Supreme Court of India
DIRECT RECRUIT CLASS II ENGINEERING OFFICERS' ASSOCIATION AND ORS.versusSTATE OF MAHARASHTRA AND ORS.
- Citation
- 1990 INSC 169
- Decided
- 2 May 1990
- Disposal
- Dismissed
- Bench
- SABYASACHI MUKHERJI
Holding
Seniority must be determined from the date of appointment, including continuous officiation made under substantive appointment rules, and the 1982 Rules (except the struck‑down provisions) and the 1984 Rules are valid; the writ petition is barred by res judicata.
Summary
The case involved engineers of the Maharashtra Service of Engineers contesting the seniority and promotion rules that distinguished between direct recruits and promotees (officiating Deputy Engineers). The Supreme Court examined whether continuous officiation should count for seniority under Articles 14 and 16, the constitutional validity of the 1978, 1982, 1983 and 1984 Rules framed under Article 309, and the enforceability of the quota provision in the 1960 Rules. It reaffirmed the principle from S.B. Patwardhan that seniority is based on the date of appointment and continuous officiation when made in accordance with substantive rules, struck down the discriminatory provisions of the 1982 Rules, upheld the 1984 Rules, and held that the writ petition was barred by res judicata. Consequently, all appeals and petitions were dismissed.
Issues considered
- The period of continuous officiation by a government servant should be counted for seniority under Articles 14 and 16.
- Whether the 1978, 1982, 1983 and 1984 Rules regulating seniority and quota are constitutionally valid.
- Whether the quota rule introduced in the 1960 Rules is enforceable and its impact on seniority.
- Whether the principle laid down in Patwardhan's case should be overruled.
- Whether the writ petition under Article 32 is barred by principles of res judicata.
- Whether officiating Deputy Engineers constitute a separate cadre from permanent Deputy Engineers.
Legislation cited
- Bombay Reorganisation Act, 1960s. Section 81(6)
- Code of Civil Procedure, 1908s. Section 11 (Explanation IV)
- Constitution of Indias. Article 14, s. Article 16, s. Article 309
Subjects
senioritypromotionquota ruleservice lawequality clauseArticles 14 and 16Article 309continuous officiationres judicatacivil serviceMaharashtra Service of Engineers
Judgment
DIRECT RECRUIT CLASS II ENGINEERING OFFICERS'
A
ASSOCIATION AND ORS.
v.
STATE OF MAHARASHTRA AND ORS.
MAY 2, 1990
B
[SABYASACHI MUKHARJI, CJ, L.M. SHARMA,
S. RATNAVEL PANDIAN, P.B. SAWANT AND
K. RAMASWAMY, JJ.]
Constitution of India, 1950: Articles 14, 16 and 309-Rules relat-
e ing to seniority of Maharashtra Service of Engineers-Validity of
Articles 32 and 226-Constructive Res judicata-Applicability of
Labour and Services: Reorganised Bombay State Overseas and 7
Deputy Engineers Seniority Lists Rules 1978/Maharashtra Service
D Engineers (Regulation of Seniority and Preparation and Re.vision of
Seniority Lists for specified period) Rules, 1982/Executive Engineers
and Assistant Engineers belonging to the Maharashtra Service of
Engineers Class I and Class II (Regulation and Revision of Seniority
Lists) Rules 1983/ 1984--Whether violative of Articles 14 and 16 of the
Constitution of India.
E '
Seniority and promotion-Direct recruits and promotees-inter-
se seniority-To be counted from date of appointment, not confir-
mation-Ad-hoc appointment-Officiation in such post-Cannot be
F
taken into account for considering seniority.
Quota rule-Absence of statutory rule-Can be prescribed by
-
executive instruction-To be followed strictly-Consecutive non-
adherence-Effect of
Civil Procedure Code, 1908: Section 11, Explanation IV-Res
judicata-Applicability to writ cases.
G
The parties in these matters are Engineers in the employment of
the States of Maharashtra and Gujarat. In 1937, Government of
Bombay created two new Provincial Engineering Services known as the
Bombay Engineering Service Class I consisting of posts of Chief
Engineer, Superintending Engineers, Execµtive Engineers and Assis-
H tant Engineers Class I, and the Bombay Engineering Service Class II
'
900
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA 901
having officers designated as Deputy Engineers. All the posts were
_L permanent. A
In 1939, Rules were made for regulating the methods of recruit-
ment to the said services which directed the recruitment to be made
either by nomination from amongst the students of the College of
Engineering, Pone or by promotion of officers holding inferior posts. A B
resolution was passed on 21.11.1941 for determination of the seniority
of the direct .recruits and the promotee officers, containing only two
rules. Rule 2 thereof was to the effect that in case of officers promoted
to substantive vacancies, the seniority would be determined with refer-
-~ ence to the date of their promotion to the substantive vacancies.
In 1960, detailed rules for recruitment to Class I and Class II c
Services were framed. In place of nomination from the successful stu-
dents of College of Engineering, Pone as direct recruits, these Rules
prescribed for a competitive examination to be held by the Public
Service Commission, and introduced a quota system by fixing a ratio of
appointments of direct recruits and promotees. The Rules also made D
reference to promotion, as Executive Engineers on officiating basis, and
temporary Deputy Engineers and officiating Deputy Engineers. By r. 8
the posts ot Deputy Engineers were re-organised, and by sub-rule (iii) it
was provided that the direct recruits in any year shall in a bunch be
f placed1senior to promotees confirmed during that year. A review ofthese
Rules was later undertaken by the Government and ultimately in E
partial supersession thereof a fresh set or rules, were adopted iri 1970.
In the meantime, however, a serious dispute in regard to the
interpretation of one of the provisions of the 1960 Rules arose "which
was settled by this Court in the case of P. Y . .Joshi and Others v. The
State of Maharashtra and Others, [1970) 2 SCR 615. F
During the period 1960-70 adequate number of direct recruits
were not available, and a large number of promotees, therefore, had to
be appointed to officiate as Deputy Engineers on continuous basis.
These appointments were made after following the procedure appii-
cable to regular promotions, including consultation with the Public G
Service Commission. The strength of the permanent Deputy Engineers
was fixed at the total number of (a) the Deputy Engineers confirmed up
to the date of commencement of the Rules, (b) direct recruits to the
posts of Deputy Engineers appointed till the date of commencement of
the Roles, and (c) the Deputy Engineers officiating on 30.4.1960; and it
was_ provided that no fresh apl'Ointments in future would hii made to H
902 SUPREME COURT REPORTS [1990] 2 S.C.R.
A this cadre and the vacancies arising would be transferred to the officers
holding subordinate posts detailed in the sub-rule in proportions indi·
cated. As per rule 33 of the 1970 Rules, the seniority list in each cadre in
Class I and Class Il was to be prepared in two parts-one for the
confirmed officers and other for those who were not confirmed; and
that the confirmed officers would be treated as senior to the uncon·
B firmed officers. Since the direct recruits were all appointed against the
permanent posts, they were reckoned to be senior to the officiating
Deputy Engineers irrespective of the period for which they had been
working continuously on the Deputy Engineer's posts. Though the
Rules were amended in 1972, there was no departure from the main
scheme especially the principle governing seniority.
c
In pursuance of the 1970 Rules seniority lists were prepared. The
validity of r. 8(iii) of the 1960 Rules and of r. 33 of the 1970 Rules 7
was successfully challenged as being violative of Articles 14 and 16
of the Constitution. S.B. Patwardhan and Ors. v. State of Maharashtra
and Ors., [1977] 3 SCR 775.
D
In view of the judgment In Patwardhan's case, it became
necessary to prepare fresh seniority lists. Rules were framed under
Article 309 of the Constitution read with s. 81(6) of the Bombay Re- ~
organisation Act, 1960, and were called the Re-organised Bombay State
E Overseers and Deputy Engineers Seniority Lists Rules, 1978.
In 1981 further rules called Re-organised Bombay State Assistant
Engineers and Executive Engineers Seniority Lists Rules, 1981, were
framed laying down the rule of determination of seniority of the
Assistant Engineers and the Executive Engineers for the period
F 1.11.1956 to 30.4.60. These-rules have been successfully challenged in
the High Court.
The main Rules which are the subject matter of the present cases
were framed in 1982 under Article 309 of the Constitution laying down
G the principle for fixing the seniority for the period dated 1.5.1960 to
20.12. 70 and are called"the Maharashtra Service of Engineers (Regula·
lion of Seniority and Preparation and Revision of Seniority Lists for
Specified Period) Rules, 1982. These rules were framed in view of the
decision of the Bombay High Court in S.B. Patwardhan's case. By
including two rules therein-Rules 4 and 9, deleted later-fixing rigid
H quota with retrospective effect, attempt was made to neutralise the
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA 903
decision and rob the promotees the benefit of their continnous
A
officiation.
For the purpose of f"D<ing the seniority of Execntive Engineers and
Assistant Engineers for the period commencing from 21.12.1970, sepa-
rate rules were framed under Article 309 of the Constitution and are
called the Executive Engineers and Assistant Engineers belonging to the B
Maharashtra Service of Engineers Class I and the Maharashtra Service
of Engineers Class II (Regulation of Seniority and Preparation and
Revision of Seniority Lists) Rules, 1983. As a result of a decision of the
High Court striking down Sections 4 and 9 of the 1982 Rules, the 1984
-~ Rules were framed by the Government.
c
The present appeals, special leave petitions and Writ Petitions
challenge the validity of the Roles framed in 1978, 1982, 1983 and 1984.
Dismissing all these matters, this Court,
HELD: 1. The period of continuous officiation by a government D
servant, after his appointment by following the rules applicable for
substantive appointments, has to be taken into account for determining
his seniority; and seniority cannot be determined on the sole 'test of
confirmation, for, confirmation is one of the inglorious uncertainties of
government service depending neither on efficiency of the incumbant
nor on the availability of substantive vacancies. The princip?,, for decid- E
ing inter se seniority has to conform to the principles of equality spelt
out by Articles 14 and 16. If an appointment is made by way of stop-gap
-- arrangement, without considering the claims of all the eligible available
persons and without following the rules.of appointment, the experience
on such appointment cannot be equated with the experience of a regular
appointee, because of the qualitative difference in the appointment. To F
equate the two would be to treat two unequals as equal which would
violate the equality clause. But if the appointment is made after consi-
dering the claims of all eligible candidates and the appointee continues
in the post uninterruptedly till the regularisation of his service in
accordance with the rules made for regular substantive appointments,
there is no reason to exclude the officiating service for purpose of G
seniority. Same will be the position if the initial appointment itself is
made in accordance with the rules applicable to substantive appoint-
ments as in the present case. To hold otherwise will be discriminatory
and arbitrary. [914G-H; 91SA-DJ
S.B. Patwardhan v. State of Maharashtra. [1977] 3 SCR 775; H
904 SUPREME COURT REPORTS lt990l 2 s.e.R.
A
Ba/eshwar Das v. State of U.P., [1981] I SCR 449; Delhi Water Supply
and Sewage Disposal Committee & Ors. v. R.K. Kashyap & Ors.,
[1989] Supp. I SCC 194 and Narender Chaddha & Ors. v. Union of
\----
India, [1986] I SCR 211, affirmed.
2.1 It is incorrect to say that the 1970 Rules indicate that the
B officiati!lg posts were not included in the cadre of the Deputy Engineers.
