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TMI Blog1984 (5) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Central Government should not have been able to bring these two groups together and evolve a commonly agreed formula acceptable to both sides. We hope that our decision in this writ petition will finally ring the curtain down on this unfortunate controversy and both groups of Executive Engineers will accept the decision ungrudgingly without any rancour or resentment and wholeheartedly engage themselves in the nation building task entrusted to them. There is in the Central Public Works Department of Ministry of Works and Housing, Government of India a Service known as Central Engineering Service (Class I). This Service comprises various grades; the highest grade is that of Engineer-in-Chief and then in descending hierarchical order are the grades of Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Executive Engineer. The Central Government has made rules of recruitment to this Service known as the Central Engineering Service (Class I) Recruitment Rules 1954 (hereinafter referred to as 'Recruitment Rules') and they are issued under SRO 1841 dated 21st May 1954. Part I of the Recruitment Rules contains the definition and Clause (c) of Rule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Engineering Service Class II Recruitment Rules. There are two modes of recruitment laid down in these Rules; one is by direct recruitment through the same competitive examination which is held for selection of Assistant Executive Engineers, the candidates lower down in rank than those selected for the grade of Assistant Executive Engineers being selected for the grade of Assistant Engineers and the other is by process of selection from a subordinate Service called Class III Service. Assistant Engineers belong to Class II service, unlike Assistant Executive Engineers who belong to Class II service but the posts which they hold are interchangeable, each of them being in charge of a sub- division and the nature of work, responsibilities, powers and duties discharged by them all is identical. There is only a minor difference in the pay scales but otherwise for all practical purposes, there is no difference between them so far as their functions powers and duties are concerned. The next higher grade above that of Assistant Executive Engineers is that of Executive Engineers Recruitment to the grade of Executive Engineers is made by promotion from two sources, namely Assistant Execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Assistant Executive Engineers and Assistant Executive Engineers but there was a Memorandum issued by the Home Ministry on 22nd June 1949 which laid down general principles of seniority applicable to all departments. This Memorandum provided that in respect of persons employed in any particular grade, seniority should, as a general rule, be determined on the basis of length of service in that grade as well as service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan. The length of continuous officiation in the grade was thus taken as the yardstick for the purpose of determining seniority in all departments of the government and a fortiorari, in the grade of Executive Engineers. On the basis of this yardstick, Assistant Engineers promoted as officiating Executive Engineers within their quota would clearly be senior to Assistant Executive Engineers promoted later as officiating Executive Engineers. However, Respondent No. 1 to 3 issued a seniority list on 1st July 1971 in which Executive Engineers promoted from the grade of Assistant Engineers in regular manner on the basis of selection made by Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioners and concurring with the stand adopted by respondent Nos. 1 to 3, held that the quota rule applied not at the stage of initial promotion on officiating basis but at the stage of confirmation and rotational formula for the purpose of determining seniority was implicit in the quota rule and on this view, the Full Bench upheld the provisional seniority lists which, as already pointed out above, were on the same lines as the final seniority list dated 1st July 1971 and which fixed seniority in the grade of Executive Engineers according to the rotational formula based on the quota rule. The petitioners in these writ petitions thereupon preferred Civil Appeal Nos. 1745, 1746 1747 of 1974 after obtaining special leave to appeal against the judgment of the Delhi High Court. Some other Executive Engineers promoted from the grade of Assistant Engineers also filed a direct writ petition in this Court being writ petition 489 of 1972, challenging the seniority list of 1st July 1971 on the ground that the seniority worked out by applying the quota rule at the stage of confirmation and adopting the rotational formula was illegal and that the seniority ought to have been fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta case) that the ratio of promotions in the grade of Executive Engineers in any particular year was not dependent upon whether any persons from one class or the other were promoted or not and this was made clear by giving an illustration that if there were three vacancies in a particular year, two would go to Assistant Executive Engineers while one would go to the Assistant Engineers and even if there were no eligible Assistant Executive Engineers who could be promoted to fill in the two vacancies belonging to their quota, one vacancy would have to be filled by promotion of an Assistant Engineer. If in such a case, having regard to the exigencies of the situation two vacancies belonging to the quota of Assistant Executive Engineers had to be filled in by Assistant Engineers for want of availability of eligible Assistant Executive Engineers, the appointment of Assistant Engineers to fill in such two vacancies would be irregular because that would be outside their quota but in that event, observed the Court, they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those three years. These conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and the civil appeals and directed respondent Nos. 1 to 3 to amend and revise the seniority list of Ist July 1971 in the light of the directions given in the judgment and to give effect to the revised seniority list so prepared. Though the aforesaid directions were given by this Court for preparation of a revised seniority list as far back as 11th December 1974 respondents Nos. I to 3 delayed implementation of those