Holding

Retrospective seniority for Supervisors is unconstitutional; weightage of service may be used only for promotion eligibility, not for granting seniority over existing Junior Engineers.

Summary

The case concerned whether Supervisors in the Andhra Pradesh Engineering Service could be granted retrospective seniority when they were appointed as Junior Engineers under G.O.Ms No. 54 dated 15‑02‑1983. The Supreme Court held that while statutory rules may have retrospective effect, such retroactivity must satisfy Articles 14 and 16 of the Constitution and must not prejudice the seniority rights of other employees. Granting seniority to Supervisors from a date when they were not even part of the Junior Engineer cadre, and thereby pushing down the seniority of existing Junior Engineers, was found to be unconstitutional. The Court distinguished weightage of service, which is permissible for determining eligibility for promotion, from seniority, which cannot be back‑dated. Consequently, the retrospective seniority provision was struck down and the appeals by the Supervisors were dismissed.

Issues considered

Can statutory rules confer retrospective seniority on employees without violating Articles 14 and 16 of the Constitution?
Does the weightage of service granted to Supervisors apply to seniority or only to eligibility for promotion?
Is the grant of retrospective seniority to Supervisors from a date when they were not in the Junior Engineer cadre permissible?

Legislation cited

Constitution of Indias. Article 14, s. Article 16

Subjects

service lawseniorityretrospective seniorityweightage of serviceconstitutional lawArticle 14Article 16Andhra Pradesh Engineering Servicepromotion eligibilityequalityadministrative law

Judgment

[2013] 13 S.C.R. 540

A P. SUDHAKAR RAO & ORS.
v.
U. GOVINDA RAO & ORS.
(Civil Appeal Nos 1712-1713 of 2002)
JULY 3, 2013
B
[R.M. LODHA, MADAN B.. LOKUR AND
KURIAN JOSEPH JJ.]

Service Law - Seniority - Weightage of service for
c purposes of seniority - Andhra Pradesh Engineering Service
- Grant of retrospective seniority benefits to Supervisors on
their appointment as Junior Engineers - Challenged - Held:
-
Retrospective operation can be given to statutory rules - But,
retroactivity must still meet the test of Arts. 14 and 16 of the
D Constitution and must not adversely trench upon the
entitlement of seniority of others - Retrospective seniority
cannot be given to an employee from a date wflen he was not
even born in the cadre - So also, seniority cannot be given
with retrospective effect so as to adversely affect others -
Injustice ought not to be done to one set of employees in
E
order to do justice to another set - On facts, grant of
retrospective seniority to Supervisors adversely impacted on
the promotion chances of existing Junior Engineers by
bringing them down in seniority - This was impermissible - ~ ...
To pass the scrutiny of Art.14 of the Constitution, seniority of
F Supervisors to be reckoned only from the date on which they
satisfied all the real and objective procedural requirements
of the Service Rules and the law laid down by Supreme Court
- This did not happen in the present appeals creating a

G
situation of unreasonableness and unfairness - Some of the -.,.. .
Supervisors were given retrospective seniority on the date
when they were not even eligible for appointment as Junior
Engineers - This was impermissible, more particularly when
there was no indication of the vacancy position, that is, whether

H 540
P. SUDHAKAR RAO v. U. GOVINDA RAO 541

---.y
the Supervisors could be adjusted in the grade of Junior A
Engineers from the date on which they were given notional
retrospective seniority - Grant of retrospective seniority to
Supervisors on their appointment as Junior Engineers
violated Art. 14 of the Constitution - Weightage of service
given to the Supervisors could be taken advantage of only B
for the purpose of eligibility for promotion - It could not be
utilized for obtaining retrospective seniority over and above
the existing Junior Engineers - Constitution of India, 1950 -
Arts. 14 and 16.
Service Law - Seniority - Weightage of service for C
purposes ofpromotion and weightage of service for purposes
of seniority in a grade - Distinction between.
Engineers in the State of Andhra Pradesh were
either in the Andhra Pradesh Engineering Subordinate
Service or in the Andhra Pradesh Engineering Service. D
The Andhra Pradesh Engineering Subordinate Service
consisted, inter alia, of Junior Engineers who possessed
a degree in engineering and Supervisors who possessed
a diploma in engineering. A Junior Engineer or a
Supervisor was eligible for appointment by transfer as an E
Assistant Engineer in the Andhra Pradesh Engineering
Service as it existed. This continued to be so till the
Special Rules for the Andhra Pradesh Engineering
Service were promulgated by issuance of G.O.Ms. No.
285 PWD dated 22.2.1967. F
With effect from 22.2.1967, the Andhra Pradesh
Engineering Service consisted of five categories of
officers, the juniormost being Category 5 - Assistant
Engineer. Later, by issuance of G.0.Ms No. 1149 dated
5.11.1973 a sixth category of officers was included, G
namely, Junior Engineer with effect from 28.2.1972. The
inclusion of the 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 H
542 SUPREME COURT REPORTS [2013) 13 S.C.R.

A cadre of Junior Engineers, distinct from erstwhile Junior ~-
Engineers/Supervisors was formed. This meant that
despite having an engineering degree, Supervisors were
not eligible for appointment as Junior Engineers on
transfer. However, the mode of rec~uitment for the next
B 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. To remedy this situation, in the case of
c 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
0
acquiring an engineering degree while in service. The
weightage was available as if the service had been
rendered by the Supervisor in the post of Junior Engineer.
The weightage was, therefore, available for inclusion for
E appointment to - the post of Assistant Engineer.
Apparently to overcome the anomaly that there was
no provision for benefit of weightage relating to those
Supervisors who had obtained an engineering degree
post 28.2.1972, the State Government issued G.O.Ms
F No.451 dated 10.6.1976 containing a decision that
Supervisors who have acquired a graduate qualification
while in service should be appointed temporarily as
Junior Engineers (prospectively) with immediate effect.
This decision was implemented. The implementation of
G G.O.Ms No.451 resulted in consequential orders relating
to weightage of service rendered and the inter se
seniority of Supervisors vis-a-vis Junior Engineers as
issued through G.O.Ms No.559 dated 18.7.1977.
As mentioned in G.O.Ms No. 559 dated 18.7.1977,
H necessary amendments in the Special Rules for the
P. SUDHAKAR RAO v. U. GOVINDA RAO 543

