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PETITIONER: P.S.MAHAL & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT23/05/1984

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S.

CITATION:  1984 AIR 1291            1984 SCR  (3) 847  1984 SCC  (4) 545        1984 SCALE  (1)949  CITATOR INFO :  E          1984 SC1527  (12)  D          1985 SC 781  (13)  F          1985 SC1019  (19)  R          1985 SC1558  (28)  RF         1985 SC1605  (16)  R          1986 SC 638  (12,24)  F          1987 SC 424  (24)  E          1987 SC2359  (16)  D          1990 SC1607  (26)  D          1991 SC 958  (13)  RF         1991 SC1202  (31)

ACT:      Executive Engineers,  Central Engineering  and  Central Electrical Engineering  Service  (Group  A)  (Regulation  of Seniority)   Rules,    1976,   brought   into   force   with retrospective effect  from 10th  December, 1974-Rules  2(ii) and 2(iv)  -Constitutional  validity  of-Whether  the  rules violate the  provisions of  Articles 14  and  16(i)  of  the Constitution.      Inter-se  Seniority  of  Executive  Engineers  promoted regularly within  their respective quota from and after 22nd December 1959  but before 11th December, 1974 from the posts of Assistant  Executive Engineers  governed by  the  Central Engineering Service  (Class-I) Recruitment  Rules, 1954  and Assistant Engineers  governed by Central Engineering Service (Class-II)  Recruitment   Rules  1954,  as  refixed  by  the Seniority List  dated August  14, 1975-Whether irregular and contrary  to  the  guidelines  indicated  in  the  decisions reported as  A.K. Subraman v. Union of India [1975] 2 S.C.R. 979=Quota rule  in Rule 4 of the Central Engineering Service (Class-I) Rules, 1954 when applicable.

HEADNOTE:      In the  Central Public Works Department of the Ministry of Works and Housing, Government of India, the promotions to the posts  of Executive  Engineers  are  made  from  amongst Assistant Executive  Engineers (Class-I)  who have  rendered more than  five years of their service in their grade on the basis of  seniority-cum  fitness  and  also  from  Assistant Engineers (Class-II) who have rendered more than eight years of service  in their  grade  on  the  basis  of  merit,  the

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selection  being   made  through  a  departmental  promotion committee presided  over by  a member  of the  Union  Public Service  Commission,  since  for  the  latter  the  post  of Executive Engineer  is a  selection post.  Promotion to  the grade of  Executive Engineers,  for the  first time, on 25th August, 1949,  a quota  in the  ratio  of  75%  to  25%  was prescribed by  the Central  Government. This  was  continued right upto the Recruitment Rules 1954 were enacted for these two  categories.  From  September  7,1955,  this  quota  was altered with retrospective effect to 66-2/3% and 33-1/3% and it was  again altered with effect from April 1, 1972 to 50 : 50 for a period of seven years.      However, at  the time  of promotions not only the quota was not  adhered to with the result that Assistant Engineers came to be promoted 848 with Executive Engineers far in excess of their quota, while there  was  a  shortfall  in  the  promotions  of  Assistant Executive Engineers,  so far  as their  quota was concerned, but all  of  them  were  treated  as  officiating  Executive Engineers.      There  was   no  statutory   rules  governing  inter-se seniority of  Executive Engineers  promoted from  these  two grades. They  were therefore,  governed  by  the  Memorandum issued by  the Home  Ministry on  June 22nd, 1949 which laid down the  general principles  of seniority applicable to all departments of  the government. The Memorandum provided that "in respect  of persons  employed in  any particular  grade, seniority should,  as a  general rule,  be determined on the basis of  length of service in that grade as well as service in an  equivalent grade  irrespective whether the latter was under  Central   or  Provincial   Government  in   India  or Pakistan." The length of continuous officiation in the grade was  thus   taken  as  the  yardstick  for  the  purpose  of determining seniority  in all  departments of the government and a  fortiorari, in  the grade  of Executive Engineers. On the basis of this yardstick, Assistant Engineers promoted as officiating Executive  Engineers within  their  quota  would clearly be  senior to Assistant Executive Engineers promoted later as officiating Executive Engineers.      Respondents 1 to 3 issued a seniority list on 1st July, 1971 in which Executive Engineers promoted from the grade of Assistant Engineers  in  regular  manner  on  the  basis  of selection  made  by  Departmental  Promotion  Committee  and within their quota were shown as junior to several Executive Engineers promoted  much later  from the  grade of Assistant Executive Engineers.  Respondents 1  to 3,  in  making  this seniority list  proceeded on  the basis  that the quota rule specified in  the last part of sub-rule (2) of Rule 4 of the Recruitment Rules  necessarily implied  a system of rotation and it  was required  to be strictly applied at the stage of confirmation in  the grade  of Executive Engineers, In other words, out  of three  vacancies in  the grade  of  Executive Engineers, unless  two reserved  for promotion  of Assistant Executive Engineers  were filled  up by confirmation of such promotees, the  third one  for confirmation  of an Assistant Engineer promoted as Executive Engineer could not be filled. Consequently, all Assistant Engineers were treated as ad-hoc appointees without any claim to seniority until such time as they were  confirmed as  Executive  Engineers  within  their quota. The  impact of this decision of Respondents Nos. 1 to 3 was  disastrous for  a large number of Executive Engineers promoted  from   the  grade   of  Assistant   Engineers   on officiating basis,  since many of them had to retire without being  confirmed   and  therefore,   without  any  claim  of

