MAJOR YOGENDERA NARAIN YADAV ETC.versusSHRI BINDESHWAR PRASAD AND ORS. ETC.

           MAJOR YOGENDERA NARAIN YADAV ETC.                                      A
                                      v.
           SHRI BINDESHWAR PRASAD AND ORS. ETC.


                           DECEMBER 10, 1996
                                                                                  B
            [K. RAMASWAMY AND G.T. NANAVAT!, JJ.]

      Bihar Engineering Class-I Service Rules, 1939: Rules 17, 24 and 27.

       Service Law-Seniority-Determination of-Government of                       C
 Bihar-Demobilised Militmy Officers-Govemment circular giving benefit of
past service for the purposes of seniority-Appellant a Short Commissioned
 Officer released from Anny-Subsequently selected by Public Service Com-
mission and appointed as Assistant Engineer-His request to place in a
pennanent post available to demobilised Officer with effect from the date 011     D
which he joined the Amzy as Commissioned Officer acceded tcr-Respondents
regularly selected as Assistant Engineers by Public Service Commission and
appointed to temporary posts-Even before entering into service of appellant
respondents became Executive Engineers-But respondents confinned later
than the appellant-In such circumstances High Court held that the appoint-
ment of the appellant as Executive Engineer without considering the claims        E
of the respondents was not correct in /aw-Since the respondents were already
working as on the date when the appellant had entered the service as Execu-
tive Engineers though as temporary Assistant Engineers, their seniority has to
be reckoned from the date of their initial appointment-Thereby they became
senior to the appellant-Appeaf-The view of the High Court that the appel-         F
lant is not entitled to seniority and other benefits is clearly bad in law-But
for the Circular of the Government of Bihar, giving the benefit of past service
as a demobilised militmy officer, obviously the appellant has no right to claim
seniority over them-Though the respondents were senior in temporary posts
or in temporary promotions as Executive Engineers their status remained as        G
tempormy until they were confim1ed-Before their confinnation as Executive
Engineers, the case of the appellant, a senior pennanent Assistant Engineer
was not considered-So that confinnation was bad in /aw-Though for
purposes other than seniority, their tempormy service would be counted, for
the purpose of seniority only confmnation as pennanent Assistant Engineers
would be the criteria.                                                            H
                                     811
    812                  SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.

A       Direct Recmit Class II Engineering Officers' Association v. State of
    Maharashtra & Ors., [1992) 2 SCC 715, held inapplicable.

          State of West Bengal v. Aghore Nath Dey, (1993) 3 SCC 371, referred
    to.

B         Dr. (Capt.) Akhouri Ramesh Chandra Sinha & Ors. v. State of Bihar
    & Ors., (1966) 2 SCC 20, relied on.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1394 of
    1991 etc.

c        From the Judgment and Order dated 17.12.90 of the Patna High
    Court in C.W J.C. No. 3941of1983.

          A. Sh;rrari and AP. Singh for the Appellants.

          B.B. Singh for State.
D
         S.B. Sanyal, Uday Sinha, Pravir Choudhary, Irshad Ahmad, P.D.
    Sharma and K.N. Rai for the Respondents.

          The following Order of the Court was delivered.:
E         Leave granted in the special leave petitions.

         These appeals have a chequered history. But it is not necessary to
  burden the judgment with minute details of the entire history of the case.
  Suffice it to state that Major Yogendra Narain Yadav, the appellant in the
F main appeal, was a Short Commissioned Officer in the Army as Engineer
  and was appointed on April 15, 1963 and was released from the Army on
  October 25, 1970. Pursuant to an advertisement for appointment to a post
  of a temporary Asstt. Engineer made in 1973 he was selected by the Public
  Service Commission and was appointed to that post on July 29, 1974. The
  Government of Bihar had issued Circular dated June 21, 1969 in which it
G was stated· that 30% of the posts of permanent as well as temporary
  Engineers were available to the demobilised Army officers and the date of
  entry into the State service would be the date of their attaining the age of
  eligibility for appointment in the military service or actual date of entry,
  whichever is later. Pursuant thereto, the appellant made a request by a
H memorandum to the Government to consider his case for permanent post
                Y.N. YADAV v. BINDESHWARPRASAD                          813

available to the demobilised officers and appoint him to that post with A
effect from the date on which he joined the Army as Commissioned
Officer. Request was acceded to and an order came to be passed by
proceedings date!l December 6, 1977 giving him the date of his permanent
appointment for the purpose of seniority in terms of the Government
Circular dated June 21, 1969 with effe~ from April 15, 1963. Thus he
                                                                         B
became a permanent Assistant Engineer in Bihar Roads and Buildings
Department, which was formerly known as Public Works Department.

