Ramjanam Prasad and Others vs The State of Bihar and Others

Nagendra Rai, J.—Both the matters are connected one and as such they have been heard together and are being disposed of by this common order at the stage of admission.

The Petitioners, in C.W.J.C. No. 11567/93, working as Junior Engineers in the Water Resources Department, Patna and superannuated from the same post during the pendency of the writ application, have filed the present application for a direction to the Respondents to count their seniority as Overseers (now Junior Engineers) from the date of their respective appointments as Sub-overseers, i.e., from the respective dates of their officiation as Overseers.

The Petitioner, in C.W.J.C. No. 4232/94, Junior Engineer in the aforesaid department, lies filed the present application to treat him as Junior Engineer (Mech.) from 8-7-1961, when he was appointed on the said post, and make necessary correction in the gradation list dated 16-3-1991.

Petitioner No. 1 (in C.W.J.C. No. 11567/93) was appointed on 11-11-1958 as Sub-Overseer in the Department of Irrigation, vide Anncxure-1, Petitioners No. 2 and 3 were also appointed as Sub-Overseers in the said department by order dated 9-6-1958 by the Superintending Engineer, Irrigation, North Bihar Flood Investigation Circle, Muzaffarpur, vide Annexure-2. Thereafter, Petitioners No. 1 to 3 were promoted to the post of Overseers by orders dated 21-3-1967, 24-1-1975 and 29-3-1973 respectively, vide Annexures-3, 4 and 5 to the writ petition.

The Government, Department of Irrigation, took a decision that in the case of Sub-overseers, who have acquired diploma from I.T.I. Digha, their services rendered as Sub-Overseers, will be held to be the services rendered as Overseers. In the case of Petitioner No. 3, who had acquired diploma from I.T.I., Digha, a decision was taken, vide Annexure-6, that services rendered by him as Sub-Overseer will be treated as services rendered as Overseer. The other Petitioners were also given similar treatment by virtue of their acquiring similar qualification from I.T.I., Digha.

The State Government, Department of Personnel and Administrative Reforms, Patna, took a decision that the persons holding I.T.I, qualification will be treated as Overseers from the date of their appointment as Sub-Overseers and memorandum to that effect was prepared for consideration, vide Annexure-7. A decision to the same effect was also taken by the Irrigation Department, vide Annexute-8. On 17-5-1976, the Government took Anr. decision that the Overseers appointed as such on promotion from the post of Sub Overseers should be given seniority with effect from their date of appointment as Overseers and not from the date of their first appointment as Sub-Overseers. No special privilege was to be given to the persons holding diploma from I.T.I., Digha. They were also to be treated at par with other Sub-Overseers. The aforesaid Resolution of the State Government dated 17-5-1976 was challenged in C.W.J.C. No. 1820/77 in this Court and the said decision was quashed and this Court held that the seniority of the Overseers will be counted from the date of confirmation as Overseer. The matter went before the Supreme Court in Civil Appeal Nos. 2041 and 3128 of 1979, which were finally disposed of on 16-12-1987. The Hon''ble Supreme Court upheld the order of the High Court quashing the Government Resolution dated 17-5-1976, but held that the confirmation should not be the basis for determining the seniority, on the other hand, seniority would be determined on the basis of length of service test.

On the basis of the aforesaid judgment of the Supreme Court, the Government treated the seniority of Junior Engineers from the date of their respective appointments as Sub-Overseers, copies of which have been annexed as Annexures 9 to 12 to the writ application. In the gradation list prepared in the year 1988, Petitioner No. 1 of C.W.J.C. No. 11567/93 was shown at sl. No. 1372 (ka), Petitioner No. 2 at sl. No. 1301 and Petitioner No. 3 at sl. No. 1303. In the final gradation list published in the year 1990, Petitioner No. 1 was shown at sl. No. 4397, Petitioner No. 2 at sl. No. 4393 and Petitioner No. 3 at sl. No. 4395. In the revised gradation list dated 28-11-90 (Annexure-13) Petitioner No. 1 was placed at sl. No. 374 (ka), Petitioner No. 2 at sl. No. 282 (ka) and Petitioner No. 3 at sl. No. 282 (Ga).

