2003 Supreme(SC) 1181

2003(8) Supreme 308
SUPREME COURT OF INDIA
(From Patna High Court)
V.N. Khare, CJI., S.B. Sinha, J.
Pramod K. Pankaj -Appellant
versus
State of Bihar & Ors. -Respondents
Civil Appeal Nos. 62-65 of 1999
With
Civil Appeal No. 66 of 1999
Decided on 20-11-2003
Counsel for the Parties :
For the Appearing Parties : Vikas Singh, Rahul Ray, Umesh K. Khaitan, Prakash Shrivastava, Akhilesh Kumar Pandey, Manan K. Mishra, Ashok K. Pandey, Ms. Sangeeta Kumar, Navin Prakash, Anurag Sharma, B.B. Singh, Kumar Rajesh Singh, K.K. Gupta, Anil K. Chopra, R.P. Wadhwani, Advocates.

IMPORTANT POINT
In absence of any statutory rule governing the field the criteria for promotion should be construed upon applying the principle of literal meaning as also continuous officiation in the lower post.

Headnote:SERVICE LAW-Seniority-Inter-se seniority between two groups of employees-Appellant and respondents were appointed in Bihar Subordinate Engineering Service Cadre as Junior Engineers-For appointment to rank of Assistant Engineer, by resolution dated 17.1.1979, only promotional avenue was left for Junior Engineers who had acquired degree in Engineering or passed equivalent examination during their service to the extent of 3 -Said employees were further required to complete a minimum period of five years in service in cadre of Junior Engineers-Personnel Department of State of Bihar did not lay down any procedure for determination of inter se seniority of such Assistant Engineers who were promoted in 3 quota-Seniority list prepared by Water Resources Department by order dated 22.12.1992-Gradation list dated 10.9.1992 issued in terms of this circular letter dated 22.12.1992, challenged as illegal-Whether Water Resources Department was competent to lay down purported qualification as stated in its order dated 10.9.1992-(No)-Personnel Department alone was delegated with power to lay down criteria for determining inter se seniority -Constitution of India-Article 162.

       Held : The policy decision of the State as contained in the resolution of the State Government dated 17.1.1979 is not in question. It is accepted that the said resolution was adopted in the special situation that 20 quota which was earlier reserved for graduate engineers was abolished, as a result whereof they suffered immense prejudice. Clause Cha of the said circular states that the promotion on the vacant posts of Assistant Engineer under the quota mentioned in clause Ka i.e. 3 would be made on the basis of seniority. In absence of any statutory provision or rules made thereunder or under the proviso appended to Article 309 of the Constitution of India, it is trite, that once an incumbent is appointed to a post according to rules his seniority has to be counted from the date of his appointment. (Para 12)

       The aforementioned Resolution dated 17.1.1979 was introduced as a special measure. The promotion of the holders of the post of Junior Engineers to the post of Assistant Engineer was not to be done on selection basis. No written examination was to be held nor any oral interview was to be taken. No criteria whatsoever was laid down for selecting the candidates. For the purpose of granting promotion to the post of Assistant Engineer in the aforementioned category, only two conditions which were required to be fulfilled on the relevant date are : (a) the employee must be holder of a degree or must have passed an equivalent examination; (b) he must have completed five years of service in the post of Junior Engineer. A plain reading of the aforementioned resolution dated 17.1.1979 would clearly go to show that no further requirement was prescribed therefor. Clause Cha of the said resolution merely stated that with regard to inter se seniority of these Junior Engineers, the decision be taken after obtaining opinion from the Personnel Department. In the aforementioned premise, it was obligatory on the part of the Personnel Department itself to take a firm decision laying down the criteria for fixation of inter se seniority in absence of any statute or rules having the force of law. Admittedly, the Personnel Department did not issue any such order. The said resolution dated 17.1.1979 was an executive order passed by the State of Bihar in terms of Article 162 of the Constitution of India. By reasons of the said policy decision, the Personnel Department alone was delegated with the power to lay down the criteria for determining the inter se seniority. The Personnel Department neither in fact delegated the said power to the Water Resources Department nor in law could do the same. The purported order dated 22.12.1992 issued by the Water Resources Department was, therefore, illegal having been rendered by an authority which had no jurisdiction therefor. (Paras 13 to 15)

       The proposition of law, therefore, which emerges from the aforementioned discussions is that in absence of any statutory rule governing the field the criteria for promotion should be construed upon applying the principle of literal meaning as also continuous officiation in the lower post. (Para 28)