S.B. Patwardhan & Others Etc. Etc. v. State of Maharashtra &… (1977)

PETITIONER:
S.B. PATWARDHAN & OTHERS ETC. ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & OTHERS
DATE OF JUDGMENT04/05/1977
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 2051 1977 SCR (3) 775
1977 SCC (3) 399

ACT

Service matter--Promotees and direct recruits--Rule that

"the probationer recruited directly to the service of Engi-

neer Class II cadre in any year shall, in a bunch, be placed

senior to promotees confirmed during that year"--Validity

of--If quota rule applicable for recruitments should be

applicable at the time of confirmation in the same cadre.

HEADNOTE

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 II 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 II

service shall be either by direct recruitment or by promo-

tion from (i) the Bombay Subordinate Engineering Service

(ii) permanent or temporary supervisors and (iii) tempo-

rary 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 vacan-

cies, seniority should be determined with reference to the

date of their promotion to the substantive vacancies provid-

ed 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 vis a promoted officer was determined not

according to the date of confirmation but according to the

principles laid down in the Rules of 1941, i.e., with refer-

ence 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 Class 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 were to be con-

firmed after two. years in their respective cadets. The

rules also provided that the ratio of appointments by nomi-

nation and promotion to both classes shall, as far as prac-

ticable, be 75:25. Rule 8(i) says that the various catego-

ries which manned the Class II sub-divisional posts were

being compiled into two lists: (i) of Bombay Service of

Engineers, Class 11 cadre of permanent Deputy Engineers and

(ii) of officiating Deputy Engineers. The future recruit-

ment 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 Subordinate 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-qualified persons

had to have to their credit service of not less than 3, 8

and 13 years respectively. For confirmation as a Deputy

776

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 probationers recruited di-

rectly to the Bombay Service of Engineers, Class II cadre 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 inter se seniority of direct recruits

and promotees.

On December 19, 1970 the State Government passed a

resolution superseding the resolution of 1960. Rule 33 of

the 1970 rules provides that the seniority list in respect

of each of Class I and Class II shall consist of: Part A

confirmed officers and Part B, not confirmed officers, that

Part A shall be arranged with reference to the year of

confirmation and confirmed officers shall be treated as

senior to the unconfirmed officers in the respective

cadre and Part B, names shall be arranged with reference to

the date of continuous officiation 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 May 1, 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. In 1965

the Government of Gujarat modified the 1960 rules in exer-

cise 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 from 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.

The two appellants who were recruited as Overseers in

1953 were promoted temporarily as Deputy Engineers in 1959

and 1957 and were confirmed as Deputy Engineers in 1970.

Respondents Nos. 2 and 3, who were direct 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 1959 and 1957,

respondents 2 and 3, who were appointed in 1963 and 1959

were shown as senior to them and that their (the appel-

lants’) 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(iii) 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 rules nor 1963 rules had any application to them

and that under the 1960 rules which 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. 8(iii) of the

1960 rules.

HELD:I (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 instructions, which,

unlike rules regulating recruitment and conditions of serv-

ice framed under the proviso of Art. 309 of the Constitution

or s. 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

777

does not mean that the two sets of rules must be deemed to

have been made 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-E]

(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 seniority as between appointees re-

cruited from different sources. Rule 10 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 compari-

son with the direct recruits. [790 E-G]

equally in the matter of seniority because whereas, promo-

tees rank for seniority from the date of their confirmation,

seniority of direct recruits is reckoned from the date of

their initial appointment. 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 seniority. A

promotee ranks below the direct recruit even if be 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 avail-

able substantive vacancy before the appointment of the

direct recruit. [789 B-D]

2(a) The 1941 resolution expressly. governed the senior-

ity of direct recruits and promoted officers in all provin-

cial services except the Bombay Service Engineers, Class

I. Since Deputy Engineers do not belong to Class service,

their seniority was governed by the Resolution. [791 A]

(b) The wording of the Resolution leaves no doubt that

the Government of Bombay applied two different standards

for fixing inter se seniority of direct recruits and promo-

tees appointed as Deputy Engineers, The former were enti-

tled to reckon their seniority with effect from the date of

their initial appointment on probation while the seniority

of the latter had to be determined 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 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]

that the 1941 rules were modified by the letter dated Janu-

ary 11, 1949. The Chief Secretary’s letter cannot improve

the promotees’ case. [791 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 differ-

ent 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 opening

sentence of paragraph 2 of the Chief Secretary’s reply

shows that he was referring to a class of service in which a

quota system was then operating, which did not apply either

under the 1939 or under the 1941 rules to Engineering Serv-

ices. [792 A-C]

778

3(a) Clause 8(iii) is highly discriminatory against

promotees and accords preferential treatment 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 is primarily a matter of

rules and regulations governing the particular service in

relation to which the question regarding the composition of

a cadre arises. [793 E]

Bishan Sarup Gupta v. Union of India, [1973] 3 S.C.C.

1 and A. K. Subraman v. Union of India, [1975] 2 S.C.R. 979

referred to.

Ganga Ram & Ors. v. Union of India, [1970] 3 S.C.R. 481

distinguished.

Engineers do not belong to Class II of the Bombay and

Gujarat Service of Engineers. [794 A]

(d) The contention that in view of cll. (i) and (ii) of

r. 8 of the 1960 rules 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". Consequent-

ly 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 offici-

ating 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 Engineer 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 as 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 re-

cruits appointed in that year" would apply to initial ap-

pointments 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 latter as officiating Deputy Engi-

neers, but once that is 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 propor-

tion 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 he

appointed as officiating Deputy Engineer. The rule cannot

be construed to mean that for every three confirmations of

Deputy Engineers not more than one promotee can be confirmed

as Deputy Engineer. [795 F-H, 796 A]

A. K. Subraman v. Union of India [1975] 2 S.C.R. 979 fol-

lowed.

(f) Though drawn from two different sources, the direct

recruits and promotees constitute in the instant case a

single integrated cadre. They discharge identical func-

tions, 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 shall in a bunch be treated as senior to

promotees confirmed in that year. This formula gives to the

direct recruit even the benefit of his one year’s period of

training and another year’s period of probation for the

purposes of seniority and denies to promotees the benefit of

their long and valuable experience. If there was some

intelligible ground for this differentiation bearing nexus

with efficiency in public services, it might perhaps have

been possible to sustain such a

779

classification. Instead of adopting an intelligible

differentia, r. 8 (iii) leaves seniority to be determined

on the sole touchstone of confirmation. Confirmation is one

of the inglorious uncertainties of government service de-

pending neither.on efficiency of the incumbent nor on the

availability of substantive vacancies.

In the instant case officiating Deputy Engineers were not

confirmed even though substantive vacancies were available

in which they could have been confirmed. [796 C-G]

(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 specialised service. Were it so, the Government

would not have itself reduced the proportional representa-

tion 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

apprehension justified that the higher echelons of engi-

neering service will in course of time be manned predomi-

nantly 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

eligible 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-C]

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 distin-

guished.

