Holding

The appellant’s service in the Irrigation Department from 1962 is to be counted for seniority in the Public Works Department, and he is deemed to have been borne in service from the date of his 1962 combined selection.

Summary

V.K. Shrotri was appointed ad hoc as Assistant Engineer in the Uttar Pradesh Irrigation Department in 1962 and was selected in a combined examination for the Public Works Department (PWD) the same year. Although allocated to the PWD, he was not relieved from the Irrigation Department and continued there until he finally joined the PWD after a second selection in 1965. When promoted to Executive Engineer in 1972, his earlier Irrigation service was counted, but for a later promotion to Superintending Engineer the Government excluded that period, relying on the High Court decision in Gokaran Singh. The State Tribunal had allowed his claim, the Government withdrew the order, and the High Court dismissed his writ. The Supreme Court held that the appellant should be deemed to have been borne in service from the 1962 combined selection and that his Irrigation service must be counted for seniority in the PWD. Consequently, the Government’s order and the High Court’s judgment were quashed and the appellant’s seniority fixed accordingly.

Issues considered

Whether service rendered in the Irrigation Department, when the appellant was selected for the PWD but not relieved, should be counted for seniority and promotion in the PWD.
Whether the appellant is deemed to have been borne in service from the date of his 1962 combined selection or only from his actual joining of the PWD in 1965.

Subjects

seniorityinter‑departmental transferservice lawpromotionpublic works departmentirrigation departmentgovernment ordertribunalcombined examination

Judgment

VIJAY KUMAR SHROTRIYA A
v.
STATE OF U.P AND ORS.

FEBRUARY 13, 1998

[K. VENKATASWAMI AND A.P. MISRA, JJ] B
..,..
Service law-Seniority-Employees placed from one Department to
another-Deemed transfer-Period of service rendered in previous
Department-Reckoning for seniority-Uttar Pradesh G.O. No. 822 EBRI
XXIII-PWD dated 19. 10.1968-0.M No. 5060/23-IRRl-l/42/WP/80 dated c
12th July 1982-Applicability of

State of U.P.-PWD and Irrigation Department-Appellant appointment
as Assistant Engineer in Irrigation Department on ad hoc basis-Appeared
in combined test held for Irrigation and Public Works Department-His name
...:.
D
approved for the post ofAssistant Engineer in PWD-But he was not relieved
~
from Irrigation Department due to his requirement in that Department-
Again he was selected and appointed as Assistant Engineer in PWD-While
working in P. WD. he was promoted as Executive Engineer by accepting his
earlier service in Irrigation Department-However he was not considered for
promotion as Superintendent Engineer because his service Irrigation E
Department was not taken into account-Pursuant to direction given by
Tribunal Government decided to take into account his period of service in
Irrigation Department but later retracted-Writ preferred by appellant
dismissed by High Court-Appeal before Supreme Court-Held the appellant
would be treated to have been borne in service on the date when he was
appointed first through combined selection examination and not
F
,,t" subsequently-It would be unjust, to disallow the claim of the appellant
inspite of he being selected and appointed to the P.WD. through 1962
Commission Selection when on no fault of his if he was not being permitted
to join in the Public Works Department-His entire length of service be
reckoned in computing seniority. G
Gokaran Singh v. State of U.P., (W.P. No. 4396 of 1990), decided by
_,f' Allahabad High Court;

P.D. Aggarawa/ & Ors. v. State of U.P. & Ors., [1987] 3 SCC 622, held
applicable. H
883
884 SUPREME COURT REPORTS [1998] l S.C.R.

A Shri Anand Chandra Das v. State of Orissa & Ors. JT(l988) 1 SC 98;
K. Madhavan & Anr. etc. v. Union of India & Ors. etc., (1988) 1 SCR 421
;___
and Abdul Kher v. Chief Justice, Allahabad, (1971) SLR 25, referred to.

CIVIL APPELLATE IDRISDICTION: Civil Appeal No. 12086of1996.

B From the Judgment and Order dated 2. 5. 94 of the Allahabad High Court
in W.P. No. 7514of1993.
'I"
Rakesh Diwedi, Chatanya Siddarth and R.C. Verma for the Appellant.

