# DIRECT RECRUIT CLASS II ENGINEERING OFFICERS' ASSOCIATION AND ORS v. STATE OF MAHARASHTRA AND ORS

- **Citation:** [1990] 2 S.C.R. 900
- **Court:** Supreme Court of India
- **Decided:** 1990-05-02
- **Bench:** Sabyasachi Mukharji, L.M. Sharma, S. Ratnavel Pandian, P.B. Sawant, K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/direct-recruit-class-ii-engineering-officers-association-and-ors-v-state-of-10813
- **Pages:** 39

## Headnote

Constitution of India, 1950: Articles 14, 16 and 309-Rules relate ing 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
7
Deputy Engineers Seniority Lists Rules 1978/Maharashtra Service
D Engineers (Regulation of Seniority and Preparation and Re.vision of
Seniority Lists for specified period) Rules, 1982/Executive Engineers
and Assistant Engineers belonging to the Maharashtra Service of
Engineers Class I and Class II (Regulation and Revision of Seniority
Lists) Rules 1983/ 1984--Whether violative of Articles 14 and 16 of the
Constitution of India.
E
'
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.
F
Quota rule-Absence of statutory rule-Can be prescribed by
G
executive instruction-To be followed strictly-Consecutive nonadherence-Effect of
Civil Procedure Code, 1908: Section 11, Explanation IV-Res
judicata-Applicability to writ cases.
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, Execμtive Engineers and AssisH tant Engineers Class I, and the Bombay Engineering Service Class II
900
-
'
_L
- ~
f
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA
901
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, Pone 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 II
Services were framed. In place of nomination from the successful students of College of Engineering, Pone 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 ot 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
placed1senior to promotees confirmed during that year. A review ofthese
Rules was later undertaken by the Government and ultimately in
partial supersession thereof a fresh set or rules, were adopted iri 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, [1970) 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 appiicable 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 re

## Text

_Characters 0–39,961 of 102,806. This is a partial read: ask again with offset=39961 for what follows._

A
B
DIRECT RECRUIT CLASS II ENGINEERING OFFICERS'
ASSOCIATION AND ORS.
v.
STATE OF MAHARASHTRA AND ORS.
MAY 2, 1990
[SABYASACHI MUKHARJI, CJ, L.M. SHARMA,
S. RATNAVEL PANDIAN, P.B. SAWANT AND
K. RAMASWAMY, JJ.]
Constitution of India, 1950: Articles 14, 16 and 309-Rules relate ing 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
7
Deputy Engineers Seniority Lists Rules 1978/Maharashtra Service
D Engineers (Regulation of Seniority and Preparation and Re.vision of
Seniority Lists for specified period) Rules, 1982/Executive Engineers
and Assistant Engineers belonging to the Maharashtra Service of
Engineers Class I and Class II (Regulation and Revision of Seniority
Lists) Rules 1983/ 1984--Whether violative of Articles 14 and 16 of the
Constitution of India.
E
'
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.
F
Quota rule-Absence of statutory rule-Can be prescribed by
G
executive instruction-To be followed strictly-Consecutive nonadherence-Effect of
Civil Procedure Code, 1908: Section 11, Explanation IV-Res
judicata-Applicability to writ cases.
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, Execμtive Engineers and AssisH tant Engineers Class I, and the Bombay Engineering Service Class II
900
-
'
_L
- ~
f
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA
901
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, Pone 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 II
Services were framed. In place of nomination from the successful students of College of Engineering, Pone 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 ot 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
placed1senior to promotees confirmed during that year. A review ofthese
Rules was later undertaken by the Government and ultimately in
partial supersession thereof a fresh set or rules, were adopted iri 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, [1970) 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 appiicable 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 Roles, and (c) the Deputy Engineers officiating on 30.4.1960; and it
was_ provided that no fresh apl'Ointments in future would hii made to
A
B
c
D
E
F
G
H
902
SUPREME COURT REPORTS
[1990] 2 S.C.R.
