Abinash Mohapatra vs State of Orissa and Others

R.N. Misra, J.—The Petitioner was appointed as a Sub-Assistant Engineer on 1-6-1966 after obtaining a Bachelor�s Degree in Engineering and came to be known as a Junior Engineer. Opposite parties 3, 4, 5 and 6 were appointed as Sub-AssIstant Engineers on 14-10-1965, 17-12-1965, 13-8-1966 and 14-7-1966 respectively. They were appointed as Junior Engineers on becoming associate members of the Institute of Engineers (India) on 31-7-1966 so far as opposite parties 3 and 4 are concerned and un 13-8-1966 and 12-11-1966 respectively so far as opposite parties 5 and 6 are concerned. Petitioner claims that opposite parties 3 to 6 are all juniors to him in the cadre of Junior Engineers. The Orissa Junior Engineers� Cadre (Recruitment and Condition of Service) Rules, 1972, framed under powers conferred by the Proviso to Article 309 of the Constitution and first published on 16th November, 1972 to take effect from 1st January, 1972, made provision for seniority of officers in the cadre in Rule 16. Sub-rule (2) applied to officers who became members of the Service on the date of commencement of the Rules, because they had been appointed earlier. Sub-rule (2)(d) provides:

(2) The inter-se seniority of Junior Engineers appointed in any year prior to the commencement of these rules shall be determined as follows : namely,

(a) ...

(b) ...

(c) ...

(d) As among Graduate Engineers and Sub-Assistant Engineers who are members of the Institute of Engineers (India) appointed to a cadre in any year, the latter shall en block be senior to the former.

According to Petitioner under this clause of Rule 16(2), opposite parties 3 to 6 would rank above Petitioner without any justification. Therefore, Petitioner challenges the vires of the Rule as being an arbitrary provision.

A counter affidavit has been filed on behalf of opposite parties 1 and 2 wherein the stand of Petitioner has been disputed.

Undoubtedly, opposite parties 3 and 4 joined the Subordinate Engineering Service earlier than Petitioner. But while Petitioner became Junior Engineer on 1-6-1966, opposite parties 3 to 6 came to be appointed as Junior Engineers subsequently. Ordinarily, the basis for computing seniority is the length of service, that is, date of joining the service provides the foundation for its computation. It is settled beyond dispute that it is open to the employer-Government to prescribe the mode of computation of seniority. It is equally settled in law that a large amount of freedom is enjoyed by the employer-Government in the matter of indicating the guideline in the matter and the exercise of power in a given case is open to attack only on the ground of arbitrariness. Petitioner�s challenge to the vires of this clause of the sub-rule is mainly on that ground. To support such a contention, Petitioner has taken the stand that membership of the Institute of Engineers (India) is secured on payment of membership fee and there is no nexus in making seniority dependant upon membership of such an institution. According to Petitioner, the Bachelor�s Degree in Engineering is superior to membership of the Institute of Engineers and, therefore, to add weightage to the membership of the Institute for deviating from the ordinary rule of seniority is unwarranted.

Opposite parties, on the other hand, have taken the stand that for associate membership, examinations under two Sections called A and B are prescribed and one of the qualifications for membership is passing of such examinations. In support of this stand the Bye-laws of the Institute appearing in the Directory of 1967-68 have been placed before us.

The allegations on both sides on the point are such that it is very difficult for us to decide whether associate membership of the Institute should have a premium in the matter of determining seniority. That there are examinations prescribed for associate membership and it is not obtained automatically on payment of some money by way of fees seems to be beyond the range of dispute. Out of experience, Government have found that members of the Institute deserved recognition. It is not for us to examine the propriety of this prescription.

Reference may be made to Rule 6 of the 1972 Rules which prescribes the conditions of eligibility. Clause (d) is to the following effect:

He must

(i) hold a degree in Engineering in the concerned subject (i.e.) Civil, Electrical or Mechanical from a recognised University in India or

(ii) have passed Sections A and B of the Associate membership of the Institute of Engineers (India) or

(iii) hold a degree or diploma from one of the Universities of Engineering Colleges in other countries which has been declared as equivalent to a degree in Engineering.

Rule 6 clearly recognises the membership of the Institute as a qualification for recruitment to the cadre. Clause (d) of Rule 16(2) relates to cases of Graduate Engineers on one side and Sub-Assistant Engineers who become members of the Institute of Engineers (India) on the other. Admittedly opposite parties 3 to 6 became associate members of the Institute in 1966 though on different dates and Petitioner came to be appointed as a Junior Engineer in 1966. Therefore, inter se seniority between Petitioner and opposite parties 3 to 6 would be determined by Rule 16(2)(d) of the Rules. We do not find anything wrong in the Rule and there is no foundation for the claim of Petitioner that the provision is arbitrary. This case must, therefore, be disposed of on the principle that the employer-Government has power to prescribe the rule of seniority and so long as such rule is not arbitrary it is not open to attack. Since we do not find the provision to be arbitrary, Rule 16(2)(d) which is the Rule to hold the field must apply and Petitioner has no grievance to make. The writ application fails and is dismissed, but without costs.

K.B. Panda, J.

I agree.