D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990 Equivalent citations: 1990 AIR 1311, 1990 SCR (2) 131, AIR 1990 SUPREME COURT 1311, 1990 (2) SCC 553, 1990 LAB. I. C. 1156, (1990) 1 CURLR 634, 1990 UJ(SC) 2 181, (1990) JAB LJ 459, (1990) 60 FACLR 807, (1990) 3 SERVLR 51, (1990) 2 JT 9 (SC), (1990) 1 LAB LN 712, 1990 SCC (L&S) 314 Author: P.B. Sawant Bench: P.B. Sawant, Kuldip Singh PETITIONER: D.N. AGRAWAL AND ANR. Vs. RESPONDENT: STATE OF MADHYA PRADESH AND ORS. DATE OF JUDGMENT23/03/1990 BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KULDIP SINGH (J) CITATION: 1990 AIR 1311 1990 SCR (2) 131 1990 SCC (2) 553 JT 1990 (2) 9 1990 SCALE (1)540 CITATOR INFO : R 1992 SC1188 (7) ACT: Madhya Pradesh P.W.D. (Gazetted) recruitment Rules, 1969: Rule 19(1)--Assistant Engineers--Appointment on ad hoc basis for purely administrative exigencies right to claim seniority from date of initial appointment--Whether promis- sible. HEADNOTE: The two appellants had joined as overseers in the P.W.D. of the respondent Madhya Pradesh State. Thereafter they were appointed as Junior Engineers. The grievance of the appel- D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  1 lants is with regard to their seniority in the next promo- tional post viz, that of Assistant Engineer. Recruitment Rules which govern the promotional post lay down that the Departmental promotion Committee is required to consider the names of all eligible candidates on merits and judge their suitability in all respects on merit-cum- seniority basis. The D.P.C. is also required to arrange the names of all the selected candidates in the order of their merit. In the case of exceptionally meritorious junior he is given a higher number in the selection list. This list is sent to Public Service Commission for its approval. After approval the list becomes the select list and the promotions are made from this list serial wise. Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer a Junior Engineer has to have an experi- ence of two years as Junior Engineer. As the State Govt. wanted a certain number of Assistant Engineers but enough number with requisite qualifying serv- ice were not available so taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the Rules the Govt. promoted some Junior Engineers including both the appellants is Assistant Engineers on July 22, 1971 on purely ad hoc basis. On August 7, 1972 respond- ents 40 to 63 were appointed as Assistant Engineers by direct recruitment and on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C. On the same date the State Govt. issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No. 1 was shown at 132 serial No. 14 and appellant No. 2 at serial No. 28. The State Govt. thereafter prepared a seniority list of Assist- ant Engineers as per the order of November 22, 1972. The appellants challenged the seniority list before the High Court by a Writ Petition. The High Court dismissed the Writ Petition. Hence the present appeal. Dismissing the appeal, this Court, HELD: Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer. [133G] In the instant case, unless the D.P.C. makes the selec- tion, none can be appointed as Assistant Engineer regularly. The appellants were ineligible to be appointed as Assistant Engineers initially. Their appointments were made specifi- cally under the power given to the Government to make ad hoc appointments for administrative exigency. The appointment orders made it clear that the appointments were in the said Special Circumstances and that they will not be deemed to determine seniority for any purpose whatsoever. [138C-D] Once it is held that the appellants were appointed on ad hoc basis, what comes into play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appoint- D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  2 ments for purely administrative exigencies. [139D] Baleshwar Dass & Ors. v. State of U.P. & Ors etc., [1981] 1 S.C.R. 449 and G.P. Doval & Ors. v. Chief Secre- tary, Government of U.P. & Ors., [1984] 4 S.C.C. 329, re- ferred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 931 of 1986. From the Judgment and Order dated 3.10.1985 of the Madhya Pradesh High Court in Civil Misc. W.P. No. 15 10 of 1981. P.N. Lekhi, M.K. Garg, Aman Lekhi and Lokesh Kumar for the appellants. R.B. Datar, Sakesh Kumar, Uma Nath Singh, Satish K. Agnihotri and Ashok Singh for the respondents. The Judgment of the Court was delivered by SAWANT, J. The two appellants in this case had joined the service in the Public Works Department of the respond- ent-Madhya Pradesh State, as Overseers. They were thereafter appointed as Junior Engineers by direct recruitment--the first appellant on August 29, 1969 and the second appellant on September 12, 1969. Although the High Court in its im- pugned judgment has stated that they were promoted as Junior Engineers from the posts of Overseers, it appears that that statement is not correct since their orders of appointment to the post of Junior Engineer which are Annexures P-1 and P-2 to the writ petition filed in the High Court show that their appointments as Junior Engineers were not by way of promotion. This, however, makes no difference to the issues involved in the present appeal. We have stated it to keep the record straight. The grievance of the appellants is with regard to their seniority in the next promotional post, viz., that of Assistant Engineer. 