Full Judgment Text
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PETITIONER:
M.P. JUNIOR ENGINEERS’ ASSOCIATION ANDSANGARSH SAMITY & ORS.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH & ANR.
DATE OF JUDGMENT16/02/1990
BENCH:
RANGNATHAN, S.
BENCH:
RANGNATHAN, S.
RAMASWAMI, V. (J) II
CITATION:
1990 AIR 2010 1990 SCR (1) 424
1990 SCC Supl. 229 JT 1990 (1) 374
1990 SCALE (1)219
ACT:
Madhya Pradesh Irrigation Department (Non Gazetted)
Service Recruitment Rules, 1969: Rule 7(4)--State Government
competent to promote members of Non-Gazetted Service to
Gazetted Service--Cadre of J. E. ’s abolished--Promotional
chances not to be affected.
HEADNOTE:
In August 1982 the Government of Madhya Pradesh decided
to abolish the Madhya Pradesh Lift Irrigation Corporation.
It was also decided to merge the surplus staff of the Corpo-
ration in the equivalent posts of the Irrigation Department
of the State Government. Accordingly, with effect from
8.10.1982 the appellants, who were serving as Senior Techni-
cal Assistants (S.T.As.) in the Corporation, became Junior
Engineers in the Irrigation Department but their seniority
therein was fixed below the erstwhile Junior Engineers of
the State Department. For this purpose, an equivalent number
of posts were deemed to have been created in the dying cadre
of Junior Engineers. Similarly, the Junior Technical Assist-
ants in the Corporation were absorbed in the lower cadre of
Sub-Engineers.
The Junior Engineers of the State Department on comple-
tion of two years’ service as Junior Engineers, were enti-
tled to be considered for promotion to the gazetted post of
Assistant Engineers. Sometime in 1984, the appellants who
were at the bottom of the seniority list of Junior Engineers
became eligible for promotion as Assistant Engineers. Their
legitimate claims in this regard were being stalled by the
State, and so the appellants filed a writ petition in the
High Court of Madhya Pradesh in 1986.
Later, the whole scheme of merger, as envisaged in the
order dated 8.10.1982, was sought to be upset to the detri-
ment of the appellants, and towards that end the order
issued on 8.10. 1982 was amended on 1.3.1986. The effect of
this amendment was that the Senior Technical Assistants were
to be absorbed in the lower posts of Sub-Engineers retro-
spectively with effect from 8.10.82. The amendment however,
provided that they shall be eligible for promotion to the
posts of Assistant
425
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Engineers from the quota of Graduate Sub-Engineers. This
amendment vitally affected the interests of the appellants
in so far as their status and chances of promotion were
concerned.
Having failed before the High Court, the appellants have
come to this Court by way of special leave.
Before this Court it was contended on behalf of the
appellants that they having been given the right at the time
of absorption in 1982 that they will be eligible for promo-
tion in the same way as the erstwhile Junior Engineers of
the State Department, this right could not be done away by
invoking an earlier amendment of the rules.
On behalf of the respondent State it was inter alia
contended that (1) the decision of the State Government to
absorb the appellants as Junior Engineers had overlooked the
fact that on 8.10.1982 there was no cadre of Junior Engi-
neers because that cadre had been abolished in July 1979,
and therefore this mistake was rectified on 1.3.1986 by
absorbing the appellants in the lower cadre of Sub-Engi-
neers;.(2) the appellants when they opted to join as Junior
Engineers were aware that according to the rules prevailing
on that date there was no avenue of promotion for them as
Assistant Engineers; (3) after 27.7.81 the relevant recruit-
ment rules had been amended which made it clear that after
that date there could be no promotion to the posts of As-
sistant Engineers from amongst Junior Engineers; and (4) the
Junior Engineers belonging to the State Service had a right
of promotion earlier and this was continued even after the
amendment whereas the appellants became Junior Engineers at
a time when there was no further promotion available to them
and this made all the difference.
Allowing the appeal, this Court,
HELD: (1) The assumption of the respondents that the
cadre of Junior Engineers had ceased to exist long before
the absorption of the appellants into the Department is
incorrect. Though the decision to abolish the cadre was
taken in 1979 and the existing posts were converted into
those of Assistant Engineers/sub Engineers on 27.5.1980, the
cadre did not die, for the Junior Engineers of the Depart-
ment who were then functioning continued to function as
before until they were promoted in due course as Assistant
Engineers. [438E-F]
(2) It is also not correct to say that this crucial fact
had been overlooked at the time of passing the merger order
of 8.10.82. On the
426
contrary, the State was fully conscious of its earlier
decision and the order of 8.10.82 specifically mentions that
the posts of Senior Technical Assistants will be merged in
the posts of Junior Engineers and an equivalent number of
posts shall be deemed to have been created in the dying
cadre of Junior Engineers. [438F-G]
(3) Rule 6(iv) of the Non-Gazetted Service Rules, read
with Schedule I, clearly empowered the Government, in the
exigencies of the situation, to continue the cadre for
limited purposes and augment the same by the number of
Senior Technical Assistants absorbed from the Corporation.
