judgement:
: Criminal Appeal No. 36 of 1979.
From, the judgement and Order dated 17.11.1978 of the Madhya Pradesh High Court in Criminal Appeal No. 477 of 1973.
A.N. Mulla, Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellants.
B.Y. Kulkarni and Uma Nath Singh for Respondents.
The Judgment of the Court was delivered by section RATANAVEL PANDIAN, J.
The two appellants, namely, Chandra Mohan Tiwari and Ram Pal Singh Sengar have filed this criminal appeal challenging the correctness and legality of the judgment and order dated 17th of November 1978 of the High Court of Madhya Pradesh at Jabalpur rendered in Criminal Appeal No. 477 of 1973, whereby the High Court has allowed the appeal preferred by the State by setting aside the order of acquittal passed by the Trial Court and convicted the first appellant under Section 302 IPC and the second appellant under Section 302 read with 34 IPC and sentenced each of them to imprisonment for life.
The matrix of the case which has led to the filing of this appeal briefly stated is as follow: PW 6 Ahiwaransingh was at the material time, a compounder in the Veterinary Hospital, Budhni.
He was residing in one of the quarters situated in the compound of the Veterinary Hospital.
On the opposite side of compound there are Government quarters.
One of which was occupied by appellant Ram Pal Singh (Appellant No. 2), who was serving as Gram Sevak in the Block Development office.
He is married and distantly related to PW 6.
The first appellant Chandra Mohan Tiwari was wielding high influence in that locality and was well known to the members of the family of PW 6.
It appears that he contested the election to the Legislative Assembly from Budhni constituency.
The members of the family of PW 6 included PW 5, the Deceased Saroj aged about 16 years, who are PW 6 's wife and eldest daughter respectively.
PW 6 had settled the marriage of his daughter Saroj at Dahiyapur, Etawah District (U.P.).
On 24.5.1970 he along with his deceased daughter, Saroj, left Budhni for Bhopal enroute to Dahiyapur.
At Bhopal he stayed with his relative by name Arjun Singh.
On 25.5.1970 at 318 about 11.00 A.M. PW 6 had gone to the market leaving Saroj alone in the house.
According to the prosecution, the second Appellant came to the house of PW 6 and told Saroj that her father wanted her presence for selection of clothes.
Saroj believing the words of second appellant and without entertaining any doubt on the representation of the second appellant accompanied him in a jeep which was driven by the first appellant.
Then she was taken to a house where she was wrongfully confined for about two and a half months.
During this period both the appellants are stated to have forcibly committed sexual intercourse with Saroj.
PW 6 lost his nerve on the sudden disappearance of his daughter, but he instead of lodging a report with the police, which evidently he thought would adversely affect the future life of his daughter and her impending marriage and also bring the family in disrepute, unsuccessfully made a frantic and intensive search for his daughter.
Then he lodged a report exhibit P/10 on 3.8.1970 at the Police Station of Mangalwara, alleging that he had reason to believe that Saroj might have been kidnapped by both the appellants.
The police did not take any prompt action on the report.
By that time, the appellants, on coming to know of the lodging of the report, devised a plan fore stall any action being taken against them.
The second appellant took Saroj in a taxi to Hoshangabad and left her near the police station with an instruction to lodge a false complaint at the police station that she was kidnapped from Bhopal on 25.5.1970 by one Ramnath and Indrasen and was wrongfully confined by them.
She was also threatened that the appellants would be keeping a watch over her and that in case she divulged the truth, serious consequences would follow.
As instructed by the second appellant, Saroj lodged a complaint exhibit D/15 on 9.8.1970 at Hoshangabad Police Station.
However, when she was taken to the Police Station, Mangalwara in connection with the report, lodged by her father (PW 6) she told the entire truth to the police and her parents.
Even then no progress was made in the investigation on the report of PW 6 at Mangalwara.
So PW 6 made a fervent plea to the then Chief Minister of the State and requested him to take action in the matter.
It was only thereafter, on the instructions of the higher authorities wheels of investigation started moving on.
The police after completing the investigation filed the charge sheet before the Additional District Magistrate (Judicial) Bhopal against both these two appellants for offences punishable under Section 363, 366 and 376 IPC.
The victim Saroj, when examined before the Magistrate on 12.7.1971 stated in her statement exhibit P/25 that she was kidnapped by both the appellants and wrongfully confined and also subjected to sexual inter course and that she lodged the false report exhibit D/15 at the Hoshangabad police station under duress and as instructed by the second appellant 319 herein.
The Magistrate discharged the first appellant, and committed the second appellant alone to take his trial.
On a revision preferred against the order of discharge of the first appellant both the appellants were put up for trial before the third Additional Sessions Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 for offences punishable under sections 363, 366 and 376 IPC.
During the said trial both appellants were on bail.
The case was fixed for recording evidence from 21.8.1972 on which date the victim Saroj was to be examined as a prosecution witness.
While the matter stood thus, according to the prosecution, on 20.6.72 Saroj lodged a report exhibit P/7 at Budhni Police Station complaining that the second appellant had forcibly entered into the backyard of her house, but took to his heels when she raised a hue and cry.
In the above background, the present occurrence had occurred on the intervening night of 20/21st August 1972.
The prosecution case is that on that fateful night the first appellant armed with a pistol and the second appellant with a `farsa ' entered into the house of PW 6 through the main door which was kept ajar by PW 5 who went out of the house of answer call of nature inside the compound and that the first appellant fired a shot which hit on the chest of the victim Saroj, who was then in her bed and caused her instantaneous death.
Both PWs 5 and 6 identified the appellants as the assailants.
PW 6 tried to chase the appellants, but he stumbled near the gate of the compound and could not apprehend them.
The distress cries of PWs 5 and 6 attracted the neighbours to the scene.
PW 6 narrated the incident to PWs 1 and 2 by mentioning the name of the appellants as the assailants and requested PW 1 to lodge a report at the police station.
Accordingly, PW 1 lodged the First Information Report exhibit P/1 at 1.30 A.M. PW 18, the investigating officer took up the investigation during the course of which he inspected the scene of the occurrence, held in quest and then sent dead body to the hospital for necropsy.
On the next day i.e. on 21.8.72 both the appellants were arrested when they had come to attend the hearing of the case of kidnaping and rape.
After completing the investigation both the appellants were put up for trial.
The Sessions Judge of Indore found both appellants not guilty of the offence of murder and consequently acquitted them.
Feeling aggrieved by the judgment of the Trial Court, the State preferred the appeal before the High Court, which for the detailed discussion made in its judgment held that the prosecution has satisfactorily established the guilt of both appellants beyond all reasonable doubts, allowed the appeal by setting aside the judgment of the Trial Court acquitting the appellants and convicted the first appellant under section 302 and the second appellant under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life.
Hence the present appeal is preferred by the appellants on being aggrieved by the impugned judgment of the High Court.
320 Mr. A.N. Mulla, the learned Sr. Counsel appearing on behalf of the appellants after taking us in detail through the judgment of the courts below, evidence of the prosecution as well as the defence witnesses and in particular exhibit D/15, the First Information Report dated 9.8.70 relating to the offence of kidnaping and rape registered on the basis of the complaint given by the deceased Saroj at Hoshangabad Police Station, vehemently submitted that the prosecution has miserably failed to prove the motive for the occurrence.
The learned counsel perfervidly advanced his argument inter alia contending that the High Court has erred in reversing the judgment of the Trial Court based on well reasoned and considered findings of fact, ignoring the settled principles of law as laid down by this Court as regards the scope of interference of the High Court in an appeal preferred against an order of acquittal, that the evidence of PWs 5 and 6 who had developed rancur and were inimically disposed towards the appellants ought not to have been accepted and implicitly relied upon as their testimony is highly tainted with interestedness, that the contents of exhibit D 15 whereby the deceased had implicated Ram Nath Singh and one Indra Sen as assailants of kidnaping belie the version of PWs 5 and 6 and negative the prosecution story as far as the motive is concerned, that the evidence of PWs 5 and 6 suffers from the vice of discrepancies and incongruities, that the non recovery of any `lota ' (a small vessel) from the place where PW 5 was easing as well as the non marking of the place where the said vessel was kept in the site plan falsify the evidence of PW 5 that she opened the door and went near the compound wall to answer call of nature , that the recovery of two bullets from the scene is an indication of the fact that there should have been two shots, that there was delay in laying the complaint, that the unchallenged claim of the appellants that they were in Bhopal clearly shows that the appellants would not have come to Budhni from Bhopal that too at the odd hours with an anticipation that the door of the scene house would be kept open.
The learned counsel further submits that had the appellants come to the scene house to assassinate the victim Saroj, they would not have exposed themselves without covering their faces so that their identity could not be established and that the life of the girl might have been put to an end by inmates of the said house, particularly her father on account of some conspiracy since the victim girl wanted to have the case of kidnaping and rape not to be proceeded with.
Before adverting to the contentions, urged by the learned counsel, we would like to briefly state the legal position regarding the right of appeal of an accused person sentenced to imprisonment for life by the High Court after reversing the order of acquittal and the scope of interference in such appeal by this court.
The present appeal is under Section 379 321 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the `code ') and Section 2(a) of the of 1970 (hereinafter referred to as `the Act of 1970 ') Section 379 of the Code contemplates that where the High Court has, on appeal, reversed an order or acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for the term of ten years of more, that person may appeal to the Supreme Court.
This section in newly introduced in the Code of 1973 (Act 2 of 1974) on the recommendation of the Law Commission of India in its 41st Report.
Article 134 (1) (a) of the Constitution envisages that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of the High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death.
