P.S.Mahal & Ors Vs. Union of India
& Ors [1984] INSC 112 (23 May 1984)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
CITATION: 1984 AIR 1291 1984 SCR (3) 847 1984
SCC (4) 545 1984 SCALE (1)949
CITATOR INFO :
E 1984 SC1527 (12) D 1985 SC 781 (13) F 1985
SC1019 (19) R 1985 SC1558 (28) RF 1985 SC1605 (16) R 1986 SC 638 (12,24) F 1987
SC 424 (24) E 1987 SC2359 (16) D 1990 SC1607 (26) D 1991 SC 958 (13) RF 1991
SC1202 (31)
ACT:
Executive Engineers, Central Engineering and
Central Electrical Engineering Service (Group A) (Regulation of Seniority)
Rules, 1976, brought into force with retrospective effect from 10th December,
1974-Rules 2(ii) and 2(iv) -Constitutional validity of-Whether the rules
violate the provisions of Articles 14 and 16(i) of the Constitution.
Inter-se Seniority of Executive Engineers
promoted regularly within their respective quota from and after 22nd December
1959 but before 11th December, 1974 from the posts of Assistant Executive
Engineers governed by the Central Engineering Service (Class-I) Recruitment
Rules, 1954 and Assistant Engineers governed by Central Engineering Service
(Class-II) Recruitment Rules 1954, as refixed by the Seniority List dated
August 14, 1975-Whether irregular and contrary to the guidelines indicated in
the decisions reported as A.K. Subraman v. Union of India [1975] 2 S.C.R. 979=Quota
rule in Rule 4 of the Central Engineering Service (Class-I) Rules, 1954 when
applicable.
HEADNOTE:
In the Central Public Works Department of the
Ministry of Works and Housing, Government of India, the promotions to the posts
of Executive Engineers are made from amongst Assistant Executive Engineers
(Class-I) who have rendered more than five years of their service in their
grade on the basis of seniority-cum fitness and also from Assistant Engineers
(Class-II) who have rendered more than eight years of service in their grade on
the basis of merit, the selection being made through a departmental promotion
committee presided over by a member of the Union Public Service Commission, since
for the latter the post of Executive Engineer is a selection post. Promotion to
the grade of Executive Engineers, for the first time, on 25th August, 1949, a
quota in the ratio of 75% to 25% was prescribed by the Central Government. This
was continued right upto the Recruitment Rules 1954 were enacted for these two
categories. From September 7,1955, this quota was altered with retrospective
effect to 66-2/3% and 33-1/3% and it was again altered with effect from April
1, 1972 to 50 :
50 for a period of seven years.
However, at the time of promotions not only
the quota was not adhered to with the result that Assistant Engineers came to
be promoted 848 with Executive Engineers far in excess of their quota, while
there was a shortfall in the promotions of Assistant Executive Engineers, so
far as their quota was concerned, but all of them were treated as officiating
Executive Engineers.
There was no statutory rules governing
inter-se seniority of Executive Engineers promoted from these two grades. They
were therefore, governed by the Memorandum issued by the Home Ministry on June
22nd, 1949 which laid down the general principles of seniority applicable to
all departments of the government. The Memorandum provided that "in
respect of persons employed in any particular grade, seniority should, as a
general rule, be determined on the basis of length of service in that grade as
well as service in an equivalent grade irrespective whether the latter was
under Central or Provincial Government in India or Pakistan." The length
of continuous officiation in the grade was thus taken as the yardstick for the
purpose of determining seniority in all departments of the government and a
fortiorari, in the grade of Executive Engineers. On the basis of this
yardstick, Assistant Engineers promoted as officiating Executive Engineers
within their quota would clearly be senior to Assistant Executive Engineers
promoted later as officiating Executive Engineers.
Respondents 1 to 3 issued a seniority list on
1st July, 1971 in which Executive Engineers promoted from the grade of
Assistant Engineers in regular manner on the basis of selection made by
Departmental Promotion Committee and within their quota were shown as junior to
several Executive Engineers promoted much later from the grade of Assistant
Executive Engineers. Respondents 1 to 3, in making this seniority list
proceeded on the basis that the quota rule specified in the last part of
sub-rule (2) of Rule 4 of the Recruitment Rules necessarily implied a system of
rotation and it was required to be strictly applied at the stage of
confirmation in the grade of Executive Engineers, In other words, out of three
vacancies in the grade of Executive Engineers, unless two reserved for
promotion of Assistant Executive Engineers were filled up by confirmation of
such promotees, the third one for confirmation of an Assistant Engineer
promoted as Executive Engineer could not be filled.
Consequently, all Assistant Engineers were
treated as ad-hoc appointees without any claim to seniority until such time as
they were confirmed as Executive Engineers within their quota. The impact of
this decision of Respondents Nos. 1 to 3 was disastrous for a large number of
Executive Engineers promoted from the grade of Assistant Engineers on
officiating basis, since many of them had to retire without being confirmed and
therefore, without any claim of seniority in the grade of Executive Engineers
and the position continues to exist till date. Therefore the aggrieved
Assistant Engineers filed a writ petition before the Delhi High Court. The Full
Bench of that Court dismissed, the said petitions. In the appeals, by a common
judgment reported A. K. Subraman and Ors. v. Union of India and Ors. [1975] 2
S.C.R. 979; the Supreme Court accepted the contention of the petitioners that
the quota rule was to be applied at the stage of initial promotion in
officiating capacity to the grade of Executive Engineers and not at the stage
of confirmation and that it did not necessarily imply the rotational system and
since the general principles 849 for determining seniority laid down in the
Memorandum dated 22nd June, 1949 were, on their plain terms, applicable,
seniority in the grade of Executive Engineers was liable to be fixed on the
basis of length of continuous officiation in that grade as provided in the
Memorandum. The Court allowed the appeal after summarising its conclusions in
the form of following six propositions namely:
(1) when Assistant Engineers (Class-II) are
initially appointed in a regular manner in accordance with the rules to
officiate as Executive Engineers, their seniority in the 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-I. The above principle is,
however, subject to one reservation, namely, if an Assistant Engineer, before
his confirmation in Class II 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 II 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 including
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
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 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
further promotions. 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."
and directed the respondents Nos. 1 to 3 to amend and revise the seniority list
of 1st July 1971 in the light of the directions given in the judgment and to
give effect to the revised seniority list so prepared.
850 Respondents Nos. 1 to 3, thereafter,
issued a seniority list on 14th August, 1975 accompanied by a memorandum
bearing the same date in which it was stated that the seniority list of
Executive Engineers had been raised in the light of the judgment of the Supreme
Court dated 11th December, 1974 in accordance with the principle set out in the
memorandum. For the purpose of determining the seniority in the grade of
Executive Engineers from and after 22nd December, 1959 respondents Nos. 1 to 3
introduced the carry forward principle and applied the rotational formula. The
officers who had been, with the concurrence of the Union Public Service
Commission, officiating as Executive Engineers prior to 25th August, 1949 and
continued to do so thereafter were shown en bloc senior to the officers
appointed after 25th August, 1949 and so far as the period between 25th August
1949 and 21st December, 1959 was concerned the inter se seniority of persons
promoted during that period from the grades of Assistant Engineers and
Assistant Executive Engineers within their respective quotas was determined in
accordance with the length of their regular continuous service as Executive
Engineers, subject to the qualification that in case of Assistant Engineers who
were promoted as Executive Engineers the length of their regular continuous
service as Executive Engineers for the purpose of determining seniority would
be computed only from the date when they were confirmed as Assistant Engineer.
But with effect from 22nd December 1959, a
departure was made by respondent Nos. 1 to 3 from the principle of continuous
officiation and "carry forward principle was applied by providing that 86
posts earmarked for promotion of Assistant Executive Engineers to the grade of
Executive Engineers in accordance with their quota during the period prior to
22nd December, 1959 which had remained unfilled owing to non-availability of
Assistant Executive Engineers upto 22nd December 1959 should be carried forward
and 86 Assistant Executive Engineers promoted after 22nd December, 1959 should
be adjusted against these posts and they should be assigned seniority en bloc
immediately below the last Executive Engineer promoted regularly prior to 22nd
December, 1959. The result was that the Assistant Engineers who had been
promoted as Executive Engineers regularly within their quota subsequent to 22nd
December 1959 became junior to the Assistant Executive Engineers promoted
against these 86 carried forward posts, even though they might have been
promoted as Executive Engineers long prior to the promotion of such Assistant
Executive Engineers. The Assistant Executive Engineers promoted and adjusted
against these 86 carried forward posts, were given seniority above the
Assistant Engineers promoted regularly within their quota after 22nd December,
1959 irrespective as to when such Assistant Executive Engineers were actually
promoted. These posts were adjusted on the basis of the order in which the
vacancies in the respective quotas of Assistant Executive Engineers and
Assistant Engineers for promotion as Executive Engineers were allocated from
time to time. The seniority inter-se of Assistant Executive Engineers and
Assistant Engineers promoted regularly within their respective quotas subsequent
to 22nd December, 1959 was thus determined by the application of the rotation
formula based on the quota prevailing at the relevant time. But since it had
not been possible to fill all the posts allocated to the Assistant Executive
Engineers' quota and some posts remained unfilled, they were shown as vacant
851 in the seniority list prepared according to the roster based on the
rotational formula so that as and when Assistant Executive Engineers might be
promoted as Executive Engineers regularly within their quota, they would occupy
the vacant posts earmarked for them in the seniority list. The disastrous
effect of the revised seniority list was that most of the Assistant Engineers
promoted as Executive Engineers regularly within their quota subsequent to 22nd
December, 1959 lost a considerable number of places in seniority and were
placed in a much worse situation than what they were in under the seniority
list dated 1st July, 1971 which was quashed at their instance, in writ
petitions.
A contempt application against respondents
Nos. 1 to 3 was therefore moved but, before the Court could hear the objections
against the seniority list on merits, the first respondent issued on 8th June,
1976 the Executive Engineers, Central Engineering and Central Electrical
Engineering Service (Group A) (Regulation of Seniority) Rules 1976.
These rules were deemed to have come into
force with effect from 10th December, 1974, that is one day before the delivery
of Judgment by this Court and they substantially enacted in statutory form the
same principles which were set out in the memorandum that accompanied the
seniority list dated 14th August, 1975 and on which that seniority list was
based.
The petitioners, thereupon, filed the present
writ petitions contending that the Rules of 1976 were not applicable to the
petitioners and other Assistant Engineers promoted as Executive Engineers
regularly within their quota prior to 10th December 1974 and if these Rules
were held to be applicable, they were unconstitutional and void. The
petitioners challenged the validity of the seniority list dated 14th August,
1975 and the Rules of 1976 on the following grounds, namely; (i) that it was
the case of the petitioners and other Executive Engineers promoted from the
grade of Assistant Engineers regularly within their quota from and after 22nd
December 1959 but before 11th December, 1954 is covered by the decision of this
Court in A. K. Subraman's case; (ii) that they are entitled to claim seniority,
on the basis of length of continuous officiating, over Assistant Executive
Engineers promoted as Executive Engineers later in point of time; (iii) that
the Assistant Executive Engineers promoted and adjusted against 86 carried
forward posts cannot be given seniority en bloc over Assistant Engineers
promoted as Executive Engineers earlier;
(iv) that the rotational formula cannot be
applied retrospectively so as to deprive Assistant Engineers promoted as
Executive Engineers of their seniority on the basis of length of continuous
officiation in the grade of Executive Engineers; (v) that the Rules of 1976
are, to that extent, unconstitutional and void as being outside the power of
the Central Government; (vi) that since the Rules of 1976 have been brought
into force with effect from 10th December, 1974, they cannot affect the
petitioners and other Assistant Engineers promoted as Executive Engineers
regularly within their quota prior to that date and their seniority vis-a-vis
Assistant Executive Engineers promoted as Executive Engineers must continue to
be governed by the principle of length of continued officiation in the grade of
Executive Engineers; and (vii) that if the Rules of 1976 are applicable for
determining inter se seniority of Executive Engineers promoted from the grades
of Assistant Engineers and Assistant Executive Engineers within their
respective quotas from and after 22nd December, 1959, they are unconstitutional
and 852 void as offending Articles 14 and 16 of the Constitution, since the
seniority rules enunciated in the Rules of 1976 being closely linked with the
quota rule continued massive departure from the quota rule over a long period
of time must result in the breakdown of the seniority rules and to apply the
seniority rules in such a situation would create gross inequality of
opportunity of employment violative of Articles 14 and 16.
Allowing the petitions, the Court,
HELD: 1.1 Rule 2(iii) of the Central
Engineering and Central Electrical Engineering Service Rules, 1976, in so far
as it gives en bloc seniority to the Assistant Executive Engineers promoted to
the eighty six vacancies carried forward from the period prior to 22-12-1959
irrespective of the date when they were actually promoted and pushed down in
seniority Assistant Engineers though promoted regularly within their quota
prior to the actual promotion of such Assistant Executive Engineers, merely
prejudicially affecting their promotional opportunities is violative of
Articles 14 and 16 of the Constitution. [906B-D]
1.2 Rule 2(iv) of the said Rules also suffers
from the same infirmity as it provides for rotational rule of seniority based
on the prevailing quota for determining inter-se seniority between Assistant
Engineers and Assistant Executive Engineers promoted to the grade of Executive
Engineers from and after 2nd December, 1959, subject to an bloc seniority being
given to the Assistant Executive Engineers promoted to the eighty six
"carried forward" vacancies as set out in Rule 2(iii). Obviously, if
Rule 2(iii) providing for en bloc seniority to be given to the Assistant
Executive Engineers promoted to the eighty six "carried forward"
vacancies is unconstitutional and void, Rule 2(iv) is also unconstitutional and
void, when there has been enormous deviation from the quota rule in the
promotions of Assistant Executive Engineers and such deviation has continued
from year to year over a period of almost twenty five years. [906D-H]
1.3 The rotational rule of seniority is
inextricably linked up with the quota rule, and if the quota rule is not
strictly implemented and there is large deviation from it regularly from year
to year, it would grossly be indiscriminatory and unjust to give effect to the
rotational rule of seniority. The rotational rule of seniority must obviously
break down when there is such massive departure from the quota rule regularly
from year to year leading to continuously increasing deficiency in promotions
of Assistant Executive Engineers and corresponding excess in promotions of
Assistant Engineers. [908C-D, 909D-E] T. Devdasan v. Union of India, AIR,
[1964] S.C. 179;
Mervin Contindo v. The Collector of Customs,
Bombay [1966] 3 SCR 600; G.D. Kelkar v. Chief Collector of Imports and Exports
[1967] 2 SCR 29; V.S. Badami v. State of Mysore [1976] 1 SCR 815; N.K. Chauhan
v. State of Gujarat, [1973] SCR 1037; A. Janardhan v. Union of India AIR [1983]
SC 769;
Bishan Swarup Gupta v. Union of India [1975]
1 SCR 104 referred to.
2.1 Notwithstanding Rules 2(iii) and 2(iv) of
the Rules of 1976, the inter se seniority between Assistant Engineers and
Assistant Executive Engineers promoted regularly within their respective quota
upto 11th December, 1974 must be determined on the basis of length of
continuous officiation in the grade of Executive Engineers, subject of course
to the length of continuous officiation in the case of Assistant Engineers
being computed from the date of their confirmation as Assistant Engineers in
view of decision of the Supreme Court in Subraman's case. In this view carrying
forward of eighty six posts of Executive Engineers allocable to Assistant
Executive Engineers and giving up seniority en bloc to the Assistant Executive
Engineers promoted to the 'carry forward posts' by applying the rotational
formula for the purpose of determining seniority amongst Assistant Engineers and
Assistant Executive Engineers promoted to the subsequent vacancies is
ineffective quota Assistant Engineers and Assistant Executive Engineers
promoted upto 11th December 1974 and so far as these Assistant Engineers and
Assistant Executive Engineers are concerned, their it seniority must be held to
be governed by the length of continuous officiation in the grade of Executive
Engineers.
[888H, 889A-B]
2.2 On a plain reading of the decision in
Subraman's case, it is obvious that the direction given by it in regard to
determination of inter se seniority on the basis of length of continuous
officiation was not limited to Executive Engineers promoted from the grade of
Assistant Engineers and Assistant Executive Engineers up to 2nd December, 1959
but was on its plain terms applicable to all Executive Engineers promoted from
the grade of Assistant Engineers and Assistant Executive Engineers within their
respective quota right up to 11th December, 1974 being the date of the decision
of the Court. But the revised seniority list dated 14th August, 1975 issued by
the Government of India was plainly in defiance of this direction given by the
Court. [872A-C, F-G]
2.3 When this Court in so many terms laid
down that the inter se seniority of Executive Engineers promoted from the
grades of Assistant Engineers and Assistant Executive Engineers upto December
11, 1974 must be held to be governed by the rule of length of continuous
officiation and the Government of India has been directed by a writ of the
Court to amend and revise the seniority, the effect of this decision cannot be
set at naught and the binding character of the writ issued against the
Government of India can be abrogated by the mere promulgation of the Rules of
1976 with retrospective effect from 10th December 1974. It is significant to
note that the Explanatory Memorandum which was in the nature of statement of
objects and reasons for the Rules of 1976 did not seek to override the effect
of the decision in Subramn's case but on the contrary affirmed that the
principles of seniority set out in those rules were laid down on the basis of
the said decision. Since the Rules of 1976 purports merely to carry out the
direction given in the said decision they cannot have the effect of overriding
that decision and absolving the Govt. of India and the Government of India,
must, therefore, amend and revise the seniority list of 1st July, 1971 by
applying the rule of seniority based on length of continuous officiation for
determining 854 inter seniority of Executive Engineers promoted from the grades
of Assistant Engineers and Assistant Executive Engineers up to 11th December,
1974. The relative position of the Executive Engineers in regard to their inter
se seniority having been crystalised in the decision in Subramn's case and a
writ having been issued by he Court directing the inter se seniority of the
Executive Engineers to be fixed on the basis of length of continuous
officiation the Executive Engineers promoted from the grade of Assistant
Engineers were entitled to enforce the writ for determining the inter se
seniority with the Executive Engineers in accordance with the rule of length of
continuous officiation. The right of the Executive Engineers promoted from the
grade of Assistant Engineers under the said decision could not be taken away by
anything contained in the Rules of 1976. The decision in Subaraman's case
continued to subsist and the Government of India was bound to a determine inter
se seniority amongst Executive Engineers in accordance with the direction contained
in that decision. If by reason of retrospective alteration of the rule of
seniority the decision is rendered erroneous, the remedy may be by way of
review, but so long as the decision stands, it cannot be disregarded or ignored
and it must be obeyed by the Government of India, despite Rule 2(iii) and 2(iv)
so far as the Executive Engineers promoted from the grade of Assistant
Engineers and Assistant Executive Engineers Executive Engineers upto 11th
December, 1974 are concerned. [873E H, 874B-F,877A-B] Further, the rule of
seniority set out in paragraphs 5(ii) and 6 of the Memorandum of the Ministry
of Home Affairs dated 22.12.1959 has no application to the instant case. [878E]
M.M. Pathak v. Union of India and Ors. [1978] 3 SCR 346 followed.
