Full Judgment Text
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CASE NO.:
Appeal (civil) 62-65 of 1999
Appeal (civil) 66 of 1999
PETITIONER:
Pramod K. Pankaj
RESPONDENT:
State of Bihar and Ors.
DATE OF JUDGMENT: 20/11/2003
BENCH:
CJI, & S.B. Sinha.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
INTRODUCTION :
The usual problem which frequently arises in service matters i.e.
inter se seniority between two groups of employees is involved in these
appeals which arise out of a judgment and order dated 23.5.1997 passed
by the High Court of Patna in L.P.A. Nos. 100, 158, 101 of 1994 and
C.W.J.C. No.7826 of 1995.
BACKGROUND FACTS :
The appellant and the contesting respondents were appointed in the
Bihar Subordinate Engineering Service Cadre as Junior Engineers. The
sources for appointment to the rank of Assistant Engineer in Bihar
Engineering Service Class II were : (a) from Junior Engineer (Diploma
Holder) Cadre to 30% of cadre strength of Assistant Engineers; (b) from
Engineer Assistant Cadre (Engineering Graduate or equivalent Degree
Holder) to 20% of total cadre strength of Assistant Engineers; and (c)
50% of the posts of the Assistant Engineers from direct recruitment of
Engineering Graduate or equivalent Degree Holders from outside.
On or about 17.8.1973, the cadre of Engineer Assistants was
abolished in various phases and only promotional avenue was left for
Junior Engineers from amongst the quota of 30% of the diploma-holders.
Keeping in view the fact that promotional avenue of those Junior
Engineers who had acquired degree in engineering during service was
taken away, the State of Bihar by reason of a resolution dated 17.1.1979
sought to provide special facility by way of incentive of promotion to
the post of Assistant Engineer to those Junior Engineers who had
acquired degree in engineering or passed equivalent examination during
their service to the extent of 3%. The said employees besides holding
the degree of engineering or passing of equivalent examination were
further required to complete a minimum period of five years in service
in the cadre of Junior Engineers. The relevant clauses of the
aforementioned resolution are as under :
"Gha. This facility of promotion to the post of
Assistant Engineer on the basis of quota
mentioned in paragraph (Ka) shall be equally
available to all those permanent/temporary
Junior Engineers who have passed the examination
of Graduate in Engineering or its equivalent
examination during their service period and have
completed a minimum of 5 years service on the
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post of Junior Engineer.
Cha. Promotion to the vacant posts of Assistant
Engineer on the basis of the quota mentioned in
paragraph (Ka) be given in accordance with their
seniority. With regard to inter se seniority of
these Junior Engineers, the decision be taken
after obtaining the opinion of the personnel
Department."
The Personnel Department of the State of Bihar indisputably did
not lay down any procedure for determination of the inter se seniority
of such Assistant Engineers who were promoted in the aforementioned 3%
quota. Seniority list was, however, prepared by the Water Resources
Department in the light of the order dated 22.12.1992 wherein it was
laid down :
"According to the provisions made in
Circular No.947 dated 17.1.79 of Public Works
Department, 3% posts of Assistant Engineer out of
total vacant posts of Assistant Engineers are to
be filled up by promotion of those Junior
Engineers who have passed Degree/AMIE after entry
into service. In the Department the number of
available posts under the above quota basis is
less than the number of available such qualified
Junior Engineers. Applicants are more and posts
are less, under such situation it has become
inevitable for fixation of inter se, seniority of
Degree/AMIE holder Junior Engineers as per
Circular referred to.
2. Generally, basis of seniority in a cadre is
the date of entry into service in that cadre but
in the case under reference fixation of seniority
on that basis is not justifiable, because on the
basis of seniority service 35% posts are reserved
for promotion to the posts of Assistant Engineer
separately. Therefore, it has been decided by
the department to fix the inter se seniority on
the following basis :
(Ka) That the inter se seniority should be kept
as in service seniority of those officers who by
remaining in service have completed the period of
five years and have obtained qualification of
AMIE or Bachelors’ degree in Engineering within
those five years of service.
(Kha) That the fixation of inter se seniority be
fixed on the basis of the date of obtaining AMIE
or Bachelors Degree in Engineering of those
officers who, by remaining in service, have
completed the minimum service period of five
years but have obtained certificate of AMIE or
Bachelor’s degree in Engineering after five
years.
3. On the basis of the principles enumerated
above, the fixation of inter se seniority of all
applicants received within the stipulated period
from the concerned applicants has been done
according to the enclosed list."
