Full Judgment Text
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PETITIONER:
B. N. NAGARAJAN AND ORS.
Vs.
RESPONDENT:
STATE OF KARNATAKA AND ORS. ETC.
DATE OF JUDGMENT:
03/05/1959
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
KRISHNAIYER, V.R.
KAILASAM, P.S.
CITATION:
1979 AIR 1676 1979 SCR (3) 937
1979 SCC (4) 507
CITATOR INFO :
RF 1991 SC 764 (9,10)
ACT:
Mysore Government Servants (Seniority) Rules 1957 Rule
2 read with Rule 2 of the Mysore Government Servants
(Probation) Rules 1957-Scope of.
Consititution of India, Art. 226-Whether the scope of
the Writ Petition be limited to the prayer portion alone?
HEADNOTE:
In the new State of Mysore (Now Karnatake) which came
into existence on 1-11-56 as a result of integration of the
areas which formed part of erstwhile States of Mysore,
Madras, Coorg, Bombay and Hyderabad, the Government on 6-2-
58, 7-2-58 and 2-12-60 respectively promulgated the
following Rules (all framed under Article 309 of the
Constitution) namely, "The Mysore Government Servants
(Probation) Rules 1957, "The Mysore Government Servants
(Seniority) Rules 1957 and "The Mysore Public Works
Engineering Department Services (Recruitment) Rules, 1960"
The recruitment Rules envisaged appointment of Assistant
Engineers in the Public Works Department by direct
recruitment to the extent of 40% and by promotion for the
rest viz. 50% from the cadre of Junior Engineers and 10%
from the cadre of supervisors. The cadre of Assistant
Engineers was to consist of 344 permanent and 345 temporary
posts.
Prior to 1-11-56 in the merged States, there was a non
gazetted class designated as graduate supervisors in Mysore
State, as Junior Engineers in the Madras State and as
supevisors in the States of Bombay and Hyderabad. The claim
of the graduate supervisors who were given charge of sub-
divisions prior to 1-11-56 and continued to hold the same
even thereafter, for equation of their posts with those of
Assistant Engineers, was rejected by the Central Government.
However, on 15-11-58, 167 of them (including 107 graduate
supervisors from Mysore) and between the period 2nd Dec.
1958 and 13th October ’60, 299 more persons of the same
class were promoted as officiating Assistant Engineers. With
reference to three notifications of the Mysore Public
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Service Commission dt. 1-10-58, 4-5-59 and 1-4-61, eighty
eight candidates were appointed on 31st Oct.’ 61, i.e. 8
days after the amendement of the Recruitment Rules giving
them retrospective effect from 1st March 1958, as
Probationary Assistant Engineers by direct recruitment. The
challenge to their appointment was ultimately rejected by
this Court in B. N. Nagarajan v. State of Mysore & Ors.,
[1966] 3 S.C.R. p. 682 holding that their appointment
although made after the Recruitment Rules had come into
force, were valid, as the process of direct recruitment had
been set in motion by the State Government in exercise of
its executive power under Article 162 of the Constitution of
India well before the Recruitment Rules were promulgated and
that these appointments were therefore, "outside the
Recruitment Rules".
In the year 1971 various orders were passed promoting
some of the direct recruits to the posts of Executive
Engineers and those orders were challenged by
938
the promotees on the ground that they had been given
promotions "on regular basis" which amounted to substantive
appointments and that therefore they should rank senior to
the direct recruits. Subsequent to the issue on 4-9-73 of a
revised seniority list snperseding the list (G) prepared on
28-9-72 further writ petitions were filed by the promotees.
All the petitions were heard together by the High Court and
allowed with the following directions:
(i) Promotees other than those covered by direction
(ii) and direct recruits, would not be governed by the quota
system as envisaged in the Recruitment Rules.
(ii) Promotees who were appointed to posts of Assistant
Engineers with effect from 1st of March 1958, or later
dates, would be governed by the quota system as envisaged in
the Recruitment Rules.
(iii) Promotees appointed as Assistant Engineers prior
to 31st October 1961 would rank senior to the direct
recruits whose appointments were made on that date.
(iv) The claim of each of the promotees to the next
higher post shall be con sidered with effect from a day
prior to that on which any officer found junior to him was
promoted.
