Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 926 (MP)

Vijay Kumar Mishra v. Sanjay Rusia

2003-07-30

A.K.SHRIVASTAVA, DIPAK MISRA

body2003
ORDER Dipak Misra, J. 1. The issue of seniority has always been a vexed question both in facts as well as in law. Eventually a senior person may gain an advantage like promotion or even higher scale of pay, but he will not accept the idea to work under a junior or to be a junior to one whom he thinks he is senior to him in law. Conception of seniority and idea of elderliness have always been the dominating factor in the history of mankind, whether it is ancient or the modern. One has noticed in this great country, the law of primogenitor was in prevalence in certain areas and that cannot be lightly thrown overboard though it might have a different compartment depending upon the facts and circumstances. To elaborate after 'Parsuram' by the command of his father, 'Yamadagni' who had harbored a different concept with regard to the chastity of his wife, desired her extinction. Four elder brothers refused to carry out the command but Parsuram did so without any kind of demur. When a boon was bestowed upon Parsuram, by his father, he asked for the revival of his brothers as well as of the mother but the fact remains that Parsuram could not combine the proper body with the head as a result of which the father declared Parsuram to be the eldest brother. The situation with regard to seniority is a question of this nature where none would like to buzz an inch and like to stay embedded on the pedestal of seniority whether he is in service or out of service. We have expressed the aforesaid prefatory note only to indicate that the private respondents herein who were working as Assistant Engineers and Sub-Engineers in the Bridge Corporation of the State of M.P. approached the State Administrative Tribunal invoked its jurisdiction under section 19 of the Administrative Tribunal Act, 1985 claiming seniority over the employees of the PWD who were so declared by virtue of a publication in the gradation list, when the seniority was fixed on the basis of change of policy by the State Government. To Continue the narration we may state that the Bridge Corporation of State of M.P. came into being by a conscious decision of the State of M.P. as at one point of time in the year 1978, it was best that the Corporation would be of immense assistance for carrying out the civil work which was being done by the Public Works Department. Certain higher officers were sent on deputation as admitted before us, to the Bridge Corporation of India. The company was constituted under section 617 of the Indian Companies Act, 1956 and accordingly Memorandum and Articles were work out with the passage of time the Corporation framed its rule for the purpose of recruitment of assistant engineers and sub-engineers. Initially some officers of the Corporation worked very hard and were able to complete the work prior to the date of the contract to avoid the cost of escalation but the spring was not to remain long and when the autumn got ushered in the Corporation was not in a position to perform its elevated role and carry out the work for which it was constituted. When a situation like it cropped up, the State Government thought it condign that the need of the Corporation was not necessary and the whole of it could be managed in a different manner. Keeping this view the policy decision was taken on 11-2-1992 vide Annexure P-10 narrating the history of the Corporation how it was constituted and how it made profits and how it landed itself in loss. Taking into consideration the totality of circumstances the decision was taken by the Cabinet of the State Government for amalgamation/merger. We have been compelled to use these two words as synonyms as the Hindi version which finds place in the document is 'Samviliyan'. It is proper to mention here that in the letter Annexure P-11 dated 12-5-1993 the word Samviliyan (merger) is recorded. In pursuance of the aforesaid policy decision a circular was issued by the State Government vide Annexure P-13 dated 17-2-1993 wherein concerned clause find mention. Though the learned counsel for the parties have referred to in detail and read the entire thing, the real crux or hub of the matter pertains to what was provided with regard to determination of seniority of the employees of the Bridge Corporation, who would come under the Public Works Department on merger. Though the learned counsel for the parties have referred to in detail and read the entire thing, the real crux or hub of the matter pertains to what was provided with regard to determination of seniority of the employees of the Bridge Corporation, who would come under the Public Works Department on merger. That has been described in clause which reads as under :- The free translation of the same would mean that in the event of merger a regular/confirmed employees of the Corporation shall in the event of merger in the department be considered as junior to the permanent officers/employees of the department and their seniority in the list of temporary officers/employees of the department shall be fixed on the basis of the date of assuming post effecting the inter-se seniority of the Corporation. 