CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2049 and 3 128 of 1979.
From the Judgment and order dated 2.3.1979 of the High Court f Patna in C.W.J.C. NO.1820 of 1977.
Dr. Y.S. Chitale, S.S. Javali, Narendra Prasad and Ranjit Kumar for the Appellants.
S.N. Kacker, and L.N. Sinha D. Goburdhan, M.L. Verma and A Dalip Tandon for the Respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. These two appeals are by special leave. They are directed against the same judgment of the Patna High Court in an application under Article 226 of the Constitution filed by respondents 6 to 51 of Civil Appeal No. 2049 of 1979. In the Writ Petition the aforesaid respondents impleaded the State of Bihar and certain public officers as also all others who were included in the gradation list for purposes of seniority in the combined cadre of engineers in the Department of Agriculture. The other appeal is by the State of Bihar and its public officers and both the appeals challenge the correctness of the decision of the Division Bench of the High Court. Both the appeals are disposed of by this judgment.
There were three different wings of engineers in the Department of Agriculture being Irrigation, Minor Irrigation and River Valley Projects. On 9th January, 1969, the State Government amalgamated the cadre of engineers and other employees of the Irrigation and the River Valley departments. Engineers and other employees of the Minor Irrigation wing were, however, not amalgamated. On 17th November, 1969 the Directorate of Minor Irrigation was made permanent and the State Government created a distinct and permanent cadre of overseers who came to be known as Junior Engineers. 191 permanent posts of overseers were sanctioned. Discussions were held and committees were appointed for the purpose of merging the Minor Irrigation wing with the other two wings which had already been amalgamated in 1969. On 17th May, 1976, the Government ultimately approved the Minor Irrigation wing to amalgamate. On 29th August, 1977, the Engineer-in-Chief cum Special Secretary, Irrigation Department, circulated a combined final gradation list said to have been prepared, taking into consideration the status of the overseers as obtaining on 9th January, 1969. On 30th June, 1978, an amended combined gradation list was published which was further changed on 18th July, 1978. Respondents 6 to S 1 had already filed their writ application before the Patna High Court being C.W.J. Case No. 1820 of 1977 which the High Court by the impugned judgment dated 2nd March, 1979 allowed. The High Court quashed the orders contained in Annexures 11, 11/1, 12, 13, 13/1, 15 and 16 and called upon the State Government and its officers to prepare a fresh combined gradation list in accordance with the principles laid down in the judgment.
The High Court referred to all the materials that were placed before it by the different parties and in para 17 of the judgment came to the conclusion:
"From the discussion of the facts of the case
before us, it is clear that the petitioners got
their substantive appointments earlier than the
respondents concerned and if seniority would have
ranked on that consideration, then the petitioners
would have ranked senior in the integrated cadre.
This was also the recommendation of both the High
Powered Committees which suggested that two
seniority lists, one for the permanent incumbents
and the other for the temporary incumbents, be
framed. No specific rule was brought to our notice
by either side which could govern the case of the
petitioners and the respondents.
On the other hand, learned counsel for the
petitioners has referred to the instructions
issued by the Personnel Department of the State
Government to all Principal Secretaries and Heads
of Departments etc. in its memo No 3/RI-106/72-F-
15784 dated the 26th August, 1972. Clause 3(vii)
thereof provides that in the event of amalgamation
of cadres seniority is determined with reference
to the date of appointment in the particular grade
on substantive or continuous officiating basis,
whichever is earlier, without. however, disturbing
the inter se seniority of incumbents in any group
of posts as amongst themselves in that process. No
other rule was brought to our notice on behalf of
either the learned counsel appearing for the State
or the contesting respondents. An attempt had been made before the High Court to rely upon the executive instructions issued in a Government resolution (Annexure 9). The High Court found that the circular had got no application to the case before it and it related to secretariat assistants. The High Court was not prepared to act upon it because it was not laying down any general principles. According to the High Court:
"Substantive appointment in a service gives
the incumbent a right and if that cannot be taken
away by a temporary incumbent of the same
department, we do not see why that right should be
allowed to be taken away if a question of
integration or merger comes in by such incum-
bents who were similarly temporary and thereby
junior to the permanent employees. In our opinion.
therefore, the gradation list in this case
(Annexure 12) is violative of the principles
contained in Articles 14 and 16 of the Constitu
tion and impinges upon the civil rights of the
petitioners, making them several hundreds places
junior in the integrated or combined cadre on a
basis which cannot, in any view of the matter, be
said to be reasonable in the light of the
principles discussed in the aforesaid
authorities." It is not in dispute that the three wings, though under the administrative control of the Agricultural Department, were separate before amalgamation. As already pointed out, permanent posts had been sanctioned in the Minor irrigation wing to which the petitioners before the High Court belonged and they were appointed on permanent basis. The High Powered Committees had taken all aspects into consideration and had recommended relevant aspects to be kept in view to regulate seniority in the merged cadre. When integration takes place and officers in different cadres are merged into one, there is bound to be some difficulty in the matter of adjustment. That obviously has occurred here. The High Court has found that the petitioners before it had held, on the basis of confirmation, permanent posts and on that basis directed that the combined seniority list should be prepared taking dates of substantive appointments as the basis for fixing inter se seniority. That indeed might create problems because depending upon availability of opportunities in the different wings, confirmation may have been granted while in the absence of the same, though officers in the other wings may be senior they may not have been confirmed. The approach of the High Court has been, as extracted above by us, that if within the cadre earlier confirmation gives seniority why should that basis be not extended to the combined gradation list. This may not be applicable in every situationparticularly when there is a merger of cadres and the combined gradation list is proposed.
It is a well-settled position in law that seniority would ordinarily depend upon length of service subject, of course, to rules holding the field. That view has been taken by this Court in several cases and it is unnecessary to refer to all of them. In A. Janardhana v. Union of India & Ors., [1983] 2 SCR 936 the situation was somewhat the same as here. The Court found that the method adopted for fixing seniority overlooked the character of appointments and pushed down persons validly appointed below others who had no justification to be given higher place. At page 960 of the Reports, the Court observed:
"It is an equally well recognised canon of
service jurisprudence that in the absence of any
other valid rule for determining inter se
seniority of members belonging to the same
service, the rule of continuous officiation or the
length of service or the date of entering in
service and continuous uninterrupted service
thereafter would be valid and would satisfy the
tests of Article 16." We may also refer to a very recent decision of this Court in K.S. Vora & ors. v. State of Gujarat & Ors., [1987] 4 Judgment Today 179. The High Court recorded a finding that there is no applicable rule in the matter of fixing inter se seniority in a situation of this type. In the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. We would like to add that in regard to the Supervisors (now called Junior Engineers) serving in the three wings there is no dispute of the grade being the same. While we do not agree with the High Court that confirmation should be the basis and would substitute it by the length of service test, we would uphold the direction that in fixing the combined gradation list the inter se seniority of the incumbents in their respective departments would not be disturbed. Even if this be the test, the gradation list as published by Government has to be modified. We would accordingly confirm the conclusion of the High Court that Annexures 1 1, 11/1, 12, 13, 13/1, 15 and 16 should be quashed and a fresh combined gradation list has to be published. We have altered the lest for fixing the seniority inter se generally but we have approved the direction of inter se seniority in their own departments to be respected. The respondent-State and its officers are directed to prepare and pubIish the fresh combined gradation list keeping the aforesaid directions in view.
Both the appeals are allowed to the extent indicated above. Parties shall bear their own costs throughout. S.L. Appeals allowed.