PRAMOD K. PANKAJversusSTATE OF BIHAR AND ORS.

A
                              PRAMOD K. PANKAJ
                                          V.
                          STATE OF BIHAR A1''D ORS.

                              NOVEMBER 20, 2003
B
                   (V.N. KHARE, CJ. AND S.B. SINHA, J.)


          Service Law :

C         Seniority-Inter se seniority-Determination of-Held: In the absence
    of any statutory provisions or rules made thereunder or under the proviso to
    Art. 309 of the Constitution seniority has to be counted from the date of
    appointment.

D         Seniority-Inter se seniority-Government resolution stipulated
    acquisition of higher qualification and experience ofjive years as conditions
    for promotion-Implication of-Held: As no date for acquisition of higher
    qualification had been prescribed by the resolution, in the absence ofstatutory
    rules governing the field. seniority had to be reckoned from the date of
    appointment as also continuous officiation in the lower post.
E
          Administrative Law :

         Subordinate legislation-Judicial review-Government resolution
   authorized Personnel Department to determine inter se seniority of the
  promotees-But Water Resources Department issued a gradation /seniority
F list on its own-Validity of-Held: The G.overnment resolution was an executive
   order passed by the State in terms of Art. 162 of the Constitution-The
   Personnel Department alone was competent to take a decision regarding inter
  se seniority-Hence, the gradation/seniority list issued by the Water Resources
   Department was illegal having been issued by an authori1y which had no
G jurisdiction-The gradation/seniority list set aside-Constitution ofIndia, 1950,
  Art. 162.

          Delegation ofpower- "Delegatus Non Potest Delegare "-Government
    resolution authorized Personnel Department to determine inter se. seniority of
    promotees-But the Personnel Department neither laid down any procedure

H                                        916
                  PRAMOD K. PANKAJ v. STATE OF BIHAR.                    917
for such determination nor delegated the said power to Water Resources           A
Department-However, Water Resources Department, on its own, issued a
gradation/seniority list-Validity of-Held: It was beyond any cavil that the
 Water Resources Department did not have the competence to issue the said
gradation/seniority list-If a guideline for determining the inter se seniority
was to be laid down only the State could do so under Art. 162 of the
Constitution-Hence, said gradation/seniority list set aside.                     B
      Maxims:

      "Delegatus Non Potest Delegare"-Explained

       The appellant and the contesting respondents were appointed as            C
Junior Engineers in the State Subordinate Engineering Service Cadre. The
·state Government passed a resolution to provide special facilities by way
of incentive of promotion to the post of Assistant Engineer to those Junior
Engineers who had acquired degree in Engineering during service and also
had five years of experience. The said resolution stipulated that the decision   D
regarding inter se seniority of these Junior Engineers would be taken by
the Personnel Department. The Personnel Department, however, did not
lay down any procedure for the determination of inter se seniority and
also did not delegate this power to any authority.

     However, the Water Resources Department arrogated the said power            E
and published a gradation list in respect of the Junior Engineers. The
appellant filed his representation/objection to the said gradation list.

      Being aggrieved the appellants in CA Nos. 62-65of1999 filed a writ
petition before the High Court, which was dismissed, on the ground that
the said gradation list was not in conflict with the Government resolution.      F
The High Court also dismissed the LPA filed by the appellant in CA No.
66 of 1999 on the ground of limitation. Hence the appeals.

      Allowing the appeals, the Court

      HELD : 1. In the absence of any statutory provision or rules made          G
thereunder or under the proviso appended to Article 309 of the
Constitution of India, it is trite, that once an incumbent is appointed to a
post according to rules his seniority has to be counted from the date of
his appointment. 1923-FJ

                                                                                 H
        918                    SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

    A         MB. Joshi v. Salish Kumar Pandey, (1993( Supp. 2 SCC 419, Satpal
        Anti/ v. Union of India, (1995( 4 SCC 419 and D. Stephen Joseph v. Union
        of India, (1997] 4 SCC 753, relied on.