2. When this policy came into force, it is worth while to state here that an application was filed before the Tribunal forming the subject matter of O.A. No. 844/93. In that case it was put forth that the seniority of the petitioners was not going to be affected. In the counter affidavit filed by the State it was stated as under:- The apprehension of the applicant is based on misconceived and misleading circumstances, hence it is denied. There is no confirmation of any Assistant Engineer in the P.W.D. appointed in the year 1979 or thereafter, nor any such action is being taken at present as such the apprehension of the applicants that any confirmed employee would be placed above them in the gradation list fixing the inter se seniority, is baseless, premature and misconceived. As regard the temporary employees are concerned, the inter-se seniority of the Assistant Engineer of Setu Nigam and P.W.D. shall be fixed as per the length of service of individual employee with respect to their service in respective department. As such on this count also their apprehension is totally misconceived. Besides this the application is premature and deserves to be summarily dismissed because firstly, there is no gradation list yet issued disturbing their placement in the P.W.D. Secondly, their cases of absorption are yet to be considered by a committee constituted for the purpose in terms of the said absorption circular dated 17-2-1993, which is required to examine the cases of Assistant Engineers of Setu Nigam with respect to their eligibility and other criteria to decide their suitability for absorption. As and when the same is finalised a provisional gradation list shall be published and the applicants shall have full opportunity for representing against the said fixing of inter-se seniority before any final steps is taken on the same. The statements made in this para are denied. As already submitted above, the applicants were not the permanent employees of the said Setu Nigam, as such they have not right to claim seniority above the permanent employees of P.W.D. As regard the settled principles of law is concerned, there is no dispute about the same, but the applicants are misconstruing the said provisions of the law. There is no authority which says that a non-permanent employee is to be placed above a permanent employee. The inter-se seniority of the persons coming from two different channels are finally fixed on the basis of the principles adopted in Clause-B of the said circular. It is submitted that the permanent Assistant Engineer as quoted by the applicants are 113 and not 114. However, the applicants are appointed in the year 1979, so it is hard to understand as to how they are being adversely affected by the said principles adopted by the answering respondent. There is no illegality arbitrariness in the policy decision of the answering respondents and they are in full conformity to the settled principle of fixation of intense seniority of the employees coming from two different channels. The statements made in this para are denied. The applicants are labouring under a false apprehension. The circular is very clear with respect to the temporary employee that their inter-se seniority will be maintained on the basis of their length of service. Hence how and in what manner the applicants are going to be adversely effect, by the said circular is difficult to understand. It is denied that the Assistant Engineer in the Setu Nigam employed 14 years ago will not get benefit of his service in the said Nigam while considering the case of their absorption and fixation of seniority. 3. The Tribunal while disposing of the same took note of the assertions made in the return and eventually held as under:- In view of the said admission made by the respondents the learned counsel for the petitioner does not want to press this petition at this stage. 3. The Tribunal while disposing of the same took note of the assertions made in the return and eventually held as under:- In view of the said admission made by the respondents the learned counsel for the petitioner does not want to press this petition at this stage. The State has also filed an application on 22-12-95 with a document dt.26-10-95 in which it is mentioned that the circular dt. 17-2-93 has been cancelled and the State itself filed an application for filing this application as having been rendered infructuous. Consequently, the present petition is being filed. However, liberty to file fresh petition is granted to the petitioners if contingency so arises. Costs as incurred. This finally disposes of the present petition. 4. When the matter stood thus, a different policy came into existence as contained in Annexure P-14. By the said Annexure, which was issued on the basis of cabinet decision taken it was stipulated as under :- 5. On a perusal of the aforesaid instruction relating to seniority, it is quite vivid that the seniority will be counted from the date after the creation of the equivalent posts. It is noteworthy to mention here that except the aforesaid clause no other change was effected in the aforesaid notification. We only clarify that the Cabinet thought it proper not to change any other clause except the principle which pertains to seniority. The said circular which created a dent in the service career of the employees of the Bridge Corporation moved the Tribunal in O.A. No. 541/99,1039/2000 and 797/98. 