G.S. VENKAT AND ORS. ETC. ETC.versusGOVERNMENT OF ANDHRA PRADESH AND ORS.

A                    G.S. VENKAT AND ORS. ETC. ETC.
                                         v.
            GOVERNMENT OF ANDHRA PRADESH AND ORS.

                                  JULY 16, 1993

B      [A.M. AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ.]

         A11dhra Pradesh State and Subordi11ate Service Rules: Rules lO(a)( l)(i)   •
  and 33(a)-G.O. Ms. No. 647 d~ted 14.9.79-Supervisor redesignated after
  acquiri11g Engineeri11g degree-<Jraduate Junior Engi11eers temporarily ap-
C pointed on ad-hoc basis and regularised-fnter-se seniority-{Jpgraded Junior
  Engineers-Whether could claim seniority over Temporary Junior En-
  gineers-'Last regular appointment'-Meaning of

         Rule 22(e) & G.O. Ms. No. 647 dated 14.9.1979 Limited recmitment
  for SC/ST-Whether could be said to be nonnal recmitment and equated to
D 'regular appointment'.
          The Respondent-State imposed a ban against regular appointments
    through Public Service Commission, by its order dated 18.8.1970. To
    overcome the ban different departments resorted to temporary recruit-
E   ment under Rule 19(a)(i) of the Andhra Pradesh State and Subordinate
    Service Rule (Rules) to fill up vacancies in their respective engineering
    services. Respondent Nos.3 to 43 were accordingly recruited on temporary
    and adhoc basis as Junior Engineers between 1971 and 1973. The State
    Government decided to regularise the services of these temporary Junior
    Engineers who had completed two years service as on 1.1.1973 by putting
F   them to Special Qualifying Test (SQT) to be conducted by the Public
    Service Commission(PSC). The PSC conducted the SQT and those who
    cleared the SQT were absorbed in regular service.

          Those Temporary Junior Engineers who failed to clear the SQT and
    those who were ineligible to appear at the SQT because of the two year
G   rule, represented to the Government for their regularisation also. Other
    temporary adhoc employees in administrative and oth~r branches ofthe
    State Government too pressed for regularisation of their services. Pur-
    suant thereto the State Government decided that all temporary empoyees
    appointed by direct recruitment in any category of posts at all levels and
H   continuing in service as on 9.8.1979 would be regularised without subject·
                                         292
                        G.S. VENKAT v. aovr. OF A.P.                      293

    ing them to any written or oral test. Orders were issued accordingly, on A
    14.9.1979. The validity of these orders was upheld by this Court in /.J.
    Diwakar v. State of Andhra Pradesh, [1983] 3 SCC 341.

          The appellants were initially appointed as Supervisors as they were
    not graduates. Their pay scale was slightly lower than that of Junior
    Engineers which post required the minimum entry qualification of gradua-
                                                                                B
    tion. Both the posts of Supervisor and Junior Engineer, were non-gazetted
    posts till Junior Engineers were made gazetted by order dated 7.6.1976
    with retrospective effect from 28.2.1972. Supervisors who acquired a degree
    in Engineering were redesignated as Junior Engineers. Till the Junior
    Engineers were made Gazetted a common seniority list was maintained of C
    Supervisors and Junior Engineers. However, after the conferment of
    gazetted status to Junior Engineers, the rule which provided for redesig-
    nation of Supervisors as Junior Engineers on their graduation was omitted
    with effect from 28.2.1972. The net effect of these changes was that Super-
    visors who were designated Junior Engineers on their graduation prior to D
    28.2.1972 acquired gazetted status whereas those who graduated after
    28.2.72 but before 7.6.1976 and redesignated Junior Engineers were placed
    in the category of non-gazetted and continued to belong to the Subordinate
    Service of the State. Such Supervisors could become Junior Engineers by
    transfer only. The further promotion as Assistant Engineer was on the
    basis of percentage or quota fixed for Supervisors and Junior Engineers. E

          The affected Supervisors made representations to Government and
    the Government ordered that snch Supervisors who had acquired graduate
    qualification while in service should be appointed temporarily as Junior
    Engineers with effect from 10.6.1976, and that l/3rd of the service rendered F
    by them as Supervisors before promotion as Junior Engineers subject to
    a maximum of 4 years would be counted for promotion as Assistant
    Engineers. Accordingly the Government fixed the inter-se seniority and
    showed the upgraded Junior Engineers as seniors to the Junior Engineers
    regnlarised earlier. Both the provisional seniority list and the final
    seniority list issued by the State Government were sucessfully challenged G
    by the regularised Junior Engineers before that State Administrative
    Tribunal. Aggrieved by the judgment of the Tribunal, the State Govern-
    ment as well as the Junior Engineers whose services have been regularised,

J   preferred the present appeals. The Writ Petition has been filed by a
    Scheduled Caste Candidate retruited through limited recruitment proce- H
    294                   SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A dure by Public. Service Commission in 1979 and whose seniority was
    affected by the judgment of the Tribunal.