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seniority in  the  grade  of  Executive  Engineers  and  the position  continues   to  exist  till  date.  Therefore  the aggrieved Assistant  Engineers filed  a writ petition before the  Delhi   High  Court.  The  Full  Bench  of  that  Court dismissed, the  said petitions.  In the appeals, by a common judgment reported  A. K. Subraman and Ors. v. Union of India and Ors. [1975] 2 S.C.R. 979; the Supreme Court accepted the contention of  the petitioners that the quota rule was to be applied at  the stage  of initial  promotion in  officiating capacity to  the grade of Executive Engineers and not at the stage of  confirmation and that it did not necessarily imply the rotational system and since the general principles 849 for determining  seniority laid down in the Memorandum dated 22nd June,  1949 were,  on their  plain  terms,  applicable, seniority in  the grade of Executive Engineers was liable to be fixed on the basis of length of continuous officiation in that grade  as provided in the Memorandum. The Court allowed the appeal  after summarising its conclusions in the form of following six propositions namely:      (1) when  Assistant Engineers  (Class-II) are initially appointed in  a regular  manner in accordance with the rules to officiate  as Executive Engineers, their seniority in the service in Grade-I will count from the date of their initial officiating appointment  in Class  I provided  their initial officiating appointment  as Executive  Engineers was  within their quota;      (2) Their  seniority will not be reckoned from the date of their future confirmation in Class-I. The above principle is, however,  subject to  one  reservation,  namely,  if  an Assistant Engineer, before his confirmation in Class II were appointed to  officiate in Class I in the grade of Executive Engineer, although  within his  quota,  his  seniority  will count only  from the date of his confirmation in Class II as permanent Assistant  Engineer  notwithstanding  his  earlier officiating appointment as Executive Engineer;      (3) The  quota rule  will be  enforced at  the time  of initial recruitment, in an officiating capacity to the grade of Executive Engineer and not at the time of confirmation;      (4) The  quota rule  will be enforced with reference to vacancies in  all  posts,  whether  permanent  or  temporary including in  the sanctioned  strength of  the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) and the operation of the quota rule will depend upon the availability  or non availability of Assistant Executive Engineers for  appointment as  Executive Engineers. The non- availability   of    Assistant   Executive   Engineers   for recruitment to  the grade  of Executive  Engineer  will  not postpone the  regular recruitment of the Assistant Executive Engineers within their quota.      (5)  Once   the  Assistant   Engineers  are   regularly appointed to  officiate as  Executive Engineers within their quota they  will be  entitled to  consideration in their own rights as  Class I  officers to  further  promotions.  Their "birth marks"  in  their  earlier  service  will  be  of  no relevance once  they are  regularly officiating in the grade of Executive Engineer within their quota.      (6) If  Assistant Engineers  are recruited as Executive Engineers in excess of their quota in a particular year they will be  pushed down  to later years for absorption when due within their  quota." and directed the respondents Nos. 1 to 3 to amend and revise the seniority list of 1st July 1971 in the light  of the  directions given  in the  judgment and to give effect to the revised seniority list so prepared. 850