6. The Tribunal considering the respective submissions raised at the Bar taking note of the law relating to seniority, the change in the policy decision, the assertions made earlier on by the State Government in O.A. No. 844/93 expressed the view in paragraph 27 to 31 as under :- 27. The first paragraph of the extract of the order in Sardana's case may appear to help the respondents and the intervener but those observations were made on the basis that Sardana was declared surplus. Therefore, these observations are not relevant in this case. The observations in the next paragraph of the extract of the Supreme Court order would seem to squarely help the applicants, but for the fact that Sardana was a Govt, employee while, the applicants were employees of a Corporation. 28. Therefore, these observations are not relevant in this case. The observations in the next paragraph of the extract of the Supreme Court order would seem to squarely help the applicants, but for the fact that Sardana was a Govt, employee while, the applicants were employees of a Corporation. 28. It is obvious that respondent State has relied on the first paragraph of the extract of the order in Sardana's case while issuing the impugned order. We have seen that the aforesaid portion is not relevant to the present case because the applicants were not surplus employees. Thus, the judgment in Sardana's case is clearly distinguishable. This was lost sight of when annexure AI-1 was decided by the Tribunal. In that order it was stated that- In the present case before us, the 'Rajya Setu Nigam' was abolished. The State Government had no liability, but even then, it absorbed the services of the employees who were working on the abolished posts." We have seen that this is contrary to the facts. The order at annexure 1-1 was based on wrong factual and legal premises. It is therefore, overruled. 29. Courts can interfere with policy decisions only when they are arbitrary and unreasonable. Please see R.S. Makeshi v. I.M. Menon (1982) 1SCC 379). In this case the policy about seniority contained in annexure A-8 is based on Sardana's case, which is completely distinguishable. Thus, the very foundation of the policy gets knocked out. Every policy has to be based on reason, and when that reason is shown to be untenable, the policy also must go. In the absence of the reason, the policy becomes arbitrary and unreasonable. Therefore, the impugned portion of annexure A-8 is quashed. 30. This, however, does not mean that the relevant portion of annexure A-3 gets restored. Annexure A-3 was cancelled by order dt. 25-10-1995 (annexure A-4 in O.A. 1039/01), and that is not under challenge. 31. Both parties as well as the intervener have advanced arguments and cited authorities on the point as to how seniority should be determined. We are not called upon to decide the issue. Now that the impugned provision of annexure A-8 has been quashed, there is no Govt, policy regarding the seniority of the staff of the erstwhile Corporation. It is the job of the Govt, to formulate the policy not of the Tribunal. We are not called upon to decide the issue. Now that the impugned provision of annexure A-8 has been quashed, there is no Govt, policy regarding the seniority of the staff of the erstwhile Corporation. It is the job of the Govt, to formulate the policy not of the Tribunal. It is clarified that nothing said in this order shall be construed to mean that we are leaning one way or the other in the controversy about what the policy should be. 7. It is appropriate to mention here that when this matter was placed before the Division Bench of the Tribunal, the Chairman of the Tribunal did not agree with the law laid down by the Division Bench of the Tribunal. The Bench thought that the controversy being of immense significance should be adjudicated by a larger Bench. This view was expressed by the Chairman as a decision passed in T.A. No. 4/97 was brought to its notice. It is relevant to state here that the aforesaid order of the Tribunal passed in T. A. No. 4/97 (Yatindra Singh and Others v. M.P. Rajya Setu Nirman Nigam Ltd and Another) was assailed before this Court in W.P. No. 879/2000, wherein this Court passed the following order:- Shri S. S. Samwatsar for the petitioner. Shri Kemkar for the respondent on advance copy, Heard at length. The petition is dismissed. 8. We have referred to the factual scenario as we have to advert to the same at a later stage. 9. Assailing the aforesaid order of the Tribunal the employees have preferred three writ petitions and the State of M.P. has preferred W. P. No. 3877/2002. 10. We have heard Mr. Ravindra Kumar Shrivastava Senior counsel with Mr. Piyush Dharmadhikari for the petitioner in W.P. No. 3143/2002 and Mr. N. S. Kale Senior counsel with Mr. A. Bhowmik in W.P. No. 4193/2002, Mr. Sujoy Paul learned counsel for the petitioners in W.P. No. 3203/2002 and Mr. S. K. Yadav, learned Government Advocate for the petitioner State in W.P. No. 3877/2002. As far as the respondents are concerned, we have heard Mr. Rajendra Tiwari, Senior counsel with Mr. Vivek Rusia for the private respondents and Mr. K. K. Trivedi appeared on behalf of some respondents. 