A. K. Subraman & Ors Vs. Union of
India & Ors  INSC 267 (11 December 1974)
REDDY, P. JAGANMOHAN BHAGWATI, P.N.
CITATION: 1975 AIR 483 1975 SCR (2) 979 1975
SCC (1) 319
CITATOR INFO :
R 1977 SC 251 (33,39) RF 1977 SC2051 (38) D
1979 SC1073 (15) RF 1980 SC1561 (27) RF 1980 SC2056 (73) R 1981 SC 357 (4) RF
1981 SC 561 (69,72) R 1983 SC 881 (43) E 1984 SC1291
(7,9,13,15,19,21,23,28,32,36) R 1984 SC1595 (24) F 1985 SC1019 (18,19) D 1985
SC1558 (24,28) RF 1985 SC1605 (16) D 1985 SC1681 (5) RF 1987 SC2359 (9) D 1988
SC 268 (27) D 1990 SC1607 (19,21,25) RF 1991 SC1202 (30) RF 1991 SC1244 (7,10)
Civil Service-Seniority, whether to follow
length of service or confirmation Quota rule whether implies rotational
formula-Whether vacancies means vacancies in permanent posts only or it
includes vacancies in temporary posts also.Memorandum of Home Ministry dated
22-6-1949 and 22-12-1959Memorandum of Ministry of Works. Housing and Supply
Distinction between promotion and
For recruitment through two sources whether
quota is interdependent or independent-Constitution Article 77(3)Effect of
Memorandum issued by Ministry other than one empowered under Allocation of
The petitioners who were Assistant Engineers
(Class II) were promoted to officiate as Executive Engineers in Class I Central
Engineering Service by a properly constituted Departmental Promotion Committee.
Respondents 4 to 66 we initially recruited as Assistant Executive Engineers
Class I and were promoted to the grade of Executive Engineer. The vacancies in
the grade of Executive Engineer can only be filled by promotion from the
aforesaid two grades in the ratio of 75 % and 25%. The relevant rule reads as
under :"75 per cent of the vacancies in the grade of Executive Engineer,
Class 1, shall be filled by promotion of Assistant Executive Engineers Clause
I., the rest of the vacancies being filled by promotion and or by transfer in
accordance with parts 4 and 5 of the rules respectively".
There are no statutory seniority rules. The
petitioners ware shown as junior to respondents No. 4 to 66 and they were not
considered for promotion to the higher post of Superintending Engineer,
although they have been Executive Engineers for longer period by following the
quota rule at the stage of confirmation.
The petitioners contended that their
seniority should be determined in accordance with the Home Ministry's
Memorandum dated 22-6-1949. i.e., the length of service put in by them in the
grade of Executive Engineer.
It was contended on behalf of the
(1) In the quota rule there is an implied
rotational system by which only at the time of confirmation of the petitioners
as Executive Engineers the seniority may be fixed inaccordance with the quota.
(2) Reliance was also placed on the Office
Memorandum dated 8-12-1960 issued by the Ministry of Works, Housing and Supply
according to which confirmation was to be made by applying rotational method in
working out the quota rule.
(3) Vacancies in quota rule means only
vacancies in permanent posts.
(4) Quota rule applies at the stage of
confirmation and the seniority would be relatable to confirmation.
(5) One third quota cannot be filled in until
and unless two third quota is available and filled in.
(6) Since the petitioners had their lien in
Class II posts they cannot be expected to belong to 2 grades at the same time.
(7) Memorandum dated 22-6-1949 has no
application since it was issued is order to safeguard the interests of the
displaced government servants.
(1) When recruitment is from two or several
sources there is so inherent invalidity in introduction of quota system and to
work it out by a rule of rotation. The existence of a quota and rotational rule
by itself will not violate Article 14 or Article 16 of the Constitution. [993
E] Mervin Coutinho and Govind Dattatraya Kelkar cases referred to.
It is the unreasonable implementation of the
same which may in a given came attract the frown of the equality clause.
[993 E-F] (2) The Memorandum dated 8-12-1960
issued by the Ministry of Works, Housing and Supply has not emanated from the
Home Ministry which is the appropriate department for issuing instructions n
,service matters under Allocation of Business Rules of the Central Government
framed under Article 77(3) of the Constitution. The said Memorandum also refers
to a notification dated 22-11-1960 of the Home Ministry which ha, not been
produced. The said Memorandum, therefore. cannot be availed of. The High Court
wrongly relied upon the Memorandum dated 8-12-1960. [987 B-D] (3) Words
"vacancies in the grade of Executive Engineer" include both vacancies
in the permanent posts as well as in temporary posts since the cadre consists
of both permanent and temporary posts. The quota rule will be enforced with
refer ence to vacancies in all posts, whether permanent or temporary, included
in the sanctioned strength of the cadre (except such vacancies as are purely of
a fortuitous or adventitious nature). [991 H-992 A; 994 C-D] (4) The quota rule
will be enforced at the time of initial recruitment in officiating capacity to
the grade of Executive Engineer and not at the time of confirmation. [994 B-C]
(5) The argument that one third quota cannot be filled in unless two third quota
was exhausted was negatived as the argument if accepted would introduce
sterility in the quota rule so far as the promotees are concerned. Their hopes
and aspirations cannot be related to the availability of the direct recruits to
fill two third quota. Each quota will have to be worked independently on its
own force. The word "rest' in the quota rule cannot be pressed into
service to defect the object of the rule coming in aid of advancement of
prospects of promotees. [991 A-B] The case of Bishan Sarup Gupta applied.
