Full Judgment Text
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PETITIONER:
PRABRAKAR YESHWANT JOSHI & ORS.
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA AND ORS.
DATE OF JUDGMENT:
29/09/1969
BENCH:
ACT:
Seniority--Fixation of--Maharashtra Service of
Engineers--Seniority inter se of promotees and direct
recruits--If violative of Articles 14 and 16 of the
Constitution.
HEADNOTE:
The petitioners were direct recruits to the post of Deputy
Engineers in Bombay Service of Engineers Class II. In
petitions under Art. 32 of the Constitution they challenged
the promotion, by the first respondent, of respondents 2 to
5 and others similarly situated to the posts of officiating
Executive Engineers contrary to the principles of natural
justice and in violation of Articles 14 and 16 of the
Constitution. It was contended that under the rules in
force the respondents were only officiating Deputy Engineers
and they had to put in after confirmation as Deputy
Engineers seven years of actual service before being
eligible for promotion as officiating Executive Engineers;
further, particularly in the case of employees from the
erstwhile State of Hyderabad the first respondent had
contrary to the rules relating to promotion, by a resolution
in 1967 directed those employees to be treated as having
been appointed in the reorganised Bombay State as temporary
Deputy Engineers only for the purpose of fixation of their
seniority in the grade of Deputy Engineers and for promotion
to higher posts and therefore those employees did not
satisfy the 7 year requirement. Dismissing the petitions,
HELD : (i) There is nothing in rules 6 7 and 8 of the 1960
Resolution to militate against the interpretation that the
service specified there can be the total service of any
description whether provisional, temporary or permanent. If
promotion from Class II as officiating Executive Engineer
ran only be made after 7 years of permanent service then
there would be no meaning in including the temporary service
in Class II for the purpose of absorption as Executive
Engineers. If temporary service can be taken into account
for confirmation as an Executive Engineer so can officiating
service and if officiating service can be taken into
consideration there is no impediment to a Deputy Engineer
with 7 years’ service whether officiating, temporary or
permanent to be entitled for promotion as an Executive
Engineer The, Resolution of 1963 makes it abundantly clear
that the seniority of promotees should be considered as from
the date of promotion to officiate continuously irrespective
of whether the appointments were made in temporary or
permanent vacancies. [626 G-627 E]
(ii) Those respondents who were from Hyderabad State were in
fact selected by the Hyderabad Public Service Commission as
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Assistant Engineers and would have been appointed as such
but for the States Reorganisation Act which came into force
from 1956. Had they been appointed earlier they would have
had to be equated with the posts in Bombay. The allocation
of persons after the reorganisation from one State to
another was subject to the Reorganisation Act which dealt
with matters pertaining to allocation, transfer, fixation of
service conditions, seniority etc. The claims of the
respondents who were allotted from the Hyderabad State arose
earlier than the appointments of the petitioners and the
Govern-
616
ment of Bombay and subsequently the Maharashtra Government
was entitled to consider these claims and to give redress.
There is no statutory bar or rule which prohibits the
Government of Maharashtra from deeming their appointment as
from 31-3-1967 for the limited purpose of seniority and
promotion. [628 E-629 C]
(iii) Further, when promotions are made on the basis of
seniority-cummerit all that can be required is that persons
entitled to promotion should be considered ’and if having
been considered they have been left out they would have no
claim to promotion as a matter of right. The petitioners
did not possess the required length of service in Class II
for them to be entitled to promotion when the respondents
were included in the List and promoted; as such they cannot
challenge the appointments made as being in violation of
Arts. 14 or 16. 629 D-E]
State of Mysore v. Syed Mahmood, [1968] 3 S.C.R. 363.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 112 to 114 of
1968.
Petition under Art. 32 of the Constitution of India for the
enforceent of fundamental rights.
S. V. Gupte, M. J. Rana and B. R. Agarwala, for the peti-
tioners.
M. C. Chagla, G. L. Sanghi and S. P. Nayar, for respondent
No. 1.
S. Mohan Kumaramangalain, Y. S. Chitle, S. N. Prasad and
R. B. Datar, for respondents Nos. 2, 4, 6 to 23, 27 to 30
and 32 to 34.
Respondent No. 3 appeared in person.