Andhra Pradesh Engineering Service were carried out by A
issuance on 15.2.1983 of the impugned G.O.Ms No. 54
with effect from 28.2.1972. This G.O.Ms (i) had
retrospective operation; (ii) statutorily regularized
recruitment by transfer "of Supervisors of the Andhra
Pradesh Engineering Subord.inate Service who had B
acquired the B.E. or A.M.l.E. (India) qualification and who
were approved probationers in that category." and (iii)
inserted Note -3 below Rule 4 of the Andhra Pradesh
Engineering Service Rules which dealt with issues of
weightage given to the service rendered by a Supervisor c
and his/her entitlement to seniority.
The Tribunal upheld the validity of the impugned
G.O.Ms No. 54 dated 15.2.1983 holding that retrospective
operation could be given to the G.O.Ms and there was no
illegality in this regard; and further that the G.O.Ms merely D
gave statutory recognition to a situation existing through
the executive order contained in G.O.Ms No. 559 dated
18.7.1977. The Junior Engineers then came up before the
High Court. The High Court held that the right of seniority
of the Junior Engineers could not be taken away by E
applying the impugned G.O.Ms retrospectively; and that
weightage of past service can be given to the
Supervisors only from the date of appointment and that
the impugned rule violated Article 14 and 16 of the
Constitution insofar as it took away the vested right of
F
seniority of Junior Engineers vis-a-vis Supervisors.
Hence the present appeals by the Supervisors.
Answering the Reference and dismissing the
appeals, the Court
HELD:1. There is a clear distinction between G
weightage given for years of service rendered by an
employee for purposes of promotion and weightage
given for years of service rendered by an employee for
purposes of seniority in a grade. While the first concerns
eligibility for promotion to a higher post, the other H
544 SUPREME COURT REPORTS [2013] 13 S.C.R.

A concerns seniority for being considered for promotion to
a higher post. [Para 1] [547-E]
P. Sudhakar Rao v. U. Govinda Rao (2007) 12 SCC 148;
Devi Prasad v. Govt. of A.P. [1980 (Supp) SCC 206]; State
of A.P. v. K.S. Mura/idhar [(1992) 2 SCC 241; G.S. Venkat
B Reddy v. Govt. of A.P.[1993 Supp (3) SCC 425]; K.
Narayanan v. State of Kamataka [1994 Supp (1) SCC 44];
StateofGujaratv. C.G. Oesai[(1974) 1SCC188]; B.S. Yadav
v. State of Haryana 1980 Supp SCC 524: 1981 SCR 1024;
U. Govinda Rao v. Government of Andhra Pradesh 2002 (1)
=
C ALO 347 2002 (1) ALT 713; K.C. Arora v. State of Haryana
(1984) 3 SCC 281: 1984 (3) SCR 623; P.O. Agarwal v. State
of U.P. (1987) 3 sec 622: 1987 (3} SCR 427 and K.
•
v.
Subba Rao v. Government of A.P. (1988) 2 SCC 201: 1988
(2) SCR 1118 - referred to.
D 2.1. There is no doubt that retrospective operation
can be given to statutory rules such as the Andhra
Pradesh Engineering Service Rules. But, the retroactivity
must still meet the test of Article 14 and Article 16 of the
Constitution and must not adversely trench upon the
E entitlement of seniority of others. [Para 57] [569-D]
2.2. Retrospective seniority cannot be given to an
employee from a date when he was not even born in the
cadre. So also, seniority cannot be given with
retrospective effect so as to adversely affect others.
F Seniority amongst members of the same grade must be
counted from the date of their initial entry into the grade.
When a quota is provided for, then the seniority of the
employee would be reckoned from the date when the
vacancy arises in his/her quota and not from any anterior
G date of promotion or subsequent date of confirmation.
Injustice ought not to be done to one set of employees
in order to do justice to another set. However, the mere
existence of a vacancy is not enough to enable an
employee to claim seniority. The date· of actual
H appointment in accordance with the required procedure
P. SUDHAKAR RAO v. U. GOVINDA RAO 545

becomes important in such a case. [Paras 58, 59 and 60] A
[569-F; 570-E-F; 571-D]
State of Bihar v. Akhouri Sachindra Nath 1991 Supp (1)
SCC 334: 1991 (2) SCR 410; Keshav Chandra Joshi v.
Union of India 1992 Supp (1) SCC 272: 1990 (2) Suppl.
SCR 573; Uttaranchal Forest Rangers' Assn. (Direct Recruit) B
v. state of U.P. (2006) 10 sec 346: 2006 (6) Suppl. SCR
609; State of Uttaranchal v. Dinesh Kumar Sharma (2007) 1
SCC 683: 2006 (10) Suppl. SCR 1; Nani Sha v. State of
Arunachal Pradesh (2007) 15 SCC 406: 2007 (6) SCR 1027;
Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267; C
2011 (2) SCR 831 and Direct Recruit Class fl Engg. Officers'
Assn. v. State of Maharashtra, (1990) 2 SCC 715:: 1990 (2)
SCR 900 - relied on.
Asis Kumar Samanta v. State of West Bengal (2007) 5
sec 800: 2007 (8) SCR 329 - referred to. D
3.1. The facts of the present appeals show that at
least some of the Supervisors were given retrospective
seniority on the date when they were not even eligible for
appointment as Junior Engineers. This is impermissible.
In addition as pointed out by the High Court, there is no E
indication of the vacancy position, that is, whether the
Supervisors could be adjusted in the grade of Junior
Engineers from the date on which they were given
notional retrospective seniority. There is also no
indication whether the quota of vacancies for F
Supervisors was adhered to as on the date on which they
were given notional retrospective seniority. This is an -
important factor to be considered. Finally, it is quite clear
that the grant of retrospective seniority to Supervisors
has adversely impacted on the promotion chances of G
Junior Engineers by bringing them down in seniority.
This too is impermissible. [Para 63] [574-F-H; 575-A]
3.2. To pass the scrutiny of Article 14 of the
Constitution, the seniority of Supervisors should be
H
546 SUPREME COURT REPORTS [2013] 13 S.C.R.

