Skip to content


N. Lakshmaiah and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 574 of 1970
Judge
Reported inILR1971Delhi540; 1971LabIC1553
ActsConstitution of India - Article 226; Central Engineering Services Class I Recruitment Rules, 1954 - Rule 4(2)
AppellantN. Lakshmaiah and ors.
RespondentUnion of India and ors.
Advocates: S.N. Chopra,; P.P. Rao,; K.C. Dua,;
Cases ReferredT. Devadasan v. Union of India and Ors..
Excerpt:
(i) central engineering services class i recruitment rules (s.r.o. 1841 of 1954) - rule 4(2) --confirmation and seniority of officers promoted from two different sources --quota of two-third vacancies of executive engineer class 1 fixed for assistant executives engineers class 1 and one-third for assistant engineers class if --assistant engineers class ii promoted as executive engineers in excess of their one-third quota due to non-availability of assistant executive engineers class 1 --while confirming executive engineers government however, following rotational system by confirmity candidates from assistant executive engineers class 1 against first two vacanices and then confirmity assistant engineer class ii --on promotion seniority assigned from date of confirmations- --validity of.....v.s. deshpande, j.(1) recruitment to the central engineering service class i and to the central electrical engineering service class i is made under the central engineering service class i recruitment rules (s.r.o. 1841 of 1954) and under the central electrical engineering service class i recruitment rules (s.r.o. 1943 of 1954) respectively. the later service and the latter service rules are analogous to the former service and the former service rules. to avoid repetition, thereforee, reference will be made only to former set of service and the service rules. the most important rules on the construction of which these writ petitions have to decided are the following: 'partii-methods of recruitment. 3. recruitment to the service shall be made by any of the following methods:- (a) by.....
Judgment:

V.S. Deshpande, J.

(1) Recruitment to the Central Engineering Service Class I and to the Central Electrical Engineering Service Class I is made under the Central Engineering Service Class I Recruitment Rules (S.R.O. 1841 of 1954) and under the Central Electrical Engineering Service Class I Recruitment Rules (S.R.O. 1943 of 1954) respectively. The later Service and the latter Service Rules are analogous to the former Service and the former Service Rules. To avoid repetition, thereforee, reference will be made only to former set of Service and the Service Rules. The most important rules on the construction of which these writ petitions have to decided are the following:

'PARTII-Methods of Recruitment. 3. Recruitment to the Service shall be made by any of the following methods:- (a) By competitive examination in India in accordance with Part Iii of these rules. (b) By promotion in accordance with Part Iv of these rules. (c) By transfer in accordance with Part V of these rules. 4. (1) All appointments to the Service or to posts borne upon the cadre of the Service shall be made by Government. (2) Subject to the provisions of Rule 3 Government shall determine the method or methods of requirement to be employed for the purpose of filling any particular vacancies in the Service or such vacancies therein as may be required to be filled during any particular period and the number of candidates to be recruited by each method.

(2) Provided that all recruitments by competitive examination (vide Part Iii of the rules) shall be to the grade of Assistant Executive Engineer, Class I only. Sixty-six and two thirds per cent of the vacancies in the grade Executive Engineer Class I, shall be filled by promotion of Assistant Executive Engineers, Class I, the rest of the vacancies being filled by promotion and/or by transfer in accordance with Parts Iv and V of the Rules respectively.'

(3) Appointments to the grade of Executive Engineers Class I are made from two sources which constitute two distinct classes to be called Class (1) and Class (2). Class (1) consists of candidates directly recruited to Central Engineering Service Class I by competitive examination under Part Iii of the Rules and appointed as Assistant Executive Engineers Class I in the Central Engineering Service Class T. They are already in Class 1. They are promoted as Executive Engineers Class I as a matter of course by seniority-cum-fitness by purely executive action outside these Rules. Their 'promotion' is not made by way of a method of recruitment in accordance with Part Iv of the Rules. The respondent other than the Union of India in these three connected writ petitions (C.W. Nos. 574 of 1970, 553 of 1970 and 716 of 1969) are these candidates who were promoted as Executive Engineers. Class (2) consists of two kinds of candidates. Some of them. namely, the petitioners in Civil Writs 574 of 1970 and 716 of 1969, are candidates who secured lower places in the same competitive examination in which the respondents had secured higher places. These petitioners were recruited to Central Engineering Service Class Ii as Assistant Engineers Class II. The other petitioners in Civil Writ 553 of 1970 have become Assistant Engineers Class Ii by promotion from lower grades. The petitioners in all the three writ petitions were 'promoted' as Executive Engineers Class I in accordance with Part Iv of the Rules by selection on merit. Their 'promotion' is thus under the Rules as distinguished from the 'promotion' of the respondents which was outside the Rules.