          Disposing of the matters, this Court

          HELD: 1. In view of the ban imposed by G.O. Ms. No. 682 dated
B August 18, 1970 against direct recruitment pending the recommendation of
  the Backward Classes Commission, the ,State Government was forced to
  resort to temporary recruitment in public interest to meet the exigencies of
  service caused by vancancies. Such appointments were specifically per-
  mitted by Rule lO(a)(i)(l) of the Andhra Pradesh Slate and Subordinate
C Service Rules framed under Article 309 of the Constitution and could not,
  therefore, be said to be illegal or dehors the rules but such employees would
  not be members of the service. (302-C-D]

       ·2. The entry qualifications for Supervisors and those of the Junior
  Engineers were undoubtedly different. While for Junior Engineers the min-
D imun1 educational requirement was a Graduate in Engineering, a Suj>er~
  visor need not be a graduate. The pay scale of the Supervisors was
  admittedly slightly below that of the Junior Engineers. (303-E]

         3. Tiie Supervisorswho had acquired a degree before the cut-off dates
E stood on one footing and those who had acquired the degree on or after that
  dated stood on a different footing. Supervisors who acquired the degree on
  or after February 28, 1972 could no more be designated Junior Engineers
  except by transfer. No such transfer could take place unless there existed a
  vacancy iu that cadre. This led to an agitation which prompted the Govern-
  ment to issue G.O. Ms. No. 451 (Irrigation and Power Department) and 459
F (P.H. & M.E. Dcptt.) dated June 10, 1976 and September 25, 1979, respec-
  tively directing that such graduate supervisors should be 'temporary' as
  Junior Engineers with effect from June 10,1976. Now if these appointments
  as Junior Engineers are treated as temporary appointments under Rule
  lO(a)(i)(l) they would be governed by G.O. Ms. No. 646 for the purpose of
G regularisations and their regularisation would be in terms of G.O. Ms. No.
  647. In that case their entry would at the earliest be from the date of
  acquisition of degree subject to availability of posts in the cadre of' Junior
  Engineers (Gazetted). They would not he entitled to weigh!age and their
  seniority would have to be fixed after the last regular appointment. But
  their case is based on the Proceedings J'!o.192/El 1/71 dated August 8, 1977
H by which the Chief Engineer acting on G.0. Ms. No. 559 dated July 18, 1977
                        G.S. VENKAT v. GQVT. OF AP.                        295

    granted deemed date of appointments by transfer to those who acquired the A
    degree on or after 28.2.1972 from notional dates on temporary basis. But
    such appointments by transfer did not have the backing of any rules as the
    relevant rules came to be amended for the first time by G.O. M•. No. 428
                                                                    '
    dated March 20, 1979. Unfortunately, no formal orders of app111,_,·1ment by
    transfer to be made after the rules were so altered. Even ·. .ongb the
    authorities were conferred power they failed to exercise the same. The B
    Tribunal was, therefore, right that the said employees did not •all within
    the purview of the expression 'last regular appointment' which are the key
    words of G.O. Ms. No. 647 dated Spetmeber 14, 1979. [304-G-H; 305-A-E)


          4. A person is said to be 'Recruited Direct' to a post, category or     C
    class in a service, in case his first appointment thereto is made otherwise
     than by promotion, transfer or re- employment. The appointment of the
    two S.C. candidates can be said to be direct recruitment Within the terms
     of this definition found in Rule 3(14). There is no dispute that both these
    candidates were selected by the State PSC pursuant to limited recruitment D
     undertaken under Rule 22(e), which specifically permits a limited recruit-
     ment confined to candidates belonging to SC/ST candidates. It is an ·
     enabling provision which can be put to use if in any recruitment qualified
    candidates from SC/ST are not available for appointment. This may be
     done immediately after the general recruitment is over. There was a large
    scale recruitment through the PSC of those who passed the SQT. Besides E
    these by this Courts order in Diwakar's Case the PSC was directed to
    finalise the list of selection on the basis of the viva voce test of those who
    bad applied in response to PSC's advertisement. It was further directed
    that those \Ibo fell within the zone of selection mi:;t be appointed first
    according to thek place in the list before any outsider is appointed to the F
    post of the Junior Engineer irrespective of the department in which the
    post is available. Thus a large number of temporary employees got ab-
    sorbed into the service through the state PSC. Such appointments were
    regular, backed by rules and it is for that reason that they were given
    seniority over those absorbed by the thrust of G.O. Ms. No. 647. If
    sufficient number of SC/ST candidates were not available among those G
    selected through SQT and viva voce, the shortfall had to be made up
    thrugh limited recruitment envisaged by Rule 22(e). The Tribunal has
    taken a very narrow and pedantic view that such recruitment through SQT
    and viva voce could not be said to be a, general recruitment within the
    meaning of that expression used in Rule 22(e). Such a narrow interpreta- H




j
    296                  SUPREME COURT REPORTS (1993] SUPP.1 S.C.R.