On 8-1-1992 the Government took a policy decision with regard to determining the seniority of the Overseers in the light of the aforesaid judgment of the Supreme Court and the opinion of the Law Department. a copy of the said decision is made Annexure-14 to the writ application. According to the said decision, seniority of the Overseers will be reckoned from the date of their officiation as Overseers.

The grievance of the Petitioners that the aforesaid decision of the Stale Government is not being implemented in their case as the period for which they had officiated as Overseers while appointed as Sub-Overseers is not being counted for the purpose of determining their seniority as Overseer; whereas, other persons are being given the benefit of the aforesaid decision. The names of such persons, are given in paragraph 23 of the writ application.

The case of sole Petitioner in C.W.J.C. No. 4232/94, at present working as Junior Engineer (Selection Grade) in the Mechanical Circle, Irrigation Department, Patna, is that he obtained Industrial Diploma Examination Certificate in the year 1958-59. On 13-6-1961 he was directed to appear in the interview for the appointment to the post of Overseer as per the direction of the Secretary, Chief Administrator, River Valley Project and on 20-6-1961, in pursuance of the aforesaid direction, he was appointed as Overseer (Electrical) and joined the said post on 8th July, 1961. A copy of the appointment letter has been annexed as Annexure-3 to the writ application.

The Petitioner was asked to produce his Diploma Certificate in support of his qualification, but, as at that time the Diploma Certificate was not issued to the Petitioner, he could not produce the same. Thereafter, he along with other similarly situated persons were appointed as Sub-Overseers by order dated 26-8-1961 (Annexure-4). Though the Petitioner was appointed as Sub-Overseer, as there was no post of Sub-Overseer he was appointed against the post of Overseer and continued on the said post and was discharging the duty as Overseer prior to the issuance of the order dated 26-8-1961. Thereafter, the Petitioner completed "Kalawadhi", the time prescribed for promotion to the post of Overseer, he was promoted to the post of Overseer on 28-11-1969 (vide Annexure-5). The Government, by resolution, merged the cadre of Junior Engineer of River Valley Project, Irrigation Department and Minor Irrigation Department. In the year 1974 a tentative gradation list of Junior Engineers was published in which Petitioner was shown at sl. No. 187 by counting his seniority as Overseer from 22nd July, 1969, vide Annexure-6. The Petitioner represented against the wrong preparation of gradation list and requested the authority that his seniority should be counted since 1961 as Overseer, when he was appointed as Overseer. The said representation of the Petitioner was forwarded by the Executive Engineer to the Secretary of the Irrigation Department. In the meantime, the Irrigation Department issued a letter dated 18-3-1982 (Annexure-9); wherein, it accepted that the Petitioner has worked as Overseer while it was appointed as Sub-Overseer and as such his seniority should be counted from the initial date of his appointment. On the basis of the said decision, the Petitioner was placed at sl. No. 35-A in the gradation list, vide Annexure-10. As there was anomaly in the gradation list, certain persons filed writ applications, namely, C.W.J.C. Nos. 481/80, 482/80, 2644/82 and 1449/83, in this High Court which were finally disposed of and in terms of the judgment in the aforesaid cases the seniority given to the Overseers from the date of their initial appointment as Sub-Overseers was withdrawn, vide Annexure-11.