(4) The problem which faced the Government from 1955 to 1965 and even onwards was that candidates from Class ( 1 ) were not available for appointment as Executive Engineers Class I in sufficient numbers required to fill the two thirds quote allotted to them by the last part of rule 4(2). The Government, thereforee, acted under the first part of rule 4(2) by promoting the petitioners who were Assistant Engineers Class Ii to the posts of Executive Engineers Class in excess of their one-third quota fixed by the last part of rule 4(2). The Government construed rule 4(2) to mean that, though particular vacancies of Executive Engineers Class I during particular periods may be filled by the Government by promoting Assistant Engineers Class Ii in excess of their quota, for the grade of Executive Engineers Class I as a whole, out of the total vacancies two-thirds must be held by promotees from Assistant Executive Engineers Class I and only one-third vacancies could be held by Assistant Engineers Class II. They secured this object by following the rotation system of confirming the candidates promoted from Assistant Executive Engineers Class I in the first two vacancies and then confirming a candidate from Assistant Engineers Class Ii in the third vacancy. The result was that the respondents, though appointed to officiate as Executive Engineers later in time than the ptitioners, were confirmed as Executive Engineers, Class I earlier than the petitioners.

(5) The seniority of those confirmed earlier was higher than the seniority of those confirmed later. The Government had 'bus to maintain three separate seniority lists of Executive Engineers. In List No. 1 were the confirmed Executive Engineers drawn from both the sources arranged in accordance with their seniority determined by the dates of their confirmations. In List No. 2 were the officiating Executive Engineers drawn from Assistant Executive Engineers Class I only with their own separate inter se seniority. In List No. 3 were the officiating Executive Engineers drawn from Assistant Engineers Class Ii with their own separate inter se seniority.

(6) The confirmations of the respondents as Executive Engineers have taken place from 1957 to 1968 and their seniority vis-a-vis other Executive Engineers drawn from Assistant Engineers Class Ii and confirmed as Executive Engineers was being determined in accordance with the dates of confirmation over these years in accordance with the rotation system.

(7) These writ petitions have been filed to challenge the legality of the earlier confirmations and the higher seniority of the respondents vis-a-vis the petitioners firstly on the ground that they were contrary to rule 4 as correctly construed and secondly to administrative instructions on the subject.

(8) Alternatively, if the confirmations and the seniority were in accordance with the Rules and the administrative instructions, then they were vocative of Article 16(1) of the Constitution as they denied equality of opportunity in employment to the petitioners.

(9) Before considering the merits of these contentions we have to consider whether these petitions have been unduly delayed and whether the discretionary reliefs under Article 226 of the Constitution should, thereforee, be denied to the petitioners. The most important grievance of the petitioners is the higher seniority given to the respondents. The earlier confirmations of the respondents are challenged primarily because they were made the basis of seniority and only secondarily because confirmations of the petitioners are desirable even in themselves. But the crux of both these grievances is rule 4. Either it is wrongly construed by the Government or it is unconstitutional. The cause of action for the ptitioners, thereforee, to challenge rule 4 arose as soon as it was framed in 1954. At any rate, the Government started making confirmations of respondents earlier than those of the petitioners from 1957 and left no doubt in the mind of the petitioners that the Government applied the rotation system in doing so. The cause of action, thereforee, arose in favor of the petitioners in 1957 at any rate.