(6) There is a well-recognised distinction
between promotion and confirmation. The tests to be applied for the purposes of
promotion and confirmation are entirely different. [989 F-G] (7) Memorandum
dated 22-6-1949 will clearly apply and Memorandum dated 22-12-1959 is not
applicable in this particular case. [985 F-G] Union of India & Ors. v. Ravi
Varma and others, etc.,  2 S.C.R. 992, followed (8) In view of the
judgment in the Writ Petition the Judgment of the full Bench of Delhi High Court
was set aside. [994 H]
ORIGINAL JURISDICTION: Writ Petition No. 489
Petition Under Article 32 of the Constitution
of India AND C.A. Nos. 1745 to 1747 of 1974 Appeal by Special Leave from the
Judgment & Order dated the 20th May, 1971 of Delhi High Court in C.W. No.
716/69, 553/70 and 574 of 1970.
M. C. Bhandare, P. H. Parekh and S. Bhandare,
for the Petitioner (In WP No. 489/72) and Appellants (In CA. No. 1745/74).
981 Lal Narain Sinha, Solicitor General of
India, S. N. Prasad and R. N. Sachthey, for Respondents Nos. 1-3 (In WP. No. 489/72).
K. S. Ramamurthi, S. Balakrishnan and T. M.
Ghatate of Bala krishnan and Ghatate, for Respondents Nos. 5, 23, 27, 31', 53,
59 & 65 (In WP. No. 489/72).
S. Markandeya, for Respondents Nos. 71, 73,
83, 87, 93, 94, 96, 98, 103, 107, 109 & 111-113 (In WP. No. 489/72).
P. P. Rao, for Intervener Nos. 1-8 (In WP.
P. H. Parekh and S. Bhandare, for Intervener
No. 8 (In WP.
P. P. Rao, for the Appellants (In CAS Nos.
Balakrishnan and N. M. Ghatate, for
Respondent No. 3 (In All the Appeals).
The Judgment of the Court was delivered by
GOSWAMI, J. The petitioners in Writ Petition No. 489 of 1972 are confirred
Assistant Engineers in the Central Engineering Service (Class 11). They were
promoted to officiate as Executive Engineers in Class I between December 27,
1956 and September 8, 1959, by a properly constituted Departmental Promotion
Committee and have been working as Executive Engineers in the Central Public
Works Department of the Ministry of Works and Housing of the Government of
Except one petitioner (namely, K. G. Chopra)
all the petitioners were promoted to the grade of Executive Engineer prior to
their confirmation as Assistant Engineers.
The respondents 4 to 66 were initially
recruited as Assistant Executive Engineers in Class I and were promoted to the
grade of Executive Engineer between the period March 11, 1957 and February 23,
The appellants in Civil Appeals Nos. 1745 of
1974 and 1746 and 1747 of 1974, who were recruited directly to Class 11 as a
result of competitive examination in which they had failed to secure requisite
marks for being selected for Class 1, are also confirmed Assistant Engineers in
Grade II and have been officiating as Executive Engineers in Grade I. They have
obtained special leave against the Full Bench judgment of the Delhi High Court
in their writ petitions under Article 226 of the Constitution decided by a
common judgment of 20th May, 1971.
Since a common question of law is involved in
all these matters, this judgment will govern all the above matters. We will,
therefore, include the appellants also in describing them as petitioners in
The Service with which we are concerned is
the Central Engineering Service, Class I. According to the Central Engineering
Service, Class 1, Recruitment Rules (briefly the Rules) framed in the year 1954
1841 dated May 21, 1964, which are admittedly
similar to those of 1949 Recruitment Rules, officers in the grade of Assistant
Executive Engineer (Class I) and certain Assistant Engineers (Class II) are
eligible for promotion to the grade of Executive Engineer 982 (Class 1). The
vacancies in the grade of Executive Engineer can only be filled by promotion
from the aforesaid two grades in the ratio of 75% and 25%. The aforesaid quota
was retrospectively altered with effect from September 7, 1955, to 66-2/3% and
Part I of the Rules contains the definitions.
By Rule 2(b) thereof, "The Commission" means the Union Public
Service, Commission. Rule 2(c) defines "The Service" as the Central
Engineering Service, Class I. The Service includes various grades of posts.
Rules 3, 4 and 5 relevant for our purpose are
as under "3. Recruitment to the service shall be made by any of the
following methods:(a) By competitive examination in India in accordance with
Part III of these rules.
(b) By promotion in accordance with Part IV
of these Rules.
(c) By transfer in accordance with Part V of
4. (1)All appointments to the service or to
posts borne upon the cadre of the Service shall be made by Government.
(2) Subject to the provisions of rule 3
Government shall determine the method or methods of requirement (sic)
(recruitment?) to be employed for the purpose of filling any particular vacancies
in the Service or such vacancies therein as may be required to be filled during
any particular period and the number of candidates to be recruited by each
Provided that all recruitments by competitive
examination (vide Part HI of the rules) shall be to the grade of Assistant
Executive Engineer, Class I only.