A this cadre and the vacancies arising would be transferred to the officers
holding subordinate posts detailed in the sub-rule in proportions indi·
cated. As per rule 33 of the 1970 Rules, the seniority list in each cadre in
Class I and Class Il 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 uncon·
B firmed 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.
c
D
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
7
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., [1977] 3 SCR 775.
In view of the judgment In Patwardhan's case, it became
necessary to prepare fresh seniority lists. Rules were framed under
Article 309 of the Constitution read with s. 81(6) of the Bombay Re-
~
organisation Act, 1960, and were called the Re-organised Bombay State
E 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
framed laying down the rule of determination of seniority of the
Assistant Engineers and the Executive Engineers for the period
F 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
G 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 (Regula·
lion 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
H quota with retrospective effect, attempt was made to neutralise the
-
~
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ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA
903
decision and rob the promotees the benefit of their continnous
officiation.
For the purpose of f"D<ing the seniority of Execntive 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 Roles framed in 1978, 1982, 1983 and 1984.
Dismissing all these matters, this Court,
A
B
c
HELD: 1. The period of continuous officiation by a government
D
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 princip?,, for decidE
ing 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
F
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 regularisation 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
G
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; 91SA-DJ
S.B. Patwardhan v. State of Maharashtra. [1977] 3 SCR 775;
H
904
SUPREME COURT REPORTS
lt990l 2 s.e.R.
Ba/eshwar Das v. State of U.P., [1981] I SCR 449; Delhi Water Supply
A
and Sewage Disposal Committee & Ors. v. R.K. Kashyap & Ors.,
[ 1989] Supp. I SCC 194 and Narender Chaddha & Ors. v. Union of
India, [1986] I SCR 211, affirmed.
2.1 It is incorrect to say that the 1970 Rules indicate that the
B
officiati!lg 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 conclusion
that the officiating Deputy Engineers formed a class inferior to that of
the permanent Engineers. One cannot attribute iIXed connotation to the
expression 'promotion' without reference to the context. The expression has been used in the sense of confirmation, The language used in
C several other rules is inconsistent with two-cadre theory, and by way of
illustration r. 12(a) may he 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
o Engineers. Rule 12(a) of the 1970 Rules expressly includes some of the
officiating Deputy Engineers within the cadre of Deputy Engineers,
although it leaves heMnd the other officiating Deputy Engineers who
started ofliciating later than 30.4.1960. Rule 13 speaks of officers
"officiating in the erstwhile cadre of Deputy Engineers" and r. 27 of
"officiating promotions" which are inconsistent with two-cadre theory.
E In r. 33 of the 1970 Rules also two lists were directed to he 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 re-organisation suggested was with reference to "lists" to he prepared. It will not, therefore, he right to equate
F
the lists with cadres. It is true that the· Rules have not in express
language stated that the officiating posts also will he 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
G 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 Mghly
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
H scrutinised for finding out any possible error. It is not in the interest of
\ ----
7
·,.-.
t
-.
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASlITRA
905
the service to unsettle a settled position every now and then. l918G-H; 919A]
2.3 Even on an independent consideration of the provisions of the
Rules, and the relevant materials the temporary posts of Deputy
Engineers against which promotees officiated, did not form a
separate cadre and were additions to the main cadre. These temporary posts were created in pursuance of several resohitions of the
State Government and the language used therein amply supports this
view. l921A-E]
S.B. Patwardhan v. State of Maharas/ltra, [1977] 3 SCR 775 and
P. Y. Joshi v.State of Maharashtra, [1970] 2 SCR 615, followed.
State of Gujarat v. C.G. Desai & Ors., [1974] 2 SCR 255, distinguished.
Baleshwar Dass v. State of U.P. & Ors., [1981] 1SCR449, referred to.
