Holding

Under the Haryana Service of Engineers Rules, only a direct recruit appointed to a cadre post (even on probation) becomes a member of the service from the date of appointment; promotees become members only upon substantive appointment, and seniority of direct recruits is fixed from their initial appointment, while promotees' seniority is determined from the date of their initial promotion and is subject to the 50% quota and relaxation provisions.

Summary

The appellants, Class II engineers promoted on an officiating basis, challenged the promotion, confirmation and subsequent promotion of direct recruits B.D. Sardana and F.L. Kansai in the Haryana Service of Engineers, arguing that they should be deemed members of the service from the date of their initial officiating promotion and that their seniority should outrank the direct recruits. The State Government had exercised its power under Rule 22 to relax probation and fix seniority, and the High Court had held that the appellants were not members of the service until substantively appointed, quashing their confirmations for exceeding the 50% promotion quota. The Supreme Court examined the service rules, particularly Rule 2(12)(a), Rule 5(2) and related provisions, and held that only direct recruits appointed to cadre posts become members of the service from the date of appointment, whereas promotees become members only upon substantive appointment. Seniority of direct recruits is fixed from their initial appointment as Assistant Executive Engineer and is unalterable, while promotees' seniority is determined from the date of their initial promotion and is subject to the 50% quota and relaxation provisions. The Court directed the State Government to determine cadre strength and seniority of the parties within four months and dismissed the appeals and writ petition.

Issues considered

When does a promotee become a "member of the service" under Rule 2(12)(a)?
How is seniority to be determined for direct recruits versus promotees in the Haryana Service of Engineers?
Whether promotions of promotees in excess of the 50% quota prescribed by Rule 5(2) are illegal or irregular?
Whether the State Government may relax probation and fix seniority for promotees under Rule 22?
Whether the appellants have locus standi to challenge the promotions of direct recruits

Legislation cited

Constitution of Indias. Art. 14, s. Art. 16, s. Art. 309, s. Art. 32

Subjects

service senioritypromotion quotadirect recruitpromoteeHaryana Service of EngineersRule 2(12)Rule 5(2)relaxation of probationconstitutional challengeArticles 14,16,32

Judgment

S.L. CHOPRA AND ORS. ETC. ETC. A
v.
STATE OF HARYANA AND ORS. ETC. ETC.

~·· APRIL 5, 199 l

[K.N. SINGH AND K. RAMASWAMY, JJ.] B

Haryana Service of Engineers, Class I, P. W.D. (Public Health
Branch) Rules, 1961: Rules 2(12), 3(2), 512), 8(11), 11(4) and 1213),
(5), (6) and (7)-Direct Recruits and promotees-When become
"'-I members of service-Inter se seniority-Fixation of-Year of allot-

- ment-Whether alterable.

The appellants in Civil Appeal No. 1643 of 1991, who were pro-
moted as Executive Engineers on officiating basis in 1971-72 in the
c

Haryana Service of Engineers Class I, P. W.D. (Public Health Branch)
challenged before the High Court the promotion, by grant of relaxation
of probation, and confirmation, as Executive Engineer, and subsequent D
promotion as Superintending Engineer, of the respondent, who was
.... appointed as Assistant Executive Engineer, in the Class I Junior Scale
.f in 1977. by direct recruitment. The High Court held that the appellants
were not members of the service till they were appointed substantively
to the cadre posts and, therefore, they had no locus standi to challenge
the promotions. Hence the appeal. E

One of the appellants had also filed a Writ Petition before this
Court challenging the respondent's promotions, and the State Govern-
ment's power to grant relaxation and fixation of seniority.

In the connected appeal the respondent, who was appointed by F
direct recruitment as Assistant Executive Engineer in the Class I Junior
Scale in 1965 filed a Writ Petition before the High Court challenging the
confirmation of the appellants, who were promoted on officiating basis
as Executive Engineers in the Senior Scale in 1962-64 and were con-
firmed in 1977-79. Quashing the confirmations of the appellants, the
High Coutt held that promotions and confirmations of the appellants G
~ were in excess of their 50% quota and directed the State Government to
refix their seniority afresh. Hence the appeal.