[439H; 440A]
(4) On the terms of the relevant rules as on the lan-
guage of the order of 8.10.1982, the appellants, viz. Senior
Technical Assistants absorbed from the Corporation were
constituted as a part of the cadre of Junior Engineers,
placed on complete par with the Junior Engineers of the
department already in service and given the same promotional
eligibility and opportunities as the latter. [440A-B]
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(5) It was open to the State, in view of rule 7(4) of
the Gazetted Service Rules of 1968, to promote members of
the non-gazetted services also to the Gazetted Service to
the extent of a prescribed quota. The restricted language of
rule 7, cannot therefore, be construed in such a way as to
render redundant the specific provision in the Schedule
entitling several persons from the Non-Gazetted services to
promotion. [440G-H]
(6) In interpreting these rules and Government orders
one should bear in mind that the promotional stipulations in
Schedule II should be read in the light of rule 7(4) which
permits a wide latitude to the Government in making recruit-
ments, by way of promotion, even otherwise than in the
manner outlined in rule 7(1). Reading the rules and the
Government orders issued from time to time harmoniously, the
effect of the cabinet order of July 1979 was that all J.Es.,
in position as such, should continue to be promoted until
all of them became Assistant Engineers. [442F-G]
(7) It is seen from the records that such of the Junior
Engineers, belonging to the cadre as had been in service
with the State Department have continued to get their promo-
tions even after the 1981 amendment. If that be so, then,
clearly the Department cannot discriminate as between offi-
cers belonging to the same cadre by promoting some of them
and denying promotion to others. A discrimination between
them would be totally arbitrary and contrary to the scheme
of absorption envisaged in 1982. [441F-G; 442B]
427
(8) The truth of the matter is that, when abolition of
the cadre of Junior Engineers was thought of, the State
decided that this should not affect the existing Junior
Engineers and their promotional chances. Again, when the
merger of the Corporation and State services was thought of,
the decision was that the Senior Technical Assistants should
be placed on par with the Junior Engineers of the State
Service. This was a conscious and equitable decision and to
go back upon it has resulted in arbitrary discrimination
against the appellants. By the decision of 1986, they lose
their status as Junior Engineers (and are equated to Sub
Engineers, which is the status also accorded to the Junior
Technical Assistants, their subordinates in the erstwhile
Corporation), they lose their right to promotion, they lose
seniority by being placed at the bottom of the Sub Engineers
of the State services, and the promotional quota now allot-
ted to them is illusory. [443B-D]
(9) Gross injustice has been done to the appellants by
the decision of 1.3.1986. This decision is therefore
quashed. Accordingly, the appellants will be entitled to be
considered for promotion as Assistant Engineers in the same
manner and to the same extent as the Junior Engineers of the
State service have been considered and not on the basis of
the percentages prescribed for Sub Engineers under the
amended rules. [443F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No, 1191 of
1990.
From the Judgment and Order dated 15.7.1988 of the
Madhya Pradesh High Court in M.P. No. 600 of 1985.
A.K. Sen, A.K. Gupta and N.P. Mahendra for the Appellants.
R.B. Datar, Satish K. Agnihotri, Devender Singh, Ashok
Singh and R.B. Misra for the Respondents.
The Judgment of the Court was delivered by
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RANGANATHAN, J. The controversy in this Special Leave
Petition arises out of the merger, with effect from
1.10.1982, of the staff of the Madhya Pradesh Lift Irriga-
tion Corporation (hereinafter referred to as ’the Corpora-
tion’) with that of the Irrigation Department of the State
Government consequent on the abolition of the Corporation.
We have heard counsel on both sides and we are of opinion
that these matters should be disposed of finally even at
this
428
stage. We therefore grant leave in the Special Leave Peti-
tion and proceed to dispose of the appeal.
Appellants 2 to 17 and certain other writ petitioners in
the High Court were serving as Senior Technical Assistants
(S.T.A.) in the Corporation. The cadres of S.T.As. and the
lower cadre of Junior Technical Assistants (J.T.As.) in the
Corporation were equivalent respectively to the cadres of
Junior Engineer (J.E.) and Sub-Engineers (S.E.) in the
Irrigation Department of the State. It is common ground that
the qualifications for appointment to the two sets of posts
were the same and that their pay scales were also the same.
The appellants claim that they are entitled, after the
merger of the Corporation into the Irrigation Department, to
be treated as Junior Engineers and considered for promotion
as Assistant Engineers on completion of two years of service
but that this avenue of promotion is being denied to them by
the State.
To appreciate the above contention, it is necessary to
set out some historical background of the cadres in the
State Department. Initially the Junior Engineer’s post in
the State Government was a non-gazetted post, governed by
the Madhya Pradesh Irrigation Department (Non-Gazetted)
Service Recruitment Rules, 1969. The Junior Engineers, on
completion of two years’ minimum service, were entitled to
consideration for promotion to the gazetted post of Assist-
ant Engineer, a post governed by the Madhya Pradesh Irriga-
tion Engineering Service (Gazetted) Recruitment Rules, 1968.
