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M.S. Kachwaha Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Review No. 29/1965
Judge
Reported in1970WLN108
AppellantM.S. Kachwaha
RespondentThe State of Rajasthan and ors.
DispositionPetition dismissed
Cases Referred(H.P. Kuchal v. State of Rajasthan and
Excerpt:
rajasthan service of engineers (buildings and roads branch) rules, 1954 - rules 28 and 29--confirmation of probationer delayed--seniority not lost--temporary asst. engineers not senior to confirmed assistant engineers.;a probationer does not lose his seniority if his confirmation is delayed either because his work is not found to be satisfactory, or because he has not passed his departmental examination. the case of a temporary assistant engineer is however different. if there is delay in his confirmation either because his work is not satisfactory or because he has not passed the departmental examination he loses his seniority.;it is therefore inconceivable that the rule making authority could have intended that out of the persons appointed as temporary assistant engineer as unconfirmed.....jagat narayan, c.j.1. this is an application for review of a part of the judgment of this court dated may 4, 1965 in civil writ petitions no. 1747, 1751 and 1681 of 1964, which related to the promotion of assistant engineers of the public works department (buildings and roads branch) to temporary post of executive engineers on the recommendations of the departmental promotion committee appointed under rule 26 of the rajasthan service of engineers building and roads branch) rules, 1954. the applicant shri m.s. kachwaha was impleaded as a respondent in the writ petitions, but he did not put in appearance in them.2. the proceedings of the departmental promotion committee were first challenged before us in d. b civil writ petition no. 1217 of 1964 (h.p. kuchal v. state of rajasthan and others.....
Judgment:

Jagat Narayan, C.J.

1. This is an application for review of a part of the judgment of this Court dated May 4, 1965 in civil writ petitions No. 1747, 1751 and 1681 of 1964, which related to the promotion of Assistant Engineers of the Public Works Department (Buildings and Roads Branch) to temporary post of Executive Engineers on the recommendations of the Departmental Promotion Committee appointed under Rule 26 of the Rajasthan Service of Engineers Building and Roads Branch) Rules, 1954. The applicant Shri M.S. Kachwaha was impleaded as a respondent in the writ petitions, but he did not put in appearance in them.

2. The proceedings of the Departmental Promotion Committee were first challenged before us in D. B Civil writ petition No. 1217 of 1964 (H.P. Kuchal v. State of Rajasthan and others decided on 12-10-1964). It was held by this Court that the cases of the petitioners in that writ petition did not receive a fair and proper consideration at the hands of the Departmental Promotion Commiteee. This decision became final and was accepted by the Government. The present petitioners whose cases also did not receive a fair and proper consideration at the hands of the Departmental Promotion Commi ttee made a representation to Government which admitted that their cases should be considered again vide order No. F. 15-248-pw. 58 dated 5th February, 1965 which runs as follows:

The representations of Sarva Shri Bhim Singh, Brij Gopal Sharma and Bhavdish Prasad Jain, Assistant Engineers, Public Works Department, alleging their supersession by others have been considered by the Government in the light of the judgment passed by the Hon'ble High Court of Judicature for Rajasthan dated 12-10-1964, in the writ petitions Nos 1217/64, 1227/64, 1256/64, and 1331/64.

After careful consideration of the representation of the above mentioned three Assistant Engineers, P.W. D. and a scrutiny of the proceedings of the Departmental Promotion Committee dated 12-11-63 and in view of the judgment of the High Court holding that the recommendation of the D.P.C. were not properly made as adverse entries the C. Rs. were not duly communicated to all officers eligible for promotion and they were not given an opportunity of furnishing an explanation in terms of the Appointments Department Circular No. F. 15 (Apptts. A) /II/63 dated 8-1-64, the Government are pleased to reconsider their earlier decision accepting the recommendations of the D.P.C. dated 12-11-1963 in respect of the Executive Engineers and to order that the orders No. F. 15-248-PW-58 dated 21-7-64 and No. F. 15-248-PW-58 dated 1-9-64, may not be considered as orders of promotion in respect of the officers mentioned therein but the orders in question may be and are by modified to the extent that all the Executive Engineers functioning as Executive Engineers under those orders may continue as Officiating Executive Engineers on an ad hoc Basis only till the Departmental Promotion Committee meets again and reconsiders the whole position in the light of the High Court judgment afore-mentioned and submit its recommendations afresh to the Government and Government pass fresh orders.

