Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16
PETITIONER:
A. K. SUBRAMAN & ORS. ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT11/12/1974
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
REDDY, P. JAGANMOHAN
BHAGWATI, P.N.
CITATION:
1975 AIR 483 1975 SCR (2) 979
1975 SCC (1) 319
CITATOR INFO :
R 1977 SC 251 (33,39)
RF 1977 SC2051 (38)
D 1979 SC1073 (15)
RF 1980 SC1561 (27)
RF 1980 SC2056 (73)
R 1981 SC 357 (4)
RF 1981 SC 561 (69,72)
R 1983 SC 881 (43)
E 1984 SC1291 (7,9,13,15,19,21,23,28,32,36)
R 1984 SC1595 (24)
F 1985 SC1019 (18,19)
D 1985 SC1558 (24,28)
RF 1985 SC1605 (16)
D 1985 SC1681 (5)
RF 1987 SC2359 (9)
D 1988 SC 268 (27)
D 1990 SC1607 (19,21,25)
RF 1991 SC1202 (30)
RF 1991 SC1244 (7,10)
ACT:
Civil Service-Seniority, whether to follow length of service
or confirmation Quota rule whether implies rotational
formula-Whether vacancies means vacancies in permanent posts
only or it includes vacancies in temporary posts also.-
Memorandum of Home Ministry dated 22-6-1949 and 22-12-1959-
Memorandum of Ministry of Works. Housing and Supply dated
8-12-1960.
Distinction between promotion and confirmation.
For recruitment through two sources whether quota is
interdependent or independent-Constitution Article 77(3)-
Effect of Memorandum issued by Ministry other than one
empowered under Allocation of Business Rules.
HEADNOTE:
The petitioners who were Assistant Engineers (Class II) were
promoted to officiate as Executive Engineers in Class I
Central Engineering Service by a properly constituted
Departmental Promotion Committee. Respondents 4 to 66 we
initially recruited as Assistant Executive Engineers Class I
and were promoted to the grade of Executive Engineer. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16
vacancies in the grade of Executive Engineer can only be
filled by promotion from the aforesaid two grades in the
ratio of 75 % and 25%. The relevant rule reads as under :-
"75 per cent of the vacancies in the grade of Executive
Engineer, Class 1, shall be filled by promotion of Assistant
Executive Engineers Clause I., the rest of the vacancies
being filled by promotion and or by transfer in accordance
with parts 4 and 5 of the rules respectively".
There are no statutory seniority rules. The petitioners
ware shown as junior to respondents No. 4 to 66 and they
were not considered for promotion to the higher post of
Superintending Engineer, although they have been Executive
Engineers for longer period by following the quota rule at
the stage of confirmation.
The petitioners contended that their seniority should be
determined in accordance with the Home Ministry’s Memorandum
dated 22-6-1949. i.e., the length of service put in by them
in the grade of Executive Engineer.
It was contended on behalf of the respondents.
(1) In the quota rule there is an implied rotational system
by which only at the time of confirmation of the petitioners
as Executive Engineers the seniority may be fixed in-
accordance with the quota.
(2) Reliance was also placed on the Office Memorandum dated
8-12-1960 issued by the Ministry of Works, Housing and
Supply according to which confirmation was to be made by
applying rotational method in working out the quota rule.
(3) Vacancies in quota rule means only vacancies in
permanent posts.
(4) Quota rule applies at the stage of confirmation and the
seniority would be relatable to confirmation.
(5) One third quota cannot be filled in until and unless
two third quota is available and filled in.
(6) Since the petitioners had their lien in Class II posts
they cannot be expected to belong to 2 grades at the same
time.
(7) Memorandum dated 22-6-1949 has no application since it
was issued is order to safeguard the interests of the
displaced government servants.
980
HELD:
(1) When recruitment is from two or several sources there
is so inherent invalidity in introduction of quota system
and to work it out by a rule of rotation. The existence of
a quota and rotational rule by itself will not violate
Article 14 or Article 16 of the Constitution. [993 E]
Mervin Coutinho and Govind Dattatraya Kelkar cases referred
to.
It is the unreasonable implementation of the same which may
in a given came attract the frown of the equality clause.
[993 E-F]
(2) The Memorandum dated 8-12-1960 issued by the Ministry
of Works, Housing and Supply has not emanated from the Home
Ministry which is the appropriate department for issuing
instructions n ,service matters under Allocation of Business
Rules of the Central Government framed under Article 77(3)
of the Constitution. The said Memorandum also refers to a
notification dated 22-11-1960 of the Home Ministry which ha-
, not been produced. The said Memorandum, therefore. cannot
be availed of. The High Court wrongly relied upon the
Memorandum dated 8-12-1960. [987 B-D]
(3) Words "vacancies in the grade of Executive Engineer"
include both vacancies in the permanent posts as well as in
temporary posts since the cadre consists of both permanent
and temporary posts. The quota rule will be enforced with refer
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16
ence to vacancies in all posts, whether permanent or
temporary, included in the sanctioned strength of the cadre
(except such vacancies as are purely of a fortuitous or
adventitious nature). [991 H-992 A; 994 C-D]
(4) The quota rule will be enforced at the time of initial
recruitment in officiating capacity to the grade of
Executive Engineer and not at the time of confirmation. [994
B-C]
(5) The argument that one third quota cannot be filled in
unless two third quota was exhausted was negatived as the
argument if accepted would introduce sterility in the quota
rule so far as the promotees are concerned. Their hopes and
aspirations cannot be related to the availability of the
direct recruits to fill two third quota. Each quota will
have to be worked independently on its own force. The word
"rest’ in the quota rule cannot be pressed into service to
defect the object of the rule coming in aid of advancement
of prospects of promotees. [991 A-B]
The case of Bishan Sarup Gupta applied.