directions for a period of over three months and hence the petitioners in writ petition No.489 of 1972 as also petitioner No. 3 in the present writ petition filed CMP No. 2563/75 on 18th April 1975 for taking action against respondent Nos. 1 to 3 for contempt of court. Respondent No. 1 however, instead of complying with the directions given by this Court and purging itself of the contempt alleged to have been committed by it, filed CMP No. 3911 of 1975 dated 18th July 1975 for clarification of the judgment on the ground that they felt some difficulty in implementing the directions issued by the Court. This application for clarification was rejected by the Court on 21st July 1975 on the ground that the principles laid down in the judgment dated 11th December 1974 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their quota were rightly pushed down and adjusted within their quota in subsequent years. Thus, for example, Shri A.K. Subraman, the first petitioner in writ petition No. 489 of 1972, though promoted in officiating capacity as Executive Engineer on 27th December 1956 with the approval of the Departmental Promotion Committee was pushed down, since his promotion was not within the quota of Assistant Engineers at the time when he was promoted and his promotion was regularised on absorption within his lawful quota in a subsequent year. But with effect from 22nd December 1959 a departure was made by respondent Nos. 1 to 3 from the principle of continuous officiation and carry forward principle was applied by providing that 86 posts earmarked for promotion of Assistant Executive Engineers to the grade of Executive Engineers in accordance with their quota during the period prior to 22nd December 1959 which had remained unfilled owing to non- availability of Assistant Executive Engineers upto 22nd December 1959 should be carried forward and 86 Assistant Executive Engineers promoted after 22nd December 1959 should be adjusted against these posts and they should be assigned seniority en bloc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the seniority list dated 1st July 1971 which was quashed at their instance in writ petition no. 489 of 1972. The petitioners in writ petition no. 489 of 1972 therefore filed an additional affidavit on 26th August 1975 pointing out that the seniority list dated 14th August 1975, though purporting to be in compliance with the directions given by this court, was totally in defiance of such directions and respondent Nos. l to 3 should therefore be committed for contempt of this court. It seems that some of the Assistant Executive Engineers promoted as Executive Engineers were also dissatisfied with the seniority list dated 14th August 1975 since it took into account deputation vacancies in the grade of Executive Engineers as regular vacancies for the purpose of application of the quota rule and they also therefore filed their objections to this seniority list. The parties filed their respective affidavits in answer to the objections raised against the seniority list and after the record was completed, the court was invited to decide the entire controversy between the parties on the basis of these objections and affidavits. But before the court could hear the objections against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recruitment roster shall be drawn as under :- (a) When the reservation of the vacancies in the grade of Executive Engineer for Assistant Executive Engineer and Assistant Engineer is 66-2/3% and 33- 1/3% respectively (that is, upto 31.3.1972) 1st Position ) ) Asstt. Executive Engineer 2nd Position ) 3rd Position Assistant Engineer 4th Position ) ) Asstt. Executive Engineer 5th Position ) 6th Position Assistant Engineer and so on. (b) When the reservation of the vacancies in the grade of Executive Engineer for Assistant Executive Engineers, and Assistant Engineers, is 50% each (i.e. from 1.4.1972 and for a period of 7 years.) 1st Position Asstt. Executive Engineers 2nd Position Asstt. Engineer 3rd Position Asstt. Executive Engineer 4th Position Asstt. Engineer and so on. The petitioners thereupon filed the present writ petition contending that the Rules of 1976 were not applicable to the petitioners and other Assistant Engineers promoted as Executive Engineers regularly within their quota prior to 10th December 1974 and if these Rules were held to be applicable then they were unconstitutional and void. The petitioners, in the circumstances, prayed in the writ petition that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of length of continuous officiation in the grade of Executive Engineers. (C) If the Rules of 1976 are applicable for determining inter se seniority of Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers within their respective quotas from and after 22nd December 1959, they are unconstitutional and void as offending Articles 14 and 16 of the Constitution, since the seniority rules enunciated in the Rules of 1976 being closely linked with the quota rule continued massive departure from the quota rule over a long period of time must result in the break down of the seniority rules and to apply the seniority rules in such a situation would create gross inequality of opportunity of employment violative of Articles 14 and 16. These were the broad grounds of challenge urged on behalf of the petitioners and we shall now proceed to deal with them in the order in which we have set them out. RE: GROUND (A). This ground is based on the decision rendered by this Court in writ Petition No. 489 of 1972 and Civil Appeals Nos. 1745 to 1747 of 1974. It is necessary in order to appreciate this ground to know who were the parties in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within their quota after 22nd December 1959 and in C.A. Nos. 1745- 47 of 1974 preferred by them, they claimed seniority over the contesting respondents who were Assistant Executive Engineers promoted later in point of time. This claim of the appellants was disputed on behalf of the contesting respondents who submitted that they had been rightly given seniority over the appellants by adopting the rotational formula. This controversy as to seniority between two groups of Executive Engineers, on the one hand, the petitioners and the appellants, a large number of whom were promoted within their quota subsequent to 22nd December 1959 and on the other, the contesting respondents of whom also a sizeable number were promoted as Executive Engineers after 22nd December 1959, was resolved by this Court by its