As per case facts, promotions to Executive Engineer posts in the CPWD from Assistant Executive Engineers (AEs) involved a quota system that was not properly adhered to, leading to many ...
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PETITIONER:
P.S.MAHAL & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT23/05/1984
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
PATHAK, R.S.
CITATION:
1984 AIR 1291 1984 SCR (3) 847
1984 SCC (4) 545 1984 SCALE (1)949
CITATOR INFO :
E 1984 SC1527 (12)
D 1985 SC 781 (13)
F 1985 SC1019 (19)
R 1985 SC1558 (28)
RF 1985 SC1605 (16)
R 1986 SC 638 (12,24)
F 1987 SC 424 (24)
E 1987 SC2359 (16)
D 1990 SC1607 (26)
D 1991 SC 958 (13)
RF 1991 SC1202 (31)
ACT:
Executive Engineers, Central Engineering and Central
Electrical Engineering Service (Group A) (Regulation of
Seniority) Rules, 1976, brought into force with
retrospective effect from 10th December, 1974-Rules 2(ii)
and 2(iv) -Constitutional validity of-Whether the rules
violate the provisions of Articles 14 and 16(i) of the
Constitution.
Inter-se Seniority of Executive Engineers promoted
regularly within their respective quota from and after 22nd
December 1959 but before 11th December, 1974 from the posts
of Assistant Executive Engineers governed by the Central
Engineering Service (Class-I) Recruitment Rules, 1954 and
Assistant Engineers governed by Central Engineering Service
(Class-II) Recruitment Rules 1954, as refixed by the
Seniority List dated August 14, 1975-Whether irregular and
contrary to the guidelines indicated in the decisions
reported as A.K. Subraman v. Union of India [1975] 2 S.C.R.
979=Quota rule in Rule 4 of the Central Engineering Service
(Class-I) Rules, 1954 when applicable.
HEADNOTE:
In the Central Public Works Department of the Ministry
of Works and Housing, Government of India, the promotions to
the posts of Executive Engineers are made from amongst
Assistant Executive Engineers (Class-I) who have rendered
more than five years of their service in their grade on the
basis of seniority-cum fitness and also from Assistant
Engineers (Class-II) who have rendered more than eight years
of service in their grade on the basis of merit, the
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selection being made through a departmental promotion
committee presided over by a member of the Union Public
Service Commission, since for the latter the post of
Executive Engineer is a selection post. Promotion to the
grade of Executive Engineers, for the first time, on 25th
August, 1949, a quota in the ratio of 75% to 25% was
prescribed by the Central Government. This was continued
right upto the Recruitment Rules 1954 were enacted for these
two categories. From September 7,1955, this quota was
altered with retrospective effect to 66-2/3% and 33-1/3% and
it was again altered with effect from April 1, 1972 to 50 :
50 for a period of seven years.
However, at the time of promotions not only the quota
was not adhered to with the result that Assistant Engineers
came to be promoted
848
with Executive Engineers far in excess of their quota, while
there was a shortfall in the promotions of Assistant
Executive Engineers, so far as their quota was concerned,
but all of them were treated as officiating Executive
Engineers.
There was no statutory rules governing inter-se
seniority of Executive Engineers promoted from these two
grades. They were therefore, governed by the Memorandum
issued by the Home Ministry on June 22nd, 1949 which laid
down the general principles of seniority applicable to all
departments of the government. The Memorandum provided that
"in respect of persons employed in any particular grade,
seniority should, as a general rule, be determined on the
basis of length of service in that grade as well as service
in an equivalent grade irrespective whether the latter was
under Central or Provincial Government in India or
Pakistan." The length of continuous officiation in the grade
was thus taken as the yardstick for the purpose of
determining seniority in all departments of the government
and a fortiorari, in the grade of Executive Engineers. On
the basis of this yardstick, Assistant Engineers promoted as
officiating Executive Engineers within their quota would
clearly be senior to Assistant Executive Engineers promoted
later as officiating Executive Engineers.
Respondents 1 to 3 issued a seniority list on 1st July,
1971 in which Executive Engineers promoted from the grade of
Assistant Engineers in regular manner on the basis of
selection made by Departmental Promotion Committee and
within their quota were shown as junior to several Executive
Engineers promoted much later from the grade of Assistant
Executive Engineers. Respondents 1 to 3, in making this
seniority list proceeded on the basis that the quota rule
specified in the last part of sub-rule (2) of Rule 4 of the
Recruitment Rules necessarily implied a system of rotation
and it was required to be strictly applied at the stage of
confirmation in the grade of Executive Engineers, In other
words, out of three vacancies in the grade of Executive
Engineers, unless two reserved for promotion of Assistant
Executive Engineers were filled up by confirmation of such
promotees, the third one for confirmation of an Assistant
Engineer promoted as Executive Engineer could not be filled.
Consequently, all Assistant Engineers were treated as ad-hoc
appointees without any claim to seniority until such time as
they were confirmed as Executive Engineers within their
quota. The impact of this decision of Respondents Nos. 1 to
3 was disastrous for a large number of Executive Engineers
promoted from the grade of Assistant Engineers on
officiating basis, since many of them had to retire without
being confirmed and therefore, without any claim of
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seniority in the grade of Executive Engineers and the
position continues to exist till date. Therefore the
aggrieved Assistant Engineers filed a writ petition before
the Delhi High Court. The Full Bench of that Court
dismissed, the said petitions. In the appeals, by a common
judgment reported A. K. Subraman and Ors. v. Union of India
and Ors. [1975] 2 S.C.R. 979; the Supreme Court accepted the
contention of the petitioners that the quota rule was to be
applied at the stage of initial promotion in officiating
capacity to the grade of Executive Engineers and not at the
stage of confirmation and that it did not necessarily imply
the rotational system and since the general principles
849
for determining seniority laid down in the Memorandum dated
22nd June, 1949 were, on their plain terms, applicable,
seniority in the grade of Executive Engineers was liable to
be fixed on the basis of length of continuous officiation in
that grade as provided in the Memorandum. The Court allowed
the appeal after summarising its conclusions in the form of
following six propositions namely:
(1) when Assistant Engineers (Class-II) are initially
appointed in a regular manner in accordance with the rules
to officiate as Executive Engineers, their seniority in the
service in Grade-I will count from the date of their initial
officiating appointment in Class I provided their initial
officiating appointment as Executive Engineers was within
their quota;
(2) Their seniority will not be reckoned from the date
of their future confirmation in Class-I. The above principle
is, however, subject to one reservation, namely, if an
Assistant Engineer, before his confirmation in Class II were
appointed to officiate in Class I in the grade of Executive
Engineer, although within his quota, his seniority will
count only from the date of his confirmation in Class II as
permanent Assistant Engineer notwithstanding his earlier
officiating appointment as Executive Engineer;
(3) The quota rule will be enforced at the time of
initial recruitment, in an officiating capacity to the grade
of Executive Engineer and not at the time of confirmation;
(4) The quota rule will be enforced with reference to
vacancies in all posts, whether permanent or temporary
including in the sanctioned strength of the cadre (except
such vacancies as are purely of a fortuitous or adventitious
nature) and the operation of the quota rule will depend upon
the availability or non availability of Assistant Executive
Engineers for appointment as Executive Engineers. The non-
availability of Assistant Executive Engineers for
recruitment to the grade of Executive Engineer will not
postpone the regular recruitment of the Assistant Executive
Engineers within their quota.
(5) Once the Assistant Engineers are regularly
appointed to officiate as Executive Engineers within their
quota they will be entitled to consideration in their own
rights as Class I officers to further promotions. Their
"birth marks" in their earlier service will be of no
relevance once they are regularly officiating in the grade
of Executive Engineer within their quota.
(6) If Assistant Engineers are recruited as Executive
Engineers in excess of their quota in a particular year they
will be pushed down to later years for absorption when due
within their quota." and directed the respondents Nos. 1 to
3 to amend and revise the seniority list of 1st July 1971 in
the light of the directions given in the judgment and to
give effect to the revised seniority list so prepared.
850
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Respondents Nos. 1 to 3, thereafter, issued a seniority
list on 14th August, 1975 accompanied by a memorandum
bearing the same date in which it was stated that the
seniority list of Executive Engineers had been raised in the
light of the judgment of the Supreme Court dated 11th
December, 1974 in accordance with the principle set out in
the memorandum. For the purpose of determining the seniority
in the grade of Executive Engineers from and after 22nd
December, 1959 respondents Nos. 1 to 3 introduced the carry
forward principle and applied the rotational formula. The
officers who had been, with the concurrence of the Union
Public Service Commission, officiating as Executive
Engineers prior to 25th August, 1949 and continued to do so
thereafter were shown en bloc senior to the officers
appointed after 25th August, 1949 and so far as the period
between 25th August 1949 and 21st December, 1959 was
concerned the inter se seniority of persons promoted during
that period from the grades of Assistant Engineers and
Assistant Executive Engineers within their respective quotas
was determined in accordance with the length of their
regular continuous service as Executive Engineers, subject
to the qualification that in case of Assistant Engineers who
were promoted as Executive Engineers the length of their
regular continuous service as Executive Engineers for the
purpose of determining seniority would be computed only from
the date when they were confirmed as Assistant Engineer.
But with effect from 22nd December 1959, a departure
was made by respondent Nos. 1 to 3 from the principle of
continuous officiation and "carry forward principle was
applied by providing that 86 posts earmarked for promotion
of Assistant Executive Engineers to the grade of Executive
Engineers in accordance with their quota during the period
prior to 22nd December, 1959 which had remained unfilled
owing to non-availability of Assistant Executive Engineers
upto 22nd December 1959 should be carried forward and 86
Assistant Executive Engineers promoted after 22nd December,
1959 should be adjusted against these posts and they should
be assigned seniority en bloc immediately below the last
Executive Engineer promoted regularly prior to 22nd
December, 1959. The result was that the Assistant Engineers
who had been promoted as Executive Engineers regularly
within their quota subsequent to 22nd December 1959 became
junior to the Assistant Executive Engineers promoted against
these 86 carried forward posts, even though they might have
been promoted as Executive Engineers long prior to the
promotion of such Assistant Executive Engineers. The
Assistant Executive Engineers promoted and adjusted against
these 86 carried forward posts, were given seniority above
the Assistant Engineers promoted regularly within their
quota after 22nd December, 1959 irrespective as to when such
Assistant Executive Engineers were actually promoted. These
posts were adjusted on the basis of the order in which the
vacancies in the respective quotas of Assistant Executive
Engineers and Assistant Engineers for promotion as Executive
Engineers were allocated from time to time. The seniority
inter-se of Assistant Executive Engineers and Assistant
Engineers promoted regularly within their respective quotas
subsequent to 22nd December, 1959 was thus determined by the
application of the rotation formula based on the quota
prevailing at the relevant time. But since it had not been
possible to fill all the posts allocated to the Assistant
Executive Engineers' quota and some posts remained unfilled,
they were shown as vacant
851
in the seniority list prepared according to the roster based
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on the rotational formula so that as and when Assistant
Executive Engineers might be promoted as Executive Engineers
regularly within their quota, they would occupy the vacant
posts earmarked for them in the seniority list. The
disastrous effect of the revised seniority list was that
most of the Assistant Engineers promoted as Executive
Engineers regularly within their quota subsequent to 22nd
December, 1959 lost a considerable number of places in
seniority and were placed in a much worse situation than
what they were in under the seniority list dated Ist July,
1971 which was quashed at their instance, in writ petitions.
A contempt application against respondents Nos. 1 to 3 was
therefore moved but, before the Court could hear the
objections against the seniority list on merits, the first
respondent issued on 8th June, 1976 the Executive Engineers,
Central Engineering and Central Electrical Engineering
Service (Group A) (Regulation of Seniority) Rules 1976.
These rules were deemed to have come into force with effect
from 10th December, 1974, that is one day before the
delivery of Judgment by this Court and they substantially
enacted in statutory form the same principles which were set
out in the memorandum that accompanied the seniority list
dated 14th August, 1975 and on which that seniority list was
based.
The petitioners, thereupon, filed the present writ
petitions contending that the Rules of 1976 were not
applicable to the petitioners and other Assistant Engineers
promoted as Executive Engineers regularly within their quota
prior to 10th December 1974 and if these Rules were held to
be applicable, they were unconstitutional and void. The
petitioners challenged the validity of the seniority list
dated 14th August, 1975 and the Rules of 1976 on the
following grounds, namely; (i) that it was the case of the
petitioners and other Executive Engineers promoted from the
grade of Assistant Engineers regularly within their quota
from and after 22nd December 1959 but before 11th December,
1954 is covered by the decision of this Court in A. K.
Subraman's case; (ii) that they are entitled to claim
seniority, on the basis of length of continuous officiating,
over Assistant Executive Engineers promoted as Executive
Engineers later in point of time; (iii) that the Assistant
Executive Engineers promoted and adjusted against 86 carried
forward posts cannot be given seniority en bloc over
Assistant Engineers promoted as Executive Engineers earlier;
(iv) that the rotational formula cannot be applied
retrospectively so as to deprive Assistant Engineers
promoted as Executive Engineers of their seniority on the
basis of length of continuous officiation in the grade of
Executive Engineers; (v) that the Rules of 1976 are, to that
extent, unconstitutional and void as being outside the power
of the Central Government; (vi) that since the Rules of 1976
have been brought into force with effect from 10th December,
1974, they cannot affect the petitioners and other Assistant
Engineers promoted as Executive Engineers regularly within
their quota prior to that date and their seniority vis-a-vis
Assistant Executive Engineers promoted as Executive
Engineers must continue to be governed by the principle of
length of continued officiation in the grade of Executive
Engineers; and (vii) that if the Rules of 1976 are
applicable for determining inter se seniority of Executive
Engineers promoted from the grades of Assistant Engineers
and Assistant Executive Engineers within their respective
quotas from and after 22nd December, 1959, they are
unconstitutional and
852
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void as offending Articles 14 and 16 of the Constitution,
since the seniority rules enunciated in the Rules of 1976
being closely linked with the quota rule continued massive
departure from the quota rule over a long period of time
must result in the break down of the seniority rules and to
apply the seniority rules in such a situation would create
gross inequality of opportunity of employment violative of
Articles 14 and 16.
Allowing the petitions, the Court,
^
HELD: 1.1 Rule 2(iii) of the Central Engineering and
Central Electrical Engineering Service Rules, 1976, in so
far as it gives en bloc seniority to the Assistant Executive
Engineers promoted to the eighty six vacancies carried
forward from the period prior to 22-12-1959 irrespective of
the date when they were actually promoted and pushed down in
seniority Assistant Engineers though promoted regularly
within their quota prior to the actual promotion of such
Assistant Executive Engineers, merely prejudicially
affecting their promotional opportunities is violative of
Articles 14 and 16 of the Constitution. [906B-D]
1.2 Rule 2(iv) of the said Rules also suffers from the
same infirmity as it provides for rotational rule of
seniority based on the prevailing quota for determining
inter-se seniority between Assistant Engineers and Assistant
Executive Engineers promoted to the grade of Executive
Engineers from and after 2nd December, 1959, subject to an
en bloc seniority being given to the Assistant Executive
Engineers promoted to the eighty six "carried forward"
vacancies as set out in Rule 2(iii). Obviously, if Rule
2(iii) providing for en bloc seniority to be given to the
Assistant Executive Engineers promoted to the eighty six
"carried forward" vacancies is unconstitutional and void,
Rule 2(iv) is also unconstitutional and void, when there has
been enormous deviation from the quota rule in the
promotions of Assistant Executive Engineers and such
deviation has continued from year to year over a period of
almost twenty five years. [906D-H]
1.3 The rotational rule of seniority is inextricably
linked up with the quota rule, and if the quota rule is not
strictly implemented and there is large deviation from it
regularly from year to year, it would grossly be
indiscriminatory and unjust to give effect to the rotational
rule of seniority. The rotational rule of seniority must
obviously break down when there is such massive departure
from the quota rule regularly from year to year leading to
continuously increasing deficiency in promotions of
Assistant Executive Engineers and corresponding excess in
promotions of Assistant Engineers. [908C-D, 909D-E]
T. Devdasan v. Union of India, AIR, [1964] S.C. 179;
Mervin Contindo v. The Collector of Customs, Bombay [1966] 3
SCR 600; G.D. Kelkar v. Chief Collector of Imports and
Exports [1967] 2 SCR 29; V.S. Badami v. State of Mysore
[1976] 1 SCR 815; N.K. Chauhan v. State of Gujarat, [1973]
SCR 1037; A. Janardhan v. Union of India AIR [1983] SC 769;
Bishan Swarup Gupta v. Union of India [1975] 1 SCR 104
referred to.
853
2.1 Notwithstanding Rules 2(iii) and 2(iv) of the Rules
of 1976, the inter se seniority between Assistant Engineers
and Assistant Executive Engineers promoted regularly within
their respective quota upto 11th December, 1974 must be
determined on the basis of length of continuous officiation
in the grade of Executive Engineers, subject of course to
the length of continuous officiation in the case of
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Assistant Engineers being computed from the date of their
confirmation as Assistant Engineers in view of decision of
the Supreme Court in Subraman's case. In this view carrying
forward of eighty six posts of Executive Engineers allocable
to Assistant Executive Engineers and giving up seniority en
bloc to the Assistant Executive Engineers promoted to the
'carry forward posts' by applying the rotational formula for
the purpose of determining seniority amongst Assistant
Engineers and Assistant Executive Engineers promoted to the
subsequent vacancies is ineffective quota Assistant
Engineers and Assistant Executive Engineers promoted upto
11th December 1974 and so far as these Assistant Engineers
and Assistant Executive Engineers are concerned, their i ter
se seniority must be held to be governed by the length of
continuous officiation in the grade of Executive Engineers.
