{"id":26833,"date":"1991-04-05T00:00:00","date_gmt":"1991-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-l-chopra-and-ors-etc-etc-vs-state-of-haryana-and-ors-etc-etc-on-5-april-1991"},"modified":"2018-12-22T18:11:53","modified_gmt":"2018-12-22T12:41:53","slug":"s-l-chopra-and-ors-etc-etc-vs-state-of-haryana-and-ors-etc-etc-on-5-april-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-l-chopra-and-ors-etc-etc-vs-state-of-haryana-and-ors-etc-etc-on-5-april-1991","title":{"rendered":"S.L. Chopra And Ors. Etc. Etc vs State Of Haryana And Ors. Etc. Etc on 5 April, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.L. Chopra And Ors. Etc. Etc vs State Of Haryana And Ors. Etc. Etc on 5 April, 1991<\/div>\n
Equivalent citations: 1991 AIR 1126, \t\t 1991 SCR (2) 221<\/div>\n
Author: K Ramaswamy<\/div>\n
Bench: Ramaswamy, K.<\/div>\n
           PETITIONER:\nS.L. CHOPRA AND ORS. ETC. ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF HARYANA AND ORS. ETC. ETC.\n\nDATE OF JUDGMENT05\/04\/1991\n\nBENCH:\nRAMASWAMY, K.\nBENCH:\nRAMASWAMY, K.\nSINGH, K.N. (J)\n\nCITATION:\n 1991 AIR 1126\t\t  1991 SCR  (2) 221\n 1992 SCC  Supl.  (1) 391 JT 1991 (2)\t203\n 1991 SCALE  (1)612\n\n\nACT:\n     Haryana  Service of Engineers, Class I, P.W.D.  (Public\nHealth Branch) Rules, 1961: rules 2(12), 3(2), 5(2),  8(11),\n11(4)  and  12(3),  (5), (6)  and  (7)-Direct  recruits\t and\npromotees-When become members of service-Inter se seniority-\nFixation of -Year of allotment-Whether alterable.\n\n\n\nHEADNOTE:\n     The  appellants in Civil Appeal No. 1643 of  1991,\t who\nwere promoted as Executive Engineers on officiating basis in\n1971-72 in the Haryana Service of Engineers Class I,  P.W.D.\n(Public Health Branch) challenged before the High Court\t the\npromotion,   by\t grant\tof  relaxation\tof  probation,\t and\nconfirmation,\tas   Executive\tEngineer,   and\t  subsequent\npromotion as Superintending Engineer, of the respondent, who\nwas appointed as Assistant Executive Engineer, in the  Class\nI  Junior  Scale in 1977, by direct recruitment.   The\tHigh\nCourt  held  that  the appellants were not  members  of\t the\nservice till they were appointed substantively to the  cadre\nposts and, therefore, they had no locus standi to  challenge\nthe promotions.\t Hence the appeal.\n     One  of the appellants had also filed a  Writ  Petition\nbefore\tthis Court challenging the  respondent's  promotion,\nand  the  State Government's power to grant  relaxation\t and\nfixation of seniority.\n     In\t the  connected\t appeal\t the  respondent,  who\t was\nappointed  by  direct  recruitment  as\tAssistant  Executive\nEngineer  in  the Class I Junior Scale in1965 filed  a\tWrit\nPetition before the High Court challenging the\tconfirmation\nof the appellants, who were promoted on officiating basis as\nExecutive Engineers in the Senior Scale in 1962-64 and\twere\nconfirmed  in  1977-79.\t Quashing the confirmations  of\t the\nappellants,   the  High\t Court\theld  that  promotions\t and\nconfirmations of the appellants were in excess of their\t 50%\nquota  and  directed  the State Government  to\trefix  their\nseniority afresh.  Hence the appeal.\n     On behalf of the appellants, it was contended that\t the\nmoment\tthe appellants were promoted, though officiating  in\nregular\t vacancies  as Executive Engineers  they  should  be\ndeemed to be members of the\n\t\t\t\t\t\t       222\nservice\t  from\tthe  date  of  their   initial\t officiating\npromotion,  and their seniority\t determined  retrospectively\nwith effect from their due dates, counting their  continuous\nlength of service towards the seniority.