STATE OF MAHARASHTRA v. PURSHOTTAM

MAY 7, 1996.

B

Service Law :

Maharashtra Service of Engineers Class-I and Class-II Cadre Rules-Seniority-Junior Engineers-Initially appointed on work charged es- c tablishment-Later absorbed in regular establishment-Govt. resolution specifying the initiai reetuitment date as deemed.date of absorption-Made applicable only at circle level and not at State level-Absence of any specific provision for seni01ity at State level - Held, Govemment itself having passed the resolution, the date of initial recruitment has to be taken into account for reckoning seniofity-In the absence of specific provision in recntitntent rnles, D the statewise seniority list has to be prepared on the basis of seni01ity list prepared at circle level.

Words & Phrases: 'Work charged establishment', 'Cadre'-Meaning of E Respondent Nos.1 to 4 were appointed as _Junior Engineers on work charged establishment who were later on absorbed as Junior Engineers in the regular establishment. But their names did not appear in the seniority list of the Junior Engineers on regular establishment.

Government had passed resolutions to the effect that Junior En- F gineers shall be given deemed date of absorption to the regular estab- lishment and the services rendered on work charged establishment shall be counted for the purpose of seniority on regular establishment and it will be counted for the purpose of seniority of the employee at the circle level; but not for the purpose of seniority in the State level. G Promotion to the post of Sub-Divisional Engineer is made from amongst Junior Engineer (Graduates) from the subordinate service of engineers according to the Maharashtra Service of Engineers Class-I & Class-II Cadre Rules. The Rule does not stipulate that the statewise seniority list of Junior Engineers has to be drawn up on the basis of their H 501

p. 502

A respective dates of absorption/employment as a Junior Engineer in regular establishment or on the basis of deemed date which is to be determined in accordance with the two Government Resolutions.

Respondents filed Writ Petition in the High Court (which was later transferred to Administrative Tribunal as Administrative Tribunal Act B came into force) demanding that their period of service on \Vork charged establishment should be counted for their seniority in regular estab- lishment. Respondents contended that the two resolutions of the State Govt. were discriminatory.

The Tribunal held that the two resolutions of the State Govt. are c violative of Article 16(1) of the Constitution of India and directed that the said resolutions should also apply for drawing seniority list at the State level.

In appeal to this Court, the State Government contended that work D charged establishment is a completely different cadre from regular estab- lishment. Therefore, employees on work charged establishment cannot be considered for seniority in regular establishment and that the government resolution provided for counting of service on work charged establishment for the purpose of seniority only within the circle and not at the State level. E Respondents contended that employees having been absorbed in regular establishment cannot have two different seniority and that even though Junior Engineers within the circle constitute a cadre but when promotion to the post of Senior Divisional Engineers is made and for that purpose, statewise seniority list of Junior Engineers is maintained; and F that it would be unreasonable to maintain the said list on the basis of their absorption in regular establishment even though they have acquired deemed date by virtue of government resolution.

Dismissing the appeal, this Court

STATE i: PURSHOTl'AM [PATl'ANAlK.J.J 503

statT, are chargeable to "works". 'fhe pay and allo"'·ances of e1nployees 'vho A are borne on u \\'Ork charged establislunent are ~enerally shown as a separate sub-head of the estimated cos.t ol' the work. The work charged establishment e1nployees are engaged on a temporary basis and tlu.~ir appoinflnents are n1ade for the execution of a specified \\'Ork. From the very nature of their employment, their sen ices automatically come to an 1

end on the completion of the works for the sole purpose for \Vhich they are B en1ployed. In the service jurisprudeuce, the expression 'Cadre' means the unit of strength of a sen ice or a 11art of it as deter1nined by the e1nployees. 1

And it is well settled that services rendered by an employee in one cadre cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority, this privilege is conferred. This being C the position ordinarily the services rendered by an e111ployee in a \\'Ork 1

charged establishment, is not to be taken into account for his seniority in the regular establishment part.icularly\\'hen the tenure in the \\'ork charged establishrnent is of a precarious nature and it auton1atically ceases after the project is over. [507-A-C; 506-E-H] D 1.2. In the absence of any specific provision in the recruitment rules, it would be only reasonable to construe that the state,vise seniority list has to be prepared on the basis of seniority list already prepared in the circle indicating the respective deemed dates or such Junior Engineers, [508-C] E

2. The appropriate authorit,y should prepare the stale\\ise Seniority List of Junior Engineers under Rule 16(a) of l'vlaharashtra Senrice of En- gineers Class-I and Class-II Cadre Rules by taking into account the deemed date of each such Junior Engineer in the respective circle. [508-E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8230 of F 1996.

