# [1977] 2 S.C.R. 573

- **Citation:** [1977] 2 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1977-01-06
- **Bench:** Y. V. Chandrachud, P. K. Goswami, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1977-2-s-c-r-573-7072
- **Pages:** 14

## Headnote

573
Service maJter-Central Engineering Service, Class II (Recruitment Rules)
1954--Rule 4(c)-Scope of. No determination
of
quota
between
direct
recruits and promotees 1nade
by
Government-Direct
recruits
confirmed
earlier than promotees who were seniors-Confirmation if valid-Departmental
Promotion Committee presided over by Member of U.P.S.C.-lf amounts to
consultation with UPSC.
Rule 3 of the Central Engineering Service Class II (Recruitment Rules)
1954 provides for the recruitment to the service by four methods; (a) by competitive examination; (b) by direct appointment, otherwise than by competitive
examination; ( c) by" promotio.n~ and ( d) by transfer. Rule 4 ( c)
provides
that the method or methods of recruitment and the number of candidates to
be recruited by each meth0d shall be determined by the Governmellt. Rule
24 states that recruitment by promotion shall be made by selection on the
basis of merit from among permanent Section Officers employed in the Civil
Engineering side of the Central Public Works Department.
The writ petitioners before the High Court, who were initially appointed
as Section Officers in the Subordinate Engineering Service Class
III
(NonGazetted), ·were subsequently appointed as Assistant Engineers in the Central
Engineering Class II (Gazetted) between 1958 and 1963 by way of selection
as provided under the rules.
Between the years 1961 and 1967, the Government appointed Assistant Engineers some on the basis of a competitive exanrination held by the Union Public Service Commission and others without the
competitive examination
On various dates some of the direct recruits were
confirmed by the Government before the promotees were confirmed.
In a petition under Art. 226 of the Constitution the writ petitioners claimed
that though they were appointed as temporary
Assistant
Engineers
much
earlier than the direct recruits, the latter were confirmed earlier than themselves.
The High Court partly allowed their writ petition holding that there was no
determination of any quota by the Government,
since
the
direct
recruits
A
c
D
E
obtained preference over the writ petitioners in the matter of confirmation and
F
sniority it directed the Government to adjust the inter-8'1 seniority of such of
the petitioners as might be _confirmed after a consideration of their cases
in
accordance with law.
ln 1!ppeal to this Court, the appellant, who was one of the direct recruits,
contended that the recruitment of the writ petitioners was outside the rules
particularly because the recruitment was not made "after consultation
with
the U.P.S.C." as required by r. 23(1).
Dismissing the appeal,
HELD : ( 1) The writ petitioners are entitled to be considered for
confirmation in the service in Class II. Since there was no quota rule on the basis
of which confirmation had been made and seniority had been fixed, the High
Court was right in holding that the Government should consider the case of the
petitioners for confirmation and seniority in accordance with law.
[577 A-B]
(2) The appointment of the writ petitioners was in accordance with r. 23
read with r. 3 (b) of the Rules. Although rule 23 ( 1) provides recruitment by
selection after comultation with the U.P.S.C. the particular Departmental Promotio.ri Committee was presided over by a member from the U.P.S.C. The
G
H
-~--~
A
B
c
574
SUPREME COURT REPORTS
[1~712 s.q:R.
relevant instructions of the ~ome Ministry stated that recommendations madct
by the Departmental Promotion Committees on which the Commission
was
represe_n~Q!, Bhould be treated as . recomme~dations having the approval of the
Co~s~n and that the convention regarding acceptance of the advice of the
Comnuss1on would apply.
(580 B-C, D-E)
(3) There is nothing to show that there had been determination of the
quo~ by the Government of India under r. 4(c). The Rules did not prescribe
therem any quota for recrmtment through the four methods specified in r.
3.
Unde! r. 4(b) ~o method other than the one specified in r. 3 i

## Text

/
_)
JAGMAL SINGH YADA V
1'.
M. RAMA YY A AND ORS.
January 6, 1977
[Y. V. CHANDRACHUD, P. K. GOSWAMI AND
S. MURTAZA FAZAL ALI, JJ.]
573
Service maJter-Central Engineering Service, Class II (Recruitment Rules)
1954--Rule 4(c)-Scope of. No determination
of
quota
between
direct
recruits and promotees 1nade
by
Government-Direct
recruits
confirmed
earlier than promotees who were seniors-Confirmation if valid-Departmental
Promotion Committee presided over by Member of U.P.S.C.-lf amounts to
consultation with UPSC.
