DIRECT RECRUIT CLASS II ENGINEERING OFFICERS' ASSOCIATION AND ORS. v. STATE OF MAHARASHTRA AND ORS

Citation: [1990] 2 S.C.R. 900

Court: Supreme Court of India

Bench: SABYASACHI MUKHERJI, L.M. SHARMA, S. RATNAVEL PANDIAN, P.B. SAWANT, K. RAMASWAMY

Case summary

33 of the 1970 Rules 7 was successfully challenged as being violative of Articles 14 and 16 of the Constitution.

Judgment text

DIRECT RECRUIT CLASS II ENGINEERING OFFICERS' ASSOCIATION AND ORS. v. STATE OF MAHARASHTRA AND ORS. MAY 2, 1990 [SABYASACHI MUKHARJI, CJ, L. M. SHARMA, S. RATNAVEL PANDIAN, P. B. SAWANT AND K. RAMASWAMY, JJ. ] Constitution ofIndia, 1950: Articles 14, 16 and 309-Rules relating to seniority ofMaharashtra Service ofEngineers-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 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 ofIndia.

' Seniority and promotion-Direct recruits and promotees-interse seniority-To be counted from date of appointment, not confirmation-Ad-hoc appointment-Officiation in such post-Cannot be taken into account for considering seniority. - Quota rule-Absence of statutory rule-Can be prescribed by executive instruction-To be followed strictly-Consecutive nonadherence-Effect of Civil Procedure Code, 1908: Section 11, Explanation IV-Res judicata-Applicability to writ cases. 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 Assistant Engineers Class I, and the Bombay Engineering Service Class II ' having officers designated as Deputy Engineers. All the posts were _L 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, Pone or by promotion of officers holding inferior posts. A resolution was passed on 21. 11. 1941 for determination of the seniority of the direct . recruits and the promotee officers, containing only two rules. Rule 2 thereof was to the effect that in case of officers promoted to substantive vacancies, the seniority would be determined with reference to the date of their promotion to the substantive vacancies. - ~ In 1960, detailed rules for recruitment to Class I and Class II Services were framed.

In place of nomination from the successful students 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 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 placed1senior to promotees confirmed during that year. A review ofthese f Rules was later undertaken by the Government and ultimately in 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 ofMaharashtra and Others, [1970) 2 SCR 615. 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 appiicable to regular promotions, including consultation with the Public 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 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· 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. 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 ofMaharashtra and Ors. , [1977] 3 SCR 775.

In view of the judgment In Patwardhan's case, it became necessary to prepare fresh seniority lists. Rules were framed under Article 309 of the Constitution read with s. 81(6) of the Bombay Re- ~ organisation Act, 1960, and were called the Re-organised Bombay State Overseers and Deputy Engineers Seniority Lists Rules, 1978. In 1981 further rules called Re-organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules, 1981, were framed laying down the rule of determination of seniority of the Assistant Engineers and the Executive Engineers for the period 1. 11. 1956 to 30. 4. 60. These-rules have been successfully challenged in the High Court. The main Rules which are the subject matter of the present cases were framed in 1982 under Article 309 of the Constitution laying down the principle for fixing the 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 quota with retrospective effect, attempt was made to neutralise the decision and rob the promotees the benefit of their continnous officiation. For the purpose of f"D<ing the seniority of Execntive Engineers and Assistant Engineers for the period commencing from 21. 12. 1970, separate rules were framed under Article 309 of the Constitution and are called the Executive 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.

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. - ~ 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 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 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 considering the claims of all the eligible available -persons and without following the rules. of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary.

[914G-H; 91SA-DJ S. B. Patwardhan v. State of Maharashtra. [1977] 3 SCR 775; 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 officiati! lg posts were not included in the cadre ofthe 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 expression has been used in the sense of confirmation, The language used in several other rules is inconsistent with two-cadre theory, and by way of illustration r.

12(a) may he considered. Rules 5 and 24 ofthe 1970 Rules 7 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 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. 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 reference to "lists" to he prepared. It will not, therefore, he right to equate the lists with cadres. It is true that the· Rules have not in express language stated that the officiating posts also will 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 of officers in the departments concerned and many disputes have been settled by following the judgment in Patwardhan's case. In such a situation it is not expedient to depart from the decision lightly. It is Mghly desirable that a decision, which concerns a large number ofgovernment servants in a particular service and which has been given after careful consideration of the rival contentions, is respected rather than scrutinised for finding out any 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] 2. 3 Even on an independent consideration of the provisions ofthe Rules, and the relevant materials the temporary posts of Deputy Engineers against which promotees officiated, did not form separate cadre and were additions to the main cadre. These temporary posts were created in pursuance of several resohitions of the 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 ofMaharashtra, [1970] 2 SCR 615, followed. State of Gujarat v. C. G. Desai & Ors. , [1974] 2 SCR 255, distinguished. ·,. -. Baleshwar Dass v. State of U. P. & Ors. , [1981] 1SCR449, referred to. 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 permitted the State Government to exercise its discretion according to t the demand of the exigencies, by using the expression "as far as practicable. " There is no reason to so restrict the scope and meaning of 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 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 arbitrarily ignored.

This, of course, may not prevent the Government from making slight deviations to meet the exigencies. If it is discovered that the rule has been rendered impracticable, it should be promptly substituted 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