PETITIONER:
JAGMAL SINGH YADAV
Vs.
RESPONDENT:
M. RAMAYYA AND ORS.
DATE OF JUDGMENT06/01/1977
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 1474 1977 SCR (2) 573
1977 SCC (2) 593
ACT
Service matter---Central Engineering Service, Class II
(Recruitment Rules) 1954--Rule 4(c)--Scope of. No determi-
nation of quota between direct recruits and promotees
made by Government Direct recruits confirmed earlier
than promotees who were seniors--Confirmation if
valid--Departmental Promotion Committee presided over by
Member of U.P.S.C.--If amounts to consultation with UPSC.
HEADNOTE
Rule 3 of the Central Engineering Service Class II
(Recruitment Rules) 1954 provides for the recruitment to
the service by four methods; (a) by competitive examination;
(b) by direct appointment, otherwise than by competitive
examination; (c) by promotion; and (d) by transfer. Rule
4(c) provides that the method or methods of recruitment and
the number of candidates to be recruited by each method
shall be determined by the Government. Rule 24 states that
recruitment by promotion shall be made by selection on the
basis of merit from among permanent Section Officers em-
ployed in the Civil Engineering side of the Central Public
Works Department.
The writ petitioners before the High Court, who were-
initially appointed as Section Officers in the Subordinate
Engineering Service Class III (NonGazetted), were subse-
quently appointed as Assistant Engineers in the Central
Engineering Class II (Gazetted) between 1958 and 1963 by way
of selection as provided under the rules. Between the years
1961 and 1967, the Government appointed Assistant Engineers
some on the basis of a competitive examination held by the
Union Public Service Commission and others without the
competitive examination On various dates some of the direct
recruits were confirmed by the Government before the promo-
tees were confirmed.
In a petition under Art. 226 of the Constitution the
writ petitioners claimed that though they were appointed as
temporary Assistant Engineers much earlier than the
direct recruits, the latter were confirmed earlier than
themselves. The High Court partly allowed their writ peti-
tion holding that there was no determination of any quota by
the .Government, since the direct recruits obtained
preference over the writ petitioners in the matter of con-
firmation and seniority it directed the Government to adjust
the inter-se seniority. of such of the petitioners as might
be confirmed after a Consideration of their cases in
accordance with law.
In appeal to this Court, the appellant, who was one of the
direct recruits, contended that the recruitment of the writ
petitioners was outside the rules particularly because the
recruitment was not made "after consultation with tile
U.P.S.C." as required by r. 23(1).
Dismissing the appeal
HELD: (1) The writ petitioners are entitled to be con-
sidered for confirmation in the service in Class II. Since
there was no quota rule on the basis of which confirmation
had been made and seniority had been fixed, the High Court
was right in holding that the Government should consider the
ease of the petitioners for confirmation and seniority in
accordance with law. [577 A-B]
(2) The appointment of the writ petitioners was in
accordance with r. 23 read with r. 3(b) of the Rules.
Although rule 23(1) provides recruitment by selection after
consultation with the U.P.S.C. the particular Departmental
Promotion Committee was presided over by a member from the
U.P.S.C. The
574
relevant instructions of the Home Ministry stated that
recommendations made by the Departmental Promotion Commit-
tees on which the Commission was represented, should be
treated as recommendations having the approval of the Com-
mission and that the convention regarding acceptance of the
advice of the Commission would apply. [580 B-C, D-E]
(3) There is nothing to show that there had been deter-
mination of the quota by the Government of India under r.
4(c). The Rules did not prescribe therein any quota for
recruitment through the four methods specified in r. 3.
Under r. 4(b) no method other than the one specified in r. 3
is permissible for recruitment. With regard to the sharing
of recruitment through the different methods, power is
reserved to the Government under r. 4(c) to make certain
determinations. The determination under r. 4(c) must be by
the Ministry of Home Affairs at the relevant time and if a
decision were taken by that Ministry under the Rules of
Business under Art. 77(3) of the Constitution, the determi-
nation would be of the Government of India. In the instant
case there has been on adherence to the quota rule; on the
contrary there has been a flagrant violation of the rule.