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    Respondents Nos. 1 to 3, thereafter, issued a seniority list on  14th  August,  1975  accompanied  by  a  memorandum bearing the  same date  in which  it  was  stated  that  the seniority list of Executive Engineers had been raised in the light of  the judgment  of  the  Supreme  Court  dated  11th December, 1974  in accordance  with the principle set out in the memorandum. For the purpose of determining the seniority in the  grade of  Executive Engineers  from and  after  22nd December, 1959  respondents Nos. 1 to 3 introduced the carry forward principle  and applied  the rotational  formula. The officers who  had been,  with the  concurrence of  the Union Public  Service   Commission,   officiating   as   Executive Engineers prior  to 25th August, 1949 and continued to do so thereafter  were  shown  en  bloc  senior  to  the  officers appointed after  25th August,  1949 and so far as the period between  25th  August  1949  and  21st  December,  1959  was concerned the  inter se seniority of persons promoted during that period  from the  grades  of  Assistant  Engineers  and Assistant Executive Engineers within their respective quotas was determined  in  accordance  with  the  length  of  their regular continuous  service as  Executive Engineers, subject to the qualification that in case of Assistant Engineers who were promoted  as Executive  Engineers the  length of  their regular continuous  service as  Executive Engineers  for the purpose of determining seniority would be computed only from the date when they were confirmed as Assistant Engineer.      But with  effect from  22nd December  1959, a departure was made  by respondent  Nos. 1  to 3  from the principle of continuous officiation  and  "carry  forward  principle  was applied by  providing that  86 posts earmarked for promotion of Assistant  Executive Engineers  to the grade of Executive Engineers in  accordance with  their quota during the period prior to  22nd December,  1959 which  had remained  unfilled owing to  non-availability of  Assistant Executive Engineers upto 22nd  December 1959  should be  carried forward  and 86 Assistant Executive  Engineers promoted after 22nd December, 1959 should  be adjusted against these posts and they should be assigned  seniority en  bloc immediately  below the  last Executive  Engineer   promoted  regularly   prior  to   22nd December, 1959.  The result was that the Assistant Engineers who had  been  promoted  as  Executive  Engineers  regularly within their  quota subsequent  to 22nd December 1959 became junior to the Assistant Executive Engineers promoted against these 86  carried forward posts, even though they might have been promoted  as Executive  Engineers  long  prior  to  the promotion  of   such  Assistant   Executive  Engineers.  The Assistant Executive  Engineers promoted and adjusted against these 86  carried forward  posts, were given seniority above the Assistant  Engineers  promoted  regularly  within  their quota after 22nd December, 1959 irrespective as to when such Assistant Executive  Engineers were actually promoted. These posts were  adjusted on  the basis of the order in which the vacancies in  the respective  quotas of  Assistant Executive Engineers and Assistant Engineers for promotion as Executive Engineers were  allocated from  time to  time. The seniority inter-se of  Assistant  Executive  Engineers  and  Assistant Engineers promoted  regularly within their respective quotas subsequent to 22nd December, 1959 was thus determined by the application of  the rotation  formula  based  on  the  quota prevailing at  the relevant  time. But since it had not been possible to  fill all  the posts  allocated to the Assistant Executive Engineers’ quota and some posts remained unfilled, they were shown as vacant 851 in the seniority list prepared according to the roster based

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on the  rotational formula  so that  as and  when  Assistant Executive Engineers might be promoted as Executive Engineers regularly within  their quota,  they would occupy the vacant posts  earmarked   for  them  in  the  seniority  list.  The disastrous effect  of the  revised seniority  list was  that most  of  the  Assistant  Engineers  promoted  as  Executive Engineers regularly  within their  quota subsequent  to 22nd December, 1959  lost a  considerable  number  of  places  in seniority and  were placed  in a  much worse  situation than what they  were in  under the seniority list dated Ist July, 1971 which was quashed at their instance, in writ petitions. A contempt  application against  respondents Nos. 1 to 3 was therefore  moved  but,  before  the  Court  could  hear  the objections against  the seniority  list on merits, the first respondent issued on 8th June, 1976 the Executive Engineers, Central  Engineering   and  Central  Electrical  Engineering Service (Group  A) (Regulation  of  Seniority)  Rules  1976. These rules  were deemed to have come into force with effect from 10th  December,  1974,  that  is  one  day  before  the delivery of  Judgment by  this Court  and they substantially enacted in statutory form the same principles which were set out in  the memorandum  that accompanied  the seniority list dated 14th August, 1975 and on which that seniority list was based.      The petitioners,  thereupon,  filed  the  present  writ petitions  contending  that  the  Rules  of  1976  were  not applicable to  the petitioners and other Assistant Engineers promoted as Executive Engineers regularly within their quota prior to  10th December 1974 and if these Rules were held to be applicable,  they were  unconstitutional  and  void.  The petitioners challenged  the validity  of the  seniority list dated 14th  August, 1975  and  the  Rules  of  1976  on  the following grounds,  namely; (i)  that it was the case of the petitioners and  other Executive Engineers promoted from the grade of  Assistant Engineers  regularly within  their quota from and  after 22nd December 1959 but before 11th December, 1954 is  covered by  the decision  of this  Court in  A.  K. Subraman’s case;  (ii)  that  they  are  entitled  to  claim seniority, on the basis of length of continuous officiating, over Assistant  Executive Engineers  promoted  as  Executive Engineers later  in point  of time; (iii) that the Assistant Executive Engineers promoted and adjusted against 86 carried forward  posts  cannot  be  given  seniority  en  bloc  over Assistant Engineers promoted as Executive Engineers earlier; (iv)  that   the  rotational   formula  cannot   be  applied retrospectively  so   as  to   deprive  Assistant  Engineers promoted as  Executive Engineers  of their  seniority on the basis of  length of  continuous officiation  in the grade of Executive Engineers; (v) that the Rules of 1976 are, to that extent, unconstitutional and void as being outside the power of the Central Government; (vi) that since the Rules of 1976 have been brought into force with effect from 10th December, 1974, they cannot affect the petitioners and other Assistant Engineers promoted  as Executive  Engineers regularly within their quota prior to that date and their seniority vis-a-vis Assistant  Executive   Engineers   promoted   as   Executive Engineers must  continue to  be governed by the principle of length of  continued officiation  in the  grade of Executive Engineers;  and   (vii)  that  if  the  Rules  of  1976  are applicable for  determining inter  se seniority of Executive Engineers promoted  from the  grades of  Assistant Engineers and Assistant  Executive Engineers  within their  respective quotas  from   and  after  22nd  December,  1959,  they  are unconstitutional and 852