A reckoned only from the date on which they satisfied all
the real and objective procedural requirements of the
Andhra Pradesh Engineering Service Rules and the law
laid down by this Court. This has not happened in the
present appeals creating a situation of unreasonableness
B and unfairness. [Para 64] [575-B-C]
3.3. There is no occasion for interfering with the view
taken· by the High Court to the effect that the grant of
retrospective seniority to Supervisors on their
appointment as Junior Engineers violates Article 14 of the
C Constitution. The weightage of service given to the
Supervisors can be taken advantage of only for the
purpose of eligibility for promotion to the post of
Assistant Engineer. The weightage cannot be utilized for
obtaining retrospective seniority over and above the
. o existing Junior Engineers. [Para 66] [575-E-F]
Case Law Reference:
c2001) 12 sec 148 referred to Para 2
1980 (Supp) SCC 206] referred to Para 2
E (1992) 2 SCC 241 referred to Para 2
1993 Supp (3) sec 425 referred to Para 2
1994 Supp (1) sec 44 referred to Para 2
(1'974) 1 sec 188] referred to Para 2
F 1981 SCR 1024 referred to Para 20
2002 (1) ALT 713 referred to Para 24
1984 (3) SCR 623 , referred to Para 27
1987 (3) SCR 427 referred to Para 27
G
1988 (2) SCR 1118 referred to Para 27
1991 (2) SCR 410 relied on Para 58
1990 (2) Suppl. SCR 573 relied on Para 59
2006 (6) Suppl. SCR 609 relied on Para 59
H
P. SUDHAKAR RAO v. U. GOVINDA RAO 547

..... ·-f- 2006 (10) Suppl. SCR 1 relied on Para 60 A
2007 (6) SCR 1027 relied on Para 60
2011 (2) SCR 831 relied on Para 61
1990 (2) SCR 900 relied on Para 62
2007 (8) SCR 329 referred to Para 67 B
CIVIL APPELLATE JURISDICTION : Civil Appeal No:
1712-1713 of 2002 .
.... From the Judgment & Order dated 23.11.2001 of the High
Court of Andhra Pradesh at Hyderabad in Writ Petition Nos. c
5922 & 6360 of 1999.
H.S. Gururaja Rao, Koka Raghav Rao, Y. Raja Gopala Rao,
Y. Vismai Rao, Hitendera Nath Rath, G.N. Reddy, Debojit
Bonkakati, J.H. Manohar Rao, Praveen Kumar Pandey, R.S.
Krishnan, Aditya Kumar, D. Mahesh Babu for the appearing D
parties.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. There is a clear distinction
between weightage given for years of service rendered by an
employee for purposes of promotion and weightage given for E
yea{s of service rendered by an employee for purposes of
seniority in a grade. While the first concerns eligibility for
- ~- promotion to a higher post, the other concerns seniority for
being considered for promotion to a higher post.
F
2. To consider the validity of weightage for seniority
purposes and its impact on the seniority of other employees,
the following question has been referred to a larger Bench in
these appeals. The reference order is reported as P. Sudhakar
Rao v. U. Govinda Rao, (2007) 12 SCC 148.
~-t G
"Whether the decision given in Devi Prasad v. Govt. of A.P.
[1980 (Supp) SCC 206]and State ofA.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. ofA.P.
[1993 Supp (3) s·cc 425), K. Narayanan v. State of
H
548 SUPREME COURT REPORTS [2013] 13 S.C.R.

A Karnataka [1994 Supp (1) SCC 44] and State of Gujarat
v. C.G. Desai [(1974) 1 sec 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
B 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
C 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 seniority as a Junior Engineer, thereby
o effectively refixing the seniority with retrospective effect.
Factual background:
4. Initially, the State of Andhra Pradesh had a single
engineering department. This was subsequently. broken-up into.
several departments but we are not concerned with that. What
E we are concerned with is that at all material times, engineers "'
in Andhra Pradesh were either in the.Andhra Pradesh
Engineering Subordinate Service or in the Andhra Pradesh
Engineering Service.
F 5. The Andhra Pradesh Engineering Subordinate Service
consisted, inter alia, of Junior Engineers who possessed a
degree in engineering and Supervisors who possessed a
diploma in engineering. Upon recruitment, both categories of
engineers were placed in the same pay scale but Junior
G Engineers, by virtue of a better academic qualification, had a
higher starting pay while Supervisors were placed in the
minimum of the pay scale. Functionally, both had more or less
similar duties to perform. A Supervisor could, while in service,
obtain an engineering degree and if he did so, he would be
designated as a Junior Engineer and given a higher pay in the
H
P. SUDHAKAR RAO v. U. GOVINDA RAO 549
[MADAN B. LOKUR, J.]
A
•'" 7't- same pay scale .
6. A Junior Engineer or a Supervisor was eligible for
appointment by transfer as an Assistant Engineer in the Andhra
Pradesh Engineering Service as it existed. This continued to
be so till the Special Rules for the Andhra Pradesh Engineering
B
Service were promulgated by issuance of G.O.Ms. No. 285
PWD dated 22.2.1967. -

7. With effect from 22.2.1967 the Andhra Pradesh
.....
Engineering Service consisted of five categories of officers, the
___,.. juniormost being Category 5 - Assistant Engineer. As c
mentioned above, a Junior Engineer or a Supervisor was
eligible for appointment by transfer as an Assistant Engineer
in the Andhra Pradesh Engineering Service. The mode of
recruitment was:
D
(a) By direct recruitment (or)

(b) By recruitment by transfer of

(i) Junior Engineers and Supervisors of the Andhra
• Pradesh Engineering Subordinate Service;
E
. (ii) Draughtsman, Special Grade and Draughtsman

-
Grade-I of the Andhra Pradesh Engineering
>- Subordinate Service.

8. Later, by issuance of G.O.Ms No. 1149 dated F
5.11.1973 a sixth category of officers was included in the
Andhra Pradesh Engineering Service, namely, Junior Engineer
with effect from 28.2.1972. This was declared a gazetted post.
The inclusion of the post of Junior Engineer in the Andhra
-~1' Pradesh Engineering Service resulted in its consequent G
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.
H
550 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B 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
C had obtained an engineering 9egree 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
D by him on his acquiring an engineering degree while in service.
The weightage was subject to a maximum period of 4 years
service rendered prior to acquisition of the degree. The
weightage was available as if the service had been rendered
by the Supervisor in the post of Junior Engineer. The weightage
E was, therefore, available for inclusion for appointment to the
post of Assistant Engineer. However, the weightage was
subject to certain conditions, one of them being that it was
available to only those Supervisors who had obtained a degree
prior to 28.2.1972.
F
11. Note 2 below Rule 4 (as inserted) in the Andhra
Pradesh Engineering Service Rules reads as follows:

"Supervisors who a,cquire, while in service, B.E., A.M.l.E.
(India) qualification shall be entitled to count 50% of their
G service rendered as Supervisor prior to acquisition of such
qualification, subject to a maximum limit of 4 years as if it
had been in the post of Junior Engineers for the purpose
of consideration for appointment by transfer to the post of
Assistant Engineer from Junior Engineer and subject to the
H following conditions:
P. SUDHAKAR RAO v. U. GOVINDA RAO 551
• [MADAN B. LOKUR, J.J
,_ ']<--
(1) They should render a minimum service of one A
year after acquisition of B.E. or A.M.l.E. (India)
qualification:

(2) They should be considered to have been placed
below the list of the Junior Engineers of the year
after giving weightage as indicated above. B

(3) They should put in a total service of 5 years as
Junior Engineer inclusive of the period given as
weightage.

