Bombay High Court
Atmaram Son Of Wasaram Chavan And Ors. vs Maharashtra State Electricity Board ... on 16 June, 1989
Equivalent citations: 1991(1)BOMCR429
JUDGMENT H.W. Dhable, J.
1. The petitioners in this writ petition claim assignment of proper seniority in the post of Chargeman Grade II and consequent deemed dates of promotions and seniority in the higher posts of the Chargeman Grade I, the Assistant Shift Engineer and the Assistant Superintendent on the dates when the respondents 2 to 5 who, according to them, were junior to them in the post of the Chargeman Grade II were promoted to the said higher posts.
2. Briefly, the facts are that the petitioners, while working as sub Engineers in the Nagpur Urban Circle of the respondent No. 1 Electricity Board, were appointed as Chargeman Grade-II on purely temporary basis for a period not exceeding three months with effect from 1-1-1976 so far as the petitioners 1,2,4 and 6 are concerned, with effect from 22-1-1976 in the case of the petitioner No. 3, with effect from 10-2-1976, in the case of petitioner No. 5 with effect from 17-1-1976, in the case of the petitioner No. 7 and with effect from 10-1-1976 in the case of the petitioner No. 8 as is clear from the dates shown in their orders of appointment dated 14-1-1976, 23-1-1976 and 13-2-1976 (see Annexures 1 to 3 to the submissions of the respondent No. 1 filed on notice before admission). The above appointment of the petitioners was subject to their selection by the competent selection committee. According to the petitioners, they were interviewed for appointment in the said post in Koradi Power Station on regular basis by the competent selection committee on 11-8-1976 except the petitioner No. 3. They were thereafter given regular appointment in the post of the Chargeman Grade-II by an order dated 2-9-1976 except in the case of the petitioner No. 3 whose order of appointment is dated 9-11-1976. However, except the petitioner No. 3 the date assigned to them for the regular appointment in the post of Chargeman Grade-II was 11-8-1976 on which date the competent selection committee, as stated above, interview them. As regards the petitioner No. 3, the date assigned to him for his regular promotion was 20-10-1976 on which date he was interviewed for the above post. As regards the respondents 2 to 5, they were interviewed by the Competent Selection Committee for the post of Chargeman Grade II in Nasik Power Station and thereafter were appointed as direct recruits in the post of Chargeman Grade II by the orders dated 7-5-1976, 19-5-1976, 19-5-1976 and 10-4-1976 respectively. The actually joined the said posts with effect from 15-5-1976, 16-9-1976, 15-9-1976 and 10-4-1976 respectively. However, for the purpose of seniority, they were assigned the deemed date of appointment in the said post of the Chargeman Grade II as 30-3-1976 i.e. the date of their interview for the said post.
3. It is necessary to see that the post of the Chargeman Grade II is borne on generation side in the respondent No. 1 Electricity Board and the channel of promotion from the post of the Chargeman Grade II upto the post of the Assistant Superintendent on generation side is as follows:---
From Chargeman Grade II to Chargeman Grade I to Assistant Shift Engineer to Assistant Superintendent.
According to the petitioners, they as well as the respondents 2 to 5 were promoted to the next higher post of the Chargeman Grade I on 14-8-1976, but the respondent No. 1, Board according to whom the respondents 2 to 5 were senior to the petitioners in the post of Chargeman Grade-II on the basis of the combined seniority of all the Power Stations, assigned to them the deemed date of 11-2-1978 for regular promotion in the post of the Chargeman Grade I. No such deemed date of promotion in the said post of the Chargeman Grade I was, however, given to the petitioners although they were promoted to the said post simultaneously with the respondents 2 to 5 on 14-8-1979.
4. We may at this stage refer to the amendment made by the respondent No. 1 Board to Regulation 17 of the Maharashtra State Electricity Board Employees Seniority Regulations, 1961 (for short the Seniority Regulations) by issuing correction slip No. 22 to the said regulation by which with effect from 1-4-1978, the seniority in the various categories of posts on generation side had to be maintained on Statewise basis in accordance with Schedule A to Annexure I of the said seniority Regulations. It is not in dispute that promotion from the post of Chargeman Grade II onwards is on the basis of Statewise seniority. After the aforesaid regulation was amended by Correction Slip No. 22, a Statewise seniority list of the Chargeman Grade II as on 31-3-1977 was prepared by the respondent No. 1 Board on 14-5-1980. The respondent No. 1 Board has thereafter published on 30-5-1980 a Statewise seniority list of the Chargeman Grade I which is an on 1-4-1978. It is pursuant to the above seniority list of the post of the Chargeman Grade I that the promotions to the post of the Assistant Shift Engineer were given by the respondent No. 1 Board.
5. It is not in dispute that the respondent No. 2 was given promotion to the post of the Assistant Shift Engineer by the order dated 9-6-1981, whereas the respondents 3 to 5 were given promotions to the said posts of the Assistant Shift Engineer earlier by the order dated 23-10-1980. As regards the petitioners, all the petitioners except the petitioner No. 3 were given promotion to the post of the Assistant Shift Engineer by the order dated 9-2-1982 and so far as the petitioner No. 3 was concerned, he was given promotion to the said post by the order dated 5-5-1983. With reference to the promotions in the next higher post of the Assistant Superintendent, it may be seen that the respondent No. 2 was promoted in the said post by the order dated 15-5-1989 while the respondents 3 to 5 were promoted in the said post of Assistant Superintendent by the order dated 25-2-1985. As regards the petitioners, the petitioner No. 1 who belongs to a reserved category viz. a Nomadic Tribe, was promoted to the post of the Assistant Superintendent by the order dated 20-8-1984 whereas the other petitioners were not at all promoted to the posts of the Assistant Superintendent. Although the petitioner No. 1 seeks to claim the deemed date of promotion in the post of the Assistant Superintendent as on 25-2-1985, it appears that it is done through mistake or oversight, because he is already promoted on 20-8-1984 i.e. before that date to the said post of the Assistant Superintendent. The case for promotion in the post of the Assistant Superintendent canvassed by the petitioners 2 to 8 is based upon their claim of refixation of their seniority in the next below cadre of the Assistant Shift Engineer.
