Civil Appeal Nos4255 57 of 1992
From the Judgment and order dated 1510199128111991 and 17121991 of Madhya Pradesh Administrative Tribunal Jabalpur in OANos
140 of 1990 and 3024 of 1991 and TA No35 of 1988
UN Bachawat BS Banthia G Prakash LC Agrawala KK Chagotra and Indra Makwana for the Appellants
SS Ray A Raghuvir AK Sen Dr NM Ghatate SK Gambhir Vivek Gambhir SK Jain AP Dhamija RB Misra NDB Raju Anand Prasad SV Deshpande and SK Agnihotri for the Respondents
The Judgments of the Court was delivered by KASLIWAL J Special leave granted in all the above cases
All the above appeals are disposed of by a common order as identical questions of law are involved in these cases
For the purpose of understanding the controversy raised in all these cases we are stating the facts of appeal arising out of special leave petition No 2507 of 1992
The appellants and the private respondents were Sub Engineers in Public Health Engineering Department of Government of Madhya Pradesh
They are governed by Madhya Pradesh Public Health Engineering Gazetted Service Rules 1980 hereinafter referred to as the Rules 
Under Schedule IV of the Rules the next higher post for promotion from the post of Sub Engineers in Civil or Mechanical is the post of Assistant Engineers
The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer is 12 years for diploma holders and 8 years for such Sub Engineers who obtain degree of graduation in the course of service
Earlier 60 per cent quota for the posts of Assistant Engineers was fixed by direct recruitment and 40 percent by promotion from the Sub Engineers Draftsman and Head Draftsman
By and executive order dated 721989 quota of direct recruitment was reduced to 50 percent and the quota by promotion increased to 50 per cent
This 50 per cent quota by promotion with which we are concerned in the above cases has been sub divided in the following manner i Diploma holder Sub Engineers completing 12 years of service 35 ii Draftsman  Head Draftsman completing 12 years of service 5 iii Graduate Sub Engineers completing 8 years of service 10 In the above cases we are now concerned with the third category of cases which deal with the promotion of Graduate Sub Engineers Completing 8 years of service
The State Government had been applying the principle of counting the seniority of Graduate Sub Engineers from the date of their continuous officiation irrespective of the date on which such diploma holder Sub Engineer acquired degree of graduation in engineering
On this basis the Departmental promotion Committee took into consideration 30 Graduate Sub Engineers for promotion to the post of Assistant Engineers
The DPC by order dated 4121989 prepared a panel of 18 Graduate Sub Engineers found suitable for promotion to the post of Assistant Engineer
The Government by order dated 6121989 promoted MB Joshi and six others as Assistant Engineer who are appellants in appeal arising out of special leave petition No 2507 of 1992
The private respondents in this appeal filed application No 14090 in Madhya Pradesh Administrative Tribunal Jabalpur challenging the aforesaid orders dated 4121989 and 6121989
The contention of these persons before the Tribunal was that the seniority for the purpose of promotion to the post of Assistant Engineers in 10 per cent quota of Graduate Sub Engineers completing 8 years of service ought to have been considered from the date of attaining the Graduate degree of engineering and not from the date of appointment as sub Engineer
The Tribunal placing reliance on its earlier decision in TA No 77188 Sanaulla Sunzani vs State of MP  5 others held that the seniority of diploma holder Sub Engineers acquiring the degrees of graduation in engineering for inclusion in the gradation list of Sub Engineers should be counted from the dates of acquisition of graduation in engineering or of any other equivalent degree and not from the dates of their initial entries as Sub Engineers
Applying to aforesaid principle laid down in Sanaulla s case the Tribunal held that the applicants private respondents in the appeal having secured the degrees in engineering prior to respondents 3 to 9 the appellants in the appeal will rank higher in the gradation list of Graduate Sub Engineers
The Tribunal as such allowed the petition filed before them and directed the State Government and Engineer in Chief Public Health Engineering Department to convene a special DPC to consider applicants for promotion to the post of Assistant Engineers as on 4121989 and if found suitable for promotion promote them and give them seniority over respondents 3 to 9 within 4 months of the date of receipt of the order
The short controversy arising in these cases relates to the determination of seniority amongst the diploma holder Sub Engineers who acquired the degree of graduation in engineering during the period service qualifying them for promotion in 8 years to the post of Assistant Engineer
It is an admitted position that there is no specific rule governing such situation
Relevant extracts of Schedule IV of the Rules as published in the Madhya Pradesh Gazette dated 2721981 issued in Hindi read as under Mr SS Ray learned senior counsel appearing on behalf of the appellants contended that so far as the post of Sub Engineers is concerned the minimum qualification prescribed is diploma holder
