Direct
Recruit Class II Engineering Officers' Association an Vs. State of Maharashtra
& Ors [1990] INSC 173 (2 May 1990)
Sharma,
L.M. (J) Sharma, L.M. (J) Ramaswamy, K. Mukharji, Sabyasachi (Cj) Pandian, S.R.
(J) Sawant, P.B.
CITATION:
1990 AIR 1607 1990 SCR (2) 900 1990 SCC (2) 715 JT 1990 (2) 264 1990 SCALE
(1)839
CITATOR
INFO : APL 1991 SC 235 (6) F 1991 SC 284 (1,2,24,29) F 1991 SC1134 (10,12) D
1991 SC1406 (26) RF 1991 SC1818 (5) R 1992 SC 410 (10) D 1992 SC 922 (16) R
1992 SC1188 (7) D 1992 SC2074 (7)
ACT:
Constitution
of India, 1950: Articles 14, 16 and
309--Rules relating to seniority of Maharashtra Service of
Engineers----Validity of.
Articles
32 and 226--Constructive Res judicata--Applicabili- ty of. Labour and Services:
Reorganised Bombay State Overseas and Deputy Engineers Seniority Lists Rules
1978/Maharashtra Service Engineers (Regulation of Seniority and Preparation and
Revision of Seniority Lists for specified period) Rules, 1982/Executive
Engineers and Assistant Engineers belonging to the Maharashtra Service of
Engineers Class I and Class H (Regulation and Revision of Seniority Lists)
Rules 1983/1984--Whether violative of Articles 14 and 16 of the Constitution of
India.
Seniority
and promotion--Direct recruits and promotees--interse seniority--To be counted
from date of appointment, not confirmation--Ad-hoc appointment--Officia- tion
in such post--Cannot be taken into account for consid- ering seniority.
Quota
rule--Absence of statutory rule--Can be prescribed by executive instruction--To
be followed strictly--Consec- utive nonadherence--Effect of.
Civil
Procedure Code, 1908: Section 11, Explanation IV--Res judicata--Applicability
to writ cases.
HEAD NOTE:
The
parties in these matters are Engineers in the em- ployment of the States of Maharashtra
and Gujarat. In 1937, Government of Bombay
created two new Provincial Engineering Services known as the Bombay Engineering
Service Class I consisting of posts of Chief Engineer, SUperintending Engi- neers,
ExecUtive Engineers and Assistant Engineers Class I, and the Bombay Engineering
Service Class II 901 having officers designated as Deputy Engineers. All the
posts were permanent.
In
1939, Rules were made for regulating the methods of recruitment to the said
services which directed the recruit- ment to be made either by nomination from
amongst the stu- dents of the College of Engineering, Pune or by promotion of
officers holding inferior posts. A resolution was passed on 21.11.1941 for
determination of the seniority of the direct recruits and the promotee
officers, containing only two rules. Rule 2 thereof was to the effect that in
case of officers promoted to substantive vacancies, the seniority would be
determined with reference to the date of their promotion to the substantive
vacancies.
In
1960, detailed rules for recruitment to Class I and Class 1I Services were
framed. In place of nomination from the successful students of College of Engineering, Pune as direct recruits, these Rules prescribed for a
competitive examination to be held by the Public Service Commission, and
introduced a quota system by fixing a ratio of appointments of direct recruits
and promotees. The Rules also made refer- ence to promotion, as Executive
Engineers on officiating basis, and temporary Deputy Engineers and officiating
Deputy Engineers. By r. 8 the posts of Deputy Engineers were re- organised, and
by sub-rule (iii) it was provided that the direct recruits in any year shall in
a bunch be placed senior to promotees confirmed during that year. A review of
these Rules was later undertaken by the Government and ultimately in partial supersession
thereof a fresh set or rules, were adopted in 1970.
In the
meantime, however, a serious dispute in regard to the interpretation of one of
the provisions of the 1960 Rules arose which was settled by this Court in the
case of P.Y..Joshi and Others v. The State of Maharashtra and Oth- ers, [1970] 2 SCR 615.
During
the period 1960-70 adequate number of direct recruits were not available, and a
large number of promo- tees, therefore, had to be appointed to officiate as
Deputy Engineers on continuous basis. These appointments were made after
following the procedure applicable to regular promo- tions, including
consultation with the Public Service Com- mission. The strength of the permanent
Deputy Engineers was fixed at the total number of (a) the Deputy Engineers con-
firmed up to the date of commencement of the Rules, (b) direct recruits to the
posts of Deputy Engineers appointed till the date of commencement of the Rules,
and (c) the Deputy Engineers officiating on 30.4.1960; and it was pro- vided
that no fresh appointments in future would be made to 902 this cadre and the
vacancies arising would be transferred to the officers holding subordinate
posts detailed in the sub- rule in proportions indicated. As per rule 33 of the
1970 Rules, the seniority list in each cadre in Class I and Class II was to be
prepared in two parts one for the confirmed officers and other for those who
were not confirmed; and that the confirmed officers would be treated as senior
to the unconfirmed officers. Since the direct recruits were all appointed
against the permanent posts, they were reckoned to be senior to the officiating
Deputy Engineers irrespective of the period for which they had been working continuously
on the Deputy Engineer's posts. Though the Rules were amend- ed in 1972, there
was no departure from the main scheme especially the principle governing
seniority.
In
pursuance of the 1970 Rules seniority lists were prepared. The validity of r. 8(iii)
of the 1960 Rules and of r. 33 of the 1970 Rules was successfully challenged as
being violative of Articles 14 and 16 of the Constitution. S.B. Patwardhan and
Ors. v. State of Maharashtra and Ors.., [1977] 3 SCR 775.
In
view of the judgment in Patwardhan's case, it became necessary to prepare fresh
seniority lists. Rules were framed under Article 309 of the Constitution read
with s. 81(6) of the Bombay Reorganisation Act, 1960, and were called the Re-organised
Bombay State Overseers and Deputy Engineers Seniority Lists Rules, 1978.
In
1981 further rules called Re-organised Bombay State Assistant Engineers and
Executive Engineers Seniority Lists Rules,. 1981, were flamed laying down the
rule of determina- tion of seniority of the Assistant Engineers and the Execu- tive
Engineers for the period 1.11.1956 to 30.4.60. These rules have been
successfully challenged in the High Court.
The
main Rules which are the subject matter of the present cases were framed in
1982 under Article 309 of the Constitution laying down the principle for fixing
the sen- iority for the period dated 1.5.1960 to 20.12.70 and are called the Maharashtra
Service of Engineers (Regulation of Seniority and Preparation and Revision of
Seniority Lists for Specified Period) Rules, 1982. These rules were framed in
view of the decision of the Bombay High Court in S.B. Patwardhan's case. By
including two rules therein--Rules 4 and 9, deleted later--fixing rigid quota
with retrospective effect, attempt was made to neutralise the 903 decision and
rob the promotees the benefit of their continu- ous officiation.
For
the purpose of fixing the seniority of Executive Engineers and Assistant
Engineers for the period commencing from 21.12.1970, separate rules were framed
under Article 309 of the Constitution and are called the Executive Engi- neers
and Assistant Engineers belonging to the Maharashtra Service of Engineers Class
I and the Maharashtra Service of Engineers Class II (Regulation of Seniority
and Preparation and Revision of Seniority Lists) Rules, 1983. As a result of a
decision of the High Court striking down Sections 4 and 9 of the 1982 Rules,
the 1984 Rules were framed by the Govern- ment.
The
present appeals, special leave petitions and Writ Petitions challenge the
validity of the Rules framed in 1978, 1982, 1983 and 1984.
Dismissing
all these matters, this Court,
HELD:
1. The period of continuous officiation by a government servant, after his
appointment by following the rules applicable for substantive appointments, has
to be taken into account for determining his seniority; and sen- iority cannot
be determined on the sole 'test of confirma- tion, for, confirmation is one of
the inglorious uncertain- ties of government service depending neither on
efficiency of the incumbant nor on the availability of substantive vacancies.
The principle for deciding inter se seniority has to conform to the principles
of equality spelt out by Arti- cles 14 and 16. If an appointment is made by way
of stop-gap arrangement, without considering the claims of all the eligible
available persons and without following the rules of appointment, the
experience on such appointment cannot be equated with the experience of a
regular appointee, because of the qualitative difference in the appointment. To
equate the two would be to treat two unequals as equal which would violate the
equality clause. But if the appointment is made after considering the claims of
all eligible candidates and the appointee continues in the post uninterruptedly
till the regularisation of his service in accordance with the rules made for
regular substantive appointments, there is no reason to exclude the officiating
service for purpose of seniority. Same will be the position if the initial
appoint- ment itself is made in accordance with the rules applicable to
substantive appointments as in the present case. To hold otherwise will be
discriminatory and arbitrary. [914G-H; 915A-D] S.B. Patwardhan v. State of Maharashtra. [1977] 3 SCR 775; 904 Baleshwar Das
v. State of U.P., [1981] 1 SCR 449; Delhi Water Supply and Sewage Disposal
Committee & Ors. v.R.K. Kashyap & Ors., [1989] Supp. 1 SCC 194 and Narender
Chaddha
2.1 It
is incorrect to say that the 1970 Rules indicate that the officiating posts
were not included in the cadre of the Deputy Engineers. It is true that the use
of word "promotions" in r. 8(i) of the 1960 Rules is not quite
appropriate, but that by itself cannot lead to the conclu- sion that the
officiating Deputy Engineers formed a class inferior to that of the permanent
Engineers. One cannot attribute fixed connotation to the expression 'promotion'
without reference to the context. The expression has been used in the sense of
confirmation. The language used in several other rules is inconsistent with
two-cadre theory, and by way of illustration r. 12(a) may be considered. Rules
5 and 24 of the 1970 Rules mention only 4 cadres in Class II--namely, those of
Sub-Divisional Officers, Sub-Divisional Engineers, Assistant Engineers Class II
and Deputy Engineers and there was no separate cadre of officiating Deputy Engi-
neers. Rule 12(a) of the 1970 Rules expressly includes some of the officiating
Deputy Engineers within the cadre of Deputy Engineers, although it leaves
behind the other offi- ciating Deputy Engineers who started officiating later
than 30.4.1960. Rule 13 speaks of officers "officiating in the erstwhile
cadre of Deputy Engineers" and r. 27 of "officiat- ing
promotions" which are inconsistent with two-cadre theo- ry. In r. 33 of
the 1970 Rules also two lists were directed to be prepared, not cadre-wise but
in each cadre, clearly indicating that the lists were different from cadres. In
r. 8(1) of the 1960 Rules also the different groups were not described as
different cadres. They were referred to as "categories" and what the
re-organisation suggested was with reference to "lists" to be
prepared. It will not, therefore, be right to equate the lists with cadres. It
is true that the Rules have not in express language stated that the officiating
posts also will be in the cadre but if all their relevant provisions are
considered, they unmistakably lead to the said conclusion. [918A-F]
2.2
Questions of vital importance affecting a very large number of officers in the
departments concerned and many disputes have been settled by following the
judgment in Patwardhan's case. In such a situation it is not expedient to
depart from the decision lightly. It is highly desirable that a decision, which
concerns a large number of government servants in a particular service and
which has been given after careful consideration of the rival contentions, is
respected rather than scrutinised for finding out any possi- ble error. It is
not in the interest of 905 the service to unsettle a settled position every now
and then. [918G-H; 919A]
2.3
Even on an independent consideration of the provi- sions of the Rules, and the
relevant materials the temporary posts of Deputy Engineers against which promotees
officiat- ed, did not form a separate cadre and were additions to the main
cadre. These temporary posts were created in pursuance of several resolutions
of the State Government and the language used therein amply supports this view.