6. It is only after the Statewise seniority lists of the post of Chargeman Grade II and the post of Chargeman Grade I were prepared on 14-5-1980 and 30-5-1980, respectively and it is only when the actual promotions of the respondents 2 to 5 were made to the posts of the Assistant Shift Engineer earlier to the petitioner that the petitioners came to know that they were superseded in promotions to the posts of the Assistant Shift Engineer, because they found that the respondents 2 to 5 were wrongly assigned seniority higher to them in the post of the Chargeman I as well as in the post of Chargeman Grade II. They, therefore, made representations to the respondent No. 1 Board for assignment of proper seniority to them in the above posts. The main grievance of the petitioners was that since their temporary service in the post of the Chargeman Grade II was not counted while reckoning their seniority in the said post, they were erroneously shown as junior to the respondents 2 to 5 in the said post as a result of which, they were also deprived of the benefit of an earlier deemed date of promotion in the post of the Chargeman Grade I although they were appointed in the said post simultaneously on the same date along with the respondents 2 to 5 who were granted the benefit of the earlier deemed date of promotion in the said post.
7. It may be seen that the earliest representation made by one of the petitioners is dated 12-6-1980, the other representations being dated 14-6-1980, 17-6-1980 and 4-8-1080. Since no replies were received to their representations, the petitioners gave several reminders, but without any effect. They were, therefore, constrained to prefer the instant writ petition in this Court to order to get the necessary relief in the matter of their deemed date of promotion and assignment of proper seniority to them over the respondents 2 to 5 in the posts of the Chargeman Grade II, the Chargeman Grade I and the Assistant Shift Engineer. The petitioners 2 to 8 claim the further relief that since the criteria in respect of the promotion to the post of the Assistant Supdt. is seniority-cum-fitness, they should have been given promotions in the post of the Assistant Superintendent from the dates when their juniors i.e. the respondents 2 to 5 were promoted in the said post.
8. Before we proceed to consider the question of proper assignment of seniority to the petitioners, we may first dispose of the preliminary objection raised on behalf of the respondent No. 1 Board that we should decline to entertain the instant writ petition because of inordinate delay and laches on the part of the petitioners in filing the same. In considering the above preliminary objection, it has to be seen that the instant petition is filed on 6-7-1982. It is the case of the respondent No. 1 Board that the petitioners were aware of their places in the seniority list vis-a-vis the respondents 2 to 5 when the Zonal Seniority list of the post of the Chargeman Grade II prepared by it as on 31-3-1978 was circulated to them. It is, therefore, urged on behalf of the respondent No. 1 Board that immediately after noticing the fact that the respondents 2 to 5 were given seniority higher to the petitioners in the said seniority list, they should have moved this Court within a reasonable time for redressing their grievances bout the assignment of proper seniority to them in the post of the Chargeman Grade II.
9. In appreciating the above submission made on behalf of the respondent No. 1 Board, it should be seen that the petitioners have not been hurt immediately by their places in the Zonal seniority list of the post of the Chargeman Grade II when it was circulated to them. They were actually hurt when the promotions were made by the respondent No. 1 Board to the post of the Chargeman Grade I on the basis of the said seniority list of the post of the Chargeman Grade II. Moreover, according to them, they were promoted to the post of the Chargeman Grade I on the same date i.e. 14-8-1979 on which date the respondents 2 to 5 were also promoted to the said post. There was, therefore, no reason for them to make any grievances about assignment of wrong seniority to them in the lower post of the Chargeman Grade II at that time.
9-A. The need to make grievance about the proper assignment of seniority i.e. showing them junior to the respondents 2 to 5 in the post of the Chargeman Grade II arose only when as per the amendment in Regulation 17 of the Seniority Regulations referred to above the Statewise seniority list of the Chargeman Grade I as on 1-4-1978 was prepared on 30-5-1980 in which the respondents 2 to 5 were given the deemed date of promotion in the post of the Chargeman Grade I as 1-2-1978 whereas no such deemed date of promotion was assigned to the petitioners. Further, it is on the basis of the above deemed date of promotion in the post of the Chargeman Grade I that the respondents 2 to 5 were promoted in the next higher post of the Assistant Shift Engineer on 23-10-1980.
9B. However, prior to that, since the seniority list of the post of Chargeman Grade I prepared on 30-5-1980 showed the petitioners as junior to the respondents 2 to 5 because according to the respondent No. 1 Board they were junior to the respondents 2 to 5 in the lower post of the Chargeman Grade II, they had made representations to the respondent No. 1 Board for giving higher seniority to them in the post of the Chargeman Grade II so that they could be given the earlier deemed date of promotion in the post of the Chargeman Grade I like the respondents 2 to 5 who, although promoted to the said post on the same date on which the petitioners were promoted were given the deemed date of 1-2-1978 as the date of promotion in the said post. They could then also claim assignment of seniority higher to the respondents 2 to 5 in the post of the Chargeman Grade I.
