- (1.) THIS Special Appeal has been filed by the State of Rajasthan, against the judgment of learned Single Judge dated 21. 9. 1999, allowing the writ petition of the present respondents, who are 5 in number, precisely relying on the judgment of Hon'ble the Supreme Court, in Vijay Singh Deora & Ors. Vs. State of Rajasthan & Anr. , reported in (1997) 3 SCC 118, and holding, that the writ petitioners were initially appointed on ad-hoc basic as Junior Engineers, and were continued in service as degree holder Junior Engineers, till they were regularly selected later on, and during the period of their recruitment as ad-hoc, and till they were regularised in service, there was no break in the service, several persons among the diploma holder Junior Engineers have acquired Engineering Degrees, who were transferred to the seniority list of degree holder Junior Engineers, and that in doing so, an error was committed, and those transferred persons were shown senior to the petitioners, on the ground, that the appointment of the petitioners was ad-hoc, though prior in time. It was found that in Vijay Singh's case, Supreme Court has ordained, that in such circumstances, the degree holder Engineers shall rank senior to the diploma holders, who have come into the cadre as diploma holders and acquired qualification of degree after the date of recruitment of the degree holders, originally so recruited, as they have been recruited prior in point of time. Against this judgment, this appeal came up for admission on 3. 4. 2000, and after hearing the appellant and the caveator, the appeal was dismissed in limine, without notice to other side. THIS order of this Court dated 3. 4. 2000 was challenged by way of SLP before Hon'ble the Supreme Court, and Hon'ble the Supreme Court, vide order dated 6th of February 2001 allowed the appeal of the State. It was held, that the learned Single Judge has decided the writ petition holding that the controversy was covered in Vijay Singh Deora's case, but the learned Single Judge did not consider the effect or validity of Rule 28, which was reproduced and that in Vijay Singh's case applicability, effect or validity of Rule 28, had not been dealt with at all, as in that case, seniority was not fixed on basis of this Rule, and therefore, the question raised was not covered by that decision, rather this aspect raised in the writ petition should have been considered on merits, as such, the order was set aside, and the matter was sent back to the Division Bench, for consideration of appeal on its merits. Accordingly, the appeal has come up now, for hearing before us.
(2.) WE may briefly recapitulate the facts of the case, which are as under: According to the writ petition, the petitioners passed Graduation in Civil Engineering, and after passing such graduation, they got registered their names in the Planning (Men Power) Department, Government of Rajasthan, they were appointed as Junior Engineers in Public Health and Engineering Department in the month of February, 1984 on ad-hoc basis. However, regular selections were made in the month of July 1984 and the names of the petitioners were not included in the select list, therefore, their services were terminated in the month of September 1984. This termination was challenged unsuccessfully by way of writ petition. Be that as it may. The case of the petitioners then is, that thereafter they were again appointed on ad-hoc basis, vide orders dated 20. 5. 1985, 27. 5. 1985 and 28. 6. 1985 respectively, being Annexures-1, 2 and 3. It may be observed that these orders Annex. 1, 2 and 3 have been passed by the Chief Engineer, of the concerned Engineering Department, and recites that names had been obtained from Planning (Men Power) Department, Government of Rajasthan, being registered unemployed civil engineering graduates. It is then alleged, that although vacant posts of Junior Engineers were available with the respondents in the year 1985, but for reasons best known to the respondents, the respondents did not hold regular selections for two years. The petitioners submitted representation, however, after lapse of about two years of ad-hoc appointment, advertisements were issued on 24. 10. 1987 and 7. 10. 1987 inviting applications for regular selection to the post of Junior Engineers. The petitioners applied in response thereto, and were selected by the Selection Committee constituted for appointment, and they were appointed on 22. 6. 1988. It may be observed here, that a controversy precisely starts from this point. It is alleged that this order dated 22. 6. 1988, being Annex. 5, was issued in continuation of the ad- hoc appointment of the petitioners, and they were in continuous service as Junior Engineers, since the date of initial appointment. It is alleged that a provisional seniority list of Junior Engineers (Degree holders) was issued on 13. 12. 1988, being Annex. 6, which did not contain names of the petitioners. Thereupon representation was submitted for inclusion of their names, which was replied, and it was mentioned, that seniority cannot be given to them from the date of initial appointment, as the same was not provided under the Rules. Then yet another provisional seniority list was issued on 14. 6. 1991, Annex. 9. In this list, the petitioners have been assigned seniority from the date of appointment made in the year 1988, and their past service of three years has been given a go-bye in the matter of determination of seniority. The petitioners again submitted objections. Then the final seniority list was issued, being Annex. 11, and therein, the assignment of seniority to the petitioners from 22. 