The Judgment of the Court was delivered by
Jaganmohan Reddy, J. The three petitioners by these peti-
tions under Art. 32 of the Constitution have challenged the
promotion by the first respondent, who, ignoring the claims
of the petitioners, have promoted respondents 2 to 5 and
other persons similarly situated to the post of officiating
Executive Engineers contrary to the principles of natural
justice and in violation of Arts. 14 and 16 of the
Constitution. All the three petitioners were directly
recruited by the Public Service Commission as Deputy
Engineers in the Bombay Service of Engineers Class II, now
known as Maharashtra Service of Engineers Class R. The first
respondent is the State of Maharashtra. Respondent No. 2
belonged to the erstwhile State of Bombay; respondents 3 and
4 belonged to the former State of Hyderabad, while
respondent No. 5 to the former State of Madhya Pradesh, and
were allocated to the State of Bombay under the States
reorganisation. Likewise the other respondents who were
formerly in the service of different States referred to
above, now belong to the Maharashtra Service of Engineers.
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617
The petitioners’ case is that under the rules in force the
respondents who were in the substantive rank of overseers
were only officiating Deputy Engineers and that as they did
not belong to the cadre of Deputy Engineers they were not
entitled to promotion inasmuch as they had to put in after
confirmation as Deputy Engineers 7 years of actual service
before being eligible for promotion, as officiating
Executive Engineers. On the other hand, the petitioners
were direct recruits and were entitled to promotion after 7
years of service from the date of appointment, as their
subsequent confirmation related back to that date. It is
contended that the first respondent, contrary to these
rules. appointed respondents 2 to 34 as officiating
Executive Engineers before they had completed 7 years of
actual service after the date of confirmation and
particularly in the case of employees from the erstwhile
State of Hyderabad it had, contrary to the rules relating to
promotion, by a resolution dated the 23rd February 1967
directed respondents 3, 4, 6 to 14 to be treated Is having
been appointed in the reorganised Bombay State as temporary
Deputy Engineers with effect from 31st March 1937 only for
the purpose of fixation of their seniority in the grade of
Deputy Engineers and for promotion to higher posts. By so
directing. respondent No. 1 conferred, in an arbitrary
manner, an advantage on the said respondents to the
detriment of the petitioners while, as a matter of fact,
those respondents had not completed either 7 years of actual
service after confirmation as required by the rules nor did
they have even 7 years’ service as officiating Deputy
Engineers on the date of promotion as officiating Executive
Engineers.
In order to understand the contentions urged on behalf of
the petitioners it will be necessary to state briefly the
history of the service and the several resolutions which are
applicable to them in respect of recruitment as well as
seniority. The Bombay and subsequently the Maharashtra
service of engineers consists of Class I and Class II
(Deputy Engineers). They were initially governed by rules
framed under the resolutions of the Government in the Public
Works Department dated the 22nd March 1937. The recruitment
to these services both in class I and class II was partly by
direct recruitment and partly by promotion from amongst the
members of the lower cadres. In 1939 further rules were
made to regulate the method of recruitment to the State
services. Under these rules recruitment to the Bombay
Service of Engineers Class I was to be from two sources, (1)
by nomination under r. 3 by virtue (1) the guarantee given
to the engineering college of Poona and (2) by promotion
from the existing Bombay Service of Engineers (since
discontinued) or from the Bombay Service of Engineers Class
II. The recruitment to the Bombay Service of Engineers
Class II under the rules of 1939
618
was also to be similarly from two sources, (1) by nomination
under r. 11 in accordance with the guarantee to the Royal
College of Poona (which was withdrawn in 1947) and (2) by
promotion from (a) Bombay Subordinate Engineer Service, (b)
permanent and temporary supervisors and (c) temporary
engineers appointed on annual sanction. These rules however
did not specify the principles upon which the seniority of
the direct recruits and the promotee officers was to be
determined. The Government of Bombay accordingly by a
resolution dated 21st November 1941 laid down the following
principles to be applicable to direct recruits and promoted
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officers in the provincial service except the Bombay Service
of Engineers Class I :-
(1) "In the case of direct recruits
appointed directly on probation, the seniority
should be, determined with reference to the
date of their appointment on probation;
(2) In the case of officers promoted to
substantive vacancies the seniority should be
determined with reference to the date of their
promotion to the substantive vacancies
provided
there has been no break in service prior to
their confirmation in those vacancies."
It may here be stated that the Bombay Government had
appointed a committee known as Gurjar Committee to examine
"whether class I and class II cadres in the said services
should be continued or whether they should be combined into
one class and what should be the ratio between the direct
recruits and the departmental promotees to the said service.
