C.Anil Chandran vs M.K.Raghavan .

2023 INSC 962 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8915 of 2012

C. ANIL CHANDRAN APPELLANT(S)

VERSUS

M.K. RAGHAVAN AND OTHERS RESPONDENT(S)

JUDGMENT

RAJESH BINDAL, J.

1. Challenge in the present appeal is to the order in a Writ

Appeal1 passed by the Division Bench of the High Court2 by which the

judgment of the learned Single Judge passed in W.P. No. 36424 of 2005,

was set aside.

2. Challenge in the W.P. filed by the appellant was to the order

dated 14.03.2005, passed by the Chief Engineer, Irrigation and

Signature Not Verified Digitally signed by SONIA BHASIN Date: 2023.10.31 10:57:54 IST Reason: 1 Writ Appeal No. 1563 of 2010, decided on 27.06.2011 2 High Court of Kerala

1 Administration, Thiruvananthapuram vide which the private-

respondents No. 1 to 4, 7 and 8 were given seniority from back date.

3. Learned senior counsel for the appellant submitted that the

appellant was appointed as Overseer Grade-III in the Irrigation

Department vide G.O. (Rt.) No. 276/89/Co-op dated 16.06.1989, on

compassionate basis. As the appellant was an Engineering Graduate,

he represented to the Government for appointment as Assistant

Engineer (Mechanical). His representation was rejected. O.P. No. 7647

of 1991 was filed praying for setting aside of the order of rejection of

his representation with a further prayer that he should be appointed as

Assistant Engineer with retrospective effect, from the date he was

appointed as Overseer Grade-III. Vide judgment dated 02.07.1992, the

High Court directed the respondents therein to appoint the appellant

as Assistant Engineer instead of Overseer Grade-III from the date he is

appointed on that post. The aforesaid judgment of the learned Single

Judge of the High Court was challenged by the State by filing an intra-

court appeal3. The same was disposed of on 03.09.1994, directing the

Government to appoint the appellant as Assistant Engineer against the

existing vacancy or on the next arising vacancy. He further directed

that the appellant was to be given seniority in the cadre of Assistant

3 Writ Appeal No. 1013 of 1992 2 Engineer from the date of his appointment as such. In compliance to

the aforesaid judgment of the High Court, the appellant was appointed

as Assistant Engineer (Mechanical) in the Irrigation Department vide

G.O. (M.S.) No. 31/95/Co-op dated 01.03.1995.

4. The private-respondents who joined service as Overseer

Grade-I and were holding the qualification of Diploma were promoted

as Assistant Engineer (Mechanical) with effect from 15.03.1995 and

18.03.1995. The next higher promotion from the post of Assistant

Engineer is that of Assistant Executive Engineer, which is stated to be

filled up as per the 2010 Rules.4

5. It was further argued that the Chief Engineer5 vide order

dated 26.04.1996, published the first provisional seniority list of

Assistant Engineers (Mechanical) as on 01.03.1996. It was directed to

be circulated to all concerned and they were given liberty to file

objections if any, within 15 days. In the seniority list, the name of

appellant finds mention at Sr. No. 35 whereas that of the private-

respondent Nos. 4 to 8 were at Sr. No. 37 to 41, respectively. The date

of joining of the appellant as Assistant Engineer (Mechanical) has been

shown as 01.03.1995 whereas that of private-respondents Nos. 4 to 8

4 The Kerala Irrigation Engineering Service Special Rules, 2010 5 Chief Engineer, Irrigation and Administration, Thiruvananthapuram

3 was shown as 18.03.1995, 15.03.1995, 15.03.1995, 15.03.1995 and

15.03.1995, respectively. The respondent No. 3 was not shown in the

seniority list. The private respondents did not file any objection to the

aforesaid tentative seniority list. Vide order dated 18.10.1997, the

respondent No. 2 circulated another provisional seniority list of the

Assistant Engineers (Mechanical) as on 01.09.1997. After considering

the objections raised by the affected persons, final seniority list of

Assistant Engineers (Mechanical) was circulated by the respondent

No. 3 vide order dated 22.11.2001 for the period from 01.04.1990 to

31.12.1998. It was clearly mentioned in the communication that the

same superseded all previous seniority lists published for the period

in this regard. The aforesaid seniority list was prepared category wise,

namely the Graduate Engineer, Diploma Holders and Certificate

Holders. It was for the reason that for the next higher promotion, there

were quotas meant for different feeder cadres. The appellant was

shown at Sr. No. 37 in the category of Graduate Engineers and his date

of promotion as such, was shown as 01.03.1995. The respondents No.1

to 4 were shown at Sr. No. 9 to 12 in the list of Diploma Holders with

their date of promotion as 15.03.1995. The private respondents did not

have any grievance with the aforesaid seniority list as the same was

never challenged by them.

