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Thursday, July 18, 2013

service matter - weightage= There is a clear distinction between weightage given for years of service rendered by an employee for purposes of promotion and weightage given for years of service rendered by an employee for purposes of seniority in a grade. While the first concerns eligibility for promotion to a higher post, the other concerns seniority for being considered for promotion to a higher post. = we see no occasion for interfering with the view taken by the High Court to the effect that the grant of retrospective seniority to Supervisors on their appointment as Junior Engineers violates Article 14 of the Constitution. The weightage of service given to the Supervisors can be taken advantage of only for the purpose of eligibility for promotion to the post of Assistant Engineer. The weightage cannot be utilized for obtaining retrospective seniority over and above the existing Junior Engineers.- It has been noted therein that the grant of retrospective promotions and seniority was accepted by this Court in four decisions while grant of retrospective seniority was held to be ultra vires in five decisions.- Be that as it may, the pendency of a similar matter before a larger Bench has not prevented this Court from dealing with the issue on merits. Even on earlier occasions, the pendency of the matter before the larger Bench did not prevent this Court from dealing with the issue on merits. Indeed, a few cases including Pawan Pratap Singh were decided even after the issue raised in Asis Kumar Samanta was referred to a larger Bench. We, therefore, do not feel constrained or precluded from taking a view in the matter.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40513
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1712-1713 OF 2002
P. Sudhakar Rao & Ors. …..Appellants
Versus
U. Govinda Rao & Ors. …..Respondents
J U D G M E N T
Madan B. Lokur, J.
1. There is a clear distinction between weightage given for
years of service rendered by an employee for purposes of
promotion and weightage given for years of service rendered by
an employee for purposes of seniority in a grade
While the first
concerns eligibility for promotion to a higher post, 
the other
concerns seniority for being considered for promotion to a higher
post. 
2. To consider the validity of weightage for seniority purposes
and its impact on the seniority of other employees, the following
question has been referred to a larger Bench in these appeals.
C.A. Nos. 1712-1713 of 2002 Page 1 of 42Page 2
The reference order is reported as P. Sudhakar Rao v. U.
Govinda Rao, (2007) 12 SCC 148.
-
“Whether the decision given in Devi Prasad v. Govt. of A.P.
[1980 (Supp) SCC 206] and State of A.P. v. K.S. Muralidhar
[(1992) 2 SCC 241] laid down the correct law or the decision
given in G.S. Venkat Reddy v. Govt. of A.P.[1993 Supp (3)
SCC 425], K. Narayanan v. State of Karnataka [1994 Supp (1)
SCC 44] and State of Gujarat v. C.G. Desai [(1974) 1 SCC
188] laid down the correct proposition of law?”
3. It appears to us that this question ought not to be answered
in the narrow confines in which it is framed, nor should it be
answered on the basis of the limited submission noted in the
reference order relating to
“the validity of the rule by which
retrospective seniority benefit was given to the Junior Engineers
by G.O.Ms No. 54 Irrigation (Service IV-2) dated 15.2.1983.” 
The
question has larger implications and we propose to answer it
keeping the broad canvas in mind. We also propose, in this light,
to answer the question on merits of these appeals, namely,
whether, on appointment as a Junior Engineer, weightage of
service given to a Supervisor can be taken into account for fixing
his seniority as a Junior Engineer, thereby effectively refixing the
seniority with retrospective effect.
C.A. Nos. 1712-1713 of 2002 Page 2 of 42Page 3
Factual background:
4. Initially, the State of Andhra Pradesh had a single
engineering department. This was subsequently broken-up into
several -
departments but we are not concerned with that. What we are
concerned with is that at all material times, engineers in Andhra
Pradesh were either in the Andhra Pradesh Engineering
Subordinate Service or in the Andhra Pradesh Engineering
Service.
5. The Andhra Pradesh Engineering Subordinate Service
consisted, inter alia, of Junior Engineers who possessed a degree
in engineering and Supervisors who possessed a diploma in
engineering. Upon recruitment, both categories of engineers were
placed in the same pay scale but Junior Engineers, by virtue of a
better academic qualification, had a higher starting pay while
Supervisors were placed in the minimum of the pay scale.
Functionally, both had more or less similar duties to perform. A
Supervisor could, while in service, obtain an engineering degree
and if he did so, he would be designated as a Junior Engineer and
given a higher pay in the same pay scale.
C.A. Nos. 1712-1713 of 2002 Page 3 of 42Page 4
6. A Junior Engineer or a Supervisor was eligible for
appointment by transfer as an Assistant Engineer in the Andhra
Pradesh Engineering Service as it existed. This continued to be so
till the Special Rules for the Andhra Pradesh Engineering Service
were promulgated by issuance of G.O.Ms. No. 285 PWD dated
22.2.1967. -
7. With effect from 22.2.1967 the Andhra Pradesh Engineering
Service consisted of five categories of officers, the juniormost
being Category 5 - Assistant Engineer. As mentioned above, a
Junior Engineer or a Supervisor was eligible for appointment by
transfer as an Assistant Engineer in the Andhra Pradesh
Engineering Service. The mode of recruitment was:
(a) By direct recruitment (or)
(b) By recruitment by transfer of
(i) Junior Engineers and Supervisors of the
Andhra Pradesh Engineering Subordinate
Service;
(ii) Draughtsman, Special Grade and
Draughtsman Grade-I of the Andhra Pradesh
Engineering Subordinate Service.
8. Later, by issuance of G.O.Ms No. 1149 dated 5.11.1973 a
sixth category of officers was included in the Andhra Pradesh
C.A. Nos. 1712-1713 of 2002 Page 4 of 42Page 5
Engineering Service, namely, Junior Engineer with effect from
28.2.1972. This was declared a gazetted post. The inclusion of the
post of Junior Engineer in the Andhra Pradesh Engineering Service
resulted in its consequent exclusion from the Andhra Pradesh
Engineering Subordinate Service. The effect of this was that a
separate cadre of Junior Engineers, distinct from erstwhile Junior
Engineers/Supervisors was formed.
-
9. The mode of recruitment for Junior Engineers in the Andhra
Pradesh Engineering Service was now by direct recruitment. This
meant that despite having an engineering degree, Supervisors
were not eligible for appointment as Junior Engineers on transfer.
