# ( ' G.C. GUPTA & ORS v. N.K. PANDEY & ORS

- **Citation:** [1988] 2 S.C.R. 185
- **Court:** Supreme Court of India
- **Decided:** 1987-04-30
- **Bench:** A.P. Sen, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-c-gupta-ors-v-n-k-pandey-ors-9812
- **Pages:** 49

## Headnote

United Provinces Service of Engineers (Buildings and Roads
Branch) Class II Rules 1936: Rules 3(b), 5(ii), 17 and 13A
B
Engineers-Seniority and promotion-'Member of service'-Who
is-Seniority to be determined from date employee becomes 'member
C
of service'.
Constitution of India 1950: Articles 226 and 136-Service
matters-Inordinate and· unexplained delay-Relief not to be granted-Division Bench deciding that case was barred by /aches and
D
delay-Such decision cannot be reversed by another Division Bench
of same High Court treating the matier as res integra-Doctrine of
stare decisis-Applicability of.
From the year 1942-43, two vacancies in the United Provinces
Service of Engineers, both in the Buildings and Roads as well as in
E
the Irrigation Department, were reserved for students of the
Thomson College of Civil Engineering, Roorkee who stood first and
second in order of merit in the final examination of the degree
course_ These two guaranteed posts were reserved by a Notification
dated August 31, 1942 issued by the then Provincial Government F
under Rule 6 of the United Provinces of Engineers Buildings and
Roads Branch Class II Rules, 1936. This reserved quota of two
guaranteed posts was later on increased by the Government to four
posts each year in each of the two branches. This system of direct
recruitment of merit scholars was, however, discontinued by another
Notification dated June 22, 1950.
G
By a G.O. dated April 19, 1950 the State Government settled
the principle that persons appointed to the guaranteed posts every
year as Engineer students would take their seniority over persons
appointed as temporary Assistant Engineers in that year. By a subseH
185
186
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
•
A
quent G.O. dated June 22, 1950 the Government intimated the Chief
)--.
Engineer, Building and Roads, that engineer students who were
appointed to the guaranteed posts of temporary Assistant Engineers
'
and working in the Buildings and Roads Branch be absorbed. In the
existing permanent vacancies or those which might arise in the
B
future. By an Office Memorandum dated December 7, 1961 the State
Government brought a change in the method of recruitment of
Assistant Engineers in the U .P. Service of Engineers Building and
)
Roads Branch, i.e. direct recruitment by competitive examination
through a Public Service Commission from the year 1961.
c
The respondents in the appeal (petitioners in the writ petition) .. J, .
were initially appointed as temporary Assistant Engineers in the U .P.
Service of Engineers (Buildings and Roads Branch) by the Chief
,,I,
Engineer, PWD between 1947-48 subject to the final approval of the
Government. These were subsequently approved by the Government
..
D
during 1948-49 in accordance with the provisions of Rule 5(i) of the
Rules. Thereafter, on January 20, 1950 the Government in consultation with the Public Service Commission confirmed these provisional appointments and these respondents also passed the requisite
test held by the Government. They were confirmed as permanent
E
Assistant Engineers in permanent posts in the cadre during 1956-58
and the date of their confirmation was fIXed as April 1, 1956.
1
The appellants in the appeal (respondent Nos. 3-5 and 7 in the
lr
writ petition) were appointed between 1951-52 as temporary Assistaut Engineers against the guaranteed posts and after completion of
F
the probationary period were confirmed in 1955, vide Gazette Notifi-
-•
cation dated October 11, 1955.
.,,
I
Seniority of Appellants 1 to 4 was fixed earlier from April 1,
1955 whereas seniority of Respondents 1 to 12 was fixed below them·
from 1956 treating the date of confirmation in the service as the date
G
of their becoming members of the se~vice.
.. ..
The respondents filed representations before the Government
,;,.
in 1959-60 for re-determination of the confirmation as well as conse·
quential determination of seniority of the petitioners vis-a-vis the
H
respondents. Their· claim was they havin

## Text

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-
....
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.... '
G.C. GUPTA & ORS.
v.
N.K. PANDEY & ORS.
APRIL 30, 1987, DECEMBER 8, 1987
[A.P. SEN AND B.C. RAY, JJ.]
United Provinces Service of Engineers (Buildings and Roads
Branch) Class II Rules 1936: Rules 3(b), 5(ii), 17 and 13A
B
Engineers-Seniority and promotion-'Member of service'-Who
is-Seniority to be determined from date employee becomes 'member
C
of service'.
Constitution of India 1950: Articles 226 and 136-Service
matters-Inordinate and· unexplained delay-Relief not to be granted-Division Bench deciding that case was barred by /aches and
D
delay-Such decision cannot be reversed by another Division Bench
of same High Court treating the matier as res integra-Doctrine of
stare decisis-Applicability of.