3.1 The quota rule was for the first time introduced by the 1960
Rules. These Rules were introduced through executive instructions
issued by the State Government. The ratio of 3:1 was fixed for the
purpose of "appointment" and not for the strength in the service. It
permitted the State Government to exercise its discretion according to
A
B
c
D
the demand of the exigencies, by using the expression "as far as practiE
cable." There is no reason to so restrict the scope and meaning of tbe
expression "as far as practicable". The quota rule must be held
to be realistic and flexible, true to life rather than abstractly
absolute. [923C-H; 924A-B]
3.2 When recruitment is from more than one source, there is no
F
inherent invalidity in introducing quota system, but the unreasonable
implementation of such a rule may attract the frown of the equality
clause. Further, if a rule fixing the ratio for recruitment from different
sources is framed, it is meant to be respected and not violated at the
whims of the authority. It ought to be strictly followed and not arbitrarily ignored. This, of course, may not prevent the Government from
G
making slight deviations to meet the exigencies. If it is discovered that
the rule has been rendered impracticable, it should be promptly substituted by an appropriate rule according to the situation. f92SA-C J
3.3 In the present cases direct recruits were not available in
adequate number for appointment, and appropriate candidates .in the
H
906
SUPREME COURT REPORTS
(1990] 2 S.C.R.
A
subordinate rank capable of efficiently discharging the duties of Deputy
~
Engineers were waiting in their qiteue. The development work of the
State peremptorily required experienced and efficient hands. In the
situation the State Government took a decision to r.tl up the vacancies
by promotion in excess of the quota, but only after subjecting the
officers to the test prescribed by the rules. AU the eligible candidates
B were considered and the opinion of the Public Service Commission was
obtained. [925D-E]
3.4 If appointments from one source are made in excess of the
quota, but in a regular manner and after following the prescribed
procedure, there is no reason to push down the appointees below the
C recruits from the other source who are inducted in the Service subsequently. The later appointees may have been young students still
prosecuting their studies when the appointments from the other source
take place and it will be highly inequitable and arbitrary to treat them
as senior. Further, in cases where the rules themselves permit the
Government to relax the provisions r"'ing the ratio, the position for
D the appointees is still better; and a mere deviation therefrom would
raise a presumption in favour of the exercise of the power of relaxation.
There would be still a third consideration relevant in this context:
namely, what is the conclusion to be drawn from deliberate continuous
refusal to follow an executive instruction fixing the quota The inference
would be that the executive instruction has ceased to remain operaE live. In all these cases, the matter would however be subject to the
scrutiny of the Court on the ground of ma la fide exercise of power.
All the three circumstances mentioned above which are capable of
neutralising the rigours of the quota rule are present in the cases, and
the principle of seniority being dependant on continuous officiation
cannot be held to have been defeated by reason of the ratio r"'ed by the
F
1960 Rules. [926C-G]
P. C. Sethi v. Union of India, (1975] J SCR 201 and N.K.
Chal'han v. State of Oujart, [1977] 1 SCR 1037, relied on.
S.B. Patwardhan v. State of Maharashtra, (19771 3 SCR 775,
G afflrmed.
P.S. Mahal v. Union of India, [1984] 3 SCR 847 and V.B.
'4.
Badami etc. v. State of Mysore & Ors., (1976] 1 SCR 815, distinguished.
H
Paramjit Singh Sandhu v. Ram Rekha & Ors., (1979] 3 SCR 584;
f
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA
907
A. K. Subraman v. Union of India, [19751 2 SCR 979; Bishen Sarup
Gupta v. Union of India, [1975] Supp. SCR491 and S.G. Jaisinghani v.
Union of India & Ors., [196712 SCR 703, referred to.
4. It is not possible to hold that the principle of seniority being
dependant on continuous ollidation will not apply to certain groups of
the officers. The reasons for rejecting the case of the appellants in
Patwardhan's case are equally applicable to all the promoted Deputy
Engineers including those who were earlier Sub-Divisional Engineers
and Sub-Divisional Officers, as well as all the directly recruited Deputy
Engineers. The suggested division of the two groups into further sub-
:ategories will result in illegal discrimination. [929F-G I
5. Rules 4 and 9 of the 1982 Rules were rightly struck down by
the High Court and consequently the 1984 Rules were correctly framed
and have to be upheld as legal and valid. [930A-B]
6. It is well established that the principles of res judicata are
applicable to Writ Petitions°, A dispute raised by a petition under
Article 32 of the Constitution must be held to be barred by principles of
res judicata including the rule of constructive res judicata underlying
Explanation IV of Section 11 of the Code of Civil Procedure, if the same
has been earlier decided by a competent court by a judgment which
became final. [932E; 933D-E]
Daryao & Ors. v. State of U.P. & Ors., [1962] 1 SCR 574 and
Forward Construction Co. v. Prabhat Manda/, (Regd.) Andheri &
Ors., [1986] I SCC JOO, relied on.