A lion would be to the detriment of SC/ST candldates. The appointments of.
    the .appellants and the Writ Petitioner, belonging to the SC/ST group
    through the PSC under Rule 22(e) were perfectly in order and normal and
    would attract 'the regular appointment' expression employed in G.O. Ms.
    No. 647. [305-G-H; 306-A-F]

B        M. Nirmala v. State of Andhra Pradesh, [1986] 3 SCC 647 and /.J.
    Diwakm v. State of Andhra Pradesh, [1983] 3 SCC 341, referred to.

          5. The candldates who have entered service after passing the SQT
    shall rank immedlately after the regularly appointed candldates who had
C   entered service before the selection of the successful SQT candldates. Next
    to the SQT candldates will rank those who are governed by this Court's
    dlrective in Diwakar's case. Thereafter the seniority will be fixed between
    the candldates covered nuder G.O. Ms. No. 647, the upgraded supervisors
    and the SC/ST candldates recruited under Rule 22(e) i.e. limited recruit·
    ment scheme. [307·El
D
          /.J. Diwakm v. State of Andhra Pradesh, [1983] 3 SCC 341, referred
    to.
          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 'lJJl.7-29
    of 1987.
E
          From the Judgment and Order dated 7.8.1984 of the Andhra Pradesh
    Administrative Tribunal, Hyderabad in Representative Nos. 1070i81,
    1674/82 and 1737/82.

                                      WITH
F
          C.A. Nos. 3296, 3298 & 3297/93, 2030-34/87, CMP No.26095/87, T.A.
    Nos. 1-5/89, 1/91 in C.A. Nos. 4050-53/87, W.P. {C) No. 367/88.

          A. Sobba Rao for the appellant in C.A. Nos. 2027-29 of 1987 & in
G C.A. No. 3296/93 and for the Respondents in C.A. Nos. 2030-34/87.
          H.S. Giiruraja Rao, D.D. Thakur, S. Markandeya, Ms. C. Marken-
    deya, W.A. Nomani, G.S. Rao and Ms. Renn Gupta for the apppllant in
    W.P. No. 367/88 C.A. Nos .. 3296/93, 2027-29/87.

H         T.V.S.N. Chari for the appellant in C.A. No. 2030-34/87.
              G.S. VENKAT v. GOVf. OF A.P. [AHMADI, J.]                 297

     C. Seetharamiah and B. Parthasarthy for the appellant in C.A. Nos.        A
2030-34/87 and for the Respondents in C.A. Nos. 2027-29/87.

     B. Krishna Prasad for the Respondents in C.A. Nos. 4050-53/87,
W.P.367/88 3296/93, 2028/87, 2028/87 & 2029/87.

      B. Kanta Rao for the Intervenor in C.A. No. 3296/93.                     B

     K. Madhava Reddy and Guntur Prabhakar for the State of Andhra
Pradesh.

      R.F Narirnan and R.N. Keshwani for the Appellants in C.A. Nos.
4050-53/87 and for the Respondents in C.A. Nos. 2030-34/87 & 2027- 29/87.      C

      S. Sivasubramaniam, K.R. Nagaraja, A. Nagabhushanam, P. Krish-
narao and P.K. Rao for the Respondents in C.A. No. 3298/93.

      Ms. C.K. Sucharita for the Respondent in C.A. Nos. 2030-34/87.
                                                                               D
      The Judgment of the Court was delivered by

      AHMADI, J. Special leave granted in S.L.P. (C) Nos. 8312/88,
5878/87 and 2592/89.

        The controversy, which we are called upon to decide in this batch of
                                                                               E
appeals, relates to the determination of seniority between the appellants
who entered service in the various engiheering departments of the State
initially as Supervisors and who on acquiring a degree in engineering were
redesignated Junior Engineers and those graduate Junior Engineers who
were temporarily appointed on adhoc basis under Rule lO(a)(i)(l) of the        F
Andhra Pradesh State and Subordinate Service Rules (hereinafter called
'the General Rules') and whose services were later regularised under G.0.
Ms. No. 647 dated September 14, 1979.

      The factual matrix relevant for resolving the conflict may be briefly
stated. The respondents Nos. 3 to 43 herein were the original petitioners G
in the group of petitions disposed of by the State Administrative Tribunal,
Hyderabad, by its common judgment dated August 7, 1984 which is im-
pugned in these appeals. They were recruited directly by the Government
and not the Andhra Pradesh Public Service Commission (PSC) within
whose purview the said post of Junior Engineers fell as there was a ban H
    298                  SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.

