Promotee Assistant Engineers Association (IFCC) and Others vs State of Manipur and Others

P.K. Sarkar, J.—The perpetual rivalry for seniority in service between the direct recruits and promotees has once more engaged in the attention of this Court for several days. The question of seniority between the direct recruits and promotees have finally been settled by the judgment of the Hon''ble Supreme Court reported in corresponding to S.B. Patwardhan and Another Vs. State of Maharashtra and Others, which has been kept alive either by direct recruits or by promotees. The events relevant for the case are spread over a long period and the position has been made more complicated by filing of case and counter cases by the parties. The position as now stands is that the controversy on legal question has been considerably narrowed down by different decisions of this High Court, but the relevant facts and issues regarding seniority between the direct recruits and promotees to be settled have multiplied by certain actions of the Government. The present set of writ petitions involve common question relating to fixation of seniority of certain Section Officers Grade-I appointed ad hoc/temporary Assistant Engineers in the PWD of the Govt. of Manipur, vis-a-vis direct recruits in the category of Assistant Engineers appointed regularly according to rules in the Public Works Department (PWD) of the State Government.

The question has been raised by the ad hoc appointees who were regularised subsequently by the State Govt. from a date subsequent to the date of their ad hoc appointment. The ad hoc appointees filed numerous writ petitions in the Imphal Bench of the Gauhati High Court claiming regularisation of their services w.e.f. the date of their ad hoc appointment in the post of Assistant Engineers. These writ petitions were allowed by the High Court and the High Court in different cases directed the State Govt. to regularise the services of the promotee ad hoc A.Es. w.e.f. the date of their ad hoc appointment in the post of Asstt. Engineers. The Imphal Bench of the Gauhati High Court, however, kept open the matter of seniority of the ad-hoc promotee Assistant Engineers to the decided by the Govt. according to the seniority rules and in absence of such rules in accordance with the decision of the Apex Court. In these set of writ petitions, the promotee Asstt. Engineers whose services have been regularised as per order of the High Court claims their seniority from the date of their initial ad hoc appointment in the post of A.Es. and this claim of the promotee A.Es. has been opposed and challenged by the State Respondent and by some of the direct recruits. The settled position is, therefore, that the services of the ad hoc promotee Asstt. Engineers have been first regularised by the Government on the basis of the recommendation of the DPC with effect from 28.3.87 and thereafter as per order of the High Court passed in various cases w.e.f. the date of their ad hoc appointment in the post of Asstt. Engineers.

Civil Rule No. 673 of 1994 has been filed by the Promotee Assistant Engineers Association (IFCD) Govt. of Manipur against the State of Manipur and other official Respondents and also against the direct recruits who were appointed subsequent to the date of appointment of the members of the Petitioners'' association. The Petitioners Assn. challenge the seniority list published by the Govt. vide notification No. 13/37/82-IFC(Pt) IFC dated 26th July, 1993 and prays for a direction for preparing a fresh seniority list in accordance with the Principles for determination of seniority in the service as adopted by the State Govt. The Petitioners'' Assn. also prays for a direction to quash the final seniority list dated 27th Oct. 1993 at Annexure-A/22 and A/22(a). It is contended by the Petitioners'' Assn. that its members consisting of 16 (sixteen) in number as specified in paragraph 1 of the writ petition were appointed by the Govt. on different dates in the post of S.O. Grade-I on the recommendation of the M.P.S.C. After serving certain periods, the members of the Petitioners'' Assn. were promoted on ad hoc basis in the post of A.E. on different dates commencing from 16.8.75 to 31.10.81. Among the members of the Petitioners'' Assn., there are Degree holder S.O. Grade-I as well as Diploma holder S.O. Grade-I. The ad hoc appointments of the promotee Asstt. Engineers were regularised by the Govt. in the post of Assistant Engineers from 28.3.87 on the recommendation of the DPC and with the approval of the MPSC. Since the Govt. did not regularise the services of the ad hoc A.Es. w.e.f. the date of their ad hoc appointment in the post of A.Es. numerous cases had been filed by the promotee ad hoc engineers in the Imphal Bench of the Gauhati High Court claiming the regularisation of their services with effect from the date of their initial appointment in the grade of A.Es. on ad hoc basis. The High Court in different cases passed orders for regularisation of the services of the ad hoc promotee A.Es. from the date of their initial appointment in the post of A.Es. The High Court, however, kept open the question of seniority of the promotee ad hoc A.Es. open and to be determined by the Govt. in accordance with the seniority rules and in absence of such rules as per decision of the Apex Court. After the various judgments passed by the High Court, the Govt. regularised the services of the ad hoc promotee A.Es. with effect from the date of their initial appointment in the post of A.Es. on ad hoc basis. The State Govt. in their counter affidavit had also affirmed the aforesaid position. It is, however, contended by the Respondents State Govt. that having regard to the general principles for determination of seniority as adopted by the Govt. the seniority of the promotee ad hoc engineers and direct recruits were prepared and accordingly one seniority list was published in 1984. In the seniority list of 1984, the direct recruits were shown to be senior to the promotee A.Es. However, though the seniority list of 1984 was not strictly implemented at the time of filling up of 4(four) posts of Executive Engineers 20 (twenty) names from the aforesaid seniority list were forwarded by the department to the DPC. This was challenged by the promotee A.Es. in Civil Rule No. 660/92. From the copy of the judgment of C.R. No. 660/92 at Annexure-A/23, it appears that the High Court did not interfere with the 20 names forwarded by the department to DPC for appointment four Executive Engineers; but the High Court observed that in the interest of the A.Es. both the direct recruits and promotees, the final seniority list should be prepared for filling up of future vacancies. The High Court, however, made it clear that any appointment/promotion made in the meantime shall be subject to the final seniority list. According to the aforesaid direction of the High Court, the Govt. published a tentative seniority list inviting claims and objections from the persons concerned. After considering the claims and objections, the Govt. published the final seniority list of Assistant Engineers on 27.10.93.

It is, further, stated by the State Respondent in their counter affidavit that the promotee A.Es. who were not included in the final seniority list of 1984 were placed below the direct recruits. Having felt aggrieved by the seniority list published by the Govt. on 27.10.93, the promotee A.Es. filed this set of writ petitions challenging the aforesaid seniority list.

In Civil Rule No. 512/88, promotee ad hoc Assistant Engineer, Shri Ch. Lala Singh, Petitioner claimed the relief that his case for promotion in the post of A.E. has not been considered by the Govt. when he becomes eligible for such promotion. This Petitioner entered in the service on 14.1.76 as Section Officer-I. During the continuance of service, he has passed AMIE on 30.3.80. On that date, the Petitioner has completed 3 years and 4 months of regular service as S.O.I and as such he should have been promoted as A.E. on that date, i.e. 30.3.80. It is stated in the petition that the post of A.E.s are filled up by direct recruitment as well as by promotion. In the promotion quota, there are three sub-quotas; the first one, from the Diploma Holder S.O.I., the second quota is for Degree Holder S.O.I and the third quota is for non-Diploma Holder S.O. Grade-I.

