DESOOLA RAMA RAO & ANR.versusSTATE OF ANDHRA PRADESH & ORS.

                   DESOOLA RAMA RAO & ANR.
A
                              v.
                STAIB OF ANDHRA PRADESH & ORS.

                            FEBRUARY 24, 1988

B                [RANGANATH MISRA AND G.L. OZA, JJ.]

           Andhra Pradesh (Roads and Buildings) Engineering Service
     Special Rules, 1967: s. 5/Andhra Pradesh State & Subordinate Service
    .Rules, 1962: ss. 23(a) & 33(a)-Inter se seniority in the cadre of
     Assistant Engineers between promotees and direct recruits-In the abs-
     ence of specific Rule length of service to be the basis.
c
          Rule 5 of the Andhra Pradesh (Roads and Buildings) Engineering
    Service Special Rules, 1967 lays down that for promotion to the post of
    Executive Engineer, a Graduate Assistant Engineer should be (a) a full
    member or approved probationer, (b) a direct recruit should put in six
D   years service as Assistant Engineer and (c) a promotee Assistant
    Engineer should put in five years service. There is no provision for
    giving preference to one category over the other for promotion. Rule
    23(a) of the Andhra Pradesh State and Subordinate Service Rules, 1962
    empowers the appointing authority to commence the probation of a
    person appointed to the service with retrospective effect. Rule 33(a) of
E   these rules mandates the determination of the seniority of a person in a
    service by the date of first appointment.

           The appellants were directly recruited as Assistant Engineers in
    April 1966. Respondents 3 and 4 were temporarily appointed Assistant
    Engineers by transfer on 14th August, 1959 and 19th May, 1960 respec-
F   tively. Their services were regularised with effect from 19th May, 1961
    by an order dated 3rd May, 1967 in exercise of the powers under s. 23(a)
    of the General Rules. The appellants sought promotion to the post of
    Executive Engineer on the basis that they were senior to the promotee
    Assistant Engineers-respondents. Their case was that the Chief
    Engineer was not competent to make the order under s.23(a) of the
G   General Rules. The State Government vide their order dated August
    10, 1983 decided that the seniority of the direct recruits and promotees
    has ·to be determined with reference to their regular appointment of the
    category of Assistant Engineers and not from the date of confirmation
    in the said category and declared that the seniority of the appellants was
    far below the respondents and they would be considered for promotion
H   in their turn alongwith others.
                                       24
                     D.R. RAO v. STATE OF A.P. [MISRA, J.]                 25

          A writ petition filed by the appellants in the High Court challeng-
                                                                                 A
    ing the said order was dismissed by a Single Judge, and that dismissal
    was upheld in appeal.

          Dismissing the appeal by special leave,

 .        HELD: The law relating to inter-se seniority in a cadre is well        B
).. settled. If there be a rule indicating the manner in which such seniority
    has to be fixed, that is binding. In the absence of such a rule, length of
    service is the basis for fixing inter-se seniority.

           In the instant case, there is no provision in the Rules under con-
    sideration that direct recruits would have preference over promotees
    for purposes of inter-se seniority. In the absence of such a rule the        c
    guidelines indicated in the General Rules, which provide that seniority
    shall be determined by the date of first appointment to the service, have
    to be followed. Respondents
                              .
                                   3 and 4 have
                                           I
                                                put in longer service than the
    appellants in the post of Assistant Engineer. Their services had been
    regularised with effect from May 19, 1961 in exercise of the powers          D
    under Rule 23(a) of the Gene'ral Rules, which date is not anterior. to
                               '
    their appointment as Assistant . Engineer. The regularisation is thus not
    vitiated on account of arbitrariness. The appellants would, therefore,
    rank below respondents 3 and 4 in the cadre and the promotional be-
    nefit would be given to them after the claim of the respondents 3 and 4
    has been duly considered.                                                    E

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1995
    of 1977.

         From the Judgment and Order dated 16.9.1975 of the Andhra
    Pradesh High Court in Writ Petition No. 584 of 1975.                         F

          G.L. Sanghi, Subodh Markandeya and Mrs. Chitra Markandeya
    for the Appellants.

         K.G. Bhagat, Y. Prabhakar Rao, T.V.S.N. Chari and Ms.
    Vrinda Grover for the Respondents.                                           G

          The Judgment of the Court was delivered by

          RANGANATH MISRA, J. This appeal is by special leave and is
    directed against the appellate judgment of a division bench of the
    Andhra Pradesh High Court upholding the rejection of the writ petition       H
    26                   SUPREME COURT REPORTS             I 1988] 3 S.C.R.
A by a Single Judge of that High Court. Appellants are Engineers in the
  establishment of the Chief Engineer (Roads and Buildings of the
  Andhra Pradesh Government and the dispute is one of inter se senio-
  rity between them on the one side and respondents 3 and 4 on the other.

