Calcutta High Court
Ashoke Kumar Roy & Others vs Prasenjit Roy & Others on 25 February, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present:
The Hon'ble Justice Debangsu Basak
and
The Hon'ble Justice Md. Shabbar Rashidi
APOT No. 183 of 2024
Ashoke Kumar Roy & Others
Vs.
Prasenjit Roy & Others.
With
APOT No. 218 of 2024
Badal Roy & Another
Vs.
Prasenjit Roy & Others
with
APO No. 59 of 2024
Prasenjit Roy & Others
Vs.
Ashoke Kumar Roy & Others
2
For the appellant in APO 59
of 2024 : Mr. Ranajit Chatterjee, Adv.
For the respondent in APOT
183 of 2024
And
APOT 218 of 2024 : Mr. Arijit Dey, Adv.
For the appellant in APOT
183 of 2024 : Mr. Amal Kr. Ganguly, Adv.
: Mr. Bikash Ranjan Neogi, Adv.
: Ms. Ananya Neogi, Adv.
For the appellant in APOT
218 of 2024 : Mr. Raghunath Chakraborty, Adv.
: Ms. Amrita De, Adv.
For the KMC : Mr. Alak Kr. Ghosh, Adv.
: Mr. Swapan Kr. Debnath, Adv.
Heard on : January 14, 2025
Judgment on : February 25, 2025
3
Md. Shabbar Rashidi, J.
1. The three appeals are in assailment of an order dated March
12, 2024 passed in WPO No. 1248 of 2022.
2. A.P.O. No. 59 of 2024 and A.P.O.T. No. 218 of 2024 are at
the behest of respondents in Writ Petition who are said to have
superseded the writ petitioners in the impugned final gradation
list of Assistant Engineers (Civil) published on July 5, 2021.
3. By the impugned order the learned Single Judge allowed the
writ petition filed on behalf of the respondents by directing the
respondent KMC to recall the resolution adopted by the Board of
Administrators of KMC at its meeting dated June 29, 2021. The
learned Single Judge also quashed the final gradation list of the
AE(C) of KMC dated 5th July, 2021. The respondent KMC was
further directed to create a fresh gradation list considering the
supernumerary posts created in the year 2012.
4. The appellants in A.P.O. No. 59 of 2024 submitted that the writ
petitioners filed the writ petition challenging the finally published
gradation list where they were placed juniors to the present
appellants except one. It was also contended that the appellants
as well as the writ petitioners belonged to the cadre of Sub-
Assistant Engineer (S.A.E) and in such cadre, the writ petitioners,
were junior to the appellants in A. P. O. No. 59 of 2024 except one
who was senior of some of the appellants, which was explicit from
the gradation list published in the year 2015. The writ petitioners
never challenged such gradation list at any point of time. The writ
petitioners were placed at serial number 92, 100, 102 and 103
respectively in such gradation list of SAE prepared and published
on July 5, 2021. The appellants, however, were placed between
serial number 81 and 99 of such gradation list.
5. It was also contended on behalf of the appellants in
A. P. O. No. 59 of 2024 that the writ petitioners, by filing W. P. O.
No. 1248 of 2022 challenged the gradation list of Assistant
Engineers (Civil) published in the year 2021 on the ground that
the present appellants had acquired their graduation degree in
2010 - 2011 i.e. subsequent to the writ petitioners who had
acquired degree in 1996, 1997, 2002 and 2005 respectively. It was
the contention of the writ petitioners that since they had acquired
graduation degree prior to the present appellants, they were
wrongly shown juniors to the appellants in the gradation list of
2021.
6. According to the appellants, the circular issued on
July 3, 2012 creating supernumerary posts, clearly depicted that
such posts were outside the cadre of AE (C). The supernumerary
posts were supposed to disintegrate upon absorption of a person
holding that particular post to the regular cadre of Assistant
Engineer (Civil) in terms of the extant recruitment rules. The
present appellants also submitted that creation of supernumerary
posts was not to be construed as a regular promotion being not
done in accordance with the recruitment rules.
7. The appellants in A. P. O. No. 59 of 2024 also
submitted that the appellants and the writ petitioners were all
working as Sub- Assistant Engineers and all the writ petitioners
were juniors to the present appellants except Ataur Rahman who
was senior to appellant Milan Kumar Sarkar and Atish Ranjan
Manna. The appellants also acquired the requisite bachelor's
degree in Engineering in 2010 and 2011 well before five years
prior to their promotion to the cadre of Assistant Engineer
between 2018 - 2020. At that relevant point of time, when the
appellants in A. P. O. No. 59 of 2024 were promoted to the post of
AE (C), the writ petitioners were still working in the
supernumerary posts appointed without following the 50 point
roster.Acquisition of Bachelor Degree by the writ petitioners prior
to that of the appellants in A. P. O. No. 59 of 2024 was of no
consequence, in so far as the writ petitioners were inducted into
service later than the appellants and were juniors to such
appellants.
8. Learned advocate for appellant in A. P. O. No. 59 of
2024 further submitted that the appellants were their juniors in
the cadre of Sub-Assistant Engineer, even prior to their placement
in the supernumerary post in the year 2012. Inspite of them being
in service for more than five years after acquisition of graduation
degree in 2010-2011, they could not be promoted until 2015-16
due to unavailability of vacancies. They were regularly promoted
in 2018-2019. In consideration of such stagnation, the appellants
were favoured with notional fixation of their seniority with effect
from July 6, 2012. The writ petitioners were also shown juniors to
the appellants in A. P. O. No. 59 of 2024 in the gradation list for
SAEs published on September 23, 2015. Such gradation list was
never challenged by anyone.