However, the mode of recruitment for the next higher post of
Assistant Engineer was by way of direct recruitment, by
promotion of a Junior Engineer having not less than 5 years
service in the grade and by transfer of a Supervisor having a
minimum service of 10 years in the grade.
10. To remedy this situation in the case of Supervisors who had
obtained an engineering degree prior to 28.2.1972 the State
Government issued G.O.Ms No. 893 dated 15.6.1972 inserting a
C.A. Nos. 1712-1713 of 2002 Page 5 of 42Page 6
note being Note 2 under Rule 4 of the Andhra Pradesh
Engineering Service Rules. Through this Note, a Supervisor was
given a weightage of 50% of service rendered by him on his
acquiring an engineering degree while in service. The weightage
was subject to a maximum period of 4 years service rendered
prior to acquisition of the degree. The weightage was available as
if the service had been rendered by the Supervisor in the post of
Junior Engineer. The weightage was, therefore, available for
inclusion for appointment to -
the post of Assistant Engineer. However, the weightage was
subject to certain conditions, one of them being that it was
available to only those Supervisors who had obtained a degree
prior to 28.2.1972.
11. Note 2 below Rule 4 (as inserted) in the Andhra Pradesh
Engineering Service Rules reads as follows:
“Supervisors who acquire, while in service, B.E., A.M.I.E.
(India) qualification shall be entitled to count 50% of their
service rendered as Supervisor prior to acquisition of such
qualification, subject to a maximum limit of 4 years as if it
had been in the post of Junior Engineers for the purpose of
consideration for appointment by transfer to the post of
Assistant Engineer from Junior Engineer and subject to the
following conditions:
C.A. Nos. 1712-1713 of 2002 Page 6 of 42Page 7
(1) They should render a minimum service of one year
after acquisition of B.E. or A.M.I.E. (India) qualification:
(2) They should be considered to have been placed
below the list of the Junior Engineers of the year after
giving weightage as indicated above.
(3) They should put in a total service of 5 years as
Junior Engineer inclusive of the period given as
weightage.
(4) The benefit of weightage given above shall be given
effect for the purpose of all selections that are made by
Public Service Commission pertaining to the years from
2nd January, 1968 onwards till 28th February, 1972.”
[Note: Clause (4) was subsequently amended but we
are not concerned with the amendment].
12. The benefit of weightage granted to Supervisors by G.O.Ms
No. 893 dated 15.6.1972 was challenged as being arbitrary, -
unreasonable and violating Article 14 of the Constitution. This
Court rejected the challenge in Devi Prasad and held that the
benefit of weightage was a matter of government policy which
needed no interference since it was not unreasonable or arbitrary.
13. In what appears to be an oblique reference to loss of
promotional chances that Junior Engineers may have to suffer due
to weightage being given to Supervisors this Court observed as
follows:
“Perhaps there is force in the submission of Dr. Chitale that
the Junior Engineers have to face adversity in the matter of
C.A. Nos. 1712-1713 of 2002 Page 7 of 42Page 8
promotions. All that we can do is to emphasise that this
being a matter of government policy, the State will receive
any representation that may be made for change of policy
from the Junior Engineers and consider whether any such
change in the policy is justified in the circumstances of the
case. In so doing, there is no doubt that the other affected
groups will also be heard because administrative fair play is
basic to satisfaction of government servants as a class. We
say no more nor do we indicate that in our view there is any
hardship. We only mean to say that government will remove
hardships if by modification of policy it can achieve this
result. Undoubtedly, in this process, both sides will have to
be heard not as a rule of law but as a part of administrative
fair play.”
14. As mentioned above, the benefit of weightage was available
to only those Supervisors who had obtained an engineering
degree -
before 28.2.1972. There was no provision relating to those who
had obtained a degree post 28.2.1972.
15. Apparently to overcome this anomaly, and as a result of
representations made, the State Government issued G.O.Ms No.
451 dated 10.6.1976 containing a decision that Supervisors who
have acquired a graduate qualification while in service should be
appointed temporarily as Junior Engineers (prospectively) with
immediate effect. This decision was implemented.
C.A. Nos. 1712-1713 of 2002 Page 8 of 42Page 9
16. The implementation of G.O.Ms No. 451 resulted in
consequential orders relating to weightage of service rendered
and the inter se seniority of Supervisors vis-à-vis Junior Engineers.
The consequential orders were issued through G.O.Ms No. 559
dated 18.7.1977. These orders provided as follows:
“2. Accordingly, matters relating to weightage, seniority,
etc., have been examined by the government and the
following orders are issued:—
(i) Supervisors who acquire graduate qualification may be
appointed as Junior Engineers on or after February 28,
1972, subject to the availability of vacancies in the cadre
of Junior Engineers.
They will not be entitled for appointment as Junior
Engineers automatically from the date of acquisition of
degree qualification;
-
(ii) A Supervisor, who is appointed as Junior Engineer, shall
be entitled to count one-third of the service rendered by
him as Supervisor, before his appointment as Junior
Engineer, subject to a maximum of four years, for the
purpose of computing the service as Junior Engineer,
which will render him eligible for consideration for
promotion as Assistant Engineer.
(iii) The seniority of the Supervisors, who are appointed as
Junior Engineers, shall be fixed with reference to the
notional date arrived at after giving weightage of service;
(iv) A Supervisor, who is appointed as Junior Engineer,
shall put in a minimum service of one year as Junior
C.A. Nos. 1712-1713 of 2002 Page 9 of 42Page 10
Engineer to become eligible for promotion as Assistant
Engineer;
(v) No Supervisor shall ordinarily be eligible for
appointment as Junior Engineer unless he has not in a
minimum service of three years as Supervisors. A
Supervisor with less than three years of service, who is
appointed as Junior Engineer for any special reason, shall
not be entitled to any weightage for his past service.
3. Necessary amendment to the Special Rules for the Andhra
Pradesh Engineering Service will be issued separately…….”