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void as  offending Articles  14 and  16 of the Constitution, since the  seniority rules  enunciated in  the Rules of 1976 being closely  linked with  the quota rule continued massive departure from  the quota  rule over  a long  period of time must result  in the break down of the seniority rules and to apply the  seniority rules  in such a situation would create gross inequality  of opportunity  of employment violative of Articles 14 and 16.      Allowing the petitions, the Court, ^      HELD: 1.1  Rule 2(iii)  of the  Central Engineering and Central Electrical  Engineering Service  Rules, 1976,  in so far as it gives en bloc seniority to the Assistant Executive Engineers promoted  to  the  eighty  six  vacancies  carried forward from  the period prior to 22-12-1959 irrespective of the date when they were actually promoted and pushed down in seniority  Assistant  Engineers  though  promoted  regularly within their  quota prior  to the  actual promotion  of such Assistant   Executive    Engineers,   merely   prejudicially affecting their  promotional opportunities  is violative  of Articles 14 and 16 of the Constitution. [906B-D]      1.2 Rule  2(iv) of the said Rules also suffers from the same  infirmity  as  it  provides  for  rotational  rule  of seniority based  on the  prevailing  quota  for  determining inter-se seniority between Assistant Engineers and Assistant Executive Engineers  promoted  to  the  grade  of  Executive Engineers from  and after  2nd December, 1959, subject to an en bloc  seniority being  given to  the Assistant  Executive Engineers promoted  to  the  eighty  six  "carried  forward" vacancies as  set out  in Rule  2(iii). Obviously,  if  Rule 2(iii) providing  for en  bloc seniority  to be given to the Assistant Executive  Engineers promoted  to the  eighty  six "carried forward"  vacancies is  unconstitutional and  void, Rule 2(iv) is also unconstitutional and void, when there has been  enormous   deviation  from   the  quota  rule  in  the promotions  of   Assistant  Executive   Engineers  and  such deviation has  continued from  year to year over a period of almost twenty five years. [906D-H]      1.3 The  rotational rule  of seniority  is inextricably linked up  with the quota rule, and if the quota rule is not strictly implemented  and there  is large  deviation from it regularly  from   year  to   year,  it   would  grossly   be indiscriminatory and unjust to give effect to the rotational rule of  seniority. The  rotational rule  of seniority  must obviously break  down when  there is  such massive departure from the  quota rule  regularly from year to year leading to continuously  increasing   deficiency   in   promotions   of Assistant Executive  Engineers and  corresponding excess  in promotions of Assistant Engineers. [908C-D, 909D-E]      T. Devdasan  v. Union  of India,  AIR, [1964] S.C. 179; Mervin Contindo v. The Collector of Customs, Bombay [1966] 3 SCR 600;  G.D. Kelkar  v. Chief  Collector  of  Imports  and Exports [1967]  2 SCR  29; V.S.  Badami v.  State of  Mysore [1976] 1  SCR 815;  N.K. Chauhan v. State of Gujarat, [1973] SCR 1037;  A. Janardhan v. Union of India AIR [1983] SC 769; Bishan Swarup  Gupta v.  Union of  India [1975]  1  SCR  104 referred to. 853      2.1 Notwithstanding Rules 2(iii) and 2(iv) of the Rules of 1976,  the inter se seniority between Assistant Engineers and Assistant  Executive Engineers promoted regularly within their respective  quota upto  11th December,  1974  must  be determined on  the basis of length of continuous officiation in the  grade of  Executive Engineers,  subject of course to the  length   of  continuous  officiation  in  the  case  of