[921A-E] S.B. Patwardhan v. State of Maharashtra, [1977] 3 SCR 775 and P.Y. Joshi v.State of Maharashtra, [1970] 2 SCR 615, followed.
State
of Gujarat v.C.G. Desai & Ors., [1974] 2
SCR 255, distinguished.
Baleshwar
Dass v. State of U.P. & Ors., [1981] 1 SCR 449, referred to.
3.1
The quota rule was for the first time introduced by the 1960 Rules. These Rules
were introduced through execu- tive instructions issued by the State
Government. The ratio of 3:1 was fixed for the purpose of
"appointment" and not for the strength in the service. It permitted
the State Government to exercise its discretion according to the demand of the
exigencies, by using the expression "as far as practicable." There is
no reason to so restrict the scope and meaning of the expression "as far
as practicable". The quota rule must he held to be realistic and flexible,
true to life rather than abstractly absolute. [923C-H; 924A-B]
3.2
When recruitment is from more than one source, there is no inherent invalidity
in introducing quota system, but the unreasonable implementation of such a rule
may attract the frown of the equality clause. Further, if a rule fixing the
ratio for recruitment from different sources is framed, it is meant to he
respected and not violated at the whims of the authority. It ought to be
strictly followed and not arbitrarily ignored. This, of course, may not prevent
the Government from making slight deviations to meet the exigen- cies. If it is
discovered that the rule has been rendered impracticable, it should be promptly
substituted by an appropriate rule according to the situation. [925A-C]
3.3 In
the present cases direct recruits were not avail- able in adequate number for
appointment, and appropriate candidates in the 906 subordinate rank capable of
efficiently discharging the duties of Deputy Engineers were waiting in their
queue. The development work of the State peremptorily required experi- enced
and efficient hands. In the situation the State Gov- ernment took a decision to
frill up the vacancies by promo- tion in excess of the quota, but only after
subjecting the officers to the test prescribed by the rules. All the eligi- ble
candidates were considered and the opinion of the Public Service Commission was
obtained. [925D-E]
3.4 If
appointments from one source are made in excess of the quota, but in a regular
manner and after following the prescribed procedure, there is no reason to push
down the appointees below the recruits from the other source who are inducted
in the Service subsequently. The later appoint- ees may have been young
students still prosecuting their studies when the appointments from the other
source take place and it will be highly inequitable and arbitrary to treat them
as senior. Further, in cases where the rules themselves permit the Government
to relax the provisions fixing the ratio, the position for the appointees is
still better; and a mere deviation therefrom would raise a pre- sumption in favour
of the exercise of the power of relaxa- tion. There would he still a third
consideration relevant in this context: namely, what is the conclusion to he
drawn from deliberate continuous refusal to follow an executive instruction
fixing the quota The inference would be that the executive instruction has
ceased to remain operative. In all these cases, the matter would however he
subject to the scrutiny of the Court on the ground of mala fide exercise of
power. All the three circumstances mentioned above which are capable of neutralising
the rigours of the quota rule are present in the cases, and the principle of
seniority being dependant on continuous officiation cannot be held to have been
defeated by reason of the ratio fixed by the 1960 Rules. 1926C-G] P.C. Sethi v.
Union of India, [1975] 3 SCR 201 and N.K. Chauhan v. State of Gujart, [1977] 1 SCR 1037, relied on.
S.B. Patwardhan
v. State of Maharashtra, [1977] 3 SCR 775, affirmed.
P.S. Mahal
v. Union of India, [1984] 3 SCR 847 and V.B. Badami etc. v. State of Mysore
& Ors., [1976] 1 SCR 815, distinguished.
Paramjit
Singh Sandhu v. Ram Rekha & Ors., [1979] 3 SCR 584; 907 A.K. Subraman v. Union of India, [1975]
2 SCR 979; Bishen Sarup Gupta v. Union
of India, [1975] Supp. SCR 491 and S.G. Jaisinghani
v. Union of India & Ors., [1967] 2 SCR 703, referred to.
4. It
is not possible to hold that the principle of seniority being dependant on
continuous officiation will not apply to certain groups of the officers. The
reasons for rejecting the case of the appellants in Patwardhan's case are
equally applicable to all the promoted Deputy Engineers including those who
were earlier Sub-Divisional Engineers and Sub-Divisional Officers, as well as
all the directly recruited Deputy Engineers. The suggested division of the two
groups into further subcategories will result in illegal discrimination.
[929F-G]
5.
Rules 4 and 9 of the 1982 Rules were rightly struck down by the High Court and
consequently the 1984 Rules were correctly framed and have to be upheld as
legal and valid. [930A-B]
6. It
is well established that the principles of res judicata are applicable to Writ
Petitions. A dispute raised by a petition under Article 32 of the Constitution
must be held to be barred by principles of res judicata including the rule of
constructive res judicata underlying Explanation IV of Section 11 of the Code
of Civil Procedure, if the same has been earlier decided by a competent court
by a judgment which became final. [932E; 933D-E] Daryao & Ors. v. State of U.P. & Ors., [1962] 1 SCR 574 and Forward
Construction Co. v. Prabhat Mandal, (Regd.) Andheri & Ors., [1986] 1 SCC
100, relied on. & CIVIL APPELLATE AND WRIT JURISDICTION: Civil Appeals No.
194-202 of 1986. etc.
Appeals
by Certificates from the Judgment & Order dated 9.12.85/17.12.85 of the
Bombay High Court in Writ Petition Nos. 620 of 1984, 2653 of 1984, 394 of 1985,
456 of 1985, 457 of 1985, 183 of 1985, 660 of 1984, 126 of 1985 and 154 of 1985
V.M. Tarkunde, M.C. Bhandare, R.N. Sachthey, S.B. Bhasme, V.A. Bobde, D. Dave,
R. Karanjawala, Ms. Meenakshi Arora, Mrs. Manik Karanjawala, Jitender Sethy,
S.V. Tambwe- kar, M.N. Shroff, A.S. Bhasme, A.M. Khanwilkar, P.G. Gok- hale,
B.R. Aggarwala for the Appellants and J.H Bhatia, Brambhate Petitioners in
person.
908
K.K. Singhvi, T.V.S.N. Chari, Miss Manjula Gupta, Ms. Kitty Kumarmangalam, Ms.
A. Subhashini and V.J. Francis for the Respondents.
S.S. Patvardhan,
Intervener in person.
The
Judgment of the Court was delivered by SHARMA, J. The perpetual rivalry for
seniority in serv- ice between the direct recruits and the promotees has once
more engaged the attention of this Court for several days.
The
dispute which was brought to Court by S.B. Patwardhan in 1972 by a writ
petition in the Bombay High Court and which was supposed to have been finally
settled by the judgment of this Court reported in ( 1977) 3 SCR 775 has been
kept alive by some direct recruits till this date. The events relevant for the
case are spread over a long period and the issues joined by the parties have
been described in the earlier judgments as involving ticklish and complicated
questions of unrivalled complexity with no earlier case comparable. The
position as now stands is that the field of controversy on legal questions has been
considerably narrowed down by the earlier decisions of this Court, but the
relevant facts and the issues to be settled have multiplied by further events
and subsequent rules framed under the Proviso to Article 309 of the
Constitution.
2. For
appreciating the controversy which has to be resolved, a brief survey of
several sets of rules is neces- sary. The parties are Engineers in the
employment of the State of Maharashtra
excepting the petitioners in W.P. Nos. 3947-48 of 1983 who are in Gujarat service. Avoiding the details, the
position may be briefly stated by dividing the entire period into 4 sub-periods
and mentioning the scope of such of the provisions of the rules which have
direct bear- ing on the questions involved in the present cases. By a resolution
of the year 1937 of the Government of Bombay, two new Provincial Engineering
Services described as the Bombay Engineering Service Class I consisting of
posts of Chief Engineer, Superintending Engineers, Executive Engineers and
Assistant Engineers Class I, and the Bombay Engineering Service Class II,
having officers designated as Deputy Engineers, were created. All the posts
were permanent. In 1939, Rules were made for regulating the methods of recruit-
ment to the said Services which directed the recruitment to be made either by
nomination from amongst the students of the College of Engineering, Pune or by
promotion of officers holding inferior posts. The next Rules to which the
parties in the present cases have made reference were those made by 909 the
resolution dated 21.11. 194 1 for determination of the seniority of the direct
recruits and the promoted officers, containing only two rules out of which r. 1
admittedly is not relevant for the present purpose. Rule 2 said that in case of
officers promoted to substantive vacancies, the seniority would be determined
with reference to the date of their promotion to the substantive vacancies. In
1960.
detailed
rules for recruitment to Class I and Class II Services were framed by a
Government resolution dated 29.4.
1960.
Learned counsel for the parties have referred to these Rules as the 1960 Rules
and have made elaborate arguments with reference to some of the provisions. In
place of nomi- nation from the successful students of College of Engineer- ing,
Pune as direct recruits, these Rules prescribed for a competitive examination
to be held by the Public Service Commission, and introduced a quota system by
fixing a ratio of appointments of direct recruits and promotees. The Rules also
made reference to promotion, as Executive Engineers on officiating basis, and
Temporary Deputy Engineers and offi- ciating Deputy Engineers. By r. 8 the
posts of Deputy Engi- neers were re-organised, and by sub-rule (iii).it was
pro- vided that the direct recruits in any year shall in a bunch be placed
senior to promotees confirmed during that year. A review of these Rules was
later undertaken by the Government and ultimately in partial supersession
thereof a fresh set of rules, described by the learned counsel in the present cases
as the 1970 Rules, were adopted by another Government resolution. In the
meantime, however, a serious dispute in regard to the interpretation of one of
the provisions of the 1960 Rules arose which was Settled by this Court in the
case of P.Y. Joshi and others v. The State of Maharashtra and Others, [1970] 2
SCR 615. The judgment in this case has been the subject matter of considerable
discussion during the hearing of present cases. By r. 5 of the 1970 Rules,
Class I and Class II Services were redefined and r. 12(a) declared that the
cadre of Deputy Engineers would consist of all the direct recruits, the
confirmed Deputy Engineers and the other officers who were officiating as
Deputy Engineers on 30.4. 1960.