Allowing the appeals by special leave, the Court
^
HELD:
1. The scope of the writ petition was not limited to
thq question of preme tion of Assistant Engineers as
Executive Engineers. The attack on the seaiority list dated
4th Sept. 1973 was inherent in the case set up by the
promotees, of which it formed an integral part. Though no
prayer had been made by the promotees to quash or rectify
the seniority list dated 4th September 1973, their whole
case was based on the contention that they had been promoted
to the posts of Assistant Engineers in a substantive
capacity prior to the appointment of direct recruits, that
they would take precedence over direct recruits in the
matter of seniority and regular absorption in the cadre of
Assistant Engineers and that it was on that account that the
promoion of direct recruits to the posts of Executive
Engineers without consideration of the case of the promotees
for such promotion was illegal. [946E-G]
2. No exception is or can be taken on behalf of the
promotees to the finding arrived at by the High Court that
the appointment of direct recruits to the posts of Assistant
Engineers was in order, in view of the judgment of this
Court in B. N. Nagarajan v. State of Mysore, [1966] 3 SCR p.
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682. Nor can it be urged with any plausibility on behalf of
direct recruits that the appointment of the promotees as
Assistant Engineers prior to the enforcement of the
Recruitment Rules lay outside the powers of the Government
or was otherwise illegal. [946G-H, 947A]
V. B. Badami and Ors. v. State of Mysore and Ors.,
[1976] 1 SCR 815 and B. N. Nagarajan v. State of Mysore and
Ors., [1966] 3 SCR 682; followed.
3. A combined reading of Rule 2 of the Seniority Rules
and the definition of the words "appointed on probation" and
"Probationer" in Rule 2 of the Probation Rules, makes it
clear that the direct recruits were appointed as Assistant
939
Engineers, "substantively in clear vacancies" as envisaged
by clause (a) of rule 2 of the Seniority Rules. If any of
the promotees also satisfied that requirement at any time
earlier to the 31st of October 1961, he would be bracketed
with the direct recruits under that clause and his seniority
vis-a-vis those recruits would then be govened by clause (b)
of the rule i.e., on the basis of his and their respective
dates of confirmation. If, on the other hand, none of the
promotees can be said to have been appointed substantively
in a clear vacancy, clause (a) aforesaid would have no
application to them and all direct recruits would rank
senior to them. [947G-H, 948A-B]
4. In the instant case, all through the relevant period
the promotees held appointments as Assistant Engineers in
non-substantive capacity, i.e., either on an officiating or
a temporary basis. This being the position, they would all
rank junior to the direct recruits who, from the very start,
held appointments made "substantively in clear vacancies".
[950H, 951A]
(a) The language employed in the first order dated 15th
November 1958 (Ex.A) appointing promotees as Assistant
Engineers makes it clear that the promotion of the 167
officers was not substantively made, the tenure being
specifically stated to be either "officiating" or "purely
temporary" and "subject to review after the finalisation of
the inter se seniority list of supervisors and the
Recruitment Rules", which expressions clearly militate
against a substantive appointment. [948E-G]
(b) Orders made by the State Government later on right
upto the 31st October, 1961 when the direct recruits were
appointed as Assistant Engineers did not improve the
position of any of the promotees in any manner. These orders
were either silent on the point of the nature of the tenure
of the promotees as Assistant Engineers, or stoted in no
uncertain terms that the promotees would hold the posts of
Assistant Engineers on a temporary or officiating basis.