10. It is thus clear that the petitioners need not have made any grievance about wrong fixation of their seniority in the lower post of the Chargeman Grade II as they were promoted on the same date along with the respondents 2 to 5 in the higher post of the Chargeman Grade I. However, after 30-5-1980, i.e. the date of publication of the Statewise seniority list of the Chargeman Grade I when it was revealed that the petitioners were denied earlier deemed date of promotion in the post of the Chargeman Grade I because they were shown junior to the respondents 2 to 5 in the next below post of the Chargeman Grade-II, the petitioners have promptly represented their grievance to the respondent No. 1 Board by making representations in June, July and August, 1980, as shown above, which fact is not in dispute. The petitioners waited for a reasonable time for the response of the respondent No. 1 Board of their representations and their reminders. It is only when they have preferred the instant writ petition in this Court for redressal of their grievance in this petition. Taking into consideration all these facts and circumstances, it cannot be said that there is such an inordinate delay on the part of the petitioners in moving this Court from which an inference can be drawn that the petitioners have given up their right to claim proper seniority in the post of the Chargeman Grade-II. The delay in the filing of the instant writ petition is not, therefore, fatal to it. The above preliminary objection raised on behalf of the respondent No. 1 Board is, therefore, rejected.
11. Turning now to the question of assignment of proper seniority to the petitioners in the post of the Chargeman Grade-II, which is the principal question which we have to examine on merits in the instant case, it may be seen that the said question is governed by the Seniority Regulations, which are statutory in nature as they are framed by the respondent No. 1 Board in the exercise of its powers under section 79(c) of the Electricity (Supply) Act, 1948. From Regulation 3 onwards the general principles relating to seniority are given in the said Seniority Regulations. The basic criteria of seniority as laid down in Regulation No. 3 is of the length of continuous service in the particular category. The expression 'category of posts' defined in Regulation 2(c) means a class of posts in a particular grade of pay within a cadre, separately designated in relation to the nature of functions assigned. The post of the Chargeman Grade II is recognised by the respondent No. 1 Board as a separate category of post within the meaning of Regulation (3) read with Regulation 2(c), referred to above and there is, therefore, a separate seniority list prepared by the respondent No. 1 Board for the said post.
12. Regulation 4 then provides that the length of the service shall be counted from the date of promotion and not from the date of joining the post. Regulations 10 and 11, which are material for our purpose, carve out the exceptions to the principal rule of seniority viz. the length of continuous service in the particular category as enunciated in Regulation 3.
13. According to Regulation 10, the service rendered under the following circumstances does not count for seniority:
"10. Service rendered under the following circumstances shall not count for seniority either in the higher or in the lower category.
(a) in a higher category in a short leave vacancy.
(b) in a higher category as a result of the local arrangement without affecting the seniority of other senior to the incumbent concerned and
(c) where the Competent Authority declares that a promotion has been effected out of turn without considering the claims of those senior to the employees concerned or that such out of turn Promotion was not justifiable."
It is, however, not disputed by the respondent No. 1 Board that the temporary appointment of the petitioners in the post of Chargeman Grade II is not covered by any of the above contingencies enumerated in Regulation 10.
14. It is really the Regulation 11 whose applicability or whose interpretation is the bone of contention between the parties in the instant case. The said regulation is, therefore, reproduced below for ready reference:
"11. The service of an employee in a purely temporary vacancy or as a trainee or as understudy shall not count as service for seniority provided that if a person holding a temporary post without break is eventually confirmed in that post, the temporary service shall, except in the cases covered by Regulation 10 above, count for seniority."
15. According to the aforesaid Regulation 11, the service of an employee in a purely temporary vacancy or as a trainee or apprentice or as understudy does not count as service for seniority except in the case covered by its proviso. As per the proviso in the said Regulation 11, if a person holding a temporary post without break is eventually confirmed in that post, his temporary service, except in the cases covered by Regulation 10, counts for seniority. Since it is not disputed that the contingencies contemplated by Regulation No. 10 are not attracted in the instant case, the petitioners would be able to count their temporary service towards their seniority if they can show that as provided in the above referred proviso to Regulation 11 their temporary service was without any break and that they were eventually confirmed in the post in question of the Chargeman Grade II.
15A. As regards the Regulation 11, it may be seen that the appointment of the petitioners in the post of the Chargeman Grade II, as is clear from their orders of appointment, although it is temporary, is not in any purely temporary vacancy, or as an apprentice or as an understudy. It is not even in temporary posts. Their appointment although temporary is thus in clear vacancies in the permanent posts, for which reason they are not within the mischief of Regulation 11, including its proviso, which is applicable to the temporary posts. As such, such appointments can be considered if at all for the purpose of seniority only under Regulation 3 of the Seniority Regulations. However, whether the temporary appointment is in a temporary post or a permanent post, the requirement of the proviso in Regulation 11 of the Seniority Regulations is satisfied in the instant case.
16. As regards the requirement of the proviso in the Seniority Regulation No. 11, it may be seen that it is not in dispute that after their initial temporary appointment, the petitioners were selected by the competent Selection Committee for appointment to the post of the Chargeman Grade II and were eventually confirmed in that post. The said requirement of the proviso to the said Regulation No. 11 that they should have been eventually confirmed in that post is thus satisfied by the petitioners. Another requirement of the aforesaid proviso viz. that the service in the temporary post should be without any break is also satisfied in the instant case, because admittedly there was no break in the service of the petitioners in the post of the Chargeman Grade II, as during their temporary service in the said post they were interviewed on 11-8-1976 except in the case of the petitioner No. 3 who was interviewed on 20-10-1976 during his temporary service, and were given regular appointment in the said post after their selection from the dates of their interview.
