VIJAY SINGH DEORA ETC. ETC.versusSTATE OF RAJASTHAN AND ANR. ETC. ETC.

A                   VUAY SINGH DEORA ETC. ETC.
                                v.
               STATE OF RAJASTHAN AND ANR. ETC. ETC.

                                 OCTOBER 3, 1996
B
              [K. RAMASWAMY AND K. VENKATASWAMI, JJ.]

          Se1Vice Law :

          Rajasthan Engineering Subordinate Se1Vice (Irrigation Branch) Rules,
c 1967:
          Rules 2(1), 6 and 27-lnter se seniority of Junior Engineers called
  Group A Officers, Group B Officers and Group C Officers-Held, seniority
  of Graduate Junior Engineers i.e. Group A Officers, appointed to the posts
D prior to 30.6.1978 should be reckoned from the respective dates of either initial
  appointment on the date availability of substantive vacancy whichever is
  late,.._(Jroup B Officers who were appointed subsequently to 30.6.1978 and
  obtained degree qualifications thereafter would get into the quota prescribed
  for direct recruitment of Graduate Engineers from the respective dates on
  which they obtained degree qualification or on which substantive vacancy
E become available, whichever is later--Seniority of Group C Officers would be
  reckoned either from the actual date of their respective appointment against
  substantive vacancy or from the date when the substantive vacancies became
  available to them whichever occurred later since they were appointed by
  transfer to the Junior Engineers degree holders quota-Eligibility for promo-
F lion of Group A Officers as Assistant Engineers would be detemiined from
   the dates the substantive vacancies became available for them though they
  might have been appointed earlier on temporary basis-Their qualifying ser-
   vice should be counted accordingly-Qualifying se1Vice of Group B Officers
   would be reckoned from their respective dates of coming into substantive
   vacancies-If there is short-fall in qualifying se1Vice1 the balance period be
G taken into consideration from their one third selVice rendered as diploma
   holder Junior Engineers-Seniority of Group C Officers would be reckoned
  from the date of appointment by transfer or from the date of availability of
   substantive vacancy whichever is late~f there is any shortfall in qualifying
   se1Vice1 one third of se1Vice rendered by them as Sub Engineers would be
H taken into account only for making good the balance of qualifying se1Vice--l11
                                          170
                                VS. DEORA v. STATE                            171
     case even one third of service as Sub Engineer was not sufficient as qualifying A
     service, they would not become qualified for promotion.

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 119 of
     1994 Etc.

          From the Judgment and Order dated 4.9.91 of the Rajasthan High            B
     Court in D.B.C.M.P. No. 117 of 19.91 in D.B.C.W.P. No. 1711 of 1989.

           Tapas Ray, Yogeshwar Prasad, M.N. Krishnamani, Sushi! Kr. Jain,
     AP. Dhamija, Aruneshwar Gupta, Pradeep Agrawal, Mrs. Rachna Gupta,
     P.K. Bajaj and S.R. Setia for the appearing parties.                           C
           The following Order of the Court was delivered :

           Delay condoned.

           Leave granted in the special leave petition.
                                                                                    D
           I.As. are allowed.

            These appeals by special leave arises from the judgment of the
     Division Bench of the Rajasthan High Court dated July 29, 1991 made in
     W.P. Nos. 4983/89 and batch. Due to long drawn history of litigation and E
     frequent amendments made to rules, there is lot of confusion in this case.
     But for the purpose of disposal of these appeals, it is not necessary to
     traverse the whole gamut of litigation. Suffice it to state that there are three
     sets of officers in Rajasthan Civil Engineering Subordinate Service (Irriga-
     tion Branch). Graduate Junior Engineers appointed temporarily prior to
                                                                                      F
     June 30, 1978 drawn from the Department of Manpower are called Group A
     officers. Sub-Engineers, who are diploma-holders, were appointed by ad-
     vertisement. Thereafter, they acquired degree of Engineering, either B.E.
     or AM.LE. and are called Group-B Officers. Sub-Engineers with diploma
     who were appointed substantively in the lower cadre, on acquiring degree
     qualifications were appointed by transfer to the cadre of Junior Engineers G
     and they are called Group-C Officers, Rules prescribe 20% of the quota
 -
..   for direct recruitment of Graduate Junior Engineers. Earlier, Junior En-
     gineer Graduates and Junior Engineers Diploma-holders were two distinct
     cadres but later, by amendment dated December 7, 1985, the distinction
     was done away. The question relates to integration and fixation of seniority H
    172                  SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.

A among these three sets of officers for the purpose of promotion to the
    cadre of Assistant Engineers which is the next channel of promotion.