[948G-H. 949A]
(c) The two Notifications dated 27th February 1962, and
order Exhibit (D). dated 6th October 1962-the combined
effect of which was to promote the said 107 officers as
Assistant Engineers with effect from 1st of November 1956
"on a regulaur basis" do not give it the colour of
permanence to the appointments of the promotees as Assistant
Engineers which cannot therefore be deemed to have been made
substantively right from the 1st of November 1956 for two
reasons; Firstly, the words "regular" or "regularisation" do
not connote permanence. They are terms calculated to condone
any procedural irregularities and are meant to cure only
such defects as are attributable to the methodology followed
in making the appointments. Secondly, when rules framed
under Article 309 of the Constitution of India are in force,
no regularisation is permissible in exercise of the
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executive powers of the Government under Article 162 thereof
in contravention of the Rules. The regularisation order was
made long after the Probation Rules. the Seniority Rules and
the Recruitment Rules were promulgated and could not
therefore direct something which would do violence to any of
the provisions thereof. Regularisation in the present case,
if it meant permanence operative from the 1st of November,
1956 would have the effect of giving seniority to promotees
over the direct recruits who, in the absence of such
regularisation. would rank senior to the former because of
the Seniority Rules read with the Probation Rules and may in
consequence also confer on the promotees a right of priority
in the matter of sharing the quota under the Recruitment
Rules. In
940
other words, the regularisation order, in colouring the
appointments of promotees as Assistant Engineers with
permanence would run counter to the rules framed under
Article 309 of the Constitution of India. What could not be
done under the three sets of Rules as they stood, would thus
be achieved by an executive fiat. And such a course is not
permissible because an act done in the exercise of the
executive power of the Government, cannot override rules
framed under Article 309 of the Constitution. [949B-D, 950D-
G]
State of Mysore and Anr. v. S. V. Naraynaswami, [1967]
1 SCR 128 and R. N. Nanjundappa v. T. Thimmiah, [1972] 2 SCR
799; applied.
The Court made it clear (a) "that this order does not
cover such officers as were holding the posts of Assistant
Engineers on a substantive basis prior to the 1st of
November, 1956 when the new State of Mysore now known as
Karnataka came into being, and the case of any Assistant
Engineer who acquired a substantive status prior to the
promulgation of the Recruitment Rules and the appointment of
the direct recruits; (b) that persons falling within these
two categories will first have to be accommodated in the
clear vacancies available and only the remaining vacancies
will have to be utilised for fitting in the direct recruits
and the Assistant Engineers who have disputed their claim in
these proccedings; and (c) that the quota rule will not
stand in the way of the Government giving effect to this
arrangement which has been taken care of in the anemendment
(promulgated on the 23rd of October 1961) to the Recruitment
Rules"].
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2329 of
1977.
Appeal by Special Leave from the Judgment and Order
dated 30-11-1976 of the Karnataka High Court in W.P. No
2307/71.
CIVIL APPEAL NOS. 2330-2350/77
Appeals by Special Leave from the Judgment and Order
dated 30-11-1976 of the Karnataka High Court in W.P. Nos.
2307/71, 796/72, and 462-467, 553-560, 943, 944, 1033, 1027
and 1032/73; and
CIVIL APPEAL NOS. 2351-2370/77
Appeals by Special Leave from the Judgment and Order
dated 30-11-1976 of the Karnataka High Court in W.P. Nos.
462-467, 553-560, 796, 943,944, 1027, 1033/73.
P. Ram Reddy and S. S. Javali for the Appellant in CA
2329/77.
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F. S. Nariman, B. P. Singh and A. K. Srivastava for the
Appellants in C.A. Nos. 2351-2370/77.
L. N. Sinha and Narayan Nettar for the Appellants in
C.A. 2330 to 2370/77.
A. K. Sen, Muralidhar Rao and P. R. Ramasesh for RR.
2,3,5, and 7 in C.A. 2329/77.
P. R. Ramasesh for RR/Promotees in CA 2330-2350/77 and
RR in C.A. 2352-2370/77.
941
Y. S. Chitale, M. Muralidhar Rao, P. R. Ramasesh and S.
S. khanduja, for the RR in C.A. 2351/77.
The Judgment of the Court was delivered by
KOSHAL, J.-By this judgment we shall dispose of 42
appeals by special leave, namely, Civil Appeals Nos. 2329 to
2370 of 1977, all of which are directed against a judgment
dated the 30th November, 1976 of a Division Bench of the
High Court of Karnataka. Civil Appeals Nos. 2329 and 2351 to
2370 of 1977 have been filed by different persons who were
appointed Assistant Engineers in the Karnataka State on 31st
October, 1961, by way of direct recruitment while the other
21 appeals have been filed by that State.