3.
During the period 1960-70 adequate number of direct recruits were not
available, and a large number of promo- tees, therefore, had to be appointed to
officiate as Deputy Engineers on continuous basis. These appointments were made
after following the procedure applicable to regular promo- tions, including
consultation with the Public Service Com- mission. By r. 12(b) the strength of
the permanent Deputy Engineers was fixed at the total number of (a) the Deputy
Engineers confirmed up to the date of commencement of the Rules, (b) direct
recruits to the posts of Deputy Engineers appointed till the 910 date of
commencement of the Rules, and (c) the Deputy Engi- neers officiating on
30.4.1960; and it was provided that no fresh appointments in future would be
made to this cadre and the vacancies arising would be transferred to the
officers holding subordinate posts detailed in the sub-rule in pro- portions
indicated. The learned counsel for the parties have referred to this cadre as
the 'frozen cadre'. The question of seniority was dealt with in several rules,
out of which r. 33 is important. It said that the seniority list in each cadre
in Class I and Class II shall be prepared in two parts--one for the confirmed
officers and other for those who were not confirmed; and that the confirmed
officers would be treated as senior to the unconfirmed officers.
Since
the direct recruits were all appointed against the permanent posts, they were
reckoned to be senior to the officiating Deputy Engineers irrespective of the
period for which they had been working continuously on the Deputy Engineer's
posts. These Rules were amended in 1972, but there was no departure from the
main scheme and the princi- ple governing seniority.
4. In
pursuance of the 1970 Rules seniority lists were prepared leading to the filing
of several cases which were ultimately disposed of by this Court in S.B. Patwardhan
and others v. State of Maharashtra and others, [1977] 3 SCR 775.
Patwardhan,
the appellant in that case, was promoted tempo- rarily as Deputy Engineer in
1959 and was confirmed after the coming in force of the 1970 Rules. The respondents
No. 2 and 3 who were directly appointed as Deputy Engineers later were, in view
of the Rules, shown as senior to Patwardhan.
Patwardhan
challenged the validity of r. 8(iii) of the 1960 Rules and 33 of the 1970 Rules
as being violative of arti- cles 14 and 16 of the Constitution. The judgment in
the case is treated as a landmark in the service jurisprudence and has covered
extensive grounds dealing with several important aspects relevant in the case.
The learned counsel for the parties have in the course of their arguments read
and re- read the judgment and made elaborate comments on its inter- pretation
and effect, which we will discuss later. In the result, Patwardhan succeeded
and r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules were struck down.
5. In
view of the judgment in Patwardhan's case, it became necessary to prepare fresh
seniority lists, and since the re-organised states of Bombay and Gujarat were
formed on 1.11. 1958 under the provisions of the State Re-organisation Act,
1956, it was considered expedient to make rules for preparing seniority lists
of Deputy Engineers in respect of the period 1.11.1956 to 30.4.1960, that is,
the 911 date immediately after coming into force of the 1960 Rules.
Rules
were framed under Article 309 of the Constitution read with s. 81(6) of the
Bombay Re-organisation Act, 1960, and were called the Reorganised Bombay State
Overseers and Deputy Engineers Seniority Lists Rules, 1978, and have been
referred to before us as the 1978 Rules. The seniority list of the Deputy
Engineers as on 1.11.1956 which had been prepared earlier was declared by these
Rules as valid and final. This was consistent with the decision in Patwardhan's
case. The further seniority lists were directed to be pre- pared for the years
1957, 1958, 1959 and 1960 in accordance with the judgment in Patwardhan's case
wherein the seniority of the promotee Deputy Engineers was made dependant on
the continuous officiation subject to certain other conditions.
6.
Since the preparation of the seniority lists and reversion of the direct
recruits whose promotion was ille- gal, in view of the decision in Patwardhan's
case, were being delayed, one Bagayat Patil, a promotee Deputy Engineer
officiating as Executive Engineer, filed a writ application being W.P. No. 3483
of 1980 in the High Court for implemen- tation of the judgment, inter alia, on
the ground that r.
6(iii)
of the 1960 Rules relating to Class I being similar to the struck down r.
8(iii) was also illegal. Another writ application being W.P. No. 672 of 1981
was filed by the direct recruits challenging the validity of the 1978 Rules
mainly on the ground that the Rules omitted to fix propor- tionate quota for
the direct recruits and the promotees. The two cases were disposed of by a
common judgment upholding the validity of the 1978 Rules, striking down r.
6(iii) of the 1960 Rules, and issuing appropriate directions for reversion of
the illegally promoted direct recruits as also for preparation of seniority
lists in accordance with the judgment in Patwardhan's case. Kulkarni, one of
the direct recruits, in representative capacity, challenged the judg- ment
before this Court in S.L.P. No. 8064 of 198 1 which was dismissed on
29.10.1981. On the same date S.L.P. No. 9161 of 1981, filed by one Samtani was
also rejected. A special leave petition by the State Government was also
dismissed later. One of the direct recruits J.H. Bhatia, who was admittedly
represented by the petitioner in S.L.P. No. 8064 of 1981, filed an application
under Article 32 of the Con- stitution before this Court on 1.2. 1982, that is,
after the dismissal of S.L.P. No. 8064 of 1981, which has been regis- tered as
W.P. No. 1327 of 1982 and is being disposed of by the present judgment.
7. In
1981 further rules called Re-organised Bombay State Assistant Engineers and
Executive Engineers Seniority Lists Rules, 912 198 1, described by the 'parties
as the 198 1 Rules, were flamed laying down the rule of determination of
seniority of the Assistant Engineers and the Executive Engineers for the period
1.11.1956 to 30.4.1960. With respect to the prepara- tion of the seniority list
of the Executive Engineers, r. 3(3)(a) read with Explanation to r. 3(4) fixed
quota with retrospective effect between the direct recruits and the promotees,
and these rules were successfully challenged in the High Court in W.P. No. 362
of 1982. The ,judgment in the case striking down the above rules has not been
directly questioned in this Court.
8. The
main Rules which are the subject matter of the present cases were framed in
1982 under Article 309 of the Constitution laying down the principle for fixing
the sen- iority for the period dated 1.5.1960 to 20.12.1970, and are called the
Maharashtra Service of Engineers (Regulation of Seniority and Preparation and
Revision of Seniority Lists for Specified Period) Rules, 1982, hereinafter
referred to as the 1982 Rules. The Preamble states that they were framed in
view of the decision of the Supreme Court in S.B. Pat- wardhan v. State of Maharashtra
and of Bombay High Court in W.P. No. 3483 of 1980. On their face, they are
consistent with the aforesaid judgments, but by including two rules
therein--Rules 4 and 9, deleted later--fixing rigid quota with retrospective
effect, attempt was made to neutralise the decision and rob the promotees the
'benefit of their continuous officiation. Rule 9 (omitting the Explanation
which is not relevant for the present purpose) read as follows:
"9.
Allocation of vacancies in cadre of Deputy Engineers for direct recruits and promotees.--The
number of vacancies in the cadre of Deputy Engineers in every year during the
specified period and in the fractional year shall be deemed to be equal to the
number of vacancies actually filled in that year or, as the case may be,
fractional year, and the first three-fourths of such vacancies in each year or
in the fractional year shall be deemed to be allocated for persons recruited
directly as Deputy Engineers and the subsequent remaining vacancies in that year
or in the fractional year shall be deemed to be allocated for filling by
promotions from amongst Overseers who may be eligible for such promo- tions in
accordance with rules or orders made by Government from time to time during the
specified period." Rule 4; .dealing with the promotion of Assistant
Engineers and Deputy 913 Engineers in vacancies in the cadre of Executive
Engineers was in similar language. Section 2(h) defined "fortuitously
appointed" in the following terms:
"fortuitously
appointed" means appointed in any vacancy which, according to rule 4 or 9,
is not allocated for the class of officers to which the person appointed in
that vacancy belongs;'' These rules were challenged in Writ Petitions No. 955
and 956 of 1983, filed respectively by promotee Deputy Engineers Dafle and Kamtkar,
and by promoted Executive Engineers Lele and Panse (hereinafter mentioned as Dafle-Lele
case) before the Bombay High Court and were struck down as illegal. The High
Court further ordered the State to carry out the direc- tions given in Bagayat Patil's
case (W.P. No. 3483 of 1980).
None
'of the Engineers came to this Court against this judgment, except the State
Government in S.L.P. Nos. 16614- 15 of 1983 which also have been heard by us.
However, the prayer for stay was rejected. The result is that the senior- ity
has to be reckoned on the basis of continuous officia- tion. By an amendment in
1984 the rr. 4 and 9 were formally deleted.
9. For
the purpose of fixing the seniority of Executive Engineers and Assistant
Engineers for the period commencing on 21.12.1970, separate rules were framed
under Article 309 of the Constitution and are called the Executive Engineers
and Assistant Engineers belonging to the Maharashtra Service of Engineers Class
I and the Maharashtra Service of Engi- neers Class II (Regulation of Seniority
and Preparation and Revision of Seniority Lists) Rules, 1983 and will be re- ferred
to hereafter as the 1983 Rules. The validity of these Rules has been challenged
in W.P. No. 1169 of 1986 filed under Article 32 in this Court.
10. As
stated earlier, J.H. Bhatia filed Writ Petition No. 1327 of 1982 in person and
obtained an ex parte rule.
Another
application under article 32 of the Constitution being W.P. No. 5 187 of 1983
was filed by Srikant Bharat Sohoni, a direct recruit to Class II, who, besides challeng-
ing the 1978 Rules, has also attacked the validity of the 1982 Rules, although
he did not file an appeal against the judgment of the High Court on this point.
According to the learned counsel for the promotee respondents he was not
concerned with the 1978 Rules at all but he mentioned the same in his
application for the sole purpose of obtaining a rule on the ground of admission
of Bhatia's writ petition.
914
Encouraged by these two cases, several other writ petitions were also filed and
have been heard along with the Civil Appeals.
11.
Although the claim of the promotees to reckon the seniority according to the
continuous officiation was ac- cepted by this Court in Patwardhan's case in
1977, the State Government continued denying them the fruits of the litiga- tion.
