, referred
to.
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&
CIVIL APPELLATE JURISDICTION; Civil Appeal No. 1643 of
1991.
From the Judgment and Order dated 2.2.1983 of the
Punjab & Haryana High Court In W.P. No. 2859 of 1982.
P.P. Rao, N.B. Shetye, Jitendra Sharma and U.S. Rana
for the Appellants.
Rajinder Sachhar, Mahabir Singh and C.M. Nayar (NP) for
the respondents.
The Judgment of the court was delivered by
K. RAMASWAMY, J. The special leave to appeal is
granted.
These appeals and the writ petition were heard
elaborately alongwith Civil Appeal No. 4094 of 1984 on
merits. Since same controversy, as involved in Civil Appeal
No.2316 of 1986, we are disposing of both the appeals and
writ petition by a common order.
The appellants are Class II engineers in the Haryana
Service of Engineers (Public Health Branch). They were
promoted to officiate as Executive Engineers under the
Punjab Service of Engineers. Class I, P.W.D. (Public Health
Branch) rules, 1961 made by the Government in exercise of
the powers sunder the proviso to Art. 309 of the
Constitution. After the formation of State of Harayana ,
the service was known as the Harayana Public Service of
Engineers, Class I, P.W.D. (Public Health Branch) with
effect from November 1, 1966. The rules are called for
short‘the rules’. The service under the rules consists of
Asstt. Executive Engineer, Executive Engineer,
Superintending Engineer and Chief Engineer. The State Govt.
exercised its power under Rule 22 and relaxed the
qualification of 5 years’ length of service and promoted the
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appellants and S.L. Chopra as Executive Engineers on
February 21, 1972, B.R. Batra on July 29, 1971 and O.P.
Juneja on February 16, 1972. The respondent B.D. Shardana
was recruited as Asstt. Executive Engineer by direct
recruitment to Class I Service of Junior scale and was
appointed with effect from December 7, 1977. The State
Govt. relaxed part of his probationary period and promoted
him also as Executive Engineer Mr. B.R. Batra filed a writ
petition under Art. 32 challenging the promotion of Sardana
as Executive Engineer and also the State Govt.’s power to
grant relaxation and fixing his seniority as Executive
Engineer. He further challenged the
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promotion of Sardana as Superintending Engineer by order
dated July 29, 1982 on the plea that it violated his
fundamental rights under Arts. 14 & 16. The appellants,
namely, Sardar Pratap Singh, K.C. Sehgal and Sardar Bhupindr
Singh in Civil Appeal No. 2316 of 1986 are Class II officers
promoted on officiating basis as Executive Engineers in
Senior scale with effect from 1962, 1964 and 1964
respectively and they were confirmed on that post with
effect from June 1, 1977, May 1, 1979 and November 1, 1979
respectively. F.L. Kansal, the respondent a direct recruit
was appointed on May 18, 1965 as Asstt. Executive Engineer
in the Class I, Junior scale. The High Court allowed the
writ petition of Kansal and quashed the confirmation of the
appellants.
This Court in J.C. Yadav v. State of Haryana, [1990] 2
SCC 189 and K.K. Khosla v. State of Haryana, [1990] 2 SCC
199 upheld the relaxations granted by the Government under
Rule 22 to the appellants and Sardana. The same contention
raised in the High Court thereby received quietus. The High
Court held that the appellants are not the members of the
service till they are appointed substantively to the cadre
posts under the rules. Therefore, they had no locus standi
to question the promotion of B.D. Sardana as Executive
Engineer and Superintending Engineer. However, the High
Court held that the promotions and confirmations of the
appellants (in C.A. No. 2316 of 1986) were in excess of
their 50% quota and on that basis the High Court quashed
them and directed the State Govt. to refix the seniority
afresh.
The only question that arises in the appeals and the
writ petition is whether what is the date from which the
appellants and B.D. Sardana and F.L. Kansal became members
of the service and what would be their seniority in the
senior posts of Executive Engineers. We have discussed the
rules at length in Civil Appeal No.4094 of 1984 which have
been disposed of today. The reasoning contained in that
judgment apply to the instant cases also.
Under Rule 5(1), recruitment to the service is made
from three sources; (a) direct recruitment; (b) transfer of
officers already in the service of the State or of the Union
and (c) by promotion from Class II service. Direct
recruitment as defined under Rule 2(7) means an appointment
by open competition but does not include ‘an appointment
made by promotion or transfer. Under Rule 2(1) appointment
to the service includes an appointment made according to the
terms and provisions of the rules to an officiating vacancy
or an ex-cadre post provided that an officer so appointed
shall not be deemed to have
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become a ‘member of the service’ as defined in Clause (12)
of Rule 2,Class II service as defined under Rule 2(5) means
Punjab Service of Engineers. Class II in Public Health
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Branch. Asstt. Executive Engineer as defined under Rule
2(2) means a member of the service in a junior scale of pay.
