Civil Appeal No 752 of 1984 etcetc
From the Judgment and Order dated 18983 of Andhra Pradesh Administrative Tribunal Hyderabad in Representation Petition No 799 of 1977
K Madhava Reddy TVSN Chari Ms Manjula Gupta B Kanta Rao D Prakash Reddy B Rageshwar Rao Vimal Dave K Ram Kumar Y Prabhakara Rao KR Nagaraja Krishan Kumar and G Prabhakara for the appearing parties
The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
The questions involved in these matters being common they are being disposed of by a common judgment
All these matters arise out of a common order of the AP Administrative Tribunal passed in Representation Petitions Nos
79977 54879 and 14081
SLP Civil No 521885 is filed against a separate order of the Tribunal in RP No 147380
The dispute is regarding the inter se seniority between the Supervisors who are upgraded as Junior Engineers and the degree holders who are directly appointed as Junior Engineers
All of them belong to the different branches in the AP Engineering Subordinate Service
First we shall state the relevant facts in each of the appeals and then formulate the points that arise for consideration
For convenience sake we shall refer to the parties as arrayed before the Tribunal
CIVIL APPEAL NOS
752 AND 75484  These two appeals are filed against the order in RP No 79977
The first one is filed by the State of AP and the other one by upgraded Supervisors Junior Engineers
The petitioners before the Tribunal are all Junior Engineers in 300 Irrigation and Power Department
They were initially appointed as temporary Junior Engineers in the year 196970
Later they appeared in a special qualifying test SQT  for short held by the Public Service Commission and on the basis of the result of the test their services were regularised in the post of Junior Engineers with retrospective effect from the date of the temporary appointment subject to the maintenance of the order of ranking given by the Public Service Commission in the test
The respondent Nos 3 onwards in these RPs are also Junior Engineers in the same department but they were appointed as Supervisors and on acquiring the degree they have been redesignated as Junior Engineers
Several GOMs were issued by the Government and the important one is GOMs
No 559 I  P Department dated 18777
The post of Junior Engineers was made Gazetted post
The case of the petitioners is that the respondents acquired degree qualification after 28272 therefor they were not entitled to be appointed as regular Gazetted Junior Engineers and at any rate they cannot be treated as seniors on the basis of reckoning their seniority from the date of acquiring degree qualification and that the seniority of these graduate Supervisors should be reckoned from the date of their actual appointment as Junior Engineers and not from the date of acquiring degree qualification
The respondent Supervisors on the other hand contended that they are entitled to upgradation and weightage of service from the date of their appointment as Supervisors
CIVIL APPEAL NO
75384  This appeal is filed against the order in RP No 54879
The petitioners in this RP are all Supervisors who graduated after 28272
Their contention was that they were appointed much before the respondents namely the directly recruited Junior Engineers and the services of the respondents Junior Engineers should not be regularised in such a way so as to effect the seniority of the petitioners and that the seniority of the petitioners should be reckoned from the notional date of appointment
CIVIL APPEAL NO
75584  This appeal is filed against the order in RP No 14081
The sole petitioners before the Tribunal who is a respondent here questioned GOMs
No 466 Transport Roads and Building and sought a declaration that he should be declared as senior to respondent Nos 3 and 5 and promote him to the post of Assistant Engineer
The petitioner before the Tribunal was directly recruited Junior Engineer
He also passed the SQT held in the year 1975
The respondents before the Tribunal were upgraded Supervisors who acquired the graduate qualification
GO Ms No 466 was issued 301 directing that the respondent before the Tribunal namely the upgraded Supervisors should be treated seniors to all the directly recruited Junior Engineers whose services were regularised on the basis of the SQT
The Tribunal held that the findings in the other RPs
79977 and 54879 apply to the facts of this case also and accordingly directed to prepare an inter se seniority list in the Transport Roads and Buildings Department on the lines indicated therein
RP was disposed of with those observations
The upgraded Supervisors Junior Engineers who were the respondents before the Tribunal have filed this appeal
These matters were heard together by the Tribunal
After considering the various GOMs
and the arguments the Tribunal held that there was no bar to the retrospective regularisation of the services of the directly recruited Junior Engineers from the dates of their initial appointments