CIVIL APPELLATE AND WRIT JURISDICTION: Civil
A
B
c
D
E
Appeals No. 194-202 of 1986. etc.
F
Appeals by Certificates from the Judgment & Order dated
9.12.85/17.12.85 of the Bombay High Court in Writ Petition Nos. 620
of 1984, 2653 of 1984, 394 of 1985, 456 of 1985, 457 of 1985, 183 of
.1985, 660 of 1984, 126of 1985 and 154 of 1985
V.M. Tarkunde, M.C. Bhandare, R.N. Sachthey, S.B. Bhasme,
V.A. Bobde, D. Dave, R. Karaniawala, Ms. Meenakshi Arora, Mrs.
Manik Karanjawala, Jitender Sethy, S.V. Taillbwekar, M.N. Shroff,
A.S. Bhasme, A.M. Khanwilkar, P.G. Gokhale, B.R. Aggarwala for
G
the Appellants and J .H Bhatia, Brambhate Petitioners in person.
H
A
908
SUPREME COURT REPORTS
[1990] 2 S.C.R.
K.K. Singhvi, T.V.S.N. Chari, Miss Manjula Gupta, Ms. Kitty
Kumarmangalam, Ms. A. Subhashini and V.J. Francis for the Respondents.
S.S. Patvardhan, Intervener in person.
B
The Judgment of the Court was delivered by
SHARMA, J. The perpetual rivalry for seniority in service between the direct recruits and the promotees has once more engaged the
attention of this Court for several days. The dispute which was brought
to Court by S.B. Patwardban in 1972 by a writ petition in the Bombay
High Court and which was supposed to have been finally settled by the
C judgment of this Court reported in (1977) 3 SCR 775 has been kept alive by
some direct recruits till this date. The events relevant for the case are
spread over a long period and the issues joined by the parties have
been described in the earlier judgments as involving ticklish and
complicated questions of unrivalled complexity with no earlier case
D com.parable. The position as now stands is that the field of controversy
on legal questions has been considerably narrowed down by the earlier
decisions of this Court, but the relevant facts and the issues to be
settled have multiplied by further events and subsequent rules framed
under the Proviso to Article 309 of the Constitution.
E
2. For appreciating the controversy which has to be resolved, a
brief survey of several sets of rules is necessary. The parties are
Enginec::.rs in the employment of the State of Maharashtra excepting
the petitioners in W.P. Nos. 3947-48 of 1983 who are in Gujarat
service. Avoiding the details, the position may b.e briefly stated by
dividing the entire period into 4 sub-periods and mentioning the scope
F of such of the provisions of the rules which have direct bearing on the
questions involved in the present cases. By a resolution of the year 1937
of the Government of Bombay, two new Provincial Engineering
Services described 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 EngineerG ing Service Class II, having officers designated as Deputy Engineers,
were created. 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. The next Rules to which the
H parties in the present cases have made reference were those made by
.~
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA [SHARMA, J.] 909
the resolution dated 21.11.1941 for determination of the seniority of
the direct recruits and the promoted officers, containing only two rules
out of which r. 1 admittedly is not relevant for the present purpose.
Rule 2 said 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 aud Class II Services were framed by a Governmeut resolution dated 29.4.1960. Learned counsel for the parties have
referred to these Rules as the 1960 Rules and have made elaborate
arguments with reference to some of the provisions. In place of nomi'
nation 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 promo_, tees. 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 of rules, described by the learned counsel in the present
-
cases as the 1970 Rules, were adopted by another Government resolu-
/·
tion. 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, [1970] 2 SCR 615. The judgment in
this case has been the subject matter of considerable discussion during
the hearing of present cases. By r. 5 of the 1970 Rules, Class I and
Class II Services were redefined and r. 12(a) peclared that the cadre of
Deputy Engineers would consist of all the direct recruits, the confirmed Deputy Engineers and the other officers who were officiating
as Deputy Engineers on 30.4.1960.