To say in other words under Article 134 (1) (a) the absolute right of appeal to the Supreme Court is restricted only to cases where the High Court reverses an order of acquittal passed by the Trial Court and awards the sentence of death.
The right of appeal is also extended under Article 134 (1) (b) to cases where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death, which type of cases are rare and infrequent occurrence.
Under clause (c) of the above said Article an appeal lies to the Supreme Court on a certificate under Article 134 A by the High Court certifying that the case is a fit one for appeal to the Supreme Court but, of course, subject to the proviso to Article 134 (1).
In this connection, it is pertinent to note that the Government of Madras (as then called) expressed its view that the limited right of appeal now conferred in case of the persons sentenced to death by clauses (a) and (b) of Article 134 (1) should be enlarged and that in all cases in which the accused persons are sentenced to death, there should be a right of appeal to the Supreme Court without the need of a certificate from the High Court.
This view was rejected by the Law Commission of India in its 14th Report stating that even in cases not covered by clauses (a) and (b) of Article 134 (1) the High Court has the power to certify the case as a fit one for appeal to the Supreme Court under Clause (c) and further there is also the safeguard provided by the wide powers of the Supreme Court under Article 136 which confers a discretionary power on the Court to interfere by granting special leave to appeal in suitable cases including cases where the High court has refused to grant Certificate for appeal under Article 134 (A).
See the decision of the constitution Bench in Tarachand vs State of Maharashtra ; = ; and the later decision in Krishan and others vs State of Maharashtra.
322 To avoid proliferation we are not citing all the decisions on this aspect.
The reason, given by the Law Commission in its 14th Reports (Volume I at page 52) for rejecting the view of the Government of Madras is as follows: "We are not inclined to accept this view.
For over a century such cases have been dealt with by the High Courts subject to the superintendence of the Privy Council under its special leave jurisdiction and there is no reason why the High Courts should not continue to deal with such cases in the same manner.
" In 1968 a Private Member 's Bill was introduced in Parliament which proposed that the limited jurisdiction of the Supreme Court contemplated under Article 134 (1) (a) and (b) should be enlarged to cover cases where the High Court has, after reversing an order of acquittal, sentenced a person to imprisonment for life or for 10 years or more.
Be that as it may in its 41 st Report, the Law Commission expressed its view that the limitation of the right of appeal under Article 134 (1) (a) and (b) applies only to cases of death but not to cases of imprisonment for life awarded by the High Court or appeal against acquittal and that limitation "is too stringent and not easily justifiable and that the convicted persons ought to have a right of appeal in such cases".
The Law Commission, at the same time, was not in favour of extending this right of appeal in which the High Court has on appeal against acquittal sentenced a person to imprisonment for a term of 10 years or more, and proposed a new Section 417 B restricting such appeal to the Supreme Court only in cases of sentence of imprisonment for life.
While so, the Joint Select Committee by its report dated 4th December, 1972 drafted clause 379 (original clause 389) of the Code of Criminal Procedure Bill 1970 (page xxvi) which reads thus: "The amendment has been made to bring the provision of the clause in line with the provisions of the .
Vide the 14th Report of the Law Commission (at page 52) and the 41st Report of the Law Commission (paragraphs 31.65 to 31.69 at pages 281 283).
Section 2 of the Act of 1970 reads thus : 2.
Enlarged appellate jurisdiction of Supreme Court in regard to criminal matters.
Without prejudice to the powers conferred on the Supreme Court by clause (1) of article 134 of the Constitution, an appeal shall lie to the Supreme Court from any judgment, final order of sentence in a criminal proceeding 323 of a High Court in the territory of India if the High Court (a) has an appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years ; (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years.
" The right of appeal under the above Section to the Supreme Court is an addition to those provided under Article 134 (1) of the Constitution.
In cases which do not come under clauses (a) and (b) of Article 134(1) or under the Act of 1970 or Section 379 of the Code an appeal does not lie as of right to the Supreme Court against any order of conviction by the High Court.
In such cases, appeal will lie only if a certificate is granted by the High Court under sub clause (c) of Article 134 (1) certifying that the case is a fit one for appeal to the Supreme Court or by way of special leave under Article 136 when the certificate is refused by the High Court.
See Mahebub Beg and others vs State of Maharashtra, (S.C.) CR.
A 120/64 dated 19.3.1965 reported in and Babu vs State of U.P. ; = ; The resultant position of law from the conjoined reading of the above provisions of the Constitution, the Act of 1970 and the Code of Criminal Procedure is as follows: (1) Under sub clause (a) of Article 134(1) an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced him to death.
(2) Under sub clause (b) of Article 134 (1) an appeal lies as of right to the Supreme Court in a case where the High Court has withdrawn the case for trial before itself from any court subordinate to its authority and sentenced him to death.
(3) Under Section 2 (a) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or imprisonment for a period of not less then 10 years 324 (4) Under Section 2 (b) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or imprisonment for a period of not less than 10 years.
(5) Under Section 379 of the Code, which is now newly introduced in line with the Constitutional provisions of Article 134 (1) (a) and (b) and with Section 2 of the Act of 1970, an appeal lies as of right to the Supreme Court in a case where the High Court has on appeal reversed an order of acquittal of an accused person and convicted and sentenced him either to death or to imprisonment for life or imprisonment for a term of 10 years or more.
(6) In cases not covered by Article 134 (1) (a) and (b) or Section 2 (a) and (b) of the Act of 1970 or by Section 379 of the Code of Criminal Procedure an appeal will lie only either on a certificate granted by the High Court under Article 134 (1) (c) or by grant of special leave to appeal by the Supreme Court under Article 136.
The right of appeal given under Section 379 of the Code is in line with Article 134 (1) (a) and (b) and Section 2 (a) and (b) of the Act of 1970.
This Court in Podda Narayana and others vs State of Andhra Pradesh ; = [1975] (Supp) SCR 8 had an occasion to examine the scope of Section 2 of the Act of 1970 and held thus : "As the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Additional Sessions Judge the appeal to the Supreme Court lies even on facts and as a matter of right under Section 2 of the ".
M.H. Beg, J. as he then was, speaking for the Bench in Ram Kumar Pande vs The State of Madhya Pradesh, ; = ; observed as follow. "Strictly speaking, no certificate of the High Court is required for such an appeal where an acquittal has been converted into a conviction under section 302/34 I.P.C. and a sentence of life imprisonment imposed upon an accused person.
The appeal in, such a case, lies as a matter of right to this Court under the Act of 1970.
" 325 This Court in Rajendra Prasad vs State of Bihar, ; = ; while disposing of an appeal preferred under Section 2(a) of the Act of 1970 laid down the following dictum: "Thus when two courts, have come to a different conclusion on the same evidence, we had ourselves to go through the entire evidence carefully in order to see whether the appreciation of the evidence by the Sessions Judge was so unreasonable and unrealistic as to entitle the High Court to interfere with the same.
" In Kishore Singh and another vs The State of Madhya Pradesh, AIR 1977 S.C. 2267 = ; the following view similar to the one taken in Ram Kumar Pande 's case was reaffirmed and it read thus : "The High Court is not right in holding that a certificate is necessary under Article 134 (1) (c) of the Constitution if the appellants have a right of appeal under Section 2 of the Act." In Ram Kumar Pande 's case, the jurisdiction of the Supreme Court to interfere in a judgment of the High Court reversing the acquittal of the Trial Court and convicting the accused person and sentencing him to life imprisonment, in respect of which an appeal to the Supreme Court lies as of right was examined and the following maxim has been laid down.
"The well settled rule of practice in a case of an appeal against an acquittal is that the appellate Court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction.
But, if the view of the Trial Court is not reasonable sustainable, on the evidence on record, the Appellate Court will interfere with an acquittal.
If the Appellate Court sets aside an acquittal and convicts, we have to be satisfied, after examining the prosecution and defence case and the crucial points emerging for decisions from the facts of the case, that the view taken by the Trial Court, on evidence on record, is at least as acceptable as the one taken by the High Court, before we could interfere with the High Court 's judgment.
" Kailasam, J. speaking for the Bench in Bhajan Singh and others vs State of Punjab, ; dealing with the scope of the appeal before the Supreme Court filed under Section 2 (a) of the Act of 1970 observed thus : "as a court of appeal this Court has got to go into all the 326 questions of fact and law and decide the case on its merit.
After a right of appeal has been provided under the said section, the question, whether the High Court interfered on sufficient ground or not, will not be material, as this Court has to decide the case on its own merits.
The decisions, regarding the scope of appeal against an acquittal, the powers of the High Court to interfere in an appeal against acquittal by the State, which may be relevant when the Supreme Court is acting under Article 136, are not material in deciding an appeal by a person, whose acquittal has been set aside by the High Court, and who is entitled to prefer an appeal to this Court.
" In Dinanath Singh & others vs State of Bihar, AIR 1980 S.C. 1199 = , an appeal under Section 2 (a) of the Act of 1970 was directed against the judgement of the Patna High Court convicting the appellants therein under Section 302 read with 34 IPC and sentencing them to imprisonment for life by reversing the order of acquittal of the Trial Court.
While disposing the appeal Fazal Ali.
J. speaking for the Bench pointed out thus: "It is now well settled by the long course of decisions of this Court that where the view taken by the trial court in acquitting the accused is reasonably possible, even if the High Court were to take a different view on the evidence, that is no ground for reversing the order of acquittal." This court while disposing an appeal filed under Section 379 of the Code in Pattipati Venkaiah vs State of Andhra Pradesh, affirmed the order of conviction passed by the High Court on the ground that the judgment of the Trial court acquitting the accused was extremely perverse and no other reasonable view was possible than the guilt of the accused.