17. The interpretation of G.O.Ms No. 559 dated 18.7.1977 came
up for consideration before this Court (through the State
Administrative Tribunal) in Muralidhar. This Court dealt with the
issue of seniority and concluded as follows:
“(i) The weightage of four years in respect of upgraded
Junior Engineers as provided in G.O.Ms. No. 559 has to be
reckoned from the date of appointment and not the date of
their acquiring the degree qualification;
-
(ii) On the basis of that notional date, their inter se
seniority has to be fixed;
(iii) The regularisation of the degree holders Junior
Engineers who passed the SQT by giving retrospective effect
cannot be held to be illegal, and their seniority among
themselves shall be subject to the order of ranking given by
the Public Service Commission on the basis of the SQT;
(iv) The government shall prepare a common seniority list
of the degree holders Junior Engineers and the upgraded
Junior Engineers on the above lines and that list shall be the
basis for all the subsequent promotions. Promotions, if any,
C.A. Nos. 1712-1713 of 2002 Page 10 of 42Page 11
already given shall be reviewed and readjusted in
accordance with the said seniority list; and
(v) The approval of the Public Service Commission in
respect of these appointments and their seniority thus fixed
need not be sought at this distance of time.”
Impugned G.O.Ms No. 54 dated 15.2.1983:
18. As mentioned in G.O.Ms No. 559 dated 18.7.1977 necessary
amendments in the Special Rules for the Andhra Pradesh
Engineering Service were carried out by issuance on 15.2.1983 of
the impugned G.O.Ms No. 54 with effect from 28.2.1972. This
G.O.Ms is significant for three reasons: (i) it had retrospective
operation; (ii) it statutorily regularized recruitment by transfer “of
Supervisors of the Andhra Pradesh Engineering Subordinate
Service who have acquired the B.E. or A.M.I.E. (India) qualification
and who are approved probationers in that category.” and (iii) it
inserted Note -
3 below Rule 4 of the Andhra Pradesh Engineering Service Rules.
This Note dealt with issues of weightage given to the service
rendered by a Supervisor and his/her entitlement to seniority. The
Note reads as follows:
“(3) A Supervisor who is appointed by transfer as Junior Engineer
on or after 28.2.1972 shall be entitled to count l/3rd of the service
C.A. Nos. 1712-1713 of 2002 Page 11 of 42Page 12
rendered as Supervisor before appointment as Junior Engineer
subject to a maximum of 4 years weightage for the purpose of
computing the service as Junior Engineer, which will render
eligible for consideration for promotion as Assistant Engineer, and
subject to the following conditions:-
(i) The seniority of a Supervisor, who is appointed as Junior
Engineer shall be fixed in the category of Junior Engineers with
reference to the notional date arrived at after giving weightage of
service aforesaid;
(ii) A Supervisor who is appointed as Junior Engineer shall put in a
minimum service of one year on duty as Junior Engineer, after
such appointment, and a total service of five years as Junior
Engineer, inclusive of the period given as weightage to become
eligible for promotion as Assistant Engineer;
(iii) No Supervisor shall ordinarily be eligible for appointment as
Junior Engineer, unless he has put in a minimum service of three
years as Supervisor;
(iv) A Supervisor with less than three years of service, who is
appointed as Junior Engineer for any special reasons, shall not be
entitled to any weightage of his past service as Supervisor.”
-
19. Aggrieved by the issuance of G.O.Ms No. 54 dated 15.2.1983
petitions were filed by aggrieved Junior Engineers in the State
Administrative Tribunal questioning its validity. The Tribunal
rendered its decision, which was then challenged in this Court.
This Court remanded the matter for fresh consideration by the
C.A. Nos. 1712-1713 of 2002 Page 12 of 42Page 13
State Administrative Tribunal which then upheld the validity of the
G.O.Ms.
Decision of the Tribunal:
20. In its decision regarding retrospective operation given to the
G.O.Ms the Tribunal held, relying upon a Constitution Bench
decision in B.S. Yadav v. State of Haryana, 1980 Supp SCC
524 that retrospective operation could be given to the G.O.Ms
and that there was no illegality in this regard. It was further held
that the impugned G.O.Ms merely gave statutory recognition to a
situation existing through the executive order contained in G.O.Ms
No. 559 dated 18.7.1977.
21. The Tribunal also upheld the grant of weightage given to
Supervisors who obtained a graduate degree. For arriving at this
conclusion, the Tribunal referred to Devi Prasad which had found
the benefit of weightage to be neither arbitrary nor unreasonable.
A -
reference was also made to Muralidhar in this regard. The
Tribunal rejected the contention that because the post of Junior
Engineer had become a gazetted post in a different cadre, a
Supervisor who subsequently became a Junior Engineer was not
C.A. Nos. 1712-1713 of 2002 Page 13 of 42Page 14
entitled to weightage. It was held that Supervisors and Junior
Engineers continued to perform substantially the same functions
and hold the same responsibilities. Therefore, the mere gazetting
of a post and change of cadre would not make any material
difference to the principle laid down by this Court.
22. On the issue of impacting and disturbing the seniority of
directly recruited Junior Engineers by Supervisors, the Tribunal
initially dealt with the issue rather cursorily and held that the
seniority would get altered and that there would be a certain
amount of fluidity in the seniority of Junior Engineers but that was
no reason to strike down G.O.Ms. However, later in its judgment,
the Tribunal explained that weightage was all along being given to
Supervisors and it is this that caused the fluidity in the seniority
list of Junior Engineers.
-
23. The Tribunal then upheld the validity of the impugned G.O.Ms
and disposed of the petitions pending before it by recording the
following observations:
“(1) The Junior Engineers on acquisition of Degree qualification in
Engineering would be entitled for weightage of those
appointments are made or deemed to have been made under the
C.A. Nos. 1712-1713 of 2002 Page 14 of 42Page 15
Rules providing for such appointments and weightage with
reference to their dates of appointment (not with reference to
acquisition of degree qualification) against a vacancy in the cadre
of Junior Engineer.
(2) The Government is advised to consider fixing a ratio between
direct recruits and those appointees by appointment by transfer
to the post of Junior Engineer (now Assistant Executive Engineer)
to the post of Assistant Engineer (now Deputy Executive
Engineer)”.
Decision of the High Court:
24. Feeling aggrieved by the decision rendered by the Tribunal,
Junior Engineers challenged it in the Andhra Pradesh High Court.
