ivil Appeal Nos
232 233 of 1978
From the Judgment and Order dated 1971977 of the Patna High Court in CWJC No 756 of 1977
Ashok Sen Shankar Ghosh Tapas Ray Ms section Janani Ms Minakshi Mrs Urmila Kapoor D Goverdhan Rakesh K Khanna Salman Khurshid RP Singh DD Mishra Mrs GS Mishra and DP Mukherjee for the appearing parties
The Judgment of the Court was delievered by RAY J
These two appeals were filed against the common judgment and order dated 29th July 1978 made by the Division Bench of the High Court at Patna in CWJC No 756 of 1977 whereby the High Court quashed the orders of the government contained in Annexures 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 Irrrigation Department on the recommendation of Bihar Public Service Commission and were posted in River Valley Project in 1961
The respondent Nos 6 to 23 in CA No 232 of 1978 who are appellants in CA 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 the Governor took a decision under 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 promotion 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 subject to availability of suitable candidates
By notification dated 413 18th July 196427th August 1964 respondent Nos
6 to 13 in CA No 232 of 1978 appellant Nos 1 to 8 in CA No 233 of 1978 and respondent Nos
5 to 12 in the writ petition who were members of the 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 CA No 232 of 1978 appellant Nos 9 to 18 in CA No 233 of 1978 and respondent 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 Sl
Nos 170 199 208 211 and 226 and the names of the respondent Nos 6 to 23 respondent Nos 5 to 22 in writ petition were mentioned at Sl
253 254 256 to 262 687 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 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 affidavit in counter filed on behalf of the Government appellants in CA No 232 of 1978 respondent Nos
6 to 9 in CA 233 OF 1978 and respondent Nos 1 to 4 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 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 retrospectively from the State against it but the State government instead of redressing their grievances made another order on January 20 1976 annexure 9 to the writ petition re fixing the seniority of respondent Nos 6  7 promoting them to the Bihar Engineering Service with effect from December 19 1958
Again to the prejudice of the respondent 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 1 to 5
This order is contained in annexure 10 to the writ petition
414 The respondent Nos 1 to 5 therefore filed a writ petition in the High Court at Patna being Civil Writ Petition No 756 of 1977 challenging the seniority conferred on the respondent Nos 6 to 23 respondent Nos 5 to 22 in the writ petition by annexures 8 9 and 10 on the ground that these orders were wholly arbitrary illegal void and inoperative and ineffective and so prayed for appropriate writ for quashing those orders
A counter affidavit was filed on behalf of the State Government
In Para 3iii 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 by promotion from the Bihar Subordinate Engineering Service commonly known as Overseers 
Subsequently in the year 1958 it was decided that 25 of the cadre posts in the Bihar Engineering 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 3iv that all the posts of temporary Assistant Engineers to which the Overseers were entitled to be promoted on the basis of 25 reservation in the cadre were not filled up by promotion of Overseers only 3 overseers were given promotion with effect from 19121958 vide order No AP1 409 64 1 14294 dated 1876427864
In the said affidavit it has 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 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 been given promotion as temporary Assistant Engineers from later dates in 1960 1961 and 1962 by the order dated 1876427864
were given promotion with effect from 19121958
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 19121958 in partial modification of the Government order dated 1876427864 and another order dated July 12 1975
It has been further stated that as a result of this 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 19121958 as against promotions from later dated in 1960 1961 and 1962 given to them by earlier Government Order dated 2781964 and order dated 2171969
It has also been stated that the respondent Nos 6 and 7 were entitled to promotion in 1958 and respondent Nos 8 to 23 to promotions in 415 1960 and 1961 on the basis of the reservation of 25 of the cadre post in the Bihar engineering Service Class II for promotion of Overseers 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 1876427864 and respondent Nos 8 to 13 were given promotion as temporary Assistant Engineer with effect from 2721961 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 November 8 1975 respectively
It has also been stated that the seniority list that was prepared and published in 1969 was tentative
The High Court Patna held that no person can be promoted with 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 respondent Nos 6 to 23 were promoted to the post of Assistant Engineer Class II in the Bihar Engineering Service Class II
The High Court 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 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 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 petition is arbitrary illegal and inoperative as those orders purport to affect prejudicial the seniority of the petitioners respondent 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 Department Code the Government 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 Government that in 1958 the the total number of posts to be filled up by promotion from the Overseers in the Bihar Subordinate Engineering Service 416 Irrigation Department to the post of Assistant Engineer in Bihar 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 Subordinate Engineering Service Irrigation Department