Shri Prithvi Cotton Mills Ltd. v. Broach
Borough Municipality [1970] 1 SCR 388 distinguished.
Patel Gordhandas Hargovindas v. Municipal
Commissioner, Ahmedabad [1964] 2 SCR 608 referred to.
3.1 If a vacancy arises on account of an
incumbent going on leave or for training on deputation for a short period, it
would be a fortuitous or adventitious vacancy and the quota rule would not be
attracted in case of such a vacancy. But where a vacancy arises on account of
the incumbent going on deputation for a reasonably long period and there is no
reasonable likelihood of the person promoted to fill such vacancy having to
revert, the vacancy would be subject to the quota rule, because it would be a
regular vacancy in the post of Executive Engineers and the person promoted to
fill the vacancy would be an officiating Executive Engineer would continue as
such without reversion until confirmed and his promotion would, therefore, be
by way of recruitment to the cadre of Executive Engineers. Of course, the
vacancy which attracts the applicability of the quota rule, is the vacancy in
the post included in the sanctioned strength of the cadre of Executive
Engineers and not the vacancy in the deputation post. There may be a vacancy in
a deputation post in another department or organisation and an Executive
Engineer holding a post included in the sanctioned strength of the cadre of
Executive Engineers may be sent to such deputation post, but the 855 vacancy
which would call for the application of the quota rule in such a case would be
the vacancy arising in the post of Executive Engineer within the cadre by
reason of the incumbent of that post going to the deputation post and not the
vacancy in the deputation post which would be filled up by the Executive
Engineer going on deputation. Therefore, what has to be considered for the
applicability of the quota rule is a vacancy in a post included in the
sanctioned strength of the cadre of Executive Engineers and the sanctioned
strength which has to be taken into account, is not merely the sanctioned
strength of the cadre of Executive Engineers in the entire Central Engineering
Service, Class I. The sanctioned strength of the cadre of Executive Engineers
in the Central Engineering Service, Class I, may include not only posts of
Executive Engineers in the Central Public Works Department but also posts of
Executive Engineers in other departments and organisations. [890H, 891A-G]
3.2 Therefore, it cannot be said that
promotion to the post of Executive Engineer contemplated under the Rules can be
made only where there is no lien of any officer on that post because promotion
according to the quota rule is initial promotion in officiating capacity and
not concerned with confirmation. It is true that a confirmed Executive Engineer
who goes on deputation may revert to the post on which he has a lien and so
also an officiating Executive Engineer who goes on deputation may revert back
on termination of his deputation and theoretically, in either case, an
Assistant Engineer or Assistant Executive Engineer who is promoted to fill the
vacancy arising on account of deputation may have to revert, but in actual
practice and reality, not a single Assistant Engineer or Assistant Executive
Engineer who is promoted to fill the vacancy arising on account of deputation,
has had to revert, because deputation is a normal feature in this service and
20 to 25 per cent of the Executive Engineers are continuously on deputation.
Even, if one Executive Engineer comes back on termination of his deputation,
another has to be sent in his place and deputations thus go on rotating with
the result that the vacancy in the post of Executive Engineer arising on
account of deputation does not cease and the Assistant Engineer or Assistant
Executive Engineer promoted as Executive Engineer to fill the vacancy does not
ever have to revert and consequently the vacancy filled by him is really and
truly a permanent and long term vacancy which has to be filled according to the
quota rule. In fact, if the quota rule were not to be applied with reference to
such a vacancy, the position would be that whenever an Executive Engineer goes
on deputation for a period which may extend anything between three to five
years, the Central Government would be entitled to promote an Assistant
Engineer ignoring the claims of Assistant Executive Engineers and this would
totally be arbitrary in a situation where 20 to 25 per cent of Executive
Engineers are on deputation. For this purpose the vacancies in the posts of
Executive Engineers arising on account of deputation of Executive Engineers to
other departments, organisations and public undertakings for a period of one or
more years were long term vacancies and they could not be regarded as
fortutious or adventitious in character and hence they were subject to the quota
rule.
[891G-H, 895H, 896A, 897-F, 856
3.3 However, the vacancy pro tempore filled
irregularly by an Assistant Engineers would continue to belong to the quota of
Assistant Executive Engineers and it can be filled only by the Assistant
Executive Engineer, if the quota rule is to be strictly observed. The death or
retirement of an irregular promotee to the vacancy cannot therefore give rise
to a fresh vacancy: it is the same vacancy which continues until properly
filled by promotion of an Assistant Executive Engineer at a subsequent date. If
in such a case the death or retirement of an irregular appointed Assistant
Engineer were to be treated as creating a fresh vacancy, it would lead to gross
distortion. Similarly while pushing down Executive Engineers promoted from the
grade of Assistant Engineers in excess of their quota in a subsequent year, the
Government must treat them as absorbed from the date when a vacancy in that
year arises in the quota of Assistant Engineers and not on a national basis
from 1st January of that year.
[900C-G, 901 C-D]
ORIGINAL JURISDICTION Writ Petition Nos.
157-162 of 1976 (Under article 32 of the Constitution of India) M.C. Bhandare,
A.K. Ganguli, D.P. Mukherjee and Miss C.K. Suchirata for the Petitioners.
M.M. Abdul Khader, Girish Chandra and Miss A.
Subhashini for Respondent.
M.K. Ramamurthi, J. Romamurthi and Mrs. R.
Vaigai for Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J. This writ petition marks yet another round of litigation between
two groups of Executive Engineers in Central Public Works Department of the
Ministry of Works and Housing, Government of India, one group consisting of
promotees from the grade of Assistant Executive Engineers and the other
consisting of promotees from the grade of Assistant Engineers. The dispute
between these two groups in regard to seniority has been going on for quite
some time and it has created considerable discord and bitterness between these
two groups which must inevitably affect the efficiency of the Service. It is
really a matter of regret that the Central Government should not have been able
to bring these two groups together and evolve a commonly agreed formula
acceptable to both sides. We hope that our decision in this writ petition will
finally ring the curtain down on this unfortunate controversy and both groups
of Executive Engineers will accept the decision ungrudgingly without any
rancour or resentment and wholeheartedly engage themselves in the nation
building task entrusted to them.
857 There is in the Central Public Works
Department of Ministry of Works and Housing, Government of India a Service
known as Central Engineering Service (Class I). This Service comprises various
grades; the highest grade is that of Engineer-in-Chief and then in descending
hierarchical order are the grades of Chief Engineer, Superintending Engineer,
Executive Engineer and Assistant Executive Engineer. The Central Government has
made rules of recruitment to this Service known as the Central Engineering
Service (Class I) Recruitment Rules 1954 (hereinafter referred to as
'Recruitment Rules') and they are issued under SRO 1841 dated 21st May 1954.
Part I of the Recruitment Rules contains the definition and Clause (c) of Rule
2 occurring in this Part defines "Service" as Central Engineering
Service Class I. Rules 3, 4 and 5 contained in Part II of the Recruitment Rules
lay down the modes of recruitment to various grades in this Service in the
following terms:
"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
these Rules.
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 the 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
filed during any particular period and the number of candidates to be recruited
by each method.
Provided that all recruitment by competitive
examination (vide Part III 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 I, shall be filled by promotion of Assistant
Executive Engineers, Class I, the rest of the vacancies being filled by
promotion and/or by transfer in accordance with Parts IV and V of the Rules
respectively.
5. Appointment 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".
Assistant Executive Engineers belong to the
lowest grade in this service and they are recruited only through a competitive
examination in accordance with Part III of the Recruitment Rules. On their
initial recruitment, Assistant Executive Engineers are required to undergo a
period of probation for two years and they are confirmed in the grade of
Assistant Executive Engineers after successful completion of the period of
probation.
There is also another Service in the Central
Public Works Department called Central Engineering Service Class II. This
Service consists only of the grade of Assistant Engineers. The rules of
recruitment to the grade of Assistant Engineers are to be found in the Central
Engineering Service Class II Recruitment Rules. There are two modes of
recruitment laid down in these Rules; one is by direct recruitment through the
same competitive examination which is held for selection of Assistant Executive
Engineers, the candidates lower down in rank than those selected for the grade
of Assistant Executive Engineers being selected for the grade of Assistant
Engineers and the other is by process of selection from a subordinate Service
called Class III Service. Assistant Engineers belong to Class II service,
unlike Assistant Executive Engineers who belong to Class II service but the
posts which they hold are interchangeable, each of them being in charge of a
sub- division and the nature of work, responsibilities, powers and duties
discharged by them all is identical. There is only a minor difference in the
pay scales but otherwise for all practical purposes, there is no difference
between them so far as their functions powers and duties are concerned.
The next higher grade above that of Assistant
Executive Engineers is that of Executive Engineers Recruitment to the grade of
Executive Engineers is made by promotion from two sources, namely Assistant
Executive Engineers and Assistant Engineers. Assistant Executive Engineers are
eligible for promotion to the grade of Executive Engineers after completion of
five years of service and they are promoted on the basis of
seniority-cum-fitness. Assistant Engineers on the other hand are eligible for
promotion to the grade of Executive Engineers only after eight years of Service
in their grade and for them, the post of Executive Engineer is a selection post
and they are selected 859 for promotion on the basis of merit; the selection
being made through a departmental promotion committee presided over by a member
of the Union Public Service Commission.
Prior to 25th August 1949, there was no quota
for promotion to the grade of Executive Engineers from the grades of Assistant
Executive Engineers and Assistant Engineers but for the first time on 25th
August 1949, a quota was prescribed by the Central Government and it was
provided that the vacancies in the grade of Executive Engineers shall be filled
by promotion from the grades of Assistant Executive Engineers and Assistant Engineers
in the ratio of 75% to 25%. This continued right up to the time the Recruitment
Rules were enacted in 1954 and that is why the last part of clause (2) of Rule
4 of the Recruitment Rules provided that 75% of the vacancies in the grade of
Executive Engineers shall be filled by promotion of Assistant Executive
Engineers, the rest of the vacancies being filled by promotion and or by
transfer in accordance with Parts IV and V of the Recruitment Rules. This quota
was altered with retrospective effect from 7th September 1955 from 75 and 25
per cent to 66 2/3 and 33 1/3 per cent and it was again altered with effect
from 1st April 1972 to 50:50 for a period of seven years.
It appears that whenever Assistant Executive
Engineers and Assistant Engineers were promoted to the grade of Executive
Engineers, they were first appointed on officiating basis. The quota was
however, for reasons which we shall presently discuss not adhered to at the
time of such promotions with the result that Assistant Engineers came to be
promoted as officiating Executive Engineers far in excess of their quota while
there was a shortfall in the promotions of Assistant Executive Engineers so far
as their quota was concerned. Now there were no statutory rules governing inter
se seniority of Executive Engineers promoted from the grades of Assistant
Executive Engineers and Assistant Executive Engineers but there was a
Memorandum issued by the Home Ministry on 22nd June 1949 which laid down
general principles of seniority applicable to all departments. This Memorandum
provided that "in respect of persons employed in any particular grade,
seniority should, as a general rule, be determined on the basis of 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." The length of continuous officiation in the grade was thus
taken as the yardstick for the purpose of determining seniority in all
departments of the government and a fortiorari, in the grade of Executive
Engineers. On the basis of this yardstick, Assistant Engineers promoted as
officiating 860 Executive Engineers within their quota would clearly be senior
to Assistant Executive Engineers promoted later as officiating Executive
Engineers.
However, Respondent No. 1 to 3 issued a
seniority list on 1st July 1971 in which Executive Engineers promoted from the
grade of Assistant Engineers in regular manner on the basis of selection made
by Departmental Promotion Committee and within their quota were shown as junior
to several Executive Engineers promoted much later from the grade of Assistant
Engineers. Respondent No. 1 to 3 in making this seniority list proceeded on the
basis that the quota rule specified in the last part of sub-rule (2) of Rule 4
of the Recruitment Rules necessarily implied a system of rotation and it was
required to be strictly applied at the stage of confirmation in the grade of
Executive Engineers. In other words, out of three vacancies in the grade of
Executive Engineers, unless two reserved for promotion of Assistant Executive
Engineers were filled up by confirmation of such promotees, the third one for
confirmation of Assistant Engineer promoted as Executive Engineer could not be
filled.
Consequently, all Assistant Engineers were
treated as ad-hoc appointees without any claim to seniority until such time as
they were confirmed as Executive Engineers within their quota. The impact of
this decision of Respondent No. 1 to 3 was disastrous for a large number of Executive
Engineers promoted from the grade of Assistant Engineers on officiating basis,
since many of them had to retire without being confirmed and therefore, without
any claim of seniority in the grade of Executive Engineers and even today,
according to the petitioners, there are hundreds of officiating Executive
Engineers promoted from the grade of Assistant Engineers who are working in the
Central Public Works Department for decades without confirmation and according
to the principle adopted in preparing the seniority list of 1st July 1971, they
would have no claim to seniority in the grade of Executive Engineers and would
become junior even to recent promotees from the grade of Assistant Executive
Engineers.
The seniority list dated 1st July 1971 was preceded
by provisional seniority lists which were prepared annually on the basis of the
same formula and some of the Executive Engineers promoted from the grade of
Assistant Engineers, therefore, without waiting for the publication of the
final seniority list dated 1st July 1971 preferred writ petitions in the Delhi
High Court challenging the validity of the provisional seniority lists. There
writ petitions were 861 referred to a Full Bench since they involved questions
of some importance and the Full Bench by a common judgment dated 20th May 1971
rejected the contentions of the petitioners and concurring with the stand
adopted by respondent Nos. 1 to 3, held that the quota rule applied not at the
stage of initial promotion on officiating basis but at the stage of
confirmation and rotational formula for the purpose of determining seniority
was implicit in the quota rule and on this view, the Full Bench upheld the
provisional seniority lists which, as already pointed out above, were on the
same lines as the final seniority list dated 1st July 1971 and which fixed
seniority in the grade of Executive Engineers according to the rotational
formula based on the quota rule. The petitioners in these writ petitions
thereupon preferred Civil Appeal Nos. 1745, 1746 & 1747 of 1974 after
obtaining special leave to appeal against the judgment of the Delhi High Court.
Some other Executive Engineers promoted from the grade of Assistant Engineers
also filed a direct writ petition in this Court being writ petition 489 of
1972, challenging the seniority list of 1st July 1971 on the ground that the
seniority worked out by applying the quota rule at the stage of confirmation
and adopting the rotational formula was illegal and that the seniority ought to
have been fixed on the basis of length of continuous officiation in the grade
of Executive Engineers.
These three civil appeals and writ petition
were heard together and decided by a common judgment of this Court dated 11th
December 1974 vide: A.K. Subraman & Ors. etc. v. Union of India & ors.
This Court accepted contention of the petitioners that the quota rule was to be
applied at the stage of initial promotion in officiating capacity to the grade
of Executive Engineers and not at the stage of confirmation and that it did not
necessarily imply the rotational system and since the general principles for
determining seniority laid down in the Memorandum dated 22nd June 1949 were, on
their plain terms, applicable, seniority in the grade of Executive Engineers
was liable to be fixed on the basis of length of continuous officiation in that
grade as provided in the Memorandum dated 22nd June 1949.
Some of the Executive Engineers promoted from
the grade of Assistant Executive Engineers who were respondents in the writ
petition as also in the civil appeal tried to meet the contention of the
petitioner by relying on a subsequent Memorandum dated 22th December 1959
issued by the Ministry of Home Affairs, Government of India but the learned
Solicitor General appearing on behalf of the Union of India conceded that the
said Memorandum had no application to the case and was irrelevant and this
Court also accepted the same view. This 862 Court pointed out that since the
cadre of Executive Engineers consisted both of permanent as well as temporary posts,
the vacancies referred to in the quota rule comprised vacancies not only in the
permanent posts but also in the temporary posts included in the sanctioned
strength of the cadre, barring only such vacancies as were purely of a
fortuitous or adventitious nature and the quota rule applied at the stage when
Assistant Engineers and Assistant Executive Engineers were promoted even if it
be in an officiating capacity, irrespective of whether the vacancies were in
permanent posts or in temporary posts. This Court also observed that for the
purpose of applying the quota rule, the year must be taken as a unit and the
quota rule must be applied in relation to the vacancies occuring in any
particular year. This Court also held, relying on the observations in Bishan Swaroop
Gupta v. Union of India & Ors. (hereinafter referred to as the 1st Bishan
Swaroop Gupta case) that the ratio of promotions in the grade of Executive
Engineers in any particular year was not dependent upon whether any persons
from one class or the other were promoted or not and this was made clear by
giving an illustration that if there were three vacancies in a particular year,
two would go to 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 the two vacancies belonging to their
quota, one vacancy would have to be filled by promotion of an Assistant
Engineer. If in such a case, having regard to the exigencies of the situation 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, the appointment of Assistant Engineers to fill in such two
vacancies would be irregular because that would be outside their quota but in
that event, observed the Court, they would have to be pushed down to later
years when their appointment could be regularised as a result of absorption in
their lawful quota for those three years. These conclusions reached by the
court were summarised in the form of following six propositions at the close of
the judgment:
(1) When Assistant Engineers Class (II) 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.
