B. N. Nagarajan & Ors Vs. State of
Karnataka & Ors [1959] INSC 54 (3 May 1959)
KOSHAL, A.D.
KRISHNAIYER, V.R.
KAILASAM, P.S.
CITATION: 1979 AIR 1676 1979 SCR (3) 937 1979
SCC (4) 507
CITATOR INFO :
RF 1991 SC 764 (9,10)
ACT:
Mysore Government Servants (Seniority) Rules
1957 Rule 2 read with Rule 2 of the Mysore Government Servants (Probation)
Rules 1957-Scope of. Constitution of India, Art. 226-Whether the scope of the
Writ Petition be limited to the prayer portion alone?
HEADNOTE:
In the new State of Mysore (Now Karnatake)
which came into existence on 1-11-56 as a result of integration of the areas
which formed part of erstwhile States of Mysore, Madras, Coorg, Bombay and
Hyderabad, the Government on 6-2- 58, 7-2-58 and 2-12-60 respectively
promulgated the following Rules (all framed under Article 309 of the
Constitution) namely, "The Mysore Government Servants (Probation) Rules
1957, "The Mysore Government Servants (Seniority) Rules 1957 and "The
Mysore Public Works Engineering Department Services (Recruitment) Rules,
1960" The recruitment Rules envisaged appointment of Assistant Engineers
in the Public Works Department by direct recruitment to the extent of 40% and
by promotion for the rest viz. 50% from the cadre of Junior Engineers and 10%
from the cadre of supervisors. The cadre of Assistant Engineers was to consist
of 344 permanent and 345 temporary posts.
Prior to 1-11-56 in the merged States, there
was a non gazette class designated as graduate supervisors in Mysore State, as
Junior Engineers in the Madras State and as supervisors in the States of Bombay
and Hyderabad. The claim of the graduate supervisors who were given charge of
sub- divisions prior to 1-11-56 and continued to hold the same even thereafter,
for equation of their posts with those of Assistant Engineers, was rejected by
the Central Government.
However, on 15-11-58, 167 of them (including
107 graduate supervisors from Mysore) and between the period 2nd Dec. 1958 and
13th October '60, 299 more persons of the same class were promoted as
officiating Assistant Engineers. With reference to three notifications of the
Mysore Public Service Commission dt. 1-10-58, 4-5-59 and 1-4-61, eighty eight
candidates were appointed on 31st Oct.' 61, i.e. 8 days after the amendment of
the Recruitment Rules giving them retrospective effect from 1st March 1958, as
Probationary Assistant Engineers by direct recruitment. The challenge to their
appointment was ultimately rejected by this Court in B. N. Nagarajan v. State
of Mysore & Ors., [1966] 3 S.C.R. p. 682 holding that their appointment
although made after the Recruitment Rules had come into force, were valid, as
the process of direct recruitment had been set in motion by the State
Government in exercise of its executive power under Article 162 of the
Constitution of India well before the Recruitment Rules were promulgated and
that these appointments were therefore, "outside the Recruitment
Rules".
In the year 1971 various orders were passed
promoting some of the direct recruits to the posts of Executive Engineers and
those orders were challenged by 938 the promotees on the ground that they had
been given promotions "on regular basis" which amounted to
substantive appointments and that therefore they should rank senior to the
direct recruits. Subsequent to the issue on 4-9-73 of a revised seniority list superseding
the list (G) prepared on 28-9-72 further writ petitions were filed by the
promotees.
All the petitions were heard together by the
High Court and allowed with the following directions:
(i) Promotees other than those covered by
direction (ii) and direct recruits, would not be governed by the quota system
as envisaged in the Recruitment Rules.
(ii) Promotees who were appointed to posts of
Assistant Engineers with effect from 1st of March 1958, or later dates, would
be governed by the quota system as envisaged in the Recruitment Rules.
(iii) Promotees appointed as Assistant
Engineers prior to 31st October 1961 would rank senior to the direct recruits
whose appointments were made on that date.
(iv) The claim of each of the promotees to
the next higher post shall be considered with effect from a day prior to that
on which any officer found junior to him was promoted.
