Holding

Seniority of an officer appointed by transfer may be fixed from the date of deputation under Rule 12(5) of the Punjab Service of Engineers Class II Rules, 1965, provided it is in the public interest and not more favourable than credit for prior service.

Summary

The case concerned the fixation of seniority of Puranjit Singh, who was an Assistant Engineer in the Punjab PWD and was deputed to the Chandigarh Administration on 7 October 1972, later being absorbed on 17 June 1978. He was granted seniority from the date of his deputation (7 October 1972) under a notification dated 14 January 1980, invoking Rule 12(5) of the Punjab Service of Engineers Class II Rules, 1965. K.S. Brar, who joined the Chandigarh Administration as a direct recruit on 24 June 1976, challenged this seniority, arguing that the transfer was at Singh’s request and therefore should not be treated as being in the public interest, seeking placement at the bottom of the seniority list. The Central Administrative Tribunal applied Rule 10, held the absorption order invalid, and fixed Singh’s seniority from the date of absorption. The Supreme Court held that the correct provision governing seniority for officers appointed by transfer is Rule 12(5), which permits seniority to be fixed from an earlier date if it is in the public interest and not more favourable than credit for prior service. The Court found the Tribunal erred, upheld the seniority fixation from 7 October 1972, and set aside the Tribunal’s decision. The appeals were allowed.

Issues considered

The correct rule governing fixation of seniority for an officer appointed by transfer under the Punjab Service of Engineers Class II Rules, 1965.
Whether seniority can be assigned from the date of deputation prior to absorption in the cadre in the interest of public service.
Whether the Tribunal erred by applying Rule 10 instead of Rule 12(5) and by questioning the validity of the absorption order.

Legislation cited

Punjab Service of Engineers Class II, P.W.D. (Buildings and Roads Branch) Rules, 1965s. Rule 10, s. Rule 12(5)

Subjects

seniority fixationtransfer appointmentpublic interestservice rulesPunjab Service of Engineersadministrative law

Judgment

CHIEF ENGINEER AND SECRETARY, ENGINEERING
A
DEPARTMENT,"FOR AND ON BEHALF OF CHANDIGARH
ADMINISTRATION, CHANDIGARH ETC.·
y
v.
K.S. BRAR & ANR. ETC.

SEPTEMBER 1, 1988 B

[MURARI MOHON DUTT AND M.H. KANIA, JJ.)

Punjab Service of Engineers Class II P. W.D. (Buildings & Road-
ways Branch) Rules, 1965, Rules JO and 12-Appointment of officer by
transfer-Assignment of seniority in public interest-Whether can be
assigned from the date of deputation which is prior to the date of c
abSlfrption.
' /

Rule 10 of the Punjab Service of Engineers Class. II, P.W.D.
(Buildings and Roadways Branch) Rules, 1965 provides that the
government may, in special circumstances, with the approval of the D
Commission, appoint an orpcer to the service by transfer. Sub-rule (5)
of Rule 12 of the rules lays down that any person appointed to a post in
the service as an Assistant Engineer by transfer can be assigned senio-
nty as of a date earlier than the date of absorption provided this is done
in the interest of the public service and the seniority thus fixed shall in
no case be more favourable than the seniority determined .after allowing E
him credit fOr the period of service rendered by him in previous
appointment as Assistant Engineer.
_,
The appellant, in Civil Appeal No. 3100 of 1988 (hereinafter
;eferred to as respondent No. 4 as In the Tribunal) was an Assistant
Engineer in the Punjab Public Works Department. He was deputed to F
work with the Engineering Department of Chandigarh Administration
on October 7, 1972 and was absorbed in the said Department on June
17, 1978, at his request, However, he was granted seniority w.e.f.
:r October 7, 1972 being the date of his joining as an Assistant Engineer on
deputation in the Chandigarh Administration.
G
One K.S. Brar (hereinafter referred to as petitioner as in the
Tribunal) joined the Chandigarh Administration as an Assistant
Engineer on June 24, 1976. He challenged before the Tribunal the
seniority of respondent No. 4 on the ground that the order of absorption
of respondent No. 4 in the Chandigarh Administration and the order
fixing his seniority were not in public interest or in the interest of the H
it 797
798 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