6. 1988 was maintained. It is contended that the service conditions of the petitioners were governed by the provisions of Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967 (hereafter to be referred to as the 'rules'), Rule 6 thereof deals with the matter of recruitment, and proviso 4 to Rule 6 provides, that if a Sub-Engineer (Diploma-holder) attains the qualification required for Junior Engineers (Degree-holder), he shall be entitled, on his application, and subject to availability of vacant post, to be appointed as Junior Engineer by transfer against the quota of direct recruitment, but in that case, his seniority amongst the Junior Engineers shall be counted from the date of occurrence of the vacancy of a post of Junior Engineers, or actual appointment thereto, whichever is later. It is then contended that Rule 9 provides for year-wise determination of vacancies, and the vacancies are required to be determined on 1st day of April of each year. Then Chapter IV provides for procedure for direct recruitment. Then it does not lay down any guidelines, as to within what time the steps for direct recruitment shall be taken after determination of the vacancies. It is in this background, that Rule 28 provides for determination of seniority, and provides, that seniority in the service shall be determined in each group of service, by the year of substantive appointment. It is alleged, that the petitioners are entitled to seniority from the date of their initial appointment of 1985, as, despite working since 1985, the persons, who have been appointed by transfer under proviso 4 to Rule 6 have been given appointment from the date of acquiring degree, and thus, the petitioners have made to rank junior. This results into the consequence, that the persons, who had been appointed on the post of Sub-Engineers (Diplomaholders) and have been appointed under proviso 4 to rule 6, to the posts of Junior Engineers (Degreeholders), have been given appointment from back date, although appointed against the direct recruitment quota, yet persons like the petitioners, who have been given appointments against the direct recruitment quota, have been denied appointments from the date they are actually serving i. e. 1985. Then in para 26 it is alleged, that the petitioners were given appointment out of the list supplied by the Planning (Man Power) Department, and that, this list is prepared by the Planning Department, on the basis of merit, determined with respect to the marks obtained at the degree examination, and the experience of the concerned persons, which list is revised annually. The department issues advertisement, asking the registered unemployed engineers to get their registration renewed every year, by giving particulars regarding experience etc. and accordingly the list is revised annually. Consequently, the petitioners could not be deprived of their seniority for three years, merely for inaction of the department, in not advertising the posts in time. The petitioners seek to challenge the validity of Rule 28, in so far as it provides for seniority from the date of substantive appointment, by contending, that under Rule 9, the vacancies are to be determined, and even if the Promotion Committee meet in a latter year, than that of the year to which the vacancy relates, then too the seniority relates back to the year of vacancy; While in case of direct recruits, the seniority is given from the date of actual appointment, and in absence of any provision being there giving guidelines, as to within what time of determination of vacancies, the recruitment exercise is to be undertaken, simply because for fortuitous reasons, the recruitment exercise is not undertaken for good number of years, and on the basis of existence of substantive vacancies temporary or adhoc appointments are made, the persons like the petitioners stand deprived of the seniority, and therefore, Rule 28 is bad. Then it is also contended, that direct recruitment of Junior Engineers is made by duly constituted Selection Committee, and in order to get selected, one has to compete with all eligible candidates, who applied, as against this, if a diploma holder acquires degree or equivalent qualification, and simply applies for transfer, then he is not subjected to any competitive consideration, and gets appointment on the post of Junior Engineer (degree holder), without competing with the degree holders, and gets seniority from the date of acquiring qualification, whereas the persons like the petitioners are given seniority after regular selection. Thus, the petitioners have prayed that the Rule 28 be struck down, the petitioners be assigned seniority from the date of their initial appointment of the year 1985, the seniority list be accordingly recast, and the petitioners be granted all consequential benefits. Reply to the writ petition was filed by the State, contending interalia, that it is not admitted that in the year 1985, the posts were available, and that the respondent did not hold regular selection for two years, rather as a matter of fact, the posts were created in the year 1987, and to fill the newly created regular posts, applications were invited vide advertisement dated 24. 8. 87. Then it is pleaded that the services of only such diploma holder Junior Engineers already working in the department, who submitted proof of their passing B. E. or equivalent A. M. I. E. Examination, after obtaining departmental permission were regularised as Junior Engineers (degree holder) as per Rule 6-4. Then it is contended that ad-hoc services cannot be counted for the purpose of seniority, and the petitioners were rightly assigned seniority from the date, they were regularly selected in the year 1988. It was then contended that there is no provision in the Rules for assigning seniority to the employee appointed on ad-hoc basis, and that the seniority was assigned as per Rule 28 of the Rules w. e. f. 22. 