863 (2) Their seniority will not be reckoned
from the date of their future confirmation in Class 1.
The above principle is, however, subject to
one reservation, namely, if an Assistant Engineer before his confirmation in
Class ll 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 II as permanent Assistant Engineer not with
standing 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 including
in the sanctioned strength of the cadre (except such vacancies as are purely of
a fortuitous or adventious nature) and the operation of the quota rule will
depend upon the availability or non-availability or 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 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
further promotions. 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.
This Court accordingly allowed the writ
petition and the civil appeals and directed respondent Nos. 1 to 3 to amend and
revise the 864 seniority list of 1st July 1971 in the light of the directions
given in the judgment and to give effect to the revised seniority list so
prepared.
Though the aforesaid directions were given by
this Court for preparation of a revised seniority list as far back as 11th
December 1974 respondents Nos. I to 3 delayed implementation of those
directions for a period of over three months and hence the petitioners in writ
petition No.489 of 1972 as also petitioner No. 3 in the present writ petition
filed CMP No. 2563/75 on 18th April 1975 for taking action against respondent
Nos. 1 to 3 for contempt of court.
Respondent No. 1 however, instead of
complying with the directions given by this Court and purging itself of the
contempt alleged to have been committed by it, filed CMP No. 3911 of 1975 dated
18th July 1975 for clarification of the judgment on the ground that they felt
some difficulty in implementing the directions issued by the Court. This
application for clarification was rejected by the Court on 21st July 1975 on
the ground that the principles laid down in the judgment dated 11th December
1974 were clear and the Court did not "see need to clarify them any
further," and once again the Court ordered the first respondent to prepare
and publish a final seniority list in compliance with the directions given on
11th December 1974. The Court kept the application for contempt pending and
adjourned it to 1st September 1975. Respondent Nos. 1 to 3 thereafter issued a
revised seniority list on 14th August 1975. This seniority list was accompanied
by a Memorandum also dated 14th August 1975 in which it was stated that the
seniority list of Executive Engineers had been revised in the light of the
judgment of this Court dated 11th December 1974 in accordance with the
principles set out in that Memorandum.
We shall discuss these principles in detail
when we deal with the various arguments advanced on behalf of the parties. We
may, however, point out at this stage that, broadly speaking, for the purpose
of determining seniority in the grade of Executive Engineers from and after
22nd December 1959, respondent Nos. 1 to 3 introduced the carry forward
principle and applied the rotational formula. The officers who had been, with
the concurrence of the Union Public Service Commission, officiating as
Executive Engineers prior to 25th August 1949 and continued to do so there
after were shown en bloc senior to the officers appointed after 25th August
1949 and so far as the period between 25th August 1949 and 21st December 1959
was concerned, the inter se seniority of persons promoted during that period from
the grades of Assistant Engineers and Assistant Executive Engineers within
their respective quotas was 865 determined in accordance with the length of
their regular continuous service as Executive Engineers, subject to the
qualification that in case of Assistant Engineers who were promoted as
Executive Engineers prior to their confirmation in the grade of Assistant
Engineers, the length of their regular continuous service as Executive
Engineers for the purpose of determining seniority would be computed only from
the date when they were confirmed as Assistant Engineers. So far there was no
dispute raised on behalf of the petitioners and it was conceded that the
principle for determining seniority applied by respondent Nos. I to 3 for the
period up to 21st December 1959 was valid. The petitioners also conceded that
those Assistant Engineers who had been promoted in excess of their quota were
rightly pushed down and adjusted within their quota in subsequent years. Thus,
for example, Shri A.K. Subraman, the first petitioner in writ petition No. 489
of 1972, though promoted in officiating capacity as Executive Engineer on 27th
December 1956 with the approval of the Departmental Promotion Committee was
pushed down, since his promotion was not within the quota of Assistant
Engineers at the time when he was promoted and his promotion was regularised on
absorption within his lawful quota in a subsequent year. But with effect from
22nd December 1959 a departure was made by respondent Nos. 1 to 3 from the
principle of continuous officiation and carry forward principle was applied by
providing that 86 posts earmarked for promotion of Assistant Executive
Engineers to the grade of Executive Engineers in accordance with their quota
during the period prior to 22nd December 1959 which had remained unfilled owing
to non- availability of Assistant Executive Engineers upto 22nd December 1959
should be carried forward and 86 Assistant Executive Engineers promoted after
22nd December 1959 should be adjusted against these posts and they should be
assigned seniority en bloc immediately below the last Executive Engineer
promoted regularly prior to 22nd December 1959. The result was that the
Assistant Engineers who had been promoted as Executive Engineers regularly
within their quota subsequent to 22nd December 1959 became junior to the
Assistant Executive Engineers promoted against these 86 carried forward posts,
even though they might have been promoted as Executive Engineers long prior to
the promotion of such Assistant Executive Engineers. The Assistant Executive
Engineers promoted and adjusted against these 86 carried forward posts were
given seniority above the Assistant Engineers promoted regularly within their
quota after 22nd December, 1959, irrespective as to when such Assistant Executive
Engineers were actually promoted. After the Assistant Executive Engineers
promoted 866 as Executive Engineers were adjusted against these 86 carried
forward posts and given seniority en bloc over all Assistant Engineers promoted
regularly within their quota subsequent to 22nd December 1959, the rotational
formula was applied in respect of the posts for the period subsequent to 22nd
December 1959 and these posts were adjusted on the basis of the order in which
the vacancies in the respective quotas of Assistant Executive Engineers and
Assistant Engineers for promotion as Executive Engineers were allocated from
time to time. The seniority inter-se of Assistant Executive Engineers and
Assistant Engineers promoted regularly within their respective quotas
subsequent to 22nd December 1959 was thus determined by the application of the
rotational formula based on the quota prevailing at the relevant time. But
since it had not been possible to fill all the posts allocated to the Assistant
Executive Engineers' quota and some posts remained unfilled, they were shown as
vacant in the seniority list prepared according to the roster based on the
rotational formula, so that as and when Assistant Executive Engineers might be
promoted as Executive Engineers regularly within their quota, they would occupy
the vacant posts earmarked for them in the seniority list. The disastrous
effect of this seniority list was that most of the Assistant Engineers promoted
as Executive Engineers regularly within their quota subsequent to 22nd December
1959 lost a considerable number of places in seniority and were placed in much
worse situation than what they were in under the seniority list dated 1st July
1971 which was quashed at their instance in writ petition no. 489 of 1972. The
petitioners in writ petition no. 489 of 1972 therefore filed an additional
affidavit on 26th August 1975 pointing out that the seniority list dated 14th
August 1975, though purporting to be in compliance with the directions given by
this court, was totally in defiance of such directions and respondent Nos. l to
3 should therefore be committed for contempt of this court. It seems that some
of the Assistant Executive Engineers promoted as Executive Engineers were also
dissatisfied with the seniority list dated 14th August 1975 since it took into
account deputation vacancies in the grade of Executive Engineers as regular
vacancies for the purpose of application of the quota rule and they also
therefore filed their objections to this seniority list. The parties filed
their respective affidavits in answer to the objections raised against the
seniority list and after the record was completed, the court was invited to
decide the entire controversy between the parties on the basis of these
objections and affidavits. But before the court could hear the objections
against the seniority list on merits, the first respondent issued on 8th June,
1976 the Executive Engineers, Central 867 Engineering and Central Electrical
Engineering Service (Group A) (Regulation of Seniority) Rules 1976 (hereinafter
referred to as the Rules of 1976) in exercise of the power conferred under the
proviso to Article 309 of the Constitution. These Rules were deemed to have
come into force with effect from 10th December 1974, that is one day before the
delivery of judgment by this Court in writ petition no. 489 of 1972 and they
substantially enacted in statutory form the same principles which were set out
in the Memorandum that accompanied the seniority list dated 14th August 1975
and on which that seniority list was based.
Rules 2(iii) and 2(iv) which are the material
rules provided inter alia as under:
"2(iii): The vacancies in the grade of
Executive Engineer, which were earmarked for promotion from the grade of
Assistant Executive Engineer in accordance with quotas prescribed for them
during the period from 25th August, 1949 to 21st December, 1959, but could not
be filled would be carried forward and filled by Assistant Executive Engineers
promoted on or after 22.12.1959. The inter se seniority of such officers will
be determined in the order of their seniority in the grade of Assistant
Executive Engineer-those who were considered unfit for promotion being omitted
and they will rank immediately below the last Executive Engineer, promoted
prior to (22.12.1959).
(iv) After all the vacancies in the grade of
Executive Engineer, which were earmarked for promotion from the grade of
Assistant Executive Engineer in accordance with the quotas prescribed for them
during the period from 25th August, 1949 to 21st December, 1959, but could not
be filled, are filled by Assistant Executive Engineers promoted on or after
22.12.1959 and such officers assigned seniority as indicated in (iii) above,
all subsequent vacancies in the grade of Executive Engineer will be filled by
rotation of vacancies between the Assistant. Executive Engineers and Assistant
Engineers on the basis of quotas prescribed for them for promotion as Executive
Engineer from time to time. The inter se seniority of Assistant Executive
Engineers and Assistant Engineers so promoted to the grade of Executive
Engineer, 868 will also be determined on the basis of such rotation of quotas.
For this purpose, the recruitment roster shall be drawn as under :- (a) When
the reservation of the vacancies in the grade of Executive Engineer for
Assistant Executive Engineer and Assistant Engineer is 66-2/3% and 33- 1/3%
respectively (that is, up to 31.3.1972) 1st Position ) ) Asstt. Executive
Engineer 2nd Position ) 3rd Position Assistant Engineer 4th Position ) ) Asstt.
Executive Engineer 5th Position ) 6th Position Assistant Engineer and so on.
(b) When the reservation of the vacancies in
the grade of Executive Engineer for Assistant Executive Engineers, and
Assistant Engineers, is 50% each (i.e. from 1.4.1972 and for a period of 7
years.) 1st Position Asstt. Executive Engineers 2nd Position Asstt. Engineer
3rd Position Asstt. Executive Engineer 4th Position Asstt. Engineer and so
on." The petitioners thereupon filed the present writ petition contending
that the Rules of 1976 were not applicable to the petitioners and other
Assistant Engineers promoted as Executive Engineers regularly within their
quota prior to 10th December 1974 and if these Rules were held to be applicable
then they were unconstitutional and void. The petitioners, in the
circumstances, prayed in the writ petition that the seniority list dated 14th
August 1975 should be quashed and a new seniority list should be prepared on
the basis of length of continuous officiation in the grade of Executive Engineers
so that Assistant Engineers promoted as executive Engineers regularly within
their quota should have seniority over Assistant Executive Engineers promoted
later in point of time. The writ petition was admitted and rule nisi was issued
upon it and after affidavits in reply were filed on behalf of the respondents,
the writ 869 petition taken up for hearing by this Court. In the course of the
hearing, we made a strenuous effort to bring about settlement of this long
standing dispute between Assistant Engineer and Assistant Executive Engineers
promoted as Executive Engineers but our effort proved futile and hence we are
now proceeding deliver our judgment.
The petitioners challenged the validity of
the seniority list dated 14th August 1975 and the Rules of 1976 on the
following grounds:
(A) The case of the petitioners and other
Executive Engineers promoted from the grade of Assistant Engineers regularly
within their quota from and after 22nd December 1959 but before 11th December
1974 is covered by the decision of this Court in Writ Petition No. 489 of 1972
and Civil Appeal Nos. 1745 to 1747 of 1974 and hence they are entitled to claim
seniority, on the basis of length of continuous officiation, over Assistant
Executive Engineers promoted as Executive Engineers later in point of time and
the Assistant Executive Engineers promoted and adjusted against 86 carried
forward posts cannot be given seniority en bloc over Assistant Engineers
promoted as Executive Engineers earlier nor can the rotational formula be applied
retrospectively so as to deprive Assistant Engineers promoted Executive
Engineers of their seniority on the basis of length of continuous officiation
in the grade of Executive Engineers and the Rules of 1976 are, to that extent,
unconstitutional and void as being outside the power of the Central Government.
(B) Since the Rules of 1976 have been brought
into force with effect from 10th December 1974, they cannot affect the
petitioners and other Assistant Engineers promoted as Executive Engineers
regularly within their quota prior to that date and their seniority vis-a-vis
Assistant Executive Engineers promoted as Executive Engineers must continue to
be governed by the principle of length of continuous officiation in the grade
of Executive Engineers.
(C) If the Rules of 1976 are applicable for
determining inter se seniority of Executive Engineers promoted from the grades
of Assistant Engineers and Assistant Executive Engineers within their
respective quotas from and after 22nd December 1959, they are unconstitutional
and void 870 as offending Articles 14 and 16 of the Constitution, since the
seniority rules enunciated in the Rules of 1976 being closely linked with the
quota rule continued massive departure from the quota rule over a long period
of time must result in the breakdown of the seniority rules and to apply the
seniority rules in such a situation would create gross inequality of
opportunity of employment violative of Articles 14 and 16.
These were the broad grounds of challenge
urged on behalf of the petitioners and we shall now proceed to deal with them
in the order in which we have set them out.
RE: GROUND (A). This ground is based on the
decision rendered by this Court in writ Petition No. 489 of 1972 and Civil
Appeals Nos. 1745 to 1747 of 1974. It is necessary in order to appreciate this
ground to know who were the parties in writ petition No. 489 of 1972 and Civil
Appeal Nos. 1745 to 1747 of 1974. The petitioners in writ Petition No. 489/1972
were Assistant Engineers promoted as Executive Engineers between 27th December
1956 and 8th September, 1959 by a properly constituted Departmental Promotion
Committee and barring one petitioner, all the others had been promoted to the
grade of Executive Engineers prior to their confirmation as Assistant
Engineers. The promotion of each of the petitioners when made was in excess of
the quota of Assistant Engineers and all of them were therefore required to be
pushed down to later years for absorption in their lawful quota for those years
and through this process, their promotions were regularised on different dates
subsequent to 22nd December 1959. The petitioners were thus all officiating
Executive Engineers promoted from the grade of Assistant Engineers regularly
within their quota after 22nd December 1959. The contesting respondents Nos. 4
to 66 were Assistant Executive Engineers promoted as Executive Engineers within
their quota between 11th March 1957 and 23rd February 1966 and obviously
therefore some of them were Assistant Executive Engineers promoted on dates
subsequent to 22nd December 1959. The contest between the petitioners and
respondent Nos. 4 to 66 was therefore not confined only to those Assistant
Engineers and Assistant Executive Engineers who were promoted as Executive
Engineers regularly within their respective quota prior to 22nd December 1959
but it extended also to Assistant Engineers and 871 Assistant Executive
Engineers promoted as executive Engineers subsequent to that date. The same
position obtained also in regard to the contest between the appellants and the
respondents in C.A. Nos 1745-1747 of 1974. The appellants in these appeals were
all Assistant Engineers promoted as Executive Engineers, and though some of
them were promoted prior to 22nd December 1959, they were regularised in their
appointment by absorption within their legitimate quota subsequent to 22nd
December 1959, since at the time when they were in initially promoted, their
promotions were in excess of the quota of Assistant Engineers and they were
therefore required to be pushed down to later years for absorption within their
quota. The large majority of the appellants, if not all, were thus Assistant
Engineers promoted as Executive Engineer regularly within their quota after
22nd December 1959 and in C.A. Nos. 1745- 47 of 1974 preferred by them, they
claimed seniority over the contesting respondents who were Assistant Executive
Engineers promoted later in point of time. This claim of the appellants was
disputed on behalf of the contesting respondents who submitted that they had
been rightly given seniority over the appellants by adopting the rotational
formula. This controversy as to seniority between two groups of Executive
Engineers, on the one hand, the petitioners and the appellants, a large number
of whom were promoted within their quota subsequent to 22nd December 1959 and
on the other, the contesting respondents of whom also a sizeable number were
promoted as Executive Engineers after 22nd December 1959, was resolved by this
Court by its decision dated 11th December 1974 and it was held that the quota
rule has to be applied at the time of initial recruitment in officiating
capacities to the grade of Executive Engineers and if any Assistant Engineers
are promoted Executive Engineers in excess of their quota in a particular year,
they would have to be pushed down to later years for absorption when due within
their quota and more importantly, when Assistant Engineers are promoted as
officiating Executive Engineers regularly within their quota, their seniority
in the grade of Executive Engineer would count from the date of their regular
promotion within their quota and on the basis of this holding, the Union of
India was directed to amend and revise the seniority list and to give effect to
the seniority lists so revised. It is therefore clear and we do not think this
position can admit of any doubt whatsoever, that even in regard to Executive
Engineers promoted from the grades of Assistant Engineers and Assistant
Executive Engineers subsequent to 22nd December 1959, the direction given by
the Court was that their seniority inter se should be determined on the basis
of length of continuous officiation 872 in the grade of Executive Engineers
counted from the date of their regular promotion within the respective quota.
It is also obvious on a plain reading of the decision of this Court that the
direction given by it in regard to determination of inter se seniority on the
basis of length of continuous officiation was not limited to Executive
Engineers promoted from the grades of Assistant Engineers and Assistant
Executive Engineers up to 22nd December 1959 but was on its plain terms
applicable to all Executive Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers within their respective quota right
up to 11th December 1974 being the date of the decision of the Court. Moreover,
it may also be noted, and this is a circumstance of considerable weight, that
in any event the seniority list which was directed to be amended and revised by
following the rule of seniority based on length of continuous officiation was
seniority list of 1st July 1971 which determined inter se seniority amongst the
Executive Engineers promoted from the grades of Assistant Engineers and
Assistant Executive Engineers right up to June, 1971. It is the inter se
seniority amongst these Executive Engineers covered by the seniority list of
1st July 1971 that was directed to be amended and revised on the basis of
length of continuous officiation in the grade of Executive Engineers. The
Government of India was therefore bound to revise the seniority list of
Executive Engineers on the basis that the inter se seniority of Executive
Engineers drawn from the grades of Assistant Engineers and Assistant Executive
Engineers should be determined on the basis of length of continuous officiation
in service after regular appointment within their respective quota irrespective
of whether such regular promotion within the respective quota was before or
after 22nd December 1959. But the revised seniority list dated 14th August 1975
issued by the Government of India was plainly in defiance of this direction
given by the Court and what the Government of India did was to adjust the first
86 Assistant Executive Engineers promoted after 22nd December 1959 against 86
carried forward posts and to give them seniority enable over all Assistant
Engineers promoted as Executive Engineers regularly within their quota
subsequent to 22nd December 1959 and then to apply the rotational formula in
regard to the other vacancies subsequent to 22nd December 1959. The result was
that most of the Assistant Engineers promoted as Executive Engineers lost a
large number of places in seniority and were reduced to a position much worse
than that in which they were under the earlier seniority list of 1st July 1971.
