{"id":38945,"date":"2000-04-25T00:00:00","date_gmt":"2000-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-k-shanmugam-anr-vs-union-of-india-ors-on-25-april-2000"},"modified":"2015-07-14T12:54:50","modified_gmt":"2015-07-14T07:24:50","slug":"m-k-shanmugam-anr-vs-union-of-india-ors-on-25-april-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-k-shanmugam-anr-vs-union-of-india-ors-on-25-april-2000","title":{"rendered":"M.K.Shanmugam & Anr vs Union Of India & Ors on 25 April, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M.K.Shanmugam & Anr vs Union Of India & Ors on 25 April, 2000<\/div>\n
Author: R Babu<\/div>\n
Bench: N.S.Hegde, S.R.Babu, S.S.Ahmad<\/div>\n
           PETITIONER:\nM.K.SHANMUGAM & ANR.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT:\t25\/04\/2000\n\nBENCH:\nN.S.Hegde, S.R.Babu, S.S.Ahmad\n\n\n\n\nJUDGMENT:\n<\/pre>\n
RAJENDRA BABU, J.  :\n<\/p>\n
      Civil Appeal No.\t5086 of 1994<\/p>\n
      This  appeal is directed against the order made by the
\nCentral\t Administrative Tribunal, Bombay Bench\t[hereinafter
\nreferred  to as `the Tribunal’] on November 5, 1993 in\tO.A.
\nNo.  286\/92.  Respondents Nos.\t3 and 4 filed an application
\nO.A.  No.  286\/92 before the Tribunal.\tThe pleadings raised
\nin the application, briefly stated, are as under.\n<\/p>\n
      The  respondents\twere directly recruited through\t the
\nUnion  Public  Service\tCommission  as\tAssistant  Executive
\nEngineers   (Electrical)   Class  I  in\t the   Ministry\t  of
\nCommunications,\t while\trespondents Nos.  3 to 5 before\t the
\nTribunal  were recruited as Assistant Engineers (Electrical)
\nClass  II and both the applicants and the other\t respondents
\nwere  subsequently  promoted on ad hoc basis and  thereafter
\nthey  were regularised as Executive Engineers  (Electrical).
\nThe  two  respondents were aggrieved by the letter  sent  on
\nFebruary  6, 1992 which was accompanied by a seniority\tlist
\nof  the Department of Telecommunications whereby the ad\t hoc
\nservices  rendered by respondents 3 to 5 before the Tribunal
\nas  Executive Engineers from May 25, 1977, February 21, 1982
\nand  April  16, 1982 respectively being treated\t as  regular
\nservices  and  counted for the purpose of seniority in\tthat
\ngrade  and  proposed  to re-fix that position in  the  final
\nseniority  list\t of Executive Engineers as on April 1,\t1985
\nand  thus  the applicants before the Tribunal  being  pushed
\ndown in the seniority list.\n<\/p>\n
      There  are  two  channels\t of  recruitment  under\t the
\nrelevant  recruitment  rules and promotions to the  post  of
\nExecutive  Engineer  are  to be made  from  two\t categories,
\nnamely, Assistant Executive Engineer Class I with five years
\nregular\t   service    on     seniority-cum-fitness     basis
\n(non-selection)\t in  the  2\/3rd quota and  the\tother  being
\nAssistant Engineer Class II with eight years regular service
\non seniority-cum-merit basis (selection method) in the 1\/3rd
\nquota  selection  being made by the  Departmental  Promotion
\nCommittee with a member of the UPSC as Chairman.\n<\/p>\n
      The  stand taken by the applicants before the Tribunal
\nis  that while regular promotions to the grade of  Executive
\nEngineers  from the Assistant Executive Engineers cadre\t was
\nmade regularly from 1976.  However, the seniority in respect
\nof  Assistant  Engineers  Class II was\tnot  finalised\ttill
\nNovember  1987\tin  view of certain disputes  inter  se\t the
\npromotees  in  the cadre.  The D.P.C.\tthereafter  selected
\nfrom  the  category  of Assistant Engineers Class  II  in  a