However, the petitioners in the High Court did not challenge the
validity of the entire G.O.Ms No. 54 dated 15.2.1983 but
contended that “the weightage rule should be confined to the
eligibility and the same should not be considered for the purpose
of seniority.” The decision of the High Court is reported as U.
Govinda Rao v. Government of Andhra Pradesh, 2002 (1)
ALD 347 = 2002 (1) ALT 713.
-
25. While adverting to the impact of the benefit of weightage on
the seniority of Junior Engineers, the High Court drew attention to
C.A. Nos. 1712-1713 of 2002 Page 15 of 42Page 16
the averment in one of the cases wherein a chart was drawn of
the notional seniority given to Supervisors. This chart is as
follows:
Sl.No. Name of the
respondent
Year of
passing
Degree
Appointment
as Assistant
Executive
Engineer
(Supervisor)
by transfer
Notional date
as Assistant
Executive
Engineer
(Supervisor)
1. Md.Sirajuddin 1986 7.5.1986 6.5.1982
2. B. Seva 1986 6.5.1986 6.5.1982
3. Ms.
Zinullabuddin
1986 31.7.1986 31.7.1982
4. G.Uppalaiah V.T. 1987 4.10.1987 19.11.1983
5. Venkateshwarlu 1987 4.10.1987 26.2.1984
6. K. Bhaskar 1988 8.9.1988 2.6.1985
7. P. MaheedarRaj 1988 3.3.1989 30.10.1985
8. A. Gopal 1988 31.3.1989 26.10.1985
26. The High Court noted that: (i) the notional date of seniority
of Supervisors was given without any reference to any existing
vacancy; (ii) seniority was given to the Supervisors from a date
when they did not even possess the qualification to hold the post
of -
C.A. Nos. 1712-1713 of 2002 Page 16 of 42Page 17
Junior Engineer, and (iii) regularly appointed Junior Engineers
were being subjected to a loss of seniority at the instance of those
Supervisors who had been regularized subsequently.
27. The High Court then relied upon B.S. Yadav, K.C. Arora v.
State of Haryana, (1984) 3 SCC 281, P.D. Agarwal v. State
of U.P., (1987) 3 SCC 622 and K.V. Subba Rao v.
Government of A.P., (1988) 2 SCC 201 to conclude that the
civil right of seniority of the Junior Engineers could not be taken
away by applying the impugned G.O.Ms retrospectively. Relying
upon Devi Prasad and Muralidhar it was held that weightage of
past service can be given to the Supervisors only from the date of
appointment.
28. In conclusion, it was held that the impugned rule violates
Article 14 and 16 of the Constitution in so far as it takes away the
vested right of seniority of Junior Engineers vis-à-vis Supervisors.
Discussion on the judgments:
29. Feeling aggrieved, Supervisors before the High Court
preferred these appeals. Since the issue of weightage of service
for eligibility purposes was decided in their favour, the principal
grievance (if not the only grievance) raised by them, as noted by
C.A. Nos. 1712-1713 of 2002 Page 17 of 42Page 18
the Bench that earlier heard these appeals is “the validity of the
rule by which -
retrospective seniority benefit was given to the Junior Engineers
by G.O.Ms No. 54 Irrigation (Service IV-2) dated 15.2.1983.”
Indeed, before us also, the only contention related to the issue of
striking down the benefit of retrospective seniority given to the
Supervisors.
30. The question referred to the larger Bench arises in this
context, but as noted above, it has wider implications.
31. Desai is the earliest case mentioned in the reference order
and this concerned the [Gujarat] Engineering Service Rules, 1960.
This case dealt with two classes of employees: (a) those who had
rendered service as officiating or temporary Deputy Engineers
prior to their direct recruitment as Deputy Engineers, and (b)
those promotee Deputy Engineers who had rendered service as
officiating or temporary Deputy Engineers prior to their
promotion.
32. The case of the category (a) employees was that their ‘pre
direct recruitment’ services should be counted as ‘eligibility
service’ for purposes of their next promotion as Executive
C.A. Nos. 1712-1713 of 2002 Page 18 of 42Page 19
Engineers since the ‘pre-promotion’ services of category (b) was
being so counted. In other words, without the word ‘weightage’
having actually been used, the category (a) employees wanted
some weightage to be given to their ‘pre direct recruitment’
services. This Court found no basis -
for such an interpretation of the relevant recruitment rules. This
Court also found that the directly recruited Deputy Engineers
were not discriminated against vis-à-vis promotee Deputy
Engineers in this regard since they fell in two distinct groups or
classes having a rational basis. Consequently, there was no
violation of Article 14 or Article 16 of the Constitution.
33. The following two paragraphs from the judgment of this
Court give the essence of the view of this Court:
“If a person, like any of the respondents, to avoid the
long tortuous wait leaves his position in the “never-ending”
queue of temporary/ officiating Deputy Engineers etc.
looking for promotion, and takes a short cut through the
direct channel, to Class II Service, he gives up once for all,
the advantages and disadvantages that go with the channel
of promotion and accepts all the handicaps and benefits
which attach to the group of direct recruits. He cannot, after
his direct recruitment claim the benefit of his pre-selection
service and thus have the best of both the worlds. It is wellsettled that so long as the classification is reasonable and
the persons falling in the same class are treated alike, there
C.A. Nos. 1712-1713 of 2002 Page 19 of 42
can be no question of violation of the constitutional
guarantee of equal treatment.
“As pointed out by this Court in Ganga Ram case [(1970
1 SCC 377] in applying the wide language of Articles 14 and
16 to concrete cases, doctrinaire approach should be
avoided and the matter considered in a practical way. If the
claim of the respondents to the counting of their preselection service is conceded, it will create serious
complications in running the administration; it will result in
inequality of treatment rather than in removing it. If the preselection service as officiating Deputy Engineers of direct
recruits having such service, is -
taken into account for the purpose of promotion, it
would create two classes amongst, the same group and
result in discrimination against those direct recruits who had
no such pre-selection service to their credit.”
34. The next decision in line is Devi Prasad which relates to the
Andhra Pradesh Engineering Subordinate Service Rules and is,
therefore, important for our purposes. This decision came to be
rendered as a result of the issuance of G.O.Ms. No. 893 dated
15.6.1972 relating to Supervisors in the Andhra Pradesh
Engineering Subordinate Service. By the said G.O.Ms. a note
being Note 2 was inserted under Rule 4 of the Andhra Pradesh
Engineering Service Rules.