Rule 3 of the Central Engineering Service Class II (Recruitment Rules)
1954 provides for the recruitment to the service by four methods; (a) by competitive examination; (b) by direct appointment, otherwise than by competitive
examination; ( c) by" promotio.n~ and ( d) by transfer. Rule 4 ( c)
provides
that the method or methods of recruitment and the number of candidates to
be recruited by each meth0d shall be determined by the Governmellt. Rule
24 states that recruitment by promotion shall be made by selection on the
basis of merit from among permanent Section Officers employed in the Civil
Engineering side of the Central Public Works Department.
The writ petitioners before the High Court, who were initially appointed
as Section Officers in the Subordinate Engineering Service Class
III
(NonGazetted), ·were subsequently appointed as Assistant Engineers in the Central
Engineering Class II (Gazetted) between 1958 and 1963 by way of selection
as provided under the rules.
Between the years 1961 and 1967, the Government appointed Assistant Engineers some on the basis of a competitive exanrination held by the Union Public Service Commission and others without the
competitive examination
On various dates some of the direct recruits were
confirmed by the Government before the promotees were confirmed.
In a petition under Art. 226 of the Constitution the writ petitioners claimed
that though they were appointed as temporary
Assistant
Engineers
much
earlier than the direct recruits, the latter were confirmed earlier than themselves.
The High Court partly allowed their writ petition holding that there was no
determination of any quota by the Government,
since
the
direct
recruits
A
c
D
E
obtained preference over the writ petitioners in the matter of confirmation and
F
sniority it directed the Government to adjust the inter-8'1 seniority of such of
the petitioners as might be _confirmed after a consideration of their cases
in
accordance with law.
ln 1!ppeal to this Court, the appellant, who was one of the direct recruits,
contended that the recruitment of the writ petitioners was outside the rules
particularly because the recruitment was not made "after consultation
with
the U.P.S.C." as required by r. 23(1).
Dismissing the appeal,
HELD : ( 1) The writ petitioners are entitled to be considered for
confirmation in the service in Class II. Since there was no quota rule on the basis
of which confirmation had been made and seniority had been fixed, the High
Court was right in holding that the Government should consider the case of the
petitioners for confirmation and seniority in accordance with law.
[577 A-B]
(2) The appointment of the writ petitioners was in accordance with r. 23
read with r. 3 (b) of the Rules. Although rule 23 ( 1) provides recruitment by
selection after comultation with the U.P.S.C. the particular Departmental Promotio.ri Committee was presided over by a member from the U.P.S.C. The
G
H
-~--~
A
B
c
574
SUPREME COURT REPORTS
[1~712 s.q:R.
relevant instructions of the ~ome Ministry stated that recommendations madct
by the Departmental Promotion Committees on which the Commission
was
represe_n~Q!, Bhould be treated as . recomme~dations having the approval of the
Co~s~n and that the convention regarding acceptance of the advice of the
Comnuss1on would apply.
(580 B-C, D-E)
(3) There is nothing to show that there had been determination of the
quo~ by the Government of India under r. 4(c). The Rules did not prescribe
therem any quota for recrmtment through the four methods specified in r.
3.
Unde! r. 4(b) ~o method other than the one specified in r. 3 is permissible for
recrmtment.
W1~h regard to the sharing of recruitment through the dift'erent
method_s, I?ower 1s reserved to the Government under r. 4 ( c) to make certain.
determmations. The determination under r. 4 ( c) must be by the Ministry of
Home Affairs at the relevant time and if a decision were taken by that Ministry
u~der_ the Rules of Business under Art. 77 (3) of the Constitution, the deterlDlnation would be of the Government of India. In the instant case there has
been on adherence to the quota rule; on the contrary there has been a flagrant
violation of the nile. [583 E-G, 584 DJ
(4) (a) Even for executive instructions, the condition
precedent
is
an
appropriate decision by the competent authority and the High Court has not
committed any error of law in holding that there was no determination by the·
Government under r. 4 ( c) to call for interference under Art.
13 6 of the
Constitution. [585 B-C]
D
(b) The factum of determination of seniority was a live issue between the
parties in the High Court and there was no error of jurisdiction on the part of
the High Court in examining the whole matter thoroughly and in considering
the documents filed by the parties. [584 H, 585 A]
E
F
The Court pointed out that persons entering Government service have the
right to lffiow where they stand with regard to their conditions of service and
foture promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, it is a socry
plight to find that officers in the same service fight over the years, in courts,
having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment according to rules. and they have
put in a number of years in the service to ·the satisfaction of the authorities, it
is impermissible to invoke a recondite rule and call it in aid to deprive a large
section of officers of the benefit of their otherwise satisfactory service. The
matter may be different when posts in the service are abolished, appointments
to the service are transitory or fortuitous or incumbent are found unsuitable
for absorption. The history of this service is that teml?orary posts were first
created and then after some years they were converted mto permane~t posts.
