R.N. Misra, J.
1. On 22-3-1971, the State Public Service Commission invited applications from qualified Engineers for recruitment as Assistant Engineers in the Orissa Service of Engineers. The petitioner along with many others applied. It is alleged that the Commission recommended 44 names for appointment and the petitioner claims that he was placed as 38 in the list in order of merit. On 3-1-1972, 15 persons out of the list were appointed by the State Government as Assistant Engineers while by another notification of the same day 9 out of the said list were appointed and ten days thereafter 5 others were also appointed-thus in all 29 out of the list of 44 were recruited. Government wanted the Commission to recommend some more names, but the Commission wrote back saying that until the list already recommended was exhausted there would be no occasion for a fresh list to be prepared. Notwithstanding the fact that in the list there were 15 more yet to be appointed, the State Government on 7-8-1972,appointed on ad hoc basis 25 engineering graduates, who had also applied to the Public Service Commission along with the petitioner for being recruited but had not been selected. On 9-10-1972, 13 employees from the rank of Subordinate Engineers were promoted as Assistant Engineers.
2. The petitioner alleges that recruitment to the post of Assistant Engineer is regulated by the Orissa Service of Engineers Rules, 1941-a set of rules framed in exercise of the powers vested under Section 241 of the Government of India Act of 1935 and continued under the Constitution. According to the petitioner there having been 13 promotees, in terms of Rule 7 of the said Rules there should have been 39 direct recruits for the year. As a fact 54 (29 plus 25) direct recruits were taken and the petitioner having been assigned 38th position in the list prepared by the Commission was bound to be appointed; yet he was not. The petitioner challenges the appointment of opposite parties 2 to 26 as an act of illegality and wants a direction to Government to appoint him as he was duly qualified and had even selected for appointment by the Commission.
3. In the counter-affidavit given by the State the foundation of the petitioner's claim on the interpretation of Rule 7 is disputed. It is conceded that the petitioner was selected having been assigned the 38th position in the list prepared by the Commission. Reliance is placed for justification of the appointment of opposite parties 2 to 26 on a cabinet decision taken in December, 1971 on the basis of the recommendation of a cabinet sub-committee. The petitioner filed a rejoinder and the State has filed a further counter-affidavit.
4. In order to appreciate the respective contentions and dispose of the writ application appropriately it is necessary that a detailed reference be made to the rules. Rule 4 provides that the Orissa Service of Engineers shall consist of four grades of officers, namely, (i) the Chief Engineer, (ii) Superintending Engineers, (iii) Executive Engineers, and (iv) Assistant Engineers. Rule 5 requires all first appointments to the Service to be ordinarily made to the rank of Assistant Engineers and appointments to the other three higher ranks are to be made by the process of pro. motion on the footing of merit-cum-seniority. Rule 3(c) and (e) define ' Promoted Officer ' and ' Direct Recruitment'. Rule 6 makes provision that recruitment to the rank of Assistant Engineer shall be made partly by direct recruitment in accordance with Rules 8 to 15 and partly by promotion from the old Upper Subordinate Establishment and the Subordinate Engineering Service in accordance with Rules 16 to 18. Rule 7 requires the Governor in each year to decide the number of vacancies to be filled respectively by direct recruitment and by promotion and casts a mandate that the vacancies to be filled by promotion would be so fixed that promoted officers would not exceed 25 per cent of the total strength of permanent and temporary Assistant Engineers including the leave and training reserve and those officiating as Executive Engineers. Rules 8 to 15 deal with direct recruitment, prescribe qualification for appointment, the manner of invitation of applications by the Commission, the contents of the application, the procedure for the Commission in considering the applications, etc. Specific mention may be made of three rules. Rule 13 requires that the Commission shall prepare a list of selected candidates, arranged in order of preference, the number of whom shall, unless the Governor otherwise directs, be ordinarily If times of the number of vacancies to be filled by direct recruitment. Rule 14 authorises the Governor to require the Commission to report the names of the best candidates belonging to any particular class or community irrespective of the number of candidates fixed under Rule 13. Rule 15 is to the following effect:
(a) The final selection of candidates shall be made by the Governor from amongst those who have been included in the list submitted by the Commission under Rule 13, or in respect of whom a report has been submitted in accordance with Rule 14. * * *
Rules 16, 17 and 18 make provision for appointment of Assistant Engineers by promotion out of the old Upper Subordinate Establishment and the Subordinate Engineering Service. Rule 16 requires the Chief Engineer to recommend the names to the Governor and the latter to send the list to the Commission. Rule 17 gives the procedure to be followed by the Commission while Rule 18 makes provision for the final selection to be made by the Governor after considering the Commission's recommendations.