[583 E-G, 584 D] ,
(4) (a) Even for executive instructions, the condition
precedent is an appropriate decision by the competent
authority and the High Court has not committed any error of
law in holding that there was no determination bit Govern-
ment under r. 4(c) to call for interference under Art.
136 of the Constitution. [585 B-C]
(b) The factum of determination of seniority was a live
issue between the parties in the High Court and there was no
error of jurisdiction on the part of the High Court in
examining the whole matter thoroughly and in considering the
documents filed by the parties. [584 H, 585 A]
The Court pointed out that persons entering Government
service have the right to know where they stand with regard
to their conditions of service and future promotion. Since
there is no impediment in the way of the Government to make
appropriate rules regarding conditions of service, it is a
sorry plight to find that officers in the same service fight
over the years, in courts, having failed to get redress
from the Government. When officers are qualified to hold
certain posts after recruitment according to rules, and they
have put in a number of years in the service to the satis-
faction of the authorities, it is impermissible to invoke a
recondite rule and call it in aid to deprive a large section
of officers of the benefit of their otherwise satisfactory
service. The. matter may be different when posts in the
service are abolished, appointments to the service are
transitory or fortuitous or incumbent are found unsuitable
for absorption. The history of this service is that tempo-
rary posts were first created and then after some years they
were converted into permanent posts. The Government. ther-
fore cannot merely be an on-looker where it could rightly
claim to be a legitimate arbiter on its own authority and
having proper regard to all just claims. [585 F-H]
JUDGMENT
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1260/73
(From the Judgment and Order dt. 5.11.71 of the Delhi
High Court in C.W.P. No. 238 of 1970)
Mrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant
M.C. Bhandare, D.N. Mishra and O.C. Mathur, for Respond-
ents Nos. 3 & 4
G.D. Gupta, for Respondent No. 8.
Gobind Das and Girish Chandra for Respondent No. 13
575
S.T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for
Respondents Nos. 55, 64, 75, 80 & 89.
Judgment of the Court was delivered by
GOSWAMI, J.--This appeal by special leave is directed
against the judgment of the Full Bench of the High Court of
Delhi whereby the .writ petition of the first twelve re-
spondents was partly allowed. The appellant, who jointed
service in the cadre of Assistant Engineers in the Central
Engineering Service, Class II (Gazetted), was respondent No.
51 in the High Court. Other respondents in the High Court
in similar position as that of the appellant have been
impleaded here as respondents (16 to 110) and they are
supporting the appellant through their counsel Mr. S.T.
Destai. For the sake of convenience the appellant and the
respondents 16 to 110 will be described heroin below as
direct recruits in the Class II ServiCe. The Union of
india, Engineer-in-Chief, C.P.W.D., and the Union Public
Service Commission are respectively respondent Nos. 13, 14
and 15 and are represented by Mr. Gobind Das.
The respondents 1 to 12 (hereinafter to be referred to
as the respondents) preferred an application in the High
Court under Article 226 of the Constitution on 16th Febru-
ary, 1970, praying for certain reliefs which the High Court
has summarised under the following four heads:
(1) That the confirmation of the direct
recruits should be held as illegal.
(2) That the respondents and other persons
Who are similarly situated like them and who
had joined the service earlier should be
directed to be confirmed first according to
the dates of their joining the service as
Assistant Engineers after giving weightage in
preference to the direct recruits.
(3) That the appointment of 38 specified
direct recruits should be held as illegal.
(4) That the respondents (13’ to 15 here-
in) should be directed to. revise the classi-
fied list published in 1968.
The Court has also noted that the respondents did not
seek to distrub the appointments of the direct recruits
already made and that their main contention was that they
were entitled to be confirmed before those of the direct
recruits who were appointed subsequent to them.
This appeal was heard by us in two stages. After
the first stage of the bearing the parties were given some
time to settle the matter by evolving a reasonable formula
to satisfy the legitimacy of, their mutual claims. It,,
however, appeared that they could not compose their differ-
ences and the alppeal was, therfore, finally heard and
concluded.