Reference also may be had to Sita Ram and Others vs State of U.P. [1979] 2 SCC 656 and Rajput Ruda Meha and Others vs State of Gujarat, This Court in a catena of decisions have dealt with the power of the High Court to review evidence and reverse order of acquittal and laid down the guidelines in exercising that power.
Though it is not necessary for us in the present case to deal with all those decisions, the following may be referred to : 327 Roop Singh and others vs State of Punjab. ; = ; ; Dargahi and others vs State of U.P., AIR 1973 S.C. 2695 = ; Barati vs State of U.P., AIR 1974 S.C.839 = ; ; G.B. Patel vs State of Maharashtra; , = ; ; and Kanwali vs State of U.P.
Having regard to the above principle of law, we shall now carefully scrutinize the entire evidence adduced by the prosecution and examine the contentions advanced by Mr. Mulla and decide the case on its merit, independent of the views expressed by the High Court in its impugned judgment : Motive for the murder: There is overwhelming evidence both oral and documentary in clearly establishing a strong motive for the appellants/accused to put an end to the life of the deceased Saroj, who when examined before the Magistrate on 12.7.1991 had deposed under exhibit P/25 that she was kidnapped by both the appellants, wrongfully confined and subjected to sexual intercourse, though she initially lodged a report under exhibit D 15 on 9.8.70 at the Hoshangabad police station against some other persons exculpating these two appellants.
Earlier to her examination before the Magistrate the deceased lodged a report exhibit P 7 on 20.6.1972 at Budhni police station complaining that the second appellant had forcibly entered into the backyard of her house and on her raising a cry he took to his heels.
The trial of the case against both the appellants before the Additional Sessions Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 under Sections 363, 366 and 376 IPC was fixed for recording the evidence of the victim in that case, namely, the deceased herein from 21.8.1972.
Both the appellants were on bail in the case of kidnaping and rape during the period of the occurrence in question which occurred on the intervening night of 20/21st August 1972.
The learned counsel for the appellants has submitted that PWs 5 and 6 had sufficient motive to implicate both the appellants in this heinous crime of murder as these two appellants according to both PWs had spoiled the future career of their daughter, deceased Saroj by kidnaping and committing rape on her even if the identity of the real assailant/assailants was or were not known and further there was every possibility of PW 6 falsely implicating these two appellants on strong suspicion.
As stated by Fazal Ali, J. in State of Punjab vs Pritam Singh, "when the motive was equally balanced, the Court had to look to surrounding circumstances in order to find out the truth.
" 328 This is not a case solely based on circumstantial evidence, but on the other hand there are two eye witnesses to the occurrence, namely, PWs 5 and 6.
The several impelling circumstances attending the case namely, the prior incident of kidnaping and rape, the conduct of the deceased Saroj in giving her statement under exhibit P. 25 supporting the case of the prosecution registered on the complaint given by PW 1 at the instance of PW 6, the lodging of the complaint under exhibit P 7 by Saroj on 20.6.72 against the second appellant and lastly the posting of the case for recording the evidence of Saroj on 21.8.72 when taken in conjuction with the evidence of PWs 5 and 6, unevasively and unerringly show that these two appellants had strong motive to snap the life thread of the victim so that she could not give evidence on the next day in the case of kidnapping and rape.
The contents of exhibit D 15 cannot be said to have whittled down the veracity of the prosecution case as regards the motive for the occurrence.
On the other hand, the subsequent statement made by the deceased under, the exhibit P/25 explaining under what circumstances she was forced to give exhibit D 15 would also serve as a corroborating piece of evidence in establishing the motive for the occurrence.
Ocular Testimony : As per the prosecution, due to the above motive the appellants have resorted in perpetrating this dastardly and heinous crime, PWs 5 and 6 though the parents of the victim, are the natural and probable eye witnesses as the incident had occurred in the odd hours inside their house wherein these two witnesses and their 4 daughters including the deceased Saroj were the inmates.
According to these two witnesses by about 12 or 12.30 mid night PW 5 went out of the house by opening the main door to answer call of nature within the compound.
Besides moon light, there was electric light within the compound.
Added to that there was also electric light burning in the residential quarter of Doctor Sahib shedding light inside the compound of the scene house.
PW 5 sighting the two appellants yelled out.
She found the appellant Chandra Mohan Tiwari having a small gun and the second appellant Rampal Singh being armed with a farsa.
On hearing the cry of PW 5, Saroj woke up.
PW 6 who had earlier been awakened by his wife (PW 5) saw both the appellants entering into his house with their respective weapons.
The deceased Saroj on seeing the two appellants hardly uttered `Babaji '.
Suddenly the first appellants fired a shot which hit Saroj.
On receipt of the injury Saroj fell down on her cot.
Thereafter both the appellants fled away.
PW 5 witnessed both the appellants entering into the room and heard the sound of a gun shot and the 329 appellants thereafter running out of the house.
While PW 5 yelled out, PW 6 ran after the appellants up to the compound shouting that the appellants had fired a gun shot at Saroj.
On coming out of the compound, PW 6 fell down.
PWs 1, 2 and others who rushed to the scene on hearing the shrieks and shouts of PWs 5 and 6 lifted PW 6 and brought him inside the house.
PWs 1, 2 and others asked PW 6 as to what had happened.
PW 6 told them that the first appellant had fired a shot at his daughter Saroj and thereafter both the appellants had fled away from the scene.
The victim Saroj by that time was struggling for breathing and gasping.
PW 1 has testified to the fact that he arrived at the scene on hearing the shouting of PW 6 "killed, killed ' and found PW 6 lying down outside the main gate of his compound, that PW 1 and others lifted PW 6 and brought him inside the house, that on being asked PW 6 informed PW 1 and others that Sengar and "Tiwari (referring to both appellants) had shot at his daughter and that PW 6 requested him to lay a complaint at Budhni Police Station.
The Trial Court for the reasons given in its judgment observed that the evidence of PW 5 as regards to the identity of the appellants is "totally unreliable" and that of PW 6 appears to be "absurd and fantastic" and finally concluded thus: ". .
I find the two accused persons had no motive to perpetrate the crime in question, that one Gungasingh and possibly the father of the girl Ahivaransingh might have had stronger motive for perpetrating the murder, that it was impossible for the accused persons to have been present at Budhni at 12.30 that night and that it is most likely that they have been falsely implicated in the murder by the political rivals of the accused Chandra Mohan Tiwari and with the motive of preventing the accused Ram Pal Singh over getting married to Saroj." The entire prosecution as indicated ibid mainly rests on the evidence of PWs 5 and 6 who are the unfortunate parents of the victim and who speak about the motive of the occurrence and give a full detailed account of the entire incident.
In addition to the ocular testimony of PWs 5 and 6 the prosecution also relies upon the evidence of PWs 1 and 2, who came to the scene spot immediately after the occurrence and learnt from PWs 5 and 6 that the appellants were the perpetrators of the crime.
No doubt, it is true that the evidence of PWs 5 and 6 is that of the interested party in that both of them are the parents of the victim and that they had animus towards the appellants.
As dexterously emphasised by the 330 Supreme Court on many occasions that interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest of stake in the matter must put the Court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties.
Vide Siya Ram Rai vs State of Bihar, ; Sarwan Singh vs State of Punjab, ; Birbal vs Kedar, AIR 1977 S.C.1 = ; ; Gopal Singh vs State of U.P. AIR 1979 S.C.1822 = ; Hari Obulla Reddy & Others vs State of Andhra Pradesh, [1981]3 SCC 675; and Anvaruddin & Ors.
vs Shakoor & Ors.
[1990]2 Judgements Today S.C. 83.
After carefully scanning the evidence of PWs 5 and 6, we unreservedly come to the conclusion that their evidence cannot be thrown overboard simply on the ground that their evidence is of the interested party because when the occurrence had taken place inside the house, that too at dead of night, it would be futile to expect of the prosecution to produce independent outsiders as witnesses.
It was contended by Mr. Mulla that PWs 5 and 6 could not have identified the assailants since according to PW 6 both assailants had covered their faces so that faces behind the mask could never be known to others and remain mystery for ever.
But a careful reading of the evidence of PW 6 in our opinion does not support the conclusion sought to be arrived at by the learned defence counsel.
What PW 6 had admitted in the cross examination is that both the appellants had tied a towel on their heads, but their identity was visible.
It transpired from the evidence of PWs 1, 2 and 6 that PWs 1 and 2 who immediately came to the scene of the occurrence were informed by PW 6 that the assailants were the two appellants.
The spontaneous declaration to Pws 1 and 2 by PW 6 without premeditation or any deliberation or artifice by naming the appellants as assailants can be admitted as resgestae and acted upon.
It is significant to note in this connection that PW 1 who laid the First Information Report Ex P 1 within an hour from the time of the occurrence has mentioned the names of these two appellants as having been given by PW 6 at the scene immediately after the occurrence.
The FIR has been lodged without any loss of time though it has been hesitatingly stated that there was a delay.
The chronology of events narrated and the factual conspectus recounted by PWs 5 and 6 are unshakable and the intrinsic quality of the evidence of these two witnesses compel 331 this Court to implicitly rely on their testimony and to accept the same.
In spite of the fact that these two PWs have been subjected to intensive and incisive cross examination, nothing tangible has been brought for discarding their testimony.
No doubt, the earlier conduct of the appellants in kidnaping and forcibly raping their daughter, the victim should have inflicted deeper wounds in the minds of these two witnesses, but that cannot in any way destroy the value of their evidence which is cogent and trustworthy.