(6) There is a well-recognised distinction between
promotion and confirmation. The tests to be applied for the
purposes of promotion and confirmation are entirely
different. [989 F-G]
(7) Memorandum dated 22-6-1949 will clearly apply and
Memorandum dated 22-12-1959 is not applicable in this
particular case. [985 F-G]
Union of India & Ors. v. Ravi Varma and others, etc., [1972]
2 S.C.R. 992, followed
(8) In view of the judgment in the Writ Petition the
Judgment of the full Bench of Delhi High Court was set
aside. [994 H]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 489 of 1972.
Petition Under Article 32 of the Constitution of India
AND
C.A. Nos. 1745 to 1747 of 1974
Appeal by Special Leave from the Judgment & Order dated the
20th May, 1971 of Delhi High Court in C.W. No. 716/69,
553/70 and 574 of 1970.
M. C. Bhandare, P. H. Parekh and S. Bhandare, for the
Petitioner (In WP No. 489/72) and Appellants (In CA. No.
1745/74).
981
Lal Narain Sinha, Solicitor General of India, S. N. Prasad
and R. N. Sachthey, for Respondents Nos. 1-3 (In WP. No.
489/72).
K. S. Ramamurthi, S. Balakrishnan and T. M. Ghatate of
Bala krishnan and Ghatate, for Respondents Nos. 5, 23, 27,
31’, 53, 59 & 65 (In WP. No. 489/72).
S. Markandeya, for Respondents Nos. 71, 73, 83, 87, 93,
94, 96, 98, 103, 107, 109 & 111-113 (In WP. No. 489/72).
P. P. Rao, for Intervener Nos. 1-8 (In WP. No. 489/72).
P. H. Parekh and S. Bhandare, for Intervener No. 8 (In WP.
No. 489/72).
P. P. Rao, for the Appellants (In CAS Nos. 1746-1747/1974).
Balakrishnan and N. M. Ghatate, for Respondent No. 3 (In All
the Appeals).
The Judgment of the Court was delivered by
GOSWAMI, J. The petitioners in Writ Petition No. 489 of 1972
are confirred Assistant Engineers in the Central Engineering
Service (Class 11). They were promoted to officiate as
Executive Engineers in Class I between December 27, 1956 and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16
September 8, 1959, by a properly constituted Departmental
Promotion Committee and have been working as Executive
Engineers in the Central Public Works Department of the
Ministry of Works and Housing of the Government of India.
Except one petitioner (namely, K. G. Chopra) all the
petitioners were promoted to the grade of Executive
Engineer prior to their confirmation as Assistant Engineers.
The respondents 4 to 66 were initially recruited as
Assistant Executive Engineers in Class I and were promoted
to the grade of Executive Engineer between the period March
11,
1957 and February 23, 1966.
The appellants in Civil Appeals Nos. 1745 of 1974 and 1746
and 1747 of 1974, who were recruited directly to Class 11 as
a result of competitive examination in which they
had failed to secure requisite marks for being
selected for Class 1, are also confirmed Assistant Engineers
in Grade II and have been officiating as Executive Engineers
in Grade I. They have obtained special leave against the
Full Bench judgment of the Delhi High Court in
their writ petitions under Article 226 of the
Constitution decided by a common judgment of 20th May, 1971.
Since a common question of law is involved in all these
matters, this judgment will govern all the above
matters. We will, therefore, include the appellants
also in describing them as petitioners in this judgment.
The Service with which we are concerned is the Central
Engineering Service, Class I. According to the Central
Engineering Service, Class 1, Recruitment Rules
(briefly the Rules) framed in the year 1954 by S.R.O.
1841 dated May 21, 1964, which are admittedly similar to
those of 1949 Recruitment Rules, officers in the grade of
Assistant Executive Engineer (Class I) and certain
Assistant Engineers (Class II) are eligible for
promotion to the grade of Executive Engineer
982
(Class 1). The vacancies in the grade of Executive Engineer
can only be filled by promotion from the aforesaid two
grades in the ratio of 75% and 25%. The aforesaid quota was
retrospectively altered with effect from September 7, 1955,
to 66-2/3% and 33-113 %.
Part I of the Rules contains the definitions. By Rule 2(b)
thereof, "The Commission" means the Union Public Service,
Commission. Rule 2(c) defines "The Service" as the Central
Engineering Service, Class I. The Service includes various
grades of posts.
Rules 3, 4 and 5 relevant for our purpose are
as under
"3. Recruitment to the service shall be made
by any of the following methods:-
(a) By competitive examination in India in
accordance with Part III of these rules.
(b) By promotion in accordance with Part IV
of these Rules.
(c) By transfer in accordance with Part V of
these Rules.
4. (1)All appointments to the service or to
posts borne upon the cadre of the Service
shall be made by Government.
(2) Subject to the provisions of rule 3
Government shall determine the method or
methods of requirement (sic) (recruitment?) to
be employed for the purpose of filling any
particular vacancies in the Service or such
vacancies therein as may be required to be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16
filled during any particular period and the
number of candidates to be recruited by each
method.
