AI Drafter 
TaxTMI 
TaxTMI 
1987 (5) TMI 383
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....tions made in the said judgment, within a period of three months and thereafter to take otter consequential steps. 2. The crucial question of controversy in this appeal relates to the determination of seniority between the respondent i.e. petitioners in writ petition who are all appointed as temporary Assistant Engineers in the United Provinces Service of Engineers (Buildings & Roads Branch) and subsequently made permanent therein and the appellants appointed on probation in the permanent posts of Assistant Engineers reserved for toppers of the Thomson College of Civil Engineering later incorporated in Roorkee University and made permanent after expiry of period of probation. The respondent Nos.2 and 3 who passed the final Civil Engineering Examination of Thomson Colleges, Roorkee in 1946 were appointed as temporary and officiating Assistant Engineers by the Chief Engineer subject to final approval of the Government vide CE-P/W/D/ CM. N:O.2736-E/8E-1947 dated 2-6-1947. The provisional appointment as temporary Assistant Engineers was approved by the Government vide G.O. NO. 89-EBR/2-1947 dated 20-2-1948. Thereafter on the advice of the Public Service Commission the Government con....
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.... the orders for inter se seniority exclusively of petitioners Nos. 1: to 12 vis-a-vis 39 others including opposite parties Nos. 8 to 13 who were all confirmed as permanent Assistant Engineers, were issued by the Government. 4. Rule 6 of the said Rules i.e. United Provinces Service of Engineers (Buildings and Road Branch), Class II Rules, 1936 empowers the Government to decide in each case the source from which the vacancy in the cadre has to be filled up. Under these powers the Government by G.O. dated 31.8.1942 provided that with effect from 1942-43, two vacancies in the Provincial Service of Engineers shall be reserved for the two students of Thomson College of Civil Engineering, Roorkee who passed out highest in the order of merit in the final examination of the Civil Engineering. This quota was increased by G.O. dated 1.7.1944 from two to four posts each year (two for the P.W.D. (Building and Roads Branch) and two for the irrigation Branch). This reservation was also guaranteed each year to the top students. The Government however by G.O. dated 22.6.1950 abolished the system of guaranteed posts with effect from the batch which was to enter the civil engineering class of the ....
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....ltation with the Public Service Commission. The Government by Gazette Notification No. 2205-EBR/XXIII - PWD - 16EB - 53 dated 11.10.1955 confirmed the appointment of the opposite parties Nos. 3 to 5 and 7 in the permanent post of Assistant Engineers with effect from April 1, 1955. By Office Memorandum No. 1933 EBR/XXIII-PWD/55 dated 20.7.1956, the Government fixed the inter-se seniority of opposite parties Nos. 2 to 7 alongwith 18 other officers who were confirmed as Assistant Engineers. 6. Aggrieved by the order of confirmation of the respondents Nos. 2 to 7, the petitioner No. 4 made representation to the Government for re-determination of the confirmation as well as consequential determination of seniority of the petitioner vis-a-vis the respondents. This representation was made on 15.7.1959 and a reminder was also given on 9.8.1960. Similarly, petitioner Nos. 6, 7 and 11 also made representations on 19.8.1959, 5.8.1959 and 23.7.1959 respectively. The petitioner No. 6 gave reminder in June 1965 and April, 1970. The petitioner No. 7 also sent reminders on 2.3.1960 and 3.7.1960. The petitioner No. 1 also sent a representation on 12.9.1963. As no steps were taken to consider the....
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....e rejection of the writ petition on the ground of delay and observations were made for consideration of those representations by the opposite party No. 1, i.e. the Government instead of considering and disposing of the said representations in accordance with law dismissed the same merely on the ground of delay and laches. 9. Before proceeding to consider the merits of the controversy raised in this case, it is pertinent to refer to the relevant rules i.e. United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936 which regulate the appointment and conditions of service of United Provinces Service of Engineers (Buildings and Roads Branch). The relevant Rules are quoted herein below: Rule 3(b) "Member of the Service" means a Government servant appointed in a substantive capacity, under the provision of these rules or of rules in force previous to the introduction of these rules, to a post in the cadre of the service. Rule 4 The sanctioned strength of the cadre is 24 assistant engineers, provided that subject to the provisions of rule 40 of the Civil Services (Classification, Control and Appeal) Rules, 1930, the Government may ....
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.... Government may extend the period of probation fixed in any case. At any time during the probationary period the Government may dispense with the services of an officer at one month's notice. Rule 19 (i) A probationer shall be confirmed in his appointment when: (a) he has completed the prescribed period of probation; (b) he has passed all the tests prescribed in the last preceding rule; and (c) the Government are satisfied that he is fit for confirmation. (ii) All confirmations under the rule shall be notified in the United Provinces Gazette. Rule 23 Seniority in the service shall be determined according to the date of the order of appointment to it, provided that if the order of appointment of two or more candidates bears the same date, their seniority inter-se shall be determined according to the order in which their appointment has been notified. 10. Two preliminary objections were raised on behalf of the petitioners about the maintainability of the writ petition before the High Court. The first objection was regarding the delay in making the application challenging the determination of seniority of the petitioners vis....