          Appellants filed a writ petition being No. 4151 of 1972 in the
B   High Court of Andhra Pradesh claiming a direction to the State
    Government for considering them for promotion to the post of Execu-
    tive Engineer on the basis that they were senior to five promotee
    Assistant Engineers. A learned Single Judge disposed of the said writ
    petition by judgment dated 29th March, 1973, and gave the following
    directions:
c                    "The respondents 1 and 2 (State of Andhra Pradesh
               and its Chief Engineer respectively) will, therefore,
               consider the claims of the petitioners for promotion as
               Executive Engineers having regard to their seniority in.the
               cadre of Assistant Engineers in relation to the seniority of
D              respondents 3 to 7. I, therefore, direct respondents I and 2
               to take the seniority of the petitioners, who were full mem-
               bers of service, in relation to the seniority of respondents 3
               to 7 in the cadre of Assistant Engineers and consider the
               case of the peititoners for promotion to the posts of Execu-
               tive Engineers in accordance with the rules."
E
    The State Government, in compliance with the directions issued to it,
    by order dated 10th August, 1983, made an order stating:

                     "As per Rule 5 of the said Special Rules, for promo-
               tion to the post of Executive Engineers (Ordinary Grade) a
               Graduate Assistant Engineer should be:

                     (a) a full member or approved probationer;

                     (b) a direct recruit should put in six years service as
                     Assistant Engineer; and
G
                     ( c) a promotee Assistant Engineer should put in five
                     years service.

                No preference is provided for persons, who were either
                direct recruit Assistant Engineers or who secured earlier
H               confirmation. In the absence of specific provision in the
         D.R. RAO v. STATE OF A.P. [MISRA, J.i                27
y
I   Special Rules for giving any preference to direct recruit A
    Assistant Engineers in the matter of promotion to the
    category of Executive Engineers, only the provisions of
    General Rules for State and Subordinate Services have to
    be applied therefor. According to Rule 33(a) of General
    Rules for Andhra Pradesh State and Subordinate Services,
    the seniority of a person in a service, class, category or B
    grade, shall, unless he has been reduced to a lower rank as
    a punishment, be determined by the date of first appoint-
    ment to such service, class, category or grade. So, the
    seniority of the Writ Petitioners aqd the respondents has to
    be considered with reference ici their dates of regular
    appointment to the category of Assistant Engineers
    (R & B) but not from the date of confirmation in the said
                                                                    c
    category, for Pl!rpose of promotion as Executive
    Engineers. The dates of commencement of probation of
    the respondents and Writ Petitioners is as indicated below:

    SI. NameoftheAsstt.                    Date of Comm-            D
    No. Engineer                           encement of
                                           probation

         Respondents
    1.    Sh. B.V. Venkataramana     19.5.1961
                                                                    E
    2.   -Sh. C.M. Ramachandramurthy 19.5.1961

         Writ Petitioners
    1.   Sh. Desoola Rama Rao              18.7.,1.966
    2.   Sh. V. Murahari Reddy             30.6.1966
                                                                    F
    (Names of the three others stated in the order are not
    extracted as are not relevant).

    Thus the respondents commenced their probation between
    1959 to 1963 while the writ petitioners commenced their
    probation in 1966 and their seniority is far below the G
    respondents.

          The Government, after careful examination of the
    judgment of the High Court, with reference to the statu-
    tory rules and in relation to the seniority obtaining between
    the respondents and the writ pet1t10ners, decide that the       H
    28                     SUPREME COURT REPORTS             [1988] 3 S.C.R.

                iurn of lhe two writ petitioners for promotion has not yet
A
                come and that their claims shall be considered for promo-
                tion as Executive Engineers (Ordinary Grade) in iheir
                turn, along with others according to their seniority as per
                rules and eligibility."

B   The appellants ihereafter filed a second writ petition being Writ Peti-
    tion No. 6157 of 1973 before the High Court challenging the Govern-
    ment Order. As already stated, the learned Single Judge has dismissed
    the writ petition and such dismissal has been upheld in appeal.