Provided that all recruitments by competitive
examination (vide Part HI of the rules) shall
be to the grade of Assistant Executive
Engineer, Class I only.
Seventy-five per cent of the vacancies in the
grade of Executive Engineer, Class 1, shall be
filled by promotion of Assistant Executive
Engineers, Class 1, the rest of the vacancies
being filled by promotion and/ or by transfer
in accordance with Parts IV and V of the Rules
respectively.
5. Appointments to the Service made
otherwise than by promotion will be subject to
orders issued from time to time by the
Ministry of Home Affairs regarding special
representation in the Services for specific,
sections of the people.
As noted earlier the quota for promotion between the
directly recruited Assistant Executive Engineers and
promotees from Clam II, which was initially in the ratio of
75% and 25%, was later altered to 66-2/3% and 33-1/3% in
1956 and with effect from April 1, 1972, the percentage has
come to be 50:50 for a period of seven years.
983
According to the petitioners prior to their promotion as
Excise Engineers the petitioners and respondents 4 to 66
were holding interchangeable posts, the nature of work,
responsibilities, powers and duties discharged by all of
them being the same and subsequent to their promotion all
these and the pay scales were identical in every respect.
Prior to the promotion, however, the pay scale of the
petitioners was different from that of the Assistant
Executive Engineers who were already in Grade 1. The
Assistant Executive Engineers are directly recruited to
Grade I by competitive examination and sometimes Assistant
Engineers (Class 11) are also recruited by the same
competitive examination to Class 11 when they cannot quality
with the requisite marks to obtain entry in Class I
Services. Besides, Class III Officers are also promoted to
Class 11. In order, therefore, to give incentive of
promotion to employees in Class II, who have already
gathered experience in the service, a certain percentage of
quota is reserved for their promotion to the grade of
Executive Engineer in the recruitment rules.
The Principal grievance of the petitioners is against the
seniority list as on 1-7-1971 (Annexure ’J’) where the
petitioners have bets shown as Junior to the respondents 4
to 66 (in Writ Petition No. 489 of 1972) and to the
respondents in the other two appeals. According to them
notwithstanding the fact that they were recruited by
promotion to officiate in the grade of Executive Engineer
regularly as a result of selection by the Departmental
Promotion Committee and they bay been working in that
capacity for nearly 13 years or over their cases were not
considered for the purpose of promotion to the still higher
grades in Class I and Assistant Executive Engineers
recruited several years after their recruitment have been
held to be, senior to them and some of them have been
promoted to the next higher grades ignoring their claim.
It is admitted that there are no statutory seniority rules
as such and both sides depend upon certain memorandum issued
by the Government of India in the Home Department to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16
establish their respective claims.
According to the respondents it is manifest in the quota
rule that there is ail implied rotational system by which
only at the time of confirmation of the petitioners as
Executive Engineers the seniority may be fixed in accordance
with the quota. According to the learned Solicitor General
appearing on behalf of the Union of India the petitioners,
who were confirmed in Class II, have a lien in that grade
and they cannot be expected to belong to two grades at the
same time. It is, therefore, only at the lime of
confirmation against permanent vacancies that for the first
time the petitioners may be held to have been recruited to
class I of the Service. Since according to him the
recruitment is from two sources it is essential that
recruitment can only be understood within the meaning of
these rules to have taken place at the time of confirmation
of the petitioners in the superior grade, namely, Class 1.
Necessarily, therefore, says the learned Solicitor General,
the quota rule applies at the stage, of confirmation and
seniority would be relateable to confirmation in Grade I of
the Service.
984
It will be necessary also to refer to rule 23 in Part IV
referred to in rule 4(2) providing for promotion:
"23(1) No Assistant Engineer, Class II shall
be promoted as Assistant Executive Engineer,
Class 1.
(2) Recruitment by promotion to the Grade of
Executive Engineer, Class I shall be made by
selection from among permanent Assistant
Engineers in the Central Engineering Service,
Class 11, after consultation with the
Commission. No officer shall have any claim
to such promotion as of right.
(3) No Assistant Engineer shall be eligible
for promotion to the Service, unless he-
(a) would, but for age, be qualified for
admission to the competitive examination under
Part III of these Rules.
(b) has rendered at least three years’
services in a permanent or temporary capacity
as an Assistant Engineer and subordinate under
the Central Government; and
(c) satisfies the Commission that he is in
every respect suitable for appointment to the
Service.
4. It shall not be necessary to consult the
Commission,
under this rule, in the case of any person, if
the Commission had been consulted in
connection with his temporary promotion to the
Service.
The learned Solicitor General draw& our particular attention
to rule 23 (2) which provides that recruitment to the grade
of Executive Engineer (Class 1) has to be made by selection
from amongst permanent Assistant Engineers in Class H. He
submits that the word ’permanent’ in sub-rule (2) is very
significant. Since recruitment by promotion can be made
only from amongst permanent Assistant Engineers, there can
be no recruitment earlier when an Assistant Engineer is
holding his post in an officiating or temporary capacity.
According to him the petitioners could not be said to be
recruited to Class I when they were not permanent Assistant
Engineers. Again according to him the petitioners could be
considered as permanent Assistant Engineers only when they
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16
were confirmed in their posts in Class 11. According to the
respondents, confirmation and not officiating appointment in
the grade of Executive Engineer is sine qua non of
recruitment to Clauses.