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6. The cases of the Assistant Engineers coming from three

different categories namely Graduate Engineer, Diploma Holders and

Certificate Holders were to be considered for further promotion as

Assistant Executive Engineer. The Chief Engineer vide letter dated

02.04.2003 addressed to all the Chief Engineers, Executive Engineers

and Assistant Executive Engineers called for a list of 20 senior most

Assistant Engineers for furnishing their confidential reports in Form-II

B, for the last three years from 01.01.2000 to 31.12.2002 along with their

service details. The information was required for the purpose of

consideration of their cases for next higher promotion to the post of

Assistant Executive Engineer. The matter was to be placed before the

Departmental Promotion Committee. In the aforesaid list, there were

20 Assistant Engineers (Mechanical). From the list of Degree Holders,

the name of the appellant was mentioned at Sl. No. 18. From the list of

Diploma Holders, the candidates mentioned at Sl. No. 4 to 7 were

shown at Sl. No. 2 to 4 and 20, respectively.

7. It was further argued that in the year 2004, a writ petition6

was filed by the private-respondents in which directions were issued

by the High Court for consideration of their cases for promotion in the

6 Writ Petition (Civil) No. 37212 of 2004- (E) (M.K. Raghavan, Assistant Engineer III vs. State of Kerala) Decided on 21.12.2004.

5 quota reserved for their category. The matter was considered by the

Chief Engineer and disposed of vide order dated 14.03.2005. While

considering the representations and referring to the relevant Rules, the

Chief Engineer directed that K.K. Subramanian, K.S. Badarudeen,

M.K.Raghavan, K.Sureshan, C.Satheesan and K.K. Chandrababu be

granted promotion as Assistant Engineers with effect from 01.08.1993.

However, it was clarified that they will not be paid any arrears on

account of date of re-assignment of date of promotion, though they will

be eligible for fixation of pay.

8. It was further argued that the private respondents knew that

with the order passed in the aforesaid writ petition filed by them, the

appellant will be adversely affected, hence, they had impleaded him

as a party but the fact remains that he was never served with any notice

of the writ petition. Before even re-assigning the date of promotion of

the private-respondents from a back date, which had adversely

affected the chances of promotion of the appellant, he was not afforded

any opportunity of hearing by the Chief Engineer.

9. Immediately after the appellant came to know about the

passing of the aforesaid order dated 14.03.2005, he filed a writ petition6

before the High Court challenging the aforesaid order. The learned

Single Judge allowed the writ petition opining that the seniority list of

6 the Assistant Engineer, as was circulated on 22.11.2001, was the final

seniority list, which was never challenged by the private-respondents

1 to 4, 7 and 8. The same could not have been reopened to the

prejudice of the appellant without even notice to him. Hence, the same

was set aside and a direction was issued for re-assigning the seniority

to the appellant.

10. Aggrieved by the aforesaid order passed by the learned

Single Judge, the respondents No.1 to 4 preferred writ appeal. The

same was allowed by the Division Bench of the High Court holding that

with anti-dating of the promotion of the private respondents from

different dates in the year 1995, to 01.08.1993, the appellant was not

adversely affected. The order passed by the learned Single Judge was

set aside by the Division Bench. The order of the Chief Engineer dated

14.03.2005 was restored. It is the aforesaid order which is impugned in

the present appeal.

11. In the aforesaid factual matrix narrated by learned counsel

for the petitioner, the contention is that the private respondents never

filed any objections to the seniority list of Assistant Engineers as

circulated 2-3 times between 1996-1997. When the final seniority list

was circulated on 22.11.2001, even then the same was not challenged

within a reasonable time. The issue was sought to be raised more than

7 three years later. That too by challenging the final seniority list, when

service records of the eligible candidates for promotion from the post

of Assistant Engineer to Executive Engineer was called for.

12. Further argument was that the private respondents knew

that with the change in the date of their promotion, the appellant was

likely to be affected, hence, they had impleaded him as a respondent

in the writ petition6 filed initially. However, the High Court did not

grant any opportunity to the appellant to put forth his stand. A direction

was issued by the High Court for considering the representation of the

private respondents. Even the Chief Engineer to whom the direction

was given, was not the competent authority for dealing with any such

representation. Learned counsel referred to Rule 27-B of the Kerala

State and Subordinate Services Rules, 1958 to submit that such a

representation could only be made to the Government and not to the

Chief Engineer. Further, the Chief Engineer had also not granted any

opportunity of hearing to the appellant before passing the order dated

14.03.2005. Change in the date of the promotion of the private

respondents from Overseer Grade-I to Assistant Engineer, had

adversely affected the promotional prospects of the appellant. He

further argued that the direction of the High Court was merely for

consideration of the representation of the private respondents and not

8 to grant any relief to them. In case the claim was belated, the same

could have been rejected. At present only C. Satheesan – Respondent

no.3 is in service. All others have retired, including the appellant.

