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Judgment
N.P. Singh, A.C.J.
This writ application has been filed on behalf of the Petitioners for quashing a notification dated 8.10.1988 issued by the Bihar State Electricity Board hereto after referred to as the Board absorbing Sri Arjun Lal, Respondent No. 3, in the cadre of Deputy Director of Accounts of the Board with effect from 19.8.1983.
Petitioner Nos. 1 to 5 and 7 to 9 were from the post of Accounts Officer to 2.5.1936 and 18.3.1988. So far Petitioner No. 6 is concerned, he was appointed as deputy Director of Accounts by process of direct'' recruitment on 12.8.1986. According to the Petitioners, the absorption of the responded No. 3, from the cadre of Assistant Electrical Engineer (Selection Grade) to the cadre of Deputy Director of Account of the Board by the in pugned notification is not only against the visions of the Bihar State Electricity Board Service Regulations, 1976 (hereinafter referred to as the Service Regulation), but also affect the seniority of these Petitioners, in other word as Petitioners had entered into the cadre Deputy Director of Accounts on different dated between 2.5.1986 and 18.3.1988, the said Respondent No. 3 could not be absorbed dated 8.10.1988 in that cadre with effect from 19.8.1983 superseding the Petitioners as Deputy Direction of Accounts.
There is no dispute that the said Respondent No. 3 was a member of the cadre of the Assistant Electrical Engineer of the Board. On 31.12.1980 an office order was issued by the Board, which is as follows:
Office Order No. II/Acctts.-Apptt.-106/80/5478/EB Dated 31.12.80.
Shri Arjun Lal, Assistant Electrical Engineer (Planning), Board''s headquarters, Patna, will remain inchargs of the post of Deputy Director of Accounts (Planning), created vide Office Order No. 559 dated 1.2.80, in addition to his own duties, until further orders.
By order of the Bihar State Electricity Board, Sd/-Illeg). 30.13.80 (A.K. Choudhary) Secretary.
A copy of the aforesaid office order is Annexure-E to the counter affidavit filed on behalf of the said Respondent No. 3. The impugned notification dated 8.10.1988 is as follows:
In pursuance of the Board''s Resolution No. 6141 dated 5.10.33, Sri Arjun Lal, a permanent Assistant Elecl. Engineer (Selection Grade) of the Board, who has been working as Deputy Director or Accounts (Plg.) at the Boards Headquarters. Patna since 31.12.1980 is absorbed as Deputy Director of Accounts in the pay scale of Rs. 1700-70-2400/- in the cadre of Deputy Director of Accounts of the Board with effect from 19th August, 1983.
By order of the Bihar State Electricity Board, Sd/-Illeg. 18.10.1988 (N.K. Pande) Secretary.
The stand of the Respondents is that though Respondent No. 3 had been appointed as an Assistant Electrical Engineer, but as he had been working against the post of Deputy Director of Accounts since the issuance of the aforesaid office order dated 31-12-1980, it was thought just and proper to absorb him in the cadre of Deputy Director of Accounts with effect from 19-8-1983.
It is always open to the appointing authority to decide the mode of recruitment to a particular service. The two well known modes of recruitment are by process of direct recruitment and promotion. But if any other procedure is adopted by an appointing authority, such procedure must fulfil the requirement of Articles 14 and 16 of the Constitution It must be reasonable and should not affect the rights of others in the service. Where the appointments are governed by any statutory rules or regulations, then the appointing authority has to follow the procedure prescribed by such rules and regulations. As the Service Regulations referred to above have been framed u/s 79(c) of the electricity (Supply) Act, 1948, it should be considered as to whether under the said regulations it vas permissible to absorb Respondent No. 3 from the cadre of Assistant Electrical Engineer to the cadre of Deputy Director of Accounts by the impugned; notification.
Regulation 1(ii) of Chapter I of the Service Regulations is as follows:
(ii) Except as otherwise provided for under these Regulations they shall apply to all employee appointed to any post in the Board or to any post under any of the establishments of the Board including the Area Boards and Generation-cum-Transmission Organisation:
Provided, however, that the Board may, by notification, exempt any particular category or categories of employees from the application of these Regulations or may, by notification, prescribe different date or dates for the application of these Regulation to any category or categories of employees.
