Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1712-1713 OF 2002

P. Sudhakar Rao & Ors.           …..Appellants

     Versus

U. Govinda Rao & Ors.          …..Respondents

J U D G M E N T  

Madan B. Lokur, J.

1. There  is  a  clear  distinction  between  weightage  given  for  

years  of  service  rendered  by  an  employee  for  purposes  of  

promotion and weightage given for years of service rendered by  

an employee for purposes of seniority in a grade. While the first  

concerns  eligibility  for  promotion  to  a  higher  post,  the  other  

concerns seniority for being considered for promotion to a higher  

post.  

2. To consider the validity of weightage for seniority purposes  

and its impact on the seniority of other employees, the following  

question has been referred to a larger Bench in these appeals.  

C.A. Nos. 1712-1713 of 2002 Page 1 of 42

Page 2

The  reference  order  is  reported  as  P.  Sudhakar  Rao  v.  U.  

Govinda Rao, (2007) 12 SCC 148.

- “Whether the decision given in  Devi Prasad v.  Govt. of A.P.  [1980 (Supp) SCC 206] and  State of A.P. v.  K.S. Muralidhar  [(1992) 2 SCC 241] laid down the correct law or the decision  given in  G.S. Venkat Reddy v.  Govt. of A.P.[1993 Supp (3)  SCC 425], K. Narayanan v. State of Karnataka [1994 Supp (1)  SCC 44] and  State of Gujarat v.  C.G. Desai  [(1974) 1 SCC  188] laid down the correct proposition of law?”

3. It appears to us that this question ought not to be answered  

in  the  narrow confines  in  which  it  is  framed,  nor  should  it  be  

answered on  the  basis  of  the  limited  submission  noted in  the  

reference  order  relating  to  “the  validity  of  the  rule  by  which  

retrospective seniority benefit was given to the Junior Engineers  

by G.O.Ms No. 54 Irrigation (Service IV-2) dated 15.2.1983.” The  

question  has  larger  implications  and  we  propose  to  answer  it  

keeping the broad canvas in mind.  We also propose, in this light,  

to  answer  the  question  on  merits  of  these  appeals,  namely,  

whether,  on  appointment  as  a  Junior  Engineer,  weightage  of  

service given to a Supervisor can be taken into account for fixing  

his seniority as a Junior Engineer, thereby effectively refixing the  

seniority with retrospective effect.  

C.A. Nos. 1712-1713 of 2002 Page 2 of 42

Page 3

Factual background: 4. Initially,  the  State  of  Andhra  Pradesh  had  a  single  

engineering  department.  This  was  subsequently  broken-up into  

several -

departments but we are not concerned with that. What we are  

concerned with is that at all material times, engineers in Andhra  

Pradesh  were  either  in  the  Andhra  Pradesh  Engineering  

Subordinate  Service  or  in  the  Andhra  Pradesh  Engineering  

Service.  

5. The  Andhra  Pradesh  Engineering  Subordinate  Service  

consisted, inter alia, of Junior Engineers who possessed a degree  

in  engineering  and  Supervisors  who  possessed  a  diploma  in  

engineering. Upon recruitment, both categories of engineers were  

placed in the same pay scale but Junior Engineers, by virtue of a  

better  academic  qualification,  had  a  higher  starting  pay  while  

Supervisors  were  placed  in  the  minimum  of  the  pay  scale.  

Functionally, both had more or less similar duties to perform. A  

Supervisor could, while in service, obtain an engineering degree  

and if he did so, he would be designated as a Junior Engineer and  

given a higher pay in the same pay scale.  

C.A. Nos. 1712-1713 of 2002 Page 3 of 42

Page 4

6. A  Junior  Engineer  or  a  Supervisor  was  eligible  for  

appointment by transfer as an Assistant Engineer in the Andhra  

Pradesh Engineering Service as it existed. This continued to be so  

till the Special Rules for the Andhra Pradesh Engineering Service  

were  promulgated by  issuance of  G.O.Ms.  No.  285 PWD dated  

22.2.1967. -

7. With effect from 22.2.1967 the Andhra Pradesh Engineering  

Service  consisted  of  five  categories  of  officers,  the  juniormost  

being Category 5  -  Assistant  Engineer.  As  mentioned above,  a  

Junior Engineer or a Supervisor was eligible for appointment by  

transfer  as  an  Assistant  Engineer  in  the  Andhra  Pradesh  

Engineering Service. The mode of recruitment was:

(a) By direct recruitment (or) (b)  By recruitment by transfer of  

(i) Junior  Engineers  and  Supervisors  of  the  Andhra  Pradesh  Engineering  Subordinate  Service;

(ii) Draughtsman,  Special  Grade  and  Draughtsman Grade-I of the Andhra Pradesh  Engineering Subordinate Service.  

8. Later,  by issuance of  G.O.Ms No.  1149 dated 5.11.1973 a  

sixth  category  of  officers  was  included  in  the  Andhra  Pradesh  

C.A. Nos. 1712-1713 of 2002 Page 4 of 42

Page 5

Engineering  Service,  namely,  Junior  Engineer  with  effect  from  

28.2.1972. This was declared a gazetted post. The inclusion of the  

post of Junior Engineer in the Andhra Pradesh Engineering Service  

resulted  in  its  consequent  exclusion  from  the  Andhra  Pradesh  

Engineering Subordinate Service.  The effect  of  this  was that  a  

separate cadre of Junior Engineers, distinct from erstwhile Junior  

Engineers/Supervisors was formed.  

-

9. The mode of recruitment for Junior Engineers in the Andhra  

Pradesh Engineering Service was now by direct recruitment. This  

meant  that  despite  having  an  engineering  degree,  Supervisors  

were not eligible for appointment as Junior Engineers on transfer.  

However,  the mode of  recruitment  for  the next  higher  post  of  

Assistant  Engineer  was  by  way  of  direct  recruitment,  by  

promotion  of  a  Junior  Engineer  having  not  less  than  5  years  

service in  the  grade and by  transfer  of  a  Supervisor  having  a  

minimum service of 10 years in the grade.  

10. To remedy this situation in the case of Supervisors who had  

obtained  an  engineering  degree  prior  to  28.2.1972  the  State  

Government issued G.O.Ms No. 893 dated 15.6.1972 inserting a  C.A. Nos. 1712-1713 of 2002 Page 5 of 42

Page 6

note  being  Note  2  under  Rule  4  of  the  Andhra  Pradesh  

Engineering Service Rules. Through this Note, a Supervisor was  

given  a  weightage  of  50% of  service  rendered  by  him on  his  

acquiring an engineering degree while in service. The weightage  

was subject  to a maximum period of 4 years service rendered  

prior to acquisition of the degree. The weightage was available as  

if the service had been rendered by the Supervisor in the post of  

Junior  Engineer.  The  weightage  was,  therefore,  available  for  

inclusion for appointment to -

the  post  of  Assistant  Engineer.  However,  the  weightage  was  

subject  to  certain  conditions,  one  of  them  being  that  it  was  

available to only those Supervisors who had obtained a degree  

prior to 28.2.1972.