Ms. Alka Aggarwal, R.K. Singh and R.B. Mishra for the Respondents.
c The following Order of the Court was delivered :

The short question raised is, whether the appellant is entitled to the
benefit of his earlier service rendered in the Irrigation Department for his
promotion and seniority in the Public Works Department (PWD). The
D foundation for tl1e impugned order dated 19th August, 1993, is the decision
of the High Court in Gokaran Singh v. State of U.P., (Writ Petition No, 4396
of 1990), in which the appellant, admittedly, was not a party wherein it was
held that the benefit for the said earlier period was not admissible.

On 25th August, 1962, the appellant was appointed on ad hoc basis as
E Assistant Engineer in the irrigation Department. In September, 1962, interview
was held in tl1e combined services of Uttar Pradesh for the posts of Assistant
Engineers in ·Public Works Department (PWD) Irrigation Department by the
U.P. Public Service Conunission. The appellant was recommended at SI. No.55.
In view of this, he was allotted the Public Works Department. On 29th July,
F 1963, the Public Works Department approved the appellant's appointment and
indicated the appellant's merit at SI. No. 21. On 8th August, 1963, the Chief
Engineer, PWD, issued letter of his appointment. However, the appellant was \.
not relieved by the Irrigation Department, inspite of his consent earlier to join
PWD through a letter dated 10th May, 1963. So, he continued to work in the
Irrigation Department. In 1965, another competitive examination was held by
G the said Commission for substantive permanent vacancies in the Public Works
Department. On 13th September, 1967, the appellant was again selected and
'
appointed through letter dated 23rd November, 1967. On !st January, 1968, the -\..
appellant joined the post of Assistant Engineer in PWD. Subsequently, on
10th October, 1968, appellant's case is, that he was transferred from the
H Irrigation Department to the PWD. By means of Government Order dated 19th
-
.. VK SHROTRIY Av. STATE 885
October, I 968, it was directed that Assistant Engineers in the Public Works, A
Irrigation and LS.GE Departments, who came through competitive examination
-'-
and are working in any of the said Departments, if allocated to any such other
department, they would be deemed to have been transferred from one
department to the other. In June, 1972, the appellant was promoted to the post
of Executive Engineer, PWD. This was only possible by accepting the earlier
service in the Irrigation Department, since after the selection through Public B
Service Commission in the year 1962. Admittedly, this appointment by
promotion was not challenged. It is urged, later when the question of the
appellant's appointment to the post of Superintending Engineer came up for
consideration, his right was ignored on the same basis, viz. absence of
minimum requisite period in the PWD. This issue if at all could have been c
raised when he was promoted as Executive Engineer in 1972. To raise it now
after the being Executive Engineer for twentyone years is neither justifiable
nor valid. It is not in dispute if his service in the Irrigation Department is taken
into consideration, he is qualified for being appointed as such. Aggrieved by
this the appellant filed his Claim Petition before the U.P. Public Service
.... Tribunal. On 22nd June, 1992 the Tribunal allowed the Claim Petition and D
" directed the respondents to consider posting of the appellant as Superintending
Engineer on the basis of the service records as that existed on 1st December,
1962. It also held that the basis of such placement would also be merit list
of 1962 issued by the Public Service Commission and thus the appellant
would be entitled to other consequential benefits. Accordingly, the Government E
by order dated 20th February, 1993 fixed his seniority at serial No. 3 l 9A. It,
however, recorded that this would be subject to the orders of the higher
courts where the matter of finalisation of the principles of seniority is still
pending. As aforesaid, the decision then came in the case of Gokaran Singh
(supra). The High Court in that case with reference to the case of P.D.
Aggarwal & Ors. v. State of UP. & Ors., [1987) 3 SCC 622 held in the matter F
)" of inter se disp\Jte, a claim of seniority by a person could only be from the
date he becomes member of that service. In other words, it would be from the
date one joined the Public Works Department from the Irrigation Department.
In the case of appellant, it would only be when he joined PWD after 1965
selection. Any period prior, would not be admissible. Further.the Government G
itself treated such cases and the appellant's case to be a case of transfer from
_,.
,.. the Irrigation Department to the Public Works Department for valid reason.