\nmeeting\t held only in May 1988 when the D.P.C.\tselected the
\nappellants  for\t the vacancies belonging to their quota\t for
\nthe  years 1977 to 1982.  The appellants had thus worked for
\nlong  period  varying  from  6 to 11 years in  the  post  of
\nExecutive  Engineer on ad hoc before the D.P.C.\t could\tmeet
\nfor  finalising\t regular  promotion.  The  revision  of\t the
\nseniority  list which was challenged before the Tribunal, it
\nwas  submitted, was only a corrective action though  belated
\nto  render  justice  to\t the  affected\tpersons\t and  is  in
\ncompliance  of\tthe  judgment  of the Madras  Bench  of\t the
\nTribunal  dated\t October  12,  1990  in\t O.A.\tNo.   113\/89
\ndirecting  disposal  of\t the  representation  regarding\t the
\nseniority  of  one of the appellants.  It was  further\tmade
\nclear  in the said direction that it has to be decided after
\ntaking\tinto account the decision of the Principal Bench  of
\nthe  Tribunal in N.N.  Chakraborty case in O.A.\t No.  978\/87
\nand  of\t this Court in Direct Recruit Class  II\t Engineering
\nOfficers’  Association v.  State of Maharashtra & Ors.,<\/a> 1990
\n(2) SCC 715.  After noticing several decisions of this Court
\nand  of\t the Tribunal, it was held that under the  statutory
\nrecruitment  rules  promotions\tto  the\t post  of  Executive
\nEngineer  were to be made from among the Assistant Engineers
\nClass\tII   with   eight     years   regular\tservice\t  on
\nseniority-cum-merit  by selection method in the 1\/3rd  quota
\nand  admittedly the appellants were promoted on ad hoc basis
\nas Executive Engineers on different dates mentioned earlier.
\nThe  relevant  appointments were purely temporary and on  ad
\nhoc  basis  and were for a limited duration and it was\talso
\nmade clear that services on ad hoc basis will not confer any
\nclaim  in the matter of seniority, confirmation, etc.\tThus
\nit  was\t noticed  that the ad hoc promotions  were  made  in
\nadministrative exigencies since seniority lists of Assistant
\nEngineers  could  not  be  finalised   in  view\t of  pending
\nlitigation  and, therefore, the D.P.C.\tmeeting for  regular
\nselection  could  not  be arranged.  Non-  selection  for  a
\nselection  post\t can  hardly  be considered to\tbe  a  minor
\nprocedural deficiency and, therefore, the Tribunal concluded
\nthat selection was not by a competent D.P.C.  and the ad hoc
\npromotion was itself for a limited time and, therefore, does
\nnot fulfil the conditions mentioned in the decision in State
\nof West Bengal & Ors.  v.  Aghore Nath Dey & Ors..,<\/a> 1993 (3)
\nSCC 371.  The Tribunal is of the view that ad hoc service to
\ncount  for seniority must be rendered continuously till\t the
\ndate  of regularisation for 15 years or more and, therefore,
\nit  held that the appellants could not take advantage of the
\nad  hoc promotions made purely as a stop gap arrangement and
\nit  is\tonly  in special circumstances such ad\thoc  service
\ncould be counted for purpose of seniority as noticed in some
\nof   the  decisions  of\t  this\tCourt.\t Consequently,\t the
\napplication  filed by the contesting respondents was allowed
\nand it was declared that the appellants were not entitled to
\ncount  their  ad  hoc  service\tin  the\t post  of  Executive
\nEngineers   (Electrical)   for\t  seniority,   confirmation,
\npromotion, etc.<\/p>\n
      It is contended before us that regular promotions from
\nExecutive  Engineers, which is a feeder cadre, to the  grade
\nof  Superintending Engineer could not take place immediately
\nand four vacancies of Superintending Engineers had arisen by