On behalf of the appellants, it was contended that the moment the
appellants were promoted, though officiating in regular vacancies as
Executive Engineers they should be deemed to be members of the H

221
212 SUPREME COURT REPORTS I 1991] 2 S.C.R.

A service from the date of their initial officiating promotion, and their
seniority determined retrospectively with effect from their due dates,
counting their continuous length of service towards the seniority. .r
Disposing of Civil Appeal No. 1643 of 1991 and Writ Petition No.
6.ll l of 1982 and dismissing Civil Appeal No. 2316 of 1986, this Court,
B
HELD: I. Under Rule 2(12)(a) only a direct recruit appointed to
the cadre post, though on probation, is a member of the service from
the date of appointment by operation of the main part of Rule 2(12)(a) .
-
read with Rule 2( IJ to a cadre post within the meaning of Rule 2(3). The \
inclusive definition in Rule 2( l2)(a) is applicable only to a 'direct
appointee' i.e., Asstt. Executive Engineer, under Rule 2(7) and put on
c probation, officiating in an ex-cadre post as contemplated in para II of
Appendix 'A' but having successfully completed his probation and
awaits appointment to a cadre post. The promotee Class II officers are
not direct recruits as per Rule 2(7) but are officiating as Executive
Engineers. Hence they would not become members of the service, as
D declared by Rule 2(7), but become members of the service only after
they are appointed substantively to a cadre post. [227H, 228A-B]

1.1 Sub-rule (2) of Rule 5 prescribed a quota for promotees at
50% and 50% to the direct recruits and by appointment by promotion to
the cadre posts of Executive Engineers and above. The proviso is a
E built-in relaxation which empowers the State Government to promote
Class II officers as Executive Engineers in excess of their 50% quota.
The promotion of Class II officers in excess of 50% quota would be
illegal or irregular in the teeth of the mandatory language of Rule 5(2).
However, with a view to have smooth functioning of the administra-
tion. this power of relaxation was given as a breathing facility. The
F moment a direct recruit is available, the promotee shall give place to
hinL [228C-D]

2.2 Appointment by promotion made an ex-cadre post or to any
cadre post in an officiating capacity from the list prepared in accor-
dance with procedure prescribed under Rule 8 would remain tempor-
G ary till the promotee officer is confirmed in a cadre post, on satisfactory
completion of probation, under Rule 11(4). [228F]

3.1 On a conjoint reading of all the relevant rules, a promotee
· holding a cadre post on an officiating basis as an Executive Engineer or
above, within the quota, would be eligible to be considered for appoint-
H men! in a substantive capacity to a cadre post. His seniority shall be
S.L CHOPRA v. STATE OF HARYANA 223

determined with effect from the date of his initial promotion to a cadre
A
post, unless he is reverted or thete is break in service or from the date of
continuous officiation either in the ex-cadre or cadre post. [228G]

3.Z if a promotee Class II officer hoids the cadre post within the
quota of direct recruit, his period of service from the date of initial
promotion till the date of availability of a cadre post is rendered B
for. A ditect recruit, though promoted later steals a march over the
promotee and gets the right to consideration and if found fit gets pro-
motion within his 50% quota and thereby becomes seniodo the officiat-

-
ing promotee. [229E]

3 .3 Rule 2( 12) is neither arbitrary nor creates invidious discrimi-
nation offending Articles 14 aud 16, Direct recruits get seniority from C
the date of appointment as Asst!. Executive Engineer, it is unalterable.
But promotee's seniority is variable by operation Of Rules 8(11) &
11(4); 2(12)(a) & 5(2) of the Rules. [229G]

3.4 Since the respondent in Civil Appeal No. M43/91 is a direct D
recruit, his seniority as Executive Engineer, shall be with effect from
the date of his initial appointment as Asstt. Executive Engineer, as
contemplated by Rules 12(3) and (5). Similarly, seniority of the respon-
dent in Civil Appeal No. 2316/86 would be determined with effect from
1.1.1966. Their seniority is unalterable and they are eligible for promo-
tion within 50% quota of cadre post as Executive Engineer, superin- E
tending Engineer and Chief Engineer respectively, counting the senio-
rity with effect from their respective years of allotment. The appellants
·...\.
shall be considered for appointment to a substantive vacancy against a
cadre post within their 50% quota of the promotees and their seniority
would be counted next below the immediate senior promotee of the
same year or junior most promotee of the preceding year of allotment F
either officiating or confirmed, in accordance with sub-rules (6) and (7)
of Rule 12 and Rules 8(11) & 11(4). The year of allotment is accord-
ingly, alter;ible. [2278-D]