[888H, 889A-B]
2.2 On a plain reading of the decision in Subraman's
case, it is obvious that the direction given by it in regard
to determination of inter se seniority on the basis of
length of continuous officiation was not limited to
Executive Engineers promoted from the grade of Assistant
Engineers and Assistant Executive Engineers upto 2nd
December, 1959 but was on its plain terms applicable to all
Executive Engineers promoted from the grade of Assistant
Engineers and Assistant Executive Engineers within their
respective quota right upto 11th December, 1974 being the
date of the decision of the Court. But the revised seniority
list dated 14th August, 1975 issued by the Government of
India was plainly in defiance of this direction given by the
Court. [872A-C, F-G]
2.3 When this Court in so many terms laid down that the
inter se seniority of Executive Engineers promoted from the
grades of Assistant Engineers and Assistant Executive
Engineers upto December 11, 1974 must be held to be governed
by the rule of length of continuous officiation and the
Government of India has been directed by a writ of the Court
to amend and revise the seniority, the effect of this
decision cannot be set at naught and the binding character
of the writ issued against the Government of India can be
abrogated by the mere promulgation of the Rules of 1976 with
retrospective effect from 10th December 1974. It is
significant to note that the Explanatory Memorandum which
was in the nature of statement of objects and reasons for
the Rules of 1976 did not seek to override the effect of the
decision in Subramn's case but on the contrary affirmed that
the principles of seniority set out in those rules were laid
down on the basis of the said decision. Since the Rules of
1976 purports merely to carry out the direction given in the
said decision they cannot have the effect of overriding that
decision and absolving the Govt. of India and the Government
of India, must, therefore, amend and revise the seniority
list of 1st July, 1971 by applying the rule of seniority
based on length of continuous officiation for determining
854
inter seniority of Executive Engineers promoted from the
grades of Assistant Engineers and Assistant Executive
Engineers upto 11th December, 1974. The relative position of
the Executive Engineers in regard to their inter se
seniority having been crystalised in the decision in
Subramn's case and a writ having been issued by he Court
directing the inter se seniority of the Executive Engineers
to be fixed on the basis of length of continuous officiation
the Executive Engineers promoted from the grade of Assistant
Engineers were entitled to enforce the writ for determining
the inter se seniority with the Executive Engineers in
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accordance with the rule of length of continuous
officiation. The right of the Executive Engineers promoted
from the grade of Assistant Engineers under the said
decision could not be taken away by anything contained in
the Rules of 1976. The decision in Subaraman's case
continued to subsist and the Government of India was bound
to a determine inter se seniority amongst Executive
Engineers in accordance with the direction contained in that
decision. If by reason of retrospective alteration of the
rule of seniority the decision is rendered erroneous, the
remedy may be by way of review, but so long as the decision
stands, it cannot be disregarded or ignored and it must be
obeyed by the Government of India, despite Rule 2(iii) and
2(iv) so far as the Executive Engineers promoted from the
grade of Assistant Engineers and Assistant Executive
Engineers Executive Engineers upto 11th December, 1974 are
concerned. [873E H, 874B-F,877A-B]
Further, the rule of seniority set out in paragraphs
5(ii) and 6 of the Memorandum of the Ministry of Home
Affairs dated 22.12.1959 has no application to the instant
case. [878E]
M.M. Pathak v. Union of India and Ors. [1978] 3 SCR 346
followed.
Shri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality [1970] 1 SCR 388 distinguished.
Patel Gordhandas Hargovindas v. Municipal Commissioner,
Ahmedabad [1964] 2 SCR 608 referred to.
3.1 If a vacancy arises on account of an incumbent
going on leave or for training on deputation for a short
period, it would be a fortuitous or adventitious vacancy and
the quota rule would not be attracted in case of such a
vacancy. But where a vacancy arises on account of the
incumbent going on deputation for a reasonably long period
and there is no reasonable likelihood of the person promoted
to fill such vacancy having to revert, the vacancy would be
subject to the quota rule, because it would be a regular
vacancy in the post of Executive Engineers and the person
promoted to fill the vacancy would be an officiating
Executive Engineer would continue as such without reversion
until confirmed and his promotion would, therefore, be by
way of recruitment to the cadre of Executive Engineers. Of
course, the vacancy which attracts the applicability of the
quota rule, is the vacancy in the post included in the
sanctioned strength of the cadre of Executive Engineers and
not the vacancy in the deputation post. There may be a
vacancy in a deputation post in another department or
organisation and an Executive Engineer holding a post
included in the sanctioned strength of the cadre of
Executive Engineers may be sent to such deputation post, but
the
855
vacancy which would call for the application of the quota
rule in such a case would be the vacancy arising in the post
of Executive Engineer within the cadre by reason of the
incumbent of that post going to the deputation post and not
the vacancy in the deputation post which would be filled up
by the Executive Engineer going on deputation. Therefore,
what has to be considered for the applicability of the quota
rule is a vacancy in a post included in the sanctioned
strength of the cadre of Executive Engineers and the
sanctioned strength which has to be taken into account, is
not merely the sanctioned strength of the cadre of Executive
Engineers in the entire Central Engineering Service, Class
I. The sanctioned strength of the cadre of Executive
Engineers in the Central Engineering Service, Class I, may
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include not only posts of Executive Engineers in the Central
Public Works Department but also posts of Executive
Engineers in other departments and organisations. [890H,
891A-G]
3.2 Therefore, it cannot be said that promotion to the
post of Executive Engineer contemplated under the Rules can
be made only where there is no lien of any officer on that
post because promotion according to the quota rule is
initial promotion in officiating capacity and not concerned
with confirmation. It is true that a confirmed Executive
Engineer who goes on deputation may revert to the post on
which he has a lien and so also an officiating Executive
Engineer who goes on deputation may revert back on
termination of his deputation and theoretically, in either
case, an Assistant Engineer or Assistant Executive Engineer
who is promoted to fill the vacancy arising on account of
deputation may have to revert, but in actual practice and
reality, not a single Assistant Engineer or Assistant
Executive Engineer who is promoted to fill the vacancy
arising on account of deputation, has had to revert, because
deputation is a normal feature in this service and 20 to 25
per cent of the Executive Engineers are continuously on
deputation. Even, if one Executive Engineer comes back on
termination of his deputation, another has to be sent in his
place and deputations thus go on rotating with the result
that the vacancy in the post of Executive Engineer arising
on account of deputation does not cease and the Assistant
Engineer or Assistant Executive Engineer promoted as
Executive Engineer to fill the vacancy does not ever have to
revert and consequently the vacancy filled by him is really
and truly a permanent and long term vacancy which has to be
filled according to the quota rule. In fact, if the quota
rule were not to be applied with reference to such a
vacancy, the position would be that whenever an Executive
Engineer goes on deputation for a period which may extend
anything between three to five years, the Central Government
would be entitled to promote an Assistant Engineer ignoring
the claims of Assistant Executive Engineers and this would
totally be arbitrary in a situation where 20 to 25 per cent
of Executive Engineers are on deputation. For this purpose
the vacancies in the posts of Executive Engineers arising on
account of deputation of Executive Engineers to other
departments, organisations and public undertakings for a
period of one or more years were long term vacancies and
they could not be regarded as fortutious or adventitious in
character and hence they were subject to the quota rule.
[891G-H, 895H, 896A, 897-F,
856
3.3 However, the vacancy pro tempore filled irregularly
by an Assistant Engineers would continue to belong to the
quota of Assistant Executive Engineers and it can be filled
only by the Assistant Executive Engineer, if the quota rule
is to be strictly observed. The death or retirement of an
irregular promotee to the vacancy cannot therefore give rise
to a fresh vacancy: it is the same vacancy which continues
until properly filled by promotion of an Assistant Executive
Engineer at a subsequent date. If in such a case the death
or retirement of an irregular appointed Assistant Engineer
were to be treated as creating a fresh vacancy, it would
lead to gross distortion. Similarly while pushing down
Executive Engineers promoted from the grade of Assistant
Engineers in excess of their quota in a subsequent year, the
Government must treat them as absorbed from the date when a
vacancy in that year arises in the quota of Assistant
Engineers and not on a national basis from 1st January of
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that year.
[900C-G, 901 C-D]
JUDGMENT:
ORIGINAL JURISDICTION Writ Petition Nos. 157-162 of
1976
(Under article 32 of the Constitution of India)
M.C. Bhandare, A.K. Ganguli, D.P. Mukherjee and Miss
C.K. Suchirata for the Petitioners.
M.M. Abdul Khader, Girish Chandra and Miss A.
Subhashini for Respondent.
M.K. Ramamurthi, J. Romamurthi and Mrs. R. Vaigai for
Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J. This writ petition marks yet another round
of litigation between two groups of Executive Engineers in
Central Public Works Department of the Ministry of Works and
Housing, Government of India, one group consisting of
promotees from the grade of Assistant Executive Engineers
and the other consisting of promotees from the grade of
Assistant Engineers. The dispute between these two groups in
regard to seniority has been going on for quite some time
and it has created considerable discord and bitterness
between these two groups which must inevitably affect the
efficiency of the Service. It is really a matter of regret
that the Central Government should not have been able to
bring these two groups together and evolve a commonly agreed
formula acceptable to both sides. We hope that our decision
in this writ petition will finally ring the curtain down on
this unfortunate controversy and both groups of Executive
Engineers will accept the decision ungrudgingly without any
rancour or resentment and wholeheartedly engage themselves
in the nation building task entrusted to them.
857
There is in the Central Public Works Department of
Ministry of Works and Housing, Government of India a Service
known as Central Engineering Service (Class I). This Service
comprises various grades; the highest grade is that of
Engineer-in-Chief and then in descending hierarchical order
are the grades of Chief Engineer, Superintending Engineer,
Executive Engineer and Assistant Executive Engineer. The
Central Government has made rules of recruitment to this
Service known as the Central Engineering Service (Class I)
Recruitment Rules 1954 (hereinafter referred to as
'Recruitment Rules') and they are issued under SRO 1841
dated 21st May 1954. Part I of the Recruitment Rules
contains the definition and Clause (c) of Rule 2 occurring
in this Part defines "Service" as Central Engineering
Service Class I. Rules 3, 4 and 5 contained in Part II of
the Recruitment Rules lay down the modes of recruitment to
various grades in this Service in the following terms:
"3 Recruitment to the service shall be made by any of
the following methods:-
(a) By competitive examination in India in accordance
with Part III of these rules.
(b) By promotion in accordance with Part IV of these
rules.
(c) By transfer in accordance with Part V of these
Rules.
4. (1) All appointments to the service or to posts
borne upon the cadre of the Service shall be made by
Government.
(2) Subject to the provisions of the rule 3
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 54
Government shall determine the method or methods of
requirement (Sic) (recruitment ?) to be employed for
the purpose of filling any particular vacancies in the
Service or such vacancies therein as may be required to
be filed during any particular period and the number of
candidates to be recruited by each method.
Provided that all recruitment by competitive
examination (vide Part III of the rules) shall be to
the grade of Assistant Executive Engineer, Class I
only.
Seventy-five per cent of the vacancies in the
grade of Executive Engineer, Class I, shall be filled
by promotion of Assistant Executive Engineers, Class I,
the rest of the vacancies being filled by promotion
and/or by transfer in accordance with Parts IV and V of
the Rules respectively.
858
5. Appointment to the Service made otherwise than by
promotion will be subject to orders issued from time to
time by the Ministry of Home Affairs regarding special
representation in the Services for specific sections of
the people".
Assistant Executive Engineers belong to the lowest grade in
this service and they are recruited only through a
competitive examination in accordance with Part III of the
Recruitment Rules. On their initial recruitment, Assistant
Executive Engineers are required to undergo a period of
probation for two years and they are confirmed in the grade
of Assistant Executive Engineers after successful completion
of the period of probation.
There is also another Service in the Central Public
Works Department called Central Engineering Service Class
II. This Service consists only of the grade of Assistant
Engineers. The rules of recruitment to the grade of
Assistant Engineers are to be found in the Central
Engineering Service Class II Recruitment Rules. There are
two modes of recruitment laid down in these Rules; one is by
direct recruitment through the same competitive examination
which is held for selection of Assistant Executive
Engineers, the candidates lower down in rank than those
selected for the grade of Assistant Executive Engineers
being selected for the grade of Assistant Engineers and the
other is by process of selection from a subordinate Service
called Class III Service. Assistant Engineers belong to
Class II service, unlike Assistant Executive Engineers who
belong to Class II service but the posts which they hold are
interchangeable, each of them being in charge of a sub-
division and the nature of work, responsibilities, powers
and duties discharged by them all is identical. There is
only a minor difference in the pay scales but otherwise for
all practical purposes, there is no difference between them
so far as their functions powers and duties are concerned.
The next higher grade above that of Assistant Executive
Engineers is that of Executive Engineers Recruitment to the
grade of Executive Engineers is made by promotion from two
sources, namely Assistant Executive Engineers and Assistant
Engineers. Assistant Executive Engineers are eligible for
promotion to the grade of Executive Engineers after
completion of five years of service and they are promoted on
the basis of seniority-cum-fitness. Assistant Engineers on
the other hand are eligible for promotion to the grade of
Executive Engineers only after eight years of Service in
their grade and for them, the post of Executive Engineer is
a selection post and they are selected
859
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for promotion on the basis of merit; the selection being
made through a departmental promotion committee presided
over by a member of the Union Public Service Commission.
Prior to 25th August 1949, there was no quota for promotion
to the grade of Executive Engineers from the grades of
Assistant Executive Engineers and Assistant Engineers but
for the first time on 25th August 1949, a quota was
prescribed by the Central Government and it was provided
that the vacancies in the grade of Executive Engineers shall
be filled by promotion from the grades of Assistant
Executive Engineers and Assistant Engineers in the ratio of
75% to 25%. This continued right up to the time the
Recruitment Rules were enacted in 1954 and that is why the
last part of clause (2) of Rule 4 of the Recruitment Rules
provided that 75% of the vacancies in the grade of Executive
Engineers shall be filled by promotion of Assistant
Executive Engineers, the rest of the vacancies being filled
by promotion and or by transfer in accordance with Parts IV
and V of the Recruitment Rules. This quota was altered with
retrospective effect from 7th September 1955 from 75 and 25
per cent to 66 2/3 and 33 1/3 per cent and it was again
altered with effect from 1st April 1972 to 50:50 for a
period of seven years.
It appears that whenever Assistant Executive Engineers
and Assistant Engineers were promoted to the grade of
Executive Engineers, they were first appointed on
officiating basis. The quota was however, for reasons which
we shall presently discuss not adhered to at the time of
such promotions with the result that Assistant Engineers
came to be promoted as officiating Executive Engineers far
in excess of their quota while there was a shortfall in the
promotions of Assistant Executive Engineers so far as their
quota was concerned. Now there were no statutory rules
governing inter se seniority of Executive Engineers promoted
from the grades of Assistant Executive Engineers and
Assistant Executive Engineers but there was a Memorandum
issued by the Home Ministry on 22nd June 1949 which laid
down general principles of seniority applicable to all
departments. This Memorandum provided that "in respect of
persons employed in any particular grade, seniority should,
as a general rule, be determined on the basis of length of
service in that grade as well as service in an equivalent
grade irrespective of whether the latter was under Central
or Provincial Government in India or Pakistan." The length
of continuous officiation in the grade was thus taken as the
yardstick for the purpose of determining seniority in all
departments of the government and a fortiorari, in the grade
of Executive Engineers. On the basis of this yardstick,
Assistant Engineers promoted as officiating
860
Executive Engineers within their quota would clearly be
senior to Assistant Executive Engineers promoted later as
officiating Executive Engineers.
However, Respondent No. 1 to 3 issued a seniority list
on 1st July 1971 in which Executive Engineers promoted from
the grade of Assistant Engineers in regular manner on the
basis of selection made by Departmental Promotion Committee
and within their quota were shown as junior to several
Executive Engineers promoted much later from the grade of
Assistant Engineers. Respondent No. 1 to 3 in making this
seniority list proceeded on the basis that the quota rule
specified in the last part of sub-rule (2) of Rule 4 of the
Recruitment Rules necessarily implied a system of rotation
and it was required to be strictly applied at the stage of
confirmation in the grade of Executive Engineers. In other
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words, out of three vacancies in the grade of Executive
Engineers, unless two reserved for promotion of Assistant
Executive Engineers were filled up by confirmation of such
promotees, the third one for confirmation of Assistant
Engineer promoted as Executive Engineer could not be filled.
Consequently, all Assistant Engineers were treated as ad-hoc
appointees without any claim to seniority until such time as
they were confirmed as Executive Engineers within their
quota. The impact of this decision of Respondent No. 1 to 3
was disastrous for a large number of Executive Engineers
promoted from the grade of Assistant Engineers on
officiating basis, since many of them had to retire without
being confirmed and therefore, without any claim of
seniority in the grade of Executive Engineers and even
today, according to the petitioners, there are hundreds of
officiating Executive Engineers promoted from the grade of
Assistant Engineers who are working in the Central Public
Works Department for decades without confirmation and
according to the principle adopted in preparing the
seniority list of 1st July 1971, they would have no claim to
seniority in the grade of Executive Engineers and would
become junior even to recent promotees from the grade of
Assistant Executive Engineers.
The seniority list dated 1st July 1971 was preceded by
provisional seniority lists which were prepared annually on
the basis of the same formula and some of the Executive
Engineers promoted from the grade of Assistant Engineers,
therefore, without waiting for the publication of the final
seniority list dated 1st July 1971 preferred writ petitions
in the Delhi High Court challenging the validity of the
provisional seniority lists. There writ petitions were
861
referred to a Full Bench since they involved questions of
some importance and the Full Bench by a common judgment
dated 20th May 1971 rejected the contentions of the
petitioners and concurring with the stand adopted by
respondent Nos. 1 to 3, held that the quota rule applied not
at the stage of initial promotion on officiating basis but
at the stage of confirmation and rotational formula for the
purpose of determining seniority was implicit in the quota
rule and on this view, the Full Bench upheld the provisional
seniority lists which, as already pointed out above, were on
the same lines as the final seniority list dated 1st July
1971 and which fixed seniority in the grade of Executive
Engineers according to the rotational formula based on the
quota rule. The petitioners in these writ petitions
thereupon preferred Civil Appeal Nos. 1745, 1746 & 1747 of
1974 after obtaining special leave to appeal against the
judgment of the Delhi High Court. Some other Executive
Engineers promoted from the grade of Assistant Engineers
also filed a direct writ petition in this Court being writ
petition 489 of 1972, challenging the seniority list of 1st
July 1971 on the ground that the seniority worked out by
applying the quota rule at the stage of confirmation and
adopting the rotational formula was illegal and that the
seniority ought to have been fixed on the basis of length of
continuous officiation in the grade of Executive Engineers.
These three civil appeals and writ petition were heard
together and decided by a common judgment of this Court
dated 11th December 1974 vide: A.K. Subraman & Ors. etc. v.
Union of India & ors. This Court accepted contention of the
petitioners that the quota rule was to be applied at the
stage of initial promotion in officiating capacity to the
grade of Executive Engineers and not at the stage of
confirmation and that it did not necessarily imply the
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rotational system and since the general principles for
determining seniority laid down in the Memorandum dated 22nd
June 1949 were, on their plain terms, applicable, seniority
in the grade of Executive Engineers was liable to be fixed
on the basis of length of continuous officiation in that
grade as provided in the Memorandum dated 22nd June 1949.
Some of the Executive Engineers promoted from the grade of
Assistant Executive Engineers who were respondents in the
writ petition as also in the civil appeal tried to meet the
contention of the petitioner by relying on a subsequent
Memorandum dated 22th December 1959 issued by the Ministry
of Home Affairs, Government of India but the learned
Solicitor General appearing on behalf of the Union of India
conceded that the said Memorandum had no application to the
case and was irrelevant and this Court also accepted the
same view. This
862
Court pointed out that since the cadre of Executive
Engineers consisted both of permanent as well as temporary
posts, the vacancies referred to in the quota rule comprised
vacancies not only in the permanent posts but also in the
temporary posts included in the sanctioned strength of the
cadre, barring only such vacancies as were purely of a
fortuitous or adventitious nature and the quota rule applied
at the stage when Assistant Engineers and Assistant
Executive Engineers were promoted even if it be in an
officiating capacity, irrespective of whether the vacancies
were in permanent posts or in temporary posts. This Court
also observed that for the purpose of applying the quota
rule, the year must be taken as a unit and the quota rule
must be applied in relation to the vacancies occuring in any
particular year. This Court also held, relying on the
observations in Bishan Swaroop Gupta v. Union of India &
Ors. (hereinafter referred to as the 1st Bishan Swaroop
Gupta case) that the ratio of promotions in the grade of
Executive Engineers in any particular year was not dependent
upon whether any persons from one class or the other were
promoted or not and this was made clear by giving an
illustration that if there were three vacancies in a
particular year, two would go to Assistant Executive
Engineers while one would go to the Assistant Engineers and
even if there were no eligible Assistant Executive Engineers
who could be promoted to fill in the two vacancies belonging
to their quota, one vacancy would have to be filled by
promotion of an Assistant Engineer. If in such a case,
having regard to the exigencies of the situation two
vacancies belonging to the quota of Assistant Executive
Engineers had to be filled in by Assistant Engineers for
want of availability of eligible Assistant Executive
Engineers, the appointment of Assistant Engineers to fill in
such two vacancies would be irregular because that would be
outside their quota but in that event, observed the Court,
they would have to be pushed down to later years when their
appointment could be regularised as a result of absorption
in their lawful quota for those three years. These
conclusions reached by the court were summarised in the form
of following six propositions at the close of the judgment:
(1) When Assistant Engineers Class (II) are initially
appointed in a regular manner in accordance with
the rules to officiate as Executive Engineers,
their seniority in service in Grade I will count
from the date of their initial officiating
appointment in Class I provided their initial
officiating appointment as Executive Engineers was
within their quota.
