# P.S. MAHAL & ORS v. UNION OF INDIA & ORS - **Citation:** [1984] 3 S.C.R. 847 - **Court:** Supreme Court of India - **Decided:** 1984 - **Bench:** P.N. Bhagwati, R.S. Pathak - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-s-mahal-ors-v-union-of-india-ors-8653 - **Pages:** 70 ## Headnote Executive Engineets, CentrG/ Engineering and Central Electrical Engineering· Service (Group A) '(Regulation of Seniority) Rules, 1976, brought into force with retrospective eff~ct from 10th Dec.ember, 1974-Rules 2(ii) and 2.(iv)-Con~ stitutional validiiy of-Whether the· rules viol<;ite the provisions of Arlie/es 14 and 16.(i) of the Constitution. lnter-se Senioriti of Executive Engineers promoted regularly within their respective quota from and afier 22nd December 1959 but before_ Jlth- December, 1974 .from the posts of Assistaht Executive Eagineers governed by the Central Engineering Service (Class-I) Recruitment Rules, 1954 and· Assistant Engineers governed by Central Engineering Service (Class-II) Recruitment Rulq 1954, as re.fixed by the seniority List dated August 14, .. 1975-Whether irreiular and contrary to Jhe guidelineS indicated in the decisions reported as A.K. Subraman v. Union of India [1975] 2 S.C.R. 979"=Qnota rule in Rule 4 of the Centra/. Engineering Service (Class-I) Rules,.1954 when applicable. . In the Central Public Works Department of the Ministry of Works and· Housing, ·Government· of India, the promotions to the posts of Executive Engineers are made from amongst.Assistant Executive Engineers .(Class-I ) who have rendered. more than ·fiv~ years of their service in their grade on the basis of Seniorit~-cum fitness and alio from Assistant Engineers (Class-II) who haVe rendered more than eight years Of service in their grade on the basis' Or ni~rit, the selection "being made through a dep_artmental pro:notion comffiittee pres.ided over by a member of the Union Public· Service Commission, since for the latter the· P.P&t of ~ecutive · Engineer is a selection post. For promotion to .the 'giade of Exective Engine::rs~ for the first time, on,4Sth August, 194·9, a quota in the ratio o.f 75% to 25% was prescribed by the Central Government. this was con .. tinuCJi right upto the Recruitment Rules 1954 were·~nacted for these two categories .. From Septenlber 7, 1955~ this quota was altered wjth reti'oseec .. tive effect to 66-2/3% and 331/3% and it was again altered 'with effect from April I, 1.972 to SO: 5~ for a period of seven years. However, at the time of promoti.ons not onJy the quota was not A B c D E F G. adhered to with the result that Assistant .Baginoers came to be promoted "H 848 SUPREME COURT REPORTS [1984] 3 S.C.R. A B c D E F G H with Executive .Engineers far in excess of th.eir quota, while there was .a shortfall in the promotions of As~istant 'Elt.ecutive Engineers, sO ra·r as their quota was concerned, but all of them were treated as officiating E;xecutive Engineers . • There was no statutofy ·rules _govcro'ine; inter.se seniority of Executive Engineers pro1J1oted fro~ these two grades. They wer~ th'.!refore, gov0raed by th,e Memorandum issued by the Home ·Mini-;try .on June 22nd, 1949 which laid down the general principles of seniority applicable to all departments of the· government. The Memorandum provided that "in respect Of -persons employed in any part"iCu\ar grad~, seniority should, as a general rule, be determined on thC basis of length of service in thSsatily imi)Iied a system of rotation and it was required to be strictly applied at the stage of confirmation in the grade of Executive Engineers. In other wOrds, out of three vacancies in the grade of Bxecv_five Engineers, unless two reserved for promotion of Assistant Executive Bilgineer_s were filled up by confirmation of such promo.tees, the third O_oe for confirmation of ·an AssiStant Enginyer promotr.d as Executive Engineer-could no~ be ti.fled. Consequently, all Assistant Engineers were treated a3 ad·hoc appointees without ~ny ·claim to seniority until .such ·-time as they were confirmed as Executive Engineers within their quota. The impact of this decision ·or Respondents Nos. 1 to 3 was disastrous for a large number of Ex~C.Utive Engineers promoted froi.p the grade of Assistant Engineers on officiating basis, since many of _them had to. retire ·without ._ being confirmed and therefore, ~ithout any clRi.m of seniority in the g[ade of Executive Engineers and tbt? position continues to exist tiJJ date. Therefore the aggrieved -Assistant Engineers filed a writ petition b~fore the 1"!el~i High Couft .. The Full Bench of that Court dismissed, the said petitions. In the ap.J)eals .. by a common judgment reported as A. K. Subraman and Ors. 'v. Union of India and Ors.