It is, further, alleged that in the year, 1979-80, there six vacant posts of A.E.s. in the sub-quota of degree holder S.O.I. Since his promotion has not been made by the Govt. when he has earned his eligibility by passing AMIE degree on 30.3.80, the Petitioner claims that he should be promoted in the post of A.E. w.e.f. 30.3.80, when he has earned his eligibility. The Petitioner has, therefore prays that his seniority should be above Respondents-6 to 12 and his name should appear at S1. No. 14 of the Govt. order dated 26th Sept. 1987 at Annexure-A/19 and his seniority accordingly be fixed. It is submitted by the Petitioner that since he has earned eligibility for promotion to the post of Asstt. Engineer earlier than Respondents-6 to 12, he is entitled to seniority over Respondents-6 to 12. and in the seniority list his name should be appeared above Respondents-6 to 12. The Petitioner is a promotee ad hoc Assistant Engineers and Respondents-6 to 12 were also promotee ad hoc Assistant Engineer. At the time of regularisation of their appointments, at Annexure-A/19, the name of the Petitioner has been shown below Respondents 6 to 12. Since the Petitioner has earned his eligibility earlier than Respondents-6 to 12 by passing AME Degree, it is contended that he should be shown senior to Respondents-6 to 12 who are all promotion Asstt. Engineers.

In Civil Rule No. 822/94, the Petitioner Shri L. Lalchand Singh, a promotee ad hoc A.E., claims for regularisation of his service in the post of E.E. from the date of his ad hoc appointment. It is contended that if his seniority in the post of A.E. was fixed in time, he would have been regularly appointed in the post of Executive Engineer. According to the memo of the government dated 9.10.92 at Annexure-A/15, the Petitioner is entitled to be regularised in the post of EE. w.e.f. 1.9.92. The Petitioner, therefore, prays for regularisation of his service in the post of Executive Engineer. On a perusal of the aforesaid Memo of the Govt. dated 1.9.92, it appears that this Petitioner did not fulfil the eligibility condition in the R.R. for promotion to the post of E.E. Thereafter his claim is rejected.

In C.R. No. 520/96, the Petitioner, Shri Kh. Kunjo Singh, claims his seniority on the basis of his regular appointment as A.E. from 9.7.79. The Petitioner having felt aggrieved by the seniority list at Annexure-A/11, prayed for cancelling the aforesaid seniority list.

In Civil Rule No. 521/95, the Petitioner, Shri L. Ibopishak Singh, a promotee ad hoc A.E., has challenged the final seniority list of the A.E.s published on 27.10.93.

In C.R. No. 332/95, the Petitioner, Shri Ch. Lala Singh has also challenged the seniority list dated 27.10.93.

In C.R. No. 235/93, the Promotee Assistant Engineers'' Assn. filed the writ petition for quashing the last three lines of the order of the Govt. of Manipur dated 29th January, 1993 at Annexure-A/21. In the aforesaid Annexure, the Petitioner prays for deleting the following lines:

However, their seniority will be fixed as per rules, i.e. w.e.f. the date of their regular appointment made on the recommendation of the DPC.

In the aforesaid order as at Annexure-A/21, the services of the ad hoc A.Es. has been regularised by the Govt. with effect from the date of their ad-hoc appointment in the post of A.E. The Assn. claims that the seniority of the Promotee A.Es. should be fixed with effect from the date of their regularisation and not on the basis of the recommendation of the DPC. Consequently, the Assn. prays for quashing the aforesaid words from the order of the Govt. Annexure-A/21.

In C.R. No. 525/95, the Petitioners, Shri Th. Panchami Singh, was appointed as A.E. on ad-hoc basis by an order of the Govt. dated 31.10.81. It is submitting by the Petitioner that he has completed Eight years of service on 20.10.80 in the post of S.O.-I and therefore, on that date he was eligible for promotion in the post of Assistant Engineer. Consequently, the Petitioner claims that he should be appointed as A.E. with effect from 20.10.88. i.e. the date on which he has earned his eligibility for promotion. The Petitioner has also challenged the finally published seniority of the A.Es. dated 27.10.93.

In C.R. No. 49/96, the Petitioner, Shri Ch. Lala Singh claims the relief that he should be appointed in the post of A.E. with effect from the date on which he has earned his eligibility for promotion and he has also challenged the final seniority list published by the Govt. on 27.10.93.

In C.R. No. 1145/94, the Petitioner, Shri L. Lalchand Singh, prays for a direction for regularisation of his service in the post of E.E., and the Petitioner has also challenged the final seniority list.

In C.R. No. 904/96, the Petitioner, Shri L. Rabango Singh, has challenged the seniority list published by the Govt. on 27.10.93. He claims that since his ad hoc appointment as Asstt. Engineer has been regularised with effect from 9.7.79, his seniority should be counted from that day and seniority list should be prepared accordingly.

In C.R. No. 780/96, the Petitioner, Shri Th. Yaima Singh, prays for setting aside the order dated 3.8.76 as at Annexure-A/4 by which Respondents-3, 4 and 5 were allowed to hold charge of the post of Executive Engineer in the Irrigation and Flood Control Department. It is contended that the Petitioner is senior to Respondents-3, 4, and 5, and therefore the said Respondents should not have been appointed to held charge of the post of Executive Engineer superseding the Petitioner. Consequently, the Petitioner prays for cancelling the aforesaid order.

The main question raised by the Petitioners in all these set of writ petitions is the question of determination of seniority between the direct recruits and promotees. In all these writ petitions, the Petitioners are ad hoc promotee/Asstt. Engineers. All the writ Petitioners were promoted by the Govt. in the post of Assistant Engineers on ad hoc basis during the period from 1975 to 1983 and all these promotee Asstt. Engineers were continued in their posts uninterruptedly and without any break or reversion till they were regularised by the Govt. in the post of Assistant Engineers with effect from 28.3.87 by an order of the Govt. dated 26th Sept. 1987 in Annexure-A/4 of the writ petition No. 673/94. It appears from the aforesaid Annexure-A/4 that the Govt. on the recommendation of the DPC and in consultation with the MPSC regularised the service of the ad hoc A.Es. with effect from 28.3.87. Having felt aggrieved by the aforesaid order of the Govt. at Annexure-A/4, the Promotee ad-hoc A.Es. filed number of cases in the Imphal Bench of the Gauhati High Court for regularisation of their services with effect from the date of their ad hoc appointment in the post of Asstt. Engineer. It is submitted by Mr. H.N.K. Singh, Ld. Sr. counsel appearing on behalf of the Petitioners that the Petitioners were appointed in the post of A.Es. on ad-hoc basis on different dates between 1975 and 1983. The ad-hoc promotee A.Es. were in the posts of S.O.-I on substantive capacity, and though they have earned their eligibility for promotion to the post of A.Es., the Govt. due to the urgency in the Department promoted the Petitioners in the post of Asstt. Engineers on ad-hoc basis. The Petitioners has the requisite qualifications to be appointed in the post of A.Es. on regular basis, but due to the urgency of the Department, Govt. could not hold DPC meeting, and as a result, these Petitioners were promoted on ad-hoc basis. They had all the requisite qualifications for being appointed as Asstt. Engineers from the date on which they were appointed on ad-hoc basis.

