6, 7 and 11 also made representations on 19.8.1959, 5.8.1959 and 23.7.1959 respectively.
1080 of 1973 which gave rise to the Civil Appeal was moved in 1973 challenging the determination of seniority of the appellants in the instant appeal.
The petitioner No.
5, 6, 9 and 10 were companyfirmed as permanent Assistant Engineers in permanent posts by Gazette Notification dated 9.4.1957.
2254 of 1970 in the Allahabad High Court challenging the order of companyfirmation of the respondents and also the companysequential fixation of seniority on its basis.
The system of direct recruitment of such Engineer Students to the two guaranteed posts was however discontinued by its numberification dated June 22, 1950, w.e.f.
1 to 4 appellants in the instant appeal .
8 to 13 who were all companyfirmed as permanent Assistant Engineers, were issued by the Government.
1 and 4 to 12 were then Executive Engineers.
4 and 5 namely Shri C. Gupta and Shri S.P. Goel who passed out from the Roorkee University in 1950 were appointed in 1951 as temporary Assistant Engineers in two tem porary posts.
In accordance with the Government orders the opposite parties Nos.
8 who passed the departmental qualifying examination for promotion to the Service was appointed to a temporary post of Assistant Engineer on 16.4.
It was specifically mentioned therein that numberreservations were to be made in the cadre of the U.P.S.E. Junior Scale B R and Irrigation Branches for students who passed out highest in the final examination of the Civil Engineering Class in 1953 and subsequent years.
1 to 12 as permanent Assistant Engineers in the permanent posts of Assistant Engineers in United Provinces Service of Engineers Buildings and Roads Branch , Class II was fixed at 1.4.1956.
1 to 12 were companyfirmed and duly numberified in the Gazette in 1961 and accordingly by office memo dated May 29, 1961 their inter se seniority was fixed.
This quota was increased by G.o.
2 to 7, the petitioner No.
6 namely Shri S.K. Ojha who was one of the toppers passing out from Roorkee University in 1952 was appointed in October 1953 as a temporary Assistant Engineer.
The petitioner No.
11 and 12 were also companyfirmed as permanent Assistant Engineers in permanent posts in the cadre of United Provinces Service of engineers Buildings and Roads Branch Class II by Notification dated 14 5.1958.
As a matter of policy, the then Provincial Government by a numberification dated August 31, 1942 directed under r. 6 of the Rules that from the year 1942 43, two vacancies in the United Provinces Service of Engineers, both in the Buildings and Roads as well as in the Irrigation Departments, shall be reserved for two students of Thomson College of Civil Engineering, Roorkee who stood first and second in order of merit in the final examination of the Degree Course of Engineering i.e. to the guaranteed posts.
Thereafter on 20th January, 1950, vide O. No 3968 EBR/2 1949 the Government on the advice of the Public Service Commission companyfirmed the provisional appointments of the said petitioners as temporary Assistant Engineers in the Buildings and Roads Branch of United Provinces Service of Engineers.
This reservation was also guaranteed each year to the top students.
A person appointed to a guaranteed post in a particular year however was made junior to all those who were appointed as Assistant Engineers in earlier years, irrespective of whether they were appointed to guaranteed or to number guaranteed posts.
Hence the writ petition was filed by the petitioners claiming the relief of re determination of their seniority in accordance with the rules governing the services of United Provinces Service of Engineers Class II Buildings and Roads Branch as there had been numberdetermination of inter se seniority of the petitioners and the respondents according to Rule 23 of the said Rules.
1933 EBR XXIII PWD/55 dated 20.7.1956, the Government fixed the inter se seniority of opposite parties Nos.
Subsequently, the Government by orders dated November 7, 1956, April 9, 1957 and May 14, 1958 companyfirmed the temporary Assistant Engineers i.e. persons appointed to number guaranteed posts as permanent Assistant Engineers, all w.e.f.
9, 10, 11, 12 and 13 who passed the qualifying departmental examination were appointed under Rule 5 IV and 6 a to the temporary post of Assistant Engineers in 1955.
As numbersteps were taken to companysider the representations and to re determine the date of companyfirmation of the petitioners, the petitioners Nos.
6, 7 and 11 challenging the order of companyfirmation of the petitioners Nos.
The first objection was regarding the delay in making the application challenging the determination of seniority of the petitioners vis a vis the respondents which were determined as early as in 1956, in 1973 i.e. after 17 years.
1 12 and 39 others i.e. the temporary Assistant Engineers.
3 to 5 and 7 in the permanent post of Assistant Engineers with effect from April 1,1955.
The petitioners in the writ petition who are respondents in this appeal were initially appointed as temporary Assistant engineers subject to the final approval of the Government by the Chief Engineer, P.W.D. between 1947 and 1948.