The success which the petitioners and the appellants 873 had achieved in writ
petition No. 489 of 1974 and Civil Appeal Nos. 1745-47 of 1974 was turned into
a defeat and they were badly mauled in the ultimate result. The question is
whether despite the direction given by this Court in its decision dated 11th
December 1974 and in face of it, the Government of India was justified in
fixing inter se seniority between Assistant Engineers and Assistant Executive
Engineers promoted regularly within their quota from and after 22nd December
1959 on the basis set out in the Memorandum dated 14th August 1975 and the
Rules of 1976.
The Government of India sought to avoid the
binding obligation of the direction given by the Court in its decision dated
11th December 1974 by making the Rules of 1976 effective from 10th December
1974, one day prior to the date of the decision. The assumption underlying this
manoeuvre on the part of the Government of India was that if the Rules of 1976
were brought into force with effect from a date prior to the decision of the
Court in A.K. Subraman's case (supra) they would nullify that decision and
notwithstanding that decision recognising and giving effect to a different rule
of seniority, namely, the rule of length of continuous officiation, the Rules
of 1976 would prevail and the inter se seniority between Executive Engineers
promoted from the grades of Assistant Engineers and Assistant Executive
Engineers subsequent to 22nd December 1959 would be governed by those Rules.
This assumption, we are afraid, is wholly unfounded and the argument based upon
it cannot be sustained. When this Court has in so many terms laid down that the
inter se seniority of Executive Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers up to 11th December 1974 must be
held to be governed by the rule of length of continuous officiation and the
Government of India has been directed by a writ of the Court to amend and
revise, the seniority list of 1st July 1971 on the basis of this rule of
seniority, it is difficult to see how the effect of this decision can be set at
naught and the binding character of the writ issued against the Government of
India can be abrogated by the mere promulgation of the Rules of 1976 with
retrospective effect from 19th December 1974. It is significant to note that
the Explanatory Memorandum which was in the nature of statement of objects and
reasons for the Rules of 1976 did not seek to override the effect of the decision
in A.K. Subraman's case (supra) but on the contrary affirmed that the
principles of seniority set out in those rules were laid down on the basis of
the decision in A.K. Subraman's case (supra). The Rules of 1976 were in no way
intended to set at 874 naught the decision in A.K. Subraman's case (supra) in
so far as it laid down the rule of seniority based on length of continuous
officiation for Executive Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers, but it was claimed that they were
made with a view to giving effect to the direction contained in that decision.
That is the reason why we do not find any non- obstante clause giving
overriding effect to the rules of seniority enunciated in the Rules of 1976
notwithstanding the decision in A.K. Subraman's case (supra). Since the Rules
of 1976 purport merely to carry out the direction given in the decision in A.K.
Subraman's case (supra) they cannot have the effect of overriding that decision
and absolving the Government of India from the obligation to implement this
direction and the Government of India must therefore amend and revise the
seniority list of 1st July 1971 by applying the rule of seniority based on
length of continuous officiation for determining inter se seniority of
Executive Engineers promoted from the grades of Assistant Engineers and
Assistant Executive Engineers upto 11th December 1974. The relative position of
the Executive Engineers in regard to their inter se seniority having been
crystallised in the decision in A.K. Subarman's case (supra) and a writ having
been issued by this Court directing the inter se seniority of the Executive
Engineers to be fixed on the basis of length of continuous officiation, the
Executive Engineers promoted from the grade of Assistant Engineers were
entitled to enforce the writ for determining their inter se seniority with the
Executive Engineers promoted from the grade of Assistant Executive Engineers in
accordance with the rule of length of continuous officiation. This right of the
Executive Engineers promoted from the grade of Assistant Engineers under the
decision in A.K. Subraman's case (supra) could not be taken away by anything
contained in the Rules of 1976. The decision in A.K. Subraman's case (supra)
continued to subsist and the Government of India was bound to determine inter
se seniority amongst the Executive Engineers in accordance with the direction
contained in that decision.
The respondents in answer to this contention
of the petitioners leaned heavily on the decision of this Court in Shri Prithvi
Cotton Mills Ltd. v. Broach Borough Municipality and submitted that whatever
might have been the rule of seniority on which the decision of this Court in
A.K. Subraman's case (supra) was based, the basis 875 of that decision was
fundamentally altered in so far as inter se seniority of Executive Engineers
promoted from the grades of Assistant Engineers and Assistant Executive
Engineers subsequent to 22nd December 1959 was concerned, because Rules 2(iii)
and 2(iv) of the Rules of 1979 retrospectively provided for a different rule of
seniority and that rendered the decision ineffective and not binding on the
parties. We have carefully considered the decision of this Court in Shri
Prithvi Cotton Mills case (supra) but we do not think that this decision lays
down any such wide proposition as is contended for on behalf of the
respondents. It does not say that whenever any actual or legal situation is
altered by retrospective legislation, a judicial decision rendered by a Court
on the basis of such factual or legal situation prior to the alteration would
straight away without more, cease to be effective and binding on the parties.
It is true that there are certain observations in this decision which seem to
suggest that a court decision may cease to be binding when the conditions on
which it is based are so fundamentally altered that the decision could not have
been given in the altered circumstances. But these observations have to be read
in the light of the he question which arose for consideration in that case.
There, the validity of the Gujarat imposition of Taxes by Municipalities
(Validation) Act, 1963 was assailed on behalf of the petitioners. The
Validation Act had to be enacted because it was held by this Court in Patel
Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad that since section
73 of the Bombay Municipality Boroughs Act, 1925 allowed the Municipality to
levy a 'rate' on buildings or lands and the term 'rate' was confined to an
imposition on the basis of annualetting value, tax levied by the Municipality
on lands and buildings on the basis of capital value was invalid. Section 3 of
the Validation Act provided that notwithstanding any thing contained in any
judgment, decree or order of a court or tribunal or any other authority, no tax
assessed or purported to have been assessed by a municipality on the basis of
capital value of a building or land and imposed, collected or recovered by the
municipality at any time before the commencement of the Validation Act shall be
deemed to have invalidly assessed, imposed, collected or recovered and the
imposition, collected or recovery of the tax so assessed shall be valid and
shall be deemed to have always been valid and shall not be called in question
merely on the ground that the assessment of the tax on the basis of capital
value of the building or land 876 was not authorised by law and accordingly any
tax so assessed before the commencement of the validation Act and leviable for
a period prior to such commencement but not collected or recovered before such
commencement may be collected or recovered in accordance with the relevant
municipal law. It will be seen that by section 3 of the impugned Act the
Legislature retrospectively imposed tax on building or land on the basis of
capital value and if the tax was already imposed, levied and collected on that
basis, made the imposition levy, collection and recovery of the tax valid,
notwithstanding the declaration by the Court that as 'rate', the levy was
incompetent. This was clearly permissible to the Legislature because in doing
so, the Legislature did not seek to reverse the decision of this Court on the
interpretation of the word 'rate', but retrospectively amended the law by
providing for imposition of tax on land or building on the basis of capital
value and validated the imposition, levy collection and recovery of tax on that
basis. The decision of this Court holding the levy of tax to be incompetent on
the basis of the unamended law, therefore, became irrelevant and could not
stand in the way of the tax being assessed, collected and recovered on the
basis of capital value under the law as retrospectively amended. That is why
this Court held that the Validation Act was effective to validate imposition,
levy, collection and recovery of tax on land or building on the basis of
capital value. It is difficult to see how this decision given in the context of
a validating statute can be of any help to the respondents. Here the decision
in A.K. Subraman's case (supra) which is relied upon by the petitioners is not
a mere declaratory judgment holding an impost or tax to be invalid, so that a
validation statute can remove the defect pointing out by that judgement and
validate such impost or tax. But it is a decision giving effect to the right of
the Executive Engineers promoted from the grade of Assistant Engineers to have
their inter se seniority with Executive Engineers promoted from the grade of
Assistant Executive Engineers determined on the basis of rule of length of continuous
officiation by issue of a writ directing the Government of India to amend and
revise the seniority list in accordance with such rule of seniority: Rules
2(iii) and 2(iv) seek to substitute with retrospective effect a totally
different rule of seniority in place of that recognised and given effect by the
decision in A.K Subraman's case (supra).
That obviously cannot be done. Rules 2(iii)
and 2(iv) cannot by retrospective alteration of the rule of seniority nullify
the decision in A.K. Subraman's case which has recognised and given effect to
an existing rule of seniority and issued a writ against 877 the Government of
India on that basis. If by reason of retrospective alteration of the rule of
seniority the decision is rendered erroneous, the remedy may be by way of
review, but so long as the decision stands, it cannot be disregarded or ignored
and it must be obeyed by the Government of India despite Rules 2(iii) and 2(iv)
so far as the Executive Engineers promoted from the grades of Assistant Engineers
and Assistant Executive Engineers up to 11th December 1974 are concerned. This
view taken by us finds complete support from the judgment of one of us namely
Bhagwati, J. in M.M. Pathak v. Union of India & Ors.
The respondents also relied heavily on the
decision of this Court in Bishan Sarup Gupta v. Union of India (hereinafter
referred to as the 2nd Bishan Sarup Gupta case). It was contended on behalf of
the respondents that in the 2nd Bishan Sarup Gupta case, this Court upheld the
rotational rule of seniority which determines seniority according to a roster
of 1:1 amongst direct recruits and promotees in the Income-Tax officers (Class
1) Service in the circumstances closely resembling the present case and Rules
2(iii) and 2(iv) of the Rules of 1976 in so far as they gave seniority en bloc
to the Assistant Executive Engineers promoted to the 86 carried forward posts
of Executive Engineers and applied the rotational formula for the purpose of
determining seniority amongst Assistant Engineers and Assistant Executive
Engineers promoted to the subsequent vacancies in the grade of Executive
Engineers, must therefore, be upheld by us on analogical reasoning.
This contention, plausible though it may
seem, is, in our opinion, without force and must be rejected. The situation in
the 2nd Bishan Sarup Gupta case was fundamentally different from that in the
present case. The Court, in the Ist Bishan Sarup Gupta case, came to the
conclusion that on 16th January, 1959 the quota rule for filling up vacancies
amongst Income-Tax officers (Class I) collapsed by reason of upgrading of 100
Class II posts and with that also went the seniority rule set out in Rule 1 (f)
(iii), because this rule of seniority could be upheld as constitutionally valid
only if the quota rule was strictly observed, with only minor deviations
permitting, and the question, therefore, arose that "if the seniority rule
1 (f) (iii) ceased to be operative from 16th January, 1959' how is the inter-se
seniority between the direct recruits and the promotees to be fixed thereafter
?" There was no 878 specific seniority rule to determine inter-se
seniority between the direct recruits and the promotees appointed regularly
within their respective quota from and after 16th January, 1959 and though, in
the absence of any specific seniority rule, the Court could have applied the
residuary rule based on length of continuous officiation, the Court did not do
so because it felt that since the old seniority rule had ceased to operate by
reason of the Infringement if the quota rule, it would be for the Government to
devise "a Just and fair seniority rule as between the direct recruits and
the promotees for being given effect to from 16th January, 1959." It was
pursuant to this direction given by the Court that the rotational rule of
seniority impugned in the 2nd Bishan Sarup Gupta case was made the Government
and this seniority rule did not seek to undo the effect of that decision. Now,
in the present case also, by reason of clause 3 of the Memorandum dated 22nd
December, 1959, the rule of seniority based on length of continuous officiation
enunciated in the Memorandum dated 22nd June, 1949 came to an end and
thereafter until the Rules of 1976, were formulated, there was no specific rule
of seniority which governed inter-se seniority between Assistant Engineers and
Assistant Executive Engineers promoted as Executive Engineers regularly within
their respective quota subsequent to 22nd December, 1959. The Memorandum dated
22nd December, 1959 was undoubtedly in force, but for reasons which we shall
presently state, neither Paragraph 5(ii) relied on by the petitioners nor
paragraph 6 relied on by the respondents had any application for determining
inter-se seniority in the grade of Executive Engineers. The Court could have,
therefore, followed the same course as in the 1st Bishan Sarup Gupta case and
in the absence of a specific rule of seniority to determine inter se seniority
amongst Assistant Engineers and Assistant Executive Engineers promoted to the
grade of Executive Engineers from and after 22nd December, 1959, the Court
could have directed the Government of India to evolve a new rule of seniority.
But the Court instead chose to adopt the rule of seniority based on length of
continuous officiation and directed inter se seniority amongst Assistant
Engineers and Assistant Executive Engineers promoted to the grade of Executive
Engineers regularly within their respective quota upto the date of its
decision, to be determined on the application of this rule of seniority based
on length of continuous officiation. This course, the Court was clearly
entitled to adopt, because, as we shall presently point out, when there is no
specific rule governing determination of seniority in a grade, the normal rule
applicable would be 879 to determine seniority on the basis of length of
continuous officiation in the grade and the Court could certainly adopt this
residuary rule and direct inter se seniority in the grade to be fixed on the
application of this seniority rule.
It will thus be seen that while in Ist Bishan
Sarup Gupta case, the Court left it to the Government to decide what rule of
seniority should be devised for determining inter se seniority between the
direct recruits and the promotees appointed from and after 16th January, 1959,
the Court in the present case did not leave it to the Government to evolve a
new Rule of seniority for determining inter se seniority amongst Assistant
Engineers and Assistant Executive Engineers promoted as Executive Engineers
from and after 22nd December, 1959 but itself laid down that such inter se
seniority shall be determined on the application of the rule of seniority based
on length of continuous officiation. This constituted a vital difference
between the lst Bishan Swarup Gupta case and the present case and the
Government was not entitled, as in the case of Bishan Swarup Gupta and other
Income-Tax officers, to evolve a new rule of seniority different from that
recognised and given effect to by the Court in A.K Subraman's decision for
determining seniority amongst Assistant Engineers and Assistant Executive
Engineers promoted as Executive Engineers regularly with in their respective
quota from and after 22nd December, 1959. To permit the Government to do so
would be in plain defiance of the direction given by the Court in A.K
Subraman's case.
The petitioners relied strongly on paragraph
5 (ii) of the Memorandum dated 22nd December, 1959 and contended that the
seniority rule laid down in this Paragraph governed the determination of
seniority amongst Executive Engineers promoted from the Grades of Assistant
Engineers and Assistant Executive Engineers from and after 22nd December, 1959
and if this rule of seniority was applied, the Assistant Engineers promoted
regularly within their quota after selection by the Departmental promotion
Committee in any year would rank higher than the Assistant Executive Engineers
promoted, in the subsequent years and in that view, the seniority list dated
14th August, 1975 and the Rules of 1976 in so far as they give seniority en bloc
to the Assistant Executive Engineers promoted to the 86 carried forward posts
of Executive Engineers and apply the rotational formula for the purpose of
determining seniority amongst Assistant Engineers and Assistant Executive
Engineers promoted to the subsequent vacan- 880 cies in the Grade of Executive
Engineers, would clearly be unconstitutional and void as retrospectively
affecting the seniority of the Executive Engineers promoted from the Grades of
Assistant Engineers and Assistant Executive Engineers within their respective
quota from and after 22nd December, 1959. This contention was urged before us
with a certain degree of plausibility but on close scrutiny we find that it is
not well founded. There are two formidable answers to this contention and each
answer is sufficient to warrant rejection of this contention.
In the first place, it may be pointed out
that this contention is no longer open to the petitioners in view of the
decision in A.K. Subraman's case where the Court applied the rule of seniority
based on length of continuous officiation for determining inter-se seniority
amongst Assistant Engineers and Assistant Executive Engineers promoted as
Executive Engineers regularly within their respective quota upto 11th December,
1974, being the date of the decision and directed such inter-se seniority to be
determined on the application of this seniority rule. Even if the rule of
seniority set out in Paragraph 5(ii) were otherwise applicability must stand
negatived by the decision in A.K. Subraman's case which is binding on the
parties.
Moreover, it may noted that in A.K.
Subraman's case it was conceded on behalf of respondents Nos. 1 and 2 that this
Memorandum was not relevant to the question of determination of seniority
between the petitioners and the respondents. In that case though the promotion
of some of the petitioners was regularised by absorption in their lawful quota
subsequent to 22nd December, 1959, and some of the respondents were also
promoted as officiating Executive Engineers within the their quota after that
date, the learned counsel appearing on behalf of the petitioners did not
contend that Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 was
applicable to determine inter-se seniority amongst such of the petitioners and
respondents as were promoted after 22nd December, 1959 and agreed with the
concession made on behalf of respondents Nos. I and 2 that the Memorandum dated
22nd December 1959 was irrelevant and likewise no discordant note was struck
also by the learned counsel appearing on behalf of the respondent Assistant
Executive Engineers and it was not contended on their behalf that so far as the
petitioners and the respondent Assistant Executive Engineers promoted regularly
within their lawful quota subsequent to 22nd December, 1959 were concerned,
their seniority 881 was governed by Paragraph 5(ii) or any other paragraph of
the Memorandum dated 22nd December, 1959. Therefore, it was the common case of
all the parties including the Assistant Engineers and the Assistant Executive
Engineers and the Assistant Executive Engineers promoted as Executive Engineers
that neither the rule of seniority set out in paragraph 5(ii) nor the seniority
rule set out in any other paragraph of the Memorandum dated 22nd December, 1959
was applicable.