Initially in the Public Health Engineering Department till 1980 fresh degree holders used to get job directly as Assistant Engineers and the diploma holders used to be appointed as Sub Engineers
Thereafter on account of unemployment the degree holders also started seeking appointments as Sub Engineers
However so far as the post of sub Engineer was concerned the seniority was determined on the basis of the date of appointment on the post of Sub Engineer irrespective of the fact that the person joining such post was a degree holder or a diploma holder
The scale of pay was similar and the diploma holder and degree holder Sub Engineers stood on the same footing and their gradation list was prepared on the basis of length of service in the cadre of Sub Engineers
The next higher post for promotion from the post of Sub Engineer is the post of Assistant Engineer
Every diploma holder sub Engineer became eligible for promotion to the post of Assistant Engineer after having completed 12 years of service
The Government however considered it proper to reduce this period of 12 years to 8 years in case of such diploma holder Sub Engineers who obtained a degree of engineering during the continuance of their service as Sub Engineer as a sort of incentive to improve the qualification while continuing in service
It was thus submitted by Mr Ray that it is a well settled principle of service jurisprudence that where the rules are silent the seniority is always determined on the basis of length of service amongst the employees appointed on a similar post in the same cadre
It was thus submitted that obtaining a degree during the continuation of service as Sub Engineer simply accelerated the entitlement to promotion for the post of Assistant Engineer from 12 years to 8 years but it did not in any manner disturb the seniority which was already settled on the basis of length of service on the post of Sub Engineer
It was submitted that the DPC rightly prepared the panel of selection and the Government took a correct decision in issuing the order dated 6121989
Mr Ashok Sen learned senior counsel appearing on behalf of the respondents contended that it was necessary to obtain the degree of engineering for being qualified for promotion to the post of Assistant Engineer within a period of 8 years instead of 12 years
It was further argued that the period of 8 years can only be counted from the date when the diploma holder Sub Engineer acquired the degree of engineering and not prior to said date
Mr Sen further placed reliance on N Suresh Nathan  Another vs Union of India  Others 1992 Supp1 SCC 584 and submitted that this case clinches the issue raised in these cases and is no longer open for consideration
We have given our careful consideration to the arguments advanced on behalf of learned counsel for the parties
We may first deal with N Suresh Nathan s case supra on which strong reliance is placed by Mr Ashok Sen
In this case the Recruitment Rules for the post of Assistant Engineer in the Public Works Department Pondicherry prescribing the educational and other qualifications for appointment by direct recruitment and promotion came for consideration
For direct recuits the qualification prescribed was a Degree in Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years professional experience
For appointment by promotion of Section Officers now called junior Engineers the qualification prescribed was as under 1
Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years  service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years  service in the grade 50 percent
Section Officers possessing a recognised Diploma in Civil Engineering with six years  service in the grade 50 per cent
 The dispute in the above case was whether a diploma holder Junior Engineer who obtains a degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three Years  service including therein the period of service prior to obtaining the degree or the three years  service including therein the period of service prior to obtaining the degree or the three years  service as a degree holder for this purpose is to be reckoned from the date he obtains the degree
The Central Administrative Tribunal held that the applicants diploma holders were entitled to be considered for promotion to the post of Assistant Engineer on par with the other degree holder Junior Engineers taking due note of their total length other degree holder junior Engineers taking due note of their total length of service rendered in the grade of Junior Engineers taking due note of their total length of service rendered in the grade of grade of junior of Junior Engineer
Such a consideration should be alongside other Junior Engineers who might have acquired the necessary degree qualification earlier than the applicants while holding the post of Junior Engineer
This Court allowed the appeal and set aside the above order of the Tribunal
While allowing the appeal this Court held as under In our opinion this appeal has to be allowed