3.5 The State Government shouid determine the cadre strength
of the Service under the rules, consider the cases of the appellants and G
the two contesting respondents for promotion to the senior posts within
their respective quota of 50% and make appointment, if found eligible
and fit for promotion. [229H, 230A•B]

J.C. Yadav v. State of Haryana, [i990] 2 SCC 189 and K.K.
Khosla v. State of liaryana, [1990] 2 SCC 199, referred to. H
224 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1643
of 1991.

From the Judgment and Order dated 2.2.1983 of the Punjab &
Haryana High Court In W.P. No. 2859 of 1982.

B P.P. Rao, N.B. Shetye, Jitendra Sharma and U.S. Rana for the
Appellants.

Rajinder Sachhar, Mahabir Singh and C.M. Nayar (NP) for the ,.
Respondents. I

The Judgment of the Court was delivered by
c
K. RAMASWAMY, J. The special leave to appeal is granted.

These appeals and the writ petition were heard elaborately
alongwith Civil Appeal No. 4094 of 1984 on merits. Since same con-
D troversy, as involved in Civil Appeal No. 2316 of 1986 , we are dispos- l-
ing of both the appeals and writ petition by a common order. ~

The appellants are Class II engineers in the Haryana Service of
Engineers (Public Health Branch). They were promoted to officiate as
Executive Engineers under the Punjab Service of Engineers, Class I,
E P. W.D. (Public Health Branch) Rules, 1961 made by the Government
in exercise of the powers under the proviso to Art. 309 of the Constitu-
tion. After the formation of State of Haryana, the service was known J.-.
as the Haryana Public Service of Engineers, Class I, P.W.D. (Public
Health Branch) with effect from November 1, 1966. The rules are
called for short 'the rules'. The service under the rules consists of
F Asstt. Executive Engineer, Executive Engineer, Superintending
Engineer and Chief Engineer. The State Govt. exercised its power
under Rule 22 and relaxed. the qualification of 5 years' length of
service and promoted the appellants and S.L. Chopra as Executive
Engineers on February 21, 1972, B.R. Batra on July 29, 1971 and O.P.
Juneja on February 16, 1972. The respondent B.D. Sardana was
G recruited as Asstt. Executive Engineer by direct recruitment to Class I
Service of Junior scale and was appointed with effect from December
7, 1977. The State Govt. relaxed part of his probationary period and
promoted him also as Executive Engineer Mr. B.R. Batra filed a writ
petition under Art. 32 challenging the promotion of Sardana as Execu-
tive Engineer and also the State Govt.'s power to grant relaxation and
H fixing his seniority as Executive Engineer. He further challenged the
S.L. CHOPRA v. STATE OF HARYANA [RAMASWAMY, J.] 225

promotion of Sardana as Superintending Engineer by order dated July
A
29, 1982 on the plea that it violated his fundamental rights under Arts.
14 & 16. The appellants, namely, Sardar Pratap Singh, K.C. Sehgal
and Sardar Bhupinder Singh in Civil Appeal No. 2316 of 1986 are
Class II officers promoted on officiating basis as Executive Engineers
in Senior scale with effect from 1962, 1964 and 1964 respectively and
they were confirmed on that post with effect from June.I, 1977, May 1, B
1979 and November I, 1979 respectively. F.L. Kansai, the respondent
a direct recruit was appointed on May 18, 1965 as Asstt. Executive
Engineer in the Class I, Junior scale. The High Court allowed the writ
petition of Kansai and quashed the confirmation of the appellants.