3. In pursuance of the last part of the above order the following order was passed on 6-3-65:

The following Assistant Engineers are hereby promoted as officiating Executive Engineers on ad-hoc basis from the dates noted against each till further orders: S. No. Name of the officer Date1. Shri S.M. Mathur (Health) 21-7-642. Shri H.K. Kalla 21-7-643. Shri S.S. Mathur 21-7-644. Shri S.P. Bhargava 21-7-645. Shri B.S. Purohit 1-9-646. Shri S.M. Dugar 5-8-647. Shri B.K. Saxena 1-9-648. Shri B.L. Mathur 1-9-649. Shri K.S. Goyal 1-9-6410. Shri M.M. Singh 1-9-6411. Shri Bhagwati Lal Mathur 20-11-64By OrderSd/-Dy. Secy, to Government.

4. It was held by this Court that the Rajasthan Service of Engineers (Buildings and Roads Branch) Rules, 1954 did not contain any provision empowering the Government to make promotions on an ad-hoc basis otherwise than on the recommendations of the Departmental Promotion Committee. The Court accordingly allowed the 3 writ petitions, quashed the last part of the order of the State Government dated 5-2-65 which ran as follows:

All the Executive Engineers functioning as Executive Engineers under these orders may continue as officiating Executive Engineers on ad-hoc basis only till the Departmental Promotion Committee meets again and reconsiders the whole position in the light of the High Court judgment afore-mentioned and submit its recommendations afresh to the Government and Government may pass fresh orders.

and the order dated 6-3-65 promoting other officers named therein as officiating Executive Engineers on ad-hoc basis.

5. The petitioners were driven to file the writ petitions as the Government did not take any steps to convene a meeting of the Departmental Promotion Committee for reconsidering their cases. The learned Government Advocate contended that the Government had not been able to convene such a meeting as the seniority lists of Assistant Engineers concerned were not finalised. In this connection it was observed as follows:

It is a fundamental principle of determining seniority that an officer who is confirmed on an earlier date is senior to all the officers who are confirmed on later dates. The following statement contains particulars about the petitioners and other officers junior to them who have been promoted as temporary Executive Engineers:

S. No.

Name of Officer

Date of firstapptt. as A. E.

Date ofconfirmation

Date ofeligibility of promotion

Date of promotion asoffg. E. E.

Remarks

1

2

3

4

5

6

7

1.

Shri Bhim Singh

2-6-48

1- 4-50

2-6-63

Not promoted

2.

Shri S. M. Mathur

6-9-56

1- 7-59

6-9-61

21- 7-64

3.

Shri H. K. Kalla

6-9-56

1- 7-59

6-9-61

21- 7-64

4.

Shri B. P. Jain

6-9-56

1- 7-59

6-9-61

Not promoted

5.

Shri Bhagwati LalMathur

3-1-58

1- 7-59

3-1-63

20-11-64

6.

Shri S. P.Bhargava

3-1-58

1- 7-59

3-1-63

21- 7-64

7.

Shri B. S. Purohit

3-1-58

1- 7-59

3-1-63

1- 9-64

8.

Shri S. M. Dugar

3-1-58

27-11-59

3-1-63

5- 8-64

9.

Shri P. C.Tripathi

4-2-56

23-11-59

4-2-61

11- 7-61

10.

Shri M. S. Kachwah

25-7-56

23-12-59

25-7-61

30-1-62

11.

Shri S. S Mathur

6-9-56

23-12-59

6-9-61

21-7- 64

12.

Shri B. G. Sharma

3-1-58

23-12-59

3-1-63

Not promoted

13.

Shri B. K. Saxena

3-1-58

31- 1-60

3-1-63

1-9-64

14.

Shri B. L. Mathur

23-4-58

23- 4-60

23-4-63

1-9-64

15.