(10) The rule laid down by the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai &0rs., : [1964]6SCR261 is that where the delay in filing writ petitions is more than the period of limitation prescribed for suits on the same cause of action, it will almost always be proper for the court to hold that the delay is unreasonable. This rule was confirmed by the majority in Tilokchand Molichand & Ors. v. H. B. Munshi : [1969]2SCR824 . Bachawat and Mitter JJ. expressly followed the decision in Bhailal Bhai's case. In the present case. the respondents have been confirmed and given higher seniority on the faith of rule 4 and the rotation system by which it was applied by the Government from 1957 onwards. Other Executive Engineers who are not parties to these writ petitions have also been confirmed likewise. The rights of these innocent third parties have thus intervened between the petitioners and the power of the Court to invalidate the action of the Government. In Rahindra Nath Bose & Ors. v. Union of India & Ors. : [1970]2SCR697 , it was held that the Courts would be even more reluctant to strike down an old rule which has been left unchallenged for so many years during which it has been acted upon against the petitioners without any complaint. These writ petitions have, thereforee, to be held to have been unduly delayed. They. thereforee, fail on this preliminary ground alone.

(11) If we are held to be wrong about this preliminary finding then only the merits of the case would arise for consideration. The questions for decision then would be as follows :-

(1)Whether the earlier confirmations and the higher seniority of the respondents are legal according to the Rules and the administrative instructions (2) If so, whether the Rules and the administrative instructions are themselves ultra virus Article 16 of the Constitution ?