It also held that the action of the Government in giving the benefit of the notional date of appointment to the upgraded Junior Engineers and the benefit of the date of regularisation of their services from the dates of their notional appointments subject to maintenance of order of ranking given by the Public Service Commission is justified
The Tribunal further held that the order of ranking given by the Public Service Commission in respect of directly recruited Junior Engineers has to be maintained and each of them will have to be treated as being entitled to count his seniority from the date on which his service has been regularised or from the date of the regularisation of the service of the person immediately below him in the order of ranking given by the Public Service Commission whichever is earlier
In paragraph 23 of the Order the Tribunal specifically held thus 23
We are of the opinion that once the dates from which the directly recruited Junior Engineers can claim seniority are thus fixed on the basis of this formula it should not be difficult to fix their inter se seniority vis a vis the upgraded Junior Engineers on the basis of the notional dates of appointment given to the latter
In this connection we would like to point out that whereas in the case of an upgraded Junior Engineer who acquired degree qualification before 2821972 seniority will have to be fixed by putting him below all the regular Junior Engineers including directly recruited Junior Engineers who are entitled to claim seniority from any date during the year in which such upgraded Junior Engineer has been given the notional date of appointment this practice cannot be followed in case of an upgraded junior Engineer who has acquired degree qualification after 2821972 in view of the fact that the provision for fixing his seniority below other Junior Engineers 302 of the particular year as was made in GO Ms No 893 dated 15672 was not made in the amended Rule as issued under GOMs
No 54 dt
1521983 His seniority will therefore have to be fixed on the basis of the specific notional date of appointment given to him by interspersing his name among the regular Junior Engineers as arranged in chronological order of dates from which such regular Junior Engineers including directly recruited Junior Engineers are entitled to count their seniority
 It is this part of the Order that has given rise to all these appeals before us
The State of AP being aggrieved by this Order filed CA No 75284 and both petitioners and respondents namely the Junior Engineers directly recruited and upgraded Supervisors as Junior Engineers are the main respondents before us
Civil Appeal Nos 753 54 are filed by the upgraded Supervisors Junior Engineers
In these two matters the Junior Engineers directly recruited are the respondents
Thus in all these matters the Junior Engineers directly recruited are the respondents
It is contended on behalf of State of AP that the direction given by the Tribunal particularly interspersing is not workable
Learned counsel for the State however pointed out that the upgraded Supervisors have put in long years of service and they have been discharging the same duties as directly recruited Junior Engineers and that this fact also has to be borne in mind in fixing the notional date of appointment of the two categories officers and in fixing their inter se seniority
Shri BKanta Rao learned counsel appearing for all the upgraded Supervisors Junior Engineers contended that in GO Ms No 559 it is specifically laid down that Supervisor who have acquired graduate qualification may be appointed as Junior Engineers after 28272 and the weightage of four years should be reckoned from the date of acquiring the degree qualification ie 28272 or thereafter
He also contended that the seniority of the upgraded Supervisor Junior Engineers should not be fixed from the date of the Order of appointment dated 8877
On behalf of the directly recruited Junior Engineers Shri KMadhava Reddy learned counsel submitted that the upgraded Supervisors can under no circumstances be treated as seniors to the directly recruited Junior Engineers
According to him appointment of Junior Engineers was suspended for some time and in view of the exigencies the degree holders were appointed on temporary basis and they have served for a number of years
Later the Government decided to make regular appointments and accordingly a Special 303 Qualification Test was held and such of those temporary Junior Engineers who were degree holders got qualified and were given the appointments and a seniority list strictly on the basis of performance in the test and on merit was prepared by the Public Service Commission and a retrospective effect was given
His further submission was that so far as the upgraded Supervisors are concerned all the relevant GOMs