In the instant case rule 8(ii) adopts seniority-cure-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 confirma-

tion. That under Arts. 14 and 16, is impermissible and,

therefore, r. 8(iii) must be struck down as unconstitu-

tional. [797 G-H]

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, therefore, the State Government

had no power or authority to apply the criterion of seniori-

ty fixed under the 1960 rules, after their repeal by 1963

rules. The quota system was the very essence of 1960 rules

and if it was desired to abrogate that system it is un-

likely that the 1963 rules will not even refer to those of

1960. The rules of 1941 having been expressly superseded

by 1963 rules, it is difficult to accept that along with

the 1941 rules the resolution of 1963 would not have re-

ferred to the 1960 rules also. Secondly, the resolution of

1970 of the Government of Maharashtra expressly superseded-

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

confirmation, is open to the same objection as r. 8(iii) of

the 1960 rules and must be struck down for identical rea

sons. [800 A-B]

6. The circulars dated January 12, 1961, March 15, 1963

and October 18, 1968 which the promotees want to be enforced

were issued by the Finance Department and being in the

nature of inter-departmental communications they cannot

confer any right on the promotees. [800 A-B]

7. The High Courts were right on the view that the

rules under consideration do not in any manner violate the

provisions 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 amendment by the rules of

780

1965 was rightly 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 A]

Bachan Singh v. Union of India, A.I.R. 1973 S.C. 441 inap-

plicable.

JUDGMENT

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).

C. As. Nos. 285-287 of 1974.

(From the Judgment and Order dated the 14-7-1973 of

the Gujarat High Court in S.C.A. No. 1418/71, 422/70 &

1099/69 respectively).

K. K Singhvi in CA 1113/74, ,4. K. Garg, S.C. Agarwal and

V.J. Francis for the appellants in CAs 1113/and 242/74 & 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 287/74.

M.C. Bhandare and M.N. Shroff, for respondent’s 1 and 2 in

CA 1113/74.

M.V. Paranjpe, 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 Kailash Mehta, for

the appellants in CAs 285 to 287774 and for the respondents

No. 2 and 3 in CA 242/74.

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 of 1974.

The Judgment of 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 ’to 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 Maha-

rashtra is by certificate granted by the High Court of

Bombay under Art. 133(1) (a) & (b) of the Constitution.

Civil Appeals Nos. 242 and 285-287 of 1974 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 judg-

ment dated 15th, 16th and 17th January, 1974. The four

Gujarat appeals arise out of

781

Special Civil Applications Nos. 1099 of 1969, 422 of 1970

and 1418 of 1971 which were disposed of by a Full Bench

of the Gujarat High Court by its judgment dated July 14,

1973.

The complexity of the questions involved in these ap-

peals has been expressed by the Bombay High Court by

saying that the writ petitions before it involved "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 "unrivailed 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 the familiar question of seniority in

service, the competing groups being promotees on the one

hand and direct recruits on the other, to the posts of

Deputy Engineers. The writ petitions were filed and de-

fended by the rival groups in a representative capacity so

that, our decision will bind not only the parties thereto

but all others whom, under the relevant provisions of the

Code of Civil Procedure, they were permitted to represent.

Taking the facts of the Maharashtra case, the two appel-

lants therein were. initially recruited as Overseers in 1953

and were promoted temporarily as Deputy Engineers, in Janu-

ary 1959 and October 1957 respectively. They were con-

firmed 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 Deputy 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, respondents 2 and 3 were shown as

senior to them in the Cadre of Deputy Engineers though they

were appointed later in 1963 and 1959 respectively. ’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 flamed by the Maharashtra

Government on April 29, 1960 cannot take away the right

which had accrued to them under the rules existing fat 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 aS being violative of Arts. 14 and 16

of the

782

Constitution. They also challenge the 1970 rules on the

ground that they lack approval of the Central Government,

thereby violating the proviso to s.81 (6) of the Bombay

State Reorganisation Act of 1960. According to the appel-

lants, 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, broad-

ly, 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 employ-

ees 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

75 : 25 under the 1960 rules which had super-

seded the earlier rules of 1939. Therefore, ac-

cording to them, the question of seniority of the

appellants could not possibly arise until they were con-

firmed, and seniority has to be fixed from the respective

dates of confirmation in terms of rule 8(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 the 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 Deputy Engineers was much too large.

In order to rectify the somewhat unsatisfactory position,

the State Government, according to its contention, framed

the 1970 rules, altering the ratio of direct recruits and

promotees from 75: 25 to 34: 66, as a result of which sever-

al 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 ac-

cording to the prescribed ratio, those vacancies were duly

filled in from amongst the officiating Deputy Engineers and

they were given anterior dates of, confirmation with effect

from the dates when the vacancies had actually occurred.

The respondents disputed that rule 8(iii) of the 1960 rules

and rule 33 of 1970 rules were unconstitutional or otherwise

invalid.

Before examining the merits of these contentions 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 background 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 of Engineers, (iii)Supervisors, both

permanent and temporary, and (iv) temporary Engineers,

appointed annually. The Bombay Subordinate Service of

Engineers consisted of non-gazetted Class III employees, in

which 2 posts used to be filled in annually by direct re-

cruitment 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

783

rank of temporary Overseers. On March 22, 1937 the Govern-

ment 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 1I.

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, Superin-

tending Engineer and Executive Engineer, and the junior

posts of Assistant Engineers. Class II Service consisted 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 Execu-

tive Engineers in Class I Service and the posts 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 Engi-

neers (Class 1 and Class II)." The rules appear at Item 53

is Section V of A endix C to the Bombay Civil Services

Classification and Recruitment Rules under the heading

"Bombay Service of Engineers."

Rule 2 of the 1939 Rules laid down the method of re-

cruitment 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 Engineer-

ing, 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 guar-

antee 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 Serv-

ice, ( 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

from amongst the students of the College of Engineering,

Poona, who have passed the examination for the Degree of

B.E. (Civil). Every such candidate recruited by nomination

was required by rule 14 to serve intially as a "candidate"

for one year on the expiry of which period he would be

appointed as a Deputy Engineer on probation for one year.

On the satisfactory completion of the probationary period,

the candidate would be eligible for confirmation as a Deputy

Engineer.

784

The guarantee envisaged by rules 2(a) and 10(a) of the 1939

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.

By a resolution dated November 25, 1950 the Government of

Bombay appointed a Committee under the Chairmanship of Shri

Gurjar to examine the, question of future recruitment to

Engineering Services, Classes I and II. That Committee

submitted its recommendations to the Government after

prolonged deliberations but since the implementation of the

recommendations had to be deferred, the Government started

making appointments to both classes of services by direct

recruitment through the Public Service Commission. Such

appointments were made from the year 1950. As stated earli-

er, 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 fact, for an

early and effective achievement of the target it became

necessary to make appointments of several temporary Execu-

tive Engineers 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 of, the bones of

contention between the parties is whether these temporary

posts of Deputy Engineers were additions to Class II cadre,

even if temporary, or whether the temporary posts were

wholly outside the cadre of Class II Service. It is neces-

sary to mention at this stage that appointments as officiat-

ing 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 officiat-

ing Deputy Engineers. The direct appointments were made

only to permanent posts because such appointees were prom-

ised confirmation after two years from the date of appoint-

ment, 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 rules of

recruitment to Bombay Service of Engineers Class I and

Class II. These rules continued the existing division of

Engineering Services into Class I and Class II and they

provided that appointments to both classes of service should

be made by nomination as well as by promotion. As regards

appointments by nomination it was provided that they should

be made through competitive examination held by the Public

Service Commission and that for both the classes of service

there should be a common examination. Candidates recruited

directly were to be confirmed after two years in their

respective cadres, if otherwise found fit. The resolution of

1960 was signed by Under Secretary to the Government, "By

order and in the name of the ’Governor of Bombay."