The Government. therefnr0
r"nnnt merely
be an on-looker where 1t could
rightly claim to be a legitimate arbiter on its own authority and havini? proper
regard to :ill just claims. [585 F-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1260/73
G
(From the Judgment and Order dt. 5.11.71 of the Delhi
High
Court in C.W.P. No. 238 of 1970)
H
Mrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant
M. C. Bhandare, D. N. Mishra and 0. C. Mathur, for Respon~ents
Nos. 3 & 4
G. D. Gupta, for Respondent No. 8.
Gobind Das and Girish Chandra for Rei;pondent No. 13
.....
. r
!
JAGMAL SINGH 1'. M. RAMAYYA (Goswami J.)
575
S. T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents Nos. 55, 64, 75, 80 & 89.
The Judgment of the Court was delivered by
GosWAMI, J.-This appeal by special leave is directed against the
judgment of tho Full Bench of the High Court of Delhi whereby the
A
writ petition of the first twelve respondents was partly allowed.
The
B
appellant, _who jointed service in the cadre of Assistant Engineers in
the Central Engineering Service, Class II (Gazetted), w~ respondent
No. 51 in the High Court.
Other respondents in the High Court in
similar position as that of the appellant have been impleaded here as
respondents (16 to 110) and they are supporting
the
appellant
through their counsel Mr. S. T. Destai.
For the sake of convenience
the appellant and the respondents 16 to 110 will be described herein
C
below as direct recruits in the Class II Service.
The Union of India,
Engineer-in-Chief, C.P.W.D., and the Union Public Service Commi~
ssion are respectively respondent Nos. 13, 14 and 15 and are representetl by Mr. Gobind Das.
The respondents 1 to 12 (hereinafter to be referred to as the respondents) preferred an application in the High Court under Article
D
226 of the Constitution on 16th February, 1970, praying for certain
reliefs which the High Court has summarised under the following four
heads
(1) That the confirmation of the direct recruits should
be held as illegal.
(2) That the respondents and other persons who
are
similarly situated like them and who had joined the
service earlier should be directed to be confirmed first
according to the dates of their joining the service as
Assistant Engineers after giving weightage in preference to the direct recruits.
E
(3) That the appointment of 38 specified direct recruits
should be held as illegal.
( 4) That the respondents ( 13 to 15 herein) should be ~
directed to reTise the clas~fied list published in 1968.
The High Court has also noted that the respondents did
not
seek to distrub the appointments of the direct recruits already made
and that their main contention was that they were entitled to
be
confirmed before those of the direct recruits who were appointed subsequent to them.
This appeal was heard by us in two stages.
After the first stage
of the hearing the parties were given some time to settle the matter by
evolving a reasonable formula to satisfy the legitimacy of their mutual
claims.
It, however, appeared that they could not compose their
differences and the appeal wa~, therefore, finalJv l:teard and concluded.
F
G
H
A
B
c
D
E
F
G
H
576
SUPREME COURT REPORTS
(1977] 2 S.C.R.
We may now briefly give the history of the litigation.
The respondents (who are the twelve writ petitioners in the-High
Cou~t~ are e!ther. graduates in Civil ~ngin~ring or possess similar
reqms1te quahficat10ns, namely, an Engmeenng Degree or an equivatent thcr~of. They were all initially appointed on different dates as
.emporary Section Officers in the Central Public Works Department
(hereinafter to be referred to as the C.P.W.D.) in the subordinate
Engineering Service, Class III (Non-gazetted).
They were subsequently appointed on various dates between 18th October, 1958 and
8th January, 1963, "to offtciate temporarily and until further orders"
as Assistant Engineers in the Central Engineering Service,
Class II
(Gazetted) (briefly the Service).
The appellant and the respondents
16 to 110 are what is described as direct recruits to the Service. Each
of the direct recruits possesses a Degree in Engineering or an equivalent
thereof.
Fiftyeight of them were directly recruited as temporary
Assistant Engineers in the Central Engineering, Service
Class
II
(Gazetted) on different dates between 12th May, 1961 and
13th
December, 1967, on the result of a competitive examination held by /
the Union Public Service Commission (UPSC).
The
remaining
thirtyeight also possess a Degree in Engineering or an equivalent thereof and they were directly recruited as temporary Assistant Engineers
in the Service on different dates between 2nd November, 1964 and
7th November, 1967, but without any competitive ex~mination.
