Holding

Retrospective promotion to a date before an employee entered the cadre is illegal and cannot be used to alter the seniority of directly recruited engineers.

Summary

The case concerned the inter‑se seniority of Assistant Engineers in the Bihar Engineering Service, Class II. Directly recruited engineers (respondents 1‑5) were appointed in 1961, while overseers promoted to the same post (appellants 6‑23) were later given retrospective promotion dates of 1958, 1961 and 1962 by Government orders dated 12 July 1975, 20 January 1976 and 9 April 1977. The petitioners challenged these orders, arguing that a promotion cannot be back‑dated to a time when the employee was not yet in the cadre and that seniority must be measured from the actual date of entry into the service. The Supreme Court held that such retrospective promotions are arbitrary, illegal and inoperative, as seniority among members of the same grade is determined from the date of their initial entry. Consequently, the High Court’s order quashing the Government orders was affirmed and the appeals were dismissed.

Issues considered

Whether a promotion can be given retrospectively to a date before the employee entered the cadre, thereby affecting the seniority of others.
Whether seniority among Assistant Engineers should be reckoned from the date of actual entry into the service.
Whether the Government orders dated 12 July 1975, 20 January 1976 and 9 April 1977 are valid under Rule 2 of the Bihar Public Works Department Code.

Subjects

service lawpromotionseniorityretrospective promotionBihar Engineering Servicepublic service recruitmentquotaarbitrary order

Judgment

STATE OF BIHAR AND OTHERS ETC.
A V.
AKHOURI SACHINDRA NATH AND OTHERS ETC.

APRIL 19, 1991
..,,
B [B.C. RAY AND R.M. SAHAI, JJ.]

Service Law: Bihar Public Works Departments Code: Rule 2-
Bihar Engineering Service, Class II-Assistant Engineers-25% of
posts to be filled up by promotion and 75% by direct recruitment-
Seniority promotees and direct recruits-Whether seniority can be con-
/erred on promotees retrospectively from a date they were not born in
c ,the Cadre. .
Under Rule 2 of the Bihar Public Works Department Code, the
Governor of Bihar took a decision on 7.4.1958 providing that 25% of the
posts of Assistant Engineers in the Bihar Engineering Service, Class 11
D (the Service) were to be Med by promotion, subject to availability of
suitable hands, from Overseers in the Bihar Subordinate Engineering
Service (Irrigation Department) and 75% of the posts were to be filled
by direct recruitment to the Service. Respondents no. 1 to S in both
these appeals were appointed as Assistant Engineers in the Service on :.
the recommendation of the Bihar Public Service Commission in the year
E 1961; .and the ap)lella!tts (in Civil Appeal No. 233 of 1978 (respondents
no. 6 to 23 in Civil Appeal No. 232 of 1978), who had been working as
Overseers in the Bihar Subordinate Engineering Service (Irrigation
Department) were promoted to the postS of Assistant Engineers in the
Service In 1962 and thereafter. However, by orders dated 12. 7.1975,
20.1.1976 and 9.4.1977, the Government changed the date of promotion ~

F of the appellants to the dates prior to the appointment of respondents
no. 1 to Sin the Service, making the former Senior to the latter.

Respondents no. 1 to S flled writ petition before the High Court
challenging the seniority conferred on the appellants from the retros-
pective date and contended that the orders giving promotions to the
G appellants from a date earlier to date of their promotion In the Service
purported to affect prejudicially respondents no. 1 to S's right
inasmuch as they were appointed to the Service earlier to the promotion
of the appellants; and that the seniority had to be reckoned amongst the ""
officials working as Assistant Engineers in the Service from the date of
their appointment or promotion to the said Service. The appellants
H contended that they were entitled to be promoted retrospectively on the

410
-
STATE OF BIHAR v. A.S. NATI' 411

basis of reservation of 25% of the Cadre posts in the Service till 1958.
A
The High Court, holding that the orders promoting the appellants
-~ with retrospective effect were bad, quashed the same and allowed .the
writ petition. Hence the present appeals.