· [1975] 2 S.C.R. 979; the Supreme Court acCepted the contention of the petifloners that the quota rule was t6 be applied at the stage of initial promotion ·in officiating capacity, to the grade of Executive Engineers and not at the stage of cOnfir~ation.and that it' did not necess<,1.rily imply the ro~ational system aod since the general principles ~' I ' .. l- • ' ' . ' • P. s. MAilAt v. UNION 849 for determining seniority laid down in the· Memorandum dated 22nd June, A 1949 were, on their plain tern1s, applicable, seniority in the grade of ExecQtive Engine.ers was liable tO be fixed on the b~tsis of length of continuous officiation ·in that grade as provided iii the Memorandum. The Court allowed the appeal after. summarising its conclusions i~ the form of folio.wing six propositions nemely : (I) When Assist.ut Engineers {Class·Jl) are initially appointed in a regular manner iri accOrdance with the rules to-. officiate as Executive Er·gineers, their s~niority ia the service in Grade-I will· count from the date of their initial officiating appointment in Class I provided., their· initial o'fliciating appointment as Executive Engineers was within their Quota; (2) Their seniority will not be reckoned ffom the date of their future confirmation in Ciass·I. The above principle is, however, ·subjeC:t l_o one ·reservation, namely, if an Assistant Engineer, 6ef-0re his Confirmation in Class IC were appointed to officiate in Class I in the grade Or Exe.cutive Engineer; although within _bis quotii, his seniority will count only from· the date of bis confirmation 1.n Class II as permanent Assistant.Engineer not_ withstanding ~is earlier officiating appointme_nt as Executive Engineer; (3) The quota rule will be enforced at the time of i_nitial ·recruitment, in an officiating capacity to the grade of Executiv~ Eag_ineC:r and not at the time oj confirmation; • B c D l4) The quota rule will be enforced with reference to vacancies in all E posts, w·bether permanent or ~emporary including in the sanctioned· Strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) and th6 operation of the quota rule will depend upon the avai· ]ability or non availabiii~ of Assii;tant Executive Engineels for appointment as Executive Engineers. The non-availability of Assistant Executive Eo 0gicienrs for recruitment to the grade of Executive Engineer will not postpone the regular recruitment ?f the Assistant Executive Engineers within theit quota. F (5) Once·tbe As.sistant Engineers ai-e reglllarly"·appoiuted to officiate as Executive Engineers w'ithin their quota tb~y _will b6 entitlei.:I to coaSideration in their own rights as- Class I officers to fu"rther promotions. Their "bi.rtb rllarks'' in their earlier service- will ~e of no relevance once they. are regularly officiating in th~. grade of Executive Engineer within their quota. (6) U Assistant Engineers are recruited. as· Executive EQgineers in excess of thei~ quota in a particular year they wi!l be pushed dowll to later years for absorption when due within their quota." and directed the' respon· dents Nos .. I to 3 to amend and revise the" seniority list of 1st July 197; in. G the Ji-ght of the directions give1,1 in.· the judgment and to give effect to the ff revised seniority list so prePared • • 850 A B c SUPREME COUR')" REPORTS ll 984] 3 s.c.R. Respqadents Nos. 1 to 3, ·thereafter, i&sued a seniority list on 14th ·August, 1975·.accompanied by a memon1ndum beadag the same date in which it was st~ted that the seniority list of Executive ErigiOeers· had been raised in the light of the judgment of tbe Supreme Court- dated 11th December, 1974 in acCordanco With the principle set out In the memorandum. Poi the .purpose of determining the seniority in the grade of ·Executive Ellgineers from and after 22lld December-, 1959 resp"ondents Neis. 1 to 3 int_roduc-:-d t~e carry forwArd principle and applied the r0tationa1 formula. The o'fficers who bad becD, with thl' concurrence of the Union Public Service CoffinlissiOn, . officiating as Executive Eogioi::ers prior to 25th August, 1949 ~nd continued to do so thereafter were shown en blqc.senior to the officers appOinte:d after 25th August, 1949 and so far as the period between 25th August 1949 and · 21st December, 1959 was conCerned ·thd inter se Senior.ity .of persons promote~·· ~ during.that period from the grades of Assistant Engineers and A:;;sistant Executive Engineers within- their respective quotas was determined in accordance with the length of their regular continuous service as Executive Engineers, subject to the q6aHfication that. in case of Assistant Engineers who were promoted as Executive.Engfoeers·.tbe iength of their regular continuqlls seryice as Executiv_e