STATE OF MAHARASHTRAversusPURSHOTTAM

                      STATE OF MAHARASHTRA                                     A
                                     v.
                             PURSHOTTAM

                              MAY 7, 1996.

           [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                              B

      Service Law :

       Maharashtra Service of Engineers Class-I and Class-II Cadre
Rules-Seniority-Junior Engineers-Initially appointed on work charged es-       c
tablishment-Later absorbed in regular establishment-Govt. resolution
specifying the initiai reetuitment date as deemed.date of absorption-Made
applicable only at circle level and not at State level-Absence of any specific
provision for seni01ity at State level - Held, Govemment itself having passed
the resolution, the date of initial recruitment has to be taken into account for
reckoning seniofity-In the absence of specific provision in recntitntent rnles, D
the statewise seniority list has to be prepared on the basis of seni01ity list
prepared at circle level.

      Words & Phrases: 'Work charged establishment', 'Cadre'-Meaning of
                                                                               E
       Respondent Nos.1 to 4 were appointed as _Junior Engineers on work
charged establishment who were later on absorbed as Junior Engineers in
the regular establishment. But their names did not appear in the seniority
list of the Junior Engineers on regular establishment.

       Government had passed resolutions to the effect that Junior En-         F
gineers shall be given deemed date of absorption to the regular estab-
lishment and the services rendered on work charged establishment shall
be counted for the purpose of seniority on regular establishment and it
will be counted for the purpose of seniority of the employee at the circle
level; but not for the purpose of seniority in the State level.
                                                                               G
      Promotion to the post of Sub-Divisional Engineer is made from
amongst Junior Engineer (Graduates) from the subordinate service of
engineers according to the Maharashtra Service of Engineers Class-I &
Class-II Cadre Rules. The Rule does not stipulate that the statewise
seniority list of Junior Engineers has to be drawn up on the basis of their H
                                    501
    502                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A respective dates of absorption/employment as a Junior Engineer in regular
    establishment or on the basis of deemed date which is to be determined in
    accordance with the two Government Resolutions.

          Respondents filed Writ Petition in the High Court (which was later
    transferred to Administrative Tribunal as Administrative Tribunal Act
B   came into force) demanding that their period of service on \Vork charged
    establishment should be counted for their seniority in regular estab-
    lishment. Respondents contended that the two resolutions of the State
    Govt. were discriminatory.

         The Tribunal held that the two resolutions of the State Govt. are
c violative of Article 16(1) of the Constitution of India and directed that the
    said resolutions should also apply for drawing seniority list at the State
    level.

          In appeal to this Court, the State Government contended that work
D charged establishment is a completely different cadre from regular estab-
    lishment. Therefore, employees on work charged establishment cannot be
    considered for seniority in regular establishment and that the government
    resolution provided for counting of service on work charged establishment
    for the purpose of seniority only within the circle and not at the State level.
E         Respondents contended that employees having been absorbed in
    regular establishment cannot have two different seniority and that even
    though Junior Engineers within the circle constitute a cadre but when
    promotion to the post of Senior Divisional Engineers is made and for that
    purpose, statewise seniority list of Junior Engineers is maintained; and
F   that it would be unreasonable to maintain the said list on the basis of their
    absorption in regular establishment even though they have acquired
    deemed date by virtue of government resolution.

          Dismissing the appeal, this Court

G         HELD : 1. TI1e Government itself having passed the resolution
    determining the deemed date of absorption, the said date has to be taken
    into account for reckoning seniority. Ordinarily seniority \Votdd ha\'e been
  determined on the basis of date of absorption of the employee in the
  regular establishment. A work charged establishment means an estab-
H lishment of which the expenses, including the wages and allowances of the
                  STATE i: PURSHOTl'AM [PATl'ANAlK.J.J                      503

statT, are chargeable to "works". 'fhe pay and allo"'·ances of e1nployees 'vho     A
are borne on u \\'Ork charged establislunent are ~enerally shown as a
separate sub-head of the estimated cos.t ol' the work. The work charged
establishment e1nployees are engaged on a temporary basis and tlu.~ir
appoinflnents are n1ade for the execution of a specified \\'Ork. From the
very nature of their employment, their sen ices automatically come to an
                                               1



end on the completion of the works for the sole purpose for \Vhich they are
                                                                                   B
en1ployed. In the service jurisprudeuce, the expression 'Cadre' means the
unit of strength of a sen ice or a 11art of it as deter1nined by the e1nployees.
                              1