On consideration of the legality and validity of the orders of the ·B
Government giving promotions to the appellants from a date earlieNo
the date of their entry into -the Service as Assistant Engineers, and its
effect on the inter-se seniority amongst the appellants and respondents
no. 1 to 5, who were directly appointed as Assistant Engineers in the
j Service before the appellants entered in the said Service.

Dismissing the appeals, this Court, c

_HELD: 1. The Government Orders dated 12.7.1975, 20.1.1976
and 9.4.1977 which purported to give promotion to the appellants
retrospectively were arbitrary, illegal and inoperative inasmuch as
these seriously affected respondents no. 1 to 5. The appellants were not D
borne in the cadre of Assistant Engineers even in officiating capacity at
time when respondents no. 1 to 5 were directly recruited to the post of
Assistant Engineer. As such, the promotee appellants could not be under
any circumstance given seniority over the directly recruited respondents
no. 1 to 5. The judgment of the High Court in quashing the impugned
Government Orders was, therefore, unexceptionable. [418F-H; 420A] E

2.1 No person can be promoted with retrospective effect from a
... date when he was not home in the Cadre so as to adversely affect others;
and amongst members of the same grade, seniority is reckoned from the
date of their initial entry into the service. [419F]
F
2.2 Seniority inter-se amongst the Assistant Engineers in Bihar
Engineering Service, Class 11 would be considered from the date of th~
length of service rendered as Assistant Engineers. Therefore, the appel-
lants could not be made senior to respondents no. 1 to 5 by the
impugned Government Orders as they entered into the said Service in
1962 and thereafter by promotion subsequent to the respondent no. 1 to G
5 who were directly recruited in the quota meant for them. There was
- nothing to show that the appellants could be deemed to be recruited in
1958 quota and that these vacancies were carried forward. [419G; 418E-F]

A.K. Subraman and Ors. v. Union of India and Ors., (1975] I
SCC 319, relied on. H
412 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A V.B. Badami v. State of Mysore and Ors., (1976] 1 SCR 815 and
Gona/ Bihimappa v. State of Karnataka, (1987] Supp. SCC 207, held
inapplicable.

D.K. Mitra and Ors. v. Union of India and Ors., (1985] Supp.
sec 243, referred to.
CIVIL APPELLAIB JURISDICTION: Civil Appeal Nos. 232-
233 of 1978.

From the Judgment and Order dated 19.7.1977 of the Patna High
Court in C.W.J.C. No. 756 of 1977.
c Ashok Sen, Shankar Ghosh, Tapas Ray, Ms. S. Janani, Ms.
Minakshi, Mrs. Urmila Kapoor, D. Govardhan, Rakesh K. Khanna,
Salman Khurshid, R.P. Singh, D.D. Mishra, Mrs. G.S. Mishra and
D .P. Mukherjee for the appearing parties.

D The Judgment of the Court was delivered by

RAY, J. These two appeals were filed against the common judg-
ment and order dated 29th July, 1978 made by the Division Bench of
the High Court at Patna in C.W.J.C. No. 756 of 1977 whereby the
High Court quashed the orders of the Government contained_ in Anne-
E xures 8, 9_ and 10 to the writ petition. The facts unfurled from the writ
petition are as follows:

The respondent Nos. 1 to 5 in these appeals (the petitioners in
the writ petition) were directly appointed in the Bihar Engineering
Service Class II as Assistant Engineers of the Irrigation Department
F on the recommendation of Bihar Public Service Commission and were
posted in River Valley Project in 1961. The respondent Nos. 6 to 23 in
C.A. No. 232 of 1978 (who are appellants in C.A. No. 233 of 1978 and
respondent Nos. 5 to 22 in the writ petition) were working at that time
as Overseers in the Bihar Subordinate Engineering Service (Irrigation
Department). On 7th April, 1958 the Governor took a decision under
G rule 2 of the Public Works Department Code that 25% of the posts in
the Bihar Engineering Service, Class II shall be filled up. by promo-
tion, subject to availability of suitable hands. Thus, out of the total
vacancies in Bihar Engineering Service, Class II, 75% of the vacant
posts as determined by the Government will be filled up by direct
recruitment and 25% of the vacant posts will be filled up by promotion
H subject to availability of suitable candidates. By notification dated
STATE OF BIHAR ~- A.S. NATII [RAY. J.] 413

18th July, 1964/27th August, 1964, respondent Nos. 6 to 13 in C.A.
A
No. 232 of 1978 {appellant Nos. 1 to 8 in C.A. No. 233 of 1978 and
respondent Nos. 5 to 12 in the writ petition) who were members of the
T Bihar Subordinate Engineering Service (Overseers) were promoted to
the post of Assistant Engineer in Class II and by another notification
dated 21st July, 1969, respondent Nos. 14 to 23 in C.A. No. 232 of
1978 (appellant Nos. 9 to 18 in C.A. No. 233 of 1978 and respondent B
Nos. 13 to 22 in the writ petition) were also promoted to Bihar
Engineering Service, Class II as Assistant Engineers. On February 25,
1969, a seniority list of Assistant Engineers was published by the
Department wherein the names of the respondent Nos. 1 to 5 {the
~
petitioners) were mentioned at SI. Nos. 170, 199, 208,211and226 and
the names of the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in
the writ petition) were mentioned at SI. Nos. 253, 254, 256 to 262, 687 c
to 695 and 701 respectively. The respondent Nos. 6 to 23 were thus
shown as juniors to the respondent Nos. 1 to·5 {the petitioners). The
respondent Nos. 6 to 23 feeling aggrieved by the said seniority list
made representations claiming seniority over respondent Nos. 1 to 5.
On 3rd May, 1972 the State of Bihar constituted a Committee known D
as Ramanand Committee by a resolution to consider the inter se
" seniority of Civil Engineers including the Assistant Engineers. On
April 19, 1973 the Ramanand Committee submitted a report making
certain recommendations. It was alleged that a revised seniority list
was prepared wherein the respondent Nos. 1 to 5 were shown juniors
to the respondent Nos. 6 to 23. This, of course, has been denied in E
affidavit-in-counter filed on behalf of the Government (appellants in
.. C.A. No. 232 of 1978, respondent Nos. 6 to 9 in C.A. No. 233 of 1978,
and respondent Nos. 1to4 in the writ petition). On 21st of July, 1975,
an order was made whereby the date of promotion of respondent Nos.
6 to 13 was changed from 21st July, 1962 to 27th February, 1961
thereby making the respondent Nos. 1 to 5 juniors to respondent Nos. F
6 to 13. This order is contained in annexure 8 to the writ petition. In
other words, the respondent Nos. 6 to 13 were promoted retrospec-
tively from the said date. The respondent Nos. 1to5 made representa-
tions to the State against it but the State Government. instead of red-
ressing their grievances made another order on January 20, 1976
~
{annexure 9. to the writ petition) re-fixing the seniority of respondent G
Nos. 6 & 7 promoting them to the Bihar Engineering Service with
effect from December 19,. 1958. Again, to the prejudice of the respon-
dent Nos. 1 to 5, an order was passed by the State Government by
which the date of promotion of respondent Nos. 14 to 23 was pushed
back to February 27, 1961 making them also senior to the respondent
Nos. 1to5. This order is contained in annexure 10 to the writ petition. H
414 SUPREME COURT REPORTS (1991] 2 S.C.R.