\nthe  time  the\tmeeting of D.P.C.  was held on\tOctober\t 17,
\n1984.\tStrong reliance was placed on the counter  affidavit
\nfiled  before the Tribunal which is to the following  effect
\n:-  “The  first two points after Point No.  7  of  seniority
\nlist  dated 10-4- 85 thus, go to the officers promoted\tfrom
\nthe  rank  of  AEE(E)  and SL No.  10 goes  to\tthe  officer
\npromoted  from the rank of AE(E).  A point was left blank in
\nseniority list to accommodate an officer promoted from Group
\nB.   This  was erroneously shown as Sl No.  9 instead of  SL
\nNo.   10.   This mistake has later on been  rectified.\t The
\napplicant  cannot presume that in the selection process,  he
\nwill  find  the\t top most position on the  panel.   The\t DPC
\nchaired\t by  a\tMember\tof UPSC will  draw  a  select  panel
\naccording to statutory Recruitment Rules.”\n<\/p>\n
      Appellant No.  1 claimed that he was assigned top most
\nposition  by  the  D.P.C.   held on May\t 13,  1988  but\t the
\nprovisional  seniority\tlist dated January 12, 1989 did\t not
\nreflect\t his  position and in those circumstances he  sought
\npermission  to withdraw the pending application with liberty
\nto  file a fresh application.  So far as appellant No.\t2 is
\nconcerned,  he filed an O.A.  before the Madras Bench of the
\nTribunal  claiming seniority from the year 1982 when he\t was
\npromoted  on ad hoc basis to the grade of Executive Engineer
\n(Electrical).\tThe Tribunal rejected the contention  raised
\nby  the Department that he is deemed to be on regular  basis
\nonly  with  effect from May 13, 1988 when the  D.P.C.\tmet.
\nSince  the  seniority list dated January 12, 1989  was\tonly
\nprovisional  the Tribunal directed appellant No.  2 to\tmake
\nanother\t  representation  to  the   Department\t which\t the
\nDepartment  was\t directed to dispose of in  accordance\twith
\nlaw.   Pursuant to this direction given by the Madras  Bench
\nof  the\t Tribunal it is stated that the seniority had to  be
\nre-fixed  and,\ttherefore, it is contended that inasmuch  as
\nthey  had rendered service for a long period at any rate  in
\nhigher\tcadre and their promotions having been\tsubsequently
\nregularised  ought to be treated as giving them seniority in
\nthe matter.\n<\/p>\n
      The  stand taken by the contesting respondents is that
\nunder  the relevant rules the D.P.C.  should be headed by  a
\nmember\tof  UPSC  which\t was not done in  the  case  of\t the
\nappellants  at\tthe  time of their ad  hoc  appointment\t and
\nappellant  No.\t 1 was duly considered in 1978 and  was\t not
\nfound  suitable and for that reason his name did not  figure
\nin  the\t selection  list and there was no  additional  quota
\nvacancy\t in  the  grade of Executive  Engineer\t(Electrical)
\nmeant  for group B cadre officers upto 1985.  As a matter of
\nfact,  B.V.  Ramanamurthy, who is admittedly senior to\tboth
\nthe  appellants, was only regularised on June 28, 1985\twith
\neffect\tfrom  April 1, 1975 as he came under the purview  of
\nclause\t4C of amended rules published on September 22, 1984.
\nSince the appellants herein were not covered under clause 4C
\nof  amended  rules  1984 and also additional quota  was\t not
\navailable  as  such, they could not be regularised prior  to
\n1985.\tThe Tribunal has taken note of the fact that the  ad
\nhoc  promotions given to the appellants were not de hors the
\nrules.\t It  was  contended that there were  four  vacancies
\nagainst\t Assistant  Engineers’\tquota\tbut  Department\t had
\ninformed  the  D.P.C.\tto fill two  vacancies\tfrom  direct
\nrecruitment   and  the\tD.P.C.\t  accordingly  selected\t  K.
