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TMI Blog2013 (7) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... vinda Rao (2007) 12 SCC 148. Whether the decision given in Devi Prasad v. Govt. of A.P. [1980 (Supp) SCC 206] and State of A.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. of A.P. [1993 Supp (3) SCC 425], K. Narayanan v. State of Karnataka [1994 Supp (1) SCC 44] and State of Gujarat v. C.G. Desai [(1974) 1 SCC 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 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 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 effectively refixing the seniori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Pradesh Engineering Subordinate Service. The effect of this was that a separate cadre of Junior Engineers, distinct from erstwhile Junior Engineers/Supervisors was formed. 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 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 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 acquiring an engineering degree while in service. The weightage was subject to a maximum period of 4 years service rendered prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a matter of government policy, the State will receive any representation that may be made for change 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 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 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 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 Supervisors who have acquired a graduate qualification while in service shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of appointment and 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 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 given by the Public Service Commission on the basis of the SQT; (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 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. 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 15.2.1983 of the impugned G.O. Ms No. 54 with e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution Bench decision in B.S. Yadav v. State of Haryana 1980 Supp SCC 524 that retrospective operation could be given to the 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. 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 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 perform substantially the same functions and hold the same 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 impacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Ms. Zinullabuddin 1986 31.7.1986 31.7.1982 4. G.Uppalaiah V.T. 1987 4.10.1987 19.11.1983 5. Venkateshwarlu 1987 4.10.1987 26.2.1984 6. K. Bhaskar 1988 8.9.1988 2.6.1985 7. P. MaheedarRaj 1988 3.3.1989 30.10.1985 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 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. 27. The High Court then relied upon B.S. Yadav, K.C. Arora v. State of Haryana (1984) 3 SCC 281, P.D. 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 civil right of seniority of the Junior Engineers could not be taken away by applying the impugned G.O. Ms retrospectively. Relying upon Devi Prasad and Muralidhar it was held that weightage of past service can be given to the Supervisors only from the date of appointment. 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson, like any of the Respondents, to avoid the long tortuous wait leaves his position in the never-ending 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 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 the constitutional guarantee of equal treatment. As pointed out by this Court in Ganga Ram case [(1970 1 SCC 377] in applying the wide language of Articles 14 and 16 to concrete cases, doctrinaire approach 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. 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. 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seniority of Supervisors based on weightage vis-a-vis Junior 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 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 10(a)(i)(1) of the Andhra Pradesh 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 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 was made in the unit concerned . The relevant portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that we are concerned with in these appeals. 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 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 its retrospective operation. In this context, it was observed: 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 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. 49. This Court quoted Note (2) relating to the appointment by transfer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legality or validity thereof. The issue of weightage for seniority was not 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 with this issue. 53. Venkat Reddy was decided in the context of a specific situation and did not lay down any general principle for application either confirming or contradicting the principles laid 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 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 the issue is now well settled. However, on the question of weightage of service for seniority, the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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. 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 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' Assn. (Direct Recruit) v. State of U.P. (2006) 10 SCC 346, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 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: (i) 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 list, as the case may be. (ii) 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 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 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. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 A.N. Pathak v. 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 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 impermissible. In addition as pointed out by the High Court, there is no indication of the vacancy position, that is, whether the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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