Relying on these companytentions it has been urged that the services of the respondent Nos.
7 namely Shri Brijendra Singh who passed out from Roorkee University Civil Engineering Examination in 1952 was first appointed as a temporary Assistant Engineer on a provisional basis but subsequently as he secured Fourth position in Civil Engineering final examination in 1952 from the Roorkee University he was appointed to the guaranteed post of temporary Assistant Engineer in 1954.
6, 7 and 4 made their representation in 1959 and petitioner No.
The petitioners were examined by the State Medical Board and all of them were declared fit By Gazette Notification dated 7.11.1956 the Government was pleased to issue orders of companyfirmation of the appointment of petitioners Nos.
1 to 4 was fixed earlier from 1.4.1955 whereas the seniority of the Respondents Nos.
2, 3, 9 and 10 did number make any representation in the matter of seniority.
26 of the Constitution in the High Court challenging the impugned order dated October 11, 1955 by which the appellants were companyfirmed w.e.f.
All companyfirmations under the rule shall be numberified in the United Provinces Gazette.
The opposite party No.
dated 1.7.1944 from two to four posts each year two for the P W.D. Buildings and Roads Branch and two for the Irrigation Branch .
Vide G.O. dated 29.5.1961 the orders for inter se seniority exclusively of petitioners Nos.
The said petition was dismissed by order dated 16.4.1971 on the sole ground that the petition was highly belated and the petitioners were guilty of laches and delay in challenging the impugned numberification dated 11.10.1955 and 20.7.
3 to 5 and 7 who are appellants in this appeal were appointed between 1951 and 1952 as temporary Assistant Engineers against guaranteed posts on probation and after companypetition of the probationary period they were companyfirmed in 1955 vide Gazette Notification dated 11.10.1955.
Against the said order Special Appeal No.
Under these powers the Government by G.o.
By a subsequent O. dated June , 1950 the Government intimated the Chief Engineer, Buildings Roads that Engineer Students who were appointed to the guaranteed posts of temporary Assistant Engineers and working in the Buildings Roads Branch be absorbed in the existing permanent vacancies or those which might arise in future.
The appointment of opposite parties Nos.
This challenge was negatived on the ground of laches and delay.
I.P. Gupta, C. Mangal and R.K. Mathur filed a petition under Art.
1 to 4 were officiating as Superintending Engineers and the respondent Nos.
2 and 3 were officiating as Superintending Engineers but junior to all the four appellants and the respondent Nos.
These representations were kept pending by the government and they were number disposed of.
From the Judgment and order dated 6.5.1981 of the Allahabad High Court in W.P. No.
Thereafter the Government duly sanctioned their appointment by order made between 1948 and 1949,subject to the final approval of the United Provinces Public Service Commission.
As such there was numberdetermination on the question of seniority in the cadre itself in the said writ petition and the principles of res judicata were number attracted.
2 to 7 alongwith 18 other officers who were companyfirmed as Assistant Engineers.
On a companybined reading of the impugned orders dated July 20, 1956 and the subsequent order dated May 29, 1961, the appellants i.e. the directly recruited Engineer Students who had passed out from the Thomson College of Civil Engineering, Roorkee University of Roorkee in order of merit i.e. to the guaranteed posts, were placed above respondents number.
to 4 were companyfirmed in 1955 and their seniority was determined by Government order of 20th July, 1956.
Thus the date of companyfirmation of the petitioners Nos.
By order dated May 29, 196 the Government determined the seniority of respondents number.
The writ petition came to be heard by Broome,J. and the learned Judge by his judgment and order dated April 6, 1971 dismissed the writ petition holding that the petitioners were guilty of laches.
Executive Engineers in the years 1960 and 1961.
6 filed another representation.
It is specifically mentioned therein that the government reserved the right to determine the seniority subsequently.
The respondents Nos.
Petitioner Nos.
An appeal being Special Appeal No.
Rule 6 of the said Rules i.e. United Provinces Service of Engineers Buildings and Roads Branch , Class II Rules, 1936 empowers the Government to decide in each case the source from which the vacancy in the cadre has to be filled up.
6 gave a reminder in June 1965 and April 1970.
N. Kacker, G.L. Sanghi and R.B. Mehrotra for the Appellants.
by its judgment dated October 26, 1971.
While this representation was pending, the State Government passed an order dated October 11, 1955 companyfirming the appellants i.e. holders of guaranteed posts w.e.f.
Out of the petitioners of the writ petition, the petitioner Nos.
These appointments were made in accordance with Rule 5 i of the United Provinces Service of Engineers Buildings and Roads Branch , Class Il Rules, 1936.