The aggrieved persons moved before the Supreme Court in Civil Appeal Nos. 5301 and 5303 of 1983 and the same were disposed of by the Supreme Court on 7th October, 1983. and the Supreme Court directed that the persons, who were Petitioners before the Supreme Court, should not be reverted and will continue on the post on which they were working. Thereafter, third gradation list was published on 22nd November. 1984, in which the Petitioner was placed at sl. No. 165, again by treating his appointment as Overseer from 26-7-1969, an extract of the said gradation list is annexed as Annexure 12 to the writ application. The Petitioner filed a representation and thereafter a final gradation list was published on 9-7-1990 in which again he was placed at sl. No. 194 taking into account his appointment as Overseer from 22-7-1969. Again the Petitioner filed a representation and Anr. final gradation list was prepared on 16-3-91 (Annexure-1) in which he has been placed at sl. No. 287 and in this gradation list his seniority has been counted with effect from 1-1-1976. The illegal act on the part of the Respondents forced the Petitioner to file Anr. representation stating that he should he given seniority from June, 1961 or from 22-7-1969. The copies of the representations have been annexed as Annexures-13 series to the writ application.

It is further stated that the Supreme Court in Civil Appeal Nos. 2049/79 and 3128/79 directed that the seniority of the Overseers should be determined with effect from the date they have been actually functioning on the post of Overseers and in the light of the aforesaid judgment of the Supreme Court, Respondents issued a Resolution on 8th January, 1992, wherein, it was stated that the seniority of the Overseers should be determined on the basis of their continuous officiation. A copy of the said resolution is Annexure-15 to the writ application. According to the said decision, the Petitioner''s service is to be counted from the date of his appointment, i.e. 8-7-1961, as stated above. It is also stated on behalf of the Petitioner that the Kalawadhi prescribed for the purpose of promotion in the case of the Petitioners will be six years, as per the resolution of the Department dated 22-9-1964 and according to the resolution dated 28-2-1994 issued by the Water Resources Department, the persons who have been promoted prior to 13th December, 1976 as Overseers will get their seniority from the date they were so promoted and, in that view of the matter, the Petitioner is entitled to seniority at least from 1969 and not from 1-1-1976 as has been done by the State Government. Thus, according to the Petitioner his seniority as Overseer was to be counted either from year 1961 or at least from the year 1969 and as the same is not being done by the State Government he has filed the present writ applications.

Counter affidavits have been filed on behalf of the State in both the writ application and the stand of the Respondent State is as follows: The cadre of Sub-Overseer is different from the cadre of Overseer, because not only their minimum qualification is lower than that of Overseer, but because their pay scale is also lower. Even if a Sub-Overseer is posted as a stop-gap arrangement or even on continuous working basis to discharge the functions of an Overseer, his grade (cadre) is not thereby affected unless and until such person is promoted to the post of Overseer. It is further stated that the policy decision taken on 8-1-1992 by which the seniority of the Overseer was to be determined from the date of continuous officiation as Overseers was reconsidered by the State Government and a fresh Resolution dated 1-10-93 was issued, wherein, it was stated as follows:

Seniority of Sub-Overseers in the cadre of Overseer will be considered from the date they enter the cadre of Overseer, i.e., from the date they are promoted to the post of Overseer.

A copy of the said resolution is annexed as Annexure-B to the counter affidavit filed in C.W.J.C. No. 11567/93.

Some of the Sub-Overseers were treated as Overseers from the date of their initial appointments as Sub-Overseers and were granted seniority from that date by the State Government. The Overseers directly appointed challenged the same in C.W.J.C. Nos. 481/80, 482/80 and 2644/82 and this Court quashed that order and held that Sub-Overseers can be treated as Overseers from the date of their appointments and the services rendered as Sub-Overseers cannot be counted for determining the seniority as Overseer. A copy of the judgment passed in the aforesaid writ applications is annexed as Annexure-C to the counter affidavit filed in C.W.J.C. No. 11567/93. According to the judgment of the Supreme Court in Civil Appeal Nos. 2049 and 3128 of 1979 seniority is to be determined on total length of service in common grade/cadre. The aforesaid judgment is not attracted in the case of continuous officiation rendered in the cadre of Sub-Overseers because there are two different cadres in view of two different pay scales and qualifications.

