INTER-SE SENIORITY AMONGST EMPLOYEES COMING FROM TWO DIFFERENT SOURCES
Supreme Court of India
Direct Recruit Class Ii ... vs State Of Maharashtra And Ors on 2 May, 1990
Equivalent citations: 1990 AIR 1607, 1990 SCR (2) 900
Author: L Sharma
Bench: Mukharji, Sabyasachi (Cj), Sharma, L.M. (J), Pandian, S.R. (J), Sawant, P.B., Ramaswamy, K.
DIRECT RECRUIT CLASS II ENGINEERING OFFICERS'ASSOCIATION AND
STATE OF MAHARASHTRA AND ORS.
DATE OF JUDGMENT : 02/05/1990
SHARMA, L.M. (J)
SHARMA, L.M. (J)
MUKHARJI, SABYASACHI (CJ)
PANDIAN, S.R. (J)
1990 AIR 1607 1990 SCR (2) 900
1990 SCC (2) 715 JT 1990 (2) 264
1990 SCALE (1)839
CITATOR INFO :
APL 1991 SC 235 (6)
F 1991 SC 284 (1,2,24,29)
F 1991 SC1134 (10,12)
D 1991 SC1406 (26)
RF 1991 SC1818 (5)
R 1992 SC 410 (10)
D 1992 SC 922 (16)
R 1992 SC1188 (7)
D 1992 SC2074 (7)
Constitution of India, 1950: Articles 14, 16 and 309--Rules relating to seniority of Maharashtra Service of Engineers----Validity of. Articles 32 and 226--Constructive Res judicata--Applicability of.
Labour and Services: Reorganised Bombay State Overseas and Deputy Engineers Seniority Lists Rules 1978/Maharashtra Service Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for specified period) Rules, 1982/Executive Engineers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and Class H (Regulation and Revision of Seniority Lists) Rules 1983/1984--Whether violative of Articles 14 and 16 of the Constitution of India.
Seniority and promotion--Direct recruits and promotees--interse seniority--To be counted from date of appointment, not confirmation--Ad-hoc appointment--Officiation in such post--Cannot be taken into account for considering seniority.
Quota rule--Absence of statutory rule--Can be prescribed by executive instruction--To be followed strictly--Consecutive non adherence--Effect of.
Civil Procedure Code, 1908: Section 11, Explanation IV--Res judicata--Applicability to writ cases.
HEADNOTE: The parties in these matters are Engineers in the employment of the States of Maharashtra and Gujarat. In 1937, Government of Bombay created two new Provincial Engineering Services known as the Bombay Engineering Service Class I consisting of posts of Chief Engineer, SUperintending Engineers, ExecUtive Engineers and Assistant Engineers Class I, and the Bombay Engineering Service Class II having officers designated as Deputy Engineers. All the posts were permanent.
In 1939, Rules were made for regulating the methods of recruitment to the said services which directed the recruitment to be made either by nomination from amongst the students of the College of Engineering, Pune or by promotion of officers holding inferior posts. A resolution was passed on 21.11.1941 for determination of the seniority of the direct recruits and the promotee officers, containing only two rules. Rule 2 thereof was to the effect that in case of officers promoted to substantive vacancies, the seniority would be determined with reference to the date of their promotion to the substantive vacancies. In 1960, detailed rules for recruitment to Class I and Class 1I Services were framed. In place of nomination from the successful students of College of Engineering, Pune as direct recruits, these Rules prescribed for a competitive examination to be held by the Public Service Commission, and introduced a quota system by fixing a ratio of appointments of direct recruits and promotees. The Rules also made reference to promotion, as Executive Engineers on officiating basis, and temporary Deputy Engineers and officiating Deputy Engineers. By r. 8 the posts of Deputy Engineers were re-organised, and by sub-rule (iii) it was provided that the direct recruits in any year shall in a bunch be placed senior to promotees confirmed during that year. A review of these Rules was later undertaken by the Government and ultimately in partial supersession thereof a fresh set or rules, were adopted in 1970. In the meantime, however, a serious dispute in regard to the interpretation of one of the provisions of the 1960 Rules arose which was settled by this Court in the case of P.Y..Joshi and Others v. The State of Maharashtra and Others,  2 SCR 615. During the period 1960-70 adequate number of direct recruits were not available, and a large number of promotees, therefore, had to be appointed to officiate as Deputy Engineers on continuous basis. These appointments were made after following the procedure applicable to regular promotions, including consultation with the Public Service Commission. The strength of the permanent Deputy Engineers was fixed at the total number of (a) the Deputy Engineers confirmed up to the date of commencement of the Rules, (b) direct recruits to the posts of Deputy Engineers appointed till the date of commencement of the Rules, and (c) the Deputy Engineers officiating on 30.4.1960; and it was provided that no fresh appointments in future would be made to this cadre and the vacancies arising would be transferred to the officers holding subordinate posts detailed in the sub-rule in proportions indicated. As per rule 33 of the 1970 Rules, the seniority list in each cadre in Class I and Class II was to be prepared in two parts one for the confirmed officers and other for those who were not confirmed; and that the confirmed officers would be treated as senior to the unconfirmed officers. Since the direct recruits were all Appointed against the permanent posts, they were reckoned to be senior to the officiating Deputy Engineers irrespective of the period for which they had been working continuously on the Deputy Engineer's posts. Though the Rules were amended in 1972, there was no departure from the main scheme especially the principle governing seniority. In pursuance of the 1970 Rules seniority lists were prepared. The validity of r. 8(iii) of the 1960 Rules and of r. 33 of the 1970 Rules was successfully challenged as being violative of Articles 14 and 16 of the Constitution. S.B. Patwardhan and Ors. v. State of Maharashtra and Ors.., 3 SCR 775. In view of the judgment in Patwardhan's case, it became necessary to preparefresh seniority lists. Rules were framed under Article 309 of the Constitution read with s. 81(6) of the Bombay Reorganisation Act, 1960, and were called the Re-organised Bombay State Overseers and Deputy Engineers Seniority Lists Rules, 1978. In 1981 further rules called Re-organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules,. 