(4) The benefit of weightage given above shall be
c
given effect for the purpose of all selections that are
made by Public Service Commission pertaining to
the years from 2nd January, 1968 onwards till 28th
February, 1972."
D
(Note: Clause (4) was subsequently amended but
we are not concerned with the amendment].

12. The benefit of weightage granted to Supervisors by
G.O.Ms No. 893 dated 15.6.1972 was challenged as being E
arbitrary, unreasonable and violating Article 14 of the
Constitution. This Court rejected the challenge in Devi Prasad
,.__ and held that the benefit of weightage was a matter of
government policy which needed no interference since it was
not unreasonable or arbitrary.
F
13. In what appears to be an oblique reference to loss of
promotional chances that Junior Engineers may have to suffer
due to weightage being given to Supervisors this Court
~ --y- observed as follows:
G
"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 H
552 SUPREME COURT REPORTS [2013] 13 S.C.R.
•
A 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
B 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
c 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
D relating to those who had obtained a degree post 28.2.1972.

15. Apparently to overcome this anomaly, and as a result
of representations made, the State Government issued G.O.Ms
No. 451 dated 10.6.1976 containing a decision that
E Supervisors who have acquired a graduate qualification while
in service should be appointed temporarily as Junior Engineers
(prospectively) with immediate effect. This decision was
implemented.

16. The implementation of G.O.Ms No. 451 resulted in
F consequential orders relating to weightage of service rendered
and the inter se seniority of Supervisors vis-a-vis Junior
Engineers. The consequential orders were issued through
G.0.Ms No. 559 dated 18.7.1977. These orders provided as
follows:
G
"2. Accordingly, matters relating to weightage, seniority,
etc., have been examined by the government and the
following orders are issued:-

(1) Supervisors who acquire graduate qualification
H
P. SUDHAKAR RAO v. U. GOVINDA RAO 553
[MADAN B. LOKUR, J.]
"' -..,,. .. rnay be appointed as Junior Engineers on or after A
February 28, 1972, subject to the availability of
vacancies in the cadre of Junior Engineers.

They will not be entitled for appointment as Junior
Engineers automatically from the date of acquisition B
of degree qualification;

(i1) A Supervisor, who is appointed as Junior Engineer,
shall be entitled to count one-third of the service rendered
* by him as Supervisor, before his appointment as Junior
Engineer, subject to a maximum of four years, for the c
~
purpose of computing the service as Junior Engineer,
which will render him eligible for consideration for
promotion as Assistant Engineer.

(ii1) The seniority of the Supervisors, who are appointed D
as Junior Engineers, shall be fixed with reference to the
notional date arrived at after giving weightage of service;

(iv) A Supervisor, who is appointed as Junior Engineer,
shall put in a minimum service of one year as Junior
Engineer to become eligible for promotion as Assistant E
Engineer;

(v) No Supervisor shall ordinarily be eligible for
- ....-... appointment as Junior Engineer unless he has not in a
minimum service of three years as Supervisors. A F
Supervisor with less than three years of service, who is
appointed as Junior Engineer for any special reason, shall
not be entitled to any weightage for his past service.

3. Necessary amendment to the Special Rules for the
·-* Andhra Pradesh Engineering Service will be issued G
separately ....... "

17. The interpretation of G.O.Ms No. 559 dated 18.7.1977
came up for consideration before this Court (through the State
Administrative Tribunal) in Muralidhar. This Court dealt with the H
554 SUPREME COURT REPORTS [2013) 13 S.C.R.

A 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
8 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
c Engineers who passed the SOT 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;
D
(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
E 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."
F
Impugned G.O.Ms No. 54 dated 15.2.1983:

18. As mentioned in G.O.Ms No. 559 dated 18.7.1977
necessary amendments in the Special Rules for the Andhra
Pradesh Engineering Service were carried out by issuance on
G 15.2.1983 of the impugned G.O.Ms No. 54 with effect from r-,
28.2.1972. This G.O.Ms is significant for three reasons: (i) it
had retrospective operation; (ii) it statutorily regularized
recruitment by transfer "of Supervisors of the Andhra Pradesh
' Engineering Subordinate Service who have acquired the B.E.
H or A.M.l.E. (India) qualification and who are approved
P. SUDHAKAR RAO v. U. GOVINDA RAO 555
[MADAN B. LOKUR, J.]
..,.._
probationers in that category." and (iii) it inserted Note 3 below A
Rule 4 of the Andhra Pradesh Engineering Service Rules. This
Note dealt with issues of weightage given to the service
rendered by a Supervisor and his/her entitlement to seniority.
The Note reads as follows:
B
"(3) A Supervisor who is appointed by transfer as Junior
Engineer on or after 28.2.1972 shall be entitled to count I/
3rd of the service rendered as Supervisor before

* appointment as Junior Engineer subject to a maximum of

- .·~
4 years weightage for the purpose of computing the
service as Junior Engineer, which will render eligible for
consideration for promotion as Assistant Engineer, and
subject to the following conditions:-
c

(i) The seniority of a Supervisor, who is appointed
as Junior Engineer shall be fixed in the category of Junior D
~-
Engineers with reference to the notional date arrived at
after giving weightage of service aforesaid;

(ii) A Supervisor who is appointed as Junior
Engineer shall put in a minimum service of one year on
E
duty as Junior Engineer, after such appointment, and a
total service of five years as Junior Engineer, inclusive of
the period given as weightage to become eligible for
. >:.· promotion as Assistant Engineer;

(iii) No Supervisor shall ordinarily be eligible for F
appointment as Junior Engineer, unless he has put in a
minimum service of three years as Supervisor;

(iv) A Supervisor with less than three years of
-..........
- service, who is appointed as Junior Engineer for any
special reasons, shall not be entitled to any weightage of
his past service as Supervisor." ·
G

19. Aggrieved by the issuance of G.0.Ms No. 54 dated
15.2.1983 petitions were filed by aggrieved Junior Engineers
in the State Administrative Tribunal questioning its validity. The H
556 SUPREME COURT REPORTS [2013) 13 S.C.R.