In view of the aforesaid statutory mandate the Service Regulations aforesaid are applicable to employees to be appointed to any post in the Board except otherwise provided. The expression ''Cadre'' has been defined in Regulation 2(ix) as follows:
(ii) "Cadre" means employees grouped together for the purpose of common seniority, promotion and lien on certain posts.
Chapter It of the Regulations prescribes the procedure for recruitment to the service of the Board. Regulation 4(i) of Chapter II says that "Recruitment to any service or cadre of the Board or any of the establishments including the Area Boards and Generation-cum-Transmission Organisation shall be in accordance with the rules/standings orders governing the relevant recruitment". The other part of Regulation 4 prescribes the procedure for constitution of a Selection Committee.
The learned Advocate General, who appeared for the Board, had to concede that Respondent No. 3 has not teen recruited to the cadre of Deputy Director of Accounts either by process of direct recruitment or by promotion. According to him, Respondent No. 3 has been recruited to the cadre of Deputy Director of Accounts by process of absorption under Regulation 17 of Chapter III. Regulation 17 is as follows:
17.(i) In Boards interest the Board or the competent authority shall have an absolute right to transfer any employee at any time from one job to another for which in the Board''s/competent authority''s opinion the employee is suited, from one section or department to another and from one office of the Board to another office of the Board or any of its establishments including the Area Boards and Generation-cum-Transmission Organisation, situated in any part of Bihar or to the Board''s offices in Calcutta or Delhi or any other offices that may he set up in Future anywhere in India.
(ii) Area Boards and the Generation cum-Transmission Organisation shall have similar powers as laid down in Clause (i) above in respect of employees which are borne on their cadres or employees regarding whom power of transfer has been delegated to them:
Provided, however, that such transfers shall not involve any decrease in the substantive pay of employees and shall not affect, their conditions of service adversely.
According to the Respondents, the aforesaid Regulation 17 not only vests absolute power in the Board to transfer an employee of the Board from one job to another, from one department to other, but even to absorb the services of an employee from one cadre to another, Regulation 17 does not speak of absorption of an employee from one service to, another. It only vests power in the Board or the competent, authority to transfer an employee of the Board at any time from one job to another, from one section of the department to another and from, one office of the Board to, another office of the Board or to any other establishment. Regulation 17 occurs in Chapter III the heading whereof is "Duties and Obligations of Employees". Regulation 13, which in the first Regulation in that Chapter says that every employee must card out the duty for which he has been employee or which has been entrusted to him in the course of the employment diligently and honesty Regulation 14 says that such employees, with have been paid by the Board, should no engage themselves in any other work beyond the working hours except with previous permission of the competent authority. Regulation 15 enjoins every employee to be responsible for the cars of the Board'' property and Board''s interest. Regulation 16 days down the every employee on arrival and at the time of departure each day shall record time of his arrival and departure in the manner as prescribed. Then comes the aforesaid Regulation 17 (sic) above. Regulation 18 says that it shall not be open to an employee to refuse any work (sic) duty, which a competent authority asks him to do and the later regulation 19 in that Chapter requires an employee at all times to (sic) out all valid and legitimate orders of his (sic). Regulations 13 to 19, which occurs Chapter III prescribe the duties and obligation of the employees. In this background, in by view, it is difficult to hold that Regulation 17 while vesting absolute right in the Board the competent authority to transfer an employee at any time from one place to another, from one department to another department, also vests power in the Board or the competent authority impliedly to transfer an employee from one cadre to another cadre for ever (sic) to absorb the service of an employee of one cadre into another cadre. When the procedure for recruitment in the service of the Board has possible to hold that a procedure of recruitment by absorption has been prescribed under Regulation 17 in Chapter III.
It was then submitted that as Respondent No. 3 had already been transferred from the post of Assistant Electrical Engineer to the post of Deputy Director of Accounts as early as on 31.12.1980 and he had worked on that post for the last several years satisfactorily, the Board had no option but to absorb him in the cadre of Deputy Director of Accounts. From a bare reference to aforesaid office order dated 31.12.1980 quoted above, it shall appear that the said Respondent No. 3 had been direction to remain in charge of the post of Deputy Director of Accounts (Planning) in addition so as own duties until further orders. If An employee of particular department or cadre, who has been posted under exigencies of the situation against a post in another service or cadre, is to be absorbed in that service or cadre merely because he has been working against that post it shall lead to a chaotic condition in many service, because by this process of absorption the seniority of the persons, who are already in the cadre, is bound to be affected which will be violative of Articles 14 and 16 of the Constitution. In The case of AIR 1977 251 (SC) it was said:
(c) Seniority normally, is measured by length of continuous, officiating service the actual is easily accepted as the legal. This does not preclude a different prescription constitutionality tests being satisfied.