It is true that the use of word "promotions" in r. 8(i) of the 1960 Rules
is not quite appropriate, but that by itself cannot lead to the conclusion
that the officiating Deputy Engineers formed a class inferior to that of
the permanent Engineers. One cannot attribute iIXed connotation to the
expression 'promotion' without reference to the context. The expres-
sion has been used in the sense of confirmation, The language used in
C several other rules is inconsistent with two-cadre theory, and by way of
illustration r. 12(a) may he considered. Rules 5 and 24 of the 1970 Rules
mention only 4 cadres in Class II-namely, those of Sub-Divisional 7
Officers, Sub-Divisional Engineers, Assistant Engineers Class II and
Deputy Engineers and there was no separate cadre of officiating Deputy
o Engineers. Rule 12(a) of the 1970 Rules expressly includes some of the
officiating Deputy Engineers within the cadre of Deputy Engineers,
although it leaves heMnd the other officiating Deputy Engineers who
started ofliciating later than 30.4.1960. Rule 13 speaks of officers
"officiating in the erstwhile cadre of Deputy Engineers" and r. 27 of
"officiating promotions" which are inconsistent with two-cadre theory.
E In r. 33 of the 1970 Rules also two lists were directed to he prepared,
not cadre-wise but in each cadre, clearly indicating that the lists were
different from cadres. In r. 8(1) of the 1960 Rules also the different
groups were not described as different cadres. They were referred to as
"categories" and what the re-organisation suggested was with refer-
ence to "lists" to he prepared. It will not, therefore, he right to equate
F the lists with cadres. It is true that the· Rules have not in express
language stated that the officiating posts also will he in the cadre but if
all their relevant provisions are considered, they unmistakably lead to
the said conclusion. [918A-F]
2.2 Questions of vital importance affecting a very large number
G of officers in the departments concerned and many disputes have been
settled by following the judgment in Patwardhan's case. In such a situa-
tion it is not expedient to depart from the decision lightly. It is Mghly
desirable that a decision, which concerns a large number of government
servants in a particular service and which has been given after careful
consideration of the rival contentions, is respected rather than
H scrutinised for finding out any possible error. It is not in the interest of
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASlITRA 905
the service to unsettle a settled position every now and then. l918G-H; 919A]
A
2.3 Even on an independent consideration of the provisions of the
Rules, and the relevant materials the temporary posts of Deputy
Engineers against which promotees officiated, did not form a
separate cadre and were additions to the main cadre. These tem-
porary posts were created in pursuance of several resohitions of the B
State Government and the language used therein amply supports this
view. l921A-E]
S.B. Patwardhan v. State of Maharas/ltra, [1977] 3 SCR 775 and
P. Y. Joshi v.State of Maharashtra, [1970] 2 SCR 615, followed.
State of Gujarat v. C.G. Desai & Ors., [1974] 2 SCR 255, dis- c
tinguished.
·,.-.
Baleshwar Dass v. State of U.P. & Ors., [1981] 1SCR449, refer-
red to.
D
3.1 The quota rule was for the first time introduced by the 1960
Rules. These Rules were introduced through executive instructions
issued by the State Government. The ratio of 3:1 was fixed for the
purpose of "appointment" and not for the strength in the service. It
t permitted the State Government to exercise its discretion according to
the demand of the exigencies, by using the expression "as far as practi- E
cable." There is no reason to so restrict the scope and meaning of tbe
expression "as far as practicable". The quota rule must be held
-. to be realistic and flexible, true to life rather than abstractly
absolute. [923C-H; 924A-B]
3.2 When recruitment is from more than one source, there is no F
inherent invalidity in introducing quota system, but the unreasonable
implementation of such a rule may attract the frown of the equality
clause. Further, if a rule fixing the ratio for recruitment from different
sources is framed, it is meant to be respected and not violated at the
whims of the authority. It ought to be strictly followed and not arbitra-
rily ignored. This, of course, may not prevent the Government from G
making slight deviations to meet the exigencies. If it is discovered that
the rule has been rendered impracticable, it should be promptly substi-
tuted by an appropriate rule according to the situation. f92SA-C J
3.3 In the present cases direct recruits were not available in
adequate number for appointment, and appropriate candidates .in the H
906 SUPREME COURT REPORTS (1990] 2 S.C.R.
A subordinate rank capable of efficiently discharging the duties of Deputy ~
Engineers were waiting in their qiteue. The development work of the
State peremptorily required experienced and efficient hands. In the
situation the State Government took a decision to r.tl up the vacancies
by promotion in excess of the quota, but only after subjecting the
officers to the test prescribed by the rules. AU the eligible candidates
B were considered and the opinion of the Public Service Commission was
obtained. [925D-E]
3.4 If appointments from one source are made in excess of the
quota, but in a regular manner and after following the prescribed
procedure, there is no reason to push down the appointees below the
C recruits from the other source who are inducted in the Service subse-
quently. The later appointees may have been young students still
prosecuting their studies when the appointments from the other source
take place and it will be highly inequitable and arbitrary to treat them
as senior. Further, in cases where the rules themselves permit the
Government to relax the provisions r"'ing the ratio, the position for
D the appointees is still better; and a mere deviation therefrom would
raise a presumption in favour of the exercise of the power of relaxation.
There would be still a third consideration relevant in this context:
namely, what is the conclusion to be drawn from deliberate continuous
refusal to follow an executive instruction fixing the quota The inference
would be that the executive instruction has ceased to remain opera-
E live. In all these cases, the matter would however be subject to the
scrutiny of the Court on the ground of ma la fide exercise of power.
All the three circumstances mentioned above which are capable of
neutralising the rigours of the quota rule are present in the cases, and
the principle of seniority being dependant on continuous officiation
cannot be held to have been defeated by reason of the ratio r"'ed by the
F 1960 Rules. [926C-G]
P. C. Sethi v. Union of India, (1975] J SCR 201 and N.K.
Chal'han v. State of Oujart, [1977] 1 SCR 1037, relied on.
S.B. Patwardhan v. State of Maharashtra, (19771 3 SCR 775,
G afflrmed.
P.S. Mahal v. Union of India, [1984] 3 SCR 847 and V.B. '4.
Badami etc. v. State of Mysore & Ors., (1976] 1 SCR 815, distin-
guished.
H Paramjit Singh Sandhu v. Ram Rekha & Ors., (1979] 3 SCR 584;
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA 907
A. K. Subraman v. Union of India, [19751 2 SCR 979; Bishen Sarup
A
Gupta v. Union of India, [1975] Supp. SCR491 and S.G. Jaisinghani v.
Union of India & Ors., [196712 SCR 703, referred to.
4. It is not possible to hold that the principle of seniority being
dependant on continuous ollidation will not apply to certain groups of
the officers. The reasons for rejecting the case of the appellants in B
Patwardhan's case are equally applicable to all the promoted Deputy
Engineers including those who were earlier Sub-Divisional Engineers
and Sub-Divisional Officers, as well as all the directly recruited Deputy
Engineers. The suggested division of the two groups into further sub-
:ategories will result in illegal discrimination. [929F-G I
5. Rules 4 and 9 of the 1982 Rules were rightly struck down by c
the High Court and consequently the 1984 Rules were correctly framed
and have to be upheld as legal and valid. [930A-B]
6. It is well established that the principles of res judicata are
applicable to Writ Petitions°, A dispute raised by a petition under D
Article 32 of the Constitution must be held to be barred by principles of
res judicata including the rule of constructive res judicata underlying
Explanation IV of Section 11 of the Code of Civil Procedure, if the same
has been earlier decided by a competent court by a judgment which
f became final. [932E; 933D-E]
E
Daryao & Ors. v. State of U.P. & Ors., [1962] 1 SCR 574 and
Forward Construction Co. v. Prabhat Manda/, (Regd.) Andheri &
Ors., [1986] I SCC JOO, relied on.
CIVIL APPELLATE AND WRIT JURISDICTION: Civil
Appeals No. 194-202 of 1986. etc. F
Appeals by Certificates from the Judgment & Order dated
9.12.85/17.12.85 of the Bombay High Court in Writ Petition Nos. 620
of 1984, 2653 of 1984, 394 of 1985, 456 of 1985, 457 of 1985, 183 of
.1985, 660 of 1984, 126of 1985 and 154 of 1985
G
V.M. Tarkunde, M.C. Bhandare, R.N. Sachthey, S.B. Bhasme,
V.A. Bobde, D. Dave, R. Karaniawala, Ms. Meenakshi Arora, Mrs.
Manik Karanjawala, Jitender Sethy, S.V. Taillbwekar, M.N. Shroff,
A.S. Bhasme, A.M. Khanwilkar, P.G. Gokhale, B.R. Aggarwala for
the Appellants and J .H Bhatia, Brambhate Petitioners in person. H
908 SUPREME COURT REPORTS [1990] 2 S.C.R.
.~
K.K. Singhvi, T.V.S.N. Chari, Miss Manjula Gupta, Ms. Kitty
A Kumarmangalam, Ms. A. Subhashini and V.J. Francis for the Res-
pondents.
S.S. Patvardhan, Intervener in person.
B The Judgment of the Court was delivered by
SHARMA, J. The perpetual rivalry for seniority in service bet-
ween the direct recruits and the promotees has once more engaged the
attention of this Court for several days. The dispute which was brought
to Court by S.B. Patwardban in 1972 by a writ petition in the Bombay
High Court and which was supposed to have been finally settled by the
C judgment of this Court reported in (1977) 3 SCR 775 has been kept alive by
some direct recruits till this date. The events relevant for the case are
spread over a long period and the issues joined by the parties have
been described in the earlier judgments as involving ticklish and
complicated questions of unrivalled complexity with no earlier case
D com.parable. The position as now stands is that the field of controversy
on legal questions has been considerably narrowed down by the earlier
decisions of this Court, but the relevant facts and the issues to be
settled have multiplied by further events and subsequent rules framed
under the Proviso to Article 309 of the Constitution.
E 2. For appreciating the controversy which has to be resolved, a
brief survey of several sets of rules is necessary. The parties are
Enginec::.rs in the employment of the State of Maharashtra excepting
the petitioners in W.P. Nos. 3947-48 of 1983 who are in Gujarat
service. Avoiding the details, the position may b.e briefly stated by
dividing the entire period into 4 sub-periods and mentioning the scope
F of such of the provisions of the rules which have direct bearing on the
questions involved in the present cases. By a resolution of the year 1937
of the Government of Bombay, two new Provincial Engineering
Services described as the Bombay Engineering Service Class I consist-
ing of posts of Chief Engineer, Superintending Engineers, Executive
Engineers and Assistant Engineers Class I, and the Bombay Engineer-
G ing Service Class II, having officers designated as Deputy Engineers,
were created. All the posts were permanent. In 1939, Rules were made
for regulating the methods of recruitment to the said Services which
directed the recruitment to be made either by nomination from
amongst the students of the College of Engineering, Pune or by pro-
motion of officers holding inferior posts. The next Rules to which the
H parties in the present cases have made reference were those made by
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA [SHARMA, J.] 909
the resolution dated 21.11.1941 for determination of the seniority of
A
the direct recruits and the promoted officers, containing only two rules
out of which r. 1 admittedly is not relevant for the present purpose.