576
We may now briefly give the history of the litigation.
The respondents (who are the twelve writ petitioners in
the High Court) are either graduates in Civil Engineering or
possess similar requisite qualifications, namely, an Engi-
neering Degree or an equivalent thereof. They were all
initially appointed on different dates as temporary Section
Officers in the Central Public Works Department (hereinafter
to be referred to as the C.P.W.D.) in the subordinate Engi-
neering Service, Class III (Non-gazetted). They were
subsequently appointed on various dates between 18th Octo-
ber, 1958 and 8th January, 1963, "to officiate temporarily
and until further orders" as Assistant Engineers in the
Central Engineering Service, Class II (Gazetted) (.briefly
the Service). The appellant and the respondents 16 to 110
are what is described as direct recruits to the Service.
Each of the direct recruits possesses a Degree in Engineer-
ing or an equivalent thereof. Fifty eight of them were
directly recruited as temporary Assistant Engineers in the
Central Engineering, Service Class II (Gazetted) on dif-
ferent dates between 12th May, 1961 and 13fix December,
1967, on the result of a competitive examination held .by
the Union Public Service Commission (UPSC). The remaining
thirty eight also possess a Degree in Engineering or an
equivalent thereof and they were directly recruited as
temporary Assistant Engineers in the Service on different
dates between 2nd November, 1964 and 7th November, 1967,
but .without any competitive examination.
By a Notification dated 13th June, 1967, excepting seven
direct recruite (namely, respondents 11, 17, 29 and 31 to 34
in the High Court) the remaining respondents (respondents 4
to 37 in the High Court) were confirmed with effect from
their respective dates of recruitment. The said confir-
mations were also shown in a ’Classified list of Class II
Engineering Gazetted Establishment (Civil) of the CPWD’
published in 1968. By another Notification of 1st May,
1968, direct recruits (being respondents 17, 33, 34, 38, 64
and 74 in the High Court) were also confirmed. Similarly
by a Notification dated, 30th April 1971, other direct
recruits (respondents 31, 32, 39, 43, 46, 50, 52 to 57, 60,
61, 63, 68, 69, 75, 76, 79, 82, 92 and 96 in the High Court)
were confirmed.
The grievance of the respondents in the High Court was
that although they were appointed as temporary Assistant
Engineers much earlier than the direct recruits the latter
were confirmed ignoring their claims. Their representa-
tions to the Government through their association having
failed they approached the High Court. The respondents (13
to 15) denied their claim by means of a counter affidavit of
Shri Kailash Prakash, Director of Administration, C.P.W.D.
One of the direct recruits, Shri Durgadas Karna, also filed
a counter affidavit opposing the claim of the respondents in
the High Court. By consent certain documents were produced
by the Government and after inspection relevant extracts
from the files were submitted to the Court by respective
parties.
Although serveral contentions were urged before the High
Court, some of them pertaining to Articles 14 and 16 of the
Constitution,
577
the High Court accepted the main contention of the writ
petitioners that there was no determination of any quota by
the Government since on the basis of the said quota the
direct recruits obtained preference in the matter of confir-
mation and seniority. The High Court thus partly allowed
the application and directed the respondents (respondents 1
to 3 in the High Court) "to consider the petitioners (re-
spondents herein) for confirmation as Assistant Engineers
and to adjust the inter se seniority of such of the peti-
tioners as might be confirmed after consideration by the
respondents in accordance with law".
It is clear that if the High Court is right that there
was no determination by the Government under rule 4(c) of
the Recruitment Rules, to which we will refer presently,
apportioning quota amongst the officers recruited through
different sources it will not be necessary to go into the
other questions raised by Mrs. Pappu for the appellant. If
we find that the High Court is wrong in its conclusion on
this main point, we will have to remand the matter tO the
High Court for decision with regard to the other submissions
which had not been dealt with by it. We will, therefore,
take the first point first.