\n     Disposing\tof  Civil Appeal No. 1643 of 1991  and\tWrit\nPetition  No.  6311 of 1982 and\t dismissing  Civil,l  Appeal\nNo.2316 of 1986, this Court,\n     HELD:  1.\tUnder Rule 2(12)(a) only  a  direct  recruit\nappointed  to  the  cadre post, though on  probation,  is  a\nmember\tof  the\t service from the  date\t of  appointment  by\noperation of the main part of Rule 2(12) (a) read with\tRule\n2(1)  to a cadre post within the meaning of Rule 2(3).\t The\ninclusive definition in Rule 2(2)(a) is applicable only to a\n`direct\t appointee' i.e., Asstt. Executive  Engineer,  under\nRule  2(7) and put on probation, officiating in\t a  ex-cadre\npost  as contemplated in para 11 of Appendix `A' but  having\nsuccessfully completed his probation and awaits\t appointment\nto  a  cadre post.  The promotee Class II officers  are\t not\ndirect\trecruits  as per Rule 2(7) but\tare  officiating  as\nExecutive Engineers. Hence they would not become members  of\nthe service, as declared by Rule 2(7), but become members of\nthe service only after they are appointed substantively to a\ncadre post. [227H, 228A-B]\n     2.1  Sub-rule  (2)\t of Rule 5 prescribed  a  quota\t for\npromotees  at  50%  and 50% to the direct  recruits  and  by\nappointment  by\t promotion to the cadre posts  of  Executive\nEngineers  and above.  The proviso is a built-in  relaxation\nwhich  empowers\t the State Government to  promote  Class  II\nofficers  as  Executive\t Engineers in excess  of  their\t 50%\nquota.\tThe promotion of Class II officers in excess of\t 50%\nquota  would  be illegal or irregular in the  teeth  of\t the\nmandatory  language of Rule 5(2).  However, with a  view  to\nhave smooth functioning of the administration this power  of\nrelaxation was given as a breathing facility.  The moment  a\ndirect\trecruit is available, the promotee shall give  place\nin him. [228C-D]\n     2.2  Appointment by promotion made an ex-cadre post  or\nto  any cadre post in an officiating capacity from the\tlist\nprepared in accordance with procedure prescribed under\tRule\n8  would  remain  temporary till  the  promotee\t officer  is\nconfirmed  in  a cadre post, on satisfactory  completion  of\nprobation, under Rule 11(4). [228F]\n     3.1 On a conjoint reading of all the relevant rules,  a\npromotee holding a cadre post on an officiating basis as  an\nExecutive  Engineer  or above, within the  quota,  would  be\neligible  to be considered for appointment in a\t substantive\ncapacity to a cadre post.  His seniority shall be\n\t\t\t\t\t\t       223\ndetermined  with  effect  from\tthe  date  of  his   initial\npromotion to a cadre post, unless he is reverted or there is\nbreak in service or from the date of continuous\t officiation\neither in the ex-cadre or cadre post. [228G]\n     3.2 If a promotee Class II officer holds the cadre post\nwithin\tthe quota of direct recruit, his period\t of  service\nfrom  the  date\t of  initial  promotion\t till  the  date  of\navailability  of  a cadre post is rendered  for.   A  direct\nrecruit,  though  promoted  later steals a  march  over\t the\npromotee  and gets the right to consideration and  if  found\nfit gets promotion within his 50% quota and thereby  becomes\nsenior to the officiating promotee. [229E]\n     3.3  Rule\t2(12)  is  neither  arbitrary  nor   creates\ninvidious  discrimination  offending  Articles\t14  and\t 16,\nDirect\trecruits get seniority from the date of\t appointment\nas  Asstt.  Executive  Engineer,  it  is  unalterable.\t But\npromotee's seniority is variable by operation of Rules 8(11)\nJUDGMENT:\n<\/pre>\n