From the .T udgment and Order dated 25.10.94 of the Maharashtra Adn1inistrativc Tribunal, Nagpur in 1'.P. No. 743 of 1992.

D.M. Nargolkar for the Appellant. G ,A._K. Siin~hi for the Rc:;pondcnls.

The .T udgment of the Court was delivered by

PATIANAIK, J. Leave granted. H

504 SUPRFME COURT RFPCJRTS [1996! SUPP. 2 S.C.R.

A fhis appeal by special leave is directed against the Order dated 25.10.1994 of the Maharashtra Administrative Tribunal, Nagpur Bench in Transfer Application No. 743 of 1992.

The respondents J to 4 here in \\'ere appointed at:i junior Engineers on work charged establishment on different dales by concerned Superin- B tending Engineers of the l:ircle. Later on they \Vere appointed as Junior Engineers in the regular estahlishn1ent on difrercnt dates. There is no dispute that those respondents had the minimum educational qualification for being appointed as Junior Engineers in the regular establishment. They fikd writ petition in the Bombay High Court claiming that their duties and c responsibilities un the \Vork charged cstablishn1ent being the san1e as Junior Engineers on regular establishment, the period of service rendered by thc1n as .Junior f-~nginecrs on \Vork charged establishment should be counted for their seniority aftl'.r they have be::cn absorbed in the regular establishn11..;nt. After their <1bsorption, \Vhen the seniority List of Junior D Engineers \Vas published in respect of .Junjor Engineers on regular estab- lishment upto 31.3.19KO as \Veil as in respect of Junior Engineers on regular estahlishment for lhe period 1.4.1980 till 31.3.1982, the names of lhc respondents did nol find place, oll\·iously because of the fact that they have hcen absorbed in ·n:gular establishment, after 31.3.1982, they approached the High <.:ourt. \Vhile the \Vrit petition was pending, the Administrative E Tribunal Act having been enforced and Slate Adminislralive Tribunal having been c.:onstitutcd, the petitions stood transferred to the Tribunal. Before ti1c Tribunal the respondents contended that the Government having passed Resolution that the Junior Engineer having \Vork charged service to his credit, should be assigned "deemed date" which should be cine day prior to the date on which his immediate J uoior on work charged establishn1ent or fron1 open markei was taken or appointed on regular te111porary establishment in the san1e circle, the services rendered on work charged e:stablishn1ent is therefore to be counted for the purpose of seniority on regular establishment and the authorities therefore committed error in not granting them the said relief. It was also contended that the relevant instructions of the Resolutions of the Stale Government dated 15.2.1977 and 19.3.1977 whereunder the services rendered on work charged establishment though is counted for the seniority of the employee at the Circle level but the same is not counted for the purpose of seniority of the employee in the State level and there is no reasonable nexus for making such differentiation and as such the Resolutions are discriminatory and

STATE v. PURSI-101TAM [l'ATTANAIK.J.J 505

should be struck down. A

The stand of the Stale Government before the Tribunal on the other hand was that the posts of Junior Engineers arc posts in Class III cadre and such appointees within a Circle constitute the cadre. The appointment of such Junior Engineers within Circle is _made by the Superintending Engineer both in work charged e~talili~hrnent as \Vell a~ in regular estab- B lishment. Though the work charged establishment is a completely different cadre from the regular establishment and the services rendered in the work charged establishment could not have been taken into account for deter- mination of seniority in the regular establishment but to ameliorate the hardships caused in such cases the Government had passed the Resolutions c in question. But when the question of promotion to the post of Sub Divisional Engineer arises,. the same is considered from the stalc\vise list of Junior Engineers maintained, as the post of Sub-Divisional Engineer is a state cadre. This being the position, question of considering the services rendered in the work charged establishment by an employee before he is absorbed in the regular establishment for the purpose of his seniority does D not arise and the two Government Resolutions cannot he held to be arbitrary in any manner. The Tribunal, however, on consideration of the rival stand of the parties and having come to the conclusion that the Resolutions dated 15th of February, 1977 and 19 of March, 1977 of-the Government ofMaharashtra in the Public Works and Housing Department E are violative of Article 16(1) of the Constitution, directed that the said Resolutions should also apply for drawing the seniority list at the state level. The Tribunal, therefore, called upon the State Government lo redraw the seniority list of Junior Engineers.