2. The facts giving rise to the impugned judgment may
be set down in some detail. A new State came into existence
on the 1st of November, 1956 as a result of integration of
the areas which formed part of the erstwhile States of
Mysore, Madras, Coorg, Bombay and Hyderabad (hereinafter
referred to as the Merged States). It was then given the
name of one of its constituents, namely, the State of
Mysore, which was later changed to that of the Karnataka
State. In the Public Works Departments of the Merged States
there was a class of non-gazetted officers ranking below
Assistant Engineers. The class was designated as Graduate
Supervisors in the Merged State of Mysore, as Junior
Engineers in the Merged State of Madras and as Supervisors
in the Merged States of Hyderabad and Bombay. The Graduate
Supervisors were paid a fixed salary of Rs. 225/- per mensem
which was lower by Rs. 25/- per mensem as compared to the
starting salary of Assistant Engineers, who, in the normal
course, were expected to head sub-divisions. To the post of
Assistant Engineer a Graduate Supervisor was appointed only
on promotion.
Prior to the 1st of November, 1956, quite a few
Graduate Supervisors were given charge of sub-divisions and
designated as Sub Divisional Officers in order to meet the
exigencies of service and they continued to act as such
after the merger when they claimed equation of their posts
with those of Assistant Engineers in the matter of
integration of services. To begin with their claim was
turned down by the Central Government who equated the posts
of Graduate Supervisors with the posts of Junior Engineers
of the Merged State of Madras and the posts of Supervisors
of the Merged States of Hyderabad and Bombay.
By a notification dated the 6th of February, 1958, the
Government of Karnataka (then known as the Government of
Mysore)
942
promulgated the Mysore Government Servants (Probation)
Rules, 1957 (hereinafter called the Probation Rules) and on
the next day came into force the Mysore Government Servants
(Seniority) Rules, 1957 (hereinafter referred to as the
Seniority Rules), both having been framed under Article 309
of the Constitution of India.
On the 1st of October, 1958, the Karnataka Public
Service Commission invited applications from candidates for
appointment to the posts of Assistant Engineers by direct
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recruitment.
In the meantime Graduate Supervisors and Government
employees holding equivalent posts had continued to press
their claim for the equation of their posts with the posts
of Assistant Engineers and they succeeded partially when, on
the 15th of November, 1958, the Karnataka Government
promoted 167 of them (including 107 Graduate Supervisors who
had been working as such in the Merged State of Mysore) as
officiating Assistant Engineers with immediate effect. The
promotion was notified in the State Gazette dated the 20th
of November, 1958 (Exhibit A) the relevant portion whereof
may be reproduced for facility of reference:
"....... The following supervisors of Public Works
Department are promoted as officiating Assistant Engineers
with immediate effect and until further orders against the
existing vacancies subject to review after the finalisation
of the Inter-Se Seniority List of Supervisors and the Cadre
and Recruitment Rules of Public Works Department. The
promotion of officers from Sl. No. 74 to 167 against
existing vacancies will be purely on a temporary basis
pending filling up of the vacancies by Direct Recruitment as
per rules. The Seniority inter se of the Promotees will be
provisional according to the order given below : ..........
".
299 more persons of the same class were promoted to the
posts of Assistant Engineers by eight notifications
published during the period from 22nd of December, 1958 to
the 13th of October, 1960.
On the 21st (31st?) of August, 1960, the State
Government passed an order in regard to the 107 Graduate
Supervisors from the Merged State of Mysore and mentioned
above, directing that they be treated as Assistant Engineers
and be paid the pre-revision scale of pay of Rs. 250-25-450
from the 1st of November, 1956 to the 31st of December, 1956
and the revised scale of pay of Rs. 250-25-450-30-600 from
the 1st of January, 1957 onwards. The order further directed
that the said 107 officers shall be placed in the inter-se
seniority list below the Assistant Engineers.
943
On the 3rd of December, 1960, the Karnataka Government
promulgated the Mysore Public Works Engineering Department
Services (Recruitment) Rules, 1960 (hereinafter referred to
as the Recruitment Rules) under Article 309 of the
Constitution of India, which envisaged appointment of
Assistant Engineers in the Public Works Department by direct
recruitment to the extent of 40 per cent and by promotion
for the rest, viz., 50 per cent from the cadre of Junior
Engineers and 10 per cent from the cadre of Supervisors. The
cadre of Assistant Engineers was stated in the Rules to
consist of 344 permanent and 345 temporary posts.