9. According to the appellants in A. P. O. No. 59 of
2024, the promotion to the cadre of AE from the cadre of SAE was
to be carried out in accordance with the recruitment rules on the
basis of seniority. The said appellants were promoted in
accordance with the recruitment rules. The writ petitioners were
holding the supernumerary posts, which were outside the cadre
strength and was personal to them, which was subject to
adjustment on their absorption as AE in the cadre. The writ
petitioners were absorbed in the cadre of AE in 2020 - 2021
against available permanent vacancies which was subsequent to
the promotion of the appellants in A. P. O. No. 59 of 2024 in 2018
- 2019. Till then, the writ petitioners were holding the
supernumerary posts on ad hoc and temporary basis. The
appellants also submitted that for the aforesaid reasons, the
names of the writ petitioners were not included in the gradation
list of AEs published on August 24, 2015
10. The appellants in A. P. O. No. 59 of 2024 also submitted
that the gradation list published on August 24, 2015 depicted the
seniority position of the incumbents in the cadre of AE from the
date of their promotion in the cadre. The writ petitioners who were
holding supernumerary posts prior to their promotion to the cadre
of AE in the year 2021 cannot challenge the said gradation list
without challenging promotion process itself. Learned advocate
also relied upon (2010) 1 Supreme Court Cases 417 (Amarjeet
Singh and Ors. V Devi Ratan and Ors), (2020) 13 Supreme
Court Cases 161 (Vinod Giri Goswami and Ors. V State of
Uttarakhand and Ors), (2021) 17 Supreme Court Cases 399
(Rashi Mani Mishra and Ors. V State of Uttar Pradesh and
Ors.), 2023 S.C. Serv R 434 (Smt. Imlikokla and Ors. V State
of Nagaland and Ors), (2022) 3 Supreme Court Cases 197
(Shyam Sunder Oberoi and Ors. V District and Sessions Judge
Tis Hazari Court, Delhi and Ors) and (1980) 3 Supreme Court
Cases 245 (Katyani Dayal and Ors. V Union of India and Ors).
11. On a proposition that an employee holding a
supernumerary post without following the Recruitment Rules,
cannot be equated with regular promotees, the learned advocate
for the appellants in A. P. O. No. 59 of 2024 relied upon AIR 2021
SC 4611 (Chandan Banperjee v Krishna Prasad Ghosh).
12. A.P.O.T. No.183 of 2024 is at the behest of the writ petitioners.
Although, the writ petition filed on their behalf was allowed by the
impugned judgment and order but the writ petitioners have
assailed the same mainly on the ground that the learned Single
Judge erred in not moulding the reliefs sought in the writ petition.
Learned Single Judge, though, held the writ petitioners to be
senior to both the direct recruit and promote Assistant Engineers
but did not grant any relief with regard to cancellation of the
promotion of some of the respondents in the writ petition to the
post of Executive Engineer during the subsistence of an order
dated June 6, 2022. By such order, this High Court had directed
that all steps taken during the pendency of the writ petition would
abide by the result thereof. To such proposition, learned advocate
for the appellants in A.P.O.T. No.183 of 2024 relied upon 2024
SCC OnLine SC 2 (Vashist Narayan Kumar v State of Bihar and
Ors).
13. Appellants in A.P.O.T. No.183 of 2024 have also
challenged the impugned Judgment and Order the learned Single
Judge ought to have directed recasting of the gradation list of
2021 under challenge instead of directing preparation of a fresh
one. The KMC authorities, taking advantage of the direction for
preparation of a fresh gradation list, have come up with a fresh
gradation list dated May 24, 2024 excluding the names of
respondent Nos. 4, 5, 7 and 8 of the writ petition, since they have
been promoted during pendency of the writ petition. Another
ground for challenge has been canvassed that while disposing of
the writ petition, learned Single Judge did not pass any direction
for the benefits of the pay scale of Executive Engineer (Civil) to the
writ petitioners with effect from July 6, 2018, in terms of the
circular dated December 15, 2009. The private
respondents/promotees, junior to the writ petitioners, were
granted such benefits with effect from January 28, 2022. In
support of his contentions learned advocate for the appellants in
A.P.O.T. No.183 of 2024 also relied upon (1990) 2 Supreme Court
Cases 715 (Direct Recruit Class II Engineering Officers
Association v State of Maharashtra and Ors), (1986) 2 Supreme
Court Cases 157 (Narender Chadha and Ors v Union of India
and Ors), (1996) 10 Supreme Court Cases 177 (D.K. Reddy and
Anr. V Union of India and Ors), (1998) 4 Supreme Court Cases
107 (Union of India v Dr. Akhilesh Chandra Agarwal), (2001) 2
Supreme Court Cases 362 (Indian Airlines LTD. And Ors v S.
Gopalakrishnan), (2016) SCC OnLine Cal 344 (Sri Kartick
Chandra Ghosh and Ors v Kolkata Municipal Corporation) and
an unreported decision dated August 30, 2019 in APO No. 297 of
2015.