But, since the case has been argued fully
before us we would consider the applicability of Paragraph 5(ii) of the
Memorandum dated 22nd December, 1959 on merits. There can be no doubt that the
contention of the petitioners based on Paragraph 5(ii) would have had great
force if on a true interpretation of that paragraph, the rule of seniority set
out in that provision could be held to govern the determination of seniority
amongst the Executive Engineers promoted from the Grades of Assistant Executive
Engineers from and after 22nd December, 1959 being the date when this rule of
seniority came into force. But we are of the view that the rule of seniority
set out in Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 could
have no application in case of promotions made to the Grade of Executive
Engineers from the Grades of Assistant Engineers and Assistant Executive
Engineers. Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 read as
follows :
"5(ii): Where promotions to a grade are
made from more than one grade, the eligible persons shall be arranged in
separate lists in the order of their relative seniority in their respective
grades. Thereafter, the Departmental Promotion Committee shall select persons
for promotion from each list upto the prescribed quota and arrange all the
candidates selected from different lists in a consolidated order of merit which
will determine the seniority of the persons on promotion to the higher
grade." and the rule of seniority set out in this provision was explained
by the following illustration given in an Explanatory Note attached to the
Memorandum dated 22nd December, 1959 :
"Note : If separate quotas for promotion
have not already been prescribed in the relevant recruitment rules, the
Ministries/Departments may do so, now in consultation with the Commission
wherever necessary." 882 This rule of seniority, on the plain terms of
Paragraph 5(ii) applied only in a situation "where promotions to a Grade
are made from more than one Grade" and the argument of respondents Nos. 4
to 190 was that when this provision spoke of promotions to a Grade from more
than one Grade, it referred to promotions within the same service, that is,
where the grades from which promotions are made as also the grades of promotion
are all grades within the same service, but where one of the grades from which
promotions are made belongs to a lower service than the grade of promotion and
the promotion is therefore from a lower service to a higher service, the rule
of seniority set out in this provision could have no application. Respondents
Nos. 4 to 190 in the circumstances submitted that since the grade of Assistant
Engineers was in Class II Service while the grade of Executive Engineers was in
Class I Service, the rule of seniority laid down in this provision was not
applicable for determining seniority in the grade of Executive Engineers.
We do not think this argument advanced on
behalf of respondents Nos. 4 to 190 is well-founded. The postulate for the
applicability of the rule of seniority set out in this provision simply reads:
"Where promotions to a Grade are made from more than one Grade" and
it does not introduce any requirement that the grades from which the promotions
are made should belong to the same service as the garde of promotion. It is no
doubt true that the illustration given in the Explanatory Note refers to
promotions from the grades of Upper Division Clerks and store keepers to the
grade of Head Clerk and all these grades belong to Class III Service but it would
not be right to limit the applicability of the seniority rule set out in this
provision by reading into it a limitation which is not there, merely because an
illustration of the applicability of the seniority rule given in the
Explanatory Note relates to a case where the grades are all in the same
service. If the interpretation contended for on behalf of respondents Nos. 4 to
190 were correct, the rule of seniority set out in this provision would not be
applicable where both the grades, from which the promotions are made, belong to
a lower service while the grade of promotion belongs to a higher service and
for such a case, there would be no rule of seniority laid down in the
Memorandum date 22nd December, 1959 which would be applicable. We are clearly of
the view that the rule of seniority set out in Paragraph 5(ii) would be
attracted in all cases where promotions to a grade are made from more than one
grade, irrespective as to whether these grades all belong to the same service
or not and, therefore, the applicability of this rule of seniority could not be
repelled in the present case on 883 the ground that the grade of Assistant
Engineers belongs to Class II Service while the grade of Executive Engineers
belongs to Class I Service.
But, there is a more fundamental reason why
the rule of seniority set out in paragraph 5(ii) of the Memorandum dated 22nd
December, 1959 must be held to be inapplicable in the case of promotion to the
grade of Executive Engineers. The promotion from the grade of Assistant Executive
Engineers was by selection on merit while the promotion from the grade of
Assistant Engineers was on the basis of seniority cum- fitness. There was no
element of selection on merit in the case of Assistant Engineers as in the case
of Assistant Executive Engineers and the entire basis of promotion from the two
grades was different. Moreover, this provision postulated the existence of one
single Departmental Promotion Committee for the selecting persons the promotion
from the grades of Assistant Engineers and Assistant Executive Engineers and it
was this single Departmental Promotion Committee, which was to "arrange
all the candidates selected from different lists in a consolidated order of
merit which will determine the seniority of persons on promotion" to the
grade of Executive Engineers, Now, there was some controversy between the
parties whether in the case of promotions to the grade of Executive Engineers,
there was one single Departmental Promotion Committee for selecting person from
the grades of Assistant Engineers and Assistant Executive Engineers or there
were separate Departmental Promotion Committees-one for selection from the
grade of Assistant Engineers and the other for selection from the grade of
Assistant Executive Engineers. Respondents Nos. 1 and 2 in the counter
affidavit filed by S.R. Roy Choudhury asserted that in case of selection from
the grade of Assistant Engineers, the Union Public Service Commission was
associated with the Departmental Promotion Committee while in case of selection
from the grade of Assistant Executive Engineers, the Union Public Service
Commission was not so associated and a combined grouping of the persons sought
to be promoted from the two groups was, therefore, not possible. The first
petitioner however, in the rejoinder affidavit filed by him on behalf of the
petitioners disputed the correctness of this avernment made on behalf of
respondents Nos. 1 and 2 and submitted that it was wrong to suggest "that
the UPSC is not associated with the DPC because in all the selections concerned
with the petitioners and the respondents, a Member of the UPSC 884 was on both
the DPCS" and in this connection he relied on rule 4 of Section 7 of
Chapter V at page 48 of the CPWD Manual, Volume I (1970 Edition). It is not necessary
for the purpose of determining the applicability of the rule of seniority in
Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 to decide whether a
Member of the Union Public Service Commission was associated with the
Departmental Promotion Committee for selection of Assistant Executive Engineers
or not. It is implicit in the statement of the first petitioner in his
rejoinder affidavit that there were two different Departmental Promotion
Committees for selecting persons for promotion from the grades of Assistant
Engineers and Assistant Executive Engineers. The composition of the
Departmental promotion Committees being different and the criteria for
promotion to the grade of Executive Engineers also being different in the case
of Assistant Engineers and Assistant Executive Engineers, it is difficult to
conceive how combined merit rating on the persons sought to be promoted from
the two groups could possibly be made as envisaged in paragraph 5(ii) of the
Memorandum dated 22nd December, 1959. It was suggested that a comparative
assessment of the merits of the persons chosen from two groups could made on
the basis of still be as to which Departmental Promotion Committee would their
confidential reports, but the question would still be as to which Departmental
Promotion Committee would make the comparative assessment and even if the
Departmental Promotion Committee for selection of persons to be promoted from
the two groups was the same, it is difficult to appreciate how and comparative
assessment of the merits could be made on the basis of confidential reports.
The confidential reports of the officers from the two groups would not be
written by the same officer or even by officers of equivalent rank, because in
the case of Assistant Engineers promoted as officiating Executive Engineers in
excess of their quota and consequently pushed down for being absorbed within
their quota in later years, their confidential reports for the preceding three
years would be written in respect of their performance as officiating Executive
Engineers by the Superintending Engineers, while in the case of Assistant
Executive Engineers, their confidential reports for the preceding three years
would be written in respect of their performance as Assistant Executive
Engineers by the Executive Engineers. Thus at the point of time when in any
particular year, the officers of the two streams meet for their seniority in
the grade of Executive Engineers, their confidential reports would not be by
the same officers or even by officers of equivalent rank and it would be almost
885 impossible to arrive at a comparative assessment of their respective merits
for the purpose of working out the seniority rule in Paragraph 5(ii) of the
Memorandum dated 22nd December, 1959. Moreover, in fact this seniority rule was
never regarded as applicable in case of promotions to the grade of Executive
Engineers and the procedure set out there was not followed at any time while
making promotions from the grades of Assistant Executive Engineers and
Assistant Engineers to the grad of Executive Engineers. It is, therefore, clear
that the seniority rule set out in Paragraph 5(ii) of Memorandum dated 22nd
December, 1959 could not be invoked for determining inter se seniority between
Executive Engineers from the grades of Assistant Engineers and Assistant
Executive Engineers and the petitioners could not legitimately found any
argument upon that seniority rule for the purpose of invalidating the seniority
list dated 14th August, 1975 and the Rules of 1976.
It is interesting to note that while the
petitioners relied on Paragraph 5(ii) of the Memorandum dated 22nd December
1959, respondent Nos. 4 to 190 rested their argument on Paragraph 6 of this
Memorandum. They contended that the rotational formula adopted for determining
seniority amongst Assistant Engineers and Assistant Executive Engineers
promoted to the grade of Executive Engineers from and after 22nd December,
1959, subject to precedence being given en bloc to Assistant Executive
Engineers promoted to fill in 86 carried forward posts of Executive Engineers,
was in consonance with Paragraph 6 of the Memorandum dated 22nd December, 1959
and did not in any way affect retrospectively the inter se seniority of the
Executive Engineers promoted from the grades of Assistant Engineers and
Assistant Executive Engineers. We are afraid this contention is not open to
respondent Nos. 4 to 190 in view of the decision of this Court in A K.
Subraman's case and moreover as already pointed out by us while rejecting the
contention of the petitioners based on Paragraph 5(ii), it was the common case
of all the parties including the Assistant Engineers and the Assistant
Executive Engineers promoted as Executive Engineers that the Memorandum dated
22nd December, 1959 was irrelevant for the purpose of determining the inter se
seniority amongst the Assistant Engineers and Assistant Executive Engineers
promoted from and after 22nd December 1959 and neither the seniority rule set
out in Paragraph 5(ii) nor that set out in Paragraph 6 was applicable. But even
so since full arguments have been advanced before us we propose to consider the
applicability of Paragraph 6 on merits. It is necessary in order to appreciate
the contention raised on behalf 886 of respondent Nos. 4 to 190 to examine the
scope and ambit of Paragraph 6 of the Memorandum dated 22nd December, 1959
which reads as follows:
"6. Relative seniority of Direct
Recruits and Promotees:
The relative seniority of Direct recruits and
of promotees shall be determined according to the rotation of vacancies between
direct recruits and promotees which shall be based on the quotas of vacancies
reserved for direct recruitment and promotion respectively in the Recruitment
Rules." This paragraph on its plain terms laid down a rule for determining
the relative seniority of direct recruits and promotees in a grade to which
appointments were required to be made by direct recruitment and promotion
according to a certain fixed quota. This rule of seniority obviously could have
no application for determining inter se seniority in the grade of Executive
Engineers, since both Assistant Engineers and Assistant Executive Engineers
were inducted in the grade of Executive Engineers by promotion and Assistant
Executive Engineers appointed in the grade of Executive Engineers did not bear
the character of direct recruits. It is, of course, true that Assistant
Executive Engineers were initially taken up as direct recruits in the grade of
Assistant Executive Engineers in fact that was only method of entry into the grade
of Assistant Executive Engineers-but when they entered the grade of Executive
Engineers, they did so by way of promotion just like the Assistant Engineers.
There was, therefore, in the present case, no
question of determining relative seniority between direct recruits and
promotees. Both the Assistant, Engineers as well as the Assistant Executive
Engineers were Promotees to the grade of Executive Engineers and Paragraph 6 of
the Memorandum dated 22nd December, 1959 had, therefore, no application for determining
inter se seniority between them in the grade of Executive Engineers.
We have considered the applicability of
Paragraphs 5(ii) and 6 of the Memorandum dated 22nd December, 1959 on merits
and come to the conclusion that the rule of seniority set out in neither of
these two paragraphs could have any application in the present case. But at the
same time, we cannot escape the conclusion that by reason of clause 3 of the
Memorandum dated 22nd December, 887 1959, the rule of seniority prescribed in
the Memorandum dated 22nd June, 1949 stood repealed, except in regard to
determination of seniority of persons appointed to the grade of Executive
Engineers prior to 22nd December, 1959. There was, therefore, no rule of
seniority laid down either statutorily or by any executive order or instruction
for determining seniority amongst Executive Engineers promoted from the grades
of Assistant Engineers and Assistant Executive Engineers regularly within their
respective quota from and after 22nd December, 1959. But it is now well-
settled as a result of several decisions of this Court that in the absence of
any statutory rule or executive memorandum or order laying down a rule for
determining seniority in a grade, the normal rule applicable would be to
determine seniority on the basis of length of continuous officiation in
service. Vide the observations of Palekar J. in B.S.
Gupta v. Union of India. To the some effect
we find the observations Krishna Iyer, J., speaking on behalf of the Court in
Chauhan v. State of Gujarat where the learned Judge said at page 1057 of the
report:
"Seniority, normally, is measured by
length of continuous officiating service-The actual is easily accepted as the
legal." Chandrachud, J., as he then was, also reiterated the same
principle when he said in S.B. Patwardhan v. State of Maharashtra that
"all other factors being equal, continuous officiation in a non-fortuitous
vacancy ought to receive due recognition in determining rules of seniority as
between persons recruited from different sources, so long as they belong to the
same cadre, discharge similar, functions and bear similar
responsibilities." The inter se seniority of Executive Engineers promoted
from the grades of Assistant Engineers and Assistant Executive Engineers
regularly within their respective quota from and after 22nd December, 1959 was,
therefore, determinable on the basis of length of continuous officiation in the
grade of Executive Engineers and the Court was, in the circumstances, justified
in A.K. Subraman's case in holding in paragraph 1 of the summary of its
conclusions that "when Assistant Engineers (Class II) are initially
appointed in a regular manner in accordance with the rules to officiate as
Executive Engineer, their senio- 888 rity in service in Grade I will count from
the date of their initial officiating appointment as Executive Engineers was
within their quota." It is undoubtedly true that in reaching this
conclusion the Court proceeded on the assumption that 'the Memorandum dated
22nd June 1949 was clearly applicable" and equally it must be conceded
that this assumption was erroneous in so far as inter se seniority between
Assistant Engineers and Assistant Executive Engineers promoted from and after
22nd December, 1959 was concerned, since the rule of seniority based on length
of continuous officiation enunciated in the Memorandum dated 22nd June, 1959
was repealed by the Memorandum dated 22nd December, 1959. But it can hardly be
disputed that the conclusion reached by the Court was correct in law, because in
the absence of any specific rule of seniority governing determination of inter-
se seniority between Assistant Engineers and Assistant Executive Engineers
promoted from and after 22nd December, 1959, their inter-se seniority was
clearly governed by the rule of seniority based on length of continuous
officiation.
We do not think it would be right to assume
that the Court in A.K. Subraman's case overlooked that the rule of seniority
laid down in the Memorandum dated 22nd June, 1949 was repealed by the Memorandum
dated 22nd December, 1959 and it is, therefore, quite possible that when the
Court said that "the Memorandum of June 22, 1949 will clearly apply",
what the Court meant was that the rule of seniority based on length of
continuous officiation would clearly apply for determination of inter-se
seniority between Assistant Engineers and Assistant Executive Engineers
promoted to the grade of Executive Engineers. We may point out that in any
event the decision in A.K. Subhraman's case holding that the inter-se seniority
between Assistant Engineers and Assistant Executive Engineers promoted as
Executive Engineers should be governed by the rule of seniority based on length
of continuous officiation and that their inter-se seniority should be
determined on the application of this rule of seniority, must be regarded as
binding on the parties and it is not open to the petitioners or to the
respondents to raise any contention contrary to this conclusion reached by the
Court. This conclusion, we may repeat, was not limited to Assistant Engineers
and Assistant Executive Engineers promoted as Executive Engineers prior to 22nd
December, 1959 but also covered Assistant Engineers and Assistant Executive
Engineers promoted subsequent to that date right upto the date of the decision
of the Court. We must, therefore, hold that, notwithstanding Rules 2(iii) and
2(iv) of the 889 Rules of 1976, the inter-se seniority between Assistant
Engineers and Assistant Executive Engineers promoted regularly within their
respective quota upto 11th December, 1974 must be determined on the basis of
length of continuous officiation in the grade of Executive Engineers, subject
of course to the length of continuous officiation in the case of Assistant
Engineers being computed from the date of their confirmation as Assistant
Engineers.
Before we proceed to consider grounds B and C
it would be conventions at this stage to deal with some of the contentions
advanced by respondent Nos. 4 to 190 on behalf of the Assistant Executive
Engineers promoted as Executive Engineers against the validity of the seniority
list dated 14th August 1975 in so far as certain aspects of that seniority list
are concerned. Though the seniority list dated 14th August, 1975 was
substantially in favour of Assistant Executive Engineers promoted as Executive
Engineers, they were not wholly satisfied with it and they attacked it in three
respects. They urged that respondent Nos. 1 to 3 had egregiously erred in
formulating the seniority list dated 14th August, 1975 in as much as (1) respondents
Nos. 1 to 3 had treated vacancies arising on account of deputation of Executive
Engineers to other organisation or departments as vacancies to be filled up in
accordance with the quota and so also where an Assistant Engineer or Assistant
Executive Engineer was promoted for being sent on deputation as Executive
Engineer in another organisation or department, respondent Nos. 1 to 3 had
treated such promotion as filling up of vacancy subject to the quota rule; (2)
respondent Nos. 1 to 3 had included, for the purpose of allocation of quota,
also those vacancies which arose on account of death or retirement of Executive
Engineers who were promoted from the grade of Assistant Engineers in excess of
their quota and whose promotions were not regularised within their quota prior
to their death or retirement, as if those vacancies were fresh vacancies
governed by the quota rule and (3) while pushing down Executive Engineers who
were promoted from the grade of Assistant Engineers in excess of their quota and
adjusting them within their quota in a subsequent year, respondent Nos. 1 to 3
had treated them as absorbed not from the date when the vacancy arose in their
quota but from 1st January of that year. This three-fold grievance made on
behalf of respondent Nos. 4 to 190 cannot be said to be wholly unjustified. We
find that the second and third heads of grievance are well-founded while the
first is not. Our reasons for saving so are as follows.
