Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Appeal No. 3099 of 1988, Civil Appeal No. 3100 of 1988

Disposition

allowed

Attorney(S)

Kapil Sibbal and G.L Sanghi, Senior Advocates (Ms Kamini Jaiswal, P.N Puri, R.K Chopra and Ravender Chopra, Advocates, with them), for the Appellant;
V.C Mahajan, Senior Advocate, (S.C Patel, Advocate, with, him) for the Respondents.

Judges

Justice M.M. Dutt
Justice M.H. Kania

Acts

Section 5, Subsection 2 of the 1983 Income Tax Act

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Smart Summary

Supreme Court of India – Chandigarh Administration & Anr. v. K.S. Brar & Ors.

Factual and Procedural Background

Puranjit Singh was appointed as an Assistant Engineer in the Punjab Public Works Department on 15 July 1968. On 7 October 1972 he was deputed to the Engineering Department of the Chandigarh Administration. K.S. Brar, a direct recruit selected through the Union Public Service Commission, joined the Chandigarh Administration as an Assistant Engineer on 24 June 1976.

At the request of Puranjit Singh, the Chandigarh Administration issued an order on 17 June 1978 absorbing him as a Sub-Divisional Engineer. This absorption was formalised in a Gazette notification dated 1 March 1979. A tentative seniority list circulated on 19 November 1979 was finalised on 14 January 1980, granting Puranjit Singh seniority with effect from 7 October 1972 (the date of his deputation).

Brar filed Writ Petition No. 3287 of 1978 in the Punjab & Haryana High Court challenging both the absorption and the seniority granted to Puranjit Singh. The petition was transferred to the Central Administrative Tribunal, Chandigarh Bench, as T.A. No. T-5.CH of 1987. At the Tribunal’s hearing, Brar’s counsel withdrew the challenge to absorption and contested only the seniority.

Ignoring that concession, the Tribunal held on 17 September 1987 that the absorption itself was invalid under Rule 10 of the Punjab Service of Engineers, Class II, PWD (Buildings & Roads Branch) Rules, 1965 (“the Rules”) and directed that Puranjit Singh be placed at the bottom of the relevant gradation list with seniority from 9 February 1979. The Chandigarh Administration and Puranjit Singh obtained special leave; the Supreme Court granted leave and converted the petitions into civil appeals.

Legal Issues Presented

Whether the Central Administrative Tribunal erred in examining the validity of Puranjit Singh’s absorption after the petitioner had expressly abandoned that ground.
Whether, under Rule 12(5) of the Rules, the Chandigarh Administration could lawfully assign seniority to Puranjit Singh from the date of his deputation (7 October 1972) rather than from the date of his absorption (9 February 1979).

Arguments of the Parties

Appellants: Chandigarh Administration & Puranjit Singh

The Tribunal had no jurisdiction to question the absorption once the petitioner withdrew that challenge.
Rule 12(5) empowers the Government, in the interest of public service, to grant a transferred officer seniority from an earlier date, subject to the proviso; the 14-January-1980 notification complies with that rule.
The seniority granted (7 October 1972) is within the permissible limit because it merely credits prior service actually rendered as an Assistant Engineer.
No mala fides or extraneous considerations were shown; public interest was expressly recorded in the notification.

Respondent: K.S. Brar

Puranjit Singh’s transfer was at his own request; Rule 10 permits such transfer only in “special circumstances”, which were neither stated nor proved.
Because the transfer lacked demonstrable special circumstances, seniority should begin only from the date of absorption, placing him below Brar.
Rule 12(5) should not be invoked to the detriment of direct recruits when the transfer itself was irregular.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Supreme Court stressed that the petitioner had expressly abandoned any attack on the absorption order before the Tribunal; consequently, the Tribunal exceeded its remit by resurrecting that issue. For seniority determination, the Court focused on Rule 12(5) of the Rules, which allows Government, “in the interest of the public service and taking into consideration all the circumstances of the case”, to grant a transferred officer an earlier seniority date, provided it is not more favourable than credit for his previous service.