By a Notification dated 13th June, 1967, excepting seven direct
recruite (namely, respondents 11, 17, 29 and 31 to 34 in the High
Court) the remaining respondents (respondents 4 to 37 in the High
Court) were confirmed with effect from their respective dates
of
recruitment.
The said confirmations were also shown in a 'Classified
list of Class II Engineering Gazetted Establishment ( CiV'il) of the
CPWD' published in 1968.
By another Notification, of 1st May,
1968, direct recruits (being respondents 17, 33, 34, 38, 64 and 74
in the High Court) were also confirmed.
Similarly by a Notification
dated, 30th April 1971, other direct recruits (respondents 31, 32, 39,
43, 46, 50, 52 to 57, 60, 61, 63, •68, 69, 75, 76, 79, 82, 92 and 96
in the High Court) were confirmed.
The grievance of the respondents in the High Court was
that
although they were appointed as temporary Assistant Engineers much
earlier than the direct recruits the latter were confirmed ignoring their
claims.
Their representations to the Government through
theit'
association having failed they approached the High Court.
The
respondents (13 to 15) denied their claim by means of a counteraffidavit of Shri Kailash Prakash, Director of Administration, C.P.W.D.
One of the direct recruits, Shri Durgadas Kama, also filed a counteraffidavit opposing the claim of the respondents in the High Court.
By consent certain documents were produced by the Government and
after inspection relevant extracts from the files were submitted to the
Court by respective parties.
Although serveral contentions were urged before the High Court,
some of them pertaining to Articles 14 and 16 of the Constitution,
JAGMAL SINGH v. M. RAMAYYA (Goswami!.)
577
the High' Court accepted the main contention of the writ petitioners
A
that there was no determination of any quota by the Government since
on the basis of the said quota the direct recruits obtained preference
in the matter of confirmation and seniority.
The High Court thus
partly allowed the application and dire'cted the respondents (respondents 1 to 3 in the High Court) "to consider the petitioners (respondents herein) for confirmation as Assistant Engineers and to adjust
the inter se seniority of such of the petitioners as might be confirmed
B
after consideration by the respondents in accordance with law".
. It is clear that if the High Court is riglilt that there was no determination by the Government under rule 4 ( c) of the Recruitment Rules,
to which we will refer presently, apportioning quota amongst
the
officers recruited through different sources it will not be necessary to
go into the other questions raised by Mrs. Pappu for the appellant.
C
If we find that the High Court is wrong in its conclusion on this main
point, we will have to remand the matter to the High 'Court for decision with regard to the other submissions which ha:d not been dealt
with by it.
We will, therefore, take the first point first.
Mrs. Pappu submits as follows :-
First, in the absenc.e of a plea in the writ petition that the Home
Ministry's approval is necessary the High Court exceeded its jurisdiction in going behind the determination of the quota made under rule
4(c), particularly in the absence of any special modi;! of determination
prescribed under the Rules.
Second, she submits that the
High
Court failed to notice that it was open to prescribe quota by way of
executive instructions in the absence of any rules in this behalf. Third,
she submits that even assuming the High Court could enter into such
an enquiry there is ample evidence on record to show that a determination has been made under rule 4 ( c).
'
The persons with whom we are concerned in this appeal
are
governed by the Central Engineering Service, Class II, Recruitment
Rules (briefly the Rules) which were published on 21st May, 1954.
There are six Parts in these Rules.
Part I (General) provides the
definitions.
Part II deals with the' methods of recrnitment.
Rule
3 with which this Part opens provides as follows :-
"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 direct appointment in accordance with Part IV
of these Rules of persons selected in India otherwise
than by competitive examination.
D
E
F
G
(c) By promotion in accordance with Part V of these Rules.
H
(d) By transfer in accordance with Part VI of these Rules."
A
B
c
578
SUPREME COURT REPORTS
[1977] 2 S.€.11..
Rules 4 and 5 may also be noted :
"4. (a) All appointments to the Service or to posts borne
/
upon the cadre of the Service shall be made by the
Government.
(b) No appointment shall be made to the Service or to
any post borne upon the cadre of the Service by any
method not specified in Rule 3.
(c) Subject to the provisions of sub-rule (b), the method
or methods of recruitment to be employed for the
purpose of filling any particular vacancies in
the '
Service or such vacancies therein as may be required
to the filled during any particular period and the
number of candidates to be recruited by each method
sh!!ll be determined by the Government.
5. Appointments to the Service made otherwise than by
promotion will be subiect to orders issued from time to
time by the
Ministry of Home Affairs
regarding
special representation in the
Services for
specific
,D
sections of the people."
E
F
G
H
Part III provides for recruitment by competitive examination which
is the method provided in rule 3(a).