The Committee made its recommendations in 1951. The
Government after due considerations of the recommendation
and the earlier rules regulating the condition of service in
the Bombay Service of Engineers passed a resolution dated
29th April 1960 setting down the principles for recruitment
to the Bombay Service of Engineers Class I and Class II.
Before this resolution, as we have noticed earlier, the
Deputy Engineers Class II service cadre consisted of (a)
direct recruits to the Bombay Service of Engineers Class II,
(b) Deputy Engineers confirmed from the subordinate services
of Engineers, (c) temporary deputy engineers recruited by
the Bombay Public Service Commission and (d) officiating
Deputy Engineers and similar other categories. These four
categories were being compiled into 2 lists only, namely,
(1) Bombay Service of Engineers Class II cadre of permanent
Deputy Engineers and (2) the list of officiating Deputy
Engineers. It also further continued the existing
constitution of class I and class II engineering service.
The appointments to be made were to be both by direct
recruitment through the competitive examinations held by the
Public Service Commission and by promotion, provided however
that
619
the ratio of appointments by nomination and by promotion
shall as far as pracucable by 75 : 25. The candidates
appointed to either of me two services by nomination had to
be on probation for 24 years before being confirmed provided
further that an Assistant Engineer would be confirmed as
Executive Engineer after nine years’ service unless the
period is extended by tile government. The Deputy Engineers
Permanent in class It cadre had Lo put in at least 15 years
of service in class II in temporary and permanent capacities
and must be officiating executive Engineers at the time of
their absorption.
The resolution of 1960 provided that in future recruitment
to Bombay Service of Engineers class II cadre shall be made
(1) by nomination of candidates recruited directly by a
competitive examination held by the Commission and (2) by
promotion from the list of officiating Deputy Engineers.
The direct recruitment or temporary Deputy Engineers was to
cease and the officiating vacancies were to be filled from
the ranks of subordinate service of Engineers for which
purpose a statewise select seniority list of members of the
subordinate service of Engineers cadre considered fit to
hold sub-divisional charges was to be compiled and main-
tained as on 30th June each year. On July 29, 1963 the
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Government of Bombay further amended the rules prescribed in
Government Resolution of November 21, 1941 for regulating
the seniority of direct recruits and promoted officers. In
supersession of the previous rules it provided that the
seniority of the direct recruits is to be determined
according to the date of appointment on probation and of the
promotees according to the date of promotion to officiate
continuously irrespective of whether the appointments are
made in temporary or in permanent vacancies subject to the
previsions contained therein.
In so far as promotion from lower to higher grade of post is
concerned, the principle of seniority-cum-merit was always
followed by the Government which subsequently also formed
the bases of the Government resolution dated 18th December
1950 which inter alia prescribed that no officer who had
positive qualification should be passed over by an officer
junior to him unless the latter had in addition really
exceptional ability or qualification. This resolution was
passed after consultation of the Bombay Public Service
Commission and in supersession of the orders of the previous
resolutions dated 22nd May 1944, 23rd March 1945 and the
18th March 1947. Thereafter by another resolution dated 4th
March 1957 the principle for the preparation and maintenance
of a select list of Deputy Engineers who were considered fit
for promotion as Executive Engineers was formulated.
According to this resolution, a committee consisting of 3
Chief Engineers under the chairmanship of the senior Chief
Engineer
L3SUP.CI/70 -9
620
was to review in December each year the claim of officers in
the Bombay Service of Engineers class II for promotion to
the post of Executive Engineer. This committee had to
prepare a select list with due regard to the provisions of
the government resolution dated the 18th December 1950.
Likewise, the Government by a resolution dated 20th August
1965, revising its previous resolution dated 24th August
1954 and 14th December 1959, formulated the principles for
preparation, maintenance and revision of a list of overseers
fit for promotion as Deputy Engineers. Under this
resolution statewise list as on 1st April of every year of
each of the categories of overseers bad to be made
comprising of (1) graduate overseers, (2) diploma holder
overseers (DCE-Poona) or equivalent, (3) subordinate
overseers holding the Diploma of the Osmania University, and
(4) non qualified overseers. The length of service required
for eligibility to promotion to the post of officiating
Deputy Engineer in respect of the first category was 3
years, second category 8 years, third category 10 years
including past service as sub-overseers of those allocated
from the ex-Hyderabad State, and fourth category 13 years.