785

The rules regarding recruitment to Class I and Class II

Engineering Service were set out in the Appendix to the 1960

Resolution. Rule 1 of those rules provided that appointments

to both classes of services shall be made either by nomina-

tion 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 ap-

pointed to either of the services by nomination 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 Engi-

neers in Class I or 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 competi-

tive examinations were to be appointed in Class I service

according to the number of vacancies declared for such

recruitment in that cadre while candidates securing the next

higher places were to be offered appointments to Class II

service. Rule 6 of the 1960 Rules read 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 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 fitness and length. of serv-

ice being available.

(ii) For absorption into Class I, a Class II

officer must be in the permanent Bombay

Service of Engineers, Class II cadre, should

have at least 15 years’ service to his credit

in Class II in temporary and permanent

capacities, and should be holding an officiat-

ing divisional rank, at the time of such

absorption. On such absorption, the Class

II officer shall be confirmed as an Executive

Engineer.

(iii) The seniority of the Class II promo-

tees shall be fixed below the bunch of the

Assistant Engineers, any one of whom is duo

for confirmation as Executive Engineer during

the calendar year, provided that an Class II

promotee shall be placed senior to a direct

recruit to Class I Assistant Engineer who

has been officiating as Executive Engineer

from a date earlier than the class II promo-

tee. In the latter ease, the Class II promo-

tee though holding a post and lien as a

confirmed Executive Engineer shall be

786

shown both under Permanent Executive Engineers

and also along with the directly recruited

Class I Assistant Engineers, with a suitable

remark under the permanent Executive Engi-

neers list. This is also subject to further

conditions as in paragraph 7 below."

In spite of the provisions contained in rules 2 and 6,

sufficient number of direct recruits ,to Class I service

were not available, which caused the apprehension that for

the next few years it may not be possible to fill 75% of the

superior posts from amongst direct recruits to Class I. In

order to meet this. situation, it was provided by rule 7

that, as far as possible, promotions as officiating Execu-

tive Engineers shall be so made that the promotee under

consideration from Class II has to his credit at least 6

years’ longer service than a promotee under consideration

from Class I, subject, generally, to the condition that a

Class I officer shall not hold a divisional rank at less

than 4, and a Class II officer at less than 7 years’ serv-

ice. Clause (iii) of rule 7 emphasised that if any promo-

tions were made from Class. II to Class I service to the

confirmed posts of Executive Engineers beyond the quota

available to Class II service personnel, there, would have

to be a consequent reduction in the promotion of Class II

employee.s to Class I appointments in the following years in

order to work up the overall percentage of 75:25. Clause

(iv) of rule 7 provided that if any confirmation is made

from the bunch of temporary Executive Engineers. who had no

lien on any cadre, such confirmation shah be counted

against the quota of 25% which was meant for the non-direct

recruits to Class I service.

Since the challenge to the vires of rule 8(iii) has

occupied the best part of the arguments and since the High

Court of Bombay and Gujarat have differed on that question

it would be necessary to set out the whole of rule 8.

"8. (i) The Sub-Divisional posts in the

Department are at present manned by direct

recruits. to Bombay Service of Engineers,

Class II cadre, Deputy Engineers confirmed

from subordinate Service of Engineers, the

temporary Deputy Engineers recruited by the

Bombay Public Service Commission, Officiating

Deputy Engineers and similar other

categories.. These various categories are

being compiled into two lists only, viz.

Bombay Service of Engineers Class 11 cadre of

permanent Deputy Engineers and a list

of officiating Deputy Engineers. The future

recruitment to Bombay Service of Engineers,

Class II cadre, shall be made by nomination of

candidates recruited direct by competitive

examination, held by the Commission and by

promotion from the list of officiating Deputy

Engineers. The number of such promotions

shall be about one third the number of direct

recruits appointed in that year.

(ii) All direct recruitment, of temporary

Deputy Engineers having been stopped, further

officiating vacancies will be

787

manned from the ranks of the subordinate

Service of Engineers. For this purpose, a

State wide Select Seniority list will be

maintained of members of the Subordinate

Service of Engineers cadre, considered fit to

hold sub-divisional charges. The list shall be

compiled as on 30th June each year.

For inclusion in this list, a graduate shall

have to, his credit not less than 3, a Diploma

holder not less than 8, and a non-qualified

person not less than 13 years’ service as

Overseer.

For confirmation as a Deputy Engineer, the

officer would be expected to have put in not

less than 3 years’ service as officiating

Deputy Engineer.

(iii). The probationers recruited directly to

the Bombay Service of Engineers, Class II

cadre in any year shall, in a bunch, be placed

senior to promotees confirmed during that

year."

The Rules of 1960 were made by the Government of Bombay

on April 29, 1960 and within two days thereafter, that is,

on May 1, 1960 State of Bombay was bifurcated into the

States of Maharashtra and Gujarat. With a view to avoiding

any administrative difficulty, the Government of Gujarat

passed a resolution on May 1, 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 by that Government. The

Rules of 1960 were amended by the Government of Gujarat

by a notification dated August 21, 1965 issued in the exer-

cise of powers conferred by the proviso to art. 309 of the

Constitution. By that notification, the Government of

Gujarat introduced a new clause, clause 10, in the Rules of

1960 providing that candidates selected through the competi-

tive examination and appointed to posts in the Gujarat

Service of Engineers, Class I and Class II, shall if so

required, be liable to serve in any Defence Service or post

connected with the defence of India, provided that such a

candidate shall not be required to serve as aforesaid after

the expiry of ten years from the date of his appointment or

after attaining the age of 40 years. The terms of this

Gujarat amendment are not the subject of controversy but it

became necessary to refer to the amendment since it is

argued that even if the Rules of 1960, being in the nature

of executive instructions, did not have statutory force,

those rules acquired a statutory character by being

recognised and amended by the notification of August 21,

1965 which was issued under the proviso to art, 309 of the

Constitution.

On the bifurcation of the State of Bombay, 181 permanent

and 220 temporary posts of Deputy Engineers were allocated

to the state of Gujarat. In practice however, 99 permanent

posts of Deputy Engineers were vacant in the State of Guja-

rat against which confirmation had to be made by that Gov-

ernment. Some of the Deputy Engineers who were promoted to

those posts from lower ranks were also allocated to the

Stare of Gujarat and several of them having

788

completed three years’ qualifying service had become eligi-

ble for confirmation under rule 8(ii) of the 1960 Rules.