35. Thereby a Supervisor working as a Junior Engineer was given
a weightage of 50% of service rendered by him. This was treated
as if the said Supervisor/Junior Engineer had rendered service in
C.A. Nos. 1712-1713 of 2002 Page 20 of 42
the post of Junior Engineer for the purpose of consideration for
appointment to the post of Assistant Engineer from Junior
Engineer. This G.O.Ms was challenged as being arbitrary,
unreasonable and in violation of Article 14 of the Constitution.
36. As is evident, the effect of weightage was limited to
eligibility for appointment to the post of Assistant Engineer from
Junior -
Engineer – it had no reference to seniority. This Court found that
there was nothing capricious in the “limited benefit of weightage”
being given to Supervisors. This Court also concluded that the
grant of weightage was a matter of government policy which
needed no interference since it was not unreasonable or arbitrary.
37. Considered from this point of view, there is essentially no
conflict between Desai and Devi Prasad. Both cases dealt with
weightage for eligibility purposes and not with any reference to
seniority based on the weightage given. It is true that in Devi
Prasad it is mentioned that Desai was distinguishable. However,
the distinguishing feature did not relate to the rules – both were
statutory – but related to the reasonableness thereof. In Desai
the employees took a short cut to the Class II service via direct
C.A. Nos. 1712-1713 of 2002 Page 21 of 42Page 22
recruitment and thereby gave up “the advantages and
disadvantages that go with the channel of promotion” and
accepted “all the handicaps and benefits which attach to the
group of direct recruits.” This was not so in Devi Prasad where
there was functional parity between Junior Engineers and
Supervisors and the only real difference between the two
categories was the academic superiority of the Junior Engineers.
-
38. The benefit of G.O.Ms No. 893 dated 15.6.1972 was available
to only a limited category of Supervisors, namely those who had
obtained an engineering degree prior to 28.2.1972.
Consequently, in response to representations made, the Andhra
Pradesh Government issued G.O.Ms No. 451 dated 10.6.1976
containing a decision that Supervisors acquiring a graduate
qualification even after 28.2.1972 should be appointed
temporarily as Junior Engineers (prospectively) with immediate
effect.
39. This resulted in consequential orders being G.O.Ms No. 559
dated 18.7.1977 relating to weightage of service rendered and
the inter se seniority of Supervisors vis-à-vis Junior Engineers.
C.A. Nos. 1712-1713 of 2002 Page 22 of 42Page 23
40. The interpretation of G.O.Ms No. 559 dated 18.7.1977 was
considered in Muralidhar. This Court noted in the opening
paragraph of its decision that “The dispute is regarding the inter
se seniority between the Supervisors who are upgraded as Junior
Engineers and the degree holders who are directly appointed as
Junior Engineers.”
41. This Court endorsed the terms of the G.O.Ms without actually
going into the legality thereof. This was apparently because the
issue of seniority had been burning for two decades and this Court
-
wanted to bring a quietus to it. This is clear from the fact that in
its conclusion, this Court bypassed the statutory rules which
required the imprimatur of the Public Service Commission for the
appointments made. While recording its conclusions, this Court
said:
“Having given our careful consideration particularly to
the fact that this litigation has been pending for the last so
many years, about two decades, we feel that it is high time a
finality has to be reached by resolving the controversies and
in this context we are of the view that the approval of the
Public Service Commission in respect of these appointments
need not be sought, if the government has not already
obtained the approval of the Public Service Commission. To
sum up, our conclusions are as under:
C.A. Nos. 1712-1713 of 2002 Page 23 of 42Page 24
(i) The weightage of four years in respect of upgraded
Junior Engineers as provided in G.O.Ms. No. 559 has to be
reckoned from the date of appointment and not the date of
their acquiring the degree qualification;
(ii) On the basis of that notional date, their inter se
seniority has to be fixed;
(iii) The regularisation of the degree holders Junior
Engineers who passed the SQT by giving retrospective effect
cannot be held to be illegal, and their seniority among
themselves shall be subject to the order of ranking given by
the Public Service Commission on the basis of the SQT;
(iv) The government shall prepare a common seniority list
of the degree holders Junior Engineers and the upgraded
Junior Engineers on the above lines and that list shall be the
basis for all the subsequent promotions. Promotions, if any,
already -
given shall be reviewed and readjusted in accordance with
the said seniority list; and
(v) The approval of the Public Service Commission in
respect of these appointments and their seniority thus fixed
need not be sought at this distance of time.”
42. Effectively, therefore, this Court not only accepted weightage
of service for the benefit of Supervisors for eligibility purposes,
but also for purposes of seniority by accepting the concept of a
notional date for such a determination. As mentioned above, this
Court did not consider the legality of the seniority of Supervisors
based on weightage vis-à-vis Junior Engineers.
C.A. Nos. 1712-1713 of 2002 Page 24 of 42
43. Venkat Reddy was decided on its own peculiar facts and to
deal with a specific situation. As mentioned in the beginning of
the judgment, the controversy “ relates to the determination of
seniority between the appellants who entered service in the
various engineering departments of the State initially as
Supervisors and who on acquiring a degree in engineering were
redesignated Junior Engineers and those graduate Junior
Engineers who were temporarily appointed on ad hoc basis under
Rule 10(a)(i)(1) of the Andhra Pradesh State and Subordinate
Service Rules and whose -
services were later regularised under GOMs No. 647 dated
September 14, 1979.”