3. During the period 1960-70 adequate number of direct recruits
were noi available, and a large number of promotees, therefore, had
A
B
c
D
E
F
to be appointed to officiate as Deputy Engineers on continuous basis.
G
These appointments were made after following the procedure applicable to regular promotions, including consultation with the Public
Service Commission. By r. 12(b) 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
H
A
B
910
SUPREME COURT REPORTS
[1990] 2 S.C.R.
date of coffimencement 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. The learned counsel for the
parties have referred to this cadre as the 'frozen cadre'. The question
of semority was dealt with in several rules, out of which r. 33 is
important. ll said that the seniority list in each cadre in Class I and
Class II shall 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
C irrespective of the period for which they had been working continuously on the Deputy Engineer's posts. These Rules were amended in
1972, but there was no departure from the main scheme and the principle governing seniority.
D
4. In pursuance of the 1970 Rules seniority lists were prepared
leading to the filmg of several cases which were ultimately disposed of
by this Court in S.B. Patwardhan and others v. State of Maharashtra
and others, [1977] 3 SCR 775. Patwardhan, the appellant in that
case, was promoted temporarily as Deputy Engineer in 1959 and was
confirmed after the coming in force of the 1970 Rules. The responE dents No. 2 and 3 who were directly appointed as Deputy Engineers
later were, in view of the Rules, shown as senior to Patwardhan.
Patwardhan challenged the validity of r. 8(iii) of the 1960 Rules and
r. 33 of the 1970 Rules as being violative of articles 14 and 16 of the
Constitution. The judgment in the case is treated as a landmark in the
service jurisprudence and has covered extensive grounds dealing with
F several important aspects relevant in the case. The learned counsel for
the parties have in the course of their arguments read and re-read the
judgment and made elaborate comments on its interpretation and
effect, which we will discuss later. In the result, Patwardhan succeeded
and r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules were struck
down.
G
5. In view of the judgment in Patwardhan's case, it became
necessary to prepare fresh seniority lists, and since the re-organised
States of Bombay and Gujarat were formed on 1.11.1958 under the
provisions of the State Re-organisation Act, 1956, it was considered
expedient to make rules for preparing seniority lists of Deputy
H Engineers in respect of the period 1.11.1956 to 30.4.1960, that is, the
r
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ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.] 911
date immediately after coming into force of the 1960 Rules. Rules
were framed under Article 309 of the Constitution read withs. 81(6) of
the Bombay Re-organisation Act, 1960, and were called the Reorganised Bombay State Overseers and Deputy Engineers Seniority
Lists Rules, 1978, and have been referred to before us as the 1978
Rules. The seniority list of the Deputy Engineers as on 1.11.1956
which had been prepared earlier was declared by these Rules as valid
and final. This was consistent with the decision in Patwardhan's
case. The further seniority lists were directed to be prepared for the
years 1957, 1958, 1959 and 1960 in accordance with the judgment in
Patwardhan's case wherein the seniority of the promotee Deputy
Engineers was made dependant on the continuous officiation subject
to certain other conditions.
6. Since the preparation of the seniority lists and reversion of the
direct recruits whose promotion was illegal, in view of the decision in
Patwardhan's case, were being delayed, one Bagayat Patil, a promotee
Deputy Engineer officiating as Executive Engineer, filed a writ application being W.P. No. 3483 of 1980 in the High Court for implementation of the judgment, inter alia, on the ground that r. 6(iii) of the 1960
Rules relating to Class I being similar to the struck down r. 8(iii) was
also illegal. Another writ application being W.P. No. 672 of 1981 was
filed by the direct recruits challenging the validity of the 1978 Rules
mainly on the ground that the Rules omitted to fix proportionate quota
for the direct recruits and the promotees. The two cases were disposed
of by a common judgment upholding the validity of the 1978 Rules,
striking down r. 6(iii) of the 1960 Rules, and issuing appropriate directions for reversion of the illegally promoted direct recruits as also for
preparation of seniority lists in accordance with the judgment in
Patwardhan's case. Kulkarni, one of the direct recruits, in representative capacity, challenged· the judgment before this Court in S.L.P.