As stated earlier there are no statutory seniority rules as
such. The whole question will turn on the construction of
rule 4 read with rule 23 and also any other appropriate
administrative instructions, issued by the Ministry of Home
Affairs with regard to the principles for determining
seniority. We have already quoted the said rules. We have
now to consider the Memorandum of the Home Ministry dated
June 22, 1949 (Annexure G-1) and another similar Memorandum
dated
985
December 22, 1959 (Annexure G-11). The latter Memorandum
givesan annexure containing the general principles for
determination of seniority in the Central Services.
Mr. Bhandare followed by Mr. Rao relies upon the Memorandumof
June 22, 1949 and agrees with the learned Solicitor General
that the Memorandum of December 22, 1959, is not
relevant: But the learned Solicitor General goes further
to submit that the Memorandum of June 22, 1949, is also
not relevant as it deals with seniority of displaced Government
servants who have been absorbed temporarily in the Central
Government and the petitioners do not fall in that
category.On the other hand, the petitioners submit that
from the Memorandum of December 22, 1959, it is clear that
although the instructions contained in the Memorandum
dated June 22, 1949, were issued in order to safeguard
the interests of the displaced Government servants, later on
as the specific objects underlying the instructions cited
above have been achieved, there is no longer any reason
to apply those instructions in preference to the normal
principles for determination of seniority. The Memorandum
proceeds "it has, therefore, been decided in consultation
with the Union Public Service Commission that hereafter the
seniority of all persons appointed to the various Central
Services after the date of these instructions should
be determined in accordance with the General Principles
annexed hereto". "The instructions contained in the various
office Memorandum cited in paragraph I (including that of
June 22, 1949) above are hereby cancelled, except in, regard
to determination of seniority of persons appointed to the
various Central Services prior to the date of this Office
Memorandum. The revised General Principles embodied in
the Annexure will not apply with retrospective effect, but
will come into force with effect from the date of issue
of these orders, unless a different date in respect of any
particular service/grade from (sic (for?) which revised
principles are to be adopted for purpose of determining
seniority has already been or is hereafter agreed to by this
Ministry".
It is, therefore, clear that so far as the petitioners are
concernedthe Memorandum of December 22, 1959, is not
attracted. On the other hand the Memorandum of June 22,
1949, will clearly apply (See Union of India and Others
v. M. Ravi Varma and Others, etc.(1). Para 2 of that
Memorandum may now be quoted
"2. The question of seniority of Assistants
in the Secretariat was recently examined very
carefully in consultation with all the
Ministries and the Federal Public Service
Commission and the decisions reached are
incorporated in para 8 of the instructions for
the initial constitution of the grade of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16
Assistants, an extract of which is attached.
It has been decided that this rule should
generally be taken as the model in framing the
rules of seniority for other services and in
respect of persons employed in any particular
grade seniority should, as a general
rule, be determined on the basis of the
(1) [1972] 2 S..C.R. 992.
16--346SupCI-75
986
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".
Paragraph 8 to which a reference is made in
the above Memorandum reads as follows :-
"8. Seniority of Assistants in Grade IV as
newly constituted. The names of all existing
permanent Assistant who are included in the
permanent strength of the service and who were
confirmed in their’ posts prior Lo the 22nd
October, 1943, will be arranged in the first
instance Ministry-wise in accordance with the
rules in force at present. Such permanent
Assistance will be considered senior to all
others conferment in pursuance of these
instructions in vacancies arising upto the
22nd October, 1950. The order of seniority of
the latter group of Assistants, namely, those
confirmed after the 22nd October, 1943, which
will be arranged in a single list for all
Ministries, will be determined inter se on the
basis of their length of continuous service,
temporary or permanent in the grade of
Assistant or in an equivalent grade, provided
that any period of service during which the
pay actually drawn exceeds Rs. 160/- per month
should be deemed to be service in a grade
equivalent to that of an Assistant".
It is submitted on behalf of the respondents that the
question of seniority arises between Assistant Executive
Engineers and Assistant Engineers only when the latter are
members of ’ the same class grade which happens only after
the Assistant Engineers are confirmed as Executive
Engineers. It is emphasised that as between members of
different classes the question of relative Seniority cannot
arise. It is further submitted that having regard to the
nature of the scheme the rules provide that the grade of
Assistant Executive Engineer will consists exclusively of
young men of merit proved by competitive examination who
will quickly after the necessary training have promotion to
the posts of Executive Engineer and above. In the context
of that scheme rule 4 (2) requires 66-2/3 % vacancies to be
filled by the Assistart’, Executive Engineers and "the rest"
by promotion of the Assistant Engineers or by transfer. We
are not concerned with transfer from other service in this
case. It is also contended that the rule clearly gives
preference to the extent of 66-2/3% to the Assistant
Executive Engineers. It is only after their appointment to
the extent of 66-2/3% that "the rest" comes into existence.
The argument proceeds that it is only on confirmation and
absorption of Assistant Engineers in Class I that the
question of relative seniority between them and Assistant
Executive Ercincers promoted as Executive Engineers can
arise. It is strenuously contended that an Assistant
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16
Engineer officiating as Executive Engineer cannot be senior
to an Assistant Executive Engineer while officiating as
Executive Engineer. Particular vacancies as and when they
go on arising must be finally filled to give effect to 66-
2/3% to Assistant Engineers and thereafter only the residue
to Assistant Engineers or transferred officers. It is
stressed by the respondents that appointment by rotation is
involved in the mandate rule 4(2) itself.
