# S. B. PATWARDHAN & OTHERS ETC. ETC v. STATE OF MAHARASHTRA & OTHERS

- **Citation:** [1977] 3 S.C.R. 775
- **Court:** Supreme Court of India
- **Decided:** 1977-05-04
- **Case number:** C.A. No. 1113 of 1974
- **Bench:** Y.V. ClfANDRACHUD, P.K. Goswami, fl. MURTAZA FAZAL ALI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-b-patwardhan-others-etc-etc-v-state-of-maharashtra-others-7248
- **Pages:** 27

## Headnote

Service matter-Promotees and direct recruits--Rule that "the probationer
recruited directly to the service of Engineer Class II cadre in any year shrill, in
a bunch, be placed seni'or to promotees confirmed during that year"-Validity
of-If quota rule applicable for necruitm·ent should be applicable at the time of
confirn1ation in the same cadre.
In exercise of the power conferred by s. 241 (2) (b) of the Government of
India Act, 1935 the Governor of Bombay framed rules called Recruitment Rules
of the Bombay Service of Engineers (Class I and Class JI 1939), Rule 2 laid
down the method of recruitment to Class I of the Service by direct recruitment
and by promotion from the eXisting Bombay Service of Engineers or from the
Bombay Service of Engineers Class II.
Rule 10 provided that recruitment to
Class JI service shall be either by direct recruitment or by_ promotion from (i)
the Bombay Subordinate Engineering Service (ii) permanent
or temporary
supen1isors and (iii) temporary engineers.
In 1941 the Government of Bombay passed a resolution directing that in the
case of direct recruits appointed substantively on probation, seniority should be
determined with reference to the date of appointment on probation, while in
the case of officers promoted to substantive vacancies, seniority should be determined with reference to the date of their promotion to the substantive vacan·
cies provided there had been no break in their service prior to their confirmation in these _vacancies.
In 1949 the Chief Secretary to the Government of Bombay in reply to a
representation made by the Bombay Civil Service Association regarding emergency recruitment to the I.A.S. and "other matters" stated that promotees
could have no grievance in the matter of seniority since the seniority of a
direct recruit to the cadre of Deputy Collector vis a vls a promoted officer \Vas
determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941, i.e., with reference to the date of first
appointment on probation in the case of direct recruits and of continuous officiation in the case of promoted officers.
In April 1960, a resolution embodying the rules of recruitment to Bombay
Service of Engineers CJass I and Class II was passed by the Government and
signed by the Under Secretary to the Government "by order and in the name
of the Governor of Bombay". They provided for direct recruitment through
common competitive examination conducted by the State Public Service Commission for both classes of service as well as by promotion. Direct recruits
\Vere to be confirmed after two years in their respective caders. The rules also
provided that the ratio of appointments by nomination and promotion to both
classes shalli as far as practicable, be 75: 25.
Rule 8(i) says that the various
categories which manned the Class II sub·divisional posts were being compiled
into two lists : (i) of Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and (ii) of officiating Deputy Engineers. The future
recruitment to Class II cadre was to be made by (a) nomination of candidates
recruited directly by competitive examination and (b) promotion from the list
of officiating Deputy Engineers in the ratio of 2: 1. Rule 8(ii) provides that
further officiating vacancies would be manned from the ranks
of the
Sub
4
ordinate Service of Engineers. For this purpose of state-wise Select Seniority
List was to be maintained of members of the Subordinate Service of Engineers,
considered fit to hold sub·divisional charge. For inclusion in this list graduates,
diploma holders and non-quaUfied persons had to have to their credit service of
not less than 3, 8 and 13 years respectively. For confirmation as
a Deputy
A
B
c
D
E
F
G
H
A
B
c
D
776
SUPREME COURT REPORTS
[1977] 3 S.C.R.
Engineer the officer was expected to have put in not less
than three
years"
service as officiating Deputy Engineer.
Rule 8(iii) provides that the proba.
tioners recruit

## Text

_Characters 0–38,883 of 91,459. This is a partial read: ask again with offset=38883 for what follows._

J
S. B. PATWARDHAN & OTHERS ETC. ETC.
v.
STATE OF MAHARASHTRA & OTHERS
May 4, 1977
775
[Y.V. ClfANDRACHUD, P.K. GOSWAMI AND fl. MURTAZA FAZAL ALI, JJ.]
Service matter-Promotees and direct recruits--Rule that "the probationer
recruited directly to the service of Engineer Class II cadre in any year shrill, in
a bunch, be placed seni'or to promotees confirmed during that year"-Validity
of-If quota rule applicable for necruitm·ent should be applicable at the time of
confirn1ation in the same cadre.
In exercise of the power conferred by s. 241 (2) (b) of the Government of
India Act, 1935 the Governor of Bombay framed rules called Recruitment Rules
of the Bombay Service of Engineers (Class I and Class JI 1939), Rule 2 laid
down the method of recruitment to Class I of the Service by direct recruitment
and by promotion from the eXisting Bombay Service of Engineers or from the
Bombay Service of Engineers Class II.
