JAGDISH KUMAR AND ORS. versus STATE OF H. P. AND ORS.

Citation: [2005] SUPP. 5 S.C.R. 202 · Decided: 11-11-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
JAGDISH KUMAR AND ORS. 
v. 
ST A TE OF H. P. AND ORS. 
NOVEMBER I I, 2005 
[ARIJIT PASAYA T AND C.K. THAKKER, JJ.] 
Hlmachal Pradesh PWD Subordinate Services Class /fl Draftsmen and 
Tracers Recruitment and Promotion Rules 1961-Rules 6 and 14-Rules 
C providing for educational and technical qualifications-Respondents 
possessing the qualification at the time of appointment-Relaxation of Rule 
by Government Order in 1973-Appellants appointed as Tracers under relaxed 
conditions during the years 197 4-7 6-Their names included in the seniority 
list in 1977-Appellants qualifying in the departmental examination held in 
1980, ranked senior to respondent and promoted as assistant draftsmen-
D Respondents challenging the appointment, seniority and promotion of 
appellants-Tribunal holding the promotion to be illegal and directing 
deletion of their names from seniority list-High Cou;t holding the appellants 
to be eligible for promotion but directed reckoning of their inter-se seniority 
from the date they qualified at the departmental examination-Allowing the 
E appeal, held, appellants were entitled to be placed in the seniority list from 
the date of their initial appointments. 
Code of Civil Procedure, 1908-0rder 41 Rule 22-Supreme Court-
Practice and Procedure-Issues that respondent can raise-Right of 
Respondent to support the judgment of the High Court without preferring an 
F appeal on the ground found against him-Held, respondents can question 
the correctness of the view adverse to them even though they have not filed 
an appeal-Power of Supreme Court in this respect not fettered by absence 
of provision like Order 41 Rule 22 of Civil Procedure Code. 
The appellants were recruited as Tracers Draftsmen during the years 
G 1974-76 under the relaxed conditions in the Rules. They qualified in the 
departmental examination held in 1980. Respondents appointed after 1977 
were possessed of the requisite qualification. Appellants were ranked senior 
to respondents in the seniority list circulated in 1980 and were promoted as 
assistant draftsmen. Respondents challenged the appellants' appointment as 
H 
202 
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JAGDISH KUMAR v. ST ATE OF H.P. 
203 
Tracers, placement in the seniority list above them and promotion. Tribunal A 
held that appellants were not eligible for promotion and directed deletion of 
their names from seniority list. On a writ petition, the High Court held that 
though the appellants were eligible for regular promotion, their inter-se 
seniority was to be reckoned w.e.f. the date they qualified at the departmental 
examination. In appeal to this Court it was contendf'd that after having held 
that the appellants were qualified and eligible to be appointed as Draftsmen, B 
the view regarding their placement in the seniority list expressed by the High 
Court is clearly unt~nable and the respondents having not questioned the 
correctness of the High Court judgment are estopped from questioning the 
legality of promotion as decided by th~ High Court. 
c 
Allowing the appeal, the Court 
HELD : 1.1. For being eligible to be considered for appointment as 
Assistant Dtaftsman, the requirements are indicated in Rule 6 (ii). Once the 
requirement of passing diploma of Draftsman Course is relaxed in terms of 
Rule 6 (i) for appointment as Tracer, there is no necessity for again having D 
relaxation for being considered as Assistant Draftsman. That contingency is 
already taken care of when relaxation is given for appointment as Tracer. 
Otherwise, a person who has been found eligible to be appointed as a Tracer 
will not be considered for promotion as Assistant Draftsman, even though 
there is no illegality attached to the appointment as Tracer. Such a view would 
go against the logic ofrelaxation for appointment as Tracer. (215-B-C] 
E 
1.2. The appointment itself takes effect from the date of appointment 
and in the event of not passing the examination the consequences would follow. 
But that cannot be a ground to hold that there was no appointment in the eye 
of law till examination is passed. The Government also recognized this position F 
as is evident from declaration of the seniority list on 14.10.1977 wherein the 
appellants were included in the seniority list though they had not cleared the 
examination by that time as no examination was held. In the eye of law th~ 
appointment of the appellants was from the date of their initial appointment 
which of course was conditioned with the requirement 

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