Rule 2 said that in case of officers promoted to substantive vacancies,
the seniority would be determined with reference to the date of their
promotion to the substantive vacancies. In 1960. detailed rules- for
recruitment to Class I aud Class II Services were framed by a Govern- B
meut resolution dated 29.4.1960. Learned counsel for the parties have
referred to these Rules as the 1960 Rules and have made elaborate
arguments with reference to some of the provisions. In place of nomi'
nation from the successful students of College of Engineering, Pune as
~ _ direct recruits, these Rules prescribed for a competitive examination
to be held by the Public Service Commission, and introduced a quota
system by fixing a ratio of appointments of direct recruits and promo- c
_, tees. The Rules also made reference to promotion, as Executive
.,,.. Engineers on officiating basis, and Temporary Deputy Engineers and
officiating Deputy Engineers. By r. 8 the posts of Deputy Engineers
were re-organised, and by sub-rule (iii) it was provided that the direct
recruits in any year shall in a bunch be placed senior to promotees D
confirmed during that year. A review of these Rules was later underta-
ken by the Government and ultimately in partial supersession thereof
a fresh set of rules, described by the learned counsel in the present
- cases as the 1970 Rules, were adopted by another Government resolu-
/· tion. In the meantime, however, a serious dispute in regard to the
interpretation of one of the provisions of the 1960 Rules arose which E
was settled by this Court in the case of P. Y. Joshi and others v. The
State of Maharashtra and Others, [1970] 2 SCR 615. The judgment in
this case has been the subject matter of considerable discussion during
the hearing of present cases. By r. 5 of the 1970 Rules, Class I and
Class II Services were redefined and r. 12(a) peclared that the cadre of
Deputy Engineers would consist of all the direct recruits, the con- F
firmed Deputy Engineers and the other officers who were officiating
as Deputy Engineers on 30.4.1960.
3. During the period 1960-70 adequate number of direct recruits
were noi available, and a large number of promotees, therefore, had
to be appointed to officiate as Deputy Engineers on continuous basis. G
These appointments were made after following the procedure appli-
cable to regular promotions, including consultation with the Public
Service Commission. By r. 12(b) the strength of the permanent
Deputy Engineers was fixed at the total number of (a) the Deputy
Engineers confirmed up to the date of commencement of the Rules,
(b) direct recruits to the posts of Deputy Engineers appointed till the H
910 SUPREME COURT REPORTS [1990] 2 S.C.R.
date of coffimencement of.the Rules, and (c) the Deputy Engineers
A
officiating on 30.4.1960; and it was provided that no fresh appoint-
ments in future would be made to this cadre and the vacancies arising
would be transferred to the officers holding subordinate posts detailed
in the sub-rule in proportions indicated. The learned counsel for the
parties have referred to this cadre as the 'frozen cadre'. The question
B of semority was dealt with in several rules, out of which r. 33 is
important. ll said that the seniority list in each cadre in Class I and
Class II shall be prepared in two parts-one for the confirmed officers
and other for those who were not confirmed; and that the confirmed
officers would be treated as senior to the unconfirmed officers. Since
the direct recruits were all appointed against the permanent posts,
they were reckoned to be senior to the officiating Deputy Engineers
C irrespective of the period for which they had been working continu-
ously on the Deputy Engineer's posts. These Rules were amended in
1972, but there was no departure from the main scheme and the princi-
ple governing seniority.
D 4. In pursuance of the 1970 Rules seniority lists were prepared
leading to the filmg of several cases which were ultimately disposed of
by this Court in S.B. Patwardhan and others v. State of Maharashtra
and others, [1977] 3 SCR 775. Patwardhan, the appellant in that
case, was promoted temporarily as Deputy Engineer in 1959 and was
confirmed after the coming in force of the 1970 Rules. The respon-
E dents No. 2 and 3 who were directly appointed as Deputy Engineers
later were, in view of the Rules, shown as senior to Patwardhan.
Patwardhan challenged the validity of r. 8(iii) of the 1960 Rules and
r. 33 of the 1970 Rules as being violative of articles 14 and 16 of the
Constitution. The judgment in the case is treated as a landmark in the
service jurisprudence and has covered extensive grounds dealing with
F several important aspects relevant in the case. The learned counsel for
the parties have in the course of their arguments read and re-read the
judgment and made elaborate comments on its interpretation and
effect, which we will discuss later. In the result, Patwardhan succeeded
and r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules were struck
down.
G
5. In view of the judgment in Patwardhan's case, it became
necessary to prepare fresh seniority lists, and since the re-organised
States of Bombay and Gujarat were formed on 1.11.1958 under the
provisions of the State Re-organisation Act, 1956, it was considered
expedient to make rules for preparing seniority lists of Deputy
H Engineers in respect of the period 1.11.1956 to 30.4.1960, that is, the
ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.] 911
date immediately after coming into force of the 1960 Rules. Rules
were framed under Article 309 of the Constitution read withs. 81(6) of A
the Bombay Re-organisation Act, 1960, and were called the Re-
organised Bombay State Overseers and Deputy Engineers Seniority
Lists Rules, 1978, and have been referred to before us as the 1978
Rules. The seniority list of the Deputy Engineers as on 1.11.1956
which had been prepared earlier was declared by these Rules as valid B
and final. This was consistent with the decision in Patwardhan's
case. The further seniority lists were directed to be prepared for the
years 1957, 1958, 1959 and 1960 in accordance with the judgment in
Patwardhan's case wherein the seniority of the promotee Deputy
Engineers was made dependant on the continuous officiation subject
to certain other conditions.
c
6. Since the preparation of the seniority lists and reversion of the
direct recruits whose promotion was illegal, in view of the decision in
Patwardhan's case, were being delayed, one Bagayat Patil, a promotee
Deputy Engineer officiating as Executive Engineer, filed a writ appli-
cation being W.P. No. 3483 of 1980 in the High Court for implementa- D
tion of the judgment, inter alia, on the ground that r. 6(iii) of the 1960
Rules relating to Class I being similar to the struck down r. 8(iii) was
also illegal. Another writ application being W.P. No. 672 of 1981 was
r filed by the direct recruits challenging the validity of the 1978 Rules
mainly on the ground that the Rules omitted to fix proportionate quota
for the direct recruits and the promotees. The two cases were disposed E
of by a common judgment upholding the validity of the 1978 Rules,
striking down r. 6(iii) of the 1960 Rules, and issuing appropriate direc-
tions for reversion of the illegally promoted direct recruits as also for
preparation of seniority lists in accordance with the judgment in
Patwardhan's case. Kulkarni, one of the direct recruits, in represen-
-~
'' tative capacity, challenged· the judgment before this Court in S.L.P. F
~ No. 8064 of 1981 which was dismissed on 29.10.1981. On the same date
S.L.P. No. 9161 of 1981, filed by one Samtani was also rejected. A
special leave petition by the State Government was also dismissed
later. One of the direct rectuits J.H. Bhatia, who was admittedly
represented by the petitioner in S.L.P. No. 8064 of 1981, filed an
application under Article 32 of the Constitution before this Court on G
1.2.1982, that is, after the dismissal of S.L.P. No. 8064 of 1981, which
has been registered as W.P. No. 1327 of 1982 and is being disposed of
by the present judgment.
7. In 1981 further rules called Re-organised Bombay State
Assistant Engineers and Executive Engineers Seniority Lists Rules, H
912 SUPREME COURT REPORTS [1990] 2 S.C.R.
1981, described by the partiC9S as the 1981 Rules, were framed laying
A down the rule of determination of seniority of the Assistant Engineers
and the Executive Engineers for the period 1.11. 1956 to 30.4.1960.
1
With respect to the preparation of the seniority list of the Executive
Engineers, r. 3(3)(a) read with Explanation tor. 3(4) fixed quota with
retrospective effect between the direct recruits and the promotees,
B and these rules were successfully challenged in the High Court in W .P.
No. 362 of 1982. The judgment in the case striking down the above
~·
rules has not been directly questioned in this Court.
8. The main Rules which are the subject matter of the present
cases were framed in 1982 under Article 309 of the Constitution laying ~
down the principle for fixing the seniority for the period dated
c 1.5.1960 to· 20.12.1970, and are called the Maharashtra Service of
Engineers (Regulation of Seniority and Preparation and Revision of
Seniority Lists for Specified Period) Rules, 1982, hereinafter referred 't-
to as the 1982 Rules. The Preamble states that they were framed in
view of the decision of the Supreme Court in S.B. Patwardhan v. State
D of Maharashtra and of Bombay High Court in W.P. No. 3483 of 1980.
On their face, they are consistent with the aforesaid judgments, but by
including two rules therein-Rules 4 and 9, deleted later-fixing rigid
quota with retrospective effect, attempt was made to neutralise the
decision and rob the promotees the benefit of their continuous officia-
.~
tion. Rule 9 (omitting the Explanation which is not relevant for the
E present purpose) read as follows:
"9. Allocation of vacancies in cadre of Deputy Engineers
for direct recruits and promotees.-The number of vacan-
cies in the cadre of Deputy Engineers in every year during
the specified period and in the fractional year shall be
deemed to be equal to the .number of vacancies actually
·-+-
F
filled in that year or, as the case may be, fractional year, f
and the first three-fourths of such vacancies in each year or
in the fractional year shall be deemed to be allocated for
persons recruited directly as Deputy Engineers and the
subsequent remaining vacancies in that year or in the frac-
G tional year shall be deemed to be allocated for filling by
promotions from amongst Overseers who may be eligible
for such promotions in· accordance with rules or orders
made by Government from time to time during the speci- ••
fied period."
H Rule 4, .dealing with the promotion of Assistant Engineers and Deputy
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA (S1U\RMA. J.] 913 \_
Engineers in vacancies in the cadre of Executive Engineers was in
A
similar language. Section 2(h) defined "fortuitously appointed" in the
following terms:
"fortuitously appointed" means appointed in any vacancy
which, according to rule 4 or 9, is not allocated for the class
of officers to which the person appointed in that vacancy B
belongs;" ·
"'fhese rules were challenged in Writ Petitions No. 955 and 956 of 1983,
filed respectively by promotee Deputy Engineers Dafle and Kanitkar,
).. and by promoti:P Executive Engineers Lele and Panse (hereinafter
I
mentioned as IJafle-Lele case) before the Bombay High Court and
were struck down as illegal. The High Court further ordered the State C
to carry out the directions given in Bagayat Patil's case (W.P. No. 3483
of 1980). None of the Engineers came to this Court against this judg-
ment, except the State Government in S.L.P. Nos. 166°1415 of 1983
which also have been heard by us. However, the prayer for stay was
rejected. The result is that the seniority has to be reckoned on the D
basis of continuous officiation. By an amendment in 1984 the rr. 4 and
9 were formally deleted.
9. For the purpose of fixing the seniority of Executive Engineers
f' and Assistant Engineers for the period commencing on 21.12.1970,
separate rules were framed under Article 309 of the Constitution and E
are called the -Executive Engineers and Assistant Engineers belonging
to the Maharashtra Service of Engineers Class I and the Maharashtra
Service of Engineers Class II (Regulation of Seniority and Preparation
and Revision of Seniority Lists) Rules, 1983 and will be referred to
hereafter as the 1983 Rules. The validity of these Rules has been
.··~
challenged in W.P. No. 1169 of 1986 filed under Article 32 in this F
Court.
10. As stated earlier, J.H. Bhatia filed Writ Petition No. 1327 of
1982 in person and obtained an ex parte rule. Another application
under article 32 of the Constitution being W .P. No. 5187 of 1983 was
filed by Srikant Bharat Sohoni, a direct recruit to Class II, who, G
besides challenging the 1978 Rules, has also attacked the validity of
the 1982 Rules, although he did not file an appeal11gainst the judgment
of the High Court on this point. According to theleamed counsel for
the promotee respondents he was not concerned ,Yith the 1978 Rules at
all but he mentioned the same in his application for the sole purpose of
obtaining a rule on the ground of admission o.f Bhatia's writ petition. H
914 SUPREME COURT REPORTS [1990] 2 S.C.R.
Encouraged by these two cases, several other writ petitions were also
A filed and have been heard along with the Civil Appeals.
