DEVKI NANDAN SHANT Vs. STATE OF HARYANA

JUDGEMENT

(1.) This case raises a seemingly unending dispute of seniority between a promotee and a direct recruit. This time, the dispute has been raised by the promotees regarding their seniority, vis-a-vis Shri MX. Gupta, a direct recruit, who are all members of Haryana Service of Engineers, Class I, Irrigation Department. Facts leading to the filing of the present writ petition may now be noticed. The petitioners were recruited in the erstwhile State of Punjab as Temporary Engineers in the Irrigation Department (Class II Post) on various dates between the years 1961 to 1963. On the re-organisation of the State of Punjab on Ist November. 1966, petitioners were allocated to the successor State of Haryana. The next avenue for promotion for Temporary Engineers is to the Senior Scale Class 1 Post of Executive Engineer. The promotion to Class I Service and the conditions of service of the members of the Class I service are governed by the Statutory Rules, called the Punjab Sendee of Engineers, Class-I, P.W.D. (Irrigation Branch) Rules, 1964, as applicable to the State of Haryana (hereinafter these rules would be referred to as the Rules). Petitioners Nos. 1 to 4 were promoted as officiating Executive Engineers in October 1971, petitioners Nos. 5 to 9 were as promoted between 7th February, 1972 to 17th April, 1972 and rest of the petitioners were promoted as such on 27lh November, 1973. The petitioners were confirmed as Executive Engineers by the order issued in the year 1982, vide which some of the petitioners were confirmed with effect from Ist January, 1975 and the others with effect from Ist January, 1976. It may be observed here that under Rule 5 of the Rules, recruitment to Class I Service is by three methods; (a) by direct appointment, (b) by transfer of an officer already in Class I Service of the Government of India or of a State Government and (c) by promotion from Class II Service. A person is directly recruited as an Assistant Executive, which is a Class I post and is eligible for consideration for promotion to the rank of Executive Engineer after he has rendered five years' service as an Assistant Executive Engineer, as per Rule 9(3)(a) of the Rules; whereas a member of the Class II service who works as an Assistant Engineer is to have 8 years' service in Class II as Assistant Engineer before he can be considered for promotion to the rank of Executive Engineer under Rule 6(b) of the Rules.

(2.) Respondent No. 2, Shri M.L. Gupta, is a direct recruit to Class I Service as an Assistant Executive Engineer-Class I Junior Scale. He was recruited as such as 28th July, 1971. He was promoted as Officiating Executive Engineer on 17th September, 1976. To appreciate the controversy, which has been raised in the present writ petition, it would be appropriate at this stage to notice some of the provisions of the Rules. Rule 2(1) of the Rules defines 'appointment to the service', Rule 2(12) defines the 'Member of the Service'; whereas Rule 2(14) defines the 'Service', for ready reference, these Rules are quoted below :-