A 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:
8
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 bf Haryana, 1980 Supp -).:
sec 524 that retrospective operation could be given to the
c 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.

D 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
E
post of Junior Engineer had become a gazetted post in a
different cadre, a Supervisor who subsequently became a
Junior Engineer was not entitled to weightage. It was held that
Supervisors and Junior Engineers continued to R_erform
substantially the same functions and hold the same -"'' ~

F responsibilities. Therefore, the mere gazetting of a post and
change of cadre would not make any material difference to the
principle laid down by this Court.

22. On the issue of impacting and disturbing the seniority
G of directly recruited Junior Engineers by Supervisors, the ........._
Tribunal initially dealt with the issue rather cursorily and held that ~

the seniority would get altered and that there would be a certain
amount of fluidity in the seniority of Junior Engineers but that
was no reason to strike down G.O.Ms. However, later in its
H judgment, the Tribunal explained that weightage was all along
P. SUDHAKAR RAO v. U. GOVINDA RAO 557
[MADAN B. LOKUR, J.]
being given to Supervisors and it is this that caused the fluidity A
in the seniority list of Junior Engineers.

23. The Tribunal then upheld the validity of the impugned
G.O.Ms and disposed of the petitions pending before it by
recording the following observations: B
"(1) The Junior Engineers on acquisition of Degree
qualification in Engineering would be entitled for weightage
"'- . of those appointments are made or deemed to have been
made under the Rules providing for such appointments
and weightage with reference to their dates of appointment c
(not with reference to acquisition of degree qualification)
against a vacancy in the cadre of Junior Engineer.

(2) The Government is advised to consider fixing a
.'
ratio between direct recruits and those appointees by D
~- appointment by transfer to the post of Junior Engineer (now
'
Assistant Executive Engineer) to the post of Assistant
Engineer (now Deputy Executive Engineer)".

Decision of the High Court:
E
24. Feeling aggrieved by the decision rendered by the
Tribunal, Junior Engineers challenged it in the Andhra Pradesh
High Court. However, the petitioners in the High Court did not
challenge the validity of the entire G.O.Ms No. 54 dated
15.2.1983 but contended that "the weightage rule should be F
confined to the eligibility and the same should not be
considered for the purpose of seniority." The decision of the
High Court is reported as U. Govinda Rao v. Government of
=
Andhra Pradesh, 2002 (1) ALO 347 2002 (1) ALT 713 .
.. ~
25. While adverting to the impact of the benefit of G
weightage on the seniority of Junior Engineers, 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:
H
558 SUPREME COURT REPORTS (2013) 13 S.C.R.

A SI. Name of Year of Appointment Notional date
Ne. the passing asAssistant as Assistant
respondent Degree Executive Executive
Engineer Executive
(Supervisor) b) Engineer
.
B transfer (Supervisor)
1. Md.Sirajuddin 1986 7.5.1986 6.5.1982
2. B. Seva 1986 6.5.1986 6.5.1982
3. Ms. 1986 31.7.1986 31.7.1982
c Zinullabuddin
4. G.Uppalaiah 1987 4.10.1987 19.11.1983
V.T.
5. VenkateshwarlL 1987 4.10.1987 26.2.1984
D
6. K. Bhaskar 1988 8.9.1988 2.6.1985
7. P. Maheedar 1988 3.3.1989 30.10.1985
Raj

E 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
F 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 instance of those Supervisors who had been regularized
subsequently.
G
27. The High Court then relied upon B.S. Yadav, K.C.
Arora v. State of Haryana, (1984) 3 SCC 281, P.O. Agarwal
v. State of U.P., (1987) 3 SCC 622 and K. V. Subba Rao v.
Government of A.P., (1988) 2 SCC 201 to conclude that the
H civil right of seniority of the Junior Engineers could not be taken
P. SUDHAKAR RAO v. U. GOVINDA RAO 559
[MADAN B. LOKUR, J.]
... _,_ away by applying the impugned G.O.Ms retrospectively. Relying A
upon Devi Prasad and Muralidhar it was held that weightage
of past service can be given to the Supervisors oniy from the
date of appointment.

28. In conclusion, it was held that the impugned rule violates
Article 14 and 16 of the Constitution in so far as it takes away B
the vested right of seniority of Junior Engineers vis-a-vis
Supervisors.

Discussion on the judgments:
c
29. Feeling aggrieved, Supervisors before the High Court
preferred these appeals. Since the issue of weightage of
service for eligibility purposes was decided in their favour, the
principal grievance (if not the only grievance) raised by them,
as noted by the Bench that earlier heard these appeals is "the
D
.>-- 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." Indeed, before us also, the
only contention related to the issue of striking down the benefit
I
of retrospective seniority given to the Supervisors.
E
30. The question referred to the larger Bench arises in this
context, but as noted above, it has wider implications.
~
~ 31. Desai is the earliest case mentioned in the reference
order and this concerned the [Gujarat] Engineering Service F
Rules, 1960. This case dealt with two classes of employees:
(a) those who had rendered service as officiating or temporary
Deputy Engineers prior to their direct recruitment as Deputy
Engineers, and (b) those promotee Deputy Engineers who had
- ~ rendered service as officiating or temporary Deputy Engineers
prior to their promotion.
G

32. The case of the category (a) employees was that their
'pre direct recruitment' services should be counted as 'eligibility
service' for purposes of their next promotion as Executive
Engineers since the 'pre-promotion' services of category (b) H
560 SUPREME COURT REPORTS [2013) 13 S.C.R.

A was being so counted. In other words, without the word ..Ir ,.__
'weightage' having actually been used, the category (a)
employees wanted some weightage 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
B 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.
c 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" •
D 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
E 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 long as the classification
is reasonable and the persons falling in the same class
are treated alike, there can be no question of violation of
F
the constitutional guarantee of equal treatment.

"As pointed out by this Court in Ganga Ram case
[(1970 1 sec 377] in applying the wide language of
Articles 14 and 16 to concrete cases, doctrinaire approach
G should be avoided and the matter considered in a practical
way. If the claim of the respondents to the counting of their
pre-selection service is conceded, it will create serious
complications in running the administration; it will result in
inequality of treatment rather than in removing it. If the pre-
H selection service as officiating Deputy Engineers of direct
P. SUDHAKAR RAO v. U. GOVINDA RAO 561
[MADAN B. LOKUR, J.]
-..,..__
recruits having such service, is taken into account for the A
purpose of promotion, it would create two classes
amongst, the same group and result in discrimination
against those direct recruits who had no such pre-selection
service to their credit."
B
34. The next decision in line is Devi Prasad which relates
to the Andhra Pradesh Engineering Subordinate Service Rules
and is, therefore, important for our purposes. This decision
:A.-
came to be rendered as a result of the issuance of G.O.Ms.
No. 893 dated 15.6.1972 relating to Supervisors in the Andhra c
Pradesh Engineering Subordinate Service. By the said
G.O.Ms. a note being Note 2 was inserted under Rule 4 of the
Andhra Pradesh Engineering Service Rules.

