Important Point
Where promotion is made on adhoc basis within quota of promotees according to rules, on confirmation subsequently for purpose of determination of seniority the period of his officiation has to be counted.

Headnote:Service Law-Seniority-Promotees vis-a-vis Direct recruits-Appellants promoted to post of Assistant Engineers on adhoc basis on 30-5-1979-Promotions within quota of posts reserved for promotees according to service Rules by departmental promotion Committee-Respondents was selected through Public Service Commission and appointed directly as Assistant Engineers on 9.8.1979 - Appellants were approved and selected by Public Service Commission in 1984 and confirmed as Assistant Editors -Seniority list prepared counting period of continuous officiating period of promotees from date of adhoc appointment - Direct recruits-respondents’ plea that officiating period of promotees cannot be counted for purpose of seniority -High Court accepting plea-Whether correct? - No - Seniority list in accordance with rules-[Uttar Pradesh Services of Engineers (Buildings and Roads Branch) Class-II Rules, 1936 as amended in 1969 and 1971].
       Held : Rule 5 provides that recruitment to the post of Assistant Engineer shall be made by direct recruitment as well as promotion. Rule 6 says that the Governor shall decide the number of appointments to be made at each selection in each kind of post from the sources mentioned in Rule 5. The provisos to the rule specify the proportion from each source. According to the provisos twenty five percent of the vacancies shall be filled by promotion of members of the P.W.D. Subordinate Engineering Service and P.W.D. Computors’ Service. As per Rule 12, recruitment by promotion shall be made by selection on merit. The Secretary shall consider the cases of all eligible candidates and draw up, in order of merit a list of candidates considered suitable for promotion. A supplementary list of candidates whom the Secretary considers suitable for officiating or temporary appointments shall also be drawn and both lists should be sent to the Commission along with Character Rolls, etc. The Commission after examining the rolls may add to the lists as they may like and return them to the Government. Thereafter the candidates will be interviewed by a Selection Committee presided over by a representative of the Commission. The Committee shall thereafter prepare two lists and place them before the Commission. The Commission shall make their final recommendations to the Government. Appointments will be made on the basis of such recommendations. Rule 23 provides for seniority. (Para 11)
       From the Rules applicable to the parties, the following position emerges:
        (a) The number of vacancies for each year has to be determined.
        (b) They have to be filled from the sources mentioned in the rules in the proportion specified.
        (c) Selection of candidates from each source to be made in the prescribed manner.
        (d) In the case of promotions from Subordinate Engineering Service, 25 per cent of the vacancies are reserved for them.
        (e) Such of the candidates who are recommended by the Commission after following the prescribed procedure will be appointed to fill up the vacancies for the specified year.
        (f) If anybody is appointed with effect from a back date, that date will be deemed to be the date of substantive appointment.
        (g) Seniority of such person has to be counted from that date whether he was working on that post on officiating or ad hoc basis.
        (h) It follows as a Corollary that any person appointed subsequent to the said date will be junior to him.
       Bearing the above principles in mind, the facts of the case may be analysed. Undisputedly, the appellants possessed the requisite qualifications for the post of Assistant Engineer. Their promotions were within the quota prescribed for them as there were sufficient number of vacancies reserved for promotees. They were selected by the Departmental Promotion Committee even for their ad hoc promotion. They were recommended by the Commission after some years but with reference to 1979. After such recommendation, their promotions were confirmed with effect from 30.5.1979. The impugned seniority list was prepared on that basis after the issue of directions by the High Court in D.N. Saksena and V.K. Yadav. It goes without saying that the said seniority list is in accordance with the Rules and cannot be disturbed. But unfortunately the High Court has upset that list on the ground that it violates the rule in ‘P.D. Aggarwal.’ (Paras 12 & 13)
       In Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Ors. (1990) 2 SCC 715, the Constitution Bench held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The Bench summed up the law in the form of eleven propositions. It is sufficient to refer to the first two propositions which are in the following terms:
        “(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
        The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
        (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.” (Para 18)
       We have no hesitation to hold that the impugned seniority list of 1995 prepared by the Govt. pursuant to the directions contained in D.N. Saksena & V.K. Yadav is n accordance with the Rules and cannot be interfered with on the ground that promotees have been given the benefit of their service in officiating capacity. The question is answered in favour of the appellants. As stated already, individual grievances against their placement in the list have to be agitated in appropriate forum. The judgment of the High Court is unsustainable and it is set aside. (Para 26)