It is also clear from the averments made in the said counter affidavit that the petitioners respondent Nos 1 to 5 were appointed in Bihar Engineering Service Class II on the recommendation of the Bihar Public Service Commission 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 1876427864
The respondent Nos
14 to 23 were also promoted by notification dated 2171969
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 23
However the Government by its order dated 21st July 1962 changed the date of promotion of respondent Nos 6 to 13 from 2171962 to 2721961 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 to Bihar Engineering Service Class II with effect them 19121958 Annexure 9 to the writ petition
Again an order contained in Annexure 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 1 to 5
The petitioners respondent Nos 1 to 5 challenged these three Government 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 respondent 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 the promotion to the said post of the respondent Nos 6 to 23
It has also been submitted in this connection that he 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 the promoted respondents who were promoted later cannot be given 417 seniority in service to the petitioners respondent Nos 1 to 5 and it was contended that the impugned orders are wholly illegal and unwarranted and so the High Court has rightly quashed the said orders
It has been further urged in this connection that the State can promote its employees with retrospective effect provided such retrospective promotion does not affect the right and seniority already earned by others
The petitioners respondent Nos 1 to 5 who were senior to the petitioners 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
The High Court while rendering its judgment relied on the decision in the case of AK Subraman and Ors
vs Union of India and Ors
 specially on the observation made therein as under 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 Engineer within their quota
 The High Court held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others
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 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 order of the Governor in 1958 the posts of Assistant Engineers are to be filled up from two sources ie by direct recruitment as well as by promotion from Overseers working in the Bihar Subordinate Engineering Service and the ratio of the vacan 418 cies to be filled up has been fixed as 75 from the direct recruits and 25 from the promotees
It has been urged on behalf of the respondent 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 of the vacancies of 1958 shall be taken to be promoted in 1958 notwithstanding that they have been actually promoted long after 1958 and after the direct recruits ie 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 promote respondent Nos 6 to 23 should be deemed to be senior to the direct recruit respondent Nos 1 to 5 as they were promoted in the vacancies for 1958 quota set up for promotees
In support of this submission the decision in VB Badami etc
vs State of Mysore and Ors 1976 1 SCR 815 as well as Gonal Bihimappa vs 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 was held that direct recruits who were appointed within their quota subsequently were entitled 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 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 ie respondent Nos 1 to 5 were recruited in their quota ie 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 and thereafter ie subsequent to the direct recruits ie 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 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 promotee respondent Nos
6 to 23 could not be under any circumstances given seniority over the directly recruited respondent Nos 1 to 5
The 419 High Court has rightly quoted the observation made by this Court in the case of AK Subraman  Ors
supra as mentioned in the preceding paragraphs
It is pertinent to mention in this connection the observation of this Court in the case of DK Mitra and Ors
vs Union of India and Ors 1985 Supp
SCC 243
In this case the petitioners were confirmed as Assistant Medical Officers in 1962 and 1963 and they were placed in the higher scale of Assistant Divisional Medical Officers to the Indian Railways with effect from January 1 1973
Thereafter they were appointed as officiating Divisional Medical Officers in 1972 1973 and 1974 and they had been continuing there uninterrupted
Respondent Nos 4 to 64 were given substantive appointments as Divisional Medical Officers later on but they were confirmed earlier than the petitioners because of the zone wise confirmation given by the Railway Administration
It was held that the petitioners should be considered at par for the purpose of fixing seniority with those appointed to permanent posts in a substantive capacity
For the purpose of 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
 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 promoted 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 into the service
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 the respondent Nos 6 to 23 can not be made senior to the respondent Nos 1 to 5 by the impugned Government orders as they entered into the said Service by promotion after the respondent Nos 1 to 5 were directly recruited in the quota of 420 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 rendered by the High Court
The appeals are therefore dismissed
In the facts and circumstances of the case there will be no order as to costs
RP Appeals dismissed


Summary:
On 3041986 a Notification was issued by the Government of India amending the scheme under the in conformity with Section 24 of the Cine Workers and Cinema Theatre Workers Regulation of Employment Act 1981 with retrospective effect from 1101984