The Petitioners of both the cases did not hold requisite qualification for appointment as Overseer, i.e., Diploma in Engineering as per the requirement of the P.W.D. Code on the date of appointment and, as such, they cannot be treated as Overseers from the date they were appointed as Sub-Overseers. A copy of the relevant extract of the P.W.D. Code has been annexed as Annexure-D to the counter affidavit. It is further stated that the seniority of the Petitioners has to be counted from the date they were promoted as Overseers and the services rendered as Sub-Overseers cannot be counted for determining the seniority for promotion even if while holding the post of Sub-Overseers they were performing the duties of higher post of Overseers.

With regard to the assertion made in C.W.J.C. No. 11567/93 it is stated Government decision contained in letter dated 28-1-1976 (Annexure-6) to reckon the services of Sub-overseer as Overseer was conditional one subject to the approval by the Recommendation Committee constituted for the purpose of determining the seniority of Sub-Overseers for promotion to the post of Overseer. Later on, on the basis of the recommendation of the said Committee the Government by a resolution dated 13-12-1976 (Annexure-E to the counter affidavit) decided that Sub-Overseer can be promoted to Overseer only after having completed minimum ten years of satisfactory service. In view of the aforesaid resolution the earlier decision stood nullified: It is further stated that the Petitioners wrongly relied upon the memorandum submitted to the State Government for determining the seniority. The said memorandum was never approved by the State Government. Similarly, Annexure-8 on which the Petitioners relied upon in support of their cases is also not a policy decision, on the other hand, policy decisions were taken by the State Government on 13-12-76 and on 1-10-93 by which seniority of Sub-Overseers as Overseers is to be counted only from the date of their promotion as Overseer which will be due only after ten years of continuous and satisfactory service as Sub-Overseer. With regard to the statement made by the Petitioners that similarly situated persons have been given benefit of the services rendered by them as Sub-Overseer for counting their seniority as Overseer, it is asserted that their cases are under review before the State Government in the light of Government Resolution dated 1-10-1993 (Annexure-B to the counter affidavit).

With regard to Petitioner in C.W.J.C. No. 4232/94, it is asserted in the counter affidavit that at the time of initial appointment as Overseer he did not possess requisite qualification, i.e., Diploma in Engineering. The said fact was noticed by the authority and as such the Petitioner was reverted/appointed as Sub-Overseer by order dated 26-8-1961 (Annexure-4). His promotion as Overseer from 28-11-69 was also erroneous, as on the date of issuance of promotion order the Petitioner did not possess minimum eligibility qualification required for promotion to the post of Overseer as on that date also he had no qualification of Diploma in the branch of Engineering. After the merger of cadres of Junior Engineers of three departments, namely, River Valley Project, Irrigation Department and Minor Irrigation Department in the year 1969, the State Government by its Resolution dated 18-9-1976 resolved that ail such Sub-overseers who have put ten years of satisfactory service will be promoted as Junior Engineers. In the said resolution it was specifically stated that the benefit of the said resolution would be effective from the date of issuance of the said resolution, vide Annexure-A to the counter affidavit in C.W.J.C. No. 4232/94. In view of the said Resolution the Petitioner became entitled to be promoted from 19-9-1976 and, as such, his services have been counted from that date for determining his seniority.

Learned Counsel for the Petitioners submitted that though the Petitioners were appointed as Sub-Overseers, they were performing the duties and functions of Overseers (now Junior Engineers) and, as such, the services rendered by them while they were Sub-Overseers should be counted for the purpose of determining their seniority as Overseers. The stand of the State, on the other hand, is that none of the Petitioners possessed requisite qualifications of Diploma in Engineering from any recognised institutions on the date of their appointments and as such they were appointed as Tub-Overseers and later on promoted as Overseers and as such services rendered by them as Sub-Overseers cannot be counted for the purpose of seniority in view of the Government resolution dated 1-10-1993. However, determining the seniority of Sub-Overseers from the date of their entering the cadre of Overseers is in accordance with the decisions Of the Supreme Court and this High Court.