On the 23rd of October, 1961, the Recruitment Rules
were amended so as to be operative retrospectively i.e.,
with effect from the 1st of March, 1958.
On the 31st of October, 1961, 88 candidates were
appointed as Probationary Assistant Engineers by direct
recruitment.
Two notifications were issued by the State Government
on the 27th of February, 1962. By each one of them 231
Junior Engineers were given "regular promotions" as
Assistant Engineers with effect from specified dates falling
within the period 15th of November, 1958 to the 10th of
November, 1960. The first of these notifications stated
inter alia:
"....... However, the promotions are subject to
review after finalisation of the interse Seniority List of
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Junior Engineers....."
The second of the notifications issued on the 27th of
February. 1962, mentioned that the officers named therein
would be deemed to be temporarily promoted and permitted to
continue to officiate as Assistant Engineers on a
provisional basis and until further orders.
The case of the said 107 officers received further
consideration at the hands of the State Government, who, on
the 6th of October, 1962, issued another order (Exhibit D)
superseding the one dated the 31st of August, 1960, and
promoting them as Assistant Engineers with effect from the
1st of November, 1956.
By the 24th of September, 1966, the number of
Probationary Assistant Engineers appointed through direct
recruitment (hereinafter called direct recruits) had fallen
to 85 for reasons which need not be stated. On that day the
State Government passed an order that they had all completed
their period of probation satisfactorily and stood absorbed
against substantive vacancies with effect from the 1st of
November, 1962.
944
In 1971 various orders were passed promoting some of
the direct recruits to the posts of Executive Engineers and
those orders were challenged in a writ petition dated the
15th of September, 1971, by the promotees to the posts of
Assistant Engineers (hereinafter referred to as the
promotees).
On the 28th of September, 1972, a list (Exhibit G) of
Assistant Engineers indicating their seniority inter se as
on the 1st of November, 1959, was prepared by the State
Government. In that list the promotees were accorded
seniority to their satisfaction. However, that list was
superseded by another list dated the 4th of September, 1973,
in which the seniority inter se of all Assistant Engineers
functioning in the State Public Works Department as on 1st
of January, 1973 was declared. The new list purported to
have been framed in accordance with the Recruitment Rules.
Objections to the list were invited and were submitted by
various officers.
During the year 1973 more writ petitions challenging
the promotion of direct recruits to the posts of Executive
Engineers were instituted by the promotees on whose behalf
two claims were made before the High Court, namely:
(1) that they had been regularly promoted as
Assistant Engineers against substantive vacancies with
retrospective effect and rightly so; and
(2) that in the case of those of them whose
promotion was made effective from a date prior to the 1st of
March, 1958, the Recruitment Rules, especially the quota
rule, could not affect them adversely.
Both these claims were accepted by the High Court, the first
on the basis of the decision of this Court in Ram Prakash
Khanna & others v. S. A. F. Abbas(1) coupled with the
pleadings of the parties and the various orders issued by
the State Government and mentioned above, and the second on
the authority of another decision of this Court in V. B.
Badami & others v. State of Mysore & others(2). The High
Court accordingly held that the quota rule would not be
attracted to the case of those promotees who had been
appointed to the posts of Assistant Engineers with effect
from a date prior to the 1st of March, 1958. By way of a
’clarification’ the High Court further ruled that the
promotion of the 107 officers working in the Merged State of
945
Mysore was made to substantive posts of Assistant Engineers
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with effect from the 1st of November, 1956, and that the
State Government or the direct recruits could not be allowed
to urge to the contrary. According to the High Court such
promotion was subject to review only if the course was
warranted and necessitated by the final inter se seniority
list of Junior Engineers, the right to review having been
reserved by the Government in its orders dated the 27th of
February, 1962. In relation to the direct recruits the High
Court made a reference to the judgment of this Court in B.
N. Nagarajan v. State of Mysore & others(1) wherein it was
held that their appointments, although made after the
Recruitment Rules had come into force, were valid, as the
process of direct recruitment had been set in motion by the
State Government in exercise of its executive powers under
article 162 of the Constitution of India well before the
Recruitment Rules were promulgated and that those
appointments were therefore "outside the Recruitment Rules".
The High Court consequently held that the direct recruits
were also not subject to the quota rule which could not,
according to it, affect them adversely.