From the year 1942-43, two vacancies in the United Provinces
Service of Engineers, both in the Buildings and Roads as well as in
E
the Irrigation Department, were reserved for students of the
Thomson College of Civil Engineering, Roorkee who stood first and
second in order of merit in the final examination of the degree
course_ These two guaranteed posts were reserved by a Notification
dated August 31, 1942 issued by the then Provincial Government F
under Rule 6 of the United Provinces of Engineers Buildings and
Roads Branch Class II Rules, 1936. This reserved quota of two
guaranteed posts was later on increased by the Government to four
posts each year in each of the two branches. This system of direct
recruitment of merit scholars was, however, discontinued by another
Notification dated June 22, 1950.
G
By a G.O. dated April 19, 1950 the State Government settled
the principle that persons appointed to the guaranteed posts every
year as Engineer students would take their seniority over persons
appointed as temporary Assistant Engineers in that year. By a subseH
185
186
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
•
A
quent G.O. dated June 22, 1950 the Government intimated the Chief
)--.
Engineer, Building and Roads, that engineer students who were
appointed to the guaranteed posts of temporary Assistant Engineers
'
and working in the Buildings and Roads Branch be absorbed. In the
existing permanent vacancies or those which might arise in the
B
future. By an Office Memorandum dated December 7, 1961 the State
Government brought a change in the method of recruitment of
Assistant Engineers in the U .P. Service of Engineers Building and
)
Roads Branch, i.e. direct recruitment by competitive examination
through a Public Service Commission from the year 1961.
c
The respondents in the appeal (petitioners in the writ petition) .. J, .
were initially appointed as temporary Assistant Engineers in the U .P.
Service of Engineers (Buildings and Roads Branch) by the Chief
,,I,
Engineer, PWD between 1947-48 subject to the final approval of the
Government. These were subsequently approved by the Government
..
D
during 1948-49 in accordance with the provisions of Rule 5(i) of the
Rules. Thereafter, on January 20, 1950 the Government in consultation with the Public Service Commission confirmed these provisional appointments and these respondents also passed the requisite
test held by the Government. They were confirmed as permanent
E
Assistant Engineers in permanent posts in the cadre during 1956-58
and the date of their confirmation was fIXed as April 1, 1956.
1
The appellants in the appeal (respondent Nos. 3-5 and 7 in the
lr
writ petition) were appointed between 1951-52 as temporary Assistaut Engineers against the guaranteed posts and after completion of
F
the probationary period were confirmed in 1955, vide Gazette Notifi-
-•
cation dated October 11, 1955.
.,,
I
Seniority of Appellants 1 to 4 was fixed earlier from April 1,
1955 whereas seniority of Respondents 1 to 12 was fixed below them·
from 1956 treating the date of confirmation in the service as the date
G
of their becoming members of the se~vice.
.. ..
The respondents filed representations before the Government
,;,.
in 1959-60 for re-determination of the confirmation as well as conse·
quential determination of seniority of the petitioners vis-a-vis the
H
respondents. Their· claim was they having been appointed as Assis-
G.C. GUPTA v. N.K. PANDEY
187
.....
tant Engineers, though temporarily, they became 'members of the
A
Service' earlier than the appellants and as such they were entitled to
> ,
be placed above the appellants in the seniority list. In 1960·6J the
appellants bad been promoted as Officiating Encutiv1PEnglneers on
the basis of seniority and record of service. However,, respondents
Nos. I to 12 who later on were also promoted as Officiating Executive
B
Engineers never filed any representations qua Executive Engineers
and the seniority of the appellants as Executive Engineers remained
unchallenged.
It was only on May 4, 1970 after a lapse of 15 years that the
respondents filed a petition under Art. 226 challenging the order c
dated October 11, 1955 by which the appellants were confirmed with
effect fr!'m April 1, 1955 and the consequential determination of the
inter se seniority between direct recruits and promotees by tbe orders
dated July 20, 1956 and May 29, 1961.
D
A Single Judge of the High Court dismissed the petition holding
that the petitioners were guilty of !aches and this was upheld by a
Division Bench in appeal by its Judgment dated October 26, 1971.
The Division Bench, however, under an impression that the re·
presentations made by the petitioners In regard to their seniority E
were still pending, observed that there was no reason to think that
the Government will not decide them fairly and in accodance with
law.
Factually there was no representations except one (by D.K.
Laraiya a temporary Assistant Engineer appointed to a guaranteed F
post) that was pending but pursuant to the observations of the
Division Bench, the Government invited representations from all the
aggrieved persons.
The petitioners accordingly made representations In the matter G
+ '
of refixation of their inter se seniority and the Government by its
order dated June 29, 1973 rejected all the representations stating
,\..
that the question of inter se seniority of Assistant Engineers had been
finally settled and could not be reopened.
The respondents thereupon filed a fresh writ petition before the H
188
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A
High Court and a Division Bench of the High Court this time by its
judgment dated May 6, 1981 directed issuance of a writ in the nature
of certiorari quashing the impugned seniority list and a writ in the
nature of mandamus directing the State Government to redetermine
the inter se seniority of Assistant Engineers in the U .P. Servke of
B
Engineers Buildings and Roads Branch Class II.