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863
(2) Their seniority will not be reckoned from the date
of their future confirmation in Class 1.
The above principle is, however, subject to
one reservation, namely, if an Assistant Engineer
before his confirmation in Class ll were appointed
to officiate in Class I in the grade of Executive
Engineer, although within his quota, his seniority
will count only from the date of his confirmation
in Class II as permanent Assistant Engineer not
with standing his earlier officiating appointment
as Executive Engineer.
(3) The quota rule will be enforced at the time of
initial recruitment, in an officiating capacity,
to the grade of Executive Engineer and not at the
time of confirmation.
(4) The quota rule will be enforced with reference to
vacancies in all posts, whether permanent or
temporary including in the sanctioned strength of
the cadre (except such vacancies as are purely of
a fortuitous or adventious nature) and the
operation of the quota rule will depend upon the
availability or non-availability or Assistant
Executive Engineers for appointment as Executive
Engineers. The non-availability of Assistant
Executive Engineers for recruitment to the grade
of Executive Engineer will not postpone the
regular recruitment of the Assistant Executive
Engineers within their quota.
(5) Once the Assistant Engineers are regularly
appointed to officiate as Executive Engineers
within their quota they will be entitled to
consideration in their own rights as Class I
officers to further promotions. Their "birth
marks" in their earlier service will be of no
relevance once they are regularly officiating in
the grade of Executive Engineer within their
quota.
(6) If Assistant Engineers are recruited as Executive
Engineers in excess of their quota in a particular
year they will be pushed down to later years for
absorption when due within their quota.
This Court accordingly allowed the writ petition and the
civil appeals and directed respondent Nos. 1 to 3 to amend
and revise the
864
seniority list of Ist July 1971 in the light of the
directions given in the judgment and to give effect to the
revised seniority list so prepared.
Though the aforesaid directions were given by this
Court for preparation of a revised seniority list as far
back as 11th December 1974 respondents Nos. I to 3 delayed
implementation of those directions for a period of over
three months and hence the petitioners in writ petition
No.489 of 1972 as also petitioner No. 3 in the present writ
petition filed CMP No. 2563/75 on 18th April 1975 for taking
action against respondent Nos. 1 to 3 for contempt of court.
Respondent No. 1 however, instead of complying with the
directions given by this Court and purging itself of the
contempt alleged to have been committed by it, filed CMP No.
3911 of 1975 dated 18th July 1975 for clarification of the
judgment on the ground that they felt some difficulty in
implementing the directions issued by the Court. This
application for clarification was rejected by the Court on
21st July 1975 on the ground that the principles laid down
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in the judgment dated 11th December 1974 were clear and the
Court did not "see need to clarify them any further," and
once again the Court ordered the first respondent to prepare
and publish a final seniority list in compliance with the
directions given on 11th December 1974. The Court kept the
application for contempt pending and adjourned it to 1st
September 1975. Respondent Nos. 1 to 3 thereafter issued a
revised seniority list on 14th August 1975. This seniority
list was accompanied by a Memorandum also dated 14th August
1975 in which it was stated that the seniority list of
Executive Engineers had been revised in the light of the
judgment of this Court dated 11th December 1974 in
accordance with the principles set out in that Memorandum.
We shall discuss these principles in detail when we deal
with the various arguments advanced on behalf of the
parties. We may, however, point out at this stage that,
broadly speaking, for the purpose of determining seniority
in the grade of Executive Engineers from and after 22nd
December 1959, respondent Nos. 1 to 3 introduced the carry
forward principle and applied the rotational formula. The
officers who had been, with the concurrence of the Union
Public Service Commission, officiating as Executive
Engineers prior to 25th August 1949 and continued to do so
there after were shown en bloc senior to the officers
appointed after 25th August 1949 and so far as the period
between 25th August 1949 and 21st December 1959 was
concerned, the inter se seniority of persons promoted during
that period from the grades of Assistant Engineers and
Assistant Executive Engineers within their respective quotas
was
865
determined in accordance with the length of their regular
continuous service as Executive Engineers, subject to the
qualification that in case of Assistant Engineers who were
promoted as Executive Engineers prior to their confirmation
in the grade of Assistant Engineers, the length of their
regular continuous service as Executive Engineers for the
purpose of determining seniority would be computed only from
the date when they were confirmed as Assistant Engineers. So
far there was no dispute raised on behalf of the petitioners
and it was conceded that the principle for determining
seniority applied by respondent Nos. I to 3 for the period
upto 21st December 1959 was valid. The petitioners also
conceded that those Assistant Engineers who had been
promoted in excess of their quota were rightly pushed down
and adjusted within their quota in subsequent years. Thus,
for example, Shri A.K. Subraman, the first petitioner in
writ petition No. 489 of 1972, though promoted in
officiating capacity as Executive Engineer on 27th December
1956 with the approval of the Departmental Promotion
Committee was pushed down, since his promotion was not
within the quota of Assistant Engineers at the time when he
was promoted and his promotion was regularised on absorption
within his lawful quota in a subsequent year. But with
effect from 22nd December 1959 a departure was made by
respondent Nos. 1 to 3 from the principle of continuous
officiation and carry forward principle was applied by
providing that 86 posts earmarked for promotion of Assistant
Executive Engineers to the grade of Executive Engineers in
accordance with their quota during the period prior to 22nd
December 1959 which had remained unfilled owing to non-
availability of Assistant Executive Engineers upto 22nd
December 1959 should be carried forward and 86 Assistant
Executive Engineers promoted after 22nd December 1959 should
be adjusted against these posts and they should be assigned
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seniority en bloc immediately below the last Executive
Engineer promoted regularly prior to 22nd December 1959. The
result was that the Assistant Engineers who had been
promoted as Executive Engineers regularly within their quota
subsequent to 22nd December 1959 became junior to the
Assistant Executive Engineers promoted against these 86
carried forward posts, even though they might have been
promoted as Executive Engineers long prior to the promotion
of such Assistant Executive Engineers. The Assistant
Executive Engineers promoted and adjusted against these 86
carried forward posts were given seniority above the
Assistant Engineers promoted regularly within their quota
after 22nd December, 1959, irrespective as to when such
Assistant Executive Engineers were actually promoted. After
the Assistant Executive Engineers promoted
866
as Executive Engineers were adjusted against these 86
carried forward posts and given seniority en bloc over all
Assistant Engineers promoted regularly within their quota
subsequent to 22nd December 1959, the rotational formula was
applied in respect of the posts for the period subsequent to
22nd December 1959 and these posts were adjusted on the
basis of the order in which the vacancies in the respective
quotas of Assistant Executive Engineers and Assistant
Engineers for promotion as Executive Engineers were
allocated from time to time. The seniority inter-se of
Assistant Executive Engineers and Assistant Engineers
promoted regularly within their respective quotas subsequent
to 22nd December 1959 was thus determined by the application
of the rotational formula based on the quota prevailing at
the relevant time. But since it had not been possible to
fill all the posts allocated to the Assistant Executive
Engineers' quota and some posts remained unfilled, they were
shown as vacant in the seniority list prepared according to
the roster based on the rotational formula, so that as and
when Assistant Executive Engineers might be promoted as
Executive Engineers regularly within their quota, they would
occupy the vacant posts earmarked for them in the seniority
list. The disastrous effect of this seniority list was that
most of the Assistant Engineers promoted as Executive
Engineers regularly within their quota subsequent to 22nd
December 1959 lost a considerable number of places in
seniority and were placed in much worse situation than what
they were in under the seniority list dated 1st July 1971
which was quashed at their instance in writ petition no. 489
of 1972. The petitioners in writ petition no. 489 of 1972
therefore filed an additional affidavit on 26th August 1975
pointing out that the seniority list dated 14th August 1975,
though purporting to be in compliance with the directions
given by this court, was totally in defiance of such
directions and respondent Nos. l to 3 should therefore be
committed for contempt of this court. It seems that some of
the Assistant Executive Engineers promoted as Executive
Engineers were also dissatisfied with the seniority list
dated 14th August 1975 since it took into account deputation
vacancies in the grade of Executive Engineers as regular
vacancies for the purpose of application of the quota rule
and they also therefore filed their objections to this
seniority list. The parties filed their respective
affidavits in answer to the objections raised against the
seniority list and after the record was completed, the court
was invited to decide the entire controversy between the
parties on the basis of these objections and affidavits. But
before the court could hear the objections against the
seniority list on merits, the first respondent issued on 8th
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June, 1976 the Executive Engineers, Central
867
Engineering and Central Electrical Engineering Service
(Group A) (Regulation of Seniority) Rules 1976 (hereinafter
referred to as the Rules of 1976) in exercise of the power
conferred under the proviso to Article 309 of the
Constitution. These Rules were deemed to have come into
force with effect from 10th December 1974, that is one day
before the delivery of judgment by this Court in writ
petition no. 489 of 1972 and they substantially enacted in
statutory form the same principles which were set out in the
Memorandum that accompanied the seniority list dated 14th
August 1975 and on which that seniority list was based.
Rules 2(iii) and 2(iv) which are the material rules provided
inter alia as under:
"2(iii): The vacancies in the grade of Executive
Engineer, which were earmarked for promotion
from the grade of Assistant Executive
Engineer in accordance with quotas prescribed
for them during the period from 25th August,
1949 to 21st December, 1959, but could not be
filled would be carried forward and filled by
Assistant Executive Engineers promoted on or
after 22.12.1959. The inter se seniority of
such officers will be determined in the order
of their seniority in the grade of Assistant
Executive Engineer-those who were considered
unfit for promotion being omitted and they
will rank immediately below the last
Executive Engineer, promoted prior to
(22.12.1959).
(iv) After all the vacancies in the grade of
Executive Engineer, which were earmarked for
promotion from the grade of Assistant
Executive Engineer in accordance with the
quotas prescribed for them during the period
from 25th August, 1949 to 21st December,
1959, but could not be filled, are filled by
Assistant Executive Engineers promoted on or
after 22.12.1959 and such officers assigned
seniority as indicated in (iii) above, all
subsequent vacancies in the grade of
Executive Engineer will be filled by rotation
of vacancies between the Assistant. Executive
Engineers and Assistant Engineers on the
basis of quotas prescribed for them for
promotion as Executive Engineer from time to
time. The inter se seniority of Assistant
Executive Engineers and Assistant Engineers
so promoted to the grade of Executive
Engineer,
868
will also be determined on the basis of such
rotation of quotas. For this purpose, the
recruitment roster shall be drawn as under :-
(a) When the reservation of the vacancies in
the grade of Executive Engineer for
Assistant Executive Engineer and
Assistant Engineer is 66-2/3% and 33-
1/3% respectively (that is, upto
31.3.1972)
1st Position )
) Asstt. Executive Engineer
2nd Position )
3rd Position Assistant Engineer
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 54
4th Position )
) Asstt. Executive Engineer
5th Position )
6th Position Assistant Engineer and so
on.
(b) When the reservation of the vacancies in
the grade of Executive Engineer for
Assistant Executive Engineers, and
Assistant Engineers, is 50% each (i.e.
from 1.4.1972 and for a period of 7
years.)
1st Position Asstt. Executive Engineers
2nd Position Asstt. Engineer
3rd Position Asstt. Executive Engineer
4th Position Asstt. Engineer and so on."
The petitioners thereupon filed the present writ
petition contending that the Rules of 1976 were
not applicable to the petitioners and other
Assistant Engineers promoted as Executive
Engineers regularly within their quota prior to
10th December 1974 and if these Rules were held to
be applicable then they were unconstitutional and
void. The petitioners, in the circumstances,
prayed in the writ petition that the seniority
list dated 14th August 1975 should be quashed and
a new seniority list should be prepared on the
basis of length of continuous officiation in the
grade of Executive Engineers so that Assistant
Engineers promoted as executive Engineers
regularly within their quota should have seniority
over Assistant Executive Engineers promoted later
in point of time. The writ petition was admitted
and rule nisi was issued upon it and after
affidavits in reply were filed on behalf of the
respondents, the writ
869
petition taken up for hearing by this Court. In
the course of the hearing, we made a strenuous
effort to bring about settlement of this long
standing dispute between Assistant Engineer and
Assistant Executive Engineers promoted as
Executive Engineers but our effort proved futile
and hence we are now proceeding deliver our
judgment.
The petitioners challenged the validity of the
seniority list dated 14th August 1975 and the Rules of 1976
on the following grounds:
(A) The case of the petitioners and other Executive
Engineers promoted from the grade of Assistant
Engineers regularly within their quota from and
after 22nd December 1959 but before 11th December
1974 is covered by the decision of this Court in
Writ Petition No. 489 of 1972 and Civil Appeal
Nos. 1745 to 1747 of 1974 and hence they are
entitled to claim seniority, on the basis of
length of continuous officiation, over Assistant
Executive Engineers promoted as Executive
Engineers later in point of time and the Assistant
Executive Engineers promoted and adjusted against
86 carried forward posts cannot be given seniority
en bloc over Assistant Engineers promoted as
Executive Engineers earlier nor can the rotational
formula be applied retrospectively so as to
deprive Assistant Engineers promoted Executive
Engineers of their seniority on the basis of
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length of continuous officiation in the grade of
Executive Engineers and the Rules of 1976 are, to
that extent, unconstitutional and void as being
outside the power of the Central Government.
(B) Since the Rules of 1976 have been brought into
force with effect from 10th December 1974, they
cannot affect the petitioners and other Assistant
Engineers promoted as Executive Engineers
regularly within their quota prior to that date
and their seniority vis-a-vis Assistant Executive
Engineers promoted as Executive Engineers must
continue to be governed by the principle of length
of continuous officiation in the grade of
Executive Engineers.
(C) If the Rules of 1976 are applicable for
determining inter se seniority of Executive
Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers within
their respective quotas from and after 22nd
December 1959, they are unconstitutional and void
870
as offending Articles 14 and 16 of the
Constitution, since the seniority rules enunciated
in the Rules of 1976 being closely linked with the
quota rule continued massive departure from the
quota rule over a long period of time must result
in the break down of the seniority rules and to
apply the seniority rules in such a situation
would create gross inequality of opportunity of
employment violative of Articles 14 and 16.
These were the broad grounds of challenge urged on behalf of
the petitioners and we shall now proceed to deal with them
in the order in which we have set them out.
RE: GROUND (A). This ground is based on the decision
rendered by this Court in writ Petition No. 489 of 1972 and
Civil Appeals Nos. 1745 to 1747 of 1974. It is necessary in
order to appreciate this ground to know who were the parties
in writ petition No. 489 of 1972 and Civil Appeal Nos. 1745
to 1747 of 1974. The petitioners in writ Petition No.
489/1972 were Assistant Engineers promoted as Executive
Engineers between 27th December 1956 and 8th September, 1959
by a properly constituted Departmental Promotion Committee
and barring one petitioner, all the others had been promoted
to the grade of Executive Engineers prior to their
confirmation as Assistant Engineers. The promotion of each
of the petitioners when made was in excess of the quota of
Assistant Engineers and all of them were therefore required
to be pushed down to later years for absorption in their
lawful quota for those years and through this process, their
promotions were regularised on different dates subsequent to
22nd December 1959. The petitioners were thus all
officiating Executive Engineers promoted from the grade of
Assistant Engineers regularly within their quota after 22nd
December 1959. The contesting respondents Nos. 4 to 66 were
Assistant Executive Engineers promoted as Executive
Engineers within their quota between 11th March 1957 and
23rd February 1966 and obviously therefore some of them were
Assistant Executive Engineers promoted on dates subsequent
to 22nd December 1959. The contest between the petitioners
and respondent Nos. 4 to 66 was therefore not confined only
to those Assistant Engineers and Assistant Executive
Engineers who were promoted as Executive Engineers regularly
within their respective quota prior to 22nd December 1959
but it extended also to Assistant Engineers and
871
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Assistant Executive Engineers promoted as executive
Engineers subsequent to that date. The same position
obtained also in regard to the contest between the
appellants and the respondents in C.A. Nos 1745-1747 of
1974. The appellants in these appeals were all Assistant
Engineers promoted as Executive Engineers, and though some
of them were promoted prior to 22nd December 1959, they were
regularised in their appointment by absorption within their
legitimate quota subsequent to 22nd December 1959, since at
the time when they were in initially promoted, their
promotions were in excess of the quota of Assistant
Engineers and they were therefore required to be pushed down
to later years for absorption within their quota. The large
majority of the appellants, if not all, were thus Assistant
Engineers promoted as Executive Engineer regularly within
their quota after 22nd December 1959 and in C.A. Nos. 1745-
47 of 1974 preferred by them, they claimed seniority over
the contesting respondents who were Assistant Executive
Engineers promoted later in point of time. This claim of the
appellants was disputed on behalf of the contesting
respondents who submitted that they had been rightly given
seniority over the appellants by adopting the rotational
formula. This controversy as to seniority between two groups
of Executive Engineers, on the one hand, the petitioners and
the appellants, a large number of whom were promoted within
their quota subsequent to 22nd December 1959 and on the
other, the contesting respondents of whom also a sizeable
number were promoted as Executive Engineers after 22nd
December 1959, was resolved by this Court by its decision
dated 11th December 1974 and it was held that the quota rule
has to be applied at the time of initial recruitment in
officiating capacities to the grade of Executive Engineers
and if any Assistant Engineers are promoted Executive
Engineers in excess of their quota in a particular year,
they would have to be pushed down to later years for
absorption when due within their quota and more importantly,
when Assistant Engineers are promoted as officiating
Executive Engineers regularly within their quota, their
seniority in the grade of Executive Engineer would count
from the date of their regular promotion within their quota
and on the basis of this holding, the Union of India was
directed to amend and revise the seniority list and to give
effect to the seniority lists so revised. It is therefore
clear and we do not think this position can admit of any
doubt whatsoever, that even in regard to Executive Engineers
promoted from the grades of Assistant Engineers and
Assistant Executive Engineers subsequent to 22nd December
1959, the direction given by the Court was that their
seniority inter se should be determined on the basis of
length of continuous officiation
872
in the grade of Executive Engineers counted from the date of
their regular promotion within the respective quota. It is
also obvious on a plain reading of the decision of this
Court that the direction given by it in regard to
determination of inter se seniority on the basis of length
of continuous officiation was not limited to Executive
Engineers promoted from the grades of Assistant Engineers
and Assistant Executive Engineers upto 22nd December 1959
but was on its plain terms applicable to all Executive
Engineers promoted from the grades of Assistant Engineers
and Assistant Executive Engineers within their respective
quota right upto 11th December 1974 being the date of the
decision of the Court. Moreover, it may also be noted, and
this is a circumstance of considerable weight, that in any
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event the seniority list which was directed to be amended
and revised by following the rule of seniority based on
length of continuous officiation was seniority list of 1st
July 1971 which determined inter se seniority amongst the
Executive Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers right upto June,
1971. It is the inter se seniority amongst these Executive
Engineers covered by the seniority list of 1st July 1971
that was directed to be amended and revised on the basis of
length of continuous officiation in the grade of Executive
Engineers. The Government of India was therefore bound to
revise the seniority list of Executive Engineers on the
basis that the inter se seniority of Executive Engineers
drawn from the grades of Assistant Engineers and Assistant
Executive Engineers should be determined on the basis of
length of continuous officiation in service after regular
appointment within their respective quota irrespective of
whether such regular promotion within the respective quota
was before or after 22nd December 1959. But the revised
seniority list dated 14th August 1975 issued by the
Government of India was plainly in defiance of this
direction given by the Court and what the Government of
India did was to adjust the first 86 Assistant Executive
Engineers promoted after 22nd December 1959 against 86
carried forward posts and to give them seniority enable over
all Assistant Engineers promoted as Executive Engineers
regularly within their quota subsequent to 22nd December
1959 and then to apply the rotational formula in regard to
the other vacancies subsequent to 22nd December 1959. The
result was that most of the Assistant Engineers promoted as
Executive Engineers lost a large number of places in
seniority and were reduced to a position much worse than
that in which they were under the earlier seniority list of
1st July 1971. The success which the petitioners and the
appellants
873
had achieved in writ petition No. 489 of 1974 and Civil
Appeal Nos. 1745-47 of 1974 was turned into a defeat and
they were badly mauled in the ultimate result. The question
is whether despite the direction given by this Court in its
decision dated 11th December 1974 and in face of it, the
Government of India was justified in fixing inter se
seniority between Assistant Engineers and Assistant
Executive Engineers promoted regularly within their quota
from and after 22nd December 1959 on the basis set out in
the Memorandum dated 14th August 1975 and the Rules of 1976.
