Prabrakar Yeshwant Joshi & Ors Vs.
The State of Maharashtra & Ors [1969] INSC 262 (29 September 1969)
29/09/1969
ACT:
Seniority--Fixation of--Maharashtra Service
of Engineers--Seniority inter se of promotees and direct recruits--If violative
of Articles 14 and 16 of the Constitution.
HEADNOTE:
The petitioners were direct recruits to the
post of Deputy Engineers in Bombay Service of Engineers Class II. In petitions
under Art. 32 of the Constitution they challenged the promotion, by the first
respondent, of respondents 2 to 5 and others similarly situated to the posts of
officiating Executive Engineers contrary to the principles of natural justice
and in violation of Articles 14 and 16 of the Constitution. It was contended
that under the rules in force the respondents were only officiating Deputy
Engineers and they had to put in after confirmation as Deputy Engineers seven
years of actual service before being eligible for promotion as officiating
Executive Engineers;
further, particularly in the case of employees
from the erstwhile State of Hyderabad the first respondent had contrary to the
rules relating to promotion, by a resolution in 1967 directed those employees
to be treated as having been appointed in the reorganised Bombay State as
temporary Deputy Engineers only for the purpose of fixation of their seniority
in the grade of Deputy Engineers and for promotion to higher posts and
therefore those employees did not satisfy the 7 year requirement. Dismissing
the petitions,
HELD : (i) There is nothing in rules 6 7 and
8 of the 1960 Resolution to militate against the interpretation that the
service specified there can be the total service of any description whether
provisional, temporary or permanent. If promotion from Class II as officiating
Executive Engineer ran only be made after 7 years of permanent service then
there would be no meaning in including the temporary service in Class II for
the purpose of absorption as Executive Engineers. If temporary service can be
taken into account for confirmation as an Executive Engineer so can officiating
service and if officiating service can be taken into consideration there is no
impediment to a Deputy Engineer with 7 years' service whether officiating,
temporary or permanent to be entitled for promotion as an Executive Engineer
The, Resolution of 1963 makes it abundantly clear that the seniority of
promotees should be considered as from the date of promotion to officiate
continuously irrespective of whether the appointments were made in temporary or
permanent vacancies. [626 G-627 E] (ii) Those respondents who were from
Hyderabad State were in fact selected by the Hyderabad Public Service
Commission as Assistant Engineers and would have been appointed as such but for
the States Reorganisation Act which came into force from 1956. Had they been
appointed earlier they would have had to be equated with the posts in Bombay.
The allocation of persons after the reorganisation from one State to another
was subject to the Reorganisation Act which dealt with matters pertaining to
allocation, transfer, fixation of service conditions, seniority etc. The claims
of the respondents who were allotted from the Hyderabad State arose earlier
than the appointments of the petitioners and the Govern616 ment of Bombay and
subsequently the Maharashtra Government was entitled to consider these claims
and to give redress.
There is no statutory bar or rule which
prohibits the Government of Maharashtra from deeming their appointment as from
31-3-1967 for the limited purpose of seniority and promotion. [628 E-629 C]
(iii) Further, when promotions are made on the basis of seniority-cum merit all
that can be required is that persons entitled to promotion should be considered
'and if having been considered they have been left out they would have no claim
to promotion as a matter of right. The petitioners did not possess the required
length of service in Class II for them to be entitled to promotion when the
respondents were included in the List and promoted; as such they cannot
challenge the appointments made as being in violation of Arts. 14 or 16. 629
D-E] State of Mysore v. Syed Mahmood, [1968] 3 S.C.R. 363.
ORIGINAL JURISDICTION : Writ Petitions Nos.
112 to 114 of 1968.
Petition under Art. 32 of the Constitution of
India for the enforceent of fundamental rights.
S. V. Gupte, M. J. Rana and B. R. Agarwala,
for the petitioners.
M. C. Chagla, G. L. Sanghi and S. P. Nayar,
for respondent No. 1.
S. Mohan Kumaramangalain, Y. S. Chitle, S. N.
Prasad and R. B. Datar, for respondents Nos. 2, 4, 6 to 23, 27 to 30 and 32 to
34.
Respondent No. 3 appeared in person.