44. Venkat Reddy concerned itself with the seniority of a
limited class of Junior Engineers who were appointed temporarily
on an ad hoc basis and subsequently regularized. The case
centred round the interpretation of the latter part of clause (ii)(a)
of G.O.Ms No. 647 dated 14.9.1979 containing the words “should
be regularised from the next date following the date on which the
last regular appointment in that category was made in the unit
concerned”. The relevant portion of the G.O.Ms reads as follows:
C.A. Nos. 1712-1713 of 2002 Page 25 of 42Page 26
“(i) the services of all temporary Government employees
who were appointed by direct recruitment to any category or
post and are continuing in service as on August 9, 1979
should be regularised without subjecting them to any test
written or oral;
(ii)(a) the services of all temporary employees in all
categories, other than LDCs, Typists and Steno-typists, in the
Offices of the Heads of Departments and Junior Assistants,
Typists and Steno-typists in the Secretariat, should be
regularised from the next date following the date on which
the last regular appointment in that category was made in
the unit concerned or from the date of temporary
appointment whichever is later;”
45. The controversy arose due to a ban on the recruitment of
Junior Engineers through the Public Service Commission in Andhra
Pradesh. To sidestep the ban, Junior Engineers were recruited on a
-
temporary and ad hoc basis under Rule 10(a)(i)(1) of the Andhra
Pradesh State and Subordinate Service Rules (paragraph 2 of the
Report). This rule provides that where it is necessary in the public
interest to emergently fill a vacancy in the post borne on the
cadre of a service, class or category and if the filling of such
vacancy in accordance with the rules is likely to result in undue
delay, the appointing authority may appoint a person temporarily
C.A. Nos. 1712-1713 of 2002 Page 26 of 42Page 27
otherwise than in accordance with the said rules (paragraph 10 of
the Report).
46. In due course of time, the question of the regularization of
these Junior Engineers came up for consideration. The State
Government then lifted the ban on recruitment and decided to
regularize the services of the temporary and ad hoc Junior
Engineers after subjecting them to a Special Qualifying Test (SQT)
conducted by the Public Service Commission.
47. Some temporary and ad hoc Junior Engineers were ineligible
to take the SQT while others were eligible and they did take the
test but did not qualify. It was to accommodate these Junior
Engineers (and others similarly placed) that G.O.Ms No.647 dated
14.9.1979 was issued and it is under these atypical circumstances
that Venkat Reddy was decided and the expression relating to -
regularization “from the next date following the date on which the
last regular appointment in that category was made” occurring in
the said G.O.Ms interpreted. Given these facts, this decision does
not impact on the question that we are concerned with in these
appeals.
C.A. Nos. 1712-1713 of 2002 Page 27 of 42Page 28
48. Narayanan concerned itself with the validity of the
Karnataka Public Works Engineering Department Service
(Recruitment) (Amendment) Rules, 1985. These were challenged
by directly recruited Assistant Engineers, inter alia, for giving
retrospective appointment to diploma holders and seniority even
prior to the date of their eligibility. More specifically, this Court
considered the impact of retrospective operation of an
amendment to the rules made in 1985 with effect from 1976 and
finding no nexus between the appointment and giving
retrospective effect to the appointment, struck down its
retrospective operation. In this context, it was observed:
“The retrospective operation of the impugned rule attempts
to disturb a system which has been existing for more than
twenty years. And that too without any rationale. Absence of
nexus apart no rule can be made retrospectively to operate
unjustly and unfairly against other (sic). In our opinion the
retrospective operation of the rule with effect from January
1, 1976 is discriminatory and violative of Articles 14 and 16.”
49. This Court quoted Note (2) relating to the appointment by
transfer of a Junior Engineer to the post of Assistant Engineer, as
introduced by the impugned amendment. However, it did not deal
with the issue of seniority, apparently since the retrospective
operation of the impugned rule was struck down, which had its
C.A. Nos. 1712-1713 of 2002 Page 28 of 42Page 29
consequential effect. Note (2) as per the impugned amendment
reads as follows:
“2. Amendment of the Schedule: In the Schedule to the
Karnataka Public Works Engineering Department Services
(Recruitment) Rules, 1960, in the entries relating to the
category of posts of ‘Assistant Engineer’ for columns (2) and
(3) the following shall be substituted, namely:
By direct recruitment or by transfer of a Junior Engineer.
For Direct recruitment:
Should be a holder of a degree in Civil Engineering or
Mechanical Engineering depending upon the requirements,
as the case may be or of a Diploma certificate from a
recognised Institute of Engineers that he has passed parts A
and B of the Associate Membership Examination of the
Institute of Engineers or equivalent qualification. Age: Must
not have attained the age of thirty-five years.
For transfer:
Must possess B.E., or AMIE (India) qualification in Civil
Engineering, or Mechanical Engineering.
Note (1) The option of the Junior Engineer shall be
obtained before such transfer within the time stipulated by
the Government.
Note (2) The transfer shall be effective from the date of
graduation subject to the availability of vacancies without
ignoring the inter se seniority among those eligible for such
transfer.”
50. Without discussion, this Court restricted the applicability of
Note (2) and held that it shall be read as providing eligibility only.
C.A. Nos. 1712-1713 of 2002 Page 29 of 42Page 30
51. To sum up, therefore, Desai and Devi Prasad dealt with
issues of granting weightage to a section of employees for the
purposes of eligibility for appointment or promotion. In principle,
this Court did not object to the grant of weightage, provided that
it did not violate Article 14 or Article 16 of the Constitution. The
principle having been settled by this Court, the validity of a
statutory rule or executive order would have to be tested on that
touchstone.
52. Muralidhar endorsed Desai and Devi Prasad on the
principle relating to the grant of weightage for eligibility purposes.
This issue, therefore, is no longer res integra. However,
Muralidhar extended the weightage, sub silentio, to the issue of
seniority as well without examining the legality or validity thereof.
The issue of weightage for seniority was not specifically raised
before this Court -
and it also appears, as mentioned above, that this Court wanted
to bring a quietus to litigation pending for about two decades on
the issue. That the expectation of this Court was belied is clear
from the fact that another two decades have gone by and we are
still grappling with this issue.
C.A. Nos. 1712-1713 of 2002 Page 30 of 42
53. Venkat Reddy was decided in the context of a specific
situation and did not lay down any general principle for
application either confirming or contradicting the principles laid
down in Desai, Devi Prasad or Muralidhar.
54. Narayanan also did not concern itself with the validity of
weightage of service for appointment or promotion nor did it
concern itself with any issue of seniority. It was confined merely to
the retrospective operation of a statutory rule, which it struck
down with consequential effect.
55. Where does this leave us in so far as the decisions
mentioned in the reference order are concerned? On the question
of weightage of service for appointment or promotion the issue is
now well settled. However, on the question of weightage of
service for seniority, the issue is still open since the judgments in
the reference -
deal with different and, in some cases, specific or limited issues.