The Government of India sought to avoid the binding
obligation of the direction given by the Court in its
decision dated 11th December 1974 by making the Rules of
1976 effective from 10th December 1974, one day prior to the
date of the decision. The assumption underlying this
manoeuvre on the part of the Government of India was that if
the Rules of 1976 were brought into force with effect from a
date prior to the decision of the Court in A.K. Subraman's
case (supra) they would nullify that decision and
notwithstanding that decision recognising and giving effect
to a different rule of seniority, namely, the rule of length
of continuous officiation, the Rules of 1976 would prevail
and the inter se seniority between Executive Engineers
promoted form the grades of Assistant Engineers and
Assistant Executive Engineers subsequent to 22nd December
1959 would be governed by those Rules. This assumption, we
are afraid, is wholly unfounded and the argument based upon
it cannot be sustained. When this Court has in so many terms
laid down that the inter se seniority of Executive Engineers
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promoted from the grades of Assistant Engineers and
Assistant Executive Engineers upto 11th December 1974 must
be held to be governed by the rule of length of continuous
officiation and the Government of India has been directed by
a writ of the Court to amend and revise, the seniority list
of 1st July 1971 on the basis of this rule of seniority, it
is difficult to see how the effect of this decision can be
set at naught and the binding character of the writ issued
against the Government of India can be abrogated by the mere
promulgation of the Rules of 1976 with retrospective effect
from 19th December 1974. It is significant to note that the
Explanatory Memorandum which was in the nature of statement
of objects and reasons for the Rules of 1976 did not seek to
override the effect of the decision in A.K. Subraman's case
(supra) but on the contrary affirmed that the principles of
seniority set out in those rules were laid down on the basis
of the decision in A.K. Subraman's case (supra). The Rules
of 1976 were in no way intended to set at
874
naught the decision in A.K. Subraman's case (supra) in so
far as it laid down the rule of seniority based on length of
continuous officiation for Executive Engineers promoted from
the grades of Assistant Engineers and Assistant Executive
Engineers, but it was claimed that they were made with a
view to giving effect to the direction contained in that
decision. That is the reason why we do not find any non-
obstante clause giving overriding effect to the rules of
seniority enunciated in the Rules of 1976 notwithstanding
the decision in A.K. Subraman's case (supra). Since the
Rules of 1976 purport merely to carry out the direction
given in the decision in A.K. Subraman's case (supra) they
cannot have the effect of overriding that decision and
absolving the Government of India from the obligation to
implement this direction and the Government of India must
therefore amend and revise the seniority list of 1st July
1971 by applying the rule of seniority based on length of
continuous officiation for determining inter se seniority of
Executive Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers upto 11th
December 1974. The relative position of the Executive
Engineers in regard to their inter se seniority having been
crystallised in the decision in A.K. Subarman's case (supra)
and a writ having been issued by this Court directing the
inter se seniority of the Executive Engineers to be fixed on
the basis of length of continuous officiation, the Executive
Engineers promoted from the grade of Assistant Engineers
were entitled to enforce the writ for determining their
inter se seniority with the Executive Engineers promoted
from the grade of Assistant Executive Engineers in
accordance with the rule of length of continuous
officiation. This right of the Executive Engineers promoted
from the grade of Assistant Engineers under the decision in
A.K. Subraman's case (supra) could not be taken away by
anything contained in the Rules of 1976. The decision in
A.K. Subraman's case (supra) continued to subsist and the
Government of India was bound to determine inter se
seniority amongst the Executive Engineers in accordance with
the direction contained in that decision.
The respondents in answer to this contention of the
petitioners leaned heavily on the decision of this Court in
Shri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality and submitted that whatever might have been the
rule of seniority on which the decision of this Court in
A.K. Subraman's case (supra) was based, the basis
875
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of that decision was fundamentally altered in so far as
inter se seniority of Executive Engineers promoted from the
grades of Assistant Engineers and Assistant Executive
Engineers subsequent to 22nd December 1959 was concerned,
because Rules 2(iii) and 2(iv) of the Rules of 1979
retrospectively provided for a different rule of seniority
and that rendered the decision ineffective and not binding
on the parties. We have carefully considered the decision of
this Court in Shri Prithvi Cotton Mills case (supra) but we
do not think that this decision lays down any such wide
proposition as is contended for on behalf of the
respondents. It does not say that whenever any actual or
legal situation is altered by retrospective legislation, a
judicial decision rendered by a Court on the basis of such
factual or legal situation prior to the alteration would
straight away without more, cease to be effective and
binding on the parties. It is true that there are certain
observations in this decision which seem to suggest that a
court decision may cease to be binding when the conditions
on which it is based are so fundamentally altered that the
decision could not have been given in the altered
circumstances. But these observations have to be read in the
light of the he question which arose for consideration in
that case. There, the validity of the Gujarat imposition of
Taxes by Municipalities (Validation) Act, 1963 was assailed
on behalf of the petitioners. The Validation Act had to be
enacted because it was held by this Court in Patel
Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad
that since section 73 of the Bombay Municipality Boroughs
Act, 1925 allowed the Municipality to levy a 'rate' on
buildings or lands and the term 'rate' was confined to an
imposition on the basis of annualetting value, tax levied by
the Municipality on lands and buildings on the basis of
capital value was invalid. Section 3 of the Validation Act
provided that notwithstanding any thing contained in any
judgment, decree or order of a court or tribunal or any
other authority, no tax assessed or purported to have been
assessed by a municipality on the basis of capital value of
a building or land and imposed, collected or recovered by
the municipality at any time before the commencement of the
Validation Act shall be deemed to have invalidly assessed,
imposed, collected or recovered and the imposition,
collected or recovery of the tax so assessed shall be valid
and shall be deemed to have always been valid and shall not
be called in question merely on the ground that the
assessment of the tax on the basis of capital value of the
building or land
876
was not authorised by law and accordingly any tax so
assessed before the commencement of the validation Act and
leviable for a period prior to such commencement but not
collected or recovered before such commencement may be
collected or recovered in accordance with the relevant
municipal law. It will be seen that by section 3 of the
impugned Act the Legislature retrospectively imposed tax on
building or land on the basis of capital value and if the
tax was already imposed, levied and collected on that basis,
made the imposition levy, collection and recovery of the tax
valid, notwithstanding the declaration by the Court that as
'rate', the levy was incompetent. This was clearly
permissible to the Legislature because in doing so, the
Legislature did not seek to reverse the decision of this
Court on the interpretation of the word 'rate', but
retrospectively amended the law by providing for imposition
of tax on land or building on the basis of capital value and
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validated the imposition, levy collection and recovery of
tax on that basis. The decision of this Court holding the
levy of tax to be incompetent on the basis of the unamended
law, therefore, became irrelevant and could not stand in the
way of the tax being assessed, collected and recovered on
the basis of capital value under the law as retrospectively
amended. That is why this Court held that the Validation Act
was effective to validate imposition, levy, collection and
recovery of tax on land or building on the basis of capital
value. It is difficult to see how this decision given in the
context of a validating statute can be of any help to the
respondents. Here the decision in A.K. Subraman's case
(supra) which is relied upon by the petitioners is not a
mere declaratory judgment holding an impost or tax to be
invalid, so that a validation statute can remove the defect
pointing out by that judgement and validate such impost or
tax. But it is a decision giving effect to the right of the
Executive Engineers promoted from the grade of Assistant
Engineers to have their inter se seniority with Executive
Engineers promoted from the grade of Assistant Executive
Engineers determined on the basis of rule of length of
continuous officiation by issue of a writ directing the
Government of India to amend and revise the seniority list
in accordance with such rule of seniority: Rules 2(iii) and
2(iv) seek to substitute with retrospective effect a totally
different rule of seniority in place of that recognised and
given effect by the decision in A.K Subraman's case (supra).
That obviously cannot be done. Rules 2(iii) and 2(iv) cannot
by retrospective alteration of the rule of seniority nullify
the decision in A.K. Subraman's case which has recognised
and given effect to an existing rule of seniority and issued
a writ against
877
the Government of India on that basis. If by reason of
retrospective alteration of the rule of seniority the
decision is rendered erroneous, the remedy may be by way of
review, but so long as the decision stands, it cannot be
disregarded or ignored and it must be obeyed by the
Government of India despite Rules 2(iii) and 2(iv) so far as
the Executive Engineers promoted from the grades of
Assistant Engineers and Assistant Executive Engineers up
to 11th December 1974 are concerned. This view taken by us
finds complete support from the judgment of one of us namely
Bhagwati, J. in M.M. Pathak v. Union of India & Ors.
The respondents also relied heavily on the decision of
this Court in Bishan Sarup Gupta v. Union of India
(hereinafter referred to as the 2nd Bishan Sarup Gupta
case). It was contended on behalf of the respondents that in
the 2nd Bishan Sarup Gupta case, this Court upheld the
rotational rule of seniority which determines seniority
according to a roster of 1:1 amongst direct recruits and
promotees in the Income-Tax officers (Class 1) Service in
the circumstances closely resembling the present case and
Rules 2(iii) and 2(iv) of the Rules of 1976 in so far as
they gave seniority en bloc to the Assistant Executive
Engineers promoted to the 86 carried forward posts of
Executive Engineers and applied the rotational formula for
the purpose of determining seniority amongst Assistant
Engineers and Assistant Executive Engineers promoted to the
subsequent vacancies in the grade of Executive Engineers,
must therefore, be upheld by us on analogical reasoning.
This contention, plausible though it may seem, is, in our
opinion, without force and must be rejected. The situation
in the 2nd Bishan Sarup Gupta case was fundamentally
different from that in the present case. The Court, in the
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Ist Bishan Sarup Gupta case, came to the conclusion that on
16th January, 1959 the quota rule for filling up vacancies
amongst Income-Tax officers (Class I) collapsed by reason of
upgrading of 100 Class II posts and with that also went the
seniority rule set out in Rule 1 (f) (iii), because this
rule of seniority could be upheld as constitutionally valid
only if the quota rule was strictly observed, with only
minor deviations permitting, and the question, therefore,
arose that "if the seniority rule 1 (f) (iii) ceased to be
operative from 16th January, 1959' how is the inter-se
seniority between the direct recruits and the promotees to
be fixed thereafter ?" There was no
878
specific seniority rule to determine inter-se seniority
between the direct recruits and the promotees appointed
regularly within their respective quota from and after 16th
January, 1959 and though, in the absence of any specific
seniority rule, the Court could have applied the residuary
rule based on length of continuous officiation, the Court
did not do so because it felt that since the old seniority
rule had ceased to operate by reason of the Infringement if
the quota rule, it would be for the Government to devise "a
Just and fair seniority rule as between the direct recruits
and the promotees for being given effect to from 16th
January, 1959." It was pursuant to this direction given by
the Court that the rotational rule of seniority impugned in
the 2nd Bishan Sarup Gupta case was made the Government and
this seniority rule did not seek to undo the effect of that
decision. Now, in the present case also, by reason of clause
3 of the Memorandum dated 22nd December, 1959, the rule of
seniority based on length of continuous officiation
enunciated in the Memorandum dated 22nd June, 1949 came to
an end and thereafter until the Rules of 1976, were
formulated, there was no specific rule of seniority which
governed inter-se seniority between Assistant Engineers and
Assistant Executive Engineers promoted as Executive
Engineers regularly within their respective quota subsequent
to 22nd December, 1959. The Memorandum dated 22nd December,
1959 was undoubtedly in force, but for reasons which we
shall presently state, neither Paragraph 5(ii) relied on by
the petitioners nor paragraph 6 relied on by the respondents
had any application for determining inter-se seniority in
the grade of Executive Engineers. The Court could have,
therefore, followed the same course as in the 1st Bishan
Sarup Gupta case and in the absence of a specific rule of
seniority to determine inter se seniority amongst Assistant
Engineers and Assistant Executive Engineers promoted to the
grade of Executive Engineers from and after 22nd December,
1959, the Court could have directed the Government of India
to evolve a new rule of seniority. But the Court instead
chose to adopt the rule of seniority based on length of
continuous officiation and directed inter se seniority
amongst Assistant Engineers and Assistant Executive
Engineers promoted to the grade of Executive Engineers
regularly within their respective quota upto the date of its
decision, to be determined on the application of this rule
of seniority based on length of continuous officiation. This
course, the Court was clearly entitled to adopt, because, as
we shall presently point out, when there is no specific rule
governing determination of seniority in a grade, the normal
rule applicable would be
879
to determine seniority on the basis of length of continuous
officiation in the grade and the Court could certainly adopt
this residuary rule and direct inter se seniority in the
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grade to be fixed on the application of this seniority rule.
It will thus be seen that while in Ist Bishan Sarup Gupta
case, the Court left it to the Government to decide what
rule of seniority should be devised for determining inter se
seniority between the direct recruits and the promotees
appointed from and after 16th January, 1959, the Court in
the present case did not leave it to the Government to
evolve a new Rule of seniority for determining inter se
seniority amongst Assistant Engineers and Assistant
Executive Engineers promoted as Executive Engineers from and
after 22nd December, 1959 but itself laid down that such
inter se seniority shall be determined on the application of
the rule of seniority based on length of continuous
officiation. This constituted a vital difference between the
lst Bishan Swarup Gupta case and the present case and the
Government was not entitled, as in the case of Bishan Swarup
Gupta and other Income-Tax officers, to evolve a new rule of
seniority different from that recognised and given effect to
by the Court in A.K Subraman's decision for determining
seniority amongst Assistant Engineers and Assistant
Executive Engineers promoted as Executive Engineers
regularly with in their respective quota from and after 22nd
December, 1959. To permit the Government to do so would be
in plain defiance of the direction given by the Court in A.K
Subraman's case.
The petitioners relied strongly on paragraph 5 (ii) of
the Memorandum dated 22nd December, 1959 and contended that
the seniority rule laid down in this Paragraph governed the
determination of seniority amongst Executive Engineers
promoted from the Grades of Assistant Engineers and
Assistant Executive Engineers from and after 22nd December,
1959 and if this rule of seniority was applied, the
Assistant Engineers promoted regularly within their quota
after selection by the Departmental promotion Committee in
any year would rank higher than the Assistant Executive
Engineers promoted, in the subsequent years and in that
view, the seniority list dated 14th August, 1975 and the
Rules of 1976 in so far as they give seniority en bloc to
the Assistant Executive Engineers promoted to the 86 carried
forward posts of Executive Engineers and apply the
rotational formula for the purpose of determining seniority
amongst Assistant Engineers and Assistant Executive
Engineers promoted to the subsequent vacan-
880
cies in the Grade of Executive Engineers, would clearly be
unconstitutional and void as retrospectively affecting the
seniority of the Executive Engineers promoted from the
Grades of Assistant Engineers and Assistant Executive
Engineers within their respective quota from and after 22nd
December, 1959. This contention was urged before us with a
certain degree of plausibility but on close scrutiny we find
that it is not well founded. There are two formidable
answers to this contention and each answer is sufficient to
warrant rejection of this contention.
In the first place, it may be pointed out that this
contention is no longer open to the petitioners in view of
the decision in A.K. Subraman's case where the Court applied
the rule of seniority based on length of continuous
officiation for determining inter-se seniority amongst
Assistant Engineers and Assistant Executive Engineers
promoted as Executive Engineers regularly within their
respective quota upto 11th December, 1974, being the date of
the decision and directed such inter-se seniority to be
determined on the application of this seniority rule. Even
if the rule of seniority set out in Paragraph 5(ii) were
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otherwise applicability must stand negatived by the decision
in A.K. Subraman's case which is binding on the parties.
Moreover, it may noted that in A.K. Subraman's case it was
conceded on behalf of respondents Nos. 1 and 2 that this
Memorandum was not relevant to the question of determination
of seniority between the petitioners and the respondents. In
that case though the promotion of some of the petitioners
was regularised by absorption in their lawful quota
subsequent to 22nd December, 1959, and some of the
respondents were also promoted as officiating Executive
Engineers within the their quota after that date, the
learned counsel appearing on behalf of the petitioners did
not contend that Paragraph 5(ii) of the Memorandum dated
22nd December, 1959 was applicable to determine inter-se
seniority amongst such of the petitioners and respondents as
were promoted after 22nd December, 1959 and agreed with the
concession made on behalf of respondents Nos. I and 2 that
the Memorandum dated 22nd December 1959 was irrelevant and
likewise no discordant note was struck also by the learned
counsel appearing on behalf of the respondent Assistant
Executive Engineers and it was not contended on their behalf
that so far as the petitioners and the respondent Assistant
Executive Engineers promoted regularly within their lawful
quota subsequent to 22nd December, 1959 were concerned,
their seniority
881
was governed by Paragraph 5(ii) or any other paragraph of
the Memorandum dated 22nd December, 1959. Therefore, it was
the common case of all the parties including the Assistant
Engineers and the Assistant Executive Engineers and the
Assistant Executive Engineers promoted as Executive
Engineers that neither the rule of seniority set out in
paragraph 5(ii) nor the seniority rule set out in any other
paragraph of the Memorandum dated 22nd December, 1959 was
applicable.
