PRAMOD K. PANKAJ versus STATE OF BIHAR AND ORS.

Citation: [2003] SUPP. 5 S.C.R. 916 · Decided: 20-11-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
PRAMOD K. PANKAJ 
V. 
STATE OF BIHAR A1''D ORS. 
B 
NOVEMBER 20, 2003 
(V.N. KHARE, CJ. AND S.B. SINHA, J.) 
Service Law : 
C 
Seniority-Inter se seniority-Determination of-Held: In the absence 
of any statutory provisions or rules made thereunder or under the proviso to 
Art. 309 of the Constitution seniority has to be counted from the date of 
appointment. 
D 
Seniority-Inter se seniority-Government resolution stipulated 
acquisition of higher qualification and experience of jive years as conditions 
for promotion-Implication of-Held: As no date for acquisition of higher 
qualification had been prescribed by the resolution, in the absence of statutory 
rules governing the field. seniority had to be reckoned from the date of 
appointment as also continuous officiation in the lower post. 
E 
Administrative Law : 
Subordinate legislation-Judicial review-Government resolution 
authorized Personnel Department to determine inter se seniority of the 
promotees-But Water Resources Department issued a gradation /seniority 
F list on its own-Validity of-Held: The G.overnment resolution was an executive 
order passed by the State in terms of Art. 162 of the Constitution-The 
Personnel Department alone was competent to take a decision regarding inter 
se seniority-Hence, the gradation/seniority list issued by the Water Resources 
Department was illegal having been issued by an authori1y which had no 
G jurisdiction-The gradation/seniority list set aside-Constitution of India, 1950, 
Art. 162. 
H 
Delegation of power-"Delegatus Non Potest Delegare "-Government 
resolution authorized Personnel Department to determine inter se. seniority of 
promotees-But the Personnel Department neither laid down any procedure 
916 
PRAMOD K. PANKAJ v. STATE OF BIHAR. 
917 
for such determination nor delegated the said power to Water Resources A 
Department-However, Water Resources Department, on its own, issued a 
gradation/seniority list-Validity of-Held: It was beyond any cavil that the 
Water Resources Department did not have the competence to issue the said 
gradation/seniority list-If a guideline for determining the inter se seniority 
was to be laid down only the State could do so under Art. 162 of the 
Constitution-Hence, said gradation/seniority list set aside. 
B 
Maxims: 
"Delegatus Non Potest Delegare"-Explained 
The appellant and the contesting respondents were appointed as C 
Junior Engineers in the State Subordinate Engineering Service Cadre. The 
·state Government passed a resolution to provide special facilities by way 
of incentive of promotion to the post of Assistant Engineer to those Junior 
Engineers who had acquired degree in Engineering during service and also 
had five years of experience. The said resolution stipulated that the decision D 
regarding inter se seniority of these Junior Engineers would be taken by 
the Personnel Department. The Personnel Department, however, did not 
lay down any procedure for the determination of inter se seniority and 
also did not delegate this power to any authority. 
However, the Water Resources Department arrogated the said power E 
and published a gradation list in respect of the Junior Engineers. The 
appellant filed his representation/objection to the said gradation list. 
Being aggrieved the appellants in CA Nos. 62-65of1999 filed a writ 
petition before the High Court, which was dismissed, on the ground that 
the said gradation list was not in conflict with the Government resolution. 
The High Court also dismissed the LPA filed by the appellant in CA No. 
66 of 1999 on the ground of limitation. Hence the appeals. 
Allowing the appeals, the Court 
F 
HELD : 1. In the absence of any statutory provision or rules made G 
thereunder or under the proviso appended to Article 309 of the 
Constitution of India, it is trite, that once an incumbent is appointed to a 
post according to rules his seniority has to be counted from the date of 
his appointment. 1923-FJ 
H 
• 
918 
SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R. 
A 
MB. Joshi v. Salish Kumar Pandey, (1993( Supp. 2 SCC 419, Satpal 
B 
Anti/ v. Union of India, (1995( 4 SCC 419 and D. Stephen Joseph v. Union 
of India, (1997] 4 SCC 753, relied on. 
N. Suresh Nathan v. Union of India, (1992] Supp. 1 SCC 594 and Ashok 
Kumar Sharma v. Chander Shekhar, (1997] 4 SCC 18, held inapplicable. 
2. The Government resolution was an executive order passed by the 
State in terms of Article 162 of the Constitution of India. By reason of 
the said

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