Seventy-five per cent of the vacancies in the
grade of Executive Engineer, Class 1, shall be filled by promotion of Assistant
Executive Engineers, Class 1, the rest of the vacancies being filled by
promotion and/ or by transfer in accordance with Parts IV and V of the Rules
5. Appointments to the Service made otherwise
than by promotion will be subject to orders issued from time to time by the
Ministry of Home Affairs regarding special representation in the Services for
specific, sections of the people.
As noted earlier the quota for promotion
between the directly recruited Assistant Executive Engineers and promotees from
Clam II, which was initially in the ratio of 75% and 25%, was later altered to
66-2/3% and 33-1/3% in 1956 and with effect from April 1, 1972, the percentage
has come to be 50:50 for a period of seven years.
983 According to the petitioners prior to
their promotion as Excise Engineers the petitioners and respondents 4 to 66
were holding interchangeable posts, the nature of work, responsibilities,
powers and duties discharged by all of them being the same and subsequent to
their promotion all these and the pay scales were identical in every respect.
Prior to the promotion, however, the pay
scale of the petitioners was different from that of the Assistant Executive
Engineers who were already in Grade 1. The Assistant Executive Engineers are
directly recruited to Grade I by competitive examination and sometimes Assistant
Engineers (Class 11) are also recruited by the same competitive examination to
Class 11 when they cannot quality with the requisite marks to obtain entry in
Class I Services. Besides, Class III Officers are also promoted to Class 11. In
order, therefore, to give incentive of promotion to employees in Class II, who
have already gathered experience in the service, a certain percentage of quota
is reserved for their promotion to the grade of Executive Engineer in the
The Principal grievance of the petitioners is
against the seniority list as on 1-7-1971 (Annexure 'J') where the petitioners
have bets shown as Junior to the respondents 4 to 66 (in Writ Petition No. 489
of 1972) and to the respondents in the other two appeals. According to them
notwithstanding the fact that they were recruited by promotion to officiate in
the grade of Executive Engineer regularly as a result of selection by the
Departmental Promotion Committee and they bay been working in that capacity for
nearly 13 years or over their cases were not considered for the purpose of
promotion to the still higher grades in Class I and Assistant Executive
Engineers recruited several years after their recruitment have been held to be,
senior to them and some of them have been promoted to the next higher grades
ignoring their claim.
It is admitted that there are no statutory
seniority rules as such and both sides depend upon certain memorandum issued by
the Government of India in the Home Department to establish their respective
According to the respondents it is manifest
in the quota rule that there is ail implied rotational system by which only at
the time of confirmation of the petitioners as Executive Engineers the
seniority may be fixed in accordance with the quota. According to the learned
Solicitor General appearing on behalf of the Union of India the petitioners,
who were confirmed in Class II, have a lien in that grade and they cannot be
expected to belong to two grades at the same time. It is, therefore, only at the
lime of confirmation against permanent vacancies that for the first time the
petitioners may be held to have been recruited to class I of the Service. Since
according to him the recruitment is from two sources it is essential that
recruitment can only be understood within the meaning of these rules to have
taken place at the time of confirmation of the petitioners in the superior
grade, namely, Class 1.
Necessarily, therefore, says the learned
Solicitor General, the quota rule applies at the stage, of confirmation and
seniority would be relateable to confirmation in Grade I of the Service.
984 It will be necessary also to refer to
rule 23 in Part IV referred to in rule 4(2) providing for promotion:
"23(1) No Assistant Engineer, Class II
shall be promoted as Assistant Executive Engineer, Class 1.
(2) Recruitment by promotion to the Grade of
Executive Engineer, Class I shall be made by selection from among permanent
Assistant Engineers in the Central Engineering Service, Class 11, after
consultation with the Commission. No officer shall have any claim to such
promotion as of right.
(3) No Assistant Engineer shall be eligible
for promotion to the Service, unless he(a) would, but for age, be qualified for
admission to the competitive examination under Part III of these Rules.
(b) has rendered at least three years'
services in a permanent or temporary capacity as an Assistant Engineer and
subordinate under the Central Government; and (c) satisfies the Commission that
he is in every respect suitable for appointment to the Service.
4. It shall not be necessary to consult the
Commission, under this rule, in the case of any person, if the Commission had
been consulted in connection with his temporary promotion to the Service.
The learned Solicitor General draw& our
particular attention to rule 23 (2) which provides that recruitment to the
grade of Executive Engineer (Class 1) has to be made by selection from amongst
permanent Assistant Engineers in Class H. He submits that the word 'permanent'
in sub-rule (2) is very significant. Since recruitment by promotion can be made
only from amongst permanent Assistant Engineers, there can be no recruitment
earlier when an Assistant Engineer is holding his post in an officiating or
According to him the petitioners could not be
said to be recruited to Class I when they were not permanent Assistant
Engineers. Again according to him the petitioners could be considered as
permanent Assistant Engineers only when they were confirmed in their posts in
Class 11. According to the respondents, confirmation and not officiating
appointment in the grade of Executive Engineer is sine qua non of recruitment
As stated earlier there are no statutory
seniority rules as such. The whole question will turn on the construction of
rule 4 read with rule 23 and also any other appropriate administrative
instructions, issued by the Ministry of Home Affairs with regard to the
principles for determining seniority. We have already quoted the said rules. We
have now to consider the Memorandum of the Home Ministry dated June 22, 1949
(Annexure G-1) and another similar Memorandum dated 985 December 22, 1959
(Annexure G-11). The latter Memorandum gives an annexure containing the general
principles for determination of seniority in the Central Services.