We are not concerned with
the details in this Part except to note that the examination is conducted by the UPSC and the requisite qualifications and age restrictions
and relaxation are provided for in this Part.
We may
also
note
that Rule 21 of this Part provides that the selected candidates shall be
appointed as Assistant Engineers on probation for two years and on
the completion of the period of probation, ll' considered fit for permanent appointment, they will be confirmed in their appointments. There
is a provision for extending the period of probation under rule 21 ( c) .
We need not notice other details in this Part.
Part IV deals with recruitment by selection.
Rule 23 with which
this Part opens provides as follows :
"23. (1) Recruitment by selection shall be made from among
Temporary Engineers and Temporary Section Officers employed on the Civil, Engineering side of the
Central Public Works Department after consultation
with t_he Commission :
Provided that it shall not be necessary to consult
the Commission, in the case of any person, if the
Commission were consulted in connection with his
temporary appointment to the Service.
(2) No person shall be eligible for selection under subrule (1) unless he would, but for age, be qualilled
for admis'sion to the Service under Part III of these
rules, and his age at the time of appointment to the
Service is not more than 40 years.
\
1
•
!
'
JAGMAL SINGH v. M. RAMAYYA (Goswami J.)
579
(3) Merit shall be the primary consideration in determining a person's fitness for selection under this
rule
and no officer shall have any claim to appointment .
under this rule as of right."
Part V deals with recruitment by promotion and contains a solitary
rule, namely, rule 24, which reads as follows :-
"24. Recruitment by promotion shall be made by selection on
the basis of merit from among permanent Section
Officers employed in the Civil Engineering side of the
Central Public Works Department."
Part VI deals with recruitment by transfer of an officer in Government service and there is a solitary rule, namely, rule ·25, which takes
care of this type of recruitment by transfer.
We are not concerned
with this rule in this appeal.
·
From a perusal of the Rules it is clear that there are four methods
of recruitment, namelyA
B
c
( 1) recruitment by competitive examination (Part III) ;
D
(2) by direct appointment otherwise than by competitive
examination (Part IV) ;
(3) by promotion (Part V); and
( 4) by transfer (Part VI).
It is also dear under rule 4(b) that no appointment shall
be
made to this Service or to any post borne on the cadre of this Service
by any method other than the above mentioned four methods.
The direct recruits ·belong to two categories of officers.
Fiftyeight
persons were recruited under rule 3 (a) by competitive examination.
The remaining thirtyeight persons were also directly recruited
as
temporary Assistant Engineers but without any competitive examination and, according to the respondents, "on an ad-hoc basis".
So
far as the respondents are concerned they claim to be recruited under
Part IV, namely, recruitment by selection which is one of the four
methods provided for under rule 3 (b).
On the other hand according tu Mrs. Pappu the respondents are more temporary promotees
to temporary vacancies in Class II Service and they are a class differe11t from the direct recruits who are not similarly situated with them.
We have, therefore, first to consider this submission of Mrs. Pappu.
As stated earlier, there are four methods of recruitment. Recruitment
by promotion is provided under Part V and that is made by selection
on the basis of merit from amongst permanent Section Officers. The
particular recruitment of the respondents, therefore, cannot be under
Part V.
It is common ground that the respondents at the material
time when they were appointed as temporary Assistant Engineers were
only temporary Section Officers in Class III. · It is also admitted that
3-112SCI/77
E
F
G
H
A
B
c
D
E
F
G
H
5SO
SUPREME COURT REPORTS
[1977] 2 S.C.R.
all these. r~sponden!§ have. requisite qualifications which are necessary
for adm1ss1on to the Service under Part III and they are also within
the age limit laid down under rule 23 ( 2).
Besides recruitment when
~ade is only on merit ~nder rule 23(3). Being fa~ed with this position, Mrs. Pappu submits that their recruitment is outside the Rules
particularly because rule 23 ( 1) provides for recruitment by selection
"after consultation with the UPSC".
She submits that they
were
selected by the Departmental Promotion Committee which is not the
same thing as the UPSC mentioned in rule 22(1).
We are., ,however,
unable to accept this submission.
It is true that rule 23 ( 1) provides
for recruitment by selection after consultation with the UPSC.
The
particular Departmental Promotion Committee (DPC) was presided
over by a member from the UPSC.
There is Home Ministry's O.M.
No. 33/46-Ests(R) dated 17th June, 1947, wherein it has
been
clearly stated in para 7 as follows :-
"Recommendations made by Departmental Promotion
Committees on which the Commission is represented should
be treated as recommendations haying the approval of
the
Commission, and the convention regarding acceptance of the
advice of the Commission will apply."