     3.4 Since the respondent in Civil Appeal No.1643\/91  is
\na direct recruit, his seniority as Executive Engineer, shall
\nbe with effect from the date of this initial appointment  as
\nAsstt.\tExecutive Engineer, as contemplated by\tRules  12(3)
\nand  (5).  Similarly, seniority of the respondent  in  Civil
\nAppeal\tNo.2316\/86  would  be determined  with\teffect\tfrom
\n1.1.1966.   Their  seniority  is unalterable  and  they\t are
\neligible  for  promotion within 50% quota of cadre  post  as
\nExecutive   Engineer,  superintending  Engineer\t and   Chief
\nEngineer  respectively, counting the seniority\twith  effect
\nfrom  their respective years of allotment.   The  appellants
\nshall be considered for appointment to a substantive vacancy
\nagainst a cadre post within their 50% quota of the promotees
\nand  their  seniority  would  be  counted  next\t below\t the
\nimmediate  senior promotee of the same year of\tjunior\tmost
\npromotee   of  the  preceding  year  of\t  allotment   either
\nofficiating  or confirmed, in accordance with sub-rules\t (6)
\nand  (7)  of Rule 12 and Rules 8(11) & 11(4).  The  year  of
\nallotment is accordingly, alterable.  [227B-D]
\n     3.5  The  State Government should determine  the  cadre
\nstrength of the Service under the rules, consider the  cases
\nof  the\t appellants and the two contesting  respondents\t for
\npromotion to the senior posts within their respective  quota
\nof  50% and make appointment, if found eligible and fit\t for
\npromotion. [229H, 230A-B]
\n     J.C.  Yadav v. State of Haryana, [1990] 2 SCC  189\t and
\nK.K. Khosla v. State of Haryana,<\/a> [1990] 2 SCC 199,  referred
\nto.\n<\/p>\n
\t\t\t\t\t\t       224<\/span><\/p>\n
&
\n     CIVIL APPELLATE JURISDICTION; Civil Appeal No. 1643  of
\n1991.\n<\/p>\n
     From  the\tJudgment  and Order dated  2.2.1983  of\t the
\nPunjab & Haryana High Court In W.P. No. 2859 of 1982.\n<\/p>\n
     P.P.  Rao, N.B. Shetye, Jitendra Sharma and  U.S.\tRana
\nfor the Appellants.\n<\/p>\n
     Rajinder Sachhar, Mahabir Singh and C.M. Nayar (NP) for
\nthe respondents.\n<\/p>\n
     The Judgment of the court was delivered by
\n     K.\t RAMASWAMY,  J.\t The  special  leave  to  appeal  is
\ngranted.\n<\/p>\n
     These   appeals  and  the\twrit  petition\twere   heard
\nelaborately  alongwith\tCivil  Appeal No. 4094\tof  1984  on
\nmerits.\t Since same controversy, as involved in Civil Appeal
\nNo.2316\t of 1986, we are disposing of both the\tappeals\t and
\nwrit petition by a common order.\n<\/p>\n
     The  appellants are Class II engineers in\tthe  Haryana
\nService\t of  Engineers (Public Health  Branch).\t  They\twere
\npromoted  to  officiate\t as Executive  Engineers  under\t the
\nPunjab Service of Engineers.  Class I, P.W.D. (Public Health
\nBranch)\t rules, 1961 made by the Government in\texercise  of
\nthe   powers  sunder  the  proviso  to\tArt.  309   of\t the
\nConstitution.\tAfter the formation of State of\t Harayana  ,
\nthe  service  was known as the Harayana\t Public\t Service  of
\nEngineers,  Class  I,  P.W.D. (Public  Health  Branch)\twith
\neffect\tfrom  November\t1, 1966. The rules  are\t called\t for
\nshort`the  rules’.  The service under the rules consists  of
\nAsstt.\t   Executive\tEngineer,    Executive\t   Engineer,
\nSuperintending Engineer and Chief Engineer.  The State Govt.