890 So far as the first head of the grievance
of respondent Nos. 4 to 190 is concerned, their argument was that on a true
interpretation of the judgment of this Court in A.K. Subraman's case, the quota
rule was applicable only to permanent vacancies in the posts, whether permanent
or temporary, included in the sanctioned strength of the cadre of Executive
Engineers "except such vacancies as were purely of a fortuitors or
adventitious character" and since the vacancies arising on account of
deputation of Executive Engineers to other organisations or department could
not be regarded as permanent vacancies but were vacancies of fortuitous or
adventitious character, they were not subject to the quota rule and could not
be taken into account for applicability of the quota rule. This argument,
plausible though it may seem at first sight, cannot be sustained. It is, first
of all, necessary to clear the ground by pointing out that according to the
judgment of this Court in A.K. Subraman's case, the quota rule was to be
applied not with reference to the posts in the cadre of Executive Engineers but
with reference to vacancies in such posts. There might be more than one vacancy
in a post in the course of a year or any other unit of time and it was with
reference to each such vacancy that the quota rule had to be applied. Now a vacancy
may arise in a post on account of death, retirement or resignation of the
incumbent of the post or it may arise on account of his dismissal, discharge a
reversion from the post or promotion to a higher post or by reason of his
deputation to another department or organisation. Whenever, therefore, a
vacancy arises in a post, whatever be the reason by which the vacancy is
caused, it would have to be filled up by promotion of an Assistant Engineer or
an Assistant Executive Engineer and the quota rule would apply so long as the
vacancy is a permanent vacancy, that is to say, in the words of Palekar J. in
the 1st Bishan Sarup Gupta's case, a vacancy which is not "for a few days
or a few months" or otherwise adventitious". We have in these words
of Palekar, J., adopted wholly and completely in A.K. Subraman's case, a
negative definition of what may be regarded as a permanent vacancy for the
purpose of application of the quota rule and it clearly shows that a vacancy
which is of a short duration arising on account of fortuitous or adventitous
circumstances would not be regarded as permanent vacancy and in such a case, by
reason of the very nature of the vacancy, there would be no question of making
recruitment to the cadre as to attract the applicability of the quota rule. It
is therefore obvious that if a vacancy arises on account of an incumbent going
on leave or for training or on deputation for a short period, it would be a
fortuitous or adventitious vacancy and the quota rule would not be attracted in
case of such a vacancy. But where a vacancy arises on account of the incumbent
going on deputation for a reasonably long period and there is no reasonable
likelihood of the person promoted to fill such vacancy having to revert, the
vacancy would be subject to the quota rule, because it would be a regular
vacancy in the post of Executive Engineer and the person promoted to fill the
vacancy would be an officiating Executive Engineer who would continue as such
without reversion until confirmed and his promotion would, therefore, be by way
of recruitment lo the cadre of Executive Engineers. Of course, it should be
made clear that the vacancy which attracts the applicability of the quota rule,
is the vacancy in the post included in the sanctioned strength of the cadre of
Executive Engineers and not the vacancy in the deputation post. There may be a
vacancy in a deputation post in another department or organisation and an
Executive Engineer holding a post included in the sanctioned strength of the
cadre of Executive Engineers may be sent to such deputation post, but the
vacancy which would call for the application of the quota rule in such a case
would be the vacancy arising in the post of Executive Engineer within the cadre
by reason of the incumbent of that post going to the deputation post and not
the vacancy in the deputation post which would be filled up by the Executive
Engineer going on deputation. It is, therefore, apparent that what has to be
considered for the applicability of the quota rule is a vacancy in a post
included in the sanctioned strength of the cadre of Executive Engineers and the
sanctioned strength, which has to be taken into account, is not merely the
sanctioned strength of the cadre of Executive Engineers in the Central Public
Works Department but the sanctioned strength of the cadre of Executive
Engineers in the entire Central Engineering Service, Class I. The sanctioned
strength of the cadre of Executive Engineers in the Central Engineering
Service, Class I, may include not only posts of Executive Engineers in the
Central Public Works Department but also posts of Executive Engineers in other
departments and organisations.
Now, so far as the Central Engineering
Service, Class I, is concerned, the deputation of officers in various grades
including the grade of Executive Engineers is a normal feature of the Service.
The Central Public Works Department is an agency of the Central Government
operating throughout Country for construction, maintenance and repair of all
works and buildings financed from Civil 892 Works Budget except for certain
departments which had their own engineering units or which may get their Civil
works executed through private agencies. The officers borne on the cadres of
Chief Engineers, Superintending Engineers and Executive Engineers in the
Central Engineering Service, Class I, are therefore sent on deputation to
various departments and organisations and some of them are also on deputation
with the Government of Bhutan, Delhi Municipal Corporation, New Delhi Municipal
Committee and various other public undertakings. The normal duration of such
deputation is one to three years and it may even be extended beyond three
years. The record shows that the number of Chief Engineers, Superintending
Engineers and Executive Engineers on deputation to various departments,
organisations and public sector undertakings has always been substantial and by
way of illustration, it may be pointed out that there were as on 1st January,
1975, 90 out of approximately 360 Executive Engineers, 33 out of 80
Superintending Engineers and 8 out of 20 Chief Engineers on deputation. On an
average, about 25 to 40% of the Executive Engineers are on deputation to
various organisations, departments and public sector undertakings and whenever
any such Executive Engineers are sent on deputation and the vacancies in the
posts arising on account of such deputation are filled up by Assistant
Engineers or Assistant Executive Engineers regularly selected through
Departmental Promotion Committee, such promotees have never had to revert,
because the deputations are for a minimum period of one year and in most cases
for three years and they go on rotating. The vacancies arising in the posts of
Executive Engineers on account of deputation to other departments, organisations
and public sector undertakings are, therefore, long term vacancies and cannot
be characterised as vacancies of fortuitous or adventitious character and,
consequently, according to the judgment in A.K. Subraman's case, the quota rule
must be held to be applicable with reference to such vacancies. This has always
been the view taken by the Government of India, as is clear from the letter
dated 19th October, 1971 addressed by the Ministry of Works and Housing,
Government of India to the Secretary, Union Public Service Commission, where,
we find the following observation:
"In accordance with the recruitment
rules the posts at the level of Executive Engineers are to be filled by
promotion of Assistant Executive Engineers and Assistant Engineers in the ratio
of 2:1. This ratio is applicable to 893 both permanent and temporary Vacancies
including the deputation vacancies". (Emphasis supplied) It is significant
to note that the view that deputation vacancies being long term vacancies
should be regarded as permanent vacancies for the applicability of the quota
rule prevailed with the Government of India as far back as 19th October 1971
long before the present controversy arose between the parties and even prior to
the decisions in Bishan Sarup Gupta's cases and A.K. Subraman's case. We find
that this view was reaffirmed by the Government of India in the Office
Memorandum dated 30th December. 1976 issued by the Department of Personnel and
Administrative Reforms, Cabinet Secretariat where it has been stated as follows
under the heading "Determination of Regular Vacancies":- "It is
essential that the number of vacancies in respect of which a panel is to be
prepared by a D.P.C.
should be estimated as accurately as
possible. For this purpose the vacancies to be taken into account should be the
clear vacancies arising in post/ grade/service due to death, retirement,
resignation, regular long term promotion, of incumbents of one post/grade to
higher post/ grade and vacancies arising from creation of additional posts on a
long term basis and these arising out of deputation. As regards vacancies
arising out of deputation it is clarified that for the purpose of drawing up a
select list for promotion, vacancies arising out of deputation for periods more
than one year should be taken into account, due note however being kept also of
the number of the deputationists likely to return to the cadre and who gave to
be provided for. Purely short term vacancies arising as a result of officers
proceeding on leave, on deputation for a shorter period, training etc., should
not be taken into account for the purpose of preparation of a panel".
The same stand has been consistently taken by
the Government of India in the various affidavits filed on its behalf in these
proceedings as also in the miscellaneous proceedings arising in A.K. Subraman's
case. We may usefully reproduce the following paragraphs from the Counter
Affidavit filed on behalf of the Government of India in C.M.P. No. 6689 of 1975
in A.K. Subraman's case:
894 "8. With reference to paragraph
2(a), I submit that this Hon'ble Court, no doubt, stated that all the vacancies
except fortuitous and adventitious ones in the sanctioned strength in the cadre
have to be taken into account. So far as the deputation vacancies are
concerned, the position is that the post of the borrowing authority to which a
deputation is made is certainly outside the cadre of the Central Engineering
and Electrical Engineering Service, but the consequential vacancies which arise
because of the deputation are certainly vacancies in the cadre. The deputations
are generally for a period of a year and more and the consequential vacancies
are also long term vacancies, which cannot be called fortuitious or
adventitious". "15. With reference to paragraph 4 (8) (1) (a), I say
that the post in the borrowing department is certainly a post outside the
sanctioned strength of the C.P.W.D. However, deputation of an officer belonging
to the C.P.W.D. to fill such a post causes a vacancy in the C.P.W.D. It is this
vacancy which has been added and not then post on the borrower's establishment.
This has been done because in our case, the quota allocation is linked to
vacancies and not to post; of course, the vacancies must be in posts in the
cadre".
So also the Union of India reiterated the
same view in the Counter Affidavit filed on its behalf in C.M.P. No. 2663 of
1975 in A.K. Subraman's case:
"Vacancies: The quota system, based on
which the date of commencement of the regular appointment of either side had to
be fixed, in accordance with the directives of the Hon'ble Court, had been
introduced by the Central Engineering Service (and Central Electrical
Engineering Service) Recruitment Rules promulgated on 25.8.1949. Hence the
vacancies had to be identified right from this date.
Vacancies in the grade of Executive Engineers
had occurred not only due to death, retirement, resignation etc. in the grade
but also because of promotion (to higher grade) dismissal from this or higher
grades, reversion to lower grades and deputation to other organisations like
the Delhi Development Authority, undertaking, he retains his lien on the post
in the parent department and he has a 895 right to come back to that post which
he can exercise at any time and hence the vacancy caused by his deputation cannot
be regarded as a permanent vacancy liable to be filled by regular recruitment
to the cadre of Executive Engineers. It was urged that so long as an Executive
Engineer who has gone on deputation retains his lien on the post in the parent
department, that post cannot be filled by promotion of another Assistant
Engineer or Assistant Executive Engineer by way of substantive recruitment to
the cadre of Executive Engineers, because two officers cannot hold a lien on
the same post simultaneously. We do not think this argument is well-founded.
There is here no question of violation of the basic principle of service
jurisprudence that two officers cannot simultaneously have a lien on the same
post. It is significant to note, and this was common ground between the parties,
that the vacancy which attracts the applicability of the quota rule is not only
a vacancy in a permanent post but also a vacancy in a temporary post and
obviously no Executive Engineer can have a lien on a temporary post and
therefore, extinguishment of a lien on a post is not necessary in order that
there should be an available vacancy for the applicability of quota rule. It is
now settled as a result of the decision A.K. Subraman's case that the quota
rule is to be applied at the time of initial other Central or State Government
undertakings or Departments, UN assignments etc. none of which could be called
fortuitous or adventitious because they were all long term appointments
covering a period of one to two years or more.
Calculations of all such vacancies with
reference to the case and circumstances as called out from the original papers
right from 25.9.1949 was a herculean task and it was difficult to be sure that
there had been no errors or omissions. Hence, to be sure, the answering respondents
decided to treat each long term promotion to the grade of Executive Engineer,
for whatever reasons, as a vacancy, on the assumption that such a promotion
could not have been made without the existence of a vacancy".
It is thus clear that the vacancies in the
posts of Executive Engineers arising on account of deputation of Executive
Engineers 896 to other departments, organisations and public undertakings for a
period of one or more years were long term vacancies and they could not be
regarded as fortutitous or adventitious in character and hence they were
subject to the quota rule.
But the answer sought to be given on behalf
of respondents Nos. 4 to 190 to repel this conclusion was that when an
Executive Engineers goes on deputation to another department, organisation or
public sector recruitment in an officiating capacity to the cadre of Executive
Engineers and not at the time of confirmation. It is, therefore, not necessary
that the lien of an officer on a post of Executive Engineer must be extinguished
before any promotion to that post can be made in accordance with the quota
rule. Even where a confirmed Executive Engineer is promoted to the post of
Superintending Engineer but continuous to have his lien on the post of
Executive Engineer, a vacancy would undoubtedly arise in the post of Executive
Engineer by reason of his promotion and such vacancy would clearly be a
permanent vacancy liable to be filled according to the quota rule. So also a
vacancy attracting the applicability of the quota rule would arise where an
Assistant Engineer or Assistant Executive Engineer regularly promoted within
his lawful quota dies or retires before confirmation. The occurrence of a
vacancy in the post of Executive Engineer inviting the application of the quota
rule has, therefore, nothing to do with the extinguishment of lien on the post.
The argument of respondents Nos. 4 to 190
proceeds on the assumption that promotion to the post of Executive Engineer
contemplated under the recruitment rules can be made only when there is no lien
of any other officer on that post, for otherwise there will be two officers
having lien on the same post. But this assumption is wholly fallacious, because
promotion according to the quota rule envisaged in the Recruitment Rules is, as
pointed out in A.K. Subraman's case, initial promotion in an officiating
capacity and has nothing to do with confirmation. The contention of respondents
Nos. 4 to 190 would have had considerable force if promotion to the cadre of
Executive Engineers were dependent on confirmation and the quota rule were
applicable at the stage of confirmation. But this position stands completely
negatived by the decision in A.K. Subraman's case. Therefore, Whenever there is
a permanent vacancy, that is to say, a long term vacancy in a post of Executive
Engineer, it would have to be filled according to the quota rule irrespective
of the fact whether there is any officer having a lien on that post,. It 897 is
true that a confirmed Executive Engineer who goes on deputation may revert to
the post on which he has a lien and so also an officiating Executive Engineer
who goes on deputation may revert back on termination of his deputation and
theoretically, in either case, an Assistant Engineer or Assistant Executive
Engineer who is promoted to fill the vacancy arising on account of deputation
may have to revert, but in actual practice and reality, not a single Assistant
Engineer or Assistant Executive Engineer promoted as Executive Engineer to fill
a vacancy arising on account of deputation, has had to revert, because
deputation is a normal feature in this service and 20 to 25 per cent of the
Executive Engineers are continuously on deputation. Even if one Executive
Engineer comes back on termination of his deputation, another has to be sent in
his place and the deputations thus go on rotating with the result that the
vacancy in the post of Executive Engineer arising on account of deputation does
not cease and the Assistant Engineer or Assistant Executive Engineer promoted
as Executive Engineer to fill the vacancy does not ever have to revert and
consequently, the vacancy filled by him is really and truly a permanent or long
term vacancy which has to be filled according to the quota rule. In fact, if
the quota rule were not to be applied with reference to such a vacancy, the
position would be that whenever an Executive Engineer goes on deputation for a
period which may extend to anything between three to five years, the Central
Government would be entitled to promote an Assistant Engineer ignoring the
claims of Assistant Executive Engineers and this would be totally arbitrary in
a situation, where, as mentioned above, 20 to 25 per cent of Executive
Engineers are on deputation.
But then it was contended on behalf of
respondents Nos. 4 to 190 that even if a vacancy arising by reason of an
Executive Engineer going on deputation were regarded as a permanent vacancy
attracting the applicability of the quota rule, the position would be different
where an Assistant Engineer or Assistant Executive Engineer was promoted for
being posted as Executive Engineer in a deputation post. To such a promotion,
it was urged, the quota rule would not apply, because the promotion in such a
case would not be to fill a post in the sanctioned strength of the cadre of Executive
Engineers but would be to fill a deputation post of Executive Engineer in
another department, organisation or public sector undertaking. This argument,
plausible though it may seem at first sight, is in our opinion not sustainable.
When a 898 department, organisation or public sector undertaking requests the
Central Public Works Department to make available the services of an Executive
Engineer on deputation, The Central Public Works Department has two options
available to it: either to send an Executive Engineer who is occupying a post
in the cadre of Executive Engineers, whether confirmed or on officiating basis
or to promote an Assistant Engineer or Assistant Executive Engineer as
Executive Engineer and straightaway send him outside to the deputation post.
Now if the former mode of proceeding could lead to a vacancy attracting the
applicability of the quota, it is difficult to appreciate how the latter mode
of proceeding should not lead to a similar result. In both cases, the ultimate
result would be promotion of an Assistant Engineer or Assistant Executive
Engineer as Executive Engineer against demand for deputation. Where an
Assistant Engineer or Assistant Executive Engineer is promoted as Executive
Engineer and immediately sent to a deputation post in another department,
organisation or public sector undertaking, what really happens is that in the
eye of law, a post is temporary created in the cadre of Executive Engineers to
which the Assistant Engineer or Assistant Executive Engineer is promoted and
then sent on deputation. Obviously, an Assistant Engineer or Assistant
Executive Engineer cannot be promoted directly to the post of Executive
Engineer in another department, organisation or public sector undertaking: he
can be promoted only to a post of Executive Engineer in Central Engineering
Service Class I and then asked to go on deputation. Of course, an Assistant
Engineer or Assistant Executive Engineer can be directly sent on deputation to
the post of Executive Engineer in another department, organisation or public
sector undertaking without being promoted as Executive Engineer in his own
department and in such a case there will be no question of filling a vacancy
according to the quota rule. The Assistant Engineer or Assistant Executive
Engineer who goes on deputation as Executive Engineer in another department,
organisation or public sector undertaking would in such a case continue to
remain an Assistant Engineer or Assistant Executive Engineer in his own
department, but would be merely occupying the post of Executive Engineer in the
other department, organisation or public sector undertaking as a deputationist
and on the termination of his deputation, he would revert as Assistant Engineer
or Assistant Executive Engineer in his own department. Such a deputation cannot
be regarded as filling of a vacancy in the post of Executive Engineer in the
Central Engineering Service Class I so as to attract 899 the applicability of
the quota rule. But when an Assistant Engineer or Assistant Executive Engineer is
promoted as Executive Engineer in his own department and simultaneously with
such promotion, he is sent on deputation to another department, organisation or
public sector undertaking, he goes on such deputation as Executive Engineer, so
that if for any reason his deputation comes to an end, he reverts to his own
department as Executive Engineer and not as Assistant Engineer or Assistant
Executive Engineer. The petitioner filed before us several orders of promotion
of Assistant Engineers as Executive Engineers for being sent on deputation to
other departments or organisations and these orders clearly showed that the
Assistant Engineers in respect of whom these orders were passed, were promoted
as Executive Engineers and then, simultaneously, under the same orders, sent on
deputation to other departments or organisations. Obviously, in cases of this
kind, the promotion of the Assistant Engineer or Assistant Executive Engineer
would be to a post in the cadre of Executive Engineers and it would be subject
to the quota rule. The present contention of respondents Nos. 4 to 190 seeking
exclusion of deputation vacancies from the applicability of the quota rule
must, therefore, be rejected, provided of course the promotion of the Assistant
Engineer or Assistant Executive Engineer to a deputation vacancy is a regular
promotion, that is, after selection by the Departmental Promotion Committee and
is not an ad hoc promotion.