The High Court on a complaint made by Bagayat Patil, took note of the delay and
issued directions for implementa- tion of the judgment. Still nothing was done
till 1984 and an application for starting proceedings in contempt was made
before the High Court. In the meantime a fresh writ petition being W.P. No. 660
of 1984 was filed by the direct recruits before the Aurangabad Bench of the
Bombay High Court and stay was obtained. Thereafter a number of similar applica-
tions were filed one after another, either before the Nagpur Bench or the Aurangabad
Bench of the Bombay High Court. When the promotees pointed out before this
Court the game of the direct recruits, a direction was issued for hearing of
all the cases at Bombay. Accordingly aH the 15 writ
applications were transferred and heard together at Bombay. The High Court rejected the case
of the direct recruits and dismissed the writ petitions. The petitioners in 9
of them have chal- lenged the judgment in Civil Appeals No. 194-202 of 1986.
12.
The main argument on behalf of the direct recruits has been addressed by Mr.
V.M. Tarkunde, who represents the appellants in the Civil Appeals and the writ
petitioners in W.P. No. 1169 of 1986. The learned advocates in some of the
other writ cases and two of the writ petitioners in person made supplementary
arguments. It has strenuously been con- tended that the 1978 Rules, 1982 Rules,
1983 Rules and the 1984 Rules are invalid and must be struck down. The judgment
in Dafle-Lele case has also been challenged. The cases were earlier heard for
sometime by a Division Bench when the Bench referred the matter to be dealt
with by a larger Bench for examining the correctness of the decision in Patward-
han's case.
13.
When the cases were taken up for hearing before us, it was faintly suggested
that the principle laid down in Patwardhan's case was unsound and fit to be
over-ruled, but no attempt was made to substantiate the plea. We were taken
through the judgment by the learned counsel for the parties more than once and
we are in complete agreement with the ratio decidendi, that the period of
continuous officiation by a government servant, after his appointment by
following the rules applicable for substantive appointments, has to be taken
into account 915 for determining his seniority; and seniority cannot be
determined on the sole test of confirmation, for, as was pointed out,
confirmation is one of the inglorious uncer- tainties of government service depending
neither on effi- ciency of the incumbant nor on the availability of substan- tive
vacancies. The principle for deciding inter se seniori- ty has to conform to
the principles of equality spelt out by articles 14 and 16. If an appointment
is made by way of stop-gap arrangement, without considering the claims of all
the eligible available persons and without following the rules of appointment,
the experience on such appointment cannot be equated with the experience of a
regular appoint- ee, because of the qualitative difference in the appoint- ment.
To equate the two would be to treat two unequals as equal which would violate
the equality clause. But if the appointment is made after considering the
claims of all eligible candidates and the appointee continues in the post
uninterruptedly till the regularisation of his service in accordance with the
rules made for regular substantive appointments, there is no reason to exclude
the officiating service for purpose of seniority. Same will be the position if
the initial appointment itself is made in accordance with the rules applicable
to substantive appointments as in the present case. To hold otherwise will be
discriminatory and arbitrary. This principle has been followed in innumerable
cases and has been further elaborated by this Court in several judgments
including those in Baleshwar Dass v. State of U.P. and others, [1981] 1 SCR
449, and Delhi Water Supply and Sewage Disposal Committee and others v. R.K. Kashyap
and others, [ 1989] Supp. 1 SCC 194, with which we are in agree- ment. In Narender
Chadha and others v. Union of India and others, [ 1986] 1 SCR 211, the officers
were promoted al- though without following the procedure prescribed under the
rules, but they continuously worked for long periods of nearly 15-20 years on
the posts without being reverted. The period of their continuous officiation
was directed to be counted for seniority as it was held that any other view
would be arbitrary and violative of Articles 14 and 16.
There
is considerable force in this view also. We, there- fore, confirm the principle
of counting towards seniority the period of continuous officiation following an
appoint- ment made in accordance with the rules prescribed for regu- lar
substantive appointments in the service.
14.
Mr. Tarkunde in the course of his argument made it clear that he was not
questioning the ratio in Patwardhan's case but was challenging the judgment
therein as erroneous on the ground that the posts of temporary Deputy Engineers
held by the promotees were not in the cadre of the Deputy Engineers, which
included only permanent posts, and this position was not correctly appreciated
there. The argu- 916 ment is that since the permanent posts held by the direct
recruits and the temporary posts which the promotees were allowed to officiate
did not form a single cadre, there could not arise any question of interse
seniority amongst them. The finding to the contrary in Patwardhan's case is
said to have been inconnectly arrived at, mainly due to the failure on the part
of the State Government to place all the relevant materials before the Court.
The stand of the appel- lants is that having regard to all the facts and
circum- stances leading to the present litigation, the direct re- cruits cannot
be held to be bound either by a rule of res judicata or otherwise and they are
free to challenge the Patwardhan's decision as incorrect. It is claimed that if
the relevant position is correctly appreciated, there is no escape but to hold
that the 1960 Rules excepting r. 8(iii) and the 1970 Rules except r. 33, were
perfectly legal and the declaration about their invalidity was erroneous. The
learned counsel contended that since the fresh Rules. which are now impugned,
were flamed as a result of the said enone- ous judgment, they have to be struck
down. The observations in the judgment in P.Y. Joshi's case were characterised
as obiter dicta which cannot be held to be binding on this Court at a
Subsequent stage, and the question whether the direct recruits and promotees
were in the same cadre or held posts in two separate and distinct cadres must
be answered in accordance with the decision in State of Gujarat v.C.G. Desai
and others, [1974] 2 SCR 255 in favour of the appel- lants. Developing his
argument Mr. Tarkunde said that since the 1960 Rules and the 1970 Rules were
perfectly valid, they clothed the direct recruits with right of seniority over
the promotees which could not be retrospectively taken away in view of their
fundamental rights under articles 14 and 16 of the Constitution. He further
urged that the quota rule applicable to the Service under the 1960 Rules was
binding on all concerned and the High Court has in the Dafle-Lele case erred in
quashing rr. 4 and 9 of the 1982 Rules. The plea of the respondents that the quota
rule was not strictl- ly enforceable on account of the words "as far as practica-
ble" in r. 1(b) of the 1960 Rules or that it was relaxed Or given up later
has been denied and it is said that the appointments of the promotees in excess
of the quota, there- fore, could not be treated as valid until the date when
the posts became available in their share and consequently the earlier period
cannot be considered for the question of theft seniority.
15.
The main thrust of Mr. Tarkunde's argument is that the permanent Deputy
Engineers and the officiating Deputy Engineers were in two cadres and as the
officiating Deputy Engineers could not be treated to be included in the perma- nent
cadre having only perma- 917 nent posts, they were not entitled to compete with
the direct recruits in the matter of seniority. It is true that initially the
cadre consisted of only permanent posts. The promotees, however, claim that the
additional posts were subsequently added to the cadre and no new cadre was
formed.
16.
Great emphasis was laid by Mr. Tarkunde on the language of certain rules on the
basis of which it was urged that the cadre of the permanent Engineers was
higher in rank than that of the officiating Engineers, who had to be fur- ther
promoted for becoming members of the said cadre. Rule 8(i) of the 1960 Rules,
which was relied on for this pur- pose, reads as follows:
"8(i)
The Sub-Divisional posts in the Department are; at present, manned by direct
recruits to Bombay Service of Engineers, Class II cadre, Deputy Engineers
confirmed from subordinate Service of Engineers, the temporary Deputy Engineers
recruited by the Bombay Public Service Commission, officiating Deputy Engineers
and similar other categories.
These
various categories are being compiled into two fists only, viz., Bombay Service
of Engineers, Class II cadre of permanent Deputy Engineers and a list of
Officiating Deputy Engineers. The future recruitments to Bombay Service of
Engineers, Class II cadre shall be made by nomination of candidates recruited direct
by competitive examination, held by the Commission, and by promotions from the
list of offi- ciating Deputy Engineers. The number of such promotions shall be
about one third the number of direct recruits appointed in that year."
argument is that if the officiating Deputy Engineers could be
"promoted" to Bombay Service of Engineers, Class II cadre, how could
they be treated as part of the said cadre earlier. It was pointed out that the
second sentence of the above rule in express terms directs two lists to be pre-
pared, one of the permanent Deputy Engineers, and the other of officiating
Deputy Engineers. Admittedly the appointment of all the direct recruits was
made as against the permanent vacant posts and on their successfully completing
the proba- tionary period they were confirmed against those posts while the promotees
were posted in the temporary posts as offici- ating Deputy Engineers. Rule 80),
according to the appel- lants, therefore, makes a clear distinction between the
two groups, which could not be lumped together. Reliance was also placed on the
language of rr. 5, 6, 12(a), 30 and 33 of the 1970 918 Rules. We are not in a
position to agree with the learned counsel that the rules indicate that the
officiating posts were not included in the cadre of the Deputy Engineers. It is
true that the use of word "promotions" in r. 8(i) of the 1960 Rules
is not quite appropriate, but that by itself cannot lead to the conclusion that
the officiating Deputy Engineers formed a class inferior to that of the
permanent Engineers. As was stated with reference to the expressions like
'substantive capacity', 'service' and 'cadre' in Ba- leshwar Dass v. State of
U.P. and others, [1981] 1 SCR 449 (at page 463 C-E), we cannot attribute fixed
connotation to the expression 'promotion' without reference to the context.
The expression,
there has been used in the sense of confir- mation. The language used in
several other rules is incon- sistent with two-cadre theory, and by way of
illustration r.
12(a)
may be considered. Rules 5 and 24 of the 1970 Rules mention only 4 cadres in
Class II--namely, those of Sub- Divisional Officers, Sub-Divisional Engineers,
Assistant Engineers Class II and Deputy Engineers and there was no separate
cadre of officiating Deputy Engineers. Rule 12(a) of the 1970 Rules expressly
includes some of the officiating Deputy Engineers within the cadre of Deputy
Engineers, although it leaves behind the other officiating Deputy Engineers who
started officiating later than 30.4.1960. Rule 13 speaks of officers
"officiating in the earthwhile cadre of Deputy Engineers" and r. 27
of "officiating promotions" which are inconsistent with two-cadre
theory. In r. 33 of the 1970 Rules also two lists were directed to be prepared,
not cadrewise but in each cadre, clear indicating that the lists were different
from cadres. In r. 8(i) of the 1960 Rules also the different groups were not
described as dif- ferent cadres. They were referred to as
"categories" and what the re-organisation suggested was with
reference to "lists" to be prepared. It will not, therefore, be right
to equate the lists with cadres. It is true that the Rules have not in express
language stated that the officiating posts also will be in the cadre but if all
their relevant provi- sions are considered, they unmistakably lead to the said
conclusion. Excepting the use of the word "promotions" in r. 8(i) of
the 1960 Rules no other provision appears to help the appellants.