\nexercised   its\t power\tunder  Rule  22\t and   relaxed\t the
\nqualification of 5 years’ length of service and promoted the
\nappellants  and\t S.L.  Chopra  as  Executive  Engineers\t  on
\nFebruary  21,  1972, B.R. Batra on July 29,  1971  and\tO.P.
\nJuneja\ton February 16, 1972.  The respondent B.D.  Shardana
\nwas  recruited\tas  Asstt.  Executive  Engineer\t by   direct
\nrecruitment  to\t Class\tI Service of Junior  scale  and\t was
\nappointed  with\t effect from December 7,  1977.\t  The  State
\nGovt.  relaxed part of his probationary period and  promoted
\nhim  also as Executive Engineer Mr. B.R. Batra filed a\twrit
\npetition under Art. 32 challenging the promotion of  Sardana
\nas  Executive Engineer and also the State Govt.’s  power  to
\ngrant  relaxation  and\tfixing his  seniority  as  Executive
\nEngineer.  He further challenged the
\n\t\t\t\t\t\t       225<\/span>
\npromotion  of  Sardana as Superintending Engineer  by  order
\ndated  July  29,  1982\ton the plea  that  it  violated\t his
\nfundamental  rights  under Arts. 14 & 16.   The\t appellants,
\nnamely, Sardar Pratap Singh, K.C. Sehgal and Sardar Bhupindr
\nSingh in Civil Appeal No. 2316 of 1986 are Class II officers
\npromoted  on  officiating basis as  Executive  Engineers  in
\nSenior\t scale\twith  effect  from  1962,  1964\t  and\t1964
\nrespectively  and  they\t were confirmed on  that  post\twith
\neffect\tfrom June 1, 1977, May 1, 1979 and November 1,\t1979
\nrespectively.  F.L. Kansal, the respondent a direct  recruit
\nwas  appointed on May 18, 1965 as Asstt. Executive  Engineer
\nin  the Class I, Junior scale.\tThe High Court\tallowed\t the
\nwrit petition of Kansal and quashed the confirmation of\t the
\nappellants.\n<\/p>\n
     This Court in J.C. Yadav v. State of Haryana, [1990]  2
\nSCC  189 and K.K. Khosla v. State of Haryana,<\/a> [1990]  2\t SCC
\n199  upheld the relaxations granted by the Government  under
\nRule  22 to the appellants and Sardana. The same  contention
\nraised in the High Court thereby received quietus.  The High
\nCourt  held that the appellants are not the members  of\t the
\nservice\t till they are appointed substantively to the  cadre
\nposts under the rules.\tTherefore, they had no locus  standi
\nto  question  the  promotion of B.D.  Sardana  as  Executive
\nEngineer  and  Superintending Engineer.\t However,  the\tHigh
\nCourt  held  that the promotions and  confirmations  of\t the
\nappellants  (in\t C.A. No. 2316 of 1986) were  in  excess  of
\ntheir  50%  quota and on that basis the High  Court  quashed
\nthem  and  directed the State Govt. to refix  the  seniority
\nafresh.\n<\/p>\n
     The  only question that arises in the appeals  and\t the
\nwrit  petition\tis whether what is the date from  which\t the
\nappellants  and B.D. Sardana and F.L. Kansal became  members
\nof  the\t service and what would be their  seniority  in\t the
\nsenior posts of Executive Engineers.  We have discussed\t the
\nrules  at length in Civil Appeal No.4094 of 1984 which\thave
\nbeen  disposed\tof today.  The reasoning contained  in\tthat
\njudgment apply to the instant cases also.\n<\/p>\n
     Under  Rule  5(1), recruitment to the service  is\tmade
\nfrom three sources; (a) direct recruitment; (b) transfer  of
\nofficers already in the service of the State or of the Union
\nand  (c)  by  promotion\t from  Class  II  service.    Direct
\nrecruitment as defined under Rule 2(7) means an\t appointment
\nby  open  competition but does not include  `an\t appointment
\nmade by promotion or transfer.\tUnder Rule 2(1)\t appointment
\nto the service includes an appointment made according to the
\nterms and provisions of the rules to an officiating  vacancy
\nor  an ex-cadre post provided that an officer  so  appointed
\nshall not be deemed to have
\n\t\t\t\t\t\t       226<\/span>
\nbecome\ta `member of the service’ as defined in Clause\t(12)
\nof Rule 2,Class II service as defined under Rule 2(5)  means
\nPunjab\tService\t of Engineers.\tClass II  in  Public  Health
\nBranch.\t  Asstt.  Executive Engineer as defined\t under\tRule
\n2(2) means a member of the service in a junior scale of pay.