Summing up, the High Court gave the following
directions:
(1) Promotees other than those covered by
direction (2) and direct recruits would not be governed by
the quota system as envisaged in the Recruitment Rules.
(2) Promotees who were appointed to posts of
Assistant Engineers with effect from the 1st of March, 1958,
or later dates, would be governed by the quota system as
envisaged in the Recruitment Rules.
(3) Promotees appointed Assistant Engineers prior
to the 31st of October, 1961, would rank senior to the
direct recruits whose appointments were made on that date.
(4) The claim of each of the promotees to the
next higher post shall be considered with effect from a day
prior to that on which any officer found junior to him was
promoted.
3. The first contention we would like to deal with is
one raised by Mr. F. S. Nariman appearing for the direct
recruits. He argued that the scope of the writ petitions
instituted by the promotees was limited to the question of
promotion of Assistant Engineers as Executive Engineers and
that no challenge to the seniority list dated the 4th of
September, 1973 could be entertained. In this connection
946
reference was made to the prayer clause appearing in Writ
Petition No. 462 of 1973 which is in the following terms:
"In this writ petition, it is prayed that this
Court may be pleased to:
(1) quash the promotion of respondents 2 to 31 to
the cadre of Executive Engineers made as per order dated 3-
2-1973;
(2) direct the respondent 1 to consider the case
of the petitioner for promotion to the cadre of Executive
Engineers with effect from 3-2-1973 on which date
respondents 2 to 31 were promoted; and
(3) pass an interim order, restraining the
respondent 1 from making further promotion to the cadre of
Executive Engineers without considering the case of the
petitioner for such promotion, pending disposal of this writ
petition."
(It was assumed at the hearing of the appeals that the
prayer made in the other writ petitions is to a similar
effect).
It is true that no prayer has been made by the
promotees to quash or rectify the seniority list dated the
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4th of September, 1973, but then their whole case is based
on the contention that they had been promoted to the posts
of Assistant Engineers in a substantive capacity prior to
the appointment of the direct recruits, that they would take
precedence over direct recruits in the matter of seniority
and regular absorption in the cadre of Assistant Engineers
and that it was on that account that the promotion of direct
recruits to the posts of Executive Engineers without
consideration of the case of the promotees for such
promotion was illegal. The attack on the said seniority list
therefore is inherent in the case set up by the promotees,
of which it forms an integral part. In this view of the
matter we cannot agree with Mr. Nariman that the scope of
the writ petitions is limited as stated by him.
4. No exception is or can be taken on behalf of the
promotees to the finding arrived at by the High Court that
the appointment of direct recruits to the posts of Assistant
Engineers was in order, in view of the judgment of this
Court in B. N. Nagarajan v. State of Mysore(supra). Nor can
it be urged with any plausibility on behalf of direct
recruits that the appointment of the promotees as Assistant
947
Engineers prior to the enforcement of the Recruitment Rules
lay outside the powers of the Government or was otherwise
illegal. The real dispute between the direct recruits and
the promotees revolves round the quality of the tenure held
by the latter immediately prior to the enforcement of the
Recruitment Rules and that is so because of the language
employed in rule 2 of the Seniority Rules. The relevant
portion of that rule is extracted below:
"2. Subject to the provisions hereinafter
contained, the seniority of a person in a particular cadre
of service or class of post shall be determined as follows:
(a) Officers appointed substantively in clear
vacancies shall be senior to all persons appointed on
officiating or any other basis in the same cadre of service
or class of post;
(b) The seniority inter se of officers who are
confirmed shall be determined according to dates of
confirmation, but where the date of confirmation of any two
officers is the same, their relative seniority will be
determined by their seniority inter se while officiating in
the same post and if not, by their seniority inter se in the
lower cadre;
(c) Seniority inter se of persons appointed on
temporary basis will be determined by the dates of their
continuous officiation in that grade and where the period of
officiation is the same the seniority inter se in the lower
grade shall prevail.
Explanation.......................................
(d)............"
Now in so far as the direct recruits, are concerned they
were appointed as Probationary Assistant Engineers,i.e.,
Assistant Enginers "appointed on probation" which term is
defined in rule 2 of the Probation Rules. That rule states"
"2. For the purpose of these rules :-
(1) "Appointed on Probation" means appointed on
trial in or against a substantive vacancy.