          The Rajasthan Engineering Subordinate Service (Irrigation Branch)
    Rules, 1967 issued under proviso to Article 309 of the Constitution are
    applicable to this service. Group-A and Group-B officers came to be
B   appointed under Rule 27 of the Rules. In other words, they were not
    appointed in accordance with Rule 6 of the Rules. Group-A officers were
    temporarily appointed prior to June 30, 1978 but were fully qualified for
    appointment. Group B and C officers were appointed subsequent to Group
    A officers. Group C officers were appointed by transfer into quota of
C   Graduate Junior Engineers.

          Rule 2(i) defines "substantive appointment" to mean "an appointment·
    made under the provisions of these Rules to a substantive vacancy after
    the selection by any of the methods of recruitment prescribed under these
D   Rules and includes an appointment on probation or as a probationer
    followed by confirmation on the completion of the probationary period".
    Rule 6 prescribes the method of recruitment. It envisages that recruitment
    to the service, after the commencement of the Rules, shall be made by the
    following methods in the proportion as is indicated in Column 3 of the
E   Schedule (a) direct recruitment in accordance with Part IV of the Rules,
    and (b) promotion in accordance with Part I of the Rule. Sub-rule (lA)
    which was br:rnght by amendment dated December 7, 1985 reads as under:

            "(lA) If a Diploma Holder Junior Engineer attains the qualifica-
            tion of B.E. (Civil/Mechanical/Electrical), or AMIE, he shall be
F           entitled on his application and subject to availability of vacancy,
            to be appointed as Junior Engineer (Degree Holder), by transfer
            against the quota of direct recruitment but in that case his seniority
            amongst the Junior Engineers (Degree Holders) shall be deter-
            mined from the date of occurrence of vacancy against which such
G           Junior Engineer has been appointed on the post of Junior Engineer
            (Degree Holder) and one third of his previous experience shall be
            counted as experience on the post of Junior Engineer for the
            purpose of promotion to the next higher post."

H         The crux of the question is integration of the three groups of officers.
                               V.S. DEDRA v. STATE                          173

      What will be the method or procedure for the purpose of determination A
       of inter se seniority? Undoubtedly, the appellant and his companions were
       appointed temporarily under Rule 27 prior to June 30, 1978 and orders do
      indicate that they were appointed subject to the availability of the regularly
      recruited candidates in accordance with the Rules. Admitted position is
      that there was no regular recruitment made by the Chief Engineer in B
      accordance with the Rules under Rule 6(a). The appointments temporarily
      made are now sought to be regularised by a screening committee appointed
      under the Rules in that behalf. Admittedly, the screening committee found
      them eligible for appointment as was done in the year 1984. The question
      is : whether the graduate qualified Engineers appointed temporarily in the C
      initial appointment could be treated to have been substantively appointed
      to the post of Junior Engineers from the date of initial appointment after
      screening? In this behalf, one should not lose sight of the hard reality,
      namely, the Graduate Engineers Group-A officers have been substantively
      discharging the duties of the posts right from the date of their appointment. D
      It is settled rule that a temporary appointee has no right to the post nor
      does he get seniority unless regularly recruited in accordance with the rules
      and seniority would be reckoned from the date of substantive appointment
     when he started discharging the duty of the post. If appointments were
     made de hors the Rules, the entire length of service was required to be
     treated as fortuitous and excluded. If appointments are made after due E
     consideration and according to the procedure, though on temporary basis,
     the seniority would start from the date of appointment. But when recruit-
     ment was temporarily made and appointments are regularised later the
     question would be : from what date their seniority would be reckoned?
     Admittedly, on appointment made prior to 30.6.1978, Group A officers F
     started with 10 advance increments from the inception. Group-B officers
    ·were appointed with diploma qualification and later as Group-A officers
     and acquired degree qualification subsequently. Group-C officers on ac-
     quiring degree qualification were appointed on application by transfer later
     to 30.6.1978. In other words, unqualified became qualified subsequent to G
     the appointment of qualified graduates. The question is : whether Group-A