\nRule 2(3) defines `cadre post’ which means a permanent\tpost
\nin the serve. `Ex-cadre post’ as defined by Rule 2(10) means
\na temporary post of the same rank as of a cadre post.\tRule
\n2(12)\tis  the\t main  rule  in\t controversy   which   needs
\ninterpretation reads thus:\n<\/p>\n
\t  “member   of\tthe  service”,\tmeans\tan   officer
\n\t  appointed  substantively  to\ta  cadre  post,\t and
\n\t  includes–\n<\/p><\/blockquote>\n
\t  (a)  in  the\tcase of a  “direct  appointment”  an
\n\t  officer  “on probation”, or such an  officer\twho,
\n\t  having  successfully\tcompleted  his\tprohibition,
\n\t  awaits appointment to a cadre post;\n<\/p><\/blockquote>\n
\t  (b) is not necessary hence omitted.<\/p><\/blockquote>\n
     Rule 5(2) postulates that `recruitment to the  service’
\nshall  be so regulated `that the number of posts  filled  by
\npromotion from Class II service, shall not exceed 50% of the
\nnumber of posts in the service exclusing  the post of Asstt.
\nExecutive  Engineers’  provided that till such\ttime  as  an
\nadequate  number  of  Asstt.  Executive\t Engineers  who\t are
\neligible and considered fit for promotion are available, the
\nactual percentage of officers promoted from Class II service
\nmay  be larger than 50%.  Rule 6  prescribes  qualifications
\nfor  appointment  to the service by direct  recruitment\t and
\nappointment   by  promotion  from  Class  II   service\t and
\nprescribed departmental test as a condition for promotion to
\nthe post of executive Engineers and above.  Rule 7  provides
\nfor  appointment  of direct recruits and Rule  8  prescribes
\nprocedure  for promotion.  Rule11 prescribes the  period  of
\nprobation  of  an officer appointed to the service  and\t the
\nprocedure  for declaration.  The Rule provides\tthat  direct
\nrecruits shall be on probation for a period of two years and
\nthe  promotees\tand transfeers shall be on  probation  for  a
\nperiod\tof  one\t year and the officiating  period  shall  be
\nconsidered  period  of one year and the\t officiating  period
\nshall\tbe   considered\t towards  probation.\tRule   11(4)
\npostulates  that  ‘on  the satisfactory\t completion  of\t the
\nperiod\tof probation, Government shall confirm such  officer
\nin  a  cadre post, if one is available for  him’.   Rule  12
\nprescribes the procedure for determination of the seniority.