11. Note  2  below Rule  4  (as  inserted)  in  the  Andhra  Pradesh  

Engineering Service Rules reads as follows:

“Supervisors  who  acquire,  while  in  service,  B.E.,  A.M.I.E.  (India) qualification shall  be entitled to count 50% of their  service rendered as Supervisor prior to acquisition of such  qualification, subject to a maximum limit of 4 years as if it  had been in the post of Junior Engineers for the purpose of  consideration  for  appointment  by  transfer  to  the  post  of  Assistant Engineer from Junior Engineer and subject to the  following conditions:

C.A. Nos. 1712-1713 of 2002 Page 6 of 42

Page 7

(1) They should render a minimum service of one year  after acquisition of B.E. or A.M.I.E. (India) qualification: (2)  They  should  be  considered  to  have  been  placed  below the list of the Junior Engineers of the year after  giving weightage as indicated above. (3)  They  should  put  in  a  total  service  of  5  years  as  Junior  Engineer  inclusive  of  the  period  given  as  weightage. (4) The benefit of weightage given above shall be given  effect for the purpose of all selections that are made by  Public Service Commission pertaining to the years from  2nd January, 1968 onwards till 28th February, 1972.” [Note:  Clause (4)  was subsequently  amended but we  are not concerned with the amendment].

12. The benefit of weightage granted to Supervisors by G.O.Ms  

No. 893 dated 15.6.1972 was challenged as being arbitrary, -

unreasonable  and  violating  Article  14  of  the  Constitution.  This  

Court rejected the challenge in  Devi Prasad and held that the  

benefit  of weightage was a matter of government policy which  

needed no interference since it was not unreasonable or arbitrary.  

13. In  what  appears  to  be  an  oblique  reference  to  loss  of  

promotional chances that Junior Engineers may have to suffer due  

to weightage being given to Supervisors this Court observed as  

follows:

“Perhaps there is force in the submission of Dr. Chitale that  the Junior Engineers have to face adversity in the matter of  

C.A. Nos. 1712-1713 of 2002 Page 7 of 42

Page 8

promotions.  All  that  we  can  do  is  to  emphasise  that  this  being a matter of government policy, the State will receive  any representation that may be made for change of policy  from the Junior  Engineers  and consider  whether  any such  change in the policy is justified in the circumstances of the  case. In so doing, there is no doubt that the other affected  groups will also be heard because administrative fair play is  basic to satisfaction of government servants as a class. We  say no more nor do we indicate that in our view there is any  hardship. We only mean to say that government will remove  hardships  if  by  modification  of  policy  it  can  achieve  this  result. Undoubtedly, in this process, both sides will have to  be heard not as a rule of law but as a part of administrative  fair play.”  

14. As mentioned above, the benefit of weightage was available  

to  only  those  Supervisors  who  had  obtained  an  engineering  

degree -

before 28.2.1972. There was no provision relating to those who  

had obtained a degree post 28.2.1972.  

15. Apparently  to  overcome this  anomaly,  and  as  a  result  of  

representations made, the State Government issued G.O.Ms No.  

451 dated 10.6.1976 containing a decision that Supervisors who  

have acquired a graduate qualification while in service should be  

appointed  temporarily  as  Junior  Engineers  (prospectively)  with  

immediate effect. This decision was implemented.

C.A. Nos. 1712-1713 of 2002 Page 8 of 42

Page 9

16. The  implementation  of  G.O.Ms  No.  451  resulted  in  

consequential  orders  relating to  weightage of  service rendered  

and the inter se seniority of Supervisors vis-à-vis Junior Engineers.  

The consequential  orders  were issued through G.O.Ms No.  559  

dated 18.7.1977. These orders provided as follows:  

“2.  Accordingly,  matters  relating  to  weightage,  seniority,  etc.,  have  been  examined  by  the  government  and  the  following orders are issued:—

(i) Supervisors who acquire graduate qualification may be  appointed  as  Junior  Engineers  on  or  after  February  28,  1972, subject to the availability of vacancies in the cadre  of Junior Engineers.

They  will  not  be  entitled  for  appointment  as  Junior  Engineers  automatically  from the  date  of  acquisition  of  degree qualification;

- (ii) A Supervisor, who is appointed as Junior Engineer, shall  be entitled to count one-third of the service rendered by  him  as  Supervisor,  before  his  appointment  as  Junior  Engineer,  subject  to  a  maximum of  four  years,  for  the  purpose  of  computing  the  service  as  Junior  Engineer,  which  will  render  him  eligible  for  consideration  for  promotion as Assistant Engineer.

(iii) The seniority of the Supervisors, who are appointed as  Junior  Engineers,  shall  be  fixed  with  reference  to  the  notional date arrived at after giving weightage of service;

(iv)  A  Supervisor,  who  is  appointed  as  Junior  Engineer,  shall  put  in  a  minimum  service  of  one  year  as  Junior  

C.A. Nos. 1712-1713 of 2002 Page 9 of 42

Page 10

Engineer  to  become eligible  for  promotion  as  Assistant  Engineer;

(v)  No  Supervisor  shall  ordinarily  be  eligible  for  appointment  as  Junior  Engineer  unless  he  has  not  in  a  minimum  service  of  three  years  as  Supervisors.  A  Supervisor with less than three years of service, who is  appointed as Junior Engineer for any special reason, shall  not be entitled to any weightage for his past service.

3. Necessary amendment to the Special Rules for the Andhra  Pradesh Engineering Service will be issued separately…….”

17. The interpretation of G.O.Ms No. 559 dated 18.7.1977 came  

up  for  consideration  before  this  Court  (through  the  State  

Administrative Tribunal) in Muralidhar. This Court dealt with the  

issue of seniority and concluded as follows:

“(i) The weightage of four years in respect of upgraded  Junior Engineers as provided in G.O.Ms. No. 559 has to be  reckoned from the date of appointment and not the date of  their acquiring the degree qualification;

- (ii)  On the basis of that notional date, their inter se  

seniority has to be fixed;

(iii)  The  regularisation  of  the  degree  holders  Junior  Engineers who passed the SQT by giving retrospective effect  cannot  be  held  to  be  illegal,  and  their  seniority  among  themselves shall be subject to the order of ranking given by  the Public Service Commission on the basis of the SQT;

(iv) The government shall prepare a common seniority list  of  the  degree  holders  Junior  Engineers  and  the  upgraded  Junior Engineers on the above lines and that list shall be the  basis for all the subsequent promotions. Promotions, if any,  

C.A. Nos. 1712-1713 of 2002 Page 10 of 42

Page 11

already  given  shall  be  reviewed  and  readjusted  in  accordance with the said seniority list; and

(v)  The  approval  of  the  Public  Service  Commission  in  respect of these appointments and their seniority thus fixed  need not be sought at this distance of time.”