We may now briefly state the different grades of service and
the channels of promotion in the Engineering service of the
Maharashtra State created as a consequence of the various
rules. At the apex of the service are the Chief Engineers,
Superintending Engineers and the Executive Engineers who
constitute class I service. The channels of promotion to
the cadre of Executive Engineers is from two sources, (a)
direct recruit to class Assistant Engineers, and (2) Deputy
Engineers class II. , The cadre of Deputy Engineers class II
is constituted by direct recruits 75 per cent and promotees
25 per cent. The channels of promotion to the promotees
class II were from temporary engineers and from the
subordinate service, namely, graduate engineers, now known
as junior engineers, diploma holder overseers and junior or
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non-technical overseers promoted from still lower ranks.
The case of the first respondent and the other respondents
is that the 7 years’ qualifying service required for
promotion as Officiating Executive Engineers is continuous
officiating service as Deputy Engineer and not as contended
by the petitioners to be reckoned from the date of
confirmation as Deputy Engineers. It is contended first,
that the interpretation of rr. 6, 7 and 8 of the 1960
Resolution does not ex facie lend itself to the
interpretation suggested by the petitioners; secondly, that
it ignores the subsequent amendment effected by the 1963
Resolution; thirdly, that for the purpose of promotion the
seniority which is relevant is not the seniority in the
department but the seniority in the Select List to be
prepared in accordance with the Resolution of 1957 in which
the petitioners could not and did not find a place during
the
621
relevant period fourthly, the basis of promotion being
seniority-cum-merit the petitioners who had at no time
complained that their names were not considered cannot
complain of a violation of Art. 14 or Art. 16, nor could a
writ of mandamus lie in such circumstances; and fifthly,
that the, Resolutions to which references have been made and
which are relied upon by the petitioners are not made either
under Art. 309 or any other provision of law but are merely
executive instructions which the Government would be
entitled to issue in the absence of rules which have
statutory binding force. In so far as respondents who are
allotted from Hyderabad service are concerned, it is
contended that they were all selected by the Hyderabad
Public Service Commission in June 1956 and would have been
appointed as Assistant Engineers in that State ’in a few
months had not States reorganisation taken place. In view
of the fact that they had been selected by the predecessor
State and also the successor state it was open to the
Government to make the appointment of the respondents having
regard to the various provisions of the States
Reorganisation Act, and accordingly the Government directed
that their appointments be treated as temporary Deputy
Engineers effective from 31-3-1957 for the purpose of
seniority and promotion. What in fact the Government has
done is to recognise the just claims of those who had
already been selected for class I posts in the Hyderabad
State which posts have been equated with the post of Deputy
Engineers in the Bombay State while arriving at the equation
envisaged under the States Reorganisation Act and under the
allotted Government Service Rules of 1957. In fact the
claim of the respondents was that the Assistant Engineers of
class I of the Hyderabad State should be equated with the
posts of Assistant Engineers Class I of the Bombay State.
Shri Gupte learned counsel for the petitioners however
contends that all the respondents from the erstwhile
Hyderabad State were allotted to the Bombay State as
overseers which posts they were holding substantively on and
after 1st November 1956. They were thereafter promoted as
officiating Deputy Engineers between 1958 and 1963 and were
not confirmed in their respective posts on the date when
they were appointed officiating Executive Engineers. The
learned Advocate further contends that these persons were in
fact not appointed as Assistant Engineers in the erstwhile
Hyderabad State though they might have been selected by the
Hyderabad Public Service Commission and that in any case as
the Bombay Public Service Commission did not select them
they could not be classified in the category of temporary
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Deputy Engineers selected by the Bombay Public Service
Commission. Apart from this category, there are respondents
who were appointed as officiating Deputy Engineers before
the reorganisation on 1st November 1956 and were confirmed
only after the petitioners were directly
622
appointed. The first petitioner was appointed on 9th June
1959, the second petitioner on 11th June 1959 and the third
petitioner on 12th June 1959. Though the petitioners were
confirmed 2 years thereafter, namely, on 9th June 1961, 24th
June 1961 and the 18th June 1961 respectively, none the less
for the purpose of seniority the dates on which they were
first appointed in June 1959 would be relevant dates because
confirmation under the rules relates back to that date and
therefore they would be senior to those respondents who were
confirmed thereafter. There are yet a few respondents who
were promoted as officiating Deputy Engineers after the 1st
November 1956, namely, those persons who were non gazetted
sub divisional officers of the former State of Madhya
Pradesh and the former State of Hyderabad who were treated
as Deputy Engineers from 1st November 1956 and there were
others who were not so deemed but were not confirmed as
Deputy Engineers on the date when they were promoted as
officiating Executive Engineers. The contention of Shri
Gupte in the main is that officiating Deputy Engineers could
only be considered as promoted to the grade of Deputy
Engineers on confirmation and therefore the 7 years
qualifying service necessary for their being promoted as
officiating executive engineers is to be reckoned from the
date of their confirmation as Deputy Engineers and since
good many of them were confirmed after the appointment of
the petitioners and most of them were not so confirmed even
on the date of their promotion as Executive Engineers under
the rules they would not be entitled to those promotions.