Mr. Bhandare followed by Mr. Rao relies upon
the Memorandumof June 22, 1949 and agrees with the learned Solicitor General
that the Memorandum of December 22, 1959, is not relevant: But the learned
Solicitor General goes further to submit that the Memorandum of June 22, 1949,
is also not relevant as it deals with seniority of displaced Government
servants who have been absorbed temporarily in the Central Government and the
petitioners do not fall in that category.On the other hand, the petitioners
submit that from the Memorandum of December 22, 1959, it is clear that although
the instructions contained in the Memorandum dated June 22, 1949, were issued
in order to safeguard the interests of the displaced Government servants, later
on as the specific objects underlying the instructions cited above have been
achieved, there is no longer any reason to apply those instructions in
preference to the normal principles for determination of seniority. The
Memorandum proceeds "it has, therefore, been decided in consultation with
the Union Public Service Commission that hereafter the seniority of all persons
appointed to the various Central Services after the date of these instructions
should be determined in accordance with the General Principles annexed
hereto". "The instructions contained in the various office Memorandum
cited in paragraph I (including that of June 22, 1949) above are hereby
cancelled, except in, regard to determination of seniority of persons appointed
to the various Central Services prior to the date of this Office Memorandum.
The revised General Principles embodied in the Annexure will not apply with
retrospective effect, but will come into force with effect from the date of
issue of these orders, unless a different date in respect of any particular
service/grade from (sic (for?) which revised principles are to be adopted for
purpose of determining seniority has already been or is hereafter agreed to by
It is, therefore, clear that so far as the
petitioners are concernedthe Memorandum of December 22, 1959, is not attracted.
On the other hand the Memorandum of June 22, 1949, will clearly apply (See
Union of India and Others v. M. Ravi Varma and Others, etc.(1). Para 2 of that
Memorandum may now be quoted "2. The question of seniority of Assistants
in the Secretariat was recently examined very carefully in consultation with
all the Ministries and the Federal Public Service Commission and the decisions
reached are incorporated in para 8 of the instructions for the initial
constitution of the grade of Assistants, an extract of which is attached.
It has been decided that this rule should
generally be taken as the model in framing the rules of seniority for other
services and in respect of persons employed in any particular grade seniority
should, as a general rule, be determined on the basis of the (1)  2
16--346SupCI-75 986 length of service in that
grade as well as service in an equivalent grade irrespective of whether the
latter was under Central or Provincial Government in India or Pakistan".
Paragraph 8 to which a reference is made in
the above Memorandum reads as follows :"8. Seniority of Assistants in
Grade IV as newly constituted. The names of all existing permanent Assistant
who are included in the permanent strength of the service and who were
confirmed in their' posts prior Lo the 22nd October, 1943, will be arranged in
the first instance Ministry-wise in accordance with the rules in force at
present. Such permanent Assistance will be considered senior to all others
conferment in pursuance of these instructions in vacancies arising upto the
22nd October, 1950. The order of seniority of the latter group of Assistants,
namely, those confirmed after the 22nd October, 1943, which will be arranged in
a single list for all Ministries, will be determined inter se on the basis of
their length of continuous service, temporary or permanent in the grade of
Assistant or in an equivalent grade, provided that any period of service during
which the pay actually drawn exceeds Rs. 160/per month should be deemed to be
service in a grade equivalent to that of an Assistant".
It is submitted on behalf of the respondents
that the question of seniority arises between Assistant Executive Engineers and
Assistant Engineers only when the latter are members of ' the same class grade
which happens only after the Assistant Engineers are confirmed as Executive
Engineers. It is emphasised that as between members of different classes the
question of relative Seniority cannot arise. It is further submitted that
having regard to the nature of the scheme the rules provide that the grade of
Assistant Executive Engineer will consists exclusively of young men of merit
proved by competitive examination who will quickly after the necessary training
have promotion to the posts of Executive Engineer and above. In the context of
that scheme rule 4 (2) requires 66-2/3 % vacancies to be filled by the
Assistart', Executive Engineers and "the rest" by promotion of the
Assistant Engineers or by transfer. We are not concerned with transfer from
other service in this case. It is also contended that the rule clearly gives
preference to the extent of 66-2/3% to the Assistant Executive Engineers. It is
only after their appointment to the extent of 66-2/3% that "the rest"
comes into existence.
The argument proceeds that it is only on
confirmation and absorption of Assistant Engineers in Class I that the question
of relative seniority between them and Assistant Executive Ercincers promoted
as Executive Engineers can arise. It is strenuously contended that an Assistant
Engineer officiating as Executive Engineer cannot be senior to an Assistant
Executive Engineer while officiating as Executive Engineer. Particular
vacancies as and when they go on arising must be finally filled to give effect
to 662/3% to Assistant Engineers and thereafter only the residue to Assistant
Engineers or transferred officers. It is stressed by the respondents that
appointment by rotation is involved in the mandate rule 4(2) itself.
