Civil Appeal Nos 2049 and 3 128 of 1979
From the Judgment and order dated 231979 of the High Court f Patna in CWJC NO1820 of 1977
Dr YS Chitale SS Javali Narendra Prasad and Ranjit Kumar for the Appellants
412 SN Kacker and LN Sinha D Goburdhan ML Verma and A Dalip Tandon for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
These two appeals are by special leave
They are directed against the same judgment of the Patna High Court in an application under Article 226 of the Constitution filed by respondents 6 to 51 of Civil Appeal No 2049 of 1979
In the Writ Petition the aforesaid respondents impleaded the State of Bihar and certain public officers as also all others who were included in the gradation list for purposes of seniority in the combined cadre of engineers in the Department of Agriculture
The other appeal is by the State of Bihar and its public officers and both the appeals challenge the correctness of the decision of the Division Bench of the High Court
Both the appeals are disposed of by this judgment
There were three different wings of engineers in the Department of Agriculture being Irrigation Minor Irrigation and River Valley Projects
On 9th January 1969 the State Government amalgamated the cadre of engineers and other employees of the Irrigation and the River Valley departments
Engineers and other employees of the Minor Irrigation wing were however not amalgamated
On 17th November 1969 the Directorate of Minor Irrigation was made permanent and the State Government created a distinct and permanent cadre of overseers who came to be known as Junior Engineers
191 permanent posts of overseers were sanctioned
Discussions were held and committees were appointed for the purpose of merging the Minor Irrigation wing with the other two wings which had already been amalgamated in 1969
On 17th May 1976 the Government ultimately approved the Minor Irrigation wing to amalgamate
On 29th August 1977 the Engineer in Chief cum Special Secretary Irrigation Department circulated a combined final gradation list said to have been prepared taking into consideration the status of the overseers as obtaining on 9th January 1969
On 30th June 1978 an amended combined gradation list was published which was further changed on 18th July 1978
Respondents 6 to S 1 had already filed their writ application before the Patna High Court being CWJ Case No 1820 of 1977 which the High Court by the impugned judgment dated 2nd March 1979 allowed
The High Court quashed the orders contained in Annexures 11 111 12 13 131 15 and 16 and called upon the State Government and its officers to prepare a fresh combined gradation list in accordance with the principles laid down in the judgment
413 The High Court referred to all the materials that were placed before it by the different parties and in para 17 of the judgment came to the conclusion From the discussion of the facts of the case before us it is clear that the petitioners got their substantive appointments earlier than the respondents concerned and if seniority would have ranked on that consideration then the petitioners would have ranked senior in the integrated cadre
This was also the recommendation of both the High Powered Committees which suggested that two seniority lists one for the permanent incumbents and the other for the temporary incumbents be framed
No specific rule was brought to our notice by either side which could govern the case of the petitioners and the respondents
On the other hand learned counsel for the petitioners has referred to the instructions issued by the Personnel Department of the State Government to all Principal Secretaries and Heads of Departments etc
in its memo No 3RI 10672 F 15784 dated the 26th August 1972
Clause 3vii thereof provides that in the event of amalgamation of cadres seniority is determined with reference to the date of appointment in the particular grade on substantive or continuous officiating basis whichever is earlier without
however disturbing the inter se seniority of incumbents in any group of posts as amongst themselves in that process
No other rule was brought to our notice on behalf of either the learned counsel appearing for the State or the contesting respondents
An attempt had been made before the High Court to rely upon the executive instructions issued in a Government resolution Annexure 9
The High Court found that the circular had got no application to the case before it and it related to secretariat assistants
The High Court was not prepared to act upon it because it was not laying down any general principles
According to the High Court Substantive appointment in a service gives the incumbent a right and if that cannot be taken away by a temporary incumbent of the same department we do not see why that right should be allowed to be taken away if a question of integration or merger comes in by such incum 414 bents who were similarly temporary and thereby junior to the permanent employees
In our opinion
therefore the gradation list in this case Annexure 12 is violative of the principles contained in Articles 14 and 16 of the Constitu tion and impinges upon the civil rights of the petitioners making them several hundreds places junior in the integrated or combined cadre on a basis which cannot in any view of the matter be said to be reasonable in the light of the principles discussed in the aforesaid authorities
 It is not in dispute that the three wings though under the administrative control of the Agricultural Department were separate before amalgamation
As already pointed out permanent posts had been sanctioned in the Minor irrigation wing to which the petitioners before the High Court belonged and they were appointed on permanent basis
The High Powered Committees had taken all aspects into consideration and had recommended relevant aspects to be kept in view to regulate seniority in the merged cadre
When integration takes place and officers in different cadres are merged into one there is bound to be some difficulty in the matter of adjustment
That obviously has occurred here
The High Court has found that the petitioners before it had held on the basis of confirmation permanent posts and on that basis directed that the combined seniority list should be prepared taking dates of substantive appointments as the basis for fixing inter se seniority