Shri Chagla and Shri Kumaramangalam, on the other hand,
contend that the rules nowhere prohibit the promotion to
Executive Engineers from officiating Deputy Engineers, nor
is there anything to indicate either expressly or otherwise
that the 7 years’ qualifying service should be from the date
of confirmation. All that is required is that a person in
order to become eligible for promotion as officiating Deputy
Engineer should be promoted as Deputy Engineer that in
either case he should have 7 years in that capacity whether
as permanent Deputy Engineer or continuously as an
officiating Deputy Engineer and that he should be selected
and put on a Select List. The respondents, it is contended,
have fulfilled all these requirements. The second
respondent who appeared in person has adopted these
arguments of the learned Advocate for the respondents.
We may here read the relevant rules as set out in the
respective resolutions.
1957 Rules-
(1) Government should review in December each year the
claims of all officers in the Bombay Service of Engineers,
Class II for promotion to the posts of Executive Engineers
by setting up a Committee consisting of the three Chief
Engineers under the
623
Chairmanship of the Senior Chief Engineer, which should draw
up a select list of those considered by them suitable for
promotion.
(2) The Committee should scrutinise the case of each
officer and prepare a select list with regard to the
provisions of Government Resolution and Government Circular
Memorandum, Political and Services Department Nos. 4099/34,
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dated the 18th December, 1950. Only such officers should be
selected for inclusion in the select list as have put in at
least seven years’ service (excluding the period of training
but including the period of probation) in the grade of
Deputy Engineer. The officers should also possess the
necessary personality, initiate, strength of character,
fitness to assume independent responsibility and capacity
for outdoor as well as office work. No officer should be
included in the Select list merely on the negative ground
that he is not manifestly unfit.
(3) The seniority of the officers on the Select list should
be determined by the date of entry of their names in the
select list. The seniority inter se of officers whose names
are entered on the same day should be determined in
accordance with their seniority in the Class II cadre,
unless in consultation with the Commission, it is decided to
give an officer accelerated promotion on account of really
exceptional ability or qualification.
(4) The Committee should submit to Government the Select
List for approval in consultation with the Bombay Public
Service Commission. While submitting the list, the
Committee should give full justification for supersession
involved, if any, and full information regarding
qualifications and previous service of those recommended to
be brought on the Select List should be given.
1960 Rules-
6. (i) The number of posts to be filled in the Bombay
Service of Engineers, Class I by promotion of officers from
the Bombay Service of Engineers, Class II shall be about 25
per cent of the total number of superior posts, in the
Bombay Service of Engineers, Class I cadre; this percentage
should be aimed at for confir,
624
mations made after 1st November 1956, subject of course, to
Class II officers of the requisite fitness and length of
service being available.
(ii) For absorption into Class 1, a Class II Officer must be
in the permanent Bombay Service of Engineers, Class II
cadre, should have at least 15 years service to his credit
in Class II in temporary and permanent capacities, and
should be holding an officiating divisional rank, at the
time of such absorption. On such absorption, the Class II
Officer shall be confirmed as an Executive
Engineer.
(iii) The seniority of the Class II promotees shall be
fixed below the bunch of Assistant Engineers, any one of
whom is due for confirmation as Executive Engineer during
that calendar year, provided that no Class IT promotee shall
be placed senior to a direct recruit to Class I Assistant
Engineer who has been officiating as Executive Engineer from
a date earlier than the Class II promotee. In the latter
case, the Class II promotee, though holding a post and lien
as a confirmed Executive Engineer shall be shown both under
permanent Engineers, and, also along with the direct
recruited Class I Assistant Engineers with a suitable remark
under the Permanent Executive Engineers list. This is also
subject to further conditions as in paragraph 7 below.
