{"id":116759,"date":"1974-12-11T00:00:00","date_gmt":"1974-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-k-subraman-ors-etc-vs-union-of-india-and-ors-on-11-december-1974"},"modified":"2018-07-04T09:50:08","modified_gmt":"2018-07-04T04:20:08","slug":"a-k-subraman-ors-etc-vs-union-of-india-and-ors-on-11-december-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-k-subraman-ors-etc-vs-union-of-india-and-ors-on-11-december-1974","title":{"rendered":"A. K. Subraman & Ors. Etc vs Union Of India And Ors on 11 December, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
A. K. Subraman & Ors. Etc vs Union Of India And Ors on 11 December, 1974<\/div>\n
Equivalent citations: 1975 AIR 483, \t\t 1975 SCR (2) 979<\/div>\n
Author: P Goswami<\/div>\n
Bench: Goswami, P.K.<\/div>\n
           PETITIONER:\nA.   K. SUBRAMAN & ORS.\t ETC.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT11\/12\/1974\n\nBENCH:\nGOSWAMI, P.K.\nBENCH:\nGOSWAMI, P.K.\nREDDY, P. JAGANMOHAN\nBHAGWATI, P.N.\n\nCITATION:\n 1975 AIR  483\t\t  1975 SCR  (2) 979\n 1975 SCC  (1) 319\n CITATOR INFO :\n R\t    1977 SC 251\t (33,39)\n RF\t    1977 SC2051\t (38)\n D\t    1979 SC1073\t (15)\n RF\t    1980 SC1561\t (27)\n RF\t    1980 SC2056\t (73)\n R\t    1981 SC 357\t (4)\n RF\t    1981 SC 561\t (69,72)\n R\t    1983 SC 881\t (43)\n E\t    1984 SC1291\t (7,9,13,15,19,21,23,28,32,36)\n R\t    1984 SC1595\t (24)\n F\t    1985 SC1019\t (18,19)\n D\t    1985 SC1558\t (24,28)\n RF\t    1985 SC1605\t (16)\n D\t    1985 SC1681\t (5)\n RF\t    1987 SC2359\t (9)\n D\t    1988 SC 268\t (27)\n D\t    1990 SC1607\t (19,21,25)\n RF\t    1991 SC1202\t (30)\n RF\t    1991 SC1244\t (7,10)\n\n\nACT:\nCivil Service-Seniority, whether to follow length of service\nor  confirmation Quota\trule  whether  implies\trotational\nformula-Whether vacancies means vacancies in permanent posts\nonly  or  it includes vacancies in  temporary  posts  also.-\nMemorandum of Home Ministry dated 22-6-1949 and\t 22-12-1959-\nMemorandum  of Ministry of Works.  Housing and Supply  dated\n8-12-1960.\nDistinction between promotion and confirmation.\nFor  recruitment  through  two\tsources\t whether  quota\t  is\ninterdependent\tor independent-Constitution  Article  77(3)-\nEffect\tof  Memorandum\tissued by Ministry  other  than\t one\nempowered under Allocation of Business Rules.\n\n\n\nHEADNOTE:\nThe petitioners who were Assistant Engineers (Class II) were\npromoted  to  officiate as Executive Engineers\tin  Class  I\nCentral\t Engineering  Service  by  a  properly\t constituted\nDepartmental  Promotion Committee.  Respondents 4 to  66  we\ninitially recruited as Assistant Executive Engineers Class I\nand  were promoted to the grade of Executive Engineer.\t The\nvacancies  in  the grade of Executive Engineer can  only  be\nfilled\tby  promotion from the aforesaid two grades  in\t the\nratio of 75 % and 25%.\tThe relevant rule reads as under :-\n\"75  per  cent of the vacancies in the\tgrade  of  Executive\nEngineer, Class 1, shall be filled by promotion of Assistant\nExecutive  Engineers  Clause I., the rest of  the  vacancies\nbeing  filled by promotion and or by transfer in  accordance\nwith parts 4 and 5 of the rules respectively\".\nThere  are  no statutory seniority rules.   The\t petitioners\nware  shown  as junior to respondents No. 4 to 66  and\tthey\nwere  not  considered for promotion to the  higher  post  of\nSuperintending\tEngineer, although they have been  Executive\nEngineers  for longer period by following the quota rule  at\nthe stage of confirmation.\nThe  petitioners  contended that their seniority  should  be\ndetermined in accordance with the Home Ministry's Memorandum\ndated 22-6-1949. i.e., the length of service put in by\tthem\nin the grade of Executive Engineer.\nIt was contended on behalf of the respondents.\n(1)  In the quota rule there is an implied rotational system\nby which only at the time of confirmation of the petitioners\nas  Executive  Engineers  the seniority\t may  be  fixed\t in-\naccordance with the quota.\n(2)  Reliance was also placed on the Office Memorandum dated\n8-12-1960  issued  by  the Ministry of\tWorks,\tHousing\t and\nSupply\taccording  to which confirmation was to be  made  by\napplying rotational method in working out the quota rule.\n(3)  Vacancies\tin  quota  rule\t means\tonly  vacancies\t  in\npermanent posts.\n(4)  Quota rule applies at the stage of confirmation and the\nseniority would be relatable to confirmation.\n(5)  One  third quota cannot be filled in until\t and  unless\ntwo third quota is available and filled in.\n(6)  Since the petitioners had their lien in Class II  posts\nthey  cannot be expected to belong to 2 grades at  the\tsame\ntime.\n(7)  Memorandum dated 22-6-1949 has no application since  it\nwas  issued  is\t order to safeguard  the  interests  of\t the\ndisplaced government servants.\n980\nHELD:\n(1)  When recruitment is from two or several sources  there\nis  so inherent invalidity in introduction of  quota  system\nand to work it out by a rule of rotation.  The existence  of\na  quota  and  rotational rule by itself  will\tnot  violate\nArticle 14 or Article 16 of the Constitution. [993 E]\nMervin Coutinho and Govind Dattatraya Kelkar cases  referred\nto.\nIt is the unreasonable implementation of the same which\t may\nin  a given came attract the frown of the  equality  clause.\n[993 E-F]\n(2)  The  Memorandum dated 8-12-1960 issued by the  Ministry\nof Works, Housing and Supply has not emanated from the\tHome\nMinistry  which\t is the appropriate department\tfor  issuing\ninstructions n ,service matters under Allocation of Business\nRules  of the Central Government framed under Article  77(3)\nof  the Constitution.  The said Memorandum also refers to  a\nnotification dated 22-11-1960 of the Home Ministry which ha-\n, not been produced.  The said Memorandum, therefore. cannot\nbe  availed  of.   The High Court wrongly  relied  upon\t the\nMemorandum dated 8-12-1960. [987 B-D]\n(3)  Words  \"vacancies in the grade of\tExecutive  Engineer\"\ninclude both vacancies in the permanent posts as well as  in\ntemporary  posts since the cadre consists of both  permanent\nand  temporary posts.  The quota rule will be enforced\twith refer\nence  to vacancies in all posts, whether permanent  or\ntemporary, included in the sanctioned strength of the  cadre\n(except\t such  vacancies as are purely of  a  fortuitous  or\nadventitious nature). [991 H-992 A; 994 C-D]\n(4)  The quota rule will be enforced at the time of  initial\nrecruitment   in  officiating  capacity\t to  the  grade\t  of\nExecutive Engineer and not at the time of confirmation. [994\nB-C]\n(5)  The  argument that one third quota cannot be filled  in\nunless\ttwo third quota was exhausted was negatived  as\t the\nargument if accepted would introduce sterility in the  quota\nrule so far as the promotees are concerned.  Their hopes and\naspirations  cannot  be related to the availability  of\t the\ndirect\trecruits to fill two third quota.  Each\t quota\twill\nhave to be worked independently on its own force.  The\tword\n\"rest'\tin the quota rule cannot be pressed into service  to\ndefect\tthe object of the rule coming in aid of\t advancement\nof prospects of promotees. [991 A-B]\nThe case of Bishan Sarup Gupta applied.\n(6)  There   is\t  a  well-recognised   distinction   between\npromotion and confirmation.  The tests to be applied for the\npurposes   of  promotion  and  confirmation   are   entirely\ndifferent. [989 F-G]\n(7)  Memorandum\t dated\t22-6-1949  will\t clearly  apply\t and\nMemorandum  dated  22-12-1959  is  not\tapplicable  in\tthis\nparticular case. [985 F-G]\nUnion of India & Ors. v. Ravi Varma and others<\/a>, etc., [1972]\n2 S.C.R. 992, followed\n(8)  In\t view  of  the judgment in  the\t Writ  Petition\t the\nJudgment  of  the  full Bench of Delhi High  Court  was\t set\naside. [994 H]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL  JURISDICTION:\t Writ  Petition\t No.  489  of  1972.