But, since the case has been argued fully before us we
would consider the applicability of Paragraph 5(ii) of the
Memorandum dated 22nd December, 1959 on merits. There can be
no doubt that the contention of the petitioners based on
Paragraph 5(ii) would have had great force if on a true
interpretation of that paragraph, the rule of seniority set
out in that provision could be held to govern the
determination of seniority amongst the Executive Engineers
promoted from the Grades of Assistant Executive Engineers
from and after 22nd December, 1959 being the date when this
rule of seniority came into force. But we are of the view
that the rule of seniority set out in Paragraph 5(ii) of the
Memorandum dated 22nd December, 1959 could have no
application in case of promotions made to the Grade of
Executive Engineers from the Grades of Assistant Engineers
and Assistant Executive Engineers. Paragraph 5(ii) of the
Memorandum dated 22nd December, 1959 read as follows :
"5(ii): Where promotions to a grade are made from more
than one grade, the eligible persons shall be arranged
in separate lists in the order of their relative
seniority in their respective grades. Thereafter, the
Departmental Promotion Committee shall select persons
for promotion from each list upto the prescribed quota
and arrange all the candidates selected from different
lists in a consolidated order of merit which will
determine the seniority of the persons on promotion to
the higher grade."
and the rule of seniority set out in this provision was
explained by the following illustration given in an
Explanatory Note attached to the Memorandum dated 22nd
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December, 1959 :
"Note : If separate quotas for promotion have not
already been prescribed in the relevant recruitment
rules, the Ministries/Departments may do so, now in
consultation with the Commission wherever necessary."
882
This rule of seniority, on the plain terms of Paragraph
5(ii) applied only in a situation "where promotions to a
Grade are made from more than one Grade" and the argument of
respondents Nos. 4 to 190 was that when this provision spoke
of promotions to a Grade from more than one Grade, it
referred to promotions within the same service, that is,
where the grades from which promotions are made as also the
grades of promotion are all grades within the same service,
but where one of the grades from which promotions are made
belongs to a lower service than the grade of promotion and
the promotion is therefore from a lower service to a higher
service, the rule of seniority set out in this provision
could have no application. Respondents Nos. 4 to 190 in the
circumstances submitted that since the grade of Assistant
Engineers was in Class II Service while the grade of
Executive Engineers was in Class I Service, the rule of
seniority laid down in this provision was not applicable for
determining seniority in the grade of Executive Engineers.
We do not think this argument advanced on behalf of
respondents Nos. 4 to 190 is well-founded. The postulate for
the applicability of the rule of seniority set out in this
provision simply reads: "Where promotions to a Grade are
made from more than one Grade" and it does not introduce any
requirement that the grades from which the promotions are
made should belong to the same service as the garde of
promotion. It is no doubt true that the illustration given
in the Explanatory Note refers to promotions from the grades
of Upper Division Clerks and store keepers to the grade of
Head Clerk and all these grades belong to Class III Service
but it would not be right to limit the applicability of the
seniority rule set out in this provision by reading into it
a limitation which is not there, merely because an
illustration of the applicability of the seniority rule
given in the Explanatory Note relates to a case where the
grades are all in the same service. If the interpretation
contended for on behalf of respondents Nos. 4 to 190 were
correct, the rule of seniority set out in this provision
would not be applicable where both the grades, from which
the promotions are made, belong to a lower service while the
grade of promotion belongs to a higher service and for such
a case, there would be no rule of seniority laid down in the
Memorandum date 22nd December, 1959 which would be
applicable. We are clearly of the view that the rule of
seniority set out in Paragraph 5(ii) would be attracted in
all cases where promotions to a grade are made from more
than one grade, irrespective as to whether these grades all
belong to the same service or not and, therefore, the
applicability of this rule of seniority could not be
repelled in the present case on
883
the ground that the grade of Assistant Engineers belongs to
Class II Service while the grade of Executive Engineers
belongs to Class I Service.
But, there is a more fundamental reason why the rule of
seniority set out in paragraph 5(ii) of the Memorandum dated
22nd December, 1959 must be held to be inapplicable in the
case of promotion to the grade of Executive Engineers. The
promotion from the grade of Assistant Executive Engineers
was by selection on merit while the promotion from the grade
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of Assistant Engineers was on the basis of seniority cum-
fitness. There was no element of selection on merit in the
case of Assistant Engineers as in the case of Assistant
Executive Engineers and the entire basis of promotion from
the two grades was different. Moreover, this provision
postulated the existence of one single Departmental
Promotion Committee for the selecting persons the promotion
from the grades of Assistant Engineers and Assistant
Executive Engineers and it was this single Departmental
Promotion Committee, which was to "arrange all the
candidates selected from different lists in a consolidated
order of merit which will determine the seniority of persons
on promotion" to the grade of Executive Engineers, Now,
there was some controversy between the parties whether in
the case of promotions to the grade of Executive Engineers,
there was one single Departmental Promotion Committee for
selecting person from the grades of Assistant Engineers and
Assistant Executive Engineers or there were separate
Departmental Promotion Committees-one for selection from the
grade of Assistant Engineers and the other for selection
from the grade of Assistant Executive Engineers. Respondents
Nos. 1 and 2 in the counter affidavit filed by S.R. Roy
Choudhury asserted that in case of selection from the grade
of Assistant Engineers, the Union Public Service Commission
was associated with the Departmental Promotion Committee
while in case of selection from the grade of Assistant
Executive Engineers, the Union Public Service Commission was
not so associated and a combined grouping of the persons
sought to be promoted from the two groups was, therefore,
not possible. The first petitioner however, in the rejoinder
affidavit filed by him on behalf of the petitioners disputed
the correctness of this avernment made on behalf of
respondents Nos. 1 and 2 and submitted that it was wrong to
suggest "that the UPSC is not associated with the DPC
because in all the selections concerned with the petitioners
and the respondents, a Member of the UPSC
884
was on both the DPCS" and in this connection he relied on
rule 4 of Section 7 of Chapter V at page 48 of the CPWD
Manual, Volume I (1970 Edition). It is not necessary for the
purpose of determining the applicability of the rule of
seniority in Paragraph 5(ii) of the Memorandum dated 22nd
December, 1959 to decide whether a Member of the Union
Public Service Commission was associated with the
Departmental Promotion Committee for selection of Assistant
Executive Engineers or not. It is implicit in the statement
of the first petitioner in his rejoinder affidavit that
there were two different Departmental Promotion Committees
for selecting persons for promotion from the grades of
Assistant Engineers and Assistant Executive Engineers. The
composition of the Departmental promotion Committees being
different and the criteria for promotion to the grade of
Executive Engineers also being different in the case of
Assistant Engineers and Assistant Executive Engineers, it is
difficult to conceive how combined merit rating on the
persons sought to be promoted from the two groups could
possibly be made as envisaged in paragraph 5(ii) of the
Memorandum dated 22nd December, 1959. It was suggested that
a comparative assessment of the merits of the persons chosen
from two groups could made on the basis of still be as to
which Departmental Promotion Committee would their
confidential reports, but the question would still be as to
which Departmental Promotion Committee would make the
comparative assessment and even if the Departmental
Promotion Committee for selection of persons to be promoted
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from the two groups was the same, it is difficult to
appreciate how and comparative assessment of the merits
could be made on the basis of confidential reports. The
confidential reports of the officers from the two groups
would not be written by the same officer or even by officers
of equivalent rank, because in the case of Assistant
Engineers promoted as officiating Executive Engineers in
excess of their quota and consequently pushed down for being
absorbed within their quota in later years, their
confidential reports for the preceding three years would be
written in respect of their performance as officiating
Executive Engineers by the Superintending Engineers, while
in the case of Assistant Executive Engineers, their
confidential reports for the preceding three years would be
written in respect of their performance as Assistant
Executive Engineers by the Executive Engineers. Thus at the
point of time when in any particular year, the officers of
the two streams meet for their seniority in the grade of
Executive Engineers, their confidential reports would not be
by the same officers or even by officers of equivalent rank
and it would be almost
885
impossible to arrive at a comparative assessment of their
respective merits for the purpose of working out the
seniority rule in Paragraph 5(ii) of the Memorandum dated
22nd December, 1959. Moreover, in fact this seniority rule
was never regarded as applicable in case of promotions to
the grade of Executive Engineers and the procedure set out
there was not followed at any time while making promotions
from the grades of Assistant Executive Engineers and
Assistant Engineers to the grad of Executive Engineers. It
is, therefore, clear that the seniority rule set out in
Paragraph 5(ii) of Memorandum dated 22nd December, 1959
could not be invoked for determining inter se seniority
between Executive Engineers from the grades of Assistant
Engineers and Assistant Executive Engineers and the
petitioners could not legitimately found any argument upon
that seniority rule for the purpose of invalidating the
seniority list dated 14th August, 1975 and the Rules of
1976.
It is interesting to note that while the petitioners
relied on Paragraph 5(ii) of the Memorandum dated 22nd
December 1959, respondent Nos. 4 to 190 rested their
argument on Paragraph 6 of this Memorandum. They contended
that the rotational formula adopted for determining
seniority amongst Assistant Engineers and Assistant
Executive Engineers promoted to the grade of Executive
Engineers from and after 22nd December, 1959, subject to
precedence being given en bloc to Assistant Executive
Engineers promoted to fill in 86 carried forward posts of
Executive Engineers, was in consonance with Paragraph 6 of
the Memorandum dated 22nd December, 1959 and did not in any
way affect retrospectively the inter se seniority of the
Executive Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers. We are afraid
this contention is not open to respondent Nos. 4 to 190 in
view of the decision of this Court in A K. Subraman's case
and moreover as already pointed out by us while rejecting
the contention of the petitioners based on Paragraph 5(ii),
it was the common case of all the parties including the
Assistant Engineers and the Assistant Executive Engineers
promoted as Executive Engineers that the Memorandum dated
22nd December, 1959 was irrelevant for the purpose of
determining the inter se seniority amongst the Assistant
Engineers and Assistant Executive Engineers promoted from
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and after 22nd December 1959 and neither the seniority rule
set out in Paragraph 5(ii) nor that set out in Paragraph 6
was applicable. But even so since full arguments have been
advanced before us we propose to consider the applicability
of Paragraph 6 on merits. It is necessary in order to
appreciate the contention raised on behalf
886
of respondent Nos. 4 to 190 to examine the scope and ambit
of Paragraph 6 of the Memorandum dated 22nd December, 1959
which reads as follows:
"6. Relative seniority of Direct Recruits and
Promotees:
The relative seniority of Direct recruits and of
promotees shall be determined according to the rotation
of vacancies between direct recruits and promotees
which shall be based on the quotas of vacancies
reserved for direct recruitment and promotion
respectively in the Recruitment Rules."
This paragraph on its plain terms laid down a rule for
determining the relative seniority of direct recruits and
promotees in a grade to which appointments were required to
be made by direct recruitment and promotion according to a
certain fixed quota. This rule of seniority obviously could
have no application for determining inter se seniority in
the grade of Executive Engineers, since both Assistant
Engineers and Assistant Executive Engineers were inducted in
the grade of Executive Engineers by promotion and Assistant
Executive Engineers appointed in the grade of Executive
Engineers did not bear the character of direct recruits. It
is, of course, true that Assistant Executive Engineers were
initially taken up as direct recruits in the grade of
Assistant Executive Engineers in fact that was only method
of entry into the grade of Assistant Executive Engineers-but
when they entered the grade of Executive Engineers, they did
so by way of promotion just like the Assistant Engineers.
There was, therefore, in the present case, no question of
determining relative seniority between direct recruits and
promotees. Both the Assistant, Engineers as well as the
Assistant Executive Engineers were Promotees to the grade of
Executive Engineers and Paragraph 6 of the Memorandum dated
22nd December, 1959 had, therefore, no application for
determining inter se seniority between them in the grade of
Executive Engineers.
We have considered the applicability of Paragraphs
5(ii) and 6 of the Memorandum dated 22nd December, 1959 on
merits and come to the conclusion that the rule of seniority
set out in neither of these two paragraphs could have any
application in the present case. But at the same time, we
cannot escape the conclusion that by reason of clause 3 of
the Memorandum dated 22nd December,
887
1959, the rule of seniority prescribed in the Memorandum
dated 22nd June, 1949 stood repealed, except in regard to
determination of seniority of persons appointed to the grade
of Executive Engineers prior to 22nd December, 1959. There
was, therefore, no rule of seniority laid down either
statutorily or by any executive order or instruction for
determining seniority amongst Executive Engineers promoted
from the grades of Assistant Engineers and Assistant
Executive Engineers regularly within their respective quota
from and after 22nd December, 1959. But it is now well-
settled as a result of several decisions of this Court that
in the absence of any statutory rule or executive memorandum
or order laying down a rule for determining seniority in a
grade, the normal rule applicable would be to determine
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seniority on the basis of length of continuous officiation
in service. Vide the observations of Palekar J. in B.S.
Gupta v. Union of India. To the some effect we find the
observations Krishna Iyer, J., speaking on behalf of the
Court in Chauhan v. State of Gujarat where the learned Judge
said at page 1057 of the report:
"Seniority, normally, is measured by length of
continuous officiating service-The actual is easily
accepted as the legal."
Chandrachud, J., as he then was, also reiterated the
same principle when he said in S.B. Patwardhan v. State of
Maharashtra that "all other factors being equal, continuous
officiation in a non-fortuitous vacancy ought to receive due
recognition in determining rules of seniority as between
persons recruited from different sources, so long as they
belong to the same cadre, discharge similar, functions and
bear similar responsibilities." The inter se seniority of
Executive Engineers promoted from the grades of Assistant
Engineers and Assistant Executive Engineers regularly within
their respective quota from and after 22nd December, 1959
was, therefore, determinable on the basis of length of
continuous officiation in the grade of Executive Engineers
and the Court was, in the circumstances, justified in A.K.
Subraman's case in holding in paragraph 1 of the summary of
its conclusions that "when Assistant Engineers (Class II)
are initially appointed in a regular manner in accordance
with the rules to officiate as Executive Engineer, their
senio-
888
rity in service in Grade I will count from the date of their
initial officiating appointment as Executive Engineers was
within their quota." It is undoubtedly true that in reaching
this conclusion the Court proceeded on the assumption that
'the Memorandum dated 22nd June 1949 was clearly applicable"
and equally it must be conceded that this assumption was
erroneous in so far as inter se seniority between Assistant
Engineers and Assistant Executive Engineers promoted from
and after 22nd December, 1959 was concerned, since the rule
of seniority based on length of continuous officiation
enunciated in the Memorandum dated 22nd June, 1959 was
repealed by the Memorandum dated 22nd December, 1959. But it
can hardly be disputed that the conclusion reached by the
Court was correct in law, because in the absence of any
specific rule of seniority governing determination of inter-
se seniority between Assistant Engineers and Assistant
Executive Engineers promoted from and after 22nd December,
1959, their inter-se seniority was clearly governed by the
rule of seniority based on length of continuous officiation.
We do not think it would be right to assume that the Court
in A.K. Subraman's case overlooked that the rule of
seniority laid down in the Memorandum dated 22nd June, 1949
was repealed by the Memorandum dated 22nd December, 1959 and
it is, therefore, quite possible that when the Court said
that "the Memorandum of June 22, 1949 will clearly apply",
what the Court meant was that the rule of seniority based on
length of continuous officiation would clearly apply for
determination of inter-se seniority between Assistant
Engineers and Assistant Executive Engineers promoted to the
grade of Executive Engineers. We may point out that in any
event the decision in A.K. Subhraman's case holding that
the inter-se seniority between Assistant Engineers and
Assistant Executive Engineers promoted as Executive
Engineers should be governed by the rule of seniority based
on length of continuous officiation and that their inter-se
seniority should be determined on the application of this
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rule of seniority, must be regarded as binding on the
parties and it is not open to the petitioners or to the
respondents to raise any contention contrary to this
conclusion reached by the Court. This conclusion, we may
repeat, was not limited to Assistant Engineers and Assistant
Executive Engineers promoted as Executive Engineers prior to
22nd December, 1959 but also covered Assistant Engineers and
Assistant Executive Engineers promoted subsequent to that
date right upto the date of the decision of the Court. We
must, therefore, hold that, notwithstanding Rules 2(iii) and
2(iv) of the
889
Rules of 1976, the inter-se seniority between Assistant
Engineers and Assistant Executive Engineers promoted
regularly within their respective quota upto 11th December,
1974 must be determined on the basis of length of continuous
officiation in the grade of Executive Engineers, subject of
course to the length of continuous officiation in the case
of Assistant Engineers being computed from the date of their
confirmation as Assistant Engineers.
Before we proceed to consider grounds B and C it would
be conventions at this stage to deal with some of the
contentions advanced by respondent Nos. 4 to 190 on behalf
of the Assistant Executive Engineers promoted as Executive
Engineers against the validity of the seniority list dated
14th August 1975 in so far as certain aspects of that
seniority list are concerned. Though the seniority list
dated 14th August, 1975 was substantially in favour of
Assistant Executive Engineers promoted as Executive
Engineers, they were not wholly satisfied with it and they
attacked it in three respects. They urged that respondent
Nos. 1 to 3 had egregiously erred in formulating the
seniority list dated 14th August, 1975 in as much as (1)
respondents Nos. 1 to 3 had treated vacancies arising on
account of deputation of Executive Engineers to other
organisation or departments as vacancies to be filled up in
accordance with the quota and so also where an Assistant
Engineer or Assistant Executive Engineer was promoted for
being sent on deputation as Executive Engineer in another
organisation or department, respondent Nos. 1 to 3 had
treated such promotion as filling up of vacancy subject to
the quota rule; (2) respondent Nos. 1 to 3 had included, for
the purpose of allocation of quota, also those vacancies
which arose on account of death or retirement of Executive
Engineers who were promoted from the grade of Assistant
Engineers in excess of their quota and whose promotions were
not regularised within their quota prior to their death or
retirement, as if those vacancies were fresh vacancies
governed by the quota rule and (3) while pushing down
Executive Engineers who were promoted from the grade of
Assistant Engineers in excess of their quota and adjusting
them within their quota in a subsequent year, respondent
Nos. 1 to 3 had treated them as absorbed not from the date
when the vacancy arose in their quota but from 1st January
of that year. This three-fold grievance made on behalf of
respondent Nos. 4 to 190 cannot be said to be wholly
unjustified. We find that the second and third heads of
grievance are well-founded while the first is not. Our
reasons for saving so are as follows.
890
So far as the first head of the grievance of respondent
Nos. 4 to 190 is concerned, their argument was that on a
true interpretation of the judgment of this Court in A.K.
Subraman's case, the quota rule was applicable only to
permanent vacancies in the posts, whether permanent or
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temporary, included in the sanctioned strength of the cadre
of Executive Engineers "except such vacancies as were purely
of a fortuitors or adventitious character" and since the
vacancies arising on account of deputation of Executive
Engineers to other organisations or department could not be
regarded as permanent vacancies but were vacancies of
fortuitous or adventitious character, they were not subject
to the quota rule and could not be taken into account for
applicability of the quota rule. This argument, plausible
though it may seem at first sight, cannot be sustained. It
is, first of all, necessary to clear the ground by pointing
out that according to the judgment of this Court in A.K.