Rule 10 provided that recruitment to
Class JI service shall be either by direct recruitment or by_ promotion from (i)
the Bombay Subordinate Engineering Service (ii) permanent
or temporary
supen1isors and (iii) temporary engineers.
In 1941 the Government of Bombay passed a resolution directing that in the
case of direct recruits appointed substantively on probation, seniority should be
determined with reference to the date of appointment on probation, while in
the case of officers promoted to substantive vacancies, seniority should be determined with reference to the date of their promotion to the substantive vacan·
cies provided there had been no break in their service prior to their confirmation in these _vacancies.
In 1949 the Chief Secretary to the Government of Bombay in reply to a
representation made by the Bombay Civil Service Association regarding emergency recruitment to the I.A.S. and "other matters" stated that promotees
could have no grievance in the matter of seniority since the seniority of a
direct recruit to the cadre of Deputy Collector vis a vls a promoted officer \Vas
determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941, i.e., with reference to the date of first
appointment on probation in the case of direct recruits and of continuous officiation in the case of promoted officers.
In April 1960, a resolution embodying the rules of recruitment to Bombay
Service of Engineers CJass I and Class II was passed by the Government and
signed by the Under Secretary to the Government "by order and in the name
of the Governor of Bombay". They provided for direct recruitment through
common competitive examination conducted by the State Public Service Commission for both classes of service as well as by promotion. Direct recruits
\Vere to be confirmed after two years in their respective caders. The rules also
provided that the ratio of appointments by nomination and promotion to both
classes shalli as far as practicable, be 75: 25.
Rule 8(i) says that the various
categories which manned the Class II sub·divisional posts were being compiled
into two lists : (i) of Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and (ii) of officiating Deputy Engineers. The future
recruitment to Class II cadre was to be made by (a) nomination of candidates
recruited directly by competitive examination and (b) promotion from the list
of officiating Deputy Engineers in the ratio of 2: 1. Rule 8(ii) provides that
further officiating vacancies would be manned from the ranks
of the
Sub
4
ordinate Service of Engineers. For this purpose of state-wise Select Seniority
List was to be maintained of members of the Subordinate Service of Engineers,
considered fit to hold sub·divisional charge. For inclusion in this list graduates,
diploma holders and non-quaUfied persons had to have to their credit service of
not less than 3, 8 and 13 years respectively. For confirmation as
a Deputy
A
B
c
D
E
F
G
H
A
B
c
D
776
SUPREME COURT REPORTS
[1977] 3 S.C.R.
Engineer the officer was expected to have put in not less
than three
years"
service as officiating Deputy Engineer.
Rule 8(iii) provides that the proba.
tioners recruited directly to the Bombay Service of Engineers, Class II cadro in
any year shall, in a bunch, be placed senior to promotees confirmed during that
year.
On July 29, 1963 the Government of Maharashtra passed
a resolution
superseding the 1941 rules and framing new rules for determining
int.~r se
seniority of direct recruits and p,romotees.
On December 19, 1970 the State Government passed a resolution superseding the resolution of 1960.
Rule 33 of the 1970 rules p.(ovides that the seniority list in respect of each of Class I and Class II shall consist of ; Part A
confjrmed officers and Part B, not confirmed officers, that Part A shall bearranged with reference to the year of confirmation and confirmed officers shall
be treated as senior to the unconfirmed officers in the respective ca:dre and
Part B, names shall be arranged with reference to the date of continuous offi~
ciation except where a promotion in an officiating capacity was by way of purely
temporary or local arrangement.
Immediately after the 1960 rules were made by the
Government of
Bombay the State of Bombay was bifurcated into the State of Maharashtra and
Gujarat. The Government of Gujarat passed a resolution on ~lay l,
1960'
providing that all rules, regulations, circulars etc., prevailing in
the
former
State of Bombay will continue to operate in the new State of Gujarat until
changed or modified. Jn 1965 the Government of Gujarat modified the 196()
rules in exercise of the powers conferred by the proviso to Art.
309 of the
Constitution and introduced a new clause 10 in the 1960 rules.
On the bifurcation certain permanent and
temporary
posts
of Deputy
Engineers were allocated to the State of Gujarat. Some of the promotee Deputy
Engineers fron1 the lower ranks were also allocated to the State of Gujarat and
several of them having completed three years' qualifying service had become
eligible for confirmation under r. 8(ii) of the 1960 rules but were not confirmed.
\ ' t
E
Tlte two appellants who were recruited as Overseers in 1953
were proF
G
H
moted temporarily as Deputy Engineers in 1959 and 1957 and were confirmed
as Deputy Engineers in 1970.
Respondents Nos. 2 and 3, \vho were. direct
't'-
recruits, were appointed as Deputy Engineers in 1963 and 1959 and were confirmed in 1965 and 1961.