But they were denied confirmation in spite of their long

service and in spite of the existence of clear vacancies in

substantive posts of Deputy Engineers. Since the quantum of

pension also depended in those days on the average substan-

tive pay, the denial of confirmations to the promotee Deputy

Engineers led to great dissatisfaction amongst them. Some,

who had officiated in those appointments for several years,

had to retire without being confirmed. On March 28, 1961

the Government of Gujarat passed an order provisionally

confirming 37 officiating Deputy Engineers with effect from

May 1, 1960. On August 7 1968 it confirmed another batch

of 26 officiating Deputy Engineers with retrospective effect

from May 1, 1960 and directed that the order of provisional

confirmation dated March 28, 1961 shall be treated as

final.

In so far as the Gujarat appeals are concerned there are

no further rules or resolutions to be considered. But the

Government of Maharashtra issued two. resolutions after the

bifurcation of the State of Bombay. On July 29, 1963 it

passed a resolution laying down principles of seniority and

on December 19, 1970 it passed a resolution superseding the

resolution passed by the Government of Bombay on April 29,

1960. Rule 33 of the 1970 rules provides:

"Seniority

33. There shall be two parts of the seniority

list in each cadre in Class I and Class 11

viz. Part A of confirmed officers and Part B

of those who are not confirmed.

(a) In Part A the names shall be arranged with

reference to the year of confirmation.

(b) The confirmed officers shall be treated as

senior to the unconfirmed Officers in the

respective cadre.

cadre, the names shall be arranged with refer-

ence to the date of continuous officiation

except where a promotion in an officiating

capacity was by way of purely temporary or

local arrangement."

In Gujarat, there are no resolutions corresponding to, those

of 1963 and 1970 issued by the Maharashtra Government.

Civil Appeal No. 1113 of 1974 by the promotees arises

court of the judgment dated January 17, 1974 of the Bombay

High Court dismissing SpeCial Civil Application No. 815, of

1972 filed by them against the State and the direct re-

cruits. Four Special Civil Applications were filed in the

Gujarat High Court which were disposed of by it by a common

judgment dated July14, 1973. S.C. As. Nos. 1099 of 1969. 422

of1970 and 957 of 1970 were filed by the direct recruits

while S.C.A. No. 1480 of 1971 was filed by the promotees.’

The promotees failed in the Bombay High Court but succeeded

in the Gujarat High Court. Both the High Courts have granted

certificates of fitness for filing appeals in tiffs Court.

789

Before us, Mr. K.K. Singhvi and Mr. R.K. Garg appeared

for the promotees while Mr. M.V. Paranjpe and Mr. M.K.

Ramamurti appeared for the direct recruits. Mr. M.C.

Bhandare appeared for the State of Maharashtra and Mr.

D.V. Patel for the State of Gujarat. Mr. Patel took a non-

contentious attitude, which highlights how difficult it was

for the State counsel to support any particular cause in

view of the shifting stand taken up by both the State Gov-

ernments from time to time.

Several points were raised be,fore us and a large number

of decisions were cited in support thereof, but the main

question for decision in these appeals is whether departmen-

tal promotees and direct recruits appointed as Deputy Engi-

neers in the Engineering Services of the Governments of

Maharashtra and Gujarat belong to the same class so that

they must be treated with an even hand or whether they

belong to different classes or categories and can justifia-

bly be treated unequally. Concededly, they are being treated

unequally in the matter of seniority because whereas, promo-

tees rank for seniority from the date of their confirmation

the seniority of direct recruits is reckoned from the date

of their initial appointment. The disparity is indeed so

glaring that though direct recruits have to successfully

complete a two years’ probationary period before confirma-

tion, even that period is not excluded while counting their

seniority. A promotee ranks below the direct recruit even

if he has officiated continuously as Deputy Engineer for

years before the appointment of the direct recruit is made

and even if he, the promotee, could have been confirmed in

an available substantive vacancy before the appointment of

the direct recruit.

Learned counsel for the direct recruits have stoutly

defended the preferential treatment accorded to them by

contending, inter alia, that since the promotees do. not

belong to Class II service until they are confirmed, they

have no fight to. rank for seniority along with the direct

recruits who enter that class or cadre on the very date of

their initial appointment. The fact that the Government

did not confirm a particular promotee even though a substan-

tive vacancy was available in which he could have been

confirmed cannot, according to the direct recruits, make any

difference to that position.

For facilitating a proper understanding of this problem

it is necessary to take bird’s eye-view of the various rules

and resolutions which were passed by the two State Govern-

ments, most of which we have already noticed. In this be-

half, attention has to be called particularly to: (1) The

rules framed by the Government of Bombay on September 21,

1939 under s. 241 (2)(b).of the Government of India Act,

1935; (2) The rules framed by the Government of Bombay on

November 21, 1941 regarding fixation of seniority (3) The

letter dated January 11, 1949 written by the Chief Secra-

tary, Government of Bombay, to the Honorary Secretary,

Bombay Civil Service Association: (4) The Resolution of the

Government Of Bombay dated April 29, 1960 containing Rules

regarding recruitment of Class I and Class II Engineering

Services and regarding fixation of seniority; (5) The

790

Resolution of the Government of Maharashtra dated July 29,

1963 laying down principles of seniority; (6) The Notifi-

cation dated August 21, 1965 issued by the Government of

Gujarat under the proviso to. art. 309 of the Constitu-

tion, introducing clause 10 in the Rules of 1960; (7) The

Resolution of the Government of Maharashtra dated December

19, 1970 superseding the Resolution of April 29, 1950 and

framing new rules of seniority; and (8) The Circulars

dated January 12, 1961, March 15, 1963 and October 18, 1968

issued by the Government of Maharashtra, converting a cer-

tain number of temporary posts into permanent posts from

time to time.

It is common ground that except the Bombay Rules dated

September 21, 1939 and the Gujarat Notification dated August

21, 1965 the rest of the rules are in the nature of execu-

tive instructions. The Rules of 1941, 1960, 1963, 1965 and

1970 were not framed by the State Government concerned 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 does not lend support to the

construction faintly suggested on behalf of the direct

recruits that the two sets of rules must be deemed to have

been made under art. 309 of the Constitution. All execu-

tive action of the Government of a Stale is required by art.

166 of the Constitution to be taken in the name of the

Governor. The appeals have therefore to be disposed of on

the basis that except for the Bombay rules dated September

21, 1939 and the Gujarat Notification dated August 21, 1965

the remaining rules, whether of recruitment or of seniority,

are in the nature of executive instructions. These in-

structions, unlike rules regulating recruitment and condi-

tions of service framed under the proviso to art. 309 of the

Constitution or s. 241(2)(b) of the Government of India

Act, 1936, cannot have any retrospective effect.