Impugned G.O.Ms No. 54 dated 15.2.1983: 18. As mentioned in G.O.Ms No. 559 dated 18.7.1977 necessary  

amendments  in  the  Special  Rules  for  the  Andhra  Pradesh  

Engineering Service were carried out by issuance on 15.2.1983 of  

the  impugned  G.O.Ms  No.  54  with  effect  from 28.2.1972.  This  

G.O.Ms  is  significant  for  three  reasons:  (i)  it  had  retrospective  

operation; (ii) it statutorily regularized recruitment by transfer “of  

Supervisors  of  the  Andhra  Pradesh  Engineering  Subordinate  

Service who have acquired the B.E. or A.M.I.E. (India) qualification  

and who are approved probationers in that category.” and (iii) it  

inserted Note -

3 below Rule 4 of the Andhra Pradesh Engineering Service Rules.  

This  Note  dealt  with  issues  of  weightage  given  to  the  service  

rendered by a Supervisor and his/her entitlement to seniority. The  

Note reads as follows:

“(3) A Supervisor who is appointed by transfer as Junior Engineer  on or after 28.2.1972 shall be entitled to count l/3rd of the service  

C.A. Nos. 1712-1713 of 2002 Page 11 of 42

Page 12

rendered as Supervisor before appointment as Junior Engineer  subject to a maximum of 4 years weightage for the purpose of  computing the service as Junior Engineer, which will render  eligible for consideration for promotion as Assistant Engineer, and  subject to the following conditions:-

(i) The seniority of a Supervisor, who is appointed as Junior  Engineer shall be fixed in the category of Junior Engineers with  reference to the notional date arrived at after giving weightage of  service aforesaid;

(ii) A Supervisor who is appointed as Junior Engineer shall put in a  minimum service of one year on duty as Junior Engineer, after  such appointment, and a total service of five years as Junior  Engineer, inclusive of the period given as weightage to become  eligible for promotion as Assistant Engineer;

(iii) No Supervisor shall ordinarily be eligible for appointment as  Junior Engineer, unless he has put in a minimum service of three  years as Supervisor;

(iv) A Supervisor with less than three years of service, who is  appointed as Junior Engineer for any special reasons, shall not be  entitled to any weightage of his past service as Supervisor.”

-

19. Aggrieved by the issuance of G.O.Ms No. 54 dated 15.2.1983  

petitions  were filed by aggrieved Junior  Engineers  in  the State  

Administrative  Tribunal  questioning  its  validity.  The  Tribunal  

rendered its decision, which was then challenged in this Court.  

This Court remanded the matter for  fresh consideration by the  

C.A. Nos. 1712-1713 of 2002 Page 12 of 42

Page 13

State Administrative Tribunal which then upheld the validity of the  

G.O.Ms.  

Decision of the Tribunal: 20. In its decision regarding retrospective operation given to the  

G.O.Ms  the  Tribunal  held,  relying  upon  a  Constitution  Bench  

decision in  B.S. Yadav v. State of Haryana, 1980 Supp SCC  

524  that retrospective operation could be given to the G.O.Ms  

and that there was no illegality in this regard. It was further held  

that the impugned G.O.Ms merely gave statutory recognition to a  

situation existing through the executive order contained in G.O.Ms  

No. 559 dated 18.7.1977.

21. The Tribunal  also  upheld  the  grant  of  weightage given  to  

Supervisors who obtained a graduate degree. For arriving at this  

conclusion, the Tribunal referred to Devi Prasad which had found  

the benefit of weightage to be neither arbitrary nor unreasonable.  

A -

reference  was  also  made  to  Muralidhar  in  this  regard.  The  

Tribunal rejected the contention that because the post of Junior  

Engineer  had  become  a  gazetted  post  in  a  different  cadre,  a  

Supervisor who subsequently became a Junior Engineer was not  

C.A. Nos. 1712-1713 of 2002 Page 13 of 42

Page 14

entitled  to  weightage.  It  was  held  that  Supervisors  and  Junior  

Engineers continued to perform substantially the same functions  

and hold the same responsibilities. Therefore, the mere gazetting  

of  a  post  and  change  of  cadre  would  not  make  any  material  

difference to the principle laid down by this Court.  

22. On  the  issue  of  impacting  and  disturbing  the  seniority  of  

directly  recruited  Junior  Engineers  by  Supervisors,  the  Tribunal  

initially  dealt  with  the issue rather  cursorily  and held  that  the  

seniority  would  get  altered  and  that  there  would  be  a  certain  

amount of fluidity in the seniority of Junior Engineers but that was  

no reason to strike down G.O.Ms. However, later in its judgment,  

the Tribunal explained that weightage was all along being given to  

Supervisors and it is this that caused the fluidity in the seniority  

list of Junior Engineers.

-

23. The Tribunal then upheld the validity of the impugned G.O.Ms  

and disposed of the petitions pending before it by recording the  

following observations:

“(1) The Junior Engineers on acquisition of Degree qualification in  Engineering would be entitled for weightage of those  appointments are made or deemed to have been made under the  C.A. Nos. 1712-1713 of 2002 Page 14 of 42

Page 15

Rules providing for such appointments and weightage with  reference to their dates of appointment (not with reference to  acquisition of degree qualification) against a vacancy in the cadre  of Junior Engineer.

(2) The Government is advised to consider fixing a ratio between  direct recruits and those appointees by appointment by transfer  to the post of Junior Engineer (now Assistant Executive Engineer)  to the post of Assistant Engineer (now Deputy Executive  Engineer)”.

Decision of the High Court:

24. Feeling aggrieved by the decision rendered by the Tribunal,  

Junior Engineers challenged it in the Andhra Pradesh High Court.  

However, the petitioners in the High Court did not challenge the  

validity  of  the  entire  G.O.Ms  No.  54  dated  15.2.1983  but  

contended that  “the weightage rule  should  be confined to  the  

eligibility and the same should not be considered for the purpose  

of  seniority.”  The decision of  the High Court  is  reported as  U.  

Govinda Rao v. Government of Andhra Pradesh, 2002 (1)  

ALD 347 = 2002 (1) ALT 713.  