Mr. H.N.K. Singh, further, submitted that from 1975 to 1986 there was no regular DPC, Consequently, the cases of the promotee Engineers could not be referred to the DPC and due to exigency of the public service, though they were eligible for the posts of A.E., they were appointed by the Govt. on ad hoc basis. The DPC was held 6n 28.3.87 and all the promotee ad hoc Asstt. Engineers were regularised in their services by the Govt. w.e.f. 28.3.87, by an order of the Govt. dated 26th Sept. 1987 at Annexure-A/4. Mr. H.N.K. Singh submitted that in spite of such regularisation by the Govt., if the services of the Promotee ad hoc A.E.S. are not counted prior to the date of their regularisation, i.e. 28.3.87 in that event they will not be considered for their next promotion in the post of E.E. Because unless they have served Six years they cannot be considered for promotion to the post of E.E. Mr. H.N.K. Singh submitted that if the services of the Petitioners were regularised with effect from their date of appointment on ad hoc basis, then the period of service before 28.3.87 would have been counted for their promotion to the post of Executive Engineer. Having felt aggrieved by the aforesaid order of the Govt. in Annexure-A/4 the Promotee Assistant Engineers filed number of writ cases for regularisation of their services with effect from the date of their initial appointment in the post of Asstt. Engineer on ad hoc basis. The copies of the judgment passed by the High Court have been annexed from Annexure-A/5 to A/21. I have gone through the judgment passed by this Court in different writ cases filed by the Petitioners. The sum and substances of the judgment and order passed in the aforesaid writ cases is that the services of the Promotee ad-hoc Asstt. Engineers shall be regularised with effect from the date of their initial appointment as A.E. an ad-hoc basis. The High Court, however, kept open the question of seniority of the Promotee Assistant Engineers vis-a-vis the direct recruit to be fixed as per rule. The Hon''ble High Court in those writ cases directed that the seniority of the Promotee A.E.s. will be determined in accordance with seniority rules and in absence of such rule, in accordance with the principles laid down by the Apex Court and this High Court in that regard. After passing of the judgment innumerous cases, the Govt. by an order dated 29th January, 1993 regularised the services of the ad-hoc Promotee Assistant Engineers with retrospective effect from the date of their initial appointment in the post of Assistant Engineer on ad hoc basis. In the said order, it has been mentioned that the seniority of the ad hoc Promotee A.Es. will be fixes as per rules with effect from their regular appointment made on the recommendation of the DPC. The Promotee A.Es. Association in C.R. No. 235/93 challenges the portion of the Govt. order in Annexure-A/21 which provides that their seniority will be fixed from the date of regularisation by a DPC.

Mr. Ashok Potsangbam, learned Advocate General submitted that in the order of regularisation at Annexure-A/21, it has been made clear that though the Promotee Assistant Engineers were regularised from the date of initial ad hoc appointment in the post of Assistant Engineers, the question of their seniority has not been determined by the aforesaid order. The 1d. A.G. also contended that it has been made clear in the aforesaid order of the Govt. in Anenxure-A/21 that the orders about the seniority will be decided as per rules, i.e. their seniority will be fixed with effect from the date of their regular appointment made on the recommendation of the DPC. The DPC recommended that regularisation of the ad-hoc Promotee A.E.s. shall be with effect from 28.3.87. Consequently, the 1d. Advocate General submitted that the seniority of the promotee A.Es. should be fixed with effect from 28.3.87. The 1d. A.G. further, submitted that since the Hon''ble High Court had kept open the question of seniority of the promotee ad-hoc assistant Engineers, the promotee A.Es. cannot take the plea that the date of initial appointment will not be altered for the purpose of determining seniority. In other words, the learned Advocate General has submitted that though the services of the promotee A.Es. were regularised with effect from the date of initial appointment in the post of AEs. on ad hoc basis, there is no bar for the Govt. to count their seniority as recommended by the DPC in its meeting held on 28.3.87. In the aforesaid DPC meeting, it has been recommended to regularise the services of the ad hoc Promotee A.Es. with effect from 28.3.87, and consequently, the 1d. A.G. submitted that though the services of ad-hoc promotee A.Es. were regularised as per order of the Hon''ble High Court with effect from the date of their initial appointment in the post of A.E., their seniority will be counted from 28.3.87. I cannot agree with the submission of the learned Advocate General because in the various judgments passed by the Hon''ble High Court from Annexures-A/5 to A/20, it is clear that the High Court has directed to fix the seniority in accordance with the seniority rules and in the absence of such seniority rules, according to the principles laid down by the Apex Court as well as by this High Court.

Therefore, the seniority of the Promotee ad-hoc A.Es. is required to be fixed according to the seniority rules as applicable to them and not by arbitrary decision of the Government that their seniority will be counted with effect from 28.3.87, i.e. the date on which the DPC has recommended regularisation of the services of the ad-hoc Promotee Asstt. Engineers. Consequently, I, am of the view that the seniority of the Promotee ad hoc Assistant Engineers whose services were regularised by the Govt. is required to be fixed in accordance with the rules as in force in the State.

Having regard to the submission of the 1d. counsel for the Petitioner, Mr. H.N.K. Singh and the submission of the learned Advocate General appearing on behalf of the Respondents, I am of the view that the order of the Govt. at Annexure A/4 of C.R. No. 235/97 that the seniority of the ad-hoc promotee Assistant Engineers will be fixed with effect from the date of their regular appointment made on the. recommendation of the DPC is arbitrary and illegal specially in the fact that there exist a seniority rules for determination of the seniority of the Promotee ad-hoc A.Es. vis-a-vis direct recruits. Therefore, the seniority is to be determined according to the rules of the Govt. and not as per decision of the DPC. Consequently, I am of the view that the last 3 (three) lines of Annexure-A/21 which runs as follows:

"their seniority will be fixed as per rules" can be retained in the Govt. order dated 29th Jan. 1993 in Annexure-A/21, but the words, "with effect from the date of their regular appointment made on the recommendation of the DPC," should be quashed and accordingly the aforesaid words are quashed and the writ petition No. 235/93 is accordingly allowed.