-    officers, when appointed as per rules were made juniors to Groups B & C
     officers due to delay and !aches on the part of Government in getting them
     screened and appointed regularly? Necessarily, therefore, when they were
     screened by the committee, all those found eligible for confirmation in the H
    174                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A temporary appointments made prior to June 30, 1978, must, of necessity
  and under equity and justice, be construed to have been regularly ap-
  pointed to the post in the above factual backdrop. Since there was no
  recruitment made by the Chief Engineer, the qualified Group A officers
  need to be treated as appointed on regular basis. Otherwise, unqualified
B officers would become senior to the qualified graduates at the inception.
  The Chief Engineer necessarily, therefore, has to find out the following
  method in determining the inter se, seniority of the three groups of officers.
  First, it is to be ascertained as to how many substantive vacancies are
  available within the quota of 20% of the direct recruit Graduate Junior
C Engineers. Seniority of the Graduate Engineers appointed, i.e., Group A
  Officers, to the posts of the Junior Engineer should be reckoned from the
  respective dates on which substantive vacancies were available and Group
  A officers were appointed to those posts. Their seniority reckons from the
  respective dates of either initial appointment or date of availability of
  substantive vacancies, whichever occurs later, i.e., if as on the date of initial
D appointment, there existed substantive vacancy, the seniority should be
  determined from the date of initial appointment or in its absence from the
  date of substantive vacancy.

        The second step should be that the Group-B officers who were
E appointed through selection by advertisement subsequent to June 30, 1978
  and obtained degree qualifications, thereafter would get into the quota
  prescribed for direct recruitment of the Graduate Engineers from the
  respective dates on which they became qualified, i.e., obtained degree
  qualification. Their seniority requires to be determined with reference to
F the date or: which they acquired qualification or on which substantive
  vacancy became available, whichever occurred later. The inter se seniority
  among Group B Officers requires to be determined from the date of their
  acquiring qualification or availability of substantive vacancy of the Group
  B officers since all Group B officers were appointed as diploma-holder
  Junior Engineers subsequent to June 30, 1978. Group C officers also were
G appointed by transfer. Seniority of those who were appointed by transfer
  is required to be determined in the service and they are required to be
  fitted into service either from the actual date of their respective appoint-        .....
  ment against substantive vacancies available from the date when the sub-
  stantive vacancies became available to them whichever occurred later since
H they were appointed, by transfer, to the Junior Engineers degree-holders
                           V.S.OEORAv.STATE                              175
quota in the Subordinate Service (Civil Engineering). The general inter se     A
seniority should be determined according to the above procedure following
the rule of reservation and roster.

        The next question is : what is the inter se seniority for the purpose
 of promotion to the cadre of Assistant Engineers? Since Graduate En-
 gineers were directly appointed substantively from the date when the B
 substantive va~ancies became available to them within the 20% quota, their
 eligibility for promotion as Asstt. Engineer requires to be determined from
 the date the substantive vacancies became available for them though they
 might have been appointed earlier on temporary basis. Their qualifying
 service should be counted accordingly. The qualifying service. of all those   c
 Group-B officers appointed and fitted into the substantive vacancies from
 their respective dates of availability of the substantive vacancies should be
 reckoned from their respective dates of coming into substantive vacancies.
 If there is any short-fall of qualifying service prescribed for the post of the
 Asstt. Engineer, the balance period be taken into consideration from their D
 l/3rd service rendered as diploma- holder Junior Engineers. This should
stop upsetting the general seniority determined in that order as laid down
 earlier. Regarding Group-C officers, their seniority, as stated, is to be
reckoned from the date of the appointment by transfer or from the date
of availability of substantive vacancy, whichever occurred later. In deter- E
mining the qualifying service for promotion as Assistant Engineers if there
is any shortfall, the one-third of the service rendered by them in the post
of Sub-Engineers would be taken into account only for making good the
balance of qualifying service but not the entire l/3rd service to be tagged.
In case even one third of service as Sub-Engineers was not sufficient as
                                                                                 F
qualifying service, they would not become qualified for consideration for
l?romotion. This procedure would do justice to all the three Groups and
no one would jump over the other and would not illegitimately steal a
march over the legitimate right of the other. Otherwise, in effect the
qualified graduates would be pushed downwards and unqualified later
entrants on acquisition of qualification would steal a march over the G
qualified. The High Court was not justified in treating amended Rule
6(1A) with retrospective effect, since admittedly it has been given prospec-
tive operation. The High Court also was not justified in striking down the
latter clause of the rules for computation of one-third service for the
purpose of next higher post.                                                     H
    176                  SUPREME COURTREPORTS [1996) SUPP. 7 S.C.R.
A         The Government is, therefore, directed to determine inter se seniority
    in the light of above law and directions and prepare the seniority list
    accordingly. It would consider their respective claims for promotion to the
    next higher post i.e., Assistant Engineers and onwards accordingly.

          The appeals are accordingly disposed of. The writ petitions in that
B   behalf stand disposed of. No costs.-
                                                                ..
    'R.P.                                                 Appeals disposed pf.