service. The Tribunal allowed the petition holding that respondent
A
No. 4 should be placed at the bottom of the gradation list of officers of
his category and granted seniority from the date he was absorbed in the
cadre. Hence these appeals by special leave by respondent No. 4 and the
·Chandigarh Administration respectively.

B It was contended on behalf of respondent No. 4(a) that the ques-
tion of .regularity or validity of the order of absorption was irrelevant to
the question of fixation of seniority; and (b) that the Chandigarh Ad-
ministration was entitled to assign a seniority to respondent No. 4 from
a date prior to the date of his absorption as per the provisions of sub-
.rule (5) of Rule 12 of the Rules. It was, on the other hand, argued on
behalf of the respondent (petitioner before the Tribunal) that, as the
c transfer of respondent No. 4 and his appointment as an Assistant
Engineer in the Chandigarh Administration was at his own request, he
should be placed at the bottom of the seniority list as on the date of
absorption.

D Allowing the appeals,

HELD: (1) For the question of determining seniority, what one
has to see is not Rule 10 but Rule 12(5) of the said'Rules. The Tribunal
completely failed to notice Rule 12(5) and, probably, it was because of
this that it fell into the error of coming to the conclusion that it did. This
,E appears clear from the fact that there is no reference to Rule 12(5) at all
in the judgment of the Tribunal. [803C-D, 804B-C] •
2(i) The Notification dated 14.1.1980 relating to the fixation of
seniority of Respondent No. 4· expressly sets out that the order assigning
a higher seniority to him has been passed by the Chandigarh Adminis-
F !ration taking into account all the circumstances of the case and keeping
in view public interest and after considering the representations made
in connection with the tentative seniority list which was circulated
earlier. By the said order seniority is assigned to Respondent No. 4 with
effect from 7.10.1972 which is clearly within the limits laid down in the
proviso to Rule 12(5) of the said Rules. [803D-E, F-G]
G
2(ii) Respondent No. 4 was first appointed as an Assistant
Engineer through the Public Service Commission in July 1968 whereas
the petitioner was appointed to a similar post as late as on June 24,
1976. Respondent No. 4 was thus holding the post of an Assistant
Engineer prior to the petitioner. As far as the qualifications go, it
H appears prima facie that the qualifications of Respondent No. 4 are
CHIEF ENGINEER v .. K.S. BRAR [KANIA, J.J 799
,.
better than those of the petitioner and certainly, not lower than those of A
the petitioner. No oblique motive for granting a higher seniority to
Respondent No. 4 is shown. In these circumstances, it is not possible to
say that the order assigning seniority to Respondent No. 4 as aforesaid
">t .has been passed merely under the guise of Public interest. [803-804H, A-Bl

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3099 B
and 3100 of 1988.

From the Judgment dated 17.9.87 passed by the Central
Administrative Tribunal, Chandigarh Bench, Chandigarh in 0 .A.
No. T-5/CH of 1987.

.Kapil Sibbal, G.L. Sanghi, Ms. Kamini Jaiswal, P.N. Puri, R.K.
c
Chopra and Ravinder Chopra for the Petitioners.

V.C. Mahajan and S.C. Patel for the Respondents.

The Judgment of the Court was delivered by D

KANIA, J. Special Leave granted in both the petitions. The
Registry is directed to register and number these petitions as Civil
Appeals.