17. It is, however, contended on behalf of the respondent No. 1 Board that the requirement of the above referred proviso in Regulation No. 11 of the Seniority Regulations is that, for computing temporary service, he must have been appointed in the temporary post after his selection by the Competent Selection Committee. In support of the above construction of Regulation No. 11 of the Seniority Regulations, Regulation 19 of the Maharashtra State Electricity Board (Classification & Recruitment) Regulation, 1961 (for short the 'Recruitment Regulations), is pressed into service. It is further contended on behalf of the respondent No. 1 Board that seniority has to be reckoned in accordance with the Seniority Regulations after an employee is appointed in service on regular basis after selection and his prior temporary or ad hoc service cannot be counted for computing his seniority. In support of the above contention, reliance is placed upon Regulation 27 of the Recruitment Regulations, which provides that seniority of the persons selected for appointment shall be fixed in accordance with the Seniority Regulations of the Board.
18. Regulations 19 and 27 of the Recruitment Regulations, upon which reliance is placed by the respondent No. 1, Board are extracted below for ready reference:
"19. All appointment or promotions to posts in the respective Pay Groups shall be made by the Competent Appointing Authorities concerned on the recommendations of the Competent Selection Committee concerned subject to such conditions as may be laid down by the Board.
Provided that, in the case of vacancies of purely temporary nature and of leave vacancies where no person is recommended by the Selection Committee concerned for inclusion in the waiting list is available. The Competent Appointment Authority may as its discretion appoint suitable persons, for a period not exceeding six months subject to the following conditions.
(i) that no candidate who has completed to total service of 8 months shall be reappointed or continued unless he is selected by the Competent Selection Committee.
(ii) that the services of such a person appointed on purely temporary basis are discontinued no sooner a selected candidate is available.
Provided further that in the case of an immediate necessity when no person from the waiting list is available, a purely temporary appointment may be made by the Competent Appointment Authority pending selection by the appropriate Selection Committee.
"27. Seniority of persons selected for appointments shall be fixed in accordance with the Board's Seniority Regulations, 1961, as amended from time to time.
Provided that the names of candidates found suitable for appointment against posts reserved for direct recruitment shall be arranged in such order of preference as may be decided by the Selection Committee concerned."
19. Perusal of Regulation 19 of the Recruitment Regulations shows that the normal rule incorporated in its substantive part is that all appointments or promotions to the posts in the respondent No. 1 Board have to be made by the competent appointing authorities on the recommendations of the Competent Selection Committee concerned. According to the first proviso to Regulation 19 of the Recruitment Regulations, in the case of vacancies of purely temporary nature and of leave vacancies where no person recommended by the Selection Committee concerned for inclusion in the waiting list is available, the Competent Authority can appoint suitable persons with the approval of the Head of the Department for a period not exceeding 6 months subject to the two conditions laid down therein. The first condition laid down in the said proviso is that no candidate who has completed a total service of six months shall be reappointed or continued unless he is selected by the Competent Selection Committee and the second condition in the said proviso is that the temporary appointment should be terminated as soon as the selected candidate is available. As regards the second proviso, it also permits purely temporary appointment being made by the competent appointing authority pending selection by the appropriate Selection Committee in case of an immediate necessity when no person from the waiting list is available.
20. It is, therefore, urged on behalf of the respondent No. 1 Board that the initial temporary appointments of the petitioners made in the post of Chargeman Grade II by the respondent No. 1 Board for temporary duration falls in the first proviso to-Regulation No. 19 of the Recruitment Regulations or at any rate in its second proviso and since the said appointments are made without the selection by the Competent Selection Committee, the temporary service of the petitioner cannot be reckoned for seniority.
21. As regards the question of application of the first proviso to Regulation 19 of the Recruitment Regulations, it is difficult to see how the said proviso is applicable to the temporary appointments of the petitioners in the post of the Chargeman Grade II only because their orders of appointment are for temporary durations issued from time to time. It may be seen that there are other requirements of the aforesaid first proviso, which the temporary appointments of the petitioners in the post of the Chargeman Grade-II do not satisfy. The principal requirement of the aforesaid first proviso is that the appointment contemplated therein is in a purely temporary vacancy or a leave vacancy which requirement is not fulfilled in the case of the temporary appointments of the petitioners as is clear from Annexures 1 to 3 incorporated in the written submissions filed on behalf of the respondent No. 1 Board at the time of notice before admission. Another important requirement of the first proviso which is not fulfilled by the temporary appointments of the petitioners is that the total duration of their temporary appointments exceeds 6 months which is not permitted under the aforesaid first proviso the condition No. (i) which requires for continuance after 6 months the selection by the competent Selection Committee. It is thus clear that the aforesaid first proviso to Regulation 19 of the Recruitment Regulations is not attracted in regard to the temporary appointments of the petitioner in the post of the Chargeman Gr. II.
22. As regards the question of application of the second proviso to the Recruitment Regulation No. 19 of the Recruitment Regulations, although there is no material to show whether there was any immediate necessity for making the temporary appointments of the petitioners in the post of the Chargeman Grade-II, the said appointments can possibly be justified under the aforesaid second proviso because they are purely temporary appointments made pending selection by the Competent Selection Committee as recited in the orders of temporary appointments of the petitioners, referred to above.
