CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1995 of 1977.
From the Judgment and order dated 16.9.1975 of the Andhra Pradesh High Court in Writ Petition No. 584 of 1975 .
G.L. Sanghi, Subodh Markandeya and Mrs. Chitra Markandeya for the Appellants.
K.G. Bhagat, Y. Prabhakar Rao, T.V.S.N. Chari and Ms. Vrinda Grover for the Respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal is by special leave and is directed against the appellate judgment of a division bench of the Andhra Pradesh High Court upholding the rejection of the writ petition by a Single Judge of that High Court. Appellants are Engineers in the establishment of the Chief Engineer (Roads and Buildings of the Andhra Pradesh Government and the dispute is one of inter se seniority between them on the one side and respondents 3 and 4 on the other.
Appellants filed a writ petition being No. 4151 of 1972 in the High Court of Andhra Pradesh claiming a direction to the State Government for considering them for promotion to the post of Executive Engineer on the basis that they were senior to five promotee Assistant Engineers. A learned Single Judge disposed of the said writ petition by judgment dated 29th March, 1973, and gave the following directions:
"The respondents 1 and 2 (State of Andhra
Pradesh and its Chief Engineer respectively) will,
therefore, consider the claims of the petitioners
for promotion as Executive Engineers having regard
to their seniority in the cadre of Assistant
Engineers in relation to the seniority of
respondents 3 to 7. I, therefore, direct
respondents 1 and 2 to take the seniority of the
petitioners, who were full members of service, in
relation to the seniority of respondents 3 to 7 in
the cadre of Assistant Engineers and consider the
case of the petitioners for promotion to the posts
of Executive Engineers in accordance with the
rules." The State Government, in compliance with the directions issued to it, by order dated 10th August, 1983, made an order stating:
"As per Rule 5 of the said Special Rules, for
promotion to the post of Executive Engineers
(ordinary Grade) a Graduate Assistant Engineer
should be:
(a) a full member or approved probationer;
(b) a direct recruit should put in six years
service as Assistant Engineer; and
(c) a promotee Assistant Engineer should put
in five years service.
No preference is provided for persons, who were
either direct recruit Assistant Engineers or who
secured earlier confirmation. In the absence of
specific provision in the
Special Rules for giving any preference to direct
recruit Assistant Engineers in the matter of
promotion to the category of Executive Engineers,
only the provisions of General Rules for State and
Subordinate Services have to be applied therefor.
According to Rule 33(a) of General Rules for
Andhra Pradesh State and Subordinate Services, the
seniority of a person in a service, class,
category or grade, shall, unless he has been
reduced to a lower rank as a punishment, be
determined by the date of first appointment to
such service, class, category or grade. So, the
seniority of the Writ Petitioners and the
respondents has to be considered with reference to
their dates of regular appointment to the category
of Assistant Engineers (R & B) but not from the
date of confirmation in the said category, for
purpose of promotion as Executive Engineers. The
dates of commencement of probation of the
respondents and Writ Petitioners is as indicated
below:
Sl. Name of the Asstt. Date of Comm-
No. Engineer encement of
probation
Respondents
1. Sh. B.V. Venkataramana 19.5.1961
2. Sh. C.M. Ramachandramurthy 19.5.1961
Writ Petitioners
1. Sh. Desoola Rama Rao 18.7.1966
2. Sh. V. Murahari Reddy 30.6.1966
(Names of the three others stated in the order are
not extracted as are not relevant).
Thus the respondents commenced their probation
between 1959 to 1963 while the writ petitioners
commenced their probation in 1966 and their
seniority is far below the respondents.
The Government, after careful examination of
the judgment of the High Court, with reference to
the statutory rules and in relation to the
seniority obtaining between the respondents and
the writ petitioners, decide that the
turn of the two writ petitioners for promotion has
not yet come and that their claims shall be
considered for promotion as Executive Engineers
(ordinary Grade) in their turn, along with others
according to their seniority as per rules and
eligibility." The appellants thereafter filed a second writ petition being Writ Petition No. 6157 of 1973 before the High Court challenging the Government order. As already stated, the learned Single Judge has dismissed the writ petition and such dismissal has been upheld in appeal.