F ·The learned counsel for the appellant contends that the work charged establishment being completely different from the regular estab- lishment and employees working under the work charged establishment forming a cadre of themselves completely different from the employees serving under the regular establishment, the services rendered by such . employees under the work charged establishment by no stretch of imagina- G tion could be considered for his seniority in the regular establishment and in this view of the matter the impugned order of the Tribunal is wholly erroneous. The learned counsel further urged that the so called Govern- n1ent resolution n1ere1y confers the benefit of counting the services rendered in a work charged establishment for the purpose of seniority H

506 SUPREME COURT REPORTS (1996] SUPP. 2 S.C.k.

A within the Circle but the said seniority thus determined is not to be reflected in the seniority drawn up at the Stale level and the impugned order of the Tribunal is vitiated. The learned counsel for the respondents on the other hand contended that even though the Junior Engineers within a Circle constitute a cadre but when promotion to the post of Sub- Divisional Engineer is made from amongst those Junior Engineers and for B th al purpose a Statcwise seniority list of Junior Engineers is maintained, it would be wholly unreasonable lo maintain the said list on the basis of their absorption in the regular establishment even though by virtue of the Resolution of the Government they have already acquired a deemed date of absorption in the regular establishment by taking into account their c services rendered as work charged establishment. Consequently, it was contended that the Tribunal rightly directed to take the Resolution into account for drawing up the seniority list of the Junior Engineers in the State Gradation List and there is no infirmity with the same. It was also contended that an employee after having been absorbed in the cadre of D Junior Engineers in regular establishment cannot have two different seniority one for the purpose of the circle and the other for the purpose of the State Cadre and such determination would be violative of Article 16 of the Constitution.

At the outset, it may be slated that a work charged establishment means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work charged establishment are general- ly shown as a separate sub-head of the estimated cost of the work. The work charged establishment employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. The character and nature of their tenure has been fully discussed by this Court in the case of Jaswant Singh and Others, Etc. Etc. v. Union of India und Others, {1979] 4 SCC 440. In the service jurisprudence Lhe expression 'cadre' means the unit of strength of a service or a part of it as determined by the employer. And it is too well settled that services rendered by an employee in one cadre cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred. This being the position, ordinarily the services rendered by an employee in a work charged establishment is

- STATE v. PURSHOTTAM [PATTANAIK, J.] 507

not to be taken into account for his seniority in the regular establishment particularly when the tenure in the work charged establishment is of a precarious nature and it automatically ceases after the project is over. The '.lormal rule of seniority is the date of entry into the cadre or the position obtained in the examination \Vhen appointment is made by any competitive examination. Therefore, in the present case ordinarily seniority \Voul<l have been determined on the basis of the date of absorption of the employee in the regular establishment, but the State Government itself has passed the Resolution deciding a deemed date of absorption of the employees who were initially recruited in the charged establishment and later on absorbed in the regular establishment. Therefore, the Government itself having passed the Resolution determining the deemed date of absorption the said c date has to be taken into account for reckoning senioril y. The Government of Maharashtra in the Public Works and Housing Department by its Resolutions dated 15th of February, 1977 and 19th of February, 1977 decided that a Junior Engineer having work charged service to his credit should be assigned a "deemed date" which should be one day prior lo the D date on which his immediate junior on work charged establishment or from open market was appointed on regular temporary establishment in the same Circle. This deemed date obviously is the deemed date of absorption in the regular establishment and on the basis of that deemed date the seniority of the Junior Engineers in the Circle is maintained. It is un~ E disputed that the promotion to the post of Sub-Divisional Engineer, which is Class II post and is in the Slate Cadre is made from amongst the Junior Engineers, The question, therefore, arises for consideration is whether it is open for the employer to maintain a seniority list of Junior Engineers of different Circles on the basis of their actual date of absorption in regular establishment and not on the basis of their deemed date of absorption and F consider promotion on that basis? The answer must be in the negative. The promotion lo the post of sub-Divisional Engineer is made according to a set of Rules called the Maharashtra Service of Engineers, Class I and Class II Cadre Rules. Under Rule 13(c) of the said Rules, appointments to the cadre of Sub-Divisional Engineers is made by promotion from amongst G Junior Engineer graduates from the Subordinate Service of Engineers. Under Rule 15, a person to be eligible for promotion to the post of Sub-Divisional Engineer must have rendered 3 years of minimum service as .a Junior Engineer. Under Rule 16(a), the promotion to the post of Sub-Divisional Engineer is made by a selection from the Slate wise H