Allowing the Appeal, the Court,
)
HELD: !Per A.P. Sen, J. Concurring] Temporary Assistant ~
Engineers were entitled to the benefit of their seniority reckoned
,
C
according to the date of the order of appointment to the Service in.
terms of r. 23 of the United Provinces Service of Engineers (Buildings and Roads Branch) Rules, 1936, w .e.f. the date of their absorp-
/
lion into the Service by the Government in consultation with the
Public Service Commission i.e. from the date from which they
~
D became 'Members of the Service' within the meaning ofr. 3(b) of the
Rules. 1221 C-D]
Ashok Gulati v. B.S. Jain, [1986] Supp. SCC 597 followed.
Baleshwar Das v. State of U.P. (1981] 1 SCR 449-1980 4 SCC 226;
E
N. K. Chauhan c. State of Gujarat, [1977] I SCR 1037 and S.B.
Patvardhan v. State of Maharashtra, (1977] 3 SCR 775, referred to.
2(a) When the decision of the earlier Division Bench was
arrived at keeping in view all the aspects and it was held that the
F
claim for re-determination of inter se seniority between direct
recruits and promotees could not be agitated after a lapse of 16 years
the later Division Bench erred in proceeding upon the basis that the
matter was still res integra. [230FJ
2(b) Inordinate delay is not merely a factor for the Court to
G refuse appropriate relief but also a relevant consideration for not
unsettling settled things. [23 lB)
Malcom Lawrence Cecil D'Souza v. Union of India & Ors.,
(1975] Sopp. SCR 409; R.S. Makashi & Ors. v. I.M. Menon & Ors.,
H (1982] 2 SCR 69; K.R. Mudgal v. R.P. Singh, 1986 4 SCC 531 and
G.C. GUPTA v. N.K. PANDEY
189
Rabindra Nath Bose v. Union of India, [1970] 2 SCR 697, referred
to.
A
3. Respondents Nos. 1 to 12 were diseutitled to any relief under
Art. 226 of the Constitution due to inordinate delay and !aches. If the
judgmeut of the High Court were to be sustained after a lapse of
B
nearly 32 years, it cannot be gainsaid that the entire structure of the
administrative set-up of the U.P. Service of Engineers, Buildings &
Roads Brauch would be upset. [232EJ
4. It is still open to the Government to grant the necessary relief to the sole respondent at present in the service others having C
retired. If be is found suitable for promotion to a higher post, with-
"
out disturbing the appointment, promotion and confirmation of the
appellants, by creation of a supernumerary post. [232G-H]
)
~··
5. In legal matters, some degree of certainty is as valuable a
part of justice as perfection. One reason for consistency is that
people often regulate their conduct with reference to existing rules,
which makes it important for Judges to abide by them. Innovations
can be unsettling and lead to a loss of confidence. [230EI
Dias Jurisprudence 4th Edition p. 286.
D
E
6. An earlier decision may be over ruled if the Court comes to
the conclusion that it is manifestly wrong and not upon a mere suggestion that ifthe matter was res integra, the Court on a later occasion would come to a different conclusion. [230G I
F
7. It cannot be doubted that an unlimited and perpetual threat
of litigation leads to disorder, sense of insecurity· and uncertainty.
May be, there may have been isolated cases of hardship, but there
must be some reservations about limitation on the Court's power in G
the public interest. Obvious considerations of public policy make it a
first importance that the person aggrieved must take action requisite
effectively t11 assert his right to that end so that if the contention can
be justified, the Government service may be disturbed as little as
possible. [230H; 23IA-B]
H
A
B
c
D
E
F
G
H
190
SUPREME COURT REPORTS
[1988] 2 S.C.R.