There is sufficient material including the admission of respondents diploma holders that the practice followed in the department for a long time was that in the case of diploma holder Junior Engineers who obtained the degree during service the period of three years  service in the grade for eligibility for promotion as degree holders commenced from the date of obtaining the degree and the earlier period of service as diploma holders was not counted for this purpose
This earlier practice was clearly admitted by the respondents diploma holders in para 5 of their application made to the Tribunal at page 115 of the paper book
This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6 1968 extracted at pages 99 100 of the paper book in the counter affidavit of respondents 1 to 3
The real question therefore is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it
If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate
It is in this perspective that the question raised has to be determined This Court then considered the Recruitment Rules applicable in the said case and then held that the entire scheme did indicate that the period of three years  service in the grade required for degree holders according to Rule 11 as the qualification for promotion in that category must mean three years  service in the grade as a degree holder and therefore that period of three years can commence only from the date of obtaining the degree and not earlier
It was further held that the service in the grade as a diploma holder prior to obtaining the degree cannot be counted as service in the grade with a degree for the purpose of three years  service as a degree holder
This Court then observed In our opinion the contention of the appellants degree holders that the rules must be construed to mean that the three years  service in the grade of a degree holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the past practice followed consistently
It has also been so understood by all concerned till the raising of the present controversy recently by the respondents
The Tribunal was therefore not justified in taking the contrary view and unsettling the settled practice in the department A perusal of the above observations made by this Court clearly show that the respondents diploma holders in that case had admitted the practice followed in that department for a long time
It was clearly laid down in the above case that if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate
It was clearly said it is in this perspective that the question raised has to be determined
 It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department
That apart the scheme of the rules in N Suresh Nathan s case was entirely different from the scheme of the Rules before us
The rule in that case prescribed for appointment by promotion of Section OfficersJunior Engineers provided that 50 per cent quota shall be from Section Officers possessing a recognised degree in Civil Engineering or equivalent with three years  service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years  service in the grade
The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognised Degree in Civil Engineering was made equivalent with three years  service in the grade
Thus in the scheme of such rules the period of three years  service was rightly counted from the date of obtaining such degree
In the cases in hand before us the scheme of the rules is entirely different
In the cases before us 50 per cent of the posts of Assistant Engineers has to be filed by direct recruitment of persons having degree of graduation in engineering
The remaining 50 per cent of the vacant posts are to be filled by promotion from the lower cadre of sub Engineer and Draftsman
Out of this 50 per cent 35 per cent quota is fixed for diploma holders who have completed 12 years of service on the post of sub Engineer 5 percent quota for Draftsman who have completed 12 years of service and the remaining 10 per cent with which we are concerned has been kept for such Sub Engineers who during the continuation of their service obtained a degree of graduation or equivalent in engineering and in that case the period of service is reduced from 12 from 8 years
The Rules in our case do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering as was provided in express terms in N Suresh Nathan s case making three years service in the grade equivalent to degree in engineering
In our opinion in the rules applicable in the cases before us clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as sub Engineers shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category
If we accept the contention of Mr Ashok sen it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma holders while continuing in service in case the period of 8 years  is counted from the date of obtaining graduate degree in engineering
It may be noted that no such argument was raised even from the side of the respondents before the Tribunal
If such interpretation as now sought to be advanced by Mr Ashok Sen learned senior counsel is accepted no relief could have been granted to the respondent Satish Kumar Pandey
We would illustrate the above position on admitted facts that Shri Satish Kumar Pandey had joined as Sub Engineer on 2381980 but had acquired the degree of engineering in May 1987
In that situation Mr Satish Kumar becomes eligible only in May 1995 and he could not be considered as eligible in December 1989 when these Sub Engineers were considered for promotion as Assistant Engineers