- The reason was that for no fault of his, inspite of being selected in 1962 on
account of for a public cause he was not relieved from the Irrigation
Department. Hence, the said period has to be computed.
H
886 SUPREME COURT REPORTS [ 1998] 1 S.C.R.

A The appellant referred to the letters dated 18th June, 1963, of the Chief
Engineer, Irrigation Department and letter dated 15th September, 1963 of the
Joint Secretary to the Government of Uttar Pradesh to bring home his point
that the appellant was not relieved in 1963 from Irrigation Department in
public interest. lnspite of all this, on 19th August, 1993, the appellant was
served with a letter by which the State of U.P. withdrew its earlier decision
B conferring higher seniority to the appellant. On 23rd August, 1993, respondents'
impugned order excluded the appellant from the promotion to the post of .
Superintending Engineer and his junior was promoted. This led to the filling
of the Writ Petition in the High Court in September, 1993 for quashing the 1
aforesaid order dated 19th August, 1993 and for directions to the respondent
C to maintain his seniority at Serial No. 3 l 9A and promote him to the post of
Superintending Engineer. The High Court dismissed the Writ Petition.
Aggrieved by the same, the present appeal is filed by special leave.

We have heard learned counsel for the parties at great length.

D It appears from letter dated 29th July, 1993 from the Deputy Secretary
to Government of Uttar Pradesh to the Chief Engineer, Public Works
Department, that the appellants name was approved for appointment on
temporary basis for the post of Assistant Engineer (Civil) in Public Works
Department as a result of the i&terview held by the Public Service Commission
in August/S~ptember, 1962 and was placed at Serial No. 21. Thereafter by
E means of Office Memorandum dated 8th August, 1963, the appellant was
appointed on the said post with a direction to join the duties by 15th September,
1963. The appellant gave his consent for joining the.Public Works Department.
Thereafter, as aforesaid, the Chief Engineer, Irrigation Department through his
letter date 18th July, 1963, did not relieve the appellant from the Irrigation
F Department in public interest which is also confirmed by a letter from the Joint
Secretary to the Government of Uttar Pradesh dated 15th September. 1992.

It is in this background the question is, once the appellant being
selected through a combined test held both for Irrigation and Public Works
Department in I 962 and not being permitted to join Public Works Department,
G inspite of he having opted, should he be deprived of the services rendered
by him in Irrigation Department for the purpose of computing his eligibility,
seniority and promotion in the Public Works Department. In this regard we
also find G.O. No. 822 EBR/XXIIl-PWD dated 19th October, 1968, which
decided such cases to be of transfer inter se from Irrigation Department to
Public ·Works Department and vice versa of the persons who were recruited
H as Assistant Engineers through combined examinations. By this it was clarified
V.K. SHROTRIYA v. STATE 887
such persons, in case are placed from one department to other, will be deemed A
to have been transferred from one department to the other. It further clarified,
where any difficulty is felt in fixation of their pay in the department to which
they are transferred, that could be resolved under F.R.22 of Finance Hand
Book Volume II Part II to IV. To the latter part, we are not concerned, the
concluding words of this G.0. are:
B
''Since the services of these Assistant Engineers will be deemed to
have been transferred, they would also be entitled to Transfer T.A.,
joining time for the journeys performed by them in connection with
/ their transfer from one department to another."

Thus stand of the Government is absolutely clear and on this basis the c
appellant would be treated to have been transferred from Irrigation Department
to Public Works Department when he was appointed/absorbed in the Public
Works Department on the basis of combined examination held in the year
1965. We also find Office Memorandum No. 5060/23 lrri-1/42/WP/80 dated
12th July, 1982 which reiterated the aforesaid Government policy of counting
-4.
D
the services in the Irrigation Department towards the Public Works Department
:'
it clearly spelled out its policy relying on the decision given earlier by the
High Court in Abdul Kher v. ChiefJustice Allahabad, (1971) SLR, 25 that the
benefit of the service rendered in the erstwhile department can be granted in
case a person is transferred from one department to another. Relevant port
of this Office Memorandum is quoted hereunder:-" E
"As per the provision in the judgment in matters of Abdul Kher v.
Chief Justice Allahabad, (1970) SLR-25, Hon. High Court has held
that benefit in seniority can be given on transfer from one Department
to another Department, if there is no prohibition in the rules and
benefit of past services can be given and cannot be held as unfair. F
r In the present matter, there. is no prohibition in 1936 service rules, but
in Government Order No 23 I.A.-144/64 dated 13.6.1968 provides that
the services rendered by officers in P. W.D., shall be counted in
Irrigation DP.partment after joining and shall draw the same salary as
they were drawing in PWD. After careful consideration as natural
G
justice and legally, it is decided that the benefit of past service of
other department is to be given in seniority fixing.
->- The Tribunal also gave a finding in favour of the appellant that there is no
reason not to follow the seniority as mentioned in the merit list of 1962 made
by the Public Service Commission. H
:
/ -