On March 19, 1973 the posts of Junior Engineers were de-
clared to be gazetted posts. 75% of the posts of Assistant
Engineers could be filled up by promotion from amongst
Junior Engineers. On January 1, 1978 the Junior Engineer’s
post was once again converted into a non-gazetted post. The
quota for such of those Junior Engineers as were working as
gazetted officers immediately before the issue of this order
was retained at 75% as before for a period of two years by
which time it was expected that all of them would get pro-
moted as Assistant Engineers. But for this, the posts of
Assistant Engineers were to be filled up equally by promo-
tion from subordinate cadres and direct recruitment. The
promotion quota was distributed among the subordinate cadres
in the following proportion:
Junior Engineers (Non-Gazetted) -- 25%
Overseers (Sub-Engineers) -- 20%
Head Draftsman/Draftsman -- 5%
429
In July, 1979 the Government decided to abolish the post
of Junior Engineers in the State Irrigation Department. The
relevant cabinet order set out the following terms there-
fore:
1. The posts of Junior Engineer in the three works depart-
ments should be abolished. The Junior Engineers presently
working in these departments shall continue to work in their
existing payscales under the existing service conditions
till their promotion. (emphasis added)
2. The quota of recruitment for the post of Assistant Engi-
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neer, which is at present 50% should be raised to 75%.
3. 25% posts in the Sub-Engineer cadre be converted into
selection grade posts and selection for the selection grade
post should be made on the basis of merit-cum-seniority.
4. The quota prescribed for promotion of the Draftsmen
should be reduced from 5% to 3%. Promotion quota of 2%
should be reserved for those Sub-Engineers/Draftsmen who
obtain degree while in service.
5. The posts of Junior Engineer cadre, which presently
exists, should be converted into the posts of Assistant
Engineers and Sub-Engineers with the concurrence of the
finance department".
Eventually, the State Government decided on 27th May, 1980
that the 941 posts of Junior Engineers in the Irrigation
Department should be abolished by converting 658 of those
posts into posts of Assistant Engineers and 233 posts into
posts of Sub-Engineers (Overseers).It must be, however,
pointed out that, though the existing posts of J .Es. or
S.Es. stood abolished from 27.5. 1980, in fact, a number of
Junior Engineers appointed earlier continued to function as
before, under the memorandum of July 1979, until they re-
ceived promotions as Assistant Engineers (A.Es. ) in due
course.
We now come to the details of the merger between the
Corporation and the State Department. In August, 1982 a
decision was taken to abolish the Corporation. The Govern-
ment decided on the merger the surplus staff of the Corpora-
tion in the Irrigation Department and 8.10.82 was decided
upon as the effective date of merger for purposes. We are
concerned here with the formula for transition set out in
the opening para of a memorandum of the above date regarding
the
430
merger of the posts of S.T.As. and J.T.As. It read thus:
"2. Senior Technical Sectioned posts--Nil
Assistants The above employees may be
Equivalent Post- merged in the posts of
Junior Engineer Junior Engineers and an
(Rs. 360-650) equivalent number of posts
may be deemed to have been
27 posts-Civil created in the dying cadre
Posts-Electrical of Junior Engineers.
(Mechanical)
posts-Geologists
post-Geophysist
3. Junior Technical Sanction--30 posts (reserved).
Assistants Equivalent These may be merged against
post: (Sub-Engineer the posts of Sub-Engineers
(Rs.280-480) which have been obtained by
conversion of the posts of
62 Posts-Civil Junior Engineer. The posts
reserved for Scheduled
Castes and Scheduled Tribes
may be made unreserved and
appointments may be made
against them also."
The memorandum of 8.10.1982 was followed up by a commu-
nication dated 10.11.1982. The enclosures to this letter
described the absorptions as "ad hoc" but this word was
deleted on 29.1. 1983 with reference to the posts with which
we are concerned, making it clear that the absorption was to
be permanent. The letter set out three conditions for the
merger which admittedly are fulfilled by the appellants:
(i) The staff will be absorbed only subject to their ful-
filling the qualifications prescribed for the posts against
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which they are to be absorbed;
(ii) The inter-se seniority of the employees of the Corpora-
tion shall be in accordance with the seniority list cleared
by the Managing Director. The inter-se seniority of the
departmental employees and the employees of the Corporation
shall be determined in accordance with the orders of the
Government; and
431
(iii) It was open to an employee of the Corporation to join
the Government department or not to do so, for the employees
were to be required to join duties at the place of their
posting within 20 days from 10.11. 1982, failing which it
was to be deemed that the appointment was not acceptable to
them.
The seniority rule was announced much later, on 16.4.1984.