11. Although the claim of the promotees to reckon the seniority
according to the continuous officiation was accepted by this Court in
Patwardhan's case in 1977, the State Government continued denying
B them the fruits of the litigation. The High Court on a complaint made
by Bagayat Patil, took note of the delay and issued directions for
implementation of the judgment. Still nothing was done till 1984 and
an application for starting proceedings in contempt was made before
the High Court. In the meantime a fresh writ petition being W .P.
No. 660 of 1984 was filed by the direct recruits before the Aurangabad
Bench of the Bombay High Court and stay was obtained. Thereafter a
c number of similar applications were filed one after another, either
before the Nagpur Bench or the Aurangabad Bench of the Bombay
High Court. When the promotees pointed out before this Court the
game of the direct recruits, a direction was issued for hearing of all the
cases at Bombay. Accordingly all the 15 writ applications were trans-
D ferred and heard together at Bombay. The High Court rejected the
case of the direct recruits and dismissed the writ petitions. The peti-
tioners in 9 of them have challenged the judgment in Civil Appeals
No. 194-202 of 1986.
12. The main argument on behalf of the direct recruits has been
E addressed by Mr. V .M. Tarkunde, who represents the appellants in
the Civil Appeals and the writ petitioners in W.P. No. 1169 of 1986.
The learned advocates in some of the other writ cases and two of the
writ petitioners in person made supplementary arguments. It has
strenuously been contended that the 1978 Rules, 1982 Rules, 1983
Rules and the 1984 Rules are invalid and must be struck down. The
F judgment in Dafle-Lele case has also been challenged. The cases were
earlier heard for sometime by a Division Bench when the Bench refer-
red the matter to be dealt with by a larger Bench for examining the
correctness of the decision in Patwardhan's case.
13. When the cases were taken up for hearing before us, it was
G faintly suggested that the principle laid down in Patwardhan's case was
unsound and fit to be over-ruled, but no attempt was made to sub-
stantiate the plea. We were taken through the judgment by the learned
counsel for the parties more than once and we are in complete agree-
ment with the ratio decidendi, that the period of continuous officiation
by a government servant, after his appointment by following the rules
H applicable for substantive appointments, has to be taken into account
ENGG. OFF!CERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.] 915
for determining his seniority; and seniority cannot be detrmined on the
sole test of confirmation, for, as was pointed out, confirmation is one A
of the inglorious uncertainties of government service depending
neither on efficiency of the incumbant nor on the availability of sub-
stantive vacancies. The principle for deciding inter se seniority has to
conform to the principles of equality spelt out by articles 14 and 16. If
an appointment is made by way of stop-gap arrangement, without B
considering the claims of all the eligible available persons and without
following the rules of appointment, the experience on such appoint-
ment cannot be equated with the experience of a regular appointee,
because of the qualitative difference in the appointment. To equate
the two would be to treat two unequals as equal which would violate
the equality clause. But if the aappointment is made after considering
the claims of all eligible candidates and the appointee continues in the c
post uninterruptedly till the regularisation of his service in accordance
with the rules made for regular substantive appointments, there is no
reason to exclude the officiating service for purpose of seniority. Same
will be the positioin if the initial appointment itself is made in accor-
dance with the rules applicable to substantive appointments as in. the D
present case. To hold otherwise will be discriminatory and arbitrary.
This principle has been followed in innumerable cases and has been
further elaborated by this Court in several Judgments including those in
I Baleshwar Dass v. State of U.P. and others, [1981] 1 SCR 449, and
Delhi Water Supply and Sewage Disposal Committee and others v.
R. K. Kashyap and others, [ 1989] Supp. 1 SCC 194, with which we are E
in agreement. In Narender Chadha and others v. Union of India and
others, [1986] 1SCR211, the officers were promoted although without
following the procedure prescribed under the rules, but they continu-
ously worked for long periods of nearly 15-20 years on the posts with-
,. out being reverted. The period of their continuous officiation was
directed to be counted for seniority as it was held that any other view
-\ would be arbitrary and violative of Articles 14 and 16. There is consi-
F
derable force in this view also. We, therefore,'c<mfirm the principle of
counting towards seniority the period of continuous officiation follow-
ing an appointment made in accordance with the rules prescribed for
regular substantive appointments in the service.
G
14. Mr. Tarkunde in the course of his argument made it clear
that he was not questioning the ratio in Patwardhan's case but was
challenging the judgment therein as erroneous on the ground that the
posts of temporary Deputy Engineers held by the promotees were not
in the cadre of the Deputy Engineers, which included only permanent
posts, and this position was not correctly appreciated there. The argu- H
916 SUPREME COURT REPORTS [1990] 2 S.C.R.
men! is that since the permanent posts held by the direct recruits and
A the temporary posts which the promotees were allowed to officiate did
not form a single cadre, there could not arise any question of inter se
_,
seniority amongst them. The finding to the contrary in Patwardhan's
case is said to have been incorrectly arrived at, mainly due to the
failure on the part of the State Government to place all the relevant
B materials before the Court. The stand of the appellants is that having
regard to all the facts and circumstances leading to the present litiga- 'r'
ti on, the direct recruits cannot be held to be bound either by a rule of
res judicata or otherwise and they are free to challenge the Patwar-
dhan's decision as incorrect. It is claimed that if the relevant position
is correctly appreciated, there is no escape but to hold that the 1960 J
Rules excepting r. 8(iii) and the 1970 Rules except r. 33, were perfectly
c legal and the declaration about their invalidity was erroneous. The
learned counsel contended that since the fresh Rules, which are now
'f
impugned, were framed as a result of the said erroneous judgment,
they have to be struck down. The observations in the judgment in P. Y.
Joshi's case were characterised as obiter dicta which cannot be held to
D be binding o~ this Court at a subsequent stage, and the question
whether the direct recruits and promotees were in the same cadre or
held posts in two separate and distinct cadres must be answered in
accordance with the decision in State of Gujarat v. C.G .. Desai and
others, [1974] 2 SCR 255 in favour of the appellants. Developing his _._
argument Mr. Tarkunde said that since the 1960 Rules and the 1970
E Rules were perfectly valid, they clothed the direct recruits with right of
seniority over the promotees which could not be retrospectively taken
away in view oUbeir fundamental rights under articles 14 and 16 of the
Constitution. He further urged that the quota rule applicable to the
Service under the 1960 Rules was binding on all concerned and the
High Court bas in the Dafle-Lele case erreq in quashing rr. 4 and 9 of ---#-.
F the 1982 Rules. The plea of the respondents that the quota rule was
not striclty enforceable on account of the words "as far as practicable"
.,
in r. l(b) of the 1960 Rules or that it was relaxed or given up later-bas
been denied and it is said that the appointments of the prolnotees in
excess of the quota, therefore, could not be treated as valid until the
date when the posts became available in their share and consequently
G the earlier period cannot be considered for the question of their
seniority.
15. The main thrust of Mr. Tarkunde's argument is th31t the
.
permanent Deputy Engineers and the officiating Deputy Engilteers
were in two cadres and as·the officiating Deputy Engineers coul<\I not
H be treated to be included in the permanent cadre having only perma-
ENQG. OFFICERS ASSCN. "-STATE OF MAHARASHTRA {SHARMA, J.] 917
-~ nent posts, they were not entitled to compete with the direct recruits in
A
the matter of seniority. It is !Jue that initially the cadre consisted of
---~-
only permanent posts. The promo tees, however, claim that the addi-
tional posts were subsequently added to the cadre and no new cadre
was formed.
16. Great emphasis was laid by Mr. Tarkunde on the language of B
._. certain mies on the basis of which it was urged that the cadre of the
permanent Engineers was higher in rank than that of the officiating
Engineers, who had to be further promoted for becoming members of
the said cadre. Rule 8(i) of the 1960 Rules, which was relied on for this
- \<:.
purpose, reads as follows:
"8(i) The Sub-Divisional posts in the Department are; at
c
present, manned by direct recruits to Bombay Service of
Engineers, Class II cadre, Deputy Engineers confirmed
from subordinate Service of Engineers, the temporary
Deputy Engineers recruited by the Bombay Public Service
Commission, officiating Deputy Engineers and similar other D
categories. These. various categories are being compiled
inti> two lists only, viz., Bombay Service of Engineers,
Class II cadre of permanent Deputy Engineers and a list of
Officiating Deputy Engineers. The future recruitments to
I Bombay Service of Engineers, Class II cadre shall be made
by nomination of candidates recruited direct by competi- E
tive examination, held by the Commission, and by promo-
tions from the list of officiating Deputy Engineers. The
-, .
t---
number of such promotions shall be about one third the
numb-er of direct recruits appointed in that year."
~
I The argument is that if the officiating Depµty Engineers could be F
-\ "promoted" to Bombay Service of Engineers, Oass II cadre, how could
they be treated as part of the said cadre earlier ..It was pointed out that
the second sentence of the above mle-in express terms directs two lists
to be prepared, one of the permanent Deputy Engineers, and the
other of officiating Deputy Engineers. Admittedly the appointment of
all the direct recruits was made as against the permanent vacant posts G
-
::::::io::r"
and on their successfully completing the probationary period they
were confirmed against those posts while the promotees were posted in
the temporary posts as officiating Deputy Engineers. Rule 8(i),
according to the appellants, therefore, makes a clear distinction bet-
ween the two groups, which could not be lumped together. Reliance
was also placed on the language of rr. 5, 6, 12(a), 30 and 33 of the 1970 H
918 SUPREME COURT REPORTS [1990] 2 S.C.R.
A Rules. We are not in a position to agree with the learned counsel that
the rules indicate that the officiating posts were not included in the
cadre of the Deputy Engineers. It is true that the use of word "prom.o-
tions" in r. 8(i) of the 1960 Rules is not quite appropriate, but that by
itself cannot lead to the conclusion that the officiating Deputy
Engineers formed a class inferior to that of the permanent Engineers.
B As was stated with reference to the expressions like 'substantive capa-
city', 'service' and 'cadre' in Baleshwar Dass v. State of U.P. and
others, [ 1981] 1SCR449 (at page 463 C-E), we cannot attribute fixed
connotation to the expression 'promotion' without reference to the
context. The expression, there has been used in the sense of confirma-
tion. The language used in several other rules is inconsistent with
C two-cadre theory, and by way of illustration r. 12(a) may be consi-
dered. Rules 5 and 24 of the 1970 Rules mention only 4 cadres in
Class II-namely, those of Sub-Divisional Officers, Sub-Divisional
Engineers, Assistant Engineers Class II and Deputy Engineers and
there was no separate cadre of officiating Deputy Engineers. Rule
12(a) of the 1970 Rules expressly includes some of the officiating
D Deputy Engineers within the cadre of Deputy Engineers, although it
leaves behind the other officiating Deputy Engineers who started
officiating later than 30.4.1960. Rule 13 speaks of officers "officiating
in the earstwhile cadre of Deputy Engineers" and r. 27 of "officiating
promotions" which are inconsistent with two-cadre theory. In r. 33 of
the 1970 Rules also two lists were directed to be prepared, not cadre-
E wise but in each cadre, deary indicating that the lists were different
from cadres. In r. 8(i) of the 1960 Rules also the different groups were
not described as different cadres. They were referred to as "cate-
gories" and what the re-organisation suggested was with reference to
"lists" to be prepared. It will not, therefore, be right to equate the lists
with cadres. It is true that the Rules have not in express language
F stated that the officiating posts also will be in the cadre but if all their
relevant provisions are considered, they unmistakably lead to the said
conclusion. Excepting the use of the word "promotions" in r. 8(i) of
the 1960 Rules no other provision appears to help the appellants.