7. (i) Since the percentages in the superior posts of
direct Class I recruits and promotees from Class II is to be
about 75 and 25, the number of promotions from Class II in
any year would be about one third the number of direct
recruited Assist-ant Engineers confirmed as Executive
Engineers during that year. Recruitments in the past have,
however, been erratic and insufficient even to the extent of
there being no recruitments to Class I in certain years. In
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Order to deal with such situations, the following rules
shall be supplemental and I exceptional to those in
paragraph 6 above :
(ii) As far as possible, promotions as officiating Executive
Engineers shall be so- made that the promotee, under
consideration from Class II has to his credit at least 6
years longer service than a promotee under consideration
from Class I, subject, as far as practicable, to the
condition that a Class I Officer shall not hold a divisional
rank at less than 4, and a Class II Officer at less than 7
years service.
Subject to avail-abilities, and, the above criteria, an
attempt should be made to maintain the percentages, stated
in paragraph 6(1) above, between direct Class I and promoted
Class II officers in the total of permanent plus officiating
superior posts.
(iii) In the interests of manning superior
administrative ranks, it is considered necessary to have at
least two confirmations to the Executive Engineers ranks
every year. In years when this is not
625
possible of achievement according to the percentages as per
(i) above, the number of promotions from Class II may be
increased to get the two confirmations, mentioned
hereinabove.
Per contra, there would be a reduction in the percentage
promotions from Class II in the following years in order to
work up to the overall percentages of about 75 to 25.
(iv) Confirmations, if any, made from the bunch of Temporary
Executive Engineers, who have, at present lien on no cadre,
shall be counted against the 25 per cent meant for the non-
direct recruits to Bombay Service of Engineers, Class I.
8. (i) The Sub-Divisional posts in the Department are, ,it
present, manned by direct recruits to Bombay Service of
Engineers, Class II cadre, Deputy, Engineers confirmed from
subordinate Service of Engineers, the temporary Deputy
Engineers recruited by the Bombay Public Service Commission,
officiating Deputy Engineers and similar other categories.
These various categories are being compiled into two lists
only viz. Bombay Service of Engineers, Class II cadre of
permanent Deputy Engineers and a list of Officiating Deputy
Engineers. The future recruitments to Bombay Service of
Engineers, Class II cadre shall be made by nomination of
candidates recruited direct by competitive examination, held
by the Commission, and, by promotions from the, list of
officiating Deputy Engineers. The number of such promotions
shall be about one-third the number of direct recruits
appointed in that year.
(ii) All direct recruitment of temporary Deputy Engineers
having been stopped, further officiating vacancies will be,
manned from the ranks of the Subordinate Service of
Engineers. For this purpose, a statewise Select Seniority
List will be maintained. of members of the Subordinate
Service of Engineers cadre, considered fit, to hold
subdivisional charges. This list shall be compiled as on
30th June each year.
For inclusion in this list a graduate shall have to his
credit not less than 3, a diploma holder not less than 8,
and, a nonqualified person not less than 13 years’ service
as overseer.
For confirmation as a Deputy Engineer, the Officer would be
expected to have put in not less than 3 years’ service as
Officiating Deputy Engineer.
(iii) The probationers recruited directly to in the
Bombay Service of Engineers, Class II cadre in any year
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shall, in a bunch be placed senior to promotees confirmed,
during that year.
1963 Rules-
(A) The seniority of direct recruits and promoted officers
in the State services should be determined according to the
date of
626
appointment on probation in the case of direct recruits and
according to the date of promotion to officiate continuously
in the case of these appointed by promotion, irrespective of
whether the appointments are made in temporary or in
permanent vacancies, subject to the provisions of the
following clauses
(B) A list of services in respect of which special orders
for fixation of seniority are in force and to which these
orders will not apply will ’be issued in due course.
It would be apparent from the 1941 rules that they merely
provide for fixation of seniority of the direct recruits and
officers promoted to the substantive vacancies but have
nothing to do with the qualifications required for promotion
to the next higher rank. Rule 6 of 1960 deals with class I
posts. Clauses 1, 2 and 3 of this rule provide (1) that 25
per cent posts in class I are to be filled by promotees, (2)
that for absorption into class 1, class II Officer must have
a permanent service in class II cadre, (b) have 15 years of
service in class II in temporary and permanent capacities,
and (c) that he must be holding an officiating divisional
rank at the time of such absorption. Clause 3 deals with
inter se seniority between the Assistant Engineers and Class
II promotees to the post of Executive Engineers. The
absorption referred to in r. 6 is a permanent absorption
because cl. 2 provides that on such absorption the class IT
officers shall be confirmed as Executive Engineers. Clause
6 gives no indication that class II officers whether direct
recruits or promotees cannot be promoted as officiating
Executive Engineers. That is dealt with by cl. 2 of as
officiating Engineers. That is dealt with by cl. 2 of r. 7
which r. 7 which provides that Class II officers should have
as far as possible at least 6 years longer service than the
promotee under consideration from class 1, viz., Assistant
Engineers, and further that he should at least have seven
years service. Even this rule does not indicate that the
qualifying service of either of six years or of 7 years
specified in the rule has to be permanent service. In cl.