23. The question, however, still remains what the effect of the Regulation 19 of the Recruitment Regulations is while determining the seniority of the employees of the respondent No. 1 Board. In appreciating the above submission, it has to be seen that the Seniority Regulations are independently framed by the respondent No. 1 Board in exercise of its power under section 79(c) of the Electricity (Supply) Act, 1948. However, in interpreting the Seniority Regulations and in understanding them, recourse will have to be taken to the Recruitment Regulations, which deal with the question of appointment and promotion of the employees of the respondent No. 1 Board, and the Maharashtra State Electricity Board Employees' Service Regulations (for short the 'Service Regulation') which are general regulations dealing with the conditions of service of the employees of the respondent No. 1 Board. Recruitment Regulations as well as the Service Regulations are both framed by the respondent No. 1 Board in the exercise of its statutory power under section 79(c) of the Electricity (Supply) Act, 1948.
24. Turning to the Seniority Regulations, their perusal do not show that there is any express provision therein which would how that the seniority of the employees of the respondent No. 1 Board should be fixed after their selection by the Competent Selection Committee or after they are appointed in the regular service or after they are confirmed in the service. The main rule for determination of seniority, as already pointed out, is Regulation No. 3 according to which seniority has to be reckoned by the criteria of length of continuous service in the particular category. The expression 'category of posts' and not 'category' is defined in Regulation 2(c) of the Seniority Regulations. Since the said expression is defined with reference to a 'cadre', it would be necessary to consider the meaning of the word 'cadre' given in section 2(b) and also the meaning of the expression 'ex-cadre post' given in regulation 2(d) of the Seniority Regulations for a proper understanding of the meaning of Regulation 3 of the Seniority Regulations, which lays down the main principle of reckoning seniority of the employees of the Board.
24-A. The definitions of the above expressions given in the Seniority Regulations are reproduced below for ready reference :
"2(b) Cadre means a part of an Establishment declared by the Board as such (Annexure I) and which may include one or more categories of posts in different grades at different levels, the incumbents of which are eligible for promotion by seniority and/or selection as may be the case, when vacancies of higher posts occur in the same parts of the Establishment."
2(c) 'Category of posts' means a class of posts in a particular grade of pay within a cadre separately designated in relation to the nature of functions assigned."
2(d) 'Ex-Cadre post' means post outside the cadre."
25. It is pertinent to see that the definition of the expression 'category of posts' and 'Ex-cadre' given in Regulation 3(iv) and 3(vi) of the Recruitment Regulation are exactly similar to the definitions of the said expressions given in the Seniority Regulation (cited supra). Although there is a slight different in the phraseology used in the definition of the word 'cadre' given in Regulation 3(iii) of the Recruitment Regulations from the definition of the said word given in the Seniority Regulations (cited supra), in material particulars, there is no difference between the aforesaid two definitions of the word 'cadre' given in the aforesaid two sets of Regulations. For the sake of comparison, the definition of the word 'cadre' given in Regulation 3(iii) of the Recruitment Regulations is also reproduced below :
3(iii) 'Cadre' means the strength of service or a part of a service sanctioned as a separate unit consisting of posts or category of posts the incumbents of which are eligible to be considered for transfer or for promotion by seniority and merit when vacancies of higher posts occur in the same service or part of the service.
26. On perusal of the definitions of the expression 'category of posts' and 'cadre' given in the Seniority Regulations, it is clear that the concept of 'category of posts' is narrower than the concept of 'cadre' because the category of posts which means a class of posts in a particular scale of pay designated separately within a cadre. The word 'cadre', according to its definition in the Seniority Regulation includes one or more categories of posts in different grades as is also clear from Annexure I to the said Regulations which referred to the various cadres in the respondent No. 1 Board. Annexure I of the Seniority Regulations shows on Generation side four cadres, which include different posts with different pay-scales. However, as per Regulation 3 of the Seniority Regulations, the seniority has to be determined categorywise and not cadrewise, which is clear from the fact that in the posts in question in the instant case, the seniority is maintained separately.
27. It is, however, material to see that in the definitions of the expressions 'cadre', 'category of posts' given in the Seniority Regulations, there is no distinction made, between the permanent posts and the temporary posts or between the permanent employees and the temporary employees. However, the concept of the 'permanent post' and the 'temporary post' or the permanent employees' and the 'temporary employees' is not explained in either the Recruitment Regulations or the Seniority Regulations but the same is explained in the Service Regulations of the respondent No. 1 Board.
29-A. The relevant definitions from Regulation 9 and the relevant extract from Regulation 11 of the Service Regulations which are useful for our purpose are reproduced below :
"9(11) 'Employee' means a person in the service of the Board, but does not include a person borne on work-charged establishment or on nominal muster roll or a daily wage earner ;
9(20) 'Officiate'-A person officiates in a post when he performs the duties attached to it either pending this confirmation therein by way of promotion, or for specified period of time pending a regular appointment thereto in case he is already holding another permanent or temporary post;
9(22): 'Permanent employee' is a person, who, after satisfactory completion of the prescribed period of probation, has been confirmed in one of the regular cadres or posts of the Board.
9(23): 'Permanent post' is a post in the regular establishment of the Board, that is, a post that is likely to continue from year to year in the normal course.
9(25) 'Probation' means a person appointed provisionally in or against a permanent or a temporary post and who has yet to complete the period of probation.
9(29) 'Temporary employee' means a person other than a permanent employee on the Board's Establishment appointed to officiate in a temporary or a permanent post and excludes a person borne on work-charged establishment and the normal muster roll.
9(30) 'Temporary post' is a post created for a limited period (which may be extended from time to time) for work of short duration or of passing nature or for a temporary increase in regular work and excludes a post borne on work-charged establishment or nominal muster roll.
11(a) All appointments by direct recruitment or by promotion shall, in the first instance be no probation for one year even if the appointment is made in a clear vacancy in a temporary or a permanent post. The period of probation may be extended by the Competent Authority upto a maximum of one more year.