make it clear that the crucial date has to be reckoned on the basis of the actual date of appointment and not on the date of acquiring the degrees
For appreciating these rival contentions it becomes necessary to refer to some of the GOMs
particularly with a view to arrive at the crucial date in respect of each of these categories for the purpose of fixation of the seniority
In respect of upgraded Supervisors who acquired a degree certain GOMs were issued from time to time
In the year 1972 GOMs
No 893 dated 15672 was issued amending the special rules for the AP Engineering Subordinate Service
The same provided that Supervisors who while in service acquire BEAMIE degree qualification shall be entitled to count 50 of the service rendered as Supervisors prior to the acquisition of such qualification subject to a maximum limit of four years
This was subject to certain conditions
One of the conditions was that they should be considered to have been placed below the last of the Junior Engineer of the year after giving such weightage
In the year 1976 another GOMs No 451 I  P dated 10676 ordered that the Supervisors who acquire the graduate qualification while in service should be appointed as Junior Engineers with immediate effect
On 81176 GOMs No815 I  P was issued
Clause 4 of the Conditions stipulated in GOMs
No893 was amended and the benefit of the weightage was directed to be given effect only to those who acquired the aforesaid degree qualification prior to 28272
Then came the important GOMs
No 559 I  P dated 18777
Relying on the contents of the above GOMs
the upgraded Supervisors claimed that the weightage of four years should be reckoned from the date of acquiring the qualification and not from the date of actual appointment
The directly recruited Junior Engineers also based their claim on GO Ms Ms Nos 451 and 559 and they further contended that the upgraded Supervisors should be treated as regularly appointed only with effect from the date of their appointment
It may not be necessary for the purpose of this case to extract the entire contents of the GO Ms that preceded GO Ms Nos 451 and 559
It would suffice if we just give the gist of those respective GOMs
Under GOMs
No 787 dated 9671 the Government declared that posts of 304 Junior Engineers would be filled in by graduate Engineers which will be made a separate category and they will be made gazetted
Therefore GOMs No240 dated 28272 was issued
Under the said GOMs 1870 posts of Supervisors in Public Works Department were declared to constitute a category of Junior Engineers and similarly in the Roads and Buildings Department 620 posts were declared to constitute as a category of Junior Engineer as distinct from Supervisors and both these categories were made gazetted with effect from that date
The GOMs also provided for temporary appointments in the case of qualified Junior Engineers being not available for filling up all such gazetted posts and all these posts of Junior Engineers in both the Departments were declared to be within the purview of the AP Public Service Commission and the method of recruitment to the post of Junior Engineer should be by direct recruitment
Then came the GO Ms No 893 dated 15672 amending the special rules for the AP Engineering Subordinate Service under which the Supervisors who acquired the qualification were declared to be entitled to count 50 of their service subject to a maximum limit of four years for the purpose of promotion to the post of Assistant Engineer from Junior Engineer
GO Ms No 782 dated 3574 was issued permitting the Junior Engineers recruited during emergency on temporary basis to apply for SQT held by the Public Service Commission
Accordingly the Rules were amended as per GO Ms No 786 dated 7874 and the adhoc rules were framed enabling the computation of period of two years with or without break in the service rendered by such degree holders Junior Engineers who appeared in the SQT held by the Public Service Commission and were declared to be selected and thus their services were regularised retrospectively giving them the benefit of the service of two years rendered prior to the actual selection
In conformity with the same Rule 33A was also relaxed for the purpose of fixing their inter se seniority
The next important GOMs
with which we are concerned is GOMs
No 451 dated 10676
It reads as under GOVERNMENT OF ANDHRA PRADESH ABSTRACT Establishment Irrigation and Power Department Appointment of Supervisors who have acquired Graduate Qualification as Junior Engineers Orders Issued
Irrigation and Power SerII Department GO MS
No Dated 10 6 1976 ORDER Consequent on the declaration of the posts of Junior 305 Engineers as Gazetted with effect from 2821972 the upgradation of Supervisors who acquired Graduate Qualification while in service as Junior Engineers ceased
Since then representations have been made to Government by several Associations that the benefit of upgradation should be extended also to Supervisors who acquired the Graduate qualification on or after 2821972
