TaxTMI 
TaxTMI 
2013 (7) TMI 1231
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....ence order is reported as P. Sudhakar Rao v. U. Govinda Rao (2007) 12 SCC 148. Whether the decision given in Devi Prasad v. Govt. of A.P. [1980 (Supp) SCC 206] and State of A.P. v. K.S. Muralidhar [(1992) 2 SCC 241] laid down the correct law or the decision given in G.S. Venkat Reddy v. Govt. of A.P. [1993 Supp (3) SCC 425], K. Narayanan v. State of Karnataka [1994 Supp (1) SCC 44] and State of Gujarat v. C.G. Desai [(1974) 1 SCC 188] laid down the correct proposition of law? 3. It appears to us that this question ought not to be answered in the narrow confines in which it is framed, nor should it be answered on the basis of the limited submission noted in the reference order relating to "the validity of the rule by which retrospective seniority benefit was given to the Junior Engineers by G.O. Ms No. 54 Irrigation (Service IV-2) dated 15.2.1983." The question has larger implications and we propose to answer it keeping the broad canvas in mind. We also propose, in this light, to answer the question on merits of these appeals, namely, whether, on appointment as a Junior Engineer, weightage of service given to a Supervisor can be taken into account for fixing his seniorit....
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....e post of Junior Engineer in the Andhra Pradesh Engineering Service resulted in its consequent exclusion from the Andhra Pradesh Engineering Subordinate Service. The effect of this was that a separate cadre of Junior Engineers, distinct from erstwhile Junior Engineers/Supervisors was formed. 9. The mode of recruitment for Junior Engineers in the Andhra Pradesh Engineering Service was now by direct recruitment. This meant that despite having an engineering degree, Supervisors were not eligible for appointment as Junior Engineers on transfer. However, the mode of recruitment for the next higher post of Assistant Engineer was by way of direct recruitment, by promotion of a Junior Engineer having not less than 5 years service in the grade and by transfer of a Supervisor having a minimum service of 10 years in the grade. 10. To remedy this situation in the case of Supervisors who had obtained an engineering degree prior to 28.2.1972 the State Government issued G.O. Ms No. 893 dated 15.6.1972 inserting a note being Note 2 under Rule 4 of the Andhra Pradesh Engineering Service Rules. Through this Note, a Supervisor was given a weightage of 50% of service rendered by him on his acqui....
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....s: Perhaps there is force in the submission of Dr. Chitale that the Junior Engineers have to face adversity in the matter of promotions. All that we can do is to emphasise that this being a matter of government policy, the State will receive any representation that may be made for change of policy from the Junior Engineers and consider whether any such change in the policy is justified in the circumstances of the case. In so doing, there is no doubt that the other affected groups will also be heard because administrative fair play is basic to satisfaction of government servants as a class. We say no more nor do we indicate that in our view there is any hardship. We only mean to say that government will remove hardships if by modification of policy it can achieve this result. Undoubtedly, in this process, both sides will have to be heard not as a rule of law but as a part of administrative fair play. 14. As mentioned above, the benefit of weightage was available to only those Supervisors who had obtained an engineering degree-before 28.2.1972. There was no provision relating to those who had obtained a degree post 28.2.1972. 15. Apparently to overcome this anomaly, an....
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....before this Court (through the State Administrative Tribunal) in Muralidhar. This Court dealt with the issue of seniority and concluded as follows: (i) The weightage of four years in respect of upgraded Junior Engineers as provided in G.O. Ms. No. 559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification; (ii) On the basis of that notional date, their inter se seniority has to be fixed; (iii) The regularisation of the degree holders Junior Engineers who passed the SQT by giving retrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the SQT; (iv) The government shall prepare a common seniority list of the degree holders Junior Engineers and the upgraded Junior Engineers on the above lines and that list shall be the basis for all the subsequent promotions. Promotions, if any, already given shall be reviewed and readjusted in accordance with the said seniority list; and (v) The approval of the Public Service Commission in respect of these appointments and thei....