2. The Recruitment Rules which govern the said promo- tional post are known as Madhya Pradesh P.W.D. (Gazetted) Recruitment Rules, 1969 (hereinafter referred to as the 'Rules'). According to these Rules, Junior Engineers, Over- seers, Head Draftsmen and Draftsmen are eligible to be considered for promotion to the post of Assistant Engineer on their securing the requisite experience. Each of these categories further has a fixed quota of its own. The Depart- mental Promotion Committee, D.P.C. to be short, whose con- stitution is also prescribed in these Rules, is required to consider the names of all the eligible candidates on merits, and judge their suitability in all respects on merit-cum- seniority basis. The D.P.C. is also required to arrange the names of all the selected candidates ordinarily in the order of their seniority unless a junior is exceptionally merito- rious in which case, of course, he is given a higher number in the selection list. This list is then sent through the State Government to the Public Service Commission for its consideration and approval. The list as approved by the Commission then becomes the select list, and promotions are made from this list in the same order as is arranged in the list. However, in case of an administrative exigency, the State Government is given power to appoint anyone not in- cluded in the said list if the vacancy is not likely to last for more than three months. D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  3 Under the Rules, to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer. 3. It appears that the State Government wanted a certain number of Assistant Engineers, but enough number of Junior Engineers with requisite qualifying service were not avail- able at the relevant time. Admittedly the appellants were two of such unqualified Junior Engineers since they had not completed their two years' qualified service as Junior Engineers at the relevant time. Hence, taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the said Rules, the Government promoted some Junior Engineers including both the appellants as Assistant Engineers on July 22, 1971 on purely ad hoc basis. In the order appointing then, it was stated as follows: "Since adequate number of Junior Engineers with requisite qualify- ing service are not available for appointment as Assistant Engineers, and but for these promotions large number of Assistant Engineers' posts would remain vacant adversely affecting the construction work ....................... These appointments will not be deemed to determine seniority as Assistant Engineer for any purpose whatsoever." 4. It is not disputed that on July 22, 1971 when the appellants were so appointed as Assistant Engineers on ad hoc basis, appellant no. 1 was short of'two years' qualify- ing service period by one month and appellant No. 2, by two months. They became qualified on August 22, 1971 and on September 11, 1971 respectively. 5. It appears that while the appellants continued to act as Assistant Engineers on ad hoc basis, on August 7, 1972. respondents 40 to 63 were appointed as Assistant Engineers by direct recruitment. Thereafter, on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C. On the same date, the State Government issued an order of appointment of the appellants and respondents 2 to 39 in which appellant no. 1 was shown at Serial No. 14 and appellant no. 2 at Serial No. 28. The State Government thereafter prepared a seniority list of Assistant Engineers which reflected the seniority of appellants as having been appointed on and from November 22, 1972 and as per the ranking given in the said order of November 22, 1972. The appellants challenged the seniority list before the High Court by a writ petition. Although it appears the appellants had also joined to the petition, those Junior Engineers who were promoted as Assistant Engi- neers along with the appellants by the same order and whose seniority in the list had reflected their placement in the order of appointment, the challenge to the seniority of those Junior Engineers was given up at the time of the arguments before the High Court, and it was confined to the seniority of respondents 2 to 39 who were Overseers and were selected by the D.P.C. from their own quota as Assistant Engineers along with the appellants, and to the seniority of respondents 40 to 63 who were appointed by direct recruitment on August 7, 1972. The first challenge common to the seniority of all the respondents 2 to 63 was based on the contention that the appellants' ad hoc service as Assistant Engineers from July 22, 1971, when they were promoted on ad hoc basis, to Novem- ber, 22, 1972, on which date they were selected as regular appointees, was not taken into account. The second challenge was confined to the seniority D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  4 given to respondents 2 to 39 by giving them a weightage of their experience as Overseers. The High Court negatived both the challenges and dismissed the writ petition. Hence the present appeal. 