Jagmal Singh Yadav Vs. M. Ramayya
& Ors  INSC 5 (6 January 1977)
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 1474 1977 SCR (2) 573 1977
SCC (2) 593
Service matter---Central Engineering Service,
Class II (Recruitment Rules) 1954--Rule 4(c)--Scope of. No determination of
quota between direct recruits and promotees made by Government Direct recruits
confirmed earlier than promotees who were seniors--Confirmation if
valid--Departmental Promotion Committee presided over by Member of U.P.S.C.--If
amounts to consultation with UPSC.
Rule 3 of the Central Engineering Service
Class II (Recruitment Rules) 1954 provides for the recruitment to the service
by four methods; (a) by competitive examination;
(b) by direct appointment, otherwise than by
competitive examination; (c) by promotion; and (d) by transfer. Rule 4(c)
provides that the method or methods of recruitment and the number of candidates
to be recruited by each method shall be determined by the Government. Rule 24
states that recruitment by promotion shall be made by selection on the basis of
merit from among permanent Section Officers employed in the Civil Engineering
side of the Central Public Works Department.
The writ petitioners before the High Court,
who were initially appointed as Section Officers in the Subordinate Engineering
Service Class III (Non Gazette), were subsequently appointed as Assistant
Engineers in the Central Engineering Class II (Gazette) between 1958 and 1963
by way of selection as provided under the rules. Between the years 1961 and
1967, the Government appointed Assistant Engineers some on the basis of a
competitive examination held by the Union Public Service Commission and others
without the competitive examination on various dates some of the direct
recruits were confirmed by the Government before the promotees were confirmed.
In a petition under Art. 226 of the
Constitution the writ petitioners claimed that though they were appointed as
temporary Assistant Engineers much earlier than the direct recruits, the latter
were confirmed earlier than themselves. The High Court partly allowed their
writ petition holding that there was no determination of any quota by the
.Government, since the direct recruits obtained preference over the writ
petitioners in the matter of confirmation and seniority it directed the
Government to adjust the inter-se seniority of such of the petitioners as might
be confirmed after a Consideration of their cases in accordance with law.
In appeal to this Court, the appellant, who
was one of the direct recruits, contended that the recruitment of the writ
petitioners was outside the rules particularly because the recruitment was not
made "after consultation with tile U.P.S.C." as required by r. 23(1).
Dismissing the appeal
HELD: (1) The writ petitioners are entitled
to be considered for confirmation in the service in Class II. Since there was
no quota rule on the basis of which confirmation had been made and seniority
had been fixed, the High Court was right in holding that the Government should
consider the ease of the petitioners for confirmation and seniority in
accordance with law. [577 A-B] (2) The appointment of the writ petitioners was
in accordance with r. 23 read with r. 3(b) of the Rules.
Although rule 23(1) provides recruitment by
selection after consultation with the U.P.S.C. the particular Departmental
Promotion Committee was presided over by a member from the U.P.S.C. The 574
relevant instructions of the Home Ministry stated that recommendations made by
the Departmental Promotion Committees on which the Commission was represented,
should be treated as recommendations having the approval of the Commission and
that the convention regarding acceptance of the advice of the Commission would
apply. [580 B-C, D-E] (3) There is nothing to show that there had been determination
of the quota by the Government of India under r.
4(c). The Rules did not prescribe therein any
quota for recruitment through the four methods specified in r. 3.
Under r. 4(b) no method other than the one
specified in r. 3 is permissible for recruitment. With regard to the sharing of
recruitment through the different methods, power is reserved to the Government
under r. 4(c) to make certain determinations. The determination under r. 4(c)
must be by the Ministry of Home Affairs at the relevant time and if a decision
were taken by that Ministry under the Rules of Business under Art. 77(3) of the
Constitution, the determination would be of the Government of India. In the
instant case there has been on adherence to the quota rule; on the contrary
there has been a flagrant violation of the rule.
[583 E-G, 584 D] , (4) (a) Even for executive
instructions, the condition precedent is an appropriate decision by the
competent authority and the High Court has not committed any error of law in
holding that there was no determination bit Government under r. 4(c) to call
for interference under Art.