17. This question was considered in Patwardhan's case at consi-
G derable length, and a categorical finding against the direct recruits was
arrived at, which has been followed for the last more than a decade, in
many cases arising between members of Maharashtra and Gujarat
Engineering Services. The question is of vital importance affecting a
-
very large number of officers in the departments concerned and many
disputes have been settled by following the judgment in Patwardhan's
H case. In such a situation it is not expedient to depart from the decision
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA [SHARMA, J.] 919
lightly. It is highly desirable that a decision, which concerns a large
A
number of government servants in a particular Service and which has
- ------- - been given atter careful consideration of the rival contentions, is
respected rather than scrutinised for finding out any possible error. It
is not in the interest of the Service to unsettle a settled position every
now and then. Bes)des, the learned counsel for the parties have placed
the rival arguments on the issue in great detail with reference to every B
available material, and in our opinion the finding was corr-ectly arrived
at. We also agree that the interpretation given in P. Y. Joshi and
Others v. The State of Maharashtra and Others, [1970] 2 SCR 615, by a
Bench of 5 Judges on r. 8 of the 1960 Rules, which answers one of the
main grounds of the direct recruits in support of two_-cadre theory,
- K must be respected. Mr. Tarkunde has attempted to distinguish P. Y.
c
Joshi's case and has challenged the correctness of the observations at
page 795 of the judgment in Patwardhan's case. We do not agree with
the learned counsel. The dispute in that case was in respect of promo-
tion of promotee Deputy Engineers to posts of officiating Executive
Engineers. Rule 7(ii) of the 1960 Rules prescribed, as a necessary con-
dition for promotion, the minimum service of seven years as Deputy D
Engineer. The respondent in P. Y. Joshi's case were elgible, provided
their experience as officiating Deputy Engineers was allowed to be
counted. The petitioners in that case were direct recruits to the posts
of Deputy Engineers and they challenged the promotion of the respon-
dents on the ground that they had not completed the seven· years'
period after their confirmation as Deputy Engineers and the period for E
which they had been officiating as such was not available to them for
the purpose. Their contention was "that under the rules in force the
- respondents who were in substantive rank of Overseers were only
officiating Deputy Engineers and that as they did not belong to the
cadre of Deputy Engineers they were not entitled to promotion
inasmuch as they had to put in after confirmation as Deputy Engineers F
7 years of actual service before being eligible for promotion as officiat-
ing Executive Engineers". The arguments were addressed with refe-
rence to several rules including r. 8, and this Court while rejecting the
stand of the direct recruits observed thus:
"In our view it is the list of such persons that is referred to G
in cl. (ii) of rule 8 and not that there should ·be a list of
persons actually officiating as Engineers for further promo-
tion to the same post which will have little meaning, for
there cannot be a promotion of a person in the same cadre
of service who is already promoted whether as an officiat-
ing or temporary or permanent incumbant. If cl. (i) of r. 8 H
920 SUPREME COURT REPORTS [1990] 2 S.C.R.
A
provides that Class II cadre shall be recruited by competi-
tive examination, the promotees also are promoted from
the list of persons considered fit to hold sub divisional
charge, i.e., post of Deputy Engineers. If in the case of
direct recruits the appointment is without reference to oon-
firmatio·n, it cannot be any different in. the case of
B promotees."
This interpretation of r. 8 is binding as a precedent. It is urged by Mr.
Tarkunde that the ratio of the Divison Bench judgme~t in State of
Gujarat v. C.G. Desai and Others, [1974] 2 SCR 255, supports his
c
argument and should be followed. We do not think so. The contro-
versy, there, also related to the construction of r. 7(ii) of the 1960
Rules requiring the minimum service of 7 years for a Class II officer
-
to be promoted as officiating Executive Engineer. The respondent No.
1 C.·G. Desai who was not considered eligible for promotion was
earlier officiating as Deputy Engineer from May 1955 to December ..
1959. Thereafter he successfully competed at an examination for direct '
D recruitment to Class II Service held by the Public Service Commission
and was appointed as Permanent Deputy Engineer. For the purpose of
his promotion to the higher cadre he relied on his officiating service
before he was selected as a direct recruit, which was denied by the
Government. In a writ case his claim was accepted as legitimate by the
High Court. This decision was challenged pefore this Court; and it was \.
E held by the judgment in the reported case that the respondent was not
entitled to count his experience as officiating Deputy Engineer before
his selection as a direct entrant in the Service. It was, inter alia,
observed that if a person like the respondent leaves his position in the
long queue of officiating Deputy Engineers with a view to avoid the
tortuous wait for promotion and takes a short-cut, "he gives up once
-
F for all the advantages and disadvantages" of continuing as an officiat-
ing Deputy Engineer and accepts all the handicaps and benefits which
attached to the group of direct recruits. "He cannot, after his direct
recruitment claim the benefit of his pre-selection service and thus have
the best of both the worlds." In this set up and for the purpose of
construing r. 7 and considering the necessary qualification for promo-
G tion as an Executive Engineer, it was observed that the direct recruits
and the promotees in Class II constituted two groups or classes, and it
was pointed out that unless the pre-selection service as officiating
Deputy Engineer of direct recruits was excluded for reckoning the 7
years experience, it would create two classes amongst the same group
of direct recruits and result in discrimination against those direct
H recruits who had no such pre-selection service to their credit. The
ENGG. OFFICERSASSCN. v. STATEOFMAHARASHTRA[SHARMA,J.] 921
decision has to be understood in this background and it cannot be of
A
------- any help to the present appellants.
18. Even on an independent consideration of the provisions of
the Rules, the relevant materials and the arguments addressed on
behalf of the parties, we are of the view that the temporary posts of
Deputy Engineers against which promotees officiated, did not form a B
separate .cadre and were additions to the main cadre. These temporary
posts were created in pursuance of several resolutions of the State·
Government and an. examination of their language is helpful in resolv·
ing the controversy. The resolution No. ENH-1062-C, dated 8th
- ~ November, 1962 (Ext. 'A' at page 277 of Vol. V of the paper book)
after referring to the sanction accorded by the Government for crea·
tion of the temporary posts stated, c
"The posts of Executive Engineer and Deputy Engineer
should be treated as temporary additions to their respective
cadres."
(emphasis added) D
Similarly the Resolution No. CDS 1170-F, dated the 3rd of November
1970, dealing with the temporary posts created in the departments of
Irrigation and Power stated as follows: {pages 283-286, at page 284
paragraph 3 of Vol. V of the paper book),
E
"The temporary posts in each Department be treated
as temporary additions to the respective cadres."
-,,._ ..
(emphasis added)
Mr. K.K. Singhvi, the learned counsel for the promotees relied upon
' these resolutions and several other documents in support of the finding F
of this Court in P.Y. Joshi's case and Patwardhan's case comprising
the single-cadre theory and contended that these and other materials
were available to the Court in Patwardhan's case. Mr. T<1rkunde, on
the other hand, argued that some fresh materials have come to light
since after the judgment in Patwardhan's case, which had not been
made available by the State earlier. There is serious controversy as to G
the interpretation of these documents alleged to have been later dis·
covered by the direct recruits and in our opinion they do not furnish
any evidence of substantial nature to outweigh the materials produced
by the State in Patwardhan's case including the aforementioned reso·
lotions. In the circumstances, we do not consider it necessary to dis·
cuss this question any further and close the issue by holding that the H
922 SUPREME COURT REPORTS [1990] 2 S.C.R.
,A officiating Deputy Engineers were in the same cadre with the. other
Deputy Engineers in permanent posts. ·:s::
19. It has been next contended that even if the decision in
Patwardhan's case be held to be correct, and it is assumed that the
posts of officiating Deputy Engineers are also included in the cadre of
B permanent Deputy Engineers, rr. 4 and 9 of the 1982 Rules could not
have been challenged as illegal and the decision of the Bombay High
Court in Dafle-Lele case striking down these rules is erroneous and fit T
to be over-ruled. It was pointed out that the 1984 Rules framed as a
result of the said decision expressly stated that they were subject to the
result in the Special Leave Petitions No. 16614-15 of 1983 filed by the
State of Maharashtra against the said decision, and if the judgment in
c Dafle-Le/e case is set aside then the 1984 Rules will automatically
disappear. Great emphasis.was laid by Mr. Tarkunde on the provision
-
in the 1960 Rules fixing the ratio of the direct recruits and the pro-
motees in the Deputy Engineers cadre; and it was 'iirged that the
question of seniority must be settled with reference to the time when
D posts became available to the promotees in accordance with the said
quota rule. Merely for the reason that the promotees were allowed to
officiate on the temporary posts in excess of their quota they cannot be
permitted to steal a march over· the genuine claimants to the posts
namely, the subsequently appointed direct recruits. Repelling the
stand of the respondents it was argued that the quota rule never ool-
E lapsed and remained operative and was confirmed by the decision in
Patwardhan's case. About the rule applying at the stage of appoint-
ment and not at the stage of confirmation, as was held in the said
judgment, it was suggested that the observations cannot be legiti-
mately interpreted as setting the officiating Deputy Engineers free of
the principle of quota. It meant, according to the learned rounsel, that
-
F if an officer was promoted within his quota, the rule would be applic-
able with reference to the date of promotion and not· the date of
confirmation, but where his promotion was in excess of the permissible
quota his seniority would be reckoned with reference to the date when
a vacancy became available for him, and not on the basis of his con-
tinuous officiation. He will be entitled to count his officiating expe-
G rience only on a vacancy being available to him in accordance with the
quota rule. Reliance was placed on S.G. Jaisinghani v. Union of India
and Others, [1967] 2 SCR 703; A.K. Subraman and Others v. Union of
India and Others, [1975] 2 SCR 979; V.B. Badami etc. v. State of
Mysore and Others, [1976] 1SCR815 and Paramjit Singh Sandhu and
Others v. Ram Rakha and Others, [1979] 3 SCR 584. Alternatively it
H was contended that assuming that the quota rule had collapsed as a
ENGG. OFFICERS ASSCN. v. STAIB OF MAHARASHTRA (SHARMA, J.] 923
--- result of non-availability of direct recruits, the State Government was
under a duty to change the ratio by allotting a larger share to the
promotees, which was belatedly done in 1970. So long the rule was not
A
imended the same had to be respected. On the strength of observa-
tions in Bishan Sarup Gupta v. Union of India and others, [1975] Supp.
SCR 491, it was urged that collapse of quota rule does not make
seniority dependant on continuous officiation. It calls upon the B
Government to frame better rules to meet the requirements of the
situation.
20. The quota rule was for the first time introduced by the 1960
- k Rules. As already mentioned, these Rules were introduced through
executive instructions issued by the State Government. The statutory
rules which were holding the field earlier did not fix any ratio between c
the direct recruits and the promotees. Rule 1 of the 1960 Rules which
is relevant in this context is quoted.below:
"1. Appointment to the Bombay Service of Engineers,
Class I and Class II, shall be made either- D
(a) by nomination after a competitive examination held by
the Bombay Public Service Commission hereafter called
/ the Commission in accordance with the rules appended, or
(b) by promotion from amongst the members of the lower E
cadres concerned.