-

25. While adverting to the impact of the benefit of weightage on  

the seniority of Junior Engineers, the High Court drew attention to  

C.A. Nos. 1712-1713 of 2002 Page 15 of 42

Page 16

the averment in one of the cases wherein a chart was drawn of  

the  notional  seniority  given  to  Supervisors.  This  chart  is  as  

follows:

Sl.No. Name of the  respondent

Year of  passing  Degree

Appointment  as Assistant  Executive  Engineer  

(Supervisor)  by transfer

Notional date  as Assistant  Executive  Engineer

(Supervisor)

1. Md.Sirajuddin 1986 7.5.1986 6.5.1982 2. B. Seva 1986 6.5.1986 6.5.1982 3. Ms.  

Zinullabuddin 1986 31.7.1986 31.7.1982

4. G.Uppalaiah V.T. 1987 4.10.1987 19.11.1983 5. Venkateshwarlu 1987 4.10.1987 26.2.1984 6. K. Bhaskar 1988 8.9.1988 2.6.1985 7. P. MaheedarRaj 1988 3.3.1989 30.10.1985 8. A. Gopal 1988 31.3.1989 26.10.1985

26. The High Court noted that: (i) the notional date of seniority  

of Supervisors was given without any reference to any existing  

vacancy; (ii) seniority was given to the Supervisors from a date  

when they did not even possess the qualification to hold the post  

of -

C.A. Nos. 1712-1713 of 2002 Page 16 of 42

Page 17

Junior  Engineer,  and  (iii)  regularly  appointed  Junior  Engineers  

were being subjected to a loss of seniority at the instance of those  

Supervisors who had been regularized subsequently.  

27. The High Court then relied upon B.S. Yadav, K.C. Arora v.  

State of Haryana, (1984) 3 SCC 281,  P.D. Agarwal v. State  

of  U.P.,  (1987)  3  SCC  622  and  K.V.  Subba  Rao  v.  

Government of A.P., (1988) 2 SCC 201 to conclude that the  

civil right of seniority of the Junior Engineers could not be taken  

away by applying the impugned G.O.Ms retrospectively.  Relying  

upon Devi Prasad and Muralidhar it was held that weightage of  

past service can be given to the Supervisors only from the date of  

appointment.  

28. In conclusion,  it  was held that the impugned rule violates  

Article 14 and 16 of the Constitution in so far as it takes away the  

vested right of seniority of Junior Engineers vis-à-vis Supervisors.

Discussion on the judgments:

29. Feeling  aggrieved,  Supervisors  before  the  High  Court  

preferred these appeals. Since the issue of weightage of service  

for eligibility purposes was decided in their favour, the principal  

grievance (if not the only grievance) raised by them, as noted by  

C.A. Nos. 1712-1713 of 2002 Page 17 of 42

Page 18

the Bench that earlier heard these appeals is “the validity of the  

rule by which -

retrospective seniority benefit was given to the Junior Engineers  

by  G.O.Ms  No.  54  Irrigation  (Service  IV-2)  dated  15.2.1983.”  

Indeed, before us also, the only contention related to the issue of  

striking down the benefit of retrospective seniority given to the  

Supervisors.

30. The  question  referred  to  the  larger  Bench  arises  in  this  

context, but as noted above, it has wider implications.  

31. Desai is the earliest case mentioned in the reference order  

and this concerned the [Gujarat] Engineering Service Rules, 1960.  

This case dealt with two classes of employees: (a) those who had  

rendered  service  as  officiating  or  temporary  Deputy  Engineers  

prior  to  their  direct  recruitment  as  Deputy  Engineers,  and  (b)  

those promotee Deputy Engineers who had rendered service as  

officiating  or  temporary  Deputy  Engineers  prior  to  their  

promotion.  

32. The case of the category (a) employees was that their ‘pre  

direct  recruitment’  services  should  be  counted  as  ‘eligibility  

service’  for  purposes  of  their  next  promotion  as  Executive  C.A. Nos. 1712-1713 of 2002 Page 18 of 42

Page 19

Engineers since the ‘pre-promotion’ services of category (b) was  

being so counted. In other words, without the word ‘weightage’  

having actually been used, the category (a) employees wanted  

some  weightage  to  be  given  to  their  ‘pre  direct  recruitment’  

services. This Court found no basis -

for such an interpretation of the relevant recruitment rules. This  

Court  also  found  that  the  directly  recruited  Deputy  Engineers  

were  not  discriminated  against  vis-à-vis  promotee  Deputy  

Engineers in this regard since they fell in two distinct groups or  

classes  having  a  rational  basis.  Consequently,  there  was  no  

violation of Article 14 or Article 16 of the Constitution.  

33. The  following  two  paragraphs  from  the  judgment  of  this  

Court give the essence of the view of this Court:

“If a person, like any of the respondents, to avoid the  long tortuous wait leaves his position in the “never-ending”  queue  of  temporary/  officiating  Deputy  Engineers  etc.  looking  for  promotion,  and  takes  a  short  cut  through  the  direct channel, to Class II Service, he gives up once for all,  the advantages and disadvantages that go with the channel  of  promotion  and  accepts  all  the  handicaps  and  benefits  which attach to the group of direct recruits. He cannot, after  his direct recruitment claim the benefit of his pre-selection  service and thus have the best of both the worlds. It is well- settled that so long as the classification is reasonable and  the persons falling in the same class are treated alike, there  

C.A. Nos. 1712-1713 of 2002 Page 19 of 42

Page 20

can  be  no  question  of  violation  of  the  constitutional  guarantee of equal treatment.

“As pointed out by this Court in Ganga Ram case [(1970  1 SCC 377] in applying the wide language of Articles 14 and  16  to  concrete  cases,  doctrinaire  approach  should  be  avoided and the matter considered in a practical way. If the  claim  of  the  respondents  to  the  counting  of  their  pre- selection  service  is  conceded,  it  will  create  serious  complications in running the administration; it will result in  inequality of treatment rather than in removing it. If the pre- selection  service  as  officiating  Deputy  Engineers  of  direct  recruits having such service, is -

taken  into  account  for  the  purpose  of  promotion,  it  would  create  two  classes  amongst,  the  same  group  and  result in discrimination against those direct recruits who had  no such pre-selection service to their credit.”

34. The next decision in line is Devi Prasad which relates to the  

Andhra  Pradesh  Engineering  Subordinate  Service  Rules  and  is,  

therefore, important for our purposes. This decision came to be  

rendered as a result  of  the issuance of G.O.Ms.  No.  893 dated  

15.6.1972  relating  to  Supervisors  in  the  Andhra  Pradesh  

Engineering  Subordinate  Service.   By  the  said  G.O.Ms.  a  note  

being Note 2 was inserted under Rule 4 of the Andhra Pradesh  

Engineering Service Rules.  

35. Thereby a Supervisor working as a Junior Engineer was given  

a weightage of 50% of service rendered by him. This was treated  

as if the said Supervisor/Junior Engineer had rendered service in  C.A. Nos. 1712-1713 of 2002 Page 20 of 42

Page 21

the post of Junior Engineer for the purpose of consideration for  

appointment  to  the  post  of  Assistant  Engineer  from  Junior  

Engineer.  This  G.O.Ms was  challenged  as  being  arbitrary,  

unreasonable and in violation of Article 14 of the Constitution.   

36. As  is  evident,  the  effect  of  weightage  was  limited  to  

eligibility for appointment to the post of Assistant Engineer from  

Junior -

Engineer – it had no reference to seniority. This Court found that  

there was nothing capricious in the “limited benefit of weightage”  

being given to Supervisors.  This  Court  also concluded that  the  

grant  of  weightage  was  a  matter  of  government  policy  which  

needed no interference since it was not unreasonable or arbitrary.  