35. Thereby a Supervisor working as a Junior Engineer
Jo,- was given a weightage of 50% of service rendered by him. This D
was treated as if the said Supervisor/Junior Engineer had
rendered service in the post of Junior Engineer for the purpose
of consideration for appointment to the post of Assistant
Engineer from Junior Engineer. This G.O.Ms was challenged
as being arbitrary, unreasonable and in violation of Article 14 E
of the Constitution.

,~
36. As is evident, the effect of weightage was limited to
eligibility for appointment to the post of Assistant Engineer from
Junior Engineer - it had no reference to seniority. This Court
F
found that there was nothing capricious in the "limited benefit
of weightage" being given to Supervisors. This Court also
concluded that the grant of weightage was a matter of
government policy which needed no interference since it was
- "-1" not unreasonable or arbitrary.
G
37. Considered from this point of view, there is essentially
no conflict 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 H
562 SUPREME COURT REPORTS (2013] 13 S.C.R.

A 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 11 service via direct recruitment and thereby
gave up "the advantages and disadvantages that go with the
B 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
c 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
D made, the Andhra Pradesh Government issued G.O.Ms No.
451 dated 10.6.1976 containing a decision that Supervisors
acquiring a graduate qualification even after 28.2.1972 should
be appointed temporarily as Junior Engineers (prospectively)
with immediate effect.
E
39. This resulted in consequential orders being G.O.Ms
No. 559 dated 18.7.1977 relating to weightage of service
rendered and the inter se seniority of Supervisors vis-a-vis
Junior Engineers.
F 40. The interpretation of G.O.Ms No. 559 dated 18.7.1977
was considered in Muralidhar. This Court noted in the opening
paragraph of its decision that "The dispute is regarding the inter
se seniority between the Supervisors who are upgraded as
Junior Engineers and the degree holders who are directly ~--
G appointed as Junior Engineers."

41. This Court endorsed the terms of the G.O.Ms without
actually going into the legality thereof. This was apparently
because the issue of seniority had been burning for two
H decades and this Court wanted to bring a quietus to it. This is
P. SUDHAKAR RAO v. U. GOVINDA RAO 563
[MADAN B. LOKUR, J.]
~ ~
• clear from the fact that in its conclusion, this Court
I
bypassed A
the statutory rules which required the imprimatur of the Public
Service Commission for the appointments made. While
recording its conclusions, this Court said:

"Having given our careful consideration particularly
B
to the fact that this litigation has been pending for the last
so many years, about two decades, we feel that it is high
time a finality has to be reached by resolving the
Ji,. controversies and in this context we are of the view that
the approval of the Public Service Commission in respect
of these appointments need not be sought, if the c
government has not already obtained the approval of the
Public Service Commission. To sum up, our conclusions
are as under:

(1) The weightage of four years in respect of D
~
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;

(it) On the basis of that notional date, their inter se
E
seniority has to be fixed;

(iit) 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 F
given by the Public Service Commission on the basis of
the SQT;

(iv) The government shall prepare a common
I
~ seniority list of the degree holders Junior Engineers and G
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
H
564 SUPREME COURT REPORTS [2013) 13 S.C.R.

A (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 ..
8
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
C 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
D 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 Junior Engineers who were temporarily appointed on
ad hoc basis under Rule 1O(a)(t)(1) of the Andhra Pradesh
E State and Subordinate Service Rules and whose services were
later regularised under GOMs No. 647 dated September 14,
1979."

44. Venkat Reddy concerned itself with the seniority of a
limited class of Junior Engineers who were appointed
F temporarily on an ad hoc basis and subsequently regularized.
The case centred round the interpretation of the latter part of
clause (ii)(a) of G.O.Ms No. 647 dated 14.9.1979 containing
the words "should be regularised from the next date following
the date on which the last regular appointment in that category
G was.made in the unit concerned". The relevant portion of the
G.O.Ms reads as follows:

"(1) the services of all temporary Government employees
who were appointed by direct recruitment to any category
H or post and are continuing in service as on August 9, 1979
P. SUDHAKAR RAO v. U. GOVINDA RAO 565
[MADAN B. LOKUR, J.]
should be regularised without subjecting them to any test A
written or oral;

(ii)(a) the services of all temporary employees in all
categories, other than LDCs, Typists and Steno-typists, in
the Offices of the Heads of Departments and Junior 8
Assistants, Typists and Steno-typists in the Secretariat,
should be regularised from the next date following the date
on which the last regular appointment in that category was
made in the unit concerned or from the date of temporary
appointment whichever is later;"
c
45. The controversy arose due to a ban on the recruitment
of Junior Engineers through the Public Service Commission in
Andhra Pradesh. To sidestep the ban, Junior Engineers were
recruited on a temporary and ad hoc basis under Rule
1O(a)(t)(1) of the Andhra Pradesh State and Subordinate D
Service Rules (paragraph 2 of the Report). This rule provides
that where it is necessary in the public interest to emergently
fill a vacancy in the post borne on the cadre of a service, class
or category and if the filling of such vacancy in accordance with
the rules is likely to result in undue delay, the appointing authority E
may appoint a person temporarily otherwise than in accordance
with the said rules (paragraph 10 of the Report).