Subraman's case, the quota rule was to be applied not with
reference to the posts in the cadre of Executive Engineers
but with reference to vacancies in such posts. There might
be more than one vacancy in a post in the course of a year
or any other unit of time and it was with reference to each
such vacancy that the quota rule had to be applied. Now a
vacancy may arise in a post on account of death, retirement
or resignation of the incumbent of the post or it may arise
on account of his dismissal, discharge a reversion from the
post or promotion to a higher post or by reason of his
deputation to another department or organisation. Whenever,
therefore, a vacancy arises in a post, whatever be the
reason by which the vacancy is caused, it would have to be
filled up by promotion of an Assistant Engineer or an
Assistant Executive Engineer and the quota rule would apply
so long as the vacancy is a permanent vacancy, that is to
say, in the words of Palekar J. in the 1st Bishan Sarup
Gupta's case, a vacancy which is not "for a few days or a
few months" or otherwise adventitious". We have in these
words of Palekar, J., adopted wholly and completely in A.K.
Subraman's case, a negative definition of what may be
regarded as a permanent vacancy for the purpose of
application of the quota rule and it clearly shows that a
vacancy which is of a short duration arising on account of
fortuitous or adventitous circumstances would not be
regarded as permanent vacancy and in such a case, by reason
of the very nature of the vacancy, there would be no
question of making recruitment to the cadre as to attract
the applicability of the quota rule. It is therefore obvious
that if a vacancy arises on account of an incumbent going on
leave or for training or on deputation for a short period,
it would be a fortui-
891
tous or adventitious vacancy and the quota rule would not be
attracted in case of such a vacancy. But where a vacancy
arises on account of the incumbent going on deputation for a
reasonably long period and there is no reasonable likelihood
of the person promoted to fill such vacancy having to
revert, the vacancy would be subject to the quota rule,
because it would be a regular vacancy in the post of
Executive Engineer and the person promoted to fill the
vacancy would be an officiating Executive Engineer who would
continue as such without reversion until confirmed and his
promotion would, therefore, be by way of recruitment lo the
cadre of Executive Engineers. Of course, it should be made
clear that the vacancy which attracts the applicability of
the quota rule, is the vacancy in the post included in the
sanctioned strength of the cadre of Executive Engineers and
not the vacancy in the deputation post. There may be a
vacancy in a deputation post in another department or
organisation and an Executive Engineer holding a post
included in the sanctioned strength of the cadre of
Executive Engineers may be sent to such deputation post, but
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the vacancy which would call for the application of the
quota rule in such a case would be the vacancy arising in
the post of Executive Engineer within the cadre by reason of
the incumbent of that post going to the deputation post and
not the vacancy in the deputation post which would be filled
up by the Executive Engineer going on deputation. It is,
therefore, apparent that what has to be considered for the
applicability of the quota rule is a vacancy in a post
included in the sanctioned strength of the cadre of
Executive Engineers and the sanctioned strength, which has
to be taken into account, is not merely the sanctioned
strength of the cadre of Executive Engineers in the Central
Public Works Department but the sanctioned strength of the
cadre of Executive Engineers in the entire Central
Engineering Service, Class I. The sanctioned strength of the
cadre of Executive Engineers in the Central Engineering
Service, Class I, may include not only posts of Executive
Engineers in the Central Public Works Department but also
posts of Executive Engineers in other departments and
organisations.
Now, so far as the Central Engineering Service, Class
I, is concerned, the deputation of officers in various
grades including the grade of Executive Engineers is a
normal feature of the Service. The Central Public Works
Department is an agency of the Central Government operating
throughout Country for construction, maintenance and repair
of all works and buildings financed from Civil
892
Works Budget except for certain departments which had their
own engineering units or which may get their Civil works
executed through private agencies. The officers borne on the
cadres of Chief Engineers, Superintending Engineers and
Executive Engineers in the Central Engineering Service,
Class I, are therefore sent on deputation to various
departments and organisations and some of them are also on
deputation with the Government of Bhutan, Delhi Municipal
Corporation, New Delhi Municipal Committee and various other
public undertakings. The normal duration of such deputation
is one to three years and it may even be extended beyond
three years. The record shows that the number of Chief
Engineers, Superintending Engineers and Executive Engineers
on deputation to various departments, organisations and
public sector undertakings has always been substantial and
by way of illustration, it may be pointed out that there
were as on 1st January, 1975, 90 out of approximately 360
Executive Engineers, 33 out of 80 Superintending Engineers
and 8 out of 20 Chief Engineers on deputation. On an
average, about 25 to 40% of the Executive Engineers are on
deputation to various organisations, departments and public
sector undertakings and whenever any such Executive
Engineers are sent on deputation and the vacancies in the
posts arising on account of such deputation are filled up by
Assistant Engineers or Assistant Executive Engineers
regularly selected through Departmental Promotion Committee,
such promotees have never had to revert, because the
deputations are for a minimum period of one year and in most
cases for three years and they go on rotating. The vacancies
arising in the posts of Executive Engineers on account of
deputation to other departments, organisations and public
sector undertakings are, therefore, long term vacancies and
cannot be characterised as vacancies of fortuitous or
adventitious character and, consequently, according to the
judgment in A.K. Subraman's case, the quota rule must be
held to be applicable with reference to such vacancies. This
has always been the view taken by the Government of India,
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as is clear from the letter dated 19th October, 1971
addressed by the Ministry of Works and Housing, Government
of India to the Secretary, Union Public Service Commission,
where, we find the following observation:
"In accordance with the recruitment rules the
posts at the level of Executive Engineers are to be
filled by promotion of Assistant Executive Engineers
and Assistant Engineers in the ratio of 2:1. This ratio
is applicable to
893
both permanent and temporary Vacancies including the
deputation vacancies". (Emphasis supplied)
It is significant to note that the view that deputation
vacancies being long term vacancies should be regarded as
permanent vacancies for the applicability of the quota rule
prevailed with the Government of India as far back as 19th
October 1971 long before the present controversy arose
between the parties and even prior to the decisions in
Bishan Sarup Gupta's cases and A.K. Subraman's case. We find
that this view was reaffirmed by the Government of India in
the Office Memorandum dated 30th December. 1976 issued by
the Department of Personnel and Administrative Reforms,
Cabinet Secretariat where it has been stated as follows
under the heading "Determination of Regular Vacancies":-
"It is essential that the number of vacancies in
respect of which a panel is to be prepared by a D.P.C.
should be estimated as accurately as possible. For this
purpose the vacancies to be taken into account should
be the clear vacancies arising in post/ grade/service
due to death, retirement, resignation, regular long
term promotion, of incumbents of one post/grade to
higher post/ grade and vacancies arising from creation
of additional posts on a long term basis and these
arising out of deputation. As regards vacancies arising
out of deputation it is clarified that for the purpose
of drawing up a select list for promotion, vacancies
arising out of deputation for periods more than one
year should be taken into account, due note however
being kept also of the number of the deputationists
likely to return to the cadre and who gave to be
provided for. Purely short term vacancies arising as a
result of officers proceeding on leave, on deputation
for a shorter period, training etc., should not be
taken into account for the purpose of preparation of a
panel".
The same stand has been consistently taken by the
Government of India in the various affidavits filed on its
behalf in these proceedings as also in the miscellaneous
proceedings arising in A.K. Subraman's case. We may usefully
reproduce the following paragraphs from the Counter
Affidavit filed on behalf of the Government of India in
C.M.P. No. 6689 of 1975 in A.K. Subraman's case:
894
"8. With reference to paragraph 2(a), I submit
that this Hon'ble Court, no doubt, stated that all the
vacancies except fortuitous and adventitious ones in
the sanctioned strength in the cadre have to be taken
into account. So far as the deputation vacancies are
concerned, the position is that the post of the
borrowing authority to which a deputation is made is
certainly outside the cadre of the Central Engineering
and Electrical Engineering Service, but the
consequential vacancies which arise because of the
deputation are certainly vacancies in the cadre. The
deputations are generally for a period of a year and
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more and the consequential vacancies are also long term
vacancies, which cannot be called fortuitious or
adventitious". "15. With reference to paragraph 4 (8)
(1) (a), I say that the post in the borrowing
department is certainly a post outside the sanctioned
strength of the C.P.W.D. However, deputation of an
officer belonging to the C.P.W.D. to fill such a post
causes a vacancy in the C.P.W.D. It is this vacancy
which has been added and not then post on the
borrower's establishment. This has been done because in
our case, the quota allocation is linked to vacancies
and not to post; of course, the vacancies must be in
posts in the cadre".
So also the Union of India reiterated the same view in
the Counter Affidavit filed on its behalf in C.M.P. No. 2663
of 1975 in A.K. Subraman's case:
"Vacancies: The quota system, based on which the
date of commencement of the regular appointment of
either side had to be fixed, in accordance with the
directives of the Hon'ble Court, had been introduced by
the Central Engineering Service (and Central Electrical
Engineering Service) Recruitment Rules promulgated on
25.8.1949. Hence the vacancies had to be identified
right from this date.
Vacancies in the grade of Executive Engineers had
occurred not only due to death, retirement, resignation
etc. in the grade but also because of promotion (to
higher grade) dismissal from this or higher grades,
reversion to lower grades and deputation to other
organisations like the Delhi Development Authority,
undertaking, he retains his lien on the post in the
parent department and he has a
895
right to come back to that post which he can exercise
at any time and hence the vacancy caused by his
deputation cannot be regarded as a permanent vacancy
liable to be filled by regular recruitment to the cadre
of Executive Engineers. It was urged that so long as an
Executive Engineer who has gone on deputation retains
his lien on the post in the parent department, that
post cannot be filled by promotion of another Assistant
Engineer or Assistant Executive Engineer by way of
substantive recruitment to the cadre of Executive
Engineers, because two officers cannot hold a lien on
the same post simultaneously. We do not think this
argument is well-founded. There is here no question of
violation of the basic principle of service
jurisprudence that two officers cannot simultaneously
have a lien on the same post. It is significant to
note, and this was common ground between the parties,
that the vacancy which attracts the applicability of
the quota rule is not only a vacancy in a permanent
post but also a vacancy in a temporary post and
obviously no Executive Engineer can have a lien on a
temporary post and therefore, extinguishment of a lien
on a post is not necessary in order that there should
be an available vacancy for the applicability of quota
rule. It is now settled as a result of the decision
A.K. Subraman's case that the quota rule is to be
applied at the time of initial other Central or State
Government undertakings or Departments, UN assignments
etc. none of which could be called fortuitous or
adventitious because they were all long term
appointments covering a period of one to two years or
more.
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Calculations of all such vacancies with reference
to the case and circumstances as called out from the
original papers right from 25.9.1949 was a herculean
task and it was difficult to be sure that there had
been no errors or omissions. Hence, to be sure, the
answering respondents decided to treat each long term
promotion to the grade of Executive Engineer, for
whatever reasons, as a vacancy, on the assumption that
such a promotion could not have been made without the
existence of a vacancy".
It is thus clear that the vacancies in the posts of
Executive Engineers arising on account of deputation of
Executive Engineers
896
to other departments, organisations and public undertakings
for a period of one or more years were long term vacancies
and they could not be regarded as fortutitous or
adventitious in character and hence they were subject to the
quota rule.
But the answer sought to be given on behalf of
respondents Nos. 4 to 190 to repel this conclusion was that
when an Executive Engineers goes on deputation to another
department, organisation or public sector recruitment in an
officiating capacity to the cadre of Executive Engineers and
not at the time of confirmation. It is, therefore, not
necessary that the lien of an officer on a post of Executive
Engineer must be extinguished before any promotion to that
post can be made in accordance with the quota rule. Even
where a confirmed Executive Engineer is promoted to the post
of Superintending Engineer but continuous to have his lien
on the post of Executive Engineer, a vacancy would
undoubtedly arise in the post of Executive Engineer by
reason of his promotion and such vacancy would clearly be a
permanent vacancy liable to be filled according to the quota
rule. So also a vacancy attracting the applicability of the
quota rule would arise where an Assistant Engineer or
Assistant Executive Engineer regularly promoted within his
lawful quota dies or retires before confirmation. The
occurrence of a vacancy in the post of Executive Engineer
inviting the application of the quota rule has, therefore,
nothing to do with the extinguishment of lien on the post.
The argument of respondents Nos. 4 to 190 proceeds on the
assumption that promotion to the post of Executive Engineer
contemplated under the recruitment rules can be made only
when there is no lien of any other officer on that post, for
otherwise there will be two officers having lien on the same
post. But this assumption is wholly fallacious, because
promotion according to the quota rule envisaged in the
Recruitment Rules is, as pointed out in A.K. Subraman's
case, initial promotion in an officiating capacity and has
nothing to do with confirmation. The contention of
respondents Nos. 4 to 190 would have had considerable force
if promotion to the cadre of Executive Engineers were
dependent on confirmation and the quota rule were applicable
at the stage of confirmation. But this position stands
completely negatived by the decision in A.K. Subraman's
case. Therefore, Whenever there is a permanent vacancy, that
is to say, a long term vacancy in a post of Executive
Engineer, it would have to be filled according to the quota
rule irrespective of the fact whether there is any officer
having a lien on that post,. It
897
is true that a confirmed Executive Engineer who goes on
deputation may revert to the post on which he has a lien and
so also an officiating Executive Engineer who goes on
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deputation may revert back on termination of his deputation
and theoretically, in either case, an Assistant Engineer or
Assistant Executive Engineer who is promoted to fill the
vacancy arising on account of deputation may have to revert,
but in actual practice and reality, not a single Assistant
Engineer or Assistant Executive Engineer promoted as
Executive Engineer to fill a vacancy arising on account of
deputation, has had to revert, because deputation is a
normal feature in this service and 20 to 25 per cent of the
Executive Engineers are continuously on deputation. Even if
one Executive Engineer comes back on termination of his
deputation, another has to be sent in his place and the
deputations thus go on rotating with the result that the
vacancy in the post of Executive Engineer arising on account
of deputation does not cease and the Assistant Engineer or
Assistant Executive Engineer promoted as Executive Engineer
to fill the vacancy does not ever have to revert and
consequently, the vacancy filled by him is really and truly
a permanent or long term vacancy which has to be filled
according to the quota rule. In fact, if the quota rule were
not to be applied with reference to such a vacancy, the
position would be that whenever an Executive Engineer goes
on deputation for a period which may extend to anything
between three to five years, the Central Government would be
entitled to promote an Assistant Engineer ignoring the
claims of Assistant Executive Engineers and this would be
totally arbitrary in a situation, where, as mentioned above,
20 to 25 per cent of Executive Engineers are on deputation.
But then it was contended on behalf of respondents Nos.
4 to 190 that even if a vacancy arising by reason of an
Executive Engineer going on deputation were regarded as a
permanent vacancy attracting the applicability of the quota
rule, the position would be different where an Assistant
Engineer or Assistant Executive Engineer was promoted for
being posted as Executive Engineer in a deputation post. To
such a promotion, it was urged, the quota rule would not
apply, because the promotion in such a case would not be to
fill a post in the sanctioned strength of the cadre of
Executive Engineers but would be to fill a deputation post
of Executive Engineer in another department, organisation or
public sector undertaking. This argument, plausible though
it may seem at first sight, is in our opinion not
sustainable. When a
898
department, organisation or public sector undertaking
requests the Central Public Works Department to make
available the services of an Executive Engineer on
deputation, The Central Public Works Department has two
options available to it: either to send an Executive
Engineer who is occupying a post in the cadre of Executive
Engineers, whether confirmed or on officiating basis or to
promote an Assistant Engineer or Assistant Executive
Engineer as Executive Engineer and straightaway send him
outside to the deputation post. Now if the former mode of
proceeding could lead to a vacancy attracting the
applicability of the quota, it is difficult to appreciate
how the latter mode of proceeding should not lead to a
similar result. In both cases, the ultimate result would be
promotion of an Assistant Engineer or Assistant Executive
Engineer as Executive Engineer against demand for
deputation. Where an Assistant Engineer or Assistant
Executive Engineer is promoted as Executive Engineer and
immediately sent to a deputation post in another department,
organisation or public sector undertaking, what really
happens is that in the eye of law, a post is temporary
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created in the cadre of Executive Engineers to which the
Assistant Engineer or Assistant Executive Engineer is
promoted and then sent on deputation. Obviously, an
Assistant Engineer or Assistant Executive Engineer cannot be
promoted directly to the post of Executive Engineer in
another department, organisation or public sector
undertaking: he can be promoted only to a post of Executive
Engineer in Central Engineering Service Class I and then
asked to go on deputation. Of course, an Assistant Engineer
or Assistant Executive Engineer can be directly sent on
deputation to the post of Executive Engineer in another
department, organisation or public sector undertaking
without being promoted as Executive Engineer in his own
department and in such a case there will be no question of
filling a vacancy according to the quota rule. The Assistant
Engineer or Assistant Executive Engineer who goes on
deputation as Executive Engineer in another department,
organisation or public sector undertaking would in such a
case continue to remain an Assistant Engineer or Assistant
Executive Engineer in his own department, but would be
merely occupying the post of Executive Engineer in the other
department, organisation or public sector undertaking as a
deputationist and on the termination of his deputation, he
would revert as Assistant Engineer or Assistant Executive
Engineer in his own department. Such a deputation cannot be
regarded as filling of a vacancy in the post of Executive
Engineer in the Central Engineering Service Class I so as to
attract
899
the applicability of the quota rule. But when an Assistant
Engineer or Assistant Executive Engineer is promoted as
Executive Engineer in his own department and simultaneously
with such promotion, he is sent on deputation to another
department, organisation or public sector undertaking, he
goes on such deputation as Executive Engineer, so that if
for any reason his deputation comes to an end, he reverts to
his own department as Executive Engineer and not as
Assistant Engineer or Assistant Executive Engineer. The
petitioner filed before us several orders of promotion of
Assistant Engineers as Executive Engineers for being sent on
deputation to other departments or organisations and these
orders clearly showed that the Assistant Engineers in
respect of whom these orders were passed, were promoted as
Executive Engineers and then, simultaneously, under the same
orders, sent on deputation to other departments or
organisations. Obviously, in cases of this kind, the
promotion of the Assistant Engineer or Assistant Executive
Engineer would be to a post in the cadre of Executive
Engineers and it would be subject to the quota rule. The
present contention of respondents Nos. 4 to 190 seeking
exclusion of deputation vacancies from the applicability of
the quota rule must, therefore, be rejected, provided of
course the promotion of the Assistant Engineer or Assistant
Executive Engineer to a deputation vacancy is a regular
promotion, that is, after selection by the Departmental
Promotion Committee and is not an ad hoc promotion.
Respondent Nos. 4 to 190 are however on firmer ground
in regard to the second head of complaint urged by them
against the validity of the seniority list dated 14th
August, 1975 It is true that in preparing the seniority list
dated 14th August, 1975 respondent Nos. 1 to 3 included, for
the purpose of allocation of quota, also those vacancies
which arose on account of death or retirement of Executive
Engineers who were promoted from the grade of Assistant
Engineers in excess of their quota and whose promotions were
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not regularised by absorption within their quota prior to
their death or retirement and treated these vacancies as if
they were fresh vacancies governed by the quota rule. This
was clearly an error on the part of respondent Nos. 1 to 3.