decision dated 11th December 1974 and it was held that the quota rule has to be applied at the time of initial recruitment in officiating capacities to the grade of Executive Engineers and if any Assistant Engineers are promoted Executive Engineers in excess of their quota in a particular year, they would have to be pushed down to later years for absorption when due within their quota an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Executive Engineers should be determined on the basis of length of continuous officiation in service after regular appointment within their respective quota irrespective of whether such regular promotion within the respective quota was before or after 22nd December 1959. But the revised seniority list dated 14th August 1975 issued by the Government of India was plainly in defiance of this direction given by the Court and what the Government of India did was to adjust the first 86 Assistant Executive Engineers promoted after 22nd December 1959 against 86 carried forward posts and to give them seniority enable over all Assistant Engineers promoted as Executive Engineers regularly within their quota subsequent to 22nd December 1959 and then to apply the rotational formula in regard to the other vacancies subsequent to 22nd December 1959. The result was that most of the Assistant Engineers promoted as Executive Engineers lost a large number of places in seniority and were reduced to a position much worse than that in which they were under the earlier seniority list of 1st July 1971. The success which the petitioners and the appellants had achieved in writ petition No. 489 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to override the effect of the decision in A.K. Subraman's case (supra) but on the contrary affirmed that the principles of seniority set out in those rules were laid down on the basis of the decision in A.K. Subraman's case (supra). The Rules of 1976 were in no way intended to set at naught the decision in A.K. Subraman's case (supra) in so far as it laid down the rule of seniority based on length of continuous officiation for Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers, but it was claimed that they were made with a view to giving effect to the direction contained in that decision. That is the reason why we do not find any non- obstante clause giving overriding effect to the rules of seniority enunciated in the Rules of 1976 notwithstanding the decision in A.K. Subraman's case (supra). Since the Rules of 1976 purport merely to carry out the direction given in the decision in A.K. Subraman's case (supra) they cannot have the effect of overriding that decision and absolving the Government of India from the obligation to implement this direction and the Government of India must therefore amend and revise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve legislation, a judicial decision rendered by a Court on the basis of such factual or legal situation prior to the alteration would straight away without more, cease to be effective and binding on the parties. It is true that there are certain observations in this decision which seem to suggest that a court decision may cease to be binding when the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. But these observations have to be read in the light of the he question which arose for consideration in that case. There, the validity of the Gujarat imposition of Taxes by Municipalities (Validation) Act, 1963 was assailed on behalf of the petitioners. The Validation Act had to be enacted because it was held by this Court in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad that since section 73 of the Bombay Municipality Boroughs Act, 1925 allowed the Municipality to levy a 'rate' on buildings or lands and the term 'rate' was confined to an imposition on the basis of annualetting value, tax levied by the Municipality on lands and buildings on the basis of capital value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondents. Here the decision in A.K. Subraman's case (supra) which is relied upon by the petitioners is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointing out by that judgement and validate such impost or tax. But it is a decision giving effect to the right of the Executive Engineers promoted from the grade of Assistant Engineers to have their inter se seniority with Executive Engineers promoted from the grade of Assistant Executive Engineers determined on the basis of rule of length of continuous officiation by issue of a writ directing the Government of India to amend and revise the seniority list in accordance with such rule of seniority: Rules 2(iii) and 2(iv) seek to substitute with retrospective effect a totally different rule of seniority in place of that recognised and given effect by the decision in A.K Subraman's case (supra). That obviously cannot be done. Rules 2(iii) and 2(iv) cannot by retrospective alteration of the rule of seniority nullify the decision in A.K. Subraman's case which has recognised and given effect to an existing rule of seniority and issued a writ a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter-se seniority between the direct recruits and the promotees to be fixed thereafter ? There was no specific seniority rule to determine inter-se seniority between the direct recruits and the promotees appointed regularly within their respective quota from and after 16th January, 1959 and though, in the absence of any specific seniority rule, the Court could have applied the residuary rule based on length of continuous officiation, the Court did not do so because it felt that since the old seniority rule had ceased to operate by reason of the Infringement if the quota rule, it would be for the Government to devise a Just and fair seniority rule as between the direct recruits and the promotees for being given effect to from 16th January, 1959. It was pursuant to this direction given by the Court that the rotational rule of seniority impugned in the 2nd Bishan Sarup Gupta case was made the Government and this seniority rule did not seek to undo the effect of that decision. Now, in the present case also, by reason of clause 3 of the Memorandum dated 22nd December, 1959, the rule of seniority based on length of continuous officiation enunciated in the Memorandum dated 22nd June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngineers from and after 22nd December, 1959 but itself laid down that such inter se seniority shall be determined on the application of the rule of