S.K. SAHA AND ANR. ETC.versusPREM PRAKASH AGARWAL AND ORS. ETC.

A                        S.K. SAHA AND ANR. ETC.
                                                                                 _,...
                                        v.
               PREM PRAKASH AGARWAL AND ORS. ETC.

                             NOVEMBER 23, 1993

B             [J.S. VERMA, R.M. SAHAI AND N.P. SINGH, JJ.]

        Civil Seniices-Appointment and senioriO--Candidate appointed on
  Contract basis-Extended from time to time-Post made gazetted-Selected
  by Seniice Commission and appointed with retrospective effect-Validity of
C the retrospective appointment and seniori~Subsequ~ntly joining qovern-
  ment Corporation-Deemed option for absorption-Later requesting appoint-
  ment in Government service-Appointed accordingly-Period spent in
  Corporation-Whether could be counted for purposes of seniority.

          The appellant was appointed as Foremen in the Cycle Parts Factory
D run by the State Government, for one year on contract basis. The appellant
    joined on 4.1.1957 and his contract of service was extended from time to
    time. In 1959, the post of Foreman which was a class-III post was declared
    as class-II Gaze~ted post. An advertisement was issued by the Service
    Commission inviting applications for the post of Foreman Class-II and
E   the appellant applied along with others. He was recommended by the
    Service Commission and by order dated 12.5.1960, the Government ap·
    pointed the appellant as Foreman Class-II with effect from 4.1.1957.

        When the State Government decided to transfer the management of
  the Cycle Parts Factory to a Government Corporation, aU the persons
F working in the Factory were given option either to join the Corporation or
  to be absorbed in any other department of the State Government. Appel-
  lant joined the service of the Corporation. Later, in 1972 he made a
  representation that he may be taken back in the service of the Government,
  and the Government by its order dated 19.6.1972 appointed him as Asstt.
G Director of Industries.
        In a batch of Writ Petitions filed before the High Court, Respondent
  No. 1 challenged the appellant's appointment as Foreman Class-II with
  retrospective effect from 4.1.57, when the post was only a non-gazetted
  post, and as such Respondent No. 1 who was appointed on 18.2.1959 as
H Asstt. Director of Industries, which post was equivalent to Foreman, would
                                       832
                      S.K. SAHA v. P.P. AGARWAL                         833

rank senior to the appellant. Respondents 2-8, who were appointed as A
Assistant Directors prior to the appellant, challenged the retrospective
appointment and seniority given to the appellant.

      The High Court held that the State Government could not have
appointed the appellant on 12.5.1960 w.e.f. 4.1.1957 from a date not only
prior to the date of the recommendation made by the Commission but even         B
prior to the date of the advertisement in respect of the said post, and that
once the appointment of the appellant had been made by the process of
direct recruitment, there was no occasion to reckon his seniority taking
into consideration the period during which he served the State on contract
basis. It also held that since the appellant was appointed to the cadre of      C
Assistant Director of Industries w.e.f. 19.6.1972, after the appointment of
respondents Nos. 2 to 8, he should rank junior to them as well. Hence these
appeals.

      Dismissing the appeals, this Court
                                                                                D
       HELD : 1.1 There cannot be any dispute that the appointment of tm;
appellant, according to rules, was made on basis of the recommendation of
the Service Commission, on 12.5.1960. As such there was no occasion to take
into consideration the period when the appellant was continuing on ad hoc
basis, especially, during the period when the post itself was a non-gazetted
                                                                                E
post. The appellant was given seniority w.e.f. 4.1.1957, but the post of the
Foreman which the appellant was holding became a gazetted post since
16.1.1959. Any officiation on the post when it was a non-gazetted post cannot
be held to be a continuous officiation on the post so as to entitle the
appellant to count that period towards his continuous officiation. The High
Court has rightly held that while appointing him on the basis of the recom-     F
mendation of the Commission, the date of appointment could not have been
ante-dated and made to be effective w.e.f. 4.1.1957. [838-B-D]

      1.2 Respondent No. 1 had been appointed as Assistant Director of
Industries on 18.2.1959 on the basis of an advertisement made in the year       G
1958 and on the recommendation of the Service Commission. Therefore,
his seniority in the service could not have been affected by the State
Government, by giving notional date of appointment of the appellant w.e.f.
4.1.1957. [838-E-F]

      Direct Recruit Class II Engineering Officers' Association v. State of H
    834                   SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A Maharashtra, [1990] 2 sec 715, followed.

          State of West Bengal v.Aghore Nath Dey, [1993] 3 SCC 371, relied on.