These Appeals are both directed against a judgment of the Cent- E
ral Administrative Tribunal, Chandigarh Bench, dated September 17,
1987. The Appeal arising out of Special Leave Petition No. 15073 of
1987 has been preferred by the Chandigarh Administration, Chandi-
garh and the Appeal arising out of Special Leave Petition No. 11877 of
1987 has been preferred at the instance of Puranjit Singh. Writ
Petition No. 3287 of 1978 filed in the. Punjab & Haryana High Court F
was transferred to the said Tribunal and treated as T.A. No. T-5/CH
of 1987 and it is the judgment of the Tribunal in this petition which is
impugned before us. The said writ petition was filed by K.S. Brar who
is Respondent No. 1 in Special Leave Petition No. 15073 of 1987 and
Respondent No. 4 in Special Leave Petition N9. 11877 of 1987. Puran-
jit Singh, the petitioner in Special Leave Petiiion No. 11877 of 1987 G
was Respondent No. 4 in the said writ petition' and Chandiga.rh
Administration and its officers were Respondents Nos. 1 to 3. We
~propose to refer to the parties by their description in the said wr/t
~petition.

I
{ Respondent No. 4 was appointed as an Assistant Engineer in the H
800 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A Punjab Public Works Department (Irrigation Wing) on July 15, 1968
on selection ihrough the Punjab Public Service Commission. On
October 7, 1972 Respondent No. 4 was deputed to work with the
Chandigarh Administration in its. Engineering Department as an
Assistant Engineer. On June 24, 1976 the petitioner joined the
Chandigarh Administration as an Assistant Engineer as a direct recruit
B by his selection through the Union Public Service Commission.
Respondent No. 4 made an application, while on deputation with the
Administration of the Union Territory of Chandigarh, for absorbing
him in the cadre of Sub-Divisional Engineers in the Engineering
Department at Chandigarh. His request was acceded to by the
Administration and by an order passed by the Home Secretary on June
17, 1978 he was absorbed in the Engineering Department as a Sub-
C Divisional Engineer (B & R) in the Chandigarh AdminiStration,
working on deputation in the Housing Board, Chandigarh. The order
absorbing him as a Sub-Divisional Engineer was incorporated in a
Notification dated March 1, 1979, which was duly Gazetted. The said
Notification sets out that _the Chief Commissioner, Union Territory,
D Chandigarh, in consulation with the Union Public Service Commis-
sion, New Delhi, is pleased to appoint Puranjit Singh as Assistant
Engineer (Civil); Class II, in the Engineering Department of
Chandigarh Administration on buildings and roads side, by transfer
from Punjab, P.W.D. Buildings and Roads Branch, and that his
appointment will be subject to further provisions of P.W.D. Class II
E Rules, 1965 as applicable to the Engineering Department of the
Chandigarh Administration. There is no mention of public interest or
interest of the service in this order. The consent of the State of Punjab
as well as the approval of the Union Public Service commission with
regard to this appointment of Respondent No. 4 was duly taken. On
consideration, a tentative seniority list was circulated on November
F 19, 1979 inviting objections and after hearing the objections Respon-
dent No. 4 was granted seniority with effect from October 7, 1972,
being the date of his joining as an Assistant Engineer on deputation in
the P. W .D. Buildings and Roads Branch of the Chandigarh Adminis-
tration. The Notification dated 14.1.1980 granting him final seniority
sets out inter a/ia as follows:
G
"AND· WHEREAS the Chandigarh Administration consi-
dered all the circumstances of the case and keeping the
public interest in view, fixed the tentative seniority of Shri
Puranjit Singh w.e.f. 7.10.1972, the date of his joining as
Assistant Engineer in P. W .D. Buildings & Roads Branch
CHIEF ENGINEER v. KS. BRAR !KANIA, J) 801