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....al questioning its validity. The Tribunal rendered its decision, which was then challenged in this Court. This Court remanded the matter for fresh consideration by the State Administrative Tribunal which then upheld the validity of the G.O. Ms. Decision of the Tribunal: 20. In its decision regarding retrospective operation given to the G.O. Ms the Tribunal held, relying upon a Constitution Bench decision in B.S. Yadav v. State of Haryana 1980 Supp SCC 524 that retrospective operation could be given to the G.O. Ms and that there was no illegality in this regard. It was further held that the impugned G.O. Ms merely gave statutory recognition to a situation existing through the executive order contained in G.O. Ms No. 559 dated 18.7.1977. 21. The Tribunal also upheld the grant of weightage given to Supervisors who obtained a graduate degree. For arriving at this conclusion, the Tribunal referred to Devi Prasad which had found the benefit of weightage to be neither arbitrary nor unreasonable. A-reference was also made to Muralidhar in this regard. The Tribunal rejected the contention that because the post of Junior Engineer had become a gazetted post in a different cadre, a Su....
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....ers, the High Court drew attention to the averment in one of the cases wherein a chart was drawn of the notional seniority given to Supervisors. This chart is as follows: Sl.No. Name of the Respondent Year of Passing Degree Appointment as Assistant Executive Engineer (Supervisor) by transfer Notional date as Assistant Executive Engineer (Supervisor) 1. Md.Sirajuddin 1986 7.5.1986 6.5.1982 2. B. Seva 1986 6.5.1986 6.5.1982 3. Ms. Zinullabuddin 1986 31.7.1986 31.7.1982 4. G.Uppalaiah V.T. 1987 4.10.1987 19.11.1983 5. Venkateshwarlu 1987 4.10.1987 26.2.1984 6. K. Bhaskar 1988 8.9.1988 2.6.1985 7. P. MaheedarRaj 1988 3.3.1989 30.10.1985 8. A. Gopal 1988 31.3.1989 26.10.1985 26. The High Court noted that: (i) the notional date of seniority of Supervisors was given without any reference to any existing vacancy; (ii) seniority was given to the Supervisors from a date when they did not even possess the qualification to hold the post of Junior Engineer, and (iii) regularly appointed Junior Engineers were being subjected to a loss of seniority at the insta....
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....eightage to be given to their 'pre direct recruitment' services. This Court found no basis-for such an interpretation of the relevant recruitment rules. This Court also found that the directly recruited Deputy Engineers were not discriminated against vis-a-vis promotee Deputy Engineers in this regard since they fell in two distinct groups or classes having a rational basis. Consequently, there was no violation of Article 14 or Article 16 of the Constitution. 33. The following two paragraphs from the judgment of this Court give the essence of the view of this Court: If a person, like any of the Respondents, to avoid the long tortuous wait leaves his position in the "never-ending" queue of temporary/officiating Deputy Engineers etc. looking for promotion, and takes a short cut through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. He cannot, after his direct recruitment claim the benefit of his pre-selection service and thus have the best of both the worlds. It is well-settled that so lo....
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....onflict between Desai and Devi Prasad. Both cases dealt with weightage for eligibility purposes and not with any reference to seniority based on the weightage given. It is true that in Devi Prasad it is mentioned that Desai was distinguishable. However, the distinguishing feature did not relate to the rules - both were statutory - but related to the reasonableness thereof. In Desai the employees took a short cut to the Class II service via direct recruitment and thereby gave up "the advantages and disadvantages that go with the channel of promotion" and accepted "all the handicaps and benefits which attach to the group of direct recruits." This was not so in Devi Prasad where there was functional parity between Junior Engineers and Supervisors and the only real difference between the two categories was the academic superiority of the Junior Engineers. 38. The benefit of G.O. Ms No. 893 dated 15.6.1972 was available to only a limited category of Supervisors, namely those who had obtained an engineering degree prior to 28.2.1972. Consequently, in response to representations made, the Andhra Pradesh Government issued G.O. Ms No. 451 dated 10.6.1976 containing a decision that Superv....