Mrs. Pappu submits as follows :-
First, in the absence of a plea in the writ petition
that the Home Ministry’s approval is necessary the High
Court exceeded its jurisdiction in going behind the determi-
nation of the quota made under rule 4(c), particularly in
the absence of any special mode of determination prescribed
under the Rules. Second, she submits that the High Court
failed to notice that it was open to prescribe quota by way
of executive instructions in the absence of any rules in
this behalf. Third, she submits that even assuming the High
Court could enter into such an enquiry there is ample evi-
dence on record to show that a determination has been made
under rule 4(c).
The persons with whom we are concerned in this appeal
are governed by the Central Engineering Service, Class II,
Recruitment Rules (briefly the Rules) which were published
on 21st May, 1954. There are six Parts in these Rules.
Part I (General) provides the definitions. Part/I deals
with the methods of recruitment. Rule 3 with which this
Part opens provides as follows :--
"3. Recruitment to the Service shall be
made by any of the following methods :-
(a) By competitive examination in India in
accordance with Part III of these Rules.
(b) By direct appointment in accordance
with Part IV of these Rules of persons se-
lected in India otherwise than by competitive
examination.
(c) By promotion in accordance with Part V of
these Rules.
(d) By transfer in accordance with Part VI of
these Rules."
578
Rules 4 and 5 may also be noted:
"4. (a) All appointments to the Service or
to posts borne upon the cadre of the Service
shall be made by the Government.
(b) No appointment shall be made to the
Service or to any post borne upon the cadre of
the Service by any method not specified in
Rule 3.
(c) Subject to the provisions of sub-rule
(b), the method or methods of recruitment to
be employed for the purpose of filling any
particular vacancies in the Service or such
vacancies therein as may be required to the
filled during any particular period and the
number of candidates to be recruited by each
method shall be determined by the Government.
5. Appointments to the Service made
otherwise than by promotion will be subject to
orders issued from time to time by the Minis-
try of Home Affairs regarding special repre-
sentation in the Services for specific
sections of the people’."
Part III provides for recruitment by competitive exami-
nation which is the method provided in rule 3(a). We are
not concerned with the details in this Part except to note
that the examination is conducted by the UPSC and the requi-
site qualifications and age restrictions and relaxation are
provided for in this Part. We may also note that Rule 21
of this Part provides that the selected candidates shall be
appointed as Assistant Engineers on probation for two years
and on the completion of the period of probation, if con-
sidered. fit for permanent appointment, they will be con-
firmed in their appointments. There is a provision for
extending the period of probation under rule 21(c). We need
not notice other details in this Part.
Part IV deals with recruitment by selection. Rule 23
with which this Part opens provides as follows:
"23. (1) Recruitment by selection shall be
made from among Temporary Engineers and Tempo-
rary Section Officers employed on the Civil,
Engineering side of the Central Public Works
Department after consultation with the Commis-
sion:
Provided that it shall not be neces-
sary to consult the Commission, in the ease of
any person, if the Commission were consulted
in connection with his temporary appointment
to the Service.
(2) No person shall be eligible for selec-
tion under subrule (1) unless he would, but
for age, be qualified for admission to the
Service under Part III of these rules, and his
age at the time of appointment to the Service
is not more than 40 years.
579
(3) Merit shall be the primary considera-
tion in determining a person’s fitness for
selection under this rule and no officer
shall have any claim to appointment under this
rule as of right."
Part V deals with recruitment by promo-
tion and contains a solitary rule, namely,
rule 24, which reads as follows :--
"24. Recruitment by promotion shall be made
by selection on the basis of merit from among
permanent Section Officers employed in the
Civil Engineering side of the Central Public
Works Department."
Part VI deals with recruitment by trans-
fer of an officer in Government service and
there is a solitary rule, namely, rule 25,
which takes care of this type of recruitment
by transfer. We are not concerned with this
rule in this appeal.