6. 1988. It was pleaded that the Junior Engineers referred to in Annex. 12 were regularly selected Junior Engineers (diploma holders) and subsequently they passed B. E. or equivalent A. M. I. E. Examination, and on being informed of their passing the said examination, their services were regularised from the date of passing of the said examination on the post of Junior Engineers (degree holders), against the vacant posts, as per Rule 6 (4) of the Rules. Then in para 26, the stand is taken to the effect, that the names of unemployed engineers, registered by Man Power Planning Department, is applicable only for ad-hoc appointments, and for regular selection, only relevant service rules are applicable, and therefore also, the period of ad-hoc appointment cannot be reckoned for the seniority. Then a rejoinder has been filed on behalf of the petitioners, contending interalia, that condition in the appointment order, about the appointment being purely on ad-hoc basis, does not entitle the respondents not to make regular selections indefinitely. It was denied that regular vacancies were created in June 1987. It was contended, that no document has been produced by the respondents in support of this averment, apart from the fact, that the respondents have not explained as to what was done by them to the vacancies against which the petitioners were given appointment on ad-hoc basis, rather as a matter of fact, the respondents have been making appointment by transfer right since 1985 and onwards, from amongst persons working on the post of Junior Engineers (diploma holder), to the post of Junior Engineers (degree holders), which exercise could be undertaken only in the event of availability of substantive vacancies. Thus, the stand taken about absence of vacancies in 1985, and vacancies having been created only in 1987 is wrong. Rather the appointments of the petitioners were made against the vacancies, which were available after 1984, on which the petitioners continued right since 1985, till they were subjected to regular selections in the year 1987. It was then contended, that the petitioners have no control on the respondents, in the matter of undertaking regular selection exercise, at a specified period of time, but then, on that count the petitioners cannot be denied the benefit of seniority, with regard to service put in by them from the date of initial appointment, more so, when the appointment was made against substantive vacancies, and the petitioners are entitled to reckon their seniority from the date of their initial appointment made in the year 1985. Reliance was also placed on the judgment in Vijay Singh Deora's case. Then it was pleaded in para 26, that registration with the Man Power Department, and the list prepared by that Department is based on a pre-determined formula, providing for the weightage to the academic qualifications, and therefore, it cannot be said that the list supplied by that department is not at all relevant. It was maintained that claims of all eligible candidates are considered by the Man Power Department, in the matter of sending names to any particular department, and the names are so sent in the order of merit, and consequently, seniority could not be denied. It was reiterated, that it is wrong to contend, that the regular selections of the petitioners were made against the vacancies of the year 1987, as nothing has been shown, as to what has been done to the vacancies against which the petitioners were given appointment in the year 1985, which shows that the substantive vacancies did exist at that time.
(3.) THIS is the resume of the pleadings of the parties. From the above pleadings this much is clear, and is not in dispute, that the petitioners after first termination were appointed on ad-hoc basis in 1985, and continued, consequent upon the said appointment, and they were regularly selected in the year 1988, and were given regular appointment vide order dated 22. 6. 1988, and in the interregnum period, there was no brake in the service. It is also not in dispute, rater it is clear from the seniority list Annex. 11, that up to serial No. 147 therein, are the Junior Engineers (degree holders), appointed in the year 1984 and January 1985, and thereafter, up to Serial No. 203 are all persons, who have been appointed by transfer under proviso 4 to Rule 6, and from serial No. 165 onwards are the persons, who have been appointed even as Junior Engineers (diploma holders), after the petitioners' initial appointment as Junior Engineers (degree holders) on ad-hoc basis in the year 1985, as these are the persons appointed since 13. 9. 85, 4. 4. 86, 19. 9. 86, 27. 3. 87, 16. 11. 87 and 20. 4. 88, as Junior Engineers (diploma holders), and it further transpires, that many of these persons have acquired the degree, much after the petitioners' initial appointment of the year 1985. Still they have been ranked senior to the petitioners. It is in this background that the question required to be examined is, as to whether the petitioners are entitled to reckon their seniority from the respective date of the year 1985, or from 22. 6. 1988, i. e. from the date of their initial appointment on, ad-hoc basis, which continued till they were regularly selected and appointed, or from the date of their regular appointment. ;