Per B.C. Ray, J: The date of confirmation of the petitioners
Nos. 1 to 12 as permanent Assistant Engineers in the permanent
posts of Assistant Engineer in the United Provinces Service of
Engineers (Buildings and Roads Branch), Class II, was fixed at
1.4.1956. Vide G.O. dated 29.5.1961, the orders for inter se seniority
exclusively of the petitioners Nos. 1 to 12 vis-a-vis 39 others including
the opposite parties Nos. 8 to 13 who were all confirmed as permanent Assistant Engineers, were issued by the Government. [ 198A-BJ
The Government, by a Gazette Notification dated 11.10.1955,
confirmed the appointments of the opposite parties Nos. 3 to 5 and 7
in the permanent posts of Assistant Engineer with effect from Ar.>ril
1, 1955. By office memorandum dated 20.7.1956, the Government
fixed the inter se seniority of opposite parties Nos. 2 to 7 alongwith 18
other officers who were confirmed as Assistant Engineers. I 199E-F]
Aggrieved by the order of confirmation of the resp'ondents
Nos. 2 to 7, petitioners Nos. 1, 4, 6, 7 and 11 made representations to
the Government for re-determination of the confirmation and consequential determination of the seniority of the petitioners vis-a-vis the
respondents. As no action was taken by the Government on the
representations above-said, the petitioners Nos. 6, 7 and 11 filed a
writ petition in the High Court in 1970, challenging the order of confirmation of the respondents and consequential fixation of seniority
on its basis. The writ petition was dismissed on the sole ground of
inordinate delay and laches. Special Appeal against the order of the
High Court filed before a Division Bench of the High Court was also
dismissed with observations and a direction to the Government to
dispose of the representations of the petitioners. The Government by
its order dated 29.6.1973, rejected, on the ground of delay and
laches, all the representations against fixation of seniority,
whereupon the petitioners filed another writ petition, claiming relief
of re-determination of their seniority in accordance with the rules,
governing the services of the United Provinces Service of Engineers
Class II (Buildings and Roads Branch), as there .had been no
determination of inte,. se seniority of the petitioners and the respondents according to rule 23 of the United Provinces Service of
Engineers (Buildings and Roads Branch) Class II Rules, 1936. The
High Court, by its judgment and order dated May 6, 1981, allowed
I
•
i
--{
)I
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G.C. GUPTA v. N.K. PANDEY
191
the writ petition in part, issuing a writ in the natnre of Certiorari
quashing the gradation or seniority lists (annexures 1, 2 and 28 to the
writ petition), and a writ in the nature of mandamus, commanding
the opposite party No. 1, the State Government, to prepare a fresh
seniority list in accordance with law in the light of the obser.vations
made in the judgment, and to take consequential steps thereafter.
Aggrieved by the decision of the High Court, the appellants appealed
to this Court by special leave. I l99G-H; 200A-G I
The vital question that required to be considered in this appeal
was what was the yardstick or standard or norm for determination of
A
B
the seniority of the respondents who had been appointed temporary C
or officiating Assistant Engineers against temporary posts of the
United Provinces Service of Engineers (Buildings and Roads Branch)
Class II, as well as toppers from the Thomson College of Civil
Engineering who were directly appointed some time in 1950 and 1951
on probation against the reserved temporary posts and confirmed D
immediately after the expiry of the period of probation against the
permanent posts before the confirmation of the temporary Assistant
Engineers recruited from the Thomson College of Engineering some
time between 1948 and 1950. [205B-D]
The petitioners in the writ petition who were respondents in the E
appeal, were initially appointed temporary Assistant Engineers subject to the final approval of the Government by the Chief Engineer,
P.W.D., between 1947 and 1948. Undoubtedly, these appointments
were approved by the Government between 1948 and 1949 in accordance with the provisions of Rule 5(i) of the United Provinces Service
F
of Engineers (Buildings and Roads Branch) Class II Rules 1936.
Thereafter, the Government, in consultation with the Public Service
Commission, confirmed the provisional appointments of the petitioners as temporary Assistant Engineers and these petitioners had also
passed the requisite tests held by the Government. They were
confirmed vide notifications dated 7.11.1956, 19.4.1957 and G
14.5.1958. The date of confirmation of all these petitioners was fixed
as 1.4.1956. The respondents Nos. 3 to 5 and 7, appellants in
the appeal, were appointed between 1951 and 1952 as temporary
Assistant Engineers against guaranteed posts on probation and after
completion of the probationary period they were confirmed in 1955.
H
A
B
192
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
Seniority of these appellants Nos. 1 to 4 was fixed earlier from
1.4.1955, whereas the seniority of the respondents Nos. 1 to 12
was fixed below them from 1956, treating the date of confirmation
in the service as the date of their becoming members of the
service. [206FH; 207A-C)
On a consideration of the letters of provisional appointments
issued by the Chief Engineer, P. W.D., as well as the sanctions
accorded to such appointments by the Government thereafter and
I
_..
confirmation of the service of the temporary Assistant Engineers in
\
1950 after obtaining the approval of the Public Service Commission _ J .-
and also after the passing of the tests by the respondents as provided
c
D
E
F
in Rule 18 of the said Rules, it could not but be held that they had
become appointed in a substantive capacity against temporary posts
of the cadre of Assistant Engineers and as such they had become
members of the service since that date in accordance with the provi·
sions of Rule 3(b) of the said Rules. The argument that their appoint·
ment being made against temporary posts and not against permanent
posts and not on probation as well as their not being confirmed and
their confirmation not being notified in the United Provisions
Gazette before 1956, they were not entitled to be treated as members
of the service, being appointed in the substantive capacity, could not
be sustained under any circumstances. Rule 4 of the Service Rules
clearly states that the cadre of Assistant Engineers will comprise
both permanent and temporary posts and as such the argument that
unless and until the respondents were appointed on probation against
permanent posts and unless they were confirmed, they could not be
treated as members of the service, is wholly untenable. One can be a
member of the service if one is appointed in a substantive capacity as
distinguished from a fortuitous appointment or on appointment for a
fixed tenure or on a purely temporary basis against a temporary post
of an Assistant Engineer in the cadre. Rule 4 of the Rules provides
that the Government may, subject to the provisions of Rule 40 of the
Civil Services (classification, Control and Appeal) Rules 1930, increase the strength of the cadre by creating permanent or temporary
G posts from time to time as may be found necessary. So, a cadre post
may be either permanent or temporary and if an engineer is
appointed substantively to a temporary post or a permanent post, he
becomes a member of the service. Therefore, merely because a
Government servant has been appointed to a temporary post after
fulfilment of all the requirements of the Rules for regular appoint·
H ment, including consultation with the Public Service Commission, he
·--.