The Judgment of the Court was delivered by
Jaganmohan Reddy, J. The three petitioners by these petitions under Art. 32 of
the Constitution have challenged the promotion by the first respondent, who,
ignoring the claims of the petitioners, have promoted respondents 2 to 5 and
other persons similarly situated to the post of officiating Executive Engineers
contrary to the principles of natural justice and in violation of Arts. 14 and
16 of the Constitution. All the three petitioners were directly recruited by
the Public Service Commission as Deputy Engineers in the Bombay Service of
Engineers Class II, now known as Maharashtra Service of Engineers Class R. The
first respondent is the State of Maharashtra. Respondent No. 2 belonged to the
erstwhile State of Bombay; respondents 3 and 4 belonged to the former State of
Hyderabad, while respondent No. 5 to the former State of Madhya Pradesh, and
were allocated to the State of Bombay under the States reorganisation. Likewise
the other respondents who were formerly in the service of different States
referred to above, now belong to the Maharashtra Service of Engineers.
617 The petitioners' case is that under the
rules in force the respondents who were in the substantive rank of overseers
were only officiating Deputy Engineers and that as they did not belong to the
cadre of Deputy Engineers they were not entitled to promotion inasmuch as they
had to put in after confirmation as Deputy Engineers 7 years of actual service
before being eligible for promotion, as officiating Executive Engineers. On the
other hand, the petitioners were direct recruits and were entitled to promotion
after 7 years of service from the date of appointment, as their subsequent confirmation
related back to that date. It is contended that the first respondent, contrary
to these rules. appointed respondents 2 to 34 as officiating Executive
Engineers before they had completed 7 years of actual service after the date of
confirmation and particularly in the case of employees from the erstwhile State
of Hyderabad it had, contrary to the rules relating to promotion, by a
resolution dated the 23rd February 1967 directed respondents 3, 4, 6 to 14 to
be treated Is having been appointed in the reorganised Bombay State as
temporary Deputy Engineers with effect from 31st March 1937 only for the
purpose of fixation of their seniority in the grade of Deputy Engineers and for
promotion to higher posts. By so directing. respondent No. 1 conferred, in an
arbitrary manner, an advantage on the said respondents to the detriment of the
petitioners while, as a matter of fact, those respondents had not completed
either 7 years of actual service after confirmation as required by the rules
nor did they have even 7 years' service as officiating Deputy Engineers on the
date of promotion as officiating Executive Engineers.
In order to understand the contentions urged
on behalf of the petitioners it will be necessary to state briefly the history
of the service and the several resolutions which are applicable to them in
respect of recruitment as well as seniority. The Bombay and subsequently the
Maharashtra service of engineers consists of Class I and Class II (Deputy
Engineers). They were initially governed by rules framed under the resolutions
of the Government in the Public Works Department dated the 22nd March 1937. The
recruitment to these services both in class I and class II was partly by direct
recruitment and partly by promotion from amongst the members of the lower
cadres. In 1939 further rules were made to regulate the method of recruitment
to the State services. Under these rules recruitment to the Bombay Service of
Engineers Class I was to be from two sources, (1) by nomination under r. 3 by
virtue (1) the guarantee given to the engineering college of Poona and (2) by
promotion from the existing Bombay Service of Engineers (since discontinued) or
from the Bombay Service of Engineers Class II. The recruitment to the Bombay
Service of Engineers Class II under the rules of 1939 618 was also to be
similarly from two sources, (1) by nomination under r. 11 in accordance with
the guarantee to the Royal College of Poona (which was withdrawn in 1947) and
(2) by promotion from (a) Bombay Subordinate Engineer Service, (b) permanent
and temporary supervisors and (c) temporary engineers appointed on annual
sanction. These rules however did not specify the principles upon which the
seniority of the direct recruits and the promotee officers was to be
determined. The Government of Bombay accordingly by a resolution dated 21st
November 1941 laid down the following principles to be applicable to direct
recruits and promoted officers in the provincial service except the Bombay
Service of Engineers Class I :(1) "In the case of direct recruits
appointed directly on probation, the seniority should be, determined with
reference to the date of their appointment on probation;
(2) In the case of officers promoted to
substantive vacancies the seniority should be determined with reference to the
date of their promotion to the substantive vacancies provided there has been no
break in service prior to their confirmation in those vacancies." It may
here be stated that the Bombay Government had appointed a committee known as
Gurjar Committee to examine "whether class I and class II cadres in the
said services should be continued or whether they should be combined into one
class and what should be the ratio between the direct recruits and the
departmental promotees to the said service.