And it is well settled that services rendered by an employee in one cadre
cannot be taken into account for determining the seniority in another
cadre unless by any rules of seniority, this privilege is conferred. This being    C
the position ordinarily the services rendered by an e111ployee in a \\'Ork
                          1


charged establishment, is not to be taken into account for his seniority in
the regular establishment part.icularly\\'hen the tenure in the \\'ork charged
establishrnent is of a precarious nature and it auton1atically ceases after
the project is over. [507-A-C; 506-E-H]
                                                                                   D
      1.2. In the absence of any specific provision in the recruitment rules,
it would be only reasonable to construe that the state,vise seniority list has
to be prepared on the basis of seniority list already prepared in the circle
indicating the respective deemed dates or such Junior Engineers, [508-C]
                                                                                   E
      2. The appropriate authorit,y should prepare the stale\\ise Seniority
List of Junior Engineers under Rule 16(a) of l'vlaharashtra Senrice of En-
gineers Class-I and Class-II Cadre Rules by taking into account the deemed
date of each such Junior Engineer in the respective circle. [508-E-F]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8230 of                    F
1996.

     From the .T udgment and Order dated 25.10.94 of the Maharashtra
Adn1inistrativc Tribunal, Nagpur in 1'.P. No. 743 of 1992.

        D.M. Nargolkar for the Appellant.                                          G
        ,A._K. Siin~hi for the Rc:;pondcnls.

        The .T udgment of the Court was delivered by

        PATIANAIK, J. Leave granted.                                               H
    504                   SUPRFME COURT RFPCJRTS [1996! SUPP. 2 S.C.R.

A          fhis appeal by special leave is directed against the Order dated
    25.10.1994 of the Maharashtra Administrative Tribunal, Nagpur Bench in
    Transfer Application No. 743 of 1992.


            The respondents J to 4 here in \\'ere appointed at:i junior Engineers
    on work charged establishment on different dales by concerned Superin-
B
    tending Engineers of the l:ircle. Later on they \Vere appointed as Junior
    Engineers in the regular estahlishn1ent on difrercnt dates. There is no
    dispute that those respondents had the minimum educational qualification
    for being appointed as Junior Engineers in the regular establishment. They
    fikd writ petition in the Bombay High Court claiming that their duties and
c   responsibilities un the \Vork charged cstablishn1ent being the san1e as
    Junior Engineers on regular establishment, the period of service rendered
    by thc1n as .Junior f-~nginecrs on \Vork charged establishment should be
    counted for their seniority aftl'.r they have be::cn absorbed in the regular
    establishn11..;nt. After their <1bsorption, \Vhen the seniority List of Junior
D   Engineers \Vas published in respect of .Junjor Engineers on regular estab-
    lishment upto 31.3.19KO as \Veil as in respect of Junior Engineers on regular
    estahlishment for lhe period 1.4.1980 till 31.3.1982, the names of lhc
    respondents did nol find place, oll\·iously because of the fact that they have
    hcen absorbed in ·n:gular establishment, after 31.3.1982, they approached
    the High <.:ourt. \Vhile the \Vrit petition was pending, the Administrative
E   Tribunal Act having been enforced and Slate Adminislralive Tribunal
    having been c.:onstitutcd, the petitions stood transferred to the Tribunal.
    Before ti1c Tribunal the respondents contended that the Government
    having passed Resolution that the Junior Engineer having \Vork charged
    service to his credit, should be assigned "deemed date" which should be
F   cine day prior to the date on which his immediate J uoior on work charged
    establishn1ent or fron1 open markei was taken or appointed on regular
    te111porary establishment in the san1e circle, the services rendered on work
    charged e:stablishn1ent is therefore to be counted for the purpose of
    seniority on regular establishment and the authorities therefore committed
    error in not granting them the said relief. It was also contended that the
G   relevant instructions of the Resolutions of the Stale Government dated
    15.2.1977 and 19.3.1977 whereunder the services rendered on work charged
    establishment though is counted for the seniority of the employee at the
    Circle level but the same is not counted for the purpose of seniority of the
    employee in the State level and there is no reasonable nexus for making
H   such differentiation and as such the Resolutions are discriminatory and
                STATE v. PURSI-101TAM [l'ATTANAIK.J.J                    505