5. According to the petitioner, in 1972, 13 persons were promoted to the rank of Assistant Engineers. Therefore, there should have been 39 direct recruits. This contention, according to Mr. Das for the petitioner, is based upon Rule 7. The material portion of Rule 7 is:
The vacancies to be filled by promotion will be so fixed that promoted officers do not exceed twenty-five per cent of the total strength of permanent and temporary Assistant Engineers including the leave and training reserve and those officiating as Executive Engineers.
Under Rule 4 the sanctioned strength of the service was shown to be 34. It is not known- because neither party has cared to categorically indicate to us-whether the sanctioned strength has now been altered. But as the rule requires, in any given year the vacancies have to be so filled up that the promotion quota would not exceed 25 per cent of the total strength of permanent and temporary Assistant Engineers. Obviously those who are officiating as Executive Engineers would be continuing as either permanent or temporary Assistant Engineers because only on confirmation as Executive Engineers would they cease to belong to the grade of Assistant Engineers. The petitioner's contention that as there were 13 promotions to the posts of Assistant Engineers during the year there must have been 39 direct appointments is a misleading one. In terms of the rule there could only be 13 promotions if taking the total number of permanent and temporary Assistant Engineers, on the basis of 25 per cent thereof, there were 13 vacancies. We agree with the stand in the counter-affidavit that the interpretation put on Ruls 7 by the petitioner is wrong. But that does not solve the difficulty. The State Government in its counter-affidavit and further affidavit has nowhere disclosed the actual position existing in 1972 when 13 promotions were granted. In pointing out the mistake committed by the petitioner in his pleadings with reference to Rule 7 it was obligatory on the part of the State to disclose as to what was the total strength of the permanent and temporary Assistant Engineers including the leave and training reserve and those officiating as Executive Engineers when by mid 1972, 13 promotions were accorded to the rank of Assistant Engineers. Unfortunately that has not been done. In a case of this type it is not enough for the State to take the attitude of a litigant and look for success in the litigation. The petitioner before the Court is no other than a disgruntled employee of the State who makes grievance against the employer-the mighty State- alleging contravention of a binding statutory rule. Government are in possession of the requisite materials. On the dictum that no litigant can be allowed to lie by and keep away the best evidence or the real information from the Court, it was the duty of the State to disclose the best evidence and the relevant materials for proper disposal of the dispute. In the case of the State the obligation is all the more. The Court is the adjudicating machinery of Society and when an employee turns to it for relief against the employer-State, it is of paramount importance that not only full disclosure should be made but circumstances must be created to enable the Court to decide the matter fully and completely and restore confidence in the petitioning employee; even where he is to lose his cause, he must be assured that he had no merit in it. Restoration of that confidence is necessary in the interests of public service and its efficiency. We are sorry to observe that the State has not taken the burden of placing the complete material and has rest content by pointing out that the interpretation of Rule 7 as advanced by the petitioner is erroneous.
6. Under Rule 6 promotion to the rank of an Assistant Engineer is available from the old Upper Subordinate Establishment and the Subordinate Engineering Service. Rule 16 dealing with the procedure to be followed by the Chief Engineer for the purpose of promotion requires nomination of officers from the old Upper Subordinate Establishment and the Subordinate Engineering Service. Neither the ' Upper Subordinate Establishment' nor the ' Subordinate Engineering Service' has any definition under the Rules. No attempt has also been made in the counter-affidavit to show as to what posts or grades in the service refer to these terms really.
7. Faced with this handicap the Court directed the matter to be called on 6-5-1974 after hearing was over so that the learned Advocate-General would produce the Governor's decision in terms of Rule 7 in the matter of filling of the vacancies for the year 1971. On 6-5-1974 when the matter was called the relevant document was not placed. On the other hand the learned Standing Counsel appearing for the State contended that it was not relevant for the proceeding. This Court then directed.
Learned Advocate General that day had promised to produce the record showing the Government decision in terms of Rule 7 of the Orissa Service of Engineers Rules, 1941. That Rule requires that the Governor shall decide in each year the number of vacancies to be filled respectively by direct recruitment and by promotion.
The relevant document as undertaken has not been produced. Learned Standing Counsel says that as the petitioner has not made any allegation of violation of Rule 7, the record is not relevant. We are of the view that for an appropriate disposal of this proceeding, it is necessary that the Governor's order complying with Rule 7 for the year must be produced. Otherwise, we would not be able to dispose of this case appropriately.
We accordingly call upon the State represented by learned Standing Counsel to produce the relevant record which had been undertaken to be produced and compliance whereof has already been defaulted by day after tomorrow.