(ii) of r. 6 it is provided that 15 year-, of service in
class II for absorption as Executive Engineer can be in
temporary or permanent capacities. There is nothing in r.
(ii) to militate against the interpretation that the service
specified there can be the total service of any description
whether provisional, temporary or permanent. If promotion
from class IT a, officiating Executive Engineer can only he
made after 7 years of permanent service, then there would be
no meaning in including the temporary service in class IT
for the purpose of absorption as Executive Engineer. Even
r.8 upon which Shri Gupte has laid great emphasis in support
of hi, contention. does not, in our view, justify an
interpretation that the
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7 years’ service required to entitle persons in class II for
promotion as an officiating Executive Engineer should be
permanent service in class II. Shri Gupte however relied on
the requirement in cl. (ii) of r. 8 that the recruitment to
Bombay Service of Engineers, Class II cadre shall in so far
as promotees are concerned be by promotion from the list of
officiating Deputy Engineers. Relying on this rule the
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learned Advocate contends that for promotion as Deputy
Engineer Class II he must be on the list of officiating
Deputy Engineers before he is entitled to promotion as
Deputy Engineer Class II and be confirmed in that post after
satisfying the requirements of 3 years’ service as
officiating Deputy Engineer. Until he is so confirmed, he
will not be considered to have been promoted as Deputy
Engineer or to belong to class II service for promotion as
officiating Executive Engineer as required under cl. (ii) of
r. 7. As we have seen earlier, cl. (ii) of r. 7 does not use
the word ’belong’ but requires only that the person under
consideration for promotion should be from class II service.
To be in class II service the Deputy Engineer promoted from
subordinate service has to put in at least 3 years of
service as officiating Deputy Engineer before being
confirmed and thereafter he can when he is promoted to the
next higher rank be confirmed as Executive Engineer if he
has put in 15 years in class II service in temporary or
permanent capacities and is holding an officiating
divisional rank, namely of an Executive Engineer. If
temporary service can be taken into account for confirmation
as an Executive Engineer, so can officiating service, and if
officiating service can be taken into consideration, there
is no impediment to a Deputy Engineer with 7 years’ service
whether officiating, temporary or permanent to entitle him
for promotion as an Executive Engineer.
The list that is referred to in cl. (i) of r. 8 must be read
with the further provision in that rule that for inclusion
in that list of persons a graduate shall have to his credit
not less than 3, a diploma holder not less than 8 and a non
qualified person not less than 13 years of service as
overseers. In our view it is the list of such persons that
is referred to in cl. (ii) of r. 8 and not that there should
be a list of persons actually officiating as Engineers for
further promotion to the same post which will have little
meaning , for there cannot be a promotion of a person in the
same cadre of g service who is already promoted whether as
an officiating or temporary or permanent incumbent. If cl.
(i) of r. 8 provides that class IT cadre shall be recruited
by competitive examination, the promotees also are promoted
from the list of persons considered fit to hold sub
divisional charge, i.e., posts of Deputy Engineers. If in
the case of direct recruits the appointment is without
reference to confirmation, it cannot be any different in the
case of promotees.
We cannot, therefore, accept the contention of Shri Gupte
that a promotee officiating Deputy Engineer Class II is not
entitled to
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be considered for promotion under r. 7 to the post of an
officiating Executive Engineer unless he has put in 7 years
of service from the date of confirmation. On the other
hand, the subsequent resolution of the Government of 1963
makes it abundantly clear that the seniority of promotees
should be considered as from the date of promotion to
officiate continuously irrespective of whether the
appointments are made in temporary or permanent vacancies.