987
Mr. Ramamurthi and Mr. Balakrishnan while adopting the argu-
ments of the learned Solicitor General reply upon an Office
Memorandum of December 8, 1960, of the Ministry of Works,
Housing and Supply, Government of India, on the subject of
principles for seniority in the Central Engineering Service
and Central Electrical Engineering Service (Class 1) in the
Central Public Works Department. The learned Solicitor
General did not address us on this Office Memorandum as he
rightly found considerable difficulty in doing so. It will
appear from the recital in this Memorandum that it has not
emanated from the Home Ministry which is the appropriate
Department for issuing instructions in service matters under
the Allocation of Business Rules of the Central Government
under Article 77(3) of the Constitution. Besides, this
Office Memorandum refers to and relies upon a Notification
of November 22, 1960, of the Home Ministry, namely, U.0. No.
9/38/60-Estt(D) for issuing these instructions. The said
Notification of the Home Ministry could not be traced and
was not produced before us and in its absence we are unable
to take into consideration the Memorandum of December 8,
1960. The learned Solicitor General is, therefore, correct
in not referring to the same but submitted his arguments
mainly on the construction of the Recruitment Rules. He,
however, did submit that what was recited in para 4 of the
Memorandum of December 8, 1960, actually followed from rule
4(2) read with rule 23 and it was not, therefore, necessary
at all to make any reference to this Memorandum.
It will be appropriate at this stage to refer to the
judgment of the Delhi High Court under appeal where the High
Court relied upon the said Notification of December 8, 1960
and also accepted the arguments on the line made before us
by the learned Solicitor General. The High Court relied
upon the Circular of December 8, 1960 and paragraph 7 of the
annexure to the Office Memorandum of December 22, 1959, of
the Home Ministry with regard to the relative seniority of
direct recruits and promotees and observed as-follows
"The rotational sysstem is, therefore, firstly
justified by rule 4 (2) itself. Even if it is
assumed for the sake of argument that rule,
4(2) is silent about the rotational system,
then the administrative instructions make it
clear that the quota system in rule 4(2) has
to be worked out only by the rotational system
and not in any other manner".
The High Court further held as follows
"The case of Shri Ojha (appellant in Civil
Appeal NO. 1745 of 1974) is that because he
was officiating as an Executive Engineer Class
I from before the time the respondent No. 9
started officiating Shri Ojha was entitled to
seniority not only against respondent No. 9
but against the other respondents also. This
stand is contrary to the last part of rule
4(2) which compels the Government to fill the
vacancies in the grade of Executive Engineers
Class ’I strictly by rotation system
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16
implementing the quota rule. Our conclusion
on question No. 1, therefore, is that the
earlier confirmation and
988
the higher seniority given to the respondents
are legal both according to the statutory rule
4(2) and according to the administrative
instructions".
The administrative instruction which is referred to in the
above extract is to be found in the aforementioned paragraph
6 of the Circular of December 22, 1959, regarding relative
seniority of direct recruits and promotees.
We have already made it clear that the Memorandum of
December 22, 1959, is not applicable in this particular
case. We have, therefore, to examine whether it is correct
to hold that it is implicit in rule 4(2) read with rule 23
that the rotational system is necessarily implied to the
extent of denying seniority to the petitioners if appointed
regularly earlier within their quota at the time of recruit-
ment. We have also to examine the correctness of the
submission as to whether the Assistant Engineers after they
are confirmed as such and continue to hold the appointments
of Executive Engineer in regular course of selection through
the Departmental Promotion Committee, presided over by a
member of the Union Public Service Commission are entitled
to claim seniority vis-a-vis the Assistant Executive
Engineers when promoted subsequent to their appointments.
Now the question which arises for consideration is what is
the meaning of the words "vacancies in the grade of
Executive Engineer" as used in the aforesaid paragraph of
rule 4(2). When does a vacancy in the grade of. Executive
Engineer arise? To answer this question it is necessary to
ascertain what are the posts which the grade of Executive
Engineer consists of, for the vacancies can only be in the
posts in the grade ’of Executive Engineer. The word "grade"
has various shades of meaning in the service jurisprudence.
It is sometimes used to denote a pay scale and sometimes a
cadre. Here it is obviously ,used in the sense of cadre. A
cadre may consists only of permanent posts or sometimes, as
is quite common these days, also of temporary posts. To
give one example, the cadre of Income Tax Officers, Class 1,
Grade II, as pointed out by this Court in Bishan Sarup Gupta
v. Union of India and Others(1) in para 18 of the report,
consisted of It permanent and temporary posts". Here in the
present case it has been stated on oath by P. K. Kulkarni,
Under. Secretary to the Ministry of Works and Housing, in
paragraph 7 of his Affidavit-inreply at page 252 of the
Paper Book that "there are permanent and temporary posts
sanctioned from time to time in the grade of Executive
Engineer, Class 1. Promotions from the grade of Assistant
Executive Engineers and/or Assistant Engineers are initially
made in an officiating capacity against the available
vacancies,. . . . the avail able vacancies obviously being
in the permanent and temporary posts in the grade of
Executive Engineer. Paragraph 23 of the same Affidavit-in-
reply at page 257 of the record is also to the same effect
"I say that there are permanent and temporary posts
sanctioned in the-grade of Executive Engineer". It is,
therefore, clear that the cadre of Executive Engineer
consists both of permanent posts and tempo-
1. [1973] 3 S.C.C. 1.