By this Notification the Government reserved the right to determine the seniority subsequently.
1 to 4 who were appointed long after the appointment of the petitioners and the company sequent determination of seniority.
While the writ petition was allowed in part a writ in the nature of certiorari quashing the gradation or seniority list annexures 1, 2 and 28 to the writ petition, was directed to be issued.
The petitioners Nos.
The Division Bench following the decision of this Court in Rabindra Nath Bose Ors.
The Government by Gazette Notification No.
April 1, 1955 and the companysequential determination of the inter se seniority between direct recruits and promotees vide orders dated July 20, 1956 and May 29, 1961 assigning them higher seniority.
Thereafter on January 20, 1950 the Government in companysultation with the Public Service Commission companyfirmed the provisional appointments of the petitioners as temporary Assistant Engineers and these petitioners have also passed the requisite tests held by the government.
The appointment of these temporary Assistant Engineers was sanctioned by the government by its order dated 15.10.1949.
It was on the other hand, urged on behalf of the respondents who passed civil engineering examination from Thomson College of Engineering between 1947 and 1948 that the appellants did number enter into the Thomson College of Engineering when they were appointed as officiating temporary Assistant Engineers subject to final approval of the Government by the Chief Engineer, P.W.D. between 1947 and 1948.
287 of 1971 was also dismissed on the ground of laches and delay as regards the companyfirmation of the appellants was companycerned.
Two preliminary objections were raised on behalf of the petitioners about the maintainability of the writ petition before the High Court.
CIVIL APPELLATE JURlSDICTION Civil Appeal No.
1, 2, 3, 4, 7 and 8 as permanent Assistant Engineers in permanent posts, in the cadre of United Provinces Service of Engineers Buildings and Roads Branch , Class II.
Seniority of these appellants Nos.
2205 EBR XXIII PWD16EB 53 dated 11.10.1955 companyfirmed the appointment of the opposite parties Nos.
287 of 1971 was filed before the Division Bench of Allahabad High Court.
They were appointed by Chief Engineer as temporary Assistant Engineers subject to the final approval of the Government vide Chief Engineer, P.W D. M. dated 10.8.1949 These appointments were made subject to the final approval of the Government and on their being declared medically fit by the Medical Board.
There was a further direction for the issue of a writ of mandamus companymanding the opposite party No.
The reserved quota of guaranteed posts was later increased by the Government from two to four posts each year in each of the two Branches.
The petitioner No.
7 also sent reminders on 2.3.1960 and 3.7.1960.
I also sent a representation on 12.9.1963.
The Government however by G.o.
The opposite parties Nos.
Aggrieved by the order of companyfirmation of the respondents Nos.
The date of companyfirmation of all these petitioners was fixed as 1.4.1956 vide G.O. dated 29.5.1961 .
It was number till May 4, 1970 i.e. after a lapse of 15 years that respondents number.
v. Union of India Ors.,
It was also mentioned therein that the guaranteed Civil Engineer students who passed from Thomson College of Engineering, Roorkee Roorkee University and who had been working in the Buildings and Roads Branch should be absorbed in the existing permanent vacancies which might arise in future.
The appellant Nos.
This representation was made on 15.7.1959 and a reminder was also given on 9.8.1960.
As they were companyfirmed much later than the appellants so their seniority was fixed below that of the appellants.
The petitioners Nos 1 and 4 to 12 passed the final Civil Engineering Examination of the Thomson College, Roorkee in the year 1948.
6,7, and 11 viz.
In other words, it was tried to be companytended before this Court that the provisional, fortuitous, temporary or officiating appointment of the respondents as Assistant Engineers will number be taken into companysideration in determining their seniority in service unless and until they are duly appointed against permanent posts on probation and are companyfirmed after the successful companypletion of the probation period and on passing of the requisite tests and after their companyfirmation is numberified by the Government in the United Provinces Gazette.
89 EBR/2 1947 dated 20.2.1948.
6 gave reminder in June 1965 and April, 1970.
The other petitioner Nos.
April 1, 1955 in the permanent posts of Assistant Engineers, and later on by order dated July 20, 1956 determined their order of seniority.
Shanti Bhushan, A.K. Gupta, Brij Bhushan, K.C. Dua, Gopal Subramaniam, Pradeep Misra, Mrs. S. Dikshit and Sudhir Kulshreshtha.for the Respondents.
Similarly, the opposite parties Nos.
dated 22.6.1950 abolished the system of guaranteed posts with effect from the batch which was to enter the civil engineering class of the Roorkee University in October 1950.
1080 of 1973 by the High Court of Allahabad delivered on 6th May, 1981.