136 of the Constitution. [585 B-C] (b) The
factum of determination of seniority was a live issue between the parties in
the High Court and there was no error of jurisdiction on the part of the High
Court in examining the whole matter thoroughly and in considering the documents
filed by the parties. [584 H, 585 A] The Court pointed out that persons
entering Government service have the right to know where they stand with regard
to their conditions of service and future promotion. Since there is no
impediment in the way of the Government to make appropriate rules regarding
conditions of service, it is a sorry plight to find that officers in the same
service fight over the years, in courts, having failed to get redress from the
Government. When officers are qualified to hold certain posts after recruitment
according to rules, and they have put in a number of years in the service to
the satisfaction of the authorities, it is impermissible to invoke a recondite
rule and call it in aid to deprive a large section of officers of the benefit
of their otherwise satisfactory service. The. matter may be different when
posts in the service are abolished, appointments to the service are transitory
or fortuitous or incumbent are found unsuitable for absorption. The history of
this service is that temporary posts were first created and then after some
years they were converted into permanent posts. The Government therefore cannot
merely be an on-looker where it could rightly claim to be a legitimate arbiter
on its own authority and having proper regard to all just claims. [585 F-H]
CIVIL APPELLATE JURISDICTION :Civil Appeal
No. 1260/73 (From the Judgment and Order dt. 5.11.71 of the Delhi High Court in
C.W.P. No. 238 of 1970) Mrs. Shyamala Pappu and Ashok Kumar Grover for the
Appellant M.C. Bhandare, D.N. Mishra and O.C. Mathur, for Respondents Nos. 3
& 4 G.D. Gupta, for Respondent No. 8.
Gobind Das and Girish Chandra for Respondent
No. 13 575 S.T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents
Nos. 55, 64, 75, 80 & 89.
Judgment of the Court was delivered by GOSWAMI,
J.--This appeal by special leave is directed against the judgment of the Full
Bench of the High Court of Delhi whereby the .writ petition of the first twelve
respondents was partly allowed. The appellant, who jointed service in the cadre
of Assistant Engineers in the Central Engineering Service, Class II (Gazetted),
was respondent No. 51 in the High Court. Other respondents in the High Court in
similar position as that of the appellant have been impleaded here as
respondents (16 to 110) and they are supporting the appellant through their
counsel Mr. S.T. Destai. For the sake of convenience the appellant and the
respondents 16 to 110 will be described heroin below as direct recruits in the
Class II Service. The Union of India, Engineer-in-Chief, C.P.W.D., and the
Union Public Service Commission are respectively respondent Nos. 13, 14 and 15
and are represented by Mr. Gobind Das.
The respondents 1 to 12 (hereinafter to be
referred to as the respondents) preferred an application in the High Court
under Article 226 of the Constitution on 16th February, 1970, praying for
certain reliefs which the High Court has summarised under the following four
(1) That the confirmation of the direct
recruits should be held as illegal.
(2) That the respondents and other persons
Who are similarly situated like them and who had joined the service earlier
should be directed to be confirmed first according to the dates of their
joining the service as Assistant Engineers after giving weightage in preference
to the direct recruits.
(3) That the appointment of 38 specified
direct recruits should be held as illegal.
(4) That the respondents (13' to 15 herein)
should be directed to. revise the classified list published in 1968.
The Court has also noted that the respondents
did not seek to disturb the appointments of the direct recruits already made
and that their main contention was that they were entitled to be confirmed
before those of the direct recruits who were appointed subsequent to them.
This appeal was heard by us in two stages.
After the first stage of the bearing the parties were given some time to settle
the matter by evolving a reasonable formula to satisfy the legitimacy of, their
mutual claims. It,, however, appeared that they could not compose their differences
and the appeal was, therefore, finally heard and concluded.
576 We may now briefly give the history of
The respondents (who are the twelve writ
petitioners in the High Court) are either graduates in Civil Engineering or possess
similar requisite qualifications, namely, an Engineering Degree or an
equivalent thereof. They were all initially appointed on different dates as
temporary Section Officers in the Central Public Works Department (hereinafter
to be referred to as the C.P.W.D.) in the subordinate Engineering Service,
Class III (Non-gazetted). They were subsequently appointed on various dates
between 18th October, 1958 and 8th January, 1963, "to officiate
temporarily and until further orders" as Assistant Engineers in the
Central Engineering Service, Class II (Gazetted) (.briefly the Service). The
appellant and the respondents 16 to 110 are what is described as direct
recruits to the Service.
