Case: O.P. Malhotra Vs. State of Punjab &amp; Others

They are all Engineers in the Punjab Service of Engineers (Buildings and Roads Branch) Class I. By a notification dated February 18, 1960 the Governor of Punjab had fixed the seniority of class I officers in the Punjab Service of Engineers (Buildings and Roads Branch) including the appellant and the respondents 2, 3 and 4. In this seniority list the appellant held the 5th position and respondents 2, 3 and 4 occupied the 7th, 8th and the 12th position respectively. By another order made on August 28, 1969 the Governor of Punjab refixed the seniority of these four officers on the ground that the seniority determined earlier was based on a wrong application of the ServiceTo appreciate the questions arising for decision in this appeal, it would be necessary to find out how the appellant and the respondents 2, 3 and 4 came to occupy the positions they did in the previous seniority list which was revised by the impugned order and the notification. The appellant O. P. Malhotra, was appointed as Assistant Executive Engineer on July 3, 1951 on the result of an open competitive examination held by the Punjab Public Service Commission (hereinafter referred to as the Commission) to fill four vacancies in the Punjab Service of Engineers, Class I. Buildings and Roads Branch. In this examination respondent 2, though permitted to appear, did not sit for the examination. There is some dispute as to the exact date when the appellant was confirmed in the post of Assistant Executive Engineer: the appellant claims that he was confirmed on July 3, 1953 but according to the respondents the date of confirmation is January 14, 1954. There is however no dispute that the appellant was promoted to officiate as Executive Engineer on July 1 1954 and was confirmed as Executive Engineer on September 1,1956. On May 30. 1962 he was promoted as officiating Superintending Engineer and was confirmed in the post at Superintending Engineer on March 11, 1966.3. Respondent 2. D. K. Sehgal was appointed bv the Punjab Government as Temporary, Assistant Executive Engineer in April 1947. He was promoted as officiating Executive Engineer on November 9, 1949. The validity of this officiating appointment which was made without the approval of the Commission is disputed. However in June 1950 he was reverted as Temporary Assistant Executive Engineer. In November 1950 he was considered for departmental promotion as Assistant Executive Engineer, in the Punjab Services of Engineers, Class I Buildings and Road Branch, against two vacancies, but was not found suitable by the Commission. It appears that though he was not found fit by the Commission for the post of Assistant Executive Engineer, he was promoted again by the Punjab Government to officiate as Executive Engineer, again without the approval of the Commission .In January 1951 he was allowed to appear in the competitive examination held by the Commission for recruitment to the post of Assistant Executive Engineer but, as stated already he did not sit for the examination. It is on the result of this examination that the appellant was appointed as Assistant Executive Engineer, In December 1951 the Commission considering cases for departmental promotion again found him unsuitable to fill any of the three existing vacancies in the post of Assistant Executive Engineer. On May 9, 1953 he was appointed as Assistant Engineer in the Punjab Service of Engineers, Class II in the Buildings and Roads Branch. Prior to 1953 the Class II Services was not in existence. On January 1, 1956 he was appointed as Assistant Executive Engineer in Class I Service. It, is claimed that the appointment was by way of transfer. This claim is disputed. Respondent 2 was confirmed in the post of Assistant Executive Engineer on the date of his appointment, January 1, 1956. He was confirmed as Executive Engineer on November 1, 1958 and prompted as officiating Superintending Engineer on December 25, 1960. On March 11, 1966 he was confirmed as Superintending Engineer.4. Respondent 3, G. S. Toki, started as Temporary Assistant Engineer in the Punjab Public Works Department. Irrigation Branch. His services were transferred to the Buildings and Roads Branch where he was appointed as a temporary Assistant Engineer. He was also considered by the Commission for promotion to one of the two existing vacancies in the post of Asstt. Executive Engineer but was not selected as he was ranked 4th in order of merit by the Commission. As stated already he failed to qualify in the competitive examination held by the Commission in January 1951. In June 1961 (1951 ?) he was promoted as officiating Executive Engineer without the approval of the Commission. In December 1951 he was placed 7th in the order of merit by the commission considering cases for departmental promotion to three existing vacancies in the post of Assistant Executive Engineer, and as such failed to qualify. On May 9, 1953 he was appointed as Assistant (Executive?) Engineer in the Punjab Service of Engineer, Class II, in the Buildings and Road Branch. On January 1, 1956 he was appointed Assistant Executive Engineer, Class I, to which post he was confirmed on the same date. In his case also, the claim is that the appointment was by way of transfer which is disputed. On January 10, 1959 he was confirmed as Executive Engineer and in December 1960 he was promoted as Officiating Superintending Engineer. He was confirmed as Superintending Engineer on March 11. 