seniority based on length of continuous officiation. This constituted a vital difference between the lst Bishan Swarup Gupta case and the present case and the Government was not entitled, as in the case of Bishan Swarup Gupta and other Income-Tax officers, to evolve a new rule of seniority different from that recognised and given effect to by the Court in A.K Subraman's decision for determining seniority amongst Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers regularly with in their respective quota from and after 22nd December, 1959. To permit the Government to do so would be in plain defiance of the direction given by the Court in A.K Subraman's case. The petitioners relied strongly on paragraph 5 (ii) of the Memorandum dated 22nd December, 1959 and contended that the seniority rule laid down in this Paragraph governed the determination of seniority amongst Executive Engineers promoted from the Grades of Assistant Engineers and Assistant Executive Engineers from and after 22nd December, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moted as officiating Executive Engineers within the their quota after that date, the learned counsel appearing on behalf of the petitioners did not contend that Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 was applicable to determine inter-se seniority amongst such of the petitioners and respondents as were promoted after 22nd December, 1959 and agreed with the concession made on behalf of respondents Nos. I and 2 that the Memorandum dated 22nd December 1959 was irrelevant and likewise no discordant note was struck also by the learned counsel appearing on behalf of the respondent Assistant Executive Engineers and it was not contended on their behalf that so far as the petitioners and the respondent Assistant Executive Engineers promoted regularly within their lawful quota subsequent to 22nd December, 1959 were concerned, their seniority was governed by Paragraph 5(ii) or any other paragraph of the Memorandum dated 22nd December, 1959. Therefore, it was the common case of all the parties including the Assistant Engineers and the Assistant Executive Engineers and the Assistant Executive Engineers promoted as Executive Engineers that neither the rule of seniority set ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made as also the grades of promotion are all grades within the same service, but where one of the grades from which promotions are made belongs to a lower service than the grade of promotion and the promotion is therefore from a lower service to a higher service, the rule of seniority set out in this provision could have no application. Respondents Nos. 4 to 190 in the circumstances submitted that since the grade of Assistant Engineers was in Class II Service while the grade of Executive Engineers was in Class I Service, the rule of seniority laid down in this provision was not applicable for determining seniority in the grade of Executive Engineers. We do not think this argument advanced on behalf of respondents Nos. 4 to 190 is well-founded. The postulate for the applicability of the rule of seniority set out in this provision simply reads: Where promotions to a Grade are made from more than one Grade and it does not introduce any requirement that the grades from which the promotions are made should belong to the same service as the garde of promotion. It is no doubt true that the illustration given in the Explanatory Note refers to promotions from the grades of Upper Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on promotion to the grade of Executive Engineers, Now, there was some controversy between the parties whether in the case of promotions to the grade of Executive Engineers, there was one single Departmental Promotion Committee for selecting person from the grades of Assistant Engineers and Assistant Executive Engineers or there were separate Departmental Promotion Committees-one for selection from the grade of Assistant Engineers and the other for selection from the grade of Assistant Executive Engineers. Respondents Nos. 1 and 2 in the counter affidavit filed by S.R. Roy Choudhury asserted that in case of selection from the grade of Assistant Engineers, the Union Public Service Commission was associated with the Departmental Promotion Committee while in case of selection from the grade of Assistant Executive Engineers, the Union Public Service Commission was not so associated and a combined grouping of the persons sought to be promoted from the two groups was, therefore, not possible. The first petitioner however, in the rejoinder affidavit filed by him on behalf of the petitioners disputed the correctness of this avernment made on behalf of respondents Nos. 1 and 2 and submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive Engineers by the Superintending Engineers, while in the case of Assistant Executive Engineers, their confidential reports for the preceding three years would be written in respect of their performance as Assistant Executive Engineers by the Executive Engineers. Thus at the point of time when in any particular year, the officers of the two streams meet for their seniority in the grade of Executive Engineers, their confidential reports would not be by the same officers or even by officers of equivalent rank and it would be almost impossible to arrive at a comparative assessment of their respective merits for the purpose of working out the seniority rule in Paragraph 5(ii) of the Memorandum dated 22nd December, 1959. Moreover, in fact this seniority rule was never regarded as applicable in case of promotions to the grade of Executive Engineers and the procedure set out there was not followed at any time while making promotions from the grades of Assistant Executive Engineers and Assistant Engineers to the grad of Executive Engineers. It is, therefore, clear that the seniority rule set out in Paragraph 5(ii) of Memorandum dated 22nd December, 1959 could not be invoked for deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. This paragraph on its plain terms laid down a rule for determining the relative seniority of direct recruits and promotees in a grade to which appointments were required to be made by direct recruitment and promotion according to a certain fixed quota. This rule of seniority obviously could have no application for determining inter se seniority in the grade of Executive Engineers, since both Assistant Engineers and Assistant Executive Engineers were inducted in the grade of Executive Engineers by promotion and Assistant