888 SUPREME COURT REPORTS [1998] 1 S.C.R.

A We find, the appellant in this case could not be faulted as inspite of he
being selected through 1962 combined selection examination and he having
consented was not relieved by the Irrigation Department due to his requirement
in that department. This fact, as stated earlier, is also recorded in Government's
Office Memorandum N0.402 EPOR. 12.3.93. 915/91dated20th February, 1993.
This is also referred in the letter of the Joint Secretary, Government of U.P.,
B Irrigation Department, to the Joint Secretary, Purlic Works Department dated
15th September, 1992. The main reason, to reject the claim by the Government
is the decision of Gokaram Singh (supra) which was also the basis of the
impugned judgment of the High Court viz. relying on P.D. Aggarwal 's case
(supra). This decision merely declares, a claim of seniority could only be from
C the date one is borne in service. But the question still is, as to when did the
appellant enter service or could be said to have been borne in service? If the
appellant could be said to have entered service only on his appointment in
the Public Works Department as a result of combined examination held in
1965, he would be borne in service then. But in case his selection and
appointment in pursuance to the combined selection examination of 1962 is
D accepted this lie would be borne in service then, we find he not being relieved
from the Irrigation Department for public purpose coupled with the policy in
such cases to treat it to be a case of transfer for all this. We unhesitatingly
come to the irresistable conclusion that the appellant would be treated to
have been borne in service on the date when he was appointed through 1962
E combined selection examination and not in 1965 examination. We have already
referred to various letters as also the decision of the Government treating
such placement in the departments inter se to be a case of transfer. The
government throughout, has also treated the appellant to be a case of transfer
from Irrigation Department to Public Works Department. His claim was only
rejected by the Government as aforesaid in view of the decision in the case
F of Gokaran Singh (supra) relying on P.O. Aggarwal (supra), about this we
would be referring later.

We feel that it would be unjust, to disallow the claim of the appellant
inspite of the being selected and appointed to the P.W.D. through 1962
Commission Selection when on no fault of his if he was not being permitted
G to join in the Public Works Department. In Shri Anand Chandra Das v. State
of Orissa & Ors., JT (1988) I S.C.98, on the question of the seniority of the
appellant who had gone on deputation to labour department as Senior Auditor,
it was held, since he never agreed to go on deputation, therefore his seniority
has to be re-fixed by including period in the Revenue Department and thus
H notional promotion to be given.
V.K. SHROTRIYA v. STATE 889
"We find sufficient force in the aforesaid contention of the learned A
counsel appearing for the appellant. That the appellant was appointed
as a Senior Auditor on being duly selected by the Member, Board of
Revenue on 28. l 0.1996 is not disputed. It is also not disputed that his
services were brought over to the Labour Departments on requisition
being made to all the Government Departments and on his name being
sponsored by the Revenue Department. It is no doubt true that the B
Labour Department had indicated that the seniority will be determined
on the basis of the date of joining of the Labour Department itself but
the appellant had no point of time agreed to the said condition and
on the other hand, unequivocally expressed his unwillingness to come
over to the Labour Department by letter dated 6.11.1970 and without C
consideration of the same the Revenue Department relieved him
requiring him to join in the Labour Department. In the aforesaid
premisses we see no justification in ignoring the service rendered by
the appellant as a Senior Auditor under the Revenue Department. The
Tribunal, in our considered opinion, committed an error by directing
that seniority of the appellant in the cadre of SP.nior Auditor will be D
determined by taking his services from the date he joined the Labour
Department. In our considered opinion the services of the appellant
as a Senior Auditor from 28.10.1995 shall be taken into account for
determining his seniority in the cadre of Senior Auditor in the Labour
Department." E
lnK. Madhavan&Anr. etc. v. Unionoflndia& Ors. etc., [1988] I SCR
421, also there was a dispute about seniority and the questions for
consideration were, whether the petitioner's appointment should be treated as
transfer and whether the earlier period spent to be counted towards seniority
r
_, or not. The Court observed: F
"There is not much difference between deputation and transfer. Indeed,
when a deputationist is permanently absorbed in the CBI, he is under
words, deputation may be regarded as a transfer from one government
department to another. It will be against all rules of service
jurisprudence, if a government servant holding a particular post is G
transferred to the same or an equivalent post in another government
department, the period of his service in the post before his transfer
is not taken into consideration in computing his seniority in the
transferred post. The transfer cannot wipe out his length of service
in the post from which he had been transferred."
H
890 SUPREME COURT REPORTS [1998] I S.C.R.