It is difficult to see how a vacancy in the post of
Executive Engineer which, according to the quota rule, is
allocable to an Assistant Executive Engineer but which is
filled up by irregular appointment of an Assistant Engineer
can be treated as a fresh vacancy when the Assistant
Engineer irregularly promoted
900
dies or retires from service before regularisation of his
promotion by absorption within his quota. So long as the
quota rule is binding and enforceable, the Assistant
Engineer who is irregularly promoted to fill in a vacancy.
which belongs to the quota of Assistant Executive Engineers
is an illegal occupant of the vacancy and the vacancy
continues to be a vacancy belonging to the quota of
Assistant Executive Engineers and liable to be filled by
promotion of an Assistant Executive Engineer. In fact, the
promotion of an Assistant Engineer to the vacancy would be
invalid as being contrary to the quota rule, but in the 1st
Bishan Sarup Gupta case, the Court, in order to obviate
undue hardship, evolved the theory of temporary invalidity
of the promotion by holding that the promotion would only be
irregular and it could be regularised by absorption within
the quota in later years. The vacancy though pro tempor
filled irregularly by an Assistant Engineer would continue
to belong to the quota of Assistant Executive Engineers and
it can be filled only by an Assistant Executive Engineer if
the quota rule is to be strictly observed. The death or
retirement of an irregular promotee to the vacancy cannot
therefore give rise to a fresh vacancy: it is the same
vacancy which continues until properly filled by promotion
of an Assistant Executive Engineer at a subsequent date. If
in such a case the death or retirement of an irregularly
appointed Assistant Engineer were to be treated as creating
a fresh vacancy, if would lead to gross distortion. Let us
take a hypothetical case where in a particular year say
1956, there are 12 vacancies in the posts of Executive
Engineers out of which 8 vacancies belong to the quota of
Assistant Executive Engineer and 4 vacancies belong to the
quota of Assistant Engineer but only 2 Assistant Executive
Engineers are available with the result that 6 Assistant
Engineers are irregularly appointed to fill the remaining 6
vacancies allocable to the Assistant Executive Engineers.
Now suppose in the next year 1957 there are no new allocable
vacancies but 6 Assistant Engineers irregularly appointed in
the earlier year 1956 die or retire. If the so-called
vacancies arising by reason of the death or retirement of
these 6 irregularly appointed Assistant Engineers were to be
treated as fresh vacancies 4 out of them would go to
Assistant Executive Engineers while 2 would go to Assistant
Engineers The result would be that the Assistant Engineers
would get 2 more vacancies which they would not have
901
got if all the 8 vacancies allocable to Assistant Executive
Engineers in the year 1956 had been filled by promotion of
Assistant Executive Engineers and there had been no
irregular promotion of 6 Assistant Engineers. Thus the
Assistant Engineers would gain two more vacancies within
their quota by reason of irregular appointment of 6
Assistant Executive Engineers. That would be allowing
Assistant Engineers to profit from irregular appointments
which result can never be countenanced. We must, therefore,
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accept the contention of respondent Nos. 4 to 190 under the
second head of complaint.
The third head of complaint urged on behalf of
respondent Nos. 4 to 190 must also likewise be held to be
well-founded. Respondent Nos. 4 to 190 are right in
contending that while pushing down Executive Engineers
promoted from the grade of Assistant Engineers in excess of
their quota and adjusting them within their quota in a
subsequent year, respondent Nos. 1 to 3 must treat them as
absorbed from the date when a vacancy in that year arises in
the quota of Assistant Engineers and not on a notional basis
from 1st January of that year. What the decision in A.K.
Subraman's case requires is that Assistant Engineers
promoted as Executive Engineers in excess of their quota
must be pushed down and their promotion must be regularised
by absorption when due within their quota in a subsequent
year and therefore they can be adjusted only in a vacancy
which arises in that year and is allocable to the quota of
Assistant Engineers. There is nothing in the decision in
A.K. Subraman's case which warrants that when Assistant
Engineers promoted in excess of their quota are pushed down
and absorbed within their quota in a subsequent year, their
absorption should be reckoned nationally from Ist January of
that year. What respondent Nos. 1 to 3 have done is that all
Assistant Engineers who had been promoted in excess of their
quota and who having been pushed down were entitled to be
absorbed within their quota in a particular year, are
treated as absorbed from 1st January of that year and placed
en bloc senior to the Assistant Executive Engineers promoted
tn that year within their quota. There can be no doubt that
respondent Nos. 1 to 3 were not entitled to determine
seniority on this basis. This Assistant Engineer promoted in
excess of their quota and therefore pushed down for
absorption within their quota in a subsequent year could be
absorbed only in a vacancy arising in that year and
allocable to the quota of Assistant Engineers.
902
Re: Ground B
This ground of challenge is clearly unsustainable and
must be rejected. It is true that the Rules of 1976 have
been brought into force with effect from 10th December, 1974
but in rules 2(iii) and 2 (iv) they lay down a rule of
seniority affecting Assistant Engineers and Assistant
Executive Engineers promoted as Executive Engineers
regularly within their respective quota from and after 22nd
December, 1959. It is therefore not possible to say as a
matter of plain grammatical construction that the Rules of
1976 cannot affect the petitioners and other Assistant
Engineers promoted regularly within there quota prior to
10th December, 1974. The question would however remain
whether Rules 2 (iii) and 2 (iv) of the Rules of 1976 in so
far as they lay down a rule of seniority different from the
rule of length of continuous officiation for Executive
Engineers promoted from and after 22nd December, 1959, are
constitutionally valid. This is the question which we shall
proceed to consider under Ground C.
Re: Ground C.
We have already pointed out that though the Rules of
1976 have been brought into force with effect from 10th
December 1974, they do not have the effect of over-riding
the decision in A.K. Subraman's case directing the
Government to amend and revise the seniority list so as to
fix inter se seniority between Assistant Engineers and
Assistant Executive Engineers promoted regularly within
their respective quota up to 11th December 1974, by applying
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the rule of seniority based on length of continuous
officiation. On this view, Rules 2(iii) and 2(iv) of the
Rules of 1976, in so far as they provide for seniority being
given en bloc to the Assistant Executive Engineers promoted
to the 86 carried forward posts of Executive Engineers and
apply the rotational formula for the purpose of determining
seniority amongst Assistant Engineers and Assistant
Executive Engineers promoted to the subsequent vacancies,
must be held to be ineffective qua Assistant Engineers &
Assistant Executive Engineers promoted upto 11th December,
1974 and so far as these Assistant Engineers and Assistant
Executive Engineers are concerned, their inter se seniority
must be held to be governed by the length of continuous
officiation in the grade of Executive Engineers. But the
question would still survive whether inter se seniority
between Assistant Engineers and Assistant Executive
Engineers promoted subsequent to 11th December, 1974 would
have to be determined in accordance with the rotational rule
of seniority set out in Rule
903
2(iv) or this rotational rule of seniority is
unconstitutional and void as offending Articles 14 and 16 of
the Constitution It may also be considered in the
alternative, on the assumption that Rules 2(iii) and 2(iv)
of the Rules of 1976 govern the determination of inter se
seniority between Assistant Engineers and Assistant
Executive Engineers promoted from and after 22nd December,
1959 despite the decision in A.K. Subraman case, whether
these rules can successfully meet the challenge of Article
14 and 16 or they wold be liable to be condemned as
constitutionally invalid.
We may first consider the constitutional validity of
Rules 2(iii) and 2(iv) of the rules of 1976 in so far as
they affect the inter se seniority of Assistant Engineers
and Assistant Executive Engineers promoted regularly within
their respective quota from and after 22nd December, 1959.
Now the position which obtained on 22nd December 1959 was
that there were 86 Assistant Engineers who had been promoted
in excess of their quota and correspondingly there was
short-fall of 86 in promotions of Assistant Executive
Engineers. We are not sure whether in the light of what we
have said above, the excess in promotions of Assistant
Engineers and the deficiency in promotions of Assistant
Executive Engineers would stand reduced, but that would not
make any difference so far as the present question is
concerned and we shall therefore proceed on the footing that
the excess in promotions of Assistant Engineers and the
short-fall in promotions of Assistant Executive Engineers
was 86. The question is whether, consistently with the
constitutional requirement of Articles 14 and 16, en bloc
seniority could be given to the Assistant Executive
Engineers promoted to fill the 86 vacancies allocable to the
quota of Assistant Executive Engineers and remaining
unfilled by them up to 22nd December 1959. These 86
vacancies were under Rule 2(iii) directed to be carried
forward and filled by Assistant Executive Engineers promoted
on or after 22nd December 1959 and the Assistant Executive
Engineers no promoted were given seniority en bloc. The
petitioners objected to this provision in Rule 2(iii) for
carry forward of these 86 vacancies and contended that there
could be no carry forward of any vacancies which were not
filled by Assistant Executive Engineers and so promotions of
Assistant Executive Engineers could be made to fill such
vacancies as from the date when they arose in any particular
year. This objection raised on behalf of the petitioners is
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partly sustainable and partly not. Where the quota rule is a
statutory rule which has to be scrupulously observed, the
vacancy which according to the quota rule is allocable to
promotees
904
from one source cannot be filled by a promotee from another
source and if, notwithstanding the quota rule, the vacancy
is filled by a promotee from that other source, such
promotion would be irregular and as pointed out above, the
vacancy would continue to remain a vacancy liable to be
filled by a promotee from the first mentioned source. It
would not be strictly accurate to say that in such a case
the vacancy is carried forward in the sense in which that
expression has been used in T. Devdasan v. Union of India.
It was pointed out by this Court in Mervin Coutinhs v. The
Collector of Customs, Bombay : ".....in the case of the
carry forward rule certain quota is fixed annually for a
certain class of persons and it is carried forward from year
to year. This is very different from a case where a service
is divided into two parts and there are two sources of
recruitment, one of promotion and the other by direct
recruitment. In such a case the whole cadre of a particular
service is divided into two parts and there is no question
of carrying anything forward from year to year in the matter
of annual intake". These observations were quoted with
approval by a Bench of Five Judges of this Court in G.D.
Kelkar v. Chief Collector of Imports and Exports. What
therefore happens in such a case is that the vacancy which
is pro tempore irregularly occupied by a promotee from
another source remains available for being filled by a
promotee from the source to which the vacancy belongs and in
that sense, it may loosely be said that the vacancy is
carried forward from the year in which it arose to a
subsequent year in which it is properly filled by a promotee
from the right source. This is precisely what Ray, C.J.
speaking on behalf of the Court in V. S. Badami v. State of
Mysore said at page 823 of the Report:
"........ if promotions are made to vacancies in
excess of the promotional quota, the promotions may not
be total illegal but would be irregular. The promotees
cannot claim any right to hold the promotional posts
unless the vacancies fall within their quota. If
promotees occupy any vacancies which are within the
quota of direct recruits when direct recruitment takes
place the direct recruit will occupy the vacancies
within their quota. Promotees who were occupying the
vacancies within the quota of direct recruits will
905
either be reverted or they will be absorbed in the
vacancies within their quota in the facts and
circumstances of a case."
We must therefore hold that Respondent Nos. 1 to 3 were
right in proceeding on the basis that 86 vacancies allocable
to the quota of Assistant Executive Engineers remained
unfilled as on 22nd December, 1959 and were available for
being filled by Assistant Executive Engineers subsequent to
that date.
But the question arises whether the Assistant Executive
Engineers promoted to fill these 86 vacancies which were, to
use the expression in Rule 2(iii), carried forward from the
period prior to 22nd December 1959 could be deemed to have
been promoted from the dates when these 86 vacancies arose
or they could be said to have been promoted only from the
dates of their actual appointment. Now obviously there could
not be any appointment of Assistant Executive Engineers to
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these 86 vacancies with retrospective effect and they must
be taken to have been promoted to these 86 vacancies only
from the dates of their actual appointment and from no
earlier dates. If that be so, it is difficult to appreciate
how, consistently with the mandate of Articles 14 and 16 of
the Constitution, an Assistant Executive Engineer appointed
to one of these 86 vacancies could under Rule 2(iii) be
given seniority as if he were promoted to that vacancy on
22nd December 1959, though he might in fact have been
promoted years later and on this basis given precedence over
Assistant Engineers promoted regularly within their quota
long prior to the actual promotion of such Assistant
Executive Engineer. The consequence of giving effect to Rule
2(iii) providing en bloc seniority to the Assistant
Executive Engineers promoted to fill these 86 vacancies
would be that a large number of Assistant Engineers though
promoted regularly within their quota years before the
actual promotion of such Assistant Executive Engineers would
become junior to such Assistant Executive Engineers and
their promotional opportunities would be seriously
prejudiced In fact, they would have to wait until the
Assistant Executive Engineers promoted to these 86 vacancies
were promoted further as Superintending Engineers and then
only they would have a chance of being considered for
further promotion and even such chance would recede and be
reduced to almost nil if the rotational rule of seniority
were to be applied in respect of promotions to subsequent
vacancies as set out in Rule 2(iv). This would become amply
clear if we look at the chart Annexure I to the writ
petition which reproduces the seniority list dated 14th
August 1975 along with other particulars relating
906
to the Assistant Engineers and Assistant Executive Engineers
promoted as Executive Engineers. The Assistant Executive
Engineers promoted to these 86 'carried forward' vacancies
figure in the seniority list dated 14th August 1975 at Sr.
Nos 100 to 185 and the particulars given in regard to them
in the chart Ex. I show that though the Assistant Executive
Engineers at Sr. Nos. 122 to 185 were promoted as Executive
Engineers after 1962, they were placed higher in seniority
than petitioner No. 1 who was as Assistant Engineer promoted
as Executive Engineer and absorbed within his legitimate
quota in 1962 and so also the Assistant Executive Engineers
at Sr. Nos. 173 to 185 though promoted after 1966 were given
seniority above petitioner No. 2 who was an Assistant
Engineer promoted as Executive Engineer and absorbed within
his lawful quota in 1966, Rule 2(iii) in so far as it gives
en bloc seniority to the Assistant Executive Engineers
promoted to these 86 vacancies irrespective of the date when
they were actually promoted and pushes down in seniority
Assistant Engineers though promoted regularly within their
quota prior to the actual promotion of such Asstt. Executive
Engineers, thereby prejudicially affecting their promotional
opportunities, must therefore be held to be violative of
Articles 14 and 16 of the Constitution.
We find that rule 2(iv) also suffers from the same
infirmity. It provides for rotational rule of seniority
based on the prevailing quota for determining inter se
seniority between Assistant Engineers and Assistant
Executive Engineers promoted to the grade of Executive
Engineers from and after 22nd December 1959 subject to en
bloc seniority being given to the Assistant Executive
Engineers promoted to the 86 'carried forward' vacancies as
set out in Rule 2(iii). Obviously, if Rule 2(iii) providing
for en bloc seniority to be given to the Assistant Executive
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Engineers promoted to the 86 'carried forward' vacancies is
unconstitutional and void as held by us in the preceding
paragraph of this judgment, it must follow that the inter se
seniority between Assistant Engineers and Assistant
Executive Engineers promoted from and after 22nd December
1959 would be governed wholly by the rotational rule of
seniority set out in Rule 2(iv). Now there can be no doubt
that a rule of seniority based on rotation of vacancies
according to the quota prevailing at the time would be
constitutionally acceptable if the quota rule were strictly
implemented, barring minor deviations. It is well settled as
a result of several decision of this Court that there is
nothing inherently wrong in working out the quota rule by
adopting the rotational rule of seniority. But, as pointed
out by this Court in
907
N.K Chauhan v. State of Gujarat (supra) quota is not 'so
inter-locked with rota that where the former is expressly
prescribed, the latter is impliedly inscribed". The quota
rule does not inevitably invoke the application of the
rotational rule of seniority. Even where a quota is
prescribed for recruitment from different sources, there may
be different modes prescribed for determining seniority of
officers on entry into the cadre. In fact, right from 25th
August, 1949 when the quota rule was introduced upto 22nd
December, 1959, the seniority amongst Assistant Engineers
and Assistant Executive Engineers promoted as Executive
Engineers was governed not by the rotational rule by but the
length of continuous officiation. It is therefore obvious
that even where there is a quota rule governing recruitment
to a cadre from different sources it is not necessary that
there should be any particular rule of seniority. The
Government may in its wisdom adopt an appropriate rule of
seniority which may be based on length of continuous
officiation or may follow a roster arranged in conformity
with the quota rule so that seniority may be determined
according to the rotation of vacancies under the quota rule.
There may also be any other appropriate rule for determining
seniority in a cadre. Indeed, as pointed out by Krishna
Iyer, J. in N.K. Chauhan's case, myriad ways can be
conceived "for determining seniority of officers on entry
into a cadre." But whatever may be the rule of seniority
adopted by the Government, it is well settled that it must
satisfy the best of equality enshrined in Articles 14 and 16
of the Constitution. The question in each case would be
whether on the facts and circumstances of the case, the rule
of seniority prescribed by the Government meets the
challenge of the constitutional provision enacted in
Articles 14 and 16.
We have already pointed out that there is no inherent
vice in the quota rule being operated through the rotational
rule of seniority. Where the rotational rule of seniority is
adopted, the relative seniority of promotees from different
sources has to be determined on the basis of a roster
maintained in accordance with the quota rule, so that when
promotion of an officer is regularly made within his quota,
he is fitted into the vacancy reserved for promotees from
his source and his seniority is reckoned from the date when
such vacancy arose. But this rotational rule of seniority
can work only if the quota rule is strictly implemented from
year to year. Some slight deviations from the quota rule may
not be material but as pointed out by Palekar, J. in the
Bishan Swarup Gupta's case, "if there is enormous deviation,
other considerations may arise". If the rota-
908
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tional rule of seniority is to be applied for determining
seniority amongst officers promoted from different sources,
the quota rule must be observed. The application of the
rotational rule of seniority when there is large deviation
from the quota rule in making promotions is bound to create
hardship and injustice and result in impermissible
discrimination. That is why this court pointed out in A. K.
Subarmans's case that "when recruitment is from two or
several sources, it should be observed that there is no
inherent invalidity in introduction of quota system and to
work it out by a rule of rotation. The existence of a quota
and rotational rule, by itself, will not violate Article 14
or Article 16 of the Constitution ............ It is the
unreasonable implementation of the same which may, in a
given case, attract the frown of the equality clause." The
rotational rule of seniority is inextricably linked up with
the quota rule and if the quota rule is not strictly
implemented and there is large deviation from it regularly
from year to year, it would be grossly discriminatory and
unjust to give effect to the rotational rule of seniority.
We agree wholly with the observation of D.A. Desai, J. in A.
Janardhan v. Union of India that "the quota rule is linked
with the seniority rule; if the first breaks down or is
illegally not adhered to, giving effect to the second would
be unjust, iniquitous and improper". This was precisely the
reason why the Court in the first Bishan Sarup Gupta's case
held that with the collapse of the quota rule, the rule of
seniority set out in Rule 1(f) (iii) also went.