          Appellants were directly recruited as Assistant Engineers on           ~-
    29th April, 1966 and Special Rules for Roads and Buildings Division of
c   the public Works Department were made on 27th June, 1967, but were
    given effect from 1st April, 1965. According to the Rules, appoint-
    ment to the posts of Assistant Engineers can either be by direct
    recruitment or by recruitment by transfer of Junior Engineers and
    Supervisors or Draftsmen (Special Grade) or Draftsmen (Grade If
D   Under the Rules, appellants became eligible for promotion to the post
    of Executive Engineer in 1971 and when their claim for promotion was
    overlooked the first writ petition, as already stated, was 11.led. Accord-
    ing to the appellants, respondents 3 and 4 were appointed by transfer
    under Rule 10-A of the Rules and were approved probationers. They
    contend that the promotees are approved probationers and until con-
E   firmation as full members of the service, they would not be entitled to
    the benefit of seniority in service and, therefore, the appellants were
    senior to them. They, therefore, challenged the Government Order
    referred to above and contended ihat the High Court went wrong in
    not holding that appellants were senior to the two respondents and on
    that basis they were entitled to consideration for promotion to the post
F   of Executive Engineer in preference to those respondents.

        There is no dispute ihat both directly recruited Assistant
  Engineers as also promotee Assistant Engineers are entitled to promo-
  tion as Executive Engineers. The rule requires direct recruits to have
  put in six years of service while for promotees the prescription is five
G years of service for being eligible to be considered for promotion. As
  in many other service rules, ihere is no provision in the Rules under
  consideration that direct recruits would have preference over pro-
  motees for purposes of inter se seniority. In the absence of such a rule
  the High Court followed the guideline indicated in the General Rules
  which provides that seniority shall be determined by the date of first
H appointment to ihe service. The High Court found that respondents 3
                      D.R. RAO v. STATE OF A.P. [MISRA, J.J                  29

     and 4 came to serve as Assistant Engineers long before the appellants
                                                                                   A
     were recruited as Assistant Engineers. In fact in paragraph 6 of his
     judgment, the learned Single Judge in the second writ petition has
     indicated that respondents 3 and 4 were temporarily appointed as
     Assistant Engineers on 14th August, 1959 and 19th May, 1960 respec-
     tively. In exercise of power under Rule 23(a) of the General Rules, the
     services of the two respondents had been regularised retrospectively          B
.h   with effect from 19th May, 1961 and the order of regularisation had
     been passed by the Chief Engineer on 3rd May, 1967. In the instant
     case the date from which regularisation has been directed to take
     effect is not anterior to their appointment as Assistant Engineers. That
     being the position, regularisation is not vitiated on account of arbitra-
     riness. The only other aspect argued on this score was that the Chief
     Engineer was not competent to make the order. Rule 23(a) of the               C
     Andhra Pradesh State and Subordinate Services Rules provides:

                  "If a person, having been appointed temporarily under
                  sub-rule (a) or sub-rule(c) of rule 10 to post borne on
                  the cadre of any service, class or category or having been       D
                  appointed to any service, class or category otherwise than
                  in accordance with the rules governing appointment
                  thereto is subsequently appointed to any service, class or
                  category in accordance with the rules, he shall commence
                  his probation from the date of such subsequent appoint-
                . ment or from such earlier date as the appointing authority       E
                  may determine."
                  (Underlining is ours)

     The vires of this rule had not been challenged but the only contention
     in this regard was that the appointing authority being the State
     Government, the Chief Engineer should not have made the order                 F
     fixing the date of commencement of probation.· It is the case of the
     respondents that the State Government has delegated that power to
     the Chief Engineer and the order of delegation of that power is on
     record.

           The law relating to inter se seniority in a cadre is well-settled. If   G
     there be a rule indicating the manner in which such seniority has to be
     fixed, that is binding. In the absence of such a rule, length of service is
     the basis for fixing inter se seniority. The High Court has found, and
     there is no longer any dispute, that respondents 3 and 4 have put in
     longer service than the appellants in the post of Assistant Engineer. In
     that view of the matter, the State Government was right, and the High         H
    30                   SUPREME COURT REPORTS            [19881 3 S.C.R.
                                                                              ''('
A · Court appropriately approved it, that the appellants would rank below      1
    the respondents 3 and 4 in the cadre and the promotional benefit
    would be giv~n to them after the claim of the respondents 3 and 4 has .
    been duly considered.

         We see no merit in the appeal. It is accordingly dismissed. There
B
    would be no order for costs.

    P.S.S.                                              Appeal dismissed.




                                                                                I
                                                                              ->-
                                                                                '
                                                                                '