46. In due course of time, the question of the regularization
of these Junior Engineers came up for consideration. The State F
Government then lifted the ban on recruitment and decided to
regularize the services of the temporary and ad hoc Junior
Engineers after subjecting them to a Special Qualifying Test
(SQT) conducted by the Public Service Commission.
-1-' 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
566 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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.
B
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
c seniority even prior to the date of their eligibility. More
specifically, this Court considered the impact of retrospective
operation of an amendment to the rules made in 1985 with
effect from 1976 and finding no nexus between the appointment
-
and giving retrospective effect to the appointment, struck down
D its retrqspective operation. In this context, it was observed:
..J_"
"The retrospective operation of the impugned rule attempts
to disturb a system which has been existing for more than
twenty years. And that too without any rationale. Absence
E of nexus apart no rule can be made retrospectively to
operate unjustly and unfairly against other (sic). In our
opinion the retrospective operation of the rule with effect
from January 1, ·1976 is discriminatory and violative of
Articles 14 and 16." ~
F
49. This Court quoted Note (2) relating to the appointment
by transfer of a Junior Engineer to the post of Assistant
Engineer, as introduced by the impugned amendment.
However, it did not deal with the issue of seniority, apparently
since the retrospective operation of the impugned rule was
G struck down, which had its consequential effect. Note (2) as per '?-

the impugned amendment reads as follows:

"2. Amendment of the Schedule: In the Schedule to
the Karnataka Public Works Engineering Department
H Services (Recruitment) Rules, 1960, in the entries relating
P. SUDHAKAR RAO v. U. GOVINDA RAO 567
[MADAN B. LOKUR, J.]
to the category of posts of 'Assistant Engineer' for columns A
(2) and (3) the following shall be substituted, namely:

By direct recruitment or by transfer of a Junior
Engineer.

For Direct recruitment: B

Should be a holder of a degree in Civil Engineering or
Mechanical Engineering depending upon the
requirements, as the case may be or of a Diploma
certificate from a recognised Institute of Engineers that he C
has passed parts A and B of the Associate Membership
Examination of the Institute of Engineers or equivalent
qualification. Age: Must not have attained the age of thirty-
five years.
D
For transfer.

Must possess B.E., or AMIE (India) qualification in
Civil Engineering, or Mechanical Engineering.

Note (1) The option of the Junior Engineer shall be E
obtained before such transfer within the time stipulated by
the Government.

Note (2) The transfer shall be effective from the date
of graduation subject to the availability of vacancies without
ignoring the inter se seniority among those eligible for such F
transfer."

50. Without discussion, this Court restricted the applicability
of Note (2) and held that it shall be read as providing eligibility
only. G
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 H
568 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
8
principle relating to the grant of weightage for eligibility
purposes. This issue, therefore, is no longer res integra.
However, Muralidhar extended the weightage, sub si/entio, to ~.
the issue of seniority as well without examining the legality or
validity thereof. The issue of weightage for seniority was not
C 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 we are still grappling
D with this issue.

53. Venkat Reddy was decided in the context of a specific
situation and did not lay down any generar principle for
application either confirming or contradicting the principles laid
E down in Desai, Devi Prasad or Muralidhar.

54. Narayanan also did not concern itself with the validity
of weightage of service for appointment or promotion nor did
it concern itself with any issue of seniority. It was confined
merely to the retrospective operation of a statutory rule, which
F it struck down with consequential effect.

55. Where does this leave us in so far as the decisions
mentioned in the reference order are concerned? On the
question of weightage of service for appointment or promotion
G the issue is now well settled. However, on the question of
weightage of service for seniority, the issue is still open since
the judgments in the reference deal with different and, in some
cases, specific or limited issues. Hence this reference.

56. The problem as we see it is that somewhere down the
H
P. SUDHAKAR RAO v. U. GOVINDA RAO 569
[MADAN B. LOKUR, J.]

line, the issue came to be limited to the Andhra Pradesh A
Engineering Service. In our opinion, the reference concerns a
much larger audience and we propose to answer it in that light
and not in the limited context of the submission made relating
to the validity of the rule by which retrospective seniority benefit
was given to the Junior Engineers by G.O.Ms No. 54 dated B
15.2.1983.

Answering the questions:

57. As far as the impact of the retrospective operation of
the executive instructions or statutory rules on the seniority of C
employees is concerned (including the Junior Engineers before
us), this issue is now settled by a few recent decisions of this
Court. There is no doubt that retrospective operation can be
given to statutory rules such as the Andhra Pradesh Engineering
Service Rules. But, the retroactivity must still meet the test of D
Article 14 and Article 16 of the Constitution and must not
adversely trench upon the entitlement of seniority of others.

58. Without intending to multiply precedents on this subject,
reference may be made to a decision rendered by this Court E
more than two decades ago. In State of Bihar v. Akhouri
Sachindra Nath, 1991 Supp (1) SCC 334 it was held that
retrospective seniority cannot be given to an employee from a
date when he was not even born in the cadre. So also, seniority
cannot be given with retrospective effect so as to adversely
affect others. Seniority amongst members of the same grade F
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 G
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 H
570 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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.
B 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
c respondents 1 to 5 by the impugned government orders
as they entered into the said service by promotion after
respondents 1 to 5 were directly recruited in the quota of
direct recruits. The judgment of the High Court quashing
the impugned government orders made in Annexures 8,
9 and 10 is unexceptionable."
D
59. This decision was cited with approval, a few years ago,
along with the decision rendered in Keshav Chandra Joshi v.
Union of India, 1992 Supp (1) SCC 272. This Court held that
when a quota is provided for, then the seniority of the employee
E would be reckoned from the date when the vacancy arises in
his/her quota and not from any anterior date of promotion or
subsequent date of confirmation. It was observed that injustice
ought not to be done to one set of employees in order to do
justice to another set. It was said in Uttaranchal Forest Rangers'
F Assn. (Direct Recruit) v. State of U.P., (2006) 10 SCC 346,
on referring to these judgments that:

"We are also of the view that no retrospective promotion
or seniority can be granted from a date when an employee
has not even been borne in the cadre so as to adversely
G
affect the direct recruits appointed validly in the meantime,
as decided by this Court in Keshav Chandra Joshi v.
Union of India [1992 Supp (1) SCC 272] held that when
promotion is outside the quota, seniority would be
reckoned from the date of the vacancy within the quota
H
-- P. SUDHAKAR RAO v. U. GOVINDA RAO 571
[MADAN B. LOKUR, J.]
--t-- rendering the previous service fortuitous. The previous A
promotion would be regular only from the date of ttie
vacancy within the quota and seniority shall be counted
from that date and not from the date of his earlier
promotion or subsequent confirmation. lh order to do
justice to the promotees, it would not be proper to do B
injustice to the direct recruits ......

"This Court has consistently held that no retrospective
J. promotion can be granted nor any seniority can be given
on retrospective basis from a date when an employee has
not even borne in the cadre particularly when this would c
~
adversely affect the direct recruits who have been
appointed validly in the meantime."

60. However, the mere existence of a vacancy is not
enough to enable an employee to claim seniority. The date of D
~- actual appointment in accordance with the required procedure
becomes important in such a case. This was so held in State
of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683
[followed in Nani Sha v. State of Arunachal Pradesh, (2007)
15 sec 406] where it was said: E
"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 F
1995-96 he should be given promotion and seniority from
that year and not from 1999, when his actiral 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 G
reasonable to normal parlance. This was the view taken
by this Court in Jagdish Ch. Patnaik v. State of Orissa
[(1998) 4 sec 456]."