            N. Suresh Nathan v. Union of India, (1992] Supp. 1 SCC 594 and Ashok
        Kumar Sharma v. Chander Shekhar, (1997] 4 SCC 18, held inapplicable.
    B
              2. The Government resolution was an executive order passed by the
        State in terms of Article 162 of the Constitution of India. By reason of
        the said policy decision, the Personnel Department alone was delegated
        with the power to lay down the criteria for determining the inter se
        seniority. The Personnel Department neither in fact delegated the said
    C   power to the Water Resources Department nor in law could do the same.
        The purported order issued by the Water Resources Department was,
        therefore, illegal having been rendered by an authority which had no
        jurisdiction therefor. (924-C-D]

    D        3. In the absence of any statutory rule governing the field the criteria
        for promotion should be construed upon applying the principle of
        continuous officiation in the lower post. (929-D(

              CIVIL APPELLATE JURISDICTION : Civil Appeal No. 62-65 of 1999.

    E        From the Judgment and Order dated 23.5.97 of the Patna High Court
        in LP. A. No. 100/94 with LP.A. No. 158/94 with LP.A. No. 101/94 and
        C.W.J.C. No. 7826 of 1995.


•             C.A.No. 66 of 1999.
                                           WITH

    F
             Vikas Singh, Rahal Ray, Umesh K. Khaitan, Prakash Shrivastava,
        Akhilesh Kumar Pandey, Manan K. Mishra, Ashok K. Pandey, Ms.Sangeeta'
        Kumar, Navin Prakash, Anurag Sharma, B.B. Singh, Kumar Rajesh Singh,
        K.K. Gupta, Anil K. Chopra and R.P. Wadhwani for the appearing parties.
    G
              The Judgment of the Court was delivered by

              S.B. SINHA, J. INTRODUCTION :

              The usual problem which frequently arises in service matters i.e. inter
    H se seniority between two groups of employees is involved in these appeals
          PRAMOD K. PANKAJ v. STATE OF BIHAR [S.B. SINHA,J.)               919
which arise out of a judgment and order dated 23.5.1997 passed by the High        A
Court of Patna in L.P.A. Nos. 100, 158, 101 of 1994 and C.W.J.C. No.7826
of 1995.

BACKGROUND FACTS:

      The appellant and the contesting respondents were appointed in the          B
Bihar Subordinate Engineering Service Cadre as Junior Engineers. The sources
for appointment to the rank of Assistant Engineer in Bihar Engineering Service
Class II were : (a) from Junior Engineer (Diploma Holder) Cadre to 30% of
cadre strength of Assistant Engineers; (b) from Engineer Assistant Cadre
(Engineering Graduate or equivalent Degree Holder) to 20% of total cadre
strength of Assistant Engineers; and ( c) 50% of the posts of the Assistant       C
Engineers from direct recruitment of Engineering Graduate or equivalent
Degree Holders from outside.

       On or about 17.8.1973, the cadre of Engineer Assistants was abolished
in various phases and only promotional avenue was left for Junior Engineers       D
from amongst the quota of 30% of the diploma-holders. Keeping in view the
fact that promotional avenue of those Junior Engineers who had acquired
degree in engineering during service was taken away, the State of Bihar by
reason of a resolution dated 17 .1.1979 sought to provide special facility by
way of incentive of promotion to the post of Assistant Engineer to those
Junior Engineers who had acquired degree in engineering or passed equivalent      E
examination during their service to the extent of 3%. The said employees
besides holding the degree of engineering or passing of equivalent examination
were further required to complete a minimum period of five years in service
in the cadre of Junior Engineers. The relevant clauses of the aforementioned
resolution are as under :
                                                                                  F
       "Gha. This facility of promotion to the post of Assistant Engineer on
       the basis of quota mentioned in paragraph (Ka) shall be equally
       available to all those permanent/temporary Junior Engineers who have
       passed the examination of Graduate in Engineering or its equivalent
       examination during their service period and have completed a               G
       minimum of 5 years service on the post of Junior Engineer.

        Cha. Promotion t_o the vacant posts of Assistant Engineer on the basis
        of the quota mentioned in paragraph (Ka) be given in accordance
        with their seniority. With regard to inter se seniority of these Junior
        Engineers, the decision be taken after obtaining the opinion of the       H
    920                    SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

A          personnel Department."