987 Mr. Ramamurthi and Mr. Balakrishnan while
adopting the arguments of the learned Solicitor General reply upon an Office
Memorandum of December 8, 1960, of the Ministry of Works, Housing and Supply,
Government of India, on the subject of principles for seniority in the Central
Engineering Service and Central Electrical Engineering Service (Class 1) in the
Central Public Works Department. The learned Solicitor General did not address
us on this Office Memorandum as he rightly found considerable difficulty in
doing so. It will appear from the recital in this Memorandum that it has not
emanated from the Home Ministry which is the appropriate Department for issuing
instructions in service matters under the Allocation of Business Rules of the
Central Government under Article 77(3) of the Constitution. Besides, this
Office Memorandum refers to and relies upon a Notification of November 22,
1960, of the Home Ministry, namely, U.0. No.
9/38/60-Estt(D) for issuing these
instructions. The said Notification of the Home Ministry could not be traced
and was not produced before us and in its absence we are unable to take into
consideration the Memorandum of December 8, 1960. The learned Solicitor General
is, therefore, correct in not referring to the same but submitted his arguments
mainly on the construction of the Recruitment Rules. He, however, did submit
that what was recited in para 4 of the Memorandum of December 8, 1960, actually
followed from rule 4(2) read with rule 23 and it was not, therefore, necessary
at all to make any reference to this Memorandum.
It will be appropriate at this stage to refer
to the judgment of the Delhi High Court under appeal where the High Court
relied upon the said Notification of December 8, 1960 and also accepted the
arguments on the line made before us by the learned Solicitor General. The High
Court relied upon the Circular of December 8, 1960 and paragraph 7 of the
annexure to the Office Memorandum of December 22, 1959, of the Home Ministry
with regard to the relative seniority of direct recruits and promotees and
observed as-follows "The rotational system is, therefore, firstly
justified by rule 4 (2) itself. Even if it is assumed for the sake of argument
that rule, 4(2) is silent about the rotational system, then the administrative
instructions make it clear that the quota system in rule 4(2) has to be worked
out only by the rotational system and not in any other manner".
The High Court further held as follows
"The case of Shri Ojha (appellant in Civil Appeal NO. 1745 of 1974) is that
because he was officiating as an Executive Engineer Class I from before the
time the respondent No. 9 started officiating Shri Ojha was entitled to
seniority not only against respondent No. 9 but against the other respondents
also. This stand is contrary to the last part of rule 4(2) which compels the
Government to fill the vacancies in the grade of Executive Engineers Class 'I
strictly by rotation system implement the quota rule. Our conclusion on
question No. 1, therefore, is that the earlier confirmation and 988 the higher
seniority given to the respondents are legal both according to the statutory
rule 4(2) and according to the administrative instructions".
The administrative instruction which is
referred to in the above extract is to be found in the aforementioned paragraph
6 of the Circular of December 22, 1959, regarding relative seniority of direct
recruits and promotees.
We have already made it clear that the
Memorandum of December 22, 1959, is not applicable in this particular case. We
have, therefore, to examine whether it is correct to hold that it is implicit
in rule 4(2) read with rule 23 that the rotational system is necessarily
implied to the extent of denying seniority to the petitioners if appointed
regularly earlier within their quota at the time of recruitment. We have also
to examine the correctness of the submission as to whether the Assistant
Engineers after they are confirmed as such and continue to hold the
appointments of Executive Engineer in regular course of selection through the
Departmental Promotion Committee, presided over by a member of the Union Public
Service Commission are entitled to claim seniority vis-a-vis the Assistant
Executive Engineers when promoted subsequent to their appointments.
Now the question which arises for
consideration is what is the meaning of the words "vacancies in the grade
of Executive Engineer" as used in the aforesaid paragraph of rule 4(2).
When does a vacancy in the grade of. Executive Engineer arise? To answer this
question it is necessary to ascertain what are the posts which the grade of
Executive Engineer consists of, for the vacancies can only be in the posts in
the grade 'of Executive Engineer. The word "grade" has various shades
of meaning in the service jurisprudence.
It is sometimes used to denote a pay scale
and sometimes a cadre. Here it is obviously ,used in the sense of cadre. A
cadre may consists only of permanent posts or sometimes, as is quite common
these days, also of temporary posts. To give one example, the cadre of Income
Tax Officers, Class 1, Grade II, as pointed out by this Court in Bishan Sarup
Gupta v. Union of India and Others(1) in para 18 of the report, consisted of It
permanent and temporary posts". Here in the present case it has been
stated on oath by P. K. Kulkarni, Under. Secretary to the Ministry of Works and
Housing, in paragraph 7 of his Affidavit-inreply at page 252 of the Paper Book
that "there are permanent and temporary posts sanctioned from time to time
in the grade of Executive Engineer, Class 1. Promotions from the grade of
Assistant Executive Engineers and/or Assistant Engineers are initially made in
an officiating capacity against the available vacancies,. . . . the avail able
vacancies obviously being in the permanent and temporary posts in the grade of
Executive Engineer. Paragraph 23 of the same Affidavit-inreply at page 257 of
the record is also to the same effect "I say that there are permanent and
temporary posts sanctioned in the-grade of Executive Engineer". It is,
therefore, clear that the cadre of Executive Engineer consists both of
permanent posts and tempo1.  3 S.C.C. 1.