Even othrwise if this period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit
It is further important to note that in the cases before us the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice
In N Suresh Nathan s case also this Court had upheld the practice followed by the Government
It is also well settled principle of service jurisprudence that in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance
Though in the cases of special leave petitions filed by Shri Ram Sharan Gupta  Others vs The State of MP  Others and Shri NN Asthana  Another vs Shri Harish Kumar Ahuja  Others the parties belonged to the Irrigation Department of the State of Madhya Pradesh and were governed with different set of rules but the controversy arising in these cases is amply covered with the view taken by us and determined in the manner indicated above
In these circumstances mentioned above we are clearly of the view
that the Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub Engineer and the State the basis of length of service on the post of Sub Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government
In the result we allow these appeals set aside the orders of the Tribunal dated 15101991 28111991 and 1791991 and 8upheld the orders passed by the Government in all these cases
In the facts and circumstances of the case no order as to costs
Appeals allowed


Summary:
Twelve persons including the appellants were challaned for the murder of Sarpanch of a village
Relying on the evidence of PWs 12 and 7 in toto and that of PW3 to some extent the Sessions Judge convicted all the accused persons for the offences under Section 302 read with Section 149 IPC and awarded sentence of imprisonment for life and other minor terms of imprisonment for other offences
On appeal the High Court set aside the conviction and sentence of seven accused persons namely A 4 A 5 A 8 to 12 and confirmed the conviction of the remaining five accused persons A 1 A 6 and A 7 under Section 302 read with Section 149 IPC and sentenced them to imprisonment for life
These five accused filed an appeal by special leave before this Court
During the pendency of the appeal one of the accused appellants died and as such appeal filed by him was dismissed as having abated
On behalf of the accused persons it was submitted that even if the statement of PW 2 was taken to be correct no offence was made out so far as accused A 3 was concerned inasmuch as PW2 had admitted in the cross examination that he did not state the name of A 3 in his statement recorded under Section 164 Cr
PC and that the name of A 3 was also not found in Exhibit D 7 the statement of PW2 recorded at the inquest and that since PW2 had gone to police station seven or eight times after the incident there was a possibility of his seeing the accused A 2 and A 7 in the police lock up and hence the identification parades held had no value
Disposing of the appeal this Court HELD 11
There is no infirmity at all in the reasoning and conclusions arrived at by the High Court so far as accused A 1 A 2 and A 7 are concerned24 B 12 It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the village
The accused persons belonged to the group headed by A 6 A 7 and the deceased was the leader of the other group
The deceased was given merciless beatings and was done to death in the midnight
He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor
It has also been found established by the trial court as well as by the High Court that A 1 inflicted injuries by an axe and A 2 by a spear and A 7 was among the other persons who inflicted injuries buy a stick
It has also come in the evidence of PW19 Inspector of Police that the accused persons had absconded and after a few days of the incident on information he alongwith mediators visited the village and the absconded accused were hiding in the house of A 7
He surrounded the house with hes staff guarded it and found therein the twelve persons against whom the case was challaned
It has also been proved by the prosecution that A 7 was the leader of the rival faction against the deceased
23 F H 24 A 13
The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of PWs1 to 4 as eye witnesses of the incident
The High Court has placed implicit reliance on the testimony of PW2
a clerk in the deceased s office and who had accompanied the deceased in an autorickshaw and seen the incident
There is no infirmity in the Statement of PW2 and the High Court has rightly placed reliance on his evidence
22 DE 14
PW2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7
PW2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony
He had identified A 1 A 2 and A 7 in the Court
Their conviction is not based on the identification parade but on the statement of PW1 and PW2 made during the trial as eye witness
23 E 15
A perusal of the statement of PW2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr
and also in his statement Exhibit D 7 recorded at the inquest
In the circumstances the circumstances the accused A 3 is also entitled to the benefit of doubt
22 G 16
In the result A 3 is acquitted of all the charges levelled against him and the conviction and sentence of the other appellants A 1 A 2 and A 7 are confirmed
24 c