Now, therefore, in pursuance of rule 12.5 of Punjab A
Service of Engineers, Class II, P.W.D. (Buildings and
Roads Branch) Rules, 1965, the Chief Commissioner,
Chandigarh Administration is pleased.to order the fixation
of. seniority of Shri Puranjit Singh as Assistant Engineer
w.e.f. 7.10.1972 ..... "
B
From this it is clear that Respondent Ne. 4 was granted seniority
'· with effect from 7.10.1972 when he was appointed on deputation as
Assistant Engineer in P. W .D. (Duildings and .Roads Branch) as stated
earlier. The petitioner in the w~i! petition challenged both the order of ·
absorption of Respondent No. 4 in the Chandigarh Administration
and the order fixing his seniority on the ground that these orders were
not in public interest or in the interest of the service. However, at the c
hearing before the Tribunal, at the very outset, learned Counsel for
the petitioner made it clear that he was not challenging the absorption
of Respondent No. 4 but only the placement of the petitioner in the
seniority list and the assigning of seniority to Respondent No. 4 from
the date he was taken on deputation, namely, 7.10.1972. The conten- D
tion of the petitioner was that, since Respondent No. 4 was appointed
by transfer to the Chandigarh Administration at ~is own request, he
ought to have been placed at the bottom of the seniority list in the year
of absorption and below the petitioner. Curiously, although the
challenge to the order absorbing Respondent No. 4 in the service of
the Chandigarh Administration was given up by the petitioner, the E
Tribunal came to the conclusion, on the basis of Rule 10 of the Punjab
Service of Engineers, Class II, P.W.D. (Buildings and Roads Branch)
Rules (referred to hereinafter as "the said Rules"), that the order of
absorption was not valid as no special circumstances had been set out
or shown justifying the same and hence, there was a lacuna in the
order. The Tribunal held that, as a result of this Respondent No. 4 F
should be placed at the bottom of the gradation list of officers of his
category and granted seniority from the date he was absorbed in the
cadre, namely, February 9, 1979. It is against this decision that both,
the Chandigarh Administration and Respondent No. 4, have come by
way of these Appeals.
G
It was urged by learned Counsel for the Chandigarh Administra-
tion as well as learned Counsel for Respondent No. 4 that the question
of regularity or validity of the order of absorption was irrelevant to the
question of fixation of seniority. It was submitted by .them that, in view
1 of the challenge t-0 the-an:ler of absorption of Respondent No. 4 having
been specifically given up by learned Counsel for the petitioner before H
802 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A the Tribunal, it was not open to the Tribunal to consider the question
of validity of the absorption at all, and that as per the provisions of
sub-rule (5) of Rule 12 of the said Rules the Chandigarh Administra-
tion was entitled to assign a seniority to Respondent No. 4 from a date
prior to the date of his absorption in the interest of the public service
- ~and after taking into account all the circumstances of the case provided
B that Respondent No. 4 could not be granted seniority more favourably
than the seniority determined after allowing him credit for the period
of service rendered by him in his previous appointment as Assistant
Engineer. It was, on the other hand, contended by learned Counsel for
the petitioner that, as the transfer of Respondent No. 4 and his
appointment as an Assistant Engineer in the Chandigarh Administra-
tion was at his own request, he should be placed at the bottom of the
c seniority list as on the date of absorption.

In order to appreciate these respective contentions, it is neces- ,
sary to set out the relevant provisions. Rule 10 of the said Rules
provides for the appointment in Class II service by transfer and reads
D as under:

"The Government may in special circumstances with the
approval of the Commission, appoint an Officer to the
service by transfer."

E Sub-Rule (5) of Rule 12 of the said Rules reads thus:

"12(5) in the case of an officer appointed by transfer as an
Assistant Engineer, while normally he would be placed
junior to all the officers appointed directly or by promotion
as Assistant Engineers in a particular year, the Govern-
F ment may in the interest of the public service and takin,g into
consideration all the circumstances of the case, fiX his
seniority on ad hoc basis.