The notification dated 14 January 1980 explicitly recited consideration of public interest, relevant circumstances, and prior representations before fixing seniority from 7 October 1972. That date corresponds exactly to the period of service actually rendered by Puranjit Singh in the equivalent post and therefore satisfies the proviso to Rule 12(5). The Court found no evidence of arbitrariness or mala fide intent; indeed, Puranjit Singh had longer and at least equal qualifications compared with Brar.

The Tribunal failed to refer to Rule 12(5) at all, leading to an erroneous conclusion. Since the order assigning seniority was consistent with the Rule, it was legally sustainable.

Holding and Implications

Appeals Allowed – Tribunal’s decision set aside; validity of the 14-January-1980 seniority order upheld. No order as to costs.

The immediate consequence is that Puranjit Singh retains seniority from 7 October 1972, restoring the pre-Tribunal gradation list. The judgment clarifies the application of Rule 12(5) to transfers effected at an officer’s request but does not announce a new principle of broader precedential value.

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Chief Engineer And Secretary, Engineering Department, For And On Behalf Of Chandigarh v. K.S Brar And Another

M.H Kania, J.— Special leave granted in both the petitions. The Registry is directed to register and number these petitions as civil appeals.

2. These appeals are both directed against a judgment of the Central Administrative Tribunal, Chandigarh Bench, dated 17-9-1987. The appeal arising out of Special Leave Petition No. 15073 of 1987 has been preferred by the Chandigarh Administration, Chandigarh and the appeal arising out of Special Leave Petition No. 11877 of 1987 has been preferred at the instance of Puranjit Singh. Writ Petition No. 3287 of 1978 filed in the Punjab & Haryana High Court was transferred to the said Tribunal and treated as T.A No. T-5.CH of 1987 and it is the judgment of the Tribunal in this petition which is impugned before us. The said writ petition was filed by K.S Brar who is Respondent 1 in Special Leave Petition No. 15073 of 1987 and Respondent 4 in Special Leave Petition No. 11877 of 1987. Puranjit Singh, the petitioner in Special Leave Petition No. 11877 of 1987 was Respondent 4 in the said writ petition and Chandigarh Administration and its officers were Respondents 1 to 3. We propose to refer to the parties by their description in the said writ petition.

3. Respondent 4 was appointed as an Assistant Engineer in the Punjab Public Works Department (Irrigation Wing) on 15-7-1968 on selection through the Punjab Public Service Commission. On 7-10-1972 Respondent 4 was deputed to work with the Chandigarh Administration in its Engineering Department as an Assistant Engineer. On 24-6-1976 the petitioner joined the Chandigarh Administration as an Assistant Engineer as a direct recruit by his selection through the Union Public Service Commission. Respondent 4 made an application, while on deputation with the administration of the Union Territory of Chandigarh, for absorbing him in the cadre of Sub-Divisional Engineers in the Engineering Department at Chandigarh. His request was acceded to by the administration and by an order passed by the Home Secretary on 17-6-1978 he was absorbed in the Engineering Department as a Sub-Divisional Engineer (B&R) in the Chandigarh Administration, working on deputation in the Housing Board, Chandigarh. The order absorbing him as a Sub-Divisional Engineer was incorporated in a Notification dated 1-3-1979, which was duly gazetted. The said notification sets out that the Chief Commissioner, Union Territory, Chandigarh, in consultation with the Union Public Service Commission, New Delhi, is pleased to appoint Puranjit Singh as Assistant Engineer (Civil), Class II, in the Engineering Department of Chandigarh Administration on Buildings and Roads side, by transfer from Punjab, PWD Buildings and Roads Branch, and that his appointment will be subject to further provisions of PWD Class II Rules, 1965 as applicable to the Engineering Department of the Chandigarh Administration. There is no mention of public interest or interest of the service in this order. The consent of the State of Punjab as well as the approval of the Union Public Service Commission with regard to this appointment of Respondent 4 was duly taken. On consideration, a tentative seniority list was circulated on 19-11-1979 inviting objections and after hearing the objections Respondent 4 was granted seniority with effect from 7-10-1972, being the date of his joining as an Assistant Engineer on deputation in the PWD Buildings and Roads Branch of the Chandigarh Administration. The Notification dated 14-1-1980 granting him final seniority sets out inter alia as follows:

“And whereas the Chandigarh Administration considered all the circumstances of the case and keeping the public interest in view, fixed the tentative seniority of Shri Puranjit Singh w.e.f 7-10-1972, the date of his joining as Assistant Engineer in PWD Buildings & Roads Branch . . .

Now, therefore, in pursuance of Rule 12.5 of Punjab Service of Engineers, Class II, PWD (Buildings and Roads Branch) Rules, 1965, the Chief Commissioner, Chandigarh Administration is pleased to order the fixation of seniority of Shri Puranjit Singh as Assistant Engineer w.e.f 7-10-1972 . . .”

4. From this it is clear that Respondent 4 was granted seniority with effect from 7-10-1972 when he was appointed on deputation as Assistant Engineer in PWD (Building and Roads Branch) as stated earlier. The petitioner in the writ petition challenged both the order of absorption of Respondent 4 in the Chandigarh Administration and the order fixing his seniority on the ground that these orders were not in public interest or in the interest of the service. However, at the hearing before the Tribunal, at the very outset, learned counsel for the petitioner made it clear that he was not challenging the absorption of Respondent 4 but only the placement of the petitioner in the seniority list and the assigning of seniority to Respondent 4 from the date he was taken on deputation, namely, 7-10-1972. The contention of the petitioner was that, since Respondent 4 was appointed by transfer to the Chandigarh Administration at his own request, he ought to have been placed at the bottom of the seniority list in the year of absorption and below the petitioner. Curiously, although the challenge to the order absorbing Respondent 4 in the service of the Chandigarh Administration was given up by the petitioner, the Tribunal came to the conclusion, on the basis of Rule 10 of the Punjab Service of Engineers, Class II, PWD (Buildings and Roads Branch) Rules (referred to hereinafter as “the said Rules”), that the order of absorption was not valid as no special circumstances had been set out or shown justifying the same and hence, there was a lacuna in the order. The Tribunal held that, as a result of this, Respondent 4 should be placed at the bottom of the gradation list of officers of his category and granted seniority from the date he was absorbed in the cadre, namely, 9-2-1979. It is against this decision that both, the Chandigarh Administration and Respondent 4, have come by way of these appeals.

5. It was urged by learned counsel for the Chandigarh Administration as well as learned counsel for Respondent 4 that the question of regularity or validity of the order of absorption was irrelevant to the question of fixation of seniority. It was submitted by them that, in view of the challenge to the order of absorption of Respondent 4 having been specifically given up by learned counsel for the petitioner before the Tribunal, it was not open to the Tribunal to consider the question of validity of the absorption at all, and that as per the provisions of sub-rule (5) of Rule 12 of the said Rules the Chandigarh Administration was entitled to assign a seniority to Respondent 4 from a date prior to the date of his absorption in the interest of the public service and after taking into account all the circumstances of the case provided that Respondent 4 could not be granted seniority more favourably than the seniority determined after allowing him credit for the period of service rendered by him in his previous appointment as Assistant Engineer. It was, on the other hand, contended by learned counsel for the petitioner that, as the transfer of Respondent 4 and his appointment as an Assistant Engineer in the Chandigarh Administration was at his own request, he should be placed at the bottom of the seniority list as on the date of absorption.

6. In order to appreciate these respective contentions, it is necessary to set out the relevant provisions. Rule 10 of the said Rules provides for the appointment in Class II service by transfer and reads as under:

“The Government may in special circumstances with the approval of the Commission, appoint an officer to the service by transfer.”

