This challenge was negatived on the ground of laches and delay.
The petitioner No.
They were appointed by Chief Engineer as temporary Assistant Engineers subject to the final approval of the Government vide Chief Engineer, P.W.D. O.M. dated 10 8 1949.
7 also sent reminders on 2.3.1960 and 3.7.1960.
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.
Petitioner Nos.
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.
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.
1 to 4 were officiating as Superintending Engineers and the respondent Nos.
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.
4 and 5 namely Shri G.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 temporary posts.
The date of companyfirmation of all these petitioners was fixed as 1.4.1956 vide G.O. dated 29.5.1961 .
2 to 7, the petitioner No.
This quota was increased by G.O. dated 1.7.1944 from two to four posts each year two for the P.W.D. Building and Roads Branch and two for the irrigation Branch .
NO.2736 E/8E 1947 dated 2 6 1947.
Rule 6 of the said Rules i.e. United Provinces Service of Engineers Buildings and Road 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.
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.
Similarly, petitioner Nos.
In accordance with the Government orders the opposite parties Nos.
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.
287 of 1971 was also dismissed on the ground of laches and delay as regards the companyfirmation of the appellants was companycerned.
The petitioners were examined by the State Medical Board and all of them were declared fit.
Vide G.O. dated 29.5.1961 the orders for inter se seniority exclusively of petitioners Nos.
3 to 5 and 7 appellant 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.
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 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 and 4 to 12 were then Executive Engineers.
287 of 1971 was filed before the Division Bench of Allahabad High Court.
and 14.5.1958.
1949 securing top positions were appointed in January 1951 as Temporary Assistant Engineers.
5, 6, 9 and 10 were companyfirmed as permanent Assistant Engineers in permanent posts by Gazette Notification dated 9.4.1957.
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.
2254 of 1970 by Shri R.C. Mangal and two others i.e. respondent Nos.
It is specifically mentioned therein that the Government reserved the right to determine the seniority subsequently.
1 to 4 were companyfirmed in 1955 and their seniority was determined by Government Order of 20th July, 1956.
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 20.7.1956 regarding companyfirmation and fixation of seniority.
By Office Memorandum No.
By Gazette Notification dated 7.11.1956 the Government was pleased to issue orders of companyfirmation of the appointment of petitioners Nos.
The appointment of these temporary Assistant Engineers was sanctioned by the Government by its order dated 15 10 1949.
By this Notification the Government reserved the right to determine the seniority subsequently.
The appellant No.
The provisional appointment as temporary Assistant Engineers was approved by the Government vide G.O.NO.89 EBR/2 1947 dated 20 2 1948.
2 and 3 who passed out from the Roorkee University in the year .
Relying on these companytentions it has been urged that the services of the respondent Nos.
The petitioner No.
These appointments were made subject to the final approval of the Government and on their being declared medically fit by the Medical Board.
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.
Thereafter on the advice of the Public Service Commission the Government companyfirmed their provisional appointment as temporary Assistant Engineers vide G.O. No.1427/EBR 2 EBR 1947 dated 16 10 1948.
The petitioners 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.
As numbersteps were taken to companysider the representations and to re determine the date of companyfirmation of the petitioners, the petitioners Nos.
Subsequently, petitioner No.
6 gave reminder in June 1965 and April, 1970.
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.
Seniority of these appellants Nos.
The Government by Gazette Notification No.
These representations were kept pending by the Government and they were number disposed of.
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.
As they were companyfirmed much later than the appellants so their seniority was fixed below that of the appellants.
Similarly, the petitioners Nos.
In the instant case, however, I 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.
The other preliminary objection raised was that if the question of seniority was companysidered it might seriously prejudice the rights of the opposite parties.
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 Road Branch , Class II Rules, 1936.
The reasons therefore would follow.
The appellant Nos.
This objection was duly companysidered by the Court below and it was over ruled.
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.
Similarly, the opposite parties Nos.
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.
1 to 4 who were appointed long after the appointment of the petitioners and the companysequent determination of seniority.
Thus the date of companyfirmation of the petitioners Nos.
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 companypletion of the probationary period they were companyfirmed in 1955 vide Gazette Notification dated 11.10.1955.