PWs 3 and 4 who were examined by the prosecution to speak about the movements of the appellants near the scene at or about the time of the occurrence have resiled from their earlier statements and have not supported the prosecution case.
The evidence of Pws 5 and 6 which is corroborated by various other circumstances would in our opinion suffice of record a conviction against the appellants.
The Trial Court appears to have gone wrong in jettisoning the entire evidence in a very scanty and unsatisfactory manner with unsound reasoning.
The non recovery of `lota ' (a small vessel for taking water) and the non marking of the place where the said vessel was kept in the site plan are too tenuous and they do not in any way belittle the veracity of the prosecution case.
The recovery of the pellets below the dead body and the cork, usually fixed on cartridges from the chest of the girl under the Memo exhibit P 4 as spoken by PWs 1 and 18 amply corroborate the evidence of PW 6 and support the prosecution case that the girl was shot dead in close range while she was on her bed.
Being the parents of the victim, they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprits.
In our considered opinion, whilst the conclusion arrived at by the Trial Court abjuring the unimpeachable and reliable evidence of PWs 5 and 6 on speculative reasons and unreasonable grounds, the contrary conclusion of the High Court based on the evolution of the evidence does not suffer from any illegality or manifest error on perversity nor is it erroneous.
Further, on our independent analysis of the evidence we see absolutely no substantial and compelling reasons to brush aside the testimony of these two eye witnesses and to take a contrary finding to that of the High Court.
Based on the evidence of DW 1, an advocate at Bhopal, who defended the appellants herein in the kidnaping case and who had deposed that on the night of 20.8.72 the first appellant was with him from 9/9.30 P.M. to 12 mid night and who had filed exhibit P30, and application before the court stating that the first appellant was with him, an argument was advanced that the appellants could not have gone to the scene village 332 Budhni from Bhopal, when the distance between the two places is about 40 miles and committed the offence of murder.
In support of the evidence of DW 1 reliance has been placed on the testimony of DWs 2 to 4 of whom DW 3 was the Proprietor of Chetna Lodge, who had testified to the effect that the first appellant was in his lodge from 18th to 21st August as borne out from the entry in exhibit
A similar contention of alibi was also raised before the High Court on the basis of the evidence of the defence witnesses and the High Court after discussing and deeply examining the testimony of the defence witnesses made the following observations: 1.
"It is with regret that we have to say that the testimony of this witness (PW 1) does not inspire any confidence.
"It is surprising that the learned trial Judge should have placed reliance on the testimony of DW 2 Ramakant and D.W.7 Durgaprasad and come to the conclusion that accused Rampalsingh could not have been at the scene of occurrence as he was at Bhopal, forty miles away from the scene of occurrence, at the relevant time.
" Further the High Court was correctly rejected the finding of the Trial Court as an unreasonable one holding: ". .it is most likely that they have been falsely implicated in this murder by the political rivals of the accused Chandramohan Tiwari and with the motive of preventing the accused Rampalsingh ever getting married to Saroj.
" We also after going through the evidence of the defence witnesses are unable to accept the plea of alibi and are in total agreement with the reasons given by the High Court for rejecting not the plea of alibi but also the defence that these appellants were implicated on account of political rivalry.
Medical Evidence: PW 17 who conducted autopsy on the dead body of the deceased found a lacerated wound on the chest just left the mid line at the level of nipple over the third, fourth and fifth inter costal space.
The wound was slightly oval shaped measuring 1 1/2" x 2" deep and opening into thoraic cavity.
The surrounding skin was ecchymost, but no tattooing of gun powder was noticed.
The wound as described by the Doctor is a slit like small lacerated wound on the medial end of clavicle.
On internal examination PW 17 he found comminuted fracture of sternum and second, 333 third ribs of left side chest.
There was a punctured wound on the medial border of left lung near its appex.
He found one rounded pellet (which has been recorded as bullet, but has been clarified in the further chief examination as pellet which receives support from the evidence of PW 19, the ballistic expert) in the left cavity of the chest, embedded in the posterior wall of chest at scapular region at the level of second and third ribs.
The Medical Officer is of the opinion that the death was due to severe fatal injuries to vital organs like left lung and heart resulting in profuse bleeding and shock.
PW 19 after examining the two pellets and two wads marked as Ex.
P1 and P 2 and W1 and W2 respectively gave his opinion that the holes, found on the saree, chader (bed sheet) and the blouse were gun shot holes and there was presence of blackening surrounding the holes on the chader and that the distance of firing should have been within one yard.
The evidence of the Medical Officer (PW 17) and of the Ballistic expert (PW 19) amply corroborates the testimony of PWs 5 and 6 that the assailants whomsoever they had been should have entered into the room and shot at the victim standing within a close range.
Mr. Mulla advanced an argument that the recovery of the two pellets and two wads from the scene place is an indicative of the fact that there would have been two shots, and that the presence of only one injury on the body of the deceased as per the evidence of PW 17 falsifies the present prosecution case that the victim was shot at only once.
The presence of the pellets and two wads, of course, indicate that there ought to have been two shots, but it does not necessarily follow that both the shots, should have hit the victim, probably one of the shots must have missed target.
From the mere absence of two injuries on the body of the deceased, no conclusion would be arrived at that the entire prosecution case is liable to be rejected.
The further submission of the learned counsel that the appellants should not have come at the odd hours anticipating that the main door of the house would have been kept open does not appeal to us.
Probably, the appellants who came there with the intention of putting an end to the life of the victim by any other design should have taken this opportunity to enter into the house and shot at the deceased.
Lastly a feeble argument was put forth by the defence stating that the father of the deceased and other inmates of the house on being aggrieved at the conduct of the victim should have put an end to the life of the girl by conspiring together.
This submission has to be mentioned for 334 simply rejecting the same because had the father and other inmates of the house had already conspired to murder the girl, they would not have waited for such a long time and ultimately killed her by shooting at her chest.
No father, however grave be the provocation at the hands of his daughter would resort, in the normal course to kill his daughter or participate in any conspiracy to murder her.
Moreover, there is no circumstance in the present case even feebly or remotely indicating that the inmates of the house were responsible for the cause of the death of the deceased.
In spite of our best efforts and great deal of pondering over the matter, we find absolutely no reason, much less compelling reason to disagree with the conclusion of the High Court since the organic synthesis of the events, circumstances and facts of the case lead only to one conclusion, namely, that the prosecution has established that this preplanned and cold blooded murder, executed in very cowardly and dastardly manner at a helpless and defenceless young girl was perpetrated by the appellants.
We, quite apart from the reason of the High Court, even on our independent assessment and evaluations of the evidence hold that the finding of the Trial Court is not reasonably sustainable and that the prosecution has satisfactorily proved the guilt of the accused beyond any shadow of doubt and consequently the judgment of the High does not call for any interference.
In the result, the impugned judgment of the High Court is affirmed and the appeal is dismissed.
T.N.A Appeal dismissed.

summary/full:
The appellants were alleged to have kidnapped, wrongfully confined and raped S, the daughter of PWs 5 and 6.
They were prosecuted for offences punishable under section 363, 366 and 376 of the Indian Penal Code.
S was examined before the Magistrate where she stated that because of the threat given by the appellants and as instructed by them she lodged a false report at the police station implicating some other persons, whereas infact she was kidnapped, wrongfully confined and raped by the appellants.
The Magistrate, discharged the first appellant, and committed the second appellant alone to take his trial.
On a revision preferred against the order of discharge of the first appellant both the appellants were 314 put up for trial before the third Additional Sessions Judge, Bhopal.
During the said trial both appellants were on bail.
The case was fixed for 21.8.1972 on which date the victim S was to be examined as a prosecution witness.
While the matter stood thus S lodged a report at the Police Station complaining that the second appellant had forcibly entered into the backyard of her house, but took to his heels when she raised a hue and cry.
However, it was alleged that on the night of 20.8.72, i.e. immediately before the day when the case was fixed and victim S was to be examined as a prosecution witness, the first appellant armed with a pistol and the second appellant with a `farsa ' entered into the house of S and the first appellant fired a shot causing instantaneous death of section The appellants were prosecuted for murder.
The Sessions Judge acquitted both the appellants.
The State preferred an appeal before the High Court.
The High Court allowed the appeal, set aside the acquittal order and convicted the first appellant under Section 302 and the second appellant under section 302, read with Section 34 IPC and sentenced each of them to undergo imprisonment for life.
The appellants preferred an appeal to this Court under section 379 of the Code of Criminal Procedure and Section 2 (a) of the and it was contended on their behalf (i) that the High Court erred in reviewing the evidence and reversing the order of acquittal; (ii) that the prosecution has failed to prove the motive of the crime; (iii) the victim 's parents were inimical towards the appellants and their evidence cannot be relied upon because they were interested witness.
Dismissing the appeal, this Court, HELD : 1.
The Trial Court was wrong in jettisoning the entire evidence in a very scanty and unsatisfactory manner with unsound reasoning.
Whilst the Trial Court 's conclusion was arrived at by abjuring the unimpeachable and reliable evidence of parents of the deceased on speculative reasons and unreasonable grounds, the contrary conclusion of the High Court based on the evolution of the evidence does not suffer from any illegality or manifest error or perversity nor is it erroneous.
Further, independent analysis of the evidence by this Court shows that there are absolutely no substan 315 tial and compelling reasons to brush aside the testimony of these two eye witnesses and to take a contrary finding to that of the High Court.
