R.M. Sahai, J. - (1.) Seniority, the perennial irritant, amongst services comprising of directs and promotees, has been journeying through higher courts every now and then ; the most frequent visitor being the engineering services of the country - Central or State. But no single service of any State has to its credit like engineering service of U. P. Public Works Department, at least three Supreme Court decisions and span of decades with finality of seniority list of Assistant Engineers, the basic cadre of the service, still under-challenge. Although much of the distance was covered in between Bhuleshwar Das v. State, AIR 1981 SC 42 and P. D. Agarwal v. State, 1987 SC 1646 : 1987 UPLBEC 624 (SC) yet fresh route of attack was attempted to be carved out by those Assistant Engineers who were appointed, initially, as ad hoc but selected latter by Public Service Commission, primarily, for violation of quota prescribed for the two sources of recruitment, namely, those selected from Commission and described as 'D' and others promoted from subordinate service 'P' or appointed temporarily as ad hoc etc. and failure to rotate them in accordance with law. Even 'D' were not spared and grievance was made for assigning seniority not on merit but working or date of joining.
(2.) Even though submissions were long wielded and vast expanse was attempted to be covered, but the legal issued raised against 'P' and 'D', or own batch, can be reduced to as to whether the principle of relating back 'P' to the year of vacancy for which the Commission approved them could be a rationale or legal jugglery be made applicable to direct selectees. And whether the merit placement by Commission, adhered normally by the department and departed exceptionally, could be disturbed in favour of those who were working from before as ad hoc either on equity and fairness that in serving the department they lost their energy and strength as compared to freshers but gained in efficiency and experience or because their date of entering into service was prior to those selected with them or they were entitled at least to benefit of working from the date they were selected as against those who joined latter after medical etc. To put it factually could the petitioners, who were appointed as ad hoc Assistant Engineers in 1972 and 1976 but were selected by Public Service Commission in competitive examination held in 1978, claim that their seniority should be reckoned over promotees working as such, from 1970 onwards but approved by Commission in 1980 by applying the principle of relate back and allotting the year for which approval should be deemed to have been granted. In nutshell the claim against 'P' was that either reckon seniority of both 'D' and 'P' from the date one was appointed and other approved or ignore ad hoc of both. And if one is related back to year of vacancy then apply the .same yardstick. For batch mate the basic premise was founded on date of announcement of selection in September, 1978 and their actual working from before whereas joining of freshers from 1979.
(3.) Relating back to the year of vacancy is a concept in service law associated with promotees as they are promoted temporary, officiating or ad hoc subject to approval by the departmental selection committee or the Commission as the case may be, and once they are approved which may take time for various reasons it is related back to avoid any prejudice in a service where recruitment is from two sources direct and by promotion. For instance an officer is promoted in 1970 but his papers for approval are placed before Commission due to procedural delay or other reason in '980 or the departmental selection committee does not meet till 1980 and he is approved in that year when truly speaking his papers should have been placed before the appropriate authority in same year and the approval should have been granted or refused in that very year. How to bridge this gap ? Not by ignoring the service rendered but by being just and fair as that injustice may not take place to those who may suffer not for any fault of their but because of procedural delay either in the department or the authority empowered to grant approval. That is why the principle of relating back promotees to the year of vacancy has received approval of courts. In effect by fiction it is deemed that the officer stood approved on the date it was due. That is, from the date vacancy arose and the officer was found suitable. Otherwise a direct appointee who enters into service much latter may become senior over a promotee who was appointed much earlier and was fit to be approved. In G. P. Dovel v. State, AIR 1984 SC 1547, it was held that if a rule for determining seniority provided continuous officiation or date of first appointment followed by confirmation, then once confirmation is made and the service till then is uninterrupted it relates back to the date of the order of first appointment. In Delhi Water Supply and Sewage Disposal Committee v. R. K. Kashyap, AIR 1989 SC 278, even ad hoc appointment made after considering eligible candidates resulting in regularisation was held to be within length of service for determining seniority. Concept of including period of continuous officiation based on rule, and in absence of rule on general principle proceeds on fairness of including the period during which the officer served without any flaw and reckon him senior over those who came in service latter.;