          The Personnel Department of the State of Bihar indisputably did not
    lay down any procedure for determination of the inter se seniority of such
    Assistant Engineers who were promoted in the aforementioned 3% quota.
    Seniority list was, however, prepared by the Water Resources Department in
B   the light of the order dated 22.12.1992 wherein it was laid down:

                "According to the provisions made in Circular No.947 dated
           17. I .79 of Public Works Department, 3% posts of Assistant Engineer
           out of total vacant posts of Assistant Engineers are to be filled up by
           promotion of those Junior Engineers who have passed Degree/AMIE
c          after entry into service. In the Department the number of available
           posts under the above quota basis is less than the number of available
           such qualified Junior Engineers. Applicants are more and posts are
           less, under such situation it has become inevitable for fixation of inter
           se, seniority of Degree/AMIE holder Junior Engineers as per Circular
           referred to.
D
           2. Generally, basis of seniority in a cadre is the date of entry into
           service in that cadre but in the case under reference fixation of seniority
           on that basis is not justifiable, because on the basis of seniority service
           35% posts are reserved for promotion to the posts of Assistant Engineer
E          separately. Therefore, it has been decided by the department to fix
           the inter se seniority on the following basis :

           (Ka) That the inter se seniority should be kept as in service seniority
           of those officers who by remaining in service have completed the
           period of five years and have obtained qualification of AMIE or
F          Bachelors' degree in Engineering within those five years of service.

           (Kha) That the fixation of inter se seniority be fixed on the basis of
           the date of obtaining AMIE or Bachelors Degree in Engineering of
           those officers who, by remaining in service, have completed the
           minimum service period of five years but have obtained certificate of
G          AMIE or Bachelor's degree in Engineering after five years.

           3. On the basis of the principles enumerated above, the fixation of
           inter se seniority of all applicants received within the stipulated period
           from the concerned applicants has been done according to the enclosed
           1ist."
H
        PRAMOD K. PANKAJ v. STATE OF BIHAR [S.B. SINHA, J.]               921
       A gradation list dated 10.9.1992 was issued and the same was purported A
 to have been finalized on or about 22.12.1992 in terms of the aforementioned
 circular letter. The appellant herein submitted his representations/objection to
 the said list on 12.1.1993. Allegedly on the premise that without disposing
 of the said objections, some Junior Engineers were promoted, a writ petition
was filed before the Patna High Court, which was marked as C. W.J.C. No.2489
 of 1993. The said writ petition was allowed by a learned Single Judge of the B
 said High Court by a judgment and order dated 25.4.1994 holding that as the
 Government resolution dated 17 .1.1979 had been issued by way of incentive
 of adding the qualification during continuation of service for getting advantage
of acceleration in promotion; in the event the said gradation list dated
22.12.1992 is given effect to, the same would be violative of Articles 14 and C
 16 of the Constitution oflndia as thereby the incentive sought to be given by
 reason of Resolution dated 17 .1.1979 would become nugatory. Two letters
patent appeals were filed by some respondents against the said judgment
which were marked as L.P.A. Nos.JOO and 101 of 1994. The State of Bihar,
however, filed a special leave petition before this Court but having regard to
the fact that they had a remedy by way of letters patent appeal, withdrew the D
same whereafter they filed a letters patent appeal before the Division Bench
which was marked as L.P.A. No.158of1994. The Division Bench by reason
of a judgment and order darted 23.5.1997 allowed the said appeals and writ
petition which was also filed in the meanwhile holding that the aforementioned
gradation list dated 22.12.1992 for promotion of Junior Engineers was not in E
conflict with the Government Resolution dated 17.1.1979. The Division Bench
in support of its aforementioned finding relied upon a decision of this '::ourt
in N. Suresh Nathan and Anr. v. Union of India and Ors., [1992] Supp. I
SCC 584. The High Court, therefore, directed that inter se seniority of the
concerned officers be determined against the special quota of 3% in terms of
the said circular letter dated 22.12.1992.                                        F
       The appellant in Civil Appeal Nos.62-65 of I999 filed a special leave
petition, inter a/ia, on the ground that pursuant to or in furtherance of the
said judgment, 22 persons all of whom were junior to the appellant, except
Mr. Guru Saran Singh, had been promoted.
                                                                                G
       The appellant in Civil Appeal No.66 of 1999 had filed a writ petition
on 12.12.1995 which was marked as C.W.J.C. No.11149 of 1995 on the
ground that he had been denied promotion to the post of Assistant Engineer
in terms of Resolution dated 17.1.1979. During the pendency of the writ
petition as certain posts fell vacant in relation whereto he filed representation H
    922                    SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A which was not accepted as also on the ground that the some persons junior
    to him had been promoted, he filed an application for amendment of the writ
    petition. In the light of the judgment in L.P.A. No.JOO of 1994, the said Writ
    Petition No.11149 of 1995 was dismissed by an order dated 16.6.1997 stating:

                "In view of the Division Bench judgment in LP.A. No. I 00 of
B           I 994 and analogous cases, a true copy of which has been annexed as
            Annexure 'O' to the show cause filed on behalf of the Secretary-
            cum-Commissioner, Department of Road Construction, Government
            of Bihar, Patna both the writ anplications are accordingly dismissed."