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.... opposite parties because of lapse of time. 12. It is a well established principle that where there are no specific rules for determination of seniority in service the length of continuous service is the yardstick for determining the seniority of the members of service. The vital question that required to be considered in this appeal is what is the yardstick or standard or norm for determination of seniority of the respondents who have been appointed as temporary or officiating Assistant Engineers against temporary posts of United Provinces Service of Engineers (Buildings and Roads Branch) Class II, as well as the toppers from Thomson College of Civil Engineering who were directly appointed sometime in 1950 and 1951 on probation against reserved temporary posts and confirmed immediately after the expiry of the period of probation against permanent posts before the confirmation of the temporary Assistant Engineers recruited from the Thomson College of Engineering sometime between 1948 to 1950. To decide this question it is very relevant to consider the Service Rules as in the instant case there are admittedly the Service Rules namely United Provinces Service' of Engineers (Bu....
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....ed their retention in training for one more year. Rule 17 provides that all persons appointed to the service who are already in the permanent employment of Building and Roads Branch of the United Provinces Government shall be placed on probation for four year provided that such of them as have undergone training as engineer students, or have served as temporary engineer in the Buildings and Road Branch of United Provinces Government, may be permitted to count the period of such training and service respectively towards the period of probation. Rule 19 deals with confirmation of a probationer when the requirements provided therein have been fulfilled or completed namely the completion of the prescribed probation period, the passing of all the tests prescribed in Rule 18 and the Government is satisfied that the probationer is fit for confirmation. It has also been provided therein that all confirmations under the Rules shall be notified in the United Provinces Gazette. 13. The petitioners in the writ petition who are respondents in this appeal were initially appointed as temporary Assistant Engineers subject to the final approval of the Government by the Chief Engineer, P.W.D. bet....
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....ts on probation and are confirmed after the successful completion of the probation period and on passing of the requisite tests and after their confirmation is notified by the Government in the United Provinces Gazette. Relying on these contentions it has been urged that the services of the respondent Nos. 1 to 12 were confirmed and duly notified in the Gazette in 1961 and accordingly by office memo dated May 29, 1961 their inter-se seniority was fixed. As they were confirmed much later than the appellants so their seniority was fixed below that of the appellants. 15. It was, on the other hand, urged on behalf of the respondents who passed civil engineering examination from Thomson College of Engineering between 1947 and 1948 that the appellants did not enter into the Thomson College of Engineering when they were appointed as officiating temporary Assistant Engineers subject to final approval of the Government by the Chief Engineer, P.W.D. between 1947 and 1948. Thereafter the Government duly sanctioned their appointment by order made between 1948 and 1949, subject to the final approval of the United Provinces Public Service Commission. These provisional appointments were ultima....
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....h the argument that unless and until the respondents are appointed on probation against permanent posts and unless they are confirmed they cannot be treated as members of the service is wholly untenable. One can be a member of service if he is appointed in a substantive capacity as distinguished from a fortuitous appointment or an appointment for a fixed tenure or on a purely temporary basis against a temporary post of Assistant Engineer in the cadre. This Court in the case of Parshotam Lal Dhingra v. Union of India 1958 S.C.R. 828 at 842, has held that an appointment to a temporary post in Government service may be substantive or on probation or on an officiating basis. Similar observation has been made by this Court in the case of Baleshwar Dass and Ors. v. State of U.P. and Ors. (1981)ILLJ140SC wherein this very rule came to be " considered in the case of a similar dispute regarding the seniority amongst the engineers in the Irrigation Department of the Uttar Pradesh Government. It has been observed as follows: It is not correct to say that when Engineers are appointed to temporary posts but after fulfilling all the tests for regular appointment they are not appointed i....
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....that though initially the appointments of these respondents were not appointments in accordance with the Rules as they were appointed not by the Government but by the Chief Engineer, P.W.D. but after approval of their appointments by the Government and also confirmation of their provisional appointments by the Government in consultation with the Public Service Commission and after the respondents had passed all the requisite tests for confirmation, it cannot be questioned that these respondents have not been appointed in a substantive capacity as they were not confirmed by the Government prior to 1961 and their confirmations were not published in the U.P. Gazette. It is pertinent to mention that for an appointment in order to be an appointment in a substantive capacity it is not necessary that the appointment should be made to a permanent post. If the appointment is made to a temporary post of long duration in a department having both permanent and temporary posts of a quasi-permanent nature, there is nothing to distinguish the quality of service as between the two. 18. It is pertinent to refer in this connection the observations of this Court in S.B. Patwardhan and Ors. v. Stat....