- Provided that the ratio of the appointment by nomination
and by promotion shall, as far as practicable, be 75:25."
It will be noticed that the ratio of 3: 1 was fixed for the purpose of F
"appointment", and not for the strength in the Service, as was sug-
gested on behalf of the appellants. The other important feature was
that the Proviso fixing the ratio, far from being imperative, permitted
the State Government to exercise its discretion according to the
demand of the exigencies, by using the expression "as far as practic-
able". The case of the appellants is that the said expression was G
inserted in the Proviso with the object of avoiding fractions in arith-
metical calculations of number of posts available to the two groups,
and for no other purpose. We do not see any reason to so restrict the
scope and meaning of the expression "as far as practicable". A similar
expression in identical terms used in certain other rules came up for
consideration in N.K. Chauhan and Others v. State of Gujarat and H
924 SUPREME COURT REPORTS [199()] 2 S.C.R.
A Others, [1977] 1 SCR 1037, and it was held that if it became non-
feasible and impracticable for the State to fill up the requisite quota by
direct recruits after making a serious effort to do so, it was free to fill
the posts by promotion of suitable hands, if the filling up of the vacan-
cies was administratively necessary and could not wait. Similar is the
position here, and the r. 1 of the 1960 Rules must be held to be
B :realistic and flexible, true to life rather than abstractly absolute. It
was strenuously contended by Mr. Tarkunde and was reiterated by the
other learned counsel that the State Government erred in promoting
the officers from the lower cadre far in excess of their legitimate share
in the Service, and the promotees cannot be allowed to take advantage
of this wrong perpetuated from year to year. Reply of the respondents
Is that direct recruits suitable for appointment were not available and if
c appointments had been deferred on that account the fast developing
~
-
~epartments, entrusted with quick improvement in several fields
would have been rendered ·crippled, leading to grave injury to the
Industrial and other growths in the State. The public interest
aemanded that the improvem~nt work did not suffer on account of
D :non-availability of suitable candidates for nomination, when competent
Engineers fit to shoulder the responsibility were available in abundant
number in the departments themselves. It will bear repetition that the
promotees were not appointed in a casual manner; the Rules applic-
able for substantive appointments were meticulously followed and
eligible officers were subjected to all the tests including scrutiny by the
E Public Service Commission before they were promoted. The·teason
,for not adhering to the quota rule was admittedly the non-availability
'Of the direct recruits and was specifically mentioned in the Govern-
ment's resolution of 1970 as a reason for replacing the old rules by new
ones. Mr. Singhvi, the learned counsel for the respondents, argued
that having regard to the relevant facts and circumstances, there is no
-
F escape from the conclusion that the quota rule spelt out by the execu-
tive instructions in the 1960 Rules had in fact collapsed, and that this
fact can be recognised even without issuing a formal amending instruc-
tion. It is permissible to draw an inference to that effect by the steps
taken by the State Government, repeatedly and for a considerable
period, in disregard of such a rule, and specially so where the quota is
G not fixed in imperative terms. Reliance was placed on the observations
at page 209 of the judgment of this Court in P. C. Sethi and Others v.
Union of India and Others, as reported ill (1975] 3 SCR 201. The quota
of direct recruits in that case had not been enforced "perhaps for good
reasons as noted above, the policy of the Government being diffe-
rent". In this background it was stated that administrative instruc-
H tions, if not carried into effect for obvious and good reasons, cannot
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA [SHARMA, J.J 925
confer a right upon entrants on later recruitment to enforce the same.
-
The learned counsel appears to be right. A
~-
21. It has, however, been rightly suggested on behalf of the
appellants that when recruitment is from more than one source, there
is no inherent ·invalidity in introducing quota system, but as was
observed in Subraman's case (supra), the unreasonable implementa- B
.._. tion of such a .rule may attract the frown of the equality clause .
Further, if a rule fixing the ratio for recruitment from different sources
is framed, it is meant to be respected and not violated at the whims of
the authority. It ought to be strictly followed and not arbitrarily ig-
nored. This, of course, may not ptevent the Government from making
- "'- slight deviations to meet the exigencies. If it is discovered that the rule
·has been nmdered impracticable, it should be promptly substituted by c
an appropraite rul.e according to the situation. The question, however,
is as to what is the conclusion if the quota rule is not followed at all
continuously for a number of years, after it becomes impossible to
adhere to tlie same. Admittedly in the present cases direct recruits were
not available in adequate number for appointment, and appropriate D
candidates in the subordinate rank capable of efficiently discharging
the duties of Deputy Engineers were waiting in their queue. The
development work of the State peremptorily required experienced and
efficient hands. In the situation the State Government took a decision
l to fill up the vacancies by promotion in excess of the quota, but only
after subjecting the officers to the test prescribed by the rules. All the E
eligible candidates were considered ano the opinion of the Public
Service Commission was obtained. The appointments were not limited
to a particular period and as a matter of fact continued till 1970 when
the fresh rules were introduced.
t- 22, The stand of the appellants is that whenever appointments F
-\ are made in violation of a quota rule the appointees will have to go
down below the new entrants, joining the Service in accordance with
their quota. The cases relied upon by Mr. Tarkunde do discuss the
general principle~ about the enforceability of quota rule and the effect
of its violation, but do not profess tq Jay down the universal rule
applicable to every case irrespective of the other relevant circumst- G
ances arising therein. On the other hand, the decisions cited by Mr.
Singhvi deal with circumstances similar to those in the !'resent cases and
> are illustrative of situations where the general rule has to yield to just
exceptions. Indeed, Mr. Tarkunde himself attempted to distinguish
them on the ground that the government had relaxed the quota rule in
those cases. The fallacy in the argument, however, is that the present H
cases are also of the same category.
926 SUPREME COURT REPORT~ [1990] 2 S.C.R.
A 23. Mr. Tarkunde is right that the rules fixing the quota of the
appointees from -two sources are meant to be followed. But if it
becomes impractical to act upon it, it is no use insisting that the
authorities must continue to give effect to it. There is no sense in
asking the performance of something which has become impossible.
Of course, the Government, before departing from the rule, must
B
make every effort to respect it, and only when it ceases to be feasible
to enforce it, that it has to be ignored. Mr. Tarkunde is right when he
says that in such a situation the rule should be appropriately amended,
so that the scope for unnecessary controversy is eliminated. But,
merely for the reason that this step is not taken promptly, the quota
rule, the performance of which has been rendered impossible, cannot
c be treated to continue as operative and binding. The unavoidable
situation brings about its natural demise, and there is no meaning in
)
-
pretending that it is still vibrant with life. In such a situation if appoint-
ments from one source are made in excess of the quota, but in a
regular manner and after following the prescribed procedure, there is
no reason to push down the appointees below the recruits from the
D other source who are inducted in the Service subsequently. The later
appointees may have been . young students still prosecuting their
studies when the appointments from the other source t_ake place-and
11 is claimed on behalf of the respondents that this is the position with
respect to many of the direct recruits in the present case-and, it will
be highly foequitable and arbitrary to treat them as senior. Further\ in
E
cases where the rules themselves permit the Government to relax the
provisions fixing the ratio, the position for the appointees is still bet-
ter; and a mere deviation therefrom would raise a presumptioin in
favour of the exercise of the power of relaxation. There would be still a
third consideration relevant in this' context: namely, what is the con-
clusion to be drawn from deliberate continuous refusal to follow an
F
executive in~truction fixing the quota. The inference would be that the
executive instruction has ceased to remain operative. In all these
cases, the matter would however be subject to the scrutiny of the
Court" on the ground of ma/a fide exercise .of power. All the three
circumstances mentioned above which are capable of neutralising the
rigours of the quota rule are present it: the cases before us, and the
G principle of seniority being dependant on continuous officiation can-
not be held to have been defeated by reason of the ratio fixed by the
1960 Rules.
24. The decisions relied upon by Mr. Singhvi deal with similar
H situation and are consistent with our opinion.
ENGG. OFF!CERSASSCN. v. STATEOFMAHARASHTRA(SHARMA,J.J 927
25. The decisions relied upon by Mr. Tarkunde support his argu-
ment in general terms but are distinguishable on account of the special A
features in the present cases. Mr. Singhvi contended that many
important observations in those cases also support the respondents on
several relevant aspects, as for example, the statement at pages 990H-
991B in the judgment in A.K. Subrman's case as reported in [1975] 2
SCR 797 to the following effect: B
"It is submitted by the respondents that one-third
quota cannot be filled unless the two-third quota was
exhausted. This, in our view, will introduce sterility in the
quota rule so far as the promotees are concerned. Their
hopes and aspirations cannot be related to the availability
or non-availability of the direct recruits to fill the two-third c
quota. Each quota will have to be worked independently
on its own force. The word "rest" in the quota rule cannot
be pressed into service to defeat the object of the rule
coming in aid of advancement of prospects of promotees in
the hierarchy of the Service." D
26. Relying on the observations at page SOSH of the judgment in
Gupta's case reported in [1975] Supp. SCR 491, Mr. Tarkunde strenu-
ously urged that even on the assumption that the quota rule in the
I present cases had, in fact, broken down, it was imperative on the part
of the Government to have framed fresh workable rules before pro- E
moting the respondents. The learned counsel for the promotees distin-
guished the decision, and to our mind correctly, on the ground that
- there the manner and terms of the appointments made in breach of the
quota rule, were widely different from those in the present cases. The
special facts as they appear from the other judgment in the Gupta's
case reported in [1975] 1 SCR 104, were stated at page 113E-F thus: F
"It is necessary to remember, however, in this connection
that all these officers had been told when promoted that
their appointments were on an officiating or ad hoc basis
and the question of their seniority had not been deter-
mined. It was thereby implied that orders about seniority G
could only be passed after the department was in a position
to take a decision with regard to the inter se seniority bet-
ween the promotees and the direct recruits. That being the
situation of all these officers, they could hardly contend
that the dates of appointments will not be altered for the
purposes of determining seniority." H
9~8 SUPREME COURT REPORTS H990l 2 S.C.R.
A
The decision was later considered in P.S. Mahal and others v. Union of
India and Others, [1984] 3 SCR 847, and the analysis given at pages
877E-880 clearly indicates that the decision has to be understood in the
''C
background of the facts therein and cannot have a universal applica-
tion irrespective of the situation. This judgment as well as the decision
in Badami's case (supra) were rightly distinguished in Patwardhan's
B case at page 797.
·~
27. It has also been alternatively argued on behalf of the appel-
!ants that by the statement in the judgment in Patwardhan's case that
the quota rule applied at the stage of appointment and not at the stage
c
of confirmation, this Court did. not mean to say that those who were
promoted in an officiating capacity were not subject to the quota rule.
The contention is that what was meant to be conveyed by the aforesaid
?