          2.1 A holder of any civil post in a Government department has no
B right to question the wisdom of the State to entrust the activities of the
    department to an autonomous body. It is true in view of the Article 311 of
    the Constitution, the holders of civil posts cannot be dismissed or removed
    from service. However, the State can give an option to the holders of such
    posts either to be absorbed in some other department or to leave the
    service of the State and to opt for the service of the Government Corpora·
C   tion or Undertaking in question. Once any such employee of the State opts
    for the service of the Corporation, he shall cease to be in the service of the
    State. In such a situation, it cannot be held that the holder of the post, has
    been deputed to the Corporation holding his lien with the State Govern-
    ment. [839-D"F]
D
         2.2 In the present case, an option was given to the appellant to opt
   either to be absorbed in another department or to go to the Corporation.
   A time limit was fixed after which it was to be deemed that he had agreed
   to the transfer of his service to the Corporation. There is nothing on the
   record to show that the appellant ever exercised his option to remain with
E the State Government. On the other hand, he joined the service of the
   Corporation and only in the year 1972, on his representation, he was
 . appointed as Assistant Director of Industries. In this background, the
   period when the appellant joined the Corporation and was again appointed
   in the service of the State Government on 19.6.1972, shall not be counted
F towards his seniority and it shall be deemed that appellant was appointed
   afresh on 19.6.1972. There is no dispute that the respondent Nos. 2. to 8
   had entered in the cadre before 19.6.1972 and in that event they will also
   rank senior to the appellant. [839-F·H, 840-A]

          State of Mysore v. H. Panappa Gowda, AIR (1971) SC 191, followed.
G
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4382(N)..
    of 1983.

          From the Judgment and Order dated 21.4.82 of the Madhya Pradesh
H High Court in Miscellaneous Petition No. 523 of 1977.
              SX SAHA v. P.P. AGARWAL [N.P. SINGH, J.]                 835

                                   With                                        A
     Civil Appeal No. 4383(N) of 1983.

     S.K. Gambhir and S.R. Setia for the Appellants.

     Ravinder Bana, AK. Sanghi, Sakesh Kumar and S.K. Agnihotiri for           B
the Respondents.

     Tlie Judgment of the Court was delivered by

      N.P. SINGH, J. One appeal on behalf of S.K. Saha and the other on
behalf of the State of Madhya Pradesh, have been filed against the judg-       C
ment of the High Court, directing to treat the appellant junior to the
writ-petitioners/respondents in the cadre of Assistant Director of In-
dustries.

      The appellant was appointed as Foreman, Cycle Parts Factory, by
the erstwhile Madhya Bharat Government, on 31.10.1966. The appointment lb
was for one year on contract basis. The appellant joined on 4.1.1957, after
the formation of the new State of Madhya Pradesh, on 1.11.1956. Sub-
sequently, the contract service of the appellant was extended from time to
time by the State Government. The post of Foreman was a Class-III post
(non- gazetted). The State Government by its order dated 18.12.1959 E
declared the post as Gazetted Class-II, w.e.f. 16.1.1959.

        An advertisement was published in the year 1959 by the Madhya
Pradesh Public Service Commission (hereinafter referred to as the "Com-
mission"), inviting applications for the post of Foreman Class-II. Alongwith
others the appellant also applied for the said post and the name of the        F
appellant was recommended by the Commission. The State Government
by its order dated 12.5.1960, appointed the appellant on temporary basis
till further orders, to the post of Foreman w.e.f. 4.1.1957 .

      .The writ applica~ion in question was filed on behaif of the respon-
dents, challenging the validity of a part of the order dated 12.5.1960, by G
which the appellant was appointed on 12.5.1960, w.e.f. 4.1.1957. It was
pointed out before the High Court, on behalf of the said respondents, that
the order dated 12.5.1960 appointing the appellant as Foreman was on
basis of an advertisement issued in the year 1959 and recommendation ~
made by the Commission thereafter. As such on basis of the said recom- H
    836                   SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A mendation, the appellant could not have been appointed w.e.f. 4.1.1957. It
  was also pointed out that till 15.1.1959, the post of the Foreman was a
  non-gazetted post and it is only on 16.1.1959, when by the Government
  order dated 18.12.1959, the said post was made a gazetted one,. necessitat-
  ing appointment, on the basis of the recommendation of the Commission.
  Respondent No. 1, who was one of the writ-petitioners, before the High
B Court, had been appointed as Assistant Director of Industries on 18.2.1959
  on basis of a recommendation by the Commission, pursuant to an adver-
  tisement issued in the year 1958. So it was pointed out on his behalf that
  the order dated 12.5.1960 of the State Government, appointing the appel-
  lant with effect from a retrospective date i.e. 4.1.1957, directly affected his
C seniority, which was violative of Articles 14 and 16 of the Constitution. The
  posts of Foreman and Assistant Director of Industries are equivalent and
  it is not in dispute that if the order dated 12.5 .1960 appointing the appellant
  w.e.f. 4.1.1957 is held to be valid, then the appellant although appointed on
  12.5.1960 on basis of the recommendation of the Commission will rank
  senior to the said respondent, who had been appointed on 18.2.195_?.