\nSubramanian  and  T.Mohan Rao though B.V.  Ramanamurthy\t and
\nthe  first  appellant were also eligible and vacancies\twere
\nexisting   they\t were  not   regularly\tpromoted  by   wrong
\ninterpretation\tof  rules  and\t separately  reserving\t two
\nvacancies  for\tpromotee  cadre.    Such  provision  is\t not
\nexisting  in  recruitment rules and the petitioners are\t the
\ninitial\t constituents  in  Assistant  Engineer\t(Electrical)
\ngrade and are much above promotees in the Assistant Engineer
\n(Electrical)  seniority list.  There was considerable  delay
\nin  the introduction of initial constitution clause and\t the
\nsame  was published only in 1984 after a gap of 9 years\t and
\ncame  into  force  with\t effect from  April  5,\t 1975.\t The
\nScreening   Committee  was  thereafter\t convened   by\t the
\nDepartment  on August 16, 1985 and appellants and  officers,
\nincluding  B.V.\t  Ramanamorthy and several  other  officers,
\nwere  promoted on the dates indicating against their  names.
\nAppellant  No.\t 1  and R.  Ravindran were not\tincluded  as
\ninitial\t constituents  since  they neither  completed  eight
\nyears  of service nor on ad hoc before April 5, 1975.  Their
\npromotions  fall  under\t maintenance  clause 4A\t and  4B  of
\namended\t rules\t1984.\tThey, however,\tformed\tthe  initial
\nconstituents in Assistant Engineer (Electrical) or Assistant
\nExecutive  Engineer (Electrical) cadre separately.  On\tthat
\nbasis  it was contended that the seniority list published is
\nin order.\n<\/p>\n
      The  Union  of India has also filed two appeals –\t one
\n(Civil\tAppeal\tNo.  3018 of 1997) arising out\tof  judgment
\ndated  June  27,  1996 in O.A.\tNo.  108\/96  passed  by\t the
\nMadras\tBench  of  the Central Administrative  Tribunal\t and
\nother  (Civil Appeal No.  5081 of 1994) against judgment and
\norder  dated November 5, 1993 passed by the Tribunal in O.A.
\nNo.   286\/92.  In O.A.\tNo.  108\/96 the Madras Bench of\t the
\nCentral Administrative Tribunal merely followed the judgment
\nof  the\t Tribunal which is under appeal before us  in  Civil
\nAppeal No.  3018 of 1997.\n<\/p>\n
      There  is\t another dimension to the case by reason  of
\nthe introduction of the Rules called “The Posts & Telegraphs
\nCivil Engineering (Electrical Gazetted Officers) Recruitment
\n(Amendment)  Rules,  1984”, which were\tgiven  retrospective
\neffect\tfrom April 5, 1975.  It is explained that the reason
\nfor  introduction of these Rules is that for recruitment  to
\nthe various posts in the Electrical Branch of the Civil Wing
\nof  the\t Posts\t&  Telegraphs\tDepartment,  the  rules\t  of
\nrecruitment  were published on the April 5, 1975.  Prior  to
\ncommencement  of the said Rules, there were officers who had
\njoined directly as Assistant Executive Engineer (Electrical)
\nthrough\t the Combined Engineering Services Examination\theld
\nby  the Union Public Service Commission.  Those who had come
\non  deputation from C.P.W.D.  were also deemed to have\tbeen
\nregularly  appointed  in the Posts &  Telegraphs  Department
\npursuant to a decision of the High Court of Allahabad.\tSome
\nof the officers were promoted to the higher grades on ad hoc
\nbasis.\t In  order  to ensure that these  officers  are\t not
\ndeprived of the service rendered by them before commencement
\nof the rules, it was proposed to incorporate retrospectively
\na  provision  for  initial   constitution  of  these  posts.
