G.C. Gupta & Ors Vs. N K. Pandey & Ors [1987] INSC 365 (8 December 1987)

G.C. Gupta & Ors Vs. N K. Pandey & Ors [1987] INSC 365 (8 December 1987)

SEN, A.P. (J) SEN, A.P. (J) RAY, B.C. (J)

CITATION: 1988 AIR 654 1988 SCR (2) 185 1988 SCC (1) 316 JT 1987 (4) 593 1987 SCALE (2)1314

CITATOR INFO : RF 1989 SC 278 (21)

ACT:

United Provinces Service of Engineers (Buildings and Roads Branch) Class Il Rules 1936: Rules 3(b). 5(ii), 17 and 13-Engineers-Seniority and promotion-'Member of service'-Who is-Seniority to be determined from date employee becomes 'member of service'.

Constitution of lndia 1950: Articles 226 and 136- Service matters-Inordinate and unexplained delay-Relief not to be granted-Division Bench deciding that case was barred by laches and delay-Such decision cannot be reversed by another Division Bench of same High Court treating the matter as res integra-Doctrine of stare decisis- Applicability of.

HEADNOTE:

% From the year 1942-43, two vacancies in the United Provinces Service of Engineers, both in the Buildings and Roads as well as in 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 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.

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 subsequent 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 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.

The respondents in the appeal (petitioners in the writ petition) were initially appointed as temporary Assistant Engineers in the U.P. Service of Engineers (Buildings and Roads Branch) by the Chief Engineer, PWD between 1947-48 subject to the final approval of the Government. These were subsequently approved by the Government 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 Assistant Engineers in permanent posts in the cadre during 1956-58 and the date of their confirmation was fixed as April 1, 1956.

The appellants in the appeal (respondent Nos. 3-5 and 7 in the writ petition) were appointed between 1951-52 as temporary Assistant Engineers against the guaranteed posts and after completion of the probationary period were confirmed in 1955, vide Gazette Notification dated October 11, 1955.

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 of their becoming members of the service.

The respondents filed representations before the Government in 1959-60 for re-determination of the confirmation as well as conseqential determination of seniority of the petitioners vis-a-vis the respondents.

Their claim was they having been appointed as Assis- 187 tant Engineers. though temporarily, they became 'members of the Service' earlier than the appellants and as such they were entitled to be placed above the appellants in the seniority list. In 1960-61 the appellants had been promoted as appellants Executive Engineers on the basis of seniority and record of service. However, respondents Nos. 1 to 12 who later on were also promoted as Officiating Executive 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 dated October l l, 1955 by which the appellants were confirmed with effect from April 1, 1955 and the consequential determination of the inter se seniority between direct recruits and promotees by the orders dated July 20, 1956 and May 29, 1961.

A Single Judge of the High Court dismissed the petition holding that the petitioners were guilty of laches 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 representations made by the petitioners in regard to their seniority 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 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 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 188 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. Service of 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 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 absorption into the Service by the Government in consultation with the Public Service Commission i.e. from the date from which they became 'Members of the Service' within the meaning of r. 3(b) of the Rules. [221 C-D] Ashok Gulati v. B.S. Jain, [1986] Supp. SCC 597 followed. Baleshwar Das v. State of U.P. [1981] 1 SCR 44 1980 4 CC 226; N.K. Chauhan c. State of Gujarat, [1977] 1 SC R 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 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. 1230F 2(b) Inordinate delay is not merely a factor for the Court to refuse appropriate relief but also a relevant consideration for not unsettling settled things. [231B] Malcom Lawrence Cecil D'Souza v. Union of India & Ors. [1975] Supp. SCR 409; R.S. Makashi & Ors. v. I.M. Menon & Ors. [1982] 2 SCR 69; K.R. Mudgal v. R.P. Singh, 1986 4 SCC 531 and 189 Rabindra Nath Bose v. Union of lndia, [19701 2 SCR 697, referred A to.

3. Respondents Nos. 1 to 12 were disentitled to any relief under Art. 226 of the Constitution due to inordinate delay and laches. If the judgment of the High Court were to be sustained after a lapse of 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 Branch would be upset. [232E]

4. It is still open to the Government to grant the necessary relief to the sole respondent at present in the service others having retired. If he is found suitable for promotion to a higher post, without disturbing the appointment, promotion and confirmation of the appellants, by creation of a supernumerary post. [232G-Hl

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. [230E] Dias Jurisprudence 4th Edition p. 286.

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 if the matter was res integral, the Court on a later occasion would come to a different conclusion.[230E]

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 the public interest.

Obvious considerations of public policy make it a first importance that the person aggrieved must take action requisite effectively to 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;231A-B] 190 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 Koads Branchl, Class 11, was fixed at 1.4.1956. Vide G.O.. dated 29.5.1961, the orders for inter se seniority exclusively of the petitioners Nos. l 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-B] 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 April 1, 1955. By office memorandum dated 20.7.1956, the Government fixed the inter se seniority of opposite parties Nos. 2 to 7 along with 18 other officers who were confirmed as Assistant Engineers.[199E-F] Aggrieved by the order of confirmation of the respondents 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 inter 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 191 the writ petition in part, issuing a writ in the nature of Certiorari quashing the gradation or seniority lists (annexures 1, 2 and 28 to the writ petition), and a writ in the nature of mundane commanding the opposite party No.

1, the State (Government to prepare a fresh seniority list in accordance with law in the light of the observations 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. [199G-H; 200A-G] The vital question that required to be considered in this appeal was what was the yardstick or standard or norm for determination of the seniority of the respondents who had been appointed temporary 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 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 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 S(i) of the United Provinces Service of Engineers (Buildings and Roads Branch) Class 11 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 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.

192 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 confirmation of the service of the temporary Assistant Engineers in 1950 after obtaining the approval of the Public Service Commission and also after the passing of the tests by the respondents as provided 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 provisions of Rule 3(b) of the said Rules. The argument that their appointment 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 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 fulfillment of all the requirements of the Rules for regular appointment, including consultation with the Public Service Commission, he 193 cannot be said to be appointed substantively in the temporary post of 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 the Chief Engineer, yet, after the approval of their appointments by the Government, and also confirmation 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 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;

210B-H; 211A-Bl 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 appointed 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 5(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 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. [211G-H; 212A, D-E] 194 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 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 service, which provides for determination of seniority from the 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 has 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 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 not be given any relief by directing, redetermination of the seniority of the respondents as well as the 195 appellants on The ground of unusual laches and delay. The appellants Nos. 1 to 4 were confirmed in 1955 and their seniority was determined by 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 and the respondents Nos. 2 and 3 were officiating as Superintending Engineers but were junior to all the four appellants and respondents 1 and 4 to 12 were then Executive Engineers. At present, the appellants 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 directed to be 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.J [1970] 2 SCR 697 observed that the attack on the seniority list prepared on the basis of 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 rules. Similar observations have been made by this Court in many other cases. [1218B-H;

219A-Dl] 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 of the rights of the appellants which have accrued to them in the meantime.

Considering all the aspects, it would be just and proper not to give any relief to the respondents on the ground of inordinate delay and laches 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 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 permanent or temporary, as held in this case. Appeal allowed.

Judgment of the High Court set aside. [220H; 221A]

CIVIL APPELLATE JURlSDICTION: Civil Appeal No. 1717 of 1981.

From 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 Kulshreshtha.for the Respondents.

S.S. Khanduja, S.K. Passi, Yashpal Dhingra and Mrs. Urmiia Kapoor for the Interveners.

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 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 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. petitioners 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 made permanent after expiry of period of probation. The respon- 197 dents Nos. 2 and 3 who passed the final Civil Engineering Examination of Thomson College, Roorkee in 1946 were appointed as temporary and officiating Assistant Engineers by the Chief Engineer subject to final approval of the Government vide CE-P/ W/D/ C.M. No. 2736-E/8E-1917 dated 2.6.1947. This provisional appointment as temporary Assistant Engineers was approved by the 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 o. No 1427/EBR 2 EBR-1947 dated 16.10.1948.

The petitioners Nos 1 and 4 to 12 passed the final Civil Engineering Examination of the Thomson College, Roorkee 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 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 5(i)of the United Provinces Service of Engineers (Buildings and Roads Branch), Class Il Rules, 1936. Thereafter on 20th January, 1950, vide G.O. No 3968 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 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 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 198 mentioned therein that the government reserved the right to determine the seniority subsequently. Thus the date of confirmation of the petitioners Nos. 1 to 12 as permanent Assistant Engineers in the permanent posts of Assistant Engineers in 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 petitioners Nos. 1 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.

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.o. 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 Branch) and two for the Irrigation Branch). This reservation was also guaranteed each year to the top students. The Government however by G.o. 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 1950. 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 1953 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 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 January 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 appointed in 1951 as temporary Assistant Engineers in two tem 199 porary posts. The opposite party No. 6 namely Shri S.K. Ojha who was one of the toppers passing out from Roorkee University in 1952 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 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 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 United Provinces Public Service Commission (Limitation of Function) 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 require consultation with the Public Service Commission. The 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 7 along with 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 consequential determination of seniority of the petitioner vis-a-vis the respondents. This representation was made on 15.7.1959 and 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 200 2.3.1960 and 3.7.1960. The petitioner No. I also sent a representation on 12.9.1963. As no steps were taken to consider the representations and to re-determine the date of confirmation of the 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 fixation of seniority on its basis. The said petition was dismissed by order dated 16.4.1971 on the sole ground that the petition was highly belated and the petitioners were guilty of laches 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 permitted to question the propriety of confirmation orders yet they were entitled to claim seniority over the rcspondents as per rules regulating the service of engineers. The claim of the petitioners was that they being appointed as Assistant Engineers though temporarily became members of the Service earlier than the respondents 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 determination of seniority in accordance with rules was not barred by delay.

It was observed further that the Government would 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 Assistant Engineers. Hence the writ petition was filed by the petitioners claiming the relief of re- determination of their seniority in accordance with the rules governing the services of United 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 special appeal No. 287 of 1971 that so far as the claim of the appellants for consideration of their representations regarding determination seniority in accordance with the Service Rules, was not 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 laches.

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 (Buildings and Roads Branch). The relevant Rules are quoted herein below:- Rule 3(b)"Members of the Service" means a Government appointed in a substantive capacity, under the provision of these rules or of rules in force previous to the introduction of these rules, to a post in the cadre of the service.

Rule 4 The sanctioned strength of the cadre is 24 assistant engineers, provided that subject to the provisions of rule 40 of the Civil Services (Classification, Control and Appeal) Rules, 1930, the Government may .............

.............

(ii) Increase the cadre by creating permanent or temporary posts from time to time as may be found necessary.

Rule 5 Recruitment to the Services shall by made by the Government (i) by direct appointment from amongst engineer students who have passed out of the Thomson Civil Engineering College, Roorkee, and who 202 have completed a course of training in the Buildings and Roads Branch as Engineer Students after consulting the Public Service Commission, U. P.

(ii) by direct appointment after advertisement and after consulting the Public Service Commission, U.P.

(iii) by the appointment of officers in the temporary service of the United Provinces Public Works Department (Buildings and Roads Branch), after consulting the Public Service Commission, U.P. provided that it will not be necessary to consult the Commission in the case of appointed appointment of a temporary officer to a permanent vacancy if he has already been appointed to a temporary post in the cadre of the service after consultation with the Commission.

(iv) by promotion of members of the United Provinces Subordinate Engineering Service or of Upper Subordinates in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merit.

(v) by promotion of computers in the Public Works Department, Buildings and Roads Branch, who have shown exceptional merit and who are technically qualified.

Rule 16 Training and Probation Engineer students who pass from the Thomson College shall be required to undergo a course of training for one year. This period may be extended by the Government for one more year in the case of candidates who are not selected for appointment at the end of their first year of training, but who are considered to have 203 justified their retention in training for one more year.

Rule 17 All persons appointed to the Service, who are not already in the permanent employ of the Buildings and Roads Branch of the United Provinces Government, shall be placed on probation for four years, provided that such of them as have undergone training as Engineer students, or have served as temporary engineers in the Buildings and Roads Branch of the United Provinces Government, may be permitted to count the period of such training and service respectively towards this period of probation. The Government may extend the period of probation fixed in any case.

At any time during the probationary period the Government may dispense with the services of an officer at one month's notice.

Rule 19 (i) A probationer shall be confirmed in his appointment when- (a) he has completed the prescribed period of probation;

(b) he has passed all the tests prescribed in the last preceding rule; and (c) the Government are satisfied that he is fit for confirmation.

(ii) All confirmations under the rule shall be notified in the United Provinces Gazette.

Rule 23 Seniority in the service shall be determined according to the date of the order of appointment to it, provided that if the order of appointment of two or more candidates bears the same date, their seniority inter-se shall be determined according to the order in which their appointment has been notified.

204 Two preliminary objections were raised on behalf of the petitioners about the maintainability of the writ petition before the High Court. The first objection was regarding the delay in making the application challenging the determination of seniority of the petitioners vis-a-vis the respondents which were determined as early as in 1956, in 1973 i.e. after 17 years. This objection was duly considered by the Court below and it was over-ruled. In 1959 re presentations had been made against the determination of seniority in contravention of the provisions of Rule 23 of the United Provinces Service of Engineers (Buildings and Roads Branch), Class II Rules, 1936. These representations were kept pending by the government and they were not disposed of. Secondly, in 1970 a challenge was thrown in writ petition No. 2254 of 1970 by Shri R.C. Mangal and two others i.e. respondent Nos. 6, 7 and 11 challenging the order of confirmation of the petitioners Nos. 1 to 4 who were appointed long after the appointment of the petitioners and the con sequent determination of seniority. This writ petition, however, was unsuccessful as the writ petition as well as the Special Appeal were dismissed on the ground of inordinate delay and laches in moving the Court for redress against the order of confirmation of the petitioner Nos. 1 to 4 which was made by the Government vide notification dated 11.10.1955. But in that case the question of determination of seniority in derogation of the provisions of Rules did not arise nor it was considered and determined.

It was further observed that the Government would decide these representations fairly and in accordance with law.

These observations were made in the Special Appeal No. 287 of 1971 decided in October 1971. The High Court while disposing of the civil Writ Petition No. 1080 of 1973 observed that the petition did not suffer from delay and laches and the question of determination of seniority was required to be considered by the Court. It was further observed that the plea of wrong fixation in the cadre was not raised in the earlier writ petition. As such there was no determination on the question of seniority in the cadre itself in the said writ petition and the principles of res judicata were not attracted.

The other preliminary objection raised was that if the question of seniority was considered it might seriously prejudice the rights of the opposite parties. On this point it was observed by the High Court that the matter of seniority of the opposite parties vis-a-vis the petitioners was never settled and as such no question arises as to the accrual of any right legal or equitable in favour of the opposite 205 parties because of lapse of time.

It is a well established principle that where there are no specific rules for determination of seniority in service the length of continuous service is the yardstick for determining the seniority of the members of service. The vital question that requires to be considered in this appeal is what is the yardstick or standard or norm for determination of seniority of the respondents who have been appointed as temporary or officiating Assistant Engineers against temporary posts of United Provinces Service of Engineers (Buildings and Roads Branch) Class 11, as well as the toppers from Thomson College of Civil Engineering who were directly appointed sometime in 1950 and 1951 on probation against reserved temporary posts and confirmed immediately after the expiry of the period of probation against permanent posts before the confirmation of the temporary Assistant Engineers recruited from the Thomson College of Engineering sometime between 1948 to 1950. To decide this question it is very relevant to consider the Service rules as in the instant case there are admittedly the Service Rules namely United Provinces Service of Engineers (Buildings and Roads Branch) Class Il rules, 1936 which regulate the appointments and conditions of service of United Provinces Service of Engineers (Buildings and Roads Branch). Rule 23 of the said Rules which is said to be the mariners' compass in determining the seniority of the members of the service provides that seniority in service shall be determined "according to the date of order of appointment to it" provided that if the order of appointment of two or more candidates bears the same date their seniority inter-se shall be determined according to the order in which their appointment has been notified.

Therefore, it is evident from this Rule that the touchstone of determination of seniority in service is the date of order of appointment to the service or in other words the date when an appointee becomes a member of the service after fulfilling all the necessary requirements provided in the various provisions of the said Rules. Rule 3(b) defines further that "Member of the Service" means a Government servant appointed in a substantive capacity under the provisions of these rules or of rules in force prior to the introduction of these rules to a post in the cadre of this service. In other words, it states categorically that an appointee to be a member of the service has to be appointed in a substantive capacity in the cadre of the service. The cadre of the service in Rule 4(ii) clearly provides that it consists of both permanent and temporary posts and the strength of the cadre 206 may be increased by the Government by creating permanent and temporary posts from time to time as may be found necessary.

The sanctioned strength of the cadre of Assistant Engineers though originally was 24 yet the said strength of the cadre could be increased by creation of both permanent and temporary posts. Rule 5 specifically lays down the sources of recruitment to the service. There are five sources for recruitment to the service. These sources have been stated hereinbefore and as such it is not necessary to reiterate them once again here. Rule 16 enjoins that engineer students who pass from the Thomson College are to undergo a course of training for one year. This period of training may be extended by the Government by one more year in the case of candidates who are not selected for appointment at the end of their first year of training but who are considered to have justified their retention in training for one more year. Rule 17 provides that all persons appointed to the service who are already in the permanent employment of Buildings and Roads Branch of the United Provinces Government shall be placed on probation for four years provided that such of them as have undergone training as engineer students, or have served as temporary engineers in the Buildings and Roads Branch of United Provinces Government, may be permitted to count the period of such training and service respectively towards the period of probation. Rule 19 deals with confirmation of a probationer when the requirements provided therein have been fulfilled or completed namely the completion of the prescribed probation period, the passing of all the tests prescribed in Rule 18 and the Government is satisfied that the probationer is fit for confirmation. It has also been provided therein that all confirmations under the Rules shall be notified in the United Provinces Gazette.

The petitioners in the writ petition who are respondents in this appeal were initially appointed as 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 subsequently approved by the Government between 1948 and 1949 in accordance with the provisions of Rule 5(i) of the United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936. Thereafter on January 20, 1950 the Government in consultation with the Public Service Commission confirmed the provisional appointments of the petitioners as temporary Assistant Engineers and these petitioners have also passed the requisite tests held by the government. They were con- 207 firmed vide Gazette Notifications dated 7.11.1956, 19.4.1957 and 14.5.1958. The date of confirmation of all these petitioners was fixed as 1.4.1956 (vide G.O. dated 29.5.1961). The respondents Nos. 3 to 5 and 7 who are appellants in this appeal were appointed between 1951 and 1952 as temporary Assistant Engineers against guaranteed posts on probation and after competition of the probationary period they were confirmed in 1955 vide Gazette Notification dated 11.10.1955. 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 of this appeal was fixed below them from 1956 treating the date of confirmation in the service as the date of their becoming member of the service.

It has been urged on behalf of the appellants as well as by the State that unless a person is appointed as temporary Assistant Engineer against a permanent post on probation and thereafter unless he becomes confirmed after successful completion of the period of probation and passing of all the tests mentioned in Rule 19(b) of the said rules and he is considered to be fit for confirmation by government he cannot be considered to be appointed to the service and he does not become a member of the service. The seniority of an Assistant Engineer will be reckoned only from the date when an Assistant Engineer is substantively appointed against a permanent post and duly confirmed in the post in accordance with provisions of Rule 19 and thereby becomes a member of the service. In other words, it was tried to be contended before this Court that the provisional, fortuitous, temporary or officiating appointment of the respondents as Assistant Engineers will not be taken into consideration in determining their seniority in service unless and until they are duly appointed against permanent posts on probation and are confirmed after the successful completion of the probation period and on passing of the requisite tests and after their confirmation is notified by the Government in the United Provinces Gazette. Relying on these contentions it has been urged that the services of the respondent Nos. 1 to 12 were confirmed and duly notified in the Gazette in 1961 and accordingly by office memo dated May 29, 1961 their inter-se seniority was fixed. As they were confirmed much later than the appellants so their seniority was fixed below that of the appellants.

It was on the other hand, urged on behalf of the respondents who passed civil engineering examination from Thomson College of 208 Engineering between 1947 and 1948 that the appellants did not enter into the Thomson College of Engineering when they were appointed as officiating temporary Assistant Engineers subject to final approval of the Government by the Chief Engineer, P.W.D. between 1947 and 1948. Thereafter the Government duly sanctioned their appointment by order made between 1948 and 1949,subject to the final approval of the United Provinces Public Service Commission. These provisional appointments were ultimately made final by the Government after the receipt of the approval of the U.P. Public Service Commission in 1950 . It has been urged on behalf of the respondents that from 1950 at least these respondents should be deemed or treated to be substantively appointed in accordance with the provisions of Rule 3(b) of the said Service Rules. As they have become members of the service in as much as their appointments have been duly approved by the Government and the Public Service Commission and on their passing the medical test and other tests the Government has confirmed their provisional appointments and the period of service these temporary Assistant Engineers rendered previously was counted towards their probation in accordance with the provisions of Rule 17 of these Rules, they are entitled to have their seniority reckoned at least from the date of their confirmation in the service by the Government in 1950 i.e. from the date of their substantive appointment in the service The seniority list that has been published is wholly arbitrary, illegal and in utter contravention of the provisions of Rule 23 of the Rules.

On a consideration of the letters of provisional appointment issued by the Chief Engineer, P.W.D. (Buildings and Roads Branch) as well as the sanctions accorded to such appointments by the Government thereafter and the confirmation of the service of the temporary Assistant Engineers in 1950 after obtaining the approval of the Public Service Commission and also after passing of the tests by the respondents as provided in Rule 18 of the said Rules, I cannot but hold that they have become appointed in a substantive capacity against temporary posts of the cadre of Assistant Engineers and as such they have become members of the service since that date in accordance with the provisions of Rule 3(b) of the said Rules. The argument that their appointment being made against temporary posts and not against permanent posts and not on probation as well as they being not confirmed and their confirmation being not notified in the United Provinces Gazette before 1956, 209 they are not entitled to be treated as members of the service being appointed in the substantive capacity, cannot be sustained under any circumstances. Rule 4 of the Service Rules clearly states that the cadre of Assistant Engineers will comprise of both permanent and temporary posts and as such the argument that unless and until the respondents are appointed on probation against permanent posts and unless they are confirmed they cannot be treated as members of the service is wholly untenable. One can be a member of service if he is appointed in a substantive capacity as distinguished from a fortuitous appointment or an appointment for a fixed tenure or on a purely temporary basis against a temporary post of Assistant Engineer in the cadre. This Court in the case of Parshotam Lal Dhingra v. Union of India, [1958l S.C.R. 828 at 842 has held that an appointment to a temporary post in Government service may be substantive or on probation or on an officiating basis.

Similar observation has been made by this Court in the case of Baleshwar Dass & Ors. v. State of U.P. & Ors., [1981] 1 S.C.R. 449 wherein this very rule came to be considered in the case of a similar dispute regarding the seniority amongst the engineers in the Irrigation Department of the Uttar Pradesh Government. It has been observed as follows:- "It is not correct to say that when Engineers are appointed to temporary posts but after fulfilling all the tests for regular appointment they are not appointed in a substantive capacity .............................. That is to say although they are temporary appointees, if their probation was completed and other formalities fulfilled, they become members of the service.

Merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfills the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission. " It has been further observed:

"Rule 23 is the relevant rule when a question of seniority arises. The order of appointment in a substantive capacity is the significant starting point for reckoning seniority. The appointment in a substantive capacity need not necessarily be to a permanent post. It is 210 significant even if it is to a temporary post of long duration . " Rule 4 prescribes the sanctioned strength of a cadre.

It 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 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 permanent post he becomes a member of the service. Therefore merely because a Government servant has been appointed to a temporary post after fulfillment of all the requirements of the rules for regular appointment including consultation with the Public Service Commission, he cannot be said to be appointed substantively in the temporary post of 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. This point has been very clearly settled by this Court in the case of Baleshwar Dass & Ors. v. State of U.P. & Ors., (supra). It has been observed in this case as follows:- "We see no reason to hold that when engineers are appointed to temporary posts but after fulfillment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity. " In the instant case as I have stated hereinbefore that 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 the Chief Engineer, P.W.D. but after approval of their appointments by the Government and also confirmation of their provisonal appointments by the Government in consultation with the Public Service Commission and after the respondents had passed all the requisite tests for confirmation, it cannot be questioned that these respondents have not been appointed in a substantive capacity as they were not confirmed by the Government prior to 1961 and their confirmations were not published in the U.P. 211 Gazette. It is pertinent to mention that for an appointment in order 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 as between the two.

It is pertinent to refer in this connection the observations of this Court in S. B. Patwardhan and Ors. v.

State of Maharashtra and Ors., AIR 1977 SC 2051=[1977] 3 SCR 775 where it has been observed:

"There is no universal rule either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both. That is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of the cadre arises." It has been further observed that confirmation cannot be the sole touchstone of seniority as that will be indefensible. "Confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of the substantive vacancies. " It does not show that confirmation has to conform to any set of rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government. I do not find any rational or legal justification for preventing the respondents to have their services rendered from the date they are 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 has been issued by the Government as required under Rule 19 of the Rules even though all the essential requirements for being confirmed have been clearly fulfilled by the respondents. The respondents, as has been stated herein before, have been duly appointed 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 5(iii) of the said Rules as well as after fulfilling the other requirements as provided in Rule 19 of the said Rules in 1950. It will be relevant to mention in this connection that this Court in the case of Baleshwar Dass & Ors. v. state of U.P. & Ors., (supra) while considering the identical rules so far as the determination of seniority of the U.P. Engineers in the Irrigation Department has observed that substantive capacity referred to the capacity in which a person holds the post and not necessarily to the nature and character of the post. A person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration, in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation. It has also been observed that an official in service even before confirmation in service has a relevancy to seniority if eventually no infirmities in the way of confirmation exist. There is P nothing in the scheme of rules contrary to that principle. Therefore the point from which service is to be counted is the commencement of the service by the Assistant Engineer which might not have been permanent appointment in the beginning and in that sense may 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.

The decision in the case of A.K. Subraman & Ors. v. Union of India & Ors., AIR 1975 SC 483 which was cited before us is not relevant in as m