(2) "Probationer" means a Government servant
appointed on probation. A Government servant so appointed
(and continuing in service) remain a probationer until he is
confirmed."
948
In view of these definitions it cannot be gainsaid that the
direct recruits were appointed Assistant Engineers
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"substantively in clear vacancies" as envisaged by clause
(a) of rule 2 of the Seniority Rules. If any of the
promotees also satisfied that requirement at any time
earlier to the 31st of october, 1961, he would be bracketed
with the direct recruits under that clause and his seniority
vis-a-vis those recruits would the be governed by clause (b)
of the rule, i.e., on the basis of his and their respective
dates of confirmation. If, on the other hand, none of the
promotees can be said to have been appointed substantively
in a clear vacancy, clause (a) aforesaid would have no
application to them and all direct recruits would rank
senior to them; and it is in the ligrht of the said clauses
(a) and (b) therefore that learned counsel for the State and
the direct recruits have challenged the finding of the High
Court that the promotion of the 107 officers working in the
Merged State of Mysore was made to substantive posts of
Assistant Engineers with effect form the 1st of November,
1956 and that the State Government or the direct recruits
could not be allowed to urge to the contrary. The
controversy has to be resolved in the light of the orders
passed by the State Government from time to time in relation
to those officers and others similarly situated.
5. The first order appointing promotees as Assistant
Engineers is dated the 15th of November, 1958 (Exhibit A).
That order made, it clear that all the promotees covered by
it were appointed officiating Assistant Engineers and were
to hold office until further orders. The promotion was also
made subject to review after the finalisation of the inter
se seniority list of Supervisors and the Recruitment Rules.
The notification went on to state that in the case of 94 of
the officers promoted under it, their appointment as
Assistant Engineers was being made on a purely temporary
basis inasmuch as they would have to vacate the posts
against which they were being fitted, as soon as candidates
were available through a process of direct recruitment. The
language employed leaves no doubt that the promotion of the
167 officers was not substantively made, the tenure being
specifically stated to be either "officiating" or "purely
temporary" which expressions clearly militate against a
substantive appointment.
Orders made by the State Government later on and right
upto the 31st of October, 1961 when the direct recruits were
appointed Assistant Engineers did not improve the position
of any of the promotees in any manner. Those orders were
either silent on the point of the nature of the tenure of
the promotees as Assistant Engineers, or stated
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in no uncertain terms that the promotees would hold the
posts of Assistant Engineers on a temporary or officiating
basis. That is why Dr. Chitaley and Mr. Sen, learned counsel
for the promotees, mainly placed their reliance on the two
notifications dated the 27th of February, 1962, and order
exhibit D dated the 6th of october, 1962, the combined
effect of which was to promote the said 107 officers as
Assistant Engineers with effect from the 1st of November,
1956 "on a regular basis". It was argued that the
regularisation of the promotion gave it the colour of
permanence and the appointments of the promotees as
Assistant Engineers must therefore be deemed to have been
made substantively right from the 1st of November, 1956. The
argument however is unacceptable to us for two reasons.
Firstly the words "regular" or "regularisation" do not
connote permanence. They are terms calculated to condone any
procedural irregularities and are meant to cure only such
defects as are attributable to the methodology followed in
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making the appointments. They cannot be construed so as to
convey an idea of the nature of tenure of the appointments.
In this connection reference may with advantage be made to
State of Mysore and Another v. S. V. Narayanappa(1) and R.
N. Nanjundappa v. T. Thimmiah and Another(2). In the former
this Court observed:
"Before we proceed to consider the construction
placed by the High Court on the provisions of the said order
we may mention that in the High Court both the parties
appear to have proceeded on an assumption that
regularisation meant permanence. Consequently it was never
contended before the High Court that the effect of the
application of the said order would mean only regularising
the appointment and no more and that regularisation would
not mean that the appointment would have to be considered to
be permanent as an appointment to be permanent would still
require confirmation. It seems that on account of this
assumption on the part of both the parties the High Court
equated regularisation with permanence."