The two appellants alleged that though they had been in continuous service--
as Deputy Engineers since T~J59 and 1957, respondents 2 and
3, who were
appointed in 1963 and 1959 were shown as senior to them and that their (the
appellants') seniority should have been fixed under the 1941 rules.
In any case
the 1960 rules could not take away the right accrued to them under the rules
existing at the time of their promotion in 1959 and 1957 and that r. 8(i1i) of
the 1960 rules and r. 33 of the 1970 rules were ultra vires Arts. 14 and 16 of
the Constitution.
The respondents on the other hand contended that neither the 1941 rule&
nor 1963 rules had any application to them and that under the 1960 rules \vhich
superseded the 1939 rules, posts of Deputy Engineers were required to be filled
in by direct recruits and promotees in the ratio of 75 : 25 and the question of
seniority of the appellants could not arise until they were confirmed and their
seniority fixed from the date of confirmation in terms of r. S(iii) of the 1960
rules.
HELD :l(a) Except the Bombay Rules of 1939 and the Gujarat notification
dated August 21, 1965 the rest of the rules are in the nature of executive instruc.
tions, which, unlike rules regulating recruitment and conditions of service
framed under the proviso of Art. 309 of the Constitution ors. 241(2)(b) of
the Government of India Act, 1935 cannot have any retrospective effect. The
rules of 1941, 1960, 1963, 1965 and 1970 were not framed by the State Government in the exercise of constitutional or statutory power. The rules of 1960'
and 1970 were issued "By order and in the name of the Governor" but that
' ' '
j
s. B. PATWARDHAN v. MAHARASHTRA
717
does not mean that the two sets of rules must be deemed to have been made
A
under Art. 309 of the Constitution. All executive action of the Government
of a State is required by Art. 166 to be taken in the name of the Governor.
[790 B-El
(b) The 1939 rules have constitutional authority but being rules made "to
regulate the methods of recruitment" they afford no assistance in finding a solution to the problem. They neither fix a quota for recruitment from the two
avenues nor do they provide in any other manner a guide line for fixation of
B
seniority as between appointees recruited from different sources.
Rule I 0 is
beside the point because the crux of the promotees' .grievance is not that they
are denied opportunities of promotion but that they are discriminated against
in the matter of seniority in comparison with the direct recruits. [790 E-G]
(c) The departmenta.l promotees are being treated unequally In the matter
of seniority because whereas, promotees rank for seniority from the date of
their confirmation, seniority of direct recruits is reckoned from the date of their
C
initial appoitltment. The disparity is so glaring that though direct recruits have
to successfully complete a two year probationary period before confirmation,
even that period is not excluded while counting their senior1ty.
A promotee
ranks below the direct recruit even if he has officiated continuously as a Deputy
Engineer for years before the appointment of the direct recruit is made and
even if the promotees could have been confirmed in an available substantive
vacancy before the appointment of the direct recruit. [789 B·D]
2(a) The 1941 resolution expressly governed the seniority of direct recruits
D
and promoted officers in all provincial services except the Bombay Service
of Engineers, Class I. Since Deputy Engineers do not belong to
Class
I
service, their seniority was governed by the Resolution. [791 A]
(b) The wording of the Resolution le.aves no doubt that the Government
of Bombay applied
two different
standards for fixing
inter se seniority of
direct recruits and promotees appointed as Deputy Engineers, The former were
entitled to reckon their seniority with
effect from the date of their
initial
E
appointment on probation while the seniority of the latter had to be
deter~
mined with reference to the date of their promotion to substantive vacancies
subject to the further qualification that there was no break in their service
prior to their confirmation in those vacancies. Thus, for the purposes of
seniority, the promotees had to depend firstly on the availability of substantive
vacancies and secondly on the arbitrary discretion of the Government to confirm or not to confirm them in those vacancies. The fact that a substantive
vacancy had arisen and was available did not proprio vigore, confer any right
F
on the promotee to be confirmed in that vacancy. The 1941 rules contained
the real germ of discrimination because the promotees had to depend upon
the unguided pleasure of the Government for orders of confirmation. In the
pre-Constitution era, such hostile treatment had to be suffered silently as a
necessary incident of government service. [791 B-D]
(c) It is difficult to uphold the claim of the promotees that the 1941 rules
were modified by the letter dated January 11, 1949. The Chief Secretary's
letter cannot improve the promotees' case. [791 GJ
G
__\..
(d) The part of the letter on which the promotees rely deals exclusively
with the case of Deputy Collectors
which makes it difficult to extend the
benefit of what is said therein to Deputy Engineers, working in an entirely
different branch of government service. The Association had addressed
its
letter, not to the Ministry which handled problems of Engineering Services,
but to the Ministry of Home and Revenue, the latter of which was concerned
to consider the grievance of Deputy Collectors. The 09ening sentence
of
paragraph 2 of the Chief Secretary's reply shows that he was referring to a
H
class of service in which a quota system was then operating, which did not
apply either under the 1939 or under the 1941 ruJes to Engineerinir Services.