(12) Question No. 1 :- It is common ground between the parties that the last part of rule 4(2) lays down separate quotas of two-thirds and one-third in the total vacancies of Executive Engineers Class I for the two classes of promotees, namely, from Assistant Executive Engineers Class I and Assistant Engineers Class Ii respectively. But the implementation of the quota rule is the root of the controversy between the parties According to the petitioners, the quota rule has to be applied initially when candidates from these two classes are first appointed to officiate as Executive Engineers so that two-thirds vacancies go to the promotees from Class I and one-third to the promotees from Class Ii, the seniority being determined according to the dates of the officiating promotions. If, as in this case, candidates from Class I were not available to occupy all the vacancies of Executive Engineers falling in their quota then the unoccupied vacancies from their quota should be filled by the candidates from Class Ii and the quota rule should be abandoned to that extent on the ground that it is not feasible to apply it in the circumstances, the seniority being again determined according to the dates of officiating promotions. It may be further pointed out in favor of the petitioners that the last part of rule 4(2) laying down the quota rule does not expressly state it is to be implemented by a system of rotation by which the first two vacancies are to be filled from Class I and the third vacancy from Class Ii and so on. On the other hand the Government was obviously of the view that the only way to give effect to the quota rule was to follow the rotational system of promotions particularly to ensure that the promotees from Class I filling the first two vacancies would be senior to the promotee from Class Ii filling the third vacancy. Even if the initial recruitments made under the first part of rule 4(2) could not comply with either the quota rule or the rotational system, the initial appointments were only officiating ones and did not prejudice the seniority of promotees from Class I though they were appointed later in point of time to officiate as Executive Engineers vis-a-vis the promotees from Class Ii appointed to officiate as Executive Engineers earlier. We have, thereforee, to find out which of the above methods of implementation of the quota rule is implicit in the last part of rule 4(2). In doing so, we have to remember two simple rules of statutory construction. Firstly, the first part of rule 4(2) should not be regarded as redundant without any scope for its application. Secondly, rule 4(2) as a whole has to be construed harmoniously so that the first and the last parts of it are reconciled with each other If this is done, it would appear that the key to the understanding of rule 4(2) is to be found in the dichotomy between the first part of rule 4(2) dealing with the filling of a particular vacancy during a particular period with the last part of rule 4(2) dealing with the grade of Executive Engineers Class I as a whole and, thereforee, generally dealing with all the vacancies in that grade. At the same time it will be seen that these two parts of rule 4(2) are in juxtaposition with each other and have to be considered side by side to bring out the meaning of rule 4(2) as a whole. So read, the first part of rule 4(2) gives the Government discretion in filling particular vacancies during a particular period including the number of candidates appointed to fill such particular vacancies. But this is subject to the last part of the rule which lays down the quotas for the two classes of promotees. The last part thus controls the first part. If both are read together, the Government gets the discretion to depart from the quota rule in filling particular vacancies. Such a departure becomes necessary when candidates from one of the two classes are not available to fill up their quota. This is precisely what happened in the present case. If this enabling provision were not there, Government would be unable to make any appointment departing from the quota rule, particularly with the rotational method implementing the quota rule. But the work of the Government has to be carried on and, thereforee the Government was given this authority to temporarily deviate from the quota rule provided that the quota rule was ultimately enforced by the time confirmations were made in accordance with the rotational system implied in the last part of rule 4(2). The quota rule assumes that candidates from both the classes would be forthcoming in adequate numbers to fill the vacancies in their respective quotas. According to the petitioners whenever the candidates from Class I were not available in sufficient number to fill the vacancies allotted to their class, the Government should simply abandon the quota rule and appoint candidates from Class Ii to the vacancies which had been allotted to candidates from Class I. The petitioners contend that the Government could do so as the requirement of quota was directory and not mandatory. But the question whether the rule is directory or mandatory arises only if the rule has not been adhered to. In the present case the Government has adhered to the rule. Even if the rule were directory, a Court of law cannot order the Government to violate the rule. We cannot, thereforee, agree with the petitioners that the Government should be compelled to abandon the quota rule and give to the petitioners the vacancies allotted to the respondents. Alternatively the petitioners submit that they were entitled to be confirmed as Executive Engineers at any rate to the extent of one third of the vacancies which was their quota. They contend that their confirmations of the respondents inasmuch as the quota rule did not require the rotational system of confirmations to be followed. Let us examine this contention carefully. Firstly, it makes the first part of rule 4 (2) redundant. For, if under the last part of rule 4(2) only the quota but not the rotation system is to be followed then the Government could promote candidates from either of the two classes in any order they please provided that the total number of candidates from each of the two classes is restricted to their respective quotas. If this were the true meaning of the rule, then rule 4(2) would have consisted only of its last part. Where was the need then to expressly say in the first part of rule 4(2) that particular vacancies during particular period could be filled by the Government according to any of the methods enumerated in rule 3 It is only on the assumption that the rule making authority thought that the quota rule has to be implemented by the rotation system that the first part of rule 4(2) had to be framed. Otherwise the Government could not have been able to make even a single promotion contrary to the rotation system of the quota rule. Secondly whether the first part is regarded as the rule and the last part as the proviso or whether the two parts are simply regarded as constituting one rule, it is clear that the last part controls the first. The reason is that the last part applies to the grade as a whole and implies the. rotation system while the first part applies only to particular vacancies filled during particular periods. Thirdly, the interpretation of the quota rule is controlled by the basic fact that the two quotas are assigned to two different classes of officers. There can be no comparison between these two classes. As observed by the Second Pay Commission in its Report of 1957- 59 Chapter Xiv paragraphs 5 to 8, even where the duties and responsibilities of Class Ii officers and of officers of the junior branch of Class I are similar, the pay-scale and the status of each of these two classes is essentially different. For, officers of Class I are recruited for holding higher posts (such as those of Executive Engineers, Superintending Engineers and Chief Engineers in the Central Engineering Service Class I in the present case). The junior scale posts held by them (such as Assistant Executive Engineers Class I in the present case) are only meant to serve as training ground to equip them for promotion to higher posts. On the other hand officers of Class Ii (Assistant Engineers Class Ii in the present case) are meant to hold those posts to do the normal work of those posts. The scheme permeates the whole administrative system of the Government of India. For instance, officers of the All India Services hold the posts in the junior scale only as a training ground. They are quickly promoted lo the senior scale to hold the higher posts. The promotion of the Indian Police Service Officers, for instance, from the junior to the senior scale was regarded by the Supreme Court in P. C. Wadhwa v. Union of India and Another, : (1964)ILLJ395SC , as a matter of right. This is why the Government can ensure that the Class I officers will exclusively man the posts of the Chief Engineers and overwhelming majority of the posts of the Chief Engineers and over overwhelming majority of the posts of Superintending Engineers and the two-thirds posts of Executive Engineers. This can be ensured only by giving seniority to' the Class I officers in the posts of Executive Engineers in the two-thirds vacancies higher than the seniority accorded to the promotees from Class Ii in the posts of Executive Engineers. The only way to preserve this seniority is to follow the rotation system of filling the vacancies. Otherwise the whole system will break down, Can it be imagined that officers promoted as Executive Engineers from Class Ii are allowed to be confirmed earlier than the officers promoted from Class I with the result that they enjoy a higher seniority Such higher seniority will enable the Class Ii officers to become Superintending Engineers and Chief Engineers in preference to Class I officers. The whole purpose of forming a Class I Service with a direct recruitment to it by competitive examination will be frustrated if promotees from Class Ii are allowed to man these superior posts in preference to the Class I officers. Class I and Class Ii being distinct from each other, separate lists of promotees from these two classes are considered by the Departmental Promotion Committee while recommending promotion, from these two classes to the posts of Executive Engineers Class I. No comparison can be made and none is made of the merit of a Class I officer vis-a-vis the merit of a Class Ii officer at the time of such promotions. This is why promotees from the two different classes are placed in two different lists of officiating Executive Engineers. The seniority of the officers in these two seniority lists vis-a-vis each other is determined for the first time when they are confirmed as Executive Engineers and placed in the third list of confirmed Executive Engineers. It is this necessity to preserve the seniority of Class I officers in every two vacancies out of three against the seniority of a Class Ii officer appointed to a third vacancy that the rotation system becomes necessary. Such rotation alone can form the basis of the quota rule. Merit cannot form the basis of working the quota rule when candidates from two separate classes are to be recruited without any comparison of their respective merits against each other. The quota rule can work either on the basis of rotation or on the basis of merit. As the latter cannot be applied in the present case. the former alone must apply. The petitioners relied upon paragraph 5(ii) of the Annexure to the Office Memorandum No. 9/11/55-RPS of the Ministry of Home Affairs, dated 22-12-1959. It runs as follows :-