14. APOT No. 218 of 2024 is at the instance of the direct recruits
i.e. respondent Nos. 4 to 12 in the writ petition. It is their
contention that the learned Single Judge erred in holding the writ
petitioners senior to them in consideration of the fact that the writ
petitioners were serving as Assistant Engineer for a pretty long
period, at least since 2012. The said appellants submitted that
they were directly appointed as Assistant Engineer in 2012
following the regular recruitment process in accordance with law.
On the other hand, the writ petitioners were officiating as such in
the supernumerary post since 2012, owing to stagnation for want
of adequate vacancies. They were adjusted in the cadre of
Assistant Engineer, sometimes in 2021, as and when vacancies
occurred. Hence, according to the appellants in APOT 218 of 2024,
the writ petitioners cannot be construed to have entered into the
cadre when they were offered with the benefits of supernumerary
posts.
15. In fact, it was contended that, the circular creating the
supernumerary posts, itself provided that such posts would be
adjusted against regular vacancies, as and when available. It was
never intended to create a separate class within a class on the
basis of higher qualification and length of service.
16. It was also contended by such appellants that, firstly,
regulations relating to enblock seniority, as provided in Calcutta
Municipal Corporation (Determination of Seniority) Regulations,
1984, speaks of seniority amongst the promotees and direct
recruits belonging to the same year and not of different years.
Secondly, the said Regulations were not approved by the State
Government as required. For such reasons, the Regulations of
1984 cannot be adhered to. In support of their contentions,
learned advocate for the appellants in APOT No. 218 of 2024 cited
(2008) 15 Supreme Court Cases 332 (P.P.C. Rasani and Ors v
Union of India and Ors) and (2010) 3 Supreme Court Cases 616
(Ashok Kumar Das and Ors v University of Burdwan and Ors).
17. Learned Senior Advocate representing the respondents
Kolkata Municipal Corporation and its officials submitted that the
writ petitioners were accommodated in the supernumerary post of
Assistant Engineer (Civil) in 2012 due to stagnation on account of
unavailability of vacancies. While being so posted, they kept lien
in the feeder post of Sub-Assistant Engineer so long as they are
not absorbed in the promoted cadre as and when vacancy occur.
They were finally absorbed against available vacancies in the year
2020-2021. Till then the writ petitioners were not born in the
cadre of Assistant Engineer (Civil). On the other hand, the direct
recruits were inducted as Assistant Engineer (Civil) in 2012 on the
basis of a valid selection process conducted in accordance with
the extant Recruitment Rule/Regulations and born in the cadre in
2012 itself. Therefore, the writ petitioners who were not even born
in the cadre cannot claim seniority over the direct recruits.
18. It was also contended that the writ petitioners cannot also
claim seniority over the other promotees (respondent Nos. 13 to 34
in the writ petition) as they were senior even in the cadre of Sub-
Assistant Engineers. The same seniority positions were
maintained in the gradation list for the cadre of Assistant
Engineers. Following such seniority position, the aforesaid
respondents were regularly promoted to the cadre of Assistant
Engineers in the year 2018-2019. Subsequently, the writ
petitioners were promoted against regular vacancies of Assistant
Engineers in 2020-2021. As such, the writ petitioners cannot
claim seniority over the direct recruits or the regular promotees of
2018-2019. In support of his submissions, learned Senior
Advocate for KMC has placed reliance upon (2008) 15 Supreme
Court Cases 332 (Dr. P.P.C. Rawani and Ors v Union of India
and Ors), (2009) 4 Supreme Court Cases 170 (Union of India v
Dharampal and Ors), AIR 1995 SC 962 (Dr. Arundhati Ajit
Paragaonkar v State of Maharashtra) and (1993) 2 Supreme
Court Cases 213(Dr. M.A. Haque and Ors v Union of India).
19. Upon hearing the learned advocate for the parties and on
the basis of materials placed before us, it transpires that the main
issue which has fallen for our consideration is the interse seniority
position of incumbents who have been inducted into the service
from the three sources of appointment to the post of Assistant
Engineer. It also requires consideration whether appointment to
the supernumerary post is or is not a promotion from the date it
was given effect to.
20. Appellants in APOT No. 218 of 2024 i.e. respondent Nos. 4
to 12 in the writ petition were directly recruited to the post of
Assistant Engineer in the year 2012 following the extant
Recruitment Regulations.
21. The appellants in A.P.O. No. 59 of 2024 are the regular
promotees to the cadre of Assistant Engineer in 2018-2019 and
were placed, in the impugned gradation list published in 2021,
above the writ petitioners who obtained regular promotion in the
year 2020-2021. Admittedly, the appellants in A.P.O. No. 59 of
2024 except two at Serial Nos. 98 and 99 were senior to the writ
petitioners in the gradation list for the cadre of Sub-Assistant
Engineers. They were inducted into service in diverse years
ranging from 1987 to 1998. The writ petitioners were so inducted
in the year 1997 and 1998. On the basis of the gradation list for
the cadre of Sub-Assistant Engineers as well as the date of
appointment of respective candidates in the cadre of Assistant
Engineers, the impugned gradation list was published in the year
2021.