A under G.O. Ms. No. 682 dated August 18, 1970 against regular appoint-
  ments through PSC. To overcome the ban different departments resorted
  lo temporary recruitment under Rule lO(a)(i) of the General Rules to fill
  up vacancies in their respective engineering services. The respondents
  Nos.3 lo 43 were accordingly recruited on temporary and adhoc basis as
B Junior Engineers. In course of time the question of regularisation of their
  services cropped up. The Government took a decisioin to regularise their
  services by lifting the ban on direct recruitment and framing special rules
  under the proviso to Article 309 of the Constitution providing for their
  regularisation through a Special Qualifying Test (SOT) to be conducted by
  the PSC. However, only those temporary Junior Engineers who had com-
C pleted not less than two years' service as on January 1, 1973 were admitted
  to the SQT. Pursuant thereto the PSC issued a notification inviting applica-
  tion from eligible candidates for admission to the SOT who were desirous
  of having their services regularised. Junior Engineers serving in different
  departments of the State Government e.g. Roads and Buildings depart-
D menl, Public Health and Municipal Engineering department, Panchayati
  Raj Engineering deparlmenl, etc., who were eligible under the special rules
  applied in response to the advertisement. However, those temporary Junior
  Engineers who were not eligible to appear at the SQT on account of the
  two years rule questioned the same through writ petitions filed under
  Article 226 of the Constitution. A learned Single Judge allowed the said
E petitions holding that the condition of minimum two years' service as on
  January 1, 1973 was unconstitutional. The issue was carried in appeal to
   the Division Bench of the said Court which allowed the writ appeals and
   dismissed the writ petitions with costs by a common judgment dated July
   29, 1975. Thus ended the first cycle of litigation.
F
        The PSC thus conducted the SQT with a view to selecting candidates
  from amongst eligible temporary Junior Engineers for regularisation of
  their service as direct recru~ts to the various engineering ser\~ces of the
  State as gazetted .Junior Engineers. Those who successfully cleared the
  SO"f \Vere absorbed in regular service and there is no dispute raised herein
G about their seniority, presumbly because of the ratio of this Court's
  decision in M. Ninna/a v. State of Andhra Pradesh, [1986] 3 SCC 647.


       Temporary Junior Engineers who failed to clear the SOT and those
  who were ineligible to appear at the SQT because of the two year rule
H represented to the Government for their regularisation also. Respondents
             G.S. VENKAT v. GOVT. OF AP. [AHMADI, J.]                  299

3 to 43 herein belong to the said group of temporary Junior Engineers A
(Gazetted). Other temporary adhoc employees serving in administrative
and other branches of the State Government also pressed for regularisation
of their services. Pursuant thereto the Government decided by G.O. Ms.
646 dated September 14, 1979 that all temporary employees appointed by
direct recruitment in any category of posts at all levels and continuing in
service as on August 9, 1979 shall be regularised without subjecting them B
to any written or oral test. Exercisi11g the power conferred by the Proviso
the Article 320(3) of the Constitution all such post (except appointments
to Assistants and Upper Division Stenographers in the Secretariat) were
placed outside the purview of consultation with the State PSC. By another
G.O. Ms. No. 647 of even date, the Government issued orders for C
regularisation as under:

        "(i) the sernces of all temporary Government employees who were
        appointed by direct recruitment to any category of post and are
        continuning in service as on 9.8.1979 should be regularised without
        subjecting them to any test written or oral;                          D
        (ii) (a) the services of au temporary employees in all categories,
        other than L.D.Cs, Typists and Steno-typists, in the Offices of the
        Heads of Departments and Junior Assistants, Typists and Steno-
        typists in the Secretariat, should be regularised from the next date
        following the date on which the last regular appointment in that E
        category was made in the unit concerned or from the date of
        temporary appointment whichever is later;

        (b) xxx                         xxx                            xxx"

The above orders are general in nature and cover cases of respondents 3       F
to 43 and all similarly placed employees.

       The respondents Nos. 3 to 43 who were appointed as Junior En-_
gineers on a temporary basis under Rule lO(a)(i)(l) of the General Rules'•
between 1971 and 1973 but who had not pa"ed the SQT became entitled G
to be regularised under the aforementioned orders of September 14, 1979.
The validity of these orders came to be upheld by this Court in/.!. Diwakar
v. State of Andhra Pradesh, [1983) 3 SCC 341. Their seniority has to be
determined in the light of these orders, Rule 33( a) of General Rules and
other related rules to which we will advert hereafter. The Tribunal has
conceded their demand and has found them to be senior.                      H
    300                  SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A         The appellants, who were the respondents in the Tribunal, were
  initially appointed as Supervisors as they were not graduates. The pay scale
  of Supervisors was slightly lower than that of Junior Engineers which was
  a post which required the minimum entry qualification of graduation. Both
  the posts of Supervisors and Junior Engineers were non-gazetted posts till
  Junior Engineers were made gazetted by Government orders dated June
B 7, 1976 with effect from February 28, 1972. Thereupon the said post ceased
  to belong to the Subordinate Service of the State from that date. Super-
  visors who acquired a degree in e1}.gineering were redesignated as Junior
  Engineers. Supervisors were keen to graduate for career advancement as
  the quota for graduates for upward movement to the post of Assistant
C Engineers were higher than that of Supervisors. The case of the appellants
  Is that till gazetted status were conferred on graduates, a common seniority
  list was maintained of Supervisors and Junior Engineers. However, after
  conferment of gazetted status the rule which provided or redesignation of
  Supervisors as Junior Engineers on their graduation was omitted with
  effect from February 28, 1972. The appellants contend that the net effect
D of these changes introduced retrospectively was that Supervisors who were
  designated Junior Engineers on their graduation prior to February 28, 1972
  acquired gazetted status whereas those who had graduated after February
  28, 1972 but before June 7,1976 and were redesignated Junior Engineers
  were placed in the category of non-gazetted and continued to belong to
  the subordinate service of the State. Supervisors could thenceforth become
E Junior Engineers by transfer only. The further vertical movement to the
  post of Assistant Engineers was on the basis of the percentage or quota
  fixed for Supervisors and Junior Engineers subject ofcourse to the ex-
    perience criteria.