11. Mr. Shrivastava appearing for the petitioners has raised the following contentions :- (a). As far as the respondents are concerned, we have heard Mr. Rajendra Tiwari, Senior counsel with Mr. Vivek Rusia for the private respondents and Mr. K. K. Trivedi appeared on behalf of some respondents. 11. Mr. Shrivastava appearing for the petitioners has raised the following contentions :- (a). The chairman of the Tribunal could not have referred the matter to a larger Bench in the manner he has done inasmuch as there were no conflicting decisions were involved. Submission of Mr. Shrivastava is that though the chairman has been conferred the power to constitute a larger Bench for adjudication of any lis, the same can be done only on the first initial instance when the case is listed, but not after a judgment has been delivered that to without recording or ascribing cogent and germane reason. (b). The order passed by the Tribunal was assailed before the Indore Bench and the Indore Bench having dismissed it in limine after hearing at length, it would tantamount the fact that the order by the Tribunal has merged with the order of the High Court and hence it is a binding precedent on the Tribunal and the Tribunal being a Tribunal is bound by the judgment of the High Court. (c). Assuming for the sake of argument, the order passed by the High Court does not constitute a precedent but it would bind the parties inter-se. As an inter se right is concerned, if the order is not accepted to operate as res judicata, an anomalous situation would crop up. (d). If the documents are taken into consideration and appreciated in proper perspective it would be plain as day that there has been closure of the Bridge Corporation of M.P. and once there is a closure the entire staff of the Corporation would be deemed to be surplus and the surplus employee have no right to be absorbed but they are at the grace and mercy of the State and once they are put in the said position, the question relating to claim for seniority does not arise. (e). The State Government has the liberty to lay down the criteria with regard to seniority and once the Government on the basis of cabinet decision in 1998 laid down the criteria for fixation of seniority, the Tribunal has no jurisdiction to dislocate or dislodge the same. (f). (e). The State Government has the liberty to lay down the criteria with regard to seniority and once the Government on the basis of cabinet decision in 1998 laid down the criteria for fixation of seniority, the Tribunal has no jurisdiction to dislocate or dislodge the same. (f). The Assistant engineers and Sub-engineers who have been employed by the Bridge Corporation of M.P. cannot be deemed to be encoder in the Public Works Department and claim their absorption. (g) If the rules which are relevant and pertinent for the purpose of appointment of Assistant engineers or Sub-engineers under the Public Works Department namely M.P. Public Works Department (Gazetted) Service Recruitment, 1969 are scrutinised in a studied manner it would be manifest that the officers of the Bridge Corporation having not been appointed under the said rules, it would be deemed that they have not been appointed in accordance with the rules and if any one is taken into service de hors the rules counting of past service does not arise. (h) The concept of "integration has a different meaning in service Jurisprudence and if the documents which have been brought on record are scanned in proper perspective by no stretch of imagination, it can be held that there has been integration of both the categories, and, therefore, the claim putforth by the private respondents is absolutely unexplainable and they are unacceptable. 11A. The learned counsel for the petitioners have placed reliance on the various decisions rendered in the cases of P. D. Aggarwal v. State of U.P., AIR 1987 SC 1676 , K.S. Vasudeva v. Union of India, AIR 1981 SC 1980 , State of Punjab and Others v. Dev Dutt Kaushal, 1995 Supp (4) SCC 748 , V.P. Shrivastava v. State of M.P., 1996 (7) SCC 769, State of Punjab and Others v. Harnam Singh and Others, AIR 1997 SC 1103 , Yogendra Prasad Mandal v. State of Bihar and Others, 1998 (3) SCC 137 , K. Narayanan v. State of Karnataka, AIR 1994 SC 55 , T.N. Khadi and Village Industries Board v. M.S. Krishnaswamy, 2001 SC 2761 and Nirmal Kumar v. State of Bihar, AIR 1988 SC 394 . 12. Mr. 12. Mr. N. S. Kale, learned Senior Counsel appearing for the petitioners, in some of the writ petitions submitted that no right can accrue in favour of the person who has been absorbed in the Public Works Department as the whole attempt centers round compassion. It is submitted by him that their absorption in the Public Works Department has to be treated as fresh appointment inasmuch as there cannot be any intrusion in the midstream of the service. To buttress his submission he has placed reliance on the decision in the case of Yogendra Prasad Mandal (supra). 