Engineers for the· pu~pos"e of determining . seniority would· be computed only _from the date when they were confirmed as-AssSist ant Engineer. ' · ·p .. E F G H But with effect from 22nd December 1959, a departure was made by respondent Nos. 1 to 3 ·from th~ principle of continuous officiation and ~·carry fOrward principle Was applied by prov.'iding that s'6 posts earmarked for promotiro of Assistant Executive Engineers to the g~ade 'of Exee;utive ·Engineers in accordance with their quota 9uring the period prior tO. 22rl(t December,· 19.S 9 which hid ·reaia'ine~ unfilled owing to noa.availabhity of ·. Assistant Executive Engineers up to 22nd_ D'ecember 1959 shotJld,be-carried forward and. 86 Assistant_ Executive Engineers promoted after 22nd Dec~mber; 1959 should be adjusted against these posts and they should be assigned sCDioiity en-bloc imO'lediately below the last EXecutive Ei:igineer promoted regularly prior to.22nd December, 1959. The result was that the Assistant Engineers who had been promoted as Executive Engineers regula~ly wit bin thei!' qu"ota subsequent to 2 ?nd _December 19 59 became junior to the ,Ass.istant. EvecutivO Engineers promoted against these 86 carried forward posts, • even though they migh~ have been: _promoted as Executive Engineers long prior to tho promotion of such Assistant Executive Engineers. The Assistand ExecutiVe Engineers promoted and adjusted against these 86 Carried for"' wa~d posts were given seniority -~bove the ASsi$tant Engineers promQted rogUlarly within their quota after 220:d. December, 1959 irrespectiVe as to w'hen such_ Assistant Executjve Engineers were actuallY promoted. These . posts were aajusted on the basis of the- order in 'which the vacancies in the respectiVe quotas of Assistant Executive EngineerS and Assistant Engineers for promotion· as Executive Engineers were allociited from time to ·time. The · seoioril)'.' lnter-se of Assistant Executiv·e · Enginee~s. and Assistant Engineers promoted r.egularly within ~heir respective quotas subsequent to _22nd December, 19:59 was thus determined by the application of the rotational formula based on the quota pfevailing at tho relevant time. But ·since it had not been P:oS:sib.le ·to .fill all the poJts 'allocated to the Assistant E~ecutive · Engineers' qaota and son1~ p6_st~ ~emained unfil~ed, theyJwere shown Us vacilnt . ' .. . - , • • vl . ' -j . , • • P, S. MAHAL v. UNION 851 in the senio:ity·list prepafed according to the roste• based on'the rotationa.1 formula so that as and when .Assistant Exceutive Engineers might be pro.mo .. ted as Executive Engineers regularly within their quota, they would occupy the,vaCant ·posts· e8.rmarked. for them in the seniority list. The disastrous· effect of th~ revised seniority list was that most of the Assistant Engineers prcunoted as Executive. Engineers r""egularly within their quota subscqμent to 22nd December, 1959_lost a considerable nurnber of places in seniority and Wer~ Piaced in a much worse situati.on. than what they were in under the seniority list dltted Ist Jilly,_ ~971 which was quashed at their inst'anCe, in writ petitions. A contempt application against respondents Nos, .1 to 3 wus therefore.moved.but, befofe the Court could hear the objeCtioils agai.nst the seniority list on merits; the·ftrst respondent issue~ on .8th June, 1976· th~ Executive Engineers, Centfal Engineering and Central Electrical' Engineering . service (Group A) (Regulation of Seniority)' Rules _1976. These ruies were 'deemed to have cO·me into fotce with effect from 10th December, 197_4, that is orie day before the delivery of Judgment., by 'this Court and they substantially enacted in statutory form the same pririciples which were se~ ·out iii the memorandum that aCcompanied the seniority list dated l 4tli · AUgust, 197S_aJid on which.that seni~rity list was based. · The petitioners, thereupon, filed the present writ petitions contending thaf the Rules of 1916 wefe not applicable to the petitioners and other AsSist~nt Engineers pron1oted as Executive Engineers regularly within t'heir quota prior to 10th December 1974 and if these Rules were held to be applicable, they were unconstitutional and 'void. ,Th'e petitioners challenged the validity of the seniority list d:tted 14th Augusr,·1975 and the Rules of 1976 on t'be following grounds, namely; (_i)' th"t ·it was the case of .the petitioners and other· Executive Engineers promoted from the gr3-4e ·or Assistant Engioeers regularly within their quota frOm · and after 22nd December 1959 but beforC 11th December 1 19$4 ·js covered by the decision of this Court in A. K. Subraman's. c;se; (ii) that they are entitled t9 claim seniority, on the basiS· of Ieng.th of conti'nrious