From a perusal of the Rules it is clear
that there are four methods of recruitment,
namely--
(1) recruitment by competitive examination
(Part III);
(2) by direct appointment otherwise than
by competitive examination (Part IV);
(3) by promotion (Part V); and
(4) by transfer (Part VI).
It is also clear under rule 4(b) that no appointment
shall be made to this Service or to any post borne on the
cadre of this Service by any method other than the above
mentioned four methods.
The direct recruits belong to two categories of offi-
cers. Fiftyeight persons were recruited under rule 3(a) by
competitive examination. The remaining thirty eight persons
were also directly recruited as temporary Assistant Engi-
neers but without any competitive examination and, according
to the respondents, "on an ad-hoc basis". So far as the
respondents are concerned they claim to be recruited under
Part IV, namely, recruitment by selection which is one of
the four methods provided for under rule 3 (b). On the
other hand according to Mrs. Pappu the respondents are more
temporary promotees to temporary vacancies in Class II
Service and they are a class different from the direct
recruits who are not similarly situated with them.
We have, therefore, first to consider this submission of
Mrs. Pappu. As stated earlier, there are four methods of
recruitment. Recruitment by promotion is provided under Part
V and that is made by selection on the basis of merit from
amongst permanent Section Officers. The particular recruit-
ment of the respondents, therefore, cannot be under Part V.
It is common ground that the respondents at the material
time when they were appointed as. temporary Assistant Engi-
neers were only temporary Section Officers in Class III.
It is also admitted that 3--112SCI/77
580
all these respondents have requisite qualifications which
are necessary for admission to the Service under Part III
and they are also. within the age limit laid down under rule
23(2). Besides, recruitment when made is only on merit
under rule 23(3). Being faced with this position, Mrs.
Pappu submits that their recruitment is outside the Rules
particularly because rule 23(1) provides for recruitment by
selection "after consultation with the UPSC". She submits
that they were selected by the Departmental Promotion
Committee which is not the same thing as the UPSC mentioned
in rule 22(1). We are, however, unable to accept this
submission. It is true that rule 23( 1 ) provides for
recruitment by selection after consultation with the UPSC.
The particular Departmental Promotion Committee (DPC) was
presided over by a member from the UPSC. There is Home
Ministry’s O.M. No. 33/46-Ests(R) dated 17th June, 1947,
wherein it has been clearly stated in para 7 as follows :-
"Recommendations made by Departmental
Promotion
Committees on which the Commission is repre-
sented should
be treated as recommendations having the
approval of the
CommiSsion, and the convention regarding
acceptance of the
advice of the Commission will apply."
We are, therefore, clearly of opinion that the appoint-
ments of the respondents are in accordance with rule 23 in
Part IV read with rule 3(b) of Part 1I of the Rules. We
find that the above conclusion we have reached is supported
by the stand taken on behalf of the Government in the Lok
Sabha on 7th April, 1969, in answering certain Unstarred
question with regard to recruitment to this Service, inter
alia,under Part IV.
Since, however, there are no statutory rules for confir-
mation in service or seniority rules, it is submitted by
Mrs. Pappu that under rule 4(c) of the Rules it is for the
Government to determine the method or methods of recruit-
ment to be applied for the purpose of filling any particu-
lar vacancy in the Service or such vacancies therein as may
be required to be filled during any particular period and
the number of candidates to be recruited by each method.
It is in conformity with rule 4(c), says counsel, that the
Government has fixed the proportions for filling vacancies
in Class II Service by different modes of recruitment.
She draws our attention to a letter of the Under Secretary
to the Government of India, Ministry of works and Housing,
dated 2nd October, 1954, which, as the Subject matter shows,
contains the "proposal to prescribe definite quotas for
titling the posts of Assistant Engineer (Civil) and Assist-
ant Engineer (Electrical) in the C.E.S., Class II, and the
C.E.E.S. Class II, respectively by different modes of re-
cruitment." The proposal sets out in Part A thereof the
quota for permanent vacancies as follows:--
A-Permanent Vacancies:
(i) 50% by direct recruitment by competi-
tive examina tion under Part 1II of the
Recruitment Rules for the Class 1I
Service.