[792 A-CJ
A
B
c
D
F
G
-778
SUPREME COURT REPORTS
[1977) 3 S.C.R.
~(a) Clause S(iii) is highly discriminatory against promotees apd accords
preferential treatm·ent to direct recruits and must be struck down as unconstitutional.
(b) There is no universal rule either that a cadre cannot consist of both
permanent and temporary employees or that it must consist of both. That
4s primarily a matter of rules and regulations governin,s: the particular service
·in relation to which the- question regarding the compos1tion of a cadre arise.s.
(793 El
Bishan Sarup Gupta v. Union
of lndia, [1973] 3 S.C.C. 1
and A. K.
Subraman v. Union of lndia, [1975] 2 S.C.R. 979 referred to.
Ganga Ram & Ors. v. Union of India, [1970] 3 S.C.R. 481 distinguished.
(c) It is difficult to
hold that the officiating Deputy. Engineers do
not
belong to Class II of the Bombay and Gujarat Service of Engineers. [794 A]
(d) The contention that in view of ell. (i) and (ii) of r. 8 of the 196()
roles officiating Deputy Engineers do not belong to Class II cadre_ of the Bombay
and Gujarat Service of Engineers must be rejected since the point is concluded
by the decision of this Court in P. Y. Joshi v. State of Maharashtra [1970]
2 SCR, 615. It was held in that case that the list referred to in cl. (ii) of
r. 8 is the same list which is referred to in the latter part of cl. (i) of that
rule which speaks of "future recruitment". Consequently a promoted officiating Deputy Engineer, who belonged to Class II cadre, was held entitled
to be considered for promotion under r. 7 to the post of officiating Executive
Engineer if he had put in 7 years'
qualifying service. The eligibility
for
promotion did not require that the officiating Deputy Engineer must have
put in 7 years' service after the date of confirmation. [795 B-E]
(e) It must necessarily follow that "promotion" with the latter part of
r. 8 (i) relating to future recruitment speaks of means promotion as an officiating Deputy Engin~er from the
Select List prepared under r.
8(ii). A
:person thus promoted from the Select List as an officiating Deputy Engineer
,is as full and complete a member of the Class II cadre ~ a person directly
appointed as a Deputy Engineer. In this view of the matter, the prescription contained in the closing sentence of r.- 8(i) that "the number of
such promotions shall be about 1 /3rd the number of direct recruits appointed
in that year" would apply to initial appointments and cannot govern the
confirmation of those who have already been appointed to Class II cadre. In
other words, direct recruits and promotees have to be appointed in the proportion of 75: 25 to Class II cadre, the former as Deputy Engineers and the
Jatter as officiating Deputy Engineers, but once that i9 done, the quota rule
would cease to apply with the result that confirmations in the post of Deputy
Engineers are not required to be made in the proportion in which the initial
appointments had to be made. Thus r. 8(i) only requires that for every three
direct recruits appointed as Deputy Engineers only one promotee can be
appointed as officiating Deputy Engineer. The rule cannot be ·coi:lStrued to
mean that for every three confirmations. of Deputy Engineers not more than
one promotee can be confirmed as Deputy Engineer. '[795 F-H, 7% A]
A. K. Subraman v. Union of lndia [1975] 2 .S.C.R. 979 followed.
(f) Though drawn from two different sources; the direct -recruitS · and
promotees constitute in the instant case a sirigle integrated cadre.
They
discharge identical functions,· bear similar responSibilities and acquire an
equal amount of experience in their respective assignments. Yet clause (iii)
of r: 8 provides that probationers recruited during any year shaJI in a bunch
be -treated as senior to promotees confirmed in that year. This formula gives
H
to· the direct recruit even the benefit of his one year's feriod of training and
another year's period of probation for the purposes o seniority and denies
to promotees the benefit of their lo_ng and valuable experience. If there was
some intelligible. ground for this differentiation bearing nexus vrith efficiency
ur {Jllbtic services, it might perhaps have been possible to sustain such
a
[
\
.\
'
S. B. PATWARDHAN V. MAHARASHTRA
779
classification. Instead of adopting an intelligible differentia, r. 8 (iii) leaves
seniority to be determined a·n the sole touchstone of confirmation. Confirmation is one of the ingloriOus uncertainties of government service dependi!l,g. neither on efficiency of the incumbent nor on the availability of substantive· vacancies.
Jn the instant case officiating Deputy Engineers were not confirmed even
though substantive vacancies were available in which they could have been
confirmed. 1796 C-Gl
(g) There is no substance in the plea that direct recruits must be given
weightage on the ground that the engineering services require the infusion of
new blood since it is a highly specia~ed service. Were it so, the Government
would not have itself reduced the prOportional representation gradually so as
to tilt the scales in favour of promotees.