11(c) after satisfactory completion of the probation, a probationer may be appointed substantively or to officiate in a permanent or a temporary post as the Competent Authority may decide."
28. The word 'employee' defined in the above Service Regulation 9(11) in view of specific exclusion provided therein persons borne on work-charged establishment or on nominal muster roll or a daily wage earner shows that it includes both the permanent and the temporary employees of the respondent No. 1 Board within the regular service, which is also clear from the fact that the definitions of the expression 'temporary employee' given in Regulation 9(29) of the Service Regulation (cited supra) excludes a person borne on work-charged establishment and/or the nominal muster roll. The definitions of the expression 'officiate' given in Regulation 9(20), 'probation' in Regulation 9(25), and the mode of appointment provided for in Regulation 11 of the Service Regulations would show that even substantive appointments can be made in the temporary posts in the respondent No. 1 Board, similarly, the definition of the expression 'temporary employees' (cited supra) would show that the temporary appointment can be made in a temporary as well as permanent post.
29. It is in the context of the above provisions in the Seniority Regulations, the Recruitment Regulations and the Service Regulation that we have to consider the question of interpretation of Regulation 3 of the Seniority Regulation which lays down the principle rule for determining seniority of the employees of the Board. The crucial word therein which calls for construction is 'category' which in the context of the definition clauses means the 'category of posts' as the word 'category' as such is not defined. Perusal of the definitions of the expression "category of posts" and 'cadre' given in the Seniority Regulations read with its Annexure I as well as their definitions in the Recruitment Regulations do not show that they specifically exclude the temporary posts. On the contrary, the fact that the Board has power to create temporary posts for its employee, that the definition of the word 'employee' (cited supra) given in the Service Regulations which is an exclusive definition includes a temporary employee as held by us above, and the fact that the substantive appointments as shown above can be made in the temporary posts also particularly when they continue or are expected to continue for a long time although created for a specified period each time, the temporary posts created by the respondent No. 1 Board must be regarded as 'cadre post'. They cannot thus be regarded as non-cadre or ex-cadre posts only because they are temporary posts. We are fortified in this view by the judgment of the Supreme Court in the case of O.P. Singh v. Union of India, . There is also an intrinsic evidence for this view in the Seniority Regulations because the service rendered in a temporary post by an employee if it is continuous and if eventually the employee is confirmed has to be included while computing his seniority.
30. It may be seen that as provided in Regulation 5 of the Recruitment Regulations, all appointments to the post in the service of the respondent No. 1 Board which are either by promotion or by direct recruitment have to be made in the manner specified in Schedule 'A' to the Recruitment Regulations, which, as required by Regulation 8 of the said Recruitment Regulations prescribes the minimum qualifications and/or experience required for the various categories of posts and the mode of appointment to the said posts. The Recruitment Regulation No. 19 shows that as provided in its proviso in making temporary appointments thereunder, what is waived is only the requirement of the selection by the Competent Selection Committee, which would mean that all other requirements laid down in the Recruitment Regulations for appointment and/or promotion to a post in the service of the respondent No. 1 Board, including the requirement of qualifications, experience etc. must be satisfied by the candidates concerned in making temporary appointments thereunder.
30-A. In the instant case also, the petitioners were fully qualified and satisfied the requirements under the Recruitment Regulations, to hold the post of the Chargeman Grade-II when they were initially appointed on purely temporary basis in the said posts, except that their selection was not made by the Competent Selection Committee and, therefore, their appointments were made subject to selection by it. Their temporary appointments were thus made not de hors but under the Recruitment Regulations particularly when, in fact, the learned Counsel for the respondent No. 1 Board has himself relied upon the proviso to Regulation 19 to show that the above temporary appointments of the petitioners were made thereunder.
31. It is at this stage necessary to see which temporary or ad hoc service is excluded from computation of the length of service under Regulation 3 of the Seniority Regulations. The Regulations 10 and 11 of the Seniority Regulations are material in this regard, to which we have already referred. We have also pointed out that the appointments of the petitioners in the post of the Chargeman Grade-II do not fall in any of the categories covered by the said regulations. In particular it may be seen that the appointments of the petitioners in the above posts as per the orders of their appointment is not in any purely temporary vacancy or is not made out of turn superseding the claim of the seniors. Since the appointment of the petitioners in the above posts in made under the Recruitment Regulations and since the same is not made out of turn superseding the claims of seniors, their rights under the relevant regulations and in particular of getting proper seniority as per the Seniority Regulations cannot be taken away only because it is stated in the orders of their appointment that their temporary appointment does not confer any right or preference for appointment substantively.
32. It is thus in the context of all the regulations referred to above and the factual position emerging in relation to the temporary appointments of the petitioners in the post of the Chargeman Grade-II that the submission on behalf of the respondent No. 1 Board that the expression "to hold a temporary post" used in Regulation 11 of the Service Regulations means the substantive appointment after selection by the Competent Selection Committee in the temporary post or the matter the general submission made on behalf of the respondent No. 1 Board that Regulation 3 contemplates substantive appointment after selection by the Competent Selection Committee needs to be considered. In our view, the above submission made on behalf of the respondent No. 1 Board is not justified from the scheme of all the above regulations of the Board and in particular its Service Regulations.