[331 C D; F G] 1.1 The organic synthesis of the events, circumstances and facts of the case lead only to one conclusion, namely, that the prosecution has satisfactorily proved the guilt of the accused beyond any shadow of doubt and consequently the judgment of the High Court does not call for any interference.
[334 C D E} Tarachand vs State of Maharashtra, ; = ; ; Kishan and Ors.
vs State of Maharashtra.
; ; Mahebub Beg and Ors.
vs State of Maharashtra, (S.C.) ; Babu vs State of UP.
, ; 2 S.C.R. 771; Podda Narayana and Ors.
vs State of Andhra Pradesh, ; [1975] Supp.
S.C.R. 84; Ram Kumar Pande vs The State of Madhya Pradesh, ; 3 S.C.C. 815; Rajendra Prasad State of Bihar A I R SC 10 59 = = [1977]3 SCR 68; Kishore Singh and Anr.
vs The State of Madhya Pradesh, A.I.R. 1977 S.C. 2267 = [1978] 1.S.C.R. 635; Bhajan Singh and Ors.
vs State of Punjab, [1978] 4 S.C.C. 77; Dinanath Singh & Ors.
vs State of Bihar, A.I.R. 1980 S.C. 1199 = ; Pattipati Venkaiah vs State of Andhra Pradesh ; Sita Ram and Ors.
vs State of U.P., [1979] 2 S.C.C. 656; Rajput Ruda Meha and Ors.
vs State of Gujarat, ; referred to.
Roop Singh and ors.
vs State of Punjab; , = ; ; Dargahi and ors.
vs State of U.P., A.I.R. 1973 S.C. 2695 = ; Barati vs State of U.P., ; = [1974] 3 S.C.R. 570; G.B. Patel vs State of Maharashtra, A.I.R. 1979 S.C. 135 = ; ; Kanwali vs State of U.P. ; referred to. 2.
There is overwhelming evidence both oral and documentary in clearly establishing a strong motive for the appellants to put an end to the life of the deceased.
The several impelling circumstances attending the case namely, the prior incident of kidnapping and rape, the conduct of the deceased in giving her statement supporting the case of the prosecution, the lodging of the complaint by S against the second appellant and lastly the posting of the case for recording the evidence of S when taken in conjunction with the evidence of parents of the victim unevasively and unerringly show that these two appellants had strong motive to snap the life thread 316 of the victim so that she could not give evidence on the next date in the case of kidnaping and rape.
[327 C D E; 328 A D C] State of Punjab vs Pritam Singh. ; relied on.
Interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must access the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties.
[330 A B] Siya Ram Rai vs State of Bihar, ; Sarwan Singh vs State of Punjab, ; Birbal vs Kedar, ; = ; ; Gopal Singh v State of U.P. A I R 1979 S.C.1822=[1978] 3 S.C.C. 327; Hari Obulla Reddy & Ors.
vs State of Andhra Pradesh, ; Anvaruddin & Ors.
vs Shakoor & Ors., [1990] 2 Judgments today S.C. 83; relied on.
3.1 The evidence of parents of the deceased cannot be thrown over board simply on the ground that their evidence is of the interested party because when the occurrence had taken place inside the house, that too at dead of night, it would be futile to expect of the prosecution to produce independent outsiders as witnesses.
The parents of the victim are the natural and probable eye witnesses as the incident had occurred in the odd hours inside their house.
Being the parents of the victim, they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprit.
[330 D; 328 E; 331 E] 3.2 The chronology of events narrated and the factual conspectus recounted by the parents of the deceased are unshakable and the intrinsic quality of the evidence of these two witnesses compel this Court to implicitly rely on their testimony and to accept the same.
In spite of the fact that these two witnesses have been subjected to intensive and incisive cross examination, nothing tangible has been brought for discarding their testimony.
No doubt, the earlier conduct of the appellants in kidnapping and forcibly raping their daughter, the victim should have inflicted deeper wounds in minds of these two witnesses, but that cannot in any way destroy the value of their evidence which is cogent and trustworthy.
[330 H; 331 A B] 317


judgement:
Civil Appeal No. 752 of 1984 etc.etc.
From the Judgment and Order dated 1.8.983 of Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 799 of 1977.
K. Madhava Reddy, T.V.S.N. Chari, Ms. Manjula Gupta, B. Kanta Rao, D. Prakash Reddy, B. Rageshwar Rao, Vimal Dave, K. Ram Kumar, Y. Prabhakara Rao, K.R. Nagaraja, Krishan Kumar and G. Prabhakara for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The questions involved in these matters being common they are being disposed of by a common judgment.
All these matters arise out of a common order of the A.P. Administrative Tribunal passed in Representation Petitions Nos.
799/77, 548/79 and 140/81.
S.L.P. (Civil) No. 5218/85 is filed against a separate order of the Tribunal in R.P. No. 1473/80.
The dispute is regarding the inter se seniority between the Supervisors who are upgraded as Junior Engineers and the degree holders who are directly appointed as Junior Engineers.
All of them belong to the different branches in the A.P. Engineering Subordinate Service.
First we shall state the relevant facts in each of the appeals and then formulate the points that arise for consideration.
For convenience sake we shall refer to the parties as arrayed before the Tribunal.
CIVIL APPEAL NOS.
752 AND 754/84 : These two appeals are filed against the order in R.P. No. 799/77.
The first one is filed by the State of A.P. and the other one by upgraded Supervisors Junior Engineers.
The petitioners before the Tribunal are all Junior Engineers in 300 Irrigation and Power Department.
They were initially appointed as temporary Junior Engineers in the year 1969/70.
Later they appeared in a special qualifying test (`SQT ' for short) held by the Public Service Commission and on the basis of the result of the test their services were regularised in the post of Junior Engineers with retrospective effect from the date of the temporary appointment subject to the maintenance of the order of ranking given by the Public Service Commission in the test.
The respondent Nos. 3 onwards in these R.Ps. are also Junior Engineers in the same department but they were appointed as Supervisors and on acquiring the degree they have been redesignated as Junior Engineers.
Several G.O.Ms were issued by the Government and the important one is G.O.Ms.
No. 559 (I & P) Department dated 18.7.77.
The post of Junior Engineers was made Gazetted post.
The case of the petitioners is that the respondents acquired degree qualification after 28.2.72 therefor they were not entitled to be appointed as regular Gazetted Junior Engineers and at any rate they cannot be treated as seniors on the basis of reckoning their seniority from the date of acquiring degree qualification and that the seniority of these graduate Supervisors should be reckoned from the date of their actual appointment as Junior Engineers and not from the date of acquiring degree qualification.
The respondent Supervisors, on the other hand contended that they are entitled to upgradation and weightage of service from the date of their appointment as Supervisors.
CIVIL APPEAL NO.
753/84 : This appeal is filed against the order in R.P. No. 548/79.
The petitioners in this R.P. are all Supervisors who graduated after 28.2.72.
Their contention was that they were appointed much before the respondents namely the directly recruited Junior Engineers and the services of the respondents Junior Engineers should not be regularised in such a way so as to effect the seniority of the petitioners and that the seniority of the petitioners should be reckoned from the notional date of appointment.
CIVIL APPEAL NO.
755/84 : This appeal is filed against the order in R.P. No. 140/81.
The sole petitioners before the Tribunal, who is a respondent here, questioned G.O.Ms.
No. 466 Transport, Roads and Building and sought a declaration that he should be declared as senior to respondent Nos. 3 and 5 and promote him to the post of Assistant Engineer.
The petitioner before the Tribunal was directly recruited Junior Engineer.
He also passed the SQT held in the year 1975.
The respondents before the Tribunal were upgraded Supervisors who acquired the graduate qualification.
G.O. Ms. No. 466 was issued 301 directing that the respondent before the Tribunal namely the upgraded Supervisors should be treated seniors to all the directly recruited Junior Engineers whose services were regularised on the basis of the SQT.
The Tribunal held that the findings in the other R.Ps.
799/77 and 548/79 apply to the facts of this case also and accordingly directed to prepare an inter se seniority list in the Transport, Roads and Buildings Department on the lines indicated therein.
R.P. was disposed of with those observations.
The upgraded Supervisors Junior Engineers who were the respondents before the Tribunal have filed this appeal.
These matters were heard together by the Tribunal.
After considering the various G.O.Ms.
and the arguments the Tribunal held that there was no bar to the retrospective regularisation of the services of the directly recruited Junior Engineers from the dates of their initial appointments.
It also held that the action of the Government in giving the benefit of the notional date of appointment to the upgraded Junior Engineers and the benefit of the date of regularisation of their services from the dates of their notional appointments subject to maintenance of order of ranking given by the Public Service Commission is justified.
The Tribunal further held that the order of ranking given by the Public Service Commission in respect of directly recruited Junior Engineers has to be maintained and each of them will have to be treated as being entitled to count his seniority from the date on which his service has been regularised or from the date of the regularisation of the service of the person immediately below him in the order of ranking given by the Public Service Commission, whichever is earlier.
In paragraph 23 of the Order the Tribunal specifically held thus: "23.
We are of the opinion that once the dates from which the directly recruited Junior Engineers can claim seniority are thus fixed on the basis of this formula, it should not be difficult to fix their inter se seniority vis a vis the upgraded Junior Engineers on the basis of the notional dates of appointment given to the latter.
In this connection we would like to point out that, whereas in the case of an upgraded Junior Engineer who acquired degree qualification before 28.2.1972, seniority will have to be fixed by putting him below all the regular Junior Engineers including directly recruited Junior Engineers who are entitled to claim seniority from any date during the year in which such upgraded Junior Engineer has been given the notional date of appointment, this practice cannot be followed in case of an upgraded junior Engineer who has acquired degree qualification after 28.2.1972, in view of the fact that the provision for fixing his seniority below other Junior Engineers 302 of the particular year (as was made in G.O. Ms. No. 893 dated 15.6.72) was not made in the amended Rule as issued under G.O.Ms.