No. 8064 of 1981 which was dismissed on 29.10.1981. On the same date
S.L.P. No. 9161 of 1981, filed by one Samtani was also rejected. A
special leave petition by the State Government was also dismissed
later. One of the direct rectuits J.H. Bhatia, who was admittedly
represented by the petitioner in S.L.P. No. 8064 of 1981, filed an
application under Article 32 of the Constitution before this Court on
1.2.1982, that is, after the dismissal of S.L.P. No. 8064 of 1981, which
has been registered as W.P. No. 1327 of 1982 and is being disposed of
by the present judgment.
A
B
c
D
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7. In 1981 further rules called Re-organised Bombay State
Assistant Engineers and Executive Engineers Seniority Lists Rules,
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912
SUPREME COURT REPORTS
[1990] 2 S.C.R.
A
1981, described by the partiC9S as the 1981 Rules, were framed laying 1
down the rule of determination of seniority of the Assistant Engineers
and the Executive Engineers for the period 1.11. 1956 to 30.4.1960.
With respect to the preparation of the seniority list of the Executive
Engineers, r. 3(3)(a) read with Explanation tor. 3(4) fixed quota with
retrospective effect between the direct recruits and the promotees,
B
and these rules were successfully challenged in the High Court in W .P.
No. 362 of 1982. The judgment in the case striking down the above
rules has not been directly questioned in this Court.
~·
8. The main Rules which are the subject matter of the present
cases were framed in 1982 under Article 309 of the Constitution laying
~
c down the principle for fixing the seniority for the period dated
1.5.1960 to· 20.12.1970, and are called the Maharashtra Service of
Engineers (Regulation of Seniority and Preparation and Revision of
Seniority Lists for Specified Period) Rules, 1982, hereinafter referred
'tto as the 1982 Rules. The Preamble states that they were framed in
view of the decision of the Supreme Court in S.B. Patwardhan v. State
D of Maharashtra and of Bombay High Court in W.P. No. 3483 of 1980.
On their face, they are consistent with the aforesaid judgments, but 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. Rule 9 (omitting the Explanation which is not relevant for the
.~
E present purpose) read as follows:
"9. Allocation of vacancies in cadre of Deputy Engineers
for direct recruits and promotees.-The number of vacancies in the cadre of Deputy Engineers in every year during
the specified period and in the fractional year shall be ·-+-
F
deemed to be equal to the .number of vacancies actually
filled in that year or, as the case may be, fractional year,
f
and the first three-fourths of such vacancies in each year or
in the fractional year shall be deemed to be allocated for
persons recruited directly as Deputy Engineers and the
subsequent remaining vacancies in that year or in the fracG
tional year shall be deemed to be allocated for filling by
promotions from amongst Overseers who may be eligible
for such promotions in· accordance with rules or orders
••
made by Government from time to time during the specified period."
H
Rule 4, .dealing with the promotion of Assistant Engineers and Deputy
)..
I
ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA (S1U\RMA. J.] 913
\_
Engineers in vacancies in the cadre of Executive Engineers was in
similar language. Section 2(h) defined "fortuitously appointed" in the
following terms:
"fortuitously appointed" means appointed in any vacancy
which, according to rule 4 or 9, is not allocated for the class
A
of officers to which the person appointed in that vacancy
B
belongs;"
·
"'fhese rules were challenged in Writ Petitions No. 955 and 956 of 1983,
filed respectively by promotee Deputy Engineers Dafle and Kanitkar,
and by promoti:P Executive Engineers Lele and Panse (hereinafter
mentioned as IJafle-Lele case) before the Bombay High Court and
were struck down as illegal. The High Court further ordered the State
C
to carry out the directions given in Bagayat Patil's case (W.P. No. 3483
of 1980). None of the Engineers came to this Court against this judgment, except the State Government in S.L.P. Nos. 166°1415 of 1983
which also have been heard by us. However, the prayer for stay was
rejected. The result is that the seniority has to be reckoned on the
D
basis of continuous officiation. By an amendment in 1984 the rr. 4 and
9 were formally deleted.