          The appellant filed a letters patent appeal which was barred by limitation
C   of 36 days. By an order dated 18.9.1997, the said letters patent appeal was
    dismissed stating :

                "Flag 'A' is an application under Section 5 of the Limitation Act
            seeking condonation of delay of 36 days in filing the appeal.

D               It is contended that the appellant was advised to prefer S.L.P.
            before the Apex Court which had dela;~d the filing of the appeal. On
            being asked to show the order passed in the S.L.P. Learned Counsel
            said that no S.L.P. was filed. This being so no ground is made out for
            condoning the delay in filing the appeal. The application at flag 'A'
            is accordingly rejected. Consequently, the appeal is dismissed being
E           barred by limitation."

          Mr. Vikas Singh, learned counsel appearing on behalf of the appellants,
    inter a/ia, would submit that the basic qualification for promotion to the post
  of Assistant Engineer being acquisition of a degree in engineering or passing
F of an equivalent examination together with five years experience in the post
  of Junior Engineer, the inter se. seniority of the concerned officers should
  have been directed to be determined on the basis of the gradation list in the
  post of the Junior Engineer. The learned counsel would urge that the purported
  direction issued by the Water Resources Department in terms of order dated
  22.12.1992 was illegal. Mr. Singh pointed out that the decision of this Court
G in N. Suresh Nathan (supra) which has been relied upon by the Division
  Bench has been distinguished and explained in subsequent decisions by this
  Court in MB. Joshi and Ors. etc. v. Salish Kumar Pandey and Ors. etc.,
  [ 1993] Supp. 2 SCC 419, Satpal Anti! etc. v. Union of India and Ors., [1995]
  4 SCC 419 and D. Stephen Joseph v. Union of India and Ors., (1997) 4 SCC
H 753.
         PRAMOD K. PANKAJ v. STA TE OF BIHAR [S.B. SINHA, J.]                   923
       Mr. B.B. Singh, learned counsel appearing on behalf of the State of              A
Bihar; and Mr. Akhilesh Kumar Pandey and Mr. Manan K. Mishra, learned
counsel appearing on behalf of the private respondents, however, would submit
that the date of eligibility should be determined on the basis of the general
principles with reference to the date of qualification. It was urged that eligibility
of a candidate for promotion to the post of Assistant Engineer was required
to be determined on fulfilment of both the conditions, namely, acquisition of           B
a degree in engineering or passing of an equivalent examination as also five
years' experience in the post of Junior Engineer and, thus, the circular letter
dated 22.12.1992 cannot be said to be illegal. It was further submitted that
the principles evolved by the Water Resources Department had been given
effect to and in terms thereof several persons having been promoted, the                C
settled position should not be unsettled.

ISSUE:

     The short question which arises for consideration before us is that as
to whether the purported qualification issued by the Water Resources                    D
Department as contained in order dated 22.12.1992 is valid?

THE POLICY DECISION :

      The policy decision of the State as contained in the resolution of the
State Government dated 17 .1.1979 is not in question. It is accepted that the           E
said resolution was adopted in the special situation that 20% quota which was
earlier reserved for graduate engineers was abolished, as a result whereof
they suffered immense prejudice. Clause 'Cha' of the said circular states that
the promotion on the vacant posts of Assistant Engineer under the quota
mentioned in clause 'Ka' i.e. 3% would be made on the basis of seniority.
In absence of any statutory provision or rules made thereunder or under the             F
proviso appended to Article 309 of the Constitution of India, it is trite, that
once an incumbent is appointed to a post according to rules his seniority has
to be counted from the date of his appointment.