37. Considered from this point of view, there is  essentially no  

conflict between Desai and Devi Prasad. Both cases dealt with  

weightage for eligibility purposes and not with any reference to  

seniority based on the weightage given. It is true that in  Devi  

Prasad it is mentioned that Desai was distinguishable. However,  

the distinguishing feature did not relate to the rules – both were  

statutory – but related to the reasonableness thereof. In  Desai  

the employees took a short cut to the Class II service via direct  C.A. Nos. 1712-1713 of 2002 Page 21 of 42

Page 22

recruitment  and  thereby  gave  up  “the  advantages  and  

disadvantages  that  go  with  the  channel  of  promotion”  and  

accepted  “all  the  handicaps  and  benefits  which  attach  to  the  

group of direct recruits.” This was not so in  Devi Prasad where  

there  was  functional  parity  between  Junior  Engineers  and  

Supervisors  and  the  only  real  difference  between  the  two  

categories was the academic superiority of the Junior Engineers.  

-

38. The benefit of G.O.Ms No. 893 dated 15.6.1972 was available  

to only a limited category of Supervisors, namely those who had  

obtained  an  engineering  degree  prior  to  28.2.1972.  

Consequently, in response to representations made, the Andhra  

Pradesh  Government  issued  G.O.Ms  No.  451  dated  10.6.1976  

containing  a  decision  that  Supervisors  acquiring  a  graduate  

qualification  even  after  28.2.1972  should  be  appointed  

temporarily  as  Junior  Engineers  (prospectively)  with  immediate  

effect.

39. This resulted in consequential orders being G.O.Ms No. 559  

dated 18.7.1977 relating to weightage of service rendered and  

the inter se seniority of Supervisors vis-à-vis Junior Engineers.  C.A. Nos. 1712-1713 of 2002 Page 22 of 42

Page 23

40. The interpretation of G.O.Ms No. 559 dated 18.7.1977 was  

considered  in  Muralidhar.  This  Court  noted  in  the  opening  

paragraph of its decision that “The dispute is regarding the inter  

se seniority between the Supervisors who are upgraded as Junior  

Engineers and the degree holders who are directly appointed as  

Junior Engineers.”

41. This Court endorsed the terms of the G.O.Ms without actually  

going into the legality thereof. This was apparently because the  

issue of seniority had been burning for two decades and this Court  

-

wanted to bring a quietus to it. This is clear from the fact that in  

its  conclusion,  this  Court  bypassed  the  statutory  rules  which  

required the imprimatur of the Public Service Commission for the  

appointments made. While recording its  conclusions,  this Court  

said:

“Having given our careful consideration particularly to  the fact that this litigation has been pending for the last so  many years, about two decades, we feel that it is high time a  finality has to be reached by resolving the controversies and  in this context we are of the view that the approval of the  Public Service Commission in respect of these appointments  need  not  be  sought,  if  the  government  has  not  already  obtained the approval of the Public Service Commission. To  sum up, our conclusions are as under:

C.A. Nos. 1712-1713 of 2002 Page 23 of 42

Page 24

(i) The weightage of four years in respect of upgraded  Junior Engineers as provided in G.O.Ms. No. 559 has to be  reckoned from the date of appointment and not the date of  their acquiring the degree qualification;

(ii)  On the basis of that notional date, their inter se  seniority has to be fixed;

(iii)  The  regularisation  of  the  degree  holders  Junior  Engineers who passed the SQT by giving retrospective effect  cannot  be  held  to  be  illegal,  and  their  seniority  among  themselves shall be subject to the order of ranking given by  the Public Service Commission on the basis of the SQT;

(iv) The government shall prepare a common seniority list  of  the  degree  holders  Junior  Engineers  and  the  upgraded  Junior Engineers on the above lines and that list shall be the  basis for all the subsequent promotions. Promotions, if any,  already -

given shall be reviewed and readjusted in accordance with  the said seniority list; and

(v)  The  approval  of  the  Public  Service  Commission  in  respect of these appointments and their seniority thus fixed  need not be sought at this distance of time.”

42. Effectively, therefore, this Court not only accepted weightage  

of service for the benefit of Supervisors for eligibility purposes,  

but also for purposes of seniority by accepting the concept of a  

notional date for such a determination. As mentioned above, this  

Court did not consider the legality of the seniority of Supervisors  

based on weightage vis-à-vis Junior Engineers.

C.A. Nos. 1712-1713 of 2002 Page 24 of 42

Page 25

43. Venkat Reddy was decided on its own peculiar facts and to  

deal with a specific situation. As mentioned in the beginning of  

the judgment, the controversy “ relates to the determination of  

seniority  between  the  appellants  who  entered  service  in  the  

various  engineering  departments  of  the  State  initially  as  

Supervisors and who on acquiring a degree in engineering were  

redesignated  Junior  Engineers  and  those  graduate  Junior  

Engineers who were temporarily appointed on ad hoc basis under  

Rule  10(a)(i)(1)  of  the  Andhra  Pradesh  State  and  Subordinate  

Service Rules and whose -

services  were  later  regularised  under  GOMs  No.  647  dated  

September 14, 1979.”

44. Venkat  Reddy  concerned  itself  with  the  seniority  of  a  

limited class of Junior Engineers who were appointed temporarily  

on  an  ad  hoc  basis  and  subsequently  regularized.  The  case  

centred round the interpretation of the latter part of clause (ii)(a)  

of G.O.Ms No. 647 dated 14.9.1979 containing the words “should  

be regularised from the next date following the date on which the  

last regular appointment in that category was made in the unit  

concerned”. The relevant portion of the G.O.Ms reads as follows: C.A. Nos. 1712-1713 of 2002 Page 25 of 42

Page 26

“(i)  the  services  of  all  temporary  Government  employees  who were appointed by direct recruitment to any category or  post  and  are  continuing  in  service  as  on  August  9,  1979  should be regularised without subjecting them to any test  written or oral;

(ii)(a)  the  services  of  all  temporary  employees  in  all  categories, other than LDCs, Typists and Steno-typists, in the  Offices of the Heads of Departments and Junior Assistants,  Typists  and  Steno-typists  in  the  Secretariat,  should  be  regularised from the next date following the date on which  the last regular appointment in that category was made in  the  unit  concerned  or  from  the  date  of  temporary  appointment whichever is later;”

45. The controversy arose due to a ban on the recruitment of  

Junior Engineers through the Public Service Commission in Andhra  

Pradesh. To sidestep the ban, Junior Engineers were recruited on a  

-

temporary and ad hoc basis under Rule 10(a)(i)(1) of the Andhra  

Pradesh State and Subordinate Service Rules (paragraph 2 of the  

Report). This rule provides that where it is necessary in the public  

interest  to  emergently  fill  a  vacancy in  the  post  borne on  the  

cadre  of  a  service,  class  or  category  and if  the  filling  of  such  

vacancy in accordance with the rules is likely to result in undue  

delay, the appointing authority may appoint a person temporarily  

C.A. Nos. 1712-1713 of 2002 Page 26 of 42

Page 27

otherwise than in accordance with the said rules (paragraph 10 of  

the Report).

