A.N. SEHGAL AND ORS. v. RAJE RAM SHEORAN AND ORS.

The following Order of the Court was delivered :

This Court in A.N. Sehgal & Ors. v. Raje Ram Sheoran & Others, [1992] Supp 1 SCC 304, while interpreting the Haryana Service of En- gineers, Class I, PWD (Roads and Buildings Branch) Rules, 1960, held G that:-

"On a conjoint reading of Rules 12(3) and 12(5) it is clear that the year of allotment of the Assistant Executive Engineer in the post of Executive Engineer, shall be the calendar year in which the order of appointment as Assistant Executive Engineer had been H

p. 106

A made. Thus his seniority as Executive Engineer, by fiction of law, would relate back to his date of initial appointment as Assistant Executive Engineer and in juxtaposition to Class II officers' seniority as Executive Engineer is unalterable. The date of the seniority of Mr. R.R. Sheoran thus shall be August 30, 1971. His seniority as Executive Engineer shall accordingly be reckoned." B While Mr. R.S. Sheoran's seniority as Executive Engineer has deter- mined as above, with effect from August 30, 1971, as regards the promotees, this Court held that:-

"A reading thereof clearly manifests the legislative animation, c namely, that the promotees from Class II service shall not exceed 50 per cent of the posts in the service. The word 'shall' indicates that it is mandatory that the remaining 50 per cent shall be kept open only to the Assistant Execut:ve Engineers who were directly recruited but later were found eligible and fit for promotion as D Executive Engineers. 11

In para 21 of the judgment, as to what a combined reading of Rule 5(2) read with Rule 12(6) and the operation of Sub-rule (3) to (5) of Rule 12 would bring about was made clear, namely, "the direct recruit is a E member of the service of Executive Engineer from the date of year of allotment as an Assistant Executive Engineer. The result was that the promotee occupying the post within 50% quota of the direct recruits acquired no right to the post and should yield place to the direct recruit, though promoted later to him, to the senior scale posts, i.e. Executive Engineer, Superintending Engineer and Chief Engineer." F It was also held that:

"A direct recruit on promotion with his quota, though later to the promotee is interposed in between the periods and interjects the promotee's seniority; snaps the links in the chain of continuity and steals a march over the approved promotee probationer."

"Mere officiating appointment by promotion to a cadre post outside the quota continuous officiation therein and declaration of probation would not clothe the promotee with any rigl:t to claim seniority over the direct recruits. 11

AN. SEHGAL v. RAJE RAM SHEORAN 107

On that premise, appropriate directions have been given in para- A graph 26, namely, to determine the cadre strength of the service under Rule 3(2) read with Appendix'A' and to allot the posts in each year of allotment to the promotees and direct recruits 50:50 as contemplated under Rule 12 read with 5(2) and to issue appointment orders on substantive basis in the respective posts. B This Court on April 5, 1991, while delivering two judgments ordered that the respondents should comply with the directions within four months from the date of the receipt of the judgment. Tue contempt application was filed on 9.1.92. No time for extension was sought for. Even after the contempt proceedings, while notice was issued, though time was repeatedly taken, the respondent have done the exercise at a snail's pace. These facts clearly impress us that the respondents have deliberately delayed in finalisation of seniority list to benefit the existing promotees till they retired from the service. This impression gets fortification from a cursory glance at the mandatory time frame fixed in the judgment, orders passed from time to time and final list prepared by the respondents. Even then the fitlp.ent itself has not been done as per the· specific and unambigoous findings recorded and directions contained therein. It is clear from the fitment made vis-a-vis promotees and direct recruits as is evident from the seniority list prepared by the respondents. Take for instance, the promo- tion of direct recruit, M.K. Aggarwal at SI.No. 22 was effected in the year E

1962. Up to January 11, 1962, no direct recruit was available. He was appointed for the first time on 11.1.62. As stated earlier, he is entitled to be treated as Executive Engineer with effect from 1962 though he was promoted after putting up 5 years service i.e. 1967 as 10 posts by then were available to the direct recruits. This is only fictional since, admittedly, 21 F -'. . posts were occupied by the promotees. As a result of the operation of Rule 12, promotees are entitled to occupy only 10 or 11 posts. Therefore, notionally he was required to be treated and that he should be deemed to have been promoted with effect from 11.1.62 as Executive Engineer. In- stead they have given him the fitment in 1966 as year of allotment. It has gone directly in the teeth of the direction given by this Court. R.A. Goel, G although promoted earlier, he should have been found to be available only .L later to M.K. Agrawal, since all the promotees enmass occupied places in excess of their quota, namely, 10 posts.

Similarly, vis-a-vis the petitioner Sheoran in this contempt case and H

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p. 108

A R.K Aggarwal standing at SI. No. 39 would also demonstrate the deliberate action on the part of the respondents in repeating the same illegal fitment. It is already seen that Sheorao's seniority was determined with effect from 30.8.71 even as Executive Engineer. Here the reason was that 5 years' service was relaxed to all promotees aod direct recruits aod 50% quota to the direct recruits remained uofilled. But his seniority as Executive En- gineer is given as October 8, 1973. Equally, while making inter se fitment of promotees aod direct recruits, year of allotment has been designedly given to R.K. Agrawal as 1966. He was given fitment With effect from 1.1.72. But the year of allotment was 1966 in which year the promotees were in exc~ss of 50% quota aod pushed Sheorao to SI. No. 44. The availability of posts within the quota of the promotees was admittedly to be 1.1.72. While the year of allotment as Executive Engineer was given to Sheorao as 8.10.73 but to Aggarwal, it was given as July 10, 1972 which obviously is illegal and was quite contrary to the Rules as interpreted by this Court in the judgment. This action shows that there is no sincerity on the part of the respondents in implementation of the Rules as directed by this Court. This conduct is wilful aod the impugned action was designedly done to give a twist to the orders so as to favour the promotees for whom !lie respon- dents already fought for but lost.

Therefore, the respondents are directed to rectify this illegality as pointed out earlier and place the rectified order within one week. The concerned officer should be present on that day to receive appropriate orders on contempt.

Post the matter on 7.4.95.

T.N.A. Petition disposed of. >