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Assistant Engineers  being computed  from the  date of their confirmation as  Assistant Engineers  in view of decision of the Supreme  Court in Subraman’s case. In this view carrying forward of eighty six posts of Executive Engineers allocable to Assistant  Executive Engineers and giving up seniority en bloc to  the Assistant  Executive Engineers  promoted to the ’carry forward posts’ by applying the rotational formula for the  purpose  of  determining  seniority  amongst  Assistant Engineers and  Assistant Executive Engineers promoted to the subsequent  vacancies   is   ineffective   quota   Assistant Engineers and  Assistant Executive  Engineers promoted  upto 11th December  1974 and  so far as these Assistant Engineers and Assistant Executive Engineers are concerned, their i ter se seniority  must be  held to  be governed by the length of continuous officiation  in the grade of Executive Engineers. [888H, 889A-B]      2.2 On  a plain  reading of  the decision in Subraman’s case, it is obvious that the direction given by it in regard to determination  of inter  se seniority  on  the  basis  of length  of   continuous  officiation   was  not  limited  to Executive Engineers  promoted from  the grade  of  Assistant Engineers  and   Assistant  Executive   Engineers  upto  2nd December, 1959  but was on its plain terms applicable to all Executive Engineers  promoted from  the grade  of  Assistant Engineers and  Assistant Executive  Engineers  within  their respective quota  right upto  11th December,  1974 being the date of the decision of the Court. But the revised seniority list dated  14th August,  1975 issued  by the  Government of India was plainly in defiance of this direction given by the Court. [872A-C, F-G]      2.3 When this Court in so many terms laid down that the inter se  seniority of Executive Engineers promoted from the grades  of   Assistant  Engineers  and  Assistant  Executive Engineers upto December 11, 1974 must be held to be governed by the  rule of  length of  continuous officiation  and  the Government of India has been directed by a writ of the Court to amend  and revise  the  seniority,  the  effect  of  this decision cannot  be set  at naught and the binding character of the  writ issued  against the  Government of India can be abrogated by the mere promulgation of the Rules of 1976 with retrospective  effect   from  10th   December  1974.  It  is significant to  note that  the Explanatory  Memorandum which was in  the nature  of statement of objects  and reasons for the Rules of 1976 did not seek to override the effect of the decision in Subramn’s case but on the contrary affirmed that the principles of seniority set out in those rules were laid down on  the basis  of the said decision. Since the Rules of 1976 purports merely to carry out the direction given in the said decision they cannot have the effect of overriding that decision and absolving the Govt. of India and the Government of India,  must, therefore,  amend and  revise the seniority list of  1st July,  1971 by  applying the  rule of seniority based on length of continuous officiation for determining 854 inter seniority  of Executive  Engineers promoted  from  the grades  of   Assistant  Engineers  and  Assistant  Executive Engineers upto 11th December, 1974. The relative position of the  Executive   Engineers  in  regard  to  their  inter  se seniority  having   been  crystalised  in  the  decision  in Subramn’s case  and a  writ having  been issued  by he Court directing the  inter se seniority of the Executive Engineers to be fixed on the basis of length of continuous officiation the Executive Engineers promoted from the grade of Assistant Engineers were  entitled to enforce the writ for determining the inter  se seniority  with  the  Executive  Engineers  in

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accordance  with   the  rule   of   length   of   continuous officiation. The  right of  the Executive Engineers promoted from  the  grade  of  Assistant  Engineers  under  the  said decision could  not be  taken away  by anything contained in the  Rules   of  1976.  The  decision  in  Subaraman’s  case continued to  subsist and  the Government of India was bound to  a   determine  inter   se  seniority  amongst  Executive Engineers in accordance with the direction contained in that decision. If  by reason  of retrospective  alteration of the rule of  seniority the  decision is  rendered erroneous, the remedy may  be by way of review, but so long as the decision stands, it  cannot be  disregarded or ignored and it must be obeyed by  the Government  of India, despite Rule 2(iii) and 2(iv) so  far as  the Executive  Engineers promoted from the grade  of   Assistant  Engineers   and  Assistant  Executive Engineers Executive  Engineers upto  11th December, 1974 are concerned. [873E H, 874B-F,877A-B]      Further, the  rule of  seniority set  out in paragraphs 5(ii) and  6 of  the Memorandum  of  the  Ministry  of  Home Affairs dated  22.12.1959 has  no application to the instant case. [878E]      M.M. Pathak v. Union of India and Ors. [1978] 3 SCR 346 followed.      Shri  Prithvi  Cotton  Mills  Ltd.  v.  Broach  Borough Municipality [1970] 1 SCR 388 distinguished.      Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad [1964] 2 SCR 608 referred to.      3.1 If  a vacancy  arises on  account of  an  incumbent going on  leave or  for training  on deputation  for a short period, it would be a fortuitous or adventitious vacancy and the quota  rule would  not be  attracted in  case of  such a vacancy. But  where a  vacancy  arises  on  account  of  the incumbent going  on deputation  for a reasonably long period and there is no reasonable likelihood of the person promoted to fill  such vacancy having to revert, the vacancy would be subject to  the quota  rule, because  it would  be a regular vacancy in  the post  of Executive  Engineers and the person promoted  to  fill  the  vacancy  would  be  an  officiating Executive Engineer  would continue as such without reversion until confirmed  and his  promotion would,  therefore, be by way of  recruitment to  the cadre of Executive Engineers. Of course, the  vacancy which attracts the applicability of the quota rule,  is the  vacancy in  the post  included  in  the sanctioned strength  of the cadre of Executive Engineers and not the  vacancy in  the deputation  post. There  may  be  a vacancy in  a  deputation  post  in  another  department  or organisation  and  an  Executive  Engineer  holding  a  post included  in   the  sanctioned  strength  of  the  cadre  of Executive Engineers may be sent to such deputation post, but the 855 vacancy which  would call  for the  application of the quota rule in such a case would be the vacancy arising in the post of Executive  Engineer within  the cadre  by reason  of  the incumbent of  that post going to the deputation post and not the vacancy  in the deputation post which would be filled up by the  Executive Engineer  going on  deputation. Therefore, what has to be considered for the applicability of the quota rule is  a vacancy  in a  post included  in  the  sanctioned strength  of  the  cadre  of  Executive  Engineers  and  the sanctioned strength  which has  to be taken into account, is not merely the sanctioned strength of the cadre of Executive Engineers in  the entire  Central Engineering Service, Class I.  The  sanctioned  strength  of  the  cadre  of  Executive Engineers in  the Central  Engineering Service, Class I, may