In C.R. No. 512 of 1988 the Petitioner, Mr. Ch. Lala Singh, claims that he has passed AMIE examination on 30.3.80 and amongst the promotee ad-hoc A.Es, he should have been shown at S1. No. 14 instead of S1. No. 19 in the merit list of promotion order issued by the Govt. of Manipur dated 26th Sept. 1987 at Annexure A/19. Mr. R.K. Sanajaoba Singh, ld. counsel appearing on behalf of the Petitioner submitted that as per R.R. in 60% quota for promotion in the post of Asstt. Engineers, there are three sub-quotas. According to 1975 Recruitment Rules for the post of A.E. it has been provided that 40% of the posts shall be filled up by direct recruitment and 60% by promotion and out of 60% promotion quota, 50% of the posts shall be filled up by selection from Engineering Diploma Holders. Thereafter, 40% by selection from Engineering graduates and remaining 10% by selection from candidates who are not in possession of Degree or Diploma in Engineering. Mr. R.K. Sanajaoba Singh, further submitted that the Petitioner at the time of joining service was a Diploma Holder in Engineering and he was appointed as S.C. Grade-I on regular basis on 14.1.76. The Petitioner passed AMIE examination which is equivalent of a degree in Engineering on 30.3.90, and on passing the said AMIE on 30.3.90, the Petitioner has already completed three years, 4 months of regular service as S.O. Grade-I, and as such he was eligible on 30.3,1980 for promotion as Asstt. Engineer as per Recruitment Rules. The Petitioner, Ch. Lala Singh was appointed as Asstt. Engineer and ad-hoc basis on 31.10.1981 and from the aforesaid date his services has been regularised in the post of Assistant Engineer. Mr. R.K. Sanajaoba Singh, 1d. counsel appearing for the Petitioner further submitted that the Petitioner should have been appointed on ad hoc basis as Asstt. Engineer on 31.3.81, i.e. the date on which he has earned his eligibility for promotion to the post of Asstt. Engineer, but the Govt. has prompted the Petitioner on ad-hoc basis as Asstt. Engineer on 31.10.81 as a result of which he has become junior to 4 (four) promotees mentioned in S1. Nos. 14 to 18 of the order of the Govt. dated 26th Sept. 1987 at Annexure-A/19. Mr. R.K. Sanajaoba Singh, consequently, submitted that the merit list at Annexure-A/19 is required to be amended and Petitioner should be shown at S1. No. 14 instead of at S1. No. 19 in Annexure-A/19. In support of his contention Mr. R.K. Sanajaoba Singh relied on the decision reported in 1995 (1) GLR 136 (A.K. Raghumani Singh and Two Ors. v. State of Manipur and 5 Ors.). In the aforesaid case the question of eligibility for promotion to the post of Superintending Engineer has been raised. The Recruitment Rules provides that mere diploma holder Executive Engineers are not eligible for promotion to the post of Superintending Engineer. The eligibility is conferred on Executive Engineers passing degree or its equivalent from a recognised institution with Six years regular service in the grade. In other words, eligibility is conferred on all Executive Engineers who possessed degree originally and become Executive Engineers as degree holder Assistant Engineers with Seven years regular service in the grade and Diploma Holder A.Es. who become Executive Engineers after Eight years regular service in the grade, but acquired degree or equivalent qualifications while in service. In case of both, Six years regular service in the grade is insisted upon. The Rules does not prescribes different periods of service by original degree holder and Diploma Holders who acquires degree subsequently. The distinction regarding period of service requirements which exists in the Rules governing the cadre of A.Es. and EEs. has not been incorporated in the rules governing promotion to the post of Superintending Engineer (S.E.). There is no pre-existing practice pleaded by any of the parties i.e. because it is only in recent time a few Diploma Holder Executive Engineers acquired higher qualifications by passing AMIE examination. In other words, the Rules classifies Executive Engineer into three categories, namely, (A) those who had degree qualification when they become E.E. (B) those who had Diploma qualification at the relevant time and passed higher examination while continuing in service as E.E. (C) The Diploma Holder A.Es. who has been promoted as E.E. The third category has been excluded from being considered to be eligible for promotion. Categories (A) and (B) are treated as being in one class and rendered eligible on condition that they have six years regular service in the grade. In the aforesaid case the Division Bench of this High Court held that a Diploma Holder E.E. who has passed degree in Engineering during Six years service as E.E. shall be eligible for promotion to the post of S.E. The Division Bench of this High Court has taken this view specially on Note-1 of the Recruitment Rules which provides:

NOTE-1: Where a person is considered for such appointment all persons possessing the requisite qualifications and who are senior to him in the grade shall also be considered irrespective of the feet whether or not they fulfil the requirement as to minimum periods of qualifying service for purpose of promotion mentioned above.

Having regard to the aforesaid Note, the Division Bench held that even if a Diploma Holder EE obtained a degree in Engineering and has rendered Six years service in the grade of E.E., he shall be considered for promotion to the post of Superintending Engineer (SE) in view of the fact that his junior degree holder E.Es. will be considered for promotion to the post of S.E. The present case of the Petitioner is different from the aforesaid case decided by the Division Bench of this Court. In the year, 1975 Recruitment Rules for the post of Asstt. Engineer, it has been clearly provided that 60% of the post of A.Es. shall be filled up by promotion and there are three sub-quotas for promotion, namely, (a) 50% by selection from Engineering Diploma Holders, (b) 40% by selection from Engineering Graduates, and (c) 10% by selection from the candidates who are not in possession of Degree or Diploma in Engineering. The Petitioner was a Diploma Holder who passed AMIE degree on 30.3.90. Initially he falls within the first sub-quota. The first sub-quota do not provide that if any Diploma Holder S.O. Grade-I obtains a degree he will earn his eligibility on the date of passing of such degree if he completes three years of service. If the Petitioner wants to come under the second category then he will earn eligibility after three years of passing the degree in Engineering. The Petitioner entered in service on 14.1.76 as Diploma Holder. In case of a Diploma Holder, the eligibility for promotion is Eight years. So, had he not passed his AMIE degree examination, he would have become eligible on 14.1.84. Since he has passed his AMIE examination. on 31.10.81, he has become eligible for promotion on that date because on the aforesaid date he has already completed three years of service in the grade of S.C. Grade-I with degree in Engineering. The 1975 Recruitment Rules as it stands do not provide that on passing the degree examination, he will earn his eligibility if he renders three years service in the grade of S.O. Grade-I as diploma holder.

The learned Advocate General submitted that the Public Works Department of the Govt. is following the practice of three years service for degree holders from the date of passing of the degree examination. Ld. A.G. also submitted that in the past in all such cases S.O. Grade-I officers who have passed their degree examination have been considered for promotion to the post of A.E. after they have completed three years service in the grade of S.O. Grade-I and after passing their degree examination. This practice appears to have caused some injustice to the diploma holder S.C. Grade-I who have passed their degree examination during their service and for that purpose in 1984 Recruitment Rules the provisions regarding eligibility of diploma holder S.O. Grade-I who have passed their degree examination has been modified by the Govt. In 1984 Recruitment Rules it has been provided that a diploma holder S.O. Grade-I shall be eligible for promotion to the post of A.E. after Eight years of regular service and in the R.R. a Note has. been added wherein it has been provided that diploma holder S.C. Grade-I who passed both Section (A) and (B) of AMIE Examination of institution of Engineering (India) 3 years from the date of such passing or 4 years service in the grade whichever is shorter.

