D.N. AGRAWAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THE two Appellants in this case had joined the service in the Public Works Department of the Respondent -Madhya Pradesh State, as Overseers. They were thereafter appointed as Junior Engineers by direct recruitment -Appellant 1 on August 29, 1969 and Appellant 2 on September 12, 1969. Although the High Court in its impugned judgment has stated that they were promoted as Junior Engineers from the posts of Overseers, it appears that statement is not correct since their orders of appointment to the post of Junior Engineer which are Annexures P -1 and P -2 to the writ petition filed in the High Court show that their appointments as Junior Engineers were not by way of promotion. This, however, makes no difference to the issues involved in the present appeal. We have stated it to keep the record straight, The grievance of the Appellants is with regard to their seniority in the next promotional post, viz., that of Assistant Engineer. The Recruitment Rules which govern the said promotional post are known as Madhya Pradesh P. W. D. (Gazetted) Recruitment Rules, 1969 (hereinafter referred to as the 'Rules'). According to these rules, Junior Engineers, Overseers, Head Draftsmen and Draftsmen are eligible to be considered for promotion to the post of Assistant Engineer on their securing requisite experience. Each of these categories further has a fixed quota of its own. The Departmental Promotion Committee. DPC to be short, whose constitution is also prescribed in these rules, is required to consider the names of all the eligible candidates on merits; and judge their suitability in all respects on merit -cum -seniority basis. The DPC is also required to arrange the names of all the selected candidates ordinarily in the order of their seniority unless a junior is exceptionally meritorious in which case, of course, he is a given a higher number in the selection list. This list is then sent through the State Government to the Public Service Commission for its consideration and approval. The list as approved by the Commission then becomes the select list, and promotions are made from this list in the same order as is arranged in the list.

(2.) HOWEVER , in case of an administrative exigency, the State Government is given power to appoint anyone not included in the said list if the vacancy is not likely to last for more than three months. Under the rules, to be eligible to be considered for promotion to the post of Assistant Engineer, a junior Engineer has to have an experience of two years as Junior Engineer. It appears that the State Government wanted a certain number of Assistant Engineers, but enough number of Junior Engineers with requisite qualifying service were not available at the relevant time. Admittedly, the Appellants were two of such unqualified Junior Engineers since they had not completed their two years' qualified service as Junior Engineers at the relevant time. Hence, taking resort to he Rule of Administrative Exigency contained in the proviso to Rule 19 (1) of the said rules, the government promoted some Junior Engineers including both the Appellants as Assistant Engineers on July 22, 1971 on purely ad hoc basis. In the order appointing them, it was stated as follows: "Since adequate number of Junior Engineers with requisite qualifying service are not available for appointment as Assistant Engineers, and but for these promotions large number of Assistant Engineers' posts would remain vacant adversely affecting the construction work......... These appointments will not be deemed to determine seniority as Assistant Engineers for any purpose whatsoever." It is not disputed that on July 72, 1971 when the Appellants were so appointed as Assistant Engineers on ad hoc basis, Appellant 1 was short of two years' qualifying service period by one month and Appellant 2, by two months. They became qualified on August 22, 1971 and on September 11, 1971 respectively.

(3.) IT appears that while the Appellants continued to act as Assistant Engineers on ad hoc basis, on August 7, 1972, Respondents 40 to 63 were appointed as Assistant Engineers by direct recruitment. Thereafter, on November 22, 1972 Respondents 2 to 39 and the Appellants were selected as Assistant Engineers by the DPC. On the same date, the State Government issued an order of appointment of the Appellants and Respondents 2 to 39 in which Appellant 1 was shown at serial No. 14 and Appellant 2 at serial No. 28. The State Government thereafter prepared a seniority list of Assistant Engineers which reflected the seniority of Appellants as having been appointed on and from November 22, 1972 and as per the ranking given in the said order of November 22, 1972. The Appellants challenged the seniority list before the High Court by a writ petition. Although it appears the Appellants had also joined to the petition those Junior Engineers who were promoted as Assistant Engineers along with the Appellants by the same order and whose seniority in the list had reflected their placemen in the order of appointment, the challenge to the seniority of those Junior Engineers was given up at the time of the arguments before the High Court, and it was confined to the seniority of Respondents 2 to 39 who were Overseers and were selected by the DPC from their own quota as Assistant Engineers along with the Appellants and to the seniority of Respondents 40 to 63 who were appointed by direct recruitment on August 7, 1972 The first challenge common to the seniority of all the Respondents 2 to 63 was based on the contention that the Appellants' ad hoc service as Assistant Engineers from July 22, 1971, when they were promoted on ad hoc basis, to November 22, 1972, on which date they were selected as regular appointees, was not taken into account. The second challenge was confined to the seniority given to Respondents 2 to 39 by giving them a weightage of their experience as Overseers. The High Court negatived both the challenges and dismissed the writ petition. Hence the present appeal.