Full Judgment Text
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PETITIONER:
VIJAY SINGH DEORA ETC.ETC.
Vs.
RESPONDENT:
STATE OF RAJASTHAN & ANR. ETC. ETC.
DATE OF JUDGMENT: 03/10/1996
BENCH:
K. RAMASWAMY, K. VENKATASWAMI
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NOS.120/94 121/94 122/94
AND
CIVIL APPEAL NO. 14086 OF 1996
(Arising out of SLP (C) No. 21724 /96)
(C.C.15985/92)
O R D E R
Delay condoned.
Leave granted in the special leave petition.
I.As. are allowed.
These appeals by special leave arises from the judgment
of the Division Bench of the Rajasthan High Court dated July
29, 1991 made in W.P. Nos.4983/89 and batch. Due to long
drawn history of litigation and frequent amendments made to
rules, there is lot of confusion in this case. But for the
purpose of disposal of these appeals, it is not necessary to
traverse the whole gamut of litigation. Suffice it to state
that there are three sets of officers in Rajasthan Civil
Engineering Subordinate Service (Irrigation Branch) Graduate
Junior Engineers appointed temporarily prior to June 30,
1978 drawn from the Department of Manpower are called Group-
A officers. Sub-Engineers, who are diploma-holders, were
appointed by advertisement. Thereafter, they acquired degree
of Engineering, either B.E. or A.M.I.E. and are called
Group-B Officers. Sub-Engineers with diploma who were
appointed substantively in the lower cadre, on acquiring
degree qualifications were appointed by transfer to the
cadre of Junior Engineers and they are called Group-C
Officers. Rules prescribe 20% of the quota for direct
recruitment of Graduate Junior Engineers. Earlier, Junior
Engineer Graduates and Junior Engineers Diploma-holders were
two distinct cadres but later, by amendment dated December
7, 1985, the distinction was done away. The question relates
to integration and fixation of seniority among these three
sets of officers for the purpose of promotion to the cadre
of Assistant Engineers which is the next channel of
promotion .
The Rajasthan Engineering Subordinate Service
(Irrigation Branch) Rules, 1967 issued under proviso to
Article 309 of the Constitution are applicable to this
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service. Group-A and Group-B officers came to be appointed
under Rule 27 of the Rules. In other words, they were not
appointed in accordance with Rule 6 of the Rules. Group-A
officers were temporarily appointed prior to June 30, 1978
but were fully qualified for appointment. Group B and C
officers were appointed subsequent to Group A officers.
Group C officers were appointed by transfer into quota of
Graduate Junior Engineers.
Rule 2(i) defines "substantive appointment" to mean "an
appointment made under the provisions of these Rules to a
substantive vacancy after the selection by any of the
methods of recruitment prescribed under these Rules and
includes an appointment on probation or as a probationer
followed by confirmation on the completion of the
probationary period". Rule 6 prescribes the method of
recruitment. It envisages that recruitment to the service,
after the comencement of the Rules, shall be made by the
following methods in the proportion as is lndicated in
Column 3 of the Schedule (a) direct recruitment in
accordance with Part IV of the Rules, and (b) promotion in
accordance with Part I of the Rule. Sub-rule (1A) which was
brought by amendment dated December 7, 1985 reads as under:
"(1A) If a Diploma Holder Junior
Engineer attains the qualification
of B.E.
(Civil/Mechanical/Electrical), or
AMIE he shall be entitled on his
application and subject to
availability of vacancy, to be
appointed as Junior Engineer
(Degree Holder), by transfer
against the quota of direct
recruitment but in that case his
seniority amongst the Junior
Engineers (Degree Holders) shall be
determined from the date of
occurrence of vacancy against which
such Junior Engineer has been
appointed on the post of Junior
Engineer (Degree Holder) and one
third of his previous experience
shall be counted as experience on
the post of Junior Engineer for the
purpose of promotion to the next
higher post."
The crux of the question is integration of the three
groups of officers. What will be the method or procedure for
the purpose of determination of inter se seniority?
Undoubtedly, the appellant and his companions were appointed
temporarily under Rule 27 prior to June 30,1978 and orders
do indicate that they were appointed subject to the
availability of the regularly recruited candidates in
accordance with the Rules. Admitted position is that there
was no regular recruitment made by the Chief Engineer in
accordance with the Rules under Rule 6(a). The appointments
temporarily made are now sought to be regularised by a
screening committee appointed under the Rules in that
behalf. Admittedly, the screening committee found them
eligible for appointment as was done in the year 1984. The
question is: whether the graduate qualified Engineers
appointed temporarily in the initial in the initial
appointment could be treated to have been substantively
appointed to the post of Junior Engineers from the date of
initial appointment after screening? In this behalf, one
should not lose sight of the hard reality, namely, the
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Graduate Engineers Group-A officers have been substantively
discharging the duties of the posts right from the date of
their appointment. It is settled rule that a temporary
appointee has no right to the post nor does he get seniority
unless regularly recruited in accordance with the rules and
seniority would be reckoned from the date of substantive
appointment when he started discharging the duty of the
post. If appointments were made de hors the rules, the
entire length of service was required to be treated as
fortutous and excluded. If appointment are made after due
consideration and according to the procedure, though on
temporary basis, the seniority would start from the date of
appointment. But when recruitment was temporarily made and
appointments are regularised later the question would be:
from what date their seniority would be reckoned?