Before adverting to the respective submissions, it is necessary to state some more facts which have not been brought on the record by the parties, but the same is evident from the judgments of the Supreme Court and the judgment of the High Court rendered earlier regarding the points in controversy. It appears that the Overseers (now Junior Engineers) were serving in the three wings of the department of Agriculture-namely, Irrigation Department, Minor irrigation Department and River Valley project. On 9-1-1969 the cadre of Engineers and other employees of the Irrigation Department and River Valley Project were amalgamated. On 17-5-1976 the Government took a decision to amalgamate the Minor Irrigation wing also and thereafter all the merged wings came under the Irrigation Department. After the amalgamation, the question of preparation of final combined gradation list of engineers arose and in view of the claims and counter-claims made by the employees of the three departments a committee was constituted. Thereafter a gradation list was prepared. Some of the Overseers filed writ petition, being C.W.J.C. No. 1820/77 which was disposed of on 2-3-1979 and this Court quashed the aforesaid gradation list and held that the seniority is to be determined on the basis of the date of their confirmation or the date of their substantive appointment. Thereafter, the aggrieved persons filed appeals before the Supreme Court, being Civil Appeal Nos. 2041 and 3128 of 1979 (Nirmal Kumar Choudhary and Ors. v. The State of Bihar), against the judgment of the High Court, which was finally disposed of on 16th December, 1987. The Supreme Court upheld the judgment of this Court but held that for preparation of combined gradation list total length of service in the common grade should be the basis for determining the inter se seniority. In the words of the Supreme Court-"The High Court recorded a finding that there is hand l applicable rule in the matter of fixing inter se seniority in a situation of this type. In the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. We would like to add that in regard to the Supervisors (now called Junior Engineers) serving in the three wings there is no dispute of the grade being the same, while we do not agree with the High Court that confirmation should be the basis and would substitute it by the length of service ''test'' we would uphold the direction that in fixing the combined gradation list the inter se seniority of the incumbents in their respective departments would not be disturbed. Even if this be the test, the gradation list as published by Government has to be modified. We would accordingly confirm the conclusion of the High Court that Annexures 11, 11/1, 12, 13, 13/1, 15 and 16 should be quashed and a fresh combined gradation list has to be published. We have altered the test for fixing the seniority inter se generally but we have approved the direction of inter se seniority in their own departments to be respected. The Respondent it State and its officers are directed to prepare and publish the fresh combined gradation list keeping the aforesaid directions in view.

While the matter was pending before the Supreme Court in the aforesaid civil appeals, Anr. round of litigation was brought before this (Court in C.W.J.C. Nos. 481/80, 482/80 and 2644/82 with regard to the seniority of the Overseers (now Junior Engineers). The Petitioners of those cases were Overseers and they had challenged the order of the State Government by which the Respondent-State has given retrospective seniority to the Overseers from the date of their initial appointments as Sub-Overseers. From the fact of that case it appears that ''all the Respondents of that case, except Respondent Nos. 4 to 10 of C.W.J.C. No. 481/80 were appointed as Sub-Overseers. The Respondent Nos. 4 to 10 were appointed as Overseers in June, 1955 but were reverted as Sub-Overseers in June, 1956. They were later on, but after the Petitioners of that case were appointed/promoted as Overseers. Thereafter, orders were passed by the State Government promoting the Sub-overseers as Overseers from the date of their, initial appointments as Sub-Overseers with a view to clothe them with seniority over the Petitioners, The matter was finally disposed of in February, 1983 by a Division Bench presided over by L.M. Sharma, J., as he then was, and the order counting the services rendered as Sub-Overseers for the purpose of counting seniority as Overseer was quashed. A copy of the said judgment has been made Annexure-C to the counter affidavit in C.W.J.C. No. 11567/93.

