1990 (5) TMI 223 - SC - Indian Laws

Whether the direct recruits and promotees were in the same cadre or held posts in two separate and distinct cadres? Held that - Appeal dismissed. Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his 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 cannot be taken into account for considering the seniority. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. 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. Thus 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.

Issues Involved:
1. Inclusion of officiating posts in the cadre of Deputy Engineers.
2. Validity and implementation of the quota rule.
3. Application of the principle of seniority based on continuous officiation.
4. Validity of Rules 4 and 9 of the 1982 Rules.
5. Applicability of the principles of res judicata to writ petitions.

Issue-Wise Detailed Analysis:

1. Inclusion of Officiating Posts in the Cadre of Deputy Engineers:
The court held that it is incorrect to say that the 1970 Rules indicate that the officiating posts were not included in the cadre of Deputy Engineers. The use of the word "promotions" in Rule 8(i) of the 1960 Rules was not appropriate, but this did not mean that officiating Deputy Engineers formed a class inferior to permanent Engineers. The expression "promotions" was used in the sense of confirmation. The language in several other rules was inconsistent with a two-cadre theory. For instance, Rule 12(a) of the 1970 Rules included some officiating Deputy Engineers within the cadre of Deputy Engineers, although it left out those who started officiating later than 30.4.1960. Rule 33 of the 1970 Rules directed the preparation of two lists in each cadre, indicating that lists were different from cadres. Thus, the court concluded that the relevant provisions unmistakably led to the conclusion that officiating posts were included in the cadre.

2. Validity and Implementation of the Quota Rule:
The quota rule was introduced by the 1960 Rules through executive instructions, fixing a ratio of 3:1 for appointments, not for the strength in the service. The rule used the expression "as far as practicable," which allowed flexibility. The court emphasized that the quota rule must be realistic and flexible. When recruitment is from more than one source, there is no inherent invalidity in introducing a quota system, but unreasonable implementation may attract the equality clause. The court found that direct recruits were not available in adequate numbers, and the State Government filled vacancies by promotion in excess of the quota after following the prescribed procedure, including obtaining the opinion of the Public Service Commission. The court held that if appointments from one source are made in excess of the quota but in a regular manner, there is no reason to push down the appointees below recruits from the other source who are inducted later.

3. Application of the Principle of Seniority Based on Continuous Officiation:
The court held that the principle of seniority based on continuous officiation applies to all promoted Deputy Engineers, including those who were earlier Sub-Divisional Engineers and Sub-Divisional Officers, as well as all directly recruited Deputy Engineers. The court rejected the division of officers into further subcategories, as it would result in illegal discrimination. The court confirmed the principle that the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service must be counted for determining seniority.

4. Validity of Rules 4 and 9 of the 1982 Rules:
The court upheld the Bombay High Court's decision to strike down Rules 4 and 9 of the 1982 Rules, which fixed a rigid quota with retrospective effect. The court found that these rules were arbitrary and discriminatory. The 1984 Rules, which formally deleted Rules 4 and 9, were upheld as legal and valid. The court emphasized that the seniority must be reckoned on the basis of continuous officiation and that the 1982 Rules, except for the arbitrary provisions, merely recognized and gave effect to this position.

5. Applicability of the Principles of Res Judicata to Writ Petitions:
The court held that the principles of res judicata are applicable to writ petitions. A dispute raised by a petition under Article 32 of the Constitution must be held to be barred by principles of res judicata, including the rule of constructive res judicata, if the same has been earlier decided by a competent court by a judgment which became final. The court dismissed Writ Petition No. 1327 of 1982 on the ground of res judicata, as the petitioner was represented in an earlier writ petition dismissed by the Bombay High Court, and the special leave petition from that judgment was also dismissed by the Supreme Court.

Conclusion:
The court dismissed all civil appeals, writ petitions, and special leave petitions, upholding the principle of seniority based on continuous officiation and the inclusion of officiating posts in the cadre of Deputy Engineers. The court validated the 1982 Rules, except for the arbitrary provisions of Rules 4 and 9, and confirmed the applicability of the principles of res judicata to writ petitions.

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