DALSUKHBHAI TRIKAMBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Two groups of Junior Engineers are locked in a dispute pertaining to the validity of a rule of seniority (sought to be introduced years after their entry into the concerned cadre through the same door of selection) whereby seniority is sought to be governed otherwise that with reference to their birth in the cadre. Those recruits who prior to their selection happened to be working on certain Government Projects under the work charged Section (employees whereof are not in regular Govt. service) even if recruited later than others are sought to be treated as senior by giving credit for the preselection service rendered in the workcharged section. The dispute is of vital significance for each group having regard to the fact that their prospects of promotion are directly linked with the rule of seniority which may ultimately emerge. Interpreted one way hundreds of Junior Engineers previously belonging to work charged section of the Public Works Department stand to benefit visa-vis hundreds of their counter-parts who were recruited by the same selection process but who were not employed in the work charged section prior to their recruitment.

(2.) Five Junior Engineers belonging to the temporary establishment in the Subordinate Service of Engineers of Public Works Department have instituted the present petition in order to challenge a Govt. Resolution dated August 1 1978 as per Annexure I whereby administrative instructions have been issued in regard to the fixation of the seniority in the temporary establishment. If these instructions hold the field those direct recruits who were previously employed in the work charged section before their recruitment to the temporary establishment would steal a march visa vis other direct recruits on the establishment having regard to the fact that the past service rendered by the former in the work charged section before they were selected and recruited on the temporary establishment would count for seniority. An illustration would make the point clear. Take the case of a direct recruit selected by the Selection Committee and recruited on the temporary establishment in 1968. If in 1971 i. e. three years after his recruitment a Junior Engineer who was previously working in the work charged establishment got selected and was recruited as a direct recruit to the tempopary establishment he would be entitled to claim seniority visa-vis the direct recruit of 1968 by reason of the fact that his service say for five years in the work charged section before his recruitment on the temporary establishment would count in determining the inter se seniority between the two. The 1968 recruit would of course not get credit for preselection service (if any) rendered by him in a public undertaking or in the private sector whatever be the length of service so rendered by him and whatever be the nature of experience gathered by him. That is why the petitioners have challenged the legality and validity of the impugned resolution as per Annexure 1 by way of the persent petition under Art. 226 of the Constitution of India.

(3.) A reference to Bombay Public Works Department Manual Third Edition-1956 would show that the Subordinate Service of Engineers (S.S.E.) in the then State of Bombay prior to its bifurcation was constituted with effect from November 1 1925 (see paragraphs 14 & 15). The pattern of the service which emerges is as under :- S. S. E. ----------------------------------- Regular service. Irregular service ( Workcharged section ) ------------------------------------------- Temporary establishment Permanent establishment. (direct recruitment from open market including workcharged employees). The temporary establishment was a regular establishment created in order to meet the demand for extra supervision which may arise from time to time as well as to ensure that the Public Works establishments shall be capable of contraction as well as of expansion as demanded by the occasion and in order to ensure that permanent establishments may be supplemented by temporary establishments to such extent as may be necessary (see paragraph 88). Those in the temporary establishment were en titled to be confirmed in due course whereupon they would belong to the permanent establishment. The workcharged establishment as revealed by Paragraph 89 of the Manual was brought into existence in order to meet the requirements of a specific work or of sub-works of a specific project. It was contemplated by the Manual that employees borne on the permanent establishment as also on the temporary establishment could be appointed on specific works or sub-works of specific projects of a workcharged establishment but that in that case their pay etc. would be charged direct to the work. The relevant paragraphs of the Manual require to be quoted for a proper understanding of the nature of their employment :-