98 9
rary posts. Even from the statement of sanctioned strength
of Engineering Officer Class 1, Central P.W.D., from 1960 to
1972 filed by the Solicitor General in the course of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16
argument it is apparent that the cadre includes both
permanent and temporary posts. Whenever therefore, a
vacancy arises in a permanent post or in a temporary post it
would be a vacancy in the grade of Executive Engineer and
the quota rule for promotion would apply.
The above conclusion at which we have reached is reinforced
also by a reference to rule 2 of section 6 in Chapter V at
page 31 of the C.P.W.D. Manual, Volume 1 (1970 edition)
(hereinafter referred to as the Manual) wherein "every
officer appointed against a permanent or temporary post" is
specifically adverted to. Again at page 35, rule 19(b),
there is a reference to Class I Direct Recruits (temporary).
Indeed we find an admission in paragraph 67 of the
Affidavit-in-reply filed by P.B. Kulkarni at page 271 of the
record: "I submit that the quota rule is to be applied as
and when vacancies in the grade of Executive Engineer are
required to be filled but as already stated earlier it has
not been possible to apply this quota rigidly at the time of
officiating promotions as promotions from the grade of
Assistant Engineer have been far in excess of their quota".
It may also be noted that it is at the stage of promotion to
the grade of Executive Engineer that the quota rule is to be
applied. Now there is a well-recognised distinction between
"promotion" and "confirmation" and that is apparent from the
Manual, Chapter VI, Section 6 at pages 46-47. Rule 6, at
page 47 says that promotions by a Departmental Promotion
Committee on the basis of assessment of merit from a field
of choice which may extend upto 5-6 times the number of ex-
pected vacancies, while rule 4 provides that the
confirmation is subject to satisfactory performance and
clearance from the vigilance angle and the confidential
dossier of the official concerned is required to be reviewed
to see that the individual has been reported satisfactorily
during the ’period of last three years as may be fixed by
the Departmental Promotion Committee for the purpose and if
the reports are unfavourable or below average, the incumbent
shall ’have to wait for a further period till he gains
satisfactory reports. The tests , to be applied for the
purpose of "promotion" and "confirmation" are entirely
different. When promotion is made by selection, as it is,
from amongst Assistant Engineers, it is based on the
assessment of relative merit from a field choice consisting
of the senior most persons in the lower cadre upto about 5
or 6 times the number of expected vacancies, while for
confirmation the only aspect considered is whether the
performance of the incumbent is satisfactory and there is
nothing objectionable from the violence angle. Then again
section 7 of Chapter V of the Manual deals with the subject
of promotion while section 8 of the same chapter deals with
the subject of confirmation clearly recognising the distinc-
tion between promotion and confirmation. Rule 4 of section
7 at page 48 also makes a clear distinction between
promotion and confirmation. Rule 9 of the same section at
page 50 lays down the procedure for promotion to the
selection posts and this procedure has clearly no
application in cases of confirmation. It was this procedure
which was apparently followed when the petitioners and
respondents 67 to 118
9 90
were promoted as officiating Executive Engineers from the
grade of Assistant Engineer. Then rule 12 of section 7 at
page 52 lays down that in order to be eligible for promotion
as Superintending Engineer an Executive Engineer promoted
from Class I Service would have to, put in "7 years’ service
in the grade of Executive Engineer". Similarly an Executive
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16
Engineer promoted from Class II service also has to put in
"7 years’ service in the grade of Executive Engineer’. Thus
once an Assistant Engineer is regularly promoted to
officiate in the grade of Executive Engineer, there is no
further restriction under the rules in his next jump to the
grade of Superintending Engineer. Now it cannot be disputed
that for the purpose of promotion to the- grade of
Superintending Engineer 7 years service in the grade of
Executive Engineer would count by taking into account not
only service rendered after confirmation in the permanent
post of Executive Engineer but also service rendered in an
officiating capacity in a permanent or temporary post as
Executive Engineer. This can be explained only on the
hypothesis that the grade of Executive Engineer consists
both of permanent and temporary posts and service in an
officiating capacity, here, is service in the grade of
Executive Engineer. When an Assistant Executive, Engineer
or Assistant Engineer is promoted to officiate as Executive
Engineer he is regarded as promoted to and serving in the
grade of Executive Engineer. Again rule 11 of section 8 at
page 57 of the Manual enunciates a very important principle
which clearly brings out the distinction between promotion
and confirmation. It says inter alia that the list of
eligibility, is to be finalised "after keeping in view the
seniority of the persons concerned in the post in which he
is to be confirmed". Seniority "in the post in which he, is
to be confirmed" is to be reckoned. That means that those
who are to be confirmed as Executive Engineers have a
seniority in the grade of Executive Engineer though they are
only officiating Executive Engineers and their confirmation
would follow according to their seniority as officiating
Executive Engineers which would depend on when they were
promoted as officiating Executive Engineers in a regular
manner within their quota. It would, therefore, be seen
that so far as this service is concerned promotion has
always been recognised as distinct from confirmation.
During the course of hearing instances have been shown where
Assistant Engineers before confirmation in Class It have
been regularly promoted to officiate as Executive Engineers.