The 1939 rules called "Recruitment Rules of the Bombay

Service of Engineers (Class I and Class II)" have constitu-

tional authority but being rules made to regulate the

methods of recruitment", they afford no assistance in

finding a solution to the rival claims to seniority laid by

the promotees and direct recruits. The rules neither fix a

quota for recruitment from the two, avenues nor do they

provide, in any other manner, a guideline for fixation of

seniority as between appointees recruited from different

sources. Rule 10 on which the promotees rely as affording

to them a guarantee in the matter of promotion is also

beside the point because the crux of their 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.

By its resolution dated November 21, 1941 the Government

of Bombay, Political and services Department, directed that

in the case of direct recruits appointed substantively on

probation, the seniority should be determined with reference

to the date of appointment on probation while in the

case of officers promoted to "substantive vacancies",

the seniority should be determined with reference to the

date of their promotion to the substantive vacancies, pro-

vided there has been no break in their service prior

to their confirmation in those vacancies. This Reso-

lution expressly

791

governed the seniority of direct recruits and promoted

officers in all provincial services except the Bombay Serv-

ice of Engineers, Class I Since Deputy Engineers do not

belong to Class I Service, their seniority was governed by

the Resolution. The wording of the Resolution leaves 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 appointment on probation while

the seniority of the latter had to be determined 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 purposes of seniority, the promo-

tees had to depend firstly on the availability of substan-

tive 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

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-Consti-

tution era, such hostile treatment had to be suffered si-

lently as a necessary incident of government service.

It is curious that though the 1941 rules expressly

recite that the principles contained therein should be

observed in determining the seniority of direct recruits and

promoted officers in the provincial Services except the

Class I Bombay Service of Engineers, Shri L.M. Ajgaonkar,

Deputy Secretary to the Government of Maharashtra says in

his affidavit dated July 25, 1973 that in practice the Rules

of 1941 were never applied to Class II officers in the

Engineering Service and that their seniority used to be

determined by the same rules by which the seniority of Class

I officers was determined. It is difficult to accept this

bare statement which is not even supported by a proper

verification. Shri Ajgaonkar’s affidavit contains an omni-

bus and rolled-up clause of verification at the end, which

detracts from the weight of his assertion.

Turning next to the letter dated January 11, 1949 writ-

ten by the Chief Secretary, Government of Bombay, to the

Honorary Secretary, Bombay Civil Service Association, we

find it difficult to uphold the claim of the _promotees that

the Rules of 1941 were modified by that letter. The

letter was written in answer to, the representation dated

July 28, 1948 made by the Bombay Civil Service Association

to, the Government of Bombay regarding emergency recruitment

to the Indian Administrative service and "other matters".

Paragraph 2 of the letter says that promotees can have no

grievance in the matter of seniority since the seniority of

a direct recruit to the cadre of "Deputy Collectors" vis-a-

vis a promoted officer is 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 continious officiation in the ease of pro-

moted officers. In the first place,

792

this part of the letter on which the promotees rely deals

expressly and exclusively with the case of Deputy Collectors

which makes it difficult, without any further data, to

extend the benefit of what is said therein to Deputy Engi-

neers, working in an entirely different branch of govern-

ment service. The Chief Secretary’s letter is a reply to

the Association’s letter which the promotees did not pro-

duce. 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.

Lastly the opening sentence of paragraph 2 of the Chief

Secretary’s reply shows that he was referring to a class of

service in which a quota system was then operating. Admit-

tedly, the quota system properly so-called, did not apply

either under the 1939 or under the 1941 rules to Engineering

Services. The Chief Secretary’s reply cannot, therefore

improve the promotees’ case. But we disapprove that instead

of explaining the circumstances in which the reply was sent,

the State Government should merely say through Shri Ajgaon-

kar’s affidavit that it craves "leave to refer" to the reply

for its "true effect". The Government could surely have

produced the letter of the Association which would have set

this part of the controversy at rest.

That takes us to the 1960 Rules which are the meat of

the matter. We have already extracted rules 6 and 8 fully

but it will be necessary to recapitulate briefly the scheme

of the 1960 rules. Under these rules, the,ratio of ap-

pointment by nomination and promotion of both Class I and

Class II Engineering Services was fixed, as far as practica-

ble, at 75: 25. Candidates appointed by nomination, i.e.

direct recruits, were to be on probation for two years out

of which, normally, one year was to be spent on training.

On satisfactory completion of probation, the direct recruits

were to be confirmed as Assistant Engineers in Class I or as

Deputy Engineers in Class II, as the case may be. For ab-

sorption in Class I, a Class II officer had to be in the

permanent Bombay Service of Engineers, Class II cadre. He

was further required to have at least 15 years’ service to

his credit in Class II in temporary and permanent capaci-

ties. In addition to these qualifications, he has to be

holding, at the time of his absorption in Class 1, an offi-

ciating divisional rank. On such absorption the Class II

officer was to be confirmed as an Executive Engineer. The

Rules of 1960 show that the seniority of Class II promotees

was to be fixed below the bunch of Assistant Engineers, any

one of whom was due for confirmation as an Executive Engi-

neer during the calendar year. But no Class II promotee

could be placed above a direct recruit recruited to Class

I, who was officiating as Executive Engineer from a date

earlier than the Class II promotee,

Rule 8(1) says that the various categories which manned

the Class I sub-divisional posts were being compiled into.

two lists: (i) One list of Bombay Service of Engineers Class

1I cadre of permanent Deputy Engineers and (ii) the other

list of officiating Deputy Engineers. The future recruit-

ment 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,

793

in the ratio of 2/3rd and 1/3rd respectively. After recit-

ing that direct recruitment of temporary Deputy Engineers

was stopped, rule 8(ii) provides that further officiating

vacancies would be manned from the ranks of the Subordi-

nate Service of Engineers. For this purpose a statewise

Select Seniority List was to be maintained of members to the

Subordinate Service of Engineers, considered fit to hold

subdivisional charge. For inclusion in this list graduates,

diploma holders and non-qualified persons had to have to

their credit Service of not less than 3, 8 and 13 years

respectively. For confirmation as a Deputy Engineer the

officer was expected to have put in not less than three

years’ service as officiating Deputy Engineer. Then comes

the much-debated clause (iii) of rule 8:

"(iii) The probationers recruited directly to

the Bombay Service of Engineers, Class II

cadre in any year shall, in

a bunch, be placed senior to promotees con-

firmed during that year.

It is patent that this clause is highly discriminatory

against promotees and accords a preferential treatment to

direct recruits. Its principal justification is said to be

that persons who are promoted as officiating Deputy Engi-

neers do not belong to Class II cadre so long as they are

not confirmed as Deputy Engineers, whereas direct recruits

appointed on probation as Deputy Engineers enter that class

or cadre on the very date of their appointment since, on

satisfactory completion of probation, confirmation is gua-

ranteed to them. This contention needs careful examination.