1, the State Government to prepare a fresh seniority list in accordance with law in the light of the observations made in the said judgment, within a period of three months and thereafter to take other companysequential steps.
Admittedly, respondents number.
By office Memorandum No.
Thereafter on the advice of the Public Service Commission the Government companyfirmed their provisional appointment as temporary Assistant Engineers vide o. No 1427/EBR 2 EBR 1947 dated 16.10.1948.
4 made representation to the Government for re determination of the companyfirmation as well as companysequential determination of seniority of the petitioner vis a vis the respondents.
1 12 and 39 others referable to the date of their substantive appointment.
The writ petition No.
Secondly, in 1970 a challenge was thrown in writ petition No.
In accordance with the provisions of regulation 3 i of the United Provinces Public Service Commission Limitation of Function Regulations, 1941 made by the Provisional Government.
6, 7 and 11 filed writ petition No.
Of companyrse, it had been observed that the seniority in service of these appellants was number questioned in the said writ petition and the Government would companysider the representation made by the petitioners of the writ petition appellants in the instant appeal as far back as in 1959, which were pending before the Government.
1956 regarding companyfirmation and fixation of seniority.
In the instant case, however, l am number inclined to give any relief to the respondents petitioners in the writ petition by directing redetermination of the seniority of the respondents as well as the appellants on the ground of unusual laches and delay.
S. Khanduja, S.K. Passi, Yashpal Dhingra and Mrs. Urmiia Kapoor for the Interveners.
The following Judgments were delivered RAY, J. This appeal by special leave arises out of the judgment and order passed in Civil Miscellaneous Writ Petition No.
dated 31.8.1942 provided that with effect from 1942 43, two vacancies in the Provincial Service of Engineers shall be reserved for the two students of Thomson College of Civil Engineering, Roorkee who passed out highest in the order of merit in the final examination of the civil engineering.
1 to 4 which was made by the Government vide numberification dated 11.10.1955.
The other preliminary objection raised was that if the question of seniority was companysidered it might seriously prejudice the rights of the opposite parties.
Undoubtedly, these appointments were subsequently approved by the Government between 1948 and 1949 in accordance with the provisions of Rule 5 i of the United Provinces Service of Engineers Buildings and Roads Branch Class II Rules, 1936.
They were company firmed vide Gazette Notifications dated 7.11.1956, 19.4.1957 and 14.5.1958.
April 1, 1956.
The respon dents Nos.
2254 of 1970 by Shri R.C. Mangal and two others i.e. respondent Nos.
At present the appellant Nos.
Thus, the appellants who were appointed to the guaranteed posts of temporary Assistant Engineers, as reserved for the top students of Thomson College of Civil Engineering, Roorkee University of Roorkee, companystituted a class apart.
2 and 3 who passed out from the Roorkee University in the year 1949 securing top positions were appointed in January 1951 as Temporary Assistant Engineers.
On the basis of their seniority and in view of their record of service, the appellants had in the meanwhile been promoted as Offg.
1 to 12 of this appeal was fixed below them from 1956 treating the date of companyfirmation in the service as the date of their becoming member of the service.
1 12 who later on were promoted as Offg.
That judgment of his was upheld in appeal by a Division Bench companysisting of R.S. Pathak and N. Seth, JJ.
It appears from the affidavit in opposition sworn by one of the appellants Shri G.C. Gupta that at the time when the writ petition was moved the appellant Nos.
4 and 5 made representations in 1959 against the aforesaid seniority list.
1717 of 1981.
The crucial question of companytroversy in this appeal relates to the determination of seniority between the respondents i.e. petitioners in writ petition who are all appointed as temporary Assistant Engineers in the United Provinces Service of Engineers Buildings Roads Branch and subsequently made permanent therein and the appellants appointed on probation in the permanent posts of Assistant Engineers reserved for toppers of the Thomson College of Civil Engineering later incorporated in Roorkee University and made permanent after expiry of period of probation.
1080 of 1973.
3 to 5 and 7 appellants in this appeal who had been appointed to the guaranteed posts reserved for toppers of Thomson Engineering College, Roorkee did number require companysultation with the Public Service Commission.
The opposite party No.
Similarly, the petitioners Nos.
the year 1953 i.e. the system of direct recruitment of merit scholars to the guaranteed posts was abolished in respect of the batch of students who joined the Thomson College of Civil Engineering, Roorkee University of Roorkee from the month of October 1950, i.e. after the inauguration of the Constitution.
2254 of 1970 was moved challenging the companyfirmation of the petitioner Nos.
The opposite party No.
Similarly, petitioner Nos.
Subsequently, petitioner No.
1 to 12 vis a vis 39 others including opposite parties Nos.