33. The question from what date the service rendered by an employee can be reckoned for seniority has been considered by the Supreme Court on more than one occasion. It is firmly established by the decisions of the Supreme Court in the case of Baleshwar Dass and others v. State of U.P. and others, that the principal which has received the sanction of the Supreme Court is that officiating service in a post for all practical purposes of seniority is as good as service on a regular basis. It is further held in the said case that it may be permissible within limits for the Government to ignore officiating service and count only regular service when claims to seniority come before it provided the rules in that regard are clear and categorical and do not admit of any ambiguity.
34. Further in the case of G.P. Doval v. Chief Secretary Government of U.P., it is observed by the Supreme Court in para 15 of its judgment, which in fact squarely covers the contention raised on behalf of the respondent No. 1 Board in the instant case, that if stop-gap appointment or appointment pending the selection by the Public Service Commission is made then after selection of such a candidate by the Public Service Commission, his past service in his appointment of a stop-gap nature or pending selection by the Public Service Commission cannot be ignored unless there is clear rule to the contrary. Doing so, according to the said judgment, would not be fair and just, particularly when such stop-gap arrangement is followed by confirmation. It is thus held in Doval's case by the Supreme Court that it is well-settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, officiating service cannot be ignored for reckoning seniority. In the instant case, the petitioners who were initially appointed temporarily but whose temporary service was continuous who were initially appointed temporarily but whose temporary service was continuous and who were eventually confirmed after their selection by the Competent Selection Committee are, therefore, entitled to count their temporary service in reckoning their seniority in the post of the Chargeman Grade-II, particularly when their temporary service is not within the Seniority Regulations 10 and 11 of the Seniority Regulations.
35. The matter is put beyond doubt by the recent decisions of the Supreme Court in the case of Delhi Water Supply and Sewerage Disposal Committee v. R.K. Kashyap and others, in which there were ad hoc appointments for one year which were followed by regularisation of service of the employees concerned in that case. The Supreme Court held that in the absence of any specific rule, the employees should get benefit of such temporary or ad hod service in determining their seniority except when such ad hoc or, temporary appointment is made without considering the claims of seniors in the cadre. It is material to see that the Supreme Court has in the above judgment considered all its previous decisions and has also explained its decision in the case of Ashok Gulati v. B.S. Jain, upon which reliance was placed on behalf of the petitioner in the said case (cited supra). It is thus clear that the temporary service rendered by the petitioners in the post of Chargeman Grade-II cannot be ignored in computing their seniority in the said post when the said service was continuous and when eventually they were confirmed in the said post after their selection by the Competent Selection Committee. The above contention raised on behalf of the respondent No. 1 Board thus deserves to be rejected.
36. The submission on behalf of the respondent No. 1 Board that under Regulation 3 of the Seniority Regulations the length of service confirmation in the post can alone be taken into consideration is also not justified in view of the above decisions as well as the decision of the Supreme Court in the case of S.B. Patwardhan v. State of Maharashtra, in which the Supreme Court has held that fortuitous circumstances like the circumstance or confirmation of an employee in the service cannot be a valid criteria for reckoning his service. If Regulation 3 of the Service Regulation is interpreted in that manner, it would be arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. The above submission made on behalf of the respondent No. 1 Board also cannot be given effect to.
37. The net result of the above discussion is that, the petitioners are entitled to get seniority from their dates of joining the post of Chargeman Grade-II in temporary capacity, which are earlier to their orders of appointment which are, therefore, made effective from the said dates. Their seniority cannot, therefore, be reckoned from the dates of their interviews from which dates they are given deemed dates of promotion. If seniority is assigned to them in the post of the Chargeman Grade-II from the aforesaid dates of joining their post, then it cannot be disputed that they would rank senior to the respondents 2 to 5 who have been also assigned deemed dates of appointment from the dates of their interviews like the petitioners. Even from the dates of their interviews, they cannot rank senior to the petitioners who get the benefit of their temporary service, as held by us above.
38. Further, it is not in dispute that the basis for promotion to the post of the Chargeman Grade-II is seniority-cum-fitness and, therefore, the petitioners who are senior to the respondent 2 to 5 in the next below post of the Chargeman Grade-II as held by us above would be entitled to be promoted to the post of the Chargeman Grade-I earlier to the respondents 2 to 5. As the petitioners have placed on record the relevant orders of promotion, it cannot be disputed that the petitioners as well as the respondents 2 to 5 were not temporarily promoted to the post of the Chargeman Grade-I on the same date, i.e. 14-8-1979. It cannot also be disputed as is clear from their orders of promotion that the petitioners although temporary were in clear vacancies in the permanent posts, that their service was continuous and that, they were afterwards selected by the Competent Selection Committee and brought on regular basis.
39. However, the respondent No. 1 Board assigned to the respondent 2 to 5 the deemed date of promotion in the post of the Chargeman Grade-I as 1-2-1978 i.e. even prior to their temporary appointment on 14-8-1979 while no such deemed date of promotion in the said post was assigned to the petitioners with the result that they ranked junior to the respondents 2 to 5 although all of them were promoted in the said post on the same date i.e. 14-8-1979. According to the respondent No. 1 Board the earlier deemed date of promotion was grated to the respondents 2 to 5 because they were senior to the petitioner in the next below post of the Chargeman Grade-II. However, since we have held above that the petitioners are senior to the respondents 2 to 5 in the next below post of the Chargeman Grade-II and since they are promoted on the same date i.e. 14-8-1979 in the post of the Chargeman Grade-I, the action of the respondent No. 1 Board in not assigning to the petitioners the same deemed date of promotion i.e. 1-2-1978 in the post of the Chargeman Grade-I, which deemed date of promotion is assigned to the respondents 2 to 5, is arbitrary, discriminatory and is violative of Articles 14 and 16 of the Constitution of India. The petitioners are, therefore, entitled to the same deemed date of promotion in the post of the Chargeman Grade-I, which is assigned to the respondents 2 to 5 by the respondent No. 1 Board. They are also entitled to rank senior to them in the post of the Chargeman Grade-I, because when the promotion of two or more employees is on the same date, then according to regulation 14 of the Seniority Regulations, their seniority is determined by their seniority in the next below post from which the promotion is made. As held by us above the petitioners are senior to the respondents 2 to 5 in the next below post of the Chargeman Grade-II.