Admittedly, on appointment made prior to 30.6.1978, Group A
officers started with 10 advance increments from the
inception. Group B officers were appointed with diploma
qualification and later as Group-A officers and acquired
degree qualification subsequently Group-C officers on
acquiring degree qualification were appointed on application
by transfer later to 30.6.1978. In other words, unqualified
became qualified subsequent to the appointment of qualified
graduates. The question is: whether Group-A officers, when
appointed as per rules were made juniors to Groups B & C
officers due to delay and laches on the part of Government
in getting them screened and appointed regularly?
Necessarily, therefore, when they were screened by the
committee, all those found eligible for confirmation in the
temporary appointments made prior to June 30, 1978, must, of
necessity and under equityand justice be construed to have
been regularly appointed to the post in the above factual
backdrop. Since there was no recruitment made by the Chief
Engineer, the qualified Group A officers need to be treated
as appointed on regular basis. Otherwise, unqualified
officers would become senior to the qualified graduates at
the inception. The Chief Engineer necessarily, therefore,
has to find out the following method in determining the
inter se seniority of the three groups of officers. First,
it is to be ascertained as to how manysubstantive vacancies
are available within the quota of 20% of the direct recruit
Graduate Junior Engineers. Seniority of the Graduate
Engineers appointed, i.e., Group A Officers, to the posts of
the Junior Engineer should be reckoned from the respective
dates on which substantive vacancies were available and
Group A officers were appointed to those posts. Their
seniority reckons from the respective dates of either
initial appointment or date of availability of substantive
vacancies, whichever occurs later, i.e., if as on the date
of initial appointment, there existed substantive vacancy,
the seniority should be determined from the date of initial
appointment or in its absence from the date of substantive
vacancy.
The second step should be that the Group-B officers who
were appointed through selection by advertisement subsequent
to June 30, 1978 and obtained degree qualifications,
thereafter would get into the quota prescribed for direct
recruitment of the Graduate Engineers from the respective
dates on which they became qualified i.e. obtained degree
qualification. Their seniority requires to be determined
with reference to the date on which they acquired
qualification or on which substantive vacancy became
available, whichever occurred later. The inter se seniority
among Group B officers requires to be determined from the
date of their acquiring qualification or availability of
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substantive vacancy of the Group B officers since all Group
B officers were appointed as diploma-holder Junior Engineers
subsequent to June 30, 1978. Group C officers also were
appointed by transfer. Seniority of those who were appointed
by transfer is required to be determined in the service and
they are required to be fitted into service either from the
actual date of their respective appointment against
substantive vacancies available or from the date when the
substantive vacancies became available to them whichever
occurred later since they were appointed, by transfer, to
the Junior Engineers degreeholders quota in the Subordinate
Service (Civil Engineering) The general inter se seniority
should be determined according to the above procedure
following the rule of reservation and roster.
The next question is: what is the inter se seniority
for the purpose of promotion to the cadre of Assistant
Engineers? Since Graduate Engineers were directly appointed
substantively from the date when the substantive vacancies
became available to them within the 20% quotas their
eligibility for promotion as Asstt. Engineer requires to be
determined from the date the substantive vacancies became
available for them though they might have been appointed
earlier on temporary basis. Their qualifying service should
be counted accordingly. The qualifying service of all those
Group-B officers appointed and fitted into the substantive
vacancies from their respective dates of availability of the
substantive vacancies should be reckoned from their
respective dates of coming into substantive vacancies. If
there is any short-fall of qualifying service prescribed for
the post of the Asstt. Engineer the balance period be taken
into consideration from their l/3rd service rendered as
diploma-holder Junior Engineers. This should stop upsetting
the general seniority determined in that order as laid down
earlier. Regarding Group-C officers, their seniority as
stated is to be reckoned from the date of the appointment by
transfer or from the date of availability of substantive
vacancy, whichever occurred later. In determining the
qualifying service for promotion as Assistant Engineers if
there is any shortfall, the one-third of the service
rendered by them in the post of Sub-Engineers would be taken
into account only for making good the balance of qualifying
service but not the entire l/3rd service to be tagged. In
case even one third of service as Sub-Engineers was not
sufficient as qualifying service, they would not become
qualified for consideration for promotion. This procedure
would do justice to all the three Groups and no one would
jump over the other and would not illeghtimately steal a
march over the legitimate right of the other. Otherwise, in
effect the qualified graduates would be pushed downwards and
unqualified later entrants on acquisition of qualification
would steal a march over the qualified. The High Court was
not justified in treating amended Rule 6(1A) with
retrospective effect, since admittedly it has beer, given
prospective operation. The High Court also was not
justified in striking down the latter clause of the rules
for computation of one-third service for the purpose Of next
higher post.
The Government is, therefore, directed to determine
inter se seniority in the light of above law and directions
and prepare the seniority list accordingly. It would
consider their respective claims for promotion to the next
higher post i.e., Assistant Engineers and onwards
accordingly.
The appeals are accordingly disposed of. The writ
petitions in that behalf stand disposed of. No costs.
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