Holding

The Court held that the State must comply with the Special Rules by ensuring that 37½% of substantive Assistant Engineer vacancies are filled by direct recruitment, that promotees cannot claim seniority in those posts, and that the retrospective regularisation of promotees for 1972‑75 should not be disturbed.

Summary

The petitioners, directly recruited Assistant Engineers, challenged the Chief Engineer's order that retrospectively regularised the temporary service of promotees from 1972‑75 to the Assistant Engineer cadre, alleging it violated the Andhra Pradesh (Roads and Buildings) Engineering Service Rules, 1967. The Court examined two parallel rule sets – the General Rules of 1962 and the Special Rules of 1967 – and noted that the Special Rules prescribe that 37½% of substantive Assistant Engineer vacancies must be filled by direct recruitment, with the remaining 62½% by promotion or transfer. The Court found no justification for the State’s failure to honour this quota and directed the State to ascertain the exact number of vacancies, fill the shortfall by direct recruitment, and prepare a seniority list excluding promotees from seniority in the quota‑filled posts. However, the Court held that the retrospective regularisation of promotees for the years 1972‑75 should not be disturbed as it followed the actual commencement of continuous service. Accordingly, the writ petition was allowed in part, and the State was ordered to comply with the Special Rules and redraw the seniority list by September 1988.

Issues considered

Whether the retrospective regularisation of promotees for 1972‑75 was within the authority of the Chief Engineer under the applicable service rules.
Whether the State must fill 37½% of substantive Assistant Engineer vacancies by direct recruitment as mandated by the Special Rules.
Whether promotees placed in posts reserved for direct recruitment can claim seniority.
Whether the regularisation of promotees for the years 1972‑75 should be set aside.

Legislation cited

Constitution of Indias. Article 32

Subjects

direct recruitmentpromotionseniorityregularisationservice rulesadministrative lawconstitutional lawArticle 32Andhra PradeshEngineering Service

Judgment

A
K. SIVA REDDY & ORS. ETC.
v. 1
STATE OF ANDHRA PRADESH & ORS.

FEBRUARY 24, 1988

B [RANGANATH MISRA AND G.L. OZA, JJ.]
~·
Andhra Pradesh (Roads and Buildings) Engineering Service
Rules, 1967-Rule 3-Appointment of Assistant Engineers by direct
recruitment, promotion and transfer-Retrospective regularisation of

~
temporary service of promotees-lnter se seniority on the basis of
regularisation-Validity of.
c
The writ petitioners herein challenge the order regularising the
temporary service of promotees in the years 1972-73, 1973-74 and
i974-75 to the cadre of Assistant Engineers (Deputy Executive
Engineers). They contend that the retrospective regularisation made by
D the Chief Engineer is without authority and in gross violation of the
prescription of the Rules.

Two sets of rules are operating side by side in the State of Andhra
Pradesh, the Andhra Pradesh State and Subordinate Service Rules,
1962, the other, Andhra Pradesh (Roads and Buildings) Engineering
E Service Rules, 1967 promulgated with retrospective effect from April l,
i965.
!-·
Rule 3(1) of the latter rules provide for the method of recruitment
of Assistant Engineers by direct recruitment or by promotion or by
transfer from Supervisor or Draughtsman Special Grade or Draughts-
F man Special Grade I of the Andhra Pradesh (R&B) Engineering Subor- -)-
dinate Service. -

Sub-rule (3)(a) of Rule 3 thereof prescribes that of the substantive
vacancies of Assistant Engineers, 37'h% shall be filled up by direct
recruitment, and the remaining 62'h% by transfer of Supervisors and
G Draughtsman and by promotion of Junior Engineers. Notwithstanding
this, there had been under-recruitment of Assistant Engineers by direct l'i<i;
recruitment and the recruits through the other modes have come into ~
the cadre far in excess of the limit provided by the rule and had been < -~
regularised.

H :, It has been contended that though live year qualifying service was
18
K.S. REDDY v. STATE OF A.P. 19

T necessary in the lower service for entitlement to consideration for pro- A
motion as Assistant Engineer, the period had been reduced to three
years to enable larger recruitment from the alternate sources to the
prejudice of direct recruits.

