A.N. Verma, J. - (1.) This petition arises out of competitive claims to seniority between the petitioners and the respondents Nos. 3 and 5, namely, Beni Prasad Goel and P.K. Trivedi. The petition was initially filed by Jiya Lal Jain and Jagdish Prasad Gupta. Subsequently, upon an application moved by Jiya Lal Jain the petition was dismissed as withdrawn in so far as Jiya Lal Jain was concerned by an order dated 3-4-1985 of this Court. P. K. Trivedi was not impleaded initially in the petition but subsequently he got himself arrayed as respondent No. 5. There thus remain in the field only Jagdish Prasad Gupta, the petitioner No. 2 and Beni Prasad Goel and R.K. Trivedi.
(2.) The petition is directed against an order dated 14-2-1978 passed by the Tribunal dismissing a reference petition filed by the petitioners under Section 4 of U.P. Public Services Tribunal's Act against an order passed by the State Government dated 31-5-1972 by which Beni Prasad Goel was declared as senior to the petitioners as Executive Engineer (Mechanical) in the Department of Irrigation.
(3.) The controversy raised in this petition is, in my opinion Squarely covered by a decision of the Supreme Court in the case of Baleshwar Das v. State of U.P. and others reported in AIR 1981 SC 41 as well as a Division Bench decision of this Court in writ petition No. 244/ of 1980 connected with a number of other petitions rendered on 14th January 1982. Shortly stated the question that arises for consideration in this petition is whether inter se seniority between the petitioners and the said respondent has to be determined with reference to the date of their appointment to the service or the date or dates on which they were confirmed in their posts as Assistant engineers. The Tribunal has held that inasmuch as Beni Prasad Goel was confirmed as Assistant Engineer prior to the petitioners though appointed to the service on the same date as the latter, he must be deemed to be senior to the petitioners. This opinion of the Tribunal runs directly counter to the ratio in Baleshwar Das's case as well as the consistent view of the Supreme Court expressed in subsequent decisions of their Lordships of the Supreme Court. In Baleshwar Das's case the Supreme Court held that when Engineer are appointed to temporary posts but after the fulfilment of all the tests for regular appointment, including consultation with the Public Service Commission, as here they must be deemed to have been appointed in a substantive capacity. Their Lordships observed that the claim of temporary appointees cannot be rejected on the nomical score of the terminology of the post or the manner in which the appointment may have been characterised. In the present case it is not disputed that the petitioners as well as the aforesaid respondents were all appointed for the first time to the service on 31-5-1954 in accordance with the applicable Rules for regular recruitment to the service after consultation with the Public Service Commission and that both the petitioners were placed in the merit list of selection prepared by the Public Service Commission about the said respondent. However, as it happened, Beni Prasad Goel was confirmed on 10-2-1958 while the petitioners were confirmed on 20-1-1961. In the opinion of the Tribunal for the purpose of determining inter se seniority the petitioners would be deemed to have been appointed in substantive capacity only on 20-1-1961 i.e. after Beni Prasad Goel and consequently, the petitioners must be held to be junior to Beni Prasad Goel. This view, as I shall presently demonstrate, is entirely unsustainable and is in direct conflict with the ratio in Baleshwar Das's case.;