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 is primarily a matter of rules

and regulations governing the particular service in relation

to which the question regarding the composition of a cadre

arises. For example, in Bishan Sarup Gupta v. Union of

India(1) the cadre of Income Tax officers Class I, Grade II

was held by this Court to consist of both permanent and

temporary pests. Similarly, in A.K. Subraman v. Union of

India, (2) while holding that the cadre of Executive Engi-

neers in Class I Central Engineering Service consisted both

of permanent and temporary posts, it was pointed out by this

Court that a cadre may consist of permanent posts only or

"sometimes, as is quite common these days, also of temporary

posts". Counsel for direct recruits relied upon a decision

of this Court in Ganga Ram & Others v. Union of India(3) for

showing that a cadre cannot consist of temporary posts but

that decision rested on the finding, arising out of the

rules contained in the Indian Railway Establishment Manual,

that direct recruits and promotees constitute different

classes. The question which we have to consider at this

stage is not whether direct recruits and promotees appointed

as Deputy Engineers in the Bombay and Gujarat service of

Engineers belong to different classes but Whether officiat-

ing Deputy Engineers belong to class II cadre at all.

(1) [1973] 3 S.C.C. 1

(2) [1975] 2 S.C.R. 979

(3) [1970] 3 S.C.R. 481

794

On the state of the record in the Bombay and Gujarat

appeals, such as it is, we find it difficult to hold that

officiating Deputy Engineers do not belong to Class 1I cadre

of the Bombay and Gujarat Service of Engineers. In the

Maharashtra writ petition, 815 of 1972, as many as four

affidavits. were filed on behalf of the State Government by

Shri L.M. Ajgaonkar. These are dated July 25, December

17, December 21, 1973 and January 17, 1974. The question

whether officiating Deputy Engineers belong to Class II

cadre was of the essence of the dispute in the High Court

and was squarely raised by the promotees. Yet, in none of

the affidavits did the State Government say that they did

not belong to Class II cadre. The last affidavit dated

January 17, 1974 was filed after the High Court had dictated

its judgment in open Court for three days, and even then the

affidavit is significantly silent on the question. The

only explanation of this can be that according to the State

Government, officiating Deputy Engineers belong to Class II

cadre. The resolution dated November 8, 1962 issued by the

Government of Maharashtra. Buildings and Communications

Department, shows unmistakably that even temporary posts of

Deputy Engineers were treated as temporary additions to

Class II cadre. An additional Division with four subdivi-

sions was sanctioned by that resolution for construction of

a section of National Highway No. 8. Temporary posts had

therefore to be created for that project for a period of one

year. The resolution says that "The posts of Executive

Engineers and Deputy Engineers should be treated as tempo-

rary additions to their respective cadres."

In so far as the Gujarat appeals are concerned, Shri

N.S. Nagrani, Under Secretary to the Government of Gujarat,

P.W.D., filed an affidavit dated April 28, 1970 in one of

the writ petitions, 422 of 1970. He says in that affidavit

that "temporary posts are to be treated as temporary

additions to the respective cadres of B.S.E. Class I and

Class II", that "permanent posts are not created anew but

come into existence by the conversion of the existing tempo-

rary posts into permanent posts" and that "both the tempo-

rary posts and permanent posts are two categories of posts

belonging to the same cadre". To the similar effect is the

affidavit dated June 22, 1970 made in another writ petition,

1099 of1969, by Shri A.R. Bhatt, Under Secretary to, the

Government of Gujarat, P.W.D. He says therein that "there

are no separate categories of permanent and temporary posts

of Deputy Engineers. Temporary post of Deputy Engineers

are treated as temporary additions to the G.S.E. Class II

cadre." Pleading on behalf of the Gujarat Government, Shri

Bhatt stoutly resisted the claim of direct recruits that

they had prior claim for consideration for promotion to the

posts of Executive Engineers on the ground that they belong

to the Class II cadre while the officiating Deputy Engineers

do not.

We cannot ignore these sworn assertions made solemnly by

officers of the Maharashtra and Gujarat Governments. The

fact that the permanent strength of the. cadre was deter-

mined on the basis of permanent posts at any given time, as

for example when the Bombay

795

Government passed resolutions on March 22, 1937 and April

13, 1945 cannot detract from the position that even tempo-

rary posts of Deputy Engineers were treated as additions,

though temporary, to Class II cadre. The government offi-

cers who swore the affidavits knew of these resolutions and

yet they were instructed to state, a position Which they

contended for more then once, that officiating Deputy

Engineers belonged to Class II cadre.

The learned counsel for the direct recruits laid great

emphasis on the lists referred to in clauses (i) and (ii) o[

rule 8 for showing that officiating Deputy Engineers do not

belong to Class 11 cadre of Engineering Service. This

contention has to be rejected since the point is concluded

by a decision of this Court in P.Y. Joshi v. State of

Maharashtra. (1) It was contended in that case on behalf

of direct recruits that officiating Deputy Engineers could

only be considered as promoted to the grade of Deputy Engi-

neers on confirmation and therefore the 7 years’ qualifying

service which they had to put in before being promoted as

officiating Executive Engineers must be reckoned from the’

date of their confirmation as Deputy Engineers in support of

this contention reliance was placed in that case on

clause (ii) of rule 8 and it was argued that no person could

be "promoted" as a Deputy Engineer unless he was first put

in the list of officiating Deputy Engineers. This argument

was squarely dealt with and repelled by this Court by hold-

ing that the list referred to in clause (ii) of rule 8 is

the same list which is referred to in the latter part of

clause (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 rule 7 to the post of

officiating Executive Engineer if he had put in 7 years’

qualifying service. The eligiblity for promotion did not

require that the officiating Deputy Engineer must have put

in 7 years’ service after the date of his confirmation.

It must necessarily follow that "promotion" which the

latter part of rule 8(i) relating to future recruitment

speaks of means promotion as an officiating Deputy Engineer

from the Select List prepared under clause (ii) of rule 8.

A person thus promoted from the Select List as an officiat-

ing Deputy Engineer is as full and complete a member of the

Class II cadre as a person directly appointed as a Deputy

Engineer. In tiffs view of the matter, the prescription

contained in the closing sentence of rule 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 latter as officiating

Deputy Engineers, but once that is done, the quota rule

would cease to apply with the result that confirmations in

the posts of Deputy Engineers are not required to be made in

the proportion in which the initial appointments had

(1) [1970] 2 S.C.R. 615

796

to be made. Thus rule 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 construed to mean that. for every three

confirmations, of Deputy Engineers, not more than one promo-

tee can be confirmed as Deputy Engineer. In A. K. Subraman

(supra) it was held by this Court, while interpreting rules

relating to Central Engineering Service Class I, that though

in cases where recruitment is made from different sources

the quota system can be validly applied, the quota rule was

to be enforced at the time of initial recruitment to the

posts of officiating Executive Engineers and not at the time

of their confirmation. The Court further observed that

there was a well recognised distinction between promotion

and confirmation and that the tests to be applied for the

purposes of promotion are entirely different from those that

had to be applied at the time of confirmation.