Now in the present case the record shows that there has
been enormous deviation from the quota rule in the
promotions of Assistant Executive Engineers and such
deviation has continued from year to year over a period of
almost 25 years. We have in an earlier part of this judgment
adverted to the fact that as on 22nd December, 1959 there
was a short fall in the promotions of Assistant Executive
Engineers to the extent of 86, because the quota rule had
not been properly implemented from 1953 up to 22nd December,
1959 and promotions of Assistant Executive Engineers had not
been effected according to the quota applicable to them. It
is interesting to note that even after 22nd December, 1959,
the quota was consistently breached from year to year except
for four or five years and there was massive under
recruitment of Assistant Executive Engineers with the result
that as on 31st July, 1975, the cumulative shortfall in
promotions of Assistant Executive Engineers was 206 while
there was corresponding excess in promotions of Assistant
909
Engineers to the extent of the same number. Though there was
such large deficiency in promotions of Assistant Executive
Engineers and corresponding excess in promotions of Asstt.
Engineers upto 31st July, 1975, no attempt was made by the
Government to set right this imbalance by stepping up the
recruitment of Assistant Executive Engineers in the
subsequent years so as to restore the balance in the
composition of the cadre of Executive Engineers. On the
contrary, the under recruitment of Assistant Executive
Engineers continued uninterrupted and by the end of 1981 the
short-fall in the promotions of Assistant Executive
Engineers increased to 247 with corresponding excess in the
promotions of Assistant Engineers. This enormous deviation
from the quota rule on account of massive under recruitment
of Assistant Executive Engineers has led to grave distortion
and it is difficult to see how, in this situation, the
rotational rule of seniority can be applied consistently
with the mandate of equality enshrined in Articles 14 and
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16. The rotational rule of seniority must obviously break
down when there is such massive departure from the quota
rule regularly from year to year leading to continuously
increasing deficiency in promotions of Assistant Executive
Engineers and corresponding excess in promotions of
Assistant Engineers.
It is obvious that by reason of under-recruitment of
Assistant Executive Engineers and over-recruitment of
Assistant Engineers in breach of the quota rule over a
period of almost 25 years, most of the Assistant Engineers
having been promoted in excess of their quota would have to
be pushed down to subsequent years when they could be
absorbed within their lawful quota and many of them would
have to wait for 7 to 12 years on an average before their
promotions could be regularised by absorption within their
quota. But, despite regularisation of their promotions after
a wait of seven to twelve years, they would not be entitled
to claim seniority over Assistant Executive Engineers
promoted later in point of time because by reason of the
application of the rotational rule of seniority based on the
roster maintained in accordance with the quota rule, the
Assistant Executive Engineers though promoted subsequently
would be entitled to have their seniority reckoned from the
date when the vacancy allocable to their quota arose. The
Assistant Executive Engineers though promoted long after the
regularisation of the promotion of the Assistant Engineers
would gain seniority over such Assistant Engineers, because
they would be fitted into the vacancies kept reserved for
them and artificial seniority would be given to them on
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the fictional hypothesis that such vacancies were filled by
them at the time when they arose. The result would be that
Assistant Executive Engineers who were promoted years after
the regularisation of the promotions of Assistant Engineers
by absorption within their quota which regularisation also
would have taken place after they had been working as
Executive Engineers for a period of about 7 to 12 years
would become senior to such Assistant Engineers even though
at the time when they were promoted, such Assistant
Engineers would have already been functioning as Executive
Engineers for a number of years. The Assistant Executive
Engineers promoted later in point of time would shoot up in
seniority irrespective of the length of their service in the
grade of Executive Engineers, by reason of the rotational
rule of seniority based on the roster maintained in
accordance with the quota rule. It is obvious that giving
such artificial seniority to Assistant Executive Engineers
promoted years after the regular promotions of Assistant
Engineers would completely blight the promotional
opportunities of such Assistant Engineers, because for
promotion to the higher grade of Superintending Engineers,
they would have to wait for consideration of their case
until the Assistant Executive Engineers who are given
artificial seniority over them are promoted, even though
they would have put in a much longer period of service as
Executive Engineers than such Assistant Executive Engineers.
The point we are making would become obvious if we consider
a few illustrative instances. Take, for example, the case of
petitioner No. 1. He was promoted as Executive Engineers on
1st October, 1956 but since his promotion was out side the
quota of Assistant Engineers, he had to be pushed down and
he was ultimately absorbed within his lawful quota in 1962
and though he became a regular promotee within his quota
since 1962, he was placed at serial No. 273 in the seniority
list dated 14th August 1975 while many Assistant Executive
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Engineers promoted much later in point of time than 1962
were placed higher than him in seniority. The result was
that he never got a chance for being considered for
promotion as Superintending Engineer and he ultimately
retired as Executive Engineer on 31st January, 1978. The
case of petitioner No. 1 may now be contrasted with that of
J.P. Singhal, who was recruited as Assistant Executive
Engineer on 1st February, 1967 and who was promoted as
Executive Engineer on 14th January, 1972. Though J.P.
Singhal was not even in service at the date when petitioner
No. 1 became a regular promotee Executive Engineer in 1962
and he was promoted as Executive Engineer almost ten years
after the regular promotion of petitioner No. 1 by
absorption within his quota, J.P. Singhal was placed in
seniority at Sr. No. 113 while, as pointed out
911
above, petitioner No. 1 was placed at Sr. No. 273 in the
seniority list dated 14th August 1975, with the result that
J.P. Singhal came to be promoted as Superintending Engineer
on 15th February 1979 while petitioner No. 1 did not even
have a chance of being considered for such promotion.
Similarly we may also contract the case of petitioner No. 2
with that of R.A. Armugam. Petitioner No. 2 was promoted as
Executive Engineer on 7th April, 1959 but since his
promotion was not within the quota of Assistant Engineer, he
had to be pushed down and he was ultimately absorbed within
his quota in 1966 and though he was regularly promoted as
Executive Engineer within his quota since 1966, he was
placed at serial No. 396 in the seniority list dated 14th
August, 1975 while R.A. Armugam who was recruited for the
first time as Assistant Executive Engineer on 20th January
1971 and promoted as Executive Engineer only on 14th April,
1975 was placed higher in seniority at serial No. 260. Thus,
the result of the application of the rotational rule of
seniority was that R.A. Armugam who was not even in service
at the date when petitioner No. 2 became a regularly
promoted Executive Engineer and who was promoted as
Executive Engineer 9 years after petitioner No. 2, acquired
several places above petitioner No. 2 in seniority. It is
not necessary for us to multiply instances where Assistant
Executive Engineers promoted years after the regular
promotion of Assistant Engineers have shot up in seniority
above such Assistant Engineers by reason of the
applicability of the rotational rule of seniority, with
devastating effect on the promotional chances of such
Assistant Engineers. Such instances are legion and, in fact,
almost every Assistant Engineer has in the process suffered
loss of seniority vis-a-vis Assistant Executive Engineers
promoted years later in point of time. The application of
the rotational rule of seniority has thus resulted in gross
discrimination against Asstt. Engineers promoted as
Executive Engineers, in so far as their opportunities for
promotion to the higher grades are concerned. The seed of
discrimination attracting the frown of the equality clause
has germinated from the fact of regular undue deviation in
actual implementation of the quota rule and obviously the
deviation from the quota rule, the greater and more intense
is the discrimination. We have already pointed out the
enormity of the deviation from the deviation from the quota
rule in the present case and this deviation continued from
year to year for a period of over 25 years has considerably
aggravated the discrimination against the Assistant
Engineers.
912
Now it is obvious that if Assistant Executive Engineers
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recruited at a young age are given artificial seniority
several years above the Assistant Engineers who have already
been pushed down 7 to 12 years before absorption within
their lawful quota, they would get chances of promotion much
earlier than the Assistant Engineers and once promoted, they
being young in age would occupy the posts in the higher
grades for a much longer period and that to a large extent
block the chances of promotion of Assistant Engineers even
when their turn comes for consideration though at a much
belated point of time. If officers from two sources are
promoted according to quota, then officers from both sources
get promotion to posts in the higher grade on the basis of
continuous officiating service in the grade, reckoned from
the initial date of appointment subject, of course, to merit
and this process goes on continuously due to progressive
retirement of officers in the higher grades, such officers
being of an appropriate higher age group. But if, as in the
present case, relatively younger officers drawn from one
source are given artificial seniority over older officers
promoted from the other source, such younger officers would,
by the reason of the artificial seniority given to them
progressively occupy most of the posts in the higher grades
and because they belong to a younger age group, they would
block the promotional avenues open to the officers drawn
from the other source. This disastrous situation has
occurred here because of the rotational rule of seniority
and the result is that, as at the end of 1981, out of 101
Superintending Engineers 93 were from the source of
Assistant Executive Engineers and so far as the higher cadre
of Chief Engineers is concerned, all the 19th Chief
Engineers were from the same source, namely, Assistant
Executive Engineers, though in the grade of Executive
Engineers, out of a total of 384 Executive Engineers, 103
only were from the source of Assistant Executive Engineers
while 281 were from the source of Assistant Engineers. These
statistics clearly highlight how discriminatory and unjust
has been the application of the rotational rule of seniority
to the Assistant Engineers.
It was contended on behalf of respondent Nos. 4 to 190
that the under recruitment of Assistant Executive Engineers
during the period from 1949 to 31st July, 1975 was due to
the fact that the Government took the view, which of course
was found erroneous by the court in A.K. Subraman's case
that the quota rule was to be applied only at the stage of
confirmation and it was because a different view was taken
in A.K. Subraman's case, namely, that the
913
quota rule was applicable at the stage of initial promotion
in an officiating capacity to the grade of Executive
Engineers and not at the time of confirmation that this
imbalance in seniority took place. This contention is
clearly unfounded but even if it were not so, it is entirely
immaterial, because the constitutional validity of the
rotational rule of seniority cannot depend upon what the
government thought to be the correct position in regard to
the applicability of the quota rule. The question whether
the rotational rule of seniority is constitutionally valid
or not has got to be determined in the light of the
interpretation placed on the application of the quota rule
by the decision in A.K. Subraman's case, because that must
be accepted as the correct interpretation and in the context
of that interpretation, the constitutional validity of the
rotational rule of seniority must be judged. But, as pointed
out above, we do not think this contention urged on behalf
of respondent Nos. 4 to 190 is correct. We are not inclined
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to accept the submission of respondent Nos. 4 to 190 that
under-recruitment of Assistant Executive Engineers took
place because the government thought that the quota rule was
to be applied only at the stage of confirmation. There is
considerable material placed before the court to show that
the government rightly understood the quota rule to be
applicable at the stage of initial promotion but failed to
strictly implement it. Paragraph 4 of the minutes of the
meeting held on 14th May, 1968 in the office room of Shri
B.R. Patel, Secretary, Ministry of Works and Supply, clearly
emphasizes this position by stating that "the intake of
Assistant Executive Engineers should be increased by
considering 2/3rd of all the temporary and deputation posts
in the grade of Executive Engineers and above in the
department as permanent ones for the purpose of working out
the strength at the junior scale." So also we find a
categorical statement to the same effect in the letter dated
19th October, 1971 addressed by Shri Kartar Singh, Joint
Secretary to the Government of India, Ministry of Works and
Housing a letter to which we have already referred earlier.
The Government also took up a positive stand in the
affidavit in reply filed by P.B. Kulkarni in A.K. Subraman's
case where it was stated: "I submit that the quota rule is
to be applied as and when vacancies in the grade of
Executive Engineers are required to be filled but as already
stated earlier, it has not been possible to apply this quota
rule rigidly at the time of officiating promotions as
promotions from the grade of Assistant Engineers have been
in excess of their quota." (Emphasis supplied). It will thus
be seen that the government was under no illusion in regard
to the true position relating to the applicability of the
quota rule. But the government deliberately resorted to the
policy of under-
914
recruitment of Assistant Executive Engineers because, as set
out in the Note regarding Cadre Review of the Central
Engineers Service Class I, prepared and submitted to the
Government in June, 1978, it was felt that "it is not
possible to recruit enough officers in Class I junior scale
to fill up the quota at Executive Engineers level as it
would worsen the promotion prospects of direct recruits to
class I and make the service totally unattractive". The Note
regarding Cadre Review also pointed out:
"A perusal of form VI would indicate that in the
next five years the annual recruitment would be of the
order of 80 and in the subsequent five years it would
be of the order of 40. According to the existing Rules,
the vacancies in the grade of Executive Engineers are
to be filled up by the promotion of Asstt. Executive
Engineers (Group A) and Asstt. Engineers (Group B) in
the ratio of 1 : 1 Since the annual intake of Asstt.
Executive Engineers is to be co-related with the
vacancies that would be available in the grade of
Executive Engineers, the annual intake of Asstt.
Executive Engineers (CES GROUP A) would be 40 in the
next five years and 20 in the subsequent five years. It
has been already explained in para 2 : 3 : 6 that when
the annual recruitment was less than 10, the direct
recruits were able to reach the Junior Administrative
grade in 10 to 11 years. When this was subsequently
increased to 20 per annum the period taken for
promotion has increased to 14 years which is likely to
increase further if the annual intake is maintained at
the same level. For this reason, it is not considered
desirable to appoint direct recruits to C.E.S. Group A
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in large number. In the Indian Railways Service of
Engineers, the recruitment to the Junior Scale in Group
'A' is related to the number of posts at the level of
Chief Engineer and above and the annual intake has
generally been less than the number of posts of Chief
Engineers. In the CPWD we have only 12 posts of Chief
Engineers and it is, therefore, recommended that the
annual intake to Junior Scale Class I through UPSC
competitive Examination should be restricted to 10
only."
There can be no doubt that the failure to recruit Assistant
Executive Engineers in sufficient numbers, so that when
vacancies in the grade of Executive Engineers allocable to
the quota of Asstt. Executive Engineers arose from year to
year, there would be Asstt
915
Executive Engineers available for promotion to fill such
vacancies, was responsible for the gross distortion which
took place in the cadre of Executive Engineers over the
years.
We must in the circumstances hold that Rules 2(iii) and
2(iv) of the Rules of 1976 are violative of Articles 14 and
16 of the Constitution and they must be declared to be
unconstitutional and void. It that be so, then obviously the
seniority between Assistant Engineers and Assistant
Executive Engineers regularly promoted within their
respective quota must be determined by the length of
continuous officiation in service in the grade of Executive
Engineers, subject to the qualification that in case of
Assistant Engineers the length of continuous officiation
shall be reckoned from the date when their promotion is
regularised by absorption within their lawful quota.
We would therefore allow the writ petition and quash
and set aside the Memorandum and the seniority list dated
14th August 1975 and the Rules of 1976. We would direct the
government to prepare a new seniority list of Executive
Engineers in the light of the observations contained in this
judgment. The Government will prepare such seniority list
within a period of two months from today. When the seniority
in the grade of Executive Engineers is rearranged in
accordance with the directions given in the judgment, the
cases of Assistant Engineers who would have been due for
consideration for promotion as Superintending Engineers and
thereafter as Chief Engineers on the basis of their revised
seniority, will be considered by a duly constituted
Departmental Promotion Committee as on the dates on which
they would have been due for such consideration if the
correct seniority had been given to them, and if on the
basis of their performance and record as on those dates they
would have been selected for promotion, they must be given
promotion with retrospective effect from such dates and if
necessary, supernumerary posts in the grades of
Superintending Engineers and Chief Engineers shall be
created for the purpose of accommodating them and all
arrears of salary and allowances shall be paid to them on
the basis of such retrospective promotions. We may make it
clear that those Assistant Executive Engineers who have been
promoted as Superintending Engineers or Chief Engineers upto
the date of this judgment shall not, on account of revised
seniority in the grade of Executive Engineers, be disturbed
from the positions which they are occupying at present but
their seniority in such higher grades will
916
have to be rearranged on the basis of the directions given
in the judgment.
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We hope and trust that this judgment will put a
quietous to the long ranging controversy between Assistant
Engineers and Assistant Executive Engineers. The writ
petition will stand disposed of in the above terms with no
order as to costs.
S.R. Petitions allowed.
917
The landmark Supreme Court judgment in P.S. Mahal & Ors. vs. Union of India & Ors. stands as a cornerstone of service jurisprudence in India, meticulously dissecting the contentious relationship between inter-se seniority and the application of the quota rule in public service promotions. This pivotal case, available on CaseOn, addresses the constitutional validity of retrospective seniority rules and their impact on the fundamental rights of government employees. The ruling provides critical clarity on how courts must intervene when the foundational principles of a promotion system are consistently disregarded, leading to widespread and unfair disruption of careers.
The case originated from a long-standing dispute within the Central Public Works Department (CPWD) concerning promotions to the post of Executive Engineer. The promotions were made from two feeder cadres:
A quota system was established to regulate promotions from these two streams. However, for years, the government failed to adhere to this quota. This resulted in Assistant Engineers (the petitioners) being promoted far in excess of their allocated quota, while a significant shortfall occurred in the promotions of Assistant Executive Engineers.
Initially, seniority was determined by the length of continuous officiation in the grade, which favored the Assistant Engineers. However, this was challenged, leading to the Supreme Court's decision in A.K. Subraman v. Union of India (1974). In Subraman, the Court affirmed that the quota rule must be applied at the initial promotion stage and those promoted in excess of their quota must be 'pushed down' for seniority. The guiding principle for seniority remained the length of continuous service for those promoted within their respective quotas.
In response, the government, instead of implementing the directive, issued the Executive Engineers (Regulation of Seniority) Rules, 1976, with retrospective effect from December 10, 1974 (one day before the Subraman judgment). These rules introduced two controversial changes:
This led to the present writ petition, where the petitioners challenged the new rules as arbitrary and violative of their fundamental rights.
The Supreme Court was tasked with determining the following key issues:
The Court's decision was anchored in several established legal principles:
The Supreme Court conducted a deep and methodical analysis of the facts and the challenged rules.
The Court found the provision giving en bloc seniority to be patently arbitrary. Granting seniority to individuals from a date years before their actual appointment and placing them above officers who had already been serving in the promoted grade was a gross violation of Articles 14 and 16. It was a fictional seniority that destroyed the legitimate career prospects of the petitioners without any rational basis.
This formed the core of the Court's analysis. The Court examined the data and noted an "enormous deviation" and a "massive departure" from the quota rule for nearly 25 years. The shortfall in the Assistant Executive Engineer cadre was not only large but continuously increasing. The Court concluded that the quota rule had, for all practical purposes, broken down. In such a situation, applying a rotational system of seniority, which presumes the strict observance of the quota, would be "grossly discriminatory and unjust." The very foundation for the rotational rule had collapsed, and its enforcement would unfairly penalize one group (Assistant Engineers) for the government's own failure to recruit and promote according to its rules.
Navigating the intricate details of how a quota system's collapse impacts seniority can be challenging. For legal professionals looking to quickly grasp the nuances of such rulings, the 2-minute audio briefs on CaseOn.in provide an invaluable tool for efficient and effective case analysis.
The Court held that the 1976 Rules were a clear attempt to circumvent the binding directions given in the Subraman case. A writ issued by the Supreme Court cannot be undone by a subsequent administrative rule. The right to seniority based on continuous officiation had crystallized for the petitioners under that judgment, and the state was bound to obey it.
The Supreme Court allowed the writ petitions and delivered a decisive verdict:
The judgment in P.S. Mahal vs. Union of India is essential reading for anyone interested in constitutional and administrative law, particularly service jurisprudence. It serves as a powerful precedent for several reasons:
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. For specific legal issues, please consult with a qualified legal professional.
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