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2008 DIGILAW 221 (MP)

SHIV RAJ STNGH v. STATE OF MP

2008-02-07

A.K.PATNAIK, PRAKASH SHRIVASTAVA

body2008
Judgment A.K. Patnaik, C. J. : ( 1. ) This appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal), Adhiniyam, 2005, against the common judgment and order dated 28.2.2006 passed by the learned Single Judge in WP No.3422/1997 and WP No.3756/1998. ( 2. ) The facts briefly are stated that the appellants were appointed in April 1984 as Sub Engineers in the Town Improvement Trust, Rewa. The respondent No. 3 was appointed by order dated 22.2.1984 as Sub Engineer in the Special Area Development Authority, Singrouli. Thereafter the respondent No.3 was transferred to the Town Improvement Trust, Rewa, in the year 1987. With effect from 1.8.1994, the Town Improvement Trust, Rewa, was abolished by a State Act known as Madhya Pradesh Nagar Sudar Nyas (Nirasan) Adhiniyam, 1994. The work of the erst-while Town Improvement Trust, Rewa, was taken over by the Municipal Corporation, Rewa and the appellants and the respondent No.3 continued to work as Sub-Engineers in the Municipal Corporation, Rewa. By order dated 28.6.1995 the services of the respondent No.3 were absorbed in the Municipal Corporation, Rewa, but when representations were filed by the appellants against the absorption of respondent No.3, the State Government cancelled the order dated 28.6.1995 by order dated 17.7.1995. However, the State Government cancelled its order dated 17.7.1995 by order dated 27.7.1998. By the order dated 27.7.1998 therefore the respondent No.3 was to continue as employee of the Municipal Corporation, Rewa. Aggrieved, the appellants filed WP No. 3756/1998 before this Court under Article 226 of the Constitution of India and prayed inter alia for quashing the order dated 27.7.1998. ( 3. ) Before the learned Single Judge who heard the Writ Petition No.3756/1998, the appellants contended that in case the respondent No.3 was treated as absorbed in the services of the Municipal Corporation, Rewa and his seniority is counted from the date of his initial appointment, the appellants will suffer grave prejudice. The learned Single Judge by the impugned judgment and order dated 28.2.2006 held that the absorption of the respondent No.3 in the services of the Municipal Corporation, Rewa, had attained finality and as such, there is no illegality in his absorption. The learned Single Judge further held in the impugned judgment and order relying on the decision of the Supreme Court in Tamil Nadu Khadi and Village Industries Board Vs. The learned Single Judge further held in the impugned judgment and order relying on the decision of the Supreme Court in Tamil Nadu Khadi and Village Industries Board Vs. M.S. Krishnaswamy and others ( AIR 2001 SC 2761 ) that the seniority of the appellants and the respondent No.3 should be reckoned from their initial dates of appointments and accordingly, he directed the respondents No. 1 and 2 draw up a fresh seniority list in the post of Sub Engineers and consequently in the post of Assistant Engineers counting their seniority from the dates of their appointments. Aggrieved by the judgment and order dated 28.2.2006 of the learned Single Judge in WP No.3756/1998, the appellants have filed this appeal. ( 4. ) Mr. A.P. Singh, learned counsel appearing for the appellants, submitted that the appellants were appointed as Sub-Engineers in the Town Improvement Trust, Rewa, in April 1984 and the respondent No.3 came on transfer to the Town Improvement Trust, Rewa only in the year 1987 from the Special Area Development Authority, Singrouli, i.e. after about three years the appellants had worked as Sub Engineer in the Town Improvement Trust, Rewa. He further submitted that the absorption of the respondent No.3 in the Municipal Corporation, Rewa, was not legal and proper and was contrary to the established Rules and procedure and in any case, affected the seniority of the appellants and consequently, their promotional prospects. He further submitted that in the event the Court does not interfere with the order of absorption of the respondent No.3, the direction of the learned Single Judge in the impugned judgment and order directing that the seniority of the appellants and the respondent No.3 should be counted from the dates of their initial appointments, should be set aside and instead the seniority of the appellants should be counted from the dates of their appointments in April 1984 in the Town Improvement Trust, Rewa and the seniority of the respondent No.3 should be counted only from the date of his absorption in the Municipal Corporation, Rewa, on 28.6.1995. ( 5. ) Mr. Vijay Kumar Shukla, learned counsel appearing for the respondents No. 1 and 2 and Mr. ( 5. ) Mr. Vijay Kumar Shukla, learned counsel appearing for the respondents No. 1 and 2 and Mr. Rajendra Tiwari, learned senior counsel appearing for respondent No.3, on the other hand, submitted that the Government order dated 28.6.1995 absorbing the respondent No.3 in the services of the Municipal Corporation, Rewa, was fair and just considering the fact that the respondent No.3 had been working in the Town Improvement Trust, Rewa, since 1987 and on its abolition in the Municipal Corporation, Rewa. Regarding seniority, Mr. Shukla and Mr. Tiwari submitted that the Government after considering all the relevant aspects finally issued an order on 6.1.1999 directing that the seniority of the officers/employees of the Town Improvement Trust and the Special Area Development Authority in the Local Self Department shall be counted in cases where such officers / employees have not been appointed by the Public Service Commission from their initial dates of appointments, if the post and pay scales are similar in both the Departments. They