F         Immediately after the above consequences fell on Junior Engineers
    who were erstwhile Supervisors on the retrospective effect of the orders
    dated June 7, 1976, representations were made by the affected Supervisors-
    Junior Engineers for continuance of the benefit of upgradation. Conse-
    quently on a reconsideration of the matter the Government felt that some
    consideration should be shown to the Supervisors who had graduated while
G   in service. It was, therefore, decided that such Supervisors who had ac-
    quired graduate qualification while in service should be appointed tern- ·
    porarily as Junior Engineers with effect from June 10, 1976, vide G.O. Ms.
    No. 451 and 459 dated June 10, 1976 and September 25, 1976. Similar
    orders were issued in respect of engineering services in other departments
H   also. This necessitated the Government to clarify matters relating to
              G.S. VENKAT v. GOVT. OF A.P. [AHMADI, J.]                   301

weightage, seniority, etc. The Government by subsequent orders, vide G.O. A
Ms. Nos.559 and 658 dated July 18, 1977. and October 22, 1977 and similar
orders pertaining to other departments clarified as under:

        "(ii) A Supervisor, who is appointed as Junior Engineers shall be
        entitled to count 1/3rd of the service rendered by him as Super-
        visor, before his appointment as Junior Engineer, subject to a            B
        ma."'<imum of four years, for the purpose of computing the service
        as Junior Engineer, which Will render him eligible for consideration
        for promotion. as Assistant Engineers.

         (iii) The seniority of the Supervisors, who are appointed as Junior
         Engineers, shall be fixed with reference to the notional date arrived
                                                                                  c
         at after giving weightage of service."

By G.O. Ms. No. 428 dated March 30, 1979 provisions was made for
appointment of Supervisors as Junior Engineers by transfer.
                                                                                  D
        In consequence of the foregoing developments it is contended that
Supervisors who had acquired graduate qualification after February 28,
1972 and had been designated Junior Engineers but were on account of
the retrospective operation of the Government orders referred to earlier
redesignated Junior Engineers (non' gazetted) were reinstated as Junior
Engineers (gazetted) with effect from the original dates of their entry into      E
that cadre and hence they became entitled to count l/3rd of the Service
rendered as Supervisor, subject to a maximum of four years for computing
their seniority. The Government fixed the inter-se seniority on that basis
and showed the upgraded Junior Engineers as seniors to the Junior En-
gineers regularised ·under G.0. Ms. No. 647 both in the provisional
seniority list dated January 7, 1982 and the final seniority list dated July 7,   F
1982. These list were successfully challenged by the latter before the
Tribunal. The State Government as well as the Jnnior Engineers who had
initially joined as Supervisors have, therefore, approached this Court by
way of special leave.