\nTherefore,  though the rules were amended by a\tnotification
\nissued\ton April 22, 1984 published in the Gazette of  India
\nand  it\t was given retrospective effect but the\t purpose  of
\ngiving retrospective effect to the provision relating to the
\ninitial\t constitution of these posts would not prejudicially
\naffect\tthe interests of any person already in service.\t  It
\nis  in this background, it is contended before us, that\t the
\ncases  of the appellants could not be considered to the post
\nof  Superintendent Engineers although they were\t functioning
\nas  the\t Executive  Engineers\twithout\t determining   their
\nposition  in the initially constituted cadre and that  could
\nbe  done  with\treference to the rules, as amended  in\t1984
\nwhich came into effect from April 5, 1975.  Though there may
\nhave been some delay and complications arising thereto there
\nis  another  factor  which needs to be considered  in  these
\ncases.\t The case of the 1st appellant was considered by the
\nDepartmental  Promotion\t Committee  in\t which\tAir  Marshal
\nT.S.Virk  was present on behalf of the UPSC and who presided
\nover  that meeting for selection of officers for officiating
\npromotion  to  the grade of Executive Engineer\t(Electrical)
\nand it was noticed that out of four vacancies, two vacancies
\nare  to\t be filled by promotion of direct recruit  Assistant
\nEngineer  (Electrical) and the remaining two vacancies\twere
\nkept  reserved\tfor  the  promotion  of\t Assistant  Engineer
\n(Electrical).  As no officer was available for consideration
\nat  present  and the Committee accordingly considered the  4
\neligible  officers and assessed them.  While  K.Subramanian,
\nT.Mohan\t Rao  and  B.V.Ramnamurthi were found  to  be  `very
\ngood’,\tthe  1st appellant was assessed to be  only  `good’.
\nThis  was  recorded  in the minutes of the  meeting  of\t the
\nDepartmental Promotion Committee held on June 2, 1978 in the
\noffice\tof  the\t UPSC.\tThereafter, in the  minutes  of\t the
\nmeeting\t of  the  meeting  of  the  Departmental   Promotion
\nCommittee  held on May 13, 1988, the 1st appellant was found
\nto be `very good’ for the year 1977 as an Executive Engineer
\n(Electrical)  Group A.\tIt is in these circumstances, it  is
\nto be considered whether the case of the 1st appellant could
\nhave been considered earlier to the date he was found fit to
\nbe promoted.  The initially constituted cadre is of the date
\nApril  5,  1975 and on that date the 1st appellant  had\t not
\nbeen  considered  for  promotion to the\t post  of  Executive
\nEngineer  and  he was found fit to be promoted as  Executive
\nEngineer only with effect from 1977, i.e., much later to the
\npromulgation  of  these rules.\tReliance has been placed  on
\nthe  decision  of  this\t Court in Direct  Recruit  Class  II
\nEngineering  Officers’ Association [supra].  That is a\tcase
\nwhere  the  quota rule between the direct recruits  and\t the
\npromotees  had\tbroken down and the appointments  were\tmade
\nfrom  one source in excess of the quota, but were made after
\nfollowing  the\tprocedure  prescribed by the rules  for\t the
\nappointment;   therefore,  it was held that  the  appointees
\nshould\tnot  be\t pushed down below the appointees  from\t the
\nother  source  inducted in the service at a later date.\t  In
\nthat case the direct recruits were not available in adequate
\nnumber\tfor  appointment and appropriate candidates  in\t the
\nsubordinate  rank  capable  of efficiently  discharging\t the
\nduties of Deputy Engineers were waiting in their queue.\t The
\ndevelopment  work  of  the   State  pre-emptorily   required
\nexperienced  and  efficient hands and in that situation\t the
\nState Government took a decision to fill up the vacancies by
\npromotion  in excess of the quota, but only after subjecting
\nthe   officers\tto  the\t test\tprescribed  by\tthe   rules.
\nTherefore,  in those peculiar conditions certain  directions
\nhad  been given by this Court inasmuch as the rigours of the
\nquota  rule having been neutralised and the seniority  being
\ndependent  on continuous officiation, the seniority so fixed
\nwould  not be defeated by the ratio fixed by the rules.\t  It
\nis difficult to appreciate as to how the principle stated in
\nthat  case could be extended to the case of 1st appellant in
\nthe  present  case as the quota rule had not broken down  in
\nany  manner  nor is there any material before the  court  to
\nshow   that  he\t has  not   been  duly\tconsidered  by\t the
\nDepartmental  Promotion Committee before appointment to\t the
\nhigher\tgrade.\tAgain in the case of State of West Bengal  &
\nOrs.   vs.  Aghore Nath Dey<\/a> [supra] the same question arose.