On 8-5-1974, the relevant document was not produced. On the other hand certain orders of the year 1973 were placed before us which certainly are not material as this proceeding is concerned with recruitment of 1971. We were obliged to make the following observation in the order sheet:
By order No. 6. we called upon the State to produce the relevant order of the Governor in compliance of Rule 7 of the Orissa Service of Engineers Rules, 1941 for the relevant year. No compliance has been made though the case was adjourned till today. Mr. D.P. Mohapatra appearing for learned Standing Counsel produces some records which deal with the matter of 1973. This certainly is not the document which was called for. In view of the fact that the document has not been produced as directed, we now take it that Government do not have any record in terms of Rule 7.
Ordinarily we would have disposed of this case by drawing adverse inference against the State. The opposite parties 2 to 26 have not enteredappearance in spite of notice. Our decision is bound to, affect them. Though there could be no scope for grievance if we disposed of this writ application by drawing adverse inference against the State, we do not think it would be appropriate to penalise the opposite parties 2 to 26 for the fault of the State.
8. In the counter-affidavit the appointment of the opposite parties 2 to 26 is justified on the basis of the cabinet decision dated 30-12-1971. That day under item No. 4 the Cabinet accepted the recommendations of the cabinet sub-committee that a separate cadre of Junior Engineer for Graduate Engineers be created and changes be effected in recruitment of engineering personnel. Annexure A is the proceedings of the meeting of the cabinet sub-committee held on 29-12-1971. Paragraph 1 of the proceedings dealing with Junior Engineers cadre states:
(a) Creation of the cadre of Junior Engineers in the scale of Rs. 250-425 may be granted to the Junior Engineers which is equal to the selection grade of S.A. Es.
(b) Recruitment to the new cadre may be made by a Committee of Chief Engineers.
* * *(d) Only Graduate Engineers will be included in the cadre. S.A.E.A.M.I.Es. may also be included from the date of their passing the A.M.I. Examinations....
(e) (i) 50 per cent of vacancies in Assistant Engineer's cadre shall be filled up by promotion from Junior Engineers cadre and 25 per cent by direct recruitment. The remaining 25 per cent shall be reserved for promotion of S.A. Es. Since recruitment to the posts of Assistant Engineers by promotion of Junior Engineers and by direct recruitment will be processed through P.S.C. and as all candidates eligible for such consideration are Graduate Engineers there will practically be no difference in merit between the two categories. Hence promotion to the extent of 50 per cent of vacancies is recommended in case of Junior Engineers. In many other States the percentage of promotion of the Junior Engineers is 50 per cent or more. Direct recruitment will be limited to 25 per cent of the vacancies.
(ii) Percentage of selection grade posts for S.A. Es. may be raised to 25 per cent.
(iii) Relevant provision in the Subordinate Engineers Service Rules regarding promotion to Assistant Engineer's rank may be suitably amended if necessary. * * *
The last portion of paragraph 2 of the proceedings is to the following effect:
* * *(vii) Change in this procedure of recruiting engineering personal will be given effect to from January, 1972.
After the backlog of unemployed Engineers are cleared of, this procedure may suitably be changed.
The Rules are of 1941 made under the framework of the Government of India Act of 1935. As the learned Standing Counsel has not attempted to produce any rules different from those printed in Collection of Rules and Orders by Sri Abhaya Chandra Mohanty we proceed on the basis that the Rules as printed in the said book are the Rules in force. We have a feeling that the Rules have not been brought upto date and do not reflect the actual position as it exists. The book shows that Rule 7 was amended in July, [1966 and Rule 26 in November, 1967. Apart from these we do not find any other alteration in the printed Rules.
Junior Engineers are not known to the Rules. That is why the Cabinet sub-committee recommended that a cadre of Junior Engineers be created. The Cabinet accepted the recommendations. This necessarily meant that the Rules had to be suitably modified. The Junior Engineers as a cadre had to be introduced into the service and promotional benefits could be provided for. Nothing seems to have been done to alter the Rules. The cabinet resolution cannot override the Rules made under the Government of India Act and continued as 'existing law' under the Constitution. As an executive decision it has to give way when it conflicts with the statutory rule. Therefore, the Cabinet resolutions running counter to the scheme under the Rules can provide no defence to the challenge raised by the petitioner against the appointment of the opposite parties 2 to 26.
9. The petitioner pleaded in his writ application thus:
(9) That most unfortunately in order to accommodate certain favourites, Government without exhausting the list of recommended names which remains valid for one year from the date of recommendation that is from 22-11-72, on 7-8-72 appointed, calling the same ad hoc, 25 other Engineering graduates who had applied to the P.S.C. along with the petitioner but were not selected and whose names did not find place in the recommended list.