13. Mr. Sujoy Paul, learned counsel has submitted that persons working in the Bridge Corporation cannot be equated with the Public Works Department inasmuch as they were getting less pay scale at the time of work in Bridge Corporation and a person who is getting a pay scale less than a person serving in the department to which he has come has to be treated as junior. To substantiate the aforesaid submission, the learned counsel has placed reliance on the decision rendered in the case of K.C. Gupta v. Lt. Governor of Delhi, 1994 Supp (3) SCC 408. 14. Mr. S. K. Yadav, appearing for the petitioners in W. P. No. 3877/2002 has contended that if Annexure P-2 to 5 and 7 are scanned in proper perspective it would absolutely patent that no right in favour of the employees of the Bridge Corporation ever got crystallized and if a particular right has not been concretized, it would be deemed to be a right in the embryo which cannot be utilised to pyramid a submission pertaining to equality. Learned counsel for the State has also submitted that the conception of service between the two streams are different and when the State Government has framed a policy on a reasonable and rational base, the Court should not interfere as the State has authority to run the administration in accordance with policy, unless it is shown to be arbitrary. He has referred to the decisions rendered in the cases of Col. A.S. Sangwan v. Union of India and Others, 1980 Supp SCC 559 and Ashok Gulati v. B.S. Jain, 1986 (4) SLR 1 : AIR 1987 SC 424 . He has referred to the decisions rendered in the cases of Col. A.S. Sangwan v. Union of India and Others, 1980 Supp SCC 559 and Ashok Gulati v. B.S. Jain, 1986 (4) SLR 1 : AIR 1987 SC 424 . The learned counsel for the State also explained the counter affidavit filed in the case of Balbir Sardana indicating that it pertains to a particular order and the stand of the Government in filing the application and hence, the Tribunal has erred in law. 15. Mr. Rajendra Tiwari, who argued on behalf of the private respondents in all the cases submitted that a policy decision of the State Government is not beyond judicial scrutiny if it is arbitrary, unreasonable, irrational and reeks of mala fide. The senior counsel has submitted that the edifice built by the learned counsel for the petitioners that the employees of Bridge Corporation ipso facto did not become surplus as they were not declared surplus nor they were kept in a surplus cell but on the contrary there was a merger is sans substance as the documents brought on record would reveal to. the contrary and in such a situation they are bound to be treated as surplus and to place reliance on the decision rendered in the case of Sardana (supra) is totally misconceived. It is putforth by him that if the totality of circumstances is taken into consideration, it would be clearly perceivable that the Bridge Corporation was constituted to lessen the burden of the Public Works Department and therefore it is a Government wing functioning on behalf of the State Government as a Government Company and therefore the Government took a policy decision for the purpose of amalgamation and merger. It is submitted by Mr. Tiwari that the State Government initially in the year 1993 had taken a policy decision but later on after passing of half a decade took a somersault and changed the policy to suit certain persons. Thus his contention is that once the State Government had filed return before the Tribunal clearly indicating that no one had been confirmed after 1979 it could not have bestowed the benefit of confirmation on other employees, to jeopardise the interest of the employees of the Bridge Corporation. Thus his contention is that once the State Government had filed return before the Tribunal clearly indicating that no one had been confirmed after 1979 it could not have bestowed the benefit of confirmation on other employees, to jeopardise the interest of the employees of the Bridge Corporation. It is urged by him that when earlier the Lift Irrigation Corporation got merged in Lift Irrigation Department, the State Government had issued the policy in the nature it had considered it earlier in the year 1983 vide Annexure P-13 dated 17-2-1983. It was approved in a way by the Apex Court in the case of M. P. Junior Engineers v. State of M.P., AIR 1990 SC 2010 , but for reasons best known to the Government, a similar policy was not adhered to and the private respondents were thrown to fight against the City Halls. The learned Senior Counsel has also drawn inspiration from the decision in the case of T. N. Khadi and Village Industries Board (supra) to highlight how the length of service in the matter of this nature is of immense significance. Quite apart from the above, learned counsel has profitably commended us to various other decisions :- Naresh Kumar Choudhary v. State of Bihar, AIR 1988 SC 394 , Devdutt and others v. State of M.P., 1991 Supp. (2) SCC 553, Direct Recruit Class II Engineering v. State of Mah., AIR 1990 SC 7607, State of M.P. v. Champa Soni, 2001 (2) MPLJ 333 , S.B. Patwardhan v. State of Maharashtra, AIR 1977 SC 2051 , Tej Narayan Tiwari v. State of Bihar, 1993 SOL Case 53, Ramesh K. Sharma v. Raj P.S.C., AIR 2001 SC 362 , Narendra Chhadda v. Union of India, AIR 1986 SC 638 , Vimal Kumari v. State of Haryana, 1998 (14) SCC 114, Ashutosh Gupta v. State of Rajasthan, 2002 (4) SCC 34 , A. Janardhanan v. Union of India, AIR 1983 SC 769 and Jitendra Umar v. State of Punjab, AIR 84 SC 1850. 