      The question arose : whether he would be senior to the respondents.
After giving him the notional date, he was promoted to the post of
Executive Engineer. It appears that the respondents filed a writ petition in   C
the High Court which is the subject matter of C.A. No. 1394/91. There was
difference of opinion between two learned judges and consequently refer-
ence to third learned Judge was made. It was held per majority that the
appointment of the appellant as Executive Engineer without considering
the claims of the respondents was not correct in law. Pending appeal, this     D
Court had given direction to the Government by order dated April 1, 1991
thus:

       · "The D PC to be constituted and to take the decision as directed
         by the High Court without delay. The decision being taken by the
         D PC it will be implemented subject to the result of the Appeal.      E
         Till the decision is taken by the D PC the appellant will not be
         reverted. 11

       From the record, it is clear that DPC was constituted but his case
was negatived. Consequently, he filed a writ petition in the High Court,       F
viz., CWJC No. 1563/92 which went against the appellant. When SLP
bearing No. 6794/94 was filed, this Court directed that a fresh DPC be
constituted and in furtherance thereof the D PC was constituted and the
claims of all the respective persons were considered. The appellant was
forind eligible for the promotion as Executive Engineer and thereafter as      G
a Superintending Engineer and then as a Chief Engineer and ultimately as
Engineer-in-Chief by proceedings dated May 16, 1994 and he was accord-
ingly promoted. This promotion gave rise to filing of further writ petitions
in the High Court which are the subject matters in other appeals. The High
Court has held that since the respondents were already working as on the
dated when the appellant had entered the service as Executive Engineers        H
    814                   SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A though as temporary Assistant Engineers, their seniority has to be reck-
    oned from the date of their initial appointment. Thereby they became
    senior to the appellant. As a result, he cannot be promoted as against them.
    It appears that pursuant to the directions issued in those writ petitions
    another DPC was constituted and promotions were given to the respon-
    dents. When it was sought to get those promotions stayed and to continue
B   him in his past service, all the ~alters were directed to be posted together.
    Thus all the appeals have come up together.

        Shri A. Sharan, learned counsel appearing for the appellant, with a
  neat presentation of the facts and analysis, contends that once the-appellant
C has become permanent Asst!. Engineer w.e.f. April 15, 1963 and the
  respondents having been, admittedly, recruited as temporary Asst!. En-
  gineers, unless they were appointed substantively to the post of permanent
  Asst!. Engineers, they cannot steal a march over the appellant; as a
  consequence, he became senior to them. He also contends that by proceed-
D ings dated 17.2.1969 the claims of all the persons who were temporarily
  working as Asst!. Engineers were considered; one Janaki Prasad Sinha of
  1964 batch, who was next below him was regularised as permanent Asst!.
  Engineer w.e.f. February 13, 1964 and R.R. Pathak, one of the respondents
  was regularised w.e.f. December 29, 1966 and, admittedly, the other
  respondents were regularised as permanent Asst!. Engineers in the years
E 1973 and 1976 and thereby they are far junior to the appellant in the post
  of Asst!. Engineer. Without considering appellants case, they were con-
  firmed as Executive Engineers in 1985. Rule 17 read with Rule 24 of the
  Bihar Engineering Class-I Service Rules, 1939 (for short the 'Rules')
  provides for the procedure for promotion. Merit and seniority is to be
F considered for promotion to the post as Executive Engineer and merit
  alone without any consideration of seniority, would be considered for the
  post of Supdt. Engineer and Chief Engineer etc. The appellant who had
  reports of excellent record was considered by the DPC on his own merit
  hlld was found to be eligible for promotion as against the respondents.
  Therefore, he was duly promoted. The High Court has not considered the
G case of the appellant in the proper perspective.

        Shri S.B. Sanyal and Shri Uday Sinha, learned senior counsel for the
  respondents, contend that the respondents were regularly selected, though
  to the temporary posts by the BP.SC and subsequently they w;re
H regularised to the permanent posts. Their initial appointments on tern-
                Y.N.YADAV v. BINDESHWARPRASAD                         815

porary posts and subsequent regularisation is a fortuitous circumstance, A
viz., availability of permanent posts; but they having been r~cruited and
selected by the BPSC on regular basis, their appointment to the posts as
permanent Assistant Engineers would date back to their earlier regular
selection. Though they were promoted on temporary basis as Executive
Engineers, they were confirmed thereafter in the post of Executive En-
                                                                             B
gineers and thereby, the respondents are far senior to the appellants in
both the cadres. Even before the appellant's entering into the service they
became Executive Engineers in the posts and thereby the non-considera-
tion of their claims was bad in law. Shri Sanyal placed reliance on Rule 27
of the Rules stating that when the respondents were appointed substantive-
ly to the posts of Executive Engineer, the appellant would not get any C
seniority over the respondents. In support thereof he placed reliance on
the judgments of this Court in Direct Recruit Class II Engineering Officers'
Association v. State of Maharashtra & Ors., [1992] 2 SCC 715 and State of
West Bengal v. Aghore Nath Dey, [1993] 3 SCC 371. Shri Sinha further
contends that the appellant had not worked as an Executive Engineer at D
all and, therefore, he cannot be considered for the post of Supdt. Engineer
straight from the post of Asst!. Engineer and, therefore, the view of the.
High Court is perfectly consistent with the Rules and the law laid down by
this Court.