The respondent Nos. 1 to 5, therefore, filed a writ petition in the
A
High Court at Patna being Civil Writ Petition No. 756 of 1977 chal-
lenging the seniority conferred on the respondent Nos. 6 to 23 (respon-
dent Nos. 5 to 22 in the writ petition) by annexures 8, 9 and 10 on the
ground that these oql~rs were wholly arbitrary illegal, void and
inoperative· and ineffective and so prayed for appropriate writ for
B quashing those orders.

A counter-affidavit was filed on behalf of the State Government.
In Para 3(iii) of the said affidavit, it has been averred·that till 1957,
25% of the vacancies in Bihar Engineering Service, ·Class II, were
being filled up fly promotion from the Bihar Subordinate Engineering
c Service (commonly known as 'Overseers'). Subsequently, in the year
1958, it was decided that 25% of the cadre posts in the Bihar Engineer-
ing Service, Class II both permanent and temporary, shall be reserved
for being filled up through promotion from the members of the Bihar
Subordinate Engineering Service. It has been further averred in para
3(iv) that all the posts of temporary Assistant Engineers to which the
D Overseers were entitled to be promoted on the basis of 25% reserva-
fion in the cadre were not filled up by promotion of Overseers, only 3
overseer~ were given promotion with effect from 19.12.1958 vide order
No: A/Pl-409-64-1-14294 dated 18.7.64f27.8.64. In the said affidavit it
ha~ also been stated that on a careful examination of the matter it was
found that on the basis of total number of posts of Assistant Engineers
E in the Department, the Overseers were entitled to 60 posts on the basis
of 25% reservation till 1958, out of which they were already given 33
posts and 27 more posts of Assistant Engineers were still due to them
and accordingly by an order dated 20th January, 1976 the 21 Overseers
who had earlier 'Ileen given promotion as temporary Assistant
Engineers from later dates in 1960, 1961 and 1962 by the order dated
F 18.7.64/27.8.64 were given promotion, with effect from 19.12.1958.
Due to this correction, respondent Nos. 6 and 7 and one Shri
Mithileshwari Sahay (since retired) were promoted as temporary
Assistant Engineers with effect from 19.12.1958 in partial modification
of the Government order dated 18.7.64/27.8.64 and another order
dated July 12, 1975. It has been further stated that as a result of this
G modification in the dates of promotion as Assistant Engineer who by
the order dated 20th January, 1976 were allowed promotion as
temporary Assistant Engineers with effect from 19.12.1958 as against
promotions from later dated in 1960, 1961 and 1962 given to them by
earlier Government Order dated 27 .8.1964 and order dated 21.7 .1969.
It has also been stated that the respondent Nos. 6 and 7 were entitled
H to promotion in 1958 and respondent Nos. 8 to 23 to promotions in_
STATE OF BIHAR v. A.S. NATH [RAY, J.] 415

1960 and 1961, on the basis of the reservation of25% of the cadre post
in the Bihar Engineering Service, Class II, for promotion of Overseers A
from the Bihar Subordinate Engineering Service. It has been further
' averred that as against 21 consequential vacancies, the case of only 17
Overseers was, modified accordingly in supersession of the earlier
Government order dated 18.7.64/27.8.64 and respondent Nos. 8 to 13
were given promotion as temporary Assistant Engineer with effect B
from 27.2.1961, from which date the promotion was due to them on
the basis of the quota by a Government Order No. 10501 (annexure 8 ,
to the writ petition) dated July 12, 1975 and No. 17328 dated
Novembe~ 8, 1975 respectively. It has also been stated that the senio-
rity list that was prepared and published in 1969 was tentative.

The High Court, Patna held that no person can be promoted with c
retrospective effect from a date when he was not born in the cadre so
as to adversely effect others. The respondent Nos. 1 to 5 were
recruited to the post of Assistant Engineer, Class II before the respon-
dent Nos. 6 to 23 were promoted to the post of Assistant Engineer,
Class II in the Bihar Engineering Service, Class II. The High Court, D
therefore, held that the orders contained in Annexure 8, 9 and 10
promoting the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the
writ petition) with retrospective effect are bad and so quashed those
Government orders referred to in the said annexures.