It said:
"The regular officers/employees of the Corporation shall, in
the event of merger in the Irrigation Department, be consid-
ered as Junior to the permanent officers/employees of the
Department and their seniority in the lists of the temporary
officers/employees of the department, shall be fixed on the
basis of the dates of assuming office, without affecting the
inter-se seniority of the Corporation".
The result of all this, according to the appellants, was
that the S.T.As. of the Corporation became, w.e.f.
8.10./982, J.Es. of the department but their seniority
therein was below the J.Es. of the State Department who had
been in office in July 1979 and continued to function as
such even thereafter. It is stated that these Junior Engi-
neers in the Department were being gradually promoted as
A.Es. and it was only sometime in 1983 that the appellants
who were at the bottom of the seniority list became eligible
for promotion as A.Es. Their legitimate claims in this
regard, it is alleged, were being stalled by the State and
so the appellants filed a writ petition in the High Court in
1985.
Sometime later, the appellants allege, it came to light
that the State, far from giving the petitioners their legit-
imate entitlement, was planning a voiteface to upset the
whole scheme of merger as envisaged earlier, to the detri-
ment of the applicants. This they did, it is said, by issu-
ing a memo on 1.3. 1986 which read thus:
"1. The State Government amends point No. 2 of paragraph 1
of the orders issued vide Irrigation Department’s Memo No.
22(C)/43/32/P/37 dated 8.10.1982 as follows:
2, Senior Technical ] [ The above employees
Assistants ] [ may be absorbed on
equivalent to Junior ] [ the post of Sub-
Engineer (Rs.350-650) ] [ Engineer protecting
432
the pay which they
were drawing
27 posts--Civil ] [ previously. Such
34 posts--Electrical ] [ absorbed employees
shall be eligible for
promotion to the
posts of A. Es. from
the quota of Graduate
Sub-Engineers.
2. These orders shall come into effect from 8.10. 1982."
This order vitally affected the interests of the appellants
in four respects--
(a) Having been absorbed into the State Department as J.Es.
in 1982, they were suddenly demoted to the post of S.Es.
retrospectively, with the "saving grace" that their pay was
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protected;
(b) Under the seniority rules of 1984 earlier referred to,
they were at the bottom of the list of J.Es. but above the
S.Es. But now they became juniors to all the Sub-Engineers
of the Department;
(c) While previously a substantial quota for promotion from
J.Es. to A.Es. was applicable to them, the quota now got
reduced (as will be explained later) to 4%; and
(d) While previously an experience of 2 years was sufficient
for their promotion, now they had to have a minimum experi-
ence of 8 years (as will be seen later).
The combined effect of all this is, it is alleged, that the
appellants will become eligible for consideration for promo-
tion as A.Es. in the distant future as follows:
----------------------------------------------------------
Year No. of posts available Graduate
Sub-Engineers quota
----------------------------------------------------------
1989 1
1997 3
2004 2
2007 1
2008 1
433
In other words, only 8 persons will become eligible at
distant dates whereas all of the appellants should have
received promotions gradually since 1983 as and when vacan-
cies occurred. The appellants contend that this is a great
travesty of justice which should be set right by quashing
the decision of 1.3. 1986 and restoring the position as it
actually prevailed on 8.10.1982 at the time of the merger.
Sri Datar attempted to counter this--what prima facie
appeared to be a just and reasonable--plea with his usual
persuasiveness. He urged that the contentions of the appel-
lants overlook four important basic facts and that, if these
are kept in mind, it will be seen not merely that no injus-
tice has been done to the appellants but that, in fact, the
State has come to their rescue by providing an avenue of
promotion where none existed. These basic facts are, he
says:
(1) As from 27.5.1980, there was no cadre of junior engi-
neers at all in the State service. That cadre had been
abolished by the decision of 1979 and the conversion, on
27.5.1980, of the existing posts of J.Es- into those of
A.Es/S.Es.
(2) There had been an amendment on 27.7.81 to the relevant
recruitment rules which made it clear that, after that date
at least, there could be no promotions to the posts of A.Es.
from among J.Es.
(3) When the Corporation was abolished in 1982, the State
Government could have dispensed with the services of the
appellants. Instead, they considered the appellants’ cases
sympathetically and decided to absorb them into the State
service. In doing so, they purported to absorb them as J.Es.
overlooking that, as on 8.10.1982, there was no cadre of
J.E. in the State service. It is this mistake that was
rectified on 1.3.1986 by absorbing the appellants as S.Es.
(instead of as J.Es.) but protecting the pay they were
drawing.
(4) The petitioners had an option to join or not to join the
State service on 8.10.1982 as J.Es. When they decided to
join, they were aware that, according to the rules prevail-
ing on that date, there was no avenue of promotion for them
as A .Es.