\nBy operation of sub-rule (3) read with sub-rule (5) of\tRule
\n12,  the seniority of the Asstt. Executive Engineer  (direct
\nrecruit) on promotion as Executive
\n\t\t\t\t\t\t       227<\/span>
\nEngineer (senior scale) shall be the calendar year in  which
\nthe  order of appointment as Asstt. Executive  Engineer\t may
\nhave  been issued by the government.  Sub-rules (6) and\t (7)
\nprescribe  the procedure to determine to inter se  seniority
\nof  the\t Class II officers promoted as\tExecutive  Engineers
\nnotwithstanding\t they  are officiating or  confirmed.\tThey
\ntake  their  rank  next\t below\tthe  junior  most  Executive
\nEngineer  of  the  preceding year of allotment\tof  such  an
\noffice\twhether\t officiating or confirmed.  Rule  3(2)\tread
\nwith  Appendix\t`A’ provides procedure; to  determine  cadre
\nposts in the light of the guidelines laid down therein.\n<\/p>\n
     Shri P.P.Rao, learned counsel for the appellants  urged
\nthat  the  moment  the\tappellants  were  promoted,  through
\nofficiating in the regular vacancies as Executive Engineers,
\nthey should be deemed to be the members of the\tserved\tfrom
\nthe  date  of  their initial  officiating  promotion,  their
\nseniority  should be determined retrospectively with  effect
\nfrom  their due dates.\tTheir continuous length\t of  service
\nshould\tbe counted towards their seniority.  He\t urged\tthat
\nsince the appellants were promoted in the year 1971-72, they
\nare senior to B.D. Sardana as he is a direct recruit of\t the
\nyear   1977  .\t He  sought  reliance  on   the\t  `inclusive
\ndefinition’ under Rule 2(12)(a) and the proviso to Rule 5(2)
\nof   the  rules.   He  further\tcontended  that\t while\t the
\nappellants  were  on  probation\t and  their  probation\t was
\ndeclared  to be completed with a view to make  them  regular
\nfrom  the date of their initial officiating promotion.\t The
\nfixation  of cadre posts and appointment of  the  appellants
\nsubstantively  to a cadre post are inglorious  uncertainties
\nwhich take unduly its long period.  The officiating  service
\ncannot\tbe  cut\t down nor  the\tcontesting  respondent\tB.D.
\nSardana\t be  promoted over them or  other  senior  promotees
\nawaiting   promotion  either  as  Executive   Engineers\t  or
\nSuperintending Engineers.  He further contended that in\t the
\ncounter-affidavit  filed in the High Court the\tState  Govt.
\nhad  admitted  that  the case of  the  appellants  would  be
\nconsidered  in the light of J.C. Yadav’s case which went  in
\ntheir favour.  So the only thing that the State Govt.  shall
\nhave  to  do is to determine into se seniority\tbetween\t the
\nappellants and the contesting respondent from the respective
\ndates of promotion as Executive Engineers and appointment by
\npromotion  as Superintending Engineer shall be made on\tthat
\nbasis.\t We have elaborately considered all the\t contentions
\nin Sehgal’s appeal and we have recorded our findings on\t the
\nbasis of interpretation of the rules.\n<\/p>\n
     In our opinion under Rule 2(12)(a) only direct  recruit
\nappointed to the cadre post though on probation is a  member
\nof the service from
\n\t\t\t\t\t\t       228<\/span>
\nthe  date  of appointment by operation of the main  part  of
\nRule 2(12)(a) read with Rule 2(1) to a cadre post within the
\nmeaning\t of  Rule 2(3).\t The inclusive\tdefinition  in\tRule
\n2(12)(a)  is applicable only to a `direct  appointee’  i.e.,
\nAsstt.\tExecutive  Engineer  under  rule  2(7)\tand  put  on
\nprobation,  officiating in an ex-cadre post as\tcontemplated
\nin para 11 of Appendix `A’ but having successfully completed
\nhis  probation and awaits  appointment to a cadre post.\t The
\npromotee  Class\t II  officers  admittedly  are\tnot   direct
\nrecruits  as per Rule 2(7) but are officiating as  Executive
\nEngineers,  they would not become members of the service  as
\ndeclared  by  Rule 2(7) but become a member of\tthe  service
\nonly after they are appointed substantively to a cadre post.