Against this judgment and order made by the High Court, the E
instant appeals on special leave were filed .
. The sole question which falls for decision in these appeals is
whether the inter-se seniority between the petitioners-respondent Nos.
1 to 5 who are direct recruits and the Overseers belonging to the Bihar
Subordinate Engineering Service (Irrigation Department) who had F
been promoted retrospectively in their 25% quota for the year 1958 as
revised by the Government orders mentioned in annexures 8, 9 and 10
to the writ petiiion, is arbitrary, illegal and inoperative as those orders
purport to affect prejudicially the seniority of the petitioners-res-
pondent Nos. 1 to 5 in the service of Bihar Engineering Service, Class
II. It is not disputed that in 1958 under Rule 2 of the Public Works G
Department Code, the Governor of Bihar took a decision to the effect
that 25% of the posts in the Bihar Engineering Service, Class II shall
be filled up by promotion, subject to availability of suitable hands. It
also appears from the counter-affidavit filed on behalf of the Govern-
ment that in 1958, the total number of posts to be filled up by promo-
tion from the Overseers in the Bihar Subordinate Engineering Service H
416 SUPREME COURT REPORTS [1991] 2 S.C.R.

(Irrigation Department) to the post of Assistant Engineer, in Bihar
A
Engineering Service, Class II was 60 out of which only 33 posts were
filled up by promotion, leaving 27 more posts of Assistant Engineers
to be filled up by promotion from the Overseers in the Bihar Subordi-
nate Engineering Service (Irrigation Department). It is also clear from
the averments made in the said counter-affidavit that the petitioners-
B respondent Nos. 1 to 5 were appointed in Bihar Engineering Service,
Class II on the recommendation of the Bihar Public Service Commis-
sion in the year 1961 and the respondent Nos. 6 to 13 who had been
working in the Bihar Subordinate Engineering Service (Irrigation
Department) as Overseers and having independent charge of the sub-
division were promoted to the post of Assistant Engineer, Class II by
notification dated 18.7.64/27.8.64. The respondent Nos. 14 to 23 were
c also promoted by a notification dated 21.7.1969. On the basis of these
appointments and promotions in the post of Assistant Engineer in the
Bihar Engineering Service, Class II, a seniority list was prepared and
published in February, 1969 tentatively wherein the petitioners-
respondent Nos. 1 to 5 were shown as senior to respondent Nos. 6 to
D 23. However, the Government by its order dated 21st July, 1962
changed the date of promotion of respondent Nos. 6 to 13 from
21.7.1962 to 27.2.1961 (Annexure 8 to the writ petition) thereby
making the petitioners-respondent Nos. 1 to 5 junior to respondent
Nos. 6 to 13. On January 20, 1976, the Government passed another
order re-fixing the seniority of respondent Nos. 5 & 6 promoting them
E to Bihar Engineering Service, Class II with effect them 19.12.1958
(Annexure 9 io the writ petition). Again an order contained in Anne-
xure 10 to the writ petition was passed by which the date of promotion
of respondent Nos. 14 to 23 was pushed back to February 27, 1961,
thus making them senior to the petitioners-respondent Nos. 1to5. The
petitioners-respondent Nos. 1 to 5 challenged these three Government
F orders mainly on the ground that these orders giving promotion to the
respondent Nos. 6 to 23 from a date earlier to their date of promotion
to the post of Assistant Engineer in Bihar Engineering Service, Class
II purport to affect prejudicially the rights of the petitioners-res-
pondent Nos. 1 to 5 in as much as they were appointed to the post of
Assistant Engineer in the Bihar Engineering Service, Class II earlier to
G the promotion to the said post of the respondent Nos. 6 to 23. It has
also been submitted in this connection that the seniority has to be
reckoned amongst the officials working as Assistant Engineers in the
Bihar Engineering Service, Class II from the date of their appointment
on promotion to the said Service. The petitioners-respondent Nos. 1 to
5 being appointed earlier directly in the quota of direct recruits than
H the promoted respondents who were promoted later cannot be given
STATE OF BIHAR v. A.S. NATH [RAY, J.] 417