The net result of these considerations is, says Sri
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Datar, that, instead of completely denying the appellants
any promotion altogether (as there was no right, under the
rules, to any such promotion),
434
the State has, equitably, decided to confer on these offi-
cers a right of promotion by treating them as S.Es. This was
a generous gesture on the part of the State. The appellants
should have been happy that an avenue for promotion had been
opened out to them, instead of being disgruntled on the
assumption that their promotion chances had dwindled by the
action of the State. This was the only reasonable way of
resolving the impasse that faced the appellants and the
authorities.
Since Sri Datar has referred to the rules, it will be
appropriate to pause here and notice the relevant service
rules and the amendments made thereto:
Taking up the Non-Gazetted Service Rules of 1969 first,
they provided, in Schedule I--read with rule 5--for 269
posts of Civil Engineers and 13 posts of Electrical/Mechani-
cal Engineers in the cadre of Junior Engineers. Curiously
enough these rules appear to have remained unamended not-
withstanding the decision of 1979 to abolish these posts and
the office order of 1980 converting these posts (these
appear to have numbered 941 at the relevant time) into A.Es.
or S.Es.
Turning next to the Gazetted Service Rules, the follow-
ing provisions thereof are relevant:
Rules 7. Method of recruitment----
(1) Recruitment to the service, after commencement of the
rules, shall be by the following methods, viz.:
(a) by direct recruitment by selection;
(b) by promotion of substantive/officiating member of the
M.P. Irrigation Engineering Service (Gazetted);and
(c) by transfer of persons who hold in a substantive capaci-
ty such posts in such services as may be specified in this
behalf.
(2) The number of persons recruited under clause (b) or
clause (c) of sub-rule (1) shall not at any time exceed the
percentage shown in Schedule II of the number of duty posts
(as specified in Schedule I).
435
(3) Subject to the provisions of these rules, the method or
methods of recruitment to be adopted for the purpose of
filling any particular period of recruitment, and the number
of persons to be recruited by each method, shall be deter-
mined on each occasion by the Govt. in consultation with the
Commission.
(4) Notwithstanding anything contained in sub-rule (1) if in
the opinion of the Govt., the exigencies of the service so
require, the Govt. may, after consulting the General Admin-
istration Department, adopt such methods of recruitment to
the service other than those specified in the said sub-rule,
as it may by order issued in this behalf, prescribe.
Rule 15. Conditions of eligibility for promotions(1)
Subject to the provisions of sub-rule (2), the Committee
shall consider the case of all persons who on the 1st day of
January of that year had completed the prescribed years of
service (whether officiating or substantive) in the post/
service mentioned in column 2 of Schedule IV or any other
post or posts declared equivalent thereto by the Govt. as
under and are within the zone of consideration, as per
subrule (2)--
(i) Sub-Engineers, Head Draftsman/Draftsman to the posts of
Assistant Engineers--Minimum service of 12 years as Sub-
Engineers, Head Draftsman/Draftsman.
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Provided that a Sub-Engineer and Head Draftsman/
Draftsman who has completed a minimum of 8 years’ service
and possesses degree in Civi/Electrical/Mechanical Engineer-
ing from recognised university or qualification declared
equivalent thereto by the State-Govt., will also be eligible
for promotion to the post of Assistant Engineer and will be
considered each time just after the zone of consideration
and then final selection just will be made from both the
groups on the basis of merit. For example, if ten posts are
vacant in the cadre of Asstt. Engineer to be filled by
promotion of Sub-Engineer, then 10x5=50 diploma holder Sub-
Engineers from working list be considered first and thereaf-
ter the eligible graduate Sub-Engineers be considered in the
order of their seniority for promotion.
436
(ii) Junior Engineers to the posts of Assistant Engineers
minimum service of 2 years as Junior Engineer.
XXX XXX XXX
Rule 18. Select list--(1)The Commission shall
consider the list prepared by the Committee along with the
other documents received from the Govt. and unless it con-
siders any change necessary, approve the list.
(2) If the Commission considers it necessary to make any
changes in the list received from the Govt. the Commission
shall inform the Govt. of the changes proposed and after
taking into account the comments, if any, as may in its
opinion be just and proper.
(3) The list as finally approved by the Commission shall
form the select list for promotion of the members of the
cadres of Sub-Engineers, Head Draftsman/Draftsmen, Research
Assistant and Junior Engineers of the M.P. Irrigation Engi-
neering Service or its higher cadres, as the case may be.
(4) The selectee list shall ordinarily be enforced until it
is reviewed or revised in accordance with sub-rule (4) of
rule 16, but its validity shall not be extended beyond a
total period of 18 months from the date of its preparation:
Provided that, in the event of a grave lapse in
the conduct of performance of duties on the part of any
person included in the select list, a special review of the
select list, may be made at the instance of the Govt. and
the Commission, may, if it thinks fit, remove the name of
such person from the select list".