The Committee made its recommendations in
1951. The Government after due considerations of the recommendation and the
earlier rules regulating the condition of service in the Bombay Service of
Engineers passed a resolution dated 29th April 1960 setting down the principles
for recruitment to the Bombay Service of Engineers Class I and Class II.
Before this resolution, as we have noticed
earlier, the Deputy Engineers Class II service cadre consisted of (a) direct
recruits to the Bombay Service of Engineers Class II, (b) Deputy Engineers
confirmed from the subordinate services of Engineers, (c) temporary deputy
engineers recruited by the Bombay Public Service Commission and (d) officiating
Deputy Engineers and similar other categories. These four categories were being
compiled into 2 lists only, namely, (1) Bombay Service of Engineers Class II
cadre of permanent Deputy Engineers and (2) the list of officiating Deputy
Engineers. It also further continued the existing constitution of class I and
class II engineering service.
The appointments to be made were to be both
by direct recruitment through the competitive examinations held by the Public
Service Commission and by promotion, provided however that 619 the ratio of
appointments by nomination and by promotion shall as far as pracucable by 75 :
25. The candidates appointed to either of me two services by nomination had to
be on probation for 24 years before being confirmed provided further that an
Assistant Engineer would be confirmed as Executive Engineer after nine years'
service unless the period is extended by tile government. The Deputy Engineers
Permanent in class It cadre had Lo put in at least 15 years of service in class
II in temporary and permanent capacities and must be officiating executive
Engineers at the time of their absorption.
The resolution of 1960 provided that in
future recruitment to Bombay Service of Engineers class II cadre shall be made
(1) by nomination of candidates recruited directly by a competitive examination
held by the Commission and (2) by promotion from the list of officiating Deputy
Engineers.
The direct recruitment or temporary Deputy
Engineers was to cease and the officiating vacancies were to be filled from the
ranks of subordinate service of Engineers for which purpose a statewide select
seniority list of members of the subordinate service of Engineers cadre
considered fit to hold sub-divisional charges was to be compiled and maintained
as on 30th June each year. On July 29, 1963 the Government of Bombay further
amended the rules prescribed in Government Resolution of November 21, 1941 for
regulating the seniority of direct recruits and promoted officers. In
supersession of the previous rules it provided that the seniority of the direct
recruits is to be determined according to the date of appointment on probation
and of the promotees according to the date of promotion to officiate
continuously irrespective of whether the appointments are made in temporary or
in permanent vacancies subject to the previsions contained therein.
In so far as promotion from lower to higher
grade of post is concerned, the principle of seniority-cum-merit was always
followed by the Government which subsequently also formed the bases of the
Government resolution dated 18th December 1950 which inter alia prescribed that
no officer who had positive qualification should be passed over by an officer
junior to him unless the latter had in addition really exceptional ability or
qualification. This resolution was passed after consultation of the Bombay Public
Service Commission and in supersession of the orders of the previous
resolutions dated 22nd May 1944, 23rd March 1945 and the 18th March 1947.
Thereafter by another resolution dated 4th March 1957 the principle for the
preparation and maintenance of a select list of Deputy Engineers who were
considered fit for promotion as Executive Engineers was formulated.
According to this resolution, a committee
consisting of 3 Chief Engineers under the chairmanship of the senior Chief
Engineer L3SUP.CI/70 -9 620 was to review in December each year the claim of
officers in the Bombay Service of Engineers class II for promotion to the post
of Executive Engineer. This committee had to prepare a select list with due
regard to the provisions of the government resolution dated the 18th December
1950.
Likewise, the Government by a resolution
dated 20th August 1965, revising its previous resolution dated 24th August 1954
and 14th December 1959, formulated the principles for preparation, maintenance
and revision of a list of overseers fit for promotion as Deputy Engineers.
Under this resolution statewise list as on 1st April of every year of each of
the categories of overseers bad to be made comprising of (1) graduate
overseers, (2) diploma holder overseers (DCE-Poona) or equivalent, (3)
subordinate overseers holding the Diploma of the Osmania University, and (4)
non qualified overseers. The length of service required for eligibility to
promotion to the post of officiating Deputy Engineer in respect of the first
category was 3 years, second category 8 years, third category 10 years
including past service as sub-overseers of those allocated from the
ex-Hyderabad State, and fourth category 13 years.