This Court in J.C. Yadav v. State of Haryana, [1990] 2 SCC 189
and K.K. Khosla v. State of Haryana, [!990] 2 SCC 199 upheld the c
relaxations granted by the Government under Rule 22 to the appellants
and Sardana. The same contention raised in the High Court thereby
received quietus. The High Court held that the appellants are not the
.... members of the service till they are appointed substantively to the
cadre posts under the rules. Therefore, they had no locus standi to D
question the promotion of B.D. Sardana as Executive Engineer and
Superintending Engineer. However, the High Court held that the
promotions and confirmations of the appellants (in C.A. No. 2316 of
1986) were in excess of their 50% quota and on that basis the High
Court quashed them and directed the State Govt. to refix the seniority
afresh. E

The only question that arises in the appeals and the writ petition
··~.
is whether what is the date from which the appellants and B.D.
Sardana .and F.L. Kansai became members of the service and what
would be their seniority in the senior posts of Executive Engineers.
We have discussed the rules at length in Civil Appeal No. 4094 of 1984 p
which have been disposed of today. The re4soning contained in that
judgment apply to the instant cases also.

Under Rule 5(1), recruitment to the service is made from three
sources; (a) direct recruitment; (b) by transfer of officers already in
the service of the State or of the Union and (c) by promotion from G
Class II service. Direct recruitment as defined under Rule 2(7) means
an appointment by open competition but does not include 'an appoint-
ment made by promotion or transfer'. Under Rule 2(1) appointment
to the service includes an appointment made according to the terms
and provisions of the rules to an officiating vacancy or an ex-cadre post
provided that an officer so appointed shall not be deemed to have H
226 SUPREME COURT REPORTS I1991] 2 S.C.R.
t\ become a 'member of the service' as defined in Clause (12} of Rule 2.
Class II service as defined under Rule 2(5) means Punjab Service of
Engineers. Class II in Public Health Branch. Asstt. Executive
Engineer as defined under Rule 2(2) means a member of the service in
a junior scale of pay. Rule 2(3) defines 'cadre post' which means a
permanent post in the service. 'Ex-cadre posl' as defined by Rule 2(10)
B means a tempor.ary post of the same rank as of a cadre post. Rule 2(12}
is the main rule in controversy which needs interpretation reads thus:

"member of the service", means an officer appointed sub-
stantively to a cadre post, and includes-
,.
\
(a) in the case of a "direct appointment" an officer "on
c probation", or such an officer who, having successfully
completed his probation, awaits appointment to a cadre
post;

(b) is not necessary hence omitted.
D
Rule 5(2) postulates that 'recruitment to the service' shall be so
regulated 'that the number of posts filled by promotion from Class II
service' shall not exceed 50% of the number of posts in the service
'exclusing the posts of Asst!. Executive Engineers' provided that till
such time as an adequate number of Asstt. Executive Engineers who
E are eligible and considered fit for promotion are available, the actual
percentage of officers promoted from Class II service may be larger
than 50%. Rule 6 prescribes qualifications for appointment to the
service by direct recruitment and appointment by promotion from
.Class II service and prescribes the length of service. Rule 15 provides
for passing the prescribed departmental test as a condition for promo-
F lion to the post of Executive Engineers and above. Rule 7 provides for
appointment of direct recruits and Rule 8 prescribes procedure for
promotion. Rule 11 prescribes the period of probation of an officer
appointed to the service and the procedure for declaration. The Rule
provides that direct recruits shall be on probation for a period of two
years and the promotees and transferees shall be on probation for a
G period of one year and the officiating period shall be considered
towards probation. Rule 11(4} postulates that 'on the satisfactory com-
pletion of the _period of probation, Government ~hall confirm such
officer in a cadre post, if one is available for him'. Rule 12 prescribes
the procedure for determination of the seniority. By operation of sub-
rule (3) read with sub-rule (5) of Rule 12, the seniority of the Asstt.
H Executive Engineer (direct recruit) on promotion as Executive
S.L. CHOPRA v. STATE OF HARYANA [RAMASWAMY, l.] 227

Engineer (senior scale) shall be the calendar year in which the order of
A
appointment as Asstt. Executive Engineer may have been issued by
the government. Sub-rules (6) and (7) prescribe the procedure to
determine to inter se seniority of the Class II officers promoted as
Executive Engineers notwithstanding they are officiating or con-
firmed. They take their rank next below the junior most Executive
Engineer of the preceding year of allotment of such an officer whether B
officiating or confirmed. Rule 3(2) read with Appendix 'A' provides
procedure; to determine cadre posts in the light of the guidelines laid
down therein.