7. The same contentions which were advanced before the High Court was advanced before us. We will, therefore, first examine the grievance that the ad hoc service of the appel- lants was not counted for the purpose of the appellants' seniority. A heavy reliance is placed on behalf of the appellants on the decision of this Court reported in Balesh- war Dass & Ors. etc. v. State of U.P. & Ors. etc., [1981] 1 S.C.R. 449 in support of the contention that ad hoc officia- tion is entitled to be counted for the purpose of seniority. The ratio of the said decision however is not applicable to the present case. In that case there was no dispute that the temporary appointees to the posts, who were claiming benefit of their temporary appointment or officiation were qualified to be appointed to the posts when they were initially ap- pointed., All the procedural formalities of their appoint- ments were also followed, namely, they had completed their probationary period, the Public Service Commission had given its approval and they had also been medically examined and found it. No rule was breached in making their appointment. The vacancies to which they were appointed were also sub- stantive vacancies. Their appointments, however, had contin- ued for a number of years although there was no obstacle whatsoever in making them regular or permanent. All that had remained to be done was the issuance of a format order of regularisation of the appointment which for unexplained reasons, the Govt. had failed to do for a number of years. The Court therefore observed that "a post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for 10 or more years under the head "temporary" for budgetary or other technical reasons. Those who are appointed and hold tempo- rary posts of the latter category are also members of the service provided they have been appointed substantively to that temporary post". A little later, the Court made further observations in this connection, as follows: "Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it is not, the further point to notice is as to whether the appointments are regular and not in viola- tion of any rule, whether the Public Service Commission's approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority. For other purposes they may remain temporary ............... The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant. ' ' (Emphasis supplied) It will thus be seen that in that case the appointments to the substantive vacancies D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  5 were made according to rules after complying with the procedure for regular appointment. There was no requirement of the Recruitment Rules which was left to be complied with. In our case unless the D.P.C. makes the selection, none can be appointed as Assistant Engineer regularly. Similar were the facts in the case of G.P. Doral & Ors. v. Chief Secretary, Government of U. P. & Ors., [1984] 4 S.C.C. 329 in that case the petitioners were temporarily appointed as Khandsari Inspectors having been selected in the departmental competitive test and interview. Their appointments were however "subject to final selection by Public Service Commission at a later date". Some of the respondents were also appointed to the same posts subsequently in the same manner. The names of these recruits were later forward- ed to the Public Service Commission which accorded its approval to their appointments. The Department drew up a provisional seniority list on the basis of the recommenda- tions of the said Commission by taking the date of approval/selection by the Commission in respect of each candidate as the basis for determining the length of contin- uous officiation. The Department supported its action on the ground that it had prepared the list by reckoning seniority from the date of their "substantive appointments" in accord- ance with an earlier Government Order of 1940 which pre- scribed certain guidelines or model rules for framing rules governing conditions of service. The model set out in the order suggested two independent principles for determining seniority, namely, (i) the date of substantive appointment and (ii) the date of the order of first appointment, if such appointment is followed by confirmation. In the seniority list, the petitioners were placed below the respondents though they were initially appointed prior to the respond- ents. This