      The aforementioned Resolution dated 17.1.1979 was introduced as a                 G
special measure. The promotion of the holders of the post of Junior Engineers
to the post of Assistant Engineer was not to be done on selection basis. No
written examination was to be held nor any oral interview was to be taken.
No criteria whatsoever was laid down for selecting the candidates. For the
purpose of granting promotion to the post of Assistant Engineer in the
aforementioned category, only two conditions which were required to be                  H
    924                    SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A fulfilled on the relevant date are : (a) the employee must be holder of a
    degree or must have passed an equivalent examination; (b) he must have
    completed five years of service in the post of Junior Engineer.

        A plain reading of the aforementioned resolution dated 17.1.1979 would
  clearly go to show that no further requirement was prescribed therefor. Clause
B 'Cha' of the said resolution merely stated that with regard to inter se seniority
  of these Junior Engineers, the decision be taken after obtaining opinion from
  the Personnel Department.

         In the aforementioned premise, it was obligatory on the part of the
  Personnel Department itself to take a firm decision laying down the criteria
C for fixation of inter se seniority in absence of any statute or rules having the
  force of law. Admittedly, the Personnel Department did not issue any such
  order. The said resolution dated 17 .1.1979 was an executive order passed by
  the State of Bihar in terms of Article 162 of the Constitution of India. By
  reason of the said policy decision, the Personnel Department alone was
D delegated with the power to lay down the criteria for determining the inter
  se seniority. The Personnel Department neither in fact delegated the said
  power to the Water Resources Department nor in law could do the same. The
  purported order dated 22.12.1992 issued by the Water Resources Department
  was, therefore, illegal having been rendered by an authority which had no
  jurisdiction therefor.
E
          'De/egatus Non Potest De/egare' is a well-known maxim which means
    in absence of any power a delegatee cannot sub-delegate its power to another
    person. It is beyond any cavil that the Water Resources Department did not
    have the requisite competence to issue the said order dated 22.12.1992. If a
F   guideline for determining the inter seniority was to be laid down, the State
    could do so in terms of Article 162 of the Constitution of India. The said
    order dated 22.12.1992 also does not satisfy the requirements of Article 162
    of the Constitution of India. This aspect of the matter unfortunately was not
    adverted to before the High Court.

G CASE LAWS:
        In N. Suresh Nathan (supra) on the basis whereof the learned Division
  Bench upheld the validity of the said order dated 22.12.1992 to the effect that
  the inter se seniority be determined on the basis of the date of acquisition of
  a degree in engineering and not on the basis of service, the factual matrix was
H different. Therein the dispute was as to whether a diploma-holder Junior
          PRAMOD K. PANKAJ v. STATE OF BIHAR [S.B. SINHA, J.)             925
Engineer who had obtained a degree while in service had become entitled for       A
appointment as Assistant Engineer by promotion on completion of three years'
service including the period of service prior to obtaining of such degree or
whether the three years' service as a degree-holder for the said purpose shall
be reckoned from the date of obtaining such degree. The Central Administrative
Tribunal before which the application was filed held that the diploma-holders     B
were entitled to be considered for promotion to the post of Assistant Engineer
on par with the degree-holder Junior Engineers having regard to the total
length of service rendered in grade of Junior Engineer irrespective of the fact
that as to whether he had acquired the necessary degree qualification earlier
than the applicants.

      This Court in N. Suresh Nathan (supra) held :
                                                                                  c
           "In our opinion this appeal has to be allowed. There is sufficient
       material including the admission of respondents diploma-holders that
       the practice followed in the department for a long time was that in the
       case of diploma-holder Junior Engineers who obtained the degree D
       during se.rvice, the period of three years' service in the grade for
       eligibility for promotion as degree-holders commenced from the date
       of obtaining the degree and the earlier period of service as diploma-
       holders was not counted for this purpose. This earlier practice was
       clearly admitted by the respondents diplo~a-holders in para 5 of
       their application made to the Tribunal at page 115 of the paper book. E
       This also appears to be the view of the Union Public Service
       Commission contained in their letter dated December 6, 1968 extracted
       at pages 99-100 of the paper book in the counter-affidavit of
       respondents I to 3. The real question, therefore, is whether the
       construction made of this provision in the rules on which the past p
       practice extending over a long period is based is untenable to require
       upsetting it. If the past practice is based on one of the possible
       constructions which can be made of the rules then upsetting the same
       now would not be appropriate. It is in this perspective that the question
       raised has to be determined."
                                                                                  G
      The scheme under the recruitment rules in said case were different. The
scheme obtaining therein postulated that the period of three years' service in
the cadre required for degree-holders as a qualification for promotion in the
said category would mean three years' service in the grade as a degree-
holder. In the instant case, experience of five years upon acquisition of a
                                                                                  H
      926                     SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

  A degree in the engineering is not a qualification laid down in terms of the
      aforementioned Resolution dated 17.1.1979.

