1. The petitioner, an Executive Engineer (Designs) M.G Basin at Raipur, feels aggrieved by the gradation list of Executive Engineers published on 22-8-1979 and challenges its legality in this petition filed under Article 226 of the Constitution of India.

2. The petitioner is a direct recruit as an Assistant Engineer, having joined the said assignment on 27-11-1961. He was confirmed as an Assistant Engineer with effect from 6-10-1968. The petitioner, unfortunately, could not be promoted as an Executive Engineer in his turn and was superseded by several persons who were junior to him in the cadre of Assistant Engineer. However, all these persons, including the petitioner, are still officiating in the cadre of Executive Engineer. They have, however, been shown senior to the petitioner in the said gradation list. The submission of the petitioner is that the seniority in the cadre of Executive Engineer should count not from the date of their officiating promotion in the said cadre, but be the same as in their substantive cadre of Assistant Engineer. In other words, the claim of the petitioner is that even though he has been promoted as an Executive Engineer after those Assistant Engineers who were junior to him in the cadre of Assistant Engineer, yet his seniority in the Executive Engineer's cadre should remain the same as in the substantive cadre. Reliance is placed on Rule 12(c) of M.P Civil Services (General Conditions of Service) Rules, 1961, (hereinafter referred to as the Rules). Reliance is also placed on a decision of this Court in Umesh Narayan Mishra v. State of M.P M.P No. 181 of 1982 decided on 15-3-1984

3. Rule 12(c) of the Rules, which is relevant for our purposes, reads as follows:—

“(c) Officiating Government Servants.— The inter se seniority of Government servants promoted to officiate in a higher service or a higher category of posts shall, during the period of their officiation, be the same as that in their substantive service or grade irrespective of the dates on which they began to officiate in the higher service or grade.”

This rule, according to the petitioner, should be interpreted to mean that inter se seniority of promoted Government servants, as long as they are not confirmed in the promoted cadre, should remain the same as in the lower cadre — irrespective of the date of their promotion. In other words, in case a junior in the substantive lower cadre is found fit and promoted, he should not get the benefit of continuous officiation in the higher cadre. To illustrate the petitioner claims to be senior to large number of Assistant Engineers in the said cadre who were promoted as Executive Engineers before him. In case, the seniority in the promoted cadre of Executive Engineers has to be counted from the date of promotion or continuous officiation, the petitioner would not be senior to them, but in case the inter se seniority of the petitioner and these earlier promoted Executive Engineers is to remain the same as in the cadre of Assistant Engineers, the petitioner even though promoted late, would still be senior as an Executive Engineer and would be entitled to be considered for further promotion in preference to these persons. The respondent-State has, however, not accepted this interpretation of Rule 12(c) and has prepared the list based on the date of promotion, which, according to them, is the only legal and constitutional method of determining seniority.

3A. It is now well-settled as a result of several decisions of the Supreme Court and this Court that in the absence of any statutory rule or executive memorandum or order laying down a rule for determining seniority in a grade, the normal rule applicable would be to determine seniority on the basis of length of continuous officiation in service—(See: B.S Gupta v. Union of India (1975) 3 SCC 116 , AIR 1974 SC 1618 at p. 1624). In N.K Chauhan v. State of Gujarat (1977) 1 SCC 308 , AIR 1977 SC 251 it was held as under:—

“Seniority, normally, is measured by length of continuous officiating service — the actual is easily accepted as the legal.”

This was further reiterated in S.B Patwardhan v. State of Maharashtra (1977) 3 SCC 399 , AIR 1977 SC 2051 as under:—

“——————————— all other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities.”

Even in an earlier case of A.K Subraman v. Union of India (1975) 1 SCC 319 , AIR 1975 SC 483 the Supreme Court had followed this principle when it held that:—

“… when Assistant Engineers (Class II) are initially appointed in a regular manner in accordance with the rules to officiate as Executive Engineers, their seniority in service in Grade I will count from the date of their initial officiating appointment, as Executive Engineers was within their quota.”

These principles have been recently applied in A. Janardhana v. Union of India (1983) 3 SCC 601 , AIR 1983 SC 769 and the following observations made:—

“It is well recognised principle of service jurisprudence that any rule of seniority has to satisfy the test of equality of opportunity in public service as enshrined in Article 16. It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16. ——————.” (para 28).

Two recent decisions in P.S Mahal v. Union of India (1984) 4 SCC 545 , AIR 1984 SC 1291 and G.P Doval v. Chief Secy., Govt. of U.P (1984) 4 SCC 329 , AIR 1984 SC 1527 also emphasize the above mentioned rule. Any understanding of this law must, therefore, yield the following two conclusions, viz.,

(i) in the absence of any binding rule of seniority, the length of continuous officiation is the only valid principle of seniority; and

(ii) a rule relating to seniority has to be reasonable, fair and not grossly unjust in order to survive the test of Articles 14 and 16 of the Constitution and every determination of seniority and every rule governing seniority must stand the test of these principles. Anything repugnant to these principles must consequently be treated illegal and set aside.