Respondent Nos. 4 to 190 are however on
firmer ground in regard to the second head of complaint urged by them against
the validity of the seniority list dated 14th August, 1975 It is true that in
preparing the seniority list dated 14th August, 1975 respondent Nos. 1 to 3
included, for the purpose of allocation of quota, also those vacancies which arose
on account of death or retirement of Executive Engineers who were promoted from
the grade of Assistant Engineers in excess of their quota and whose promotions
were not regularised by absorption within their quota prior to their death or
retirement and treated these vacancies as if they were fresh vacancies governed
by the quota rule. This was clearly an error on the part of respondent Nos. 1
to 3.
It is difficult to see how a vacancy in the
post of Executive Engineer which, according to the quota rule, is allocable to
an Assistant Executive Engineer but which is filled up by irregular appointment
of an Assistant Engineer can be treated as a fresh vacancy when the Assistant
Engineer irregularly promoted 900 dies or retires from service before regularisation
of his promotion by absorption within his quota. So long as the quota rule is
binding and enforceable, the Assistant Engineer who is irregularly promoted to
fill in a vacancy.
which belongs to the quota of Assistant
Executive Engineers is an illegal occupant of the vacancy and the vacancy
continues to be a vacancy belonging to the quota of Assistant Executive
Engineers and liable to be filled by promotion of an Assistant Executive
Engineer. In fact, the promotion of an Assistant Engineer to the vacancy would
be invalid as being contrary to the quota rule, but in the 1st Bishan Sarup
Gupta case, the Court, in order to obviate undue hardship, evolved the theory
of temporary invalidity of the promotion by holding that the promotion would
only be irregular and it could be regularised by absorption within the quota in
later years. The vacancy though pro tempor filled irregularly by an Assistant
Engineer would continue to belong to the quota of Assistant Executive Engineers
and it can be filled only by an Assistant Executive Engineer if the quota rule
is to be strictly observed. The death or retirement of an irregular promotee to
the vacancy cannot therefore give rise to a fresh vacancy: it is the same
vacancy which continues until properly filled by promotion of an Assistant
Executive Engineer at a subsequent date. If in such a case the death or
retirement of an irregularly appointed Assistant Engineer were to be treated as
creating a fresh vacancy, if would lead to gross distortion. Let us take a
hypothetical case where in a particular year say 1956, there are 12 vacancies
in the posts of Executive Engineers out of which 8 vacancies belong to the
quota of Assistant Executive Engineer and 4 vacancies belong to the quota of
Assistant Engineer but only 2 Assistant Executive Engineers are available with
the result that 6 Assistant Engineers are irregularly appointed to fill the
remaining 6 vacancies allocable to the Assistant Executive Engineers.
Now suppose in the next year 1957 there are
no new allocable vacancies but 6 Assistant Engineers irregularly appointed in
the earlier year 1956 die or retire. If the so-called vacancies arising by
reason of the death or retirement of these 6 irregularly appointed Assistant
Engineers were to be treated as fresh vacancies 4 out of them would go to
Assistant Executive Engineers while 2 would go to Assistant Engineers The
result would be that the Assistant Engineers would get 2 more vacancies which
they would not have 901 got if all the 8 vacancies allocable to Assistant Executive
Engineers in the year 1956 had been filled by promotion of Assistant Executive
Engineers and there had been no irregular promotion of 6 Assistant Engineers.
Thus the Assistant Engineers would gain two more vacancies within their quota
by reason of irregular appointment of 6 Assistant Executive Engineers. That
would be allowing Assistant Engineers to profit from irregular appointments
which result can never be countenanced. We must, therefore, accept the
contention of respondent Nos. 4 to 190 under the second head of complaint.
The third head of complaint urged on behalf
of respondent Nos. 4 to 190 must also likewise be held to be well-founded.
Respondent Nos. 4 to 190 are right in contending that while pushing down
Executive Engineers promoted from the grade of Assistant Engineers in excess of
their quota and adjusting them within their quota in a subsequent year,
respondent Nos. 1 to 3 must treat them as absorbed from the date when a vacancy
in that year arises in the quota of Assistant Engineers and not on a notional
basis from 1st January of that year. What the decision in A.K. Subraman's case
requires is that Assistant Engineers promoted as Executive Engineers in excess
of their quota must be pushed down and their promotion must be regularised by
absorption when due within their quota in a subsequent year and therefore they
can be adjusted only in a vacancy which arises in that year and is allocable to
the quota of Assistant Engineers. There is nothing in the decision in A.K.
Subraman's case which warrants that when Assistant Engineers promoted in excess
of their quota are pushed down and absorbed within their quota in a subsequent
year, their absorption should be reckoned nationally from 1st January of that
year. What respondent Nos. 1 to 3 have done is that all Assistant Engineers who
had been promoted in excess of their quota and who having been pushed down were
entitled to be absorbed within their quota in a particular year, are treated as
absorbed from 1st January of that year and placed en bloc senior to the
Assistant Executive Engineers promoted tn that year within their quota. There
can be no doubt that respondent Nos. 1 to 3 were not entitled to determine
seniority on this basis. This Assistant Engineer promoted in excess of their
quota and therefore pushed down for absorption within their quota in a
subsequent year could be absorbed only in a vacancy arising in that year and
allocable to the quota of Assistant Engineers.
902 Re: Ground B This ground of challenge is
clearly unsustainable and must be rejected. It is true that the Rules of 1976
have been brought into force with effect from 10th December, 1974 but in rules
2(iii) and 2 (iv) they lay down a rule of seniority affecting Assistant
Engineers and Assistant Executive Engineers promoted as Executive Engineers
regularly within their respective quota from and after 22nd December, 1959. It
is therefore not possible to say as a matter of plain grammatical construction
that the Rules of 1976 cannot affect the petitioners and other Assistant Engineers
promoted regularly within their quota prior to 10th December, 1974. The
question would however remain whether Rules 2 (iii) and 2 (iv) of the Rules of
1976 in so far as they lay down a rule of seniority different from the rule of
length of continuous officiation for Executive Engineers promoted from and
after 22nd December, 1959, are constitutionally valid. This is the question
which we shall proceed to consider under Ground C.
Re: Ground C.
We have already pointed out that though the
Rules of 1976 have been brought into force with effect from 10th December 1974,
they do not have the effect of over-riding the decision in A.K. Subraman's case
directing the Government to amend and revise the seniority list so as to fix
inter se seniority between Assistant Engineers and Assistant Executive
Engineers promoted regularly within their respective quota up to 11th December
1974, by applying the rule of seniority based on length of continuous
officiation. On this view, Rules 2(iii) and 2(iv) of the Rules of 1976, in so
far as they provide for seniority being given en bloc to the Assistant
Executive Engineers promoted to the 86 carried forward posts of Executive
Engineers and apply the rotational formula for the purpose of determining
seniority amongst Assistant Engineers and Assistant Executive Engineers
promoted to the subsequent vacancies, must be held to be ineffective qua
Assistant Engineers & Assistant Executive Engineers promoted upto 11th
December, 1974 and so far as these Assistant Engineers and Assistant Executive
Engineers are concerned, their inter se seniority must be held to be governed
by the length of continuous officiation in the grade of Executive Engineers.
But the question would still survive whether inter se seniority between
Assistant Engineers and Assistant Executive Engineers promoted subsequent to
11th December, 1974 would have to be determined in accordance with the
rotational rule of seniority set out in Rule 903 2(iv) or this rotational rule
of seniority is unconstitutional and void as offending Articles 14 and 16 of
the Constitution It may also be considered in the alternative, on the
assumption that Rules 2(iii) and 2(iv) of the Rules of 1976 govern the
determination of inter se seniority between Assistant Engineers and Assistant
Executive Engineers promoted from and after 22nd December, 1959 despite the
decision in A.K. Subraman case, whether these rules can successfully meet the
challenge of Article 14 and 16 or they wold be liable to be condemned as
constitutionally invalid.
We may first consider the constitutional
validity of Rules 2(iii) and 2(iv) of the rules of 1976 in so far as they
affect the inter se seniority of Assistant Engineers and Assistant Executive
Engineers promoted regularly within their respective quota from and after 22nd
December, 1959.
Now the position which obtained on 22nd
December 1959 was that there were 86 Assistant Engineers who had been promoted
in excess of their quota and correspondingly there was short-fall of 86 in
promotions of Assistant Executive Engineers. We are not sure whether in the
light of what we have said above, the excess in promotions of Assistant
Engineers and the deficiency in promotions of Assistant Executive Engineers
would stand reduced, but that would not make any difference so far as the
present question is concerned and we shall therefore proceed on the footing
that the excess in promotions of Assistant Engineers and the short-fall in
promotions of Assistant Executive Engineers was 86. The question is whether,
consistently with the constitutional requirement of Articles 14 and 16, en bloc
seniority could be given to the Assistant Executive Engineers promoted to fill
the 86 vacancies allocable to the quota of Assistant Executive Engineers and
remaining unfilled by them up to 22nd December 1959. These 86 vacancies were
under Rule 2(iii) directed to be carried forward and filled by Assistant
Executive Engineers promoted on or after 22nd December 1959 and the Assistant
Executive Engineers no promoted were given seniority en bloc. The petitioners
objected to this provision in Rule 2(iii) for carry forward of these 86
vacancies and contended that there could be no carry forward of any vacancies
which were not filled by Assistant Executive Engineers and so promotions of
Assistant Executive Engineers could be made to fill such vacancies as from the
date when they arose in any particular year. This objection raised on behalf of
the petitioners is partly sustainable and partly not. Where the quota rule is a
statutory rule which has to be scrupulously observed, the vacancy which
according to the quota rule is allocable to promotees 904 from one source
cannot be filled by a promotee from another source and if, notwithstanding the
quota rule, the vacancy is filled by a promotee from that other source, such
promotion would be irregular and as pointed out above, the vacancy would
continue to remain a vacancy liable to be filled by a promotee from the first
mentioned source. It would not be strictly accurate to say that in such a case
the vacancy is carried forward in the sense in which that expression has been
used in T. Devdasan v. Union of India.
It was pointed out by this Court in Mervin
Coutinhs v. The Collector of Customs, Bombay : ".....in the case of the
carry forward rule certain quota is fixed annually for a certain class of
persons and it is carried forward from year to year. This is very different
from a case where a service is divided into two parts and there are two sources
of recruitment, one of promotion and the other by direct recruitment. In such a
case the whole cadre of a particular service is divided into two parts and
there is no question of carrying anything forward from year to year in the
matter of annual intake". These observations were quoted with approval by
a Bench of Five Judges of this Court in G.D.
Kelkar v. Chief Collector of Imports and
Exports. What therefore happens in such a case is that the vacancy which is pro
tempore irregularly occupied by a promotee from another source remains
available for being filled by a promotee from the source to which the vacancy
belongs and in that sense, it may loosely be said that the vacancy is carried
forward from the year in which it arose to a subsequent year in which it is
properly filled by a promotee from the right source. This is precisely what
Ray, C.J.
speaking on behalf of the Court in V. S.
Badami v. State of Mysore said at page 823 of the Report:
"........ if promotions are made to
vacancies in excess of the promotional quota, the promotions may not be total
illegal but would be irregular. The promotees cannot claim any right to hold
the promotional posts unless the vacancies fall within their quota. If
promotees occupy any vacancies which are within the quota of direct recruits
when direct recruitment takes place the direct recruit will occupy the
vacancies within their quota. Promotees who were occupying the vacancies within
the quota of direct recruits will 905 either be reverted or they will be
absorbed in the vacancies within their quota in the facts and circumstances of
a case." We must therefore hold that Respondent Nos. 1 to 3 were right in
proceeding on the basis that 86 vacancies allocable to the quota of Assistant
Executive Engineers remained unfilled as on 22nd December, 1959 and were
available for being filled by Assistant Executive Engineers subsequent to that
date.
But the question arises whether the Assistant
Executive Engineers promoted to fill these 86 vacancies which were, to use the
expression in Rule 2(iii), carried forward from the period prior to 22nd
December 1959 could be deemed to have been promoted from the dates when these
86 vacancies arose or they could be said to have been promoted only from the
dates of their actual appointment. Now obviously there could not be any
appointment of Assistant Executive Engineers to these 86 vacancies with
retrospective effect and they must be taken to have been promoted to these 86
vacancies only from the dates of their actual appointment and from no earlier
dates. If that be so, it is difficult to appreciate how, consistently with the
mandate of Articles 14 and 16 of the Constitution, an Assistant Executive
Engineer appointed to one of these 86 vacancies could under Rule 2(iii) be
given seniority as if he were promoted to that vacancy on 22nd December 1959,
though he might in fact have been promoted years later and on this basis given
precedence over Assistant Engineers promoted regularly within their quota long
prior to the actual promotion of such Assistant Executive Engineer. The
consequence of giving effect to Rule 2(iii) providing en bloc seniority to the
Assistant Executive Engineers promoted to fill these 86 vacancies would be that
a large number of Assistant Engineers though promoted regularly within their
quota years before the actual promotion of such Assistant Executive Engineers
would become junior to such Assistant Executive Engineers and their promotional
opportunities would be seriously prejudiced In fact, they would have to wait
until the Assistant Executive Engineers promoted to these 86 vacancies were
promoted further as Superintending Engineers and then only they would have a
chance of being considered for further promotion and even such chance would
recede and be reduced to almost nil if the rotational rule of seniority were to
be applied in respect of promotions to subsequent vacancies as set out in Rule
2(iv). This would become amply clear if we look at the chart Annexure I to the
writ petition which reproduces the seniority list dated 14th August 1975 along
with other particulars relating 906 to the Assistant Engineers and Assistant
Executive Engineers promoted as Executive Engineers. The Assistant Executive
Engineers promoted to these 86 'carried forward' vacancies figure in the
seniority list dated 14th August 1975 at Sr. Nos. 100 to 185 and the particulars
given in regard to them in the chart Ex. I show that though the Assistant
Executive Engineers at Sr. Nos. 122 to 185 were promoted as Executive Engineers
after 1962, they were placed higher in seniority than petitioner No. 1 who was
as Assistant Engineer promoted as Executive Engineer and absorbed within his
legitimate quota in 1962 and so also the Assistant Executive Engineers at Sr.
Nos. 173 to 185 though promoted after 1966 were given seniority above
petitioner No. 2 who was an Assistant Engineer promoted as Executive Engineer
and absorbed within his lawful quota in 1966, Rule 2(iii) in so far as it gives
en bloc seniority to the Assistant Executive Engineers promoted to these 86
vacancies irrespective of the date when they were actually promoted and pushes
down in seniority Assistant Engineers though promoted regularly within their
quota prior to the actual promotion of such Asstt. Executive Engineers, thereby
prejudicially affecting their promotional opportunities, must therefore be held
to be violative of Articles 14 and 16 of the Constitution.
We find that rule 2(iv) also suffers from the
same infirmity. It provides for rotational rule of seniority based on the
prevailing quota for determining inter se seniority between Assistant Engineers
and Assistant Executive Engineers promoted to the grade of Executive Engineers
from and after 22nd December 1959 subject to en bloc seniority being given to
the Assistant Executive Engineers promoted to the 86 'carried forward'
vacancies as set out in Rule 2(iii). Obviously, if Rule 2(iii) providing for en
bloc seniority to be given to the Assistant Executive Engineers promoted to the
86 'carried forward' vacancies is unconstitutional and void as held by us in
the preceding paragraph of this judgment, it must follow that the inter se
seniority between Assistant Engineers and Assistant Executive Engineers
promoted from and after 22nd December 1959 would be governed wholly by the
rotational rule of seniority set out in Rule 2(iv). Now there can be no doubt
that a rule of seniority based on rotation of vacancies according to the quota
prevailing at the time would be constitutionally acceptable if the quota rule
were strictly implemented, barring minor deviations. It is well settled as a
result of several decision of this Court that there is nothing inherently wrong
in working out the quota rule by adopting the rotational rule of seniority.
But, as pointed out by this Court in 907 N.K Chauhan v. State of Gujarat
(supra) quota is not 'so inter-locked with rota that where the former is
expressly prescribed, the latter is impliedly inscribed". The quota rule
does not inevitably invoke the application of the rotational rule of seniority.
Even where a quota is prescribed for recruitment from different sources, there
may be different modes prescribed for determining seniority of officers on
entry into the cadre. In fact, right from 25th August, 1949 when the quota rule
was introduced upto 22nd December, 1959, the seniority amongst Assistant
Engineers and Assistant Executive Engineers promoted as Executive Engineers was
governed not by the rotational rule by but the length of continuous
officiation. It is therefore obvious that even where there is a quota rule
governing recruitment to a cadre from different sources it is not necessary
that there should be any particular rule of seniority. The Government may in
its wisdom adopt an appropriate rule of seniority which may be based on length
of continuous officiation or may follow a roster arranged in conformity with
the quota rule so that seniority may be determined according to the rotation of
vacancies under the quota rule.
