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TMI Blog1998 (10) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... rk load in the Department since Assistant Engineers approved by the Commission were not available and that the promotions were only for a period of one year. Since then, the appellants have been working uninterruptedly on the post of Assistant Engineers. 2. Respondents 3 4 were selected through the Commission and appointed directly as Assistant Engineers in the P.W.D. by order dated 9.8.1979. The commission held in the year 1980, an interview of some of the promotes to be considered for the post of Assistant Engineers. The appellants have a grievance that though their juniors were called for interview, they were not considered without any reason therefor. However that grievance is outside the scope of the present controversy. In the interview held in the year 1984, the appellants were also called and they were duly approved and selected by the Commission. Consequently, they were confirmed as Assistant Engineers. 3. In the meanwhile, one D.N. Saksena, who was an adhoc promotee as Assistant Engineer in the year 1970 just like the appellants and approved by the commission in the year 1980, filed a Writ Petition in the High Court namely W.P. No. 1536 of 1981. claiming seniority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority list as one based on the rulings in D.N.Saksena and V.K.Yadav. 7. The Division Bench of the High Court has quashed the seniority list on the ground that it was against the decision of this Court in P.D. Aggarwal. The Division Bench also held that the judgments in Saksena and Yadav wer also contrary to the said decision of this Court and not good law. The Division Bench held that the period of service rendered by the promotee - Assistant Engineer before the appointment in accordance with the rules, that is appointment with the consultaiton of the Commission, can not be counted for the purpose of determining the seniority. 8. That is the judgment which is challenged in this appeal. Three questions were posed by the appellants for consideration: 1. Whether in the facts and circumstances of the case the appellants are entitled to seniority on the post of Assistant Engineers from the date they have been officiating as such or from the date they were selected and approved by the Commission? II. Whether the appellants can be deprived of the benefits of their officiating service prior to the approval of the Commission for the purpose of seniority in view of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e candidates and draw up, in order of merit a list of candidates considered suitable for promotion. A supplementary list of candidates whom the Secretary considers suitable for officiating or temporary appointments shall also be drawn and both lists should be sent to the Commission along with Character Rolls, etc. The Commission after examining the rolls may add to the lists as they may like and return them to the Govt. Thereafter the candidates will be interviewed by a Selection Committee preside over by a representative of the Commission. The Committee shall thereafter prepare two lists and place them before the Commission. The Commission shall make their final recommendations to the Govt. Appointments will be made on the basis of such recommendations. Rule 23 provides for seniority and sub rule (d) is very relevant in this case and it reads thus: As and when cacancies are allocated in any year according to the promotion specified in the first proviso to rule 6, the inter-se seniority of those referred to in clauses (a), (b) and (c) above will be determined by framing a cycle of 4 according to the following formula - 3. D 4. D ---------------------- Repeat Note ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the chronological order, In G.P. Doval and ors. Versus Chief Secretary. Govt. of U.P. and Ors. (1984) 4 S.C.C. 329, it was held that subsequent approval by Public Service Commission to temporary appointments already made will relate back to the date of initial appointment for the purpose of reckoning seniority on the basis of the general rule of continuous officiation in the absence of any particular rule framed in that regard. That case related however to a dispute between two sets of direct recruits. 15. In O.P.Singla versus Union of India (1984) 4 S.C.C. 450 the contest was between promotees and direct recruits. A Bench of Three Judges held that the seniority of direct recruits and promotees appointed under the Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts Created in the Service or in substantive vacancies to which they were appointed in a temporary capacity. 16. In P.O. Aggarwal and others versus State of U.P. (1987) 3 S.C.C. 622 the dispute was between two sets of direct recruits. Whatever observation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 ad hoc promotions were made when the persons concerned were not eligible and had not completed qualifying period of service. Though they were later selected by D.P.C. on regular basis and appointed as such to the promotion post on their completing the qualifying period of service, it was held that their ad hoc period of service cannot be counted for the purposes of their seniority. 18. In Direct Recruit Class II Engineering Officers Association versus State of Maharashtra and others (1990) 2 S C C 715, the Constitution Bench held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appintment and not according to the date of his confirmation. The Bench summed up the law in the form of eleven propositions. It is sufficient to refer to the first two propositions which are the following terms : (A) Once an incumbent is appointed to a post according to rule, his seniority has to be rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Govt. of A.P. 1995 Supp. (1) SCC 572 the contest was only between two sets of direct recruits and the decision turned on an interpretation of the relevant Service Rules. 23. In V.P. Shrivastava and ors. Versus State of M.P. (1996) 7 SCC, 759 the promotees who were appointed de horse the rules and not approved by the Public Service Commission, were held to be juniors to direct recruits regularly appointed after selection through Public Service Commission in spite of their longer service. 24. In U.P. Secretariat case J.T. 1997 (2) S C 461 the promotees were appointed in officiations capacity against vacancies reserved for direct recruitment as no direct recruitment had taken Place. This Court affirmed the judgment of the High Court holding that direct recruit was to be treated from the date on which he actually joined the service and the promotee was to be fitted into the service from the date when he was entitled to figment in accordance with quota and rota prescribed under the Rules. 25. The ruling in Jagdish Ch. Patnaik J.T.1998 (3) S C 105 has no application in this case. It is wholly unnecessary to invoke the principle stated in Mohd. Sadar Ali J.T. 1998 (5) S C 627 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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