Shri K. S. Goyal

3-5-58

3-5-60

3-5-63

1-9-64

16.

Shri S. L. Joshi

25-7-56

14-2-61

25-7-61

29-4-63

17.

Shri M. M. Singh

19-6-57

Not yet confirmed

Not eligible

1-9-64

Shri Bhim Singh petitioner is senior to all the officers at serial Nos. 2 to 17 as he was confirmed on 1-4-1950 whereas, the other officers were confirmed on later dates. He is a diploma holder. He was first appointed as Assistant Engineer on 2-6-1948 He became eligible for promotion as Executive Engineer after working on the post of Assistant Engineer for 15 years, namely, on 2-6 1963. His case for promotion should have been considered on the basis of the seniority cum merit rule after 2-6-1963. Several officers junior to him were promoted to the posts of temporary Executive Engineers after that date without properly considering his case.

Shri Bhavdish Prasad was confirmed as Assistant Engineer on 1-7-1959. He is undoubtedly senior to officers at serial NOS. 8 to 17, who were confirmed on later dates....

The petitioner contends that he is senior to Shri Bhavdish Prasad Jain as he was appointed earlier. He relies on the third proviso to Rule 28 of the Rajasthan Service of Engineers (Buildings and Roads Branch) Rules 1954, hereinafter referred to as the Rules). This rule runs as follows:

Seniority:--Seniority in each grade of the Service shall be determined by the year of the order of appointment to the grade concerned.

Provided:

(i) that the seniority inter-se of persons appointed to the Service before the commencement of these rules, or who' may be appointed to the Service as a result of the reorganisation of the States, shall continue as already fixed by Government, or as may in future be fixed ad-hoc by Government or subject to any modifications, corrections or revisions, which Government may in future consider necessary:

(ii) that if two or more persons are appointed to the Service during the same year a person appointed by promotion shall be senior to a person appointed by direct recruitment;

(iii) that the seniority inter-se of persons appointed to the Service on the basis of one and the same selection, except those who do not join the Service when a vacancy is offered to them shall follow the order in which they have been placed in the list prepared by the Commission under Rule 21; and

(iv) that the seniority inter-se of persons appointed to the Service by promotion shall follow the order in which they have been placed in the list prepared by Government under rule 24(5).

The contention on behalf of Shri B.P. Jain is that Rule 28 is only applicable for determining inter-se seniority of persons appointed substantively to the post of Assistant Engineer and is not applicable for determining inter-se seniority between him and Shri M.S. Kachwah both of whom were initially appointed as temporary Assistant Engineers.

Shri M.S. Kachwah was appointed under order No, D. 12694-F. 10 (123) PW-54 dated 25-7-56 which runs as follows:

The following candidates selected by the Rajasthan Public Service Commission are temporarily appointed as Asstt. Engineers in the Buildings; and Roads Department, Rajasthan. The names are arranged in order of preference.

9. Shri Mehendra Singh Kachwah.

12. Shri Shyam Lal Joshi.

Shri Bhavdish Prasad Jain was appointed under order No. D-1486/ E-10-123 P.W. 54 dated 6-9-56 which runs as follows:

The following candidates selected by the Raj. Public Service Commission are temporarily appointed as Asst. Engineers in the Buildings and Roads Department, Rajasthan Jaipur. The names are arranged in order of preference:

1. Shri Sampat Mal Mathur.

2. Shri Hari Krishna Kalla.

3. Shri Shyam Sunder Mathur.

4. Shri Bhavdish Prasad Jain.

6. In the Rules as they were framed originally 'member of the Service' was defined in Rule 4(e) as 'a person appointed substantively to a permanent post in the Service, under the provisions of these rules or of rules in force previous to the introduction of these rules'.

7. All the above Assistant Engineers having been appointed as temporary Assistant Engineers did not become members of the Service. Rules 6 and 7 ran as follows:

6. Strength of the Service.:--The strength of the Service and the nature of posts therein shall be as specified in Schedule I:

Provided that Government:

(i) may leave unfilled or hold in abeyance any post in the Service without there by entitling any persons to compensation; and

(ii) may increase the cadre by creating permanent or temporary posts in the Service, from time to time, as may be found necessary.