Executive Engineers appointed in the grade of Executive Engineers did not bear the character of direct recruits. It is, of course, true that Assistant Executive Engineers were initially taken up as direct recruits in the grade of Assistant Executive Engineers in fact that was only method of entry into the grade of Assistant Executive Engineers-but when they entered the grade of Executive Engineers, they did so by way of promotion just like the Assistant Engineers. There was, therefore, in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same cadre, discharge similar, functions and bear similar responsibilities. The inter se seniority of Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers regularly within their respective quota from and after 22nd December, 1959 was, therefore, determinable on the basis of length of continuous officiation in the grade of Executive Engineers and the Court was, in the circumstances, justified in A.K. Subraman's case in holding in paragraph 1 of the summary of its conclusions that when Assistant Engineers (Class II) are initially appointed in a regular manner in accordance with the rules to officiate as Executive Engineer, their seniority in service in Grade I will count from the date of their initial officiating appointment as Executive Engineers was within their quota. It is undoubtedly true that in reaching this conclusion the Court proceeded on the assumption that 'the Memorandum dated 22nd June 1949 was clearly applicable and equally it must be conceded that this assumption was erroneous in so far as inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted from and after 22nd Decembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of length of continuous officiation in the grade of Executive Engineers, subject of course to the length of continuous officiation in the case of Assistant Engineers being computed from the date of their confirmation as Assistant Engineers. Before we proceed to consider grounds B and C it would be conventions at this stage to deal with some of the contentions advanced by respondent Nos. 4 to 190 on behalf of the Assistant Executive Engineers promoted as Executive Engineers against the validity of the seniority list dated 14th August 1975 in so far as certain aspects of that seniority list are concerned. Though the seniority list dated 14th August, 1975 was substantially in favour of Assistant Executive Engineers promoted as Executive Engineers, they were not wholly satisfied with it and they attacked it in three respects. They urged that respondent Nos. 1 to 3 had egregiously erred in formulating the seniority list dated 14th August, 1975 in as much as (1) respondents Nos. 1 to 3 had treated vacancies arising on account of deputation of Executive Engineers to other organisation or departments as vacancies to be filled up in accordance with the quota and so also where an A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts. There might be more than one vacancy in a post in the course of a year or any other unit of time and it was with reference to each such vacancy that the quota rule had to be applied. Now a vacancy may arise in a post on account of death, retirement or resignation of the incumbent of the post or it may arise on account of his dismissal, discharge a reversion from the post or promotion to a higher post or by reason of his deputation to another department or organisation. Whenever, therefore, a vacancy arises in a post, whatever be the reason by which the vacancy is caused, it would have to be filled up by promotion of an Assistant Engineer or an Assistant Executive Engineer and the quota rule would apply so long as the vacancy is a permanent vacancy, that is to say, in the words of Palekar J. in the 1st Bishan Sarup Gupta's case, a vacancy which is not for a few days or a few months or otherwise adventitious . We have in these words of Palekar, J., adopted wholly and completely in A.K. Subraman's case, a negative definition of what may be regarded as a permanent vacancy for the purpose of application of the quota rule and it clearly shows that a vacancy which is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire Central Engineering Service, Class I. The sanctioned strength of the cadre of Executive Engineers in the Central Engineering Service, Class I, may include not only posts of Executive Engineers in the Central Public Works Department but also posts of Executive Engineers in other departments and organisations. Now, so far as the Central Engineering Service, Class I, is concerned, the deputation of officers in various grades including the grade of Executive Engineers is a normal feature of the Service. The Central Public Works Department is an agency of the Central Government operating throughout Country for construction, maintenance and repair of all works and buildings financed from Civil Works Budget except for certain departments which had their own engineering units or which may get their Civil works executed through private agencies. The officers borne on the cadres of Chief Engineers, Superintending Engineers and Executive Engineers in the Central Engineering Service, Class I, are therefore sent on deputation to various departments and organisations and some of them are also on deputation with the Government of Bhutan, Delhi Municipal Corporation, New Delhi Municip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia as far back as 19th October 1971 long before the present controversy arose between the parties and even prior to the decisions in Bishan Sarup Gupta's cases and A.K. Subraman's case. We find that this view was reaffirmed by the Government of India in the Office Memorandum dated 30th December. 