So also Executive Engineers prior to their confirmation as
such have been promoted to officiate as Superintending
Engineers. The process of selection by the Departmental
Promotion Committee, according to rule 9 of section 7 at
page 50 of the Manual is applied at the stage of promotion
of Assistant Engineers as officiating Executive Engineers
and not at the stage of their confirmation which is required
to be made according to rule 4 of section 6 at page 46 and
rule 1 1. of section 7 at page 57 of the Manual. The quota
rule which on the plain language of the last paragraph of
rule 4(2) is to be applied at the stage of promotion must,
therefore, be given effect to at the point of time when
Assistant Engineers and Assistant Executive Engineers are
promoted as officiating Executive Engineers and not at the
stage of their confirmation.
It is submitted by the respondents that one-third quota
cannot be filled unless the two-third quota was exhausted.
This, in our view,
991
will introduce sterility in the quota rule so far as the
promotees are concerned. Their hopes and aspirations cannot
be related to the availability or non-availability of the
direct recruits to fill the two third quota. Each quota
will have to be worked independently on its own force. The
word "rest" in the quota rule cannot be pressed into service
to defeat the object of the rule coming in aid of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16
advancement of prospects of promotees in the hierapchy by of
the Service.
It may be pointed out that even in the case of recruitment
to the cadre of Income Tax Officer, Grade II, Class 1, the,
letter of the Government of India dated September 29, 1944,
which fixed the quota between direct recruits and promotees
pursuant to rule 4 was substantially in the same terms as
the last paragraph of the present rule 4(2). It is stated
that the recruitment to Grade 11 of Class I will be made
partly by promotion and partly by direct recruitment and
that "80% of the vacancies arising in the grade will be
filled by direct recruitment and the remaining 20% vacancies
will be filled on the basis of the promotion by selection
provided suitable number of men are available for
promotion". This quota of 80% and 20% was subsequently
altered by Government of India-to 66-2/3% and 33-1/3% by
their letter dated October 18, 1951. This Court held in
Bishan Sarup Gupta’s case (supra) interpreting the quota
rule of 1944 and 1951 in para 18 thereof as follows
"It is feebly contended on behalf of the
direct recruits that the quota rule should
relate to only vacancies in permanent posts
and not temporary posts. This contention is
not accepted either by the promotees or the
department. There is nothing in the ’ Rules
of 1945 or the quota rule of 1951 which says
that the vacancies must be vacancies in perma-
nent posts. Indeed the vacancies must be
permanent vacancies that is to say vacancies
which are not for a few days, or for a few
months or are otherwise adventitious. The
whole cadre has consisted of permanent and
temporary Posts for years. Permanent
vacancies are, therefore, likely to take place
both in the permanent posts and in the
temporary posts. In fact Mr. Dutt, in his
affidavit filed in Jaisinghani’s case (supra),
had clearly alleged in paras 25 and 26 of the
affidavit that all the: direct recruits from
1948 onwards were initially appointed against
temporary posts and even at the time of the
filing of the affidavit, i.e. on January 31,
1967, direct recruits were being appointed
against temporary posts. We, therefore, find
no sufficient warrant for the contention that
the vacancies referred to in the quota rule
are vacancies only in the permanent posts".
This reasoning applies equally in the present case and it
must be held that the vacancies referred to in the quota
rule in the last paragraph of rule 4(2) are vacancies not
only in the permanent posts but also in the temporary posts
in the grade of Executive Engineer and the quota rule
applies at the stage when Assistant Engineers and Assistant
Executive Engineers are promoted even if it be in an offi-
992
ciating capacity to fill vacancies in the grade of Executive
Engineer irrespective of whether the vacancies are in
permanent posts or temporary posts.
But then the question may arise as to how the quota rule is
to be applied. Here again we find that guidance is afforded
by the decision of this Court in Bishan Sarup Gupta’s case
(supra). Paragraph 14 of the judgment in that case deals
with this very question vis-a-vis recruitment to the cadre
of Income Tax Officers, Grade 11, Class I
"On the other hand, the contention on behalf
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16
of the direct recruits is that the real
intention of the rule was to secure that at
any given moment the service must consist of
direct recruits and promotees in the
proportion of 2:1. If, for example, in any
year 50 direct recruits were appointed, than
not more than 25 promotees could be appointed
in that year. If also no direct recruit was
appointed in a year there could be no
appointment of promotees. This line of
argument has been accepted by the High Court
and it was substantially on that ground that
the seniority list prepared on July 15, 1968,
has been set aside and directions given for
preparing a fresh one. What was, however,
over-looked is that the rule, dated October
18, 1951, was not concerned With the
constitution of the cadre but was concerned as
to how permanent vacancies were to be filled.
Rule 4 of the Income-tax Class 1, Grade 11
Service Recruitment Rules also refers to
recruitment of-candidates to vacancies in the
service. The vacancies for any particular
year being ascertained, not more than one
third of the same were to go to the promotees
and the rest to the direct recruits. The
ratio was not made dependent on whether any
direct recruit was appointed in any particular
year or not. We are, therefore, unable to
accept the con construction put on the quota
rule by the High Court. In our opinion, the
promotees were entitled to one-third of the
vacancies in any particular year whether or
not there was direct recruitment by
competitive examination in that year".