1966.5. B. S. Grewal respondent 4 joined in 1944 as Temporary Assistant Engineer. Buildings and Roads Branch. He also was not found suitable by the Commission for departmental promotion as Assistant Executive Engineer, Class I, to one of the two existing vacancies. He also failed to qualify in the competitive examination held in January 1951 for any of the four posts of Assistant Executive Engineers Class I. On July 2, 1951 he was appointed as Officiating Executive Engineer without the approval of the Commission. In December 1951 he was not considered fit by the Commission for departmental promotion as Assistant Executive Engineer. Class I against the three vacancies which were to be filled by promotion. On July 1, 1954 he was appointed as Assistant Engineer, Class II, in the Buildings and Roads Branch. As mentioned above this Class II Service came into being only on 1953. On September 1. 1956 he was appointed as Assistant Executive Engineer Class I. He was also confirmed in this post the same day. As in the cases of the other two respondents, it is in dispute whether this appointment was by way of transfer. He was confirmed as Executive Engineer on March 16, 1960 and promoted as Officiating Superintending Engineer on June 28, 1963. When the writ petition was filed in the High Court he was not yet confirmed in the post of Superintending Engineer.6. There is no dispute that the Punjab Service of Engineers. Buildings and Roads Branch (Recruitment and Conditions of Service) Rules 1942 will govern this case. The impugned order of the Governor, and the notification dated August 28, 1969, proceed on the basis that the earlier order fixing the seniority of the officers concerned was made wrongly on the basis of Rule 13 (1) of the Rules while it should have been determined under proviso (a) (i) of Rule 13. The High Court has found that this claim was justified and the earlier order adopted a wrong rule in fixing the seniority of the officers.

Court's reasoning:
10. The proviso to Rule 13 (1), even assuming it applied, did not give the Government arbitrary powers to determine seniority in any manner it liked disregarding altogether the other rules. The Government had to exercise this power in a reasonable manner keeping in mind the guidelines supplied by the other rules. It was however contended on behalf of the respondents that the earlier order fixing the seniority of the officers concerned did not take into account the length of service and the experience of respondents 2 to 4 and this error was set right by the impugned order. We do not think that this claim is justified. It appears from the Judgment of the High Court that the previous seniority list was prepared on the basis of a note of the then Chief Secretary to the Punjab Government. Shri Mangat Rai. In the High Court, and also before us both sides referred to this note dated April 1, 1959. Shri Mangat Rai in his note stated his conclusion on this matter as follows :"Much heat and argument has been generated in this case in regard to giving these officers (including Rs. 2. to 4) benefit at previous service before their entry into class I ............... It is unsupportable that these officers should be placed as senior to those who were taken in earlier recruitments when some and in fact most of them, were given a chance of selection but were notextracts from Shri Mangat Rais note quoted above clearly show that in preparing the previous seniority list the length of service experience and efficiency of the officers concerned were taken into account, and on the facts and the rules set out above, we are of opinion that the reasons stated in Shri Mangat Rais note for not giving respondents 2, 3 and 4 precedence over the appellant are perfectly good and validbasis of this contention seems to be this. The appellant was appointed as Assistant Executive Engineer on July 3, 1951. In terms of Rule 12 (1) (c) his period of probation was two years .He appears to have been confirmed on January 14, 1954. In Shri Mangat Rais note there is a reference to the appellants date of confirmation in these words: "This Officer was confirmed two and half years after his date of appointment on the ground that his period of probation was two years and that he had also spent six months in charge ofUnder training."It further appears from Shri Mangat Rais note that the appellant had successfully completed his period of probation and according to Shri Mangat Rai for the purpose of fixing seniority the appellant should be taken to have been confirmed immediately on the completion of his probation, on July 3, 1953. Proviso (a) (ii) to Rule 13 (1) refers to an officer whose period of probation has been extended by the Government under the provisions of(3) of Rule 12. R. 12 (3) relates to an officer whose period of probation is extended. ..because in the opinion of the Government his work has not been satisfactory. There is no material on record suggesting that the appellants period of probation was extended Under Rule 12(3). The case of the appellant therefore could not attract proviso (a) (ii) to Rule 13 (1).12. The impugned order revising the previous seniority list does not appear to be justified on the rules and seems to us unwarranted and arbitrary.