R.K.Kapoor & Ors. vs State & Ors.

Sunil Hali, J.—The question involved in both the appeals is whether a person appointed afresh by the Service Selection Board (hereinafter

referred to as 'Board') can claim the benefits of services rendered by him prior to his fresh appointment.

The facts which are not in dispute are that vide Advertisement Notice issued by the official respondents and consequent recommendations made

by the Board on the basis of interview, the appointments came to be made for the post of Junior Engineers. The date of appointment of appellants

and private respondents is also not in dispute. What is important is that all the appellants and private respondents came to be appointed as Junior

Engineers on the basis of direct recruitment quota posts. In pursuance to their appointment as Junior Engineers, seniority list came to be issued by

the respondents on 14th Sep. 1981. The appellants in the said seniority list were shown senior to the private respondents. After reorganization of

the department, the appellants/private respondents came to be appointed as Assistant Engineers on 18.11.1987. The dispute arose when the

respondentState vide its Govt. order No.2PDD of 1989 dated 05.01.1989 redesignated respondents as Junior Engineers from the date they

initially joined the service. It is important to mention that the respondents, who were initially appointed as Junior Engineers, were working in the

lower grade than the one which was provided to the Junior Engineers who were appointed vide advertisement notice issued by the selection board.

It is under these circumstances, the respondents sought their appointment as direct recruits in pursuance of the advertisement notice. It is this act of

the State which is subject matter of controversy in the present case.

The appellants called in question the aforesaid order before the writ court. The learned single judge vide judgment dated 17.10. 2001 dismissed

the writ petition by holding that the respondents were given retrospective benefits by placing reliance on Govt. Order dated 05.09.1967. The

learned Single Judge also held that the writ petition suffers by delay and laches. It is under these circumstances the present appeal has been

preferred.

We have heard learned counsel for the parties.

It is not in dispute that both appellants and private respondents came to be appointed as Junior Engineers in pursuance of the Advertisement

notice issued by the Board. This appointment was for the direct recruits and was a fresh appointment. It is also not in dispute that the appellants

were admittedly seniors to the respondents on the basis of their date of appointment. The question that is required to be determined by us is

whether by the Govt. Order dated 05.01.1989, by virtue of which retrospective benefit was given to the respondents for their appointment as

Junior Engineers, could be counted towards their services they have rendered prior to their fresh appointment.

There is no dispute with this position of law that the retrospective benefits can be given but it is only by operation of some rules or bye laws.

Under Article 309 of the Constitution of India, the President or the Governor has the power to make legislation regarding the conditions of service

of employees. This legislation is Constitutional legislation. Such legislation can have retrospective benefits provided it does not violate PartIll of the

Constitution. The limitation for exercising such power is that it should not disturb the vested right of a person against whom the legislation is to

operate.

In the instant case, it is not by virtue of any rules making power or by delegated legislation that this benefit is conferred. What has been done in

the present case is that the retrospective benefits has been given to the private respondents by invoking a Government Order which was issued in

the year 1967 which has also been relied upon by the writ court. As a matter of fact the order impugned makes the order operational which was in

existence in the year 1967. Assuming that the State could have given this benefit, it is important that this order should have been in operation when

impugned order was passed in the year 1989. Nothing has been placed before this court by the respondents to show that this order was in

operation.

Be that as it may, we do not find that the government had the power for retrospective redesignation of the respondents as Junior Engineers in

violation of the rules and statute. The seniority list was framed strictly in accordance with the Rule 24 of the Jammu and Kashmir Civil Services

(Classification, Control and Appeal) Rules, 1956 and this should not have been disturbed by issuance of an administrative order.

The other aspect of the matter is whether respondents, after subjecting themselves to all the requirements and formalities of direct recruitments

along with other independent candidates, could be given the benefits of their previous services rendered by them. The answer is in the negative.

The respondents had been selected as direct recruits as Junior Engineers along with the appellants and could not be given the benefit of services

rendered by them as Junior Engineers in the lower grade. The benefit of previous service given vide impugned order will not wipe out the status of

the respondents as direct recruits. We are fortified by the judgment of the Supreme Court in case titled K.Rajaiash, Appellant Vs. State of Andhra

Pradesh and others, respondent reported in AIR 1987 SC 2005. This judgment clearly covers the present case. In the said judgment it has been

held by the Supreme Court that once a person participates in the selection process conducted by the Service Selection Board under rules and is

selected, he shall be construed to be a direct recruit. No benefits can be given to him for the service rendered by him in the State prior to his fresh

appointment.

Grant of seniority from the date of initial appointment rendered on adhoc basis on the same post prior to the appointment on substantive basis

cannot be counted towards the service. This is a settled position of law.

In R.K. Mobisana Singh Vs. Kh. Temba Singh and others reported in 2008 AIR SCW 2008 127, it has been held by the Supreme Court that

the retrospective regularization cannot be permitted in order to confer the benefit of seniority retrospectively.

The other ground raised by the appellants is that by virtue of impugned order, their vested rights have been taken away. The impugned order

places the respondents senior to the appellants. Even though the impugned order makes mention that objections were sought from the respondents

but there is no proof that the impugned order was ever communicated to the appellants. As a matter of fact, the impact of impugned order was so

harsh on the appellants that before altering the position, the duty was cast upon the respondents to have served the notice to them and show from

the record that they were served. Merely mentioning this fact in the order could not satisfy the requirement.

The respondents on the other hand have placed reliance on various judgments i.e. 1997 (3) SCC 203,2001 (10) SCC 410 and AIR 1994 (3)

SCC 362.

The judgment relied upon by the respondents do not cover the present case. In this case, the regularization was effected by invoking the

statutory rules and not by an administrative order. The other judgment relied upon relates to laches. In respect of laches, it is stated that the

appellants admittedly were not aware of the passing of the impugned order, as such, they could not have any knowledge about the passing of the

order.

What has been discussed herein above, we allow these appeals and set aside the order of learned Single Judge dated 17.10.2001 and

consequently it is directed that the respondents will refix the seniority of the appellants vizaviz respondents taking into consideration the seniority of

the year 1981.

Disposed of along with connected CMP(s).