Provided that the seniority thus fued shall in no case,
be more favourable than the seniority determined after
allowing him credit for the period of service rendered by
him in previous appointment as Assistant Engineer or on a
post the duties of which in the opinion of the Government
are of equivalent or greater responsib!lity. The decision of
'
)
Government on this point shall be finaL"

H As far as the appointment of Respondent No. 4 as Assistant
CHIEF ENGINEER v. K.S. BRAR [K~NIA, J.] 803

Engineer in the Chandigarh Administration is concerned, we must
A
proceed on the footing that it was made at his own request. Rule 10 of
the said Rules clearly provided that such an appointment can be made
only in special circumstances. In our view, where the request made by
the officer concerned is based on circumstances showing the request
for transfer is justified, this might be looked up as a special circum-
stance. It was, however, pointed out by learned Counsel for the B
petitioner that the order of appointment by transfer does not refer to
any special circumstance and hence, the appointment of Respondent
No. 4 in the Chandigarh Administration by transfer is itself not regu-
lar. However, we do not wish to go into the question as to whether
such an appointment could be said to be invalid or irregular merely
because no special circumstances has been recited in the order because
the challenge to the order appointing Respondent N.o. 4 by transfer C
has been specifically given up by the petitioner in the Tribunal. In our
view, for the question of determining seniority, what one has to see ·is
not Rule 10 but Rule 12(5) of the said Rules which, in terms, provides
that any person appointed to a post in the service in question by
transfer can be assigned seniority as of a date earlier than the date of D
absorption provided this is done in the interest of the public service.
The Notification dated 14.1.1980 relating to the fixation of seniority of
Responaent No. 4 expressly sets out that the order assigning a higher
seniority to him has been passed by the Chandigarh Administration
taking into account all the circumstances of the case and keeping in
view public interest and after considering the representations made in E
connection with the tentative seniority list which was circulated
earlier. The· said Notification, in its earlier portion, recites that
Respondent No. 4 was appointed on July 15, 1968 as an Assistant
Engineer (Civil) in the Punjab P .W.D. (Irrigation Branch) and that he
was appointed as an Assistant Engineer (Civil) in the Buildings and
Roads . Branch of Punjab P:W.D. on October 7, 1972 through the F
Public Service Commission and joined on deputation in the Engineer-
ing Department of the Chandigarh Administration. By the said order
seniority is assigned to Respondent No. 4 with effect from 7 .10.1972
which is clearly within the limits laid down in the proviso t,o Rule 12(5)
of the said Rules. In view of this, the order granting him seniority as
aforesaid appears ex facie to be in order.. It was urged by learned G
Counsel for the petitioner that, although public interest has been
referred to in the said Notification, it is clear that this consideration
was not in the mind of the Chandigarh Administration at all but the
appointment was made to favour Respondent No. 4. We are afraid
that there is no basis ·on which such a submission can be founded.
Respondent No. 4 was first appointed as an Assistant Engineer H
804 SUPREME COURT REPORTS I l988] Supp. 2 S.C.R.
A through the Public Service Commission in July 1968 whereas the
petitioner was appointed to a similar post as late as on June 24, 1976.
Respondent No. 4 was thus holding the post of an Assistant Engineer
prior to the petitioner. As far as the qualifications go, it appears prima
facie that the qualifications of Respondent No. 4 are better than those
of the petitioner and certainly, not lower than those of the petitioner.
B
No oblique motive for granting a higher seniority to Respondent No. 4
is shown to us. In these circumstances, it is not possible to say that the
order assigning seniority to Respondent No. 4 as aforesaid has been
passed merely under the guise of public interest. In our view, the
Tribunal completely failed to notice Rule 12(5) of the said Rules and,
probably, it was because of this that it fell into the error of coming to
c the conclusion that it did. This appears clear from the fact that there is
nd reference to Rule 12(5) at all in the judgment of the Tribunal.

In the result, the appeals are allowed, the judgment and order
passed by the Tribunal are set aside and validity of the order dated
14 . I. 1980 fixing seniority of Respondent No. 4 is upheld.
D
Looking to the circumstances of the case, there will be no order
as to costs.

M.L.A. Appeals allowed.