4. Let us then judge the correctness of the petitioner's interpretation of Rule 12(c) of the Rules on the touchstone of these principles. The necessary consequence of accepting the petitioner's interpretation would be that a Government servant, who is found unfit for promotion to the higher cadre, would be treated as senior to the Government servant who has been found fit for such promotion in case he was senior in the lower cadre and would, thereby, get preference in future promotion. This would amount to giving preferential treatment to an unsuitable person. This is neither the intention of the Rule, nor such a result can be reasonably expected to flow from it. Any rule which gives preference to unsuitables over suitables, cannot be held to be reasonable and fair so as to survive the test of Articles 14 and 16 of the Constitution. Indeed, such a preference would hit at the very root of these articles and would otherwise be grossly unjust and unreasonable. Clearly, therefore, the petitioner's interpretation of the Rules would make the Rule itself unconstitutional being violative of Articles 14 and 16 of the Constitution. It is the settled principle of interpretation that the interpretation which would make the law invalid and void, should be avoided and another interpretation which would make the Rule valid, should be preferred. Not only this, the Courts have permitted adding words in a statute in order to make it meaningful. The first principle is amply stated in the Privy Council's decision in Macleod v. Attn. Gen for N.S.W 1891 AC 455 (PC). The ratio of this Privy Council case has been followed by the Federal Court In re The Hindu Women's Rights to Property Act AIR 1942 FC 72. Our Supreme Court has also followed this principle in Amritsar Municipality v. Punjab 1969 ASC 1100 and M.P v. C.J Patel 1972 ASC 971. The law regarding supplying by implication words which appear to have been accidentally omitted in order to make statute meaningful, has been stated by the Supreme Court in Siraj-Ul-Haq Khan v. S.C Board of Waqf AIR 1959 SC 198. Clearly, therefore, this Court is under constitutional obligation to adopt an interpretation of the rule which not only upholds its constitutionality, but also makes it meaningful and workable.

5. Taking note of the aforesaid constitutional obligation, let us find out if the petitioner's interpretation is the only interpretation of the Rule or if there could be any other interpretation of the same. The Rule is, no doubt, in artistically worded and can be read in the manner as the petitioner is reading it, but on a deeper understanding, the said reading does not appear to be correct. The use of the words “inter se seniority” in relation to promotion, would only imply determination of seniority between those who have been promoted at the same time. If so read, the rule would mean that seniority of persons promoted together, would remain the same as in the lower cadre as long as they are officiating in the higher cadre. Such a reading of the rule would avoid unreasonableness and the consequent unconstitutionality and would make the rule fully and effectively workable. The submission of the learned counsel for the petitioner, however, is that such a reading would bring the first part of the rule in conflict with the second part which requires the seniority to remain the same as in the lower cadre “irrespective of the dates on which they began to officiate in the higher service of grade.” It is true that the subsequent part of the rule, if read as the petitioner wants it to be read, would make the earlier interpretion unworkable, but the petitioner's reading of the earlier part of the rule does not appear to be correct. Several persons may be promoted together and yet may not join the promoted cadre on the same date. It is not unusual to find persons who, though promoted, are not relieved due to administrative exigencies to take up higher assignment immediately. If this was to affect their seniority, they would suffer for no fault on their part. In such a case, the normal rule of counting the seniority from the date of continuous officiation, would result in injustice and would become unreasonable. Under the circumstances, the rule, in order to survive the test of Articles 14 and 16 of the Constitution, should be read to mean that seniority between persons promoted together to officiate in higher cadre, would be the same as in their substantive cadre—irrespective of the date from which they joined their service in the promoted cadre. This reading of the rule makes it just and proper and brings it in line with the law on the subject. This interpretation of the rule would lead to an inevitable conclusion that the petitioner's claim to his seniority is devoid of any substance and is not supported by Rule 12(c) of the Rules.

6. The decision of this Court in Umesh Narayan Mishra's case (supra), is said to be supporting the submission of the petitioner and, hence, may be examined. In the said case, this Court was considering the seniority of Extra Assistant Conservator of Forest, who had been promoted to that cadre on an officiating basis. The seniority list was prepared on the basis of directions contained in a memo dated 8-2-1978 and not on the basis of Rule 12(c) as in existence. The said memo had the effect of enforcing a decision to amend Rule 12—without actually affecting the amendment. The ambit and scope of Rule 12(c) was not examined in the aforesaid case as it was accepted that the list was not prepared in accordance with Rule 12(c). This Court, therefore, quashed the list. The said decision is, therefore, not an authority for deciding the real meaning, scope and ambit of Rule 12(c) of the Rules. Indeed, in the instant case, the respondents claim that the seniority list is prepared in accordance with Rule 12(c). Under the circumstances, the aforesaid judgment does not help the petitioner in any manner.

7. The petition, consequently, fails and is dismissed. No order as to costs. The outstanding amount of security deposit, if any, shall be refunded to the petitioner.

Petition dismissed.