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A gradation list dated 10.9.1992 was issued and the same was
purported to have been finalized on or about 22.12.1992 in terms of the
aforementioned circular letter. The appellant herein submitted his
representations/objection to the said list on 12.1.1993. Allegedly on
the premise that without disposing of the said objections, some Junior
Engineers were promoted, a writ petition was filed before the Patna High
Court, which was marked as C.W.J.C. No.2489 of 1993. The said writ
petition was allowed by a learned Single Judge of the said High Court by
a judgment and order dated 25.4.1994 holding that as the Government
resolution dated 17.1.1979 had been issued by way of incentive of adding
the qualification during continuation of service for getting advantage
of acceleration in promotion; in the event the said gradation list dated
22.12.1992 is given effect to, the same would be violative of Articles
14 and 16 of the Constitution of India as thereby the incentive sought
to be given by reason of Resolution dated 17.1.1979 would become
nugatory. Two letters patent appeals were filed by some respondents
against the said judgment which were marked as L.P.A. Nos.100 and 101 of
1994. The State of Bihar, however, filed a special leave petition
before this Court but having regard to the fact that they had a remedy
by way of letters patent appeal, withdrew the same whereafter they filed
a letters patent appeal before the Division Bench which was marked as
L.P.A. No.158 of 1994. The Division Bench by reason of a judgment and
order darted 23.5.1997 allowed the said appeals and writ petition which
was also filed in the meanwhile holding that the aforementioned
gradation list dated 22.12.1992 for promotion of Junior Engineers was
not in conflict with the Government Resolution dated 17.1.1979. The
Division Bench in support of its aforementioned finding relied upon a
decision of this Court in N. Suresh Nathan and Another vs. Union of
India and Others [(1992) Supp. 1 SCC 584]. The High Court, therefore,
directed that inter se seniority of the concerned officers be determined
against the special quota of 3% in terms of the said circular letter
dated 22.12.1992.
The appellant in Civil Appeal Nos.62-65 of 1999 filed a special
leave petition, inter alia, on the ground that pursuant to or in
furtherance of the said judgment, 22 persons all of whom were junior to
the appellant, except Mr. Guru Saran Singh, had been promoted.
The appellant in Civil Appeal No.66 of 1999 had filed a writ
petition on 12.12.1995 which was marked as C.W.J.C. No.11149 of 1995 on
the ground that he had been denied promotion to the post of Assistant
Engineer in terms of Resolution dated 17.1.1979. During the pendency of
the writ petition as certain posts fell vacant in relation whereto he
filed representation which was not accepted as also on the ground that
the some persons junior to him had been promoted, he filed an
application for amendment of the writ petition. In the light of the
judgment in L.P.A. No.100 of 1994, the said Writ Petition No.11149 of
1995 was dismissed by an order dated 16.6.1997 stating :
"In view of the Division Bench judgment in
L.P.A. No.100 of 1994 and analogous cases, a
true copy of which has been annexed as Annexure
’O’ to the show cause filed on behalf of the
Secretary-cum-Commissioner, Department of Road
Construction, Government of Bihar, Patna both
the writ applications are accordingly
dismissed."
The appellant filed a letters patent appeal which was barred by
limitation of 36 days. By an order dated 18.9.1997, the said letters
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patent appeal was dismissed stating :
"Flag ’A’ is an application under Section
5 of the Limitation Act seeking condonation of
delay of 36 days in filing the appeal.
It is contended that the appellant was
advised to prefer S.L.P. before the Apex Court
which had delayed the filing of the appeal. On
being asked to show the order passed in the
S.L.P. Learned Counsel said that no S.L.P. was
filed. This being so no ground is made out for
condoning the delay in filing the appeal. The
application at flag ’A’ is accordingly rejected.
Consequently, the appeal is dismissed being
barred by limitation."
Mr. Vikas Singh, learned counsel appearing on behalf of the
appellants, inter alia, would submit that the basic qualification for
promotion to the post of Assistant Engineer being acquisition of a
degree in engineering or passing of an equivalent examination together
with five years experience in the post of Junior Engineer, the inter se
seniority of the concerned officers should have been directed to be
determined on the basis of the gradation list in the post of the Junior
Engineer. The learned counsel would urge that the purported direction
issued by the Water Resources Department in terms of order dated
22.12.1992 was illegal. Mr. Singh pointed out that the decision of this
Court in N. Suresh Nathan (supra) which has been relied upon by the
Division Bench has been distinguished and explained in subsequent
decisions by this Court in M.B. Joshi and Others etc. vs. Satish Kumar
Pandey and Others etc. [(1993) Supp. 2 SCC 419], Satpal Antil etc. vs.