1976 issued by the Department of Personnel and Administrative Reforms, Cabinet Secretariat where it has been stated as follows under the heading Determination of Regular Vacancies :- It is essential that the number of vacancies in respect of which a panel is to be prepared by a D.P.C. should be estimated as accurately as possible. For this purpose the vacancies to be taken into account should be the clear vacancies arising in post/ grade/service due to death, retirement, resignation, regular long term promotion, of incumbents of one post/grade to higher post/ grade and vacancies arising from creation of additional posts on a long term basis and these arising out of deputation. As regards vacancies arising out of deputation it is clarified that for the purpose of drawing up a select list for promotion, vacancies arising out of deputation for periods more than one year should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by the Central Engineering Service (and Central Electrical Engineering Service) Recruitment Rules promulgated on 25.8.1949. Hence the vacancies had to be identified right from this date. Vacancies in the grade of Executive Engineers had occurred not only due to death, retirement, resignation etc. in the grade but also because of promotion (to higher grade) dismissal from this or higher grades, reversion to lower grades and deputation to other organisations like the Delhi Development Authority, undertaking, he retains his lien on the post in the parent department and he has a right to come back to that post which he can exercise at any time and hence the vacancy caused by his deputation cannot be regarded as a permanent vacancy liable to be filled by regular recruitment to the cadre of Executive Engineers. It was urged that so long as an Executive Engineer who has gone on deputation retains his lien on the post in the parent department, that post cannot be filled by promotion of another Assistant Engineer or Assistant Executive Engineer by way of substantive recruitment to the cadre of Executive Engineers, because two officers cannot hold a lien on the same post simultane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quota rule. Even where a confirmed Executive Engineer is promoted to the post of Superintending Engineer but continuous to have his lien on the post of Executive Engineer, a vacancy would undoubtedly arise in the post of Executive Engineer by reason of his promotion and such vacancy would clearly be a permanent vacancy liable to be filled according to the quota rule. So also a vacancy attracting the applicability of the quota rule would arise where an Assistant Engineer or Assistant Executive Engineer regularly promoted within his lawful quota dies or retires before confirmation. The occurrence of a vacancy in the post of Executive Engineer inviting the application of the quota rule has, therefore, nothing to do with the extinguishment of lien on the post. The argument of respondents Nos. 4 to 190 proceeds on the assumption that promotion to the post of Executive Engineer contemplated under the recruitment rules can be made only when there is no lien of any other officer on that post, for otherwise there will be two officers having lien on the same post. But this assumption is wholly fallacious, because promotion according to the quota rule envisaged in the Recruitment Rules is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry in a situation, where, as mentioned above, 20 to 25 per cent of Executive Engineers are on deputation. But then it was contended on behalf of respondents Nos. 4 to 190 that even if a vacancy arising by reason of an Executive Engineer going on deputation were regarded as a permanent vacancy attracting the applicability of the quota rule, the position would be different where an Assistant Engineer or Assistant Executive Engineer was promoted for being posted as Executive Engineer in a deputation post. To such a promotion, it was urged, the quota rule would not apply, because the promotion in such a case would not be to fill a post in the sanctioned strength of the cadre of Executive Engineers but would be to fill a deputation post of Executive Engineer in another department, organisation or public sector undertaking. This argument, plausible though it may seem at first sight, is in our opinion not sustainable. When a department, organisation or public sector undertaking requests the Central Public Works Department to make available the services of an Executive Engineer on deputation, The Central Public Works Department has two options available to it: either to send an Executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Engineering Service Class I so as to attract the applicability of the quota rule. But when an Assistant Engineer or Assistant Executive Engineer is promoted as Executive Engineer in his own department and simultaneously with such promotion, he is sent on deputation to another department, organisation or public sector undertaking, he goes on such deputation as Executive Engineer, so that if for any reason his deputation comes to an end, he reverts to his own department as Executive Engineer and not as Assistant Engineer or Assistant Executive Engineer. The petitioner filed before us several orders of promotion of Assistant Engineers as Executive Engineers for being sent on deputation to other departments or organisations and these orders clearly showed that the Assistant Engineers in respect of whom these orders were passed, were promoted as Executive Engineers and then, simultaneously, under the same orders, sent on deputation to other departments or organisations. Obviously, in cases of this kind, the promotion of the Assistant Engineer or Assistant Executive Engineer would be to a post in the cadre of Executive Engineers and it would be subject to the quota rule. The pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an Assistant Engineer would continue to belong to the quota of Assistant Executive Engineers and it can be filled only by an Assistant Executive Engineer if the quota rule is to be strictly observed. The death or retirement of an irregular promotee to the vacancy cannot therefore give rise to a fresh vacancy: it is the same vacancy which continues until properly filled by promotion of an Assistant Executive Engineer at a subsequent date. If in such a case the death or retirement of an irregularly appointed Assistant Engineer were to be treated as creating a fresh vacancy, if would lead to gross distortion. Let us take a hypothetical case where in a particular year say 1956, there are 12 vacancies in the posts of Executive Engineers out of which 8 vacancies belong to the quota of Assistant Executive Engineer and 4 vacancies belong to the quota of Assistant Engineer but only 2 Assistant Executive Engineers are available with the result that 6 Assistant Engineers are irregularly appointed to fill the remaining 6 vacancies allocable to the Assistant Executive Engineers. Now suppose in the next year 1957 there are no new allocable vacancies but 6 Assistant Engineers irregularly appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed within their quota in a particular year, are treated as absorbed from 1st January of that year and placed en bloc senior to the Assistant Executive Engineers promoted tn that year within their quota. There can be no doubt that