       In view of the respective contentions, the questic.n that arises for E
consideration is : whether the appellant is senior to the respondents in the
cadre as Asst!. Engineer and notionally, as held by one of the learned
Judges of the High Court, in the post of Executive Engineer for the
purpose of promotion to the post of Supdt. Engineer in the service? It is
seen that Class II Service, namely, Asst!. Engineers shall be recruited - (i) F
by direct recruitment in accordance with the Rules in Part II, or (ii) by the
promotion or transfer of officers already in Government service, per-
manent or temporary, in accordance with the Rules in Part III. Thereby, it
is clear that the posts of Asstt. Engineers in Class II consist of permanent
and temporary Engineers. Admittedly, the permanent and temporary posts
are treated as distinct and separate posts, though in the same cadre. The G
Rules envisage substantive appointment to a post as is evident under Rule
27 of the Rules. Rule 27 reads as under :

        "27. Seniority - Seniority in the service shall be determined by the
        date of the officer's substantive appointment to the Service ir- H
    816                  SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A           respective of the pay drawn by him provided that a member of the
            service who holds a superior to an officer who holds an inferior
            post substantively. The seniority of officers appointed on the same
            date shall be determined according to the order of merit in which
            they were placed at the time. of their selection for appointment."

B          It would thus be clear that the appointment to a temporary post,
    though in the cadre, is not a substantive appointment as contemplated by
    the Rule. Substantive appointment to the permanent post gives right to a
    substantive status in the post on permanent basis. It is seen that the
    Government had issued the orders, obviously for that reason, on February
C   17, 1969 and Janaki Prasad Sinha, who was recruited and was last among
    the selectees of 1964 was given confirmation from February 13, 1964; R.R.
    Pathak was given confirmation w.eJ. December 29, 1966..Thus they became
    the members of the service in a substantive capacity with respect to the
    above dates. It is also not in dispute that other respondents also were
D   confirmed in the year 1973 on permanent posts. Though Major Yadav was
    recruited in 1973 and was appointed in 1974, by virtue of Government
    circular, his seniority dated back to April 15, 1963 as permanent Asstt.
    Engineer. Thus they became far junior to the appellant as permanent 'Asstt.
    Engineers. It is seen that Rule 17 of the Rules prescribes procedure for
    promotion to the post of Executive Engineer with a condition that merit
E   should be the consideration and seniority also may be taken into considera·
    tion. It reads thus :

            "17. · Procedure for recruitment by Promotion. • (a) When the
            Governor has decided that any vacancy or vacancies in the service
F           shall be filled by promotion, the Chief Engineer will nominate for
            promotion officers from the Bihar Engineer service, Class II. The
            nomination will be made by seniority and merit combined but more
            important will be attached to merit. The officers nominated by the
            Chief Engineer shall be arranged in order of preference and the
            number should ordinarily be 50 per cent in excess of the number
G           of vacancies to be filled."

          Thus due weight is given only to merit and where merit and ability
    are approximately equal, seniority also could be considered. It is also not
    in dispute that the appellant being senior to the respondents by more than
H   10 years the question is : whether he could be considered for promotion
                 Y.N. YADAV v. BINDFSHWARPRASAD                           817

as Executive Engineer? It is not in dispute that the appellant while in the A
Army, was a Oass I officer and had held three ranks, namely, U. Colone~
Captain and Major. All the three posts were Class I posts equivalent to
Executive Engineer Class I post. It is also not in dispute that one of the
learned Judges, in the circumstances, and in our view quite rightly, has
given direction to consider him notionally as if he is eligible to be con-       B
sidered as an Executive Engineer for promotion to the post of Supdt.
Engineer. It is also not in dispute that throughout his career he earned
'excellent" confidential reports. Merit under Rule 17 alone is the considera-
tion for promotion as Supdt. Engineer and upwards. Under these cir-
cumstances, the DPC has considered, as per the directions referred to
earlier, the relative merits of all the persons and considered the appellant     C
more meritorious and accordingly directed the Government to give promo-
tion to him and in furtherance thereof promotion was given. In the same
proceedings further consideration was made for promotion to the post of
Supdt. Engineer, Chief Engineer and Engineer-in-Chief. Rule 24 of the
Rules speaks that promotion· to the post of Supdt. Engineer and the Chief        D
Engineer 'shall be made by selection and seniority alone shall confer no
claim''. Thus it could be seen that promotion should be only on merit. The
appellant having been found more meritorious than others, obviously the
DPC had considered and directed him to be promoted as Supdt. Engineer,
Chief Engineer and .thereafter as Engineer-in-Chief. Thus, his promotion
to the above posts is consistent with the Rules and according to law.            E