/
'
G.C. GUPTA v. N.K. PANDEY
193
cannot be said to be appointed substantively in the temporary post of A
the cadre and he cannot be said to be treated to be not a member of
the service under Rule 3(b) of the Rules for the purpose of determination of seniority under Rule 23 of the Rules on the mere plea that
he has .not been appointed against a permanent post on probation;
such a contention is not tenable. In this case, as already stated,
though initially the appointments of these respondents were not
appointments in accordance with the Rules as they were appointed
not by the Government but by tbe Chief Engineer, yet, after the
B
~
approval of their appointments by the Government, and also confir-
-.
matioo of their provisional appointments by the Government after
_.. the respondents had passed all the requisite tests for confirmation,
it could not be questioned that these respondents had not been
appointed in a substantive capacity as they had not been confirmed
c
r
by the Government prior to 1961 and their confirmations had not
been published in the U .P. Gazette. It is pertinent to mention that
for an appointment to be an appointment in a substantive capacity, it
is not necessary that the appointment should be made to a permanent
post. If the appointment is made to a temporary post of long duration in a department, having both permanent and temporary posts of
a quasi-permanent nature, there is nothing to distinguish the quality
of service between the two. [208F-H; 209A-C; 2108-H; 21 IA-B)
There was no rational or legal justification for preventing the
respondents from having their services, rendered from the date they
were appointed in the cadre of Assistant Engineers in a substantive
capacity, reckoned for determination of their seniority in service, on
the mere ground that no order of confirmation had been issued by
the Government, as required under Rule 19 of the Rules even though
all the essential requirements for being confirmed had been clearly
fulfilled by the respondents; the respondents had been duly appoinD
E
F
ted in a substantive capacity in the cadre of the service by the
Government in consultation with the United Provinces Public Service
Commission, as required under Rule S(iii) of the said Rules as well as
after fulfilling the other requirements stipulated in Rule 19 of the
Rules in 1950. The point from which service is to be counted is the G
commencement of the service by the Assistant Engineer which might
not have been a permanent appointment in the beginning, and, in
that sense, might still be temporary but for all other purposes has
been regularised and is fit to be absorbed into permanent post as and
when it is vacant. [21tG-H;212A, D-EI
H
A
B
c
D
194
SUPREME COURT REPORTS
[!988) 2 S.C.R.
The cadre of the service of the Engineers, as already held, consisted of both temporary and permanent posts and as such there can
be substantive appointment against a temporary post of the cadre in
accordance with provisions of the service Rules. Once a Government
servant is appointed in a substantive capacity against a temporary
I
post of the cadre after due observance of the requirements as
provided in the Rules, he will be deemed to be a member of the
Service in accordance with the provisions of Rule 3(b) and his
seniority .in service shall be determined from the date of the order of
appointment to the service notwithstanding that no order of confirmation has been made and there has been no publication of the
)-
order of confirmation in the official gazette. The respondents had -.~ \
been appointed temporarily in an officiating capacity as Assistant
Engineers against temporary posts and those temporary posts had
been continued for years together and the Government had duly
sanctioned their appointments. The respondents had thus become
members of the United Provinces Service of Engineers (Buildings and
Roads Branch) Class II at least from the date they had been
confirmed in the service by the Government order issued in
May, 1950, and they were entitled to have their seniority reckoned
from that date when they had become regular members of the service
after fulfilling all the requirements of Rules 18 and 19 of the
said Rules. There is the specific Rule 23, said to be the "mariner's
compass" in determining the seniority of the members of the
E service, which provides for determination of seniority from the
F
date a person has been substantively appointed and has become
a member of the cadre of service of Assistant Engineers in the
United Provinces Engineering Service (Buildings and Roads Branch)
Class II. [214B-G; 217F-G)
On a due consideration of the relevant Rules, particularly,
Rules 3 (b) and 23 of the Rules, it bas already been held that when an
employee has been appointed substantively to a temporary post in
the cadre of service and has become a member of the service of the
Assistant Engineers in the United Provinces Engineers Service under
the United Provinces Service of Engineers (Buildings and Roads
G
t
Branch) Class II Rules, his seniority will be counted from the date of
his becoming a member of the service. It does not matter whether he
has been appointed against the permanent post and has been duly
~
confirmed in that post. However the respondents (Petitioners in the
writ petition) could no.t be given any relief by directing; reH determination of the seniority of the respondents as well as the