'5.Promotees: (ii) Where promotions to a grade are made from more than one grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Departmental Promotion Committee shall select persons for promotion from each list up to the prescribed quota and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the of the persons on promotion to the higher grade.'

The key word in these instructions is 'select'. It is only when selection from both the classes is to be made on the merit that the Departmental Promotion Committee can assess the merit of a candidate from one class vis-a-vis the merit of another candidate from another class and can arrange candidates from both the classes in a consolidated order of merit. But this provision has no application to the present case. For, there is no selection on merit of Assistant Executive Engineers Class I for promotion to the grade of Executive Engineers Class I . This is why no consolidated order of merit of persons selected from Assistant Executive Engineers Class I and Assistant Engineers Class Ii can be made. The only alternative which could be adopted by the Government was to prepare two separate seniority lists of officiating Executive Engineers promoted from these two different classes. It is only when they are confirmed that they can form one class and the seniority of promotees from Class I vis-a-vis the promotees from Class Ii is determined for the first time. The promotion of Class I officers as Executive Engineers is made outside these Rules and their seniority has to be preserved to enable them to occupy the higher posts in the Service. Their seniority cannot be allowed to be upset by an accident such as their nonavailability in a particular year to fill the required number of posts in their quota resulting in the filling of those posts by promotees from Class Ii in excess of their quota. In fact promotees from Class It filling the posts in the quota allotted to Class I officers have no right to hold such posts outside their own one-third quota. They cannot, thereforee, complain if in respect of the posts outside their quota, their confirmation is postponed till they are entitled to be confirmed in the posts in their own quota. thereforee, in our view the quota rule is to be viewed as one whole. It lays down the proportion in which the promotions from the two sources are to be made. This proportion has to be constantly maintained by following the rotation system. It would not be correct to take each part of the ratio separately. The petitioners cannot, thereforee. claim that in such number of vacancies as would amount to one third of the total vacancies, they should be confirmed without regard to the rotational system. Our conclusion, thereforee, is that only the principle of rotation can be followed in implementing the quota rule because the promotion of Assistant Executive Engineers Class I to the grade of Executive Engineers Class I is as of right in due course by seniority-cum-fitness while the promotion of Assistant Engineers Class Ii as Executive Engineers Class I is by way of selection on merit. The seniority of the officers so promoted from these two sources by two different methods can be integrated only when they are confirmed as Executive Engineers when for the first time they become members of one class. We are fortified in the above view by several decisions of the Supreme Court in which quota rule was either assumed or held to work only on the basis of the principle of rotation of vacancies between the officers drawn from two disparate classes. In Mervyr Coutindo & Ors. v. Collector of Customs, Bombay & Ors., : (1967)ILLJ749SC the requirement to the posts of Appraisers was from two sources, that is, fifty per cent by promotion from the department. 25 per cent directly from experts and 25 per cent by means of a competitive examination or selection by the Public Service Commission. The principle of rotation was assumed to underlie this quota system. The argument in the present case that once a vacancy is filled by a candidate drawn from Class Ii he must get seniority over a candidate drawn from Class I filling a vacancy later was also considered by the Supreme Court in Mervyn Coutindo's case and rejected at page 604 in the following words :-