Again in the case of Paramjit Singh Sandhu and Others Vs. Ram Rakha Mal and Others, it was pointed out:
Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both so are after the recruitment seniority is determined from the date of entry into the cadre except where there has been a substantial violation of the quota giving undeserved advantage to one of the Other source Seniority ordinarily speaking is determined with reference to the date of entry into the cadre which in service Jurisprudence is styled the date of continuous officiation.
The Supreme Court in the case of Ramendra Singh and Others Vs. Jagdish Prasad and Others, observed as follows:
In view of this clear authority, it cannot be argued for the Appellants that they could be appointed with retrospective effect so as to effect the seniority of the Respondents. The orders dated 18th August and 20th September, 1964 which purported to appoint the overseers named therein as temporary overseers from the date of publication of their result of diploma examination are clearly violation of Article 14 and 16 of the Constitution inasmuch as the Petitioners had already been appointed as overseers by selection committee constituted under the rules contained in P.W.D. Code, The order of temporary appointment by the impugned orders dated 18th August and 26th September, 1964 conferred notional seniority on the contesting Respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseer. The High Court in our opinion was fully justified in allowing the writ petition in part.
From a bare reference to the facts of the aforesaid case it shall appear that an attempt to appoint the Appellants with retrospective effect, which affected the seniority of the Respondents, who were already in the service, was held to be clearly violative of Articles 14 and 16 of the Constitution by the Supreme Court.
In yet another case of A.N. Pathak and Others Vs. Secretary to the Government, Ministry of Defence and Another, a rule framed giving notional seniority to the appointees by process of direct recruitment on the plea that there was an inordinate delay in making the direct recruitment was held to be invalid by the Supreme Court and in that context it was pointed out as follows:
The learned Counsel for the Respondents found it difficult to justify the validity of rules and the lists in the light of the various decisions of this Court which have consistently leaned in favour of the promotees based on their length of service and seniority, incases where there was inordinate delay in making direct recruitment. He tried to justify the inequity saying that the new rules have tried to rectify it. We are not satisfied with the explanation since that is little consolation to the Petitioners.
In the case of T.R. Kapur and Others Vs. State of Haryana and Others, the rule, framed under Article 309 of the Constitution giving retrospective benefits to one group of appointees came up for consideration before the Supreme Court. That rule was held be violative of Articles 14 and 16 of the Constitution and in that connection it was held as follows:
There is no power to make such rule under the proviso to Article 309 which affects or impairs vested right. Therefore unless it is specifically provided in the rule the employees who are already promoted before the amendment of the rules cannot be reverted. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the test of Article 14 and 16(1) of the Constitution.
Any attempt to give retrospective seniority to an entrant in a cadre even while trying to rectify any injustice or injury done to him has not found favour with the Courts because the seniority and the right to the persons, who have entered into the who have entered into the service earlier cannot be jeopardised and ignored on the plea that (sic) for the process of selection having not been delayed the persons entering in the service later would have entered into the service earlier.
Same is the position in the present case. By the impugned notification dated 8.10.1989 the absorption of Respondent no in the cadre of Deputy Director of Accounts with a retrospective date i.e. from 19th August 1983 is said to have been made on the ground that he was working on the post since December, 1980. In other words according to the Board the appointment of Respondent No. 3 from a retrospective date amounts to recognisation of the services of the said Respondent at Deputy Director of Accounts. In view of the judgments of the Supreme Court referred to above it is not permissible. In the case of A.N. Pathak v. Secy. to the Govt. Ministry of Defence (supra) Supreme Court rejected the justification that retrospective seniority was (sic) given to appointees by process of direct recruitment because there had been inordinate (sic) in making direct recruitment and because that a rule had been framed to rectify the (sic) done to such appointees. Any attempt confer seniority to an entrant in service from retrospective date even by a statutory rule including rules framed under Article 309 of the (sic) had been held to be violative of Article 14 and 16 of the Constitution. I do not understand as to how the Board by an order held have absorbed Respondent No. 3 in the cadre of Deputy Director of Accounts with a retrospective date affecting the seniority of the Petitioners, who had entered in the cadre of Deputy Director of Accounts before the date the issuance of the impugned notification.