1981 were flamed laying down the rule of determination of seniority of the Assistant Engineers and the Executive Engineers for the period 1.11.1956 to 30.4.60. These rules have been successfully challenged in the High Court. The main Rules which are the subject matter of the present cases were framed in 1982 under Article 309 of the Constitution laying down the principle for fixing the seniority for the period dated 1.5.1960 to 20.12.70 and are called the Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982. These rules were framed in view of the decision of the Bombay High Court in S.B. Patwardhan's case. By including two rules therein--Rules 4 and 9, deleted later--fixing rigid quota with retrospective effect, attempt was made to neutralise the decision and rob the promotees the benefit of their continuous officiation. For the purpose of fixing the seniority of Executive Engineers and Assistant Engineers for the period commencing from 21.12.1970, separate rules were framed under Article 309 of the Constitution and are called the Executive Engineers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and Preparation and Revision of Seniority Lists) Rules, 1983. As a result of a decision of the High Court striking down Sections 4 and 9 of the 1982 Rules, the 1984 Rules were framed by the Government. The present appeals, special leave petitions and Writ Petitions challenge the validity of the Rules framed in 1978, 1982, 1983 and 1984. Dismissing all these matters, this Court,
HELD: 1. The period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole 'test of confirmation, for, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbant nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. [914G-H; 915A-D] S.B. Patwardhan v. State of Maharashtra.  3 SCR 775; Baleshwar Das v. State of U.P.,  1 SCR 449; Delhi Water Supply and Sewage Disposal Committee & Ors. v. R.K. Kashyap & Ors.,  Supp. 1 SCC 194 and Narender Chaddha
2.1 It is incorrect to say that the 1970 Rules indicate that the officiating posts were not included in the cadre of the Deputy Engineers. It is true that the use of word "promotions" in r. 8(i) of the 1960 Rules is not quite appropriate, but that by itself cannot lead to the conclu- sion that the officiating Deputy Engineers formed a class inferior to that of the permanent Engineers. One cannot attribute fixed connotation to the expression 'promotion' without reference to the context. The expression has been used in the sense of confirmation. The language used in several other rules is inconsistent with two-cadre theory, and by way of illustration r. 12(a) may be considered. Rules 5 and 24 of the 1970 Rules mention only 4 cadres in Class II--namely, those of Sub-Divisional Officers, Sub-Divisional Engineers, Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy Engi- neers. Rule 12(a) of the 1970 Rules expressly includes some of the officiating Deputy Engineers within the cadre of Deputy Engineers, although it leaves behind the other offi- ciating Deputy Engineers who started officiating later than 30.4.1960. Rule 13 speaks of officers "officiating in the erstwhile cadre of Deputy Engineers" and r. 27 of "officiat- ing promotions" which are inconsistent with two-cadre theory. In r. 33 of the 1970 Rules also two lists were directed to be prepared, not cadre-wise but in each cadre, clearly indicating that the lists were different from cadres. In r. 8(1) of the 1960 Rules also the different groups were not described as different cadres. They were referred to as "categories" and what the reorganisation suggested was with reference to "lists" to be prepared. It will not, therefore, be right to equate the lists with cadres. It is true that the Rules have not in express language stated that the officiating posts also will be in the cadre but if all their relevant provisions are considered, they unmistakably lead to the said conclusion. [918A-F] 2.2 Questions of vital importance affecting a very large number of officers in the departments concerned and many disputes have been settled by following the judgment in Patwardhan's case. In such a situation it is not expedient to depart from the decision lightly. It is highly desirable that a decision, which concerns a large number of government servants in a particular service and which has been given after careful consideration of the rival contentions, is respected rather than scrutinised for finding out any possi- ble error. It is not in the interest of the service to unsettle a settled position every now and then. [918G-H; 919A] 2.3 Even on an independent consideration of the provi- sions of the Rules, and the relevant materials the temporary posts of Deputy Engineers against which promotees officiat- ed, did not form a separate cadre and were additions to the main cadre. These temporary posts were created in pursuance of several resolutions of the State Government and the language used therein amply supports this view. [921A-E] S.B. Patwardhan v. State of Maharashtra,  3 SCR 775 and P.Y. Joshi v.State of Maharashtra,  2 SCR 615, followed.
State of Gujarat v.C.G. Desai & Ors.,  2 SCR 255, distinguished.
Baleshwar Dass v. State of U.P. & Ors.,  1 SCR 449, referred to.
Note: Here only the Head Notes and first para of the Judgement is reproduced. For full text of the Judgement, click on the attached PDF file.