(26) That the opposite parties have committed deliberate illegality and fraud on the rules and the same has been done in order to accommodate some very close relations of some officials and others interested. As such the non-appointment of the petitioner is in violation of the Orissa Service of Engineers Rules, Article 309 of the Constitution of India and Articles 14 and 16 of the Constitution of India.
(27) That appointment of persons rejected by the Public Service Commission in preference to persons selected is on the face of it a mala fide executive action, which is against Article 14 of the Constitution of India.
These allegations have been answered in the following way in the counter-affidavit:
6. That the allegations made in paragraph 9 of the writ application, are denied. These allegations have been made on incorrect informations. The ad hoc appointments have been made out of the quota fixed for Junior Engineers and sub-Assistant Engineers. Since these 25 persons belong to a different cadre and their appointments are in consonance with the quota allotted to this cadre, a direct recruit like the petitioner cannot have any grievance. The petitioner who was a fresh applicant secured 38th position in the list and 29 persons got appointment in accordance with their position in the list sent by the Public Service Commission...
Paragraphs 26 and 27 of the writ application were not at all answered. In paragraph 13 of the counter-affidavit the following averment was made:.That it is not correct to say that the ad hoc appointment has been fraudulently made. Subject to the Public Service Commission, the appointing authority has the power to give promotion on ad hoc basis. This promotion was made in accordance with quota fixed by Cabinet decision and the appointment has been made ad hoc as there was urgent need to fill up the vacancies subject to the concurrence of the -Public Service Commission.
In paragraph 14 the further averment is:
That the appointments have been made in accordance with the rule and in accordance with the principle decided by the Cabinet.
By the rule of non-traverse the allegations of the petitioner in paragraphs 26 and 27 should ordinarily be accepted, namely, the appointments of the opposite parties 2 to 26 had been made to oblige friends and relations of some highly placed public officers or those in charge of the administration. We have a feeling that the counter-affidavit has not been drawn up by devoting careful attention. The petitioner has also not given details as required to substantiate such an allegation. We, therefore, do not conclude that the appointments of the opposite parties 2 to 26 are vitiated on the ground indicated in the writ application. Yet their appointments are certainly open to challenge as being contrary to the statutory rules. If the petitioner's contention that these opposite parties had also appeared before the Public Service Commission and their names were not recommended is true (in the absence of a categorical denial there is force in the contention) their appointments would be directly contrary to Rule 15. No attempt has been made by either party to clearly indicate as to whether these opposite parties were already in service and were promotees or they were fresh recruits. The Cabinet decision contemplated that 53 per cent of the vacancies in the Assistant Engineers' cadre is to be filled up by promotion from Junior Engineers. As reliance has been placed by the opposite party No. 1 on the Cabinet decision we have been asked by the learned Standing Counsel to accept the position that these opposite parties were already in employment and were appointed as Assistant Engineers by promotion. Such a contention receives support from paragraph 13 of the counter-affidavit, Junior Engineers do not belong to the old Upper Subordinate Establishment and/or the Subordinate Engineering Service. It is not the stand of the State that Junior Engineers are included within the categories from out of which promotional benefit is available under the Rules.
10. We have no hesitation to conclude that the opposite parties 2 to 26 have been appointed in violation of the Rules. If more vacancies existed in 1972 after the 29 appointments has been made it was appropriate for Government to draw out of the list sent by the Public Service Commission. Ordinarily the petitioner would have been considered for appointment unless Government decided that they would not exhaust the list because persons who were too below therein were not meritorious enough for appointment and wanted the Commission to invite fresh applications.
11. Serious confusion seems to have entered into the matter. Statutory rules have been forsaken and an executive decision which contemplated of necessary amendment to the Rules has been implemented without the Rules being suitably altered. The Rules themselves are somewhat out of date and no care and attention have been devoted to bring them uptodate. The cabinet sub- committee resolutions give us an impression that this deviation had been proposed to meet the impasse created on account of unemployment of engineers and was conceived as more or less a temporary measure. A temporary measure to be upheld must yet be in accordance with law and cannot be allowed to run counter to the scheme under a statutory rule in force.
12. In these circumstances, we are obliged to allow the writ application in part only. We call upon Government to consider the claim of the petitioner for appointment as an Assistant Engineer in accordance with law within six months from today. Unless Government regularise the appointments of the opposite parties 2 to 26 within a period of six months from today their appointments must be held to be invalid under the Rules and they must cease to be the members of the service.
13. Before we leave this case, we must indicate our serious disapproval of the matter in which Government have conducted themselves in this case-not appropriately meeting the allegations raised in the writ application, not making a complete disclosure of materials in their custody and not producing papers directed by this Court in spite of time being given.
14. The writ application is allowed to the extent as directed above with costs. Hearing fee is assessed at Rs. 100 (one hundred).
B.K. Ray, J
15. I agree