Appellants were directly recruited as Assistant Engineers on 29th April, 1966 and Special Rules for Roads and Buildings Division of the public Works Department were made on 27th June, 1967, but were given effect from 1st April, 1965. According to the Rules, appointment to the posts of Assistant Engineers can either be by direct recruitment or by recruitment by transfer of Junior Engineers and Supervisors or Draftsmen (Special Grade) or Draftsmen (Grade I) Under the Rules, appellants became eligible for promotion to the post of Executive Engineer in 1971 and when their claim for promotion was overlooked the first writ petition, as already stated, was filed. According to the appellants, respondents 3 and 4 were appointed by transfer under Rule 10-A of the Rules and were approved probationers. They contend that the promotees are approved probationers and until confirmation as full members of the service, they would not be entitled to the benefit of seniority in service and, therefore, the appellants were senior to them. They, therefore, challenged the Government order referred to above and contended that the High Court went wrong in not holding that appellants were senior to the two respondents and on that basis they were entitled to consideration for promotion to the post of Executive Engineer in preference to those respondents.
There is no dispute that both directly recruited Assistant Engineers as also promotee Assistant Engineers are entitled to promotion as Executive Engineers. The rule requires direct recruits to have put in six years of service while for promotees the prescription is five years of service for being eligible to be considered for promotion. As in many other service rules, there is no provision in the Rules under consideration that direct recruits would have preference over promotees for purposes of inter se seniority. In the absence of such a rule the High Court followed the guideline indicated in the General Rules which provides that seniority shall be determined by the date of first appointment to the service. The High Court found that respondents 3 and 4 came to serve as Assistant Engineers long before the appellants were recruited as Assistant Engineers. In fact in paragraph 6 of his judgment, the learned Single Judge in the second writ petition has indicated that respondents 3 and 4 were temporarily appointed as Assistant Engineers on 14th August, 1959 and 19th May, 1960 respectively. In exercise of power under Rule 23(a) of the General Rules, the services of the two respondents had been regularised retrospectively with effect from 19th May, 1961 and the order of regularisation had been passed by the Chief Engineer on 3rd May, 1967. In the instant case the date from which regularisation has been directed to take effect is not anterior to their appointment as Assistant Engineers. That being the position, regularisation is not vitiated on account of arbitrariness. The only other aspect argued on this score was that the Chief Engineer was not competent to make the order. Rule 23(a) of the Andhra Pradesh State and Subordinate Services Rules provides:
"If a person, having been appointed temporarily
under sub-rule (a) or sub-rule(c) of rule 10 to
post borne on the cadre of any service, class or
category or having been appointed to any service,
class or category otherwise than in accordance
with the rules governing appointment thereto is
subsequently appointed to any service, class or
category in accordance with the rules, he shall
commence his probation from the date of such
subsequent appointment or from such earlier date
as the appointing authority may determine."
(Underlining is ours) The vires of this rule had not been challenged but the only contention in this regard was that the appointing authority being the State Government, the Chief Engineer should not have made the order fixing the date of commencement of probation. It is the case of the respondents that the State Government has delegated that power to the Chief Engineer and the order of delegation of that power is on record.
The law relating to inter se seniority in a cadre is well-settled. If there be a rule indicating the manner in which such seniority has to be fixed, that is binding. In the absence of such a rule, length of service is the basis for fixing inter se seniority. The High Court has found, and there is no longer any dispute, that respondents 3 and 4 have put in longer service than the appellants in the post of Assistant Engineer. In that view of the matter, the State Government was right, and the High Court appropriately approved it, that the appellants would rank below the respondents 3 and 4 in the cadre and the promotional benefit would be given to them after the claim of the respondents 3 and 4 has been duly considered.
We see no merit in the appeal. It is accordingly dismissed. There would be no order for costs. P.S.S. Appeal dismissed.