Allowing the appeals by special leave, the
Court ^ HELD:
1. The scope of the writ petition was not
limited to the question of preemption of Assistant Engineers as Executive
Engineers. The attack on the seniority list dated 4th Sept. 1973 was inherent
in the case set up by the promotes, of which it formed an integral part. Though
no prayer had been made by the promotes to quash or rectify the seniority list
dated 4th September 1973, their whole case was based on the contention that
they had been promoted to the posts of Assistant Engineers in a substantive
capacity prior to the appointment of direct recruits, that they would take
precedence over direct recruits in the matter of seniority and regular
absorption in the cadre of Assistant Engineers and that it was on that account
that the promotion of direct recruits to the posts of Executive Engineers
without consideration of the case of the promotes for such promotion was
illegal. [946E-G]
2. No exception is or can be taken on behalf
of the promotees to the finding arrived at by the High Court that the appointment
of direct recruits to the posts of Assistant Engineers was in order, in view of
the judgment of this Court in B. N. Nagarajan v. State of Mysore, [1966] 3 SCR
p. 682. Nor can it be urged with any plausibility on behalf of direct recruits
that the appointment of the promotees as Assistant Engineers prior to the
enforcement of the Recruitment Rules lay outside the powers of the Government
or was otherwise illegal. [946G-H, 947A] V. B. Badami and Ors. v. State of
Mysore and Ors., [1976] 1 SCR 815 and B. N. Nagarajan v. State of Mysore and
Ors., [1966] 3 SCR 682; followed.
3. A combined reading of Rule 2 of the
Seniority Rules and the definition of the words "appointed on
probation" and "Probationer" in Rule 2 of the Probation Rules,
makes it clear that the direct recruits were appointed as Assistant 939
Engineers, "substantively in clear vacancies" as envisaged by clause
(a) of rule 2 of the Seniority Rules. If any of the promotees also satisfied
that requirement at any time earlier to the 31st of October 1961, he would be
bracketed with the direct recruits under that clause and his seniority
vis-a-vis those recruits would then be governed by clause (b) of the rule i.e.,
on the basis of his and their respective dates of confirmation. If, on the
other hand, none of the promotees can be said to have been appointed
substantively in a clear vacancy, clause (a) aforesaid would have no
application to them and all direct recruits would rank senior to them. [947G-H,
948A-B]
4. In the instant case, all through the
relevant period the promotees held appointments as Assistant Engineers in
non-substantive capacity, i.e., either on an officiating or a temporary basis.
This being the position, they would all rank junior to the direct recruits who,
from the very start, held appointments made "substantively in clear
vacancies".
[950H, 951A] (a) The language employed in the
first order dated 15th November 1958 (Ex.A) appointing promotees as Assistant
Engineers makes it clear that the promotion of the 167 officers was not
substantively made, the tenure being specifically stated to be either
"officiating" or "purely temporary" and "subject to
review after the finalisation of the inter se seniority list of supervisors and
the Recruitment Rules", which expressions clearly militate against a
substantive appointment. [948E-G] (b) Orders made by the State Government later
on right upto the 31st October, 1961 when the direct recruits were appointed as
Assistant Engineers did not improve the position of any of the promotees in any
manner. These orders were either silent on the point of the nature of the
tenure of the promotees as Assistant Engineers, or stoted in no uncertain terms
that the promotees would hold the posts of Assistant Engineers on a temporary
or officiating basis.