Besides, the plea that engineering
service is a specialised service is made not by the Government but by recruits
who -are interested in so contending. Nor is the appreh~nsion justified that
the higher echelons of engineering service will in course of time be manned
predominantly by promotees. Those recruited directly as Assistant Engineers
in Class I can, under the rules, officiate as Executive Engineers after four
years' service and are ligible for confirmation as Executive Engineers after
a total service of 9 years. Promotees can hardly ever match with that class
in terms of seniority. [797 A-CJ
B. S. Gupta v. Union of India [1975] 1 S.C.R. 104 and V. B. Badami v.
State of Mysore [1976] 1 S.C.R. 815 distinguished.
In the instant case rule 8(ii) adopts seniority-cum-merit test for preparing
the state-wise Select List of seniority and yet cl. (iii) rejects the test
of
merit altogether. The vice of that clause is that it leaves the valuable right
of seniority to depend upon the mere accident of confirmation. That, under
Arts. 14 and 16, is impermissible and, therefore, r. 8(iii) must be
struck
down as unconstitutional. [797 G~H]
A
B
c
D
4. The High Court was right in rejecting the contention of the promotees
that the 1963 rules superseded the 1960 rules_ by implication and, that, thereE
fore, the State Government had no power or authority to apply the critefion.
of seniority fixed under the 1960 rules, after their repeal by 1963 ndes. The
quota system was the -very essence of 1960 rules and if it was desired to
abrogate t_hat system it is .unlikely that the 1963 rules will not even refer
to those of 1960. The rules of 1941 having been expressly superseded
by
1963 rules, if is difficult to accept that along with the 1941 rules the reSolution .of 1963_ would.not have referred to the 1960 rules also.
Secondly, the
resolution of 1970 of the Government of Maharashtra expressly superseded
F
the 1960 rules which shows that the latter were in force until 1970 and were
not superseded by the 1963 rules. The resolution of 1970 refers to all previous resolutions except the resolution of 1963 which shows that the latter
was not applicable to engineering services. [798 C-E]
5. Rules 33 of the 1970 rules in so far as it makes seniority
dependent
upon the fortuitous circumstance of confirn1ation, is open to the· same objection as r. 8(iii) of the 1960 rules and must be struck down for identical
reasons. 1800 Al
6. The circulars dated January 12. 1961, March 15, 1963 and October 18,
1~68 which the promotees want to be enforced were issued by the Finance
Department and being in .... the nature of inter-departmental communications
the)l cannot confer an.y right on the promotees. [800 A-BJ
~ -·\
. .
7. The High Courts were right on the view that the rules under consideration do not in any manner violate the provsions of the Bombay Reorganisation Act. 11 of 1966. [800-B]
8. The argument in the Gujarat Writ Petitions that though originally the
1960 rules were in the nature of executive instructions they have acquired a
statutory force and ·character by reason of their amendme_nt by the rules of
G
H
A
B
c
780
SUPREME COURT REPORTS
(1977] 3 S.C.R.
1965 was righUy rejected by the High Court, because all that was done by
the .1965 rules was to introduce a new rule, r. 10, in the 1960 rules.
The
rules of 1960 were neither reiterated nor reenacted by the rules of 1965; and
the new rule introduced into the rules of 1960 is not of such a character as
to compel the inference that the rule-making authority had applied its mind
to the rules of 1960 with a view to adopting them. [798 G-H, 799 Al
Bachan Singh v. Urnon of India, A.I.R. 1973 S.C. 441 inapplicable.
CIVIL APPELLATE JURISDICTION : C.A. No. 1113 of 1974.
(From the Judgment and Order dated the 15/16/17-1-1974 of
the Bombay High Court in, S.C.A. No. 815 of 1972)
AND
CA No. 242 of 1974
(From the Judgment and order dated the 14-7-1973 of the Gujarat
High Court in S.C.A. No. 1418 of 1971).
AND
. C. As. Nos. 285-287 of 1974.
(From the Judgment and Order dated the 14-7-1973 of
tl:J.e
Gujarat High Court in S. C. A. No. 1418/71, 422/70 & 1099/69
respectively).
D
K. K Singhvi in CA 1113/74, A. K. Garg, S. C. Agarwal and V.
E
F
G
H
J. Francis for the appellants in CAs 1113/and242/74 & for respondents Nos. 2, 3, 5, 6-13 in CA No. 285, Rr. 2-18 in CA 286 and
for Rr. 3, 7, 16-23, 28 and 33, 35-39, 41-43 and 45 in CA 287174.
M. C. Bhandare and M. N. Shroff, for respondents 1 and 2 in CA
1113/74.
M. V. Paranjape, M. K. Joshi, K. Rajendra Choudhary and Mrs.
Veena Devi, for respondent No. 3 in CA No. 1113/74.
M. K. Ramamurthi, Vimal .Dave and Miss Kai/ash Mehta, for the
appellants in CAs 285 to 287'/74 and for the respondents No. 2 and 3
in CA 242/7 4.
D. V. Patel, in CA 285 to 287 /74, P.H. Parekh and M. N. Shroff
for the respondent No. 1 in CAs Nos. 242/74 and 285 to 287 oe 1974.