 should be struck down.                                                         A

       The stand of the Stale Government before the Tribunal on the other
 hand was that the posts of Junior Engineers arc posts in Class III cadre
 and such appointees within a Circle constitute the cadre. The appointment
 of such Junior Engineers within Circle is _made by the Superintending
 Engineer both in work charged e~talili~hrnent as \Vell a~ in regular estab-    B
 lishment. Though the work charged establishment is a completely different
 cadre from the regular establishment and the services rendered in the work
 charged establishment could not have been taken into account for deter-
 mination of seniority in the regular establishment but to ameliorate the
 hardships caused in such cases the Government had passed the Resolutions       c
 in question. But when the question of promotion to the post of Sub
 Divisional Engineer arises,. the same is considered from the stalc\vise list
 of Junior Engineers maintained, as the post of Sub-Divisional Engineer is
 a state cadre. This being the position, question of considering the services
 rendered in the work charged establishment by an employee before he is
 absorbed in the regular establishment for the purpose of his seniority does
                                                                                D
 not arise and the two Government Resolutions cannot he held to be
 arbitrary in any manner. The Tribunal, however, on consideration of the
 rival stand of the parties and having come to the conclusion that the
 Resolutions dated 15th of February, 1977 and 19 of March, 1977 of-the
 Government ofMaharashtra in the Public Works and Housing Department            E
 are violative of Article 16(1) of the Constitution, directed that the said
 Resolutions should also apply for drawing the seniority list at the state
 level. The Tribunal, therefore, called upon the State Government lo redraw
 the seniority list of Junior Engineers.

                                                                                F
        ·The learned counsel for the appellant contends that the work
  charged establishment being completely different from the regular estab-
  lishment and employees working under the work charged establishment
  forming a cadre of themselves completely different from the employees
  serving under the regular establishment, the services rendered by such
. employees under the work charged establishment by no stretch of imagina-      G
  tion could be considered for his seniority in the regular establishment and
  in this view of the matter the impugned order of the Tribunal is wholly
  erroneous. The learned counsel further urged that the so called Govern-
  n1ent resolution n1ere1y confers the benefit of counting the services
  rendered in a work charged establishment for the purpose of seniority         H
    506                   SUPREME COURT REPORTS (1996] SUPP. 2 S.C.k.

A within the Circle but the said seniority thus determined is not to be
    reflected in the seniority drawn up at the Stale level and the impugned
    order of the Tribunal is vitiated. The learned counsel for the respondents
    on the other hand contended that even though the Junior Engineers within
    a Circle constitute a cadre but when promotion to the post of Sub-
    Divisional Engineer is made from amongst those Junior Engineers and for
B   th al purpose a Statcwise seniority list of Junior Engineers is maintained, it
    would be wholly unreasonable lo maintain the said list on the basis of their
    absorption in the regular establishment even though by virtue of the
    Resolution of the Government they have already acquired a deemed date
    of absorption in the regular establishment by taking into account their
c   services rendered as work charged establishment. Consequently, it was
    contended that the Tribunal rightly directed to take the Resolution into
    account for drawing up the seniority list of the Junior Engineers in the
    State Gradation List and there is no infirmity with the same. It was also
    contended that an employee after having been absorbed in the cadre of
D   Junior Engineers in regular establishment cannot have two different
    seniority one for the purpose of the circle and the other for the purpose
    of the State Cadre and such determination would be violative of Article 16
    of the Constitution.