r
•
G.C. GUPTA v. N.K. PANDEY
195
appellants on the ground of unusual laches and delay. The appellants A
Nos. 1 to 4 were confirmed in 1955 and their seniority was determined hy the Government Order of July 20, 1956. The writ petition
which gave rise to this appeal was moved in 1973, challenging the
determination of the seniority of the appellants. At that time, the
appellants Nos. 1 to 4 were officiating as Superintending Engineers
B
and the respondents Nos. 2 and 3 were officiating as Superintending
Engineers hut were junior to all the four appellants, and respondents
1 and 4 to 12 were then Executive Engineers. At present, the appel-
,.lants Nos. 1, 2 and 3 are permanent Superintending Engineers and
officiating as Additional Chief Engineers. The Appellant No. 4 is also
a permanent Superintending Engineer. At this juncture, if the
seniority of these appellants vis-a-vis the respondents in the appeal is C
directed to he determined, it will create much administrative
difficulties and would amount to depriving the appellants of their
valuable rights which have accrued to them. This Court in Rabindra
Nath Bose and Ors. v. Union of India and Ors., [1970] 2 SCR 697
observed that the attack on the seniority list prepared on the basis of D
the 1952 rules 15 years after the rules were promulgated and effect
given to the seniority list prepared on August 1, 1953, should not be
allowed because of the inordinate delay and laches in challenging the
roles. Similar otservations have been made by this Court in many
other cases. 12188-H; 219A-D I
The challenge to the seniority of the appellants in this case,
determined by order dated July 20, 1956, was made and relief sought
of re-determination of the seniority in 1973 i.e. after nearly 17 years.
This could not be permitted as it would amount to unjust deprivation
E
of the rights of the appellants which have accrued to them in the
meantime. Considering all the aspects, it would be just and proper F
not to give any relief to the respondents on the ground of inordinate
delay and Iaches in challenging in 1973 the seniority list made in
July, 1956. Out of the 12 respondents, 11 were reported to have
already retired. Only one respondent was in service. In these
circumstances, the cause of justice would be served if the authorities
considered the case of the said remaining respondent for promotion G
in accordance with law. [220C-D, E, F-G]
Henceforth, the seniority of the employees in the service in
question would be determined from the date when an employee became a member of the service being appointed substantively to a post
in the cadre of service, no matter whether the said post was p_ermaH
A
B
c
196
SUPREME COURT REPORTS
[1988] 2 S.C.H..
nent or temporary, as held in this case. Appeal allowed. Judgment of
the High Court set aside. [220H; 221A)
CIVIL
APPELLATE
JURISDICTION: Civil
Appeal
No. 1717 of l.'981.
Froift the Judgment and Order dated 6.5.1981 of the Allahabad High Court in W.P. No. 1080 of 1973.
S.N. Kacker, G.L. Sanghi and R.B. Mehrotra for the
Appellants.
Shanti Bhushan, A.K. Gupta, Brij Bhushan, K.C. Dua, Gopal
Subramaniam, Pradeep Misra, Mrs. S. Dikshit and Sudhir Kulshreshthafor"the Respondents.
S.S. Khanduja, S,K. Passi, Yashpal Dhingra and Mrs. Urmila
D Kapoor for the Inte!'.Veners.
The following Judgments were delivered:
RAY, J. This appeal by special leave arises out of the
judgment and order passed in Civil Miscellaneous Writ Petition
E
No. 1080 of 1973 by the High Court of Allahabad delivered on 6th
May, 1981. While the writ petition was allowed in part a writ in the
nature of certiorari quashing the gradation or seniority list annexures 1, .2 and 28 to the writ petition, was directed to be issued. There
was a further direction for the issue of a writ of mandamus commanding the opposite party No. 1, the State Government to prepare
F
a fresh seniority list in accordance with law in the light of the observations made in the said judgment, within a period of three months
and thereafter to take other consequential steps.
The crucial question of controversy in this appeal relates to
the determination of seniority between the respondents i.e. petiG
tioners in writ petition who are all appointed as temporary Assistant
Engineers in the United Provinces Service of Engineers (Buildings
& Roads Branch) and subsequently made permanent therein and
the appellants appointed on probation in the permanent posts of
Assistant Engineers reserved for toppers of the Thomson College of
Civil Engineering later incorporated in Roorkee University and
H made permanent after expiry of period of probation. The responl
G.C. GUPTA v. N.K. PANDEY [RAY, J.J
197
. .--"
dents Nos. 2 and 3 who passed the final Civil Engineering Examina·
A
tion of Thomson College, Roorkee in 1946 were appointed as
temporary and officiating Assistant Engineers by the Chief
"'
1
Engineer subject to final approval of the Government vide CE-P/
W/D/ C.M. No. 2736-E/8E-1947 dated 2.6.1947. This provisional
appointment as temporary Assistant Engineers was approved by the
B
Government vide G.O. No. 89-EBR/2-1947 dated 20.2.1948. Thereafter on the advice of the Public Service Commission the Government confirmed their provisional appointment as temporary
Assistant Engineers vide G.O. No. 1427/EBR 2 EBR-1947 dated
'
16.10.1948.