After the judgment of the Supreme Court and this Court different orders have been passed by the department concerned. It is not necessary to give all the details Reference may be made of only two resolutions. The resolution dated 8-1-1992 which has been heavily relied upon by the Petitioners in support of their case provides that Sub-Overseers will be given seniority in'' the cadre of Overseers from the date of their continuous officiation as Overseers. However, the said resolution will not apply to the Overseers who have already superannuated or who will be adversely affected, as a result of implementation of the said decision. On the other hand, only those matters will be considered where Sub-Overseers are still working as Sub-overseers and no decision has been taken for determining, their seniority as Overseer and the resolution dated. 1-10-93. superseding the earlier resolution dated 8-1-92 by which it has been decided that the seniority of Sub-Overseers in the cadre of Overseers will be considered from the date they entered into the cadre of Overseer, i.e., from the date they were promoted to the post of the Overseers.

The point in controversy is as to what should be the basis of determining the seniority of the Overseers; as to whether the period of service rendered as Sub-Overseers should be counted for determining the seniority for the post of Overseers on the ground that while posted as Sub-Overseers they were performing the duties of Overseers, as asserted by the Petitioners, or their seniority to be counted after the Sub-Overseers entered into the cadre of Overseers by promotion. The question is no longer res integra, as, in my view, the same has already been decided by the Apex Court and by this Court in two" judgments, referred to above, As the parties differ with regard to the true meaning and import of the aforesaid two judgments, it is necessary to decide the controversy between the parties,

On facts, there is no dispute. The minimum qualification for appointment in the Subordinate Engineering Service (Overseer) is prescribed by Rule 2 of Appendix-II of the Bihar Public Works Department Code, Vol. II, which runs as follows:

Qualifications required of candidates.

A certificate for Diploma in the, Subordinate Engineering in the respective branches of Engineering from any institution recognised by the State Government for this purpose will be the minimum technical qualifications required.

According to the Respondents, none of the Petitioners in both the cases had requisite qualifications on the date of their appointments. The said assertion has not been denied by the Petitioners. On the other hand, it has been admitted that they had no Certificate of Diploma in Engineering on the date of their appointments as Sub-Overseers. There is also no dispute between the parties that all the three Petitioners in C.W.J.C. No. 11567/93 were appointed as Sub-Overseers and the sole Petitioner of C.W.J.C. No. 4232/94 was initially appointed as Overseer, but when he did not produce the Diploma Certificate of an recognised institution he was reverted/appointed to the post of Sub-Overseer. Later on, all of them were promoted to the post of Overseers. There is specific averment in the counter affidavit that there are two different cadres of Sub-Overseers and Overseers and the post of Overseer is a higher post, which has not been denied by the Petitioners. Thus, there is no difficulty in coming to the conclusion that there are two different cadres of Sub-Overseers and Overseers.

In the case of A. Janardhana Vs. Union of India (UOI) and Others, the Apex Court held as follows:

It is an equally well recognised cannon of service jurisprudence ''that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16.

Again in the case of K.S. Vora and Ors. v. State of Gujrat and Ors. JT (1987 (4) 179) similar view was ex-pressed.

Relying upon the aforesaid decisions, the Apex Court in the case of Nirmal Kumar Choudhary (supra) held that in absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. The Constitution Bench of the Apex Court in the case of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, laid down the following criteria with regard to determination of seniority in the following words:

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment end 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 stop-gap 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 service will be counted.

Thus, it is evident from the law laid down by the Apex Court that once a person is appointed to a post his seniority will be counted from the date of his appointment. However, if the initial appointment is an ad hoc one and not according to rules or has been made as stop-gap arrangement, the continuous officiation in such post cannot be taken into account for determining the seniority. If the initial appointment is not made according to the rules but the employee continues in the post uninterruptedly till the regularisation of his services according to the rule, the period of officiating services will be counted for determining the seniority.