581
(ii) 25% by promotion of permanent Section
Officers under Part V of the Recruitment
Rules.
(iii) 25% by permanent appointment of
temporary Assistant Engineers recruited by
competitive examination through the Union
Public Service Commission, and by transfer
under Part VI of the Recruitment Rules."
Part B thereof fixes the quota for tempo-
rary vacancies as under"B-Temporary Vacan-
cies:
(i) 50% by direct recruitment by competi-
tive examination through the Union Public
Service Commission and by transfer under Part
VI of the Recruitment Rules.
(ii) 50% by departmental promotion from
amongst--
(a) permanent Graduate Section Officers,
(b) permanent non-Graduate Section
Officers, and
(c) temporary Graduate Section Officers,
in accordance with the ratio which may be
fixed by the Departmental Promotion Committee
at the time of making the selection.
Provided that if at any given time,
candidates who are successful at the Union
Public Service Commission competitive examina-
tion are not available in sufficient numbers
for filling 50% of the temporary vacancies
that might be available, the residual vacan-
cies may be filled temporarily by departmen-
tal promotion, subject to the condition that
persons so promoted against such vacan-
cies, shall be reverted later, if necessary,
to make room for the candidates who may quali-
fy at subsequent examinations to be held by
the Commission,. as and when they become
available."
It is pointed out that this proposal
received approval of the UPSC as per its
letter dated 7th September, 1955. Mrs. Pappu
draws our particular attention to the follow-
ing paragraph in that letter:
"For recruitment to the posts in the
Cenral Engineering Service, Class II, and the
Central Electrical Engineering Service Class
II, the percentage quotas for various modes of
recruitment suggested by the Ministry vide
their letter No. E-1/5(3) dated the 2nd Octo-
ber, 1954, have been approved by the Commis-
sion."
Our attention is particularly drawn by the respondents
to a letter dated 7th November 1975, from the Deputy Secre-
tary (EstabliShment) to the Secretary UPSC and the subject
of the letter is "confirmation in the grades of Assistant
Engineers Civil & Elec. in the C.P.W.D." It is stated in
that letter--
582
"Since these vacancies have occurred as a
result of conversion of posts from temporary
to permanent and since the C.P.W.D. has a
large number of officiating Assistant Engi-
neers who have been promoted from the grade of
Section Officer, it is considered that the
officiating Assistant Engineers have a prior
claim to these posts. The Ministry of Home
Affairs also share this view ........
The last paragraph of this letter reads as under
"I am to request that the concurrence of
the UPSC to, the allotment of these vacancies
on ad hoe basis to the officiating Assistant
Engineers (Civil) & (Elec) and to their
confirmation as proposed by the DPC at their
meeting on 18.7.1955 may be communicated to
this Ministry at an early date."
After this our attention is drawn by the
appellant to a document dated 5th March, 1962,
on the "subject: preparation of a
combined seniority list for direct recruits
and departmental promotees in the grade of
Assistant Engineers C.P.W.D." It is stated
therein as follows :--
"It was tentatively agreed that since
the ratio of recruitment prescribed for
direct recruitment through the UPSC and
Departmental Promotion of Section Officers has
not been adhered to, the date of confirmation
should be the basis of determining the inter
se seniority of direct recruits and the De-
partmental promotees. When the date of
confirmation of direct recruit and a depart-
mental promotee is, however, the same, the
direct recruitment should rank senior to the
departmental promotee. The Chief Engineer,
however, indicated certain practical diffi-
culties in following the above principle and
it was decided that further discussion should
be held before the Ministry of Home Affair’s
would be able to give their definite views in
the matter."
Mrs Poppu then draws our attention to
paragraph 2 of this letter which reads as
under :-
"The ratio in respect of direct recruit-
ment and departmental promotion was prescribed
in September, 1955. Whenever confirmation
thereafter was not made according to the
prescribed ratio, approval of the U.P.S.C. was
obtained to the relaxation of the quota."