That indeed might create problems because depending upon availability of opportunities in the different wings confirmation may have been granted while in the absence of the same though officers in the other wings may be senior they may not have been confirmed
The approach of the High Court has been as extracted above by us that if within the cadre earlier confirmation gives seniority why should that basis be not extended to the combined gradation list
This may not be applicable in every situation particularly when there is a merger of cadres and the combined gradation list is proposed
It is a well settled position in law that seniority would ordinarily depend upon length of service subject of course to rules holding the field
That view has been taken by this Court in several cases and it is unnecessary to refer to all of them
In A Janardhana vs Union of India  Ors  the situation was somewhat the same as here
The Court found that the method adopted for fixing seniority overlooked the character of appointments and pushed down persons validly appointed below others who had no justification to be given higher place
At page 960 of the Reports the Court observed 415 It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16
 We may also refer to a very recent decision of this Court in KS Vora  ors
vs State of Gujarat  Ors 1987 4 Judgment Today 179
The High Court recorded a finding that there is no applicable rule in the matter of fixing inter se seniority in a situation of this type
In the absence of rules the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority
We would like to add that in regard to the Supervisors now called Junior Engineers serving in the three wings there is no dispute of the grade being the same
While we do not agree with the High Court that confirmation should be the basis and would substitute it by the length of service test we would uphold the direction that in fixing the combined gradation list the inter se seniority of the incumbents in their respective departments would not be disturbed
Even if this be the test the gradation list as published by Government has to be modified
We would accordingly confirm the conclusion of the High Court that Annexures 1 1 111 12 13 131 15 and 16 should be quashed and a fresh combined gradation list has to be published
We have altered the lest for fixing the seniority inter se generally but we have approved the direction of inter se seniority in their own departments to be respected
The respondent State and its officers are directed to prepare and pubIish the fresh combined gradation list keeping the aforesaid directions in view
Both the appeals are allowed to the extent indicated above
Parties shall bear their own costs throughout
SL Appeals allowed


Summary:
 The appellants in CA Nos 59 and 60 of 1982 who were appointed as Civil Judges on temporary and officiating basis on probation were not confirmed after the expiry of the period of probation or the extended period of probation and their services were terminated by the State Government under Rule 12 of the Madhya Pradesh Government Services Temporary and Quasi Permanent Service Rules 1960
They filed writ petitions before the High Court challenging the orders of termination of service as illegal and invalid contending that in view of Rule 3 A providing that a Government servant in respect of whom a declaration under cl
ii of Rule 3 had not been issued but had been in temporary service continuously for five years in a service or post in respect of which such declaration could be made shall be deemed to be in quasi permanent service unless for reasons to be recorded in writing they should be deemed to be in Quasi Permanent Service since no declaration under cl
ii of Rule 3 had been issued and they had been in service continuously for five years
On behalf of the respondents it was contended that the question of confirmation came within the purview of Article 235 of the Constitution vesting in the High Court control over subordinate courts and consequently the provision of Rule 3 A had no application to the members of the Subordinate Judicial Service
Division Bench of the High Court took the view that if in Rule 3 A in place of the words appointing authority the words competent authority be read it would be consistent with Article 235 of the 493 Constitution and dismissed the writ petitions holding that the resolution passed in the Court meeting adjudicating the appellants unfit for confirmation satisfied the requirement of Rule 3 A as continuance in Quasi Permanent capacity was included within the ambit of confirmation
The services of the respondent in A
No 2860 of 1985 were also terminated under Rule 12 of the Rules
In the writ petition filed by him the Full Bench of the High Court while approving the aforesaid view expressed by the Division Bench held that the findings of the High Court in its resolution considering the respondent unfit for confirmation could not be regarded as reasons within the meaning of Rule 3 A and quashed the impugned termination order
Disposing of the appeals  HELD Whether a member of Subordinate Judicial Service should be confirmed or not is absolutely the concern of the High Court
The question of confirmation falls squarely within Article 235 of the Constitution and no rule framed by the State Government can interfere with the control vested in the High Court under Rule 235
498A B  BS Yadav vs State of Haryana  and High Court of Punjab  Haryana vs State of Haryana  relied on
Both the Full Bench and the Division Bench were wrong in placing reliance upon Rule 3 A of the MP Government Service Temporary and Quasi Permanent Rules 1960
As the High Court did not confirm the omcials the question of their being deemed to be in Quasi Permanent Service does not arise
Further as the question of confirmation was completely within the domain of the control of the High Court under Article 235 of the Constitution there is no necessity to read the words competent authority in place of appointing authority for Rule 3 A was inapplicable to the members of the Subordinate Judicial Service
Moreover there is a specific provision in the termination of service of a Judicial officer who is found by the High Court to be unfit for confirmation as provided in Rule 165 of the Madhya Pradesh Judicial Service Classification Requirement