Each of the direct recruits possesses a
Degree in Engineering or an equivalent thereof. Fifty eight of them were
directly recruited as temporary Assistant Engineers in the Central Engineering,
Service Class II (Gazetted) on different dates between 12th May, 1961 and 13fix
December, 1967, on the result of a competitive examination held .by the Union
Public Service Commission (UPSC). The remaining thirty eight also possess a
Degree in Engineering or an equivalent thereof and they were directly recruited
as temporary Assistant Engineers in the Service on different dates between 2nd
November, 1964 and 7th November, 1967, but .without any competitive
By a Notification dated 13th June, 1967,
excepting seven direct recruite (namely, respondents 11, 17, 29 and 31 to 34 in
the High Court) the remaining respondents (respondents 4 to 37 in the High
Court) were confirmed with effect from their respective dates of recruitment.
The said confirmations were also shown in a 'Classified list of Class II
Engineering Gazetted Establishment (Civil) of the CPWD' published in 1968. By
another Notification of 1st May, 1968, direct recruits (being respondents 17,
33, 34, 38, 64 and 74 in the High Court) were also confirmed. Similarly by a
Notification dated, 30th April 1971, other direct recruits (respondents 31, 32,
39, 43, 46, 50, 52 to 57, 60, 61, 63, 68, 69, 75, 76, 79, 82, 92 and 96 in the
High Court) were confirmed.
The grievance of the respondents in the High
Court was that although they were appointed as temporary Assistant Engineers
much earlier than the direct recruits the latter were confirmed ignoring their
claims. Their representations to the Government through their association
having failed they approached the High Court. The respondents (13 to 15) denied
their claim by means of a counter affidavit of Shri Kailash Prakash, Director
of Administration, C.P.W.D.
One of the direct recruits, Shri Durgadas
Karna, also filed a counter affidavit opposing the claim of the respondents in
the High Court. By consent certain documents were produced by the Government
and after inspection relevant extracts from the files were submitted to the
Court by respective parties.
Although serveral contentions were urged
before the High Court, some of them pertaining to Articles 14 and 16 of the
Constitution, 577 the High Court accepted the main contention of the writ
petitioners that there was no determination of any quota by the Government
since on the basis of the said quota the direct recruits obtained preference in
the matter of confirmation and seniority. The High Court thus partly allowed
the application and directed the respondents (respondents 1 to 3 in the High
Court) "to consider the petitioners (respondents herein) for confirmation
as Assistant Engineers and to adjust the inter se seniority of such of the petitioners
as might be confirmed after consideration by the respondents in accordance with
It is clear that if the High Court is right
that there was no determination by the Government under rule 4(c) of the
Recruitment Rules, to which we will refer presently, apportioning quota amongst
the officers recruited through different sources it will not be necessary to go
into the other questions raised by Mrs. Pappu for the appellant. If we find
that the High Court is wrong in its conclusion on this main point, we will have
to remand the matter to the High Court for decision with regard to the other
submissions which had not been dealt with by it. We will, therefore, take the
first point first.
Mrs. Pappu submits as follows: First, in the
absence of a plea in the writ petition that the Home Ministry's approval is
necessary the High Court exceeded its jurisdiction in going behind the determination
of the quota made under rule 4(c), particularly in the absence of any special
mode of determination prescribed under the Rules. Second, she submits that the
High Court failed to notice that it was open to prescribe quota by way of
executive instructions in the absence of any rules in this behalf. Third, she
submits that even assuming the High Court could enter into such an enquiry there
is ample evidence on record to show that a determination has been made under
The persons with whom we are concerned in
this appeal are governed by the Central Engineering Service, Class II,
Recruitment Rules (briefly the Rules) which were published on 21st May, 1954.
There are six Parts in these Rules.
Part I (General) provides the definitions.
Part/I deals with the methods of recruitment. Rule 3 with which this Part opens
provides as follows :-"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 direct appointment in accordance with
Part IV of these Rules of persons selected in India otherwise than by
(c) By promotion in accordance with Part V of
(d) By transfer in accordance with Part VI of
these Rules." 578 Rules 4 and 5 may also be noted:
"4. (a) All appointments to the Service
or to posts borne upon the cadre of the Service shall be made by the
(b) No appointment shall be made to the
Service or to any post borne upon the cadre of the Service by any method not
specified in Rule 3.