No. 54 dt.
15.2.1983 His seniority will, therefore have to be fixed on the basis of the specific notional date of appointment given to him by interspersing his name among the regular Junior Engineers as arranged in chronological order of dates from which such regular Junior Engineers (including directly recruited Junior Engineers) are entitled to count their seniority.
" It is this part of the Order that has given rise to all these appeals before us.
The State of A.P. being aggrieved by this Order filed C.A. No. 752/84 and both petitioners and respondents namely the Junior Engineers directly recruited and upgraded Supervisors as Junior Engineers are the main respondents before us.
Civil Appeal Nos. 753 54 are filed by the upgraded Supervisors Junior Engineers.
In these two matters the Junior Engineers directly recruited are the respondents.
Thus in all these matters the Junior Engineers directly recruited are the respondents.
It is contended on behalf of State of A.P. that the direction given by the Tribunal particularly interspersing is not workable.
Learned counsel for the State, however, pointed out that the upgraded Supervisors have put in long years of service and they have been discharging the same duties as directly recruited Junior Engineers and that this fact also has to be borne in mind in fixing the notional date of appointment of the two categories officers and in fixing their inter se seniority.
Shri B.Kanta Rao, learned counsel appearing for all the upgraded Supervisors Junior Engineers contended that in G.O. Ms. No. 559 it is specifically laid down that Supervisor who have acquired graduate qualification may be appointed as Junior Engineers after 28.2.72 and the weightage of four years should be reckoned from the date of acquiring the degree qualification i.e. 28.2.72 or thereafter.
He also contended that the seniority of the upgraded Supervisor Junior Engineers should not be fixed from the date of the Order of appointment dated 8.8.77.
On behalf of the directly recruited Junior Engineers Shri K.Madhava Reddy, learned counsel submitted that the upgraded Supervisors can under no circumstances be treated as seniors to the directly recruited Junior Engineers.
According to him appointment of Junior Engineers was suspended for some time and in view of the exigencies the degree holders were appointed on temporary basis and they have served for a number of years.
Later the Government decided to make regular appointments and accordingly a Special 303 Qualification Test was held and such of those temporary Junior Engineers who were degree holders got qualified and were given the appointments and a seniority list strictly on the basis of performance in the test and on merit was prepared by the Public Service Commission and a retrospective effect was given.
His further submission was that so far as the upgraded Supervisors are concerned all the relevant G.O.Ms.
make it clear that the crucial date has to be reckoned on the basis of the actual date of appointment and not on the date of acquiring the degrees.
For appreciating these rival contentions it becomes necessary to refer to some of the G.O.Ms.
particularly with a view to arrive at the ("crucial date") in respect of each of these categories for the purpose of fixation of the seniority.
In respect of upgraded Supervisors who acquired a degree, certain G.O.Ms. were issued from time to time.
In the year 1972 G.O.Ms.
No. 893 dated 15.6.72 was issued amending the special rules for the A.P. Engineering Subordinate Service.
The same provided that Supervisors who while in service acquire B.E./A.M.I.E. degree qualification, shall be entitled to count 50% of the service rendered as Supervisors prior to the acquisition of such qualification subject to a maximum limit of four years.
This was subject to certain conditions.
One of the conditions was that they should be considered to have been placed below the last of the Junior Engineer of the year after giving such weightage.
In the year 1976 another G.O.Ms No. 451 (I & P) dated 10.6.76 ordered that the Supervisors who acquire the graduate qualification while in service should be appointed as Junior Engineers with immediate effect.
On 8.11.76 G.O.Ms. No.815 (I & P) was issued.
Clause 4 of the Conditions stipulated in G.O.Ms.
No.893 was amended and the benefit of the weightage was directed to be given effect only to those who acquired the aforesaid degree qualification prior to 28.2.72.
Then came the important G.O.Ms.
No. 559 (I & P) dated 18.7.77.
Relying on the contents of the above G.O.Ms.
the upgraded Supervisors claimed that the weightage of four years should be reckoned from the date of acquiring the qualification and not from the date of actual appointment.
The directly recruited Junior Engineers also based their claim on G.O. Ms. Ms. Nos. 451 and 559 and they further contended that the upgraded Supervisors should be treated as regularly appointed only with effect from the date of their appointment.
It may not be necessary for the purpose of this case to extract the entire contents of the G.O. Ms. that preceded G.O. Ms. Nos. 451 and 559.
It would suffice if we just give the gist of those respective G.O.Ms.
Under G.O.Ms.
No. 787 dated 9.6.71 the Government declared that posts of 304 Junior Engineers would be filled in by graduate Engineers which will be made a separate category and they will be made gazetted.
Therefore G.O.Ms. No.240 dated 28.2.72 was issued.
Under the said G.O.Ms. 1870 posts of Supervisors in Public Works Department were declared to constitute a category of Junior Engineers and similarly in the Roads and Buildings Department 620 posts were declared to constitute as a category of Junior Engineer as distinct from Supervisors and both these categories were made gazetted with effect from that date.
The G.O.Ms. also provided for temporary appointments in the case of qualified Junior Engineers being not available for filling up all such gazetted posts, and all these posts of Junior Engineers in both the Departments were declared to be within the purview of the A.P. Public Service Commission and the method of recruitment to the post of Junior Engineer should be by direct recruitment.
Then came the G.O. Ms. No. 893 dated 15.6.72 amending the special rules for the A.P. Engineering Subordinate Service under which the Supervisors who acquired the qualification were declared to be entitled to count 50% of their service subject to a maximum limit of four years for the purpose of promotion to the post of Assistant Engineer from Junior Engineer.
G.O. Ms. No. 782 dated 3.5.74 was issued permitting the Junior Engineers recruited during emergency on temporary basis to apply for SQT held by the Public Service Commission.
Accordingly the Rules were amended as per G.O. Ms. No. 786 dated 7.8.74 and the adhoc rules were framed enabling the computation of period of two years with or without break in the service rendered by such degree holders Junior Engineers who appeared in the SQT held by the Public Service Commission and were declared to be selected and thus their services were regularised retrospectively giving them the benefit of the service of two years rendered prior to the actual selection.
In conformity with the same Rule 33A was also relaxed for the purpose of fixing their inter se seniority.
The next important G.O.Ms.
with which we are concerned is G.O.Ms.
No. 451 dated 10.6.76.
It reads as under: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Establishment Irrigation and Power Department Appointment of Supervisors who have acquired Graduate Qualification as Junior Engineers Orders Issued.
Irrigation and Power (Ser.II) Department G.O. MS.
No. Dated: 10 6 1976 ORDER: Consequent on the declaration of the posts of Junior 305 Engineers as Gazetted with effect from 28.2.1972, the upgradation of Supervisors who acquired Graduate Qualification while in service, as Junior Engineers, ceased.
Since then representations have been made to Government by several Associations that the benefit of upgradation should be extended also to Supervisors who acquired the Graduate qualification on or after 28.2.1972.
On a reconsideration of the matter, the Governement are of the view that some consideration should be shown to the Supervisors who have acquired the Graduate qualification while in service.
Accordingly the Government have decided that the Supervisors in P.W. (Irrigation) Department who have acquired Graduate qualification while in service should be appointed temporarily as Junior Engineers (Prospectively) with immediate effect.
The Chief Engineer (General) is requested to take action accordingly, Orders regarding other consequential matters will issue separately.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.) M. GOPALAKRISHNAN, SECRETARY TO GOVERNMENT " Under this G.O. Ms. it is proposed to extend the benefit of upgradation to Supervisors who acquired the graduate qualification on or after 28.2.72 but the second para makes it clear that they should be appointed temporarily as Junior Engineers and that too prospectively only.
The next and the important G.O.Ms.
is No.559 dated 18.7.77 which reads as under: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT ESTABLISHMENT Irrigation & Power Department Appointment by transfer of Supervisors who have acquired Graduate qualification from 28.2.1972 onwards as Junior Engineers Further orders Issued.
306 IRRIGATION & POWER (SERVICE III) DEPARTMENT G.O. Ms. No.559 Dated 18th July, 1977 Read the following: G.O. Ms. No.451, Irrigation & Power (Ser.
III) Department, dated 10.6.76.
ORDER: It was ordered in the G.O., cited that the Supervisors in the Public Works (Irrigation) Department, should be appointed temporarily as Junior Engineers (Prospectively) with immediate effect.
It was also indicated therein that orders regarding other consequential matters would issue separately.
Accordingly, matters relating to weightage, seniority, etc., have been examined by the Government and the following orders are issued: (i) Supervisors who acquire Graduate qualification may be appointed as Junior Engineers on or after 28.2.1972, subject to the availability of vacancies in the cadre of Junior Engineers.
They will not be entitled for appointment as Junior Engineers automatically from the date of acquisition of degree qualification; (ii) A Supervisor, who is appointed as Junior Engineer, shall be entitled to count 1/3rd of the service rendered by him as Supervisor, before his appointment as Junior Engineer, subject to a maximum of four years, for the purpose of computing the service as Junior Engineer, which will render him eligible for consideration for promotion as Assistant Engineer.
