TMI Blog1977 (5) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... by certificate granted by the Gujarat High Court under art. 133(1) of the Constitution. Special Civil Application No. 815 of 1972 which has given rise to Civil Appeal No. 1113 of 1974 was disposed of by a Division Bench of the Bombay High Court by its judgment dated 15th, 16th and 17th January, 1974. The four Gujarat appeals arise out of Special Civil Applications Nos. 1099 of 1969, 422 of 1970 and 1418 of 1971 which were disposed of by a Full Bench of the Gujarat High Court by its judgment dated July 14, 1973. The complexity of the questions involved in these appeals has been expressed by the Bombay High Court by saying that the writ petitions before it involved ticklish and complicated questions and by the Gujarat High Court by saying that though it had many occasions to consider complex problems pertaining to service laws, there was no case comparable to the writ petitions filed before it in the instant case. The learned Chief Justice (Bhagwati, J.) who delivered the judgment of the Full Bench obserVes that these questions of unrivailed complexity had caused considerable anxiety to the Court in reaching a satisfactory conclusion. We share this anxiety which is further hei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules aS being violative of Arts. 14 and 16 of the Constitution. They also challenge the 1970 rules on the ground that they lack approval of the Central Government, thereby violating the proviso to s.81 (6) of the Bombay State Reorganisation Act of 1960. According to the appellants, the 1960 rules were superseded by the rules dated July 29, 1963 and still the State Government continued to apply the defunct rules of 1960. On these grounds, broadly, the appellants filed a writ petition in the Bombay High Court on behalf of themselves and all those promoted as Deputy Engineers in Class II of the Maharashtra Engineering Service. Putting it as briefly as one may, the, sum and substance of the stand taken by respondents 2 and 3 is that neither the 1941 rules nor the 1963 rules are applicable to employees in Maharashtra Engineering Service. The posts of Deputy Engineers, according to them and according to the State of Maharashtra, were required to be filled in by direct recruits and promotees in the ratio of 75 : 25 under the 1960 rules which had superseded the earlier rules of 1939. Therefore, according to them, the question of seniority of the appellants could not possibly arise unti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineering Service Class I and Bombay Engineering Service Class 1I. The cadre strength of Class I Service was fixed initially at 36 while that of Class II Service was fixed at 80. Class I Service comprised the apex posts of Chief Engineer, Superintending Engineer and Executive Engineer, and the junior posts of Assistant Engineers. Class II Service consisted of Deputy Engineers only. On September 21, 1939 the Government of Bombay passed a resolution adopting rules for regulating the methods of recruitment to the posts of Assistant Engineers and Executive Engineers in Class I Service and the posts of Deputy Engineers in Class II Service. These rules were made by the Governor of Bombay in exercise of the powers conferred by s. 241(2) (b) of the Government of India Act 1935 and were called: Recruitment Rules of the Bombay Service of Engineers (Class 1 and Class II). The rules appear at Item 53 is Section V of A endix C to the Bombay Civil Services Classification and Recruitment Rules under the heading Bombay Service of Engineers. Rule 2 of the 1939 Rules laid down the method of recruitment to the Bombay Service. of Engineers, Class I, by providing that such recruitment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee under the Chairmanship of Shri Gurjar to examine the, question of future recruitment to Engineering Services, Classes I and II. That Committee submitted its recommendations to the Government after prolonged deliberations but since the implementation of the recommendations had to be deferred, the Government started making appointments to both classes of services by direct recruitment through the Public Service Commission. Such appointments were made from the year 1950. As stated earlier, the cadre strength of Class I and Class II Services was fixed initially at 36 and 80 permanent posts respectively. But with the launching of new development projects, the strength of both cadres had to be expanded from time to time by addition to the permanent posts. In fact, for an early and effective achievement of the target it became necessary to make appointments of several temporary Executive Engineers and Deputy Engineers. On November 1, 1956 there were 360 temporary posts of Deputy Engineers as against 200 permanent posts. By April 29, 1960 these numbers had risen respectively to 600 and 400. One of, the bones of contention between the parties is whether these temporary posts of De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a sub-division for a period of not less than one year. On the expiry of the aforesaid period of two years they were to be confirmed as Assistant Engineers in Class I or as Deputy Engineers in Class II, as the case may be, if favourably reported upon by their superiors. Rule 2 further provided that Assistant Engineer would be confirmed as Executive Engineer after 9 years service unless the period was extended by the Government. Under rule 3, candidates securing higher places in the competitive examinations were to