\nPetition Under Article 32 of the Constitution of India
\n\t\t      AND
\n\t       C.A. Nos. 1745 to 1747 of 1974
\nAppeal by Special Leave from the Judgment & Order dated\t the
\n20th  May,  1971  of Delhi High Court in  C.W.\tNo.  716\/69,
\n553\/70 and 574 of 1970.\n<\/p>\n
M.   C.\t Bhandare,  P. H. Parekh and S.\t Bhandare,  for\t the
\nPetitioner  (In WP No. 489\/72) and Appellants (In  CA.\t No.
\n1745\/74).\n<\/p>\n
981<\/span><\/p>\n
Lal  Narain Sinha, Solicitor General of India, S. N.  Prasad
\nand R.\t  N. Sachthey, for Respondents Nos. 1-3 (In WP.\t No.
\n489\/72).\n<\/p>\n
K.   S.\t Ramamurthi,  S. Balakrishnan and T. M.\t Ghatate  of
\nBala  krishnan and Ghatate, for Respondents Nos. 5, 23,\t 27,
\n31′, 53, 59 & 65 (In WP.  No. 489\/72).\n<\/p>\n
S.   Markandeya,  for Respondents Nos. 71, 73, 83,  87,\t 93,
\n94, 96, 98, 103, 107, 109 & 111-113 (In WP.  No. 489\/72).
\nP.   P. Rao, for Intervener Nos. 1-8 (In WP.  No. 489\/72).
\nP.   H. Parekh and S. Bhandare, for Intervener No. 8 (In WP.
\nNo. 489\/72).\n<\/p>\n
P. P. Rao, for the Appellants (In CAS Nos. 1746-1747\/1974).
\nBalakrishnan and N. M. Ghatate, for Respondent No. 3 (In All
\nthe Appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nGOSWAMI, J. The petitioners in Writ Petition No. 489 of 1972
\nare confirred Assistant Engineers in the Central Engineering
\nService (Class\t    11). They were promoted to officiate  as
\nExecutive Engineers in Class I between December 27, 1956 and
\nSeptember 8, 1959, by a properly   constituted\tDepartmental
\nPromotion  Committee  and  have been  working  as  Executive
\nEngineers  in  the Central Public Works\t Department  of\t the
\nMinistry  of Works and Housing of the Government  of  India.
\nExcept\tone  petitioner\t (namely, K.  G.  Chopra) all  the
\npetitioners were\t promoted to the grade of  Executive
\nEngineer prior to their confirmation as Assistant Engineers.
\nThe  respondents  4  to\t 66  were  initially recruited\tas
\nAssistant  Executive Engineers in Class I and were  promoted
\nto the grade of Executive Engineer between the period March
\n11,
\n1957 and February 23, 1966.\n<\/p>\n
The  appellants in Civil Appeals Nos. 1745 of 1974 and\t1746
\nand 1747 of 1974, who were recruited directly to Class 11 as
\na result of\t    competitive\t examination in\t which\tthey
\nhad failed to secure requisite\t\tmarks\tfor    being
\nselected for Class 1, are also confirmed Assistant Engineers
\nin Grade II and have been officiating as Executive Engineers
\nin   Grade  I. They have obtained special leave against\t the
\nFull Bench\t    judgment  of  the Delhi  High  Court  in
\ntheir writ petitions under Article\t226\t of\t the
\nConstitution decided by a common judgment of 20th May,\t    1971.
\nSince  a  common question of law is involved  in  all  these
\nmatters,       this  judgment  will  govern  all  the  above
\nmatters. We will, therefore,\t   include  the appellants
\nalso in describing them as petitioners in this\t       judgment.
\nThe  Service  with  which we are concerned  is\tthe  Central
\nEngineering    Service,\t Class I. According to\tthe  Central
\nEngineering Service, Class\t   1,\tRecruitment    Rules
\n(briefly the Rules) framed in the year 1954 by\t       S.R.O.
\n1841  dated  May 21, 1964, which are admittedly\t similar  to
\nthose  of 1949 Recruitment Rules, officers in the  grade  of
\nAssistant\t    Executive Engineer (Class I) and certain
\nAssistant Engineers (Class II)\t   are\t   eligible\t for
\npromotion to the grade of Executive Engineer
\n982<\/span>
\n(Class 1).  The vacancies in the grade of Executive Engineer
\ncan  only  be  filled by promotion from\t the  aforesaid\t two
\ngrades in the ratio of 75% and 25%.  The aforesaid quota was
\nretrospectively altered with effect from September 7,  1955,
\nto 66-2\/3% and 33-113 %.\n<\/p>\n
Part I of the Rules contains the definitions.  By Rule\t2(b)
\nthereof,  “The Commission” means the Union  Public  Service,
\nCommission.  Rule 2(c) defines “The Service” as the  Central
\nEngineering  Service, Class I. The Service includes  various
\ngrades of posts.\n<\/p>\n
\t      Rules 3, 4 and 5 relevant for our purpose\t are
\n\t      as under
\n\t      “3.  Recruitment to the service shall be\tmade
\n\t      by any of the following methods:-\n<\/p>\n
\t      (a)   By\tcompetitive examination in India  in
\n\t      accordance with Part III of these rules.\n<\/p>\n
\t      (b)   By promotion in accordance with Part  IV
\n\t      of these Rules.\n<\/p>\n
\t      (c)   By transfer in accordance with Part V of
\n\t      these Rules.\n<\/p>\n
\t      4.  (1)All appointments to the service  or  to
\n\t      posts  borne  upon the cadre  of\tthe  Service
\n\t      shall be made by Government.\n<\/p>\n
\t      (2)   Subject  to\t the provisions\t of  rule  3
\n\t      Government  shall\t determine  the\t method\t  or
\n\t      methods of requirement (sic) (recruitment?) to
\n\t      be  employed  for the purpose of\tfilling\t any
\n\t      particular  vacancies in the Service  or\tsuch
\n\t      vacancies\t therein  as may be required  to  be
\n\t      filled  during any particular period  and\t the
\n\t      number  of candidates to be recruited by\teach
\n\t      method.\n<\/p>\n
\t      Provided that all recruitments by\t competitive
\n\t      examination (vide Part HI of the rules)  shall
\n\t      be   to  the  grade  of  Assistant   Executive
\n\t      Engineer, Class I only.\n<\/p>\n
\t      Seventy-five per cent of the vacancies in\t the
\n\t      grade of Executive Engineer, Class 1, shall be
\n\t      filled  by  promotion of\tAssistant  Executive
\n\t      Engineers, Class 1, the rest of the  vacancies
\n\t      being filled by promotion and\/ or by  transfer
\n\t      in accordance with Parts IV and V of the Rules
\n\t      respectively.\n<\/p>\n
\t      5.    Appointments   to\tthe   Service\tmade
\n\t      otherwise than by promotion will be subject to
\n\t      orders  issued  from  time  to  time  by\t the
\n\t      Ministry\tof  Home Affairs  regarding  special
\n\t      representation  in the Services for  specific,
\n\t      sections of the people.\n<\/p>\n
As  noted  earlier  the\t quota\tfor  promotion\tbetween\t the
\ndirectly   recruited  Assistant\t Executive   Engineers\t and
\npromotees from Clam II, which was initially in the ratio  of
\n75%  and  25%, was later altered to 66-2\/3% and\t 33-1\/3%  in
\n1956 and with effect from April 1, 1972, the percentage\t has
\ncome to be 50:50 for a period of seven years.\n<\/p>\n
983<\/span><\/p>\n
According  to  the petitioners prior to their  promotion  as
\nExcise\tEngineers  the petitioners and respondents 4  to  66
\nwere  holding  interchangeable posts, the  nature  of  work,
\nresponsibilities,  powers  and duties discharged by  all  of
\nthem  being the same and subsequent to their  promotion\t all
\nthese  and the pay scales were identical in  every  respect.