The same paragraph continues to throw more
light:
"Before giving their final views, the
Ministry of Home Affairs desired to have a
copy of the communications wherein the UPSC
agreed to the relaxation of the quota. As
further discussions in the matter will take
place in the Ministry of Home Affairs within
the next few days the copies of the relevant
communications should be sent immediately"..
583
Mrs. Pappu finally draws our attention to
the minutes of the meeting held in the Minis-
try of Home Affairs ion 16th June, 1962, to
discuss the question of drawing up a combined
seniority list of various categories of As-
sistant Engineers in the C.P.W.D. She
points out that the first paragraph in the
minutes shows that "according to the orders
issued in 1955 recruitment to the grade of
Assistant Engineers (Civil & Electrical) in
the Central Public Works Department is to be
made by the following modes," namely, perma-
nent vacancies and temporary vacancies in such
manner as was contained in the proposal dated
2nd October, 1954, which we have already
extracted. She then draws our attention that
certain decisions were taken, as will appear
from paragraph 4 of the minutes, with regard
to the determination of the relevant seniority
of direct recruits and departmental promo-
tees. Mrs. Pappu submits that this is a
follow-up action of the proposal which emanat-
ed from the Ministry of Works & Housing letter
dated 2nd October, 1954, and which received
the concurrence of the UPSC. She submits
that the minutes did mention quota and some
decisions were taken about inter se seniority.
She submits that the position emanating from
the minutes can only be reconciled on the
basis that the quotas already fixed in 1955
had been the rule with regard to this Service.
The short question that arises for considera-
tion is whether there has been a determination
by the Government under rule 4(c). It is
clear that 1954 Rules did not prescribe there-
in any quota for recruitment through the four
methods specified under rule 3. One thing,
however, is clear that under rule 4(b) no
other method is permissible for recruitment.
It is also clear that with regard to the
sharing of recruitment through the different
methods power ’is reserved to the Government
under rule 4(c) to make certain determina-
tion. It is submitted by Mr. Gobind Das,
appearing on behalf of the Union of India,
that at the relevant time the Department of
Personnel was in the Ministry of Home Affairs
and it is that Ministry which was entrusted
With the matters relating to recruitment and
seniority. He further submitted that the
approval or sanction of the Home :Ministry was
mandatory for validity of any rule. It is,
therefore, clear that the determination under
rule 4(c) must be by the Ministry of Home
Affairs at the relevant time and if a decision
were taken by the Home Ministry under the
Rules of Business under Article 77(3) of the
Constitution the determination would be of the
Government of India. There is nothing to show
that there was any determination by the Home
Ministry under rule 4(c). It is true that
there was a proposal from the Ministry of
Works & Housing to which concurrence had been
given by the UPSC. After that there has been
no further progress of the matter and Mr.
Gobind Das concedes that there is nothing to
show from the records at the disposal of the
Government that the approval of the Home
Ministry was given to any determination .under
rule 4(c).
The Under Secretary in the Ministry of
Works & Housing has filed an affidavit dated
16th December, 1976, with an annexure dated
14th
584
June, 1954, which shows that with reference to
the proposal for quotas the reaction of Home
Ministry was in the following terms:
"Prima facie, the proposal seems unob-
jectionable but this Ministry would like to
see again after the UPSC’s views have been
received."
It is perhaps because of this that Shri
Swaran Singh the then Minister for Works &
Housing also endorsed the Secretary’s propos-
al, which was in the following terms:
"The proposals are in order and may be
approved. After U.P.S.C. have been consulted
and given their concurrence, the case will
have to be shown to the Home Ministry again
who have asked to see these papers after the
views of the U.P.S.C. have been obtained."
The Minister, Shri Swaran Singh’s endorsement appears at
the foot of this proposal on 24th September, 1954.
So far as the records go the matter rested as above and
there has. been admittedly no adherence to the quota rule,
but on the other hand there has been flagrant violation of
the rule. As a matter of fact, pari passu with the pro-
posal there was even a request for relaxation and every
thing appeared to be at that stage and for a number of years
in the melting pot. This was perhaps possible only because
the file with the proposal after the concurrence of the UPSC
did not move to the Home Ministry for final determination
under rule 4(c).