Rule 2(3) defines ‘cadre post’ which means a permanent post
in the serve. ‘Ex-cadre post’ as defined by Rule 2(10) means
a temporary post of the same rank as of a cadre post. Rule
2(12) is the main rule in controversy which needs
interpretation reads thus:
"member of the service", means an officer
appointed substantively to a cadre post, and
includes--
(a) in the case of a "direct appointment" an
officer "on probation", or such an officer who,
having successfully completed his prohibition,
awaits appointment to a cadre post;
(b) is not necessary hence omitted.
Rule 5(2) postulates that ‘recruitment to the service’
shall be so regulated ‘that the number of posts filled by
promotion from Class II service, shall not exceed 50% of the
number of posts in the service exclusing the post of Asstt.
Executive Engineers’ provided that till such time as an
adequate number of Asstt. Executive Engineers who are
eligible and considered fit for promotion are available, the
actual percentage of officers promoted from Class II service
may be larger than 50%. Rule 6 prescribes qualifications
for appointment to the service by direct recruitment and
appointment by promotion from Class II service and
prescribed departmental test as a condition for promotion to
the post of executive Engineers and above. Rule 7 provides
for appointment of direct recruits and Rule 8 prescribes
procedure for promotion. Rule11 prescribes the period of
probation of an officer appointed to the service and the
procedure for declaration. The Rule provides that direct
recruits shall be on probation for a period of two years and
the promotees and transfeers shall be on probation for a
period of one year and the officiating period shall be
considered period of one year and the officiating period
shall be considered towards probation. Rule 11(4)
postulates that ’on the satisfactory completion of the
period of probation, Government shall confirm such officer
in a cadre post, if one is available for him’. Rule 12
prescribes the procedure for determination of the seniority.
By operation of sub-rule (3) read with sub-rule (5) of Rule
12, the seniority of the Asstt. Executive Engineer (direct
recruit) on promotion as Executive
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Engineer (senior scale) shall be the calendar year in which
the order of appointment as Asstt. Executive Engineer may
have been issued by the government. Sub-rules (6) and (7)
prescribe the procedure to determine to inter se seniority
of the Class II officers promoted as Executive Engineers
notwithstanding they are officiating or confirmed. They
take their rank next below the junior most Executive
Engineer of the preceding year of allotment of such an
office whether officiating or confirmed. Rule 3(2) read
with Appendix ‘A’ provides procedure; to determine cadre
posts in the light of the guidelines laid down therein.
Shri P.P.Rao, learned counsel for the appellants urged
that the moment the appellants were promoted, through
officiating in the regular vacancies as Executive Engineers,
they should be deemed to be the members of the served from
the date of their initial officiating promotion, their
seniority should be determined retrospectively with effect
from their due dates. Their continuous length of service
should be counted towards their seniority. He urged that
since the appellants were promoted in the year 1971-72, they
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are senior to B.D. Sardana as he is a direct recruit of the
year 1977 . He sought reliance on the ‘inclusive
definition’ under Rule 2(12)(a) and the proviso to Rule 5(2)
of the rules. He further contended that while the
appellants were on probation and their probation was
declared to be completed with a view to make them regular
from the date of their initial officiating promotion. The
fixation of cadre posts and appointment of the appellants
substantively to a cadre post are inglorious uncertainties
which take unduly its long period. The officiating service
cannot be cut down nor the contesting respondent B.D.
Sardana be promoted over them or other senior promotees
awaiting promotion either as Executive Engineers or
Superintending Engineers. He further contended that in the
counter-affidavit filed in the High Court the State Govt.
had admitted that the case of the appellants would be
considered in the light of J.C. Yadav’s case which went in
their favour. So the only thing that the State Govt. shall
have to do is to determine into se seniority between the
appellants and the contesting respondent from the respective
dates of promotion as Executive Engineers and appointment by
promotion as Superintending Engineer shall be made on that
basis. We have elaborately considered all the contentions
in Sehgal’s appeal and we have recorded our findings on the
basis of interpretation of the rules.
In our opinion under Rule 2(12)(a) only direct recruit
appointed to the cadre post though on probation is a member
of the service from
228
the date of appointment by operation of the main part of
Rule 2(12)(a) read with Rule 2(1) to a cadre post within the
meaning of Rule 2(3). The inclusive definition in Rule
2(12)(a) is applicable only to a ‘direct appointee’ i.e.,
Asstt. Executive Engineer under rule 2(7) and put on
probation, officiating in an ex-cadre post as contemplated
in para 11 of Appendix ‘A’ but having successfully completed
his probation and awaits appointment to a cadre post. The
promotee Class II officers admittedly are not direct
recruits as per Rule 2(7) but are officiating as Executive
Engineers, they would not become members of the service as
declared by Rule 2(7) but become a member of the service
only after they are appointed substantively to a cadre post.