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....ject to confirmation. It has also been observed that an official in service even before confirmation in service has a relevancy to seniority if eventually no infirmities in the way of confirmation exist. There is nothing in the scheme of Rules contrary to that principle. Therefore the point from which service is to be counted is the commencement of the service by the Assistant Engineer which might not have been permanent appointment in the beginning and in that sense may still be temporary but for all other purposes has been regularised and is fit to be absorbed into permanent post as and when it is vacant. 21. The decision in the case of A.K. Subraman and Ors. v. Union of India and Ors. (1975)ILLJ338SC which was cited before us is not relevant inasmuch as in that case there was no statutory rule for determination of seniority unlike the instant case where there are specific rules for the determination of seniority. The method of filling up of the post of Executive Engineers Class I was by promotion of Assistant Executive Engineers Class I as well as by promotion on selection by Departmental Promotion Committee of Assistant Engineers in Central Engineering Service Class II accor....
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....lly ignored while determining seniority. It was held that seniority list prepared of Khandsari Inspectors without considering their officiating service prior to confirmation by the Public Service Commission was violative of Article 16 and the list drawn up on this basis must be quashed. In that case there was no specific statutory rule laying down the conditions of service governing the cadre as well as for the determination of seniority of the members of the service. 25. I have already held hereinbefore after due consideration of the said Rules governing the appointment and conditions of service of United Provinces Service of Engineers (Buildings and Roads Branch) Class II that the cadre of the service of Engineers consists of both temporary and permanent posts and as such there can be substantive appointment against a temporary post of the cadre in accordance with the provisions of the Service Rules. Once a Government servant is appointed in a substantive capacity against a temporary post of the cadre after due observance of the requirements as provided in the Rules he will be deemed to be a member of the service in accordance with the provisions of Rule 3(b) and his seniority....
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....he case of N.K. Chauhan and Ors. v. State of Gujarat and Ors. [1977]1SCR1037 is not applicable as the facts of that case are different from the facts of this case. In that case the dispute arose regarding the, claim of the direct recruits to the posts of Deputy Collectors to be declared senior to the appellants who were promotees from Mamlatdars to the post of Deputy Collectors. In the State of Bombay prior to bifurcation the source of recruitment to the post of Deputy Collector was two-fold i.e. (1) by promotion from Mamlatdar and (2) by direct recruitment to the post of Deputy Collector. A resolution was adopted by. the Bombay Government on 30-7-1959 laying down the method of recruitment to the post of Deputy Collectors. It is in the following terms: Appointment to the posts of Deputy Collector shall be made either by nomination or by promotion of suitable Mamlatdars: Provided that the ratio of appointment by nomination and by promotion shall, as far as practicable, be 50 : 50. The question arose whether the direct recruits who were recruited subsequent to the promotees can claim seniority over the promotees as the quota of direct recruits was not fulfilled. ....
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....ota prescribed by the said rule. The question arises whether promotees in excess of quota provided for promotion on the basis of power of relaxation rule can be pushed down as such filling up of the quota by promotion would be illegal and the excess recruits unless they find their place by adjustment in subsequent years in the quota would not be members of the service. It was held that even though the rule prescribed the method of recruitment and quota and if the very rule simultaneously confers power on the government to recruit in relaxation of the rules unless malafide are alleged and attributed such excess recruitments by promotion could not be illegal and the said promotees cannot be pushed down where the rule confers a discretion on the Government to relax rules to meet exigencies of service. Any recruitment made contrary to quota rule would not be invalid unless it is shown that the power of relaxation was exercised malafide. This decision thus followed the observation made in the CHAUHAN'S case referred to earlier. These two decisions, of course, have no application to the instant case in as much as no such question does arise for decision in this case. 27. In the In....
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.... Of course, it had been observed that the seniority in service of these appellants was not questioned in the said writ petition and the Government would consider the representation made by the petitioners of the writ petition (appellants in the instant appeal) as far back as in 1959, which were pending before the Government. The writ petition No. 1080 of 1973 which gave rise to the Civil Appeal was moved in 1973 challenging the determination of seniority of the appellants in the instant appeal. It appears from the affidavit-in-opposition sworn by one of the appellants Shri G.C. Gupta that at the time when the writ petition was moved the appellant Nos. 1 to 4 were officiating as Superintending Engineers and the respondent Nos. 2 and 3 were officiating as Superintending Engineers but junior to all the four appellants and the respondent Nos. 1 and 4 to 12 were then Executive Engineers. At present the appellant Nos. 1, 2 and 3 are permanent Superintending Engineers and officiating as Additional Chief Engineers. The appellant No. 4 is also a permanent Superintending Engineer. At this juncture if the seniority of these appellants vis-a-vis the respondents of this appeal is directed to be....
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....When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 31. In this case the challenge to the seniority of the appellant which was determined by-order dated 20th July, 1956 was made in 1973 i.e. after nearly 17 years and they have sought relief for redetermination of the seniority in accordance with the provisions of the aforesaid service rules. This cannot be permitted as it would amount to unjust deprivation of the rights of the appellant which had accrued to them in the meantime. The observation that 'Every person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years' as made in the above case Rabindra Nath Bose and Ors. v. Union of India and Ors. will be applicable to this case. Considering all these aspects it would be just and proper not to give any relief to the respondents on the ground of inordinate laches and delay in challenging the seniority list mad....