'STRESS has been laid on behalf of the petitioners on the words 'is filled' in the circular and it is urged that this means that until the direct recruit is actually recruited and fills the vacancy meant for a direct recruit he cannot get seniority from before the date he fills the vacancy merely on the ground of rotational system of fixing seniority. We do not think that this is the meaning of the words 'is filled' used in this circular. We have already said that this circular also emphasises the rotational system in the matter of fixing of seniority and all that it means is that vacancies should be filled filled either by direct recruits or by promotees according to the quota fixed for such appointments.'

In Govind Dattatry Kelkar v. Chief Controller of Imports & Exports, : (1967)ILLJ691SC , also the ratio of recruits from two sources was 25 per cent and 75 per cent. This was construed to be the principle of rotation in the ratio of 1 : 3. In S. G. Jaisinghani v. Union of India, : [1967]65ITR34(SC) , rules 3 and 4 of the Recruitment Rules reproduced at page 715 were the same as rule 3 and the first part of rule 4(2) in the present case. The quota of 80 per cent by direct recruitment and 20 per cent by promotion was imposed only by administrative instructions and not by a statutory rule at all. Even then it was held to be mandatory and the departure from it made by the Government was struck down. At page 719, the Supreme Court suggested to the Government that for future years the roster system should be adopted by framing appropriate rules for working out the quota system, Insofar as the principle of rotation is implicit in the quota system laid down by the last part of rule 4(2), no administrative instructions can overrule the statutory rule. But administrative instructions can explain or supplement the statutory rule. The same authority which made the rules, namely, the Ministry of Works and Housing, has also issued the following administrative instructions in Office Memorandum No. 8589-EW/60, dated 8th December 1960 (page 90 of the paper-book in Civil Writ 574 of 1970) which states the position in paragraph (iv) in the following words :-

'SENIORITY of the direct recruits vis-a-vis the departmental promotees is determined on the basis of the prescribed ratio, e.g., the ratio for direct recruits and departmental promotees in the grade of Executive Engineers is 2 : 1 and, thereforee, the first two vacancies are given to direct recruits and the third to the departmental promotees; 4th and 5th to direct recruits and the 6th to a, departmental promotee and so on-this order also determines their order of seniority:'

Paragraph 6 of the Annexure to the Office Memorandum of the Ministry of Home Affairs dated 22-12-1959, referred to above, is also to the same effect and is as follows:-

'RELATIVE Seniority of Direct Recruits and Promotees :- The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.'