On a reconsideration of the matter the Governement are of the view that some consideration should be shown to the Supervisors who have acquired the Graduate qualification while in service
Accordingly the Government have decided that the Supervisors in PW Irrigation Department who have acquired Graduate qualification while in service should be appointed temporarily as Junior Engineers Prospectively with immediate effect
The Chief Engineer General is requested to take action accordingly Orders regarding other consequential matters will issue separately
BY ORDER AND IN THE NAME OF THE GOVERNOR OF AP M GOPALAKRISHNAN SECRETARY TO GOVERNMENT  Under this GO Ms it is proposed to extend the benefit of upgradation to Supervisors who acquired the graduate qualification on or after 28272 but the second para makes it clear that they should be appointed temporarily as Junior Engineers and that too prospectively only
The next and the important GOMs
is No559 dated 18777 which reads as under GOVERNMENT OF ANDHRA PRADESH ABSTRACT ESTABLISHMENT Irrigation  Power Department Appointment by transfer of Supervisors who have acquired Graduate qualification from 2821972 onwards as Junior Engineers Further orders Issued
306 IRRIGATION  POWER SERVICE III DEPARTMENT GO Ms No559 Dated 18th July 1977 Read the following GO Ms No451 Irrigation  Power Ser
III Department dated 10676
ORDER It was ordered in the GO cited that the Supervisors in the Public Works Irrigation Department should be appointed temporarily as Junior Engineers Prospectively with immediate effect
It was also indicated therein that orders regarding other consequential matters would issue separately
Accordingly matters relating to weightage seniority etc have been examined by the Government and the following orders are issued i Supervisors who acquire Graduate qualification may be appointed as Junior Engineers on or after 2821972 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 of degree qualification ii A Supervisor who is appointed as Junior Engineer shall be entitled to count 13rd of the service rendered by him as Supervisor before his appointment as Junior Engineer subject to a maximum of four years for the purpose of computing the service as Junior Engineer which will render him eligible for consideration for promotion as Assistant Engineer
iii The seniority of the Supervisors who are appointed 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 Engineer v No Supervisor shall ordinarily be eligible for appointment as Junior Engineer unless he has put in a minimum service of three years as Supervisors
A 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
307 3
Necessary amendment to the Special Rules for the Andhra Pradesh Engineering Service will be issued separately
The Transport Roads  BuildingPanchayati RajHousing Municipal Administration  Urban Development Department will issue amendments to the Special Rules with which they are concerned in accordance with the above decisions in consultation with the Andhra Pradesh Public Service Commission
The cadre strength of Junior Engineers was last fixed in GOMs
No 240 Public Works VI Department dated 2821972
Since then a large number of posts of Junior EngineersSupervisors have been sanctioned by Government
The Chief Engineer General is requested to submit proposals for suitably enhancing the strength of the two orders
BY ORDER AND IN THE NAME OF THE GOVERNOR OF AP M GOPALAKRISHNAN SECRETARY TO GOVERNMENT
 GO Ms No 451 is referred to in this GOMs
and in the Preamble it is clearly noted that the appointments of the upgraded Supervisors as Junior Engineers should be temporary and prospectively only
In Paragraph 2 i it is also made abundantly clear that they will not be entitled for appointment as Junior Engineers automatically from the date of acquisition of degree qualification
Coming to the weightage it is clarified in paragraph 2 ii to the effect that a Supervisor who is appointed as Junior Engineer shall be entitled to count 13rd of the service rendered by him as Supervisor before his appointment as Junior Engineer subject to a maximum of four years and the same would be taken into account to render the appointee eligible for consideration for promotion as Assistant Engineer
Paragraph 2 iii is very important regarding the seniority and the same has to be fixed with reference to the notional date arrived at after giving weightage of service Paragraph 2 v gives a clue that the weightage could be from the date of appointment
The Government however issued proceedings dated 8877 and fixed the seniority of these upgraded Supervisors who acquired the degree qualification from the date of acquiring the degree
We have already noted that vide GO Ms No 893 the special rules were amended
After the GO Ms No 559 was issued representations were made by the Association of Andhra Junior Engineers as well as from the Diploma holders Engineers Association