The petitioners Nos. 1 and 4 to 12 passed the final Civil
C
Engineering Examination of the Thomson College, Rporkee in the
year 1948. They were appointed by Chief Engineer as temporary
Assistant Engineers subject to the final approval of the Government
vide Chief Engineer, P.W.D. O.M. dated 10.8.1949. These appointments were made subject to the final approval of the Government D
and on their being declared medically.fit by the Medical Board. The
appointment of these temporary Assistant Engineers was sanctioned
by the government by its order dated 15.10.1949. These appointments were made in accordance with Rule S(i)of the United Provinces Service of Engineers (Buildings and Roads Branch), Class II
Rules, 1936. Thereafter on 20th January, 1950, vide G.O. No. 3968
E
EBR/2-1949 the Government on the advice of the Public Service
Commission confirmed the provisional appointments of the said
petitioners as temporary Assistant Engineers in the Buildings and
Roads Branch of United Provinces Service of Engineers. The
petitioners were examined by the State Medical Board and all of
them were declared fit. By Gazette Notification dated 7. 11.1956 the F
Government was pleased to issue orders of confirmation of the
appointment of petitioners Nos. 1, 2, 3, 4, 7 and 8 as permanent
Assistant Engineers in permanent posts, in the cadre of United
Provinces Service of Engineers (Buildings and Roads Branch),
Class II. By this Notification the Government reserved the right to
determine the seniority subsequently. Similarly, the petitioners G
Nos. 5, 6, 9 and 10 were confirmed as permanent Assistant
Engineers in permanent posts by Gazette Notification dated
9.4.1957. The petitioners Nos. 11 and 12 were also confirmed as
permanent Assistant Engineers in permanent posts in the cadre of
United Provinces Service of engineers (Buildings and Roads
Branch) Class II by Notification dated 14.5.1958. It is specifically H
198
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
A mentioned therein that the government reserved the right to
determine the seniority subsequently. Thus the date of confirmation
of the petitioners Nos. 1 to lZ as permanent Assistant Engineers
in the p(}rmanent posts of Assistant Engineers in United Provinces
Service of Engineers (Buildings and Roads Branch), Class II
B was fixed at 1.4.1956. Vide G.O. dated 29.5.1961 the orders for
inter se seniority exclusively of petitioners Nos. I to 12 vis-a-vis 39
others including opposite. parties Nos. 8 to 13 who were all
confirmed as permanent Assistant Engineers, were issued by the
Government.
c
D
E
F
Rule 6 of the said Rules i.e. United Provinces Service of
Engineers (Buildings and Roads Branch), Class II Rules, 1936
empowers the Government to decide in each case the source from
which the vacancy in the cadre has to be filled up. Under these
powers the Government by G .0. dated 31.8.1942 provided that
with effect from 1942-43, two vacancies in the Provincial Service of
Engineers shall be reserved for ·the two students of Thomson
College of Civil Engineering, Roorkee who passed out highest in
the order of merit in the final examination of the civil engineering.
This quota was increased by G.O. dated 1.7.1944 from two to four
posts each year (two for the P.W.D. (Buildings and Roads B~anch)
and two for the Irrigation Branch). This reservation was also
guaranteed each year to the top students. The Government however
by G.0. dated 22.6.1950 abolished the system of guaranteed posts
with effect from the batch which was to enter the civil engineering
class of the Roorkee University in October !950. It was specifically
mentioned therein that no reservations were to be made in the
cadre of the U .P .S.E. (Junior Scale) B & R and Irrigation Branches
for students who passed out highest in the final examination of the
Civil Engineering Class in 195:i and subsequent years. It was also
mentioned therein that the guaranteed Civil Engineer students who
passed from Thomson College of Engineering, Roorkee/Roorkee
University and who had been working in the Buildings and Roads
Branch should be absorbed in the existing permanent vacancies
G
which might arise in future. In accordance with the Government
orders the opposite parties Nos. 2 and 3 who passed out from the
Roorkee University in the year 1949 securing top positions were
appointed in Janu~ry 1951 as Temporary Assistant Engineers. The
opposite parties Nos. 4 and 5 namely Shri G.C. Gupta and Shri S.P.
Goel who passed out from the Roorkee University in 1950 were
H appointed in 1951 as temporary Assistant Engineers in two tern-
··~
G.C. GUPTA v. N.K. PANDEY [RAY, J.)
199
porary posts. The opposite party No. 6 namely Shri S.K. Ojha who
A
was one of the toppers passing out from Roorkee University in J952
was appointed in October 1953 as a temporary Assistant Engineer.