\nPrior  to  the\tpromotion, however, the\t pay  scale  of\t the
\npetitioners  was  different  from  that\t of  the   Assistant
\nExecutive  Engineers  who  were\t already  in  Grade  1.\t The
\nAssistant  Executive  Engineers are  directly  recruited  to
\nGrade  I by competitive examination and sometimes  Assistant
\nEngineers  (Class  11)\tare  also  recruited  by  the\tsame
\ncompetitive examination to Class 11 when they cannot quality
\nwith  the  requisite  marks  to\t obtain\t entry\tin  Class  I
\nServices.  Besides, Class III Officers are also promoted  to
\nClass  11.   In\t order,\t therefore,  to\t give  incentive  of
\npromotion  to  employees  in  Class  II,  who  have  already
\ngathered experience in the service, a certain percentage  of
\nquota  is  reserved  for their promotion  to  the  grade  of
\nExecutive Engineer in the recruitment rules.
\nThe  Principal grievance of the petitioners is\tagainst\t the
\nseniority  list\t as  on 1-7-1971 (Annexure  ‘J’)  where\t the
\npetitioners  have bets shown as Junior to the respondents  4
\nto  66\t(in  Writ  Petition No. 489  of\t 1972)\tand  to\t the
\nrespondents  in\t the other two appeals.\t According  to\tthem
\nnotwithstanding\t the  fact  that  they\twere  recruited\t  by
\npromotion  to officiate in the grade of\t Executive  Engineer
\nregularly  as  a  result of selection  by  the\tDepartmental
\nPromotion  Committee  and  they bay  been  working  in\tthat
\ncapacity  for nearly 13 years or over their cases  were\t not
\nconsidered for the purpose of promotion to the still  higher
\ngrades\t in  Class  I  and  Assistant  Executive   Engineers
\nrecruited  several years after their recruitment  have\tbeen
\nheld  to  be,  senior to them and some\tof  them  have\tbeen
\npromoted to the next higher grades ignoring their claim.
\nIt  is admitted that there are no statutory seniority  rules
\nas such and both sides depend upon certain memorandum issued
\nby  the\t Government  of\t India in  the\tHome  Department  to
\nestablish their respective claims.\n<\/p>\n
According  to  the respondents it is manifest in  the  quota
\nrule  that there is ail implied rotational system  by  which
\nonly  at  the  time of confirmation of\tthe  petitioners  as
\nExecutive Engineers the seniority may be fixed in accordance
\nwith the quota.\t According to the learned Solicitor  General
\nappearing  on behalf of the Union of India the\tpetitioners,
\nwho  were confirmed in Class II, have a lien in\t that  grade
\nand  they cannot be expected to belong to two grades at\t the
\nsame   time.   It  is,\ttherefore,  only  at  the  lime\t  of
\nconfirmation against permanent vacancies that for the  first
\ntime  the petitioners may be held to have been recruited  to
\nclass  I  of  the  Service.   Since  according\tto  him\t the
\nrecruitment  is\t from  two  sources  it\t is  essential\tthat
\nrecruitment  can  only be understood within the\t meaning  of
\nthese rules to have taken place at the time of\tconfirmation
\nof  the petitioners in the superior grade, namely, Class  1.
\nNecessarily, therefore, says the learned Solicitor  General,
\nthe  quota  rule applies at the stage, of  confirmation\t and
\nseniority would be relateable to confirmation in Grade I  of
\nthe Service.\n<\/p>\n
984<\/span><\/p>\n
It  will be necessary  also to refer to rule 23 in  Part  IV
\nreferred to in rule 4(2) providing for promotion:\n<\/p>\n
\t      “23(1)  No Assistant Engineer, Class II  shall
\n\t      be  promoted as Assistant Executive  Engineer,
\n\t      Class 1.\n<\/p><\/blockquote>\n
\t      (2)   Recruitment by promotion to the Grade of
\n\t      Executive\t Engineer, Class I shall be made  by
\n\t      selection\t  from\tamong  permanent   Assistant
\n\t      Engineers in the Central Engineering  Service,
\n\t      Class   11,   after  consultation\t  with\t the
\n\t      Commission.   No officer shall have any  claim
\n\t      to such promotion as of right.\n<\/p><\/blockquote>\n
\t      (3)   No Assistant Engineer shall be  eligible
\n\t      for promotion to the Service, unless he-\n<\/p><\/blockquote>\n
\t      (a)   would,  but\t for age, be  qualified\t for
\n\t      admission to the competitive examination under
\n\t      Part III of these Rules.\n<\/p><\/blockquote>\n
\t      (b)   has\t rendered  at  least  three   years’
\n\t      services in a permanent or temporary  capacity
\n\t      as an Assistant Engineer and subordinate under
\n\t      the Central Government; and\n<\/p><\/blockquote>\n
\t      (c)   satisfies  the Commission that he is  in
\n\t      every respect suitable for appointment to\t the
\n\t      Service.\n<\/p><\/blockquote>\n
\t      4.    It shall not be necessary to consult the
\n\t      Commission,
\n\t      under this rule, in the case of any person, if
\n\t      the   Commission\t had   been   consulted\t  in
\n\t      connection with his temporary promotion to the
\n\t      Service.\n<\/p><\/blockquote>\n
The learned Solicitor General draw& our particular attention
\nto rule 23 (2) which provides that recruitment to the  grade
\nof Executive Engineer (Class 1) has to be made by  selection
\nfrom  amongst permanent Assistant Engineers in Class  H.  He
\nsubmits\t that the word ‘permanent’ in sub-rule (2)  is\tvery
\nsignificant.   Since  recruitment by promotion can  be\tmade
\nonly  from amongst permanent Assistant Engineers, there\t can
\nbe  no\trecruitment earlier when an  Assistant\tEngineer  is
\nholding\t his post in an officiating or\ttemporary  capacity.
\nAccording  to  him the petitioners could not be said  to  be
\nrecruited to Class I when they were not permanent  Assistant
\nEngineers.  Again according to him the petitioners could  be
\nconsidered  as permanent Assistant Engineers only when\tthey
\nwere confirmed in their posts in Class 11.  According to the
\nrespondents, confirmation and not officiating appointment in
\nthe  grade  of\tExecutive  Engineer  is\t sine  qua  non\t  of
\nrecruitment to Clauses.\n<\/p>\n
As stated earlier there are no statutory seniority rules  as
\nsuch.\tThe whole question will turn on the construction  of
\nrule  4\t read with rule 23 and also  any  other\t appropriate
\nadministrative instructions, issued by the Ministry of\tHome
\nAffairs\t with  regard  to  the\tprinciples  for\t determining
\nseniority.  We have already quoted the said rules.  We\thave
\nnow  to consider the Memorandum of the Home  Ministry  dated
\nJune 22, 1949 (Annexure G-1) and another similar  Memorandum
\ndated
\n985<\/span>
\nDecember  22,  1959 (Annexure G-11). The  latter  Memorandum
\ngivesan annexure containing the general principles  for
\ndetermination  of seniority in the Central Services.