7. Sources of recruitment:--Subject to the provisions of Rule 27 recruitment to the Service, after the commencement of these rules, whether against substantive vacancies in the permanent cadre or temporary posts, shall be made to the posts of Assistant Engineers--

(i) on the basis of selection through the agency of the Commission

(ii) by promotion from the Rajasthan Subordinate Engineering Service (Buildings and Roads Branch) in consultation with the Commission;

Provided that it shall not be necessary to consult the Commission in the case of appointment of a temporary officer to a permanent vacancy if he has already been appointed to a temporary post in the cadre of the Service after consultation with the Commission;

Provided further that a temporary officer, so recruited after he had attained the age of 35 years, may not be considered for permanent appointment.

Rules 28 to 31 run as follows:

28. Seniority:--Seniority in each grade of the Service shall be determined by the date of the order of appointment to the grade concerned.

Provided:

(i) that the seniority inter-se of the persons appointed to the service before the commencement of these rules shall be such as may be fixed by Government;

(ii) that if two or more persons are appointed to the Service on the same date, a person appointion by promoted shall be senior to a person appointed by direct recruitment;

(iii) that the seniority inter-se of persons appointed to the Service on the basis of one and the same selection, except those who do not join the Service when a vacancy is offered to them shall follow the order in which they have been placed in the list prepared by the Commission under Rule 21; and

(iv) that the seniority inter-se of persons appointed to the Service by promotion shall follow the order in which they have been placed in the list prepared by Government under Rule 24(5).

29. Probation:--(1) All members of the Service shall on appointment to the Service by direct recruitment, by placed on probation. The period of probation shall be 2 years, provided that such of them as have previous to such appointment served temporarily on post in the Service may be permitted by Government to count such temporary service towards the period of probation.

(2) During the period of probation, each probationer shall be required to pass such departmental examination as Government may, from time to time, prescribe, unless he has already passed such examinations while serving on a temporary post in the Service.

Unsatisfactory progress during probation.:--(1)If it appears to Government at any time during or at the end of the period of probation that a member of the Service has not made sufficient use of his opportunities or that he has failed to give satisfaction, Government may revert him to the post held substantively by him immediately preceding his appointment to the Service provided he holds a lien thereon, or in other cases may remove him from service;

Provided that the Government may extend the period of probation, of any member of the Service, by a specified period not exceeding one year.

(2) A probationer reverted or removed from service during or at the end of the period of his probation under Sub-rule (1) shall not be entitled to any compensation.

31. Confirmation:--A probationer shall be confirmed in his appointment at the end of the period of his probation if--

(a) he has passed the prescribed departmental examinatinos, if any, completely; and

(b) Government are satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation.

8. The above rules were in harmony with one another. Only persons appointed substantively as Assistant Engineers could be regarded as members of the Service to whom Rules 28 to 31 were applicable. They were all appointed on probation. 'Probationer' is not defined in these Rules. There can be no doubt that it has beeen used in the same sense in which it has been used in the Rajasthan Service Rules, in Rule 7(3) of which probationer has been defined as a Government servant employed on probation in or against a substantive vacancy in the cadre of a department.

All persons appointed substantively as Assistant Engineers could only be appointed on probation. To them alone Rule 28 was applicable. Even if the period of probation of an officer is extended he does not lose his seniority. Either he is removed from Service if he fails to give satisfaction or he is confirmed. If he is confirmed this confirmation relates back to the date of his first appointment as a probationer and he retains his original seniority even if his period of probation is extended.

9. This was not so in the case of an officer appointed as a temprary Assistant Engineer. He was not appointed on probation. He was not a member of the Service till he was confirmed.

10. On 27-2-59 the Rules were amended. 'Member of the Service' was defined after amendment as 'a person appointed to the Service under the provisions of these Rules or of the Rules or Orders in force previous to the introduction of these Rules'. Rules and and 7 were amended as follows:

6. Composition and strength of the Service.:--(1) The nature of the posts included in each category of the Service shall be as specified in column 2 of Schedule I.