(c) Subject to the provisions of sub-rule
(b), the method or methods of recruitment to be employed for the purpose of
filling any particular vacancies in the Service or such vacancies therein as
may be required to the filled during any particular period and the number of
candidates to be recruited by each method shall be determined by the
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'." Part III provides for recruitment by
competitive examination which is the method provided in rule 3(a). We are not
concerned with the details in this Part except to note that the examination is
conducted by the UPSC and the requisite qualifications and age restrictions and
relaxation are provided for in this Part. We may also note that Rule 21 of this
Part provides that the selected candidates shall be appointed as Assistant
Engineers on probation for two years and on the completion of the period of
probation, if considered. fit for permanent appointment, they will be confirmed
in their appointments. There is a provision for extending the period of
probation under rule 21(c). We need not notice other details in this Part.
Part IV deals with recruitment by selection.
Rule 23 with which this Part opens provides as follows:
"23. (1) Recruitment by selection shall
be made from among Temporary Engineers and Temporary Section Officers employed
on the Civil, Engineering side of the Central Public Works Department after
consultation with the Commission:
Provided that it shall not be necessary to
consult the Commission, in the ease of any person, if the Commission were
consulted in connection with his temporary appointment to the Service.
(2) No person shall be eligible for selection
under subrule (1) unless he would, but for age, be qualified for admission to
the Service under Part III of these rules, and his age at the time of
appointment to the Service is not more than 40 years.
579 (3) Merit shall be the primary consideration
in determining a person's fitness for selection under this rule and no officer
shall have any claim to appointment under this rule as of right." Part V
deals with recruitment by promotion and contains a solitary rule, namely, rule
24, which reads as follows :-"24. Recruitment by promotion shall be made
by selection on the basis of merit from among permanent Section Officers
employed in the Civil Engineering side of the Central Public Works
Department." Part VI deals with recruitment by transfer of an officer in
Government service and there is a solitary rule, namely, rule 25, which takes
care of this type of recruitment by transfer. We are not concerned with this
rule in this appeal.
From a perusal of the Rules it is clear that
there are four methods of recruitment, namely-(1) recruitment by competitive
examination (Part III);
(2) by direct appointment otherwise than by
competitive examination (Part IV);
(3) by promotion (Part V); and (4) by
transfer (Part VI).
It is also clear under rule 4(b) that no
appointment shall be made to this Service or to any post borne on the cadre of
this Service by any method other than the above mentioned four methods.
The direct recruits belong to two categories
of officers. Fiftyeight persons were recruited under rule 3(a) by competitive
examination. The remaining thirty eight persons were also directly recruited as
temporary Assistant Engineers but without any competitive examination and,
according to the respondents, "on an ad-hoc basis". So far as the
respondents are concerned they claim to be recruited under Part IV, namely,
recruitment by selection which is one of the four methods provided for under
rule 3 (b). On the other hand according to Mrs. Pappu the respondents are more temporary
promotees to temporary vacancies in Class II Service and they are a class
different from the direct recruits who are not similarly situated with them.
We have, therefore, first to consider this
submission of Mrs. Pappu. As stated earlier, there are four methods of
recruitment. Recruitment by promotion is provided under Part V and that is made
by selection on the basis of merit from amongst permanent Section Officers. The
particular recruitment of the respondents, therefore, cannot be under Part V.
It is common ground that the respondents at
the material time when they were appointed as. temporary Assistant Engineers
were only temporary Section Officers in Class III.
It is also admitted that 3--112SCI/77 580 all
these respondents have requisite qualifications which are necessary for
admission to the Service under Part III and they are also. within the age limit
laid down under rule 23(2). Besides, recruitment when made is only on merit
under rule 23(3). Being faced with this position, Mrs. Pappu submits that their
recruitment is outside the Rules particularly because rule 23(1) provides for
recruitment by selection "after consultation with the UPSC". She
submits that they were selected by the Departmental Promotion Committee which is
not the same thing as the UPSC mentioned in rule 22(1). We are, however, unable
to accept this submission. It is true that rule 23( 1 ) provides for
recruitment by selection after consultation with the UPSC.