The opposite party No. 7 namely Shri Brijendra Singh who passed
out from Roorkee University Civil Engineering Examination in
1952 was first appointed as a temporary Assistant Engineer on a B
provisional basis but subsequently as he secured Fourth position in
Civil Engineering final examination in 1952 from the Roorkee
University he was appointed to the guaranteed post of temporary
Assistant Engineer in 1954. The opposite party No. 8 who passed
the departmental qualifying examination for promotion to the
Service was appointed to a temporary post of Assistant Engineer on
16.4.1949. Similarly, the opposite parties Nos. 9, 10, 11, 12 and 13
C
who passed the qualifying departmental examination were appointed under Rule 5(IV) and 6(a) to the temporary post of Assistant
Engineers in 1955.
In accordance with the provisions of regulation 3(i) of the UnD
ited Provinces Public Service Commission (Limitation of Fune-
"
tion) Regulations, 1941 made by the Provisional Government. The
.appointment of opposite parties Nos. 3 to 5 and 7 (appellants in this
appeal) who had been appointed to the guaranteed posts reserved
for toppers of Thomson Engineering College, Roorkee did not
r
require consultation with the Public Service Commission. The E
Government by Gazette Notification No. 2205-EBR/XXIII-PWD16EB-53 dated 11.10.1955 confirmed the appointment of the
'
, opposite parties Nos. 3 to 5 and 7 in the permanent post of
_ \Assistant Engineers with effect from April 1, 1955. By Office
.
Memorandum No. 1933 EBR/XXIII-PWD/55 dated 20.7.1956, the
Government fixed the inter se seniority of opposite parties Nos. 2 to F
T
7 alongwith 18 other officers who were confirmed as Assistant
Engineers.
Aggrieved by the order of confirmation of the respondents
Nos. 2 to 7, the petitioner No. 4 made representation to the
Government for re-determination of the confirmation as well as G
consequential determination of seniority of the petitioner vis-a-vis
the respondents. This representation was made on 15.7.1959 and a
A reminder was also given on 9.8.1960. Similarly, petitioner Nos. 6, 7
and 11 also made representations on 19.8.1959, 5.8.1959 and
23.7.1959 respectively. The petitioner No. 6 gave reminder in June
1965 and April, 1970. The petitioner No. 7 also sent reminders on
H
•
A
B
c
200
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
2.3.1960 and ·3.7,l960. The petitioner No. I also sent a represen·
tation on 12.9.1963. As no steps were taken to consider the
representations and to re-determine the date of confirmation of the
I
petitioners, the petitioners Nos. 6, 7 and 11 filed writ petition
No. 2254 of 1970 in the Allahabad High Court challenging the order
of confirmation of the respondents and also the consequential fixa·
tion of seniority on its basis. The said petition was dismissed by
order dat!!d 16.4.1971 on the sole ground that the petition wasj
highly belated and the petitioners were guilty of !aches and delay in
challenging the impugned notification dated
11. 10. 1955 and
20.7.1956 regarding confirmation and fixation of seniority. Against
the said order Special Appeal No. 287 of 1971 was filed before the
.
Division Bench of Allahabad High Court. The said appeal was also
'
dismissed. It was observed that though the petitioners could not be J
permitted to question the propriety of confirmation orders yet they·
were entitled to claim seniority over the respondents as per rules
regulating the service of engineers. The claim of'the petitioners was
,,.
D that they being appointed as Assistant Engineers though tern·
porarily became members of the Service earlier than the res·
pondents and as such they were entitled to claim seniority over the
respondents. The representations made by the petitioners as far
back as in 1959 were still pending and as such the relief regarding
E
F
G
determination of seniority in accordance with rules was not barred
by delay. It was observed further that the Government would l
consider and dispose of the representations fairly and in accordance
with law.
The Government by their order dated 29.6.1973 rejected all \ .
the representations against fixation of seniority as permanent y
Assistant Engineers. Hence the writ petition was filed by the (
petitioners claiming the relief of re-determination of their seniority
-i;.
in
ac~ordance with the rules governing the services of United
r
Provinces Service of Engineers Class II (Buildings and Roads
Branch) as there had been no determination of inter se seniority of
the petitioners and the respondents according to Rule 23 of the said
Rules.
It is pertinent to note in this connection that in spite of the
observations of the Division Bench of the Allahabad High Court in ,A
special appeal No. 287 of 1971 that so far as the claim of the appel·
!ants for consideration of their representations regarding determi·
H nation of seniority in accordance with the Service Rules, was not
;;... -,
G.C. GUPTA v. N.K. PANDEY [RAY, J.J
201
barred by the rejection of the writ petition on.the ground of delay
and observations were made for consideration of those representations by the' opposite party No. 1, i.e. the Government instead of
considering and disposing of the said representations in accordance
with law dismissed the same merely on the ground of delay and
!aches.
A
B
~
Before proceeding to consider the merits of the controversy
raised in this case, it is pertinent to refer to the relevant rules i.e.
United Provinces Service of Engineers (Buildings and Roads
Branch) Class II Rules, 1936 which regulate the appointment and
...__ conditions of service of United Provinces Service of Engineers
9
·(Buildings and Roads Branch).