(iii) The seniority of the Supervisors, who are appointed as Junior Engineers, shall be fixed with reference to the notional date arrived at after giving weightage of service; (iv) A Supervisor, who is appointed as Junior Engineer, shall put in a minimum service of one year as Junior Engineer to become eligible for promotion as Assistant Engineer; (v) No Supervisor shall ordinarily be eligible for appointment as Junior Engineer unless he has put in a minimum service of three years as Supervisors.
A Supervisor with less than three years of service, who is appointed as Junior Engineer for any special reason, shall not be entitled to any weightage for his past service.
307 3.
Necessary amendment to the Special Rules for the Andhra Pradesh Engineering Service will be issued separately.
The Transport, Roads & Building/Panchayati Raj/Housing, Municipal Administration & Urban Development Department will issue amendments to the Special Rules with which they are concerned in accordance with the above decisions in consultation with the Andhra Pradesh Public Service Commission.
The cadre strength of Junior Engineers was last fixed in G.O.Ms.
No. 240, Public Works (VI) Department, dated 28.2.1972.
Since then a large number of posts of Junior Engineers/Supervisors have been sanctioned by Government.
The Chief Engineer (General) is requested to submit proposals for suitably enhancing the strength of the two orders.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.) M. GOPALAKRISHNAN, SECRETARY TO GOVERNMENT.
" G.O. Ms. No. 451 is referred to in this G.O.Ms.
and in the Preamble it is clearly noted that the appointments of the upgraded Supervisors as Junior Engineers should be temporary and prospectively only.
In Paragraph 2 (i) it is also made abundantly clear that they will not be entitled for appointment as Junior Engineers automatically from the date of acquisition of degree qualification.
Coming to the weightage it is clarified in paragraph 2 (ii) to the effect that a Supervisor who is appointed as Junior Engineer shall be entitled to count 1/3rd of the service rendered by him as Supervisor, before his appointment as Junior Engineer, subject to a maximum of four years and the same would be taken into account to render the appointee eligible for consideration for promotion as Assistant Engineer.
Paragraph 2 (iii) is very important regarding the seniority and the same has to be fixed with reference to the notional date arrived at after giving weightage of service, Paragraph 2 (v) gives a clue that the weightage could be from the date of appointment.
The Government, however, issued proceedings dated 8.8.77 and fixed the seniority of these upgraded Supervisors who acquired the degree qualification from the date of acquiring the degree.
We have already noted that vide G.O. Ms. No. 893 the special rules were amended.
After the G.O. Ms. No. 559 was issued, representations were made by the Association of Andhra Junior Engineers as well as from the Diploma holders Engineers Association.
Having considered these representations, the Government came out with another G.O. Ms. No. 593 dated 29.7.77 and clarified that the rules only refer to the date of appointment and does not refer to selection and that the seniority of an individual or a class or category has to be fixed according to the date of his first 308 appointment and not with reference to the date of selection and the Chief Engineer (General) was requested to fix the seniority accordingly.
The Chief Engineer (General) Vide proceedings No. Rc.
MI/58062/74 75 dated 8.8.77 fixed the seniority.
But in doing so he has taken the date of passing the examination by the upgraded Junior Engineers as the date of appointment.
As already noted this fixation of seniority was questioned before the Tribunal.
From the above resume of all the G.O.Ms.
it is clear that an interpretation of G.O. Ms. No. 559 would be decisive in the these matters.
In our view the G.O. Ms. No. 559 makes it abundantly clear that the appointments of these upgraded Supervisors who acquired the graduate qualification while in service, would be prospective only and that they would be entitled to the weightage of four years of service rendered before the appointment.
The G.O. Ms. does not anywhere indicate that the weightage should be from the date of acquiring the degree qualification.
It must be borne in mind that it is only after acquiring such degree qualification that a Supervisor is appointed as Junior Engineer and having regard to the service rendered by him the Government as a policy decided to give weightage of four years for the purpose of considering the eligibility for promotion as Assistant Engineer.
In this context it is pertinent to note that the degree holders were appointed temporarily because of a ban and later the Government again as a policy decision decided to make regular appointments by direct recruitment but enabled the degree holders who are in temporary service to appear in a SQT.
Again as a matter of policy the Government decided to give some weightage to the service rendered by them before the appointment by selection.
It can thus be seen that the Government in fixing the seniority for the purpose of future promotion of the appointees both the upgraded as well as those selected by the Public Service Commission in SQT has taken into account the past service rendered by them.
In the case of upgraded Junior Engineers weightage of four years ' service is given and in the other case two years ' weightage is given.
In this context it is contended on behalf of the upgraded Junior Engineers that the regularisation of the direct Junior Engineers retrospectively that is with effect from two years prior to the date of their appointments is unwarranted.
In this context the Tribunal has rightly pointed out that under Rule 23 A of the A.P. State and Subordinate Service Rules, 1962 if a person having been appointed temporarily under Rule 10 to a post borne on the cadre is subsequently appointed in the service in accordance with the rules he shall commence his probation from such subsequent date or the earlier date as the appointing authority may determine.
We agree with the Tribunal that there is no bar to the retrospective regularisa 309 tion of the service of the direct Junior Engineers.
However, in the instant case, it was a special selection by SQT restricted to the directly recruited Junior Engineers who had put in two years of service and the objective was to regularise their services.
As stated supra as a matter of policy the Government gave weightage to both the categories.
In Devi Prasad and others vs Government of Andhra Pradesh and others.
AIR 1980 SC 1185, G.O. Ms. No.893 referred to above was questioned on the ground of unreasonableness in the matter of giving weightage to the upgraded supervisors.
This Court held that in the light of their experience there is nothing unreasonable in giving them limited benefit or weightage.
It was further observed as under: "Ultimately; it is a matter of Government policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service.
In the present case, there may be truth in the case of the appellants that they are hit hard because of the new rule.
Dr. Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby.
But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal.
However, Government must be interested in keeping its servants specially in strategic areas like engineering contended and efficient.
In so producing contentment, it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them.
A sense of justice must permeate both the groups." However, the upgraded Junior Engineers who having got the benefit of four years ' service cannot be heard to say that similar weightage cannot be given to the direct recruits who prior to the selection were working on temporary basis.
Shri Kanta Rao, learned counsel relied on the decisions of this Court in Smt.
M.Nirmala and other vs State of Andhra Pradesh and others etc., [1986]3 SCC 647; Ashok Gulati and others vs B.S. Jain and others.
, [1986] Supp. SCC597; Direct Recruit Class II Engineering Officers ' Association vs State of Maharashtra and others, [1990] 2SCC 715 and Masood Akhtar Khan and others vs State of Madhya Pradesh and others, and contended that both the categories were discharging the same duties and there should not be any discrimination.
Learned counsel also relied on some unreported judgments of the Andhra Pradesh High Court in writ Petitions Nos.
1929, 1006 and 2387/ 310 73 and also Writ Petitions Nos.
3897/72.
We have perused all these judgments and we are of the view that such a question did not arise in these cases.
The question to be considered is from which date the weightage of four years ' service should be given to the upgraded Junior Engineers namely the Supervisors.
Is it the date of acquiring the degree qualification or the date of their appointment? Having given our earnest consideration and for the reasons stated above we hold that the weightage can be given only from the date of their appointment.
The Tribunal in the course of its order, however, observed that in accordance with the existing rules the appointments of these Junior Engineers from the notional date have to be cleared by the Public Service Commission and the appointments cannot be held to be regular appointments as long as they are not approved by the Public Service Commission.
Having referred to the Rules, the Tribunal in paragraph 18 observed thus: "We thus find that the appointment of the upgraded JEs as well as the direct JEs to the Gazetted posts have not been made strictly in accordance with the Rules and, hence, it is necessary for the Government to issue specific orders after following the procedure laid down in the Rules, in regard to their appointment to the Gazetted post of `Junior Engineers.
" Having so observed the Tribunal suggested some working formula in the meanwhile.
In evolving this formula the Tribunal further held thus.
"Thus, after having examined the points raised for and against the action taken by the Government in giving the upgraded Junior Engineers the benefit of the notional dates of appointment given to them and in giving the direct Junior Engineers benefit of the dates of the regularisation of their services from the dates of their initial appointment subject to the maintenance of the order ranking given by the P.S.C., we feel that the Government action in this respect was quite justified.
" Towards the end the Tribunal, however, observed that the seniority of the upgraded Junior Engineers who acquired the degree qualification before 28.2.72 will have to be fixed by putting them below all the regular Junior Engineers.
Likewise those who have acquired the degree qualification after 28.2.72 their seniority have to be fixed on the basis of notional date of appointment by "interspersing" among the regular Junior Engineers.
The learned counsel for the State of A.P. submitted that this exercise of "interspersing" becomes impossible at this stage.
311 Having given our careful consideration particularly to the fact that this litigation has been pending for the last so many years, about two decades.
We feel that it is high time a finality has to be reached by resolving the controversies and in this context we are of the view that the approval of the Public Service Commission in respect of these appointments need not be sought, if the Government has not already obtained the approval of the Public Service Commission.
To sum up, our conclusions are as under: (i) The weightage of four years in respect of upgraded Junior Engineers as provided in G.O. Ms. No. 559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification; (ii) On the basis of that notional date, their inter se seniority has to be fixed; (iii) The regularisation of the degree holder Junior Engineers who passed the SQT by giving retrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the SQT; (iv) The Government shall prepare a common seniority list of the degree holders Junior Engineers and the upgraded Junior Engineers on the above lines and that list shall be the basis for all the subsequent promotions.
Promotions, if any, already given shall be reviewed and readjusted in accordance with the said seniority list; and (v) The approval of the Public Service Commission in respect of these appointments and their seniority thus fixed need not be sought at this distance of time.