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include not only posts of Executive Engineers in the Central Public  Works   Department  but   also  posts  of  Executive Engineers in  other departments  and  organisations.  [890H, 891A-G]      3.2 Therefore,  it cannot be said that promotion to the post of  Executive Engineer contemplated under the Rules can be made  only where  there is no lien of any officer on that post because  promotion  according  to  the  quota  rule  is initial promotion  in officiating capacity and not concerned with confirmation.  It is  true that  a confirmed  Executive Engineer who  goes on  deputation may  revert to the post on which he  has a  lien and  so also  an officiating Executive Engineer  who   goes  on   deputation  may  revert  back  on termination of  his deputation  and theoretically, in either case, an  Assistant Engineer or Assistant Executive Engineer who is  promoted to  fill the  vacancy arising on account of deputation may  have to  revert, but  in actual practice and reality,  not  a  single  Assistant  Engineer  or  Assistant Executive Engineer  who is  promoted  to  fill  the  vacancy arising on account of deputation, has had to revert, because deputation is  a normal feature in this service and 20 to 25 per cent  of the  Executive Engineers  are  continuously  on deputation. Even,  if one  Executive Engineer  comes back on termination of his deputation, another has to be sent in his place and  deputations thus  go on  rotating with the result that the  vacancy in  the post of Executive Engineer arising on account  of deputation  does not  cease and the Assistant Engineer  or   Assistant  Executive   Engineer  promoted  as Executive Engineer to fill the vacancy does not ever have to revert and  consequently the vacancy filled by him is really and truly  a permanent and long term vacancy which has to be filled according  to the  quota rule.  In fact, if the quota rule were  not to  be  applied  with  reference  to  such  a vacancy, the  position would  be that  whenever an Executive Engineer goes  on deputation  for a  period which may extend anything between three to five years, the Central Government would be  entitled to promote an Assistant Engineer ignoring the claims  of Assistant  Executive Engineers and this would totally be  arbitrary in a situation where 20 to 25 per cent of Executive  Engineers are  on deputation. For this purpose the vacancies in the posts of Executive Engineers arising on account  of  deputation  of  Executive  Engineers  to  other departments, organisations  and public  undertakings  for  a period of  one or  more years  were long  term vacancies and they could  not be regarded as fortutious or adventitious in character and  hence they  were subject  to the  quota rule. [891G-H, 895H, 896A, 897-F, 856      3.3 However, the vacancy pro tempore filled irregularly by an  Assistant Engineers  would continue  to belong to the quota of  Assistant Executive Engineers and it can be filled only by  the Assistant Executive Engineer, if the quota rule is to  be strictly  observed. The  death or retirement of an irregular promotee to the vacancy cannot therefore give rise to a  fresh vacancy:  it is the same vacancy which continues until properly filled by promotion of an Assistant Executive Engineer at  a subsequent  date. If in such a case the death or retirement  of an  irregular appointed Assistant Engineer were to  be treated  as creating  a fresh  vacancy, it would lead to  gross  distortion.  Similarly  while  pushing  down Executive Engineers  promoted from  the grade  of  Assistant Engineers in excess of their quota in a subsequent year, the Government must  treat them as absorbed from the date when a vacancy in  that year  arises  in  the  quota  of  Assistant Engineers and  not on  a national  basis from 1st January of

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that year.                                            [900C-G, 901 C-D]

