NIRMAL KUMAR CHOUDHARY & ORS. ETC.versusSTATE OF BIHAR AND ORS., ETC.

 A            NIRMAL KUMAR CHOUDHARY & ORS. ETC.

                                         v.

                    STATE OF BIHAR AND ORS., ETC.

B                            DECEMBER 16, 1987

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

          Service matter-Amalganation of different cadres of employees
     and resultant gradation-Challenge thereto.
c           Civil Appeal Nos. 2049 and 3129 of 1979 were filed in this Court
     by special leave against the judgment of the High Court in a Writ
     Petition filed by respondents 6 to 51 of Civil Appeal No. 2049 of 1979.
     One appeal was· by the employees and the other, by the State of Bihar,
     etc., against the judgment of the High Court above-said.
D
          There were three different wings of Engineers in the Department
   of Agriculture, viz., Irrigation, minor Irrigation and River Valley Pro-
   jects. On January 9, 1969, the State Government amalgamated the
   cadres of engineers and other employees of the Irrigation and the River
   Valley departments. Engineers and other employees of the minct Irri-
E gation wing were not amalgamated. Later, the Directorate of minor
   Irrigatiiin was made permanent and a distinct and permanent cadre of
   overseers termed as Junior Engineers, was created. 191 permanent
   posts of overseers were sanctioned. Thereafter, the minor Irrigation
 · wing was also amalgamated with the other two wings, and a combined
   final gradation list prepared on the basis of the status of the overseers as
r  obtaining onJanuary 9, 1969, was issued.

            On the Writ Petition of the respondents 6 to 51 above-mentioned,
     the High Court quashed the orders contained in the various annexures
     viz 11.11/1, 12, 13, 13/1, 15 and 16 directed the State Government to
     prepare a fresh combined gradation list in accordance with the princi-
G    pies laid down by the High Court.

          Allowing the appeals in part, the Court,

        HELD: Tbe three wings though nod.er the administrative control
  of the Agricultural Department, were separate before amalgamation.
H Permanent posts had been sanctioned in the minor Irrigation wing to
                                       410
                N.K. CHOUDHARY v. STATE OF BIHAR                    411

which the petitioners before the High Court belonged and they were A
appointed on permanent basis. When integration takes place and offic-
ers in different cadres are merged into one, there is bound to be some
difficulty in the matter of adjustment. That has occurred in this case.
The approach of the High Court has been that if within the cadre earlier
confirmation gives seniority why should that basis be not extended to
the combined gradation list. That may not be applicable in every B
sitnation-particularly when there is a merger of cadres and the com-
bined gradation list is proposed. [414C-D, FI

      Seniority would ordinarily depend upon the length of service,
subject, of course, to the rules holding the field. This view has been
taken by this Court in several cases. The High Court recorded a finding C
that there is no applicable rule In the matter of fixing inter se seniority
in a situation of this type. In the absence of rules, the more equitable
way of preparing the combined gradation list would be to take the total
length of service in the common cadre as the basis for determining the
inter se seniority The Court does not agree with the High Court that
confirmation should be the basis and would substitute it by the length of D
service test, but the Court upholds the direction that in fixing the com-
 bined gradation list the inter se seniority of Incumbents in their respec-
tive departments would not be disturbed. The gradation list as pub-
lished by the Government has to be modified. The conclusion of the
High Court that Annexnres 11, 11/1, 12, 13, 13/l, 15 and 16 should be
quashed and a fresh combined gradation list has to be published, is E
confirmed. The test for fixing the seniority inter se generally, is altered,
 hut the direction of inter se seniority in their own departments to be
 respected is approved. The respondent-State directed to prepare and
 publish the fresh combined gradation list keeping these directions in
 view. [414G; 415C-F)
                                                                             F
       A. Janardhana v. Union of India and Ors., (198312SCR936 and
 K.S. Vora and Ors. v. State of Gujarat and Ors., (1987) 4 J.T. 179,
 referred to.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2049
 and 3128 of 1979.                                                          G

       From the Judgment and Order dated 2.3.1979 of the High Court
 of Patna in C.W.J.C. No. 1820 of 1977.

     Dr. Y.S. Chitale, S.S. Javali, Narendra Prasad and Ranjit
 Kumar for the Appellants.                                                  H
                                                                               ,
                                                                               '

     412                  SUPREME COURT REPORTS           [1988] 2 S.C.R.

        S.N. Kacker, and L.N. Sinha D. Goburdhan, M.L. Verma and
 A Dalip Tandon for the Respondents.

           The Judgment of the Court was delivered by

        RANGANATH MISRA, J. These two appeals are by special
B leave. They are directed against the same judgment of the Patna High
  Court in an application under Article 226 of the Constitution filed by
  respondents 6 to 51 of Civil Appeal No. 2049 of 1979. In the Writ
  Petition the aforesaid respondents impleaded the State of Bihar and
  certain public officers as also all others who were included in the
  gradation list for purposes of seniority in the combined cadre of en-
  gineers in the Department of Agriculture. The other appeal is by the
C State of Bihar and its public officers and both the appeals challenge the
  correctness of the decision of the Division Bench of the High Court.
  Both the appeals are disposed of by this judgment.

         There were three different wings of engineers in the Department
D of Agriculture being Irrigation, Minor Irrigation and River Valley
   Projects. On 9th January, 1969, the State Government amalgamated
   the cadre of engineers and other employees of the Irrigation and the
   River Valley departments. Engineers and other employees of the
   Minor Irrigation wing were, however, not amalgamated. On 17th
   November, 1969 the Directorate of Minor Irrigation was made parma·
E nent and the State Government created a distinct and permanent cadre
   of Overseers who came to be known as Junior Engineers. 191 perma-
   nent posts of Overseers were sanctioned. Discussions were held and
   committees were appointed for the purpose of merging the Minor
   Irrigation wing with the other two wings which had already been
   amalgamated in 1969. On 17th May, 1976, the Government ultimately
F approved the Minor Irrigation wing to amalgamate. On 29th August,
   1977, the Engineer-in-Chief cum Special Secretary, Irrigation Depart-
   ment, circulated a combined final gradation list said to have been
   prepared, taking into consideration the status of the Overseers as
   obtaining on 9th January, 1969. On 30th June, 1978, an amended
   combined gradation list was published which was further changed on
G 18th July, 1978. Respondents 6 to 51 had already filed their writ appli-
  cation before the Patna High Court being C.W.J. Case No. 1820 of
   1977 which the High Court by the impugned judgment dated 2nd               -l-
  March, 1979 allowed. The High Court quashed the orders contained in
  Annexures 11, 11/1, 12, 13, 13/l, 15 and 16 and called upon the State
  Government and its officers to prepare a fresh combined gradation list
H in accordance with the principles laid down in the judgment.
          N.K. CHOUDHARY v. STATE OF BIHAR [MISRA, J.]            413

      The High Court referred to all the materials that were placed      A
before it by the different parties and in para 17 of the judgment came
to the conclusion:

                  "From the discussion of the facts of the case before
           us, it is clear that the petitioners got their substantive
           appointments earlier than the respondents concerned and       B
           if seniority would have ranked on that consideration, then
           the petitioners would have ranked senior in the integrated
           cadre. This was also the recommendation of both the High
           Powered Committees which suggested that two seniority
           lists, one for the permanent incumbents and the other for
           the temporary incumbents, be framed. No specific rule was     C
           brought to our notice by either side which could govern the
           case of the petitioners and the respondents.

                 On the other hand, learned counsel for the petition-
           ers has referred to the instructions issued by the Personnel
           Department of the State Government to all Principal Sec- D
           retaries and Heads of Departments etc. in its memo No
           3/RI-106/72-F-15784 dated the 26th August, 1972. Clause
           3(vii) thereof provides that in the event of amalgamation of
           cadres seniority is determined with reference to the date of
           appointment in the particular grade on substantive or con-
           tinuous officiating basis, whichever is earlier, without. E
           however, disturbing the inter se seniority of incumbents in
           any group of posts as amongst themselves in that process.
           No other rule was brought to our notice on behalf of either
           the learned counsel appearing for the State or the contest-
           ing respondents."
                                                                        F
An attempt had been made before the High Court to rely upon the
executive instructions issued in a Government resolution (Annexure
9). The High Court found that the circular had got no application to
the case before it and it related to secretariat assistants. The High
Court was not prepared to act upon it because it was not laying down
any general principles. According to the High Court:                    G

                  "Substantive appointment in a service gives the
            incumbent a right and if that cannot be taken away by a
            temporary incumbent of the same department, we do not
            see why that right should be allowed to be taken away if a
            question of integration or merger comes in by such incum-    H
     414                    SUPREME COURT REPORTS            [1988] 2 S.C.R.