16. As far as second submission of Mr. Ravindra Shrivastava, whether the chairman in case of this nature could have directed for reference without expressing an opinion, we do not think it necessitous to enter into that debate. The law is well settled that Courts should restrain themselves from answering any academic issue. 16. As far as second submission of Mr. Ravindra Shrivastava, whether the chairman in case of this nature could have directed for reference without expressing an opinion, we do not think it necessitous to enter into that debate. The law is well settled that Courts should restrain themselves from answering any academic issue. As far as the Indore Bench is concerned whether that would be binding precedent or not we also do not intend to enter into that arena. In the passing we may note, when the High Court renders a decision and the Supreme Court passes an order dismissing the same in laminae, it does not become a binding precedent under Article 141 of the Constitution of India. In this context it is profitable to see K. Narayana (supra) and V. P. Shrivastava (supra). 17. The next issue that arises for consideration is whether the order passed by the Tribunal was binding on the Tribunal itself and whether any anomalous situation would crop up. In the aforesaid case, the petitioners who were ten in number approached the High Court initially claiming that they had not been considered for promotion to the post of Executive Engineer. In the said case, petitioners had challenged certain orders by which the Department of General Administration Government of M.P. had imposed a ban on the Department regarding fresh category of civil engineers and further on a direct selection by promotion. In this context, the Tribunal held as under :- 6. The only point now left for adjudication before us is the question of granting of Seniority to the applicants on their absorption in the Government service of Public Works Department. The respondents have submitted that the State Cabinet had finally decided in its meeting dated 26-3-1998 that the absorbed Engineers of Rajya Setu Nigam shall get their seniority on absorption in Public Works Department from the date posts are created in the Department. The same was also contained in the conditions of absorption settled by the State Government vide their letter dated 5-5-1998. The applicants, therefore, cannot claim the seniority from their date of appointment in the Nigam. The applicants have claimed the seniority on the ground that they were subjected to the service rules of Public Works Department. They also performed the same work and they were duly selected through an advertisement. The applicants, therefore, cannot claim the seniority from their date of appointment in the Nigam. The applicants have claimed the seniority on the ground that they were subjected to the service rules of Public Works Department. They also performed the same work and they were duly selected through an advertisement. The respondents have, however, controverted it stating that the services of Nigam and the Government could not be compared. The selection in Government is made through Public Service Commission. The applicants were at liberty to apply for Government post. They were the employees of the Nigam not selected through Public Service Commission. They, therefore, cannot claim seniority from their date of appointment in Setu Nigam. The respondents have relied upon the judgment delivered by Hon'ble Supreme Court in the case of Balbir Sardana v. Union of India and Others decided on 29-1-1992 in Civil Appeal No. 628/88. In Balbir Sardana's case (supra), it was observed that the benefit of past service would be counted towards the seniority only if it is a case of winding of one department and taking over the existing employees in another department of the same organisation or if it were a case of deputation or appointment etc. The facts of the Balbir Sardana's case (supra) reveal that in his case, the Staff Inspection Unit had recommended the complete wind-up of C.S.I.O. and transfer the existing work to C.P.W.D. Thus, Balbir Sardana became surplus and Central Government instead of terminating his services, had given him re-employment. In the present case before us, the 'Rajya Setu Nigam' was abolished. The State Government had no liability, but even then, it absorbed the services of the employees who were working on the abolished posts. The applicants, therefore, could not claim seniority from their date of initial appointment in Setu Nigam in the light of law settled in Balbir Sardana's case (supra) because the facts of Balbir Sardana's case are distinguishable from the facts of this case, as noted above. The applicants are entitled to claim seniority in fact from the date when posts are created for them in the Government Departments. 18. This facet was not approved by the Indore Division Bench. In this context it is difficult to say that the controversy was put to rest. The applicants are entitled to claim seniority in fact from the date when posts are created for them in the Government Departments. 