(2) The strength of the post in each category shall be such as may be determined by Government from time to time provided that Government may:

(a) Create any post, permanent or temporary, from time to time as may be found necessary, and

(b) Leave unfilled or hold in abeyance or abolish any post, permanent or temporary, from time to time, without there by entitling, any person to any compensation.

7. Methods of Recruitment:--(1) Recruitment to the Service after the commencement of these Rules shall be by the following methods:

(a) Direct Recruitment in accordance with Part IV of these Rules;

(b) Promotion of substantive Engineering Subordinates in accordance with Part V of these Rules, in the proportion indicated in column 3 of Schedule I:

Provided--

(i) that if Government is satisfied in consultation with the Commission, that suitable persons are not available for appointment by either method of recruitment in a particular year, appointment by the other method in relaxation of the prescribed proportion may be made in the same manner as specified in these Rules;

(ii) that nothing in these rules shall preclude the Government from appointing officers previously in the employment of pre-re-organisation States of Ajmer, Bombay and Madhya Bharat to suitable posts in Schedule I, in accordance with the rules governing the integration of their services.

(2) Recruitment against temporary Posts of Assistant Engineers may also be made in accordance with Clauses (i) and (ii) above; and it shall not be necessary to consult the Commission again if the appointment of the officer to a permanent vacancy in the cadre of the service-follows his temporary appointment:

Provided that a temporary officer, so recruited after he had attained the age of 35 years, may not be considered for permanent appointment.

11. Rules 28 and 29 were also amended and now run as follows:

28. Seniority:--Seniority in each grade of the Service shall be determined by the year of the order of appointment to the grade concerned.

Provided--

(i) that the seniority inter-se of persons appointed to the Service before the commencement of these rules, or who may be appointed to the Service as a result of the reorganisation of the States, shall continue as already fixed by Government, or as may in future be fixed ad-hoc by Government or subject to any modifications, corrections or revisons which Government may in future consider necessary.

(ii) that if two or more persons are appointed to the Service during the same year a person appointed by promotion shall be senior to a person appointed by direct recruitment.

(iii) that the seniority inter-se of persons appointed to the service on the basis of one and the same selection, except those who do not join the Service when a vacancy is offered to them shall follow the order in which they have been placed in the list prepared by the Commission under Rule 21; and

(iv) that the seniority inter-se of persons appointed to the Service by promotion shall follow the order in which they have been placed in the list prepared by Government under rule 24 (5).

29. Probation.--(1)All persons appointed to the Service by direct recruitment or promotion shall be on probation for a period of two years in the case of direct recruitment and one year in the case of promotion.

(2) All persons promoted to senior posts in the Service shall be on probation for a period of six months:

Provided that such of them as have previous to such appointment on probation officiated or served temporarily on a post encadred in the Service may be permitted by the Govt. to count such officiating or temporary service towards the period of probation up to a maximum of six months.

(3) During the period of probation each probationer except those promoted to senior posts shall be required to pass such departmental examination as Government may, from time to time, prescribe unless he has already passed such examination while serving on a semporary post in the Service.

12. No change was made in Rules 30 and 31.

13. The contention on behalf of Shri M.S. Kachwah is that after the amendment on 27-2-59 a member of the service includes a temporary Assistant Engineer because be is also appointed under the provisions of these Rules. There is no provision for recruitment against temporary post of Assistant Engineer in the Suits Rule 7(2) deals with the matter. A comparison of the wordings of Rule 7(1) and 7(2) however goes to show that whereas in Rule 7 (1) which deals with recruitment of substantive Assistant Engineers the language used is 'Recruitment to the Service after the commencement of these Rules shall be by the following methods'. In Rule 7(2) the language is 'Recruitment against temporary posts of Assistant! Engineers may also be made in accordance with Clauses (i) and (ii) above. The rule making authority has taken care riot to say as was said in Rule 7 as it stood in 1954 that 'recruitment to the service...whether against substantive vacancies in the permanent cadre or temporary posts....' Some verbal changes have been made in Rule 29 also. But there is no substantial change. It still categorically says that all persons appointed to the Service by direct recruitment or promotion shall be on probation. Now as has been pointed out above, only a person appointed substantively to a post can be on probation. I am therefore of the opinion that although the language of the definition of 'member of the Service' was changed on 27-2-59 only persons substantively appointed as Assistant Engineers are members of the Service within the meaning of the Rules and Rule 28 can only apply to them. In view of the provision of Rule 29 in which it is stated categorically that all persons, appointed to the Service by direct recruitment or promotion shall be on probation, it is not possible to hold that temporary Assistant Engineers are also members of the Service within the meaning of the Rules Rule 28 is therefore only applicable for determining inter-se seniority pf Assistant Engineers appointed substantively to the Service As neither the applicant nor Shri B.P. Jain were appointed substantively to the Service initially their inter-se seniority is not to be determined by Rule 28. It has to be determined by the dates of their confirmation.