17.
This question was considered in Patwardhan's case at considerable length, and a
categorical finding against the direct recruits was arrived at, which has been
followed for the last more than a decade, in many cases arising between members
of Maharashtra and Gujarat Engineering Services. The question is of vital
importance affecting a very large number of officers in the departments
concerned and many disputes have been settled by following the judgment in Patwardhan's
case. In such a situation it is not expedient to depart from the decision 919
lightly. It is highly desirable that a decision, which concerns a large number
of government servants in a particu- lar Service and which has been given after
careful consider- ation of the rival contentions, is respected rather than scrutinised
for finding out any possible error. It is not in the interest of the Service to
unsettle a settled position every now and then. Besides, the learned counsel
for the parties have placed the rival arguments on the issue in great detail
with reference to every available material, and in our opinion the finding was
correctly arrived at. We also agree that the interpretation given in P.Y. Joshi
and Others v. The State of Maharashtra and Others, [1970] 2 SCR 615, by a Bench
of 5 Judges on r. 8 of the 1960 Rules, which answers one of the main grounds of
the direct recruits in support of two-cadre theory, must be respected. Mr. Tarkunde
has at- tempted to distinguish P.Y. Joshi's case and has challenged the
correctness of the observations at page 795 of the judgment in Patwardhan's
case. We do not agree with the learned counsel. The dispute in that case was in
respect of promotion of promotee Deputy Engineers to posts of officiat- ing
Executive Engineers. Rule 7(ii) of the 1960 Rules pre- scribed, as a necessary
condition for promotion, the minimum service of seven years as Deputy Engineer.
The respondent in P.Y. Joshi's case were elgible, provided their experience as
officiating Deputy Engineers was allowed to be counted. The petitioners in that
case were direct recruits to the posts of Deputy Engineers and they challenged
the promotion of the respondents on the ground that they had not completed the
seven years' period after their confirmation as Deputy Engineers and the period
for which they had been officiating as such was not available to them for the
purpose. Their contention was "that under the rules in force the respond- ents
who were in substantive rank of Overseers were only officiating Deputy
Engineers and that as they did not belong to the cadre of Deputy Engineers they
were not entitled to promotion inasmuch as they had to put in after
confirmation as Deputy Engineers 7 years of actual service before being
eligible for promotion as officiating Executive Engineers".
The
arguments were addressed with reference to several rules including r. 8, and
this Court while rejecting the stand of the direct recruits observed thus:
"In
our view it is the list of such persons that is referred to in cl. (ii) of rule
8 and not that there should be a list of persons actually officiating as
Engineers for further promotion to the same post which will have little
meaning, for there cannot be a promotion of a person in the same cadre of
service who is already promoted whether as an officiating or temporary or
permanent incumbant. If cl. (i) of r. 8 920 provides that Class 11 cadre shall
be recruited by competi- tive examination, the promotees also are promoted from
the list of persons considered fit to hold sub divisional charge, i.e., post of
Deputy Engineers. If in the case of direct recruits the appointment is without
reference to confirmation, it cannot be any different in the case of promotees."
This interpretation of r. 8 is binding as a precedent. It is Urged by Mr. Tarkunde
that the ratio of the Division Bench judgment in State of Gujarat v.C.G. Desai
and Others, [1974] 2 SCR 255, supports his argument and should be followed. We
do not think so. The controversy, there, also related to the construction of r.
7(ii) of the 1960 Rules requiring the minimum service of 7 years for a Class II
officer to be promoted as officiating Executive Engineer. The respondent No. 1
C.G. Desai who was not considered eligible for promo- tion was earlier
officiating as Deputy Engineer from May 1955 to December 1959. Thereafter he
successfully competed at an examination for direct recruitment to Class II
Service held by the Public Service Commission and was appointed as Permanent
Deputy Engineer. For the purpose of his promotion to the higher cadre he relied
on his officiating service before he was selected as a direct recruit, which
was denied by the Government. In a writ case his claim was accepted as
legitimate by the High Court. This decision was challenged before this Court;
and it was held by the judgment in the reported case that the respondent was
not entitled to count his experience as officiating Deputy Engineer before his
selection as a direct entrant in the Service. It was, inter alia, observed that
if a person like the respondent leaves his position in the long queue of
officiating Deputy Engi- neers with a view to avoid the tortuous wait for
promotion and takes a short-cut, "he gives up once for all the advan- tages
and disadvantages" of continuing as an officiating Deputy Engineer and
accepts all the handicaps and benefits which attached to the group of direct
recruits. "He cannot, after .his direct recruitment claim the benefit of
his pre- selection service and thus have the best of both the worlds." In
this set up and for the purpose of construing r. 7 and considering the
necessary qualification for promotion as an Executive Engineer, it was observed
that the direct recruits and the promotees in Class II constituted two groups
or classes, and it was pointed out that unless the pre-selection service as
officiating Deputy Engineer of direct recruits was excluded for reckoning the 7
years experience, it would create two classes amongst the same group of direct
recruits and result in discrimination against those direct recruits who had no
such pre-selection service to their credit. The 921 decision has to be
understood in this background and it cannot be of any help to the present
appellants.
18.
Even on an independent consideration of the provi- sions of the Rules, the
relevant materials and the arguments addressed on behalf of the parties, we are
of the view that the temporary posts of Deputy Engineers against which promo-
tees officiated, did not form a separate cadre and were additions to the main
cadre. These temporary posts were created in pursuance of several resolutions
of the State Government and an examination of their language is helpful in
resolving the controversy. The resolution No. ENH-1062-C, dated 8th November,
1962 (Ext. 'A' at page 277 of Vol. V of the paper book) after referring to the
sanction accorded by the Government for creation of the temporary posts stated,
"The posts of Executive Engineer and Deputy Engineer should be treated as
temporary additions to their respective cadres. ' ' (emphasis added) Similarly
the Resolution No. CDS 1170-F, dated the 3rd of November 1970, dealing with the temporary posts
created in the departments of Irrigation and Power stated as follows:
(pages
283-286, at page 284 paragraph 3 of Vol. V of the paper book), "The
temporary posts in each Department be treated as temporary additions to the
respective cadres." (emphasis added) Mr. K.K. Singhvi, the learned counsel
for the promotees relied upon these resolutions and several other documents in
support of the finding of this Court in P.Y. Joshi's case and Patwardhan's case
comprising the single-cadre theory and contended that these and other materials
were available to the Court in Patwardhan's case. Mr. Tarkunde, on the other
hand, argued that some fresh materials have come to light since after the
judgment in Patwardhan's case, which had not been made available by the State
earlier. There is serious controversy as to the interpretation of these
documents alleged to have been later discovered by the direct recruits and in
our opinion they do not furnish any evidence of substantial nature to outweigh
the materials produced by the State in Patwardhan's case including the
aforementioned resolutions. In the circumstances, we do not consider it
necessary to discuss this question any further and close the issue by holding
that the 922 officiating Deputy Engineers were in the same cadre with the other
Deputy Engineers in permanent posts.
19. It
has been next contended that even if the decision in Patwardhan's case be held
to be correct, and it is as- sumed that the posts of officiating Deputy
Engineers are also included in the cadre of permanent Deputy Engineers, rr. 4
and 9 of the 1982 Rules could not have been challenged as illegal and the
decision of the Bombay High Court in Dafle-Lele case striking down these rules
is erroneous and fit to be over-ruled. It was pointed out that the 1984 Rules
flamed as a result of the said decision expressly stated that they were subject
to the result in the Special Leave Petitions No. 16614-15 of 1983 filed by the
State of Maha- rashtra against the said decision, and if the judgment in Dafle Lele
case is set aside then the 1984 Rules will auto- matically disappear. Great
emphasis was laid by Mr. Tarkunde on the provision in the 1960 Rules fixing the
ratio of the direct recruits and the promotees in the Deputy Engineers cadre;
and it was urged that the question of seniority must be settled with reference
to the time when posts became available to the promotees in accordance with the
said quota rule. Merely for the reason that the promotees were allowed to
officiate on the temporary posts in excess of their quota they cannot be
permitted to steal a march over the genuine claimants to the posts namely, the
subsequently appointed direct recruits. Repelling the stand of the respondents
it was argued that the quota rule never collapsed and remained operative and
was confirmed by the decision in Patwardhan's case. About the rule applying at
the stage of appointment and not at the stage of confirmation, as was held in
the said judgment, it was suggested that the observations cannot be
legitimately interpreted as setting the officiating Deputy Engineers free of
the principle of quota. It meant, according to the learned counsel, that if an
officer was promoted within his quota, the rule would be applicable with
reference to the date of promotion and not the date of confirmation, but where
his promotion was in excess of the permissible quota his seniority would be
reckoned with reference to the date when a vacancy became available for him,
and not on the basis of his continuous officiation. He will be entitled to
count his officiating experience only on a vacancy being available to him in
accordance with the quota rule. Reliance was placed on S.G. Jaisinghani v.
Union of India and Others, [1967] 2 SCR 703; A.K. Subraman and Others v. Union
of India and Others, [1975] 2 SCR 979; V.B. Badami etc. v. State of Mysore and
Others, [1976] 1 SCR 8 15 and Paramjit Singh Sandhu and Others v. Ram Rakha and
Oth- ers, [1979] 3 SCR 584. Alternatively it was contended that assuming that
the quota rule had collapsed as a 923 result of non-availability of direct
recruits, the State Government was under a duty to change the ratio by
allotting a larger share to the promotees, which was belatedly done in 1970. So
long the rule was not amended the same had to be respected. On the strength of
observations in Bishan Sarup Gupta v. Union of India and others, [1975] Supp.
SCR 491, it was urged that collapse of quota rule does not make seniori- ty
dependant on continuous officiation. It calls upon the Government to frame
better rules to meet the requirements of the situation.
20.
The quota rule was for the first time introduced by the 1960 Rules. As already
mentioned, these Rules were introduced through executive instructions issued by
the State Government. The statutory rules which were holding the field earlier
did not fix any ratio between the direct recruits and the promotees. Rule 1 of
the 1960 Rules which is relevant in this context is quoted below:
"1.
Appointment to the Bombay Service of Engineers, Class I and Class II, shall be
made either-- (a) by nomination after a competitive examination held by the
Bombay Public Service Commission hereafter called the Commission in accordance
with the rules appended, or (b) by promotion from amongst the members of the
lower cadres concerned.
Provided
that the ratio of the appointment by nomination and by promotion shall, as far
as practicable, be 75:25." It will be noticed that the ratio of 3:1 was
fixed for the purpose of "appointment", and not for the strength in
the Service, as was suggested on behalf of the appellants. The other important
feature was that the Proviso fixing the ratio, far from being imperative,
permitted the State Gov- ernment to exercise its discretion according to the
demand of the exigencies, by using the expression "as far as prac- ticable".