[948G-H. 949A] (c) The two Notifications
dated 27th February 1962, and order Exhibit (D). dated 6th October 1962-the
combined effect of which was to promote the said 107 officers as Assistant
Engineers with effect from 1st of November 1956 "on a regular basis"
do not give it the colour of permanence to the appointments of the promotees as
Assistant Engineers which cannot therefore be deemed to have been made
substantively right from the 1st of November 1956 for two reasons; Firstly, the
words "regular" or "regularisation" do not connote
permanence. They are terms calculated to condone any procedural irregularities
and are meant to cure only such defects as are attributable to the methodology
followed in making the appointments. Secondly, when rules framed under Article
309 of the Constitution of India are in force, no regularisation is permissible
in exercise of the executive powers of the Government under Article 162 thereof
in contravention of the Rules. The regularisation order was made long after the
Probation Rules. the Seniority Rules and the Recruitment Rules were promulgated
and could not therefore direct something which would do violence to any of the
provisions thereof. Regularisation in the present case, if it meant permanence
operative from the 1st of November, 1956 would have the effect of giving
seniority to promotees over the direct recruits who, in the absence of such
regularisation. would rank senior to the former because of the Seniority Rules
read with the Probation Rules and may in consequence also confer on the
promotees a right of priority in the matter of sharing the quota under the
Recruitment Rules. In 940 other words, the regularisation order, in colouring
the appointments of promotees as Assistant Engineers with permanence would run counter
to the rules framed under Article 309 of the Constitution of India. What could
not be done under the three sets of Rules as they stood, would thus be achieved
by an executive fiat. And such a course is not permissible because an act done
in the exercise of the executive power of the Government, cannot override rules
framed under Article 309 of the Constitution. [949B-D, 950D- G] State of Mysore
and Anr. v. S. V. Naraynaswami, [1967] 1 SCR 128 and R. N. Nanjundappa v. T.
Thimmiah, [1972] 2 SCR 799; applied.
The Court made it clear (a) "that this
order does not cover such officers as were holding the posts of Assistant
Engineers on a substantive basis prior to the 1st of November, 1956 when the
new State of Mysore now known as Karnataka came into being, and the case of any
Assistant Engineer who acquired a substantive status prior to the promulgation
of the Recruitment Rules and the appointment of the direct recruits; (b) that
persons falling within these two categories will first have to be accommodated
in the clear vacancies available and only the remaining vacancies will have to
be utilised for fitting in the direct recruits and the Assistant Engineers who
have disputed their claim in these proceedings; and (c) that the quota rule
will not stand in the way of the Government giving effect to this arrangement
which has been taken care of in the amendment (promulgated on the 23rd of
October 1961) to the Recruitment Rules"].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2329 of 1977.
Appeal by Special Leave from the Judgment and
Order dated 30-11-1976 of the Karnataka High Court in W.P. No 2307/71.
CIVIL APPEAL NOS. 2330-2350/77 Appeals by
Special Leave from the Judgment and Order dated 30-11-1976 of the Karnataka
High Court in W.P. Nos.
2307/71, 796/72, and 462-467, 553-560, 943,
944, 1033, 1027 and 1032/73; and CIVIL APPEAL NOS. 2351-2370/77 Appeals by
Special Leave from the Judgment and Order dated 30-11-1976 of the Karnataka
High Court in W.P. Nos.
462-467, 553-560, 796, 943,944, 1027,
1033/73.
P. Ram Reddy and S. S. Javali for the
Appellant in CA 2329/77.
F. S. Nariman, B. P. Singh and A. K.
Srivastava for the Appellants in C.A. Nos. 2351-2370/77.
L. N. Sinha and Narayan Nettar for the
Appellants in C.A. 2330 to 2370/77.
A. K. Sen, Muralidhar Rao and P. R. Ramasesh
for RR. 2,3,5, and 7 in C.A. 2329/77.
P. R. Ramasesh for RR/Promotees in CA
2330-2350/77 and RR in C.A. 2352-2370/77.
941 Y. S. Chitale, M. Muralidhar Rao, P. R.
Ramasesh and S. S. khanduja, for the RR in C.A. 2351/77.
The Judgment of the Court was delivered by
KOSHAL, J.-By this judgment we shall dispose of 42 appeals by special leave,
namely, Civil Appeals Nos. 2329 to 2370 of 1977, all of which are directed
against a judgment dated the 30th November, 1976 of a Division Bench of the
High Court of Karnataka. Civil Appeals Nos. 2329 and 2351 to 2370 of 1977 have
been filed by different persons who were appointed Assistant Engineers in the
Karnataka State on 31st October, 1961, by way of direct recruitment while the
other 21 appeals have been filed by that State.