The particular Departmental Promotion
Committee (DPC) was presided over by a member from the UPSC. There is Home
Ministry's O.M. No. 33/46-Ests(R) dated 17th June, 1947, wherein it has been
clearly stated in para 7 as follows :"Recommendations made by Departmental
Promotion Committees on which the Commission is represented should be treated
as recommendations having the approval of the Commission, and the convention
regarding acceptance of the advice of the Commission will apply." We are,
therefore, clearly of opinion that the appointments of the respondents are in
accordance with rule 23 in Part IV read with rule 3(b) of Part 1I of the Rules.
We find that the above conclusion we have reached is supported by the stand
taken on behalf of the Government in the Lok Sabha on 7th April, 1969, in
answering certain Unstarred question with regard to recruitment to this
Service, inter alia under Part IV.
Since, however, there are no statutory rules
for confirmation in service or seniority rules, it is submitted by Mrs. Pappu
that under rule 4(c) of the Rules it is for the Government to determine the
method or methods of recruitment to be applied for the purpose of filling any
particular vacancy 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 method.
It is in conformity with rule 4(c), says
counsel, that the Government has fixed the proportions for filling vacancies in
Class II Service by different modes of recruitment.
She draws our attention to a letter of the
Under Secretary to the Government of India, Ministry of works and Housing,
dated 2nd October, 1954, which, as the Subject matter shows, contains the
"proposal to prescribe definite quotas for titling the posts of Assistant
Engineer (Civil) and Assistant Engineer (Electrical) in the C.E.S., Class II,
and the C.E.E.S. Class II, respectively by different modes of recruitment."
The proposal sets out in Part A thereof the quota for permanent vacancies as
(i) 50% by direct recruitment by competitive
examination under Part 1II of the Recruitment Rules for the Class 1I Service.
581 (ii) 25% by promotion of permanent
Section Officers under Part V of the Recruitment Rules.
(iii) 25% by permanent appointment of temporary
Assistant Engineers recruited by competitive examination through the Union
Public Service Commission, and by transfer under Part VI of the Recruitment
Rules." Part B thereof fixes the quota for temporary vacancies as
(i) 50% by direct recruitment by competitive
examination through the Union Public Service Commission and by transfer under
Part VI of the Recruitment Rules.
(ii) 50% by departmental promotion from
amongst-(a) permanent Graduate Section Officers, (b) permanent non-Graduate
Section Officers, and (c) temporary Graduate Section Officers, in accordance
with the ratio which may be fixed by the Departmental Promotion Committee at
the time of making the selection.
Provided that if at any given time,
candidates who are successful at the Union Public Service Commission
competitive examination are not available in sufficient numbers for filling 50%
of the temporary vacancies that might be available, the residual vacancies may
be filled temporarily by departmental promotion, subject to the condition that
persons so promoted against such vacancies, shall be reverted later, if
necessary, to make room for the candidates who may qualify at subsequent
examinations to be held by the Commission,. as and when they become
available." It is pointed out that this proposal received approval of the
UPSC as per its letter dated 7th September, 1955. Mrs. Pappu draws our
particular attention to the following paragraph in that letter:
"For recruitment to the posts in the Central
Engineering Service, Class II, and the Central Electrical Engineering Service
Class II, the percentage quotas for various modes of recruitment suggested by
the Ministry vide their letter No. E-1/5(3) dated the 2nd October, 1954, have
been approved by the Commission." Our attention is particularly drawn by
the respondents to a letter dated 7th November 1975, from the Deputy Secretary
(Establishment) to the Secretary UPSC and the subject of the letter is
"confirmation in the grades of Assistant Engineers Civil & Elec. in
the C.P.W.D." It is stated in that letter-582 "Since these vacancies
have occurred as a result of conversion of posts from temporary to permanent
and since the C.P.W.D. has a large number of officiating Assistant Engineers
who have been promoted from the grade of Section Officer, it is considered that
the officiating Assistant Engineers have a prior claim to these posts. The
Ministry of Home Affairs also share this view ........