-
observations was that if an officer had been promoted within his quota
then it would be the date of his promotion and not the date of confir-
mation which would be relevant for the officer's seniority, but where
the officer is promoted in excess of his quota his seniority would arise
D when.a vacancy in his quota becomes available. We are afraid, it is not
possible to read the judgment as suggested. The finding at pages 795F-
796A, iri the following words does not leave any room for controversy;
"In this view of the matter, the prescription contained in
'
·'· E
the closing sentence of r. B(i) that "the number of such
promotions shall be about 1/3rd the number of direct
recruits appointed iri that year" would apply to initial
""
appointments. and cannot govern the confirmation of those
who have 'already been appointed to Class II cadre. _In
other words, direct recruits and promotees have to be
appqinted in the proportion of 75:25 to Class II cadre, the
-
F forq'ler as Deputy Engineers and the latter as officiating 1·-
Deputy Engineers, .but once that is done, the quota rule ~
would cease to apply with
'
the result that confirmations in
the post of Deputy Engineers are not required to be made
in the proportion in which the initial appointments had to
be made. Thus rule B(i) onlv requires that for every three
G direct recruits. appointed as Deputy Engineers only one
promotee can be appointed as officiating Deputy Engineer.
The rule cannot be construed to mean that for every three
confirmations of Deputy Engineers, not more than one
promotee can be confirmed as Deputy Engineer."
H Relying upon the observations in the Patwardhan's case that the quota
ENGG. OFFICERSASSCN. v. STATE OFMAHARASJflRA !SHARMA, J.] 929
system was an important feature of the 1960 Rules,.it was contended
~·-
by Mt .·Tarkllnde that it is not .permissible to hold that the rule in this A
regard had been relaxed by the Government or that it had at any point
of time broken down. ·we db not find it permissible to construe the
statement in the judgment, referred to, to lead to such a conclusion.
This argument, as has been addressed before us on the basis of the
quota rule as an additional contention was not pressed in Patwardhan's B
case and so there was no occasion for this Court to deal with the same.
The observations referred to by Mr. Tarkunde were made in a diffe-
rent context altogether. If it be assumed that this argument was con-
structively involved in the Patwardhan's case, then it follows·that the
same must be deemed to have been overruled. The case clearly, in
unambiguous terms, rejecied the claim of the direct recruits for senio-
rity over the promotees. The appellants by trying to interpret a part of c
the observation made in the judgment in a different context, in an
artificial and uncalled for manner, are suggesting that the judgment is
self-contradictory, but we do not find any justification for such an
inference.
D
2\l. Still another point confined against a certain category of the
officiating Deputy Engineers who were not included in the frozen
cadre under the 1970 Rules was attempted. The 'contention is that the
expressions "all the promoted Deputy Engineers" and "all directly
I recruited Deputy Engineers" used in Patwardhan's case should be
given restl'.icted meaning, so as not to include those officiating Deputy E
Engineer.> who were not included in the frozen cadre within the group
of l'pmmoted Deputy Engineers"; and the Assistant Engineers Oass
- II within the group of "directly appointed Deputy Engineers". It is
said that although in the judgment it was stated that the different
\ ·1" groups in the Service were there in representative capacity, these -
groups were actually not represented. Even assuming that to be so, it F
is not possible to hold that the principle of seniority being dependent
on continuous officiation will not apply to these groups of the officers.
The reasons for rejecting the case of the appellants are equally applic-
able to all the promoted Deputy Engineers including those who were
earlier Sub-Divisional Engineers and Sub-Divisional Officers, as well
as all the directly recruited Deputy Engineers. The suggested division G
of the two groups into further sub-categories will result in illegal
discrimination.
29. Mr. Tarkunde also urged that as a result of the judgment in
Patwardhan's case it was not necessary to frame the entire rules afresh,
inasmuch as only r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules H
c
930 SUPREME COURT REPORTS [1990] 2 S.C.R.
had been struck down. The grievance against the 1982 Rules is that it
A has disturbed ·the order of seniority of the parties with retrospective
effect, which is illegal. The argument has to be rejected as it fails to
take note of the finding that the direct recruits who joined the service
later than the promotees were at no point of time senior.The 1982
Rules merely recognised this position and gave effect to it. They have ·
B (excepting the arbitrary and discriminatory provisions of rr. 4 and 9)
undone the inequality, inequity and illegality which were the products
of the offending provisions of the earlier Rules, and there is no reason
whatsoever to doubt their validity.
30. The judgment of the Bombay High Court striking down rr. 4
and 9 of the 1982 Rules has been seriously criticised on behalf of the
c appellants. The grounds of challenge, however, are the same which
have been considered earlier. Excepting the State of Maharashtra
challenging this judgment in S.L.P. Nos. 16614-15 of 1983 no other
party has directly impugned it. So far Mr. A.S. Bhasme, who appeared
on behalf of the State of Maharashtra, is concerned, he faintly
D defended all the steps of the State taken from time to time, and made
certain statements which were criticised on behalf of the appellants in
the Civil Appeals as amounting to.unjustified concessions in favour of
the promotees. Since we .have not gone by the stand taken on behalf of
the State of Maharashtra before us during the argument, and our
decision is based on a consideration of the merits of the different \
E questions argued by the parties and not on any concession, we do not
consider it necessary to deal with Mr. Bhasme's argument at any
length. We hold that the rr. 4 and 9 of the 1982 Rules were rightly
struck down and consequently the 1984 Rules were correctly framed
and have to be upheld as legal and valid.
F 3 L Mr. Tarkunde took great pains in analysing the practical
effect of the judgment in Patwardhan's case with which we agree and
contended that the direct recruits shall suffer seriously if the present
Civil Appeals, Writ Petitions and the Special Leave Petitions are not
allowed. Mr. Singhvi challenged the figures worked out on behalf of
the appellants. We do not consider it necessary to go into this con-
G troversy as it cannot be denied .that as a result of Patwardhan's case
and on dismissal of present cases a large number of promotees have to
be treated as senior to the direct recruits, and in that sense the direct
recruits do suffer. This, however, cannot be avoided. If their case on
merits is not correct, it cannot be assumed that they were at anfpoint
H
of time clothed with any right, which they are being deprived of. If the
decision in Patwardhan's case had been given effect to promptly, many
(
ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.) 931
of them would have been reverted to inferior posts but by their persis-
A
~-- tance, both before the higher authorities of the State and the Courts,
they have sufficiently delayed the matter so as to avoid the reversion of
any one of them.
32. Mr. Bhandare, appearing in W.P. No. 5187 of 1983 and
W.P. No. 8594 of 1983, generally adopted the argument addressed by B
-( Mr. Tarkunde and added by saying that the officers should have been,
on a proper classification, divided into 3 classes. namely, (i) Assistant
Engineers Class I, (ii) the Deputy Engineers directly recruited in Class
II, and (iii) the officiating Deputy Engineers promoted from Class III,
c .... and quota should have been fixed separately for 3 classes right cip to
the top stage where appointments are to be made by promotion. He
prayed for a direction to the authorities to frame fresh rules including
c
\.,- appropriate provisions on the lines suggested by him. In view of our
finding that the 1982 Rules as amended by the 1984 Rules do not suffer
from any infirmity, there is no occasion for issuing any further direc-
tion. So far the question of fixing the ratio of the appointment' from
different sources is concerned, it is a matter of policy for the Govern- D
ment and it is not for us lo offer our advice.
33. The petitioner in W.P. No. 5187 of 1983, S.B. Sohoni, was
I directly appointed as a Deputy Engineer in March 1961 and was con-
firmed in 1963. It was, therefore, rightly pointed out by Mr. Sighvi that
he was not concerned with the 1978 Rules at all. TI:c writ petition, in E
absence of grounds relating to the 1978 Rules, confirms this impres-
sion. He has of course challe~ged the 1982 Rules, as thev stood before
- the amendment in 1984, but did not, after 1984 amendment, make any
prayer for modification of his writ petition. He also did not consider it
i necessary to file an appeal against the High Court judgment. No addi-
tional ground has been raised on his behalf to be dealt with separately. F
~
34. So far the petitioner in Writ Petition No. 8594 0(1983, J.T.
Jangle is concerned, he was an earlier appointee and was included in
the seniority list of November 1956. This list was confirmed by the
decision in Patwardhan's case (vide page 800G of the judgment as
reported in [1977] 3 SCR 775). It has been stated in his petition that G
although some junior officers were promoted as Executive Engineers
;. earlier, his promotion was delayed and took place in October 1973. He
has not given the details in this regard or the names of the junior
officers who superseded him. He was not considered eligible for pro-
motion as Executive Engineer earlier as he had not completed 7 years'
service as required by the 1960 Rules. He has not imp leaded those who H
932 SUPREME COURT REPORTS [19901 2 S.C.R.
A have superseded him and has not made any specific prayer in this
regard. Besides, in view of the decision in P. Y. Joshi's case (supra) he
could not have claimed promotion before completing 7 years of
service. We do not find any merit in either of the two writ petitions-
W.P. No. 5187 of 1983 and W.P. No. 8594 of 1983-pressed by
Mr. Bhandare.
B
35. Writ Petition No. 1327 of 1982 was argued by J.H. Bhatia,
the petitioner, in person. He was directly recruited as Deputy
Engineer Class II in July 1959 and has challenged the constitutional
validity of the 1978 Rules. Mr. Singhvi, the learned counsel for the
respondents, took a preliminary objection to the maintainabilty of the
writ application on the ground that his claim stands barred by princi-
c ples of res judicata. Admittedly, he was represented in W.P. No. 672 of
1981, filed before the Bombay High Court which was dismissed on
7.9.1981, upholding 1978 Rules. An application under article 136 of
the Constitution being numbered as S.L.P. No. 8064 of 1981 was filed
from this judgment in representative capacity and was dismissed by
0 this Court on 29.12.1981. These facts were not denied by the petitioner
before us, and it was therefore contended on behalf of the respondents
that so far the validity of the 1978 Rules is concerned, it must be held
to be binding on the petitioner in respect of identical relief now pres-
sed by him in the present writ case. The objection appears to be well
founded. It is well established that the principles of res judicate are
E applicable to writ petitions. The relief prayed for on behalf of the
petitioner in the present case is the same as he would have, in the event
of his success, obtained in the earlier writ petition before the High
Court. The petitioner in reply contended that since the special 1eave
petition before this Court was dismissed ilJ../jmine without giving any
-
reason, the order cannot be relied upon for a plea of res judicata. The
F answer is that it is not the order of this Court dismissing the special
leave petition which is being relied upon; the plea of res judicata has
been pressed on the basis of the High Court's judgment which became
final after the dismissal of the special leave petition. In similar situa-
tion a Constitution Bench of this Court in Daryao and Others v. The
State of U. P. and Others, [ 19621 1 SCR 574, held that where the High
G Court dismisses a writ petition under article 226 of the Constitution
after hearing the matter on the merits, a subsequent petition in the
Supreme Court under Article 32 on the same facts and for the same
reliefs filed by the same parties will be barred by the general principle
of res judicata. The binding character of judgments of courts of compe-
tent jurisdiction is in essence a part of the rule of law on which the
H administration of justice, so much emphasised by the Constitution, is
[
ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.[ 933
founded and a judgment of the High Court under article 226 passed
A
after a hearing on the merits must bind the parties till set aside in
appeal as provided by the Constitution and cannot be permitted to be
circumvented by a petition under Article 32. An attempted change in
the form of the petition or the grounds cannot be allowed to defeat the
plea as was observed at page 595 of the reported judgment, thus:
B
"We are satisfied that a change in the form of attack
against the impugned statute would make no difference to
the true legal position that the writ petition in the High
Court and the present writ petition are directed against the
~. ' same statute and the grounds raised by the petitioner in
that behalf are substantially the same."
c
The decision in· Forward Constuction Co. and others v. Prabhat
Manda/ (Regd.), Andheri and Others, I 1986] 1 SCC 100, further
clarified the position by holding that an adjudication is conclusive and
final not only as to the actual matter determined but as to every other
matter which the parties might and ought to have litigated and have D
had decided as incidental to or essentially connected with subject
matter of the litigation and every matter coming into the legitimate
purview of the original action both in respect of the matters of claim
and defence. Thus, the principle of constructive res judicata underlying
Explanation IV of s. 11 of the Code of Civil Procedure was applied to
writ case. We, accordingly hold that the writ case is fit to be dismissed E
on the ground of res judicata.