2. The facts giving rise to the impugned
judgment may be set down in some detail. A new State came into existence on the
1st of November, 1956 as a result of integration of the areas which formed part
of the erstwhile States of Mysore, Madras, Coorg, Bombay and Hyderabad
(hereinafter referred to as the Merged States). It was then given the name of
one of its constituents, namely, the State of Mysore, which was later changed
to that of the Karnataka State. In the Public Works Departments of the Merged
States there was a class of non-gazetted officers ranking below Assistant
Engineers. The class was designated as Graduate Supervisors in the Merged State
of Mysore, as Junior Engineers in the Merged State of Madras and as Supervisors
in the Merged States of Hyderabad and Bombay. The Graduate Supervisors were
paid a fixed salary of Rs. 225/- per mensem which was lower by Rs. 25/- per
mensem as compared to the starting salary of Assistant Engineers, who, in the
normal course, were expected to head sub-divisions. To the post of Assistant
Engineer a Graduate Supervisor was appointed only on promotion.
Prior to the 1st of November, 1956, quite a
few Graduate Supervisors were given charge of sub-divisions and designated as
Sub Divisional Officers in order to meet the exigencies of service and they
continued to act as such after the merger when they claimed equation of their
posts with those of Assistant Engineers in the matter of integration of
services. To begin with their claim was turned down by the Central Government
who equated the posts of Graduate Supervisors with the posts of Junior
Engineers of the Merged State of Madras and the posts of Supervisors of the
Merged States of Hyderabad and Bombay.
By a notification dated the 6th of February,
1958, the Government of Karnataka (then known as the Government of Mysore) 942
promulgated the Mysore Government Servants (Probation) Rules, 1957 (hereinafter
called the Probation Rules) and on the next day came into force the Mysore
Government Servants (Seniority) Rules, 1957 (hereinafter referred to as the
Seniority Rules), both having been framed under Article 309 of the Constitution
of India.
On the 1st of October, 1958, the Karnataka
Public Service Commission invited applications from candidates for appointment
to the posts of Assistant Engineers by direct recruitment.
In the meantime Graduate Supervisors and
Government employees holding equivalent posts had continued to press their
claim for the equation of their posts with the posts of Assistant Engineers and
they succeeded partially when, on the 15th of November, 1958, the Karnataka
Government promoted 167 of them (including 107 Graduate Supervisors who had
been working as such in the Merged State of Mysore) as officiating Assistant Engineers
with immediate effect. The promotion was notified in the State Gazette dated
the 20th of November, 1958 (Exhibit A) the relevant portion whereof may be
reproduced for facility of reference:
"....... The following supervisors of
Public Works Department are promoted as officiating Assistant Engineers with
immediate effect and until further orders against the existing vacancies
subject to review after the finalisation of the Inter-Se Seniority List of
Supervisors and the Cadre and Recruitment Rules of Public Works Department. The
promotion of officers from Sl. No. 74 to 167 against existing vacancies will be
purely on a temporary basis pending filling up of the vacancies by Direct
Recruitment as per rules. The Seniority inter se of the Promotees will be
provisional according to the order given below : ..........
".
299 more persons of the same class were
promoted to the posts of Assistant Engineers by eight notifications published
during the period from 22nd of December, 1958 to the 13th of October, 1960.
On the 21st (31st?) of August, 1960, the
State Government passed an order in regard to the 107 Graduate Supervisors from
the Merged State of Mysore and mentioned above, directing that they be treated
as Assistant Engineers and be paid the pre-revision scale of pay of Rs.
250-25-450 from the 1st of November, 1956 to the 31st of December, 1956 and the
revised scale of pay of Rs. 250-25-450-30-600 from the 1st of January, 1957
onwards. The order further directed that the said 107 officers shall be placed
in the inter-se seniority list below the Assistant Engineers.
943 On the 3rd of December, 1960, the
Karnataka Government promulgated the Mysore Public Works Engineering Department
Services (Recruitment) Rules, 1960 (hereinafter referred to as the Recruitment
Rules) under Article 309 of the Constitution of India, which envisaged
appointment of Assistant Engineers in the Public Works Department by direct
recruitment to the extent of 40 per cent and by promotion for the rest, viz.,
50 per cent from the cadre of Junior Engineers and 10 per cent from the cadre
of Supervisors. The cadre of Assistant Engineers was stated in the Rules to
consist of 344 permanent and 345 temporary posts.