          At the outset, it may be slated that a work charged establishment
E means an establishment of which the expenses, including the wages and
  allowances of the staff, are chargeable to "works". The pay and allowances
  of employees who are borne on a work charged establishment are general-
  ly shown as a separate sub-head of the estimated cost of the work. The
  work charged establishment employees are engaged on a temporary basis
F and their appointments are made for the execution of a specified work.
  From the very nature of their employment, their services automatically
  come to an end on the completion of the works for the sole purpose of
  which they are employed. The character and nature of their tenure has
  been fully discussed by this Court in the case of Jaswant Singh and Others,
  Etc. Etc. v. Union of India und Others, {1979] 4 SCC 440. In the service
G jurisprudence Lhe expression 'cadre' means the unit of strength of a service
  or a part of it as determined by the employer. And it is too well settled
  that services rendered by an employee in one cadre cannot be taken into
  account for determining the seniority in another cadre unless by any rules
  of seniority this privilege is conferred. This being the position, ordinarily
H the services rendered by an employee in a work charged establishment is
-
                   STATE v. PURSHOTTAM [PATTANAIK, J.]                     507

    not to be taken into account for his seniority in the regular establishment A
    particularly when the tenure in the work charged establishment is of a
    precarious nature and it automatically ceases after the project is over. The
    '.lormal rule of seniority is the date of entry into the cadre or the position
    obtained in the examination \Vhen appointment is made by any competitive
    examination. Therefore, in the present case ordinarily seniority \Voul<l have B
    been determined on the basis of the date of absorption of the employee in
    the regular establishment, but the State Government itself has passed the
    Resolution deciding a deemed date of absorption of the employees who
    were initially recruited in the charged establishment and later on absorbed
    in the regular establishment. Therefore, the Government itself having
    passed the Resolution determining the deemed date of absorption the said      c
    date has to be taken into account for reckoning senioril y. The Government
    of Maharashtra in the Public Works and Housing Department by its
     Resolutions dated 15th of February, 1977 and 19th of February, 1977
    decided that a Junior Engineer having work charged service to his credit
    should be assigned a "deemed date" which should be one day prior lo the D
    date on which his immediate junior on work charged establishment or from
     open market was appointed on regular temporary establishment in the
    same Circle. This deemed date obviously is the deemed date of absorption
    in the regular establishment and on the basis of that deemed date the
    seniority of the Junior Engineers in the Circle is maintained. It is un~ E
    disputed that the promotion to the post of Sub-Divisional Engineer, which
    is Class II post and is in the Slate Cadre is made from amongst the Junior
     Engineers, The question, therefore, arises for consideration is whether it
    is open for the employer to maintain a seniority list of Junior Engineers of
    different Circles on the basis of their actual date of absorption in regular
    establishment and not on the basis of their deemed date of absorption and
                                                                                   F
    consider promotion on that basis? The answer must be in the negative. The
    promotion lo the post of sub-Divisional Engineer is made according to a
    set of Rules called the Maharashtra Service of Engineers, Class I and Class
    II Cadre Rules. Under Rule 13(c) of the said Rules, appointments to the
    cadre of Sub-Divisional Engineers is made by promotion from amongst G
    Junior Engineer graduates from the Subordinate Service of Engineers.
    Under Rule 15, a person to be eligible for promotion to the post of
    Sub-Divisional Engineer must have rendered 3 years of minimum service
    as .a Junior Engineer. Under Rule 16(a), the promotion to the post of
    Sub-Divisional Engineer is made by a selection from the Slate wise H
    508                    SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A seniority list of Junior Engineers maintained by the irrigation and Power
  Department and Buildings and Communications Department, separately.
  But the Rules is totally silent as to how the State wise seniority list of Junior
  Engineers will be drawn up. In other words, it does not stipulate that the
  State wise seniority list of Junior Engineers will be drawn up on the basis
  of their respective dates of absorption/employment as a Junior Engineer in
B regular establishment or on the basis of the deemed date which is to be
  determined in accordance with the two Government Resolutions, referred
  to earlier. In the absence of any specific provision it would be only
  reasonable to construe that the State wise seniority hst has to be prepared
  on the basis of seniority list already prepared in the Circle indicating the
C respective deemed dates of each such Junior Engineer. The Counsel for
                                                                                      <
  the appellant no doubt is fully justified in raising the contention that the
  two Government Resolutions having been specifically meant for drawing
  up of the seniority list in the Circle, the Tribunal erred in law in directing
  to draw up the seniority list by giving the benefits of those Regulations in
D question. But as has been slated earlier, in the absence of any provision in
  the Recruitment Rules the seniority list of the junior Engineers when is
  prepared under Rule 16(a) for the purpose of giving promotion to the post
  of Sub-Divisional Engineer the same should be made taking into account
  the deemed date of each of the Junior Engineer in the Circle and prepare
  the State wise seniority list.
E
          In the aforesaid circumstances, we would modify the direction given
    by the Tribunal to the effect that the appropriate authority should prepare
    the State wise seniority list of Junior Engineers under rule 16(a) of the
    Maharashtra Service of Engineers, Class I and Class II Cadre Rules by
    taking into account the deemed date of each such Junior Engineer in the
F   respective Circles and not by ignoring the said deemed date which is found
    by applying the two Government Resolutions referred lo earlier. Subject
    to the aforesaid observation the appeal is dismissed, but in the circumstan-
    ces there will be no order as to costs.