7. Sub-rule (5) of Rule 12 of the said Rules reads thus:

“12. (5) In the case of an officer appointed by transfer as an Assistant Engineer, while normally he would be placed junior to all the officers appointed directly or by promotion as Assistant Engineers in a particular year, the government may in the interest of the public service and taking into consideration all the circumstances of the case, fix his seniority on ad hoc basis:

‘Provided that the seniority thus fixed shall in no case, be more favourable than the seniority determined after allowing him credit for the period of service rendered by him in previous appointment as Assistant Engineer or on a post the duties of which in the opinion of the government are of equivalent or greater responsibility. The decision of government on this point shall be final.’

8. As far as the appointment of Respondent 4 as Assistant Engineer in the Chandigarh Administration is concerned, we must proceed on the footing that it was made at his own request. Rule 10 of the said Rules clearly provided that such an appointment can be made only in special circumstances. In our view, where the request made by the officer concerned is based on circumstances showing the request for transfer is justified this might be looked up as a special circumstance. It was, however, pointed out by learned counsel for the petitioner that the order of appointment by transfer does not refer to any special circumstance and hence, the appointment of Respondent 4 in the Chandigarh Administration by transfer is itself not regular. However, we do not wish to go into the question as to whether such an appointment could be said to be invalid or irregular merely because no special circumstance has been recited in the order because the challenge to the order appointing Respondent 4 by transfer has been specifically given up by the petitioner in the Tribunal. In our view, for the question of determining seniority, what one has to see is not Rule 10 but Rule 12(5) of the said Rules which, in terms, provides that any person appointed to a post in the service in question by transfer can be assigned seniority as of a date earlier than the date of absorption provided this is done in the interest of the public service. The notification dated 14-1-1980 relating to the fixation of seniority of Respondent 4 expressly sets out that the order assigning a higher seniority to him has been passed by the Chandigarh Administration taking into account all the circumstances of the case and keeping in view public interest and after considering the representations made in connection with the tentative seniority list which was circulated earlier. The said notification, in its earlier portion, recites that Respondent 4 was appointed on 15-7-1968 as an Assistant Engineer (Civil) in the Punjab PWD (Irrigation Branch) and that he was appointed as an Assistant Engineer (Civil) in the Buildings and Roads Branch of Punjab PWD on 7-10-1972 through the Public Service Commission and joined on deputation in the Engineering Department of the Chandigarh Administration. By the said order seniority is assigned to Respondent 4 with effect from 7-10-1972 which is clearly within the limits laid down in the proviso to Rule 12(5) of the said Rules. In view of this, the order granting him seniority as aforesaid appears ex facie to be in order. It was urged by learned counsel for the petitioner that, although public interest has been referred to in the said notification, it is clear that this consideration was not in the mind of the Chandigarh Administration at all but the appointment was made to favour Respondent 4. We are afraid that there is no basis on which such a submission can be founded. Respondent 4 was first appointed as an Assistant Engineer through the Public Service Commission in July 1968 whereas the petitioner was appointed to a similar post as late as on 24-6-1976. Respondent 4 was thus holding the post of an Assistant Engineer prior to the petitioner. As far as the qualifications go, it appears prima facie that the qualifications of Respondent 4 are better than those of the petitioner and certainly, not lower than those of the petitioner. No oblique motive for granting a higher seniority to Respondent 4 is shown to us. In these circumstances, it is not possible to say that the order assigning seniority to Respondent 4 as aforesaid has been passed merely under the guise of public interest. In our view, the Tribunal completely failed to notice Rule 12(5) of the said Rules and, probably, it was because of this that it fell into the error of coming to the conclusion that it did. This appears clear from the fact that there is no reference to Rule 12(5) at all in the judgment of the Tribunal.

9. In the result, the appeals are allowed, the judgment and order passed by the Tribunal are set aside and validity of the order dated 14-1-1980 fixing seniority of Respondent 4 is upheld.

10. Looking to the circumstances of the case, there will be no order as to costs.

Chief Engineer And S... v. K.S Brar And Another