On perusal of the 1984 Recruitment Rules, it is evident that some benefits has been given to the diploma holder S.C. Grade-I officers who have passed their degree during service towards eligibility for promotion to the post of A.E. Therefore, it is obvious that eligibility condition prescribed in 1975 R.R. is different from the eligibility conditions prescribed in 1984 Rules. The present Petitioner will be governed by 1975 R.R. Ld. Advocate General, further, argued that if the Petitioner wants the benefits of 1984 rules then many past cases will have to be re-opened and in that event there will be topsyturvy in the seniority of the A.E.S. Ld. A.G. in support of his submission referred to a case law reported in N. Suresh Nathan and another Vs. Union of India and others, . That case decided by the Apex Court is similar to the present case of the Petitioner. In the aforesaid question regarding the eligibility of degree holder and Diploma Holder has been raised. In that case the R.R. for the post of A.E. in the PWD was challenged. The R.R. of that case and R.R. in the case in hand are almost similar. In that case the rules provides for appointment of A.E. by direct recruitment and by promotion, and promotions are to be made from two sources, namely, degree holder and Diploma Holders. There were two categories of S.O.s, one is of degree holder junior Engineer with three years service in the grade and other is Diploma holder Jr. Engineer with Six years service in the grade. The provisions being 50% from each category. The entire scheme, therefore, thus, indicates that the period of three years service in the grade requires for degree holders according to the R.R. as the qualifications for promotion in that category must mean three years service in the grade as a degree holder, and therefore that period of three years can commence only from the date of obtaining the degree and not earlier. The service in the grade as a Diploma holder prior to obtaining the degree cannot be counted his service in the grade with a degree for the purpose of three years service as a degree holder. The Apex Court, further, held that the only question on the construction of the provisions and not of the validity thereof and therefore the Apex Court held the contention of the Appellant Degree Holders that the rules must be construed to mean that the three years service in the grade of a degree holder for the purpose of provisions of the R.R. is three years from the date of obtaining the degree is quite tenable and this is in conformity with the past practice followed consistently. The decision of the Apex Court squarely covers the present case of the Petitioner and therefore, I am of the view that according to the provision of 1975 R.R. for the post of A.Es. a Diploma holder S.O. Grade-I who has passed his degree in engineering can earn his eligibility only after three years of service as degree holder from the date of passing of the degree examination. The case law referred to by the ld. counsel for the Petitioner reported in 1995(1) GLR 136 is not applicable in the present case, specially in view of the fact that the R.R. for the post of E.E. made a clear provisions regarding eligibility of Diploma holder E.E. who passed degree in Engineering for the post of Superintending Engineer. In the present case the rules clearly provides that a Diploma Holder S.O. Grade-I if the passes degree examination in Engineering, his eligibility for promotion to the post of A.E. will be three years service from the date of passing the degree examination in Engineering. Therefore, I do not find any force in the submission of Mr. R.K. Sanajaoba Singh, ld. counsel for the Petitioner and having regard to the decision of the Apex Court, I am of the clear view that there is no merit in the petition and consequently it is liable to be dismissed. Accordingly, writ petition No. 512/88 so far the claim of the Petitioner for seniority over 5 (five) promotees mentioned in Sl. No. 14 to 18 of the Government order dated 26th September, 1987 at Annexure-A/19 is rejected.

In the present writ petition the Petitioners were appointed as Assistant Engineers on ad hoc basis between the period from 16.8.75 and 31.10.81. The Petitioners represented to the Govt. on various occasions to regularise their services w.e.f. the date of their initial appointment as Asstt. Engineers on ad hoc basis. During the continuance of the service of the Petitioners as Asstt. Engineers on ad hoc basis, direct recruitment has been made by the Government through the Manipur Public Service Commission in the year, 1980 and 1981. The Manipur Public Service Commission conducted the selection for direct recruitment of Asstt. Engineers in the year, 1980 and recommended 16 (sixteen) candidates for appointment. However, the Govt. appointed 9 (nine) candidates as direct recruits in the post of Asstt. Engineers in the year, 1980, and 6 (six) candidates were appointed as Asstt. Engineers under direct recruitment quota in the year 1981 and 1 (one) candidate was appointed as direct in the year, 1982. After appointment of the direct recruits, Government was treating these direct recruit Asstt. Engineers as senior to the 16 (sixteen) ad hoc promotee Asstt. Engineers. In spite of repeated representations, Govt. was not holding DPC to regularise the appointment of ad hoc promotee Asstt. Engineers. However, ultimately Govt. constituted a DPC on 20.3.87 and on the recommendation of the DPC. Govt. by an order dated 26th Sept. 1987 (Annexure-A/4 of C.R. 673/94) regularised the services of the promotees ad hoc Asstt. Engineers with effect from the 20th March, 1987. By the aforesaid order of regularisation at Annexure-A/4 the promotee ad hoc Assistant Engineers having felt aggrieved, filed number of writ petitions against the State Govt. and direct recruits claiming the relief for regularisation of their services from the date of their initial appointment as Assistant Engineers on ad-hoc basis. Imphal Bench of the Gauhati High Court in various judgments and orders directed the State Govt. to regularise the services of the ad-hoc promotee Asstt. Engineers w.e.f. the date of their initial appointment as Assistant Engineers on ad-hoc basis. The High Court, however, kept open the issue of seniority of the promotee Assistant Engineers, vis-a-vis the direct recruits. The copies of the judgments passed in various cases have been annexed from Annexure-A/5 to Annexure-A/20. In compliance with the direction of the High Court passed in various writ petitions, the Government by an order dated 29.1.93 Annexure-A/6 of C.R. No. 332/95, regularised the services of the ad hoc promotee Asstt. Engineers from the date of their initial appointment in the post of Asstt. Engineer on ad hoc basis. The services of ad hoc promotee Asstt. Engineer Shri S. Birachandra has also been regularised by the Govt. by and Order dated 6.2.93 (Annexure-A/21(A) of C.R. No. 235/93) w.e.f. 31.10.81 i.e. the date on which he was initially appointed as Assistant Engineer on ad hoc basis. On perusal of the order of the Government dated 26th Sept. 1987 at Annexure-A/4 of C.R. No. 673/94, it appears that the recommendation of the DPC has also been approved by the MPSC regarding regularisation of the ad-hoc promotee Assistant Engineers. Consequently, it is evident that the services of the ad-hoc promotee Assistant Engineers were regularised by the Govt in consultation with the M.P.S.C. w.e.f. 28th March, 1987, but thereafter as per decision of the High Court in various cases, the Govt. has regularised the services of the ad hoc Assistant promotee Asstt. Engineers w.e.f. the date of their initial appointment in the post of Assistant Engineer. There facts are not disputed by the State Government. Mr. H.N.K. Singh, 1d. counsel appearing on behalf of the Petitioners submitted that in spite of regularisation of the services of the ad-hoc promotee Asstt. Engineers, the Government has not counted their seniority, from the date of regularisation and instead the Government has shown the direct recruits of 1980 and 1981 as senior to the promotee Assistant Engineers. The main question arising in this writ petition is whether the action of the Govt. of Manipur in treating the direct recruits of 1980 and 1981 as senior to the Petitioners promotee Asstt. Engineers, is valid or legal.