A               bents who were similarly temporary and thereby junior to
                the permanent employees. In our opinion, therefore, the
                gradation list in this case (Annexure 12) is violative of the
                principles contained in Articles 14 and 16 of the Constitu-
                tion and impinges upon the civil rights of the petitioners,
                making them several hundreds places junior in the integra-
B               ted or combined cadre on a basis which cannot, in any view
                of the matter, be said to be reasonable in the light of the
                principles discussed in the aforesaid authorities."

  It is not in dispute that the three wings, though under the administra-
  tive control of the Agricultural Department, were separate ·before
  amalgamation. As already pointed out, permanent posts had been
c sanctioned   in the Minor Irrigation wing to which the petitioners before     ..I
  the High Court belonged and they were appointed on permanent
  basis. The High Powered Committees had taken all aspects into con-
  sideration and had recommended relevant aspects to be kept in view to
  regulate seniority in the merged cadre. When integration takes place
D and officers in different cadres ar~ merged into one, there is bound to
  be some difficulty in the matter of adjustment. That obviously has
  occurred here. The High Court has found that the petitioners before it
  had held, on the basis of confirmation, permanent posts and on that
  basis directed that the combined seniority list should be prepared tak-
  ing dates of substantive appointments as the basis for fixing inter se
E seniority. That indeed might create problems because depending upon
  availability of opportunities in the different wings, confirmation may
  have been granted while in the absence of the same, though officers in
  the other wings may be senior they may not have been confirmed. The
  approach of the High Court has been, as extracted above by us, that if
  within the cadre earlier confirmation gives seniority why should that
F basis be not extended to the combined gradation list. This may not be
  applicable in every situation-particularly when there is a merger of
  cadres and the combined gradation list is proposed.

         It is a well-settled position in law that seniority would ordinarily
  depend upon length of service subject, of course, to rules holding the
G field. That view has been taken by this Court in several cases and it is
  unnecessary to refer to all of them. In A. Janardhana v. Union of India
  & Ors., [ 1983] 2 SCR 936 the situation was somewhat the same as
  here. The Court found that the method adopted for fixing seniority
  overlooked the character of appointments and pushed down persons
  validly appointed below others who had no justification to be given
H higher place. At page 960 of the Reports, the Court observed:
              N.K. CHOUDHARY v. STATE OF BIHAR [MISRA, J.]              415

                     "It is an equally well recognised canon of service        A
               jurisprudence that in the absence of any other valid rule for
               determining i.'lter se seniority of members belonging to the
               same service, the rule of continuous officiation or the
               length of service or the date of entering in service and
               continuous uninterrupted service thereafter would be valid
                                                                               B
               and would satisfy the tests of Article 16."

    We may also refer to a very recent decision of this Court in K.S. Vora
    & Ors. v. State of Gujarat & Ors., [1987] 4 Judgment Today 179. The
    High Court recorded a finding that there is no applicable rule in the
    matter of fixing inter se seniority in a situation of this type. In the
    absence of rules, the more equitable way of preparing the combined c
    gradation list would be to take the total length of service in the com-
    mon grade as the basis for determining inter se seniority. We would
    like to add that in regard to the Supervisors (now called Junior
y
    Engineers) serving in the three wings there is no dispute of the grade
    being the same. While we do not agree with the High Court that
                                                                               D
    confirmation should be the basis and would substitute it by the length
    of service test, we would uphold the direction that in fixing the com-
    bined gradation list the inter se seniority of the incumbents in their
    respective departments would not be disturbed. Even if this be the
    test, the gradation list as published by Government has to be modified. '.
    We would accordingly confirm the conclusion of the High Court that
    Annexures 11, 11/ I, 12, 13, 13/1, 15 and 16 should be quashed and a E
    fresh combined gradation list has to be published. We have altered the
    test for fixing the seniority inter se generally but we have approved the
    direction of inter se senimity in their own departments to be respected.



,
    The respondent-State and its officers are directed to prepare and pub-
     lish the fresh combined gradation list keeping the aforesaid directions
     in vie\\'.                                                                F

          Both the appeals are allowed to the extent indicated above.
    Parties shall bear their own costs throughout.

    S.L.                                                  Appeals allowed.

                                                )




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