If officiating Deputy Engineers belong to Class II cadre

as much as direct recruits do and if the quota system cannot

operate upon their respective confirmation in that cadre, is

there any valid basis for applying different standards to

the members of the two group for determining their seniori-

ty? Though drawn from two different sources, the direct

recruits and promotees constitute in the instant case a

single integrated cadre. They discharge identical functions,

bear similar responsibilities and acquire an equal amount of

experience in their respective assignments. And yet clause

(iii) of rule 8 provides that probationers recruited during

any year shall in a bunch be ’treated as senior to promo-

tees confirmed in that year. The plain arithmetic of this

formula is that a direct recruit appointed on probation say

in 1966, is to be regarded as senior to a promotee who was

appointed as an officiating Deputy Engineer, say in 1956,

but was confirmed in 1966 after continuous officiation till

then. This formula gives to the direct recruit even the

benefit of his one year’s period of training and another

year’s period of probation for the purposes of seniority and

denies to promotees the benefit of their long and valuable

experience. If there was some intelligible ground for this

differentiation bearing nexus with efficiency in public

services, if might perhaps have been possible to sustain

such a classification. It is interesting that time and

again the State Governments themselves found it difficult to

justify the hostile treatment accorded to the promotees. In

various affidavits filed on their behalf, entirely contra-

dictory contentions were taken, sometimes in favour of the

promotees and sometimes in favour of direct recruits. In-

stead of adopting an intelligible differentia, rule 8 (iii)

leaves seniority to be determined on the sole touchstone of

confirmation which Seems to us indefensible. Confirmation

is one of the inglorious uncertainities of government serv-

ice depending neither on efficiency. of the incumbent nor on

the availability of substantive vacancies. A glaring in-

stance widely known in a part of our country is of a distin-

guished member of the judiciary who was confirmed as a

District Judge years after he was confirmed as a Judge of

the High Court. It is on the record of these writ petitions

that officiating Deputy Engineers were not confirmed even

though substantive vacancies were available in which they

could have been confirmed. It shows that confirmation does

not have to conform to any set rules and whether an employee

should be confirmed or not depends on the sweet will and

pleasure of the government.

797

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 specialised service. Were it so, the Government

would not have itself reduced the proportional representa-

tion gradually so as to tilt the scales in favour of promo-

tees. Besides, the plea that engineering service is a spe-

cialised service is made not by the Government but by direct

recruits who, obviously, are interested in so contending.

Nor indeed is the apprehension justified that the higher

echelons of engineering services 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 4 years’

service and are eligible for confirmation as Executive

Engineers after a total service of 9 years. Promotees can

hardly ever match with that class in terms of seniority.

Learned counsel for direct recruits relied on the deci-

sion of this Court in B.S. Gupta v. Union of India(1) where

it was observed that when recruitment is made from several

sources, it may be necessary in the public interest to

depart from the normal rule of seniority and to provide that

dates other than the dates of appointment will determine

inter se seniority of officers. These observations have to

be understood in the context which the Court itself clari-

fied by saying that the, problem before it was not of dis-

crimination in the matter of promotion from an integrated

service constituted from two sources but the problem was of

integrating two sources in one service by adjusting inter se

seniority (p. 115). Besides, the rule of seniority pre-

scribed in that case was not shown to suffer from the in-

firmity from which rule 8 (iii), suffers.

Reliance was also placed by the direct recruits on

another decision of this Court in V.B. Badami v. State of

Mysore,(2) in which it was held that in cases where rules

prescribe a quota between direct recruits and promotees,

confirmations for substantive-appointments can only be

made in clear vacancies occurring in the permanent strength

of the cadre and that confirmed persons have to be treated

as senior to those who are officiating. This decision is

distinguishable because it is based on the consideration

that rule 9 of the Probation Rules of 1957 provided for

confirmation of a probationer as a full member of the serv-

ice in any substantive vacancy in the permanent cadre and

that rule established the exclusion of temporary posts from

the cadre (p.822). Since the cadre consisted of permanent

posts only, confirmation in permanent posts necessarily

determined the inter se seniority of officers.

Rule 8(ii) in the instant case adopts the

seniority-cum-merit test for preparing the statewise Select

List of seniority. And yet clause (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 of

the Constitution, is impermissible and therefore we.must

strike down rule g(iii) as being unconstitutional.

(1) [1975] 1 S.C.R. 104

(2) [1976]1 S.C.R. 815

798

On July 29, 1963 the Government of Maharashtra in its

General Administration Department passed a resolution super-

seding the rules of November 21, 1941 and framing new rules

for determining the inter se seniority of direct recruits

and promotees. Paragraph A of the 1963 resolution provides

that the seniority of direct recruits and promoted officers

should be determined according to the date of appointment on

probation in the case of direct recruits and according to

the date of promotion to officiate continuously in the case

of those appointed by promotion, irrespective of whether the

appointments are made in temporary or in permanent vacan-

cies. Paragraph B of the resolution says that a list of

services in respect of which special orders for fixation of

seniority are in force and to which the resolution will not

apply would be issued in due course.

It is contended on behalf of the Maharashtra promotees

that the rules of 1963 superseded the 1960 rules by neces-

sary implication and therefore the State Government had no

power or authority to apply the criterion of seniority fixed

under the 1960 rules after their repeal by the 1963 rules.

This contention has not only the merit of plausibility but

is apparently supported by an observation in P. Y. Joshi

(supra) case. We are however satisfied that the Bombay High

Court was right in rejecting the contention. The quota

system was the very essence of 1960 rules and if it was

desired to abrogate that 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 the 1963 rules, it

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 dated December 19, 1970 of

the Government of Maharashtra expressly superseded the 1960

rules which shows that the latter were in force until 1970

and were not superseded by the 1963 rules. In fact, 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. It is true that in P.Y.

Joshi’s case (supra) it was observed that the 1963 rules

repealed those of 1960 but that is a mere passing observa-

tion. The question in regard to such repeal did not arise

for decision in that case and it appears that no argument

whatsoever was addressed to the Court on this question.

None of the considerations mentioned by us were placed

before the Court in that case. We therefore agree with the

High Court that the 1960 rules were not superseded by those

of 1963. We have already indicated that in Gujarat there is

no resolution corresponding to that of 1963.

In the Gujarat writ petitions it was argued that the

1960 rules, though originally in the nature of executive

instructions, acquired a statutory force and character by

reason of their amendment by the rules of 1965 which were

made by the Governor of Gujarat in exercise of the power

under the proviso to Art. 309 of the Constitution. This

argument was rightly rejected by the High Court because all

that was done by the rules of 1965 was to introduce a new

rule, rule 10, in the 1960 rules. The rules of 1960 were

neither reiterated nor re-enacted 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 be rules of 1960

with a view to

799

adopting them. In Bachan Singh v. Union of India(1), on

which the direct recruits rely, the amendment made vital

changes in the main fabric of the original rules which led

this Court to the conclusion that the original rules became

statutory rules by incorporation. This question is not

relevant in the Maharashtra appeal since there are no rules

in Maharashtra corresponding to those of 1965 in Gujarat.