(underlining ours)
Schedule I to the rules specified the number of posts in
each cadre. So far as Assistant Engineers (Class II) are
concerned, the number of posts is put at 329 (253 permanent
and 76 temporary) in the Civil Branch and 36 (22 permanent
and 14 temporary) in the Electrical & Mechanical Branch. The
description and contents of the relevant columns of Schedule
II have to be set out a little more meticulously. They read:
437
----------------------------------------------------------
Name Name Total no. M.P. Irrigation Engg.
of of of duty Service (Gazetted)
Deptt. service post P.T.T percentage of the
number of duty posts
to be filled in
By direct By promo- By transfer
recruitment non of the of persons
substantive from other service
members of the service
[vide [vide [vide
rule rule rule
7(a)] 7(b)] 7(c)1
----------------------------------------------------------
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(1) (2) (3) (4) (5) (6)
----------------------------------------------------------
Civil AE, Class 253 76 329 50 50 25% by promotion
Irriga- II of JEs
tion 20% by promotion
Deptt. of SEs (previously
Overseers)
5% by promotion
of Head Draftsman/
Draftsmen
Elec- -do- 22 34 36 50 50 As for A.E.
trical
& Mecha-
nical
Branch (underlining ours)
----------------------------------------------------------
Schedule IV says that J.Es. (Class III) with minimum experi-
ence of two years as well as S.Es. and Head
Draftsmen/Draftsmen with 12 years’ experience (8 years in
the case of degree holders) will be eligible for promotion
as A.Es. (Class II) on selection by a departmental committee
constituted as specified therein.
The interesting feature regarding the amendments of 1981
relied upon by Sri Datar is that they left the rules quoted
above and Schedules I & IV untouched. They only amended
Schedule II in two
respects:
(1) In the heading of column 5, the words "By promotion"
were
438
substituted for the words "By promotion of substantive
members of the service [vide rule 7(b)]".
(2) The figures in columns 4 and 5 were substituted by the
following in respect of both the Civil Branch and the Elec-
trical/ Mechanical Branch:
(4) (5)
60 40 33% by SEs. who are
diploma holders;
4% by SEs./Draftsmen
who are Engineering
Graduates;
3% by Draftsmen/Head
Draftsmen who are not
Engineering Graduates.
We have considered the submissions of the parties in the
light of the above rules and amendments and come to the
conclusion that there is force in the contention of the
appellants that they are eligible for promotion as AEs. in
the same manner as the erstwhile JEs. of the Irrigation
Department. The assumption of the respondents that the cadre
of JEs. had ceased to exist long before the absorption of
the present appellants into the Department is incorrect. As
pointed out earlier, though the decision to abolish the
cadre was taken in 1979 and the existing posts were convert-
ed into those of AEs./SEs. on 27.5. 1980, the cadre did not
die, for the JEs. of the Department who were then function-
ing continued to function as before until they were promoted
in due course as AEs. It is also not correct to say that
this crucial "fact" had been overlooked at the time of
passing the merger order of 8.10.1982. On the contrary, the
State was fully conscious of its earlier decision and the
order of 8.10.1982 specifically mentions that the posts of
STAs. will be merged in the posts of JEs. "and an equivalent
number of posts may be deemed to have been created in the
dying cadre of Junior Engineers". These words make it per-
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fectly ,clear that the cadre of YEs. was "dying" (but not
dead) and the strength of the dying cadre was further enliv-
ened by taking in the STAs. of the Corporation as JEs. Thus,
the position is that, as on 8.10.82, the cadre of JEs.
continued to subsist and comprised of the old JEs. of the
Irrigation department and the STAs. engrafted from the
Corporation. This conclusion is reinforced by the interest-
ing circumstance that the refe-
439
rence in Schedule I of the Non-Gazetted Service Rules to
JEs. was not omitted despite the decisions of 1979 and 1980.
It is true that the number of these posts was mentioned as
269 in the Civil Branch and 13 in the Electrical & Mechani-
cal Branch. But the actual number had far exceeded these
without a corresponding amendment in the Schedule. This,
however. is inconsequential. Rule 6 of these Rules is in the
following terms:
Rule 6. Method of recruitment--(i) Recruitment to
the service, after the commencement of these rules, shall be
by the following methods, viz.--
(a) by direct recruitment, by Selection/by Competitive
Examination as shown in Schedule II,
(b) by promotion of substantive/officiating members of the
service (as shown in the Schedule IV), and
(c) by promotion of persons who hold in a substantive capac-
ity such posts in such services as may be specified in this
behalf.
(ii) The number of persons recruited under clauses
(b) and (c) of sub-rule (1) of the rule 6 shall not at any
time exceed the percentage shown in the Schedule II.
(iii) Subject to the provisions of these rules,
the method/methods of recruitment to be adopted for the
purpose of filling any particular vacancy/vacancies in the
Service as may be required to be filled during any particu-
lar period of recruitment, and the number of persons to be
recruited by each method, shall be determined on each occa-
sion by the appointing Authority.
(iv) Notwithstanding anything contained in sub-
rule (i) if in the opinion of Engineer-in-Chief/Chief Engi-
neer, the exigencies of the service so require, the said
Engineering-Chief/Chief Engineer, may after consulting the
Govt., may adopt such methods of recruitment to the service
other than those specified in the said sub-rule, as he may,
by order issued in this behalf, prescribe.