\nMr. Bhandare followed by Mr. Rao relies upon the Memorandumof
\nJune 22, 1949 and agrees with the learned Solicitor  General
\nthat the  Memorandum  of  December  22,\t 1959,\tis  not
\nrelevant: But the learned Solicitor General goes further
\nto submit that the Memorandum of June 22,  1949,  is  also
\nnot relevant as it deals with seniority of displaced Government
\nservants  who have been absorbed temporarily in the  Central
\nGovernment   and  the  petitioners  do\tnot  fall  in\tthat
\ncategory.On the\t other hand, the petitioners submit  that
\nfrom the Memorandum of December 22, 1959, it is clear that
\nalthough the instructions contained in\tthe   Memorandum
\ndated June 22, 1949, were issued in order to safeguard
\nthe interests of the displaced Government servants, later on
\nas  the specific objects underlying the\t instructions  cited
\nabove have been achieved, there is no longer any  reason
\nto apply those instructions in\tpreference to  the  normal
\nprinciples for determination of seniority. The\tMemorandum
\nproceeds  “it has, therefore, been decided  in\tconsultation
\nwith the Union Public Service Commission that hereafter\t the
\nseniority  of all persons appointed to the  various  Central
\nServices after the  date of these instructions\tshould
\nbe determined in accordance with  the  General\tPrinciples
\nannexed hereto”. “The instructions contained in the  various
\noffice\tMemorandum cited in paragraph I (including that\t of
\nJune 22, 1949) above are hereby cancelled, except in, regard
\nto  determination of seniority of persons appointed  to\t the
\nvarious Central Services prior to the date of this  Office
\nMemorandum. The revised\t General Principles embodied  in
\nthe Annexure will not apply with retrospective effect, but
\nwill come into force with effect from the date\tof  issue
\nof  these orders, unless a different date in respect of\t any
\nparticular  service\/grade  from (sic  (for?)  which  revised
\nprinciples are to be adopted for purpose of determining
\nseniority has already been or is hereafter agreed to by this
\nMinistry”.\n<\/p>\n
It  is, therefore, clear that so far as the petitioners\t are
\nconcernedthe  Memorandum  of  December\t22,  1959,  is\tnot
\nattracted.  On\tthe other hand the Memorandum  of  June\t 22,
\n1949, will clearly apply (See Union of India and Others
\nv.  M.\tRavi  Varma  and Others,<\/a> etc.(1).  Para\t 2  of\tthat
\nMemorandum may now be quoted
\n“2.  The question of seniority of  Assistants
\n\t      in the Secretariat was recently examined\tvery
\n\t      carefully in consultation with  all   the
\n\t      Ministries  and  the  Federal  Public  Service
\n\t      Commission  and  the  decisions  reached\t are
\n\t      incorporated in para 8 of the instructions for
\n\t      the initial constitution of the grade of
\n\t      Assistants,  an extract of which is  attached.
\n\t      It has been decided that this rule  should
\n\t      generally be taken as the model in framing the
\n\t      rules  of seniority for other services and  in
\n\t      respect of persons employed in any  particular
\n\t      grade seniority should,\tas  a\tgeneral
\n\t      rule, be determined on the basis of the
\n\t      (1) [1972] 2 S..C.R. 992.\n<\/p>\n
\t      16–346SupCI-75
\n\t      986<\/span>
\n\t      length  of  service in that grade as  well  as
\n\t      service in an equivalent grade irrespective of
\n\t      whether  the  latter  was\t under\tCentral\t  or
\n\t      Provincial Government in India or Pakistan”.
\n\t      Paragraph\t 8 to which a reference is  made  in
\n\t      the above Memorandum reads as follows :-\n<\/p>\n
\t      “8.  Seniority  of Assistants in Grade  IV  as
\n\t      newly constituted.  The names of all  existing
\n\t      permanent\t Assistant who are included  in\t the
\n\t      permanent strength of the service and who were
\n\t      confirmed\t in their’ posts prior Lo  the\t22nd
\n\t      October,\t1943, will be arranged in the  first
\n\t      instance Ministry-wise in accordance with\t the
\n\t      rules  in\t force at present.   Such  permanent
\n\t      Assistance  will be considered senior  to\t all
\n\t      others   conferment  in  pursuance  of   these
\n\t      instructions  in\tvacancies arising  upto\t the
\n\t      22nd October, 1950.  The order of seniority of
\n\t      the latter group of Assistants, namely,  those
\n\t      confirmed after the 22nd October, 1943,  which
\n\t      will  be\tarranged in a single  list  for\t all
\n\t      Ministries, will be determined inter se on the
\n\t      basis  of their length of continuous  service,
\n\t      temporary\t  or  permanent\t in  the  grade\t  of
\n\t      Assistant or in an equivalent grade,  provided
\n\t      that  any period of service during  which\t the
\n\t      pay actually drawn exceeds Rs. 160\/- per month
\n\t      should  be  deemed to be service\tin  a  grade
\n\t      equivalent to that of an Assistant”.\n<\/p>\n
It  is\tsubmitted  on behalf of\t the  respondents  that\t the
\nquestion  of  seniority arises between\tAssistant  Executive
\nEngineers  and Assistant Engineers only when the latter\t are
\nmembers\t of ‘ the same class grade which happens only  after
\nthe   Assistant\t  Engineers  are  confirmed   as   Executive
\nEngineers.   It\t is emphasised that as\tbetween\t members  of
\ndifferent classes the question of relative Seniority  cannot
\narise.\t It is further submitted that having regard  to\t the
\nnature\tof  the scheme the rules provide that the  grade  of
\nAssistant  Executive Engineer will consists  exclusively  of
\nyoung  men  of merit proved by competitive  examination\t who
\nwill quickly after the necessary training have promotion  to
\nthe  posts of Executive Engineer and above.  In the  context
\nof that scheme rule 4 (2) requires 66-2\/3 % vacancies to  be
\nfilled by the Assistart’, Executive Engineers and “the rest”
\nby promotion of the Assistant Engineers or by transfer.\t  We
\nare  not concerned with transfer from other service in\tthis
\ncase.\tIt  is also contended that the\trule  clearly  gives
\npreference  to\tthe  extent  of\t 66-2\/3%  to  the  Assistant
\nExecutive Engineers.  It is only after their appointment  to
\nthe extent of 66-2\/3% that “the rest” comes into  existence.