      Rule lO(a)(i)(l) provides that where it is necessary in the public G
interest to fill emergently a vacancy in the post borne on the cadre of a
service, class or category and if the filling of such vacancy in accordance
with the rules is likely to result in undue delay, the appointing authority
may appoint a person temporarily otherwise than in accordance with the
said rules. Sub-rule (2) thereof emphasises that such appointment should H
   302                   SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A not ordinarily be made of a person who does not possess that qualifications
  for the said service, class or category. Rule 23(a) provides that if such an
  appointee 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 appointment or from such earlier date as the appoint-
B ing authority may determine. Rule 33(a) next provides that the seniority of
  a person in a service, class, category or grade shall be determined by the
  date of his first appointment to such service, class, category or grade. If
  any portion of the service of such person does not count towards probation
  under the rules, his seniority shall be determined by the date of commen-
  cement of his service which counts towards probation. Now, in view of the
C ban imposed by G.O. Ms. No. 682 dated August 18, 1970 against direct
  recruitment pending the recommendations of the Backward Classes Com-
  mission.·) the Governtnent was forced to resort to ten1porary recruitment in
  the public interest to meet the exigencies of service caused by vacancies.
  Such appointments were specifically permitted by Rule lO(a)(i)(l) of the
D General Rules framed under Article 309 of the Constitution and could not,
  therefore, be said to be illegal or dehors the rules but such employees
  would not be members of the service. Ordinarily such appointments would
    be a stop-gap arrangement till regular appointments are made. But as the
    ban continued for several years a demand for regularisation of such tem-
E porary employees who were otherwise qualified was raised by service
  associations as well as such employees. Consequently the Government after
  partially lifting the ban directed the PSC to conduct the SQT with a view
  to regularising the services of such temporary employees and those who
  successfully cleared the test were regularised and became members of the
  service. Since this satisfied only a small number, the pressure on the
F Government continued. In 1978 the PSC conducted another test but before
  the results were armounced G.O. Ms. Nos. 646 & 647 saw the light of the
  day. By G.O. Ms. 646 the posts in question were taken out of the purview
  of the PSC by exercising power under Article 320(3) of the Constitution
  and thereafter the services were regularised by executive order G.O. Ms.
G No. 647, relevant part whereof is extracted earlier. The services of the
  temporary employees who had joined on or before August 9, 1979 thus
  stood governed under the said orders. Under Rule 23(a) since the power
  to fix the date of commencement of probation was with the appointing.
  authority, the probation was directed to commence from the date of
H appointment. On the successful completion of the probation the appointing
              G.S. VENKAT v. GOVT OF AP. [AHMADI, J.]                     303

authority terminated the probation whereupon the probationers became             A.
the full members of the service, vide Rule 25 of the General Rule,. Now,
under G.O. Ms. No. 647, while deciding on regularisation oi all temporary
employees appointed directly and continuing in service as on August 9,
1979 without subjecting them to any written or oral test, it was provided
that their regularisation shall take effect 'from the next date foll0\v1ng the
                                                                                 B
date on which the last regular appointment in that category was made in
the unit concerned or from the date of temporary appointment, whichever
is later'. As we have indicated earlier because of the ban no regular
appointments took place in the category of Junior Engineers for several
years. Those who came through the SQT have been placed above these
temporary employees regularised under G.O. Ms. No. 647. There is no              c
dispute in regard to their seniority.

      That takes us to the question whether the Supervisors upgraded as
Junior Engineers can claim seniority over the temporary employees on the
plea that they fall within the expression 'last regular appointment'? We D
have already pointed out the historical background in regard to the ap-
pointment of supervisors and their designation as Junior Engineers on
graduation. They entry qualification for Supervisors and those of the Junior
Engineers were undoubtedly different. While for Junior Engineers the
minimum educational requirement was as Graduate in Engineering, a
Supervisor need not be graduate. The pay scale of the Supervisors was            E
admittedly slightly below that of the Junior Engineers. They, therefore,
belonged to separate cadres. Even though both the Supervisors and Junior
Engineers were selected through the State Public Service Commission,
considerations for selection may be different. A Supervisor was redesig-
nated as a Junior Engineer on his acquiring a degree in Engineering,             F
subject to availability of posts. Such upgraded Junior Engineers could not
claim weightage of service as Supervisors for counting their experience as
Junior Engineers for further promotion. In SLP(C) No. 12 of 1975 decided
on February 24, 1975 this Court clarified:

        "However, having studied the rules carefully and in the light of a G
        decision of this Court in State of Gujarat v. C.G. Desai, [1974] l
        SCC J.88, we are satisfied that the petitioner who is a Degree
        holder must qualify under rule 6 by being a Junior Engineer of five
        years' experience. He cannot, when there is a shortfall in his period
        make up by attracting his service as Supervisor."                     H
    304                  SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A The averment that a common seniority list of Supervisors and Junior
  Engineers was maintained has been disputed and there is no finding of fact
  recorded by the Tribunal ir, support thereof. It is, however, not in dispute
  that Supervisors as well as Junior Engineers were non-gazetted till the
  issuance of the order dated June 7, 1976 made effective from February 28,
B 1972. After the said orders Supervisors who acquired a degree after the
  cut-off date, i.e. February 28, 1972, could aspire to be designated Junior
  Engineers (Gazetted) only by the mode of transfer in view of the amend-
  ment in the rules by G.0. Ms. No. 428 dated March 30, 1979. The note at
  the foot of the said G.O.Ms is of relevance. By virtue thereof a Suervisor
  appointed Junior Engineer by transfer on or after February 28, 1972
C became entitled to count 1/3rd of his service as Supervisor, subject to a
  maximum of 4 years, for computing the service as Junior Engineer for
  further promotion as Assistant Engineer. This was however subject to the
  condition that he should have completed atleast one year's service as Junior
  Engineer to become eligible for promotion to the said post of Assistant
D Engineer. But no such weightage was to be allowed to a Supervisor who
  had not completed three years' service as Supervisor prior to becoming a
  Junior Engineer. The benefit of weightage is restricted to a Supervisor who
  has been appointed a Junior Engineer and who seeks further promotion as
  an Assistant Engineer.