Mr. H.N.K. Singh, 1d. Sr. counsel appearing on behalf of the Petitioners submitted that the direct recruits Asstt. Engineers were first appointed in 1980 and at that time as many as 8 (eight) promotee ad hoc Assistant Engineers were working in the Department. In 1980, 9 (nine) direct recruitment were made, but only 3 (three) promotions were made from the S.O. Grade-I in the post of Assistant Engineer on ad-hoc basis. In 1981 Six direct recruitments were made in the post of Assistant Engineers, whereas 5 (five) S.O. Grade-I were promoted to the post of Assistant Engineer on ad-hoc basis. In 1984 Govt. published a seniority list of Asstt. Engineers by an order dated 10.10.84 at Annexure-A/24 of C.R. No. 235/93. In the aforesaid seniority list, the names of the direct recruits appeared from S1. Nos. 34 to 51, but the names of promotee ad-hoc Assistant Engineers have not been included. Mr. H.N.K. Singh, 1d. counsel for the Petitioner submitted that when the seniority list was published in the year, 1984 the services of the ad-hoc promotee Assistant Engineers were not regularised and services of the promotee Asstt. Engineers were first regularised w.e.f. 28.3.87, but in accordance with the judgment of the High Court, the Government has regularised the ad-hoc appointment of the promotee Asstt. Engineers by an order dated 29.1.93 and 6.2.93 w.e.f. the date of their initial appointment in the post of A.Es. on ad-hoc basis. Mr. H.N.K. Singh, consequently submitted that there was no scope for the Govt. to show the seniority position of the ad-hoc promotee Asstt. Engineers in the seniority list of 1984 Annexure-A/24, because on that date the services of the promotee Assistant Engineers were not regularised. Mr. H.N.K. Singh further submitted that after regularisation of the services of the ad hoc promotee Asstt. Engineers w.e.f. the date of their initial promotion the Govt. should have prepared the Seniority list in accordance with the Seniority Rules governing the direct recruit and promotee Asstt. Engineers. Mr. Singh also submitted that the general principle of determination of seniority in the Central services: as issued by the Central Government in their Memo No. 9.11.85 dated 22.12.59, has been adopted by the Government of Manipur. According to the aforesaid memo, the Government should have fixed the seniority of the direct recruits and promotee Assistant Engineers. But instead of fixing the seniority according to the principle laid down in the aforesaid Memo, the Govt. has published the seniority list in 1993 showing all the direct recruits of 1980 and 1981 as senior to the promotee Asstt. Engineers whose services have been regularised w.e.f. the date of their initial appointment in the post of Assistant Engineers. The grievance of the Petitioners is that in spite of the fact that their service have been regularised w.e.f. the date of their initial appointment as per order of the High Court they have not been given the seniority w.e.f. the date of their regular appointment, and direct recruits of 1980 and 1981 were shown as senior in the seniority list of 1993. The Respondents, State, published the final seniority list of Asstt. Engineers by an order dated 27.10.93 Annexure-A/26 of C.R. No. 673/94, and in the aforesaid final seniority list direct recruit Asstt. Engineers of 1980-81 have been shown as senior to the promotee Assistant Engineers whose services were regularised w.e.f. the date of their initial appointment. Mr. H.N.K. Singh, 1d. counsel appearing on behalf of the Petitioner, further, argued that the promotee Asstt. Engineers were appointed in the post of Assistant Engineers on ad-hoc basis when they have earned their eligibility and had there been any DPC at that time the promotee Asstt. Engineers would have been appointed on regular basis, but since there was no DPC and Govt. was in need of the services of Asstt. Engineers, appointed the eligible S.O. Grade-I officers in the post of Assistant Engineers on ad-hoc basis. These promotee Asstt. Engineers continued in their services from the date of their initial appointment and they were not reverted for any point of time to their original posts. On the contrary their services were extended from time to time till they were regularised in their posts w.e.f. the date of their initial appointment. Mr. H.N.K. Singh, consequently, submitted that since ad-hoc appointment of the promotee Assistant Engineers were regularised w.e.f. the date of their initial appointment as Assistant Engineers on ad-hoc basis they are entitled in counting seniority in service w.e.f. the date of their regular appointment in the post of Assistant Engineers, i.e. the date of their initial appointment on ad-hoc basis. Mr. H.N.K. Singh, therefore, argued that the seniority of the promotee Asstt. Engineers should be counted from the date of their regular appointment and seniority should be fixed as per quota of vacancies reserved for direct recruits and promotees. Mr. H.N.K. Singh submits that the Govt. had adopted the principle of Seniority Rules of the Central Govt. issued vide their Office Memo No. 9/11/55-RPS dated 22.12.59 at Annexure-A/13 of C.R. No. 525/95. On perusal of the Recruitment Rules for Assistant Engineers, it appears that 40% of the posts shall be filled up by direct recruitment and 60% of the post shall be filled up by promotion. According to Para 6 of the aforesaid general principle for determining seniority at Annexure-A/13, it has been provided that the relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between the direct recruits and promtoees which shall be based on the quotas of vacancies reserved for direct recruit and promotion respectively in the Recruitment Rules. Some explanatory memorandum has also been given under Para 8 of the aforesaid general principle of determination of seniority. According to the explanatory memorandum and as per the provisions of Recruitment Rules in any year of Requirement 2 (two) direct recruits shall be ranked in the seniority below 3 (three) promotees and so on. Mr. H.N.K. Singh, therefore, submitted that the final seniority list published by the Government on 12.7.93 should be quashed and the seniority list is required to be prepared as per provisions of the determination of Seniority Rules at Annexure-A/13. Mr. H.N.K. Singh also submitted that in the instant case initial appointment of the promotee Asstt. Engineers were not made by following the proceduice laid down by the Recruitment Rules (i.e. by holding a DPC meeting in consultation with the Manipur Public Service Commission), but the appointees continued in the post uninterruptedly till the regularisation of their services in accordance with Rules. Consequently, the entire period of their ad-hoc service shall be counted towards seniority.

In reply the learned Advocate General appearing on behalf of the State and Mr. N. Kotiswar ld. counsel appearing on behalf of the direct recruit submitted that the ad hoc appointments were made purely on temporary basis and these appointments are only a stop-gap arrangement. It is, further, submitted by the learned Advocate General that from the year of 1976 to 1980 Government was preparing scheme for trifercation of the PWD. It is also submitted by learned Advocate General that with the trifercation of the P.W.D., it was felt necessary to obtain the option of the Assistant Engineers and S.O. Grade-I to allocate their services in the three proposed Departments of the P.W.D. Since the process took sometime it was decided by the Govt. that no direct recruitment will be made till the trifercation process is completed. Since the process of trifercation took about 5 (five) years time, the Government with a view to cope with the development work of the Department, made a temporary arrangement for promotion of some S.O. Grade-I officers in the post of Assistant Engineers purely on ad-hoc basis. ld. Advocate General, further, submitted that at the time of making these ad-hoc appointments of the Petitioners, no DPC was held and they were appointed as Assistant Engineers purely on ad-hoc basis on the basis of their seniority. It is submitted that the post of Assistant Engineer is a selection post and without DPC no promotee can be appointed on regular basis. Consequently, the learned Advocate General submitted that the ad hoc promotion of the Petitioners in the post of Asstt. Engineer was purely a temporary arrangement without following the rule and therefore they cannot claim their seniority from the date of their initial appointment in the post of Assistant Engineer.