            In that case, the practice followed by the State was, thus, upheld.

         In MB. Joshi (supra), this Court distinguished N. Suresh Nathan (supra).
 B Therein, this Court was considering a case where promotions from the post
   of Sub-Engineer to the post of Assistant Engineer were inter alia required to
   be made from amongst the persons who were graduate Sub-Engineers
   completing eight years of service. In that case, the State Government had
   applied the principle of counting the seniority of graduate Sub-Engineers
   from the date of their continuous officiation irrespective of the date on which
·C such diploma-holder Sub-Engineers acquired degree in engineering. A
   contention similar to one raised before us by the respondents was raised
   therein on behalf of the respondent. Rejecting the said contention, this Court
   distinguishing N. Suresh Nathan (supra), and upon taking into consideration,
   the fact situation obtaining therein as also the findings rendered by this Court,
 D held:
              "11. A perusal of the above observations made by this Court clearly
              show that the respondents diploma-holders in that case has admitted
              the practice followed in that department for a long time and the case
              was mainly decided on the basis of past practice followed in that
  E           department for a long time. It was clearly laid down in the above case
              that if the past practice is based on one of the possible constructions
              which can be made of the rules then upsetting the same now \/Ould
              not be appropriate. It was clearly said "it is in this perspective that the
              question raised has to be determined". It was also observed as already
              quoted above that the Tribunal was not justified in taking the contrary
  F           view and unsettling the settled practice in the department. That apart
              the scheme of the rules in N. Suresh Nathan case [1992] Supp. I SCC
              584 : [1992] SCC (L&S) 451 : (1992) 19 ATC 928) was entirely
              different from the scheme of the Rules before us. The rule in that
              case prescribed for appointment by promotion of Section Officers/
  G           Junior Engineers provided that 50 per cent quota shall be from Section
              Officers possessing a recognised degree in Civil Engineering or
              equivalent with three years' service in the grade failing which Section
              Officers holding Diploma in Civil Engineering with six years' service
              in the grade. The aforesaid rule itself provided in explicit terms that
              Section Officers possessing a recognised Degree in Civil Engineering
  H
          PRAMOD K. PANKAJ v. STATE OF BIHAR [S.B. SINHA, J.]               927
       was made equivalent with three years' service in the grade. Thus, in         A
       the scheme of such rules the period of three years' service was rightly
       counted from the date of obtaining such degree. In the cases in hand
       before us, the scheme of the rules is entirely different."

     It was further observed :
                                                                                    B
       " ... The Rules in our case do not contemplate any equivalence of any
       period of service with the qualification of acquiring degree of
       graduation in engineering as was provided in express terms in N.
       Suresh Nathan case (1922 Supp (1) SCC 584: 1992 SCC (L&S) 451:
       ( 1992) 19 ATC 928) making three years service in the grade equivalent
       to degree in engineering. In our opinion, the Rules applicable in the C
       cases before us clearly provide that the diploma-holders having
       obtained a degree of engineering while continuing in service as Sub-
       Engineers shall be eligible for promotion to the post of Assistant
       Engineer in 8 years of service and quota of 10 per cent posts has been
       earmarked for such category of persons."                               D
      This aspect of the matter was also considered in Satpal Anti/ (supra),
holding :

       " ... Such rules for promotion do not contain any provision for
       determining inter se seniority for the purpose of giving promotion           E
       earlier or later with reference to date of passing the qualifying
       examination. In our view, Mr. Goswami is justified in his contention
       that in the absence of any specific rule indicating inter se seniority to
       be observed with reference to the date of passing the qualifying
       examination and promotion to be given on the basis of such inter se
       seniority, general principle of length of service as a basis for promotion   F
       amongst eligible candidates with qualifying service should be made
       applicable ..."