We are, therefore, clearly of opinion that the appointments of the
respondents are in accordance with rule 23 in Part IV read with rule
3(b) of Part II of the Rules.
We find that the above conclusion we
have reached is supp_orted by the stand taken on behalf of the Goviernment in the Lok Sabha on 7th April, 1969, in ·answering certain Unstarred question with regard to recruitment to this Service, inter alia,
under Part IV.
Since, however, there are no statutory rules for confirmation in
service or seniority rules, it is submitted by Mrs. Pappu that under
rule 4 ( c) of the Rules it is for the Government to determine
the
method or methods of recruitment to be applied for the purpose of
filling any particular vacancy 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.
It is
in
conformity with rule 4(c), says counsel, that the Government
has
fixed the proportions for filling vacancies in
Class JI
Service
by
different modes of recruitment.
She draws our attention to a letter
of the Under Secretary to the Government of India, Ministry of works
and Housing, dated 2nd October, 1954, which, as the Subject matter
shows, contains the "proposal to prescribe definite quotas for filling
the posts of Assistant Engineer (Civil) and Assistant Engjneer (Electrical) in the C.E.S., Class II, and the C.E.E.S. Class II, re:specti".ely
bv different modes of recruitment."
The proposal sets out in Part A
thereof the quota for permanent vacancies as follows:-
'"A-Permanent Vacancies :
(i) 50% by direct recruitment by competitive examina-·
tion under Part HI of the Recruitment Rules for the
Class II Service.
\
l..f ·,,._
..
JAGMAL SINGH v. M. RAMAYYA (Goswami !.)
·(ii) 25% by promotion of permanent Section Officers
under Part V of the Recruitment Rules.
•Jiii) 25 % by permanent appointment of temporary Assistant Engineers recruited by ;competitive examination
through the Union Public Service Commission, and
by transfer under Part VI of the Recruitment Rules."
581
Part B thereof fixes the quota for temporary vacancies as under-
~·B-Temporary Vacancies :
. ,
'
.(i) 50% by direct recruitment by competitive examination through the Union Public Service Commission
and by transfer under Part VI of the Recruitment
Rules .
·(ii} 50% by departmental
promotion from amongst-
(a) permanent Graduate Section Officers,
(b) permanent non-Graduate Section Officers, and
A
B
c
( c) temporary Graduate Section Officers,
D
fo accordance with the ratio \Which may be fixed
by the
Departmental Promotion Committee at the time of making
the selection.
Provided that if at any given time, candidates who are
successful at the Union Public Service Commissio9 competitive examination are not available in sufficient numbers for
E
filling 50% of the temporary vacancies that might be available, the residual vacancies may be filled temporarily
by
departmental promotion, subject to the condition that persons
so
promoted
against such
vacancies,
shall be
reverted later, if necessary, to make room for the candidates
who may qualify at subsequent examinations to be held by
the Commission, as and when they become available."
F
It is pointed out that this proposal received approval of the UPSC
·as per its Jetter dated 7th September, 1955.
Mrs. Pappu
draws
Qur particular attention to the following paragraph in that letter :
"For recruitment to the posts in the Cenral Engineering
Service, Class II, and the Central Electrical
Engineering
G
Service Class II, the percentage quotas for various modes
of recritment suggested by the Ministry vide their letter No .
E-1/5(3) dated the 2nd October, 1954, have been approved
by the Commission."
Our attention is particularly drawn by the respondents to a letter
-dated 7th November 1975, from the Deputy Secret~y (EstablishH
ment) to the Secretary UPSC and the subject of the letter is "confirmation in the grades of Assistant Engineers Civil & E!ec. in
the
C.P.W.D.'' It is stated in tbat letter-
B
c
582
SUPREME COURT REPORTS,
[197TJ 2 S.C.R.
"Since these vacancies have occurred as a result of conver'-
sion of posts from temporary to permanent and since the
C.P.W.D. has a large number of officiating Assistant Engineers who have been promoted from the grade of Section
Officer, it is considered that the officiating Assistant Engineers have a prior claim to these posts.
The Ministry of
Home Affairs also share this 'view ........ "
The last paragraph of this letter reads as under :-
"I am to request that the concurrence of the UPSC to
the allotment of these vacancies on ad hoc basis to the officiating Assistant Engineers (Civil) & (Elec) and to
their
confirmation as proposed by the DPC at their meeting on
18.7.1955 may be communicated to this Ministry at an early
date."
After this our attention is drawn by the appellant to a document
dated 5th March, 1962, on the "subject : preparation of a combined
seniority list for direct recruits and departmental promotees in the
grade of Assistant Engineers C.P.W.D."