respondent Nos. 1 to 3 were not entitled to determine seniority on this basis. This Assistant Engineer promoted in excess of their quota and therefore pushed down for absorption within their quota in a subsequent year could be absorbed only in a vacancy arising in that year and allocable to the quota of Assistant Engineers. Re: Ground B This ground of challenge is clearly unsustainable and must be rejected. It is true that the Rules of 1976 have been brought into force with effect from 10th December, 1974 but in rules 2(iii) and 2 (iv) they lay down a rule of seniority affecting Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers regularly within their respective quota from and after 22nd December, 1959. It is therefore not possible to say as a matter of plain grammatical construction that the Rules of 1976 cannot affect the petitioners and other Assistant Engineers promoted regularly within there quota prior to 10th D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenge of Article 14 and 16 or they wold be liable to be condemned as constitutionally invalid. We may first consider the constitutional validity of Rules 2(iii) and 2(iv) of the rules of 1976 in so far as they affect the inter se seniority of Assistant Engineers and Assistant Executive Engineers promoted regularly within their respective quota from and after 22nd December, 1959. Now the position which obtained on 22nd December 1959 was that there were 86 Assistant Engineers who had been promoted in excess of their quota and correspondingly there was short-fall of 86 in promotions of Assistant Executive Engineers. We are not sure whether in the light of what we have said above, the excess in promotions of Assistant Engineers and the deficiency in promotions of Assistant Executive Engineers would stand reduced, but that would not make any difference so far as the present question is concerned and we shall therefore proceed on the footing that the excess in promotions of Assistant Engineers and the short-fall in promotions of Assistant Executive Engineers was 86. The question is whether, consistently with the constitutional requirement of Articles 14 and 16, en bloc seniority could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a promotee from another source remains available for being filled by a promotee from the source to which the vacancy belongs and in that sense, it may loosely be said that the vacancy is carried forward from the year in which it arose to a subsequent year in which it is properly filled by a promotee from the right source. This is precisely what Ray, C.J. speaking on behalf of the Court in V. S. Badami v. State of Mysore said at page 823 of the Report: ........ if promotions are made to vacancies in excess of the promotional quota, the promotions may not be total illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If promotees occupy any vacancies which are within the quota of direct recruits when direct recruitment takes place the direct recruit will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case. We must therefore hold that Respondent Nos. 1 to 3 were right in proceeding on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14th August 1975 along with other particulars relating to the Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers. The Assistant Executive Engineers promoted to these 86 'carried forward' vacancies figure in the seniority list dated 14th August 1975 at Sr. Nos 100 to 185 and the particulars given in regard to them in the chart Ex. I show that though the Assistant Executive Engineers at Sr. Nos. 122 to 185 were promoted as Executive Engineers after 1962, they were placed higher in seniority than petitioner No. 1 who was as Assistant Engineer promoted as Executive Engineer and absorbed within his legitimate quota in 1962 and so also the Assistant Executive Engineers at Sr. Nos. 173 to 185 though promoted after 1966 were given seniority above petitioner No. 2 who was an Assistant Engineer promoted as Executive Engineer and absorbed within his lawful quota in 1966, Rule 2(iii) in so far as it gives en bloc seniority to the Assistant Executive Engineers promoted to these 86 vacancies irrespective of the date when they were actually promoted and pushes down in seniority Assistant Engineers though promoted regularly within their quota prior to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule governing recruitment to a cadre from different sources it is not necessary that there should be any particular rule of seniority. The Government may in its wisdom adopt an appropriate rule of seniority which may be based on length of continuous officiation or may follow a roster arranged in conformity with the quota rule so that seniority may be determined according to the rotation of vacancies under the quota rule. There may also be any other appropriate rule for determining seniority in a cadre. Indeed, as pointed out by Krishna Iyer, J. in N.K. Chauhan's case, myriad ways can be conceived for determining seniority of officers on entry into a cadre. But whatever may be the rule of seniority adopted by the Government, it is well settled that it must satisfy the best of equality enshrined in Articles 14 and 16 of the Constitution. The question in each case would be whether on the facts and circumstances of the case, the rule of seniority prescribed by the Government meets the challenge of the constitutional provision enacted in Articles 14 and 16. We have already pointed out that there is no inherent vice in the quota rule being operated through the rotational rule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the record shows that there has been enormous deviation from the quota rule in the promotions of Assistant Executive Engineers and such deviation has continued from year to year over a period of almost 25 years. We have in an earlier part of this judgment adverted to the fact that as on 22nd December, 1959 there was a short fall in the promotions of Assistant Executive Engineers to the extent of 86, because the quota rule had not been properly implemented from 1953 up to 22nd December, 1959 and promotions of Assistant Executive Engineers had not been effected according to the quota applicable to them. It is interesting to note that even after 22nd December, 1959, the quota was consistently breached from year to year except for four or five years and there was massive under recruitment of Assistant Executive Engineers with the result that as on 31st July, 1975, the cumulative shortfall in promotions of