E          Reliance was however placed on clause (i) of the note which is
    similar to clauses (ii) and (iii) of G.O. Ms. Nos. 559 and 658 extracted
    earlier which grants a similar weightage for computing the seniority of a
    Supervisor on his redesignation as a Junior Engineers. To appreciate the
    contention based thereon we may once again revert to the situation arising
F   from the orders dated June 7, 1976 brought into force from February 28,
    1972. Thereunder Supervisors who had acquired a degree before the
    cut-off date stood on one footing and those who had acquired the degree
    on or after that date stood on a different footing. Since we are not
    concerned with the former we will confine ourselvys to the position govern-
    ing the latter only. As pointed earlier, supervisors who acquired the degree
G   on or after February 28, 1972 could no more be designated Junior En-
    gineers except by transfer. No such transfer could take place unless there
    existed a vacancy in that cadre. This led to an agitation which prompted
    the Government to issue G.0. Ms. Nos. 451 (Irrigation and Power Depart-
    ment) and 459 (P.H. & M.E. Deptt.) dated June 10, 1976 and September
H   25, 1979, respectively, directing that such graduate supervisors should be
                   G.S. VENKAT v. GOV!". OF A.P. [AHMADJ,J.]                     305

      'temporary' as Junior Engineers with effect from June 10, 1976. Here two A
      things are required to be noted, namely, (i) such appointments were to be
      temporary and (ii) effective from June 10, 1976 and not from the date of
      acquisition of degree. Now if these appointments as Junior Engineers are
      treated as Temporary appointments under Rule lO(~)(i)(l) they would be
      governed by G.M. Ms. No. 646 for the purpose of regularisation and their
                                                                                    B
     .regularisation would be in terms of G.0. Ms. No. 647. In tha•. case their
      entry would at the earliest be from the date of acquisition of degree subject
      to availability of posts in the cadre of Junior Engineers (Gazetted). In that
      case they would not be entitled to weightage and their seniority would have
      to be fixed after the last regular appointment. But the case put forward on
      their behalf is based on the Preceding; No. 192/El(l)/71 dated August 8,          c
      1977 by which the Chief Engineer acting on G.O. Ms. No. 559 dated July
      18, 1977 granted deemed- date appointments by transfer to those who
      acquired the degree on or after February 28, 1972 from notional dates on
      temporary basis. But such appointments by transfer did not have the
      backing of any rule dS the relevant rules came to be amended for the first D
      time by G.O. Ms. No. 428 dated March 20, 1979. Unfortunately no formal
     orders of appointment by transfer crune to be made after the rules were so
     altered. That is a finding of fact recorded by the Tribunal difficult to assail.
     If that be so, ever though the authorities were conferred power by the said
     order of March 30, 1979, they failed to exercise the same. The Tribunal
     was, therefore, right that the said employees did not fall within the pur hew      E
     of the expression 'last regular appointment' which are the key words of
     G.0. Ms. No. 647 dated September 14, 1979.

            That brings us the case of S.D. Venkateswarlu and P.V. Vasanth who
     were appointed on August 17, 1979 and August 11, 1978, respectively                F
     through the PSC on the basis of limited recruitment under Rule 22(e) for
     SC/ST candidates. A person is said to be 'Recruited Direct' to a post,
     category or class in a service, in case his first appointment thereto is made
     otherwise than (i) by promotion (ii) by transfer or (iii) by re-employment.

-·   The appointment of the said two candidates can be said to be direct
     recruitment within the terms of this definition found in Rule 3(14). Since
     their recruitment was under limited recruitment for SC/ST candidates, it
                                                                                        G