The Judgment ot the Court was delivered by
CHANDRACHUD, J.-This is a group of five appeals, one
from
Maharashtra and four from Gujarat.
They involve substantially identical questions and since the appeal from the judgment of the Bombay
High Court was argued as the main appeal, we will refer 1:o the facts
of that appeal and indicate at appropriate places if there is any material
difference between those facts and the facts leading to the Gujarat appeals.
Civil Appeal No. 1113 of 1974 from Maharashtra is
by
certificate granted by the High Court of Bombay under Art. 133(l){aJ
& (b) of the Constitution.
Civil Appeals Nos. 242 and 285-287 of
197 4 from Gujarat are also by certificate granted by the Gujarat High
Court under art. 133(1) of the Constitution.
Special Civil Application No. 815 of 1972 which has given rise
to Civil Appeal No. 1113 of 1974 was disposed of by a Division
Bench of the. Bombay High Court by its judgment dated 15th, 16th
and 17th January, 1974.
The four Gujarat appeals arise
out
of
'
~
J
'-
)' .
;
'
'
s. B. PATWARDHAN v. MAHARASHTRA (Chandrachud, J.)
781
Special Civil Applications Nos. 1099 of 1969, 422 of 1970 and 1418
A
of 1971 which were disposed o.f by a Full Bench of the Gujarat High
Court by its judgment dated July 14, 1973.
The complexity of the questions involved in the~e appeals
has
been expressed by the Bombay High, Court by saying that the writ
petitions before it involvf'XI "ticklish and complicated questions" and
by the Gujarat High Court by saying that though, it 'had many occasions to consider complex problems pertaining to service laws, there
was "no case comparable" to the writ petitions filed before it in the
instant case.
The learned Chief Justice (Bhagwati, J.) who delivered
the judgment of the Full Bench observes that these questions of "unrivalled complexity" had caused considerable anxiety to the Court in
reaching a satisfactory conclusion.
We share this anxiety which is
further heightened by the diametrically opposite and entirely inconsistent stands taken by the State governments from time to time. Evidently,
the State governments did not know their own mind and being unable
to take up a firm and consistent stand, they defended the various Writ
petitions filed against them by their employees according to the mood
of the passing moment.
That must be deprecated.
The appeals raise tl1e fantiliar question of seniority in service, the
competing groups being promotees on the one hand and direct reeruits
on the other, to the posts of Deputy Engineers.
The writ petitions
were filed and defended by the rival groups in a representative capacity
so that, our decision will bind not only tb:e parties thereto but all others
whom, under the relevant provisions df the Code of Civil-Procedure,
they were permitted to represent.
Taking the facts of the Maharashtra case, the two appellants therein were initially recruited as Overseers in 1953 and were promoted
temporarily as Deputy Engineers, in Janμary 1959 and October 1957
respectively.
They were confirmed as Deputy Engineers after the
coming into force of certain rules framed on February 19, 1970.
The
1st respondent to the appeal is the State of Maharashtra.
The 2nd
and 3rd respondents were appointed directly on probation as Deput)"
Engineers.
They are Engineering Graduates but so are the appellants.
Respondents 2 and 3 qualified for direct appointment after passing a
competitive examination in 1963 and 1959 respectively.
They were
confirmed two years later, in 1965 and 1961 respectively.
The grievance of the appellants is that notwithstanding the length
of their continuous service as Deputy Engineers since 1959 and 1957,
respond~nts 2 and 3 were shown as senior to them in the Cadre of
Deputy Engineers though they were appointed later in 1963
and
1959 respectiviely.
The appellants claim that their seniority should
have been fixed under the rules framed by the then Government
of
Bombay on November 21, 1941 as clarified by the Chief Secretary to
that Government by his letter dated January 11, 1949.
According to
them, the rules framed by the Maharashtra Government on April 29,
1960 cannot take. away the right which had accrued to them under
the rules existing at the time of their promotion in 1959 and 1957.
They challenge the validity of rule 8(iii) of the 1960 rules and
of
rule 33 of the 1970 rules a~ being violative of Arts. 14 and 16 of the
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B
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SUPREME COURT REPORTS
[1977) 3 S.C.R.
Constitution.
They also challenge the 1970 rules on the ground that
they Jack approval of the Central Government, thereby violating the
proviso to s.81(6) of the Bombay State Reorganisation Act of 1960.
According to the appellants, the 1960 rules were superseded by the
rules dated July 29, 1963 and still the State Government continued
to apply the defunct rules of 1960.
On these grounds, broadly, the
appellants filed a writ petition in the Bombay High Court on behalf of
themselves and all those promoted as Deputy Engineers in Class II of
the Maharashtra Engineering Service.
Putting it as briefly as one may, the sum and substance of
the
stand taken by respondents 2 and 3 is that neither the 1941 rules nor
the 1963 rules are applicable to employees in Maharashtra Engineering
Service.