It is .stated therein
as
D
follows :-
E
F
G
H
"It was tentatively agreed that since the ratio of
recruitment prescribed for direct recruitment
through
the
UPSC and Departmental Promotion of Section Officers has
not been adhered to, the date of confirmation should be the
basis of determining the inter se seniority of direct recruits
and the Departmental promotees.
When the date of confirmation of direct recruit and a departmental
promotee is,
however, the same, the \direct recruitment should
rank
senior to the departmental promotee.
The Chief Engineer,
however, indicated certain practical difficulties in
following the above principle and it was decided that further
discussion should be held before the Ministry of
Home
Affairs would be able to give their definite views in
the
matter."
Mrs Poppu then draws our attention to paragraph 2 of this letter
f'.
which reads as under :-
"The ratio in respect of direct recruitment and departmental promotion was prescribed in
September,
1955.
Whenever confirmation thereafter was not made according
to the prescribed ratio, approval of the U.P.S.C. was obtained to the relaxation of the quota."
The same paragraph continue1; to throw more light :
"Before giving their final views, the Ministry of
Home
Affairs desired to have a copy of the communications wherein
the UPSC agreed to the relaxation of the quota. As further
discussions in the matter will· take place in the Ministry
of Home Affairs within the next few days the copies of the
relevant communications should be sent immediately".
\
JAGMAL SINGH v. M. RAMAYYA (Goswami J.)
583
Mrs. Pappu finally draws our attention to the minutes of
the
meeting held in the Ministry of Home Affairs ion 16th June, 1962,
to discuss the question of drawing up a combined seniority list
of
various categories of Assistant Engineers in
the
C.P.W.D.
She
points out that the first paragraph in the minutes shows that "according to the orders issued in 1955 recruitment to the grade of Assistant
Engineers (Civil & Electrical) in the Central Public Works Department is to be made by the following modes," namely,
permanent
vacancies and temporary vacancies in such manner as was contained
in the proposal dated 2nd October, 1954, which we have
already
extracted.
She then draws our attention that certain decisions were
taken, as will appear from paragraph 4 of the minutes, with regard to
the determination of the relevant seniority of direct recruits
and
departmental promotees:
Mrs. Pappu submits that this is \a follow-up
action of the proposal which emanated from the Ministry df Works
& Housing letter dated 2nd Oclober, 1954, :and which recei'.1ed
the
concurrence of the UPSC.
She submits that the minutes did mention quota and some decisions were taken about inter se seniority.
She submits that the position emanating from the minutes can only
be reconciled on the basis that the quotas already fixed in 1955 had
been the rule with regard to this Service.
The short question that arises for consideration is whether there
bas been a determination by the Government under rule 4( c).
It
is clear that 1954 Rules did not prescribe therein any quota for recruitment through the four methods specified under rule 3.
One
thing, however, is clear that under rule 4(b) no other method is permissible for recruitment.
It is also clear that with regard to
the
sharing of recruitment through the different methods power is reserved
to the Government under rule 4( c) to make certain determination.
It is subniitted by Mr. Gobind Das, appearing on behalf of the Union
of India, that at the relevant time the Department of Personnel was
in the Ministry of Home Affairs and it is that Ministry which
was
entrusted with the matters relating to recruitment and seniority.
He
further submitted that the approval or sanction of the Home 'Ministry
was mandatory for validity of any rule.
It is, therefore, clear that
the determination under rule 4(c) must be by the Ministry of Home
Affairs at the relevant time and if a decision were taken by the Home ·
Ministry under the Rules of Business under Article 77 ( 3) of
the
Constitution the determination would be of the Government of India.
There is nothing to show that there was any d~termination by the
Home Ministry under rule 4(c). It is
true
that
there was
a
proposal from the Ministry of Works & Housing to which concurrence
.had been given by the UPSC.
After that there has been no further
progress of the matter and Mr. Go bind Das concedes that there ·is
nothing to show from the records at the disposal of the Government
that the approval of the Home Ministry 'was given to any determination
under rule 4(c).
A
B
c
D
E
F
G
The Under Secretary in the Ministry of Works & iHousing has filed
H
.an affidavit dated 16th December, 1976, with an annexure dated 14th
584
SUPREME COURT REPORTS
[1977] 2 S.C.R.
A
June, 1954, which shows that with reference to the proposal for quotas
the reaction of Home Ministry was in the following terms :
B
c
D
E
F
G
H
"Prima facie, the proposal seems unobjectionable
but
this Minfstry would like to see again after the UPSC's views
have been received."