There may also be any other appropriate rule
for determining seniority in a cadre. Indeed, as pointed out by Krishna Iyer,
J. in N.K. Chauhan's case, myriad ways can be conceived "for determining
seniority of officers on entry into a cadre." But whatever may be the rule
of seniority adopted by the Government, it is well settled that it must satisfy
the best of equality enshrined in Articles 14 and 16 of the Constitution. The
question in each case would be whether on the facts and circumstances of the
case, the rule of seniority prescribed by the Government meets the challenge of
the constitutional provision enacted in Articles 14 and 16.
We have already pointed out that there is no
inherent vice in the quota rule being operated through the rotational rule of
seniority. Where the rotational rule of seniority is adopted, the relative
seniority of promotees from different sources has to be determined on the basis
of a roster maintained in accordance with the quota rule, so that when
promotion of an officer is regularly made within his quota, he is fitted into
the vacancy reserved for promotees from his source and his seniority is
reckoned from the date when such vacancy arose. But this rotational rule of
seniority can work only if the quota rule is strictly implemented from year to
year. Some slight deviations from the quota rule may not be material but as
pointed out by Palekar, J. in the Bishan Swarup Gupta's case, "if there is
enormous deviation, other considerations may arise". If the rotational
rule of seniority is to be applied for determining seniority amongst officers
promoted from different sources, the quota rule must be observed. The
application of the rotational rule of seniority when there is large deviation
from the quota rule in making promotions is bound to create hardship and
injustice and result in impermissible discrimination. That is why this court
pointed out in A. K. Subarmans's case that "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 ............ It is the unreasonable
implementation of the same which may, in a given case, attract the frown of the
equality clause." The rotational rule of seniority is inextricably linked
up with the quota rule and if the quota rule is not strictly implemented and
there is large deviation from it regularly from year to year, it would be
grossly discriminatory and unjust to give effect to the rotational rule of
seniority.
We agree wholly with the observation of D.A.
Desai, J. in A. Janardhan v. Union of India that "the quota rule is linked
with the seniority rule; if the first breaks down or is illegally not adhered
to, giving effect to the second would be unjust, iniquitous and improper".
This was precisely the reason why the Court in the first Bishan Sarup Gupta's
case held that with the collapse of the quota rule, the rule of seniority set
out in Rule 1(f) (iii) also went.
Now in the present case the record shows that
there has been enormous deviation from the quota rule in the promotions of
Assistant Executive Engineers and such deviation has continued from year to
year over a period of almost 25 years. We have in an earlier part of this
judgment adverted to the fact that as on 22nd December, 1959 there was a short
fall in the promotions of Assistant Executive Engineers to the extent of 86,
because the quota rule had not been properly implemented from 1953 up to 22nd
December, 1959 and promotions of Assistant Executive Engineers had not been
effected according to the quota applicable to them. It is interesting to note
that even after 22nd December, 1959, the quota was consistently breached from
year to year except for four or five years and there was massive under
recruitment of Assistant Executive Engineers with the result that as on 31st
July, 1975, the cumulative shortfall in promotions of Assistant Executive
Engineers was 206 while there was corresponding excess in promotions of
Assistant 909 Engineers to the extent of the same number. Though there was such
large deficiency in promotions of Assistant Executive Engineers and
corresponding excess in promotions of Asstt. Engineers upto 31st July, 1975, no
attempt was made by the Government to set right this imbalance by stepping up
the recruitment of Assistant Executive Engineers in the subsequent years so as
to restore the balance in the composition of the cadre of Executive Engineers.
On the contrary, the under recruitment of Assistant Executive Engineers
continued uninterrupted and by the end of 1981 the short-fall in the promotions
of Assistant Executive Engineers increased to 247 with corresponding excess in
the promotions of Assistant Engineers. This enormous deviation from the quota
rule on account of massive under recruitment of Assistant Executive Engineers has
led to grave distortion and it is difficult to see how, in this situation, the
rotational rule of seniority can be applied consistently with the mandate of
equality enshrined in Articles 14 and
16. The rotational rule of seniority must
obviously break down when there is such massive departure from the quota rule
regularly from year to year leading to continuously increasing deficiency in
promotions of Assistant Executive Engineers and corresponding excess in
promotions of Assistant Engineers.
It is obvious that by reason of
under-recruitment of Assistant Executive Engineers and over-recruitment of
Assistant Engineers in breach of the quota rule over a period of almost 25
years, most of the Assistant Engineers having been promoted in excess of their
quota would have to be pushed down to subsequent years when they could be
absorbed within their lawful quota and many of them would have to wait for 7 to
12 years on an average before their promotions could be regularised by
absorption within their quota. But, despite regularisation of their promotions
after a wait of seven to twelve years, they would not be entitled to claim
seniority over Assistant Executive Engineers promoted later in point of time
because by reason of the application of the rotational rule of seniority based
on the roster maintained in accordance with the quota rule, the Assistant
Executive Engineers though promoted subsequently would be entitled to have
their seniority reckoned from the date when the vacancy allocable to their
quota arose. The Assistant Executive Engineers though promoted long after the
regularisation of the promotion of the Assistant Engineers would gain seniority
over such Assistant Engineers, because they would be fitted into the vacancies
kept reserved for them and artificial seniority would be given to them on 910
the fictional hypothesis that such vacancies were filled by them at the time
when they arose. The result would be that Assistant Executive Engineers who
were promoted years after the regularisation of the promotions of Assistant
Engineers by absorption within their quota which regularisation also would have
taken place after they had been working as Executive Engineers for a period of
about 7 to 12 years would become senior to such Assistant Engineers even though
at the time when they were promoted, such Assistant Engineers would have
already been functioning as Executive Engineers for a number of years. The
Assistant Executive Engineers promoted later in point of time would shoot up in
seniority irrespective of the length of their service in the grade of Executive
Engineers, by reason of the rotational rule of seniority based on the roster
maintained in accordance with the quota rule. It is obvious that giving such
artificial seniority to Assistant Executive Engineers promoted years after the
regular promotions of Assistant Engineers would completely blight the
promotional opportunities of such Assistant Engineers, because for promotion to
the higher grade of Superintending Engineers, they would have to wait for consideration
of their case until the Assistant Executive Engineers who are given artificial
seniority over them are promoted, even though they would have put in a much
longer period of service as Executive Engineers than such Assistant Executive
Engineers.
The point we are making would become obvious
if we consider a few illustrative instances. Take, for example, the case of
petitioner No. 1. He was promoted as Executive Engineers on 1st October, 1956
but since his promotion was outside the quota of Assistant Engineers, he had to
be pushed down and he was ultimately absorbed within his lawful quota in 1962
and though he became a regular promotee within his quota since 1962, he was
placed at serial No. 273 in the seniority list dated 14th August 1975 while
many Assistant Executive Engineers promoted much later in point of time than
1962 were placed higher than him in seniority. The result was that he never got
a chance for being considered for promotion as Superintending Engineer and he
ultimately retired as Executive Engineer on 31st January, 1978. The case of
petitioner No. 1 may now be contrasted with that of J.P. Singhal, who was
recruited as Assistant Executive Engineer on 1st February, 1967 and who was
promoted as Executive Engineer on 14th January, 1972. Though J.P. Singhal was
not even in service at the date when petitioner No. 1 became a regular promotee
Executive Engineer in 1962 and he was promoted as Executive Engineer almost ten
years after the regular promotion of petitioner No. 1 by absorption within his
quota, J.P. Singhal was placed in seniority at Sr. No. 113 while, as pointed
out 911 above, petitioner No. 1 was placed at Sr. No. 273 in the seniority list
dated 14th August 1975, with the result that J.P. Singhal came to be promoted
as Superintending Engineer on 15th February 1979 while petitioner No. 1 did not
even have a chance of being considered for such promotion.
Similarly we may also contract the case of
petitioner No. 2 with that of R.A. Armugam. Petitioner No. 2 was promoted as
Executive Engineer on 7th April, 1959 but since his promotion was not within
the quota of Assistant Engineer, he had to be pushed down and he was ultimately
absorbed within his quota in 1966 and though he was regularly promoted as
Executive Engineer within his quota since 1966, he was placed at serial No. 396
in the seniority list dated 14th August, 1975 while R.A. Armugam who was
recruited for the first time as Assistant Executive Engineer on 20th January
1971 and promoted as Executive Engineer only on 14th April, 1975 was placed
higher in seniority at serial No. 260. Thus, the result of the application of
the rotational rule of seniority was that R.A. Armugam who was not even in
service at the date when petitioner No. 2 became a regularly promoted Executive
Engineer and who was promoted as Executive Engineer 9 years after petitioner
No. 2, acquired several places above petitioner No. 2 in seniority. It is not
necessary for us to multiply instances where Assistant Executive Engineers
promoted years after the regular promotion of Assistant Engineers have shot up
in seniority above such Assistant Engineers by reason of the applicability of
the rotational rule of seniority, with devastating effect on the promotional
chances of such Assistant Engineers. Such instances are legion and, in fact,
almost every Assistant Engineer has in the process suffered loss of seniority
vis-a-vis Assistant Executive Engineers promoted years later in point of time.
The application of the rotational rule of seniority has thus resulted in gross
discrimination against Asstt. Engineers promoted as Executive Engineers, in so
far as their opportunities for promotion to the higher grades are concerned.
The seed of discrimination attracting the frown of the equality clause has
germinated from the fact of regular undue deviation in actual implementation of
the quota rule and obviously the deviation from the quota rule, the greater and
more intense is the discrimination. We have already pointed out the enormity of
the deviation from the deviation from the quota rule in the present case and
this deviation continued from year to year for a period of over 25 years has
considerably aggravated the discrimination against the Assistant Engineers.
912 Now it is obvious that if Assistant
Executive Engineers recruited at a young age are given artificial seniority
several years above the Assistant Engineers who have already been pushed down 7
to 12 years before absorption within their lawful quota, they would get chances
of promotion much earlier than the Assistant Engineers and once promoted, they
being young in age would occupy the posts in the higher grades for a much
longer period and that to a large extent block the chances of promotion of
Assistant Engineers even when their turn comes for consideration though at a
much belated point of time. If officers from two sources are promoted according
to quota, then officers from both sources get promotion to posts in the higher
grade on the basis of continuous officiating service in the grade, reckoned
from the initial date of appointment subject, of course, to merit and this
process goes on continuously due to progressive retirement of officers in the
higher grades, such officers being of an appropriate higher age group. But if,
as in the present case, relatively younger officers drawn from one source are
given artificial seniority over older officers promoted from the other source,
such younger officers would, by the reason of the artificial seniority given to
them progressively occupy most of the posts in the higher grades and because
they belong to a younger age group, they would block the promotional avenues
open to the officers drawn from the other source. This disastrous situation has
occurred here because of the rotational rule of seniority and the result is that,
as at the end of 1981, out of 101 Superintending Engineers 93 were from the
source of Assistant Executive Engineers and so far as the higher cadre of Chief
Engineers is concerned, all the 19th Chief Engineers were from the same source,
namely, Assistant Executive Engineers, though in the grade of Executive
Engineers, out of a total of 384 Executive Engineers, 103 only were from the
source of Assistant Executive Engineers while 281 were from the source of
Assistant Engineers. These statistics clearly highlight how discriminatory and
unjust has been the application of the rotational rule of seniority to the
Assistant Engineers.
It was contended on behalf of respondent Nos.
4 to 190 that the under recruitment of Assistant Executive Engineers during the
period from 1949 to 31st July, 1975 was due to the fact that the Government
took the view, which of course was found erroneous by the court in A.K.
Subraman's case that the quota rule was to be applied only at the stage of
confirmation and it was because a different view was taken in A.K. Subraman's
case, namely, that the 913 quota rule was applicable at the stage of initial
promotion in an officiating capacity to the grade of Executive Engineers and
not at the time of confirmation that this imbalance in seniority took place.
This contention is clearly unfounded but even if it were not so, it is entirely
immaterial, because the constitutional validity of the rotational rule of
seniority cannot depend upon what the government thought to be the correct
position in regard to the applicability of the quota rule. The question whether
the rotational rule of seniority is constitutionally valid or not has got to be
determined in the light of the interpretation placed on the application of the
quota rule by the decision in A.K. Subraman's case, because that must be
accepted as the correct interpretation and in the context of that
interpretation, the constitutional validity of the rotational rule of seniority
must be judged. But, as pointed out above, we do not think this contention
urged on behalf of respondent Nos. 4 to 190 is correct. We are not inclined to
accept the submission of respondent Nos. 4 to 190 that under-recruitment of
Assistant Executive Engineers took place because the government thought that
the quota rule was to be applied only at the stage of confirmation. There is
considerable material placed before the court to show that the government
rightly understood the quota rule to be applicable at the stage of initial
promotion but failed to strictly implement it. Paragraph 4 of the minutes of
the meeting held on 14th May, 1968 in the office room of Shri B.R. Patel,
Secretary, Ministry of Works and Supply, clearly emphasizes this position by
stating that "the intake of Assistant Executive Engineers should be increased
by considering 2/3rd of all the temporary and deputation posts in the grade of
Executive Engineers and above in the department as permanent ones for the
purpose of working out the strength at the junior scale." So also we find
a categorical statement to the same effect in the letter dated 19th October,
1971 addressed by Shri Kartar Singh, Joint Secretary to the Government of
India, Ministry of Works and Housing a letter to which we have already referred
earlier.
The Government also took up a positive stand
in the affidavit in reply filed by P.B. Kulkarni in A.K. Subraman's case where
it was stated: "I submit that the quota rule is to be applied as and when
vacancies in the grade of Executive Engineers are required to be filled but as
already stated earlier, it has not been possible to apply this quota rule
rigidly at the time of officiating promotions as promotions from the grade of
Assistant Engineers have been in excess of their quota." (Emphasis
supplied). It will thus be seen that the government was under no illusion in
regard to the true position relating to the applicability of the quota rule.
But the government deliberately resorted to the policy of under- 914
recruitment of Assistant Executive Engineers because, as set out in the Note
regarding Cadre Review of the Central Engineers Service Class I, prepared and
submitted to the Government in June, 1978, it was felt that "it is not
possible to recruit enough officers in Class I junior scale to fill up the
quota at Executive Engineers level as it would worsen the promotion prospects
of direct recruits to class I and make the service totally unattractive".
The Note regarding Cadre Review also pointed out:
"A perusal of form VI would indicate
that in the next five years the annual recruitment would be of the order of 80
and in the subsequent five years it would be of the order of 40. According to
the existing Rules, the vacancies in the grade of Executive Engineers are to be
filled up by the promotion of Asstt. Executive Engineers (Group A) and Asstt.
Engineers (Group B) in the ratio of 1 : 1 Since the annual intake of Asstt. Executive
Engineers is to be co-related with the vacancies that would be available in the
grade of Executive Engineers, the annual intake of Asstt. Executive Engineers
(CES GROUP A) would be 40 in the next five years and 20 in the subsequent five
years. It has been already explained in para 2 : 3 : 6 that when the annual
recruitment was less than 10, the direct recruits were able to reach the Junior
Administrative grade in 10 to 11 years. When this was subsequently increased to
20 per annum the period taken for promotion has increased to 14 years which is
likely to increase further if the annual intake is maintained at the same
level. For this reason, it is not considered desirable to appoint direct
recruits to C.E.S. Group A in large number. In the Indian Railways Service of
Engineers, the recruitment to the Junior Scale in Group 'A' is related to the
number of posts at the level of Chief Engineer and above and the annual intake
has generally been less than the number of posts of Chief Engineers. In the
CPWD we have only 12 posts of Chief Engineers and it is, therefore, recommended
that the annual intake to Junior Scale Class I through UPSC competitive
Examination should be restricted to 10 only." There can be no doubt that
the failure to recruit Assistant Executive Engineers in sufficient numbers, so
that when vacancies in the grade of Executive Engineers allocable to the quota
of Asstt. Executive Engineers arose from year to year, there would be Asstt 915
Executive Engineers available for promotion to fill such vacancies, was
responsible for the gross distortion which took place in the cadre of Executive
Engineers over the years.
We must in the circumstances hold that Rules
2(iii) and 2(iv) of the Rules of 1976 are violative of Articles 14 and 16 of
the Constitution and they must be declared to be unconstitutional and void. It
that be so, then obviously the seniority between Assistant Engineers and
Assistant Executive Engineers regularly promoted within their respective quota
must be determined by the length of continuous officiation in service in the
grade of Executive Engineers, subject to the qualification that in case of
Assistant Engineers the length of continuous officiation shall be reckoned from
the date when their promotion is regularised by absorption within their lawful
quota.
We would therefore allow the writ petition
and quash and set aside the Memorandum and the seniority list dated 14th August
1975 and the Rules of 1976. We would direct the government to prepare a new
seniority list of Executive Engineers in the light of the observations
contained in this judgment. The Government will prepare such seniority list
within a period of two months from today. When the seniority in the grade of
Executive Engineers is rearranged in accordance with the directions given in
the judgment, the cases of Assistant Engineers who would have been due for
consideration for promotion as Superintending Engineers and thereafter as Chief
Engineers on the basis of their revised seniority, will be considered by a duly
constituted Departmental Promotion Committee as on the dates on which they
would have been due for such consideration if the correct seniority had been
given to them, and if on the basis of their performance and record as on those
dates they would have been selected for promotion, they must be given promotion
with retrospective effect from such dates and if necessary, supernumerary posts
in the grades of Superintending Engineers and Chief Engineers shall be created
for the purpose of accommodating them and all arrears of salary and allowances
shall be paid to them on the basis of such retrospective promotions. We may
make it clear that those Assistant Executive Engineers who have been promoted
as Superintending Engineers or Chief Engineers up to the date of this judgment
shall not, on account of revised seniority in the grade of Executive Engineers,
be disturbed from the positions which they are occupying at present but their
seniority in such higher grades will 916 have to be rearranged on the basis of
the directions given in the judgment.
We hope and trust that this judgment will put
a quietous to the long ranging controversy between Assistant Engineers and
Assistant Executive Engineers. The writ petition will stand disposed of in the
above terms with no order as to costs.
S.R. Petitions allowed.
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