The posts of Deputy Engineers, according to them and according to the State of Maharashtra, were required to be filled in by
direct recruits
and
promotees
in the ratio
of
7 5 : 25
under
the
1960
rules
which
had
superseded
the earc
lier rules of
1939.
Therefore,
according
to
them,
the
question of seniority of the appellants could not possibly arise until
they were confirmed, and senionty has to be fixed fro01 the respective
dates of confirmation in terms of rule S(iii) of the 1960 rules.
The
Government of Maharashtra contended that the confirmation of appellants depended necessarily on the availability of vacancies allotable
to them within thei quota of 25 % of the total vacancies, and delay in
passing. orders of confirmation was inevitably caused by the fact that
the number of officiating DeP.uty Engineers was much too large. In
order tO rectify the somewhat unsatisfactory position, the State Government, according to its contention, !t1ramed the 1970 rules, altering the
ratio of direct recruits and promotees from 75 : 25 to 34 : 66, as a
result of which sevleral promotees were confirmed.
Even prior to
that, according to the State Government, whenever vacancies occurred
in the substantive posts which were required to be filled is according
to the prescribed ratio, those vacancies were duly filled in from amongst
the officiating Deputy Engineers and they were given anterior dates 0£
confirmation with effect from the dates when the vacancies had actually
occurred.
The respondents disputed that rule S(iii) of the 1960
rules and rule 3 3 of 1970 rules were uncon'stitutional or otherwise
invalid.
Before examining the merits of these confentions it would be
necessary, for a proper understanding·of the issues involved in the case,
to set out briefly the history of the Engineering Service and the backgronnd in which the Various rules came to be framed.
The Engineering Service in the then province 'of Bombay consisted,
prior to 1937, of (i) the Indian Engineering Service which was an All
India Service, (ii) the Bombay Subordinate Service df Engineers,
(iii) Supervisors, both pennanent and temporary, and (iv) temporary
Engineers, appointed annually.
The Bombay Subordinate
Service
of Engineers consisted of non-gazetted Class III employees, in which
12 posts used to be filled in annually by direct recruitment on the basis
of the results of the examination held for Diploma in Civil Engineering.
The remaining posts used to be filled in by promotion from the
'
i l
(
s. B. PATWARDHAN v. MAHARASHTRA (Chandrachud, I.)
783'
rank of temporary Overseers.
On March 22, 1937 the Government
of Bombay in the Public Works Department passed a resolution reorganizing the Engineering Service.
This resolution contemplated
the creation of two new Provincial Engineering Services to be designated
as Bombay Engineering Service Class I and Bombay Engineering Service Class II.
The cadre strength of Class I Service was fixed initially
at 36 while that of Class II Service was fixed at 80.
Class I Service
comprised the apex posts of Chief Engineer, Superintending Engineer
and Executive Engineer, and the junior posts of Assistant Engineers.
Class II Service con·sisted of Deputy Engineers only.
On September 21, 1939 the Government of Bombay passed a
resolution adopting rules for regulating the methods of recruitment to
the posts of Assistant Engineers and Executive Engineers in Class I
Service and the posfs of Deputy Engineers in Class II Service. These
rules were made by the Governor of Bombay in exercise of the powers
conferred by s. 241 (2) (b) of the Government of India Act 1935 and
were called : "Recruitment Rules of the Bombay Service of Engineers
(Class I and Class II)." The rules appear at Item 53 is Section V of
Appendix C to the Bombay Civil Services Classification and Recruitment Rules under the heading "Bombay Service of Engineer's."
Rule 2 of the 1939 Rules laid down the method of recruitment to
the Bombay Service of Engineers, Class I, by providing that
such
recruitment was to be made either (a) by nomination under the guarantee given to the College of Engineering, Poona, or (b) by promotion
from the existing Bombay Service of Engineers or from the Bombay
Service of Engineers Class II.
Rule 3 provided that as regards the
recruitment from source (a), such number of appointments as may be
fixed by the Government from time. to time would be made from
amongst the students of the College of Engineering, Poona, who had
passed the examination for the Degree of B.E. (Civil) in First Class.
The candidates so• recruited by nomination were to be appointed
in
the first instance as Assistant Engineers on probation for two
years
and on completion of the probationary period, they Were to be confirmed as Assistant Engineers.
Rule 10 of the 1939 Rules prescribed the method of recruitment
to the Bombay Service of Engineers Class II.
It provided that recruitment of Class II service shall be made either (a) by nomination
under rule 11 under the guarantee given to the College of Engineering,
Poona, or (b)
by promotion from any of the three prescribed sources.
Those sources were ( 1) the Bombay Subordinate Engineering
Service, (2) Permanent or temporary Supervisors and (3) Temporary
Engineers appointed on annual sanction.
Rule 11 provided
that
such number of appointments as may be fixed by the Government from
time to time shall be made annually irom amongst the students
of
the College of Engineering, Poona, who have passed the examination
for the Degree of B.E. (Civil).