In Nanjundappa’s case also the question of regularisation of
an appointment arose and this Court dealt with it thus:
"........ Counsel on behalf of the respondent
contended that regularisation would mean conferring the
quality of permanence on the appointment whereas counsel on
behalf
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of the State contended that regularisation did not mean
permanence but that it was a case of regularisation of the
rules under Article 309. Both the contentions are
fallacious. It the appointment itself is in infraction of
the rules or if it is in violation of the provisions of the
Constitution illegality cannot be regularised. Ratification
or regularisation is possible of an act which is within the
power and province of the authority but there has been some
non-compliance with procedure or manner which does not to to
the root of the appointment. Regularisation cannot be said
to be a mode of recruitment. To accede to such proposition
would be to introduce a new head of appointment in defiance
of rules or it may have the effect of setting at naught the
rules."
Apart from repelling the contention that regularisation
connotes permanence, these observations furnish the second
reason for rejection of the argument advanced on behalf of
the promotees and that reason is that when rules framed
under article 309 of the Constitution of India are in force,
no regularisation is permissible in exercise of the
executive powers of the Government under article 162 thereof
in contravention of the rules. The regularisation order was
made long after the Probation Rules, the Seniority Rules and
the Recruitment Rules were promulgated and could not
therefore direct something which would do violence to any of
the provisions thereof. Regulaisation in the present case,
if it meant permanence operative from the 1st of November,
1956, would have the effect of giving seniority to promotees
over the direct recruits who, in the absence of such
regularisation, would rank senior to the former because of
the Seniority Rules read with the Probation Rules and may in
consequence also confer on the promotees a right of priority
in the matter of sharing the quota under the Recruitment
Rules. In other words, the regularisation order, in
colouring the appointments of promotees as Assistant
Engineers with permanence would run counter to the rules
framed under article 309 of the Constitution of India. What
could not be done under the three sets of Rules as they
stood, would thus be achieved by an executive fiat. And such
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a course is not permissible because an act done in the
exercise of the executive power of the Government as already
stated, cannot override rules framed under Article 309 of
the Constitution.
The case has, for both the above reasons, to be decided
on the footing that all though the relevant period the
promotees held appointments as Assistant Engineers in a non-
substantive capacity, i.e. either on an officiating or a
temporary basis. This being the position,
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they would all rank junior to the direct recruits who, from
the very start, held appointments made "substantively in
clear vacancies."
6. We may here make it clear that this order does not
cover such officers as were holding the posts of Assistant
Engineers on a substantive basis prior to the 1st of
November, 1956 when the new State of Mysore now known as
Karnataka came into being. Nor would it adversely affect the
case of any Assistant Engineer who acquired a substantive
status prior to the promulgation of the Recruitment Rules
and the appointment of the direct recruits. Persons falling
within these two categories will first have to be
accommodated in the clear vacancies available and only the
remaining vacancies will have to be utilised for fitting in
the direct recruits and the Assistant Engineers who have
disputed their claim in these proceedings. It may also be
mentioned that the quota rule will not stand in the way of
the Government giving effect to this arrangement which has
been taken care of in the amendment (promulgated on the 23rd
of October, 1961) to the Recruitment Rules. The relevant
portion of that amendment is contained in item 3 thereof
which is reproduced below:
"3. To rule 2 of the following proviso shall be added
and shall be deemed always to have been added, namely-
"Provided that in respect of direct recruitment of
Assistant Engineers for the first time under these rules the
percentages relating to direct recruitment and recruitment
by promotion specified in column 2 of the Schedule shall not
be applicable and the minimum qualifications and the period
of production shall be the following, namely-
"Qualifications :......................"
It is common ground between the parties that the posts
comprised in the cadre of Assistant Engineers constituted by
the Recruitment Rules have yet to be filled in for the first
time. The proviso extracted above therefore will apply fully
to the utilization of those vacancies as stated above. It
goes without saying that all questions of seniority shall be
decided in accordance with the Seniority Rules and that the
Recruitment Rules, as amended from time to time, shall be
fully implemented as from the date of their enforcement,
i.e., 1st of March, 1958.
7. In the result we accept the appeals, set aside the
judgment of the High Court and decide the dispute between
the parties in accordance with the observations made in
paragraphs 5 and 6 hereof.
V.D.K. Appeals allowed.
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