      Yet again in D. Stephen Joseph (supra), this Court following MB.
Joshi (supra), observed :
                                                                                    G
       "It appears to us that the State Government is labouring under a
       wrong impression as to the applicability of the past practice as indicated
       in Suresh Nathan case (1992] Supp 1 SCC 584: (1992] SCC (L&S)
       451 : (1992) 19 ATC 928. This Court in the said decision, has only
       indicated that past practice should not be upset provided such practice
       conforms to the rule for promotion and consistently for some time            H
    928                     SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A           past the rule has been made applicable in a particular manner. In our
            view, the decision in Nathan case (1992 Supp (I) SCC 584 : 1992
            SCC (L&S) 451 : (1992) 19 ATC 928] only indicates that past practice
            must be referable to the applicability of the rule by interpreting it in
            a particular manner consistently for some time. Any past practice
            dehors the rule cannot be taken into consideration as past practice
B           consistently followed for long by interpreting the rule. It may be
            indicated here that a similar question also came up for consideration
            before this Court in MB. Joshi v. Salish Kumar Pandey, [1993]
            supp. 2 sec 419: [1993] sec (L&S) 810: (1993) 24 ATC 688].
            The decision in Suresh Nathan case [1992] Supp 1 SCC 584: 1992
c           SCC (L&S) 451 : (1992) 19 ATC 928] was distinguished in the facts
            of that case and it was indicated that when the language of the rule
            is quite specific that if a particular length of service in the feeder post
            together with educational qualification enables a candidate to be
            considered for promotion, it will not be proper to count the experience
            only from the date of acquisition of superior educational qualification
D           because such interpretation will violate the very purpose to give
            incentive to the employee to acquire higher education."

           Mr. Pandey, the learned counsel appearing on behalf of the respondents,
    however, relied upon Ashok Kumar Sharma and Ors. v. Chander Shekhar
E   and Anr., [1997] 4 SCC 18. In that case, this Court was considering a matter
    of direct recruitment. The question which arose for consideration therein was
    as to whethedn the advertisement or notification issued/published calling for
    applications constituted a representation to the public and the authority issuing
    it is bound by such representation. Having regard to the importance of adhering
    to the representation made to the public and the binding nature thereof upon
F   the authorities issuing the same, it was held that no action contrary thereto
    would be permissible, stating :

            " ... One reason behind this proposition is that if it were known that
            persons who obtained the qualifications after the prescribed date but
            before the date of interview would be allowed to appear for the
G           interview, other similarly placed persons could also have applied.
            Just because some of the persons had applied notwithstanding that
            they had not acquired the prescribed qualifications by the prescribed
            date, they could not have been treated on a preferential basis ... "

       We are not concerned in this case as regard acquisition of a qualification
H by a prescribed date. No date for acquisition of the qualification has been
           PRAMOD K. PANKAJ v. STATE OF BIHAR [S.B. SINHA, J.]                929

prescribed by reason of the aforementioned resolution dated 17.1.1979.                A
       It is further not a case where a practice had been followed for a long
time. It is also not a case where the appellants herein had allowed a seniority
list to operate without protest and stood by the same for a long time. The
seniority list dated 22.12.1992 was questioned in the year 1993 in C. W.J.C.
2489 of 1993 and the litigations are continuing since then. From the very             B
beginning, thus, the position remained fluid and the position of the parties
was not settled.

GRADATION LIST:

      Submission of Mr. Pandey to the effect that the appellants had filed            C
objections after a final gradation list was published on 22.12.1992 cannot be
accepted. If a gradation list was published by an authority relying on or on
the basis of criteria which was illegal, the seniority list issued pursuant thereto
or in furtherance thereof must necessarily fall.

FINDINGS:                                                                             D

      The proposition of law, therefore, which emerges from the
aforementioned discussions is that in absence of any statutory rule governing
the field the criteria for promotion should be construed upon applying the
principle of literal meaning as also continuous officiation in the lower post.        E
      We are, therefore, of the view that the impugned judgment cannot be
sustained.

       We, therefore, are of the opinion that the aforementioned order dated
22.12.1992 passed by the Water Resources Department being illegal and                 F
without jurisdiction, the impugned seniority list cannot be sustained which is
set aside accordingly. We are further of the opinion that having regard to the
facts and circumstances of the case, the order of the High Court dated
18.9.1997 passed by the High Court in L.P.A. No.1018 of 1997 refusing to
condone the delay must also be set aside. We condone the delay and direct
that the writ petitions filed by the appellants herein should also be disposed        G
of on the above terms.

     For the reasons aforementioned, the appeals are allowed and the
judgments under appeals are set aside. No costs.

v.s.s.                                                         Appeals allowed.       H