Court quashed the seniority list holding that the question as to from what date the service is to be reckoned will depend upon the facts and circumstances of each case. It was observed there that: "Where officiating appointment is followed by confirmation, unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, then in the absence of the contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made .................. If a stopgap ap- pointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, there is no justification for ignoring his past service. At any rate, there is no justification for two persons selected in the same manner being differently treated." (emphasis ours) The Court also found there that the earlier order of 1940 had not prescribed any binding rule of seniority and assum- ing that it did, the seniority list did not conform to the model. The model set out in the Government Order prescribed two different start- ing points for reckoning D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  6 seniority and it was difficult to assume that the department adopted one and rejected the other without making a specific rule in that behalf. It will thus be clear that the Court was dealing with an altogether different situation in both the aforesaid cases. There was no dispute in those cases that except for the terminology and nomenclature there was no distinction be- tween a temporary and permanent appointment and all that remained to be done in those cases was the formalisation of the appointments. That is not the situation in the present case. The appellants were ineligible to be appointed as Assistant Engineers initially. Their appointments were made specifically under the power given to the Government to make ad hoc appointments for administrative exigency. The ap- pointment orders made it clear that the appointments were in the said special circumstances and that they will not be deemed to determine seniority for any purpose whatsoever. There is further no dispute that no appointments could be made as Assistant Engineers except by way of either direct recruitment through the Public Service Commission or promo- tion through the selection made by the D.P.C. as per the quota assigned to different categories. The first D.P.C. which met for selection, after the appellants became quali- fied for being promoted, was held on October 12, 1972. It is in this meeting that the appellants were selected along with the other qualified promotees, namely, respondents 2 to 39. The D.P.C. further had the power also to arrange the senior- ity of the promotees according to merits. For all purposes, therefore, the appointment of the appellants on July 22, 1971 was ad hoc and not according to rules. Their selection/appointment on November 22, 1972 by the D.P.C was further not a mere formality or a process undertaken only for formalisation of their earlier appointment. In the circumstances, their appointment on November 22, 1972 could not relate back to July 22, 1971 and hence they were not entitled to claim their officiation between July 22, 1971 and November 22, 1972 for being counted for the purposes of their seniority for placing them either above respondents 40 to 63, who were directly recruited on August 7, 1972 or above respondents 2 to 39, who were promoted by the D.P.C. along with them, on November 22, 1972, and who happened to be senior to them even as Junior Engineers. 8. The other leg of the aforesaid contention was that the appellants were appointed under Rule 7(4) of the said Rules and not under the proviso to Rule 19 of the Rules inasmuch as under the latter provision, their appointments could not have been made. The argument was that the latter provision permitted appointments for an administrative exigency only in vacan- cies which did not last for more than three months. Since the appellants continued in the post for more than a year before they were selected on November 22, 1972, it should be held that their appointment was under Rule 7(4) of the Rules. As has been pointed out by the High Court, the re- course to Rule 7(4) is unwarranted because that provision deals with the method of recruitment and permits the State Government to adopt any method other than those provided there.One of the methods permitted by that provision admit- tedly is promotion, and since the appellants were admittedly promoted, though they were not qualified on that date, their case would not be covered by the third method of recruitment which is other than the one prescribed there. Therefore, the argument that they should be considered to have been re- cruited to the post of Assistant Engineer by a method other than that expressly provided by the said Rule 7(4) is only to be stated to be rejected. Once it is held that they were promoted on ad hoc basis, what comes in the play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appointments for purely administrative