46. In due course of time, the question of the regularization of  

these  Junior  Engineers  came  up  for  consideration.  The  State  

Government then lifted the ban on recruitment and decided to  

regularize  the  services  of  the  temporary  and  ad  hoc  Junior  

Engineers after subjecting them to a Special Qualifying Test (SQT)  

conducted by the Public Service Commission.  

47. Some temporary and ad hoc Junior Engineers were ineligible  

to take the SQT while others were eligible and they did take the  

test  but  did  not  qualify.  It  was  to  accommodate  these  Junior  

Engineers (and others similarly placed) that G.O.Ms No.647 dated  

14.9.1979 was issued and it is under these atypical circumstances  

that Venkat Reddy was decided and the expression relating to -

regularization “from the next date following the date on which the  

last regular appointment in that category was made” occurring in  

the said G.O.Ms interpreted. Given these facts, this decision does  

not impact on the question that we are concerned with in these  

appeals.  

C.A. Nos. 1712-1713 of 2002 Page 27 of 42

Page 28

48. Narayanan concerned  itself  with  the  validity  of  the  

Karnataka  Public  Works  Engineering  Department  Service  

(Recruitment) (Amendment) Rules, 1985. These were challenged  

by  directly  recruited  Assistant  Engineers,  inter  alia,  for  giving  

retrospective appointment to diploma holders and seniority even  

prior to the date of their eligibility. More specifically,  this Court  

considered  the  impact  of  retrospective  operation  of  an  

amendment to the rules made in 1985 with effect from 1976 and  

finding  no  nexus  between  the  appointment  and  giving  

retrospective  effect  to  the  appointment,  struck  down  its  

retrospective operation. In this context, it was observed:

“The retrospective operation of the impugned rule attempts  to disturb a system which has been existing for more than  twenty years. And that too without any rationale. Absence of  nexus apart no rule can be made retrospectively to operate  unjustly and unfairly against other (sic). In our opinion the  retrospective operation of the rule with effect from January  1, 1976 is discriminatory and violative of Articles 14 and 16.”  

49. This Court quoted Note (2) relating to the appointment by  

transfer of a Junior Engineer to the post of Assistant Engineer, as  

introduced by the impugned amendment. However, it did not deal  

with  the  issue  of  seniority,  apparently  since  the  retrospective  

operation of the impugned rule was struck down, which had its  C.A. Nos. 1712-1713 of 2002 Page 28 of 42

Page 29

consequential effect. Note (2) as per the impugned amendment  

reads as follows:   

“2.  Amendment of the Schedule: In the Schedule to the  Karnataka  Public  Works  Engineering  Department  Services  (Recruitment)  Rules,  1960,  in  the  entries  relating  to  the  category of posts of ‘Assistant Engineer’ for columns (2) and  (3) the following shall be substituted, namely:

By direct recruitment or by transfer of a Junior Engineer.

For Direct recruitment: Should  be  a  holder  of  a  degree in  Civil  Engineering  or  

Mechanical  Engineering depending upon the requirements,  as  the  case  may  be  or  of  a  Diploma  certificate  from  a  recognised Institute of Engineers that he has passed parts A  and  B  of  the  Associate  Membership  Examination  of  the  Institute of Engineers or equivalent qualification. Age: Must  not have attained the age of thirty-five years.

For transfer: Must  possess  B.E.,  or  AMIE  (India)  qualification  in  Civil  

Engineering, or Mechanical Engineering.

Note (1)  The  option  of  the  Junior  Engineer  shall  be  obtained before such transfer within the time stipulated by  the Government.

Note (2) The transfer shall be effective from the date of  graduation subject  to  the availability  of  vacancies without  ignoring the inter se seniority among those eligible for such  transfer.”

50. Without discussion, this Court restricted the applicability of  

Note (2) and held that it shall be read as providing eligibility only.

C.A. Nos. 1712-1713 of 2002 Page 29 of 42

Page 30

51. To sum up,  therefore,  Desai  and  Devi Prasad  dealt  with  

issues of granting weightage to a section of employees for the  

purposes of eligibility for appointment or promotion. In principle,  

this Court did not object to the grant of weightage, provided that  

it did not violate Article 14 or Article 16 of the Constitution. The  

principle  having  been  settled  by  this  Court,  the  validity  of  a  

statutory rule or executive order would have to be tested on that  

touchstone.

52. Muralidhar  endorsed  Desai  and  Devi  Prasad  on  the  

principle relating to the grant of weightage for eligibility purposes.  

This  issue,  therefore,  is  no  longer  res  integra.  However,  

Muralidhar extended the weightage, sub silentio, to the issue of  

seniority as well without examining the legality or validity thereof.  

The issue of weightage for seniority was not specifically raised  

before this Court -

and it also appears, as mentioned above, that this Court wanted  

to bring a quietus to litigation pending for about two decades on  

the issue. That the expectation of this Court was belied is clear  

from the fact that another two decades have gone by and we are  

still grappling with this issue. C.A. Nos. 1712-1713 of 2002 Page 30 of 42

Page 31

53. Venkat  Reddy  was  decided  in  the  context  of  a  specific  

situation  and  did  not  lay  down  any  general  principle  for  

application either confirming or contradicting the principles laid  

down in Desai, Devi Prasad or Muralidhar.

54. Narayanan  also  did  not  concern itself  with  the validity  of  

weightage  of  service  for  appointment  or  promotion  nor  did  it  

concern itself with any issue of seniority. It was confined merely to  

the  retrospective  operation  of  a  statutory  rule,  which  it  struck  

down with consequential effect.  

55. Where  does  this  leave  us  in  so  far  as  the  decisions  

mentioned in the reference order are concerned? On the question  

of weightage of service for appointment or promotion the issue is  

now  well  settled.  However,  on  the  question  of  weightage  of  

service for seniority, the issue is still open since the judgments in  

the reference -

deal with different and, in some cases, specific or limited issues.  

Hence this reference.

56. The problem as we see it is that somewhere down the line,  

the issue came to be limited to the Andhra Pradesh Engineering  

Service.  In  our  opinion,  the  reference  concerns  a  much  larger  C.A. Nos. 1712-1713 of 2002 Page 31 of 42

Page 32

audience and we propose to answer it in that light and not in the  

limited context of the submission made relating to the validity of  

the rule by which retrospective seniority benefit was given to the  

Junior Engineers by G.O.Ms No. 54 dated 15.2.1983.