We may now briefly state the different grades
of service and the channels of promotion in the Engineering service of the
Maharashtra State created as a consequence of the various rules. At the apex of
the service are the Chief Engineers, Superintending Engineers and the Executive
Engineers who constitute class I service. The channels of promotion to the
cadre of Executive Engineers is from two sources, (a) direct recruit to class
Assistant Engineers, and (2) Deputy Engineers class II. , The cadre of Deputy
Engineers class II is constituted by direct recruits 75 per cent and promotees
25 per cent. The channels of promotion to the promotees class II were from
temporary engineers and from the subordinate service, namely, graduate
engineers, now known as junior engineers, diploma holder overseers and junior
or non-technical overseers promoted from still lower ranks.
The case of the first respondent and the
other respondents is that the 7 years' qualifying service required for
promotion as Officiating Executive Engineers is continuous officiating service
as Deputy Engineer and not as contended by the petitioners to be reckoned from
the date of confirmation as Deputy Engineers. It is contended first, that the
interpretation of rr. 6, 7 and 8 of the 1960 Resolution does not ex facie lend
itself to the interpretation suggested by the petitioners; secondly, that it
ignores the subsequent amendment effected by the 1963 Resolution; thirdly, that
for the purpose of promotion the seniority which is relevant is not the
seniority in the department but the seniority in the Select List to be prepared
in accordance with the Resolution of 1957 in which the petitioners could not
and did not find a place during the 621 relevant period fourthly, the basis of
promotion being seniority-cum-merit the petitioners who had at no time
complained that their names were not considered cannot complain of a violation
of Art. 14 or Art. 16, nor could a writ of mandamus lie in such circumstances;
and fifthly, that the, Resolutions to which references have been made and which
are relied upon by the petitioners are not made either under Art. 309 or any
other provision of law but are merely executive instructions which the
Government would be entitled to issue in the absence of rules which have
statutory binding force. In so far as respondents who are allotted from
Hyderabad service are concerned, it is contended that they were all selected by
the Hyderabad Public Service Commission in June 1956 and would have been
appointed as Assistant Engineers in that State 'in a few months had not States
reorganisation taken place. In view of the fact that they had been selected by
the predecessor State and also the successor state it was open to the
Government to make the appointment of the respondents having regard to the
various provisions of the States Reorganisation Act, and accordingly the
Government directed that their appointments be treated as temporary Deputy
Engineers effective from 31-3-1957 for the purpose of seniority and promotion.
What in fact the Government has done is to recognise the just claims of those
who had already been selected for class I posts in the Hyderabad State which
posts have been equated with the post of Deputy Engineers in the Bombay State
while arriving at the equation envisaged under the States Reorganisation Act
and under the allotted Government Service Rules of 1957. In fact the claim of
the respondents was that the Assistant Engineers of class I of the Hyderabad
State should be equated with the posts of Assistant Engineers Class I of the
Bombay State.
Shri Gupte learned counsel for the
petitioners however contends that all the respondents from the erstwhile
Hyderabad State were allotted to the Bombay State as overseers which posts they
were holding substantively on and after 1st November 1956. They were thereafter
promoted as officiating Deputy Engineers between 1958 and 1963 and were not
confirmed in their respective posts on the date when they were appointed
officiating Executive Engineers. The learned Advocate further contends that
these persons were in fact not appointed as Assistant Engineers in the erstwhile
Hyderabad State though they might have been selected by the Hyderabad Public
Service Commission and that in any case as the Bombay Public Service Commission
did not select them they could not be classified in the category of temporary
Deputy Engineers selected by the Bombay Public Service Commission. Apart from
this category, there are respondents who were appointed as officiating Deputy
Engineers before the reorganisation on 1st November 1956 and were confirmed
only after the petitioners were directly 622 appointed. The first petitioner
was appointed on 9th June 1959, the second petitioner on 11th June 1959 and the
third petitioner on 12th June 1959. Though the petitioners were confirmed 2
years thereafter, namely, on 9th June 1961, 24th June 1961 and the 18th June
1961 respectively, none the less for the purpose of seniority the dates on
which they were first appointed in June 1959 would be relevant dates because
confirmation under the rules relates back to that date and therefore they would
be senior to those respondents who were confirmed thereafter. There are yet a
few respondents who were promoted as officiating Deputy Engineers after the 1st
November 1956, namely, those persons who were non gazetted sub divisional
officers of the former State of Madhya Pradesh and the former State of
Hyderabad who were treated as Deputy Engineers from 1st November 1956 and there
were others who were not so deemed but were not confirmed as Deputy Engineers
on the date when they were promoted as officiating Executive Engineers. The
contention of Shri Gupte in the main is that officiating Deputy Engineers could
only be considered as promoted to the grade of Deputy Engineers on confirmation
and therefore the 7 years qualifying service necessary for their being promoted
as officiating executive engineers is to be reckoned from the date of their
confirmation as Deputy Engineers and since good many of them were confirmed
after the appointment of the petitioners and most of them were not so confirmed
even on the date of their promotion as Executive Engineers under the rules they
would not be entitled to those promotions.