\nThe  argument proceeds that it is only on  confirmation\t and
\nabsorption  of\tAssistant  Engineers in\t Class\tI  that\t the
\nquestion  of relative seniority between them  and  Assistant
\nExecutive  Ercincers  promoted as  Executive  Engineers\t can
\narise.\t It  is\t strenuously  contended\t that  an  Assistant
\nEngineer officiating as Executive Engineer cannot be  senior
\nto  an\tAssistant Executive Engineer  while  officiating  as
\nExecutive  Engineer.  Particular vacancies as and when\tthey
\ngo  on arising must be finally filled to give effect to\t 66-
\n2\/3% to Assistant Engineers and thereafter only the  residue
\nto  Assistant  Engineers  or transferred  officers.   It  is
\nstressed by the respondents that appointment by rotation  is
\ninvolved in the mandate rule 4(2) itself.\n<\/p>\n
\t\t\t    987<\/span><\/p>\n
Mr. Ramamurthi and Mr. Balakrishnan while adopting the argu-
\nments of the learned Solicitor General reply upon an  Office
\nMemorandum  of December 8, 1960, of the Ministry  of  Works,
\nHousing\t and Supply, Government of India, on the subject  of
\nprinciples for seniority in the Central Engineering  Service
\nand Central Electrical Engineering Service (Class 1) in\t the
\nCentral\t Public\t Works Department.   The  learned  Solicitor
\nGeneral\t did not address us on this Office Memorandum as  he
\nrightly found considerable difficulty in doing so.  It\twill
\nappear\tfrom the recital in this Memorandum that it has\t not
\nemanated  from\tthe Home Ministry which is  the\t appropriate
\nDepartment for issuing instructions in service matters under
\nthe  Allocation of Business Rules of the Central  Government
\nunder  Article\t77(3) of the  Constitution.   Besides,\tthis
\nOffice\tMemorandum refers to and relies upon a\tNotification
\nof November 22, 1960, of the Home Ministry, namely, U.0. No.
\n9\/38\/60-Estt(D)\t for issuing these instructions.   The\tsaid
\nNotification  of the Home Ministry could not be\t traced\t and
\nwas not produced before us and in its absence we are  unable
\nto  take  into consideration the Memorandum of\tDecember  8,
\n1960.  The learned Solicitor General is, therefore,  correct
\nin  not\t referring to the same but submitted  his  arguments
\nmainly\ton the construction of the Recruitment\tRules.\t He,
\nhowever,  did submit that what was recited in para 4 of\t the
\nMemorandum of December 8, 1960, actually followed from\trule
\n4(2) read with rule 23 and it was not, therefore,  necessary
\nat all to make any reference to this Memorandum.
\nIt  will  be  appropriate  at this stage  to  refer  to\t the
\njudgment of the Delhi High Court under appeal where the High
\nCourt relied upon the said Notification of December 8,\t1960
\nand  also accepted the arguments on the line made before  us
\nby  the\t learned Solicitor General.  The High  Court  relied
\nupon the Circular of December 8, 1960 and paragraph 7 of the
\nannexure  to the Office Memorandum of December 22, 1959,  of
\nthe  Home Ministry with regard to the relative seniority  of
\ndirect recruits and promotees and observed as-follows
\n\t      “The rotational sysstem is, therefore, firstly
\n\t      justified by rule 4 (2) itself.  Even if it is
\n\t      assumed  for the sake of argument\t that  rule,
\n\t      4(2)  is silent about the\t rotational  system,
\n\t      then  the administrative instructions make  it
\n\t      clear  that the quota system in rule 4(2)\t has
\n\t      to be worked out only by the rotational system
\n\t      and not in any other manner”.\n<\/p>\n
\t      The High Court further held as follows
\n\t      “The  case  of Shri Ojha (appellant  in  Civil
\n\t      Appeal  NO. 1745 of 1974) is that\t because  he
\n\t      was officiating as an Executive Engineer Class
\n\t      I\t from before the time the respondent  No.  9<\/span>
\n\t      started officiating Shri Ojha was entitled  to
\n\t      seniority\t not only against respondent  No.  9<\/span>
\n\t      but against the other respondents also.\tThis
\n\t      stand  is\t contrary to the last part  of\trule
\n\t      4(2) which compels the Government to fill\t the
\n\t      vacancies in the grade of Executive  Engineers
\n\t      Class   ‘I   strictly   by   rotation   system
\n\t      implementing  the quota rule.  Our  conclusion
\n\t      on  question  No. 1, therefore,  is  that\t the
\n\t      earlier confirmation and
\n\t      988<\/span>
\n\t      the higher seniority given to the\t respondents
\n\t      are legal both according to the statutory rule
\n\t      4(2)  and\t according  to\tthe   administrative
\n\t      instructions”.\n<\/p>\n
The  administrative instruction which is referred to in\t the
\nabove extract is to be found in the aforementioned paragraph
\n6  of the Circular of December 22, 1959, regarding  relative
\nseniority of direct recruits and promotees.
\nWe  have  already  made\t it clear  that\t the  Memorandum  of
\nDecember  22,  1959, is not applicable\tin  this  particular
\ncase.  We have, therefore, to examine whether it is  correct
\nto  hold that it is implicit in rule 4(2) read with rule  23
\nthat  the  rotational system is necessarily implied  to\t the
\nextent of denying seniority to the petitioners if  appointed
\nregularly earlier within their quota at the time of recruit-
\nment.\tWe  have  also to examine  the\tcorrectness  of\t the
\nsubmission as to whether the Assistant Engineers after\tthey
\nare confirmed as such and continue to hold the\tappointments
\nof Executive Engineer in regular course of selection through
\nthe  Departmental  Promotion Committee, presided over  by  a
\nmember\tof the Union Public Service Commission are  entitled
\nto   claim  seniority  vis-a-vis  the  Assistant   Executive
\nEngineers when promoted subsequent to their appointments.
\nNow  the question which arises for consideration is what  is
\nthe  meaning  of  the  words  “vacancies  in  the  grade  of
\nExecutive  Engineer” as used in the aforesaid  paragraph  of
\nrule 4(2).  When does a vacancy in the grade of.   Executive
\nEngineer arise?\t To answer this question it is necessary  to
\nascertain  what are the posts which the grade  of  Executive
\nEngineer  consists of, for the vacancies can only be in\t the
\nposts in the grade ‘of Executive Engineer.  The word “grade”
\nhas various shades of meaning in the service  jurisprudence.
\nIt  is sometimes used to denote a pay scale and sometimes  a
\ncadre.\tHere it is obviously ,used in the sense of cadre.  A
\ncadre may consists only of permanent posts or sometimes,  as
\nis  quite common these days, also of temporary\tposts.\t To
\ngive one example, the cadre of Income Tax Officers, Class 1,
\nGrade II, as pointed out by this Court in Bishan Sarup Gupta
\nv.  Union of India and Others(1) in para 18 of\tthe  report,
\nconsisted of It permanent and temporary posts”.\t Here in the
\npresent\t case it has been stated on oath by P. K.  Kulkarni,
\nUnder.\t Secretary to the Ministry of Works and Housing,  in
\nparagraph  7  of his Affidavit-inreply at page\t252  of\t the
\nPaper  Book  that “there are permanent and  temporary  posts
\nsanctioned  from  time\tto time in the\tgrade  of  Executive
\nEngineer,  Class 1. Promotions from the grade  of  Assistant
\nExecutive Engineers and\/or Assistant Engineers are initially
\nmade  in  an  officiating  capacity  against  the  available
\nvacancies,.  . . . the avail able vacancies obviously  being
\nin  the\t permanent  and\t temporary posts  in  the  grade  of
\nExecutive Engineer.  Paragraph 23 of the same  Affidavit-in-
\nreply  at page 257 of the record is also to the same  effect
\n“I  say\t that  there  are  permanent  and  temporary   posts
\nsanctioned  in\tthe-grade of Executive\tEngineer”.   It\t is,
\ntherefore,  clear  that\t the  cadre  of\t Executive  Engineer
\nconsists both of permanent posts and tempo-\n<\/p>\n
1.   [1973] 3 S.C.C. 1.\n<\/p>\n
98 9
\nrary posts.  Even from the statement of sanctioned  strength
\nof Engineering Officer Class 1, Central P.W.D., from 1960 to
\n1972  filed  by\t the  Solicitor General\t in  the  course  of
\nargument  it  is  apparent  that  the  cadre  includes\tboth
\npermanent  and\ttemporary  posts.   Whenever  therefore,   a
\nvacancy arises in a permanent post or in a temporary post it
\nwould  be a vacancy in the grade of Executive  Engineer\t and
\nthe quota rule for promotion would apply.
