1979 (5) TMI 159 - SC - Indian Laws

Summary

Issues Involved:
1. Scope of the writ petitions.
2. Validity of the appointment of direct recruits.
3. Nature of the tenure held by promotees prior to the enforcement of Recruitment Rules.
4. Seniority determination based on substantive appointments and confirmation dates.
5. Effect of regularization on the tenure of promotees.
6. Applicability of the quota rule and its impact on seniority.

Issue-wise Detailed Analysis:

1. Scope of the Writ Petitions:
The first contention addressed was whether the scope of the writ petitions was limited to challenging the promotion of Assistant Engineers to Executive Engineers. The argument presented by Mr. F.S. Nariman was that the writ petitions did not explicitly challenge the seniority list dated 4th September 1973. However, the court found that the promotees' case inherently included an attack on the seniority list, as their primary contention was that their substantive promotions predated the direct recruits, thereby affecting their seniority and subsequent promotions.

2. Validity of the Appointment of Direct Recruits:
The court noted that no exception could be taken to the High Court's finding that the appointment of direct recruits as Assistant Engineers was valid. This was in line with the judgment in B.N. Nagarajan v. State of Mysore, which held that the appointments were valid as the recruitment process had been initiated before the promulgation of the Recruitment Rules.

3. Nature of the Tenure Held by Promotees:
The court examined whether the promotees held substantive appointments prior to the enforcement of the Recruitment Rules. The first promotion order dated 15th November 1958 indicated that the promotees were appointed as officiating or temporary Assistant Engineers, not substantively. Subsequent orders up to 31st October 1961 did not change this status. The court rejected the promotees' argument that their appointments were substantively regularized from 1st November 1956, noting that "regularization" does not equate to permanence and cannot override rules framed under Article 309 of the Constitution.

4. Seniority Determination:
The court emphasized the relevance of Rule 2 of the Seniority Rules, which states that officers appointed substantively in clear vacancies are senior to those appointed on an officiating or temporary basis. Since the direct recruits were appointed substantively in clear vacancies, they were deemed senior to the promotees, who held non-substantive appointments.

5. Effect of Regularization:
The court clarified that "regularization" does not imply permanence and is intended to cure procedural irregularities. It cannot confer a substantive status retroactively, especially when rules under Article 309 are in force. The regularization order could not affect the seniority of direct recruits, who were appointed in clear vacancies.

6. Applicability of the Quota Rule:
The court noted that the quota rule, as amended on 23rd October 1961, would not affect the initial filling of the cadre of Assistant Engineers. The amendment allowed for the utilization of vacancies without adhering to the specified percentages for direct recruitment and promotion. The court directed that all questions of seniority should be decided in accordance with the Seniority Rules.

Conclusion:
The appeals were accepted, and the judgment of the High Court was set aside. The court decided that:
- Promotees held non-substantive appointments and were junior to direct recruits.
- The quota rule would not hinder the filling of vacancies as per the amended Recruitment Rules.
- Seniority would be determined based on substantive appointments and confirmation dates, in line with the Seniority Rules.