The learned Counsel of both the parties relied on the decision of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, . Ld. Advocate General submitted that the care of the Petitioners fall within the ambit of the corollary mentioned in conclusion (A) of that decision whereas Mr. H.N.K. Singh, ld. counsel for the Petitioners submitted that the case of the Petitioners are squarely covered by the conclusion (B) of the Maharashtra Engineers case. Conclusions (A) & (B) of the aforesaid case which is material are as under:

(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 officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating of his service will be counted.

In the present cases all the writ Petitioners are persons who were given ad hoc temporary appointments in the post of Asstt. Engineers which was extended from time to time till their regularisation, firstly on 26th Sept. 1987 at Annexure-A/4 of C.R. No. 673/94, and thereafter by the order of their regularisation dated 29.1.93 and 6.2.93 in Annexure-A/6 of C.R. No. 332/95 and Annexure-A/21(A) of C.R. No. 235/95 respectively. The regularisation of the promotee Assistant Engineers were made on the recommendation of the DPC in consultation with the MPSC which is an express condition and requirement for regular appointment under the Rules. In the present case it is an admitted fact that while making ad-hoc appointment no DPC was held, neither the MPSC was consulted. It is also on admitted fact that subsequently DPC recommended the ad-hoc promotee Assistant Engineers and MPSC was consulted for regularisation of their services. Apart from the aforesaid DPC and consultation with the MPSC the High Court passed various orders in different cases filed by the promotee Engineers to regularise their services w.e.f. the date of their initial appointment. In those cases the claim of the Petitioner has been scrutinised by the High Court and after being satisfied, the High Court passed order for regularisation of the services of ad hoc promotee Asstt. Engineers w.e.f. the date of their initial appointment as Assistant Engineers. It is, therefore, obvious that after initial appointment on ad-hoc basis the services of the promotee Assistant Engineers were regularised in accordance with Rules prescribed for regular substantive appointment in the post of Assistant Engineer. On perusal of the conclusions- (A) and (B) of the decision of the constitution of Bench of the Apex Court in Maharashtra Engineers case (supra), it appears that conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). It is clear from conclusion(A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed according to Rules. The corollary set out in conclusion (A) is that whether the initial appointment is only ad-hoc and not according to Rules and made as a stop-gap arrangement, officiation in such post cannot be taken into account for considering the seniority. Thus, corollary in conclusion(A) expressly excludes the category of cases where the initial appointment is only ad-hoc and not according to Rules being made only as a stop-gap arrangement. In the present case it appears that on the date of initial appointment on ad-hoc basis the Petitioners were eligible for being appointed in the post of Asstt. Engineers on regular basis. But, as the Government could not constitute a DPC these promotee Asstt. Engineers could not be appointed on regular basis. They fulfil all the eligibility criteria for promotion to the post of Assistant Engineers. Therefore, it cannot be said that this ad-hoc appointments were not made in accordance with Rules. On the contrary it can, at best, be said that the procedural requirements for appointment on promotion to the post of Assistant Engineers has not been followed. The promotee Asstt. Engineers continued in their posts till their services were regularised in accordance with the Rules and procedures prescribed for regular substantive appointment in the post of Assistant Engineers. Mr. H.N.K. Singh, therefore, submitted that since the services of the Petitioners were subsequently regularised as per Rules, their seniority should be counted from the date of their initial appointment. Even if the submission of the learned A.G. is accepted that due to trifercation process Govt. could not make direct recruitment upto the year 197,9 and State Govt. has filled up the vacancies by promotion purely on ad-hoc basis, in such event also if it is found that the ad-hoc promotions were made from amongst the eligible officers and they continued in the post uninterruptedly for a long years and subsequently their services were regularised as per provisions of the Rules, then in such situation there is no reason not to count the period of ad-hoc service towards seniority. In such a situation when appointments are made from one source and the services of such appointees are regularised as per Rules, there is no reason to push down such promotees below the latter entrant direct recruits.

In the present case the Petitioners were initially appointed on ad-hoc basis they have already earned their eligibility for promotion on regular basis. The promotee ad-hoc Asstt. Engineers continued in their posts uninterruptedly till they were regularised in the service according to the provisions of the Recruitment Rules. Having regard to the fact that these ad-hoc promtoees continued in their services for a long period and their ad-hoc appointments were made as per provisions of the Recruitment Rules without following the procedural requirements of a DPC, their cases cannot fall within the corollary in conclusion(A) which says that the officiation in such post cannot be taken into account for counting seniority. Corollary (A) contemplates a situation that the appointments are ad-hoc and not according to Rules and made as a stop-gap arrangement. In the instant case it does not appear that the ad-hoc appointment of the promotion Asstt. Engineers were stop-gap arrangement, and had it been so they would not have been continued for a long period till regularisation of their service. Further, the corollary attracts cases where the services of the employees have not been regularised according to Rules. Therefore, I am of the clear view that corollary to (A) of Mahrashtra Engineers case cannot attract in the case of the present Petitioners. On the contrary it appears that conclusion(B) squarely covers the cases of the Petitioners. Conclusion(B) clearly provides that an initial appointee should continue in service uninterruptedly till regularisation of his service in accordance with Rules. In the present case the services of all the ad-hoc promotee Asstt. Engineers were regularised by Govt. according to Rules, and therefore, I am of the clear view that the cases of the present Petitioners squarely fall within the corollary in conclusion(B) which says that the period of officiating service will be counted. If the officiating service as ad-hoc appointee is counted, there is no reason to deprive these promotees to get their seniority from the date of their regular appointment. Consequently, I am of the clear view that the present Petitioners are entitled to get their seniority from the date of their initial appointment in the post of Assistant Engineer on ad-hoc basis from which date their services have been regularised by the Government.

The Seniority Rules of 1959 (Annexure-A/13 of C.R. No. 525/95) provides that the relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between the direct recruits and promotees which shall be based on the quotas of the vacancies reserved for direct recruits and promotees according to the Recruitment Rules. The Recruitment Rules provides 40% of the appointment by direct recruits and 60% by promotion. Therefore, the seniority of the promotee Assistant Engineers and direct recruits are required to be fixed according to the aforesaid Rules.