Accordingly Civil Appeal Nos. 752 55/84 are disposed of as per the directions given above.
There will be no order as to costs.
S.L.P.(C) No. 5218/85: This Special Leave Petition arises out of a separate order passed by the A.P. Administrative Tribunal in R.P. No. 1473/80.
The petitioners before the Tribunal belong to A.P. Panchayati Raj Engineering Department in Zone No. 1.
They are all graduates in Civil Engineering and were temporarily appointed as Junior Engineers originally in the Public Works Department in 1969.
Their services were terminated for want of vacancies.
However, during the year 1973 they were again appointed in the A.P. Panchayati Raj Engineering Department.
They also appeared in the Spe 312 cial Qualifying Test and they were selected by the Public Service Commission and they were appointed as regular Junior Engineers.
They commenced their probation.
The respondents before the Tribunal were appointed as Supervisors and after they acquired the degree qualification they were designated as Junior Engineers.
The grievance of the petitioners was that the respondents could not have been put above the petitioners in the matter of seniority and their seniority should have been reckoned from the date of their acquiring the graduate qualification.
G.O. Ms. No. 422 issued by the Department declaring them as seniors to the petitioners, was specifically questioned before the Tribunal.
The Tribunal held that the impugned G.O.Ms. is vitiated firstly on the ground that the principles of natural justice have not been observed and secondly that the petitioners before the Tribunal who were the direct recruits and who were selected by the Public Service Commission after holding the SQT, are entitled to count their service in the ranking of Junior Engineers from the date of their appointment subject to the order regarding the maintenance of ranking given by the Public Service Commission.
The said order of Tribunal is questioned in this Special Leave Petition by the upgraded Junior Engineers who were the respondents before the Tribunal.
In this petition also the grounds raised are the same as in Civil Appeal Nos. 752 55/84.
The conclusion reached by us in the above matters also govern the points in this petition.
Accordingly this Special Leave Petition is disposed of in terms of the directions given in Civil Appeal Nos. 752 55/84.
There will be no order as to costs.
W.P. (C) No. 3566/85: This Writ Petition is filed under Article 32 of the Constitution of India.
The petitioners are all upgraded Junir Engineers of A.P. Panchayati Raj Engineering Service.
They have questioned G.O.Ms.
No. 376/84 under which some promotions were made on the basis of the inter se seniority list of the direct recruits and upgraded Junior Engineers.
The conclusions reached by us in Civil Appeals Nos.
752 55/84 also govern the points raised in this Writ Petition.
Accordingly the Writ Petition is disposed of in terms of the directions given in Civil Appeals Nos. 752 55/84.
There will be no order as to costs.
G.N. Matters disposed of.

dataset_name: IN-Abs

summary/full:
The A.P. Engineering Subordinate Service Rules were amended in 1972 by way of Government order.
It provided that supervisors who acquired B.E./A.M.I.E. degree while in service would be entitled to count 50 % of the services rendered as Supervisors prior to acquiring the said qualification subject to a maximum of four years.
However, this was subject to certain conditions, the Chief among them was that they should be considered to have been placed below the last of the Junior Engineer of the year, after giving such weightage.
Order dated 10.6.76 required that the Supervisors who acquire the degree qualification while in service would be appointed, as Junior Engineers with immediate effect.
The abovesaid order was amended on 8.11.76 giving benefit of the weightage to only those who acquired the degree qualification prior to 28.2.72.
In 1977, by another order of the State Government, the post of Junior Engineer was made Gazetted post.
In separate petition before the Andhra Pradesh Administrative Tribunal, the Supervisors upgraded as Junior Engineers including those who acquired the degree qualification after 28.2.72, as well as the State of A.P. agitated the issue regarding inter se seniority between the upgraded Junior Engineers and the direct recruit Junior Engineers.
The Tribunal heard all the matters together and gave a finding that there was no bar to the retrospective regularisation 296 of the directly recruited Engineers from the dates of their initial appointments.
The Tribunal also upheld the action of the Government in giving the benefit of the notional date of appointment to the upgraded Junior Engineers and the benefit of the date of regularisation of their services from the dates of their notional appointments subject to maintenance of order or ranking given by the Public Service Commission.
The Tribunal also ordered that the ranking given by the Public Service Commission in respect of directly recruited Junior Engineers his to be maintained and each of them would be entitled to count has seniority from the date on which his service has been regularised or from the date of regularisation of the service of the person immediately below in the order of ranking given by the Public Service Commission, whichever was earlier.
In respect of upgraded Junior Engineers who acquired degree qualification after 28.2.1972, the Tribunal gave a specific direction that their seniority has to be fixed on the basis of specific notional date of appointment given to them by interspersing their names among regular Junior Engineers as arranged in chronological order of dates from which such regular Junior Engineers are entitled to count their seniority.
Aggrieved against the Tribunal 's order, the State Government and the supervisors upgraded as Junior Engineers, preferred the present appeals.
On behalf of the State, it was contended that the direction of the tribunal particularly interspersing was not workable, since the upgraded Junior Engineers have put in long years of service and were discharging the same duties as the directly recruited Junior Engineers and this factor should be taken into account in fixing the notional date of appointment and inter se seniority.
On behalf of the upgraded Junior Engineers, it was contended that in G.O. Ms No.559 it is specifically laid down that Supervisors who have acquired graduate qualification may be appointed as Junior Engineers after 28.2.75 and the weightage of four years should be reckoned from the date of acquiring the degree qualification i.e.28.2.72 or thereafter; and their seniority should not be fixed from the date of the order of appointment.
On the order hand, the direct recruit Junior Engineers contended that the upgraded Junior Engineers can under no 297 circumstances be treated as seniors to the directly recruited Junior Engineers for the appointment of Junior Engineers was suspended for some time and in view of the exigencies the degree holders were appointed on temporary basis and they have served for a number of years; the Government decided to make regular appointments and accordingly a Special Qualifying Test was held in which they qualified and they were given the appointments; and a seniority list strictly on the basis of performance in the test and on merit was prepared by the Public Service Commission and a retrospective effect was given.
It was further contended that so far as the upgraded Junior Engineers are concerned all the relevant G.O.Ms.
make it clear that the crucial date has to be reckoned on the basis of the actual date of appointment and not on the date of acquiring the degree.
Disposing of the matters, this court, HELD: 1.1.
The weightage of four years in respect of upgraded Junior Engineers as provided in G.O.Ms.
No.559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification.
On the basis of that notional date, their inter se seniority has to be fixed.
[311 B C] 1.2.G.O.
Ms. No. 559 makes it abundantly clear that the appointments of the upgraded Junior Engineers who acquired the graduate qualification while in service, would be prospective only and that they would be entitled to the weightage of four years of service rendered before the appointment.
It does not anywhere indicate that the weightage should be from the date of acquiring the degree qualification.
It is only after acquiring such degree qualification that a Supervisor is appointed as Junior Engineer and having regard to the service rendered by him, the Government, as a policy, decided to give weightage of four years for the purpose of considering the eligibility for promotion as Assistant Engineer.
[308 C D] 2.1.The regularisation of the degree holders Junior Engineers who passed the Special Qualifying Test by giving restrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the Special Qualifying Test.
[311 D] 2.2.
The degree holders were appointed temporarily because of a ban and later the Government again, as a policy decision, decided 298 to make regular appointments by direct recruitment but enabled the degree holders who were in temporary service to appear in a Special Qualifying Test.
Here again, as a matter of policy, the Government decided to give some weightage to the service rendered by them before the appointment by selection.
Thus, the Governement, in fixing the seniority for the purpose of future promotion of the appointees both the upgraded Junior Engineers as well as those selected by the Public Service Commission in the Special Qualifying Test has taken into account the past service rendered by them.
[308 E F] 3.
In the case of upgraded Junior Engineers weightage of four years service was given and in the other case two years, weightage was given.
As a matter of policy, the Government gave weightage to both the categories discharging the same duties.
The upgraded Junior Engineers who having got the benefit of four years` service, therefore, cannot say that similar weightage should not be given to the direct recruits who, prior to the selection, were working on temporary basis.
B, F] Devi Prasad and Ors.
vs Government of Andhra Pradesh and Ors.
, AIR 1980 SC 1185, relied on.
M. Nirmala and Ors.
vs State of Andhra Pradesh and Ors.
; , ; Ashok Gulati and Ors.
vs B.S.Jain and Ors., [1986] Sup.
SCC 597; Direct Recruit Class II Engineering Officers Association vs State of Maharashtra and Ors.
, ; ; Masood Akhtar Khan and Ors.
vs State of Madhya Pradesh and Ors., , referred to.
The Tribunal has rightly pointed out that under Rule 23 A of the A.P State and Subordinate Service Rules, 1962 if a person having been appointed temporarily under Rule 10 to a post borne on the cadre is subsequently appointed in the service in accordance with the rules, he shall commence his probation from such subsequent date or the earlier date as the appointing authority may determine.
The Tribunal was also right in holding that there was no bar to the retrospective regularisation of the service of the direct recruit Junior Engineers.
[308 G H; 309 A] 5.
In the light of this Judgment, the State Government shall prepare a common seniority list of the degree holder Junior Engineers and the upgraded Junior Engineers and that list shall be the 299 basis for all the subsequent promotions.
Any promotion already given shall be reviewed and readjusted in accordance with the said seniority list.
[311 D E] 6.
Since this litigation has been pending for about two decades, it is high time a finality has to be reached by resolving the controversies and in this context the approval of the Public Service Commission in respect of these appointments need not be sought, if the Government has not already obtained the approval of the Public Service Commission.
[311 A B]