JUDGMENT:      ORIGINAL JURISDICTION  Writ Petition  Nos.  157-162  of 1976       (Under article 32 of the Constitution of India)      M.C. Bhandare,  A.K. Ganguli,  D.P. Mukherjee  and Miss C.K. Suchirata for the Petitioners.      M.M.  Abdul   Khader,  Girish   Chandra  and   Miss  A. Subhashini for Respondent.      M.K. Ramamurthi,  J. Romamurthi  and Mrs. R. Vaigai for Respondent.      The Judgment of the Court was delivered by      BHAGWATI, J. This writ petition marks yet another round of litigation  between two  groups of Executive Engineers in Central Public Works Department of the Ministry of Works and Housing,  Government  of  India,  one  group  consisting  of promotees from  the grade  of Assistant  Executive Engineers and the  other consisting  of promotees  from the  grade  of Assistant Engineers. The dispute between these two groups in regard to  seniority has  been going  on for quite some time and it  has  created  considerable  discord  and  bitterness between these  two groups  which must  inevitably affect the efficiency of  the Service.  It is really a matter of regret that the  Central Government  should not  have been  able to bring these two groups together and evolve a commonly agreed formula acceptable  to both sides. We hope that our decision in this  writ petition will finally ring the curtain down on this unfortunate  controversy and  both groups  of Executive Engineers will  accept the decision ungrudgingly without any rancour or  resentment and  wholeheartedly engage themselves in the nation building task entrusted to them. 857      There is  in the  Central Public  Works  Department  of Ministry of Works and Housing, Government of India a Service known as Central Engineering Service (Class I). This Service comprises various  grades; the  highest  grade  is  that  of Engineer-in-Chief and  then in descending hierarchical order are the  grades of  Chief Engineer, Superintending Engineer, Executive Engineer  and Assistant  Executive  Engineer.  The Central Government  has made  rules of  recruitment to  this Service known  as the  Central Engineering Service (Class I) Recruitment  Rules   1954  (hereinafter   referred   to   as ’Recruitment Rules’)  and they  are issued  under  SRO  1841 dated 21st  May  1954.  Part  I  of  the  Recruitment  Rules contains the  definition and  Clause (c) of Rule 2 occurring in  this  Part  defines  "Service"  as  Central  Engineering Service Class  I. Rules  3, 4  and 5 contained in Part II of the Recruitment  Rules lay  down the modes of recruitment to various grades in this Service in the following terms:      "3 Recruitment  to the  service shall be made by any of      the following methods:-      (a)  By competitive  examination in India in accordance           with Part III of these rules.      (b)  By promotion  in accordance  with Part IV of these           rules.      (c)  By transfer  in accordance  with Part  V of  these           Rules.      4. (1)   All  appointments to  the service  or to posts      borne upon  the cadre  of the  Service shall be made by      Government.           (2) Subject  to  the  provisions  of  the  rule  3

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    Government shall  determine the  method or  methods  of      requirement (Sic)  (recruitment ?)  to be  employed for      the purpose  of filling any particular vacancies in the      Service or such vacancies therein as may be required to      be filed during any particular period and the number of      candidates to be recruited by each method.           Provided  that   all  recruitment  by  competitive      examination (vide  Part III  of the  rules) shall be to      the grade  of Assistant  Executive  Engineer,  Class  I      only.           Seventy-five per  cent of  the  vacancies  in  the      grade of  Executive Engineer,  Class I, shall be filled      by promotion of Assistant Executive Engineers, Class I,      the rest  of the  vacancies being  filled by  promotion      and/or by transfer in accordance with Parts IV and V of      the Rules respectively. 858      5. Appointment  to the  Service made  otherwise than by      promotion will be subject to orders issued from time to      time by  the Ministry of Home Affairs regarding special      representation in the Services for specific sections of      the people". Assistant Executive  Engineers belong to the lowest grade in this  service   and  they   are  recruited  only  through  a competitive examination  in accordance  with Part III of the Recruitment Rules.  On their  initial recruitment, Assistant Executive Engineers  are required  to undergo  a  period  of probation for  two years and they are confirmed in the grade of Assistant Executive Engineers after successful completion of the period of probation.      There is  also another  Service in  the Central  Public Works Department  called Central  Engineering Service  Class II. This  Service consists  only of  the grade  of Assistant Engineers.  The   rules  of  recruitment  to  the  grade  of Assistant  Engineers   are  to   be  found  in  the  Central Engineering Service  Class II  Recruitment Rules.  There are two modes of recruitment laid down in these Rules; one is by direct recruitment  through the same competitive examination which  is   held  for   selection  of   Assistant  Executive Engineers, the  candidates lower  down in  rank  than  those selected for  the grade  of  Assistant  Executive  Engineers being selected  for the grade of Assistant Engineers and the other is  by process of selection from a subordinate Service called Class  III Service.  Assistant  Engineers  belong  to Class II  service, unlike  Assistant Executive Engineers who belong to Class II service but the posts which they hold are interchangeable, each  of them  being in  charge of  a  sub- division and  the nature  of work,  responsibilities, powers and duties  discharged by  them all  is identical.  There is only a  minor difference in the pay scales but otherwise for all practical  purposes, there is no difference between them so far as their functions powers and duties are concerned.      The next higher grade above that of Assistant Executive Engineers is  that of Executive Engineers Recruitment to the grade of  Executive Engineers  is made by promotion from two sources, namely  Assistant Executive Engineers and Assistant Engineers. Assistant  Executive Engineers  are eligible  for promotion  to   the  grade   of  Executive  Engineers  after completion of five years of service and they are promoted on the basis  of seniority-cum-fitness.  Assistant Engineers on the other  hand are  eligible for  promotion to the grade of Executive Engineers  only after  eight years  of Service  in their grade  and for them, the post of Executive Engineer is a selection post and they are selected 859