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....ded Junior Engineers on the above lines and that list shall be the basis for all the subsequent promotions. Promotions, if any, already given shall be reviewed and readjusted in accordance with the said seniority list; and (v) The approval of the Public Service Commission in respect of these appointments and their seniority thus fixed need not be sought at this distance of time. 42. Effectively, therefore, this Court not only accepted weightage of service for the benefit of Supervisors for eligibility purposes, but also for purposes of seniority by accepting the concept of a notional date for such a determination. As mentioned above, this Court did not consider the legality of the seniority of Supervisors based on weightage vis-a-vis Junior Engineers. 43. Venkat Reddy was decided on its own peculiar facts and to deal with a specific situation. As mentioned in the beginning of the judgment, the controversy "relates to the determination of seniority between the Appellants who entered service in the various engineering departments of the State initially as Supervisors and who on acquiring a degree in engineering were redesignated Junior Engineers and those graduate Juni....
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....d ad hoc Junior Engineers after subjecting them to a Special Qualifying Test (SQT) conducted by the Public Service Commission. 47. Some temporary and ad hoc Junior Engineers were ineligible to take the SQT while others were eligible and they did take the test but did not qualify. It was to accommodate these Junior Engineers (and others similarly placed) that G.O. Ms No. 647 dated 14.9.1979 was issued and it is under these atypical circumstances that Venkat Reddy was decided and the expression relating to -regularization "from the next date following the date on which the last regular appointment in that category was made" occurring in the said G.O. Ms interpreted. Given these facts, this decision does not impact on the question that we are concerned with in these appeals. 48. Narayanan concerned itself with the validity of the Karnataka Public Works Engineering Department Service (Recruitment) (Amendment) Rules, 1985. These were challenged by directly recruited Assistant Engineers, inter alia, for giving retrospective appointment to diploma holders and seniority even prior to the date of their eligibility. More specifically, this Court considered the impact of retrospective o....
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....y of Note (2) and held that it shall be read as providing eligibility only. 51. To sum up, therefore, Desai and Devi Prasad dealt with issues of granting weightage to a section of employees for the purposes of eligibility for appointment or promotion. In principle, this Court did not object to the grant of weightage, provided that it did not violate Article 14 or Article 16 of the Constitution. The principle having been settled by this Court, the validity of a statutory rule or executive order would have to be tested on that touchstone. 52. Muralidhar endorsed Desai and Devi Prasad on the principle relating to the grant of weightage for eligibility purposes. This issue, therefore, is no longer res integra. However, Muralidhar extended the weightage, sub silentio, to the issue of seniority as well without examining the legality or validity thereof. The issue of weightage for seniority was not specifically raised before this Court and it also appears, as mentioned above, that this Court wanted to bring a quietus to litigation pending for about two decades on the issue. That the expectation of this Court was belied is clear from the fact that another two decades have gone by and....
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....h retrospective effect so as to adversely affect others. Seniority amongst members of the same grade must be counted from the date of their initial entry into the grade. It was held: In the instant case, the promotee Respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when Respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over Respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law Respondents 6 to 23 cannot be made senior to Respondents 1 to 5 by the impugned government orders as they en....
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.... where it was said: Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the Respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the Appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4 SCC 456]. 61. More recently, and finally, in Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267 all relevant precedents on the subject were considered, including the Constitution Bench decision in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra (1990) 2 SCC 715 and the legal position summarized (by Lodha, J.) as follows: (i) The effective date of selection has to be understood in the context of the service rules under which the appoin....
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....C p. 599, paras 80-81) Point 4 Direct recruits cannot claim appointment from the date of vacancy in quota before their selection 80. We have next to refer to one other contention raised by the Respondent direct recruits. They claimed that the direct recruitment appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota. 81. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat [(1977) 1 SCC 308], Kr....