\nThe above conclusion at which we have reached is  reinforced
\nalso  by a reference to rule 2 of section 6 in Chapter V  at
\npage  31  of the C.P.W.D. Manual, Volume  1  (1970  edition)
\n(hereinafter  referred\tto  as the  Manual)  wherein  “every
\nofficer appointed against a permanent or temporary post”  is
\nspecifically  adverted\tto.  Again at page 35,\trule  19(b),
\nthere is a reference to Class I Direct Recruits (temporary).
\nIndeed\twe  find  an  admission\t in  paragraph\t67  of\t the
\nAffidavit-in-reply filed by P.B. Kulkarni at page 271 of the
\nrecord:\t “I submit that the quota rule is to be\t applied  as
\nand  when vacancies in the grade of Executive  Engineer\t are
\nrequired  to be filled but as already stated earlier it\t has
\nnot been possible to apply this quota rigidly at the time of
\nofficiating  promotions\t as  promotions from  the  grade  of
\nAssistant Engineer have been far in excess of their quota”.
\nIt may also be noted that it is at the stage of promotion to
\nthe grade of Executive Engineer that the quota rule is to be
\napplied.  Now there is a well-recognised distinction between
\n“promotion” and “confirmation” and that is apparent from the
\nManual,\t Chapter VI, Section 6 at pages 46-47.\tRule  6,  at
\npage  47  says that promotions by a  Departmental  Promotion
\nCommittee  on the basis of assessment of merit from a  field
\nof choice which may extend upto 5-6 times the number of\t ex-
\npected\t vacancies,   while  rule  4   provides\t  that\t the
\nconfirmation  is  subject to  satisfactory  performance\t and
\nclearance  from\t the vigilance angle  and  the\tconfidential
\ndossier of the official concerned is required to be reviewed
\nto see that the individual has been reported  satisfactorily
\nduring\tthe ‘period of last three years as may be  fixed  by
\nthe Departmental Promotion Committee for the purpose and  if
\nthe reports are unfavourable or below average, the incumbent
\nshall  ‘have  to  wait for a further period  till  he  gains
\nsatisfactory  reports.\t The tests , to be applied  for\t the
\npurpose\t of  “promotion”  and  “confirmation”  are  entirely
\ndifferent.   When promotion is made by selection, as it\t is,
\nfrom  amongst  Assistant  Engineers,  it  is  based  on\t the
\nassessment of relative merit from a field choice  consisting
\nof  the senior most persons in the lower cadre upto about  5
\nor  6  times  the number of expected  vacancies,  while\t for
\nconfirmation  the  only\t aspect considered  is\twhether\t the
\nperformance  of the incumbent is satisfactory and  there  is
\nnothing\t objectionable from the violence angle.\t Then  again
\nsection 7 of Chapter V of the Manual deals with the  subject
\nof promotion while section 8 of the same chapter deals\twith
\nthe subject of confirmation clearly recognising the distinc-
\ntion between promotion and confirmation.  Rule 4 of  section
\n7  at  page  48\t also  makes  a\t clear\tdistinction  between
\npromotion  and confirmation.  Rule 9 of the same section  at
\npage  50  lays\tdown  the procedure  for  promotion  to\t the
\nselection   posts   and\t this  procedure  has\tclearly\t  no
\napplication in cases of confirmation.  It was this procedure
\nwhich  was  apparently\tfollowed when  the  petitioners\t and
\nrespondents 67 to 118
\n9 90
\nwere  promoted as officiating Executive Engineers  from\t the
\ngrade  of Assistant Engineer.  Then rule 12 of section 7  at
\npage 52 lays down that in order to be eligible for promotion
\nas  Superintending Engineer an Executive  Engineer  promoted
\nfrom Class I Service would have to, put in “7 years’ service
\nin the grade of Executive Engineer”.  Similarly an Executive
\nEngineer  promoted from Class II service also has to put  in
\n“7 years’ service in the grade of Executive Engineer’.\tThus
\nonce   an  Assistant  Engineer\tis  regularly  promoted\t  to
\nofficiate  in the grade of Executive Engineer, there  is  no
\nfurther restriction under the rules in his next jump to\t the
\ngrade of Superintending Engineer.  Now it cannot be disputed
\nthat  for  the\tpurpose\t of  promotion\tto  the-  grade\t  of
\nSuperintending\tEngineer  7 years service in  the  grade  of
\nExecutive  Engineer would count by taking into\taccount\t not
\nonly  service rendered after confirmation in  the  permanent
\npost  of Executive Engineer but also service rendered in  an
\nofficiating  capacity  in a permanent or temporary  post  as
\nExecutive  Engineer.   This  can be explained  only  on\t the
\nhypothesis  that  the grade of Executive  Engineer  consists
\nboth  of  permanent and temporary posts and  service  in  an
\nofficiating  capacity,\there,  is service in  the  grade  of
\nExecutive  Engineer.  When an Assistant Executive,  Engineer
\nor Assistant Engineer is promoted to officiate as  Executive
\nEngineer  he is regarded as promoted to and serving  in\t the
\ngrade of Executive Engineer.  Again rule 11 of section 8  at
\npage 57 of the Manual enunciates a very important  principle
\nwhich  clearly brings out the distinction between  promotion
\nand  confirmation.   It\t says inter alia that  the  list  of
\neligibility,  is to be finalised “after keeping in view\t the
\nseniority  of the persons concerned in the post in which  he
\nis to be confirmed”.  Seniority “in the post in which he, is
\nto  be confirmed” is to be reckoned.  That means that  those
\nwho  are  to  be confirmed as  Executive  Engineers  have  a
\nseniority in the grade of Executive Engineer though they are
\nonly officiating Executive Engineers and their\tconfirmation
\nwould  follow  according to their seniority  as\t officiating
\nExecutive  Engineers  which would depend on when  they\twere
\npromoted  as  officiating Executive Engineers in  a  regular
\nmanner\twithin\ttheir quota.  It would, therefore,  be\tseen
\nthat  so  far  as this service is  concerned  promotion\t has
\nalways\tbeen  recognised  as  distinct\tfrom   confirmation.
\nDuring the course of hearing instances have been shown where
\nAssistant  Engineers  before confirmation in Class  It\thave
\nbeen regularly promoted to officiate as Executive Engineers.
\nSo  also Executive Engineers prior to their confirmation  as
\nsuch  have  been  promoted to  officiate  as  Superintending
\nEngineers.   The  process of selection by  the\tDepartmental
\nPromotion  Committee,  according to rule 9 of section  7  at
\npage  50 of the Manual is applied at the stage of  promotion
\nof  Assistant Engineers as officiating\tExecutive  Engineers
\nand not at the stage of their confirmation which is required
\nto  be made according to rule 4 of section 6 at page 46\t and
\nrule 1 1. of section 7 at page 57 of the Manual.  The  quota
\nrule  which on the plain language of the last  paragraph  of
\nrule  4(2) is to be applied at the stage of promotion  must,
\ntherefore,  be\tgiven effect to at the point  of  time\twhen
\nAssistant  Engineers and Assistant Executive  Engineers\t are
\npromoted  as officiating Executive Engineers and not at\t the
\nstage of their confirmation.\n<\/p>\n
It  is\tsubmitted by the respondents  that  one-third  quota
\ncannot\tbe filled unless the two-third quota was  exhausted.