On the 23rd of October, 1961, the Recruitment
Rules were amended so as to be operative retrospectively i.e., with effect from
the 1st of March, 1958.
On the 31st of October, 1961, 88 candidates
were appointed as Probationary Assistant Engineers by direct recruitment.
Two notifications were issued by the State
Government on the 27th of February, 1962. By each one of them 231 Junior
Engineers were given "regular promotions" as Assistant Engineers with
effect from specified dates falling within the period 15th of November, 1958 to
the 10th of November, 1960. The first of these notifications stated inter alia:
"....... However, the promotions are
subject to review after finalisation of the interse Seniority List of Junior
Engineers....." The second of the notifications issued on the 27th of
February. 1962, mentioned that the officers named therein would be deemed to be
temporarily promoted and permitted to continue to officiate as Assistant
Engineers on a provisional basis and until further orders.
The case of the said 107 officers received
further consideration at the hands of the State Government, who, on the 6th of
October, 1962, issued another order (Exhibit D) superseding the one dated the
31st of August, 1960, and promoting them as Assistant Engineers with effect
from the 1st of November, 1956.
By the 24th of September, 1966, the number of
Probationary Assistant Engineers appointed through direct recruitment
(hereinafter called direct recruits) had fallen to 85 for reasons which need
not be stated. On that day the State Government passed an order that they had
all completed their period of probation satisfactorily and stood absorbed
against substantive vacancies with effect from the 1st of November, 1962.
944 In 1971 various orders were passed
promoting some of the direct recruits to the posts of Executive Engineers and
those orders were challenged in a writ petition dated the 15th of September,
1971, by the promotees to the posts of Assistant Engineers (hereinafter
referred to as the promotees).
On the 28th of September, 1972, a list
(Exhibit G) of Assistant Engineers indicating their seniority inter se as on
the 1st of November, 1959, was prepared by the State Government. In that list
the promotees were accorded seniority to their satisfaction. However, that list
was superseded by another list dated the 4th of September, 1973, in which the
seniority inter se of all Assistant Engineers functioning in the State Public
Works Department as on 1st of January, 1973 was declared. The new list
purported to have been framed in accordance with the Recruitment Rules.
Objections to the list were invited and were
submitted by various officers.
During the year 1973 more writ petitions
challenging the promotion of direct recruits to the posts of Executive
Engineers were instituted by the promotees on whose behalf two claims were made
before the High Court, namely:
(1) that they had been regularly promoted as
Assistant Engineers against substantive vacancies with retrospective effect and
rightly so; and (2) that in the case of those of them whose promotion was made
effective from a date prior to the 1st of March, 1958, the Recruitment Rules,
especially the quota rule, could not affect them adversely.
Both these claims were accepted by the High
Court, the first on the basis of the decision of this Court in Ram Prakash
Khanna & others v. S. A. F. Abbas(1) coupled with the pleadings of the
parties and the various orders issued by the State Government and mentioned
above, and the second on the authority of another decision of this Court in V.
B. Badami & others v. State of Mysore & others(2). The High Court
accordingly held that the quota rule would not be attracted to the case of
those promotees who had been appointed to the posts of Assistant Engineers with
effect from a date prior to the 1st of March, 1958. By way of a 'clarification'
the High Court further ruled that the promotion of the 107 officers working in
the Merged State of 945 Mysore was made to substantive posts of Assistant
Engineers with effect from the 1st of November, 1956, and that the State
Government or the direct recruits could not be allowed to urge to the contrary.
According to the High Court such promotion was subject to review only if the
course was warranted and necessitated by the final inter se seniority list of
Junior Engineers, the right to review having been reserved by the Government in
its orders dated the 27th of February, 1962. In relation to the direct recruits
the High Court made a reference to the judgment of this Court in B. N.
Nagarajan v. State of Mysore & others(1) wherein it was held that their
appointments, although made after the Recruitment Rules had come into force,
were valid, as the process of direct recruitment had been set in motion by the
State Government in exercise of its executive powers under article 162 of the
Constitution of India well before the Recruitment Rules were promulgated and
that those appointments were therefore "outside the Recruitment
Rules".