\nIn  that  case it was noticed that when reckoning  seniority
\nthe  length of the service may be a relevant factor.  If the
\nad  hoc selection is followed by regular selection, then the
\nbenefit\t of  ad\t hoc  service is not admissible\t if  ad\t hoc
\nappointment  is\t in violation of the rules.  If the  ad\t hoc
\nappointment  has  been made as the stop gap arrangement\t and
\nwhere\tthere  was  a\tprocedural  irregularity  in  making
\nappointments  according\t to rules and that irregularity\t was
\nsubsequently  rectified, the principle to be applied in that
\ncase  was stated once again.  There is difficulty in the way
\nof  the\t appellants  to fight out their case  for  seniority
\nshould\tbe  reckoned by reason of the length of the  service
\nwhether\t ad  hoc or otherwise inasmuch as they had not\tbeen
\nrecruited regularly.  As stated earlier, the appellants were
\nregularly  found fit for promotion only in the year 1977 and
\nif  that  period  is  reckoned\ttheir  cases  could  not  be
\nconsidered  as found by the Tribunal.  The view expressed by
\nthis  Court in these cases have been again considered in the
\ndecisions  in  Dr.   Anuradha  Bodi &  Ors.   v.   Municipal
\nCorporation of Delhi & Ors.,<\/a> 1998 (5) SCC 293;\tKeshav Deo &
\nAnr.   v.   State of U.P.  & Ors., 1999 (1) SCC 280;   Major
\nYogendra  Narain Yadav & Ors.  v.  Bindeshwar Prasad & Ors.,<\/a>
\n1997  (2) SCC 150;  I.K.  Sukhija & Ors.  v.  Union of India
\n&  Ors.,<\/a>  1997 (6) SCC 406;  Government of A.P.\t & Anr.\t  v.
\nY.   Sagareshwara Rao,<\/a> 1995 Supp.  (1) SCC 16, but all these
\ndecisions  do not point out that in case the promotions\t had
\nbeen  made  ad hoc and they are subsequently regularised  in
\nthe  service  in  all the cases, ad hoc\t service  should  be
\nreckoned  for the purpose of seniority.\t It is only in those
\ncases  where  initially they had been recruited even  though
\nthey  have been appointed ad hoc the recruitment was subject
\nto  the\t same  process as it had been done in  the  case  of
\nregular\t appointment  and that the same was not a  stop\t gap
\narrangement.   That is not the position in the present cases
\nat  all.   Therefore,  we are of the view  that\t conclusions
\nreached\t by the Tribunal appear to us to be correct and call
\nfor  no interference.  However, we make it clear, as noticed
\nearlier, that while amending the rules of recruitment in the
\n1984  all those who are already in service will be borne  in
\nmind  in adjusting the seniority amongst the promotees inter
\nse  and suitable adjustments could be made and so far as the
\ndirect\trecruits are concerned, their cases will go by their
\nquota rule and the view taken by the Tribunal in this regard
\ncannot be taken exception of.\n<\/p>\n
      Appeals stand dismissed accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M.K.Shanmugam & Anr vs Union Of India & Ors on 25 April, 2000 Author: R Babu Bench: N.S.Hegde, S.R.Babu, S.S.Ahmad PETITIONER: M.K.SHANMUGAM & ANR. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 25\/04\/2000 BENCH: N.S.Hegde, S.R.Babu, S.S.Ahmad JUDGMENT: RAJENDRA BABU, J. : Civil Appeal No. 5086 of 1994 This […]<\/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-38945","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM.K.Shanmugam & Anr vs Union Of India & Ors on 25 April, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-k-shanmugam-anr-vs-union-of-india-ors-on-25-april-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.K.Shanmugam & Anr vs Union Of India & Ors on 25 April, 2000 - 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