      It is true that the respondents entered into service much earlier to
the entry into the service by the appellant. That is obvious. But the question
is : whether the respondents who entered service later than the appellant
can deny him the seniority? But for the Circular of the Government of            F
Bihar, giving the benefit of past service as a demobilised military officer,
obviously the appellant has no right to claim seniority over them. The
Government order giving such a benefit to the ex-servicemen, when chal-
lenged, was upheld and thereafter it was not challenged in this Court. It
cannot be challenged since in several cases the policy has been upheld by        G
this court for the reason that the persons like the appellant rendered
service to the country at the time when their service was needed by the
nation to defend it from foreign aggression. Further though the appellant
was initially appointed to a temporary post, admittedly, permanent post
was· available to the demobilised officers as Asst!. Engineer. His repre-
sentation to consider his case for fitment into the permanent post was           H
    818                  SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A   acceded to and the Government had passed that order and that order also
    had become final. Thus the appellant became senior to the respondents as
    permanent Asst!. Engineer much earlier to the respondents'.

          The ratio in Direct Recrnit Class II Engineers' case (supra) has no
B application to the facts in this case. Therein para 13 and proposition A and
    B in paragraph 47 have to be read in the light of the facts therein. Though
    the respondents were regularly recruited as temporary Asst!. Engineer in
    accordance with the Rules, until they became members of the service in a
    substantive capacity, they had not become members of Class II service. As
    seen they became members of Class II service in 1966, 1973 and onwards.
C   Under those circumstances, though they were appointed on regular basis
    by selection by the Public Service Commission, they cannot steal a march
    over the appellant to claim seniority. Rule 27 amplifies the legal position.
    In this regard, this Court has considered a case similarly arising under the
    medical services of the State of Bihar in Dr. (Capt.) Akhouri Ramesh
D   Chandra Sinha & Ors. v. State of Bihar & Ors., [1966) 2 SCC 20. Therein
    also, the appellant was a demobilised Army offil;er and he claimed seniority
    pursuant to the above circular of the Government. When the inter-se
    seniority was to be considered, it was stated in para 3 thus :

            "As a consequence of the above circular, on appointment to the
E           post and on completion of the probation for a period of two years,
            the. candidate would be confirmed in the cadre as Civil Assistant
            Surgeon in the Bihar State Medical Service. It is settled law that
            on completion of the satisfactory probation, his confirmation would
            date back to his initial appointment. Admittedly, he was regularly
            appointed on 6.9.1966. Consequently, he was regularly appointed
F
            as Civil Assistant Surgeon w.e.f. 6.9.1966.'

           Thus it was held that the seniority would be from the date of the
    entry into the service on a substantive appointment. Though the respon·
    dents were senior in temporary posts or in temporary promotions as
G   Executive Engineers their status remained as temporary until they were
    confirmed. Before their confirmation as Executive Engineers, the case of
    the appellant, a senior permanent Asst!. Engineer was not considered. So
    that confirmation was bad in law. Though for purposes other than seniority,
    their temporary service would be counted for the purpose of seniority only
H   confirmation as permanent Asst!. Engineers would be the criteria. The
                 Y.N.YADAV v. BINDESHWARPRASAD                             819

ratio in the above case applies to the facts in this case. Though the             A
respondents are entitled to other benefits by virtue of their temporary
appointment, for the purpose of inter se seniority their seniority would be
considered from the date of entry into the service as permanent Asstt.
Engineers. Since they entered into service much later to the appellant, they
cannot claim any seniority over the appellant. Thus considered, we hold           B
that the view of the High Court that the appellant is not entitled to seniority
and other benefits is clearly bad in law.

      It is contended by Shri Sinha that his client has already retired from
service and pursuant to the directions, though now upset, by this Court, he
was considered and promoted and, therefore, whatever benefits that were           C
given to him may be retained. We cannot give any direction as contended
for. They were subject to the result of these appeals. However, it would be
open to his client to make a representation and it is for the Government
to consider and decide accordingly.

      The appeals are accordingly allowed. All the writ petitions filed by D
the respondents stand dismissed. Np. cos.ts.

T..N.A.                                                     Appeals allowed.