be appointed in Class I service according to the number of vacancies declared for such recruitment in that cadre while candidates securing the next higher places were to be offered appointments to Class II service. Rule 6 of the 1960 Rules read thus: 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 confirmations made after 1st November, 1956, subject of course, to Class II officers of the requisite fitness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if any confirmation is made from the bunch of temporary Executive Engineers. who had no lien on any cadre, such confirmation shah be counted against the quota of 25% which was meant for the non-direct recruits to Class I service. Since the challenge to the vires of rule 8(iii) has occupied the best part of the arguments and since the High Court of Bombay and Gujarat have differed on that question it would be necessary to set out the whole of rule 8. 8. (i) The Sub-Divisional posts in the Department are at 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 11 cadre of permanent Deputy Engineers and a list of officiating Deputy Engineers. The future recruitment 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 promotion from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of controversy but it became necessary to refer to the amendment since it is argued that even if the Rules of 1960, being in the nature of executive instructions, did not have statutory force, those rules acquired a statutory character by being recognised and amended by the notification of August 21, 1965 which was issued under the proviso to art, 309 of the Constitution. On the bifurcation of the State of Bombay, 181 permanent and 220 temporary posts of Deputy Engineers were allocated to the state of Gujarat. In practice however, 99 permanent posts of Deputy Engineers were vacant in the State of Gujarat against which confirmation had to be made by that Government. Some of the Deputy Engineers who were promoted to those posts from lower ranks were also allocated to the Stare of Gujarat and several of them having completed three years qualifying service had become eligible for confirmation under rule 8(ii) of the 1960 Rules. But they were denied confirmation in spite of their long service and in spite of the existence of clear vacancies in substantive posts of Deputy Engineers. Since the quantum of pension also depended in those days on the average substantive pay, the den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d certificates of fitness for filing appeals in tiffs Court. Before us, Mr. K.K. Singhvi and Mr. R.K. Garg appeared for the promotees while Mr. M.V. Paranjpe and Mr. M.K. Ramamurti appeared for the direct recruits. Mr. M.C. Bhandare appeared for the State of Maharashtra and Mr. D.V. Patel for the State of Gujarat. Mr. Patel took a noncontentious attitude, which highlights how difficult it was for the State counsel to support any particular cause in view of the shifting stand taken up by both the State Governments from time to time. Several points were raised be,fore us and a large number of decisions were cited in support thereof, but the main question for decision in these appeals is whether departmental promotees and direct recruits appointed as Deputy Engineers in the Engineering Services of the Governments of Maharashtra and Gujarat belong to the same class so that they must be treated with an even hand or whether they belong to different classes or categories and can justifiably be treated unequally. Concededly, they are being treated unequally in the matter of seniority because whereas, promotees rank for seniority from the date of their confirmation the seniority of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 970 superseding the Resolution of April 29, 1950 and framing new rules of seniority; and (8) The Circulars dated January 12, 1961, March 15, 1963 and October 18, 1968 issued by the Government of Maharashtra, converting a certain number of temporary posts into permanent posts from time to time. It is common ground that except the Bombay Rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the rest of the rules are in the nature of executive instructions. The Rules of 1941, 1960, 1963, 1965 and 1970 were not framed by the State Government concerned in the exercise of constitutional or statutory power. The Rules of 1960 and 1970 were issued By order and in the name of the Governor, but that does not lend support to the construction faintly suggested on behalf of the direct recruits that the two sets of rules must be deemed to have been made under art. 309 of the Constitution. All executive action of the Government of a Stale is required by art. 166 of the Constitution to be taken in the name of the Governor. The appeals have therefore to be disposed of on the basis that except for the Bombay rules dated September 21, 1939 and the Gujarat Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with reference to the date of their promotion to, substantive vacancies, subject to the further qualification that there was no break in their service prior to their confirmation in those vacancies. Thus, for purposes of seniority, the promotees had to depend firstly on the availability of substantive vacancies and secondly on the arbitrary discretion of the Government to confirm or not to confirm them in those vacancies. The fact that a substantive vacancy had arisen and was available did not, proprio vigore, confer any right on the promotee to be confirmed in that vacancy. The 1941 Rules contained the real germ of discrimination because the promotees had to depend upon the unguided pleasure of the Government for orders of confirmation. In the pre constitution era, such hostile treatment had to be suffered silently as a necessary incident of government service. It is curious that though the 1941 rules expressly recite that the principles contained therein should be observed in determining the seniority of direct recruits and promoted officers in the provincial Services except the Class I Bombay Service of Engineers, Shri L.M. Ajgaonkar, Deputy Secretary to the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led, did not apply either under the 1939 or under the 1941 rules to Engineering Services. The Chief Secretary s reply cannot, therefore improve the promotees case. But we disapprove that instead of explaining the circumstances in which the reply was sent, the State Government should merely say through Shri Ajgaonkar s affidavit that it craves leave to refer to the reply for its true effect . The Government could surely have produced the letter of the Association which would have set this part of the controversy at rest. That takes us to the 1960 Rules which are the meat of the matter. We have already extracted rules 6 and 8 fully but it will be necessary to recapitulate briefly the scheme of the 1960 rules. Under these rules, the,ratio of appointment by nomination and promotion of both Class I and Class II Engineering Services was fixed, as far as practicable, at 75: 25. Candidates appointed by nomination, i.e. direct recruits, were to be on probation for two years out of which, normally, one year was to be spent on training. On satisfactory completion of probation, the direct recruits were to be confirmed as Assistant Engineers in Class I or as Deputy Engineers in Class II, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccords a preferential treatment to direct recruits. Its principal justification is said to be that persons who are promoted as officiating Deputy Engineers do not belong to Class II cadre so long as they are not confirmed as Deputy Engineers, whereas direct recruits appointed on probation as Deputy Engineers enter that class or cadre on the very date of their appointment since, on satisfactory completion of probation, confirmation is guaranteed to them. This contention needs careful examination. There is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both. That is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of a cadre arises. For example, in Bishan Sarup Gupta v. Union of India([1973] 3 S.C.C. 1) the cadre of Income Tax officers Class I, Grade II was held by this Court to consist of both permanent and temporary pests. Similarly, in A.K. Subraman v. Union of India, ([1975] 2 S.C.R. 979) while holding that the cadre of Executive Engineers in Class I Central Engineering Service consisted both of permanent and tempo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineers should be treated as temporary additions to their respective cadres. In so far as the Gujarat appeals are concerned, Shri N.S. Nagrani, Under Secretary to the Government of Gujarat, P.W.D., filed an affidavit dated April 28, 1970 in one of the writ petitions, 422 of 1970. He says in that affidavit that temporary posts are to be treated as temporary additions to the respective cadres of B.S.E. Class I and Class II , that permanent posts are not created anew but come into existence by the conversion of the existing temporary posts into permanent posts and that both the temporary posts and permanent posts are two categories of posts belonging to the same cadre . To the similar effect is the affidavit dated June 22, 1970 made in another writ petition, 1099 of1969, by Shri A.R. Bhatt, Under Secretary to, the Government of Gujarat, P.W.D. He says therein that there are no separate categories of permanent and temporary posts of Deputy Engineers. Temporary post of Deputy Engineers are treated as temporary additions to the G.S.E. Class II cadre. Pleading on behalf of the Gujarat Government, Shri Bhatt stoutly resisted the claim of direct recruits that they had prior claim f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officiating Deputy Engineer must have put in 7 years service after the date of his confirmation. It must necessarily follow that promotion which the latter part of rule 8(i) relating to future recruitment speaks of means promotion as an officiating Deputy Engineer from the Select List prepared under clause (ii) of rule 8. A person thus promoted from the Select List as an officiating Deputy Engineer is as full and complete a member of the Class II cadre as a person directly appointed as a Deputy Engineer. In tiffs view of the matter, the prescription contained in the closing sentence of rule 8(i) that the number of such promotions shall be about 1/3rd the number of direct recruits appointed in that year would apply to initial appointments and cannot govern the confirmation of those who have already been appointed to Class II cadre. In other words, direct recruits and promotees have to. be appointed in the proportion of 75: 25 to Class II cadre, the former as Deputy Engineers and the latter as officiating Deputy Engineers, but once that is done, the quota rule would cease to apply with the result that confirmations in the posts of Deputy Engineers are not required to be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c services, if might perhaps have been possible to sustain such a classification. It is interesting that time and again the State Governments themselves found it difficult to justify the hostile treatment accorded to the promotees. In various affidavits filed on their behalf, entirely contradictory contentions were taken, sometimes in favour of the promotees and sometimes in favour of direct recruits. Instead of adopting an intelligible differentia, rule 8 (iii) leaves seniority to be determined on the sole touchstone of confirmation which Seems to us indefensible. Confirmation is one of the inglorious uncertainities of government service depending neither on efficiency. of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating. This decision is distinguishable because it is based on the consideration that rule 9 of the Probation Rules of 1957 provided for confirmation of a probationer as a full member of the service in any substantive vacancy in the permanent cadre and that rule established the exclusion of temporary posts from the cadre (p.822). Since the cadre consisted of permanent posts only, confirmation in permanent posts necessarily determined the inter se seniority of officers. Rule 8(ii) in the instant case adopts the seniority-cum-merit test for preparing the statewise Select List of seniority. And yet clause (iii) rejects the test of merit altogether. The vice of that clause is that it leaves the valuable right of seniority to depend upon the mere accident of confirmation. That, under Arts. 14 and 16 of the Constitution, is impermissible and therefore we.must strike down rule g(iii) as being unconstitutional. On July 29, 1963 the Government of Maharashtra in its General Administration Department passed a resolution superseding the rules of November 21, 1941 and framing new rules for determining the inter se seniority of direct recruits and promotees. Paragraph A of the 1963 resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution corresponding to that of 1963. In the Gujarat writ petitions it was argued that the 1960 rules, though originally in the nature of executive instructions, acquired a statutory force and character by reason of their amendment by the rules of 1965 which were made by the Governor of Gujarat in exercise of the power under the proviso to Art. 309 of the Constitution. This argument was rightly rejected by the High Court because all that was done by the rules of 1965 was to introduce a new rule, rule 10, in the 1960 rules. The rules of 1960 were neither reiterated nor re-enacted by the rules of 1965 and the new rule introduced into the rules of 1960 is not of such a character as to compel the inference that the rule making authority had applied its mind to be rules of 1960 with a view to adopting them. In Bachan Singh v. Union of India(A.I.R. [1973] S.C. 441), on which the direct recruits rely, the amendment made vital changes in the main fabric of the original rules which led this Court to the conclusion that the original rules became statutory rules by incorporation. This question is not relevant in the Maharashtra appeal since there are no rules in Maharashtra correspondin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready, provides that there shall be two parts of the seniority list in each cadre in Class I and Class Ii, part A of confirmed officers and part B of those who are not confirmed. In part A the names are to be arranged with reference to the year of confirmation. Confirmed officers are to be treated as senior to the unconfirmed officers in the respective cadres. In part B the names are to be arranged with reference to the date of continuous officiation except where promotion in an officiating capacity is by way of a purely temporary or local arrangement. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to the same objection as rule 8(iii) of the 1960 rules and must be struck down for identical reasons. The circulars dated January 12, 1961, March 15, 1963 and October 18, 1969 which the promotees want to be enforced are issued by the Finance Department and being in the nature of inter-departmental communications, they cannot confer any right on the promotees. The Bombay High Court was therefore right in not accepting this part of the promotees case. We also agree with the view taken by the High Courts of Bombay and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecruits and promotees as on November 1, 1956. Secondly, it seems to us difficult to uphold the direction given by the Gujarat High Court that interim promotions made during the pendency of writ petitions should not be disturbed until the expiration of one month from the date of the seniority as finally fixed by the Government and intimated to the concerned parties. Interim promotions which do not comply with the constitutional requirements and which under the judgment of the Gujarat High Court are bad cannot be permitted to stand. We accordingly set aside that direction. These then are our reasons in support of the order which we passed on January 31, 1977. That order reads thus: Civil Appeal No. 1113 of 1974 is filed by the promotees and it arises out of special Civil Application No. 815 of 1972 filed by them in the Bombay High Court. We set aside the judgment of the High Court and allow the appeal. Civil Appeal No. 286 of 1974 is filed by direct recruits and it arises out of Special Civil Application No. 1099 of 1969 filed by them in the High Court of Gujarat. We confirm the judgment of the High Court and dismiss the appeal. Civil Appeal No. 287 of 1974 is filed by d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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