\nThis, in our view,
\n991<\/span>
\nwill  introduce\t sterility in the quota rule so far  as\t the
\npromotees are concerned.  Their hopes and aspirations cannot
\nbe related to the availability or non-availability of  the
\ndirect\trecruits  to fill the two third quota.\t Each  quota
\nwill have to be worked independently on its own force.\t The
\nword “rest” in the quota rule cannot be pressed into service
\nto  defeat  the\t object\t of  the  rule\tcoming\tin  aid\t  of
\nadvancement of prospects of promotees in the hierapchy by of
\nthe Service.\n<\/p>\n
It  may be pointed out that even in the case of\t recruitment
\nto the cadre of Income Tax Officer, Grade II, Class 1,\tthe,
\nletter of the Government of India dated September 29,  1944,
\nwhich fixed the quota between direct recruits and  promotees
\npursuant  to rule 4 was substantially in the same  terms  as
\nthe  last paragraph of the present rule 4(2).  It is  stated
\nthat  the  recruitment to Grade 11 of Class I will  be\tmade
\npartly\tby  promotion and partly by direct  recruitment\t and
\nthat  “80%  of the vacancies arising in the  grade  will  be
\nfilled by direct recruitment and the remaining 20% vacancies
\nwill  be filled on the basis of the promotion  by  selection
\nprovided   suitable   number  of  men  are   available\t for
\npromotion”.   This  quota of 80% and  20%  was\tsubsequently
\naltered\t by  Government of India-to 66-2\/3% and\t 33-1\/3%  by
\ntheir  letter  dated October 18, 1951.\tThis Court  held  in
\nBishan\tSarup  Gupta’s case (supra) interpreting  the  quota
\nrule of 1944 and 1951 in para 18 thereof as follows
\n\t      “It  is  feebly  contended on  behalf  of\t the
\n\t      direct  recruits\tthat the quota\trule  should
\n\t      relate  to only vacancies in  permanent  posts
\n\t      and  not temporary posts.\t This contention  is
\n\t      not  accepted either by the promotees  or\t the
\n\t      department.   There is nothing in the ‘  Rules
\n\t      of  1945 or the quota rule of 1951 which\tsays
\n\t      that the vacancies must be vacancies in perma-
\n\t      nent  posts.   Indeed the\t vacancies  must  be
\n\t      permanent\t vacancies that is to say  vacancies
\n\t      which  are not for a few days, or for  a\tfew
\n\t      months  or  are otherwise\t adventitious.\t The
\n\t      whole  cadre  has consisted of  permanent\t and
\n\t      temporary\t  Posts\t  for\tyears.\t   Permanent
\n\t      vacancies are, therefore, likely to take place
\n\t      both  in\tthe  permanent\tposts  and  in\t the
\n\t      temporary\t posts.\t  In fact Mr. Dutt,  in\t his
\n\t      affidavit filed in Jaisinghani’s case (supra),
\n\t      had clearly alleged in paras 25 and 26 of\t the
\n\t      affidavit\t that all the: direct recruits\tfrom
\n\t      1948 onwards were initially appointed  against
\n\t      temporary\t posts and even at the time  of\t the
\n\t      filing  of the affidavit, i.e. on January\t 31,
\n\t      1967,  direct  recruits were  being  appointed
\n\t      against temporary posts.\tWe, therefore,\tfind
\n\t      no sufficient warrant for the contention\tthat
\n\t      the  vacancies referred to in the\t quota\trule
\n\t      are vacancies only in the permanent posts”.
\nThis  reasoning applies equally in the present case  and  it
\nmust  be  held that the vacancies referred to in  the  quota
\nrule  in the last paragraph of rule 4(2) are  vacancies\t not
\nonly in the permanent posts but also in the temporary  posts
\nin  the\t grade\tof Executive Engineer  and  the\t quota\trule
\napplies at the stage when Assistant Engineers and  Assistant
\nExecutive Engineers are promoted even if it be in an offi-\n<\/p>\n
992<\/span><\/p>\n
ciating capacity to fill vacancies in the grade of Executive
\nEngineer  irrespective\tof  whether  the  vacancies  are  in
\npermanent posts or temporary posts.\n<\/p>\n
But then the question may arise as to how the quota rule  is
\nto be applied.\tHere again we find that guidance is afforded
\nby  the decision of this Court in Bishan Sarup Gupta’s\tcase
\n(supra).   Paragraph 14 of the judgment in that\t case  deals
\nwith  this very question vis-a-vis recruitment to the  cadre
\nof Income Tax Officers, Grade 11, Class I
\n\t      “On  the other hand, the contention on  behalf
\n\t      of  the  direct  recruits\t is  that  the\treal
\n\t      intention\t of the rule was to secure  that  at
\n\t      any  given moment the service must consist  of
\n\t      direct   recruits\t  and\tpromotees   in\t the
\n\t      proportion  of 2:1.  If, for example,  in\t any
\n\t      year  50 direct recruits were appointed,\tthan
\n\t      not more than 25 promotees could be  appointed
\n\t      in  that year.  If also no direct recruit\t was
\n\t      appointed\t  in  a\t year  there  could  be\t  no
\n\t      appointment   of\tpromotees.   This  line\t  of
\n\t      argument\thas been accepted by the High  Court
\n\t      and  it was substantially on that ground\tthat
\n\t      the seniority list prepared on July 15,  1968,
\n\t      has  been set aside and directions  given\t for
\n\t      preparing\t a  fresh one.\tWhat  was,  however,
\n\t      over-looked  is that the rule,  dated  October
\n\t      18,   1951,   was\t not  concerned\t  With\t the
\n\t      constitution of the cadre but was concerned as
\n\t      to how permanent vacancies were to be  filled.
\n\t      Rule  4  of the Income-tax Class 1,  Grade  11
\n\t      Service  Recruitment  Rules  also\t refers\t  to
\n\t      recruitment of-candidates to vacancies in\t the
\n\t      service.\t The  vacancies for  any  particular
\n\t      year  being  ascertained, not  more  than\t one
\n\t      third of the same were to go to the  promotees
\n\t      and  the\trest to the  direct  recruits.\t The
\n\t      ratio  was not made dependent on\twhether\t any
\n\t      direct recruit was appointed in any particular
\n\t      year  or\tnot.  We are, therefore,  unable  to
\n\t      accept  the con construction put on the  quota
\n\t      rule  by the High Court.\tIn our opinion,\t the
\n\t      promotees\t were entitled to one-third  of\t the
\n\t      vacancies\t in any particular year\t whether  or
\n\t      not   there   was\t  direct   recruitment\t  by
\n\t      competitive examination in that year”.\n<\/p>\n
It  would, therefore, be seen that the\tAssistant  Executive
\nEngineers  were\t entitled  initially  to  three-fourth\t and
\nsubsequently  to two-third of the vacancies in the grade  of
\nExecutive  Engineers arising in any particular\tyear,  while
\nAssistant  Engineers were entitled initially to\t ,one-fourth
\nand  subsequently  to one-third of such\t vacancies  and\t the
\nratio  was  not dependent on whether any  persons  from\t one
\nclass  or  the other were, promoted or not.  If\t there\twere
\nthree  vacancies  in a year, two would go to  the  Assistant
\nExecutive  Engineers  while- one would go to  the  Assistant
\nEngineers  and\teven  if there were  no\t eligible  Assistant
\nExecutive  Engineers, who could be promoted to\tfill  in-two
\nvacancies belonging to their quota, one vacancy will have to
\nbe filled by promotion of an Assistant Engineer.  If  having
\nregard to the exigencies of the situation, the two vacancies
\nbelonging to the quota of Assistant Executive Engineers\t had
\nto  be\tfilled\tin  by\tAssistant  Engineers  for  want\t  of
\navailability of eligible Assistant Executive Engineers,
\n993<\/span>
\nthe  appointment of the Assistant Engineers to fill in\tsuch
\ntwo  vacancies\twould be irregular, because  that  would  be
\noutside their quota and in that event they would have to  be
\npushed\tdown to later years when their appointment  can\t be,
\nregularised as a result of absorption in their lawful  quota
\nfor  those years.  This is what was directed to be  done  by
\nthis  Court  for the purpose of fixing\tinter  se  seniority
\namongst direct recruits and promotees in the grade of Income
\nTax Officers Grade 11, Class 1, in Bishan Sarup Gupta’s case
\n(supra).  This Court pointed out in that case as follows  at
\npage 8
\n\t      “If  there  were\tpromotions in  any  year  in
\n\t      excess  of  the quota  those  promotions\twere
\n\t      merely invalid for that year but they were not
\n\t      invalid for all time.  They can be regularised
\n\t      by  being absorbed in the quota for the  later
\n\t      years.   That  is the reason  why\t this  Court
\n\t      advisedly\t used the expression  “and  onwards”
\n\t      just to enable the Government to push down ex-
\n\t      cess  promotions to later years so that  these
\n\t      promotions can be absorbed in the lawful quota
\n\t      for those years”.\n<\/p>\n
The  same procedure will have to be followed in the  present
\ncase.\tWhenever it is found that Assistant  Engineers\twere
\npromoted  as  officiating Executive Engineers in  excess  of
\ntheir quota they would have to be pushed down to later years
\nin  order that their promotion may be regularised  by  being
\nabsorbed in their quota for later years.\n<\/p>\n
When  recruitment is from two or several’ sources it  should
\nbe  observed  that  there  is  no  inherent  invalidity\t  in
\nintroduction of quota system and to Work it out by a rule of
\nrotation.  The existence of a quota and rotational rule,  by
\nitself,\t will  not violate article 14 or article 16  of\t the
\nConstitution  (See  Marvyn Coutinho & Ors. v.  Collector  of
\nCustoms,  Bombay  & Ors.,(1) and Govind Dattatray  Kelkar  &
\nOrs.  V. Chief Controller of  Imports & Exports & Ors.)<\/a> .(2)
\nIt is the unreasonable implementation of the same which may,
\nin  a given case, attract ,he frown of the equality  clause.