The rotational system is, thereforee, firstly justified by rule 4(2) itself. Even if it is assumed for the sake of argument that rule 4(2) is silent about the rotational system, then the administrative instructions make it clear that the quota system in rule 4'(2) has to' be worked out only by the rotational system and not any other manner. As a rule, confirmations of officiating Executive Engineers promoted from the grade of Assistant Engineers Class Ii are made only when vacancies are available for such confirmation according to the rotational system. The first two confirmations are of officiating Executive Engineers drawn from the class of Assistant Executive Engineers Class I and the third confirmation would be of an officiating Executive Engineer drawn from the Class of Assistant Engineer Class Ii and so on. The reason is that the Government ascertains before such confirmation whether the vacancies in which the confirmations are made definitely belonged to the officers drawn from the class of Assistant Executive Engineers Class land the officers Shri S. S. Ojha, petitioner in Civil Writ 716 of 1969, seems to be an exception to this rule. He was confirmed along with respondents 5 to 8 with effect from 13-10-1961. The respondent No. 9 was confirmed from 14-5-1962. Nevertheless not only the respondents 5 to 8 but also the respondent No. 9 was later shown as senior to Shri Ojha. Shri Ojha, however, admits that previously his seniority was only provisional. It is obvious, thereforee, that according to the information in the possession of the Government, even the respondent No. 9 has to be regarded as senior to Shri Ojha in accordance with the rotational system of implementing the quota rule. If this was so, the confirmation of the petitioner Shri Ojha with effect from 13-10-1961 might itself have been wrong. For, there must have been certain permanent vacancies which could be filled only by persons drawn from the class of Assistant Executive Engineers Class I above the vacancy in which the petitioner Shri Ojha was confirmed according to rotational system. Unless those vacancies were first filled, the petitioner Shri Ojha should not have been confirmed. But the respondent No. 9 has already been given seniority above the petitioner and this may be the reason why he did not find it necessary to question the confirmation of the petitioner from a data earlier than the data on which respondent No. 9 were to be disturbed and if he was to be regarded as being below the petitioner in the order of seniority, respondent No. 9 would be able to show that the petitioner was not entitled to be confirmed earlier than him. If the respondent No. 9 can show that the vacancy in which the petitioner was confirmed was below the vacancy in which he was confirmed according to the rotational system, then the Government would have to de-confirm the petitioner and put his date of confirmation below the date of confirmation of the respondent No. 9. A mistaken order of confirmation is not final and can be corrected by a subsequent order of de-confirmation as was held by the Supreme Court in State of Punjab v. Jagdip Singh & Ors. : (1966)ILLJ749SC . The only way in which the petitioner could have successfully challenged the seniority given to the respondent No. 9 above the petitioner was by pleading that according to the rotational system implementing the quota rule. the petitioner was entitled to be senior to the respondent No. 9. The petitioner has made no such pleading. The case of Shri Ojha is that because he was officiating as an Executive Engineer Class I from before the time the respondent No. 9 started officiating, Shri Ojha was entitled to seniority not only against respondent No. 9 but against the other respondents also. This stand is contrary to the last part of rule 4(2) which compels the Government to fill the vacancies in the grade of Executive Engineers Class I strictly by rotation system implementing the quota rule. Our conclusion on question No. 1, thereforee, is that the earlier confirmations and the higher seniority given to the respondents are legal both according to the statutory rule 4(2) and according to the administrative instructions.

(13) Question NO. 2:- Equality of opportunity in matters relating to employment guaranteed by Article 16(1) of the Constitution is subjected to the rule of reasonable classification. The petitioners and the respondents admittedly belong to two different classes before they were promoted as Executive Engineers. The petitioners claim that immediately on such promotion they and the respondents should be held to form only one class of officiating Executive Engineers. We are unable to accede to this contention. The reason is that there was no comparison on merit otherwise between the Assistant Executive Engineers Class I promoted as of right outside the Rules and the Assistant Engineers Class It promoted by selection under Part Tv of the Rules. This was why two separate seniority lists had to be maintained in respect of these two classes of promotees. thereforee, even though both these classes of persons were occupying the posts of Executive Engineers Class I with the same designations and same scale of pay they were not integrated into one class till they were confirmed as Executive Engineers. In State of Punjab v. Joginder Singh, (1963) Supp. 2 S.C.R. 169 the teachers of the Punjab State cadre and the teachers of the District Board and Municipal Board schools formed into a provincialised cadre, did the same work and got the same scale of pay. The latter claimed that they had been integrated with the former and, thereforee, the opportunities of promotion to them should be equal to the opportunities of promotion to the former. One of the reasons why this claim was resisted by the State of Punjab was that the inter se seniority of the members of each of these two cadres was known as but no seniority was fixed between the members of these two different cadres in relation to each other. The date of confirmation in the service is the crucial date for determining such seniority. The teachers in the provincialised cadre were not confirmed and, thereforee, their seniority vis-a-vis the teachers in the State cadre could not be established. The Supreme Court held that there was force in the submission made by the State of Punjab. Ayyangar, J., speaking for the majority at page 189 of the report observed as follows:

'IF,as we hold, there was no integration (and integration has no meaning unless it is complete, for there is no such thing as partial integration) either expressly or by necessary implication, it would follow that it was not the impugned rules that created the two distinct cadre but that they existed independently of the rules and the only charge that could be laid against the rules in this respect was that they failed to effect an integration.'