22. According to the case made out by the writ petitioners,
they obtained graduation degree much prior to the other regular
promotees and on the basis of acquisition of such degree; they
were accommodated in the supernumerary post in 2012. Such
posts were created in view of stagnation in the promotional
channel on account of dearth of sufficient vacancies in the
promotional post of Assistant Engineers. The regular promotees
i.e. appellants in A.P.O. No. 59 of 2024 obtained such graduation
degree much after the writ petitioners. At the relevant point of
time, such regular promotees had not put in requisite length of
service and were not qualified to be appointed in the
supernumerary post of Assistant Engineers. Nevertheless, such
regular promotees were considered for regular promotion to the
post of Assistant Engineer prior to the writ petitioners.
23. As noted, there were no vacancies in the promotion posts
which left the Sub-Assistant Engineers stagnating over a pretty
long time for want of sufficient vacancies in the promotional cadre
of Assistant Engineers. In order to surmount the stagnation, the
authorities mooted a proposal for creation of supernumerary
posts, in order to overcome the stagnating Sub-Assistant
Engineers. Such proposal was approved by the authorities and in
pursuance thereof Circular dated 03.07.2012 was issued which
facilitated grant of the scale of Assistant Engineers to the eligible
Sub-Assistant Engineers. It would be pertinent to set out the said
circular hereunder for convenience:
ANNEXURE "P-2"
D.M.C.(P)'S CIRCULAR NO. 19/IIB/2012-13 DATE:
03/07/2012
Sub; Creation of Supernumerary posts in the rank of
Assistant Engineer (Civil Mech. and Elec.) to open
promotional avenues for the stated S.A.Es pf K.M.C.
On the recommendation of the Mayon-in-Council
under MOA. 32.1 dated 19.04.2012, the Kolkata
Municipal Corporation in its meeting dated
20.06.2012 has approved the creation of
supplementary posts in the rank of Assistant
Engineer to open promotional avenues for the
diploma holder and degree holder Sub-Assistant
Engineers of the KMC who are stagnating in their
career for more than 25 years and 13 years out of
which 5 yours as post degree SAE respectively owing
to lack of enough scope of promotion to the post of
Assistant Engineer.
In the light of the above, the Mpl. Commissioner by
his order dated 30.06.2012 approved the following
for the Implementation of the resolution:
1) The diploma holder SAEs who have completed 25
years of service or more in the present post as on
31.12.2011 me to be promoted to the post of Asst.
Engineer in their respective discipline by way of
creation of supernumerary posts wherever required
subject to fulfillment of promotional norms.
2) The degree holder SAEs who have completed 13
years of service or more in the present post out of
which 5 years as degree holder SAE as on
31.12.2011 are to be promoted to the post of Asstt.
Engineer by way of creation of supernumerary posts
wherever, required subject to fulfillment of
promotional norms.
3) The said supernumerary posts will be adjusted
against the permanent vacancies in regular manner
as and when the vacancy becomes available within
the sanctioned posts of Assistant Engineer.
4) At present and at the beginning of each year an
exercise will be made by the Personnel Dept. to find
out the eligible SAEs for promotion against
supernumerary posts completing 25 years as
diploma holder SAE and 13 years (5 years with
degree) as degree holder SAE,
who could not be promoted against the regular posts
during the previous year upto 31st December for
which Personnel Deptt. will issue Office Orders, by
observing necessary criteria and by obtaining
necessary approval from the authority.
5) Three would be no change in the existing R/R for the
post of Assistant Engineer.
6) The pay of the eligible S.A.Es as mentioned above
may be fixed as A.E on promotion against
supernumerary posts from the date of joining in the
post.
7) The facts relating to the above and with reference to
the M-J-C and Mpl. Corporation resolution may be
noted in the respective Service Book with paper
verification by the concerned IFU.
8) The pay scale and the post of A.E so awarded to the
eligible supernumerary posts as mentioned above
may be treated as personal to them for subsequent
adjustments against availability of permanent
vacancies.
All concerned are requested to take necessary action
immediately in this regard.
Sd/-
(A. Bandyopadhyay )
Dy. Mpl Commissioner(P)
24. The said circular dated July 3, 2012 stipulated eligibility
for supernumerary AE post for SAEs holding a Diploma in
Engineering and having completed twenty-five years of service as
also for SAEs holding a Degree having completed thirteen years
with at least five years after acquisition of graduation degree. Such
circular also provided that there would be no change in the extant
Recruitment Regulations and SAEs accommodated in
supernumerary post on such qualifications, would be adjusted in
the regular post as and when vacancies would arise, following the
existing Recruitment Regulations.
25. In pursuance of the aforesaid circular, an office order
dated July 5, 2012 was published with list of SAEs who were
promoted to the post of AE against supernumerary posts. The writ
petitioners having put in requisite number of years of service, post
acquisition of bachelor degree, as on the cut date of December 31,
2011, were accommodated in the supernumerary post with effect
from 2012 in terms of clause (2) of such circular. They however,
kept a lien to their post in the cadre of Sub-Assistant Engineers,
so long as they were not promoted in the regular vacancies in
accordance with the extant recruitment regulations. The other
promotees i.e. respondent Nos. 13 to 34 in the writ petition, were
Diploma holders. They had not put in the requisite 25 years of
service as on December 31, 2011, continued to serve in the cadre
of Sub-Assistant Engineers. It is in this backdrop, since the writ
petitioners were accommodated in the supernumerary post of
Assistant Engineers prior to the other regular promotees, the writ
petitioner claim seniority over the regular promotees, though, the
writ petitioners were juniors to such promotees in the cadre of
Sub-Assistant Engineer in relation to respective dates of their
initial entry into service.
26. The aforesaid circular dated July 3, 2012 was challenged
in a writ petition before the High Court. Learned Single Judge,
allowed the writ petition declaring the said circular to be in
violation of Article 14 and 16 of the Constitution. However, in
appeal, the judgment and order passed by learned Single Judge
was set aside by the learned Division Bench upholding the legality
and validity of the impugned circular. The matter was carried up
to the Hon'ble Supreme Court. The Hon'ble Supreme Court, by its
judgment in Civil Appeal No. 5582 of 2021, upheld the judgment
passed by the Hon'ble Division Bench and observed the impugned
circular dated July 3, 2012, not to be standing in violation of
Article 14 and 16 of the Constitution.
27. It is evident from the recruitment regulations and relevant
Circulars governing the service conditions that the post of Sub-
Assistant Engineer was the feeder post. An eligible candidate in
the cadre of Sub-Assistant Engineer would be entitled to
promotion from such post to the next higher post, right up to the
post of Chief Engineer with intermediary post of Assistant
Engineer and Executive Engineer. The relevant Recruitment
Regulations are as follows: -
THE KOLKATA MUNICIPAL CORPORATION
PERSONNEL DEPARTMENT
5, S. N. BANERJEE ROAD, KOLKATA - 13
Date: 20/02.2002
D.M.C.(P)'SCIRCULAR NO./34/2001-2002
Sub: Modification of Recruitment Regulation for the post of
Assistant Engineer.
In terms of recommendation of Mayor-in-Council dtd.
19.12.2001, The Kolkata Mpl. Corporation at its meeting dtd.
17.1.02 (Vide Agenda No. 20 and item No. 8) approved the
modification of Recuritment Regulation for the post of
Assistant Engineer (Civil), (Mechanical) and (Electrical) u/s 20
of C.M.C. Act 1980 read with section 604 of the Act Ibid.
The complete Recruitment Regulation for the post of Assistant
Engineer is as follows:
Method of Recruitment
By promotion from the posts borne in the common cadre for
Sub'Asstt. Engineer(C), (M), (E).
50% of the post of total cadre strength of Assistant Engineer
shall be filled up by promotion from the post borne in the
Common cadre for Sub-Asstt. Engineer having at least 10
year's experience as Sub-Asstt. Engineer.
15% of the post of total cadre strength of Asstt. Engineer shall
be filled up by promotion from amongst the S.A.Es having an
engineering degree or equivalent from a recognized university;
and having at least 10 experience as A.S.E, out of which a
minimum of 5 (five) years should be as a degree (or
equivalent) holder S.A.E. in respective streams.
By Direct Recuitment through M.S.C.
35% of the total cadre strength shall be filled up by direct
recruitment observing necessary formalities.
Qualification for Direct Recruitment
Essential
A degree in Civil/Mechanical/Electrical engineering of a
recognized university or its equivalent.
Age not more than 37 years on the 1st January of the year of
advertisement.
Desirable
One year's post graduate practical training or study or
research or practical engineering experience.
Passing the examination of "O" level in computer application
approved by AICTE.
This Circular is issued superseding all the previous Circulars
regarding R/R for the post of Asstt. Engineer.
Sd/- Illegible
(S. Chatterjee)
Dy. Municipal Commissioner (P)
28. In view of the case made out by the parties and on the
basis of materials place before us, we are to consider the issue
viz:-
(i) Were the writ petitioners accommodated in the
supernumerary post of Assistant Engineers and officiating
such post for a considerable period would be deemed to have
been permanently posted in the cadre of Assistant Engineers
or were they required to undergo the process of promotion in
accordance with the existing Recruitment Regulations?
(ii) Was their seniority required to be determined on the basis
of the length of service in the cadre of Sub-Assistant
Engineers or they derived precedence over the regular
promotees on account of additional qualification?
29. The impugned circular, which was upheld up to the level
of Hon'ble Supreme Court, sufficiently and unambiguously
indicated that the measures were put in place in order to
overcome the stagnation in the cadre of Sub-Assistant
Engineers and the incumbents were subject to regular
promotion in accordance with the extant Recruitment
Regulations as and when vacancy occurs. Such circular
provided that there would be no change in the existing
Recruitment Regulations for the post of Assistant Engineer. In
such view of the facts, it is quite evident that creation of
supernumerary post was a temporary measure taken with a
view to purge the stagnation in the cadre. The authorities never
intended to do away with the process of regular promotion by
creating the supernumerary posts.
30. It is trite law that the qualification for appointment or
promotion to a particular post is considered when the process of
such recruitment or promotion is initiated. In Direct Recruit
class II Engineering Officers Association (Supra), the Hon'ble
Supreme Court laid down that,
"47. To sum up, we hold that:
(A) once an incumbent is appointed to a post according
to rule, his seniority has to be counted from the date of
his appointment and not according to the date of his
confirmation.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules
and made as a stopgap arrangement, the officitation
in such post cannot be taken into account for
considering the seniority.
(B) if the initial appointment is not made by following
the procedures laid down by the rules but the
appointee continues in the post and interruptedly till
the regularisation of service in accordance with rules,
the period of officiating service will be counted.
