Case: Haryana State Electricity Board Vs. State of P.H. &amp; Others

service, seniority shall be determined according to their seniority in that service if they are confirmed on the same date. 13. For all these reasons, we have no manner of doubt that according to rule 7-A the seniority of Pritam Singh had to be fixed according to his relative seniority in Class II. It is common ground that he was a senior to all the other respondents in that class and, therefore, ordinarily and in normal circumstances there was no reason why in the 1966 list he should not have been shown as senior to the respondents in the list of the Assistant Engineers Class. I. 14. There are still two hurdles which Pritam Singh has to cross before a proper writ and direction can be issued under Article 26 of the Constitution to give him the seniority according to his position in Class II leading to consequential promotions or demotions with regard to the respondents in the matter of their higher appointments which they are holding now. The first is the contention raised on behalf of the appellant that it was under the advice of the Public Service Commission that he was superseded by the respondents for promotion as officiating Assistant Engineer Class I and, therefore, according to the main proviso in rule 7-A, those members who were promoted earlier to the higher class were to retain their seniority over him. The High Court read this part of the proviso in a way which does not support that contention. According to the High Court it is only when a member or subordinate is promoted substantively earlier than another member or subordinate who is senior to him and who has been passed over on the score of the inefficiency that a member or subordinate so promoted, shall take the rank in the higher class. All the respondents other than Pritam Singh were certainly promoted in an officiating capacity as Assistant Engineers Class I before Pritam Singh was promoted as such but they were not promoted in a substantive capacity .The proviso refers only to promotion in a substantive capacity which took place with effect from the same date of all the respondents including Pritam Singh, viz. September 1, 1956.The decision of the High Court appears to be correct on this point and we do not consider that the case of Pritam Singh was covered by the aforesaid part of the proviso. His being passed over for promotion in an officiating capacity, therefore, cannot be a hurdle to his taking seniority above the others when they were all confirmed on the same date and when he was admittedly senior to them in Class II. 15. The second hurdle seems to be more formidable. It is true as would be apparent from the facts already stated that Pritam Singh made representations against his supersession in July, 1956 for the first time and later on in May, 1957 and July 1958. But all these representations were rejected. After he was promoted and appointed as officiating Executive Engineer in June, 1959, he made another representation on 13-2-1959 which was also rejected. Thereafter, various Respondents out of Respondents Nos. 3 to 17 and Respondent No 20 were confirmed as Executive Engineers on different dates from 1961 to 1964. On May, 11, 1965, Respondent No. 16 and Pritam Singh himself were ordered to be confirmed w.e.f. January 1, 1965. Only Respondent No. 15 was confirmed by an order dated August 1, 1968 but with effect from December 17, 1963. Pritam Singh took no steps by making any effective representation whatsoever or by filing any petition in the High Court to challenge the confirmation of those respondents who were confirmed by orders made on the various dates from 1961 to 1964, the last order being of April, 22, 1964. The question is whether he would be justified in getting any relief and disturbing the existing state of affairs with regard to those Respondents in respect of whom the orders of confirmation as Executive Engineers were made upto the end of April, 1964. The High Court was not oblivious of the situation but felt that Pritam Singh was justified in thinking that when he would be confirmed the order would take effect from an earlier date as was done in the case of the Respondents who were confirmed in 1961. It seems to us that the High Court did not keep in mind the way these questions were settled in S. G. Jaisinghani v. Union of India. 1967 (2) SCR 703 = (AIR 1967 SC 1427 ). It was found therein that promotees from Class II Grade III to Class I Grade II of the Income-Tax Service were in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards.. These promotees had been illegally promoted and the appellant in that case was held entitled to writ in the nature of mandamus that his seniority and that of the other officers similarly placed like him should be readjusted and a fresh seniority list be prepared in accordance with law keeping in view the quota rule. It was added: We, however, wish to make it clear that this order will not affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income-Tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income Tax provisionally pursuant to the orders of the High Court. 16. Therefore, even though under the rules, Pritam Singh is entitled to be declared senior to the Respondents, no direction or writ in the exercise of discretion should be as so issued as to disturb the seniority of those Respondents who were confirmed as Executive Engineers by orders made up to the end of April 1964. As regards Respondents Nos. 15 and 16 the orders of their confirmation as Executive Engineers were either made on the same date as in respect of Pritam Sing or subsequent to him in 1968.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. In our judgment, the question of seniority between Pritam Singh and the Respondents had to be determined with reference to rulewhich was applicable to them as they were substantively appointed to a post in the service after November 17, 1948. Ruledeals with those who have been confirmed in a particular class and those who have not been confirmed. Clauses Firstly relates to those who have been confirmed in a particular class. The proviso appearing in that clause makes it clear that where two or more members are confirmed on the same date, they shall retain the order in which they stood with respect to each other immediately prior to confirmation. Clauses Secondly, deals with members of the service who have not been confirmed. In the present case we are not concerned with that clause and nothing more need be said about it. The first main proviso to both the clauses cannot be confined only to clause Secondly, but it is also applicable to Clause Firstly. The proviso explains what is meant by the words retain the order in which they stood with respect to each other immediately prior to confirmation. In clear terms, it provides that whenever members of the Service as well as holders of subordinate posts in the electricity branch are promoted their seniority in the same class has to take rank according to the relative seniority in the Class from which they were promoted. In other words, if a member of the service from Class II is promoted to Class I his seniority will be determined according to his position in the seniority list of Class II. The only exception