The Government could not furnish the vacancy position for direct recruits and promotees from the year, 1975 to 1982. If there are vacancies in the post of Assistant Engineer under promotion quota from 1975 to 1979 then all promotee Asstt. Engineers will rank senior to the direct recruits of 1980 and 1981. If, however, substantive vacancies in the post of Assistant Engineers are not found adequate to accommodate the Petitioners whose services were regularised from the date of their initial appointment from 1975 to 1979, they can be accommodated in subsequent years when vacancy will be available under promotion quota. While fixing the seniority between the direct recruits and promotees for the year, 1980 and 1981, the seniority list should be prepared after showing 3 (three) promotees senior to 2 (two) direct recruits and thereafter again 3 (three) promotees then 2 direct recruits and so on. After working the vacancies for the year, 1975 to 1981 the seniority list between the direct recruits and promtoees may be prepared afresh as per observation made above.

Having regards to the facts and circumstances stated above, I am clearly of the view that the final seniority list prepared by the Respondents on 27.10.93 Annexure-A/11 of C.R. No. 520/95 showing the direct recruits senior to the promotee Assistant Engineers is bad and illegal and consequently I am of the view mat the final seniority list dated 27.10.93 is required to be quashed. Accordingly, the final seniority list published by the Govt. on 27.10.93 is hereby quashed. It appears that in 1984 Govt. forwarded the names of 20 (twenty) Asstt. Engineers to DPC to recommend four names for promotion to the post of E.E. The promotee Asstt. Engineers challenged the Govt. action and filed C.R. No. 660/92. The High Court in its order at Annexure-A/23 did not interfere with the proposal of the Govt. for appointment of 4 (four) E.Es. from the list of 20 Asstt. Engineers. The High Court, however, directed the Govt. to prepare fresh seniority list for future promotion. If 4 (four) Asstt. Engineers are promoted as E.Es. from the list of 20 candidates which was challenged in C.R. 660/92, then their names need not be shown in the fresh seniority list of Asstt. Engineers. If these four promotions are already made by Govt. in pursuance of the order of the High Court at Annexure-A/23, then I do not like to interfere with these promotions as in that event it will cause injustice to these four promotees, and reopening their seniority � after long time will unsettle many settled questions.

In Civil Rule No. 525/95 the Petitioner claimed that he joined in service as S.O. Grade-I on regular basis on 20.10.72 and he was completed Eight years of regular service on 20.10.80. It is contended by ld. counsel for the Petitioner that according to recruitment Rules the Petitioner is entitled to get his promotion in the post of Asstt. Engineer on 20.10.80. But, the Petitioner has been appointed by Govt. only on 31.10.81. The ld. counsel for the Petitioner, therefore, argued that the Petitioner Shri Th. Panchami Singh may be regularised in the post of Asstt. Engineer from 20.10.80 and his seniority be fixed accordingly. Similar claim has also been made by Ch. Lala Singh in C.R. 49/97. I do not find any substance in the argument of the ld. counsel of the Petitioner. An employee cannot have any right to get promotion as soon as he earned his eligibility for promotion in the next higher grade. The employee may have a right to be considering for promotion. It is for the Govt. to decide when promotions are to be made in a particular post or grade. The Govt. may even keep the promotion post vacant for various reasons. Therefore, I am of the clear opinion that an employee can not have a right for promotion as soon as he earns his eligibility for promotion in the next higher grade or post. Consequently, the claim of the Petitioners in C.R. No. 525/95 and C.R. No. 49/96 for regularisation of their services in the post of Asstt. Engineers with effect from the date on which they have earned their eligibility for promotion is hereby rejected. However, their claim for determination of seniority w.e.f. the date of regularisation to the post of Asstt. Engineer is allowed.

In various cases interim orders have been passed by the High Court that till final seniority list is published any promotion made in the post of E.Es. shall be subject to the decision of the present cases. However, if Four promotions are made by Govt. in the post of E.E. in pursuance of the decision of the High Court passed in C.R. No. 660/92 (Annexure-A/23) then their seniority need not be fixed afresh or re-open as per direction herein made.

Having regard to the facts and circumstances stated above and after considering the arguments made by the ld. counsel of all the parties I am of the opinion that the final seniority list of the Asstt. Engineers published by the State Govt. on 23.10.93 should be quashed. Accordingly the final seniority list of A.Es. published by Govt. on 23.10.1993 is quashed. The Respondent, State Govt. is directed to prepare the Seniority list of the Petitioner promotee Asstt. Engineers and direct recruits A.Es. of 1980, 1981 and 1982 batches according to the quota of vacancies reserved for promotee Asstt. Engineers and Direct recruit A.Es. The State Govt. is further directed to ascertain the vacancy position of the post of A.Es. from the year, 1975 to 1983, and quota reserved for promotees and direct recruits for the aforesaid years. While fixing the relative seniority of promotees and Direct Recruit A.Es. the State Govt. is directed to follow the following principles:

(a) The seniority of the Petitioner promotee A.E. shall be counted from the date of their regularisation. In other words, their seniority shall be counted from the date of their initial appointment as A.E. on ad-hoc basis;

(b) The seniority of the Direct recruit Asstt. Engieener shall be counted from the date of their regular appointment in the post of Asstt. Engineers;

(c) A Calendar year shall be taken as Unit for fixing the seniority between Promotee and Direct Recruits and quota reserved for Promotee and Direct Recruits shall be filled up by rotation of vacancies;

Explanation:

For fixing seniority between direct recruits and promotees for a year, the seniority list should be prepared after showing three promotees senior to two direct recruits and thereafter again three promotees and the two direct recuits and so on;

(d) In the year, 1975 there is only promotee Asstt. Engineer. If there is any vacancy in that year in the quota of promotee, then he should be entertained against the post for that year. If no vacancy is available, his seniority may be shown in the subsequent year when vacancy is available. Similarly, in the year, 1978 there is One promotee A.E. and there is no direct recruit If vacancy is available in the quota of promotee he may be entertained against the post in the year, 1978. If no vacancy is available he may be entertained in subsequent year when vacancy is available under promotion quota and seniority be determined accordingly.

In 1979, there Six promotee A.Es. If vacancy is available in the qutoa of promotee during the year, 1979, then they may be accommodated in that year. If vacancies are pot available, they may be entertained in the subsequent year when vacancies are available under the quota of promotees and seniority be determined accordingly.

For the years 1980, 1981 and 1982 there are promotee A.Es. and direct recruit A.Es. Their seniority may be fixed according to the quota of vacancies reserved for each categories in the aforesaid years. If, however, the quota for promotee is not available, during the aforesaid years they may be entertained in subsequent year when vacancy for promotee will be available and their seniority be fixed accordingly.

(e) If the Four A.Es. are promoted in the post of E.Es. in pursuance of the decision of the High Court in C.R. 660/92, then their seniority should not be re-opened and their seniority may be shown in the grade of E.E.

(f) The State Govt. is directed to prepare a fresh seniority list of Asstt. Engineers as per the above guidlines within a period of Three months from today.

In the result, C.R. No. 512/88, C.R. No. 822/94, C.R. No. 525/95 and C.R. No. 49/96 are allowed in part to the extent of their claim of relief regarding seniority. All other writ petitions are allowed. Under the facts and circumstances, I make no order as to costs.

All the connected C. Misc. applications shall stands disposed of.