Shri P.P. Rao, learned counsel for the appellants urged that the
moment the appellants were promoted, though officiating in the regu-
lar vacancies as Executive Engineers, they should be deemed to be the c
members of the service from the date of their initial officiating promo-
tion, their senlority should be determined retrospectively with effect
from ·their due dates. Their continuous length of service should be
counted towards their seniority. He urged that since the appellants
.... were promoted in the year 1971-72, they are senior to B.D. Sardana as D
he is a direct recruit of the year 1977. He sought reliance on the
'inclusive definition' under Rule 2(12)(a) and the proviso to Rule 5(2)
of the rules. He further contended that while the appellants were on
probation and their probation was declared to be completed with a
view to make them regular from the date of their initial officiating
promotion. The fixation of cadre posts and appointment of the appel- E-
lants substantively to a cadre post are inglorious uncertainties which
... -\ take unduly its long period. The officiating service cannot be cut down
nor the contesting respondent B.D. Sardana be promoted over them
or other senior promotees awaiting promotion either as Executive
Engineers or Superintending Engineers. He further contended that in
the counter-affidavit filed in the High Court the State Govt. had F
admitted that the case of the appellants would be considered in the
light of J.C. Yadav's case which went in their favour. So the only thing
that the State Govt. shall have to do is to determine inter se seniority
between the appellants and the contesting respondent from the respec-
. tive dates of promotion as Executive Engineers and appointment by
promotion as Superintending Engineer shall be made on that basis. G
We have elaborately considered all the contentions in Sehgal's appeal
and we have recorded our findings on the basis of interpretation of the
rules.

In our opinion under Rule 2(12)(a) only direct recruit appointed
to the cadre post though on probation is a member of the serivce from H
228 SUPREME COURT REPORTS [1991] 2 S.C.R.

the date of appointment by operation of the main part of Rule 2( 12)(a)
A
read with Rule 2( I) to a cadre post within the meaning of Rule 2(3).
The inclusive definition in Rule 2(12)(a) is applicable only to a 'direct
appointee' i.e., Asstt, Executive Engineer under rule 2(7) and put on
probation, officiating in an ex-cadre post as contemplated in para 11 of
Appendix 'A' but having successfully completed his probation and
B awaits appointment to a cadre post. The promotee Class II officers
admittedly are not direct recruits as per Rule 2(7) but are officiating as
Executive Engineers, they would not become members of the service
as declared by Rule 2(7) but become a member of the service only
after they are appointed substantively to a cadre post. Sub-rule (2) of
Rule S prescribes quota to the promotees at 50% and 50% to the direct
recruits and by appointment by promotion to the cadre posts of Execu-
c tive Engineers and above. The proviso is a built in relaxation which
empowers the State Govt. to promote Class II officers as Executive
Engineers in excess of their 50% quota. The promotion of Class II
officers in excess of 50% quota would be illegal or irregular in the
teeth of the mandatory language of Rule 5(2). With a view to have
D smooth functioning of the administration this power of relaxation was
given as a breathing facility. The moment a direct recuit is available,
the promotee shall give place to him. If a promotee is officiating in a
cadre post or appointed to an ex-cadre temporary post when a substan-
tive vacancy arises, the State Govt. is empowered to consider the
eligibility of Class II officers for promotion as Executive Engineer as
E per the procedure prescribed in Rule 8 and an appointment by promo-
tion shall be made but it would be on officiating basis until he is
appointed substantively to a cadre post by operation of Rule 8(11)
read with Rule 11(4). Appointment by promotion made to an ex-cadre
post or to any cadre post in an officiating capacity from the list pre-
pared under Rule 8 would remain temporary. On satisfactory comple-
F tion of the period of probation, the Government shall confirm the
prornotee officer in a cadre post under Rule 11( 4) if one is available for
him. On a conjoint reading of all the relevant rules, a promotee hold-
ing a cadre post on an officiating basis as an Executive Engineer or
above, within the quota, would be eligible to be considered for
appointment in a substantive capacity to a cadre post. His seniority
G shall be determined with effect from the date of his initial promotion
to a cadre post unless he is reverted or there is break in service or from
the date of continuous officiation either in the ex-cadre or cadre post.