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 Ruled, 1936.
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.
2, 3, 9, and 10 did number make any representation in the matter of seniority.
6, 7 and 11 filed writ petition No.
2205 EBR XXIII PWD 16EB 53 dated 11.10.1955 companyfirmed the appointment of the opposite parties Nos.
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 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.
6, 7 and 11 also made representations on 19.8.1959, 5.8.1959 and 23.7.1959 respectively.
1 to 12 vis a vis 39 others including opposite parties Nos.
The opposite party No.
The Government however by G.O. 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.
Against the said order Special Appeal No.
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.
They were companyfirmed vide Gazette Notifications dated 7.11.1956, 19.4.1957 .
3 to 5 and 7 in the permanent post of Assistant Engineers with effect from April 1, 1955.
Thereafter on 20th January, 1950, vide G.O.No.
The appointment of opposite parties Nos.
6 gave a reminder in June 1965 and April 1970.
Under these powers the Government by G.O. 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.
The respondents Nos.
This representation was made on 15.7.1959 and a reminder was also given on 9.8.1960.
4 and 5 made representations in 1959 against the aforesaid seniority list.
At present the appellant Nos.
8 to 13 who were all companyfirmed as permanent Assistant Engineers, were issued by the Government.
2254 of 1970 was moved challenging the companyfirmation of the petitioner Nos.
1 to 3 had been officiating as Additional Chief Engineers.
1933 EBR XXIII PWD/55 dated 20.7.1956, the Government fixed the inter se seniority of opposite parties Nos.
2 to 7 alongwith 18 other officers who were companyfirmed as Assistant Engineers.
1 to 4 appellants in the instant appeal .
1 to 4 was fixed earlier from 1.4.1955 whereas the seniority of the Respondents Nos.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 also sent a representation on 12.9.1963.
All companyfirmations under the rule shall be numberified in the United Provinces Gazette.
The petitioner No.
C. RAY, J. This appeal by special leave arising out of the judgment and order passed in Civil Miscellaneous Writ Petition No.1080 of 1973 by the High Court of Allahabad delivered on 6th May, 1981.
The opposite party No.8 who passed the departmental qualifying examination for promotion to the Service was appointed to a temporary post of Assistant Engineer on 16.4.1949.
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.
In 1959 representations had been made against the determination of seniority in companytravention of the provisions of Rule 23 of the United Provinces Service of Engineers Buildings and Road Branch , Class II Rules, 1936.
Secondly, in 1970 a challenge was thrown in writ petition No.
6, 7 and 11 challenging the order of companyfirmation of the petitioners Nos.
1 to 4 which was made by the Government vide numberification dated 11.10.1955.
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.
Two preliminary objections were raised on behalf of the petitioners about the maintainability of the writ petition before the High Court.
The writ petition No.
There was a further direction for the issue of a writ of mandamus companymanding the opposite party No.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 otter companysequential steps.
4 who was also a permanent Superintending Engineer we were told by the parties at the time of hearing of this appeal, had been promoted and appointed as Additional Chief Engineer.
This reservation was also guaranteed each year to the top students.
An appeal being Special Appeal No.
The opposite parties Nos.
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.
The other petitioner Nos.
The petitioners Nos.1 and 4 to 12 passed the final Civil Engineering Examination of the Thomson College, Roorkee in the year 1948.
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.
The opposite party No.
6 filed another representation.
2 and 3 were officiating as Superintending Engineers but junior to all the four appellants and the respondent Nos.
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.
P. Sen, J. I have had the benefit of going through the draft judgment prepared by my learned brother Ray, J. and I agree with the order proposed to be made.
In view of the importance of the questions involved, I would like to say a few words of my own.
The respondent Nos.2 and 3 who passed the final Civil Engineering Examination of Thomson Colleges, Roorkee in 1946 were appointed as temporary and officiating Assistant Engineers by the Chief Engineer subject to final approval of the Government vide CE P W D CM.
Aggrieved by the order of companyfirmation of the respondents Nos.
The crucial question of companytroversy in this appeal relates to the determination of seniority between the respondent 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.
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.
These provisional appointments were ultimately made final by the Government after the receipt of the approval of the U.P. Public Service Commission in 1950.