p. 508

A seniority list of Junior Engineers maintained by the irrigation and Power Department and Buildings and Communications Department, separately. But the Rules is totally silent as to how the State wise seniority list of Junior Engineers will be drawn up. In other words, it does not stipulate that the State wise seniority list of Junior Engineers will be drawn up on the basis of their respective dates of absorption/employment as a Junior Engineer in regular establishment or on the basis of the deemed date which is to be determined in accordance with the two Government Resolutions, referred to earlier. In the absence of any specific provision it would be only reasonable to construe that the State wise seniority hst has to be prepared on the basis of seniority list already prepared in the Circle indicating the respective deemed dates of each such Junior Engineer. The Counsel for < the appellant no doubt is fully justified in raising the contention that the two Government Resolutions having been specifically meant for drawing up of the seniority list in the Circle, the Tribunal erred in law in directing to draw up the seniority list by giving the benefits of those Regulations in question. But as has been slated earlier, in the absence of any provision in the Recruitment Rules the seniority list of the junior Engineers when is prepared under Rule 16(a) for the purpose of giving promotion to the post of Sub-Divisional Engineer the same should be made taking into account the deemed date of each of the Junior Engineer in the Circle and prepare the State wise seniority list. E In the aforesaid circumstances, we would modify the direction given by the Tribunal to the effect that the appropriate authority should prepare the State wise seniority list of Junior Engineers under rule 16(a) of the Maharashtra Service of Engineers, Class I and Class II Cadre Rules by taking into account the deemed date of each such Junior Engineer in the F respective Circles and not by ignoring the said deemed date which is found by applying the two Government Resolutions referred lo earlier. Subject to the aforesaid observation the appeal is dismissed, but in the circumstan- ces there will be no order as to costs.

K.K.T. Appeal dismissed.

SH. JAG MOHAN CHAWLA AND ANR. A v. • DERA RADHA SWAMI SATSANG AND ORS.

MAY 7, 1996

B

Code of Civil Procedure, 1908 : Order 8, Rules 6-A to 6-G.

Counter-claim by defendmit--Maintainability of-Need not relate to original cause of action-But could be made on an independent and different cause of action-Even if it accrued after institution of suit-In a suit for injunction, counter-claim for injunction in respect of the same or a different property, maintainable.

The appellants-plaintiffs laid a suit for perpetual injunction to restrain the respondents from interfering with their possession of the property. The respondents pleaded in their written statement that they had purchased land situated in some other area and were in possession and ehjoyment of the said land. They sought counter-claim of permanent in- jnnction to testrain the appellants from interfering with their possession and enjoyment of the said land. The appellants had filed their replica, i.e., E additional written statement contemplated under Order 8, Role 6-E, Code of Civil procedure, 1908 disputing the averments made by the respondent in their counter-claim.. They also pleaded that the counter-claim was not maintainable. An application filed by the appellant under Order 8, Rule 6-C and Section 151 CPC praying to exclud1ethe counter-claim from the written statement was dismissed. The High Court also dismissed the revision peti- F lion with a direction to the trial Court to decide, as an issue, whether property in dispute was the same which was the subject matter of the counter-claim and to dispose of the suit after recording findings. Being aggrieved, the appellants preferred the present appeal.

On behalfof the appellants it was contended that in a suit for injunc- G tion counter-claim was ·not maintainable and that the direction issued by the High Court to identify the land to which the counter-claim related and was referable to the property in dispute was also not consistent.

Dismissing the appeal, this Court H 509