Union of India and Others [(1995) 4 SCC 419] and D. Stephen Joseph vs.
Union of India and Others [(1997) 4 SCC 753].
Mr. B.B. Singh, learned counsel appearing on behalf of the State
of Bihar; and Mr. Akhilesh Kumar Pandey and Mr. Manan K. Mishra, learned
counsel appearing on behalf of the private respondents, however, would
submit that the date of eligibility should be determined on the basis of
the general principles with reference to the date of qualification. It
was urged that eligibility of a candidate for promotion to the post of
Assistant Engineer was required to be determined on fulfillment of both
the conditions, namely, acquisition of a degree in engineering or
passing of an equivalent examination as also five years’ experience in
the post of Junior Engineer and, thus, the circular letter dated
22.12.1992 cannot be said to be illegal. It was further submitted that
the principles evolved by the Water Resources Department had been given
effect to and in terms thereof several persons having been promoted, the
settled position should not be unsettled.
ISSUE :
The short question which arises for consideration before us is
that as to whether the purported qualification issued by the Water
Resources Department as contained in order dated 22.12.1992 is valid?
THE POLICY DECISION :
The policy decision of the State as contained in the resolution of
the State Government dated 17.1.1979 is not in question. It is accepted
that the said resolution was adopted in the special situation that 20%
quota which was earlier reserved for graduate engineers was abolished,
as a result whereof they suffered immense prejudice. Clause ’Cha’ of
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the said circular states that the promotion on the vacant posts of
Assistant Engineer under the quota mentioned in clause ’Ka’ i.e. 3%
would be made on the basis of seniority. In absence of any statutory
provision or rules made thereunder or under the proviso appended to
Article 309 of the Constitution of India, it is trite, that once an
incumbent is appointed to a post according to rules his seniority has to
be counted from the date of his appointment.
The aforementioned Resolution dated 17.1.1979 was introduced as a
special measure. The promotion of the holders of the post of Junior
Engineers to the post of Assistant Engineer was not to be done on
selection basis. No written examination was to be held nor any oral
interview was to be taken. No criteria whatsoever was laid down for
selecting the candidates. For the purpose of granting promotion to the
post of Assistant Engineer in the aforementioned category, only two
conditions which were required to be fulfilled on the relevant date are
: (a) the employee must be holder of a degree or must have passed an
equivalent examination; (b) he must have completed five years of service
in the post of Junior Engineer.
A plain reading of the aforementioned resolution dated 17.1.1979
would clearly go to show that no further requirement was prescribed
therefor. Clause ’Cha’ of the said resolution merely stated that with
regard to inter se seniority of these Junior Engineers, the decision be
taken after obtaining opinion from the Personnel Department.
In the aforementioned premise, it was obligatory on the part of
the Personnel Department itself to take a firm decision laying down the
criteria for fixation of inter se seniority in absence of any statute or
rules having the force of law. Admittedly, the Personnel Department did
not issue any such order. The said resolution dated 17.1.1979 was an
executive order passed by the State of Bihar in terms of Article 162 of
the Constitution of India. By reason of the said policy decision, the
Personnel Department alone was delegated with the power to lay down the
criteria for determining the inter se seniority. The Personnel
Department neither in fact delegated the said power to the Water
Resources Department nor in law could do the same. The purported order
dated 22.12.1992 issued by the Water Resources Department was,
therefore, illegal having been rendered by an authority which had no
jurisdiction therefor.
’Delegatus Non Potest Delegare’ is a well-known maxim which means
in absence of any power a delegatee cannot sub- delegate its power to
another person. It is beyond any cavil that the Water Resources
Department did not have the requisite competence to issue the said order
dated 22.12.1992. If a guideline for determining the inter seniority was
to be laid down, the State could do so in terms of Article 162 of the
Constitution of India. The said order dated 22.12.1992 also does not
satisfy the requirements of Article 162 of the Constitution of India.
This aspect of the matter unfortunately was not adverted to before the
High Court.
CASE LAWS :
In N. Suresh Nathan (supra) on the basis whereof the learned
Division Bench upheld the validity of the said order dated 22.12.1992 to
the effect that the inter se seniority be determined on the basis of the
date of acquisition of a degree in engineering and not on the basis of
service, the factual matrix was different. Therein the dispute was as
to whether a diploma-holder Junior Engineer who had obtained a degree
while in service had become entitled for appointment as Assistant
Engineer by promotion on completion of three years’ service including
the period of service prior to obtaining of such degree or whether the
three years’ service as a degree-holder for the said purpose shall be
reckoned from the date of obtaining such degree. The Central
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Administrative Tribunal before which the application was filed held that
the diploma-holders were entitled to be considered for promotion to the
post of Assistant Engineer on par with the degree-holder Junior
Engineers having regard to the total length of service rendered in grade
of Junior Engineer irrespective of the fact that as to whether he had
acquired the necessary degree qualification earlier than the applicants.