officiation, over. Assistant Executive Engineers promoted as Executive Engineers later in .Point of tim'e; Gii) that the Assistallt Executive Engineers_ promoted and adjusted against 86 carried forwarp posts cannot be given seniority ·en bloc over Assistant Engine~rs 9i'Ori1oted ·a·s Executive Engin~ers earlier; (iv) th'at the rotational formula cannot' be applied retrospectively so 'as to deprive AssiStant. ·Engineers promoted as Executive Engineers of their s~nio.rity on the basis of_ length of coritinuous officiation lri t)je grade of Executive Engineers; (v) that the Rules of 1976 are, 'to that extent, UoconStitutional and ·void as'. b(:ing outside the p~wer of _the Central Government; (vi) that since fhe Rules of-1976 have been b~ougbt_intO (orce with effect from 10t.h December, 1974, they cannot affect the .Petitioners and· other. Assistant Engineers , promoted as Executive Engineers regularly within thei_r quota pti~r to that date and their St'.niority vis-a-vis Assistant Executive Engineers promoted as Executive Engineers must _contiriue to be governed by the prjociple of length Of continued officiation in the- grade of Executive Engineers; and (vii) that if the Rules of 1976 are applicable for determining inteT se s~niority of Executive En.gineers promoted rfom 'the grades of Assistant Engineers and Assistant ExecutiVe Engineers within their respective quotas from and after 22nd December, 1959, they are unconstitutional and .. A • B' c D E F G H 852 A • B c D E F G • • Stll'!IEME COURT REPORTS [1984] 3 s.c.lt. vOid as offiending Articles 14 a~d 1'6 of the Constitutton, since the::~niority rules enunciated in tbe H.ules of 1976 being closely. linked with. the quota rule continued massive departure from the quota rule over a long period of t.ime must resUlt ·in the break down or the seniority.rules apd to hpply lhe seniority 1uh;s in such ·a situation would create gros$ inequality of oppor .. · tunity Of employment violative of Articles 14 and 16·. Allowing the petitions~ t~e C0urt, , HELD : 1.1 Rule 2(iii) of the Central Engineering and Central "Electrical Engineering Service Rules, · 1976, i~ so far· as it gives en ~foe Jeniotity to the AsSiStadt Executive Engineers promoted to the eighty ~ix . vacancies carried .forward from the period· prioi;. to 22·12-1959 irrespective of the dat.e \Vben theY. were a.Ctually promoted and·· pushed down in seniority As5istant Er.gineers though' promoted· regularly within their quota prior to · the actual promotion.of such Assistant. Executive Engineers, merely prejudicially affecting their promotiQnal opportunities is violative of Articles 14 and 16 of the Constitution. [9068-D] 1.2 Rule 2(iv) of the said Rules· also suffers from the same infirmity as it provides for rotational rule of seniority based oa the prevailing quota for determining inter-se seniority between As~i~tant Engineers and Assistant Executive Engineers promoted to the grade of Executive Engineers from and after 2 ~nd December, 1959, subject to an en blac seni.ority being given, to the Assistant Ex_ccutive Engineers promoted to the eighty six J"'carried forwa·rd" vacancies as set' ·out in Rule 2(iii). Obvious;ly, if Rule '2{iii) providing for en bloc seniority to be given to the Assistant Executive Engilleers ·promoted to tlie eighty· six "carried' forward" VacJ.ncie::i is unconstitutional and void,·Rule 2(iv) is also unconstituti0nal and vOid; when there has been ·enormous dCviation from· the quota .rU1e ia lht1 p'romotions of Assistant Execufive Engineers and such deviati~n has continued from year to year over a period of almost tweaty five· years. [906D-H] ' J.3 The rotational rule of stniority is inextricably linked up with the quota rule,. and -if the quota rule is not strictly imPiemented and there is large d·Cviation from it regularly from year tO year; it would grossly be indiscriminatory and unjust to givq effect to the rotatienal rllle of seniority. The rotational ·-rule .of sen'iority must Obviously br<.Jak down when there is such massive dcPJ..rture from the quota rule regularly from year to year leading to contiOuOusIY )ncreasiog deficiency in promotions of Assistant Executive Engineers and corresponding excess in promotions of Assistant " Engineers. [908C-D, 909D-E] . . H T. Devdasan v. Union of India, AIR, [1964].S.C. 179; Mervin Contindo v. The tollector of Customs, Bombay [1966] ·3 SCR. 600; G.D. Kelkar v. Chief Collector of ~mports mid Exports [1967] 2 SCR 29; V.S. Badami v. State of Mysore [!976] I SCR 815; N.K. Chauhan v. State of Gujarat, [1973] SCR 1037; A. Janardhan v .. Union of India AIR [1983] SC 769; Bishan Swarup Gupta v. Union of India [1975] ! SCR 104 referred to. • . .I. l - ' . • . x 1 ' .. ) . t • • P. S. MAHAL v. UNION 853 2.1 Notwithstanding Rules 2(iii) and 2(iv) of the Rules of 1976, the A inter se seniOrity between Assistant Engineers.and Assistant Executive Engineers promoted regularly within theiit respective quota uptO 1 ltb December, 1974 must be determinrd on the basis of length of continuous officiation in the grade of Executive Engineers. subject of course to the length of continuous offici~ion in the .case of Assistant Engineers being conlputed from the date of their confirmation as' Assistant Engineers in view of decision o.f .. the Supreme Couft in Su\>rainan•s case. ID. this view carrYing forward of B eighty ·six .posts ·of Executive Engi.neers · a110cable to Assistant Execu:ive Engineers and giving u_p seniority en bloc to the AssisL 1nt, Executive Eogin.eers promoted to the -~carry forward posts".by applying the rotatio1lal ··formula for the purpose of determining seniority amongst Assistant Engineers and Assistant Executive Engineers promoted to the subsequenc \'acancies i.s · ineffective quota Assistant Engineers and Assistant Executive Ertgineers promoted upto·ttth December 1974 and so far as these Assistant C Engineers'an.d Assistant Executive Engineers ar·e concerned, their i-.ter se seniority must"be held to be governed by the length of continuous officjation in the grade of Exe~utive Engineers. [888H, 889A·B] 2.2 Oil a plain reading of the .decision in Subraman's case, it is obvious· that the direction given by it in regird tO determination of inter se seniJrity On thia. basiS·of length of continuous officiation was not limited to Executive Engineerl.' promoted from the grade .of Assistant ·Engineers.and Assistant Executive Engineers upto 2 ~nd December, 1959 .but \las on its plain terms. applicable. tc all Executive Engineers promoted from tht:: .grade of Assistant Erigineers an'd Assistant Executive Engineers with'in their respective quota right upto 11th December, 1974 being the date of the decision of the Court. But the ~evised se'niority list dated 14th. Aug·ust, 19?5 issued by the Government Of India was plainly in defiance of this direction given by the Court. [872A·C, P·G) ~.3 When ,this Court in so many terms laid down that the inter se seniority of Executive Engineers promoted from the grades of Assistant : Engineers and Assistant' Executive Engineers upto December 1 J, 1974 must be held to be_governed by the .rule of length of co~tinuous officiatioil and. th~ Government of India has b~en directed by a writ of the Court to amend and revise the seniority~ the effect cff this decision cannot be set at naught and the binding character of the writ issued 'a8ainst ·the Government of India c1D.· be abrogated by the mere prOmulgation of the Rules of · 19i6' with r'etros~ pective effect' from. 10th December 1974. It i• significant to note that the Explanatory Memorandum whi_ch was in the nature of statement of objects and reasons for- the Rules of 1976 did not seek to override- the effect of the decision in ·subraman's case -but on the cOntrary affir'med that the principles of seniority set out in.those.rules were laid_down on.the baSis of the said . decision. Since the R~les of 1976 purports _merely to. carry oUt · the direc .. ·tion given in the said .de.cision they ·cannot have the effect of overriding that .. decision. and absolving the Govt, of India and the Goyernment of India, fnust: therefore, amend and revise the seniority list of 1st July~ 1971. bf api)lyiog the 1ule of seoiority based on length of contlnuous officiation for d6terininiilg D E F G H A B c D. 854 • SUPREME COURT REPORTS • (1984) 3 S.C.R. i11t::r se seniority of Exe_cutive. Engineers prom"oted from the grades of AssistaOt Engineers and Assistant Executive Engineers. tlp'to 11th December, 197 -t. The relative position of the Executive· Engneers in· ·regard to their inter se seniority having been crystailised in the ~deciion in Subraman's- case I.ind a · \Vrit havillg been isSued-by he ·court directing the inter. se seOiority of the Executive· Engineers to be fixed on the basis of 1ength of contl.nuous officiation the Executive Engineers pron1oted from .the grade of Assistant . Engineers ... were entitled to.enf6rce the writ fo..r 'determining the inter se seniority with the Executive Engirieers in aCc.ordance with the rule of length of C'ontinuous officiation:. The right of the Executive Engin_eers · prorr.oied from the-grade of Assistant Engineers under the ·said decision could not be taken. away by anYthing contained in the Rules of 1976. The decis"ion in Sahara.man's caSe Continued to subsist and the GoverQment of_ India· Was. bound to a determine intet: .re senio.rity amongst Executive Engineers in accordance with the direction