Hence this reference.
56. The problem as we see it is that somewhere down the line,
the issue came to be limited to the Andhra Pradesh Engineering
Service. In our opinion, the reference concerns a much larger
C.A. Nos. 1712-1713 of 2002 Page 31 of 42Page 32
audience and we propose to answer it in that light and not in the
limited context of the submission made relating to the validity of
the rule by which retrospective seniority benefit was given to the
Junior Engineers by G.O.Ms No. 54 dated 15.2.1983.
Answering the questions:
57. As far as the impact of the retrospective operation of the
executive instructions or statutory rules on the seniority of
employees is concerned (including the Junior Engineers before
us), this issue is now settled by a few recent decisions of this
Court. There is no doubt that retrospective operation can be given
to statutory rules such as the Andhra Pradesh Engineering Service
Rules. But, the retroactivity must still meet the test of Article 14
and Article 16 of the Constitution and must not adversely trench
upon the entitlement of seniority of others.
-
58. Without intending to multiply precedents on this subject,
reference may be made to a decision rendered by this Court more
than two decades ago. In State of Bihar v. Akhouri Sachindra
Nath, 1991 Supp (1) SCC 334 it was held that retrospective
seniority cannot be given to an employee from a date when he
C.A. Nos. 1712-1713 of 2002 Page 32 of 42Page 33
was not even born in the cadre. So also, seniority cannot be given
with retrospective effect so as to adversely affect others. Seniority
amongst members of the same grade must be counted from the
date of their initial entry into the grade. It was held:
“In the instant case, the promotee respondents 6 to 23 were
not born in the cadre of Assistant Engineer in the Bihar
Engineering Service, Class II at the time when respondents 1
to 5 were directly recruited to the post of Assistant Engineer
and as such they cannot be given seniority in the service of
Assistant Engineers over respondents 1 to 5. It is well settled
that no person can be promoted with retrospective effect
from a date when he was not born in the cadre so as to
adversely affect others. It is well settled by several decisions
of this Court that amongst members of the same grade
seniority is reckoned from the date of their initial entry into
the service. In other words, seniority inter se amongst the
Assistant Engineers in Bihar Engineering Service, Class II will
be considered from the date of the length of service
rendered as Assistant Engineers. This being the position in
law respondents 6 to 23 cannot be made senior to
respondents 1 to 5 by the impugned government orders as
they entered into the said service by promotion after
respondents 1 to 5 were directly recruited in the quota of
direct recruits. The judgment of the High Court quashing the
impugned government orders made in Annexures 8, 9 and
10 is unexceptionable.”
59. This decision was cited with approval, a few years ago, along
with the decision rendered in Keshav Chandra Joshi v. Union
of India, 1992 Supp (1) SCC 272. This Court held that when a
quota is provided for, then the seniority of the employee would be
C.A. Nos. 1712-1713 of 2002 Page 33 of 42Page 34
reckoned from the date when the vacancy arises in his/her quota
and not from any anterior date of promotion or subsequent date
of confirmation. It was observed that injustice ought not to be
done to one set of employees in order to do justice to another set.
It was said in Uttaranchal Forest Rangers' Assn. (Direct
Recruit) v. State of U.P., (2006) 10 SCC 346, on referring to
these judgments that:
“We are also of the view that no retrospective promotion or
seniority can be granted from a date when an employee has
not even been borne in the cadre so as to adversely affect
the direct recruits appointed validly in the meantime, as
decided by this Court in Keshav Chandra Joshi v. Union of
India [1992 Supp (1) SCC 272] held that when promotion is
outside the quota, seniority would be reckoned from the date
of the vacancy within the quota rendering the previous
service fortuitous. The previous promotion would be regular
only from the date of the vacancy within the quota and
seniority shall be counted from that date and not from the
date of his earlier promotion or subsequent confirmation. In
order to do justice to the promotees, it would not be proper
to do injustice to the direct recruits……
-
“This Court has consistently held that no retrospective
promotion can be granted nor any seniority can be given on
retrospective basis from a date when an employee has not
even borne in the cadre particularly when this would
adversely affect the direct recruits who have been appointed
validly in the meantime.”
C.A. Nos. 1712-1713 of 2002 Page 34 of 42Page 35
60. However, the mere existence of a vacancy is not enough to
enable an employee to claim seniority. The date of actual
appointment in accordance with the required procedure becomes
important in such a case. This was so held in State of
Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683
[followed in Nani Sha v. State of Arunachal Pradesh, (2007)
15 SCC 406] where it was said:
“Another issue that deserves consideration is whether the
year in which the vacancy accrues can have any relevance
for the purpose of determining the seniority irrespective of
the fact when the persons are recruited. Here the
respondent's contention is that since the vacancy arose in
1995-96 he should be given promotion and seniority from
that year and not from 1999, when his actual appointment
letter was issued by the appellant. This cannot be allowed as
no retrospective effect can be given to the order of
appointment order under the Rules nor is such contention
reasonable to normal parlance. This was the view taken by
this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4
SCC 456].”
61. More recently, and finally, in Pawan Pratap Singh v.
Reevan Singh, (2011) 3 SCC 267 all relevant precedents on
the subject were considered, including the Constitution Bench
decision in -
C.A. Nos. 1712-1713 of 2002 Page 35 of 42Page 36
Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra, (1990) 2 SCC 715 and the legal position
summarized (by Lodha, J.) as follows:
“(i) The effective date of selection has to be understood in
the context of the service rules under which the appointment
is made. It may mean the date on which the process of
selection starts with the issuance of advertisement or the
factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry in a
particular service or the date of substantive appointment is
the safest criterion for fixing seniority inter se between one
officer or the other or between one group of officers and the
other recruited from different sources. Any departure
therefrom in the statutory rules, executive instructions or
otherwise must be consistent with the requirements of
Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from
the backdate and if it is done, it must be based on objective
considerations and on a valid classification and must be
traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant service rules. It is so because seniority cannot be
given on retrospective basis when an employee has not even
been borne in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the
meantime.”
C.A. Nos. 1712-1713 of 2002 Page 36 of 42Page 37
62. In a separate but concurring opinion, Aftab Alam, J. reiterated
the position but referred to some more precedents on the subject.