(C) when appointments are made from more than one
source, it is permissible to fix the ratio for recruitment
from the different sources, and if rules are framed in
this regard they must ordinarily be followed strictly.
(D) ..................................
(E) ..................................
(J) the decision dealing with important questions
concerning a particular service given after careful
consideration should be respected rather than
scrutinised for finding out any possible error. It is not
in the interest of service to unsettle a settled position."
31. Similarly in the case of Narender Chadha (Supra), the
Hon'ble Supreme Court noted that,
"21. As observed in D.R. Nim v. Union of India [AIR
1967 SC 1301 : (1967) 2 SCR 325] when an officer
has worked for a long period as in this case for nearly
fifteen to twenty years in a post and had never been
reverted it cannot be held that the officer's continuous
officiation was a mere temporary or local or stop-gap
arrangement even though the order of appointment
may state so. In such circumstances the entire period
of officiation has to be counted for seniority. Any other
view would be arbitrary and violative of Articles 14
and 16(1) of the Constitution because the temporary
service in the post in question is not for a short period
intended to meet some emergent or unforeseen
circumstances. Clause (b) of Rule 9-C of the Rules
which deals with the question of seniority of
promotees becomes irrelevant in the circumstances of
this case as regards the promotees who have been
holding the posts from a long time as stated above."
32. In the case at hand, however, the situation is otherwise.
The placement in the supernumerary post was not a temporary or
stopgap arrangement. Rather it was provided with a view to do
away with the stagnation in the cadre and that was done without
following the existing Recruitment Regulations. The beneficiaries
knew from the very inception that regular promotion to the next
higher stage would be taken up in accordance with the prevalent
Regulations. In fact, the Hon'ble Division Bench as well as the
Hon'ble Supreme Court, in the earlier round of litigation,
considered such placement to be akin to second Career
Advancement Scheme. There was no question of reverting back
but the regular promotion to the next higher post was within the
vision but following the norms.
33. In D. K. Reddy (Supra), Hon'ble Supreme Court noted
that the persons holding or accommodated in supernumerary post
would not be considered outside the cadre of the post for which
such posts were created. Such observations were followed by the
Hon'ble Supreme Court in Akhilesh Chandra Agarwal (Supra). In
the facts and circumstances of the present case, there is no
dispute with regard to the position of supernumerary post holders.
The only thing that was contemplated by the authorities is that
supernumerary posts were offered to the persons having a certain
qualification at the relevant point of time which was subject to
adjustment in due course, in accordance with the Recruitment
Regulations at the time when regular promotions were taken up.
34. In Indian Airlines Ltd. (Supra), the Hon'ble Supreme
Court observed that,
"5. When in addition to qualification, experience is
prescribed, it would only mean acquiring experience
after obtaining the necessary qualification and not
before obtaining such qualification. In the case of the
respondent, he obtained the ITI certificate in the year
1994 and, therefore, did not possess five years of
experience as required under the relevant rule. If his
qualification as a diploma-holder in Mechanical
Engineering is taken note of, he has not completed
three years of experience as he got the same in April
1996 and on the relevant date he did not possess
such qualification. Indeed in prescribing qualification
and experience, it is also made clear in the general
information instruction at Item 6 that "experience will
be computed after the date of acquiring the necessary
qualifications". Therefore, when this requirement was
made very clear that he should have experience only
after acquiring the qualification, the view taken by the
High Court to the contrary either by the learned Single
Judge or the Division Bench does not stand to reason.
35. The facts of the case at hand are altogether different. The
Recruitment Regulations clearly provided an experience of 25
years for Diploma holders and 13 for the Degree holders (with at
least five years post acquisition of graduation) for being eligible for
promotion to the post of Assistant Engineer. Therefore, the ratio
laid down in Indian Airlines Ltd. (Supra) cannot be applied in the
facts of the present case.
36. The decision in APOT 297 of 2015 (Supra) was rendered
in the context of promotion to the post of Executive Engineers 60%
of which was to be filled up by degree holder Assistant Engineers
with six years working experience and the remaining 40% by the
Diploma holder Assistant Engineers having six years of working
experience. The difference was noted on the basis of date of
acquisition of higher qualification. In the instant case, however,
the regulation provided two separate streams, one with 25 years of
working experience and the other with 13 years for promotion to a
common cadre. Moreover, at the time of promotion on the basis of
seniority, the authorities were to look for the prescribed
qualification in terms of length of working experience in order to
ascertain the eligibility for promotion. The posting in the officiating
supernumerary post was never a criteria prescribed for such
promotion. Admittedly, the regular promotees were senior to the
writ petitioners in the gradation list of the cadre of Sub-Assistant
Engineer from inception. It is on such considerations, the earlier
gradation list was published in the year 2015 which was never
challenged.
37. In Chandan Banerjee (Supra), where the very impugned
circular dated July 3, 2012 was under challenge, the Hon'ble
Supreme Court observed that,
"42.Another aspect to be considered is that while
creating supernumerary posts, KMC has not
completely restricted the promotional avenues of
diploma- holder SAEs who have stagnated in their
service. It has provided adequate opportunity to them
to advance in their career, although on different
terms and conditions. Thus, the promotional policy of
KMC for supernumerary posts is not irrational or
arbitrary or to the detriment of diploma holder SAEs.