98 9 rary posts. Even from the statement of
sanctioned strength of Engineering Officer Class 1, Central P.W.D., from 1960
to 1972 filed by the Solicitor General in the course of argument it is apparent
that the cadre includes both permanent and temporary posts. Whenever therefore,
a vacancy arises in a permanent post or in a temporary post it would be a
vacancy in the grade of Executive Engineer and the quota rule for promotion
The above conclusion at which we have reached
is reinforced also by a reference to rule 2 of section 6 in Chapter V at page
31 of the C.P.W.D. Manual, Volume 1 (1970 edition) (hereinafter referred to as
the Manual) wherein "every officer appointed against a permanent or
temporary post" is specifically adverted to. Again at page 35, rule 19(b),
there is a reference to Class I Direct Recruits (temporary).
Indeed we find an admission in paragraph 67
of the Affidavit-in-reply filed by P.B. Kulkarni at page 271 of the record:
"I submit that the quota rule is to be applied as and when vacancies in
the grade of Executive Engineer are required to be filled but as already stated
earlier it has not been possible to apply this quota rigidly at the time of
officiating promotions as promotions from the grade of Assistant Engineer have
been far in excess of their quota".
It may also be noted that it is at the stage
of promotion to the grade of Executive Engineer that the quota rule is to be
applied. Now there is a well-recognised distinction between
"promotion" and "confirmation" and that is apparent from
the Manual, Chapter VI, Section 6 at pages 46-47. Rule 6, at page 47 says that
promotions by a Departmental Promotion Committee on the basis of assessment of
merit from a field of choice which may extend upto 5-6 times the number of expected
vacancies, while rule 4 provides that the confirmation is subject to
satisfactory performance and clearance from the vigilance angle and the
confidential dossier of the official concerned is required to be reviewed to
see that the individual has been reported satisfactorily during the 'period of
last three years as may be fixed by the Departmental Promotion Committee for
the purpose and if the reports are unfavourable or below average, the incumbent
shall 'have to wait for a further period till he gains satisfactory reports.
The tests , to be applied for the purpose of "promotion" and
"confirmation" are entirely different. When promotion is made by
selection, as it is, from amongst Assistant Engineers, it is based on the
assessment of relative merit from a field choice consisting of the senior most
persons in the lower cadre upto about 5 or 6 times the number of expected
vacancies, while for confirmation the only aspect considered is whether the
performance of the incumbent is satisfactory and there is nothing objectionable
from the violence angle. Then again section 7 of Chapter V of the Manual deals
with the subject of promotion while section 8 of the same chapter deals with
the subject of confirmation clearly recognising the distinction between
promotion and confirmation. Rule 4 of section 7 at page 48 also makes a clear
distinction between promotion and confirmation. Rule 9 of the same section at
page 50 lays down the procedure for promotion to the selection posts and this
procedure has clearly no application in cases of confirmation. It was this
procedure which was apparently followed when the petitioners and respondents 67
to 118 9 90 were promoted as officiating Executive Engineers from the grade of
Assistant Engineer. Then rule 12 of section 7 at page 52 lays down that in
order to be eligible for promotion as Superintending Engineer an Executive
Engineer promoted from Class I Service would have to, put in "7 years'
service in the grade of Executive Engineer". Similarly an Executive
Engineer promoted from Class II service also has to put in "7 years'
service in the grade of Executive Engineer'. Thus once an Assistant Engineer is
regularly promoted to officiate in the grade of Executive Engineer, there is no
further restriction under the rules in his next jump to the grade of
Superintending Engineer. Now it cannot be disputed that for the purpose of
promotion to the grade of Superintending Engineer 7 years service in the grade
of Executive Engineer would count by taking into account not only service
rendered after confirmation in the permanent post of Executive Engineer but
also service rendered in an officiating capacity in a permanent or temporary
post as Executive Engineer. This can be explained only on the hypothesis that
the grade of Executive Engineer consists both of permanent and temporary posts
and service in an officiating capacity, here, is service in the grade of
Executive Engineer. When an Assistant Executive, Engineer or Assistant Engineer
is promoted to officiate as Executive Engineer he is regarded as promoted to
and serving in the grade of Executive Engineer. Again rule 11 of section 8 at
page 57 of the Manual enunciates a very important principle which clearly
brings out the distinction between promotion and confirmation. It says inter
alia that the list of eligibility, is to be finalised "after keeping in
view the seniority of the persons concerned in the post in which he is to be
confirmed". Seniority "in the post in which he, is to be
confirmed" is to be reckoned. That means that those who are to be
confirmed as Executive Engineers have a seniority in the grade of Executive
Engineer though they are only officiating Executive Engineers and their
confirmation would follow according to their seniority as officiating Executive
Engineers which would depend on when they were promoted as officiating
Executive Engineers in a regular manner within their quota. It would,
therefore, be seen that so far as this service is concerned promotion has
always been recognised as distinct from confirmation.
During the course of hearing instances have
been shown where Assistant Engineers before confirmation in Class It have been
regularly promoted to officiate as Executive Engineers.