It would, therefore, be seen that the Assistant Executive
Engineers were entitled initially to three-fourth and
subsequently to two-third of the vacancies in the grade of
Executive Engineers arising in any particular year, while
Assistant Engineers were entitled initially to ,one-fourth
and subsequently to one-third of such vacancies and the
ratio was not dependent on whether any persons from one
class or the other were, promoted or not. If there were
three vacancies in a year, two would go to the 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-two
vacancies belonging to their quota, one vacancy will have to
be filled by promotion of an Assistant Engineer. If having
regard to the exigencies of the situation, the 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,
993
the appointment of the Assistant Engineers to fill in such
two vacancies would be irregular, because that would be
outside their quota and in that event they would have to be
pushed down to later years when their appointment can be,
regularised as a result of absorption in their lawful quota
for those years. This is what was directed to be done by
this Court for the purpose of fixing inter se seniority
amongst direct recruits and promotees in the grade of Income
Tax Officers Grade 11, Class 1, in Bishan Sarup Gupta’s case
(supra). This Court pointed out in that case as follows at
page 8
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16
"If there were promotions in any year in
excess of the quota those promotions were
merely invalid for that year but they were not
invalid for all time. They can be regularised
by being absorbed in the quota for the later
years. That is the reason why this Court
advisedly used the expression "and onwards"
just to enable the Government to push down ex-
cess promotions to later years so that these
promotions can be absorbed in the lawful quota
for those years".
The same procedure will have to be followed in the present
case. Whenever it is found that Assistant Engineers were
promoted as officiating Executive Engineers in excess of
their quota they would have to be pushed down to later years
in order that their promotion may be regularised by being
absorbed in their quota for later years.
When recruitment is from two or several’ sources it should
be observed that there is no inherent invalidity in
introduction of quota system and to Work it out by a rule of
rotation. The existence of a quota and rotational rule, by
itself, will not violate article 14 or article 16 of the
Constitution (See Marvyn Coutinho & Ors. v. Collector of
Customs, Bombay & Ors.,(1) and Govind Dattatray Kelkar &
Ors. V. Chief Controller of Imports & Exports & Ors.) .(2)
It is the unreasonable implementation of the same which may,
in a given case, attract ,he frown of the equality clause.
If the seniority list is now properly prepared in the manner
indicated in this judgment, +,here may be no objection on
the score of article 14 or article 16 of the Constitution.
In this view of the matter, it is not necessary to pursue
the arguments addressed regarding violation of articles 14
and 16 of the Constitution.
To summarise the conclusions-
(1) When Assistant Engineers (Class 11) are
initially appointed in a regular manner in
accordance with the rules to, officiate as
Executive Engineers, their seniority in
service in Grade I will count from the date of
their initial officiating appointment in Class
I provided their initial officiating
appointment as Executive Engineers was
within their quota.
(2) Their seniority will not be reckoned
from the date of their future confirmation in
Class 1.
(1) [1966] 3 S.C.R. 600.(2) [1967] 2 S.C.R.
29.
9 94
The above principle is, however, suspect to
one reservation, namely, if an Assistant
Engineer before his confirmation in Class 11
were appointed to officiate in Class I in the
grade of Executive Engineer, although within
his quota, his seniority will count only from
the date of his confirmation in Class 11 as
permanent Assistant Engineer notwithstanding
his earlier officiating appointment as
Executive Engineer.
(3) The quota rule will be enforced at the
time of initial recruitment, in an officiating
capacity, to the grade of Executive Engineer
and not at the time of confirmation.
(4) The quota rule will be enforced with
reference to vacancies in all posts, whether
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16
permanent or temporary, included in the
sanctioned strength of the cadre (except such
vacancies as are purely of a fortuitous or
adventitious nature) and the operation of the
quota rule will not depend upon the
availability or non-availability of Assistant
Executive Engineers for appointment as
Executive Engineers. The non-availability of
Assistant Executive Engineers for recruitment
to the grade of Executive Engineer will not
postpone the regular recruitment of the
Assistant Executive Engineers as Executive
Engineers within their quota.
(5) Once the Assistant Engineers are
regularly appointed to officiate as Executive
Engineers within their quota they will be
entitled to consideration in their own rights
as Class I Officers to further promotions.
Their "birth marks" in their earlier service
will be of no relevance once they are
regularly officiating in the grade of
Executive Engineer within their quota.
(6) If Assistant Engineers are recruited as
Executive Engineers in excess of their quota
in a Particular year they will be pushed down
to later years for absorption when due within
their quota.
In the result the Writ Petition and the Civil Appeals are
allowed. The judgment of the High Court is set aside. The
respondents 1 to 3 in Writ Petition No. 489 of 1972
(respondent No. 1 being common in the other two Appeals) are
directed to amend and revise the
995
seniority list of 1971 (Annexure ’J’) in the light of the
directions in this judgment and to give effect thereafter to
the revised seniority list so prepared. The revision of the
seniority list shall not, however,. affect those employees
who are not impleaded in the proceedings before this Court
and who have already been promoted and confirmed in higher
grades in the Service. Respondents 1 to 3 will pay the
costs of the petitioners in Writ Petition No. 489 of 1972
and respondent No. 1 will pay to the appellants in the Civil
Appeals costs through-out.
C.M.P. No. 1889 of 1974 regarding delay in filling of the
counter-affidavit on behalf of respondents 1 to 3 in the
Writ Petition is. allowed.
We may observe in the end that it maybe desirable that the
time-, of this Court may not be consumed in resolving these
complex tangles in conditions of service breeding human
discontent and the solution thereof is better left to a fair
and proper formulation of precise and’ unequivocal statutory
rules after examination of the problems with a,. broad
humane approach.
P.H.P. Petitions and
Appeals allowed,
996