          The High Court held that the State Government could not have
    appointed the appellant on 12.5.1960 w.e.f. 4.1.1957 from a date not only
    prior to the date of the recommendation made by the Commission but even
    prior to the date of the advertisement in respect of the said post. It was
    also said that once the appointment of the appellant had been made by the
    process of direct recruitment, there was no occasion to reckon his seniority
    taking into consideration the period during which he served the State· on
    contract basis for one year, which was being extended from time to time.

          So far the remaining seven writ petitioners/respondents are con-
    cerned, the High Court pointed out that in about January, 1964, the State
    Government decided to transfer the Cycle Parts Factory to Madhya
    Pradesh Udyog Nigam, a Government Corporation. The persons working
    in the said factory including the appellant were given option either to opt
    for the service under the said Corporation or for being absorbed in any
    other department of the State. In the communication dated 24.1.1964,
    addressed to the appellant, it was said that the State Government had
    decided to transfer the management of the Cycle Parts Factory to the
    Corporation aforesaid, as such the service of the appellant was proposed
    to be transferred to the said Corporation on the condition that his scale of
    pay and other conditions of service to which he was entitled, shall not be
              S.K.SAHAv. P.P.AGARWAL (N.P. SINGH,J.]                     837

affected by the transfer. The appellant was required to inform the State A
Government, whether he was agreeable to the said transfer of his service
to the Corporation. It was further said that in case he was not agreeable
to such transfer, then he "shall be retrenched or otherwise absorbed in the
service of the State Government on such conditions as may be permissible
under the law for the time being in force." Ultimately, it was said that if no B
reply was received from him by 29.2.1964, it would be presumed that he
had agreed to the transfer of his service to the said Corporation. There is
no dispute that the appellant joined the service of the Corporation and
there is nothing on record to show that he ever opted to be absorbed
against any post under the State Government. In the year 1972, the appel-
lant made a representation that he should be taken back in the service of C
the State Government and by an order dated 19.6.1972, the State Govern-
ment appointed him as Assistant Director of Industries. The High Court
has pointed out that once the appellant did not opt to continue in the
service of the State Government against any other post and voluntarily
opted to join the service of the Corporation, it will be deemed that he D
ceased to be in the service of the State Government. In that connection,
the High Court took note of statutory rules respect of recruitment against
the post of Assistant Director of Industries, which admittedly were not
followed when the appellant was appointed as Assistant Director of In-
dustries on 19.6.1972. Even if, the appointment of the appellant against the E
post of Assistant Director of Industries by an order dated 19.6.1972, is held
to be valid in eye of law, it will be deemed that he was appointed to the
cadre of Assistant Director of Industries w.e.f. 19.6.1972, after the appoint-
ment of writ petitioners/respondents Nos. 2 to 8, as such he shall rank
junior to them as well.                                                        F

      From time to time, this Court has considered, as to what is the
relevant date for fixing inter se seniority of entrants in the same cadre,
either by the same process or by different processes of recruitment. Ul-
timately, the matter was examined by a Constitution Bench, in the case 'of
Direct Recruit Class II Engineering Officers' Association v. State of G
Maharashtra, [1990] 2 SCC 715 =AIR (1990) SC 1607. It was said that once
the appointment is made to a post according to rules, the seniority of the
person so appointed is to be counted from the date of his appointment and
not with regard to the date of his confirmation. It was also said that the
corollary of the above rule is, that where the initial appointment is only ad   H
    838                   SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R ..

