INTER-SE SENIORITY AMONGST EMPLOYEES COMING FROM TWO DIFFERENT SOURCES

Supreme Court of India

Direct Recruit Class Ii ... vs State Of Maharashtra And Ors on 2 May, 1990

Equivalent citations: 1990 AIR 1607, 1990 SCR (2) 900

Author: L Sharma

Bench: Mukharji, Sabyasachi (Cj), Sharma, L.M. (J), Pandian, S.R. (J), Sawant, P.B., Ramaswamy, K.

                                                                                                 PETITIONER:

DIRECT RECRUIT CLASS II ENGINEERING OFFICERS'ASSOCIATION AND

                Vs.

RESPONDENT:

STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT     :     02/05/1990

BENCH:

SHARMA, L.M. (J)

BENCH:

SHARMA, L.M. (J)

RAMASWAMY, K.

MUKHARJI, SABYASACHI (CJ)

PANDIAN, S.R. (J)

SAWANT, P.B.

CITATION:

 1990 AIR 1607                     1990 SCR  (2) 900

 1990 SCC  (2) 715               JT 1990 (2)         264

 1990 SCALE  (1)839

 CITATOR INFO :

 APL           1991 SC 235     (6)

 F                 1991 SC 284     (1,2,24,29)

 F                 1991 SC1134   (10,12)

 D                1991 SC1406   (26)

 RF              1991 SC1818   (5)

 R                1992 SC 410     (10)

 D                1992 SC 922     (16)

 R                1992 SC1188   (7)

 D                1992 SC2074   (7)

ACT:

    Constitution  of  India,  1950:  Articles  14,  16   and  309--Rules  relating 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 Deputy Engineers Seniority Lists Rules  1978/Maharashtra Service  Engineers (Regulation of Seniority and   Preparation and Revision of Seniority Lists for specified period) Rules, 1982/Executive Engineers and Assistant Engineers  belonging to the Maharashtra Service of Engineers Class I and Class  H (Regulation   and   Revision  of  Seniority   Lists)   Rules 1983/1984--Whether  violative of Articles 14 and 16  of  the Constitution of India.

    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.

    Quota rule--Absence of statutory rule--Can be prescribed by executive  instruction--To  be followed strictly--Consecutive non adherence--Effect of.

    Civil  Procedure  Code, 1908:  Section  11,          Explanation  IV--Res judicata--Applicability to writ cases.

HEADNOTE:   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, ExecUtive Engineers and Assistant Engineers Class  I, and the Bombay Engineering Service Class II 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, Pune 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  1I Services were framed. In place of nomination 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 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 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  or rules, were adopted in 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 applicable 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 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. As per rule 33 of  the 1970 Rules, the seniority list in each cadre in Class I and Class II  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 unconfirmed 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.   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 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 preparefresh seniority      lists.      Rules    were framed     under Article 309 of the Constitution read  with  s. 81(6)  of  the       Bombay Reorganisation Act,  1960,  and were called the Re-organised Bombay State 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 flamed laying down the rule of determination of seniority of the Assistant Engineers and the Executive Engineers for the period 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 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 (Regulation  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 quota with retrospective effect, attempt was made to neutralise the decision and rob the promotees the benefit of their continuous officiation.     For  the  purpose of fixing the seniority  of  Executive 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 Rules framed in 1978, 1982, 1983 and 1984. Dismissing all these matters, this Court,

    HELD:  1.  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 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 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 appointment is  made  after considering the claims of all eligible candidates  and the appointee continues in the post uninterruptedly till the regularization 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 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; 915A-D]  S.B. Patwardhan v. State of Maharashtra. [1977] 3 SCR 775;  Baleshwar  Das  v. State of U.P., [1981] 1  SCR           449;  Delhi  Water  Supply  and Sewage Disposal Committee & Ors.  v. R.K. Kashyap & Ors., [1989] Supp. 1 SCC 194 and Narender  Chaddha

JUDGMENT:

2.1 It is incorrect to say that the 1970 Rules indicate that the officiating 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 conclu- sion that the officiating Deputy Engineers formed a class inferior to that of the permanent Engineers.   One cannot attribute fixed connotation to the expression            'promotion' without       reference to the context. The expression has been used in the sense of confirmation. The language used in several            other rules is inconsistent with two-cadre theory, and by way of illustration r. 12(a) may be 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 Engi- neers. Rule 12(a) of the 1970 Rules expressly includes             some of the officiating Deputy Engineers within the cadre of Deputy Engineers, although it leaves behind the other offi- ciating Deputy Engineers who started officiating later   than 30.4.1960. Rule 13 speaks of officers "officiating in the erstwhile cadre of Deputy Engineers" and r. 27 of "officiat- ing promotions" which are inconsistent with two-cadre theory. In r. 33 of the 1970 Rules also two lists were directed to be 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 reorganisation suggested was with reference to "lists" to be prepared. It will not, therefore, be right to equate the lists with cadres. It is true       that the Rules have not in express language stated that                the officiating posts also will be 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            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 highly 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 scrutinised for finding out any possi- ble error. It is not in the interest of the service to unsettle a settled position every now          and then. [918G-H; 919A] 2.3      Even on an independent consideration of the provi- sions of the Rules, and the relevant materials the temporary posts of Deputy Engineers against which promotees officiat- ed, did not form a separate cadre and were additions to    the main cadre. These temporary posts were created in pursuance of several resolutions of the State                Government and             the language used therein amply supports this view. [921A-E] S.B. Patwardhan v. State of Maharashtra, [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] 1 SCR 449, referred to. 

Note: Here only the Head Notes and first para of the Judgement is reproduced. For full text of the Judgement, click on the attached PDF file.