Shri Chagla and Shri Kumaramangalam, on the
other hand, contend that the rules nowhere prohibit the promotion to Executive
Engineers from officiating Deputy Engineers, nor is there anything to indicate
either expressly or otherwise that the 7 years' qualifying service should be
from the date of confirmation. All that is required is that a person in order
to become eligible for promotion as officiating Deputy Engineer should be
promoted as Deputy Engineer that in either case he should have 7 years in that
capacity whether as permanent Deputy Engineer or continuously as an officiating
Deputy Engineer and that he should be selected and put on a Select List. The respondents,
it is contended, have fulfilled all these requirements. The second respondent
who appeared in person has adopted these arguments of the learned Advocate for
the respondents.
We may here read the relevant rules as set
out in the respective resolutions.
1957 Rules(1) Government should review in
December each year the claims of all officers in the Bombay Service of
Engineers, Class II for promotion to the posts of Executive Engineers by
setting up a Committee consisting of the three Chief Engineers under the 623
Chairmanship of the Senior Chief Engineer, which should draw up a select list
of those considered by them suitable for promotion.
(2) The Committee should scrutinise the case
of each officer and prepare a select list with regard to the provisions of
Government Resolution and Government Circular Memorandum, Political and
Services Department Nos. 4099/34, dated the 18th December, 1950. Only such
officers should be selected for inclusion in the select list as have put in at
least seven years' service (excluding the period of training but including the
period of probation) in the grade of Deputy Engineer. The officers should also
possess the necessary personality, initiate, strength of character, fitness to
assume independent responsibility and capacity for outdoor as well as office
work. No officer should be included in the Select list merely on the negative
ground that he is not manifestly unfit.
(3) The seniority of the officers on the
Select list should be determined by the date of entry of their names in the
select list. The seniority inter se of officers whose names are entered on the
same day should be determined in accordance with their seniority in the Class
II cadre, unless in consultation with the Commission, it is decided to give an
officer accelerated promotion on account of really exceptional ability or
qualification.
(4) The Committee should submit to Government
the Select List for approval in consultation with the Bombay Public Service
Commission. While submitting the list, the Committee should give full
justification for supersession involved, if any, and full information regarding
qualifications and previous service of those recommended to be brought on the
Select List should be given.
1960 Rules
6. (i) The number of posts to be filled in
the Bombay Service of Engineers, Class I by promotion of officers from the
Bombay Service of Engineers, Class II shall be about 25 per cent of the total
number of superior posts, in the Bombay Service of Engineers, Class I cadre;
this percentage should be aimed at for confir, 624 mations made after 1st
November 1956, subject of course, to Class II officers of the requisite fitness
and length of service being available.
(ii) For absorption into Class 1, a Class II
Officer must be in the permanent Bombay Service of Engineers, Class II cadre,
should have at least 15 years service to his credit in Class II in temporary
and permanent capacities, and should be holding an officiating divisional rank,
at the time of such absorption. On such absorption, the Class II Officer shall
be confirmed as an Executive Engineer.
(iii) The seniority of the Class II promotees
shall be fixed below the bunch of Assistant Engineers, any one of whom is due
for confirmation as Executive Engineer during that calendar year, provided that
no Class IT promotee shall be placed senior to a direct recruit to Class I
Assistant Engineer who has been officiating as Executive Engineer from a date
earlier than the Class II promotee. In the latter case, the Class II promotee,
though holding a post and lien as a confirmed Executive Engineer shall be shown
both under permanent Engineers, and, also along with the direct recruited Class
I Assistant Engineers with a suitable remark under the Permanent Executive
Engineers list. This is also subject to further conditions as in paragraph 7
below.