In matters of public policy and public employment,
the legislature or its delegate must be given sufficient
room to decide the quality of individuals it seeks to
employ as against different positions. As long as
these decisions are not arbitrary, this Court must
refrain from interfering in the policy domain.
41.Even otherwise, we note that Clause 3 of the
impugned circular provides that these
supernumerary posts would be adjusted as and
when a vacancy becomes available within the
sanctioned posts of an AE. Further, Clause 5
stipulates that there would be no change in the
Recruitment Regulations for the posts of AE. What
this means is that the regular promotion of degree or
diploma holder SAEs is not impacted by way of the
impugned circular. As and when vacancies arise in
the sanctioned AE posts, the AEs holding
supernumerary posts would be subject to the
Recruitment Regulations and the selection process for
promotion of an SAE to an AE. The supernumerary
posts are personal to the eligible AEs and will lapse
on their being promoted on a regular basis as AEs or
ceasing to remain in service."
38. In Amarjeet Singh (Supra), the Hon'ble Supreme Court
noted that,
27. The law permits promotion with retrospective effect
only in exceptional circumstances when there has
been some legal impediment in making the
promotions, like an intervention by the court. An officer
cannot be granted seniority prior to his birth in the
cadre adversely affecting the seniority of other officers
who had been appointed prior to him. "The latecomers
to the regular stream cannot steal a march over the
early arrivals in the regular queue."
39. In Vinod Giri (Supra), the Hon'ble Supreme Court
observed that the promotees were not entitled to count their ad
hoc service for the purpose of computing their seniority. Similarly,
in Smt. Imlikokla Longchar (Supra), the Supreme Court noted
that the time spent as officiating senior lecturer could not be
deemed to be the dates of the birth of incumbents in the cadre of
senior lecturer.
40. Similar ratio was laid down in the case of Rashi Mani
Mishra (Supra), it was noted by the Supreme Court that,
"25. Similarly, the decision of this Court in Rudra
Kumar Sain [Rudra Kumar Sain v. Union of India,
(2000) 8 SCC 25 : 2000 SCC (L&S) 1055] , relied upon
by the learned counsel appearing on behalf of the ad
hoc appointees also shall not be applicable to the facts
of the case on hand. In the case before this Court, the
promotees appointed on ad hoc were continued for
fairly long periods and their appointments were made
after due consultation with, or approval of the Service
Commission, and therefore their appointments were
held not to be ad hoc or fortuitous or stopgap. It is to
be noted that in the present case when the ad hoc
appointees were appointed in the year 1985, there
was no consultation with the UPSC and as such there
was no recommendation by the UPSC. Their services
came to be regularised as per the 1979 Rules and
after they were selected by the Selection Committee
constituted under the 1979 Rules, which specifically
provides that for the purpose of regularisation of ad
hoc appointments, the appointing authority shall
constitute a Selection Committee and consultation with
the Commission shall not be necessary. It is also to be
noted that when the ad hoc appointees were
appointed in the year 1985, they were appointed on
the basis of the recommendations of the Selection
Committee constituted for ad hoc appointments and
when subsequently their services were regularised
and they were appointed in the year 1989, they were
appointed by the order of the Governor. This is one
additional ground to hold that their substantive
appointments can be said to be only from the date of
their regularisation/appointment made in the year
1989 after their names were recommended by the
Selection Committee constituted under the 1979 Rules
and their services were regularised as per the 1979
Rules after following the procedure as required under
the 1979 Rules i.e. in the year 1989. Therefore, their
seniority is to be counted only from 23-2-1989, the
date of their regularisation and the services rendered
by the ad hoc appointees prior thereto i.e. from the
date of their initial appointments in the year 1985 is
not to be counted for the purpose of seniority, vis-à-vis,
the direct recruits appointed prior to 1989."
41. In the case of Shyam Sunder Oberoi (Supra), also the
Hon'ble Supreme Court laid similar principles and observed that,
"17. We consider it appropriate to observe that the
employees who were appointed on ad hoc basis and
qualified typing test at the later stage, in absence of
the scheme of rules in determining seniority, at least
could not have a right to march over such of the
employees who were appointed on substantive basis
after going through the process of selection for
holding regular selection and their right of seniority in
no manner be relegated qua such of the ad hoc
employees who qualified typing test at a later stage
and regularised subsequently from the date of initial
appointment like in the instant case by an Order
dated 17-11-2000."
42. The case of Katyani Dayal (Supra), dealt with appointments
in a cadre having permanent as well as temporary posts. The
facts of such case, has no bearing with the facts obtaining in the
present case. As such, the ratio of said case has no manner of
application in the facts and circumstances of the case at hand.
So also the case of Ashok Kumar Das (Supra) was rendered in
the context of a challenge to the resolution adopted by the
Executive Council prescribing criteria for promotions. The facts
of such case are also absolutely different than that obtaining in
the present case.