    K.K.T.                                                     Appeal dismissed.
                   SH. JAG MOHAN CHAWLA AND ANR.                                     A
                                          v.
•               DERA RADHA SWAMI SATSANG AND ORS.

                                   MAY 7, 1996

               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                                B

          Code of Civil Procedure, 1908 : Order 8, Rules 6-A to 6-G.

          Counter-claim by defendmit--Maintainability of-Need not relate to
    original cause of action-But could be made on an independent and different       C
    cause of action-Even if it accrued after institution of suit-In a suit for
    injunction, counter-claim for injunction in respect of the same or a different
    property, maintainable.

          The appellants-plaintiffs laid a suit for perpetual injunction to
    restrain the respondents from interfering with their possession of the           D
    property. The respondents pleaded in their written statement that they had
    purchased land situated in some other area and were in possession and
    ehjoyment of the said land. They sought counter-claim of permanent in-
    jnnction to testrain the appellants from interfering with their possession
    and enjoyment of the said land. The appellants had filed their replica, i.e.,    E
    additional written statement contemplated under Order 8, Role 6-E, Code
    of Civil procedure, 1908 disputing the averments made by the respondent
    in their counter-claim.. They also pleaded that the counter-claim was not
    maintainable. An application filed by the appellant under Order 8, Rule 6-C
    and Section 151 CPC praying to exclud1ethe counter-claim from the written
    statement was dismissed. The High Court also dismissed the revision peti-        F
    lion with a direction to the trial Court to decide, as an issue, whether
    property in dispute was the same which was the subject matter of the
    counter-claim and to dispose of the suit after recording findings. Being
    aggrieved, the appellants preferred the present appeal.

          On behalfof the appellants it was contended that in a suit for injunc-
                                                                                     G
    tion counter-claim was ·not maintainable and that the direction issued by
    the High Court to identify the land to which the counter-claim related and
    was referable to the property in dispute was also not consistent.

          Dismissing the appeal, this Court                                          H
                                       509