In the present case, admittedly, the Petitioners were appointed as Sub-Overseers, as they did not possess the requisite qualification, later on, they were promoted as Overseers. Prior to their promotion as Overseers, they were not in the grade or cadre of Overseers, on the other hand, according to their case, they were performing the duties of Overseers while in the grade of Sub-Overseers. According to the judgment of the Supreme Court in the case of Nirmal Kumar Choudhary (supra), the total length of service in common grade is to be considered for determining the inter se seniority. The services rendered by the Petitioners as Sub-Overseers cannot be treated, as service rendered in common grade, i.e., in the grade of Overseers and, as such, the said period cannot be counted for determining the seniority as Overseer. This apart, as stated above, this very question was the subject matter of decision in the case of Shri Braj Kishore Tiwari and Ors. v. The State of Bihar and Ors. (C.W.J.C. No. 481/80) and this High Court specifically held that .the Sub-Overseers cannot be given seniority over the Overseers by counting their services rendered as Sub-Overseers.

There is Anr. ground to hold that the Petitioners cannot be given seniority by reckoning their services as Sub-Overseers for the purpose of determining their seniority as Overseers. As stated above, post of Overseer is a promotional post and all the Petitioners, even according to their assertion, were promoted from the post of Sub-Overseers to the post of Overseers, in such a situation, once they held substantive post of Sub-Overseers, which is a lower post, even assuming that they were discharging the duties of the higher post, they cannot be treated to have been promoted to a higher grade. The service rendered as such cannot be counted for the purpose of determining the seniority. In the case of Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, the Supreme Court held that a person who holds substantively a lower post cannot be treated to have been promoted on a higher post only on the ground that he has been discharging the duties of the higher post.

After considering the entire matter, I hold that services rendered by the Petitioners while they were in the grade/cadre of Sub-Overseers cannot be considered as services rendered as Overseers and, accordingly, seniority of Overseers is to be counted only from the date of entry in the cadre of Overseers. If the Petitioners'' services are counted from the date of their appointment as Sub-Overseers for determining their seniority as Overseers then the same will be contrary to the judgments of the Supreme Court as well as of this Court, as referred to above. This apart, counting the period during which the Petitioners held the post of Sub-Overseers, as services rendered as Overseers for determining the seniority will be arbitrary in as much as, admittedly, the Petitioners did not possess the requisite qualification for the post of Overseers at the relevant time and in such a situation allowing their claim of seniority from the date of their appointment as Sub-overseers will amount to confer benefit on the Petitioners for their own disqualification. The policy decision contained in Resolution dated 1-10-93 (Annexure-B to the counter affidavit filed in C.W.J.C. No. 11567/93) is valid in the eye of law and requires no interference by this Court.

So far as Petitioner of C.W.J.C. No. 3242/94 is concerned, it is stated that he was promoted as Overseer on 22-7-1969 and in the gradation list published on 9-12-80 his service was counted from the said date. Later on, his seniority has been determined by treating his date of promotion as Overseer from 1-1-1976 on the basis of the Resolution of the State Government (Annexure-A), wherein, it has been provided that only those Sub-Overseers, who have put in 10 years of satisfactory service shall be promoted as Junior Engineers and the said procedure provided for promotion shall be effective from the date of issuance of the resolution. The Petitioner was promoted as back as in the year 1969 as Overseer and he continued in that capacity till today, the assertion made by the Petitioner has not been denied by the Respondents that at the relevant time Kalawadhi period was six years according to the resolution of the concerned department and the Petitioner after having completed the said Kalawadhi was promoted to the said post and there after the aforesaid decision was taken in the year 1976. In that view of the matter, in my view, the benefit already granted to the Petitioner cannot be taken away by the subsequent Government Resolution. As the Petitioner has been promoted as Overseer in the year 1969, it will be too late for the Government to ignore his seniority from the said date and to count his seniority from 1976. Admittedly, he has been working and performing the duty as Overseer in the cadre of Overseer from 1969 and as such, his services rendered from 22-7-1969 is to be counted for the purpose of determining his seniority.

In the result, C.W.J.C. No. 11567/93 is dismissed and C.W.J.C. No. 4232/94 is allowed in part to the extent that the Petitioners'' seniority as Overseers should be counted from 22-7-1969 and not from 1-1-1976. as asserted by the State Government.