The High Court consequently held that the
direct recruits were also not subject to the quota rule which could not,
according to it, affect them adversely.
Summing up, the High Court gave the following
directions:
(1) Promotees other than those covered by
direction (2) and direct recruits would not be governed by the quota system as
envisaged in the Recruitment Rules.
(2) Promotees who were appointed to posts of
Assistant Engineers with effect from the 1st of March, 1958, or later dates,
would be governed by the quota system as envisaged in the Recruitment Rules.
(3) Promotees appointed Assistant Engineers
prior to the 31st of October, 1961, would rank senior to the direct recruits
whose appointments were made on that date.
(4) The claim of each of the promotees to the
next higher post shall be considered with effect from a day prior to that on
which any officer found junior to him was promoted.
3. The first contention we would like to deal
with is one raised by Mr. F. S. Nariman appearing for the direct recruits. He
argued that the scope of the writ petitions instituted by the promotees was
limited to the question of promotion of Assistant Engineers as Executive
Engineers and that no challenge to the seniority list dated the 4th of
September, 1973 could be entertained. In this connection 946 reference was made
to the prayer clause appearing in Writ Petition No. 462 of 1973 which is in the
following terms:
"In this writ petition, it is prayed
that this Court may be pleased to:
(1) quash the promotion of respondents 2 to
31 to the cadre of Executive Engineers made as per order dated 3- 2-1973;
(2) direct the respondent 1 to consider the
case of the petitioner for promotion to the cadre of Executive Engineers with
effect from 3-2-1973 on which date respondents 2 to 31 were promoted; and (3)
pass an interim order, restraining the respondent 1 from making further
promotion to the cadre of Executive Engineers without considering the case of
the petitioner for such promotion, pending disposal of this writ
petition." (It was assumed at the hearing of the appeals that the prayer
made in the other writ petitions is to a similar effect).
It is true that no prayer has been made by
the promotees to quash or rectify the seniority list dated the 4th of
September, 1973, but then their whole case is based on the contention that they
had been promoted to the posts of Assistant Engineers in a substantive capacity
prior to the appointment of the direct recruits, that they would take
precedence over direct recruits in the matter of seniority and regular
absorption in the cadre of Assistant Engineers and that it was on that account
that the promotion of direct recruits to the posts of Executive Engineers
without consideration of the case of the promotees for such promotion was
illegal. The attack on the said seniority list therefore is inherent in the
case set up by the promotees, of which it forms an integral part. In this view
of the matter we cannot agree with Mr. Nariman that the scope of the writ
petitions is limited as stated by him.
4. No exception is or can be taken on behalf
of the promotees to the finding arrived at by the High Court that the
appointment of direct recruits to the posts of Assistant Engineers was in
order, in view of the judgment of this Court in B. N. Nagarajan v. State of
Mysore(supra). Nor can it be urged with any plausibility on behalf of direct
recruits that the appointment of the promotees as Assistant 947 Engineers prior
to the enforcement of the Recruitment Rules lay outside the powers of the
Government or was otherwise illegal. The real dispute between the direct
recruits and the promotees revolves round the quality of the tenure held by the
latter immediately prior to the enforcement of the Recruitment Rules and that
is so because of the language employed in rule 2 of the Seniority Rules. The
relevant portion of that rule is extracted below:
"2. Subject to the provisions
hereinafter contained, the seniority of a person in a particular cadre of
service or class of post shall be determined as follows:
(a) Officers appointed substantively in clear
vacancies shall be senior to all persons appointed on officiating or any other
basis in the same cadre of service or class of post;
(b) The seniority inter se of officers who
are confirmed shall be determined according to dates of confirmation, but where
the date of confirmation of any two officers is the same, their relative
seniority will be determined by their seniority inter se while officiating in
the same post and if not, by their seniority inter se in the lower cadre;
(c) Seniority inter se of persons appointed
on temporary basis will be determined by the dates of their continuous officiation
in that grade and where the period of officiation is the same the seniority
inter se in the lower grade shall prevail.
Explanation.......................................
(d)............" Now in so far as the
direct recruits, are concerned they were appointed as Probationary Assistant
Engineers i.e., Assistant Enginers "appointed on probation" which
term is defined in rule 2 of the Probation Rules. That rule states"
"2. For the purpose of these rules :- (1) "Appointed on
Probation" means appointed on trial in or against a substantive vacancy.