18. This facet was not approved by the Indore Division Bench. In this context it is difficult to say that the controversy was put to rest. One thing is worth noticing that the Division Bench had placed reliance on the decision rendered by the Apex Court in the case of Balbir Sardana (supra). The said citation is not applicable to the facts of the case. Without getting into the issue whether an order passed by the Tribunal when assailed before the High Court and was not interfered with at the stage of admission by the High Court would be a precedent on the Tribunal or not, is not warranted and we think it proper to enter into the merits of the case. Accordingly we proceed. 19. At this juncture we think it seemly to point out that the submissions have been putforth with regard to determination of seniority. We have heard Mr. Shrivastava, Mr. Kale, learned senior counsel and we have also taken note of the submission of Mr. Paul. The submission in essence is that if a person is appointed de hors the rules, he cannot claim seniority qua the employees who have been appointed in accordance with the rules, that unless a person is encoder, he does not come into that category; the terms of absorption have to be given due sacrosanct and should not be lightly construed if one is declared surplus and is absorbed, this is a matter of compassion or grace and he has no right to claim seniority and he has to be placed at the bottom of the gradation list; that a person who has less pay scale or absorbed in the department cannot be equated to that who has been drawing higher pay scale. 20. The similar issue that has cropped up in this case whether the State Government should have changed the policy which was in vogue in 1993 after passing of five years and whether the said change withstand judicial scrutiny. 20A. On a perusal of the language contained in Annexure P-11, it is plain as noon day that the Bridge Corporation got merged with Public Works Department. We say so as the word merger has been used. 20A. On a perusal of the language contained in Annexure P-11, it is plain as noon day that the Bridge Corporation got merged with Public Works Department. We say so as the word merger has been used. Use of said word after Hindi term Samviliyan appears to us to be deliberate. The deliberation is for the purpose of clarification and to avoid any kind of ambiguity. When the concept of merger is attracted we are of the view that the concept of surplus does not arise, so we are not inclined to agree with the submission of the learned counsel for the petitioners that employees of the Bridge Corporation of M.P. become surplus. On the contrary, the entire organisation merged with the Public Works Department. Mr. Shrivastava has referred us to the rules of 1969 to show that the appointment are to be made to the Public Works Department by many a way namely appointment, promotion, transfer and deputation. The learned senior counsel has submitted that the concept of merger is not in existence. The concept of merger is a different facet. It could not have been envisaged in the rules which had came into existence in 1969. It is not a case where two employees are appointed in the same department, one through the mode provided in the rules, one in a different way. It is a case when a situation of merger has taken place and, therefore, the authority is required to take a policy decision for the purpose of determination of seniority. 21. In view of this we are required to address ourselves to the justifiability and soundness of the policy decision. We have already referred to the policy decision of 1993 and policy decision of 1998. In this context, we may refer to the decision rendered in the case of M. P. Junior Engineers Association (supra). In the aforesaid case, the Lift Irrigation Corporation got merged with Irrigation Department. Their Lordships reproduced the policy decision relating to merger and fixation of seniority. Submission of Mr. Tiwari is that the policy decision is to be rational and reasonable. The law is well settled that a policy decision can be assailed if it violates any statute or the Constitutional provisions. The policy decision is not beyond justifiability. It cannot be said that it is impregnable. 22. Submission of Mr. Tiwari is that the policy decision is to be rational and reasonable. The law is well settled that a policy decision can be assailed if it violates any statute or the Constitutional provisions. The policy decision is not beyond justifiability. It cannot be said that it is impregnable. 