On behalf of the Respondent it was (sic) that by aforesaid office order date 11.12.1980 Respondent No. 3 should be deemed as have been appointed as Deputy Director of Accounts on ad hoc basis, thereafter, taking to consideration his continuous officiation by be impugned notification dated 8-10-1988 he would have been absorbed in the cadre of Deputy Direction or Accounts. Reference in this connection was made to the judgment of the Supreme Court in the case of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, It is difficult to accept this contention. From a bare reference to office order date 11.12.1980 It shall appear that Respondent No. 3 has directed to remain incharge of the post Deputy Director of Accounts (Planning) (sic) vide Office Order No. 559 date 1-2-80, condition to his own duties, until further orders. In my view, this order cannot be read to mean that the said Respondent had been appointed on ad hoc or officiating basis against the post of Deputy Director of Accounts so that later by the impugned notification it shall be deemed that he has been confirmed against that post with retrospective date.
Reference on behalf of Respondent No. 3 was also made to a judgment of the Supreme Court in the case of State of Andhra Pradesh and Another Vs. V. Sadanandam and Others, . In that case the scope of Rule 3 of Andhra Pradesh Treasury and Accounts Subordinate Service Rules, 1963, and Andhra Traced Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment Order, 1975, issued by the President of India under Clauses (1) and (2) of Article 371-D of the Constitution was under consideration by the Supreme Court. The Rule 3 aforesaid as well as the provisions of the Presidential Order provided for transfer of an employee from one cadre to another. In the Presidential order it has been provided that persons so transferred shall be assigned seniority in the latter cadre with reference to date of his transfer to that cadre. The process of filling up the posts by transfer was challenged. In that context it was observed:
We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive, it is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive. As already stated, the question of filling up of posts by persons belonging to other local categories or zones is a matter of administrative necessity and exigency, When the Rules provide for such transfers being effected and when the transfer are not assailed on the ground of at (sic) discrimination, the policy of transfer adopted by die Government cannot be struck down by Tribunals or Court of Law.
In my view, the aforesaid judgment is of no help to the Respondents. In the aforesaid case recruitment by transfer had been made under Presidential order, issued under Clauses (1) and (2) of Article 371-D of the Constitution, which specifically provided that such transferred employees shall be assigned seniority with effect from the date of transfer. There is no provision in the Regulation for transfer of an employee from one cadre to another. Ever, if there was any such Regulation such transfer could not have been effected with a retrospective date so as to affect the seniority of others.
Reliance was placed on behalf of Respondent No. 3 a Full Bench judgment of the Punjab and Haryana High Court in the case of Kartar Singh and others Vs. State of Punjab and others, . In that case also by rule trained, retrenched employees were to be absorbed in a department, the validity whereof was questioned. In that connection it was observed as follows:
Absorption thus has the effect of sucking and imbibing into what is originally existing. On absorption thus an employee becomes part and parcel of the department absorbing him and partakes the same colour and character of the existing employees of the department, classified as promotees, direct appointees or transferees on the loss of his; identity. If this is understood in this perspective, there is no difficulty in assigning the absorbees seniority in accordance with seniority Rule 15. Nothing more need be added.
This case is also distinguishable in view of the fact that absorption of retrenched employees had been made under statutory rule without affecting, the seniority of persons already in the service.
Accordingly, it is held that it was not open to the Board under the existing Regulation to absorb Respondent No. 3 in the cadre of Deputy Director of Accounts and in the case from a retrospective date so as to affect the seniority of these Petitioners, who had entered into the cadre of Deputy Director of Accounts admittedly before 8.10.1988 when the impugned notification was issued.
This writ application is, according allowed. The impugned notification dated 8.10.1988 is quashed. But in the circumstances of the case, there will be no order as to costs.
Sachachidanand Jha, J.
I agree.