The last paragraph of this letter reads as
under "I am to request that the concurrence of the UPSC to, the allotment
of these vacancies on ad hoe basis to the officiating Assistant Engineers
(Civil) & (Elec) and to their confirmation as proposed by the DPC at their
meeting on 18.7.1955 may be communicated to this Ministry at an early
date." After this our attention is drawn by the appellant to a document
dated 5th March, 1962, on the "subject: preparation of a combined
seniority list for direct recruits and departmental promotees in the grade of
Assistant Engineers C.P.W.D." It is stated therein as follows :-"It
was tentatively agreed that since the ratio of recruitment prescribed for
direct recruitment through the UPSC and Departmental Promotion of Section
Officers has not been adhered to, the date of confirmation should be the basis
of determining the inter se seniority of direct recruits and the Departmental
promotees. When the date of confirmation of direct recruit and a departmental
promotee is, however, the same, the direct recruitment should rank senior to
the departmental promotee. The Chief Engineer, however, indicated certain
practical difficulties in following the above principle and it was decided that
further discussion should be held before the Ministry of Home Affair's would be
able to give their definite views in the matter." Mrs Poppu then draws our
attention to paragraph 2 of this letter which reads as under :"The ratio
in respect of direct recruitment and departmental promotion was prescribed in
September, 1955. Whenever confirmation thereafter was not made according to the
prescribed ratio, approval of the U.P.S.C. was obtained to the relaxation of
the quota." The same paragraph continues to throw more light:
"Before giving their final views, the
Ministry of Home Affairs desired to have a copy of the communications wherein
the UPSC agreed to the relaxation of the quota. As further discussions in the
matter will take place in the Ministry of Home Affairs within the next few days
the copies of the relevant communications should be sent immediately"..
583 Mrs. Pappu finally draws our attention to
the minutes of the meeting held in the Ministry of Home Affairs ion 16th June,
1962, to discuss the question of drawing up a combined seniority list of
various categories of Assistant Engineers in the C.P.W.D. She points out that
the first paragraph in the minutes shows that "according to the orders
issued in 1955 recruitment to the grade of Assistant Engineers (Civil &
Electrical) in the Central Public Works Department is to be made by the
following modes," namely, permanent vacancies and temporary vacancies in
such manner as was contained in the proposal dated 2nd October, 1954, which we
have already extracted. She then draws our attention that certain decisions
were taken, as will appear from paragraph 4 of the minutes, with regard to the
determination of the relevant seniority of direct recruits and departmental
promotees. Mrs. Pappu submits that this is a follow-up action of the proposal
which emanated from the Ministry of Works & Housing letter dated 2nd
October, 1954, and which received the concurrence of the UPSC. She submits that
the minutes did mention quota and some decisions were taken about inter se
She submits that the position emanating from
the minutes can only be reconciled on the basis that the quotas already fixed
in 1955 had been the rule with regard to this Service.
The short question that arises for consideration
is whether there has been a determination by the Government under rule 4(c). It
is clear that 1954 Rules did not prescribe therein any quota for recruitment
through the four methods specified under rule 3. One thing, however, is clear
that under rule 4(b) no other method is permissible for recruitment.
It is also clear that with regard to the
sharing of recruitment through the different methods power 'is reserved to the
Government under rule 4(c) to make certain determination. It is submitted by
Mr. Gobind Das, appearing on behalf of the Union of India, that at the relevant
time the Department of Personnel was in the Ministry of Home Affairs and it is
that Ministry which was entrusted With the matters relating to recruitment and
seniority. He further submitted that the approval or sanction of the Home
:Ministry was mandatory for validity of any rule. It is, therefore, clear that
the determination under rule 4(c) must be by the Ministry of Home Affairs at
the relevant time and if a decision were taken by the Home Ministry under the
Rules of Business under Article 77(3) of the Constitution the determination
would be of the Government of India. There is nothing to show that there was
any determination by the Home Ministry under rule 4(c). It is true that there
was a proposal from the Ministry of Works & Housing to which concurrence
had been given by the UPSC. After that there has been no further progress of
the matter and Mr.
Gobind Das concedes that there is nothing to
show from the records at the disposal of the Government that the approval of
the Home Ministry was given to any determination .under rule 4(c).
The Under Secretary in the Ministry of Works
& Housing has filed an affidavit dated 16th December, 1976, with an
annexure dated 14th 584 June, 1954, which shows that with reference to the
proposal for quotas the reaction of Home Ministry was in the following terms:
"Prima facie, the proposal seems unobjectionable
but this Ministry would like to see again after the UPSC's views have been
received." It is perhaps because of this that Shri Swaran Singh the then
Minister for Works & Housing also endorsed the Secretary's proposal, which
was in the following terms:
"The proposals are in order and may be
approved. After U.P.S.C. have been consulted and given their concurrence, the
case will have to be shown to the Home Ministry again who have asked to see
these papers after the views of the U.P.S.C. have been obtained." The
Minister, Shri Swaran Singh's endorsement appears at the foot of this proposal
on 24th September, 1954.