7. (i) Since the percentages in the superior
posts of direct Class I recruits and promotees from Class II is to be about 75
and 25, the number of promotions from Class II in any year would be about one
third the number of direct recruited Assist-ant Engineers confirmed as
Executive Engineers during that year. Recruitments in the past have, however,
been erratic and insufficient even to the extent of there being no recruitments
to Class I in certain years. In Order to deal with such situations, the
following rules shall be supplemental and I exceptional to those in paragraph 6
above :
(ii) As far as possible, promotions as
officiating Executive Engineers shall be somade that the promotee, under consideration
from Class II has to his credit at least 6 years longer service than a promotee
under consideration from Class I, subject, as far as practicable, to the
condition that a Class I Officer shall not hold a divisional rank at less than
4, and a Class II Officer at less than 7 years service.
Subject to avail-abilities, and, the above
criteria, an attempt should be made to maintain the percentages, stated in
paragraph 6(1) above, between direct Class I and promoted Class II officers in
the total of permanent plus officiating superior posts.
(iii) In the interests of manning superior
administrative ranks, it is considered necessary to have at least two
confirmations to the Executive Engineers ranks every year. In years when this
is not 625 possible of achievement according to the percentages as per (i)
above, the number of promotions from Class II may be increased to get the two
confirmations, mentioned hereinabove.
Per contra, there would be a reduction in the
percentage promotions from Class II in the following years in order to work up
to the overall percentages of about 75 to 25.
(iv) Confirmations, if any, made from the
bunch of Temporary Executive Engineers, who have, at present lien on no cadre,
shall be counted against the 25 per cent meant for the nondirect recruits to
Bombay Service of Engineers, Class I.
8. (i) The Sub-Divisional posts in the
Department are, ,it present, manned by direct recruits to Bombay Service of
Engineers, Class II cadre, Deputy, Engineers confirmed from subordinate Service
of Engineers, the temporary Deputy Engineers recruited by the Bombay Public
Service Commission, officiating Deputy Engineers and similar other categories.
These various categories are being compiled
into two lists only viz. Bombay Service of Engineers, Class II cadre of
permanent Deputy Engineers and a list of Officiating Deputy Engineers. The
future recruitments to Bombay Service of Engineers, Class II cadre shall be
made by nomination of candidates recruited direct by competitive examination,
held by the Commission, and, by promotions from the, list of officiating Deputy
Engineers. The number of such promotions shall be about one-third the number of
direct recruits appointed in that year.
(ii) All direct recruitment of temporary
Deputy Engineers having been stopped, further officiating vacancies will be,
manned from the ranks of the Subordinate Service of Engineers. For this
purpose, a state wise Select Seniority List will be maintained. of members of
the Subordinate Service of Engineers cadre, considered fit, to hold sub
divisional charges. This list shall be compiled as on 30th June each year.
For inclusion in this list a graduate shall
have to his credit not less than 3, a diploma holder not less than 8, and, a
nonqualified person not less than 13 years' service as overseer.
For confirmation as a Deputy Engineer, the
Officer would be expected to have put in not less than 3 years' service as
Officiating Deputy Engineer.
(iii) The probationers recruited directly to
in the Bombay Service of Engineers, Class II cadre in any year shall, in a
bunch be placed senior to promotees confirmed, during that year.
1963 Rules(A) The seniority of direct
recruits and promoted officers in the State services should be determined
according to the date of 626 appointment on probation in the case of direct
recruits and according to the date of promotion to officiate continuously in
the case of these appointed by promotion, irrespective of whether the
appointments are made in temporary or in permanent vacancies, subject to the
provisions of the following clauses (B) A list of services in respect of which
special orders for fixation of seniority are in force and to which these orders
will not apply will 'be issued in due course.
It would be apparent from the 1941 rules that
they merely provide for fixation of seniority of the direct recruits and
officers promoted to the substantive vacancies but have nothing to do with the
qualifications required for promotion to the next higher rank. Rule 6 of 1960
deals with class I posts. Clauses 1, 2 and 3 of this rule provide (1) that 25
per cent posts in class I are to be filled by promotees, (2) that for
absorption into class 1, class II Officer must have a permanent service in
class II cadre, (b) have 15 years of service in class II in temporary and
permanent capacities, and (c) that he must be holding an officiating divisional
rank at the time of such absorption. Clause 3 deals with inter se seniority
between the Assistant Engineers and Class II promotees to the post of Executive
Engineers. The absorption referred to in r. 6 is a permanent absorption because
cl. 2 provides that on such absorption the class IT officers shall be confirmed
as Executive Engineers. Clause 6 gives no indication that class II officers
whether direct recruits or promotees cannot be promoted as officiating
Executive Engineers. That is dealt with by cl. 2 of as officiating Engineers.