Disposing of the writ petitions, this Court,
B
J.. HELD: l. There is no justification at all for the State Govern-
ment not to work out the provision viz. filling up by direct recruitment
37'h% of the substantive vacancies. The direct recruits have been
agitating from 1982 over their rights arising out of this rule and the
Tribunal has called upon the State to work out the said Rule properly.
Reopening the question of inter..se seniority on the basis of the rules C
from the beginning may create hardship, but the benefit of the scheme
under the Rules should be made available to direct recruits at least from
1982. [22D-F]

l.2 The State Government must ascertain the exact substantive
vacancies in the category of Assistant Engineers in service. On the basis D
that 37'1.z% of such vacancies were to be filled up by direct recruitment,
the position should be worked out. Promotees should be confined to
62'h% of the substantive vacancies and in regard to 37'1.z% of the vacan·
cies the shortfall should be filled up by direct recruitment. Even if
promotees are placed in those posts reserved for direct recruits, no
seniority shall be counted. I22 F-H I E

l.3 Regularisation made in respect of the promotees of the years
1972 to 1975 should not be disturbed as the regularisation has been
subsequent to the actual commencement of continuous service in the
post of Assistant Engineer. I23C I
F
[The State Government has been directed to ascertain the number
of vacancies upto 3 l. 12.87 to be filled up by direct recruitment and to
take steps to make direct recruitment to fill such posts, within four
months and also to draw the seniority list by the end of September,
1988.] [22H; 23A-BJ
G
ORIGINAL JURISDICTION: Writ Petition Nos. 17165-86 of
1984 & 12401/85

(Under Article 32 of the Constitution oflndia)

K. Rajendra Choudhary and K. Shivraj Choudhary for the H
20 SUPREME COURT REPORTS 11988] 3 S.C.R.

Petitioners in W.P. No. 17165-86 of 1984.
A
M.K. Ramamurthy, Subodh Markandeya and Mrs. Chitra
Markandeya for the Petitioners in W.P. No. 12401of1985.

K.G. Bhagat, T.V.S.N. Chari, Y. Prabhakar Rao and Ms.
B Vrinda Grover for the Respondents.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. The group of writ petitions under Arti-
cle 32 of the Constitution is at the instance of several directly recruited
Assistant Engineers now designated as Deputy Executive Engineers in
c the Engineering Service of the Roads and Buildings division of Andhra
Pradesh Government. Writ Petition No. 12401 of 1985 is by U
Assistant Engineers of the same service who were also directly
recruited. The challenge in the batch of writ petitions is mainly to an
order of the Chief Engineer, respondent No. 2 therein, by asking for
D quashing of his order date~ 8th of June, 1984 by which he regularised
temporary service of promotees in the years 1972-73, 1973-74 and
1974--75 to the cadre of Assistant Engineers (Deputy Executive
Engineers). According to the petitioners, the retrospective regularisa-
tion made by the Chief Engineer of the promotees to the posts of
Assistant Engineers is without authority and is in gross violation of the
E prescription of the Rules. They have asked for a direction to the State
Government and its authorities in Writ Petition No. 12401 of 1985 to
consider the claim of direct recruits for promotion as Executive ,
Engineers and consequential reliefs. In the batch of writ petitions as
also in the other writ application some promotee engineers have been
impleaded as representatives of promotees and transferees in the
F division.

There are two sets of rules operating side by side in the State of
Andhra Pradesh which are relevant. The first is known as the Andhra
Pradesh State and Subordinate Services Rules promulgated with effect
from March 7, 1962 under the proviso to Article 309. These have been
G referred to as 'General Rules' and for convenience we maintain the
same term in our judgment. On June 27, 1%7, another set of rules l,,
known as Andhra Pradesh (Roads and Buildings) Engineering Service ;
Rules with retrospective effect from April 1, 1965, were promulgated.
These have been referred to as 'Special Rules' by the Administrative
Tribunal and in our judgment thcise will also be referred to that way.
H Under Rule 3( 1) of the Special Rules the method of recruitment to the
.f

K.S. REDDY v. STATE OF A.P. [MISRA, J.[ 21

category of Assistant Engineers has been provided and the methods
A
are:

(i) By direct recruitment; or

(ii) By promotion of Junior Engineers; or
B
(iii) By recruitment by transfer from Supervisor or
Draughtsman Special Grade or Draughtsman Special
Grade I of the Andhra Pradesh (R&B) Engineering Subor-
dinate Service.

Sub-rule (3)(a) of Rule 3 prescribes that of the substantive vacancies C
in the category of Assistant Engineers, 371/2 % shall be filled up by
direct recruitment and the remaining 62 1/i % by transfer of Supervisors
and Draughtsmen and by promotion of Junior Engineers. The main
complaint of the direct recruits has been that notwithstanding this
prescription in the rules, there has been under-recruitment of
Assistant Engineers by direct recruitment and the recruits through the D
other two modes have come into the cadre far in excess of the limit
· provided by the rule and regularisation of such recruitment has been
made by exercising powers under Rule 23 of the General Rules. In the
writ petition it has been pleaded that though five year qualifying
service was necessary in the lower service for entitlement to considera-
tion for promotion as Assistant Engineer, the period has been reduced E
to three years to enable larger recruitment from the alternate sources
to the prejudice of direct recruits. Reference has been made in the writ
petition to the decision of the Andhra Pradesh Administrative Tri-
bunal and it has been contended that inspite of such decision and in the
teeth of the rules, Government have failed to make direct recruitment
and have prejudiced their claim to seniority. The respondents have f
controverted these allegations.