The case of the appellants is that the said ex- pression was inserted in the
Proviso with the object of avoiding fractions in arithmetical calculations of
number of posts available to the two groups, and for no other purpose.
We do
not see any reason to so restrict the scope and mean- ing of the expression
"as far as practicable". A similar expression in identical terms used
in certain other rules came up for consideration in N.K. Chauhan and Others v.
State of Gujarat and 924 Others, [1977] 1 SCR 1037, and it was held that if it
became nonfeasible and impracticable for the State to fill up the requisite
quota by direct recruits after making a serious effort to do so, it was free to
fill the posts by promotion of suitable hands, if the filling up of the vacancies
was administratively necessary and could not wait. Similar is the position
here, and the r. 1 of the 1960 Rules must be held to be realistic and flexible,
true to life rather than abstractly absolute. It was strenuously contended by
Mr. Tarkunde and was reiterated by the other learned counsel that the State
Government erred in promoting the officers from the lower cadre far in excess
of their legitimate share in the Service, and the promotees cannot be allowed
to take advantage of this wrong perpetuated from year to year. Reply of the
respondents is that direct recruits suitable for appointment were not available
and if appointments had been defined on that account the fast developing
departments, entrusted with quick improvement in several fields would have been
rendered crippled, leading to grave injury to the industrial and other growths
in the State. The public inter- est demanded that the improvement work did not
suffer on account of non-availability of suitable candidates for nomination,
when competent Engineers fit to shoulder the responsibility were available in
abundant number in the departments themselves. It will bear repetition that the
promotees were not appointed in a casual manner; the Rules applicable for
substantive appointments were meticulously followed and eligible officers were
subjected to all the tests including scrutiny by the Public Service Commission
before they were promoted. The reason for not adhering to the quota rule was
admittedly the non-availability of the direct recruits and was specifically
mentioned in the Gov- ernment's resolution of 1970 as a reason for replacing
the old rules by new ones. Mr. Singhvi, the learned counsel for the
respondents, argued that having regard to the relevant facts and circumstances,
there is no escape from the conclu- sion that the quota rule spelt out by the
executive instruc- tions in the 1960 Rules had in fact collapsed, and that this
fact can be recognised even without issuing a formal amend- ing instruction. It
is permissible to draw an inference to that effect by the steps taken by the
State Government, repeatedly and for a considerable period, in disregard of
such a rule, and specially so where the quota is not fixed in imperative terms.
Reliance was placed on the observations at page 209 of the judgment of this
Court in P.C. Sethi and Others v. Union of India and Others, as reported in
[1975] 3 SCR 201. The quota of direct recruits in that case had not been
enforced "perhaps for good reasons as noted above, the policy of the
Government being different". In this back- ground it was stated that
administrative instructions, if not carried into effect for obvious and good
reasons, cannot 925 confer a right upon entrants on later recruitment to
enforce the same. The learned counsel appears to be right.
21. It
has, however, been rightly suggested on behalf of the appellants that when
recruitment is from more than one source, there is no inherent invalidity in
introducing quota system, but as was observed in Subraman's case (supra), the
unreasonable implementation of such a rule may attract the frown of the
equality clause. Further, if a rule fixing the ratio for recruitment from
different sources is framed, it is meant to be respected and not violated at
the whims of the authority. It ought to be strictly followed and not
arbitrarily ignored. This, of course, may not prevent the Government from
making slight deviations to meet the exigen- cies. If it is discovered that the
rule 'has been -rendered impracticable, it should be promptly substituted by an
appropraite rule according to the situation. The question, however, is as to
what is the conclusion if the quota rule is not followed at all continuously
for a number of years, after it becomes impossible to adhere to the same.
Admitted- ly in the present cases direct recruits were not available in
adequate number for appointment, and appropriate candi- dates in the
subordinate rank capable of efficiently dis- charging the duties of Deputy
Engineers were waiting in their queue. The development work of the State
peremptorily required experienced and efficient hands. In the situation the
State Government took a decision to fill up the vacan- cies by promotion in
excess of the quota, but only after subjecting the officers to the test
prescribed by the rules.
All
the eligible candidates were considered and the opinion of the Public Service
Commission was obtained. The appoint- ments were not limited to a particular
period and as a matter of fact continued till 1970 when the fresh rules were
introduced.
22.
The stand of the appellants is that whenever ap- pointments are made in
violation of a quota rule the ap- pointees will have to go down below the new
entrants, join- ing the Service in accordance with their quota. The cases
relied upon by Mr. Tarkunde do discuss the general princi- ples about the
enforceability of quota rule and the effect of its violation, but do not
profess to lay down the univer- sal rule applicable. to every case irrespective
of the other relevant circumstances arising therein. On the other hand, the
decisions cited by Mr. Singhvi deal with circumstances similar to those in the
present cases and are illustrative of situations where the general rule has to
yield to just exceptions. Indeed, Mr. Tarkunde himself attempted to dis- tinguish
them on the ground that the government had relaxed the quota rule in those
cases. The fallacy in the argument, however, is that the present cases are also
of the same category.
926
23.
Mr. Tarkunde is fight that the rules fixing the quota of the appointees from
two sources are meant to be followed. But if it becomes impractical to act upon
it, it is no use insisting that the authorities must continue to give effect to
it. There is no sense in asking the perform- ance of something which has become
impossible. Of course, the Government, before departing from the rule, must
make every effort to respect it, and only when it ceases to be feasible to
enforce it, that it has to be ignored. Mr. Tarkunde is fight when he says that
in such a situation the rule should be appropriately amended, so that the scope
for unnecessary controversy is eliminated. But, merely for the reason that this
step is not taken promptly, the quota rule, the performance of which has been
rendered impossible, cannot be treated to continue as operative and binding.
The unavoidable situation brings about its natural demise, and there is no
meaning in pretending that it is still vibrant with life. In such a situation
if appointments from one source are made in excess of the quota, but in a regular
manner and after following the prescribed procedure, there is no reason to push
down the appointees below the recruits from the other source who are inducted
in the Service subse- quently. The later appointees may have been young
students still prosecuting their studies when the appointments from the other
source take place--and it is claimed on behalf of the respondents that this is
the position with respect to many of the direct recruits in the present
case--and, it will be highly inequitable and arbitrary to treat them as senior.
Further, in cases where the rules themselves permit the Government to relax the
provisions fixing the ratio, the position for the appointees is still better;
and a mere deviation therefrom would raise a presumption in favour of the
exercise of the power of relaxation. There would be still a third consideration
relevant in this context: name- ly, what is the conclusion to be drawn from
deliberate continuous refusal to follow an executive instruction fixing the
quota. The inference would be that the executive in- struction has ceased to
remain operative. In all these cases, the matter would however be subject to
the scrutiny of the Court on the ground of mala fide exercise of power.
All
the three circumstances mentioned above which are capa- ble of neutralising the
rigours of the quota rule are present h: the cases before us, and the principle
of senior- ity being dependant on continuous officiation cannot be held to have
been defeated by reason of the ratio fixed by the 1960 Rules.
24.
The decisions relied upon by Mr. Singhvi deal with similar situation and are
consistent with our opinion.
927
25.
The decisions relied upon by Mr. Tarkunde support his argument in general terms
but are distinguishable on account of the special features in the present
cases. Mr.
Singhvi
contended that many important observations in those cases also support the
respondents on several relevant aspects, as for example, the statement at pages
990H991B in the judgment in A.K. Subrman's case as reported in [1975] 2 SCR 797
to the following effect:
"It
is submitted by the respondents that one-third quota cannot be filled unless
the two-third quota was ex- hausted. This, in our view, will introduce
sterility in the quota rule so far as the promotees are concerned. Their hopes
and aspirations cannot be related to the availability or non-availability of
the direct recruits to fill the two- third quota. Each quota will have to be
worked independently on its own force. The word "rest" in the quota
rule cannot be pressed into service to defeat the object of the rule coming in
aid of advancement of prospects of promotees in the hierarchy of the
Service."
26.
Relying on the observations at page 505H of the judgment in Gupta's case
reported in [1975] Supp. SCR 491, Mr. Tarkunde strenuously urged that even on
the assumption that the quota rule in the present cases had, in fact, broken
down, it was imperative on the part of the Government to have framed fresh
workable rules before promoting the respondents. The learned counsel for the promotees
distin- guished the decision, and to our mind correctly, on the ground that
there the manner and terms of the appointments made in breach of the quota
rule, were widely different from those in the present cases. The special facts
as they appear from the other judgment in the Gupta's case reported in [1975] 1
SCR 104, were stated at page 113E-F thus:
"It
is necessary to remember, however, in this connection that all these officers
had been told when promoted that their appointments were on an officiating or
ad hoc basis and the question of their seniority had not been determined.
It was
thereby implied that orders about seniority could only be passed after the
department was in a position to take a decision with regard to the inter se
seniority be- tween the promotees and the direct recruits. That being the
situation of all these officers, they could hardly contend that the dates of
appointments will not be altered for the purposes of determining
seniority." 928 The decision was later considered in P.S. Mahal and others
v. Union of India and Others, [1984] 3 SCR 847, and the analysis given at pages
877E-880 clearly indicates that the decision has to be understood in the
background of the facts therein and cannot have a universal application
irrespective of the situation. This judgment as well as the decision in Badami's
case (supra) were rightly distinguished in Patward- han's case at page 797.
27. It
has also been alternatively argued on behalf of the appellants that by the statement
in the judgment in Patwardhan's case that the quota rule applied at the stage
of appointment and not at the stage of confirmation, this Court did not mean to
say that those who were promoted in an officiating capacity were not subject to
the quota rule. The contention is that what was meant to be conveyed by the
aforesaid observations was that if an officer had been promoted within his
quota then it would be the date of his promotion and not the date of
confirmation which would be relevant for the officer's seniority, but where the
officer is promoted in excess of his quota his seniority would arise when a
vacancy in his quota becomes available. We are afraid, it is not possible to
read the judgment as suggest- ed. The finding at pages 795F796A, in the
following words does not leave any room for controversy;
"In
this view of the matter, the prescription contained in the closing sentence of
r. 8(i) that "the number of such promotions shall be about 1/3rd the
number of direct re- cruits appointed in that year" would apply to initial
ap- pointments and cannot govern the confirmation of those who have already
been appointed to Class II cadre. In other words, direct recruits and promotees
have to be appointed in ,the proportion of 75:25 to Class II cadre, the former
as Deputy Engineers and the latter as officiating Deputy Engi- neers, but once
that is done, the quota rule would cease to apply with the result that
confirmations in the post of Deputy Engineers are not required to be made in
the propor- tion in which the initial appointments had to be made. Thus rule 8(i)
only requires that for every three direct recruits appointed as Deputy
Engineers only one promotee can be appointed as officiating Deputy Engineer.