61. More recently, and finally, in Pawan Pratap Singh v. H
572 SUPREME COURT REPORTS [2013) 13 S.C.R.

A 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:·
B
"(1) The effective date of selection has to be understood
in the context of the service rules under which the
appointment is made. It may mean the date on which the
process of selection starts with the issuance of
advertisement or the factum of preparation of the select
c list, as the case may be.

(i1) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry in
a particular service or the date of substantive appointment
D is the safest criterion for fixing seniority inter se between
one officer or the other or between one group of officers
and the other recruited from different sources. Any
departure therefrom in the statutory rules, executive
instructions or otherwise must be consistent with the
E requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from
the backdate and if it is done, it must be based on
objective considerations and on a valid classification and
must be traceable to the statutory rules.
F
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant service rules. It is so because seniority cannot be
G given on retrospective basis when an employee has not
even been borne in the cadre and by doing so it may
adversely affect the employees who have been appointed
validly in the meantime."

62. In a separate but concurring opinion, Aftab Alam, J.
H
P. SUDHAKAR RAO v. U. GOVINDA RAO 573
[MADAN 8. LOKUR, J.]
-~ reiterated the position but referred to some more precedents A
on the subject. It was then said:

"To the decisions referred to on this point ·in the main
judgment I may add just one more in Suraj Parkash Gupta
v. State of J&K [(2000) 7 SCC 561]. The decision relates
B
to a dispute of seniority between direct recruits and
promotees but in that case the Court considered the
question of antedating the date of recruitment on the ground
that the vacancy against which the appointment was made
had arisen long ago. In SCC para 18 of the decision the
Court framed one of the points arising for consideration in
c
.... the case as follows: (SCC p. 578)

"18 . ... (4) Whether the direct recruits could claim
a retrospective date of recruitment from the date on
' which the post in direct recruitment was available, D
~· even though the direct recruit was not appointed by
that date and was appointed long thereafter?"

This Court answered the question in the following terms:
(Suraj Parkash Gupta case SCC p. 599, paras 80-81)
E
"Point 4

Direct recruits cannot claim appointment from the
y date of vacancy in quota before their selection
F
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 G
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 H
574 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 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
B 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

c
Gujarat [(1977) 1 SCC 308], Krishna Iyer, J. stated: (SCC
p. ·325, para 32)

Later direct recruit cannot claim deemed dates of
- ·•

appointment for seniority with effect from the time when
direct recruitment vacancy arose. Seniority will depend /

D upon length of service.
·-+---
Again, in A. Janardhana v. Union of India [(1983) 3 SCC
601] it was held that a later direct recruit cannot claim
seniority from a date before his birth in the service or when
he was in school or college. Similarly it was pointed out in
E A.N. Pathakv. Secy. to the Govt. [(1983) 3 SCC 601] that
slots cannot be kept reserved for [the] direct recruits for
retrospective appointments."

63. The facts of the appeals before us show that at least
F some of the Supervisors were given retrospective seniority on
the date when they were not even eligible for appointment as
Junior Engineers. The precedents referred to above show that
this is impermissit>_le_:_ In addition as pointed out by the High
Court, there is no indication of the vacancy position, that is,
-r·
G whether the Supervisors could be adjusted in the grade of
Junior Engineers from the date on which they were given
notional retrospective seniority. There is also no indication
whether the quota of vacancies for Supervisors was adhered
to as on the date on which they were given notional
retrospective seniority. The case law suggests that this is an
H
P. SUDHAKAR RAO v. U. GOVINDA RAO 575
{MADAN B. LOKUR, J.]
important factor to be considered. Finally, it is quite clear that A
the grant of retrospective seniority to Supervisors has adversely
imp.acted on the promotion chances of Junior Engineers by
bringing them down in seniority. This too is impermissible.

64. From the various decisions referred to and from the
8
facts of the case, it is clear that to pass the scrutiny of Article
14 of the Constitution, the seniority of Supervisors should be
reckoned only from the date on which they satisfied all the real
and objective procedural requirements of the Andhra Pradesh
Engineering Service Rules and the law laid down by this Court. C
This has not happened in the present appeals creating a
situation of unreasonableness and unfairness.

65. It may be mentioned that by the time Muralidhar came
to be decided, the impugned G.O.Ms No. 54 dated 15.2.1983
had already come into existence. Though this was brought to D
the notice of this Court, its validity was neither examined nor
determined. This is the first occasion when the constitutional
validity of the said G.O.Ms has been considered.

Conclusion:
E
. 66. For the reasons aforesaid, we see no occasion for
interfering with the view taken by the High Court to the effect
that the grant of retrospective seniority to Supervisors on their
appointment as Junior ~ngineers violates Article 14 of the
Constitution. The weightage of.service given to the Supervisors F
can be taken advantage of only for the purpose of eligibility for
promotion to the post of Assistant Engineer. The weightage
cannot be utilized for obtaining retrospective seniority over and
above the existing ·Junior Engineers.
G
67. We may mention that in Asis Kumar Samanta v. State
of West Bengal, (2007) 5 SCC 800, the question whether
retrospective promotion or seniority can be granted or not has
. _ been referred by a Bench of two learned Judges to a larger
Bench. It has been noted therein that the grant of retrospective H
576 SUPREME COURT REPORTS (2013] 13 S.C.R.

A promotions and seniority was accepted by this Court in four
decisions while grant of retrospective seniority was held to be
ultra vires in five decisions. When these appeals came up for
hearing on 02.5.2013, learned counsel for Asis Kumar
Samanta sought an adjournment to make alternative
B arrangements since he could not appear against the State of
West Bengal. Accordingly, tnat matter was adjourned beyond
the ensuing summer vacations.

68. Be that as it may, the pendency of a similar matter
C before a larger Bench has not prevented this Court from dealing
with the issue on merits. Even on earlier occasions, the
pendency of the matter before the larger Bench did not prevent
-
this Court from dealing with the issue on merits. Indeed, a few
cases including Pawan Pratap Singh were decided even after
the issue raised in Asis Kumar Samanta was referred to a
D larger Bench. We, therefore, do not feel constrained or
precluded from taking a view in the matter.

69. The question referred to us is answered accordingly
and the appeals are dismissed, but with no order as to costs.
E
Bibhuti Bhushan Bose Reference answered & Appeal dimissed.