Answering the questions: 57. As far  as the impact of the retrospective operation of the  

executive  instructions  or  statutory  rules  on  the  seniority  of  

employees  is  concerned  (including  the  Junior  Engineers  before  

us),  this issue is  now settled by a few recent decisions of this  

Court. There is no doubt that retrospective operation can be given  

to statutory rules such as the Andhra Pradesh Engineering Service  

Rules. But, the retroactivity must still meet the test of Article 14  

and Article 16 of the Constitution and must not adversely trench  

upon the entitlement of seniority of others.

-

58. Without  intending  to  multiply  precedents  on  this  subject,  

reference may be made to a decision rendered by this Court more  

than two decades ago. In State of Bihar v. Akhouri Sachindra  

Nath, 1991 Supp (1) SCC 334 it  was held that retrospective  

seniority cannot be given to an employee from a date when he  

C.A. Nos. 1712-1713 of 2002 Page 32 of 42

Page 33

was not even born in the cadre. So also, seniority cannot be given  

with retrospective effect so as to adversely affect others. Seniority  

amongst members of the same grade must be counted from the  

date of their initial entry into the grade. It was held:  

“In the instant case, the promotee respondents 6 to 23 were  not  born  in  the  cadre  of  Assistant  Engineer  in  the  Bihar  Engineering Service, Class II at the time when respondents 1  to 5 were directly recruited to the post of Assistant Engineer  and as such they cannot be given seniority in the service of  Assistant Engineers over respondents 1 to 5. It is well settled  that  no person can be promoted with  retrospective effect  from a date when he was not  born in  the cadre so as to  adversely affect others. It is well settled by several decisions  of  this  Court  that  amongst  members  of  the  same  grade  seniority is reckoned from the date of their initial entry into  the service. In other words, seniority inter se amongst the  Assistant Engineers in Bihar Engineering Service, Class II will  be  considered  from  the  date  of  the  length  of  service  rendered as Assistant Engineers. This being the position in  law  respondents  6  to  23  cannot  be  made  senior  to  respondents 1 to 5 by the impugned government orders as  they  entered  into  the  said  service  by  promotion  after  respondents 1 to 5 were directly recruited in the quota of  direct recruits. The judgment of the High Court quashing the  impugned government orders made in Annexures 8, 9 and  10 is unexceptionable.”

59. This decision was cited with approval, a few years ago, along  

with the decision rendered in  Keshav Chandra Joshi v. Union  

of India, 1992 Supp (1) SCC 272. This Court held that when a  

quota is provided for, then the seniority of the employee would be  

C.A. Nos. 1712-1713 of 2002 Page 33 of 42

Page 34

reckoned from the date when the vacancy arises in his/her quota  

and not from any anterior date of promotion or subsequent date  

of  confirmation.  It  was observed that  injustice ought not  to  be  

done to one set of employees in order to do justice to another set.  

It  was  said  in Uttaranchal  Forest  Rangers'  Assn.  (Direct  

Recruit) v. State of U.P., (2006) 10 SCC 346, on referring to  

these judgments that:

“We are also of the view that no retrospective promotion or  seniority can be granted from a date when an employee has  not even been borne in the cadre so as to adversely affect  the  direct  recruits  appointed  validly  in  the  meantime,  as  decided by this Court in  Keshav Chandra Joshi v.  Union of  India [1992 Supp (1) SCC 272] held that when promotion is  outside the quota, seniority would be reckoned from the date  of  the  vacancy  within  the  quota  rendering  the  previous  service fortuitous. The previous promotion would be regular  only  from  the  date  of  the  vacancy  within  the  quota  and  seniority shall be counted from that date and not from the  date of his earlier promotion or subsequent confirmation. In  order to do justice to the promotees, it would not be proper  to do injustice to the direct recruits……

- “This  Court  has  consistently  held  that  no  retrospective  promotion can be granted nor any seniority can be given on  retrospective basis from a date when an employee has not  even  borne  in  the  cadre  particularly  when  this  would  adversely affect the direct recruits who have been appointed  validly in the meantime.”

C.A. Nos. 1712-1713 of 2002 Page 34 of 42

Page 35

60. However, the mere existence of a vacancy is not enough to  

enable  an  employee  to  claim  seniority.  The  date  of  actual  

appointment in accordance with the required procedure becomes  

important  in  such  a  case.  This  was  so  held  in  State  of  

Uttaranchal  v.  Dinesh Kumar Sharma, (2007)  1  SCC 683  

[followed in Nani Sha v. State of Arunachal Pradesh, (2007)  

15 SCC 406] where it was said:  

“Another  issue that  deserves consideration is  whether the  year in which the vacancy accrues can have any relevance  for the purpose of determining the seniority irrespective of  the  fact  when  the  persons  are  recruited.  Here  the  respondent's contention is that since the vacancy arose in  1995-96 he should be given promotion and seniority  from  that year and not from 1999, when his actual appointment  letter was issued by the appellant. This cannot be allowed as  no  retrospective  effect  can  be  given  to  the  order  of  appointment order under the Rules nor is  such contention  reasonable to normal parlance. This was the view taken by  this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4  SCC 456].”

61. More  recently,  and  finally,  in Pawan  Pratap  Singh  v.  

Reevan Singh, (2011) 3 SCC 267 all  relevant precedents on  

the  subject  were  considered,  including  the  Constitution  Bench  

decision in -

C.A. Nos. 1712-1713 of 2002 Page 35 of 42

Page 36

Direct  Recruit  Class  II  Engg.  Officers'  Assn. v.  State  of  

Maharashtra,  (1990)  2  SCC  715 and  the  legal  position  

summarized (by Lodha, J.) as follows:  

“(i) The effective date of selection has to be understood in  the context of the service rules under which the appointment  is  made.  It  may  mean  the  date  on  which  the  process  of  selection starts with the issuance of advertisement or the  factum of preparation of the select list, as the case may be.

(ii)  Inter  se  seniority  in  a  particular  service  has  to  be  determined as per the service rules. The date of entry in a  particular service or the date of substantive appointment is  the safest criterion for fixing seniority inter se between one  officer or the other or between one group of officers and the  other  recruited  from  different  sources.  Any  departure  therefrom in  the  statutory  rules,  executive  instructions  or  otherwise  must  be  consistent  with  the  requirements  of  Articles 14 and 16 of the Constitution.

(iii)  Ordinarily,  notional  seniority may not be granted from  the backdate and if it is done, it must be based on objective  considerations  and  on  a  valid  classification  and  must  be  traceable to the statutory rules.

(iv)  The  seniority  cannot  be  reckoned  from  the  date  of  occurrence  of  the  vacancy  and  cannot  be  given  retrospectively  unless  it  is  so  expressly  provided  by  the  relevant service rules. It is so because seniority cannot be  given on retrospective basis when an employee has not even  been borne in the cadre and by doing so it may adversely  affect the employees who have been appointed validly in the  meantime.”

C.A. Nos. 1712-1713 of 2002 Page 36 of 42

Page 37

62. In a separate but concurring opinion, Aftab Alam, J. reiterated  

the position but referred to some more precedents on the subject.  