14. As has been pointed out above a probationer does not lose his seniority if his confirmation is delayed either because, his work is not found to be satisfactory, or because he has not pissed his departmental examination. Whenever he is confirmed he is confirmed with effect from the date of his initial substantive appointment. The case of a temporary Assistant Engineer is however different. If there is delay in his confirmation either because his work is not satisfactory or because he has not passed the departmental examination he loses his seniority.

15. There is another way of looking at the matter. Seniority amongst Assstt. Eng. does. not give an officer a right of promotion to the post of Executive Eng. It however entitles him to consideration for promotion before the next senior officer. Now it stands to reason that an officer who has not been considered fit for confirmation as Assistant Engineer cannot be considered for promotion as Executive Engineer before one who has been confirmed as Assistant Engineer. It is therefore inconceivable that the rule making authority could have intended that out of the persons appointed as temporary Asstt. Engineers as unconfirmed Assistant Engineer could be treated as senior to a confirmed Assistant Engineer. Shri B.P. Jain became a confirmed Assistant Engineer on 1-7-59 when Shri M.S. Kachwah was an unconfirmed Assistant Engineer. After his confirmation Shri Jain became senior to Shri Kachwah Shri Jain could not lose this seniority by the subsequent confirmation of Shri Kachwah on 23-12-59. This is another reason for holding that the only reasonable construction which can be put on the Rules is that the Service consists only of members substantively appointed to it and Rule 28 only applies for determining the seniority of persons appointed as substantive Assistant Engineers initially.

16. It will be seen that although the Rules as originally framed were clear and hamonised with one another the language of the amendments made from time to time was not well considered. It is hoped that the State Government will now amend them suitably. When these Rules were originally framed the intention was that most of the Assistant Engineers will be recruited on a permanent basis and will be placed on probation and only a few will be recruited temporarily. At that time temporary Assistant Engineers were not regarded as members of the Service. In most State Service Rules there is a similar provision. But now all Assistant Engineers are being recruited on a temporary basis on account of there being a large number of temporary posts. The Rules should therefore provide for the conditions of service of temporary Assistant Engineers as well.

17. For reasons given above, I hold that the observations made in this Court's judgment in Civil Writ Petitions No. 1747, 1751 and 1781 of 1964 are correct.

L.N. Chhangani, J.

I have had the advantage of going through the judgment proposed to the delivered by my Lord the Chief Justice,

Having Regard to:

(a) the scheme as disclosed by the Rules initially framed and the subsequent modifications by amendments in Rules 4(e), 6 and the Schedule relating to the strength; 7 and 29 effected from time to time,

(b) the absence of distinguishing features in the selection of candidates for permanent and temporary posts and substantive and temporary appointments and the manner of absorbtion of selected candidates in the permanent service.

I have not been able to persuade myself to express full concurrence with the interpretation of Rule 28(iii) adopted by my Lord. I have further felt that the question of determining the seniority did not directly arise and observations relating to it could not but be made incidentally. The matter is however before me on a review side, when only limited grounds are available to the petitioner. The order can be reviewed only on an error apparent on the face of the record and a review is not entertainable on a debatable question of law as the present one. 1, therefore, without expressing any firm view on the intricate and difficult question of interpretation of Rule 28(iii), concur in the dismissal of the review petition.

18. The review petition is dismissed.


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