seniority in service to the petitioners-respondent Nos. 1 to 5 and it was
A
contended that the impugned orders are wholly illegal and unwar-
ranted and so the High Court has rightly quashed the said orders. It
has heen further urged in this connection that the State can promo.te its
employees with retrospective effect provided such retrospective pro-
motion does not affect the right and seniority already earned by
others. The petitioners-respondent Nos. 1 to 5 who were senior to the B
promotee-respondents Nos. 6 to 23 were made junior to them by the
said Government orders as contained in Annexure 8, 9 and 10 to the
writ petition. It has, therefore, been contended that the promotion to
the respondent Nos. 6 to 23 was illegal and arbitrary as the same had
prejudicially affected the petitioners-respondent Nos. 1 to 5 in regard
to their seniority.
c
The High Court while rendering its judgment relied on the deci-
sion in the case of A.K. Subraman and Ors. v. Union of India and
Ors., (1975] 1 SCC 319 specially on the observation made therein as
under:
D
"Once the Assistant Engineers are regularly appointed to
officiate as Executive Engineers within their quota they
will be entitled to consideration in their own rights as Class
I Officers to further promotions. Their "birth marks" in
their earlier service will be of no relevance once they are
regularly officiating in the grade of Executive Engin~er E
within their quota."

• The High Court held that no person can be promoted with retrospec-
tive effect from a date when he was not born in the cadre so as to
adversdy affect others.
F
It is the admitted position that the respondent Nos. 6 to 23 were
working as Overseers in the Bihar Subordinate Engineering Service
and were promoted to the post of Assistant Engineer in Bihar
Engineering Service, Class II much after the petitioners-respondents
Nos. 1 to 5 were directly recruited and appointed on the basis of the
- recommendation of the Bihar Service Commission, to the post of G
Assistant Engineers in 1961 and as such they have been working in the
grade of Assistant Engineers much before the respondent Nos. 6 to 23.
Undoubtedly, on the basis of the o.rder of the Governor in 1958, the
posts of Assistant Engineers are to be filled up from two sources i.e. by
direct recruitment as well as by promotion from Overseers working in
the Bihar Subordinate Engineering Service and the ratio of the vacan- H
418 SUPREME COURT REPORTS [1991) 2 S.C.R.

cies to be filled up has been fixed as 75% from the direct recruits and
A
25% froJ!l the promotees. It has been urged on behalf of the respon-
dent Nos. 6 to 23 that in view of the quota rule the respondent Nos. 6
to 23 who were promoted in the quota set out for promotees in respect 1

of the vacancies of 1958 shall be taken to be promoted in 1958 notwith-
standing that they have been actually promoted long after 1958 and
B after the direct recruits i.e. respondent Nos. 1 to 5 were recruited
directly to the post of Assistant Engineers. In other words even though
the respondent Nos. 6 to 23 have been promoted after the date of
recruitment of respondent Nos. 1 to 5 to the post of Assistant
Engineer, still then the promo tee respondent Nos. 6 to 23 should be .,.
deemed to be senior to the direct recruit respondent Nos. 1 to 5 as they
·J;;-
were promoted in the vacancies for 1958 quota set up for promotees. '
c In support of this submission the decision in V.B. Badami etc. v. State
of Mysore and Ors., [1976] 1 SCR 815 as well as Gona/ Bihimappa v.
State of Kanataka, [1987] Supp. SCC 207 were cited at the bar. In both
these cases the promotees occupied the quota of direct recruits as
direct recruits were not available to fill up the quota meant for them. It
D was held that direct recruits who were appointed within their quota
subsequently were entiled to the vacancies within their quota which )<
had not been filled up and they would become senior to the promotees
The promotees would be pushed down to later years when their
appointment could be regularised as a result of absorption in their
lawful quota of those years. The promotees cannot claim any right to
E hold promotional posts unless the vacancies fall within their quota.
These cases have no application in the instant case in as much as the
direct recruits i.e. respondent Nos. 1 to 5 were recruited in their quota
i.e. the quota meant for them. This being so, the decision in these two
.
cases has no application to the instant case. Moreover, there is nothing
to show that the respondent Nos. 6 to 23 who were promoted in 1962
F and thereafter i.e. subsequent to the direct recruits i.e. respondent
Nos. 1 to 5 could be deemed to be recruited in 1958 quota as there was
nothing to show that these vacancies were carried forward.