E~ry such candidate recruited by
nomination was required by rule 14 to se~ intially as a "candidate"
for one year on the expiry of which period he would be, appointed as
a Deputy Engineer on probation for on:e year.
On the satisfactory
completion of the probationary period, the candidate would be eligible
for confirmation as a Deputy Engineer.
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SUPREME COURT REPORTS
[1977] 3 s.c.R.
A
The guarantee envisaged by rules 2 (a) and 10 (a) of the 19 3 9
rules was given by the Government to the students of the College of
Engineering, Poona, under a resolution dated July 12, 1940:
The
guarantee operated in different measures until it was finally withdrawn
by a resolution dated May 27, 1947.
The. last batch of students who
obtained the benefit of the guarantee were those that passed
the
examination for the Degree. of B.E. (Civil) in 1949.
B
By a resolution dated November 25, 1950 the Government
0£
Bombay appointed a Committee under the Chairmanship of Shri
~
~
Gurjar to examine the question of future recruitment to Engineering
l
Services, Classes I and II.
That Committee submitted iis
recommendations to the Government after prolonged deliberations
but
since the implementation of the recommendations had to be deferred,
c
the Government started making appointments to both classes of
services by direct recruitment through the Public Service Conunission.
Such appointments were made from the year 1950.
As stated earlier,
the cadre strength of Class I and Class II Services was fixed initially
at 36 and 80 permanent posts respectively.
But with the launching
of new development projects, the strength of both cadres had to be
expanded from time to time by addition to the permanent posts.
In
D
fact, for an early and effective achievement of the target it became
necessary to make appointments of several temporary Executive Engineer's and Deputy Engineers.
On November 1, 1956 there were 360
temporary posts of Deputy Engineers as against 200 permanent posts.
By April 29, 1960 these numbers had risen respectively to 600 and 400.
One 01; the bones of contention between the parties is whether these
temporary posts of Deputy Engineers were additions to Class II cadre,
E
even if temporary, or whether the temporary ,posts were wholly -outside
the cadre of Class II Service. It is necessary to mention al this stage
that appointments as officiating Deputy Engineers to such temporary
posts were made by promotion from amongst the members of the Bombay Subordinate Service of Engineers as also from amongst permanent
and temporary Supervisors.
But no direct appointments were made
by the Government to these temporary posts of officiating Deputy EnF
gineers.
The direct appointments were made only to permanent posts
because such appointees were promised confirmation after two years
from the date of appointment, during which period they were expected
to complete their probation.
On April 29, 1960 the Government of Bombay in the Public Works
'
Department passed a resolution embodying rulen:if recruitment
to
G
Bombay Service of Engineers Class I and Class II.
Theee
rules
continued the existing division of Engineering Services into Class
I
{
and Class II and they provided that appointments to both chsses of
service should be made by nomination as well as by promo I ion. As
regards appointments by nomination it was provided that th"y should
be made through competitive examination held by the Publk Service
Commission and that for both the classes of service there should be a
H
common examination.
Candidates recruited directly were to be confirmed after two years in their respective cadres, if otherwise 'ound fit.
The resolution of 1960 was signed by Under Secretary to the Government, "By order and in the name of the Governor of Bombay."
r
J
s. B. PATWARDHAN v. MAHARASHTRA (Chandrachud, /.) 785
The rules regarding recruitment to Class I and Class II EngiA
neering Service were set out in the Appendix to the 1960 Resolution.
Rule I of those rules provided that appointments to both classes of
services shall be made either by nomination after a competitive examination held by the Public Service Commission or by promotion from
amongst the members of the lower cadres concerned, provided however that. the ratio of appointments by nomination and promotion shall,
as far as practicable, be 75: 25.
By rule 2, candidates appointed to
B
either of the services by nominatio~ were to be on probation for two
years.
They were to serve, in the first instance, as Trainees for a
period not exceeding one year and thereafter they were to be placed
in a probationary capacity in charge of a sub-division for a period of
not less than one year.
On the expiry of the aforesaid period of two
years they were to be confirmed as Assistant Engineers in Class I or
C .
as Deputy Engineers in Class II, as the case may be, if favourably
reported upon by their superiors.
Rule 2 further provided
that
Assistant Engineer would be confirmed as Executive Engineer after 9
years' service unless the period was
extended by the Government.
Under rule 3, candidates securing higher places in the competitive
examinations were to be appointed in Class I service according to the
number o~ vacancies declared for such recruitmen~. in that cadre while
candidates securing the next higher places were to be offered appointD
ments to Class II service.
Rule 6 of the 1960 Rules reacl thus:
"6. (i) The number of posts to be filled in the Bombay Service of Engineers, Class I, by promotion of officers from
the Bombay Service of Engineers Class II shall be about
25 per cent of the total number of superior posts, in the
E
Bombay Service of Engineers, Class I cadre.
This percentage should be aimed at for confirmations made after 1st
November, 1956, subject of course, to Class II officers of
the requisite fitnes~ Md length.