Rule 6(iv) read with the Schedule I clearly empowered the
Govern_
440
ment, in the exigencies of the situation, to continue the
cadre for limited purposes and augment the same by the
number of STAs. absorbed from the Corporation. We have,
therefore, no hesitation in holding that,- on the terms of
the relevant rules as well as on the language of the order
of 8.10.1982, the appellants, viz. STAs. absorbed from the
Corporation were constituted as a part of the cadre of
J.Es., placed on complete par with the JEs. of the depart-
ment already in service and given the same promotional
eligibility and opportunities as the latter.
Counsel for the State contends that this conclusion
would directly run contrary to the rules of the Gazetted
Service particularly after their amendment in 1981 and that,
after the date of said amendment, no AE could be recruited
by promotion from among JEs. The objection on this account
is two-fold. The first, not clearly articulated by counsel,
is that rule 7(b) permits recruitment by promotion only from
among the members of the service and that a Non-Gazetted JE
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is not eligible for promotion. The second is that, after the
198/amendment, JEs have been excluded as one of the sources
of recruitment by promotion. We shall deal with these two
objections one after another.
It is true that rule 7(b) of the Gazetted Service Rules
of 1968 provides only for JEs belonging to the said service
being promoted as AEs. However, when the JE’s post became a
non-Gazetted one in 1978, the relevant Government orders
made it clear that AEs will be recruited by promotion from
among JEs to the extent of 25% out of the 50% quota avail-
able for promotion. The Schedule clearly mentioned this. As
it also mentioned SEs and Head Draftsman as other sources
from which promotion could be made, the reference to JEs was
also clearly to the non-Gazetted JEs. Promotion of Gazetted
JEs had been separately provided for as before. Thus, under
the Schedule, non-Gazetted JEs were also clearly eligible
for promotion despite the restriction in rule 7(b). This
inconsistency between the Schedule and the rule was appar-
ently noticed only in 1981 and the heading of Column 5 of
Schedule I1 was amended to make it clear that the promotions
therein referred-to were from the non-Gazetted service,
although rule (b) was left unamended. The omission to amend
rule 7, however, is not of much significance. It was open to
the State, in view of rule 7(4), to promote members of the
non-Gazetted Services also to the Gazetted Service to the
extent of a prescribed quota. The restricted language of
rule 7 cannot, therefore, be construed in such a way as to
render redundant the specific provision in the Schedule
entitling several persons from the non-Gazetted services to
promotion.
441
It is then argued that, at any rate, after the amendment
of the relevant columns of Schedule 1I in 1981 there is no
right in any J.E. to claim promotion as A.E. At least from
that date, the promotional avenue for J.Es. stands abol-
ished, claims Sri Datar. Sri Ashok Sen, for the petitioner,
contended that the petitioners having been given a right, at
the time of absorption in 1982, that they will be eligible
for promotion in the same way as the erstwhile J.Es. of the
State Department, this right cannot be taken away by invok-
ing an earlier amendment of the rule. He cited some authori-
ties in support of the proposition and pointed out that the
petitioners had amended the original writ petition to in-
clude a prayer for quashing the amendment purportedly ef-
fected on 27.7.81. On the other hand, Sri Datar contends
that no employee has a vested right to promotion and that it
was in law open to the Government to change the conditions
of service so as to take away a right to promotion that may
have existed earlier. But, he pointed out, so far as the
petitioners were concerned, there was no taking away of any
right to promotion at all because, even as on 8.10.82 when
they claim to have become J.Es., the rules provided for no
promotional avenue at all and none was promised to them
either by the order dated 8.10.82.
We do not think it is necessary for us to express any
views on the question whether an amendment taking away the
rights of promotion earlier available to a cadre of employ-
ees is constitutionally valid. We shall proceed on the
assumption, as contended by the State, that this is permis-
sible and that the effect of the amendment is that, on and
from 27.7.81, no A.E. can be recruited, under the amended
Schedule, from among the J .Es. Assuming this to be correct,
this rule should apply to all the J.Es. in the "dying
cadre". It is seen from the records placed before us that
such of the J.Es. belonging to this cadre as had been in
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service with the State Department have continued to get
their promotions even after the 1981 amendment. This is
clear from the gradation list filed by the appellants which
shows that three Junior Engineers were promoted as AEs. on
17.8.83. Further, the specific averments to this effect in
the affidavits filed on behalf of the petitioners at various
stages have not been denied. The petitioners have also
placed on record an order dated 18.10.1985 which shows that
a J.E. of the State Department in the Electrical & Mechani-
cal Branch (perhaps the last of that category) was promoted
as A.E. If this be so, then, clearly, the Department cannot
discriminate as between officers belonging to the same cadre
by promoting some of them and denying promotion to others.