The Government's orders as contained in annexures 8, 9 and 10
which purport to give promotion to the respondent Nos. 6 to 23 ,. :-
G retrospectively are arbitrary, illegal and inoperative in as much as
these seriously affect the respondent Nos. 1 to 5. The respondent Nos.
6 to 23 were not in the cadre of Assistant Engineers even in officiating
capacity at the time when the respondent Nos. 1 to 5 were directly
recruited to the post of Assistant Engineer. As such, the said pro-
motee respondent Nos. 6 to 23 could not be under any circumstances,
H given seniority over the directly recruited respondent Nos. 1 to 5. The
STATE OF BIHAR v. A.S. NATII [RAY, J.I 419

High Court has rightly quoted the observation made by this Court in A
the case of A.K. Subraman & Ors. (supra) as mentioned in the preced-
ing paragraphs.
-~

It is pertinent to mention in this connection, the observation of
this Court in the case of D.K. Mitra and Ors. v. Union of India and
B
Ors., [1985] Supp. SCC 243. In this case the petitioners were con-
firmed as Assistant Medical Officers in 1962 and 1963 and they were
placed in the higher scale of Assistant Divisional Medical Officers to
the Indian Raliways with effect from January 1, 1973. Thereafter they
were appointed as officiating Divisional Medkal Officers in 1972, 1973
and 1974 and they had been continuing there uninterrupted. Respon-
dent Nos. 4 to 64 were given substantive appointments as Divisional c
Medical Officers later on but they were confirmed earlier than the
petitioners because of the zone-wise confirmation given by the Rail-
way Administration. It was held that the petitioners should be con-
sidered at par for the purpose of fixing seniority, with those appointed
to permanent posts in a substantive capacity. For the purpose of D
determining seniority among promotees, the petitioners should be
treated as having been appointed to permanent vacancies from the
~-
respective dates of their original appointment and the "entire period
of officiating service performed by them should be taken into account
as if that service was of the same character as that performed by the
substantive holders of permanent posts."
E
In the instant case, the promotee respondent Nos. 6 to 23 were
not born in the cadre of Assistant Engineer in the Bihar Engineering
Service, Class II at the time when the respondent Nos. 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 the
respondent Nos. 1 to 5. It is well settled that no person can be pro- F
moted 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 irito the
service. In other words, seniority inter-se amongst the Assistant
Engineers in Bihar Engineering Service, Class II will be considered G
from the date of the length of service rendered as Assistant Engineers.
This being the position in law the respondent Nos. 6 to 23 can not be
made senior to the respondent Nos. 1 to 5 by the impugned Govern-
ment orders as they entered into the said Service by promotion after
the respondent Nos. 1 to 5 were directly recruited in the quota of H
420 SUPREME COURT REPORJS [1991] 2 S.C.R.

A direct recruits. The judgment of the High Court quashing the
impugned Government orders made in annexures, 8, 9 and 10 is
unexceptionable.

In the premises aforesaid, we confirm the judgment and order
B rendered by the High Court. The appeals are, therefore, dismissed. In
ithe facts and circumstances of the case, there will be no order as to
costs.

R.P. Appeals dismissed.