Having considered these representations the Government came out with another GO Ms No 593 dated 29777 and clarified that the rules only refer to the date of appointment and does not refer to selection and that the seniority of an individual or a class or category has to be fixed according to the date of his first 308 appointment and not with reference to the date of selection and the Chief Engineer General was requested to fix the seniority accordingly
The Chief Engineer General Vide proceedings No Rc
MI5806274 75 dated 8877 fixed the seniority
But in doing so he has taken the date of passing the examination by the upgraded Junior Engineers as the date of appointment
As already noted this fixation of seniority was questioned before the Tribunal
From the above resume of all the GOMs
it is clear that an interpretation of GO Ms No 559 would be decisive in the these matters
In our view the GO Ms No 559 makes it abundantly clear that the appointments of these upgraded Supervisors who acquired the graduate qualification while in service would be prospective only and that they would be entitled to the weightage of four years of service rendered before the appointment
The GO Ms does not anywhere indicate that the weightage should be from the date of acquiring the degree qualification
It must be borne in mind that it is only after acquiring such degree qualification that a Supervisor is appointed as Junior Engineer and having regard to the service rendered by him the Government as a policy decided to give weightage of four years for the purpose of considering the eligibility for promotion as Assistant Engineer
In this context it is pertinent to note that the degree holders were appointed temporarily because of a ban and later the Government again as a policy decision decided to make regular appointments by direct recruitment but enabled the degree holders who are in temporary service to appear in a SQT
Again as a matter of policy the Government decided to give some weightage to the service rendered by them before the appointment by selection
It can thus be seen that the Government in fixing the seniority for the purpose of future promotion of the appointees both the upgraded as well as those selected by the Public Service Commission in SQT has taken into account the past service rendered by them
In the case of upgraded Junior Engineers weightage of four years  service is given and in the other case two years  weightage is given
In this context it is contended on behalf of the upgraded Junior Engineers that the regularisation of the direct Junior Engineers retrospectively that is with effect from two years prior to the date of their appointments is unwarranted
In this context the Tribunal has rightly pointed out that under Rule 23 A of the AP State and Subordinate Service Rules 1962 if a person having been appointed temporarily under Rule 10 to a post borne on the cadre is subsequently appointed in the service in accordance with the rules he shall commence his probation from such subsequent date or the earlier date as the appointing authority may determine
We agree with the Tribunal that there is no bar to the retrospective regularisa 309 tion of the service of the direct Junior Engineers
However in the instant case it was a special selection by SQT restricted to the directly recruited Junior Engineers who had put in two years of service and the objective was to regularise their services
As stated supra as a matter of policy the Government gave weightage to both the categories
In Devi Prasad and others vs Government of Andhra Pradesh and others
AIR 1980 SC 1185 GO Ms No893 referred to above was questioned on the ground of unreasonableness in the matter of giving weightage to the upgraded supervisors
This Court held that in the light of their experience there is nothing unreasonable in giving them limited benefit or weightage
It was further observed as under Ultimately it is a matter of Government policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service
In the present case there may be truth in the case of the appellants that they are hit hard because of the new rule
Dr Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby
But mere hardship without anything arbitrary in the rule does not call for judicial intervention especially when it flows out of a policy which is not basically illegal
However Government must be interested in keeping its servants specially in strategic areas like engineering contended and efficient
In so producing contentment it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them
A sense of justice must permeate both the groups However the upgraded Junior Engineers who having got the benefit of four years  service cannot be heard to say that similar weightage cannot be given to the direct recruits who prior to the selection were working on temporary basis