Judgment

Srinivasan, J.-The first appellant was appointed as an Overseer (re-designated as Junior Engineer) on adhoc basis in Public Works Department (for short P.W.D.), State of Uttar Pradesh on 17.7.1970 and was approved by the Public Service Commission, U.P. (for shor the Commission) on 30.6.1973. The second appellant was directly appointed as overseer substantively in the said department through the Commission on the same day. Both the appellants were holders of Diploma in Civil Engineering. In May, 1978 they passed an examination known as Associate Member of Institution of Engineer (India), Section A and B, equivalent to B.E. Degree. On 30.5.1979 the appellants were promoted to the post of Assistant Engineers on adhoc basis. The said promotions were made within the quota of posts reserved for the promotees according to the relevant Service Rules by the Departmental Promotion Committee consisting of Secretary, P.W.D., Chief Engineer, P.W.D. and Chief Engineer Irrigation Department. The appointment orders stated that the promotion was being made to cope up with the work load in the Department since Assistant Engineers approved by the Commission were not available and that the promotions were only for a period of one year. Since then, the appellants have been working uninterruptedly on the post of Assistant Engineers.

2. Respondents 3 and 4 were selected through the Commission and appointed directly as Assistant Engineers in the P.W.D. by order dated 9.8.1979. The Commission held in the year 1980, an interview of some of the promotees to be considered for the post of Assistant Engineers. The appellants have a grievance that though their juniors were called for interview, they were not considered without any reason therefor. However that grievance is outside the scope of the present controversy. In the interview held in the year 1984, the appellants were also called and they were duly approved and selected by the Commission. Consequently, they were confirmed as Assistant Engineers.

3. In the meanwhile, one D.N. Saksena, who was an adhoc promotee as Assistant Engineer in the year 1970 just like the appellants and approved by the Commission in the year 1980, filed a Writ Petition in the High Court namely W.P. No. 1536 of 1981, claiming seniority in the post of Assistant Engineer from the date of initial appointment and officiation on the said post. That Writ Petition was treated to be one in representative capacity and notice was given to all concerned through the newspapers. A Division Bench of the High Court upheld on 4.7.1989 the claim made by the petitioner in the said Writ Petition and held that the promotees should be assigned seniority from the date of continuous officiation and not from the date of approval by the Commission.

4. A similar controversy inter-se the promotees and direct recruits arose in another Writ Petition No. 8966 of 1989 which was decided on 17.1.1990. There also the same view was taken by another Division Bench which was challenged in S.L.P. (C) No. 4878 of 1990, V.K. Yadav v. State of U.P. in this Court. The S.L.P. was dismissed on 19.11.1990.

5. The judgment in the case of Saksena referred to earlier was assailed in this Court in S.L.P. (C) No. 9343 of 1990, C.P. Sharma v. State of U.P. & Ors. The appellant therein placed reliance on the judgment of this Court in P.D. Aggarwal v. State of U.P. & Ors.1. By judgment dated 1.2.1991, the S.L.P. was dismissed by this Court.

6. Pursuant to the aforesaid judgments the State Government gave benefit of seniority to the promotees. A seniority list was published, vide letter dated 3.12.1984 issued by the Secretary, Government of Uttar Pradesh inviting objections against the same. After considering the objections filed by the direct recruits, a final seniority list was prepared and published, vide Notification dated 11.7.1995. The first appellant was placed at Serial No. 566 and second appellant at Serial No. 567. Respondents 3 and 4 were placed at Serial No

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1998 Supreme(SC) 1080

Important PointWhere promotion is made on adhoc basis within quota of promotees according to rules, on confirmation subsequently for purpose of determination of seniority the period of his officiation has to be counted.

Cases Referred (14)

Important Point
Where promotion is made on adhoc basis within quota of promotees according to rules, on confirmation subsequently for purpose of determination of seniority the period of his officiation has to be counted.