It is perhaps because of this that Shri Swaran Singh the
then
Minister for Works & Housing also endorsed the Secretary's proposal
which was in the following terms :
"The proposals are in order and may be
approved.
After U.P.S.C. have been consulted and given their concurrence, the case will have to be shown to the Home Ministry
again who have asked to see these papers after the views of
the U.P.S.C. have been obtained."
The Minister, Shri Swaran Singh's endorsement appears at the
foot of this proposal on 24th September, 1954.
So far as the records go the matter rested as above and there has
been admittedly no adherence to the quota rule, but on the other
hand ther('., has been flgrant violation of the rule.
As a matter of
fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number
of years in the melting pot.
This was perhaps possible only because
the file with the proposal after the concurrence of the UPSC did not
move to the Home Ministry for final determination under rule 4 ( c).
It is not possible .to equate the minutes of the meeting of 16th
June, 1962, with an appropriate order or determination by the Home
Ministry.
There is nothing 'to show that these minutes received the
approval of the Minister-in-charge.
We are, therefore, unable
to
accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4 (c).
We have already held that respondents 1 to 12 were duly appointed
under rule 23 ( 1) of Part IV read with rule 3 (b).
They are, there~
fore, entitled to be considered for confirmation in the Service in Class
II.
Since we )lave held that there was no quota rule, as sought to
be made out, on the basis of which the confirmations have been made
and seniority has been fixed, we agree with the High Court that it
will be for the respondents ( 13 to 15) to consider the case of the
respondents (1 to 12) for confirmation and seniority in accordance
with law.
As the High Court has pointed out, the validity of
the
Jrecruitment of the thirtyeight direct recruits will, however,
not
be
affected.
We are not impressed by the submission of the appellant
that
there was no averment in the writ petition regarding absence
of
determination under rule 4(c) of the Rules.
After a perusal of the
pleadings and having regard to the st~n~ taken by the partie~ before
the High Court, we find that the subm1ss1on has no force.
Smee the
factum of determination of seniority was a live issue between the
y
"
JAGMAL SINGH v. M. RAMAYYA (Goswami J.)
585
parties in the High Court, there was no error of jurisdiction on the
part of the High Court in examining the whole matter thoroughly and
in considering the documents filed by the respective parties
after
inspection of the files by consent.
It is also necessary to observe that even for executive instructions
the condition precedent is an appropriate decision by the competent
authority and we are unable to hold that the High Court committed
such a gross error of law in holding that there was no determination
by the Government under rule 4(c) to call for foterference under
Article 13 6 of the Constitution.
A
B
We also do not feel justified iin placing exaggerated importance
C
on the use of the words "specified quota" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai.
We are of opinion
that such a reference to "specified quota" was only a usual way of a
compendious expression to facilitate identification of the subject matter
of the proposal of the Ministry of Works & Housing in the course of
long correspondence between the several authorities.
D
, Mrs. Pappu also strenuously submitted that the High Court should
have dismissed the writ application on the ground of inordinate delay.
We are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances
of the case and in particular when we find that the Government did
not prefer any appeal against the judgment of the High Court even
though the so-called determination of the Government under
rule
E
4(c) had been struck down by the High Court.
Before parting with the records we consider it proper to point
out that persons entering Government service have the right to know
where they stand with regard to their conditions of service and future
promotion.
Since there is no impediment in the iway of the GovernF
ment to make appropriate rules regarding conditions of service, even
retrospectively, subject to constitutionality, keeping
in view justice
and fair iplay to all concerned, it is a sorry sight to find that officers
in the same Service fight over the y~rs in courts having failed
to
get redress from the Government.
When officers are qualified to
hold certain posts after recruitment, according to
rules, and they
have put in a number of years, without break, in the Service to the
G
satisfaction of the authorities, it is impermissible to invoke a recondite
rule and call it in aid to deprive a large section of officers of the
benefit of their otherwise satisfactory service.
The matter may be
different when posts in the Service, are abolished, appointments to the
Service are transitory or fortuitous or incumbents are fqund unsuitable
for absorption.
The history of this Service is that temporary posts
are first created and then after some years they are converted into
H
permanent posts.
The Government, therefore,
cannot merely be
an on-looker where it could rightly claim to be a legitimate arbiter
on its own authority and having proper regard to all just claims.
We
A
B
586
SUPREME COURT REPORTS
[1977] 2 S.C.R.
also cannot help feeling that thinking in the Ministry has not ·always
been uniform, sympathy waning or waxing from time to' time
for
reasons not always manifest.
As found above, the submissions of the appellant are devoid of
force.
In the result the appeal fails and is
dismissed.
We will,
however, make no order as to costs.
P.B.R.
Appeal dismissed.