This Court in N. Suresh Nathan (supra) held :
"In our opinion this appeal has to be
allowed. There is sufficient material including
the admission of respondents diploma-holders
that the practice followed in the department for
a long time was that in the case of diploma-
holder Junior Engineers who obtained the degree
during service, the period of three years’
service in the grade for eligibility for
promotion as degree-holders commenced from the
date of obtaining the degree and the earlier
period of service as diploma-holders was not
counted for this purpose. This earlier practice
was clearly admitted by the respondents diploma-
holders in para 5 of their application made to
the Tribunal at page 115 of the paper book. This
also appears to be the view of the Union Public
Service Commission contained in their letter
dated December 6, 1968 extracted at pages 99-100
of the paper book in the counter-affidavit of
respondents 1 to 3. The real question,
therefore, is whether the construction made of
this provision in the rules on which the past
practice extending over a long period is based
is untenable to require upsetting it. If the
past practice is based on one of the possible
constructions which can be made of the rules
then upsetting the same now would not be
appropriate. It is in this perspective that the
question raised has to be determined."
The scheme under the recruitment rules in said case were
different. The scheme obtaining therein postulated that the period of
three years’ service in the cadre required for degree-holders as a
qualification for promotion in the said category would mean three
years’ service in the grade as a degree-holder. In the instant case,
experience of five years upon acquisition of a degree in the engineering
is not a qualification laid down in terms of the aforementioned
Resolution dated 17.1.1979.
In that case, the practice followed by the State was, thus,
upheld.
In M.B. Joshi (supra), this Court distinguished N. Suresh Nathan
(supra). Therein, this Court was considering a case where promotions
from the post of Sub-Engineer to the post of Assistant Engineer were
inter alia required to be made from amongst the persons who were
graduate Sub-Engineers completing eight years of service. In that case,
the State Government had applied the principle of counting the seniority
of graduate Sub-Engineers from the date of their continuous officiation
irrespective of the date on which such diploma-holder Sub-Engineers
acquired degree in engineering. A contention similar to one raised
before us by the respondents was raised therein on behalf of the
respondent. Rejecting the said contention, this Court distinguishing
N. Suresh Nathan (supra), and upon taking into consideration, the fact
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situation obtaining therein as also the findings rendered by this Court,
held :
"11. A perusal of the above observations made
by this Court clearly show that the respondents
diploma-holders in that case has admitted the
practice followed in that department for a long
time and the case was mainly decided on the
basis of past practice followed in that
department for a long time. It was clearly laid
down in the above case that if the past practice
is based on one of the possible constructions
which can be made of the rules then upsetting
the same now would not be appropriate. It was
clearly said "it is in this perspective that the
question raised has to be determined". It was
also observed as already quoted above that the
Tribunal was not justified in taking the
contrary view and unsettling the settled
practice in the department. That apart the
scheme of the rules in N. Suresh Nathan case
(1992 Supp (1) SCC 584 : 1992 SCC (L&S) 451 :
(1992) 19 ATC 928) was entirely different from
the scheme of the Rules before us. The rule in
that case prescribed for appointment by
promotion of Section Officers/Junior Engineers
provided that 50 per cent quota shall be from
Section Officers possessing a recognised degree
in Civil Engineering or equivalent with three
years’ service in the grade failing which
Section Officers holding Diploma in Civil
Engineering with six years’ service in the
grade. The aforesaid rule itself provided in
explicit terms that Section Officers possessing
a recognised Degree in Civil Engineering was
made equivalent with three years’ service in the
grade. Thus, in the scheme of such rules the
period of three years’ service was rightly
counted from the date of obtaining such degree.
In the cases in hand before us, the scheme of
the rules is entirely different."
It was further observed :
"...The Rules in our case do not contemplate
any equivalence of any period of service with
the qualification of acquiring degree of
graduation in engineering as was provided in
express terms in N. Suresh Nathan case (1922
Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992)
19 ATC 928) making three years service in the
grade equivalent to degree in engineering. In
our opinion, the Rules applicable in the cases
before us clearly provide that the diploma-
holders having obtained a degree of engineering
while continuing in service as Sub-Engineers
shall be eligible for promotion to the post of
Assistant Engineer in 8 years of service and
quota of 10 per cent posts has been earmarked
for such category of persons."