The rule cannot be construed to mean that for every three confirmations of
Deputy Engineers, not more than one promotee can be con- firmed as Deputy
Engineer." Relying upon the observations in the Patwardhan's case that the
quota 929 system was an important feature of the 1960 Rules, it was contended by
Mr. Tarkunde that it is not permissible to hold that the rule in this regard
had been relaxed by the Govern- ment or that it had at any point of time broken
down. We do not find it permissible to construe the statement in the judgment,
referred to, to lead to such a conclusion. This argument, as has been addressed
before us on the basis of the quota rule as an additional contention was not
pressed in Patwardhan's case and so there was no occasion for this Court to
deal with the same. The observations referred to by Mr. Tarkunde were made in a
different context altogether. If it be assumed that this argument was
constructively involved in the Patwardhan's case, then it follows that the same
must be deemed to have been overruled. The case clearly, in unambiguous terms,
rejected the claim of the direct recruits for seniority over the promotees. The
appellants by trying to interpret a part of the observation made in the
judgment in a different context, in an artificial and uncalled for manner, are
suggesting that the judgment is self-contradic- tory, but we do not find any
justification for such an inference.
28.
Still another point confined against a certain category of the officiating
Deputy Engineers who were not included in the frozen cadre under the 1970 Rules
was at- tempted. The contention is that the expressions "all the promoted
Deputy Engineers" and "all directly recruited Deputy Engineers"
used in Patwardhan's case should be given restricted meaning, so as not to
include those officiating Deputy Engineers who were not included in the frozen
cadre within the group of "promoted Deputy Engineers"; and the
Assistant Engineers Class II within the group of "directly appointed
Deputy Engineers". It is said that although in the judgment it was stated
that the different groups in the Service were there in representative capacity,
these groups were actually not represented. Even assuming that to be so, it is
not possible to hold that the principle of seniority being dependent on
continuous officiation will not apply to these groups of the officers. The
reasons for rejecting the case of the appellants are equally applicable to all
the promoted Deputy Engineers including those who were earlier Sub-Divisional
Engineers and Sub-Divisional Officers, as well as all the directly recruited
Deputy Engineers. The suggested division of the two groups into further sub-cate-
gories will result in illegal discrimination.
29.
Mr. Tarkunde also urged that as a result of the judgment in Patwardhan's case
it was not necessary to frame the entire rules afresh, inasmuch as only r.
8(iii) of the 1960 Rules and r. 33 of the 1970 Rules 930 had been struck down.
The grievance against the 1982 Rules is that it has disturbed the order of
seniority of the parties with retrospective effect, which is illegal. The
argument has to be rejected as it fails to take note of the finding that the
direct recruits who joined the service later than the promotees were at no
point of time senior.The 1982 Rules merely recognised this position and gave
effect to it. They have (excepting the arbitrary and discriminatory provisions
of rr. 4 and 9) undone the inequality, inequity and illegality which were the
products of the offending provisions of the earlier Rules, and there is no
reason whatsoever to doubt their validity.
30.
The judgment of the Bombay High Court striking down rr. 4 and 9 of the 1982
Rules has been seriously criticised on behalf of the appellants. The grounds of
challenge, however, are the same which have been considered earlier.
Excepting
the State of Maharashtra challenging this judgment in S.L.P.
Nos. 16614-15 of 1983 no other party has directly impugned it. So far Mr. A.S. Bhasme,
who appeared on behalf of the State of Maharashtra, is concerned, he faintly
de- fended all the steps of the State taken from time to time, and made certain
statements which were criticised on behalf of the appellants in the Civil
Appeals as amounting to Unjustified concessions in favour of the promotees.
Since we have not gone by the stand taken on behalf of the State of Maharashtra
before us during the argument, and our decision is based on a consideration of
the merits of the different questions argued by the parties and not on any
concession, we do not consider it necessary to deal with Mr. Bhasme's argument
at any length. We hold that the rr. 4 and 9 of the 1982 Rules were tightly
struck down and consequently the 1984 Rules were correctly framed and have to
be upheld as legal and valid.
31.
Mr. Tarkunde took great pains in analysing the practical effect of the judgment
in Patwardhan's case with which we agree and contended that the direct recruits
shall suffer seriously if the present Civil Appeals, Writ Peti- tions and the
Special Leave Petitions are not allowed. Mr. Singhvi challenged the figures
worked out on behalf of the appellants. We do not consider it necessary to go
into this controversy as it cannot be denied that as a result of Patwardhan's
case and on dismissal of present cases a large number of promotees have to be
treated as senior to the direct recruits, and in that sense the direct recruits
do suffer. This, however, cannot be avoided. If their case on merits is not
correct, it cannot be assumed that they were at any point of time clothed with
any right, which they are being deprived of. If the decision in Patwardhan's
case had been given effect to promptly, many 931 of them would have been
reverted to inferior posts but by their persistance, both before the higher
authorities of the State and the Courts, they have sufficiently delayed the
matter so as to avoid the reversion of any one of them.
32.
Mr. Bhandare, appearing in W.P. No. 5187 of 1983 and W.P. No. 8594 of 1983,
generally adopted the argument ad- dressed by Mr. Tarkunde and added by saying
that the offi- cers should have been, on a proper classification, divided into
3 classes. namely_, (i) Assistant Engineers Class I, (ii) the Deputy Engineers
directly recruited in Class II, and (iii) the officiating Deputy Engineers
promoted from Class III, and quota should have been fixed separately for 3 classes
right up to the top stage where appointments are to be made by promotion. He
prayed for a direction to the authorities to frame fresh rules including
appropriate provisions on the lines suggested by him. In view of our finding
that the 1982 Rules as amended by the 1984 Rules do not suffer from any
infirmity, there is no occasion for issuing any further direction. So far the
question of fixing the ratio of the appointments from different sources is
concerned, it is a matter of policy for the Government and it is not for us to
offer our advice.
33.
The petitioner in W.P. No. 5187 of 1983, S.B. Soho- ni, was directly appointed
as a Deputy Engineer in March 1961 and was confirmed in 1963. It was,
therefore, rightly pointed out by Mr. Sighvi that he was not concerned with the
1978 Rules at all. The writ petition, in absence of grounds relating to the
1978 Rules, confirms this impression. He has of course challenged the 1982
Rules, as they stood before the amendment in 1984, but did not, after 1984 amendment,
make any prayer for modification of his writ petition. He also did not consider
it necessary to file an appeal against the High Court judgment. No additional
ground has been raised on his behalf to be dealt with separately.
34. So
far the petitioner in Writ Petition No. 8594 of 1983, J.T. Jangle is concerned,
he was an earlier appointee and was included in the seniority list of November
1956.
This
list was confirmed by the decision in Patwardhan's case (vide page 800G of the
judgment as reported in [1977] 3 SCR 775). It has been stated in his petition
that although some junior officers were promoted as Executive Engineers earli- er,
his promotion was delayed and took place in October 1973. He has not given the
details in this regard or the names of the junior officers who superseded him.
He was not considered eligible for promotion as Executive Engineer earlier as
he had not completed 7 years' service as required by the 1960 Rules. He has not
impleaded those who 932 have superseded him and has not made any specific
prayer in this regard. Besides, in view of the decision in P.Y. Joshi's case
(supra) he could not have claimed promotion before completing 7 years of
service. We do not find any merit in either of the two writ petitions-W.P. No.
5187 of 1983 and W.P. No. 8594 of 1983--pressed by Mr. Bhandare.
35.
Writ Petition No. 1327 of 1982 was argued by J.H.
Bhatia,
the petitioner, in person. He was directly recruited as Deputy Engineer Class
II in July 1959 and has challenged the constitutional validity of the 1978
Rules. Mr. Singhvi, the learned counsel for the respondents, took a preliminary
objection to the maintainability of the writ application on the ground that his
claim stands barred by principles of res judicata. Admittedly, he was
represented in W.P. No. 672 of 1981, filed before the Bombay High Court which
was dismissed on 7.9. 1981, upholding 1978 Rules. An application under article
136 of the Constitution being numbered as S.L.P. No. 8064 of 1981 was filed
from this judgment in representative capacity and was dismissed by this Court
on 29.12. 1981.
These
facts were not denied by the petitioner before us, and it was therefore
contended on behalf of the respondents that so far the validity of the 1978
Rules is concerned, it must be held to be binding on the petitioner in respect
of iden- tical relief now pressed by him in the present writ case.
The
objection appears to be well founded. It is well estab- lished that the
principles of res judicate are applicable to writ petitions. The relief prayed
for on behalf of the petitioner in the present case is the same as he would
have, in the event of his success, obtained in the earlier writ petition before
the High Court. The petitioner in reply contended that since the special 'leave
petition before this Court was dismissed in limine without giving any reason,
the order cannot be relied upon for a plea of res judicata. The answer is that
it is not the order of this Court dismissing the special leave petition which
is being relied upon; the plea of res judicata has been pressed on the basis of
the High Court's judgment which became final after the dismissal of the special
leave petition. In similar situation a Con- stitution Bench of this Court in Daryao
and Others v. The State of U.P. and Others, [1962] 1 SCR 574, held that where
the High Court dismisses a writ petition under article 226 of the Constitution
after hearing the matter on the merits, a subsequent petition in the Supreme
Court under Article 32 on the same facts and for the same reliefs filed by the
same parties will be barred by the general principle of res judicata. The
binding character of judgments of courts of competent jurisdiction is in
essence a part of the rule of law on which the administration of justice, so
much empha- sised by the Constitution, is 933 rounded and a judgment of the
High Court under article 226 passed after a hearing on the merits must bind the
parties till set aside in appeal as provided by the Constitution and cannot be
permitted to be circumvented by a petition under Article 32. An attempted
change in the form of the petition or the grounds cannot be allowed to defeat
the plea as was observed at page 595 of the reported judgment, thus:
"We
are satisfied that a change in the form of attack against the impugned statute
would make no difference to the true legal position that the writ petition in
the High Court and the present writ petition are directed against the same
statute and the grounds raised by the petitioner in that behalf are
substantially the same." The decision in Forward Construction Co. and
others v. Prab- hat Mandal (Regd.), Andheri and Others, [1986] 1 SCC 100,
further clarified the position by holding that an adjudica- tion is conclusive
and final not only as to the actual matter determined but as to every other
matter which the parties might and ought to have litigated and have had decided
as incidental to or essentially connected with subject matter of the litigation
and every matter coming into the legitimate purview of the original action both
in respect of the matters of claim and defence. Thus, the principle of
constructive res judicata underlying Explana- tion IV of s. 11 of the Code of
Civil Procedure was applied to writ case. We, accordingly hold that the writ
case is fit to be dismissed on the ground of res judicata.