So also Executive Engineers prior to their
confirmation as such have been promoted to officiate as Superintending
Engineers. The process of selection by the Departmental Promotion Committee,
according to rule 9 of section 7 at page 50 of the Manual is applied at the
stage of promotion of Assistant Engineers as officiating Executive Engineers
and not at the stage of their confirmation which is required to be made
according to rule 4 of section 6 at page 46 and rule 1 1. of section 7 at page
57 of the Manual. The quota rule which on the plain language of the last
paragraph of rule 4(2) is to be applied at the stage of promotion must,
therefore, be given effect to at the point of time when Assistant Engineers and
Assistant Executive Engineers are promoted as officiating Executive Engineers
and not at the stage of their confirmation.
It is submitted by the respondents that
one-third quota cannot be filled unless the two-third quota was exhausted.
This, in our view, 991 will introduce
sterility in the quota rule so far as the promotees are concerned. Their hopes
and aspirations cannot be related to the availability or non-availability of
the direct recruits to fill the two third quota. Each quota will have to be
worked independently on its own force. The word "rest" in the quota
rule cannot be pressed into service to defeat the object of the rule coming in
aid of advancement of prospects of promotees in the hierapchy by of the
It may be pointed out that even in the case
of recruitment to the cadre of Income Tax Officer, Grade II, Class 1, the,
letter of the Government of India dated September 29, 1944, which fixed the
quota between direct recruits and promotees pursuant to rule 4 was
substantially in the same terms as the last paragraph of the present rule 4(2).
It is stated that the recruitment to Grade 11 of Class I will be made partly by
promotion and partly by direct recruitment and that "80% of the vacancies
arising in the grade will be filled by direct recruitment and the remaining 20%
vacancies will be filled on the basis of the promotion by selection provided
suitable number of men are available for promotion". This quota of 80% and
20% was subsequently altered by Government of India-to 66-2/3% and 33-1/3% by
their letter dated October 18, 1951. This Court held in Bishan Sarup Gupta's
case (supra) interpreting the quota rule of 1944 and 1951 in para 18 thereof as
follows "It is feebly contended on behalf of the direct recruits that the
quota rule should relate to only vacancies in permanent posts and not temporary
posts. This contention is not accepted either by the promotees or the
department. There is nothing in the ' Rules of 1945 or the quota rule of 1951
which says that the vacancies must be vacancies in permanent posts. Indeed the
vacancies must be permanent vacancies that is to say vacancies which are not
for a few days, or for a few months or are otherwise adventitious. The whole
cadre has consisted of permanent and temporary Posts for years. Permanent
vacancies are, therefore, likely to take place both in the permanent posts and
in the temporary posts. In fact Mr. Dutt, in his affidavit filed in
Jaisinghani's case (supra), had clearly alleged in paras 25 and 26 of the
affidavit that all the: direct recruits from 1948 onwards were initially
appointed against temporary posts and even at the time of the filing of the
affidavit, i.e. on January 31, 1967, direct recruits were being appointed
against temporary posts. We, therefore, find no sufficient warrant for the
contention that the vacancies referred to in the quota rule are vacancies only
in the permanent posts".
This reasoning applies equally in the present
case and it must be held that the vacancies referred to in the quota rule in
the last paragraph of rule 4(2) are vacancies not only in the permanent posts
but also in the temporary posts in the grade of Executive Engineer and the
quota rule applies at the stage when Assistant Engineers and Assistant
Executive Engineers are promoted even if it be in an officiating capacity to
fill vacancies in the grade of Executive Engineer irrespective of whether the
vacancies are in permanent posts or temporary posts.
But then the question may arise as to how the
quota rule is to be applied. Here again we find that guidance is afforded by
the decision of this Court in Bishan Sarup Gupta's case (supra). Paragraph 14
of the judgment in that case deals with this very question vis-a-vis
recruitment to the cadre of Income Tax Officers, Grade 11, Class I "On the
other hand, the contention on behalf of the direct recruits is that the real
intention of the rule was to secure that at any given moment the service must
consist of direct recruits and promotees in the proportion of 2:1. If, for
example, in any year 50 direct recruits were appointed, than not more than 25
promotees could be appointed in that year. If also no direct recruit was
appointed in a year there could be no appointment of promotees. This line of
argument has been accepted by the High Court and it was substantially on that
ground that the seniority list prepared on July 15, 1968, has been set aside
and directions given for preparing a fresh one. What was, however, over-looked
is that the rule, dated October 18, 1951, was not concerned With the
constitution of the cadre but was concerned as to how permanent vacancies were
to be filled.
Rule 4 of the Income-tax Class 1, Grade 11
Service Recruitment Rules also refers to recruitment of-candidates to vacancies
in the service. The vacancies for any particular year being ascertained, not more
than one third of the same were to go to the promotees and the rest to the
direct recruits. The ratio was not made dependent on whether any direct recruit
was appointed in any particular year or not. We are, therefore, unable to
accept the con construction put on the quota rule by the High Court. In our
opinion, the promotees were entitled to one-third of the vacancies in any
particular year whether or not there was direct recruitment by competitive
examination in that year".