- 36. The petitioner, however, was permitted during the.hearing,
to place his case on merits and he did so at some length, and Mr.
Singhvi replied thereto. We have considered the arguments carefully
and do not find any substance in the claim of the petitioner and we F
proceed to indicate our reasons briefly.
37. The petitioner J .H. Bhatia was appointed Deputy Engineer
as a direct recruit in 1959 and was promoted as Executiv.e Engineer in
1969. According to his case, he was governed by the 1941 Rules and
was, therefore, entitled to a higher position in the li~t of seniority. It G
has been contended by him that he was entitled to the benefit of either
the 1941 Rules or the provision relating to quota in 1960 Rules and in
either event he would have been eligible for promotion to the rank of
Executive Engineer three years earlier, that is, in 1966. On account of
this delay in his promotion he seriously suffered by the further delay in
his next promotion as Superintending Engineer by a considerable H
c
934 SUPREME COURT REPORTS [1990] 2 S.C.R.
A period. WitiJ. reference to the criticism against the 1941 Rules in the
judgment of Patwardhan's case the petitioner urged that the same
should be treated as passing remarks. fit to be ignored. Alternatively
he has aaopted the arguments addressed on behalf of the appellants
challenging the correctness of the decision in Patwardhan's cas1
B 38. As has been stated earlier, the seniority list of the Deputy
Engine.:rs tor the period up to 1.11.1956 was confirmed in the
Patwardhan's case. The question of determining the seniority for the
subsequent period arose in pursuance of the further decision in this
judgment. The 1960 Rules were enforced with effect from 30.4.1960
which introduced, for the first time, several new provisions including ;j, -
C the quota rule. The period from 1.11.1956 to 30.4.1960 was, therefore,
separately dealt with by framing the 1978 Rules under Article 309 of
the Constitution. In accordance with the decision in Patwardhan's case
the seniority list of the Deputy Engineers as on 1.11.1956 was declared
by these Rules as valid, final and binding, and thereafter the further
seniority lists were directed to be prepared for the years 1957, 1958,
D 1959 and 1960 on the basis of continuous officiation in accordance with
the judgment. The petitioner contends that the judgment in Patward-
han's case cannot be interpreted to have struck down the 1941 Rules
and the claim of the direct recruits appointed prior to the coming in
force of the 1960 Rules must be upheld in view of the provisions of r. 2
of the 1941 Rules. The 1941 Rules contained only two rules which are
E q noted below:
-., 1. ln the case of direct recruits appointed substantively
on probation, the seniority should be determined with
reference to the date of their appointment on probation.
F 2. In the case of officers promoted to substantive vacan-
cies, the seniority should be determined with reference to
the date of their promotion to the substantive vacancies
provided there has been no break in service prior to their
confirmation in tho8e vacancies."
G 39. Mr. 'SinghVi replied by saying that r. 2, aforementioned,
when properly understood, does not help the petitioner at all,
inasmuch as the rule refers to substantive vacancies and not permanent
appointments, and substafit'ive vacancies can arise even in temporary
posts. Reliance was placed on the observations in Ba/eshwarDass' V.
[1981] 1 SCR 449. However, we do not consider it necessary to deal
H with this argument, as in our view the petitioner cannot succeed even
ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.] 935
otherwise. The substance of the petitioner's argument is again the A
same as has been contended on behalf of the appellants in the Civil·
Appeals, namely, that the principle of seniority being dependent on
continuous officiation as laid down in Patwardhan's case should not be
accepted. The content10n is that the seniority ought to be reckoned
with reference to the dates of permanent appointment in the cadre.
This argument precisely was rejected in Patwardhan' s case and we are B
~
in complete agreement with the same. We also do not accept the
argument of the petitioner that the judgment did not deal with the
1941 Rules. The said Rules were pointedly considered at pages 790G·
79 lE in the published report and it was, inter alia, held,
=-.
"' "The 1941 Rules contained the real germ of discrimination
because the promotees had to depend upon the unguided
c
pleasure of the Government for orders of confirmation. In
the pre-Constitution era, such hostile treatement had to be
suffered silently as a necessary incident of government
service."
D
It has to be remembered that the 1941 Rules, made under an executive
instruction, do not stand on a stronger footing than the provisions of
the subsequent similar Rules which have been struck down on the
ground of illegal discrimination; and as in the case of the 1982 and the
I 1984 Rules, the 1978 Rules also were framed under Article 309 of the
Constitution. No valid objection can be taken against the 1978 Rules E
made for undoing the wrong resulting from arbitrariness and offensive
discrimination which had visited the promotees.
~
40. Mr. Bhatia has, by his written argument, belatedly alleged
mala fides on the part of the State Government on the ground that it
""'\" failed to prepare and publish select lists for a number of years and it F
-\ attempted to mislead this Court by not stating the correct position in
regard to the cadre of the Deputy Engineers and the 1941 Rules. We
do not find any justification for the petitioner or any other direct
recruit to urge lack of bona fides on the part of the State. We do not
find any merit in any of the submissions addressed by the petitioner.
G
41. The retired Superintending Engineer, Shripad Shankar
' >- Patwardhan, intervenor in Writ Petitions No. 1327 of 1982, 5187 of
1983 and 8594 of 1983, also made a few submissions in person and filed
a note of his argument in the shape of an affidavit. He has not raised
any additional ground, and it is not necessary to discuss his case any
further. H
c
936 SUPREME COURT REPORTS [1990] 2 S.C.R.
42. The two petitioners in Writ Petitions No. 3947-48 or 1983 are
A
Executive Engineers in the Irrigation Department of the Government
of Gujarat. Although the case was initially filed throupr advocates, at
the hearing on a request by them the petitioner No. 1 was allowed to
argue the case in person on their behalf. Besides impleading the State
of Gujarat, the Government of Maharashtra and the Union of India as
B respondents No. 1, 2 and 3 respectively, H.N. Shah, another officer of
the same Department, was.made a party as respondent No. 4 in the
writ petition. The case of the petitioners is that the respondent No. 4
was junior to them and was erroneously treated as senior in the senio-
rity lists for the period 1.11.1956 to 30.4.1960 prepared in accordance
with the 1978 Rules.
c The writ petition states that the petitioners were in Subordinate
Engineering service of the former State of Bombay when they
appeared at the competitive examination h.eld for direct recruitment
and were appointed Deputy Engineers. At the same examinaton,
H.N. Shah, respondent No, 4, who was an officiating Deputy
D Engineer, also appeared anc!/ was appointed a Deputy Engineer as a
direct recruit and his name ,appeared in the list below the petitioners.
After the bifurcation of tht two States of Maharashtra and Gujarat in
1960, the petitioners as well as the respondent No. 4 were allocated to
the State of Gujarat. In 1969 the petitioner No. 1 and the respondent
No. 4 were promo!@<! as Executive Engineers and the name of the
E respondent No. 4 was again shown lower in the list. it is stated in
paragraph 13 of the writ petition that the petitioner No. 2 was
temporarily dropped in this promotion order on administrative
grounds. It is contended on behalf of the petitioners that these lists
correctly placed the respondent No. 4 below the petitioners but the
subsequent lists prepared in pursuance of the 1978 Rules wrongly show
-
F him as senior.
A counter affidavit on behalf of the State of Maharashtra was
filed interalia denying several allegations in the writ petitions explain-
ing certain circumstances by giving all the relevant materials, and exp-
laining the situation. S.B. Patwardhan, the petitioner' in the reported
G case, also intervened and refuted the claim of the petitioners. The
respondent no. 4 has retired in the meantime and has not appeared in
this case.
The petitioner no. t after making a very brief argument, filed
written submissions, but since in our view the Patwardhan's case
H was correctly decided, the State was under a· duty to prepare fresh
ENGG. OFFJCERSASSCN. v. STAIB OF MAHARASHTRA [SHARMA,J.] 937
seniority lists for the period 1.11.1956 to 30.4.1960, and this was done A
after framing the 1978 Rules. We do not find any merit in the challenge
to the 1978 Rules, as indicated. earlier, and in that view these writ
petitions are fit to be rejected; specially as the respondent No. 4 has
already retired.
B
43. The only other case which was separately argued on behalf
of the petitioners was Writ Petition No. 12570-72 of 1983. Mr. Vinod
Arvind Bobde, the learned counsel for the petitioners, in· a brief sub-
mission adopted the argument of Mr. Tarkunde and reiterated that the
finding in the Patwardhan's case about the temporary posts bei)lg
included in the main cadre was erroneous. The point has already been
dealt with. c
I,,,- 44. To sum up, we hold th11t:
(A) Once an incumbent is appointed to a post according to rule,
his seniority has to be counted from the date of his appoint-
D
ment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and
made as a stop-gap arrangement, the officiation in such post
f cannot be taken into account for considering the seniority.
E
(B) If the initial appointment is not made by following the pro-
cedure laid down by the rules but the appointee continues in
- the post uninterruptedly till the regularisation of his service
in accordance with the rules, the period of officiating service
- f will be counted.
\ F
\ (C) When appointments are made from more than one source, it
is permissible to fix the ratio for recruitment from the diffe-
rent sources, and if rules are framed in this regard they must
ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota G
rule, it should be substituted by an appropriate rule to meet
.A the needs of the situation. In case, however, the quota rule
is not followed continuously for a number of years because
it was impossible to do so the inference is irresistible that
the quota rule had broken down.
H
c
938 SUPREME COURT REPORTS [1990] 2 S.C.R.
(E) Where the quota rule has broken down and the appoint-
A
ments are made from one source in excess of the quota, but
are made after following the procedure prescribed by the
rules for the appointment, the appointees should not be
pushed down below the appointees from the other source
inducted in the service at a later date.
B
(F) Where the rules permit the authorities to relax the provi-
sions relating to the quota, ordinarily a presumption should
be rais!!d that there was such relaxation when there is a
deviation from the quota rule.
(G) The quota for recruitment from the different sources may be
prescribed by executive instructions, if the rules are silent
c on the subject.
(H) If the quota rule is prescribed by an executive instruction,
and is not followed continuously for a number of years, the
inference is that the executive instruction has ceased to
remain operative.
D
(I) The posts held by the permanent Deputy Engineers as well as
the officiating Deputy Engineers under the State of
Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with importaqt questions concerning a
E
particular service given after careful consideration should be
respected rather than scrutinised for finding out any possible
error. It is not in the interest of Service to unsettle a settled
positi~n. -
With respect to Writ Petition No. 1327 of ,1982, we further hold:
F
(K) That a dispute raised by an application under article 32 of
the Constitution must be held to be barred by principles of res
judicata including the rule of constructive res judicata if the same
has been earlier decided by a competent court by a judgment
which became final.
G
In view of the above and the other findings recorded earlier, we do not
A.
find any merit in any of the civil appeals, writ petitions and special
leave petitions which are accordingly dismissed. There will be, how-
ever, no order as to costs.
H
G.N. Appeals and Petitions are dismissed.
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