Sri Datar emphasised that the J.Es. belonging to the State
service had a right of promotion earlier and this was coti-
nued even after
442
the amendment whereas the appellants became J.Es. at a time
when there was no further promotion available to them and
that this makes all the difference. This argument runs
somewhat contrary to the earlier argument of counsel that
the amendment of 1981 should be treated as applicable to all
claims for promotion after 27.7.81 and that the State is at
complete liberty to deny promotion after that date even in
respect of those who may have earlier had a right to such
promotion. But even assuming that the distinction now sought
to be pointed out by him marks a difference between the two
categories of J.Es. on the cadre as on 8.10.82, a discrimi-
nation between them would be totally arbitrary and contrary
to the scheme of absorption envisaged in 1982. It cannot be
presumed that the State, when it absorbed the S.T.As. into
the dying cadre of J.Es., was unaware that (though, since
1981, there were no promotional avenues for J.Es. as A.Es.
under the rules) the incumbents of that cadre were entitled
to such promotion under the cabinet orders dated 5.7.79. The
order of 8.10.82 places the absorbed S.T.As. into that
"dying" cadre by creating fictionally an equal number
of_posts to accommodate the persons so absorbed. The inten-
tion and effect of the order of 8.10.82 was to grant to all
the S.T.As. so absorbed exactly the same status as was
enjoyed by those already in the cadre. In other words, if
the J.Es. already existing in the cadre has a right of
promotion, as on 8.10.82, the new incumbents were also given
that right; and if they had none after 27.7.198 1, the new
incumbents would have none either. The State has admittedly
proceeded on the footing that, despite the 1981 amendment,
the J.Es. from the State Department were eligible for promo-
tion; in fact, they have been promoted since 1979 as A.Es.
as and when vacancies arose. This being so, any differential
treatment of the absorbed S.T.As. would clearly be discrimi-
natory and unconstitutional. In interpreting these rules and
Government orders, one should bear in mind that the promo-
tional stipulations in Schedule II should be read in the
light of rule 7(4) which permits a wide latitude to the
Government in making recruitments, by way of promotion, even
otherwise than in the manner outlined in rule 7(1). Reading
the rules and the Government orders issued from time to time
harmoniously, the effect of the cabinet order of July, 1979
was that all J. Es., in position as such, should continue to
be promoted until all of :hem became A.Es. It is no doubt
somewhat difficult to see how after 27.7.81, only a part of
the pattern of recruitment in vogue earlier could stand side
by side with that introduced on that date. One could have’
understood a stand on the part of the State that, as and
from that date, promotions would be limited only to the new
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feeder categories and would not be available to any J.E. at
all. But if the subsequent variation of 1981 did not over-
ride this benefit extended to the former State
443
J.Es. and has not been understood as having done so and the
pattern of promotion indicated in the amendment of 1981 was
subject to the right of such J.Es. in the cadre for promo-
tion as per the cabinet order of 1979, it is difficult to
see how a different rule could be applied to the S.T.As. Who
have been absorbed to augment that cadre. The truth of the
matter is that, when abolition of the cadre of J.Es. was
thought of, the State decided that this should not effect
the existing J.Es. and their promotional chances. Again,
when the merger of the Corporation and State services was
thought of, the decision was that the S.T.As. should be
placed on a par with the J.Es. of the State service and that
the J.T.As. should be placed on par with the S.Es. This was
a conscious and equitable decision (for, as is common
ground, the post of S.T.A was equivalent to J.E.) and to go
back upon it has resulted in arbitrary discrimination
against the appellants. By the decision of 1986, they lose
their status as J.E. (and are equated to S.Es. which is the
status also accorded to the JTAs, their subordinates in the
erstwhile Corporation), they lose their right to promotion,
they lose seniority by being placed at the bottom of the
S.Es. of the State service and the promotional quota now
allotted to them is illusory. It is true that they had
volunteered for absorption as JEs. in 1982, a date when
there was no promotional avenue to a JE under the rules. But
they did so because they were told that they would be placed
on part with the J.Es. in the State service and never imag-
ined that they would be denied promotion on the basis of the
amended rules while the JEs in the State service continued
to get promotions despite the amendment. The fact that they
opted for the, State service does not, therefore, entitle
the State to treat them differently from the JEs of the
State service. We have, therefore, no doubt in our minds
that gross injustice has been done to the appellants by the
subsequent decision of the State Government. We, therefore,
quash the decision of 1.3.86 and direct that the appellants
will be entitled to be considered for promotion as A.Es. in
the same manner and to the same extent as the J.Es. of the
State service have been considered and not on the basis of
the percentages prescribed for S .Es. under the amended
rules. In the view taken by us that the rules and the amend-
ment therein do not override the effect of the orders of
5.7.1979 and 8.10.82, it is not necessary for us to pro-
nounce any opinion on the validity of the 1981 amendment to
the Rules.
The appeals succeed to the extent indicated above. There
will be no order as to costs.
R.S.S. Appeals
allowed.
444