It was then said:
-
“To the decisions referred to on this point in the main
judgment I may add just one more in Suraj Parkash Gupta v.
State of J&K [(2000) 7 SCC 561]. The decision relates to a
dispute of seniority between direct recruits and promotees
but in that case the Court considered the question of
antedating the date of recruitment on the ground that the
vacancy against which the appointment was made had
arisen long ago. In SCC para 18 of the decision the Court
framed one of the points arising for consideration in the case
as follows: (SCC p. 578)
“18. … (4) Whether the direct recruits could claim a
retrospective date of recruitment from the date on which
the post in direct recruitment was available, even though
the direct recruit was not appointed by that date and was
appointed long thereafter?”
This Court answered the question in the following terms:
(Suraj Parkash Gupta case SCC p. 599, paras 80-81)
“Point 4
Direct recruits cannot claim appointment from the date
of vacancy in quota before their selection
80. We have next to refer to one other contention
raised by the respondent direct recruits. They claimed that
the direct recruitment appointment can be antedated from
the date of occurrence of a vacancy in the direct
recruitment quota, even if on that date the said person
was not directly recruited. It was submitted that if the
promotees occupied the quota belonging to direct recruits
they had to be pushed down, whenever direct recruitment
was made. Once they were so pushed down, even if the
C.A. Nos. 1712-1713 of 2002 Page 37 of 42
direct recruit came later, he should be put in the direct
recruit slot from the date on which such a slot was
available under the direct recruitment quota.
81. This contention, in our view, cannot be accepted.
The reason as to why this argument is wrong is that in
service jurisprudence, a direct recruit can claim seniority
only from the date of his regular appointment. He cannot
claim seniority from a date when he was not borne in the
service. -
This principle is well settled. In N.K. Chauhan v. State of
Gujarat [(1977) 1 SCC 308], Krishna Iyer, J. stated: (SCC p.
325, para 32)
Later direct recruit cannot claim deemed dates of
appointment for seniority with effect from the time when
direct recruitment vacancy arose. Seniority will depend
upon length of service.
Again, in A. Janardhana v. Union of India [(1983) 3 SCC 601]
it was held that a later direct recruit cannot claim seniority
from a date before his birth in the service or when he was in
school or college. Similarly it was pointed out in A.N. Pathak
v. Secy. to the Govt. [(1983) 3 SCC 601] that slots cannot be
kept reserved for [the] direct recruits for retrospective
appointments.”
63. The facts of the appeals before us show that at least some of
the Supervisors were given retrospective seniority on the date
when they were not even eligible for appointment as Junior
Engineers. The precedents referred to above show that this is
impermissible. In addition as pointed out by the High Court, there
is no indication of the vacancy position, that is, whether the
C.A. Nos. 1712-1713 of 2002 Page 38 of 42Page 39
Supervisors could be adjusted in the grade of Junior Engineers
from the date on which they were given notional retrospective
seniority. There is also no indication whether the quota of
vacancies for Supervisors was adhered to as on the date on which
they were given notional retrospective seniority. The case law
suggests that this is an -
important factor to be considered. Finally, it is quite clear that the
grant of retrospective seniority to Supervisors has adversely
impacted on the promotion chances of Junior Engineers by
bringing them down in seniority. This too is impermissible.
64. From the various decisions referred to and from the facts of
the case, it is clear that to pass the scrutiny of Article 14 of the
Constitution, the seniority of Supervisors should be reckoned only
from the date on which they satisfied all the real and objective
procedural requirements of the Andhra Pradesh Engineering
Service Rules and the law laid down by this Court. This has not
happened in the present appeals creating a situation of
unreasonableness and unfairness.
65. It may be mentioned that by the time Muralidhar came to
be decided, the impugned G.O.Ms No. 54 dated 15.2.1983 had
C.A. Nos. 1712-1713 of 2002 Page 39 of 42Page 40
already come into existence. Though this was brought to the
notice of this Court, its validity was neither examined nor
determined. This is the first occasion when the constitutional
validity of the said G.O.Ms has been considered.
-
Conclusion:
66. For the reasons aforesaid, 
we see no occasion for interfering
with the view taken by the High Court to the effect that 
the grant
of retrospective seniority to Supervisors on their appointment as
Junior Engineers violates Article 14 of the Constitution. 
The
weightage of service given to the Supervisors can be taken
advantage of only for the purpose of eligibility for promotion to
the post of Assistant Engineer. 
The weightage cannot be utilized
for obtaining retrospective seniority over and above the existing
Junior Engineers.
67. We may mention that in Asis Kumar Samanta v. State of
West Bengal, (2007) 5 SCC 800, 
the question whether
retrospective promotion or seniority can be granted or not has
C.A. Nos. 1712-1713 of 2002 Page 40 of 42Page 41
been referred by a Bench of two learned Judges to a larger Bench.
It has been noted therein that 
the grant of retrospective
promotions and seniority was accepted by this Court in four
decisions 
while grant of retrospective seniority was held to be
ultra vires in five decisions. 
When these appeals came up for
hearing on 02.5.2013, learned counsel for Asis Kumar Samanta
sought an adjournment to make alternative arrangements since
he could not appear against the - State of West Bengal.
Accordingly, that matter was adjourned beyond the ensuing summer vacations.
68. Be that as it may, the pendency of a similar matter before a
larger Bench has not prevented this Court from dealing with the
issue on merits. 
Even on earlier occasions, the pendency of the
matter before the larger Bench did not prevent this Court from
dealing with the issue on merits. 
Indeed, a few cases including
Pawan Pratap Singh were decided even after the issue raised in
Asis Kumar Samanta was referred to a larger Bench. 
We,
therefore, do not feel constrained or precluded from taking a view
in the matter.
C.A. Nos. 1712-1713 of 2002 Page 41 of 42Page 42
69. The question referred to us is answered accordingly and the
appeals are dismissed, but with no order as to costs.
...…….……………………..J.
(R.M. Lodha)
..…….……………………..J.
(Madan B. Lokur)
..…….……………………..J.
(Kurian Joseph)
New Delhi
July 3, 2013
C.A. Nos. 1712-1713 of 2002 Page 42 of 42

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