Shri Kanta Rao learned counsel relied on the decisions of this Court in Smt
MNirmala and other vs State of Andhra Pradesh and others etc 19863 SCC 647 Ashok Gulati and others vs BS Jain and others
 1986 Supp SCC597 Direct Recruit Class II Engineering Officers  Association vs State of Maharashtra and others 1990 2SCC 715 and Masood Akhtar Khan and others vs State of Madhya Pradesh and others and contended that both the categories were discharging the same duties and there should not be any discrimination
Learned counsel also relied on some unreported judgments of the Andhra Pradesh High Court in writ Petitions Nos
1929 1006 and 2387 310 73 and also Writ Petitions Nos
389772
We have perused all these judgments and we are of the view that such a question did not arise in these cases
The question to be considered is from which date the weightage of four years  service should be given to the upgraded Junior Engineers namely the Supervisors
Is it the date of acquiring the degree qualification or the date of their appointment Having given our earnest consideration and for the reasons stated above we hold that the weightage can be given only from the date of their appointment
The Tribunal in the course of its order however observed that in accordance with the existing rules the appointments of these Junior Engineers from the notional date have to be cleared by the Public Service Commission and the appointments cannot be held to be regular appointments as long as they are not approved by the Public Service Commission
Having referred to the Rules the Tribunal in paragraph 18 observed thus We thus find that the appointment of the upgraded JEs as well as the direct JEs to the Gazetted posts have not been made strictly in accordance with the Rules and hence it is necessary for the Government to issue specific orders after following the procedure laid down in the Rules in regard to their appointment to the Gazetted post of Junior Engineers
 Having so observed the Tribunal suggested some working formula in the meanwhile
In evolving this formula the Tribunal further held thus
Thus after having examined the points raised for and against the action taken by the Government in giving the upgraded Junior Engineers the benefit of the notional dates of appointment given to them and in giving the direct Junior Engineers benefit of the dates of the regularisation of their services from the dates of their initial appointment subject to the maintenance of the order ranking given by the PSC we feel that the Government action in this respect was quite justified
 Towards the end the Tribunal however observed that the seniority of the upgraded Junior Engineers who acquired the degree qualification before 28272 will have to be fixed by putting them below all the regular Junior Engineers
Likewise those who have acquired the degree qualification after 28272 their seniority have to be fixed on the basis of notional date of appointment by interspersing among the regular Junior Engineers
The learned counsel for the State of AP submitted that this exercise of interspersing becomes impossible at this stage
311 Having given our careful consideration particularly 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 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 Government has not already obtained the approval of the Public Service Commission
To sum up our conclusions are as under i The weightage of four years in respect of upgraded Junior Engineers as provided in GO Ms No 559 has to be reckoned from the 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 holder 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
Accordingly Civil Appeal Nos 752 5584 are disposed of as per the directions given above
There will be no order as to costs
SLPC No 521885 This Special Leave Petition arises out of a separate order passed by the AP Administrative Tribunal in RP No 147380
The petitioners before the Tribunal belong to AP Panchayati Raj Engineering Department in Zone No 1
They are all graduates in Civil Engineering and were temporarily appointed as Junior Engineers originally in the Public Works Department in 1969
Their services were terminated for want of vacancies
However during the year 1973 they were again appointed in the AP Panchayati Raj Engineering Department
They also appeared in the Spe 312 cial Qualifying Test and they were selected by the Public Service Commission and they were appointed as regular Junior Engineers
They commenced their probation
The respondents before the Tribunal were appointed as Supervisors and after they acquired the degree qualification they were designated as Junior Engineers
The grievance of the petitioners was that the respondents could not have been put above the petitioners in the matter of seniority and their seniority should have been reckoned from the date of their acquiring the graduate qualification
GO Ms No 422 issued by the Department declaring them as seniors to the petitioners was specifically questioned before the Tribunal