That is dealt with by cl. 2 of r. 7 which r. 7 which provides that Class II
officers should have as far as possible at least 6 years longer service than
the promotee under consideration from class 1, viz., Assistant Engineers, and
further that he should at least have seven years service. Even this rule does
not indicate that the qualifying service of either of six years or of 7 years
specified in the rule has to be permanent service. In cl.
(ii) of r. 6 it is provided that 15 year-, of
service in class II for absorption as Executive Engineer can be in temporary or
permanent capacities. There is nothing in r.
(ii) to militate against the interpretation
that the service specified there can be the total service of any description
whether provisional, temporary or permanent. If promotion from class IT a,
officiating Executive Engineer can only he made after 7 years of permanent service,
then there would be no meaning in including the temporary service in class IT
for the purpose of absorption as Executive Engineer. Even r.8 upon which Shri
Gupte has laid great emphasis in support of hi, contention. does not, in our
view, justify an interpretation that the 627 7 years' service required to
entitle persons in class II for promotion as an officiating Executive Engineer
should be permanent service in class II. Shri Gupte however relied on the
requirement in cl. (ii) of r. 8 that the recruitment to Bombay Service of
Engineers, Class II cadre shall in so far as promotees are concerned be by
promotion from the list of officiating Deputy Engineers. Relying on this rule
the learned Advocate contends that for promotion as Deputy Engineer Class II he
must be on the list of officiating Deputy Engineers before he is entitled to
promotion as Deputy Engineer Class II and be confirmed in that post after
satisfying the requirements of 3 years' service as officiating Deputy Engineer.
Until he is so confirmed, he will not be considered to have been promoted as
Deputy Engineer or to belong to class II service for promotion as officiating
Executive Engineer as required under cl. (ii) of r. 7. As we have seen earlier,
cl. (ii) of r. 7 does not use the word 'belong' but requires only that the
person under consideration for promotion should be from class II service.
To be in class II service the Deputy Engineer
promoted from subordinate service has to put in at least 3 years of service as
officiating Deputy Engineer before being confirmed and thereafter he can when
he is promoted to the next higher rank be confirmed as Executive Engineer if he
has put in 15 years in class II service in temporary or permanent capacities
and is holding an officiating divisional rank, namely of an Executive Engineer.
If temporary service can be taken into account for confirmation as an Executive
Engineer, so can officiating service, and if officiating service can be taken
into consideration, there is no impediment to a Deputy Engineer with 7 years'
service whether officiating, temporary or permanent to entitle him for
promotion as an Executive Engineer.
The list that is referred to in cl. (i) of r.
8 must be read with the further provision in that rule that for inclusion in
that list of persons a graduate shall have to his credit not less than 3, a
diploma holder not less than 8 and a non qualified person not less than 13
years of service as overseers. In our view it is the list of such persons that
is referred to in cl. (ii) of r. 8 and not that there should be a list of
persons actually officiating as Engineers for further promotion to the same
post which will have little meaning , for there cannot be a promotion of a
person in the same cadre of g service who is already promoted whether as an
officiating or temporary or permanent incumbent. If cl.
(i) of r. 8 provides that class IT cadre
shall be recruited by competitive examination, the promotees also are promoted
from the list of persons considered fit to hold sub divisional charge, i.e.,
posts of Deputy Engineers. If in the case of direct recruits the appointment is
without reference to confirmation, it cannot be any different in the case of
promotees.
We cannot, therefore, accept the contention
of Shri Gupte that a promotee officiating Deputy Engineer Class II is not
entitled to 628 be considered for promotion under r. 7 to the post of an
officiating Executive Engineer unless he has put in 7 years of service from the
date of confirmation. On the other hand, the subsequent resolution of the
Government of 1963 makes it abundantly clear that the seniority of promotees
should be considered as from the date of promotion to officiate continuously
irrespective of whether the appointments are made in temporary or permanent
vacancies.