\nSub-rule (2) of Rule 5 prescribed quota to the promotees  at
\n50%  and  50% to the direct recruits and by  appointment  by
\npromotion  to  the cadre posts of  Executive  Engineers\t and
\nabove.\tThe proviso is a built in relaxation which  empowers
\nthe  State Govt. to promote Class II officers  as  Executive
\nEngineers  in  excess of their 50% quota. The  promotion  of
\nClass II officers in excess of 50% quota would be illegal or
\nirregular  in  the teeth of the mandatory language  of\tRule
\n5(2).\tWith  a\t view  to have\tsmooth\tfunctioning  of\t the
\nadministration\tthis  power  of relaxation was\tgiven  as  a
\nbreathing  facility.   The  moment  a\tdirect\trecruit\t  is
\navailable,  the\t promotee  shall give place to\thim.   If  a
\npromotee  is officiating in a cadre post of appointed to  an
\nex-cadre  temporary post when a substantive vacancy  arises,
\nthe State Govt. is empowered to consider the eligibility  of
\nClass II officers for promotion as Executive Engineer as per
\nthe  procedure\tprescribed in Rule 8 and an  appointment  by
\npromotion shall be made but it would be on officiating basis
\nuntil  he  is  appointed substantively to a  cadre  post  by
\noperation  of Rule 8(11) read with Rule 11(4).\t Appointment
\nby  promotion made to an ex-cadre post or to any cadre\tpost
\nin an officiating capacity from the list prepared under Rule
\n8 would remain temporary.  On satisfactory completion of the
\nperiod\tof  probation,\tthe  Government\t shall\tconfirm\t the
\npromotee officer in a cadre post under Rule 11(4) if one  is
\navailable  for\thim.   On  a conjoint  reading\tof  all\t the
\nrelevant  rules,  a  promotee holding a\t cadre\tpost  on  an
\nofficiant  basis as an Executive Engineer or  above,  within
\nthe   quota,  would  be\t eligible  to  be   considered\t for
\nappointment in a substantive capacity to a cadre post.\t His
\nseniority  shall be determined with effect from the date  of
\nhis initial promotion to a cadre post unless he is  reverted
\nor there is break in service or from the date of  continuous
\nofficiation either in the ex-cadre or cadre post.\n<\/p>\n
     Under Rule 3(2) read with Appendix `A’, the State Govt.
\nis  enjoined to determine the cadre post from time  to\ttime
\nand  during the first 5 years on Ist day of every  year\t and
\nlater from time to time and
\n\t\t\t\t\t\t       229<\/span>
\ndivide\tthe  posts as per the ratio of the  available  cadre
\nposts  to  the promotees and the direct recruits  and  shall
\nmake  appointment  in  a  substantive  capacity.   Inter  se
\nseniority between direct recruits and promotees in regulated
\nby  Rules  12(6) and (7).  Since B.D. Sardana  is  a  direct
\nrecruit,  his seniority as Executive Engineer shall be\twith
\neffect\tfrom the date of his initial appointment  as  Asstt.