A Regarding the question of length of service for computing seniority,
whether could it be only from the date of his appointment on permanent post
in the year 1965 or will also include the period when he was appointed on
the temporary post in the year 1962, the law is well settled. A person even
appointed 011 a substantive vacancy on a temporary post after due approval
by the Public Service Commission if fulfils all other essential criteria as
B prescribed he shall be deemed to be borne in service from such date of his
appointment. In other words his entire length of service from that date should
be reckoned in computing seniority. This point is well settled and is reasserted
in the aforesaid case of P.O. Aggarwal (supra) itself.

C We further find this question whether the said period to be computed
for the purpose of seniority was a matter which the Government ought to
have considered and we feel must have been considered while appointing him
as Executive Engineer in Public Works Department which was in the year
1972. He suffered from the same disability for the post of Executive Engineer
as is pointed now for the post of Superintending Engineer. But after due
D considerations then after appointing him two decades back, none challenging
it then, to raise it now, has no justiciable reasons to stand. By that time the
policy of the Government was also well known which is evident from the
aforesaid G.O.of 1968. When the question of appointment as Superintending
Engineer came up for consideration in the year 1993 i.e. more than 21 years
E after appellant's appointment as Executive Engineer, we do not find, it was
proper for the Government, to revert back and deprive the appellant by
withdrawing his seniority by excluding the period he worked in the Irrigation
D~partment.

Even otherwise, we find from the record that the Government's own
F stand and its policy accepted the stand of the appellant but the reason for
this change was only in view of the decision of the High Court, as aforesaid,
in the case of Gokaran Singh relying on the case of P.D. Aggarwal. The High.
Court committed wrong by wrong application of the principle of P.D. Aggarwal.
The same is not eroded or violated when the appellants appointment to the
PWD is treated to be by way of transfer from Irrigation Department.
G
The High Court did not properly scrutinize the facts and circumstances
of this case and merely on the basis of the earlier decision of its Court in the
aforesaid Gokaran Singh's case (supra) rejected his claim.

We find that both, the Government's Order dated 19th August, 1993 and
H the impugned order of the High Court are nor sustainable in the eye of law
V.K.SHROTRIYAv. STATE 891
and are hereby quashed. On the facts of this case, we hold that the appellant's A
service in the Irrigation Department since after he was selected and appointed
in 1962 in the PWD through combined services examination, cannot be excluded
for fixing his seniority in the PWD. Hence the period, the appellant worked
in the Irrigation Department, be treated to be valid period for computing his
seniority in the PWD.
B
y·
The respondent Government will now fix the seniority of the appellant
in the light of the above observations and if any person if affected, the
fixation to be made after giving due opportunity to the person concerned.
Consequent promotion and other benefits flowing thereunder will also be
admissible to the appellant. C

In the result, this appeal succeeds and the impugned Government Order
dated 19th August, 1993 and the impugned order of the High Court in the Writ
Petition filed by the appellant are quashed with the aforesaid observations
and directions. Cost on the parties.
D
T.N.A. Appeal allowed.

)-
1