submitted that the pay scale and the post of Sub Engineers in the Special Area Development Authority, Singrouli, in which the respondent No.3 was initially appointed in February 1984 and Sub-Enigneers in the Town Improvement Trust, Rewa, in which the appellants were working since April 1984, were the same. They further submitted that the respondent No.3 was not transferred from the Special Area Development Authority, Singrouli, to the Town Improvement Trust, Rewa, in the year 1987 on his own request but pursuant to the order passed by the authorities. ( 6. ) Mr. Shukla has cited the decision of the Supreme Court in the case of Bimlesh Tanwar Vs. State of Haryana and others ({2003} 5 SCC 604) and in the case of Sub Inspector Rooplal and another Vs. Lt. Governor ({2000} 1 SCC 644) for the proposition that if the Government servant is holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer has to be taken into consideration in computing his seniority in the transferred post because the transfer cannot wipe out his length of service in the post from which he has been transferred. He submitted that the respondent No.3 was transferred from the Special Area Development Authority, Singrouli, to the Town Improvement Trust, Rewa, in the year 1987 and his services in the Special Area Development Authority, Singrouli from 22.2.1984 and till 1987 will, therefore, have to be counted for the purpose of seniority and cannot be wiped out. ( 7. ) It is not disputed that the respondent No.3 had worked in the Town Improvement Trust, Rewa, since 1987 and on abolition of the Town Improvement Trust, Rewa w.e.f. 1.8.1994, has continued to work with the Municipal Corporation, Rewa. If on consideration of these and other relevant facts, the respondents No. 1 and 2 have taken a decision to absorb the respondent No.3 in the services of the Municipal Corporation, Rewa, the order for absorption of the respondent No.3 cannot be held to be arbitrary and illegal. We are, thus, of the opinion that the learned Single Judge was right in not interfering with the order of absorption of the respondent No.3 in the services of the Municipal Corporation, Rewa. ( 8. ) In Sub Inspector Rooplal and another Vs. Lt. Governor (supra), the Supreme Court has held that in law it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then two posts should be equivalent and any rule, regulation and statutory instructions which has the effect of taking the way the service rendered by the deputationist in the parent department while counting the seniority in the integrated cadre would be violative of Articles 14 and 16 of the Constitution of India. In the aforesaid decision, the Supreme Court took a note of its earlier observations in the case of K. Madhavan V. Union of India ({1987} 4 SCC 566) that it will be against all rules of service jurisprudence if the Government servant holding a particular post is transferred to the same or an equivalent post in another government department, if the period of his service in the post before bis transfer is not taken into consideration in computing his seniority in the transferred post. It is in accordance with these principles of service jurisprudence with regard to the fixation of seniority that the Government finally took the decision on 6.1.1999 that seniority of the officers/employees of the Town Improvement Trust and Special Area Development Authority in the Local Self Department who have not been appointed by the Public Service Commission shall be counted from their initial dates of appointments if the post and pay scales are similar in both the departments. ( 9. ) The post and pay scale of respondent No.3 who was appointed as Sub Engineer in the Special Area Development Authority, Singrouli in February 1984 and the post and pay scale of the appellants who were appointed as Sub Engineer in the Town Improvement Trust, Rewa, were the same. The respondent No.3 was transferred from Special Area Development Authority, Singrouli, to the Town Improvement Trust, Rewa, in the year 1987 and not on his own volition but by order passed by the competent authority. If the length of service of the respondent No.3 from February 1984 to 1987 in the Special Area Development Authority, Singrouli was to be ignored for the purpose of determining the seniority of respondent No.3 vis a vis the appellants, obviously the right to equality and equal opportunity in the matter of public employment guaranteed under Articles 14 and 16 of the Constitution of India of the respondent No.3 would be violated. ( 10. ) Moreover, it has been held in Bimlesh Tanwar Vs. State of Haryana and others ({2003} 5 SCC 604) that the seniority of employees working in the Government or other authorities has to be determined on the basis of the statutory rules and where the statutory rules are silent on the basis of the executive or administrative instructions. The statutory rules are silent with regard to determination of seniority of the employees whose services have been taken over by the Municipal Corporation, Rewa and in absence of such statutory rules, the Government has issued executive instruction on 6.1.1999 that the seniority of the officers/employees of the Town Improvement Trust and the Special Area Development Authority in the Local Self Department not appointed by the Public Service Commission will be counted from their initial dates of appointments if the posts and pay scale are the same in both the Departments. Hence, the seniority of the appellants and the respondent No.3 will have to be determined in accordance with the aforesaid executive instructions of the Government issued on 6.1.1999. ( 11. ) For the aforesaid reasons, we do not find any merit in the appeal and accordingly dismiss the same subject to the observations in this judgment. Appeal dismissed.