(3.) It is this order of the Secretary to Government, Haryana, dated 23rd July, 1987, copy of which has been attached as Annexure P-6 to the writ petition, that has been challenged by the petitioners in the present writ petition. The learned counsel for the petitioners submitted that the petitioners had become the members of the Service under rule 2(12)(c) of the Rules moment they were appointed on probation and in any case under the said Rule they had become the members of the Service on successful completion of the period of probation and were awaiting appointment to a cadre post. He further submitted that even if the worst case was to be taken against the petitioners even then they had become the members of the Service when the order of confirmation was passed in the year 1982, confirming them with effect from some dates in the year 1975 and 1976. At that time, respondent Shri M.L. Gupta had not even started officiating as Executive Engineer and was still working as Executive Engineer. On becoming the members of the Service, they were entitled to assignment of a year of allotment under Rule 12 of the Rules and under Rules 12(6), moment the petitioners became members of the Class I Service, they would get the same year of allotment as of the Junior-most member in the service whether officiating or confirmed as Executive Engineer. Admittedly, when the petitioners had become the members of the Service, one Shri Vithal Ram was the junior-most officiating Executive Engineer, who had year 1970 as the year of allotment, and, consequently, the petitioners' counsel submitted that all the petitioners were entitled to 1970 as the year of allotment. It was further argued by the learned counsel for the petitioners that Rule 2(12)(a) of the Rules is exactly similar to Rule 2(12) of the Building & Roads Branch Rules. However, in the Building & Roads Branch Rules, there is no parallel rule to Rule 2(12)(c) of the Rules. In a case before the Supreme Court, reported as A.N. Sehgal and others vs. Raja Ram Sheoram and others, 1991 AIR(SC) 1406Supreme Court, while interpreting Rule 2(12)(a) of the Buildings and Roads Rules, came to the conclusion that a direci recruit even if he is appointed to an ex-cadre post, would be deemed to be a member of the service as on successfully completion of the period of probation, a direct recruit awaits appointment to the cadre post, and, consequently, would be a member under second part of Rule 2(12)(a) of the Buildings and Roads Rules. The learned counsel submitted that on parity of reasoning in A.N. Seagal's case , a promotee would be a member of the service under Rule 2(12)(c) of the Rules, even if he is appointed to an ex-cadre post, but on successful completion of the probation period, awaits appointment. To buttress his argument, he submitted that under Rule 11 of the Rules, a period spent on ex-cadre post is reckoned towards period of probation. He submitted that appointment to an ex-cadre post is an appointment to the service under Rule 2(1) of the Rules and under Rule 2(12)(c) of the Rules, the petitioners would be members of the service on being out on probation or in any case on successfully completing the period of probation, when they would awaiting appointments to the cadre posts. The learned counsel for the private respondent-Shri M.L. Gupta, however, submitted that if the appointment of the petitioners by way of promotion to the posts of Executive Engineers was beyond their quota then they would not become the members of the service till a post is available in their own quota. According to the learned counsel, the petitioners when appointed as Executive Engineers, were beyond their quota as envisaged by Rule 5(2) of the Rules. The learned counsel submitted that if a person is appointed beyond his quota, such service which is rendered on a post beyond the quota is just fortuitous and cannot be considered for any purpose. Learned counsel further submitted that the confirmations of the petitioners in 1982 with effect from 1975/1976 were beyond the quota of promotees as there were no posts available for them. The learned counsel for the petitioners submitted that in fact the petitioners had become members of the service on their initial appointment as Executive Engineers under Rule 2(12)(c) of the Rules, but he submitted that in any case, they would be held to be in their quota then they were confirmed in the year 1982 with effect from (he years 1975-76 and it would be too late in the day to allow the respondents to raise a point that the petitioners' confirmation was beyond their quota in the years 1975-76. After hearing the learned counsel for the parties, I am of the view that there is considerable force in the arguments of the learned counsel for the petitioners. In view of the decision of the Supreme Court in A.N. Sehgal's case , the petitioners would be deemed to be the members of the service under Rule 2(12)(c) of the Rules, ever if it is held that their initial appointment was beyond their quota. If under Rule 2( 12)(a) of the Building and Roads Rules (which is equivalent to Rule 202)(a) of the present Rules), a direct recruit even though appointed on ex-cadre post can be member of the service, then on the same parity of reasoning, a promotee under Rule 2(12)(c) of the Rules (which Rule is not there in the Buildings & Roads Rules) would be member of the service even though appointed on an ex-cadre post. In any case, petitioners were confirmed with effect from the years 1975-76, which would mean that they were within their quota from those dates and, therefore, would be members of the service from such dates in the years 1975-76. The respondent cannot be permuted at this stage now to say or challenge that the confirmation of the petitioners with effect from 1975-76 as Executive Engineers was beyond their quota. It may be observed here that in a writ petition filed by respondent M.L. Gupta (C.W.P. No. 6812 of 1986), in which he had also challenged the seniority of some of the Executive Engineers (the same seniority list which is challenged in the present case), I have held that Shri M.L. Gupta cannot be allowed to challenge the confirmation at such a belated stage Consequently, once it is held that the petitioners were the members of the service at the latest with effect from the years 1975/1976, then they were entitled under Rule 12(6) of the Rules, to the same year of allotment as that of the junior-most Executive Engineer, officiating or confirmed. Admittedly, Shri Vithal Ram was the one, who was the junior-most Executive Engineer at that time, who had the year 1970 as the year of al lotment. So the petitioners would be entitled to the same year of allotment, i.e. 1970. The reasoning adopted in the impugned order (Annexure P-6) that the persons who started officiating as Executive Engineer after the appointment of Respondent No. 2 as Assistant Executive Engineer, would rank junior to him and the others who had started officiating as Executive Engineers prior to the appointment of Respondent No. 2 as Assistant Executive Engineer, would rank senior to him, is on the face of it fallacious and against the rules. The moment a person becomes a member of the service, he is entitled to assignment of year of allotment. As already observed, the petitioners are entitled to 1970 as the year of allotment and since Respondent No. 2 has year of allotment 1971, ail the petitioners would rank senior to him.