The Tribunal held that the impugned GOMs is vitiated firstly on the ground that the principles of natural justice have not been observed and secondly that the petitioners before the Tribunal who were the direct recruits and who were selected by the Public Service Commission after holding the SQT are entitled to count their service in the ranking of Junior Engineers from the date of their appointment subject to the order regarding the maintenance of ranking given by the Public Service Commission
The said order of Tribunal is questioned in this Special Leave Petition by the upgraded Junior Engineers who were the respondents before the Tribunal
In this petition also the grounds raised are the same as in Civil Appeal Nos 752 5584
The conclusion reached by us in the above matters also govern the points in this petition
Accordingly this Special Leave Petition is disposed of in terms of the directions given in Civil Appeal Nos 752 5584
There will be no order as to costs
WP C No 356685 This Writ Petition is filed under Article 32 of the Constitution of India
The petitioners are all upgraded Junir Engineers of AP Panchayati Raj Engineering Service
They have questioned GOMs
No 37684 under which some promotions were made on the basis of the inter se seniority list of the direct recruits and upgraded Junior Engineers
The conclusions reached by us in Civil Appeals Nos
752 5584 also govern the points raised in this Writ Petition
Accordingly the Writ Petition is disposed of in terms of the directions given in Civil Appeals Nos 752 5584
There will be no order as to costs
GN Matters disposed of


Summary:
The appellant s contract with Indian Airlines included the construction and fabrication of air craft testing cen treengine repair centre in Delhi
For getting that work done the appellant entered into a contract with the re spondent 1
As per the contract respondent 1 was required to provide performance bond equal to 30 per cent of the total value of contract price which was to be split up into two performance bonds partly to be released on completion of the project and the balance upon the expiration of the warran ty and to furnish a Bank guarantee to secure the mobilisa tion advance of 25 per cent of contract value
Respondent II instead of furnishing the two perform ance bonds wrote a letter for a revised proposal which was accepted by the appellant
As the respondent 1 failed to complete the project within the stipulated time as per contractual specifica tions despite repeated opportunities the appellant termi nated respondent 1 s right to continue the project and sought for encashment of the Bank guarantee for Rs 10612500 which was issued to the appellant by the Bank
The respondent I filed a suit for injunction against the appellant and the Bank in the High Court and obtained an ex parte injunction from the Single Judge restraining the Bank and the appellant from encashing the Bank guarantee
When the ex parte injunction was vacated respondent I preferred an appeal to the Division Bench of the High Court
The Division 413 Bench allowed the appeal staying the encashment Of the Bank guarantee till the disposal of the respondent s suit
On the question whether the Court was justified in restraining the Bank from paying the appellant under the Bank guarantee at the instance of respondent I allowing the appeal of the appellant company this Court HELD 1
In the instant case the High Court has miscon strued the terms of the Bank guarantee and the nature of the inter rights of the parties under the contract
The mobili sation advance is required to be recovered by the appellant from the running bills submitted by the respondent
If the full mobilisation advance has not been recovered it would be to the advantage of the respondent
Secondly the Bank is not concerned with the outstanding amount payable by the appellant under the running bills
The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee
The liability of the Bank remained intact irrespective of the recovery of mobilisation advance or the non payment under the running bills
The failure on the part of the appellant to specify the remaining mobilisation advance in the letter for encash ment of Bank guarantee is of little consequence to the liability of the Bank under the guarantee
The demand by the appellant is under the Bank guarantee and as per the terms thereof
The Bank has to pay and the Bank was willing to pay as per the undertaking
The Bank cannot be interdicted by the Court at the instance of respondent I in the absence of fraud or special equities in the form of preventing irre trievable injustice between the parties
The High Court in the absence of prima facie case on such matters has commit ted an error in restraining the Bank from honouring its commitment under the bank guarantee
421E 422A UP Cooperative Federation Ltd vs Singh Consultants and Engineers P Ltd  Followed