It is not possible to equate the minutes of the meeting
of 16th June, 1962, with an appropriate order or determina-
tion by the Home Ministry. There is nothing to show that
these minutes received the approval of the Minister-in-
charge. We are, therefore, unable to accept the submis-
sion of Mrs. Pappu that there has been a determination, in
fact, by the Government under rule 4(c).
We have already held that respondents 1 to 12 were duly
appointed under rule 23(1) of Part IV read with rule 3(b).
They are, there.fore, entitled to be considered for confir-
mation in the Service in Class. II. Since we have held
that there was no quota rule, as sought to be made out, on
the basis of which the confirmations have been made and
seniority has been fixed, we agree with the High Court that
it will be for the respondents (13 to 15) to consider the
ease of the respondents (1 to 12) for confirmation and
seniority in accordance with law. As the High Court has
pointed out, the validity of the recruitment of the
thirty eight direct recruits will, however, not be affect-
ed.
We are not impressed by the submission of the appellant
that there was no averment in the writ petition regarding
absence of determination under rule 4(c) of the Rules.
After a perusal of the pleadings and having regard to the’
stand taken by the parties before the High Court, we find
that the submission has no force. Since ’the factum of
determination of seniority was a live issue between the
585
parties in the High Court, there was no error of jurisdic-
tion on the part of the High Court in examining the whole
matter thoroughly and in considering the documents filed by
the respective parties after inspection of the files by
consent.
It is also necessary to observe that even for executive
instructions the condition precedent is an appropriate
decision by the competent authority and we are unable to
hold that the High Court committed such a gross error of law
in holding that there was no determination by the Government
under rule 4(c) to call for interference under Article 136
of the Constitution.
We also do not feel justified in placing exaggerated
importance on the use of the words "specified quota" in some
of the correspondences relied upon by Mrs. Pappu and Mr.
Desai. We are of opinion that such a reference to "speci-
fied quota" was only a usual way of a compendious expression
to facilitate identification of the subject matter of the
proposal of the Ministry of Works & Housing in the course of
long correspondence between the several authorities.
Mrs. Pappu also strenuously submitted that the High
Court should have dismissed the writ application on the
ground of inordinate delay. We are not satisfied that the
writ application was liable to be dismissed on the ground
of inordinate delay in the entire circumstances of the case
and in particular when we find that the Government didnot
prefer any appeal against the judgment of the High Court
even though the so-called determination of the Government
under rule 4(c) had been struck down by the High Court.
Before parting with the records we consider it proper
to point out that persons entering Government service have
the right to know where they stand with regard to their
conditions of service and future promotion. Since there is
no impediment in the way of the Government to make appropri-
ate rules regarding conditions of service, even retrospec-
tively, subject to constitutionality, keeping in view
justice and fair play to all concerned, it is a sorry sight
to find that officers in the same Service fight over the
years in courts having failed to get redress from the
Government. When officers are qualified to hold certain
posts after recruitment, according to rules, and they
have put in a number of years, without break, in the Service
to the satisfaction of the authorities, it is impermissible
to invoke a recondite rule and call it in aid to deprive a
large section of officers of the benefit of their otherwise
satisfactory service. The matter may be different when
posts in the Service are abolished, appointments to the
Service are transitory or fortuitous or incumbents are found
unsuitable for absorption. The history of this Service is
that temporary posts are first created and then after some
years they are converted into permanent posts. The Govern-
ment, therefore, cannot merely be an on-looker where it
could rightly claim to be a legitimate arbiter on its own
authority and having proper regard to all just claims. We
586
also cannot help feeling that thinking in the Ministry has
not always been uniform, sympathy waning or waxing from time
to time for reasons not always manifest.
As found above, the submissions of the appellant are
devoid of force. In the result the appeal fails and is
dismissed. We will, however, make no order as to costs.
P.B.R. Appeal dismissed.
587