\nIf the seniority list is now properly prepared in the manner
\nindicated  in this judgment, +,here may be no  objection  on
\nthe  score of article 14 or article 16 of the  Constitution.
\nIn  this view of the matter, it is not necessary  to  pursue
\nthe  arguments addressed regarding violation of articles  14
\nand 16 of the Constitution.\n<\/p>\n
To summarise the conclusions-\n<\/p>\n
\t      (1)   When Assistant Engineers (Class 11)\t are
\n\t      initially\t appointed  in a regular  manner  in
\n\t      accordance  with\tthe rules to,  officiate  as
\n\t      Executive\t  Engineers,  their   seniority\t  in
\n\t      service in Grade I will count from the date of
\n\t      their initial officiating appointment in Class
\n\t      I\t   provided   their   initial\t officiating
\n\t      appointment as Executive Engineers was
\n\t      within their quota.\n<\/p><\/blockquote>\n
\t      (2)   Their  seniority  will not\tbe  reckoned
\n\t      from the date of their future confirmation  in
\n\t      Class 1.\n<\/p><\/blockquote>\n
\t      (1)  [1966] 3 S.C.R. 600.(2) [1967]  2  S.C.R.\n<\/p><\/blockquote>\n
\t      29.
\n\t      9 94
\n\t      The  above principle is, however,\t suspect  to
\n\t      one  reservation,\t namely,  if  an   Assistant
\n\t      Engineer\tbefore his confirmation in Class  11
\n\t      were appointed to officiate in Class I in\t the
\n\t      grade  of Executive Engineer, although  within
\n\t      his quota, his seniority will count only\tfrom
\n\t      the  date of his confirmation in Class  11  as
\n\t      permanent\t Assistant Engineer  notwithstanding
\n\t      his   earlier   officiating   appointment\t  as
\n\t      Executive Engineer.\n<\/p><\/blockquote>\n
\t      (3)   The\t quota rule will be enforced at\t the
\n\t      time of initial recruitment, in an officiating
\n\t      capacity,\t to the grade of Executive  Engineer
\n\t      and not at the time of confirmation.
\n\t      (4)   The\t quota\trule will be  enforced\twith
\n\t      reference\t to vacancies in all posts,  whether
\n\t      permanent\t  or  temporary,  included  in\t the
\n\t      sanctioned strength of the cadre (except\tsuch
\n\t      vacancies\t as  are purely of a  fortuitous  or
\n\t      adventitious nature) and the operation of\t the
\n\t      quota   rule   will  not\t depend\t  upon\t the
\n\t      availability or non-availability of  Assistant
\n\t      Executive\t  Engineers   for   appointment\t  as
\n\t      Executive Engineers.  The non-availability  of
\n\t      Assistant Executive Engineers for\t recruitment
\n\t      to  the grade of Executive Engineer  will\t not
\n\t      postpone\t the  regular  recruitment  of\t the
\n\t      Assistant\t Executive  Engineers  as  Executive
\n\t      Engineers within their quota.
\n\t      (5)   Once   the\t Assistant   Engineers\t are
\n\t      regularly appointed to officiate as  Executive
\n\t      Engineers\t within\t their quota  they  will  be
\n\t      entitled to consideration in their own  rights
\n\t      as  Class\t I Officers to\tfurther\t promotions.
\n\t      Their  “birth marks” in their earlier  service
\n\t      will   be\t of  no\t relevance  once  they\t are
\n\t      regularly\t  officiating\tin  the\t  grade\t  of
\n\t      Executive Engineer within their quota.
\n\t      (6)   If Assistant Engineers are recruited  as
\n\t      Executive\t Engineers in excess of their  quota
\n\t      in a Particular year they will be pushed\tdown
\n\t      to later years for absorption when due  within
\n\t      their quota.\n<\/p><\/blockquote>\n
In  the result the Writ Petition and the Civil\tAppeals\t are
\nallowed.  The judgment of the High Court is set aside.\t The
\nrespondents  1\tto  3  in Writ\tPetition  No.  489  of\t1972
\n(respondent No. 1 being common in the other two Appeals) are
\ndirected to amend and revise the
\n\t\t\t    995<\/span>
\nseniority  list of 1971 (Annexure ‘J’) in the light  of\t the
\ndirections in this judgment and to give effect thereafter to
\nthe revised seniority list so prepared.\t The revision of the
\nseniority  list shall not, however,. affect those  employees
\nwho  are not impleaded in the proceedings before this  Court
\nand  who have already been promoted and confirmed in  higher
\ngrades\tin  the Service.  Respondents 1 to 3  will  pay\t the
\ncosts  of the petitioners in Writ Petition No. 489  of\t1972
\nand respondent No. 1 will pay to the appellants in the Civil
\nAppeals costs through-out.\n<\/p>\n
C.M.P.\tNo. 1889 of 1974 regarding delay in filling  of\t the
\ncounter-affidavit  on  behalf of respondents 1 to 3  in\t the
\nWrit Petition is. allowed.\n<\/p>\n
We  may observe in the end that it maybe desirable that\t the
\ntime-, of this Court may not be consumed in resolving  these
\ncomplex\t tangles  in conditions of  service  breeding  human
\ndiscontent and the solution thereof is better left to a fair
\nand proper formulation of precise and’ unequivocal statutory
\nrules  after  examination  of the problems  with  a,.  broad
\nhumane approach.\n<\/p>\n
P.H.P.\t\t\t\t\t    Petitions\t and\nAppeals allowed,\n996<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India A. K. Subraman & Ors. Etc vs Union Of India And Ors on 11 December, 1974 Equivalent citations: 1975 AIR 483, 1975 SCR (2) 979 Author: P Goswami Bench: Goswami, P.K. PETITIONER: A. K. SUBRAMAN & ORS. ETC. Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT11\/12\/1974 BENCH: GOSWAMI, P.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-116759","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nA. K. Subraman & Ors. 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