It would, therefore, be seen that the
Assistant Executive Engineers were entitled initially to three-fourth and
subsequently to two-third of the vacancies in the grade of Executive Engineers
arising in any particular year, while Assistant Engineers were entitled
initially to ,one-fourth and subsequently to one-third of such vacancies and
the ratio was not dependent on whether any persons from one class or the other
were, promoted or not. If there were three vacancies in a year, two would go to
the Assistant Executive Engineers while one would go to the Assistant Engineers
and even if there were no eligible Assistant Executive Engineers, who could be
promoted to fill in-two vacancies belonging to their quota, one vacancy will
have to be filled by promotion of an Assistant Engineer. If having regard to
the exigencies of the situation, the two vacancies belonging to the quota of
Assistant Executive Engineers had to be filled in by Assistant Engineers for
want of availability of eligible Assistant Executive Engineers, 993 the
appointment of the Assistant Engineers to fill in such two vacancies would be
irregular, because that would be outside their quota and in that event they
would have to be pushed down to later years when their appointment can be,
regularised as a result of absorption in their lawful quota for those years.
This is what was directed to be done by this Court for the purpose of fixing
inter se seniority amongst direct recruits and promotees in the grade of Income
Tax Officers Grade 11, Class 1, in Bishan Sarup Gupta's case (supra). This
Court pointed out in that case as follows at page 8 "If there were
promotions in any year in excess of the quota those promotions were merely
invalid for that year but they were not invalid for all time. They can be
regularised by being absorbed in the quota for the later years. That is the
reason why this Court advisedly used the expression "and onwards"
just to enable the Government to push down excess promotions to later years so
that these promotions can be absorbed in the lawful quota for those
The same procedure will have to be followed
in the present case. Whenever it is found that Assistant Engineers were
promoted as officiating Executive Engineers in excess of their quota they would
have to be pushed down to later years in order that their promotion may be
regularised by being absorbed in their quota for later years.
When recruitment is from two or several'
sources it should be observed that there is no inherent invalidity in
introduction of quota system and to Work it out by a rule of rotation. The
existence of a quota and rotational rule, by itself, will not violate article
14 or article 16 of the Constitution (See Marvyn Coutinho & Ors. v.
Collector of Customs, Bombay & Ors.,(1) and Govind Dattatray Kelkar &
Ors. V. Chief Controller of Imports & Exports & Ors.) .(2) It is the
unreasonable implementation of the same which may, in a given case, attract ,he
frown of the equality clause.
If the seniority list is now properly
prepared in the manner indicated in this judgment, +,here may be no objection
on the score of article 14 or article 16 of the Constitution.
In this view of the matter, it is not
necessary to pursue the arguments addressed regarding violation of articles 14
and 16 of the Constitution.
To summarise the conclusions(1) When
Assistant Engineers (Class 11) are initially appointed in a regular manner in
accordance with the rules to, officiate as Executive Engineers, their seniority
in service in Grade I will count from the date of their initial officiating
appointment in Class I provided their initial officiating appointment as
Executive Engineers was within their quota.
(2) Their seniority will not be reckoned from
the date of their future confirmation in Class 1.
(1)  3 S.C.R. 600.(2)  2 S.C.R.
9 94 The above principle is, however, suspect
to one reservation, namely, if an Assistant Engineer before his confirmation in
Class 11 were appointed to officiate in Class I in the grade of Executive
Engineer, although within his quota, his seniority will count only from the
date of his confirmation in Class 11 as permanent Assistant Engineer
notwithstanding his earlier officiating appointment as Executive Engineer.
(3) The quota rule will be enforced at the
time of initial recruitment, in an officiating capacity, to the grade of
Executive Engineer and not at the time of confirmation.
(4) The quota rule will be enforced with
reference to vacancies in all posts, whether permanent or temporary, included
in the sanctioned strength of the cadre (except such vacancies as are purely of
a fortuitous or adventitious nature) and the operation of the quota rule will
not depend upon the availability or non-availability of Assistant Executive
Engineers for appointment as Executive Engineers. The non-availability of
Assistant Executive Engineers for recruitment to the grade of Executive
Engineer will not postpone the regular recruitment of the Assistant Executive
Engineers as Executive Engineers within their quota.
(5) Once the Assistant Engineers are
regularly appointed to officiate as Executive Engineers within their quota they
will be entitled to consideration in their own rights as Class I Officers to
Their "birth marks" in their
earlier service will be of no relevance once they are regularly officiating in
the grade of Executive Engineer within their quota.
(6) If Assistant Engineers are recruited as
Executive Engineers in excess of their quota in a Particular year they will be
pushed down to later years for absorption when due within their quota.
In the result the Writ Petition and the Civil
Appeals are allowed. The judgment of the High Court is set aside. The
respondents 1 to 3 in Writ Petition No. 489 of 1972 (respondent No. 1 being
common in the other two Appeals) are directed to amend and revise the 995
seniority list of 1971 (Annexure 'J') in the light of the directions in this
judgment and to give effect thereafter to the revised seniority list so
prepared. The revision of the seniority list shall not, however,. affect those
employees who are not impleaded in the proceedings before this Court and who
have already been promoted and confirmed in higher grades in the Service.
Respondents 1 to 3 will pay the costs of the petitioners in Writ Petition No.
489 of 1972 and respondent No. 1 will pay to the appellants in the Civil
Appeals costs through-out.
C.M.P. No. 1889 of 1974 regarding delay in
filling of the counter-affidavit on behalf of respondents 1 to 3 in the Writ
Petition is. allowed.
We may observe in the end that it may be
desirable that the time-, of this Court may not be consumed in resolving these
complex tangles in conditions of service breeding human discontent and the
solution thereof is better left to a fair and proper formulation of precise
and' unequivocal statutory rules after examination of the problems with a,.
broad humane approach.