exigen- cies. D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  7 It was then contended that since the proviso to Rule 19(1) permitted appointments in vacancies which were to last for more than three months, it should be held that after the appellants became eligible during the first three months of their appointment, their further continuation was on regular basis. This argument has also no substance in it, for as pointed out earlier, for being selected for appointment as Assistant Engineers, the appellants had to face the D.P.C. and the Government had no power to make regular appointments to the said post unless the D.P.C. had selected the candi- dates for the posts. Secondly, the proviso to Rule 19(1) has to be read liberally. The said provision has to be inter- preted to mean that the appointments under the said provi- sion can be made for three months at a time. Thus there was nothing to prevent the State Government from renewing the appointment of the appellants every three months. 9. The second contention is directed against the senior- ity of respondents 2 to 39 and proceeds on the ground that the weightage given to them is illegal. This contention must also fail for the following reasons. Admittedly the Rules of Recruitment prescribe appointments to the post of Assistant Engineer from two sources, namely, (i) by direct recruitment and (ii) by promotion in the proportion of 50--50. The promotional posts are further required to be filled in from three different cadres in the following proportion: '(i) 25% from Junior Engineers (ii) 20% from Overseers (iii) 5% from Head Draftsmen/Draftsmen. Under the Madhya Pradesh P.W.D. (non-gazetted) Recruitment Rules of 1972 (hereinafter referred to as 1972 Rules), the Overseers who acquire an Engineering degree or qualify for A.M.I.E. become eligible for promotion to the post of Junior Engineers as soon as the vacancy arises. The inter se sen- iority between the Overseers and the Junior Engineers in the cadre of Junior Engineers is to be fixed in accordance with Rule 14(3) of the said Rules by giving weightage of two months for every year of their service to the Overseers. When the D.P.C. met on October 12, 1972 and considered the cases both of the appellants and the respondents, the Com- mittee had submitted the names of the selected candidates cadre-wise, i.e.. separately of Junior Engineers, Overseers, Head-Draftsmen/Draftsmen. The General Administration Depart- ment thereafter considered the matter. Under the Rules, the Overseers were required to obtain an Engineering degree or qualify for A.M.I.E. and were also required to serve for 12 years as Overseers to become eligible for being considered for appointment as Assistant Engineers. As against this, the Junior Engineers who were degree holders were required to serve only for two years to become eligible for being con- sidered to the said post. Taking these aspects into consid- eration their inter se seniority, namely, the interse sen- iority of the appellants and the Overseers promotee respon- deets was fixed by the Government according to the following formula which was in vogue for a number of years: D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  8 (a) In the cadre of Junior Engineers, Overseers so promoted were given weightage as per Rules of 1972, and promotional dates for seniority in the cadre were fixed accordingly. (b) In the cadre of Assistant Engineers, the date of reckon- ing of seniority was the one on which Junior Engineer or Overseer or Head-Draftsman/Draftsman completed the respec- tive span of service for eligibility. Hence, when seniority was fixed as per the impugned seniori- ty list of the cadre of Assistant Engineers, when admittedly the Rules of 1972 were in vogue, it was fixed according to the afore- said formula. There is no dispute that according to the said formula, which can hardly be faulted, respondents 2 to 39 who were senior as Junior Engineers, were entitled to sen- iority over the appellants. It may further be pointed out that the Rules of 1972 were not challenged either before the High Court or before us. All that was challenged before the High Court was that these Rules were restricted in their application only to the promotions made to the post of Junior Engineers and were not applicable to the promotions made to the post of Assistant Engineers. On the face of it, such a challenge is meaningless because Rule 14 of the said Rules is clearly meant for the promotions to the post of Assistant Engineers. Otherwise the seniority given to the Overseers etc. in the seniority list of Junior Engineers on the basis of the their service as Overseers, is meaningless. For all these reasons, we find no substance in this conten- tion either. 10. We, therefore, confirm the decision of the High Court and dismiss the appeal. There will, however, be no order as to costs. R. N.J. Appeal dismissed. D.N. Agrawal And Anr vs State Of Madhya Pradesh And Ors on 23 March, 1990  9