contained in that decision.: If by reasoo. of retrospective alteration pf ·-the rule of seniority the decision fa rendered erroneous, the· remedy may be by way of reyiew, but so long as the decision stand~ it. cannot be disregarded or igno_red vacancy and the quota ro'le would n )t be attracted in case of such a vac.lncy. But where a vacancy. arises o;;,i account of. the incumbent going on dt'putatiOn. for a l'.eaSonably·long perio:l and there is no reasonable likelihood of the person promoted -tO )ill su_cb vacancv having to revert; the,. ·vacancy woUld be subject to t~e:quota rule,. Qecau_se it would be a .regular vacancy in the post of Executive Engineers and the person _promoted to fif( the vacancy would' be an officiating Execiltive Engiffeer would contiriue as sticb without reversion uutil confirmed and bts promotioD. would, therefore, be by way Or_ recruitment to.the·cadre-of Executive· Engineers. Or course, t-he vacancy which attracts the applicability of the quota ru!e,_is the vacancy in the posi -included i·a the sanctioned strength of the cadre of ·Executive ,Engineers and 'not the vacaDcy in the d.;:putation post. There. may be a ~acn.ncy in a deputation post ip. anothe~ department or organisation and an Executive Engineer holding a pOst included in the sanctioned strength of tbe cadre of Executive Engineers may be sent to such deputation pOst, but the ' • P. S. MAHAL v. UNION &55 vacancy which Would call ·for the appl~cation of the quot!! rule in such a case A would be the vncancy arising in the post of Executive Engineer within the cadre by reason of the incumbent of I hat post going· to the deputation_ post and not the vacancy in the deputation post which would be filled up by the ExeCutive Engineer_ going on. deputation: Therefore, what has to be conside'red for the applicability of the qu<,>ta rule is a vacancy in a poS:t included in the sanctioned strexigth of the cadre of Executive Engineers and the sa"nctioned strength whicJl. has to· be taken into account, is 'not merely the ll sanctioned strength of the Cadre ofEXecutive Engineers in the entire Central Eilgineering Service, Class I. The sanctioned strength of the 'cadre of ·Executive Engineers in the 'central Engineering Ser.vice, Ciass. I, maY jncludci not only.posts ·of Executive Engineers in the Central Publ.ic \Vorks Depart~ rnent ·but also Posts ·or Executive Engineers in "othef·departn1eilt.s and organisations. [890H, 89!A-G] ·c 5.2 Therefore, ~t cannot be said that promotion to the post of ·E·xecutive Engineer' contemplated. 1:1nder the Rules can be made" only where there is no lien of any officer on tba:t post because promotion acc:ording. to the· quota rule "is initial promotion in o·fficiating caPacitYttand not conCerned with confirmatiOn .. It is true that ·a confirmed ExeCutive Engineer who goes on deputation may re Vert to the. post 011 which he bas a lien and -so D also an officiating Executive.Engineer who g_oes on deputation may revert back on termination of hiS-deputation and theoretically, in· either case, an Assistant Eiigineer or Assist-ant Executive El'lgineer ~ho is promoted to . flJI the vacancy arisiiig on account" of deputation .may have to revert, but in actual practice -and reality, not a single Assistant Engineer or 'Assistant Executive. -~ngineer promoted to fill a vacancy arising on account of.deputation, bas had to revert, because deputation is a normal feature- in this E service and 20 to' 25 per cent of the Executive Engineers are conlinuosly on dePutation. Even, if one Executive Engineer comes back on termination of his deputation, another has to be sent in'1lis pl~ce and deputations thus go on rotating with the result that the vacancy in· the post ·of ExecutiVe Engineer arising on accorint of .deputation does not cease and the Assista:Dt Engineer of"Assistant Executive Ellgineer promoted as Executive. Ene:in.efil. to liU the vacancy does not ever have .to revert and consequently the vacancy F filled by bi.in is really .and truly· a· perμianen.t and long term . vacancy which has to be filled according to the quota rule, In fact, if the quota rule· were not to be applied with reference to such a .vacancy°,. the position wo·uld be that Whenever an Exe.cutive Eogineer· goes od deputation for a· period whicb·~ay extelld anything· between three :to.fi.ve years, the Central Government would be entitled to promote a_n Assistant Engineer i.gaoring the claims of Assistant Executive_ Engineers and this would totalJy be arbitrary G in a sit11ation where 20 to.- 25 per -·cent of Executive Engineers are on· .