Akhoury Dadan Prasad Vs. Vishwanath Jha & Ors.
EmailAppeal: Civil Appeal No. 8425 of 1997
Petitioner: Akhoury Dadan Prasad
Respondent: Vishwanath Jha & Ors.
Apeal: Civil Appeal No. 8425 of 1997
Judges: G.B. PATTANAIK & Y.K. SABHARWAL, JJ.
Date of Judgment: Dec 04, 2001
Head Note:
SERVICE LAWS
Constitution
Articles 226, 14 – Seniority – Work charged mechanical overseer – Termination on 1.11.67 – Reinstated by order dated 10.2.68 but as fresh entrant – On being challenged, held to be in service w.e.f. 1.11.67 – Later, chief engineer passing an order, granting seniority from date of appointment. Held that since chief engineer himself passed orders, employee/appellant must be deemed senior to respondent as there was no justification not to count the services from date of appointment i.e 21.7.67. Appeal allowed. (Para 5)
Constitution
Articles 226, 14 – Seniority – Work charged mechanical overseer – Termination on 1.11.67 – Reinstated by order dated 10.2.68 but as fresh entrant – On being challenged, held to be in service w.e.f. 1.11.67 – Later, chief engineer passing an order, granting seniority from date of appointment. Held that since chief engineer himself passed orders, employee/appellant must be deemed senior to respondent as there was no justification not to count the services from date of appointment i.e 21.7.67. Appeal allowed. (Para 5)
JUDGEMENT:
ORDER
1. This appeal is directed against the judgment of the division bench of the Patna High Court. By the impugned judgment, the division bench having upheld the judgment of the single judge and having dismissed the appeal, the appellant is before this Court. The sole question for consideration is whether the appellant would be treated senior to respondent no. 1 in the cadre of junior mechanical overseer. Initially, the appellant was appointed as work charged mechanical overseer on 14.3.1967. The services of appellant were terminated on 1.11.1967 but later on by an order dated 10.2.1968, he was reinstated into service as a fresh entrant. The appellant challenged the said order before the authority and then by an order dated 6.6.1977, the appellant was held to be in service from 1.11.1967 that is the date of the termination and granted continuity of service. On 17.1.1978, the chief engineer passed an order granting seniority in the cadre of junior mechanical engineer to the appellant with effect from the date of appointment on 21.7.1967 on the post of junior mechanical engineer in the regular establishment. On 4.12.1978, there is yet another order passed by the chief engineer whereunder the appellant was given his seniority in the cadre with effect from 21.7.1967, obviously treating him to be in regular establishment of the cadre.
2. Respondent no. 1 having approached the High Court, the High Court was of the opinion that the seniority has been wrongly determined. It may be stated that the state government before the High Court took the stand that the appellant must be held to be a regular appointee with effect from 21.7.1967 and if that is the correct position, then the respondent no. 1 by no stretch of imagination can be held to be senior to the appellant. The single judge allowed the writ petition. The appellant moved the division bench in appeal.
3. The division bench was of the opinion that the initial appointment of the appellant in the regular establishment being contrary to the rules as the same was passed by the superintending engineer, though under law the appointment was to be made by the chief engineer, did not grant the relief and dismissed the appeal. Hence the present appeal.
4. It is contended by the counsel for the appellant that in view of the positive stand of the state government in the High Court, the division bench committed an error in examining the provisions of the rules for recording its conclusion. It is further contended that in any view of the matter the subsequent order having been passed by the chief engineer, there is no justification on the part of the High Court not to count the services of the appellant in the regular cadre with effect from 21.7.1967 and therefore the impugned order cannot be sustained.