9. For the purpose of fixing the seniority of Executive Engineers
f' and Assistant Engineers for the period commencing on 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 and will be referred to
E
.··~ hereafter as the 1983 Rules. The validity of these Rules has been
challenged in W.P. No. 1169 of 1986 filed under Article 32 in this
F
Court.
10. As stated earlier, J.H. Bhatia filed Writ Petition No. 1327 of
1982 in person and obtained an ex parte rule. Another application
under article 32 of the Constitution being W .P. No. 5187 of 1983 was
filed by Srikant Bharat Sohoni, a direct recruit to Class II, who,
G
besides challenging the 1978 Rules, has also attacked the validity of
the 1982 Rules, although he did not file an appeal11gainst the judgment
of the High Court on this point. According to theleamed counsel for
the promotee respondents he was not concerned ,Yith the 1978 Rules at
all but he mentioned the same in his application for the sole purpose of
obtaining a rule on the ground of admission o.f Bhatia's writ petition.
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A
B
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E
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G
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914
SUPREME COURT REPORTS
[1990] 2 S.C.R.
Encouraged by these two cases, several other writ petitions were also
filed and have been heard along with the Civil Appeals.
11. Although the claim of the promotees to reckon the seniority
according to the continuous officiation was accepted by this Court in
Patwardhan's case in 1977, the State Government continued denying
them the fruits of the litigation. The High Court on a complaint made
by Bagayat Patil, took note of the delay and issued directions for
implementation of the judgment. Still nothing was done till 1984 and
an application for starting proceedings in contempt was made before
the High Court. In the meantime a fresh writ petition being W .P.
No. 660 of 1984 was filed by the direct recruits before the Aurangabad
Bench of the Bombay High Court and stay was obtained. Thereafter a
number of similar applications were filed one after another, either
before the Nagpur Bench or the Aurangabad Bench of the Bombay
High Court. When the promotees pointed out before this Court the
game of the direct recruits, a direction was issued for hearing of all the
cases at Bombay. Accordingly all the 15 writ applications were transferred and heard together at Bombay. The High Court rejected the
case of the direct recruits and dismissed the writ petitions. The petitioners in 9 of them have challenged the judgment in Civil Appeals
No. 194-202 of 1986.
12. The main argument on behalf of the direct recruits has been
addressed by Mr. V .M. Tarkunde, who represents the appellants in
the Civil Appeals and the writ petitioners in W.P. No. 1169 of 1986.
The learned advocates in some of the other writ cases and two of the
writ petitioners in person made supplementary arguments. It has
strenuously been contended that the 1978 Rules, 1982 Rules, 1983
Rules and the 1984 Rules are invalid and must be struck down. The
judgment in Dafle-Lele case has also been challenged. The cases were
earlier heard for sometime by a Division Bench when the Bench referred the matter to be dealt with by a larger Bench for examining the
correctness of the decision in Patwardhan's case.
13. When the cases were taken up for hearing before us, it was
faintly suggested that the principle laid down in Patwardhan's case was
unsound and fit to be over-ruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned
counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that 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
I
,.
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ENGG. OFF!CERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.] 915
for determining his seniority; and seniority cannot be detrmined on the
sole test of confirmation, for, as was pointed out, 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 aappointment is made after considering
the claims of all eligible candidates and the appointee continues in the
post uninterruptedly till the regularisation 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 positioin 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.
This principle has been followed in innumerable cases and has been
further elaborated by this Court in several Judgments including those in
Baleshwar Dass v. State of U.P. and others, [1981] 1 SCR 449, and
Delhi Water Supply and Sewage Disposal Committee and others v.
R. K. Kashyap and others, [ 1989] Supp.