Under Rule 3(2) read with Appendix 'A', the State Govt. is
en joined to determine the cadre post from time to time and during the
H first 5 years on Ist day of every year and later from time to time and
S.L. CHOPRA v. STATE OF HARYANA [RAMASWAMY, J.] 229

divide the posts as per the ratio of the available cadre posts to the
A
promotees and the direct recruits and shall make appointment in a
substantive capacity. Inter se seniority between direct recruits and
''+ promotees is regulated by Rules 12(6) and (7). Since B.D. Sardana is a
direct recruit, his seniority as Executive Engineer shall be with effect
from the date of his initial appointment as Asstt. Executive Engineer,
namely, December 7, 1977 as contemplated by Rules 12(3) and (5). B
Similarly Kansal's seniority would be determined with effect from
l. L 1966, their seniority is unalterable and they are eligible for promo-
tion within 50% quota of cadre post as Executive Engineer, Superin-
tending Engineer and Chief Engineer respectively counting the senio-
rity with effect from year of allotment, namely December 7, 1977; May
18, 1965 (I. I. 1966) respectively.
c
As regards the appellants are concerned, they shall be consi-
dered for appointment to a substantive vacancy against a cadre post
within their 50% quota of the promotees and their seniority would be
counted next below the immediate senior promotee of the same year
or junior most promoiee of the preceding year of allotment either D
officiating or confirmed, in accordance with sub-rules (6) & (7) of Rule
12 and Rules 8(11) & 11(4). The year of allotment is accordingly,
alterable. If a promotee Class II officer holds the cadre post within the
quota of direct recruit, his period of service from the date of initial
promotion till the date availability of a cadre post is rendered fortuit-
ous. A direct recruit though promoted later steals a march over the E
promotee and gets right to consideration and if found fit gets promo-
tion within his 50% quota and thereby becomes senior to the officiat-
------\ - ing promotee.

In the affidavit filed by O.P. Juneja one of the appellants it is
stated that the State Govt. has now determined the cadre strength but F
we decline to go into that question, leaving it open to the Government
to determine the seniority after giving opportunity to all parties in the
light of this judgment. It is true that the State Govt. made adm1ss]ons
in the counter-affidavit that the seniority would be determined in
accordance with J.C. Yadav's case which went in favour of the appel-
lants, but it does not conclude the matter. It is unfortunate that the G
State Govt. took sifting stand from time to time. Rule 2( 12) is neither
arbitrary nor creates invidious discrimination offending Arts. 14 & 16.
Direct recruits get seniority from the date of appointment as Asstt.
Executive Engineer, it is unalterable. But promotee's seniority is vari-
able by operation of Rules 8( 11) & 11( 4); 2( 12)(a) & 5(2) of the Rules.
Therefore, the State Govt. is directed to determine the cadre strength H
230 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A in the Haryana Service of Engineers, Class I, P.W.D. (Public Health
Branch) under the rules, Executive Engineers; Superintending
Engineers and Chief Engineers; consider the cases of the appellants
and the contesting respondents; B.D. Sardana, F.L. Kansai for promo-
tion to the senior posts of Executive Engineers, Superintending
Engineers and Chief Engineers respectively with the respective quota
a of 50% ·and make appointment if found eligible and fit for promotion.
This exercise shall be done within four months from the date of the
receipt of the order. The impugned promotions or any appointment
made pending the writ petitions· in the High Court or appeals in this
Court are subject to the above directions. The status quo as of today
will continue till the Government carries out the directions. The appeal
c and the writ petition are accordingly disposed of and Civil Appeal No.
2316 of 1986 is dismissed but in the circumstances parties are directed
to bear their own costs.

N.P.V.
C.A. 1643/91 and
W.P. 63ll/82disposedof
and C.A. 2316/86 dismissed.

..)----