Assistant Executive Engineers was 206 while there was corresponding excess in promotions of Assistant Engineers to the extent of the same number. Though there was such large deficiency in promotions of Assistant Executive Engineers and corresponding excess in promotions of Asstt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted into the vacancies kept reserved for them and artificial seniority would be given to them on the fictional hypothesis that such vacancies were filled by them at the time when they arose. The result would be that Assistant Executive Engineers who were promoted years after the regularisation of the promotions of Assistant Engineers by absorption within their quota which regularisation also would have taken place after they had been working as Executive Engineers for a period of about 7 to 12 years would become senior to such Assistant Engineers even though at the time when they were promoted, such Assistant Engineers would have already been functioning as Executive Engineers for a number of years. The Assistant Executive Engineers promoted later in point of time would shoot up in seniority irrespective of the length of their service in the grade of Executive Engineers, by reason of the rotational rule of seniority based on the roster maintained in accordance with the quota rule. It is obvious that giving such artificial seniority to Assistant Executive Engineers promoted years after the regular promotions of Assistant Engineers would completely blight the promotional opportuniti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive Engineer within his quota since 1966, he was placed at serial No. 396 in the seniority list dated 14th August, 1975 while R.A. Armugam who was recruited for the first time as Assistant Executive Engineer on 20th January 1971 and promoted as Executive Engineer only on 14th April, 1975 was placed higher in seniority at serial No. 260. Thus, the result of the application of the rotational rule of seniority was that R.A. Armugam who was not even in service at the date when petitioner No. 2 became a regularly promoted Executive Engineer and who was promoted as Executive Engineer 9 years after petitioner No. 2, acquired several places above petitioner No. 2 in seniority. It is not necessary for us to multiply instances where Assistant Executive Engineers promoted years after the regular promotion of Assistant Engineers have shot up in seniority above such Assistant Engineers by reason of the applicability of the rotational rule of seniority, with devastating effect on the promotional chances of such Assistant Engineers. Such instances are legion and, in fact, almost every Assistant Engineer has in the process suffered loss of seniority vis-a-vis Assistant Executive Engineers prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult is that, as at the end of 1981, out of 101 Superintending Engineers 93 were from the source of Assistant Executive Engineers and so far as the higher cadre of Chief Engineers is concerned, all the 19th Chief Engineers were from the same source, namely, Assistant Executive Engineers, though in the grade of Executive Engineers, out of a total of 384 Executive Engineers, 103 only were from the source of Assistant Executive Engineers while 281 were from the source of Assistant Engineers. These statistics clearly highlight how discriminatory and unjust has been the application of the rotational rule of seniority to the Assistant Engineers. It was contended on behalf of respondent Nos. 4 to 190 that the under recruitment of Assistant Executive Engineers during the period from 1949 to 31st July, 1975 was due to the fact that the Government took the view, which of course was found erroneous by the court in A.K. Subraman's case that the quota rule was to be applied only at the stage of confirmation and it was because a different view was taken in A.K. Subraman's case, namely, that the quota rule was applicable at the stage of initial promotion in an officiating capacity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated earlier, it has not been possible to apply this quota rule rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineers have been in excess of their quota. (Emphasis supplied). It will thus be seen that the government was under no illusion in regard to the true position relating to the applicability of the quota rule. But the government deliberately resorted to the policy of under- recruitment of Assistant Executive Engineers because, as set out in the Note regarding Cadre Review of the Central Engineers Service Class I, prepared and submitted to the Government in June, 1978, it was felt that it is not possible to recruit enough officers in Class I junior scale to fill up the quota at Executive Engineers level as it would worsen the promotion prospects of direct recruits to class I and make the service totally unattractive . The Note regarding Cadre Review also pointed out: A perusal of form VI would indicate that in the next five years the annual recruitment would be of the order of 80 and in the subsequent five years it would be of the order of 40. According to the existing Rules, the vacancies in the grade of Executive Engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be reckoned from the date when their promotion is regularised by absorption within their lawful quota. We would therefore allow the writ petition and quash and set aside the Memorandum and the seniority list dated 14th August 1975 and the Rules of 1976. We would direct the government to prepare a new seniority list of Executive Engineers in the light of the observations contained in this judgment. The Government will prepare such seniority list within a period of two months from today. When the seniority in the grade of Executive Engineers is rearranged in accordance with the directions given in the judgment, the cases of Assistant Engineers who would have been due for consideration for promotion as Superintending Engineers and thereafter as Chief Engineers on the basis of their revised seniority, will be considered by a duly constituted Departmental Promotion Committee as on the dates on which they would have been due for such consideration if the correct seniority had been given to them, and if on the basis of their performance and record as on those dates they would have been selected for promotion, they must be given promotion with retrospective effect from such dates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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