It is no doubt submitted that this does not have the force
of rules and cannot therefore have the effect of amending
the rules of 1960. As we have already held on art
interpretation of the rules of 1960 that they do not support
the contention of the petitioners, the question whether the
resolution has the force of rules may not be relevant in
this context, but none the less in our view, there is force
in the contention of Shri Kumaramangalam, learned advocate
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for the respondents, that even the 1960 rules have no statu-
tory force and are no better than the executive instructions
issued from time to time by means of resolutions. It may be
observed that the rules referred to are part of the
resolution of 1960. The resolution itself lays down the
principles and in the end formulates those principles in
terms of rules, which however are not purported to be made
under any provision of law or even under Art. 309. There
also is nothing to indicate that the procedure and
formalities required for making rules have been gone
through.
It is next contended that the persons from the Hyderabad
service did not have 7 years even as officiating Deputy
Engineers but were only deemed to have been appointed as
temporary engineers as from 31-3-1957. This contention
also, in our view, has no force because the respondents who
were from Hyderabad State were in fact selected by the
Hyderabad Public Service Commission as Assistant Engineers
and would have been appointed as such but for the States
Reorganisation Act which came into force as from 1-11-1956.
Had they been appointed earlier. they would have had to be
equated with the posts in Bombay. In fact as the
notification issued ’by the Hyderabad Public Service
Commission furnished by Mr. Joshi shows, the candidates who
were lo be selected were required to serve in any of the
districts of Hyderabad State- Hyderabad proper or according
to the allocation in the reorganised set up of the State if
and when it took place. It was therefore, in the
contemplation of the Public Service Commission that the
State would be reorganised and the candidates selected may
be required to serve in the reorganised State. The
allocation of persons after the reorganisation from one,
State to the other was subject to the Reorganisation Act
which dealt with matters pertaining to allocation, transfer,
fixation of service conditions, seniority etc. The claims
of the respondents who were allotted. from the Hyderabad
State arose earlier than the appointments of the petitioner-
, and the Government of Bombay and subsequently the
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Maharashtra Government was entitled to consider these claims
and to give redress.
It is again argued that if they had a claim under the States
Reorganisation Act, they should have been treated as Deputy
Engineers from 1st Nov. 1956, and not from 31st March
1957 and therefore they could not be considered as having
been dealt with under the States Reorganisation Act. We are
unable to accept the force of this argument ’because it was
open to the Government of the State to which they were
allotted to take into consideration the fact that they would
have been appointed in the erstwhile State from a particular
date, to treat them as such and to equate their posts which
they would have held. In these circumstances, there is no
statutory bar or rule which prohibits the Government of
Maharashtra from deeming their appointment as from 31-3-1957
for the limited purpose of seniority and promotion.
Apart from these contentions it appears to us that there is
another formidable obstacle in the way of the petitioners’
success and it is that under the 1957 Resolution for
promotion to the post of officiating Executive Engineers,
they should be put oil the Select List by a committee of the
Chief Engineers to be prepared each year for that
purpose. When promotions are made on the basis of
seniority-cum-merit, all that can be required is that
persons entitled to promotion should be considered and if
having been considered they have been left out, they would
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have no claim to promotion as a matter of right. In State of
Mysore v. Syed Mahmood(1) this Court had so held. Bachawat,
J. speaking for the Court observed at p. 366,
"Where the promotion is based on
seniority-cum-merit the officer cannot claim
promotion as a matter of
right by virtue of his seniority alone. If he
is found unfit to discharge the duties of the
higher post, he may be passed over and an
officer junior to him may be promoted."
It is however stated that no list was made for 1966 which is
the crucial year in so far as the petitioners are concerned
because their 7 years would have been completed in June 1965
and they would have been entitled to be considered for
promotion in 1966. In answer to this contention the
affidavit on behalf of the respondents shows that the
select list of the Deputy Engineers fit for promotion to the
post of Executive Engineers in class I was prepared for the
year 1964 and 1965 according to the principles and rules
laid down in the resolutions of 14th December 1957 and 29th
April 1960. None of the petitioners, it is averred, was
included in the Select List for 1964 or 1965 because not
only did any of them not
[1] [1958] 3 S. C. R. 363.*
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have the requisite seven years’ service as Deputy Engineer
at the relevant time but they were also not entitled to be
included because of the classes of recommendation earned by
them during the relevant period. The petitioners however
denied in their rejoinder that the lists were prepared
keeping in view the criteria laid down by the rules, ’but,
in our view, it is significant that they did not possess the
required length of service in class II for them to be
entitled to promotion when the respondents were included in
the list and promoted as such they cannot challenge the
appointments made as being in violation of Art. 14 or Art.
16.
In the result these petitions merit dismissal and are
accordingly dismissed.
Y.P. Petitions dismissed.
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