The effect of the amendment was to extend the benefit of the Provident Funds Act and the Scheme thereunder to the Cine Workers and Cinema theatre workers
The appellants challenged the validity of the Notification before the High Court by way of writ Petitions contending that the said Notification was ultra vires the provisions of the Provident Fund Act since the Central Government could not extent the scheme to an establishment which is neither an industry nor a notified establishment under Section 3b of the Act and there was no liability under the scheme to make contribution towards Provident Fund in respect of the employees who ceased to be Cinema workers before 3041986
It was further contended that calling upon the employers to contribute arrears from the date the scheme was made applicable led to hardship and injustice and hence violative of Article 14 of the Constitution of India
The Writ Petitions were dismissed by the High Court
In their appeals to this Court the appellants contended that so long as the Notification as required by the proviso to Section 13b of the Provident Funds Act has not been issued the Act cannot be made applicable to them and even assuming that Section 24 of the Cinema Theatre Workers Act takes the place of the required Notification an express notification under Section 5 would be required
It was also contended 478 that under Section 6 of the Provident Funds Act the liability is fixed only for employers share of contribution and not the employees share and since paragraph 30 of the Provident Fund Scheme was not made applicable there arose no liability of the employers to pay employees share and as the appellants were being asked to pay the contribution of the employees  share retrospectively without the corresponding right of employer to recover it from the wages of employees it was harsh and unjust
On behalf of the Respondents it was contended that it might be possible for the appellants to make deduction from subsequent wages of workmen with the consent of the Inspector as required under the third proviso to para 321 of the Provident Fund Scheme
Partly allowing the appeals this Court HELD 1
Section 24 of the Cine Workers and Cinema Theatre Workers Regulation of Employment Act 1981 has fulfilled the purpose of the Notification which the Central Government could have issued under Section 13b of the Provident Funds Act read with the proviso
Therefore no further Notification as contemplated by Section 13b of the Provident Funds Act was necessary
Section 24 has taken the place of the Notification contemplated by Section 13b of the Provident Funds Act read with the proviso thereto
Therfore the Provident Funds Act became applicable to the theatres who employ five or more workers with effect from 1st October 1984
Again in view of Section 6 of the Provident Funds Act the employers became liable to pay their contribution to the fund as soon as the Act came into force iewef1st October 1984
488B D Ms Orissa Cement Ltd vs union of India 1962 Suppl 3 SCR 837 and Ms Lohia Machines Ltdv
Union of India and Ors  distinguished
It is only by the Notification dated 3041986 that the Provident Funds Scheme was amended so as to be made applicable in respect of the cinema theatres employing five or more persons
Without such a Notification the Scheme has been made applicable to the cinema theatres covered by the Notification with effect from 1st October 1984
This could be done in view of not only the provisions of Section 52 of the Provident Funds Act but also in view of Section 71 of the Provident Funds Act
Both these provisions confer express powers of making the 479 Scheme applicable retrospectively488E G 3
It is obvious from paras 30 and 32 of the Provident Funds Scheme that the employer has to pay the contribution of the employee s share but he has a right to recover that payment by deducting the same from the wages due and payable to the employees
It is significant to note that the deduction is not from the wages payable for any period but only from the wages for the period in respect of which the contribution is payable and no deduction could be made from any other wages payable to the employees
In other words the payment of employees contribution by the employer with the corresponding right to deduct the same from the wages of the employees could be only for the current period during which the employer has also to pay his contribution
489A E 4
In the instant case for the period from 1st October 1984 up to the date of the Notification ie30th April 1986 the employer has paid the full wages to the employees since during that period there was no scheme applicable to his establishment
By retrospectively applying the scheme he could not be asked to pay the employees  contribution for the period antecedent to the notification
The Act and the Scheme neither permit any such payment nor deduction 
The employer cannot be saddled with the liability to pay the employees  contribution for the retrospective period since he has no right to deduct the same from the future wages payable to the employees
489F G 5
The third proviso to paragraph 321of the Provident Funds Scheme could be taken advantage of by the employer only where no deduction has been made from the wages of the employees due to accidental mistake or clerical error when the scheme is operative
Such deduction which has not been made by accidental mistake or clerical error could be made from the subsequent wages with the consent in writing of the Inspector concerned
The present case is not covered by the third proviso
The employer could not have made the deduction prior to the notification dated 30th April 1986 since the Scheme was not applicable then
The Scheme has been given retrospective effect wef
1st October 1984
The employer therefore cannot take the benefit of the third proviso to para 321 for deducting the employees contribution in their wages payable in future489H490A C