40. The next question to be considered is about the promotions in the post of the Assistant Shift Engineer. All the petitioners were promoted in the post of the Assistant Shift Engineer on 9-2-1982 except the petitioner No. 3, who was promoted on 5-5-1983. As regards the respondents 2 to 5, the respondents 3 to 5 were promoted to the said post on 23-10-1980 whereas the respondent No. 2 was promoted to the said post on 9-6-1981. Again since the principle for promotion to the post of the Assistant Shift Engineer is seniority-cum-fitness, the petitioners who are, as held by us above, senior to the respondent 2 to 5 in the next below post of the Chargeman Grade-I, are entitled to be promoted to the post of the Assistant Shift Engineer earlier to the respondent 2 to 5.
40-A. However, it will not be proper now to disturb the promotions of the respondents 2 to 5 to the post of the Assistant Shift Engineer and hence the proper course in the interest of justice now would be to assign to the petitioner a deemed date of promotion from the date when the respondents 3 to 5 were earlier promoted to the post of the Assistant Shift Engineer i.e. 23-10-1980 and further to assign them seniority above the respondents 2 to 5 in the said post of the Assistant Shift Engineer because when their promotions are thus deemed to be made on the same date i.e. 23-10-1980, then as per Regulation 14 of the Seniority Regulations, the petitioners would be senior to them in the said post as they were as held by us above senior to them in the next below post of the Chargeman Grade-I.
41. Turning now to the last question labour promotion to the post of the Assistant Superintendent which is also made on the basis of the criteria of Seniority-cum-fitness, it may be seen that the petitioner No. 1 was alone promoted to the post of the Assistant Superintendent in the reserved category as per the order dated 20-8-1984 and none of the other petitioners were given promotion to the said post of the Assistant Superintendent. However, as regards the respondents 2 to 5, the respondent No. 2 promoted to the post of the Assistant Superintendent on 15-5-1989 whereas the respondent 3 to 5 were promoted to the said post on 25-2-1985. Petitioners are senior to the respondents 3 to 5 in the post of the Assistant Shift Engineer, as held by us above, the claim made by the petitioners that they should have been given promotion to the post of the Assistant Superintendent on 25-2-1985 when the respondents 3 to 5 who were junior to them were promoted to the said post is justified. However, although the rule is of seniority-sum-fitness since the petitioners 2 to 8 are not already promoted to the post of the Assistant Superintendent, their claims for promotion to the post of the Assistant Superintendent need to be examined in accordance with Regulation 22 of the Recruitment Regulations by the Competent Selection Committee, constituted for the purpose of promotion to the post of the Assistant Superintendent. Their claims, thus, will have to be considered as on the date on which the respondent 2 to 5 were promoted on 25-2-1985.
42. As regards the petitioner No. 1 he is promoted on 20-8-1984 i.e. earlier to the respondent 3 to 5, who were promoted on 25-2-1985. He, therefore, cannot have any grievance in regard to his seniority and promotion because by reason of his earlier promotion he must rank senior to the respondents 2 to 5.
43. In the result, the instant writ petition is allowed as follows :
(a) Without setting aside the promotions of the respondents 2 to 5 in the post of Chargeman Grade-I, the Assistant Shift Engineer and the Assistant Superintendent, the respondent No. 1 Board is directed to assign seniority to the petitioners in the post of the Chargeman Grade-II with effect from the initial dates of their joining in the said post as temporary employees.
(b) The respondent No. 1 Board is also directed to give 1-2-1978 as a deemed date of promotion to the petitioners in the post of the Chargeman Grade-I and further to assign them seniority over the respondents 2 to 5, who are also given the same deemed date of promotion i.e. 1-2-1978 by the respondent No. 1 Board :
(c) As regards the post of the Assistant Shift Engineer, the respondent No. 1 Board is directed to give deemed date of promotion to the petitioners in the said post as 23-10-1980 and to assign them seniority over the respondents 3 to 5 who are appointed in the said post on the same date;
(d) As regards the post of the Assistant-Superintendent, the respondent No. 1 Board is directed to consider the claims of the petitioners 2 to 8 for promotion to the said post on the basis of the criteria of seniority-cum-fitness as on the date on which the respondents 3 to 5 were promoted to the said post i.e. 25-2-1985 and if they are found fit for promotion to the said post on the basis of the above criteria in the light of the higher seniority assigned by us to them over the respondents 3 to 5 in the next below post of the Assistant Shift Engineer, the respondent No. 1 Board is directed to give promotion to them in the said post from 25-2-1985 and to assign them seniority over the respondents 3 to 5 in the said post of the Assistant Superintendent.
(e) The petitioners shall be entitled to all the benefits, including monetary benefits arising out of their deemed dated of promotion in the post of the Chargeman Grade-I and the Assistant Shift Engineer, and as regards the post of the Assistant Superintendent, they will be entitled to all the said benefits if after consideration of their claims for promotion in the said post, they are promoted to the said post on 25-2-1985 as directed by us above.
(f) Rule made absolute in the above terms. No costs. The respondent No. 1 Board is directed to comply with the above directions within six months from the date of this judgment.