\nExecutive Engineer, namely, December 7, 1977 as contemplated
\nby Rules 12(3) and (5).\t Similarly Kansal’s seniority  would
\nbe determined with effect from 1.1.1966, their seniority  is
\nunalterable  and they are eligible for promotion within\t 50%
\nquota  of cadre post as Executive  Engineer,  Superintending
\nEngineer  and  Chief  Engineer\trespectively  counting\t the
\nseniority  with\t effect\t from  year  of\t allotment,   namely
\nDecember 7, 1977; May 18, 1965 (1.1.1966) respectively.\n<\/p>\n
     As regards the appellants are concerned, they shall  be
\nconsidered for appointment to a substantive vacancy  against
\na cadre post within their 50% quota of the promotees and the
\nseniority  would be counted next below the immediate  senior
\npromotee  of  the same year or junior most promotee  of\t the
\nprecediate  senior promotee of the same year of junior\tmost
\npromotee   of  the  preceding  year  of\t  allotment   either
\nofficiating or confirmed, in accordance with sub-rules (6) &
\n(7)  of\t Rule  12  and Rules 8(11) &  11(4).   The  year  of
\nallotment is accordingly, alterable. If a promotee Class  II
\nofficer\t holds\tthe cadre post within the  quota  of  direct
\nrecruit,  his  period of service from the  date\t of  initial
\npromotion  till\t the date availability of a  cadre  post  is
\nrendered fortuitous.  A direct recruit though promoted later
\nsteals\ta  march  over\tthe  promotee  and  gets  right\t  to
\nconsideration and if found fit gets promotion within his 50%
\nquota\tand  thereby  becomes  senior  to  the\t officiating
\npromotee.\n<\/p>\n
     In\t the  affidavit\t filed\tby  O.P.Juneja\tone  of\t the
\nappellants  it\tis  stated  that the  State  Govt.  has\t now
\ndetermined the cadre strength but we decline to go into that
\nquestion, leaving it open to the Government to determine the
\nseniority  after  giving opportunity to all parties  in\t the
\nlight  of  this judgment.  It is true that the\tState  Govt.
\nmade admissions in the counter-affidavit that the  seniority
\nwould  be  determined in accordance with J.C.  Yadav’s\tcase
\nwhich  went  in favour of the appellants, but  it  does\t not
\nconclude the matter. It is unfortunate that the State  Govt.
\ntook sifting stand from time to time.  Rule 2(12) is neither
\narbitrary  nor\tcreates invidious  discrimination  offending
\nArts. 14 & 16.Direct recruits get seniority from the date of
\nappointment as Asst.  Executive Engineer, it is unalterable.
\nBut  promotee’s seniority is variable by operation of  Rules
\n8(11) & 11(4); 2(12(a) & 5(2) of the Rules.  Therefore,\t the
\nState Govt. is directed to determine the cadre strength
\n\t\t\t\t\t\t       230<\/span>
\nin the Haryana Service of Engineers, Class I, P.W.D. (Public
\nHealth\t Branch)  under\t the  rules,  Executive\t  Engineers;
\nSuperintending\tEngineers and Chief Engineers; consider\t the
\ncases of the appellants and the contesting  respondents;B.D.
\nSardana,  F.L. Kansal for promotion to the senior  posts  of
\nExecutive  Engineers,  Superintending  Engineers  and  Chief
\nEngineers respectively with respective quota of 50% and make
\nappointment  if found eligible and fit for promotion.\tThis
\nexercise  shall be done within four months from the date  of
\nthe  receipt of the order.  The impugned promotions  or\t any
\nappointment  made  pending the writ petitions sin  the\tHigh
\nCourt  of  appeals  in this Court ar subject  to  the  above
\ndirections.   The status quo as of today will continue\ttill
\nthe  Government carries out the directions.  The appeal\t and
\nthe writ petition ar accordingly disposed of an Civil Appeal
\nNo.2316\t of  1986  is dismissed\t but  in  the  circumstances
\nparties are directed to bear their own costs.\n<\/p>\n
N.P.V.\t\t\t      V.A. 1643\/91 and\n\t\t\t      W.P. 6311\/82 disposed of and\n\t\t\t      C.A. 2316\/86 dismissed.\n\t\t\t\t\t\t\t231<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.L. Chopra And Ors. Etc. Etc vs State Of Haryana And Ors. Etc. Etc on 5 April, 1991 Equivalent citations: 1991 AIR 1126, 1991 SCR (2) 221 Author: K Ramaswamy Bench: Ramaswamy, K. PETITIONER: S.L. CHOPRA AND ORS. ETC. ETC. Vs. RESPONDENT: STATE OF HARYANA AND ORS. ETC. ETC. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-26833","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.L. Chopra And Ors. Etc. Etc vs State Of Haryana And Ors. Etc. 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