By a separate judgment delivered today, we have dismissed Civil
Appeal ~o. 1995 of 1977 which was by two direct recruits to the post of
Assistant Engineer. The conclusion has been on the basis of the facts
stated therein. G·

.)._ A reference to the Tribunal's decision against which the two
connected appeals have been filed would show that the matter was
examined by -a Full Bench of the Tribunal and the Tribunal did point
out that the direct recruits were placed at a disadvantageous position
and the seniority rule should not be allowed to over-ride the recruit-\ H
22 SUPREME COURT REPORTS [1988] 3 S.C.R.

ment rules. The Tribunal found that the Full Bench decision had not
A
been annulled by the State Government or set aside by this Court and
was, therefore, binding on the State of Andhra Pradesh. In the
impugned decision, the Tribunal, therefore, held:
'
;

" ...... .I would not like to issue directions straighta-
B way to prepare the seniority list on the basis of the decision
rendered in the Full Bench decision but while allowing the
revision petition direct the Government to prepare the
seniority keeping in mind the principle laid down in the
Full Bench decision. The petitioners if feel aggrieved
against the decision are given the liberty to approach this
Tribunal for redressal of their grievance".
c
The scheme contained in the sub-rule, as indicated above, is that
37% % of the substantive vacancies are to be filled up by direct recruit-
ment. There is no justification at all for the State Government not to
work out this provision of the rule. The direct recruits have been
D agitating over their rights arising out of this rule and Government have
turned their deaf ear. At least from 1982 the dispute has been syste-
matically raised and by the impugned decisions the Tribunal has called
upon the State to work out the said rule properly.

Reopening the questihn of inter se seniority on the basis of non-
E enforcement of the rules from the very beginning may create hardship
and that would be difficult to mitigate but we see no justification as to
why the benefit of the scheme under the rules should not be made
available to direct recruits at least from 1982. When the State Govern-
ment by rules duly framed prescribed the method of recruitment and
put the scheme into operation it had the obligation to comply with it.
F The explanation offered by the State Government for non-compliance
of the requirements of the rules does not at all impress us. We, there-
fore, direct that as on 31.12.1982, the State Government must ascer-
tain the exact substantive vacancies in the category of 'Assistant
Engineers in the service. On the basis that. 37112 % of such. vacancies
were to be filled up by direct recruitment, the position should be
G worked out. Promote.es should be confined to 621/2 % of the substan-
tive vacancies and in regard to 371/i % of the vacancies the shortfall
should be filled up by direct recruitment. General Rules shall not be
applied to the posts within the lilnites of 371/i % of the substantive
vacancies and even if promotees are placed in those posts, no seniority
shall be counted. The State Government shall take steps to make re-
H cruitment of the shortfall in the direct recruitment vacancies within the
K.S. REDDY v. STATE OF A.P. [MISRA, J.J 23

limit of 37112 % of the total substantive vacancies up to 31.12.1987 A
within four months from today by following the uormal method of
recruitment for direct recruits. The seniority. list in the cadre of
Assistant Engineers shall be redrawn up, as directed by the Tribunal,
by the end of September, 1988, keeping the directions referred to
above in view. There shall be a direction issued to the State of Andhra
Pradesh to make recruitment to the category of Assistant Engineers by B
). strict compliance of Special Rules hence forth.
'
In view of what we have stated above and following the principle
indicated in the connected Civil Appeal which we have seperately
disposed of today, we are of the view that the regularisation made in
respect of the promotees of the years 1972 to 1975 should not at this C
point of time be disturbed particularly when the regularisation has
been subsequent to the actual commencement of continuous service in
the post of Assistant Engineer. We would, however, reiterate that the
directions given in Writ Petition No. 12401 of 1985 is equally appli-
cable to the petitioners in the group and the State Government is
directed to give effect to the judgment with meticulous care. D

There would be no other direction in the batch of writ petitions
nor would there be any direction for costs therein but Writ Petition
No. 12401 of 1985 is allowed to the extent indicated above. Hearing
fees therein is assessed at Rs.3,000 to be paid by the State of Andhra
Pradesh. E

G.N. Petitions disposed of.