     was contended that the same was not part of a normal recruitment. As
     pointed out earlier the normal recruitment to the post of Junior Engineers
     under the rules was through the PSC. Rule 22(e) of the General Rules
     provides that if in any recruitment qualified candidates belonging to the H
    306                   SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A SC/ST arc nol available for appointment to any of the vacancies reserved
  for them, a limited recruitment confined to candidates belonging to the
  SC/ST shall be made immediately after the general recruitment to select
  and appoint candidates belonging to these communities to fill the reserved
  vacancies. The Tribunal has taken the view that since regularisation
B through SOT could not be described as general recruitment, the very basis
  for limited recruitment was contrary to Rule 22( e). Further, holds the
  Tribunal, such limited recruitment cannot be said to be normal recruit-
  ment' and hence cannot be equated to 'regular appointment' referred to
  under G.O. Ms. No. 647 dated September 14, 1979. We are afraid we find
  it difficult to subscribe to this line of reasoning. In the first place there is
C no dispute that both these candidates were selected by the State PSC
  pursuant to limited recruitment undertaken under Rule 22(e). That rule
    specifically permits a limited recruitment confined to candidates belonging
  to SC/ST candidates. It is an enabling provision which can be put to use if
  in any recruitment qualified candidates from SC/ST are not available for
D appointment. This may be done immediately after the general recruitment
  is over. There was a large scale recruitment through the PSC of those who
  passed the SQT. Besides these by the Court's order in Diwakar's Case
  (supra) the PSC was directed to finalise the list of selection on the basis
  of the viva voce test of those who had applied in response to PSC's
E <•dvertisement. It was further directed that those who fell within the zone
  of selection must be appointed first according to their place in the list
  before any outsider is appointed to the post of the .I uni or Engineer
  irrespective of the department in which the post is available. Thus a large
  number of temporary employees got absorbed into the service through the
  State PSC. Such appointments were regular, backed by rules and it is for
F
  the reason that they were given seniority over those absorbed by the thrust
  of G.O. Ms. No. 647. If sufficient number of SC/ST candidates were not
  available among those selected through SOT and viva voce, the shortfall
  had to be made up through limited recruitment envisages by Rule 22(e).
    The Tribunal has, with respect, taken a very narrow and pedantic view in
G holding that such recruitment through SQT and viva voce could not be said
    to b~ general recruitment within the meaning of that expression used in
    Rule 22(e). Such a narrow interpretation would be lo the detriment of
    SC/ST candidates. In Nirmala's case (supra) such appointments through
    the PSC were described at page 651 as 'the last regular appointments as
H   contemplated by G.O. Ms. No. 647'. We have, therefore, no hesitation in
             G.S. VENKAT v. GOVT. OFA.P. [AHMADl,J.]                   307

holding that the appointments of the aforenamed two candidates belonging A
to the SC/ST group through the PSc under Rule 22( e) were perfectly in
order and normal and would attract 'the regular appointment' expression
emloyed in G.O. Ms. 647. In this view of the matter we disapprove of the
view taken by the Tribunal in this beh•lf.

      In W.P. No. 367 of 1988, the petitioner Shivraj, a S.C. candidate       B
recruited through limited recruitment procedure by PSc entered service
under the appointment order dated May 2, ·1979 though he took charge on
June 22, 1979. On account of the view taken by the Tribunal in regard to
such recruitment he has had to slide down in the seniority list. Counsel
urged that Rule· 22( e) being part of the General Rules framed under          C
Article 309 of the Constitution would prevail over the executive order G.0.
Ms. No. 647. In support he invited our attention to the case law on the
point but it is unnecessary to advert to the same as there is no apparent
conflict between the statutory rules and the executive order. For the
foregoing reasons assigned for upholding the claim ofS.D. Venkatashwarlu      D
we must uphold his contention also.

      To summarise : The candidates who have entered service after
passing the SQT shall rank immediately after the regularly appointed
candidates who had entered service before the selection of the successful
SQT candidates. Next to the SQT candidates will rank those who are E
governed by this Court's directive in the last paragraph of Diwakar's Case
(supra). Thereafter the seniority will be flXed between the candidates
covered under G.O. Ms. No. 647, the upgraded superisors a;1d the SC/ST
candidates recruited under the Rule 22(e) - limited recruitment scheme -
in the list of this judgment. The judgment and order of the Tribunal will F
stand modified to the extent it concerns the SCiST candidates recPJited
under the Rule 22(e) - limited recruitment scheme. If as a consequence of
this modification readjustment of inter-se seniority between a candidate
governed by G.O. Ms. No. 647 and an upgraded supervisor becomes
necessary it will be effected in the terms. of this judgment. Fresh order
consistent with this judgment may be issued, if necessary. Except for the G
modification. made in regard to recruitment under the limited recruitment
scheme, the Tribunal's order is upheld.

     Consequently C.A. Nos. 2027-34 .of 1987 and appeals arising from
SLP(C) Nos. 5878 of 1987, and 2592 of 1989 will stand-dismissed with no H
    308                   SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A order as to costs except in relation to the aforenamed SC/ST candidates
    who entered through the limited recruitment test undertaken by the State
    PSC. The appeal arising from SLP (C) No. 8312 of 1988 will also stand
    disposed of and the seniority of the incumbent will be determined afresh
    in terms of the ratio of this judgment. Writ Petition No. 367 of 1988 is
B   allowed as prayed for. In view of the disposal of this bateh of cases, the
    interim orders made by this Court in different I.As. and C.M. Ps. will stand
    vacated but since the State Government will have to revise the seniority list
    in the light of the Tribunal's order as modified hereinabove, the State
    Government will be well advised not to effect any reversions till then and
    if on the revision of the seniority list reversions become inevitable the State
C   Government may consider protecting such employees by creating super-
    nmerary posts,_if need be, to avoid heartburns and disturbances to service
    and to those wllo have been working on those posts for long spells and wh9
    were promoku on the seniority lists prepared by the State Government.

          In case of any difficulty parties may approach the Tribunal for
D   directions pursuant hereto.

    G.N.                                                     Matters disposed of.