It is no doubt submitted that this does not
have the force of rules and cannot therefore have the effect of amending the
rules of 1960. As we have already held on art interpretation of the rules of
1960 that they do not support the contention of the petitioners, the question
whether the resolution has the force of rules may not be relevant in this
context, but none the less in our view, there is force in the contention of
Shri Kumaramangalam, learned advocate for the respondents, that even the 1960
rules have no statutory force and are no better than the executive instructions
issued from time to time by means of resolutions. It may be observed that the
rules referred to are part of the resolution of 1960. The resolution itself
lays down the principles and in the end formulates those principles in terms of
rules, which however are not purported to be made under any provision of law or
even under Art. 309. There also is nothing to indicate that the procedure and
formalities required for making rules have been gone through.
It is next contended that the persons from
the Hyderabad service did not have 7 years even as officiating Deputy Engineers
but were only deemed to have been appointed as temporary engineers as from
31-3-1957. This contention also, in our view, has no force because the
respondents who were from Hyderabad State were in fact selected by the
Hyderabad Public Service Commission as Assistant Engineers and would have been
appointed as such but for the States Reorganisation Act which came into force as
from 1-11-1956.
Had they been appointed earlier. they would
have had to be equated with the posts in Bombay. In fact as the notification
issued 'by the Hyderabad Public Service Commission furnished by Mr. Joshi
shows, the candidates who were lo be selected were required to serve in any of
the districts of Hyderabad StateHyderabad proper or according to the allocation
in the reorganised set up of the State if and when it took place. It was
therefore, in the contemplation of the Public Service Commission that the State
would be reorganised and the candidates selected may be required to serve in
the reorganised State. The allocation of persons after the reorganisation from
one, State to the other was subject to the Reorganisation Act which dealt with
matters pertaining to allocation, transfer, fixation of service conditions,
seniority etc. The claims of the respondents who were allotted. from the
Hyderabad State arose earlier than the appointments of the petitioner, and the
Government of Bombay and subsequently the 629 Maharashtra Government was
entitled to consider these claims and to give redress.
It is again argued that if they had a claim
under the States Reorganisation Act, they should have been treated as Deputy
Engineers from 1st Nov. 1956, and not from 31st March 1957 and therefore they
could not be considered as having been dealt with under the States
Reorganisation Act. We are unable to accept the force of this argument 'because
it was open to the Government of the State to which they were allotted to take
into consideration the fact that they would have been appointed in the
erstwhile State from a particular date, to treat them as such and to equate
their posts which they would have held. In these circumstances, there is no
statutory bar or rule which prohibits the Government of Maharashtra from
deeming their appointment as from 31-3-1957 for the limited purpose of
seniority and promotion.
Apart from these contentions it appears to us
that there is another formidable obstacle in the way of the petitioners'
success and it is that under the 1957 Resolution for promotion to the post of
officiating Executive Engineers, they should be put oil the Select List by a
committee of the Chief Engineers to be prepared each year for that purpose.
When promotions are made on the basis of seniority-cum-merit, all that can be
required is that persons entitled to promotion should be considered and if
having been considered they have been left out, they would have no claim to
promotion as a matter of right. In State of Mysore v. Syed Mahmood(1) this
Court had so held. Bachawat, J. speaking for the Court observed at p. 366,
"Where the promotion is based on seniority-cum-merit the officer cannot
claim promotion as a matter of right by virtue of his seniority alone. If he is
found unfit to discharge the duties of the higher post, he may be passed over
and an officer junior to him may be promoted." It is however stated that
no list was made for 1966 which is the crucial year in so far as the
petitioners are concerned because their 7 years would have been completed in
June 1965 and they would have been entitled to be considered for promotion in
1966. In answer to this contention the affidavit on behalf of the respondents
shows that the select list of the Deputy Engineers fit for promotion to the
post of Executive Engineers in class I was prepared for the year 1964 and 1965
according to the principles and rules laid down in the resolutions of 14th
December 1957 and 29th April 1960. None of the petitioners, it is averred, was
included in the Select List for 1964 or 1965 because not only did any of them
not [1] [1958] 3 S. C. R. 363.* 630 have the requisite seven years' service as
Deputy Engineer at the relevant time but they were also not entitled to be
included because of the classes of recommendation earned by them during the
relevant period. The petitioners however denied in their rejoinder that the
lists were prepared keeping in view the criteria laid down by the rules, 'but,
in our view, it is significant that they did not possess the required length of
service in class II for them to be entitled to promotion when the respondents
were included in the list and promoted as such they cannot challenge the
appointments made as being in violation of Art. 14 or Art.
16.
In the result these petitions merit dismissal
and are accordingly dismissed.
Y.P. Petitions dismissed.
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