It was then said:

- “To  the  decisions  referred  to  on  this  point  in  the  main  judgment I may add just one more in Suraj Parkash Gupta v.  State of J&K  [(2000) 7 SCC 561]. The decision relates to a  dispute of seniority between direct recruits and promotees  but  in  that  case  the  Court  considered  the  question  of  antedating the date of recruitment on the ground that the  vacancy  against  which  the  appointment  was  made  had  arisen long ago. In SCC para 18 of the decision the Court  framed one of the points arising for consideration in the case  as follows: (SCC p. 578)

“18.  … (4)  Whether  the direct  recruits  could claim a  retrospective date of recruitment from the date on which  the post in direct recruitment was available, even though  the direct recruit was not appointed by that date and was  appointed long thereafter?”

This  Court  answered  the  question  in  the  following  terms:  (Suraj Parkash Gupta case SCC p. 599, paras 80-81)

“Point 4 Direct recruits cannot claim appointment from the date   of vacancy in quota before their selection 80.  We  have  next  to  refer  to  one  other  contention  

raised by the respondent direct recruits. They claimed that  the direct recruitment appointment can be antedated from  the  date  of  occurrence  of  a  vacancy  in  the  direct  recruitment quota, even if  on that date the said person  was  not  directly  recruited.  It  was  submitted  that  if  the  promotees occupied the quota belonging to direct recruits  they had to be pushed down, whenever direct recruitment  was made. Once they were so pushed down, even if the  

C.A. Nos. 1712-1713 of 2002 Page 37 of 42

Page 38

direct recruit came later, he should be put in the direct  recruit  slot  from  the  date  on  which  such  a  slot  was  available under the direct recruitment quota.

81.  This contention, in our view, cannot be accepted.  The reason as to why this argument is wrong is that in  service jurisprudence, a direct recruit can claim seniority  only from the date of his regular appointment. He cannot  claim seniority from a date when he was not borne in the  service. -

This principle is well settled. In N.K. Chauhan v. State of  Gujarat [(1977) 1 SCC 308], Krishna Iyer, J. stated: (SCC p.  325, para 32)

Later  direct  recruit  cannot  claim  deemed  dates  of  appointment for seniority with effect from the time when  direct  recruitment  vacancy  arose.  Seniority  will  depend  upon length of service.

Again, in A. Janardhana v. Union of India [(1983) 3 SCC 601]  it was held that a later direct recruit cannot claim seniority  from a date before his birth in the service or when he was in  school or college. Similarly it was pointed out in A.N. Pathak  v. Secy. to the Govt. [(1983) 3 SCC 601] that slots cannot be  kept  reserved  for  [the]  direct  recruits  for  retrospective  appointments.”

63. The facts of the appeals before us show that at least some of  

the  Supervisors  were  given  retrospective  seniority  on the date  

when  they  were  not  even  eligible  for  appointment  as  Junior  

Engineers.   The precedents referred to above show that this is  

impermissible. In addition as pointed out by the High Court, there  

is  no  indication  of  the  vacancy  position,  that  is,  whether  the  

C.A. Nos. 1712-1713 of 2002 Page 38 of 42

Page 39

Supervisors could be adjusted in  the grade of  Junior  Engineers  

from the date on which they were given notional  retrospective  

seniority.  There  is  also  no  indication  whether  the  quota  of  

vacancies for Supervisors was adhered to as on the date on which  

they  were  given  notional  retrospective  seniority.  The  case  law  

suggests that this is an -

important factor to be considered. Finally, it is quite clear that the  

grant  of  retrospective  seniority  to  Supervisors  has  adversely  

impacted  on  the  promotion  chances  of  Junior  Engineers  by  

bringing them down in seniority. This too is impermissible.   

64. From the various decisions referred to and from the facts of  

the case, it is clear that to pass the scrutiny of Article 14 of the  

Constitution, the seniority of Supervisors should be reckoned only  

from the date on which they satisfied all the real and objective  

procedural  requirements  of  the  Andhra  Pradesh  Engineering  

Service Rules and the law laid down by this Court.  This has not  

happened  in  the  present  appeals  creating  a  situation  of  

unreasonableness and unfairness.

65. It may be mentioned that by the time Muralidhar came to  

be decided, the impugned  G.O.Ms No. 54 dated 15.2.1983 had  C.A. Nos. 1712-1713 of 2002 Page 39 of 42

Page 40

already  come  into  existence.  Though  this  was  brought  to  the  

notice  of  this  Court,  its  validity  was  neither  examined  nor  

determined.  This  is  the  first  occasion  when  the  constitutional  

validity of the said G.O.Ms has been considered.   

-

Conclusion:

66. For the reasons aforesaid, we see no occasion for interfering  

with the view taken by the High Court to the effect that the grant  

of retrospective seniority to Supervisors on their appointment as  

Junior  Engineers  violates  Article  14  of  the  Constitution.  The  

weightage  of  service  given  to  the  Supervisors  can  be  taken  

advantage of only for the purpose of eligibility for promotion to  

the post of Assistant Engineer.  The weightage cannot be utilized  

for obtaining retrospective seniority over and above the existing  

Junior Engineers.

67. We may mention that in Asis Kumar Samanta v. State of   

West  Bengal,  (2007)  5  SCC  800,  the  question  whether  

retrospective promotion or seniority can be granted or not has  C.A. Nos. 1712-1713 of 2002 Page 40 of 42

Page 41

been referred by a Bench of two learned Judges to a larger Bench.  

It  has  been  noted  therein  that  the  grant  of  retrospective  

promotions  and  seniority  was  accepted  by  this  Court  in  four  

decisions  while  grant  of  retrospective seniority  was held  to  be  

ultra vires in five decisions.   When these appeals came up for  

hearing on 02.5.2013, learned counsel for Asis Kumar Samanta  

sought an adjournment to make alternative arrangements since  

he could not appear against the -

State of  West  Bengal.   Accordingly,  that  matter was adjourned  

beyond the ensuing summer vacations.

68. Be that as it may, the pendency of a similar matter before a  

larger Bench has not prevented this Court from dealing with the  

issue on merits. Even on earlier occasions, the pendency of the  

matter before the larger Bench did not prevent this Court from  

dealing with the issue on merits.  Indeed, a few cases including  

Pawan Pratap Singh were decided even after the issue raised in  

Asis  Kumar  Samanta was  referred  to  a  larger  Bench.  We,  

therefore, do not feel constrained or precluded from taking a view  

in the matter.

C.A. Nos. 1712-1713 of 2002 Page 41 of 42

Page 42

69. The question referred to us is answered accordingly and the  

appeals are dismissed, but with no order as to costs.

        ...…….……………………..J.     (R.M. Lodha)

                   ..…….……………………..J.   (Madan B. Lokur)

..…….……………………..J.     (Kurian Joseph)

New Delhi July 3, 2013

C.A. Nos. 1712-1713 of 2002 Page 42 of 42