22. In view of the factual backdrop we may now address to the justifiability of the policy. In the year 1993 when the policy was framed it clearly indicated that the regular/confirmed employees of the Corporation would become junior to the regular/confirmed employees of the Public Works Department. As far as other category of employees are concerned, their seniority was to be fixed keeping length of service in view with the inter-se seniority of the employees who have come from the Bridge Corporation. Similar situation was when the Lift Irrigation Corporation was merged in the Irrigation Department. The said policy also was in vogue for a period of five years. All of a sudden except keeping this facet intact a change took place. The reasons of metamorphosis have not been spurt out in Annexure P-14. It is noteworthy to state here that by the second policy the employees of Bridge Corporation are treated as junior to the employees of the Public Works Department. The State Government has taken a policy decision to merge the Corporation with the department and the State Government has absorbed the employees after proper scrutiny. Under these circumstances to treat them as junior employee is not acceptable. Hence, we are not able to give stamp of approval to the policy contained in Annexure P-14 dated 5-5-1998. 23. In view of the aforesaid analysis we would have decided the controversy ourselves, but as has been stated in the beginning, seniority is a vexed question and the counsel appearing for the parties before us left no stone unturned to make it a more vexed issue and in that event it becomes incumbent on our part to set aside the order so that no injustice is meted to a single individual. We say so as it has been submitted by Mr. N. S. Kale, learned counsel appearing for some of the petitioners that some of the assistant engineers have been conformed in the year 1993 w.e.f. 1988 and given certificate of confirmation as there was no posts for the purpose of confirmation. We say so as it has been submitted by Mr. N. S. Kale, learned counsel appearing for some of the petitioners that some of the assistant engineers have been conformed in the year 1993 w.e.f. 1988 and given certificate of confirmation as there was no posts for the purpose of confirmation. Similar submission has been putforth by Mr. Yadav. Per contra Mr. Tiwari with vehemence submitted that the confirmation has been conferred in such a manner inasmuch as the State Government desired to confer benefit of confirmation on certain blue eyed persons. The employees who have completed successfully two years of probation, they may not get automatic confirmation but if an employer is satisfied a certificate can be issued. Once certificates have been issued they would be deemed to be confirmed. However, Mr. Tiwari submitted that the persons who have been confirmed have not completed satisfactorily the period of probation and undue favour has been done. We do not intend to say anything on that aspect. 24. Regard being had to the totality of circumstances we enumerate our conclusions in periatim :- a. The composite order passed by the Tribunal in O. A. No. 514/99 and other connected Original applications is quashed. b. The policy dated 5-5-1998 contained in Annexure P-14 is quashed. c. The employees of Bridge Corporation have to be treated as merged with Public Works Department. d. The employees of Bridge Corporation of M.P. have not to be regarded as surplus employees. e. The decision rendered in the case of T.A. No. 4/97 would not govern the field. f. The confirmed employees of PWD shall be placed above the confirmed employees of the Corporation. g. The State Government shall constitute a committee consisting of Chief Secretary, Public Works Department and Principal Secretary of the Department of Law. h. The committee shall look into all the aspect and frame a proper policy so that controversy between the temporary employees of Bridge Corporation and the temporary and unconfirmed employees of the PWD can be determined. The committee shall give an opportunity of hearing to the petitioners to putforth their grievance that the confirmation of the confirmed employees of Public Works Department is bad in law. Needless to emphasise if the committee comes to hold that there has been erroneous confirmation it shall afford an opportunity to the confirmed employees to explain the scenario. The committee shall give an opportunity of hearing to the petitioners to putforth their grievance that the confirmation of the confirmed employees of Public Works Department is bad in law. Needless to emphasise if the committee comes to hold that there has been erroneous confirmation it shall afford an opportunity to the confirmed employees to explain the scenario. Needless to emphasise if the certificate of fitness if genuine and as per law it has to be given the stamp of approval unless in scrutiny something else comes into existence before the committee. The committee shall also go into the facet whether the persons who have been confirmed were entitled to be confirmed w.e.f. the date they have been confirmed. We may hereby state that the confirmations made only after the date of merger shall be scrutinised by the committee on the anvil of law, but it would not be quashed or set aside solely because it has been made after the date of merger. The decision of the committee shall be taken within a period of four months from the receipt of the order passed today. 25. No steps with regard to promotion or determination of seniority from today shall take place till the decision of the Committee. Needless to emphasise, the aforesaid interim order shall be subject to any other litigation which may be filed in future. The persons who have been confirmed before the date of merger shall not be governed by the aforesaid clause. 26. The writ petitions are accordingly disposed of.