~eputation. For tbiS purpose the vacancies in tbe pas.ts of Executive :Engineers arisi11g on account of deputation of Executive Ellgineers to other departments, organi~ations and public Uiidertakings. for a period of one or more years were long term vaCancies. and they could not be regarded as fortu tious or adventitious in·· character . and hence they were subject to the qqqta role. [8910-H, 89SH, 896A, 897A-F, Gj H • 8,55 A B c D • E G' H • SUPREME COURT REPORTS {1984) 3 .s.C.R. 3'_ 3 However, the vacancy pro tempore filled irregularly by an Assis .. tant Engineer Would ·continue to beloag· to the quota of-Assistant Executive . Engineers and it can be filled only by the Assistant Executive Engineer, if the quota rul~ is to be strictly observed. The death or· retiremept of an ,irr~gular promotee to the ·vacancy cannot therefore give rise to a fresh vacancy : . it -is the same vacancy which continues until properly filled'by promotion of nn Assi5tant Executive Engineer-at a subsequent date. If in such a case the death or retirement cf an irregular appointed ASsistant ·Fngineer were tq be treated as creating a fresh ~acancy; it _would lead to gross distortion. Simil:1rly while pushing down Executive Engineers prcmOted from the grade . of Assistant Engineers in eXcess oft heir quota in a subsequent yCar, the Government must treat them as absorbed from. the date when a vac·ancy .in that year ari~es in the quota of Assistant Engineers and not' on a national basis from 1st January of that year. . . (900 C-G, 901 C·D] ORIGINAL JuRISDICfION Writ Peiition Nos. 157- I 62 of 1976 · (Under article 32 of the Constitution of India)' ' M.C. Bh8ndare; A.K. Ganguli, D.P.-Mukherjee.and Miss. C.K. Suchirata for the Petitioners . . M.M. Abdul Khader, Girish Chandra and Miss A. Subhashini for Respondent. ·• • M.!e. Ramamurthi, J. Romamurthi and Mrs. R. Vaigai for Respondent. Tiie Judgment. of the Court .was delivered by BHAGWATI, J. This wlit. petition marks yet another round of :litigation between two groups of Executive Engineers in Central ·Public Works Department of the Ministry of Works and Housing, Government of India, one group consisting of promotees from the grade of Assistant Executive Engineers ·.and t)le other. consisting of promotees. from the grade of Assistant Engineers. The dispute between these two groups in regard to .seniority has been going on for quite some time and it has created considerable discord and bitterness between these two groups which must inevitably affect the efficiency of the Service. It is really a matter of regret that the Central Government should not have been able to bring these two groups together and evolve a: commonly agreed formula acceptable to both sides. We hope that our decision in this writ petition will finally ring the curtain down on this unfortunate controversy and both groups of Executive Engineers wiH accept the decision ungrndgingly without any rancour pr resentment ~n'd wholeheartedly engage themselves in the nation building task entrusted to thero. 1 • '. • • P.$. MAHAL v. UNION (Bhagwati, J.) There is in the Central Public Works Department of Ministry of Works and I:Iousing, Government of India a Service known as Central Engineering Service (Class I). This Service comi;>rises various grades; the highest gr!(de is that of Engineer-in-Chief and then in descending· hierarchical order ·are the grndes of Chief Engineer, Su,ierintending Engineer, Executive Engineer and Assistant Executive Engineer. The Central Governmenl has. made rules of recruitment to this Service known as the Central Engineering Service (Class I) · Recruitment Rules 1954 (hereinafter .referred to ~s 'Recruitment Rules') and they are issued undet SRO 1841 d'}.ted 21st May. 19.54. Part I of the Recruitment Rules contains tlie definition and Clause (c) of Rule 2 occurring in this Part defines "Service" as Centrnl Engineering Service Class I. Rules 3, 4. and 5 contained in Part II of the Recruitment Rules lay down the modes of recruitment to various grades in this Service in the following terms : · · "3. Recruitment to .the service shall be made by any.of fae following methods ;- ' (a) By competitive examination in India in accordance with Part III of these rules. (b) By.promotion in accordance with Part IV of these rules. (c) By transfer in accordance with Part V of these Rules. 4. (I) All appointments to the service. or to posts· borne upon • the cadre of the Service shall be made by Go•ernment, · (2) Subject to' the provisions of the rule 3 Go~ernment. sha,ll determine the method or methods of requirement (Sio) . (recruit~ent ?) to be employed for. the ·· purpose of filling any parllcular vacancies in the Service or such vacancies therein as may be . required to be file'd during. any particular period and the number of candidates to be recruited by each method. 