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1998(2) Supreme 415
Supreme Court of India
(From Allahabad High Court)
K. Venkataswami and A.P. Misra, JJ.
Vijaya Kumar Shrotriya -Appellant
versus
State of U.P. & Ors. -Respondents
Civil Appeal No. 12086 of 1996
Decided on 13-2-1998
Counsel for the Parties :
For the Appellant : Rakesh Diwedi, Sr. Advocate, Chatanya Siddarth, R.C. Verma, Advocates.
For the Respondents : Ms. Alka Aggarwal, R.K. Singh, R.B. Misra, Advocates.
Held : The appellant in this case could not be faulted as inspite of he being selected through 1962 combined selection examination and he having consented was not relieved by the Irrigation Department due to his requirement in that department. This fact, as stated earlier, is also recorded in Government’s Office Memorandum No. 402 EPUR. 12.3.93. 915/91 dated 20th February, 1993. This is also referred in the letter of the Joint Secretary, Government of U.P., Irrigation Department, to the Joint Secretary, Public Works Department dated 15th September, 1992. The main reason, to reject the claim by the Government is the decision of Gokaram Singh (supra) which was also the basis of the impugned judgment of the High Court viz. relying on P.D. Aggarwal’s case (supra). This decision merely declares, a claim of seniority could only be from the date one is borne in service. But the question still is, as to when did the appellant enter service or could be said to have been borne in service? (Para 8)
It would be unjust, to disallow the claim of the appellant inspite of he being selected and appointed to the PWD through 1962 Commission Selection when on no fault of his if he was not being permitted to join in the Public Works Department. (Para 9)
Regarding the question of length of service for computing seniority, whether could it be only from the date of his appointment on permanent post in the year 1965 or will also include the period when he was appointed on the temporary post in the year 1962, the law is well settled. A person even appointed on a substantive vacancy on a temporary post after due approval by the Public Service Commission if fulfils all other essential criteria as prescribed he shall be deemed to be borne in service from such date of his appointment. In other words his entire length of service from that date should be reckoned in computing seniority. (Para 10)
He suffered from the same disability for the post of Executive Engineer as is pointed now for the post of Superintending Engineer. But after due considerations then after appointing him two decades back, none challenging it then, to raise it now, has no justiciable reasons to stand. By that time the policy of the Government was also well known which is evident from the aforesaid G.O. of 1968. When the question of appointment as Superintending Engineer came up for consideration in the year 1993 i.e. more than 21 years after appellant’s appointment as Executive Engineer, we do not find, it was proper for the Government, to revert back and deprive the appellant by withdrawing his seniority by excluding the period he worked in the Irrigation Department. (Para 11)
Even otherwise, we find from the record that the Government’s own stand and its policy accepted the stand of the appellant but the reason for this change was only in view of the decision of the High Court, as aforesaid, in the case of Gokaran Singh relying on the case of P.D. Aggarwal. The High Court committed wrong by wrong application of the principle of P.D. Aggarwal. The same is not eroded or violated when the appellant’s appointment to the PWD is treated to be by way of transfer from Irrigation Department. (Para 12)
Order
The short question raised is, whether the appellant is entitled to the benefit of his earlier service rendered in the Irrigation Department for his promotion and seniority in the Public Works Department (PWD). The foundation for the impugned order dated 19th August, 1993, is the decision of the High Court in Gokaran Singh v. State of U.P.1, in which the appellant, admittedly, was not a party wherein it was held that the benefit for the said earlier period was not admissible.
2. On 25th August, 1962, the appellant was appointed on ad hoc basis as Assistant Engineer in the Irrigation Department. In September, 1962, interview was held in the combined services of Uttar Pradesh for the posts of Assistant Engineers in Public Works Department (PWD) Irrigation Department by the U.P. Public Service Commission. The appellant was recommended at Sl. No. 55. In view of this, he was allotted the Public Works Department. On 29th July, 1963, the Public Works Department approved the appellant’s appointment and indicated the appellant’s merit at Sl. No. 21. On 8th August, 1963, the Chief Engineer, PWD, issued letter of his appointment. However, the appellant was not relieved by the Irrigation Department, inspite of his consent earlier to join PWD through a letter dated 10th May, 1963. So, he continued to work in the Irrigation Department. In 1965, another competitive examination was held by the said Commission for substantive permanent vacancies in the Public Works Department. On 13th September, 1967, the appellant was again selected and appointed through letter dated 23rd November, 1967. On 1st January, 1968, the appellant joined the post of Assistant Engineer in PWD. Subsequently, on 10th October, 1968, appellant’s case is, that he was transferred from the Irrigation Department to the PWD. By means of Government Order dated 19th October, 1968, it was directed that Assistant Engineers in the Public Works, Irrigation and L.S.G.E. Departments, who came through competitive examination and are working in any of the said Departments, if allocated to any such other department, they would be deemed to have been transferred from one department to the other. In June, 1972, the appellant was promoted to the post of Executive Engineer, PWD. This was only possible by accepting the earlier service in the Irrigation Department, since after the selection through Public Service Commission in the year 1962. Admittedly, this appointment by promotion was not challenged. It is urged, later when the question of the appellant’s appointment to the post of Superintending Engineer came up for consideration, his right was ignored on the same basis, viz. absence of minimum requisite period in the PWD. This issue if at all could have been raised when he was promoted as Executive Engineer in 1972. To raise it now after he being Executive Engineer for twenty-one years is neither justifiable nor valid. It is not in dispute if his service in the Irrigation Department is taken into consideration, he is qualified for being appointed as such. Aggrieved by this the appellant filed his Claim Petition before the U.P. Public Service Tribunal. On 22nd June, 1992 the Tribunal allowed the Claim Petition and directed the respondents to consider posting of the appellant as Superintending Engineer on the basis of the service records as that existed on 1st December, 1962. It also held that the basis of such placement would also be merit list of 1962 issued by the Public Service Commission and thus the appellant would be entitled to other consequential benefits. Accordingly, the Government by order dated 20th February, 1993 fixed his seniority at serial No. 319A. It, however, recorded that this would be subject to the orders of the higher courts where the matter of finalisation of the principles of seniority is still pending. As aforesaid, the decision then came in the case of Gokaran Singh (supra). The High Court in that case with reference to the case of P.D. Aggar
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