36.
The petitioner, however, was permitted during the hearing, to place his case on
merits and he did so at some length, and Mr. Singhvi replied thereto. We have
considered the arguments carefully and do not find any substance in the claim
of the petitioner and we proceed to indicate our reasons briefly.
37.
The petitioner J.H. Bhatia was appointed Deputy Engineer as a direct recruit in
1959 and was promoted as Executive Engineer in 1969. According to his case, he
was governed by the 1941 Rules and was, therefore, entitled to a higher
position in the list of seniority. It has been con- tended by him that he was
entitled to the benefit of either the 1941 Rules or the provision relating to
quota in 1960 Rules and in either event he. would have been eligible for
promotion to the rank of Executive Engineer three years earlier, that is, in
1966. On account of this delay in his promotion he seriously suffered by the
further delay in his next promotion as Superintending Engineer by a considerable
934 period. With reference to the criticism against the 1941 Rules in the
judgment of Patwardhan's case the petitioner urged that the same should be
treated as passing remarks.
fit to
be ignored. Alternatively he has adopted the argu- ments addressed on behalf of
the appellants challenging the correctness of the decision in Patwardhan's cast
38. As
has been stated earlier, the seniority list of the Deputy Engineers for the
period up to 1.11.1956 was confirmed in the Patwardhan's case. The question of
deter- mining the seniority for the subsequent period arose in pursuance of the
further decision in this judgment. The 1960 Rules were enforced with effect
from 30.4.1960 which intro- duced, for the first time, several new provisions
including the quota rule. The period from 1.11.1956 to 30.4.1960 was,
therefore, separately dealt with by framing the 1978 Rules under Article 309 of
the Constitution. In accordance with the decision in Patwardhan's case the
seniority list of the Deputy Engineers as on 1.11.1956 was declared by these
Rules as valid, final and binding, and thereafter the further seniority fists
were directed to be prepared for the years 1957, 1958, 1959 and 1960 on the
basis of continuous offici- ation in accordance with the judgment. The petitioner
con- tends that the judgment in Patwardhan's case cannot be interpreted to have
struck down the 1941 Rules and the claim of the direct recruits appointed prior
to the coming in force of the 1960 Rules must be upheld in view of the provi- sions
of r. 2 of the 1941 Rules. The 1941 Rules contained only two rules which are
quoted below:
"1.
In the case of direct recruits appointed substantively on probation, the
seniority should be determined with refer- ence to the date of their
appointment on probation.
2. In
the case of officers promoted to substantive vacan- cies, the seniority should
be determined with reference to the date of their promotion to the substantive
vacancies provided there has been no break in service prior to theft
confirmation in those vacancies."
39.
Mr. Singhvi replied by saying that r. 2, aforemen- tioned, when properly
understood, does not help the peti- tioner at all, inasmuch as the rule refers
to substantive vacancies and not permanent appointments., and substantive
vacancies can arise even in temporary posts. Reliance was placed on the
observations in Baleshwar Dass' V. [1981] 1 SCR 449. However, we do not
consider it necessary to deal with this argument, as in our view the petitioner
cannot succeed even 935 otherwise. The substance of the petitioner's argument
is again the same as has been contended on behalf of the appel- lants in the
Civil Appeals, namely, that the principle of seniority being dependent on
continuous officiation as laid down in Patwardhan's case should not be
accepted. The con- tention is that the seniority ought to be reckoned with
reference to the dates of permanent appointment in the cadre. This argument
precisely was rejected in Patwardhan's case and we are in complete agreement
with the same. We also do not accept the argument of the petitioner that the judg-
ment did not deal with the 194 1 Rules. The said Rules were pointedly
considered at pages 790G79 IE in the published report and it was, inter alia,
held, "The 194 1 Rules contained the real germ of discrimination because
the promotees had to depend upon the unguided pleas- ure of the Government for
orders of confirmation. In the pre-Constitution era, such hostile treatement
had to be suffered silently as a necessary incident of government service. ' '
It has to be remembered that the 1941 Rules, made under an executive
instruction, do not stand on a stronger footing than the provisions of the
subsequent similar Rules which have been struck down on the ground of illegal discrimina-
tion; and as in the case of the 1982 and the 1984 Rules, the 1978 Rules also
were framed under Article 309 of the Consti- tution. No valid objection can be
taken against the 1978 Rules made for undoing the wrong resulting from arbitrari-
ness and offensive discrimination which had visited the promotees.
40.
Mr. Bhatia has, by his written argument, belatedly alleged mala fides on the
part of the State Government on the ground that it failed to prepare and
publish select fists for a number of years and it attempted to mislead this
Court by not stating the correct position in regard to the cadre of the Deputy
Engineers and the 1941 Rules. We do not find any justification for the
petitioner or any other direct recruit to urge lack of bona fides on the part
of the State. We do not find any merit in any of the submissions addressed by
the petitioner.
41.
The retired Superintending Engineer, Shripad Shankar Patwardhan, intervenor in
Writ Petitions No. 1327 of 1982, 5187 of 1983 and 8594 of 1983, also made a few
submissions in person and filed a note of his argument in the shape of an
affidavit. He has not raised any additional ground, and it is not necessary to
discuss his case any further.
936
42.
The two petitioners in Writ Petitions No. 3947-48 of 1983 are Executive
Engineers in the Irrigation Department of the Government of Gujarat. Although
the case was initially filed through advocates, at the hearing on a request by
them the petitioner No. 1 was allowed to argue the case in person on their
behalf. Besides impleading the State of Gujarat, the Government of Maharashtra and the Union of India as respondents
No. 1, 2 and 3 respectively, H.N. Shah, another officer of the same Department,
was, made a party as re- spondent No. 4 in the writ petition. The case of the peti-
tioners is that the respondent No. 4 was junior to them and was erroneously
treated as senior in the seniority lists for the period 1.11.1956 to 30.4.1960
prepared in accordance with the 1978 Rules.
The
writ petition states that the petitioners were in Subordinate Engineering
service of the former State of Bombay when they appeared at the competitive
examination held for direct recruitment and were appointed Deputy Engi- neers.
At the same examination, H.N. Shah, respondent No. 4, who was an officiating
Deputy Engineer, also appeared and was appointed a Deputy Engineer as a direct
recruit and his name appeared in the list below the petitioners. After the
bifurcation of the two States of Maharashtra and Gujarat in 1960, the petitioners as well as the respondent No. 4 were
allocated to the State of Gujarat. In
1969 the petitioner No. 1 and the respondent No. 4 were promoted as Executive
Engineers and the name of the respondent No. 4 was again shown lower in the
list. It is stated in paragraph 13 of the writ petition that the petitioner No.
2 was temporarily dropped in this promotion order on administrative grounds.
It is
contended on behalf of the petitioners that these lists correctly placed the
respondent No. 4 below the peti- tioners but the subsequent lists prepared in
pursuance of the 1978 Rules wrongly show him as senior.
A
counter affidavit on behalf of the State of Maharash- tra was filed inter alia denying several allegations in the writ
petitions explaining certain circumstances by giving all the relevant materials,
and explaining the situation.
S.B. Patwardhan,
the petitioner in the reported case, also intervened and refuted the claim of
the petitioners. The respondent no. 4 has retired in the meantime and has not
appeared in this case.
The
petitioner no. 1, after making a very brief argu- ment, filed written
submissions, but since in our view the Patwardhan's case was correctly decided,
the State was under a duty to prepare fresh 937 seniority lists for the period
1.11, 1956 to 30.4.1960, and this was done after framing the 1978 Rules. We do
not find any merit in the challenge to the 1978 Rules, as indicated earlier,
and in that view these writ petitions are fit to be rejected, specially as the
respondent No. 4 has already retired.
43.
The only other case which was separately argued on behalf of the petitioners
was Writ Petition No. 12570-72 of 1983. Mr.'Vinod Arvind Bobde, the learned
counsel for the petitioners, in a brief submission adopted the argument of Mr. Tarkunde
and reiterated that the finding in the Patward- han's case about the temporary
posts being included in the main cadre was erroneous. The point has already
been dealt with.
44. To
sum up, we hold that:
(A)
Once an incumbent is appointed to a post according to rule, his seniority has
to be counted from the date of his appointment and not according to the date of
his confirma- tion.
The
corollary of the above rule is that where the initial appointment is only ad
hoc and not according to rules and made as a stop-gap arrangement, the officiation
in such post cannot be taken into account for considering the seniority.
(B) If
the initial appointment is not made by following the procedure laid down by the
rules but the appointee continues in the post uninterruptedly till the regularisa-
tion of his service in accordance with the rules, the period of officiating
service will be counted.
(C)
When appointments are made from more than one source, it is permissible to fix
the ratio for recruitment from the different sources, and if rules are framed
in this regard they must ordinarily be followed strictly.
(D) If
it becomes impossible to adhere to the existing quota rule, it should be
substituted by an appropriate rule to meet the needs of the situation. In case,
however, the quota rule is not followed continuously for a number of years
because it was impossible to do so the inference is irresistible that the quota
rule had broken down.
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(E) Where the quota rule has broken down and the appoint- ments are made from
one source in excess of the quota, but are made after following the procedure
prescribed by the rules for the appointment, the appointees should not be
pushed down below the appointees from the other source inducted in the service
at a later date.
(F)
Where the rules permit the authorities to relax the provisions relating to the
quota, ordinarily a presumption should be raised that there was such relaxation
when there is a deviation from the quota rule.
(G)
The quota for recruitment from the different sources may be prescribed by
executive instructions, if the rules are silent on the subject.
(H) If
the quota rule is prescribed by an executive instruction, and is not followed
continuously for a number of years, the inference is that the executive
instruction has ceased to remain operative.
(I) The
posts held by the permanent Deputy Engineers as well as the officiating Deputy
Engineers under the State of Maharashtra
belonged to the single cadre of Deputy Engi- neers.
(J)
The decision dealing with important questions con- cerning a particular service
given after careful considera- tion should be respected rather than scrutinised
for finding out any possible error. It is not in the interest of Service to
unsettle a settled position.
With
respect to Writ Petition No. 1327 of 1982, we further hold:
(K)
That a dispute raised by an application under article 32 of the Constitution
must be held to be barred by principles of res judicata including the rule of
constructive res judicata if the same has been earlier decided by a competent
court by a judgment which became final.
In
view of the above and the other findings recorded earli- er, we do not find any
merit in any of the civil appeals, writ petitions and special leave petitions
which are accord- ingly dismissed. There will be, however, no order as to
costs.
G .N.
Appeals and Petitions are dismissed.
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