Sub-rule (2) of Rule 5 prescribed quota to the promotees at
50% and 50% to the direct recruits and by appointment by
promotion to the cadre posts of Executive Engineers and
above. The proviso is a built in relaxation which empowers
the State Govt. to promote Class II officers as Executive
Engineers in excess of their 50% quota. The promotion of
Class II officers in excess of 50% quota would be illegal or
irregular in the teeth of the mandatory language of Rule
5(2). With a view to have smooth functioning of the
administration this power of relaxation was given as a
breathing facility. The moment a direct recruit is
available, the promotee shall give place to him. If a
promotee is officiating in a cadre post of appointed to an
ex-cadre temporary post when a substantive vacancy arises,
the State Govt. is empowered to consider the eligibility of
Class II officers for promotion as Executive Engineer as per
the procedure prescribed in Rule 8 and an appointment by
promotion shall be made but it would be on officiating basis
until he is appointed substantively to a cadre post by
operation of Rule 8(11) read with Rule 11(4). Appointment
by promotion made to an ex-cadre post or to any cadre post
in an officiating capacity from the list prepared under Rule
8 would remain temporary. On satisfactory completion of the
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period of probation, the Government shall confirm the
promotee officer in a cadre post under Rule 11(4) if one is
available for him. On a conjoint reading of all the
relevant rules, a promotee holding a cadre post on an
officiant basis as an Executive Engineer or above, within
the quota, would be eligible to be considered for
appointment in a substantive capacity to a cadre post. His
seniority shall be determined with effect from the date of
his initial promotion to a cadre post unless he is reverted
or there is break in service or from the date of continuous
officiation either in the ex-cadre or cadre post.
Under Rule 3(2) read with Appendix ‘A’, the State Govt.
is enjoined to determine the cadre post from time to time
and during the first 5 years on Ist day of every year and
later from time to time and
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divide the posts as per the ratio of the available cadre
posts to the promotees and the direct recruits and shall
make appointment in a substantive capacity. Inter se
seniority between direct recruits and promotees in regulated
by Rules 12(6) and (7). Since B.D. Sardana is a direct
recruit, his seniority as Executive Engineer shall be with
effect from the date of his initial appointment as Asstt.
Executive Engineer, namely, December 7, 1977 as contemplated
by Rules 12(3) and (5). Similarly Kansal’s seniority would
be determined with effect from 1.1.1966, their seniority is
unalterable and they are eligible for promotion within 50%
quota of cadre post as Executive Engineer, Superintending
Engineer and Chief Engineer respectively counting the
seniority with effect from year of allotment, namely
December 7, 1977; May 18, 1965 (1.1.1966) respectively.
As regards the appellants are concerned, they shall be
considered for appointment to a substantive vacancy against
a cadre post within their 50% quota of the promotees and the
seniority would be counted next below the immediate senior
promotee of the same year or junior most promotee of the
precediate senior promotee of the same year of junior most
promotee of the preceding year of allotment either
officiating or confirmed, in accordance with sub-rules (6) &
(7) of Rule 12 and Rules 8(11) & 11(4). The year of
allotment is accordingly, alterable. If a promotee Class II
officer holds the cadre post within the quota of direct
recruit, his period of service from the date of initial
promotion till the date availability of a cadre post is
rendered fortuitous. A direct recruit though promoted later
steals a march over the promotee and gets right to
consideration and if found fit gets promotion within his 50%
quota and thereby becomes senior to the officiating
promotee.
In the affidavit filed by O.P.Juneja one of the
appellants it is stated that the State Govt. has now
determined the cadre strength but we decline to go into that
question, leaving it open to the Government to determine the
seniority after giving opportunity to all parties in the
light of this judgment. It is true that the State Govt.
made admissions in the counter-affidavit that the seniority
would be determined in accordance with J.C. Yadav’s case
which went in favour of the appellants, but it does not
conclude the matter. It is unfortunate that the State Govt.
took sifting stand from time to time. Rule 2(12) is neither
arbitrary nor creates invidious discrimination offending
Arts. 14 & 16.Direct recruits get seniority from the date of
appointment as Asst. Executive Engineer, it is unalterable.
But promotee’s seniority is variable by operation of Rules
8(11) & 11(4); 2(12(a) & 5(2) of the Rules. Therefore, the
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State Govt. is directed to determine the cadre strength
230
in the Haryana Service of Engineers, Class I, P.W.D. (Public
Health Branch) under the rules, Executive Engineers;
Superintending Engineers and Chief Engineers; consider the
cases of the appellants and the contesting respondents;B.D.
Sardana, F.L. Kansal for promotion to the senior posts of
Executive Engineers, Superintending Engineers and Chief
Engineers respectively with respective quota of 50% and make
appointment if found eligible and fit for promotion. This
exercise shall be done within four months from the date of
the receipt of the order. The impugned promotions or any
appointment made pending the writ petitions sin the High
Court of appeals in this Court ar subject to the above
directions. The status quo as of today will continue till
the Government carries out the directions. The appeal and
the writ petition ar accordingly disposed of an Civil Appeal
No.2316 of 1986 is dismissed but in the circumstances
parties are directed to bear their own costs.
N.P.V. V.A. 1643/91 and
W.P. 6311/82 disposed of and
C.A. 2316/86 dismissed.
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