(2) "Probationer" means a
Government servant appointed on probation. A Government servant so appointed
(and continuing in service) remain a probationer until he is confirmed."
948 In view of these definitions it cannot be gainsaid that the direct recruits
were appointed Assistant Engineers "substantively in clear vacancies"
as envisaged by clause (a) of rule 2 of the Seniority Rules. If any of the
promotees also satisfied that requirement at any time earlier to the 31st of
october, 1961, he would be bracketed with the direct recruits under that clause
and his seniority vis-a-vis those recruits would the be governed by clause (b)
of the rule, i.e., on the basis of his and their respective dates of
confirmation. If, on the other hand, none of the promotees can be said to have
been appointed substantively in a clear vacancy, clause (a) aforesaid would
have no application to them and all direct recruits would rank senior to them;
and it is in the ligrht of the said clauses (a) and (b) therefore that learned
counsel for the State and the direct recruits have challenged the finding of
the High Court that the promotion of the 107 officers working in the Merged
State of Mysore was made to substantive posts of Assistant Engineers with
effect form the 1st of November, 1956 and that the State Government or the
direct recruits could not be allowed to urge to the contrary. The controversy
has to be resolved in the light of the orders passed by the State Government
from time to time in relation to those officers and others similarly situated.
5. The first order appointing promotees as
Assistant Engineers is dated the 15th of November, 1958 (Exhibit A).
That order made, it clear that all the
promotees covered by it were appointed officiating Assistant Engineers and were
to hold office until further orders. The promotion was also made subject to
review after the finalisation of the inter se seniority list of Supervisors and
the Recruitment Rules.
The notification went on to state that in the
case of 94 of the officers promoted under it, their appointment as Assistant
Engineers was being made on a purely temporary basis inasmuch as they would
have to vacate the posts against which they were being fitted, as soon as
candidates were available through a process of direct recruitment. The language
employed leaves no doubt that the promotion of the 167 officers was not
substantively made, the tenure being specifically stated to be either
"officiating" or "purely temporary" which expressions
clearly militate against a substantive appointment.
Orders made by the State Government later on
and right upto the 31st of October, 1961 when the direct recruits were
appointed Assistant Engineers did not improve the position of any of the
promotees in any manner. Those orders were either silent on the point of the
nature of the tenure of the promotees as Assistant Engineers, or stated 949 in
no uncertain terms that the promotees would hold the posts of Assistant
Engineers on a temporary or officiating basis. That is why Dr. Chitaley and Mr.
Sen, learned counsel for the promotees, mainly placed their reliance on the two
notifications dated the 27th of February, 1962, and order exhibit D dated the
6th of october, 1962, the combined effect of which was to promote the said 107
officers as Assistant Engineers with effect from the 1st of November, 1956
"on a regular basis". It was argued that the regularisation of the
promotion gave it the colour of permanence and the appointments of the
promotees as Assistant Engineers must therefore be deemed to have been made
substantively right from the 1st of November, 1956. The argument however is
unacceptable to us for two reasons.
Firstly the words "regular" or
"regularisation" do not connote permanence. They are terms calculated
to condone any procedural irregularities and are meant to cure only such
defects as are attributable to the methodology followed in making the
appointments. They cannot be construed so as to convey an idea of the nature of
tenure of the appointments.
In this connection reference may with
advantage be made to State of Mysore and Another v. S. V. Narayanappa(1) and R.
N. Nanjundappa v. T. Thimmiah and Another(2).
In the former this Court observed:
"Before we proceed to consider the
construction placed by the High Court on the provisions of the said order we
may mention that in the High Court both the parties appear to have proceeded on
an assumption that regularisation meant permanence. Consequently it was never
contended before the High Court that the effect of the application of the said
order would mean only regularising the appointment and no more and that
regularisation would not mean that the appointment would have to be considered
to be permanent as an appointment to be permanent would still require
confirmation. It seems that on account of this assumption on the part of both
the parties the High Court equated regularisation with permanence." In
Nanjundappa's case also the question of regularisation of an appointment arose
and this Court dealt with it thus:
"........ Counsel on behalf of the
respondent contended that regularisation would mean conferring the quality of
permanence on the appointment whereas counsel on behalf 950 of the State
contended that regularisation did not mean permanence but that it was a case of
regularisation of the rules under Article 309. Both the contentions are
fallacious. It the appointment itself is in infraction of the rules or if it is
in violation of the provisions of the Constitution illegality cannot be regularised.