contained in the proviso is that if anyone has been substantively promoted earlier than another who is senior to him but has been passed over on the ground of inefficiency, the member who has been promoted first shall take the rank in the higher class above the other member who has been passed over on the score of inefficiency.incorporates the general principle that promotion to posts on a higher scale shall be made on10. In order to find out how the authorities concerned have been dealing with the question of seniority, we got a Chart prepared relating to all the respondents containing the various relevant dates. It appears therefrom that it was not the officiating date of appointment in Class I of the officers by which seniority was shown in the final seniority list but it was the date of their confirmation in Class II from which they were promoted and which determined their seniority in Class I. Starting with R. D. Gupta, Respondent No. 3, he was confirmed as Assistant Engineer Class II on May 11, 1956 w.e.f. November 19, 1952. Respondent No. 4 T. S. Virdi was also confirmed on the same date as well as Respondent No. 5 although both of them were confirmed w.e.f. the 1st March, 1955. Gupta was promoted as officiating Assistant Engineer Class I on August 13, 1953, Viridi on August 10, 1953 and Malik on August 9, 1953. In other words, Malik was given the officiating appointment in Class I prior to both Virdi and Gupta and Virdi was appointed in an officiating capacity prior to Gupta. All these three Respondents were confirmed w.e.f. September 1, 1956 as Assistant Engineers Class I. Gupta was shown in the seniority list as senior to both Virdi and Malik. This could be so only if the date of his confirmation in Class II was to be taken into consideration and not the date of his appointment as officiating Assistant Engineer Class I. Indeed owing to that seniority, Gupta was confirmed as Executive Engineer on June 13, 1961 w.e.f. February 7, 1958 whereas Virdi and Malik were confirmed w.e.f. September 18, 1960 and November4, 1960 respectively as Executive Engineers. There are many other instances in this Chart which appear to indicate that it was the date of confirmation in class II by which seniority was determined and not the date of officiating appointment as Assistant Engineer Class I. Shri S. V. Gupte very fairly and properly agreed that the interpretation of Rulewhich he was supporting on behalf of the appellant could not be supported consistently according to what had been done by the predecessors of the appellant as also appellant in certain cases13. For all these reasons, we have no manner of doubt that according to rulethe seniority of Pritam Singh had to be fixed according to his relative seniority in Class II. It is common ground that he was a senior to all the other respondents in that class and, therefore, ordinarily and in normal circumstances there was no reason why in the 1966 list he should not have been shown as senior to the respondents in the list of the Assistant Engineers Class. I14. There are still two hurdles which Pritam Singh has to cross before a proper writ and direction can be issued under Article 26 of the Constitution to give him the seniority according to his position in Class II leading to consequential promotions or demotions with regard to the respondents in the matter of their higher appointments which they are holding now.The first is the contention raised on behalf of the appellant that it was under the advice of the Public Service Commission that he was superseded by the respondents for promotion as officiating Assistant Engineer Class I and, therefore, according to the main proviso in rule, those members who were promoted earlier to the higher class were to retain their seniority over him.The High Court read this part of the proviso in a way which does not support that contention. According to the High Court it is only when a member or subordinate is promoted substantively earlier than another member or subordinate who is senior to him and who has been passed over on the score of the inefficiency that a member or subordinate so promoted, shall take the rank in the higher class. All the respondents other than Pritam Singh were certainly promoted in an officiating capacity as Assistant Engineers Class I before Pritam Singh was promoted as such but they were not promoted in a substantive capacity .The proviso refers only to promotion in a substantive capacity which took place with effect from the same date of all the respondents including Pritam Singh, viz. September 1, 1956.The decision of the High Court appears to be correct on this point and we do not consider that the case of Pritam Singh was covered by the aforesaid part of the proviso. His being passed over for promotion in an officiating capacity, therefore, cannot be a hurdle to his taking seniority above the others when they were all confirmed on the same date and when he was admittedly senior to them in Class II15. The second hurdle seems to be more formidable. It is true as would be apparent from the facts already stated that Pritam Singh made representations against his supersession in July, 1956 for the first time and later on in May, 1957 and July 1958. But all these representations were rejected. After he was promoted and appointed as officiating Executive Engineer in June, 1959, he made another representation on9 which was also rejected. Thereafter, various Respondents out of Respondents Nos. 3 to 17 and Respondent No 20 were confirmed as Executive Engineers on different dates from 1961 to 1964. On May, 11, 1965, Respondent No. 16 and Pritam Singh himself were ordered to be confirmed w.e.f. January 1, 1965. Only Respondent No. 15 was confirmed by an order dated August 1, 1968 but with effect from December 17, 1963. Pritam Singh took no steps by making any effective representation whatsoever or by filing any petition in the High Court to challenge the confirmation of those respondents who were confirmed by orders made on the various dates from 1961 to 1964, the last order being of April, 22, 1964. The question is whether he would be justified in getting any relief and disturbing the existing state of affairs with regard to those Respondents in respect of whom the orders of confirmation as Executive Engineers were made upto the end of April, 1964. The High Court was not oblivious of the situation but felt that Pritam Singh was justified in thinking that when he would be confirmed the order would take effect from an earlier date as was done in the case of the Respondents who were confirmed in 1961. It seems to us that the High Court did not keep in mind the way these questions were settled in S. G. Jaisinghani v. Union of India. 1967 (2) SCR 703   = (AIR 1967 SC 1427  )16. Therefore, even though under the rules, Pritam Singh is entitled to be declared senior to the Respondents, no direction or writ in the exercise of discretion should be as so issued as to disturb the seniority of those Respondents who were confirmed as Executive Engineers by orders made up to the end of April 1964. As regards Respondents Nos. 15 and 16 the orders of their confirmation as Executive Engineers were either made on the same date as in respect of Pritam Sing or subsequent to him in 1968.