This aspect of the matter was also considered in Satpal Antil
(supra), holding :
"...Such rules for promotion do not contain any
provision for determining inter se seniority for
the purpose of giving promotion earlier or later
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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..."
Yet again in D. Stephen Joseph (supra), this Court following M.B.
Joshi (supra), observed :
"It appears to us that the State Government is
labouring under a wrong impression as to the
applicability of the past practice as indicated
in Suresh Nathan case [1992 Supp (1) SCC 584 :
1992 SCC (L&S) 451 : (1992) 19 ATC 928]. This
Court in the said decision, has only indicated
that past practice should not be upset provided
such practice conforms to the rule for promotion
and consistently for some time past the rule has
been made applicable in a particular manner. In
our view, the decision in Nathan case [1992 Supp
(1) SCC 584 : 1992 SCC (L&S) 451 : (1992) 19 ATC
928] only indicates that past practice must be
referable to the applicability of the rule by
interpreting it in a particular manner
consistently for some time. Any past practice
dehors the rule cannot be taken into
consideration as past practice consistently
followed for long by interpreting the rule. It
may be indicated here that a similar question
also came up for consideration before this Court
in M. B. Joshi v. Satish Kumar Pandey [1993 Supp
(2) SCC 419 : 1993 SCC (L&S) 810 : (1993) 24 ATC
688]. The decision in Suresh Nathan case [1992
Supp (1) SCC 584 : 1992 SCC (L&S) 451 : (1992)
19 ATC 928] was distinguished in the facts of
that case and it was indicated that when the
language of the rule is quite specific that if a
particular length of service in the feeder post
together with educational qualification enables
a candidate to be considered for promotion, it
will not be proper to count the experience only
from the date of acquisition of superior
educational qualification because such
interpretation will violate the very purpose to
give incentive to the employee to acquire higher
education."
Mr. Pandey, the learned counsel appearing on behalf of the
respondents, however, relied upon Ashok Kumar
Sharma and Others vs. Chander Shekhar and Another [(1997) 4 SCC 18]. In
that case, this Court was considering a matter of direct recruitment.
The question which arose for consideration therein was as to whether in
the advertisement or notification issued/published calling for
applications constituted a representation to the public and the
authority issuing it is bound by such representation. Having regard to
the importance of adhering to the representation made to the public and
the binding nature thereof upon the authorities issuing the same, it was
held that no action contrary thereto would be permissible, stating :
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"...One reason behind this proposition is that
if it were known that persons who obtained the
qualifications after the prescribed date but
before the date of interview would be allowed to
appear for the interview, other similarly placed
persons could also have applied. Just because
some of the persons had applied notwithstanding
that they had not acquired the prescribed
qualifications by the prescribed date, they
could not have been treated on a preferential
basis..."
We are not concerned in this case as regard acquisition of a
qualification by a prescribed date. No date for acquisition of the
qualification has been prescribed by reason of the aforementioned
resolution dated 17.1.1979.
It is further not a case where a practice had been followed for a
long time. It is also not a case where the appellants herein had
allowed a seniority list to operate without protest and stood by the
same for a long time. The seniority list dated 22.12.1992 was
questioned in the year 1993 in C.W.J.C. 2489 of 1993 and the litigations
are continuing since then. From the very beginning, thus, the position
remained fluid and the position of the parties was not settled.
GRADATION LIST :
Submission of Mr. Pandey to the effect that the appellants had
filed objections after a final gradation list was published on
22.12.1992 cannot be accepted. If a gradation list was published by an
authority relying on or on the basis of criteria which was illegal, the
seniority list issued pursuant thereto or in furtherance thereof must
necessarily fall.
FINDINGS :
The proposition of law, therefore, which emerges from the
aforementioned discussions is that in absence of any statutory rule
governing the field the criteria for promotion should be construed upon
applying the principle of literal meaning as also continuous officiation
in the lower post.
We are, therefore, of the view that the impugned judgment cannot
be sustained.
We, therefore, are of the opinion that the aforementioned order
dated 22.12.1992 passed by the Water Resources Department being illegal
and without jurisdiction, the impugned seniority list cannot be
sustained which is set aside accordingly. We are further of the opinion
that having regard to the facts and circumstances of the case, the order
of the High Court dated 18.9.1997 passed by the High Court in L.P.A.
No.1018 of 1997 refusing to condone the delay must also be set aside.
We condone the delay and direct that the writ petitions filed by the
appellants herein should also be disposed of on the above terms.
For the reasons aforementioned, the appeals are allowed and the
judgments under appeals are set aside. No costs.