857 A B c D E F Provided that all recruitment by competitive examination G .(vide Part III of the rules) shall be to the grade of Assistant Executive Engineer, Class I only. S~venty-fi~e per. cent of the vacancies in · the grade of Executive Engrneer, Clasfl, shall be filled by promotion of A~sistant Executive Engineers, Class I, the ~est of the vacancies · H be!ng filled by promotion and/or by -transfer in accordance wtth Parts IV aJ]d V of the Rules ~espectively. ' ' 858 SUPREME COURT REPORTS (1984] 3 S,C.R. A 5. Appointment to the Service made otherwise than by promotion will be subject to ordelS issued from time to time by the Ministry of Home Affairs regarding . special representation in the Services for specific sections of the people''. Assistant Executive Engineers bi:long' to the !owes\ grade in this .. B service and they are recruited.only through a competitive examination in ·accordance with 'Part III of the Recruitment Rules. On their initial recruitment, Assistant Executive Engineers are required to . ' c D F G H undergo a period of probation fcfr two. years and they are confirmed in the grade of Assist!lnt · Executive Engineers after successful completion of the.period of probation. ' There is also another · Service in the Central .Public ,Works Department called . Central Engine~ring Service Class II. This Service consists only of.the grade of Assistant Engineers. The rules ofrecruitment to the 'grade of Assistani Engineers are to be found in the Central Engineering Service Class II R~cruitment Rules. There are two modes of recruitment laid down in these Rules; one is by direct recruitment through the· fame competitive examination which is held for selection of Assistant Executive Engineers, the candidates lower down in rank than ihcise selected for the grade of Assistant Executiv.e Engineers·, being selected for the grade· of Assistant Engineers and the other is py process of selection from a subordinate " ' - -· Service called Class ·Ill SerVice. · Assistant Engineers . belong to Class II service, .unlike Assistant Executive Engineers who belong to Class I Service !tut the posts which they hold are interchangeable, each of them being in charge of a sub-division aud 'the nature of work, responsibilities, powers and dutie~ discharged by them all is ,.identical. There is only a minor ·difference in the pay scales but. otherwise for all practical. purposes, there is no· difference between them so far as their functions 'ppwers and duties are con11erned. ' The next· higher grade ·above that of · Assistant Ei!;ecutive Engineers is "that of Excecutive Engineers. Recruitment to the grade of Executive Engineers is made by .promotion from two sources, namely Assistant Executive Engineers and Assistant Engineers. Assistant 'Executive Engineers are eligible . for . promotion to the 'grade of Executive Engineers after completion of five years of service and they are promoted on the basis of seniority-cum-fitness. Assistant Engineers on the other hand are eligible for promotion io · the grade of Executive Engineers only after eight years of Service in their grade and for them, the post of Executive Engineer is a selection post and ·they are selected ' t P.S. MAHAL v. UNION (Bhagwati, J.) 859 for promotion on the basis of merit; the selection being made · through a departmental promotion committee presided over by a member of the Union Public Service Commission. Prior to 25th August 1949, there was no quota for promotion to the grade of Executive Engineers from the grades of Assistant .Executive Engineers and Assistant Engineers but. for the first time on 25th August 1949, a quota· was. prescribed by the Central Government and i~ was provided that the vacancies in the grade of Executive Engineers shall ' be filled by promotion from the grades of Assistant Executive Engineers a~d Assistant Engineers in the ratio of 75% to 25%. ·this continued right up to the time the Recruitment Rules were enacted in 1954 and that is why the last part of clause (2) of Rule 4 of the Recruitment Rules provided that 75% of the vacancies in the grade of Executive Engineers shall be filled by promotion of Assistant Executive Engineers, the · rest of ·the . vacancies being filled by promotion and or by transfer in accordance with Parts IV and V of the R~cruitment Rules. This quota was altered with retrospective - I effect from 7th September 1955 from 75 and 25 per cent to 66i and 33! per .cent and it was again altered with effect from !st April 1972 to 50: 50 for a period of seven years. ' ' r Itappears that whenever ,Assistant Executive Engineers a·nd Assistant Engineers were promoted to the grade of Executive Engineers, they were first appointed on officiating basis.