Court Judgments

CASE NO.:
Contempt Petition (civil)  39 of 1992

PETITIONER:
A.N. SEHGAL AND ORS.

RESPONDENT:
RAJE RAM SHEORAN AND ORS.

DATE OF JUDGMENT: 31/03/1995

BENCH:
K. RAMASWAMY & N. VENKATACHALA

JUDGMENT:

1995 (3) SCR 104

Contempt Petition No. 39/92
IN Civil Appeal No. 4094 of 1984

The following Order of the Court was delivered :

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

“On a conjoint reading of Rules 12(3) and 12(5) it is clear that the year
of allotment of the Assistant Executive Engineer in the post of Executive
Engineer, shall be the calendar year in which the order of appointment as
Assistant Executive Engineer had been made. Thus his seniority as Executive
Engineer, by fiction of law, would relate back to his date of initial
appointment as Assistant Executive Engineer and in juxtaposition to Class
II officers’ seniority as Executive Engineer is unalterable. The date of
the seniority of Mr. R.R. Sheoran thus shall be August 30, 1971. His
seniority as Executive Engineer shall accordingly be reckoned.”

While Mr. R.S. Sheoran’s seniority as Executive Engineer has deter-mined as
above, with effect from August 30, 1971, as regards the promotees, this
Court held that:-

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

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

It was also held that:

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

“Mere officiating appointment by promotion to a cadre post outside the
quota continuous officiation therein and declaration of probation would not
clothe the promotee with any right to claim seniority over the direct
recruits.”

On that premise, appropriate directions have been given in paragraph 26,
namely, to determine the cadre strength of the service under Rule 3(2) read
with Appendix ‘A’ and to allot the posts in each year of allotment to the
promotees and direct recruits 50:50 as contemplated under Rule 12 read with
5(2) and to issue appointment orders on substantive basis in the respective
posts.

This Court on April 5,1991, while delivering two judgments ordered that the
respondents should comply with the directions within four months from the
date of the receipt of the judgment. The contempt application was filed on
9.1.92. No time for extension was sought for. Even after the contempt
proceedings, while notice was issued, though time was repeatedly taken, the
respondent have done the exercise at a snail’s pace. These facts clearly
impress us that the respondents have deliberately delayed in finalisation
of seniority list to benefit the existing promotees till they retired from
the service. This impression gets fortification from a cursory glance at
the mandatory time frame fixed in the judgment, orders passed from time to
time and final list prepared by the respondents. Even then the fitment
itself has not been done as per the specific and unambiguous findings
recorded and directions contained therein. It is clear from the fitment
made vis-a-vis promotees and direct recruits as is evident from the
seniority list prepared by the respondents. Take for instance, the
promotion of direct recruit, M.K. Aggarwal at S1.No. 22 was effected in the
year 1962. Up to January 11, 1962, no direct recruit was available. He was
appointed for the first time on 11.1.62. As stated earlier, he is entitled
to be treated as Executive Engineer with effect from 1962 though he was
promoted after putting up 5 years service i.e. 1967 as 10 posts by then
were available to the direct recruits. This is only fictional since,
admittedly, 21 posts were occupied by the promotees. As a result of the
operation of Rule 12, promotees are entitled to occupy only 10 or 11 posts.
Therefore, notionally he was required to be treated and that he should be
deemed to have been promoted with effect from 11.1.62 as Executive
Engineer. In-stead they have given him the fitment in 1966 as year of
allotment. It has gone directly in the teeth of the direction given by this
Court. R.A. Goel, although promoted earlier, he should have been found to
be available only later to M.K. Agrawal, since all the promotees enmass
occupied places in excess of their quota, namely, 10 posts.

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

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

Post the matter on 7.4.95.

Petition disposed of.