VIJAYA KUMAR SHROTRIYA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) 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 foundation for the 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.

(2.) On 25th August, 1962, the appellant was appointed on ad hoc basis as Assistant Engineer in the Irrigation Department. In September, 1962, interview was held in the combined services of Uttar Pradesh for the posts of Assistant Engineers in Public Works Department (PWD) Irrigation Department by the U.P. Public Service Commission, the appellant was recommended at Sl. No. 55. In view of this, he was allotted the Public Works Department. On 29th July, 1963, the Public Works Department approved the appellant's appointment and indicated the appellant's merit at Sl. 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, in spite 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 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 1st 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 Irrigation Department to the PWD. By means of Government Order dated 19th October, 1968, it was directed that Assistant Engineers in the Public Works, Irrigation and L.S.G.E. 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 serving service in the Irrigation Department, since after the selection through Public 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 raised when he was promoted as Executive Engineer in 1972, to raise it now after he 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 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 by order dated 20th February, 1993 fixed his seniority at serial No. 319A. 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 v. State of U.P. (1987) 3 SCC 622 held in the matter of inter se dispute, 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 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, in spite 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.

(3.) 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. In spite 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 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 filing of the Writ Petition in the High Court in September, 1993 for quashing the aforesaid order dated 19th August, 1993 and for directions to the respondent to maintain his seniority at Serial No. 319A 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.