5. Mr. B.B. Singh, learned counsel appearing for the state conceded before us that it is true that the state government supported the appellant’s case before the High Court. But in view of the provisions of the rules he wanted to sustain the impugned judgment of the division bench. If such a stand had been taken before the High Court, it would have been possible for the appellant to indicate that the original order of regularisation was passed by the chief engineer though it might have been communicated by the superintending engineer. There is sufficient force in the contention of the counsel appearing for the appellant that the chief engineer himself having passed the order on 4.12.1978 unequivocally indicated that the appellant must be deemed to be a regular employee on 21.7.1967, there is no justification not to count the said services as in regular employment. We find sufficient force in the aforesaid contention of the learned counsel for the appellant. Since by the order dated 4.12.1978, the appellant’s service with effect from 21.7.1967 in the cadre of junior mechanical engineer has been taken to be regular, the seniority of appellant must be held to be above respondent no. 1. We, therefore, set aside the impugned orders of the single judge and division bench of the Patna High Court and allow this appeal.
1. This appeal is directed against the judgment of the division bench of the Patna High Court. By the impugned judgment, the division bench having upheld the judgment of the single judge and having dismissed the appeal, the appellant is before this Court. The sole question for consideration is whether the appellant would be treated senior to respondent no. 1 in the cadre of junior mechanical overseer. Initially, the appellant was appointed as work charged mechanical overseer on 14.3.1967. The services of appellant were terminated on 1.11.1967 but later on by an order dated 10.2.1968, he was reinstated into service as a fresh entrant. The appellant challenged the said order before the authority and then by an order dated 6.6.1977, the appellant was held to be in service from 1.11.1967 that is the date of the termination and granted continuity of service. On 17.1.1978, the chief engineer passed an order granting seniority in the cadre of junior mechanical engineer to the appellant with effect from the date of appointment on 21.7.1967 on the post of junior mechanical engineer in the regular establishment. On 4.12.1978, there is yet another order passed by the chief engineer whereunder the appellant was given his seniority in the cadre with effect from 21.7.1967, obviously treating him to be in regular establishment of the cadre.
2. Respondent no. 1 having approached the High Court, the High Court was of the opinion that the seniority has been wrongly determined. It may be stated that the state government before the High Court took the stand that the appellant must be held to be a regular appointee with effect from 21.7.1967 and if that is the correct position, then the respondent no. 1 by no stretch of imagination can be held to be senior to the appellant. The single judge allowed the writ petition. The appellant moved the division bench in appeal.
3. The division bench was of the opinion that the initial appointment of the appellant in the regular establishment being contrary to the rules as the same was passed by the superintending engineer, though under law the appointment was to be made by the chief engineer, did not grant the relief and dismissed the appeal. Hence the present appeal.
4. It is contended by the counsel for the appellant that in view of the positive stand of the state government in the High Court, the division bench committed an error in examining the provisions of the rules for recording its conclusion. It is further contended that in any view of the matter the subsequent order having been passed by the chief engineer, there is no justification on the part of the High Court not to count the services of the appellant in the regular cadre with effect from 21.7.1967 and therefore the impugned order cannot be sustained.
5. Mr. B.B. Singh, learned counsel appearing for the state conceded before us that it is true that the state government supported the appellant’s case before the High Court. But in view of the provisions of the rules he wanted to sustain the impugned judgment of the division bench. If such a stand had been taken before the High Court, it would have been possible for the appellant to indicate that the original order of regularisation was passed by the chief engineer though it might have been communicated by the superintending engineer. There is sufficient force in the contention of the counsel appearing for the appellant that the chief engineer himself having passed the order on 4.12.1978 unequivocally indicated that the appellant must be deemed to be a regular employee on 21.7.1967, there is no justification not to count the said services as in regular employment. We find sufficient force in the aforesaid contention of the learned counsel for the appellant. Since by the order dated 4.12.1978, the appellant’s service with effect from 21.7.1967 in the cadre of junior mechanical engineer has been taken to be regular, the seniority of appellant must be held to be above respondent no. 1. We, therefore, set aside the impugned orders of the single judge and division bench of the Patna High Court and allow this appeal.