Ratification or regularisation is possible of an act which is within the power
and province of the authority but there has been some non-compliance with
procedure or manner which does not to to the root of the appointment.
Regularisation cannot be said to be a mode of recruitment. To accede to such
proposition would be to introduce a new head of appointment in defiance of
rules or it may have the effect of setting at naught the rules." Apart
from repelling the contention that regularisation connotes permanence, these
observations furnish the second reason for rejection of the argument advanced
on behalf of the promotees and that reason is that when rules framed under
article 309 of the Constitution of India are in force, no regularisation is permissible
in exercise of the executive powers of the Government under article 162 thereof
in contravention of the rules. The regularisation order was made long after the
Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated
and could not therefore direct something which would do violence to any of the
provisions thereof. Regulaisation in the present case, if it meant permanence
operative from the 1st of November, 1956, would have the effect of giving
seniority to promotees over the direct recruits who, in the absence of such
regularisation, would rank senior to the former because of the Seniority Rules
read with the Probation Rules and may in consequence also confer on the
promotees a right of priority in the matter of sharing the quota under the
Recruitment Rules. In other words, the regularisation order, in colouring the
appointments of promotees as Assistant Engineers with permanence would run
counter to the rules framed under article 309 of the Constitution of India.
What could not be done under the three sets of Rules as they stood, would thus
be achieved by an executive fiat. And such a course is not permissible because
an act done in the exercise of the executive power of the Government as already
stated, cannot override rules framed under Article 309 of the Constitution.
The case has, for both the above reasons, to
be decided on the footing that all though the relevant period the promotees
held appointments as Assistant Engineers in a non- substantive capacity, i.e.
either on an officiating or a temporary basis. This being the position, 951
they would all rank junior to the direct recruits who, from the very start,
held appointments made "substantively in clear vacancies."
6. We may here make it clear that this order
does not cover such officers as were holding the posts of Assistant Engineers
on a substantive basis prior to the 1st of November, 1956 when the new State of
Mysore now known as Karnataka came into being. Nor would it adversely affect
the case of any Assistant Engineer who acquired a substantive status prior to
the promulgation of the Recruitment Rules and the appointment of the direct
recruits. Persons falling within these two categories will first have to be
accommodated in the clear vacancies available and only the remaining vacancies
will have to be utilised for fitting in the direct recruits and the Assistant
Engineers who have disputed their claim in these proceedings. It may also be
mentioned that the quota rule will not stand in the way of the Government giving
effect to this arrangement which has been taken care of in the amendment
(promulgated on the 23rd of October, 1961) to the Recruitment Rules. The
relevant portion of that amendment is contained in item 3 thereof which is
reproduced below:
"3. To rule 2 of the following proviso
shall be added and shall be deemed always to have been added, namely-
"Provided that in respect of direct recruitment of Assistant Engineers for
the first time under these rules the percentages relating to direct recruitment
and recruitment by promotion specified in column 2 of the Schedule shall not be
applicable and the minimum qualifications and the period of production shall be
the following, namely- "Qualifications :......................" It is
common ground between the parties that the posts comprised in the cadre of
Assistant Engineers constituted by the Recruitment Rules have yet to be filled
in for the first time. The proviso extracted above therefore will apply fully
to the utilization of those vacancies as stated above. It goes without saying
that all questions of seniority shall be decided in accordance with the
Seniority Rules and that the Recruitment Rules, as amended from time to time,
shall be fully implemented as from the date of their enforcement, i.e., 1st of
March, 1958.
7. In the result we accept the appeals, set
aside the judgment of the High Court and decide the dispute between the parties
in accordance with the observations made in paragraphs 5 and 6 hereof.
V.D.K. Appeals allowed.
Back