Reliance was placed upon the judgement of this Court in Vinod Prasad

Raturi & Ors. vs. Union of India & Ors., 2021 INSC 157.

13. On the other hand, learned counsel for the State submitted

that the order passed by the Division Bench of the High Court which

has been impugned by the appellant does not call for any interference

by this Court. He further submitted that the State had merely complied

with the direction issued by the High Court in the writ petition6 filed by

the private respondents. As there was an error in the calculation of

quota for grant of promotion to the private respondents from the post

of Overseer Grade-I to Assistant Engineer, the said error was

corrected. The appellant was not going to suffer in any manner for the

reason that for subsequent promotion to the post of Assistant Executive

Engineer, there were separate quotas meant for the Engineering

Graduates and Diploma Holders.

14. With reference to the argument of the appellant that the

private respondents had not raised any objection regarding their

placement in the seniority list, it was submitted that they had made

numerous representations requesting for re-assignment of their date of

9 promotion as Assistant Engineer. As their claim was found to be

meritorious, Chief Engineer had only corrected the error. He relied

upon the judgment of this Court in R.M. Ramual vs. State of

Himachal Pradesh & Ors. (1989) 1 SCC 285.

15. Learned counsel for the respondent no.3 submitted that

wrong benefit was granted to the appellant after he was appointed on

compassionate basis in 1989. Three years later, he was directed to be

appointed as Assistant Engineer which was a promotional post from the

Overseer Grade-III. He further submitted that there are no allegations

by the appellant that respondent no.3 had not filed any representation

against the seniority list. In fact, he had filed several representations

which were not given due consideration. That is why a writ petition had

to be filed. He referred to one such representation dated 26.03.1994

and also the admission made by the State in its counter affidavit filed

before the High Court. He further submitted that the grant of promotion

to the respondent no.3 along with other private respondents from a

back date was nothing else but correction of the error. The next

promotion to the post of Assistant Executive Engineer was not going to

be affected. He relied upon a judgment of this Court in R.M. Ramual’s

case (supra) to submit that promotion can be given from back date and

the seniority list can be challenged even after 11 years.

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16. Heard learned counsel for the parties and perused the

relevant referred records.

17. The fact that presently only the respondent No. 3 is in

service and all others have retired, was not disputed by learned

counsel for the parties at the time of hearing.

18. In our view, if the impugned order is examined on the

principles laid down by this Court regarding a challenge laid to a

seniority list, the same may not be legally sustainable The judgment of

this Court in R.M. Ramual’s case (supra) will not be applicable as it

was a case on its own facts where this Court found that there was no

unreasonable delay in challenging the seniority. In the said case,

though the seniority list was prepared in 1971, however, on acceptance

of the representation made by some of the employees later on, it was

changed, as a consequence of which cause of action arose in favour of

the appellant therein and reckoned from that date onwards, there was

no unreasonable delay.

19. In the case in hand, the seniority list as such was not

challenged by the private respondents. They only made

representations for correction of their dates of promotion as Assistant

Engineer, which was finally accepted by the State on 14.03.2005.

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20. Be that as it may, even otherwise, we do not find that any

case has been made out for interference in the present appeal for the

reason that the appellant has not been able to demonstrate that for the

purpose of promotion from the post of Assistant Engineer to that of

Assistant Executive Engineer, he was likely to be affected by ante-

dating the date of promotion of the private respondents as separate

quotas had been prescribed for promotion to the next higher post for

the categories of Graduate Engineers and Diploma Holders. The 2010

Rules have been placed on record by the appellant along with IA No.

02 of 2017 in terms whereof separate quotas have been prescribed for

Degree Holders and Diploma Holders in the ratio of 8:2. The appellant

undisputedly falls in the category of Graduate Engineer, whereas the

private respondents fall in the category of Diploma Holders. Both are

different streams with different quotas.

21. The appeal is, accordingly, dismissed as meritless while

leaving the parties to bear their own costs.

____________, J.

[HIMA KOHLI]

_____________, J.

[RAJESH BINDAL] NEW DELHI OCTOBER 30, 2023.

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