This decision is an authority for the proposition that no integration could be said to have been achieved until the seniority of the two classes of officers, inter se is determined. As the seniority can be determined only at the time of confirmation, before the confirmation there could be no integration between these two classes of officers. Government have good reasons to keep these two classes apart till they are integrated into one class of confirmed Executive Engineears. For, the Government believes that it is primarily promotees from Class I who should man the majority of the posts of Executive Engineers and almost all the posts of Superintending Engineers and Chief Engineers. At any rate, it is not for this Court to question the soundness of this policy which is entirely a matter of administration. A distinguished American thinker in an oft-quoted passage has demarcated the field of administration from the field of judicial review in this respect in the following words :-

'NOT to make decisions that others should make it to preserve morale, to develop competence, to fix responsibilities and to preserve authority.'

(Chester Bernard : The Functions of the Executive 194 (1938) The system by which recruitment to a particular service or grade is made from candidates drawn from two different sources with different chances of promotion as in the present case was also upheld by the Supreme Court in Kishori Mohanlal Bakshi v. Union of India, : [1962]44ITR532(SC) , All India Station Masters' & Assistant Station Master's Association & Others v. General Manager Central Railways etc. : [1960]2SCR311 , Ram Sharan v. The Deputy Inspector General of Police, 1964) 7 S.C.R. and in Roshan Lal Tandon v. Union of India, : (1968)ILLJ576SC . The delay in the confirmations and lower seniority of the petitioners vis-a-vis the respondents was due not to any unconstitutionality in the principle of rotation by which the quota system was implemented but entirely to an accidental circumstance, namely, the non-availability of sufficient number of Assistant Executive Engineers Class I to fill up the quota allotted to them in the grade of Executive Engineers. With respect to such a phenomenon the Supreme Court observed at page 605 of the report in Mervyn Coufindo's case as follows :-

'IT is regrettable that some anomalies have appeared because of insufficient requirement of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and promotees.'

But the petitioners are apt to forget that if the rotational system had been applied strictly and the first part of rule 4(2) had not been there, then the petitioners would not have been promoted at all as Executive Egineers. It was some gain to them that they were actually promoted and their promotion was not delayed till the fulfillment of the quotas by the respondents. But they cannot convert this accidental gain into a permanent one as they had really no right even to the accidental gain. In G. D. Kelkar's case, the Supreme Court observed at page 35 of the report that 'the petitioners and others similarly situated, had no right to the posts of Assistant Controllers' to which they were appointed 'ad hoc'. Even though the words 'ad hoc' were not used to qualify the appointments of the petitioners as officiating Executive Engineers till 1966 in effect their appointments were ad hoc in the sense that they did not have the right to be confirmed in those vacancies earlier than the respondents except in accordance with the rotation system. The Supreme Court has already clarified at pages 605 and 606 of the report in Mervyn Coutindo's case that the carry forward rule struck down by them in T. Devadasan v. Union of India and Ors.. : (1965)IILLJ560SC , was different from the rotation system,

(14) The implementation of the quota rule by the rotational system inevitably postponed the integration of the petitioners and the respondents into one class till their respective seniority was determined. The object of this system was to ensure that the respondents who were directly recruited by competitive examination to the Class I Service should occupy the first two vacancies in the grade of Executive Engineers Class I and only the third vacancy should go to the promotees from Assistant Engineers Class II. This object ensured that most of the superior posts from Executive Engineers upwards would be manned by direct recruits in the interests of efficiency as they were superior from the very beginning to the petitioners. The classification between the petitioners and the respondents was thus not only based on an intelligible differentia but this differentia had also a nexus with the object of securing the efficiency of administration. We hold, thereforee, that neither rule 4(2) nor the administrative instructions by which the principle of rotation implementing the quota rule was followed were ultra virus Article 16(1) of the Constitution.

(15) The writ petitions (namely C.Ws. 574 of 1970, 533 of 1970 and 716 of 1969) are, thereforee, dismissed but without any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //