TMI Blog1979 (5) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter referred to as the Merged States). It was then given the name of one of its constituents, namely, the State of Mysore, which was later changed to that of the Karnataka State. In the Public Works Departments of the Merged States there was a class of non-gazetted officers ranking below Assistant Engineers. The class was designated as Graduate Supervisors in the Merged State of Mysore, as Junior Engineers in the Merged State of Madras and as Supervisors in the Merged States of Hyderabad and Bombay. The Graduate Supervisors were paid a fixed salary of Rs. 225/- per mensem which was lower by Rs. 25/- per mensem as compared to the starting salary of Assistant Engineers, who, in the normal course, were expected to head sub-divisions. To the post of Assistant Engineer a Graduate Supervisor was appointed only on promotion. Prior to the 1st of November, 1956, quite a few Graduate Supervisors were given charge of sub-divisions and designated as Sub-Divisional Officers in order to meet the exigencies of service and they continued to act as such after the merger when they claimed equation of their posts with those of Assistant Engineers in the matter of integration of services. To be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in regard to the 107 Graduate Supervisors from the Merged State of Mysore and mentioned above, directing that they be treated as Assistant Engineers and be paid the pre-revision scale of pay of Rs. 250-25-450 from the 1st of November, 1956 to the 31st of December, 1956 and the revised scale of pay of Rs. 250-25-450-30-600 from the 1st of January, 1957 onwards. The order further directed that the said 107 officers shall be placed hi the inter-se seniority list below the Assistant Engineers. On the 3rd of December, 1960, the Karnataka Government promulgated the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960 (hereinafter referred to as the Recruitment Rules) under Article 309 of the Constitution of India, which envisaged appointment of Assistant Engineers in the Public Works Department by direct recruitment to the extent of 40 per cent and by promotion for the rest, viz., 50 per cent from the cadre of Junior Engineers and 10 per cent from the cadre of Supervisors. The cadre of Assistant Engineers was stated in the Rules to consist of 344 permanent and 345 temporary posts. On the 23rd of October, 1961, the Recruitment Rules were amended so as to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Works Department as on 1st of January, 1973 was declared. The new list purported to have been framed in accordance with the Recruitment Rules. Objections to the list were invited and were submitted by various officers. During the year 1973 more writ petitions challenging the promotion of direct recruits to the posts of Executive Engineers were instituted by the promotees on whose behalf two claims were made before the High Court, namely: (1) that they had been regularly promoted as Assistant Engineers against substantive vacancies with retrospective effect and rightly so; and (2) that in the case of those of them whose promotion was made effective from a date prior to the 1st of March, 1958, the Recruitment Rules, especially the quota rule, could not affect them adversely. Both these claims were accepted by the High Court, the first on the basis of the decision of this Court in Ram Prakash Khanna and Ors. v. S.A.F. Abbas (1972) ILLJ 490 SC coupled with the pleadings of the parties and the various orders issued by the State Government and mentioned above, and the second on the authority of another decision of this Court in V.B. Badami and Ors. v. State of Mysore and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like to deal with is one raised by Mr. F.S. Nariman appearing for the direct recruits. He argued that the scope of the writ petitions instituted by the promotees was limited to the question of promotion of Assistant Engineers as Executive Engineers and that no challenge to the seniority list dated the 4th of September, 1973 could be entertained. In this connection reference was made to the prayer clause appearing in Writ Petition No. 462 of 1973 which is in the following terms: In this writ petition, it is prayed that this Court may be pleased to: (1) quash the promotion of respondents 2 to 31 to the cadre of Executive Engineers made as per order dated 3.2.1973; (2) direct the respondent 1 to consider the case of the petitioner for promotion to the cadre of Executive Engineers with effect from 3.2.1973 on which date respondents 2 to 31 were promoted; and (3) pass an interim order, restraining the respondent 1 from making further promotion to the cadre of Executive Engineers without considering the case of the petitioner for such promotion, pending disposal of this writ petition. (It was assumed at the hearing of the appeals that the prayer made in the other writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile officiating in the same post and if not, by their seniority inter se in the lower cadre; (c) Seniority inter se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same the seniority inter se in the lower grade shall prevail. Explanation... (d)... Now in so far as the direct recruits are concerned they were appointed as Probationary Assistant Engineers, i.e., Assistant Engineers appointed on probation which term is defined in Rule 2 of the Probation Rules, That rule states: 2. For the purpose of these rules: (1) Appointed on Probation means appointed on trial in or against a substantive vacancy. (2) Probationer means a Government servant appointed on probation A Government servant so appointed (and continuing in service) remain a probationer until he is confirmed. In view of these definitions it cannot be gainsaid that the direct recruits were appointed Assistant Engineers substantively in clear vacancies as envisaged by Clause (a) of Rule 2 of the Seniority Rules. If any of the promotees also satisfied that requirement at any time earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he promotees as Assistant Engineers, or stated in no uncertain terms that the promotees would hold the posts of Assistant Engineers on a temporary or officiating basis. That is why Dr. Chitaley and Mr. Sen, learned Counsel for the promotees, mainly placed their reliance on the two notifications dated the 27th of February, 1962, and order exhibit D dated the 6th of October, 1962, the combined effect of which was to promote the said 107 officers as Assistant Engineers with effect from the 1st of November, 1956 on a regular basis . It was argued that the regularisation of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st of November, 1956. The argument however is unacceptable to us for two reasons. Firstly the words regular or regularisation do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regularisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other, words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules fra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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