43. In P.P.C. Rawani (Supra) also the Hon'ble Supreme Court
considered its decision in Dr. M. A. Haque (Supra) and laid down
similar principles, that's to say:
"9. The orders dated 9-4-1987 and 29-10-1991
[(1992) 1 SCC 331: 1992 SCC (L&S) 309: (1992) 19
ATC 503] make it clear that this Court did not intend
any regularised doctor to steal a march over the
regularly appointed doctors, either individually or as
a group. To ensure that the seniority and promotional
prospects of regularly recruited doctors were not
affected, this Court directed a separate seniority list
in respect of the regularised doctors and clarified that
their promotions will only be in supernumerary posts
to be created. Supernumerary posts are non-cadre
permanent posts. They are created to accommodate
the lien of officers who are entitled to hold a lien
against regular permanent posts. Being ex-cadre
posts, no specific duties are attached to them and the
officers concerned usually perform duties in some
vacant temporary or permanent posts. (Vide D.K.
Reddy v. Union of India [(1996) 10 SCC 177: 1996
SCC (L&S) 1386].)
10. If all the ad hoc doctors were to be regularised
with effect from the date of their initial appointment,
with seniority also from the date of initial
appointment, there will be no difference between
regular recruitment and regularisation of ad hoc
appointments, thereby defeating the very purpose of
systematic regular recruitment through UPSC. Ad hoc
or stopgap appointees were not normally regularised
and given seniority from the date of initial
appointment. They were usually given regularisation
and seniority only after a certain period of service,
which used to vary from one year to ten years or
even more."
44. In the case of Dharam Pal (Supra), the Supreme Court held
that,
"25. It is, however, also well settled that where the
initial appointment is only ad hoc, not according to
rules and made as a stopgap arrangement, the
period of officiation in such post cannot be taken into
account for considering the seniority.
26. ..................................................................
27. When an ad hoc appointment is made, the same
must be done in terms of the rules for all purposes. If
the mandatory provisions of the rules had not been
complied with, in terms of Direct Recruit [(1990) 2
SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348]
, the period shall not be taken into consideration for
the purpose of reckoning seniority. Furthermore, it is
one thing to say that an appointment is made on an
ad hoc basis but it is another thing to say that inter
se seniority would be determined on the basis laid
down in another rule."
45. Likewise, in Arundhati Ajit Pargaonkar (Dr) (Supra) the
Hon'ble Supreme Court noted to the following effect that,
"7. Nor the claim of the appellant, that she having
worked as Lecturer without break for nine years on
the date the advertisement was issued she should be
deemed to have been regularised appears to be well
founded. Eligibility and continuous working for
howsoever long period should not be permitted to
overreach the law. Requirement of rules of selection
through Commission cannot be substituted by
humane considerations. Law must take its course.
Consequently the appellant was not entitled to claim
that she should have been deemed to have been
regularised as she had been working without break
for nine years."
46. As noted above, in the instant case, the writ petitioners were
accommodated in supernumerary posts created with a view to
overcome stagnation in the cadre of Sub-Assistant Engineers. At
the time of such creation, by the impugned circular, it was made
explicit that the incumbents in such post would be subject to
existing Recruitment Regulations in due course, as and when
vacancy arises. Such vacancy first arose in 2017-2018 and the
regular promotees who were senior to the writ petitioners in the
gradation list of SAEs, were regularized. Again on the occurrence
of vacancy in 2021, the writ petitioners were regularized as per
the extant Recruitment Regulations and then born in the cadre of
Assistant Engineers. Applying the principles laid down by the
Hon'ble Supreme Court, in the aforementioned judgments, the
writ petitioners cannot be seen to steal a march over the regular
promotees, who, were regularized in the promotional post, as per
the Regulations, prior to the writ petitioners. Apparently, the
direct recruits born in the cadre of Assistant Engineers in 2012,
when they were appointed on regular basis in accordance with
the prevailing Recruitment Regulations.
47. The minimum qualification for appointment in the feeder post
of Sub- Assistant Engineers was ostensibly a Diploma. The
Recruitment Regulations provided for promotion to the post of
Assistant Engineers, both of the Diploma holder SAEs and
Degree holder SAEs. The candidature of both the regular
promotees and the writ petitioners were evaluated at the time of
regularization, when the vacancies arose in the cadre of Assistant
Engineers on the touchstone of their seniority position in the
gradation list of the cadre of SAEs. Nothing has been placed on
record that any ineligible SAE was promoted or regularized.
Accordingly, the impugned gradation list for the cadre of
Assistant Engineers was prepared and published on July 5,
2021.
48. It transpires from the materials placed before us that during
pendency of the writ petition, there was an order passed on June
6, 2022 directing that any steps taken during the pendency of
the writ petition shall abide by the result of the same. Relying
upon Vashist Narayan Kumar (Supra) and Sri Kartick Chandra
Ghosh (Supra) it was argued that the learned Single Judge ought
to have moulded the relief sought in the writ petitioner to annul
the promotions given to some of the parties as Executive
Engineers. However, in the facts of the case, no such steps were
actually warranted.
49. Therefore, in the light of the discussions made hereinabove
and applying the ratio laid down by the Hon'ble Supreme Court,
we find no fault with the impugned gradation list published on
July 5, 2021 or the resolution adopted by the Board of
Administrators of KMC at its meeting dated June 29, 2021.
Consequently, the impugned judgment and order is hereby, set
aside.
50. In the result, the three appeals being APOT 183 of 2024, APOT
218 of 2024 and APO 59 of 2024 along with the connected
applications, if any, are accordingly disposed of without any
order as to costs.
51. Urgent photostat certified copy of this order, if applied for, be
supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
52. I agree.
[DEBANGSU BASAK, J.]