A   Jf oc and not according to rules and made as a stop-gap arrangement, the
    officiation in such post cannot be taken into account for considering the
    seniority. The same view has been reiterated in the case of State of West
    Bengal v. Aghore Nath Dey, (1993) 3 SCC 3?1.

          there cannot be any dispute that the appointment of the appellant,
B according to rules, was made on basis of the recommendation of the
  Commission, on 12.5.1960. In this background, there was no occasion to
  take into consideration the period when the appellant was continuing on
  ad hoc basis, especially, during the period when the post itself was a non-
  gazetted post. The appellant was given seniority w.e.f. 4.1.1957, but the post
C of the Foreman which the appellant was holding itself became a :gazetted
  post since 16.1.1959. Any officiation on the post when it was a non-gazetted
  post cannot be held to be a continuous officiation on the post so as to
  entitle the ~ppellant to count that period towards his continuous officiation.
  The High Court has rightly held that while appointing him on the basis of
D the recommendation of the Commission, the date of appointment could
  not have been ante dated and made to be effective w.e.f. 4.1.1957. This
  Court has repeatedly struck down and decried any attempt on the part of
  the appointing authority to give a notional seniority from a retrospective
  date especially, w4en this process affects the seniority of those who have
E already entered into the service. In the present case the respondent No. 1
  had been appointed as Assistant Director of Industries on 18.2.1959 on.
  basis of an advertisement made in the year 1958 and on the recommenda-
   tion of the Commission. His seniority in the service could not have been
   affected by the State Government, by giving notional date of appointment
   of the appellant w.e.f. 4.1.1957.
F
          The other issue, as to whether the appellant having not opted to be
  absorbed in some other Department of the State Government, after the
  Cycle Parts Factory, was transferred to the Corporation and the appellant
  having joined the said Corporation in terms of the offer given to him by
G the State Government ceased to be an employee of the State Government,
  till he was again appointed as Assistant Director of Industries on 19.6.1972,
  needs a closer scrutiny. In view of Article 311(1) no person who is a
  member of civil service of the Union or of a State or who holds a civil post
  under the Union or the State can be removed from service except after an
H enquiry as contemplated by the said Article. A Constitution Bench of this
              S.K. SAHAv. P.P. AGARWAL [N.P. SINGH, J.]                839

Court, in the case of State of Mysore v. H.Panappa Gowda, AIR (1971) SC A
191, has held that in view of the provisions of Article 311, it is not open
to the State Government to declare even by a statutory rule that after
transfer of the department alongwith posts to a University, the holders of
such posts under the Government in such department shall cease to be in
the service of the State Government, because that will be violative of B
Article 311 of the Constitution.

         Where all the functions of a Department of the State or Union
  Government along with posts are transferred to some University or
  Government Corporation, which of late has become a common feature, in
 view of the fact that it has been accepted at all levels that public interest C
 is better served if the activities which were part of the department are
  entrusted to some autonomous Corporation or University, a question arises
. as to how to transfer the services of the holders of such posts having
  protection of Article 311 of the Constitution. A situation is created whete
  the holders of the posts are in service of the State Government, but the D
  activities of the whole department are transferred to some Government
  Corporation or Undertaking. How the State can retain the members of
  such service against those posts when the department itself becomes
  defunct. A holder of any post in such a department has no right to question
  the wisdom of the State to entrust the activities of the department to an
  autonomous body. It is true in view of Article 311, merely on this ground, E
  the holders of civil posts ~annot be dismissl!d or removed from service.
  However the State can give an option to the holders of such posts either
  to be absorbed in some other depat"tment or to leave the service of the
  State and to opt for the service of the Government Corporation or Under-
  taking in question. Once any such employee of the State opts for the service F
  of the Corporation, he shall cease to be in the service of the State. In such
  a situation, it cannot be held that the holder of the post, has been deputed
  to the Corporation holding his lien with the State Government. Admitlk:dly,
  in the present case an option was given to the appellant to opt either to be
  absorbed in ano.ther department or to go to the Corporation. A time limit
  was fixed after which it was to be deemed that he had agreed to the transfer G
  of his service to the Corporation. There is nothing on the record to show
  that the appellant ever exercised his option to remain with the State
  Government. On the other hand, he joined the service of the Corporation
  and only in the year 1972, on his representation, he was appointed as
  Assistant Director of Industries. In this background, the period when the H
    840                  SUPREMECOURTREPORTS [1993)SUPP.3S.C.R ..

A appellant joined the Corporation and was again appointed in the service
    of the State Government on 19.6.1972, shall not be counted towards his
    seniority and it shall be deemed that appellant was appointed afresh on
    19.6.1972. There is no dispute that the respondent Nos. 2 to 8 had entered
    in the cadre before 19.6.1972 and in that event they will also rank senior
B   to the appellant as has been held by the High Court.

         Accordingly, both the appeals are dismissed. In the facts and cir-
    cumstances of the cases, there shall be no order as to costs.

    G.N.                                                  Appeals dismissed.