The challenge to rule 33 of the rules dated December 19,

1970 framed by the Government of Maharashtra is based on

grounds identical with those on which the validity of rule

8(iii) of the 1960 rules was assailed. The rules of 1970,

which supersede the rules of 1960, were framed in order (i)

to alter the ratio between direct recruits and promotees

which was "causing hardship" to promotees; (ii) to correct

the manifest error resulting from the fact that "A large

number of temporarily promoted officers both in Class I and

Class II could not be confirmed in spite of permanent vacan-

cies being available"; and (iii) to ensure the efficiency of

the engineering services as a whole. Rule 6 provides

briefly that officers who are confirmed in or who have a

lien on a post will be members of the Maharashtra Service of

Engineers Class I or Class II as the case may be- Those who

do not have such a lien and who may be officiating in any

one of the cadres of Class I or Class II will be treated as

temporary members of their respective cadres. Rules 7 to 11

deal with direct appointments to the posts of Assistant

Engineers Class I and Assistant Engineers Class II. By rule

11, such appointees are to be confirmed after a training of

one year and a further probation for a period of not less

than one year in their respective cadres. Rules 12 to 23

deal with appointments by promotion to Class 11 service.

Rule 12(a) as amended by the Government resolution dated

January 20, 1972 provides that the cadre of Deputy Engineers

will consist of (i) all officers confirmed upto the date of

commencement of the rules as Deputy Engineers, whether

actually working in or only having a lien on the posts; (ii)

all direct recruits who have been appointed upto the date of

commencement of the rules on probation against permanent

posts of Deputy Engineers (iii) all officers who were offi-

ciating as Deputy Engineers on 30th April, 1960, provided

their promotions prior to 30th April, 1960 are not deemed to

be fortuitous; and (iv) those who were not promoted prior to

30th April, 1960, but who have been included in the Select

Lists for the period prior to 30th April 1900 of Overseers

fit to be Deputy Engineers. RuIe 12(c) fixes the ratio

between direct recruits and promotees at 34: 66 instead of

75: 25 as under the 1960 rules. Rule 33 called "Seniority",

which we have extracted already, provides that there shall

be two parts of the seniority list in each cadre in Class I

and Class Ii, part A of confirmed officers and part B of

those who are not confirmed. In part A the names are to be

arranged with reference to the year of confirmation. Con-

firmed officers are to be treated as senior to the uncon-

firmed officers in the respective cadres. In part B the

names are to be arranged with reference to the date of

continuous officiation except where promotion in an offici-

ating capacity is by way of a purely temporary or local

arrangement.

(1) A.I.R. [1973] S.C. 441

800

Rule 33, in so far as it makes seniority dependent upon

the fortuitous circumstance of confirmation, is open to the

same objection as rule 8(iii) of the 1960 rules and must be

struck down for identical reasons.

The circulars dated January 12, 1961, March 15, 1963

and October 18, 1969 which the promotees want to be enforced

are issued by the Finance Department and being in the

nature of inter-departmental communications, they cannot

confer any right on the promotees. The Bombay High Court

was therefore right in not accepting this part of the promo-

tees’ case.

We also agree with the view taken by the High Courts of

Bombay and Gujarat, for the reasons mentioned by them, that

the rules under consideration do not in any manner violate

the provisions of the Bombay Reorganisation Act, 11 of 1960.

The proviso to s. 81 (6) of that Act says that the condi-

tions of service applicable to any person allotted to the

States of Maharashtra or Gujarat shall not be varied to his

disadvantage except with the previous approval of the Cen-

tral Government. Neither the rules of 1960 and much less the

rules of 1970 alter the conditions of service of Deputy

Engineers to their disadvantage within the meaning of the

proviso.

We are not unmindful of the administrative difficulties

in evolving a code of seniority which will satisfy all

conflicting claims. But care ought to be taken to avoid a

clear transgression of the equality clauses of the Constitu-

tion. The rules framed by the State Governments were con-

stitutionally so vulnerable that the administration was

compelled to adopt inconsistent postures from time to time

leaving the employees no option save to resort to courts for

vindication of their rights. In this process, courts, high

and low, had to discharge functions which are best left to

the expertise of the appropriate departments of the Govern-

ment. Having struck down certain rules, we do not want to

take upon ourselves the task of framing rules of seniority.

That is not the function of this Court and frankly it lacks

the expertise and the data to do so. We how. ever hope that

the Government will bear in mind the basic principle that if

a cadre consists of both permanent and temporary employees,

the accident of confirmation cannot be an intelligible

criterion for determining seniority as between direct re-

cruits and promotees. All other factors being equal, con-

tinuous officiation in a non-fortuitous vacancy ought to

receive due recognition in determining rules of seniority as

between persons recruited from different sources, so long as

they belong to the same cadre, discharge similar functions

and bear similar responsibilities. Saying anything beyond

this will be trespassing on a field which does not belong to

the courts.

We would like to clarify that the list of seniority, for

the period till November 1, 1956, prepared by the Maharash-

tra Government by its resolution dated April 10, 1970 has

been approved by the Government of India. That list would

therefore govern the seniority of direct recruits and promo-

tees as on November 1, 1956. Secondly, it seems to us

difficult to uphold the direction given by the Gujarat High

Court that interim promotions made during the pendency of

writ petitions should not be disturbed until the expiration

of one month from the date of the seniority as finally fixed

by the Government and intimated to the con-

801

cerned parties. Interim promotions which do not comply with

the constitutional requirements and which under the judgment

of the Gujarat High Court are bad cannot be permitted to

stand. We accordingly set aside that direction.

These then are our reasons in support of the order which

we passed on January 31, 1977. That order reads thus:

"Civil Appeal No. 1113 of 1974 is filed by the promo-

tees and it arises out of special Civil Application No. 815

of 1972 filed by them in the Bombay High Court. We set

aside the judgment of the High Court and allow the appeal.

Civil Appeal No. 286 of 1974 is filed by direct re-

cruits and it arises out of Special Civil Application No.

1099 of 1969 filed by them in the High Court of Gujarat. We

confirm the judgment of the High Court and dismiss the

appeal.

Civil Appeal No. 287 of 1974 is filed by direct re-

cruits and it arises out of Special Civil Application No.

422 of 1970 filed by them in the High Court of Gujarat. We

confirm the judgment of the High Court and dismiss the

appeal.

Civil Appeal No. 242 of 1974 and Civil Appeal No. 285

of 1974 are cross appeals. Both of these appeals arise out

of Special Civil Application No. 1418 of 1971 which was

field by the promotees in the High Court of Gujarat. Civil

Appeal No. 242 of 1974 is filed by the promotees in this

Court challenging the decision of the Gujarat High Court to

the extent to which they failed. Civil Appeal No. 285 of

1974 is filed by the direct recruits challenging the afore-

said decision to the extent to which the High Court allowed

the reliefs claimed by the promotees. We allow Civil Appeal

No. 242 of 1974 partly and dismiss Civil Appeal No. 285 of

1974.

The reasons in support of the conclusions to which we

have come in these appeals will be given later. The extent

to which the appeals are allowed or dismissed will become

clear from those reasons.

There will be no order as to costs in any of the appeals."

P.B.R.

707SCI/77--2500-1-12-77--GIPF.

802

[1977] 3 S.C.R.

S.B. Patwardhan & Others Etc. Etc. v. State of Maharashtra & Others