So far as the records go the matter rested as
above and there has. been admittedly no adherence to the quota rule, but on the
other hand there has been flagrant violation of the rule. As a matter of fact,
pari passu with the proposal there was even a request for relaxation and every
thing appeared to be at that stage and for a number of years in the melting
pot. This was perhaps possible only because the file with the proposal after
the concurrence of the UPSC did not move to the Home Ministry for final
determination under rule 4(c).
It is not possible to equate the minutes of
the meeting of 16th June, 1962, with an appropriate order or determination by
the Home Ministry. There is nothing to show that these minutes received the
approval of the Minister-in-charge. We are, therefore, unable to accept the
submission of Mrs. Pappu that there has been a determination, in fact, by the
Government under rule 4(c).
We have already held that respondents 1 to 12
were duly appointed under rule 23(1) of Part IV read with rule 3(b).
They are, therefore, entitled to be considered
for confirmation in the Service in Class. II. Since we have held that there was
no quota rule, as sought to be made out, on the basis of which the
confirmations have been made and seniority has been fixed, we agree with the
High Court that it will be for the respondents (13 to 15) to consider the ease
of the respondents (1 to 12) for confirmation and seniority in accordance with
law. As the High Court has pointed out, the validity of the recruitment of the
thirty eight direct recruits will, however, not be affected.
We are not impressed by the submission of the
appellant that there was no averment in the writ petition regarding absence of
determination under rule 4(c) of the Rules.
After a perusal of the pleadings and having
regard to the' stand taken by the parties before the High Court, we find that
the submission has no force. Since 'the factum of determination of seniority
was a live issue between the 585 parties in the High Court, there was no error
of jurisdiction on the part of the High Court in examining the whole matter
thoroughly and in considering the documents filed by the respective parties
after inspection of the files by consent.
It is also necessary to observe that even for
executive instructions the condition precedent is an appropriate decision by
the competent authority and we are unable to hold that the High Court committed
such a gross error of law in holding that there was no determination by the
Government under rule 4(c) to call for interference under Article 136 of the Constitution.
We also do not feel justified in placing
exaggerated importance on the use of the words "specified quota" in
some of the correspondences relied upon by Mrs. Pappu and Mr. Desai. We are of
opinion that such a reference to "specified quota" was only a usual
way of a compendious expression to facilitate identification of the subject
matter of the proposal of the Ministry of Works & Housing in the course of
long correspondence between the several authorities.
Mrs. Pappu also strenuously submitted that
the High Court should have dismissed the writ application on the ground of
inordinate delay. We are not satisfied that the writ application was liable to
be dismissed on the ground of inordinate delay in the entire circumstances of
the case and in particular when we find that the Government did not prefer any
appeal against the judgment of the High Court even though the so-called
determination of the Government under rule 4(c) had been struck down by the
Before parting with the records we consider
it proper to point out that persons entering Government service have the right
to know where they stand with regard to their conditions of service and future
promotion. Since there is no impediment in the way of the Government to make
appropriate rules regarding conditions of service, even retrospectively,
subject to constitutionality, keeping in view justice and fair play to all
concerned, it is a sorry sight to find that officers in the same Service fight
over the years in courts having failed to get redress from the Government. When
officers are qualified to hold certain posts after recruitment, according to
rules, and they have put in a number of years, without break, in the Service to
the satisfaction of the authorities, it is impermissible to invoke a recondite
rule and call it in aid to deprive a large section of officers of the benefit
of their otherwise satisfactory service. The matter may be different when posts
in the Service are abolished, appointments to the Service are transitory or
fortuitous or incumbents are found unsuitable for absorption. The history of
this Service is that temporary posts are first created and then after some
years they are converted into permanent posts. The Government, therefore,
cannot merely be an on-looker where it could rightly claim to be a legitimate
arbiter on its own authority and having proper regard to all just claims. We
586 also cannot help feeling that thinking in the Ministry has not always been
uniform, sympathy waning or waxing from time to time for reasons not always
As found above, the submissions of the
appellant are devoid of force. In the result the appeal fails and is dismissed.
We will, however, make no order as to costs.
P.B.R. Appeal dismissed.