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for promotion  on the  basis of  merit; the  selection being made through  a departmental  promotion  committee  presided over by  a member  of the  Union Public  Service Commission. Prior to  25th August 1949, there was no quota for promotion to the  grade of  Executive Engineers  from  the  grades  of Assistant Executive  Engineers and  Assistant Engineers  but for the  first  time  on  25th  August  1949,  a  quota  was prescribed by  the Central  Government and  it was  provided that the vacancies in the grade of Executive Engineers shall be  filled   by  promotion  from  the  grades  of  Assistant Executive Engineers  and Assistant Engineers in the ratio of 75% to  25%.  This  continued  right  up  to  the  time  the Recruitment Rules  were enacted  in 1954 and that is why the last part  of clause  (2) of Rule 4 of the Recruitment Rules provided that 75% of the vacancies in the grade of Executive Engineers  shall   be  filled   by  promotion  of  Assistant Executive Engineers,  the rest of the vacancies being filled by promotion  and or by transfer in accordance with Parts IV and V  of the Recruitment Rules. This quota was altered with retrospective effect  from 7th September 1955 from 75 and 25 per cent  to 66  2/3 and  33 1/3  per cent  and it was again altered with  effect from  1st April  1972 to  50:50  for  a period of seven years.      It appears  that whenever Assistant Executive Engineers and Assistant  Engineers  were  promoted  to  the  grade  of Executive  Engineers,   they   were   first   appointed   on officiating basis.  The quota was however, for reasons which we shall  presently discuss  not adhered  to at  the time of such promotions  with the  result that  Assistant  Engineers came to  be promoted  as officiating Executive Engineers far in excess  of their quota while there was a shortfall in the promotions of  Assistant Executive Engineers so far as their quota was  concerned. Now  there  were  no  statutory  rules governing inter se seniority of Executive Engineers promoted from  the   grades  of  Assistant  Executive  Engineers  and Assistant Executive  Engineers but  there was  a  Memorandum issued by  the Home  Ministry on  22nd June  1949 which laid down general  principles  of  seniority  applicable  to  all departments. This  Memorandum provided  that "in  respect of persons employed  in any particular grade, seniority should, as a  general rule,  be determined on the basis of length of service in  that grade  as well  as service in an equivalent grade irrespective  of whether  the latter was under Central or Provincial  Government in India or Pakistan."  The length of continuous officiation in the grade was thus taken as the yardstick for  the purpose  of determining  seniority in all departments of the government and a fortiorari, in the grade of Executive  Engineers. On  the basis  of  this  yardstick, Assistant Engineers promoted as officiating 860 Executive Engineers  within their  quota  would  clearly  be senior to  Assistant Executive  Engineers promoted  later as officiating Executive Engineers.      However, Respondent  No. 1 to 3 issued a seniority list on 1st  July 1971 in which Executive Engineers promoted from the grade  of Assistant  Engineers in  regular manner on the basis of  selection made by Departmental Promotion Committee and within  their quota  were shown  as  junior  to  several Executive Engineers  promoted much  later from  the grade of Assistant Engineers.  Respondent No.  1 to  3 in making this seniority list  proceeded on  the basis  that the quota rule specified in  the last part of sub-rule (2) of Rule 4 of the Recruitment Rules  necessarily implied  a system of rotation and it  was required  to be strictly applied at the stage of confirmation in  the grade  of Executive Engineers. In other

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words, out  of three  vacancies in  the grade  of  Executive Engineers, unless  two reserved  for promotion  of Assistant Executive Engineers  were filled  up by confirmation of such promotees, the  third  one  for  confirmation  of  Assistant Engineer promoted as Executive Engineer could not be filled. Consequently, all Assistant Engineers were treated as ad-hoc appointees without any claim to seniority until such time as they were  confirmed as  Executive  Engineers  within  their quota. The  impact of this decision of Respondent No. 1 to 3 was disastrous  for a  large number  of Executive  Engineers promoted  from   the  grade   of  Assistant   Engineers   on officiating basis,  since many of them had to retire without being  confirmed   and  therefore,   without  any  claim  of seniority in  the grade  of  Executive  Engineers  and  even today, according  to the  petitioners, there are hundreds of officiating Executive  Engineers promoted  from the grade of Assistant Engineers  who are  working in  the Central Public Works  Department   for  decades  without  confirmation  and according  to   the  principle   adopted  in  preparing  the seniority list of 1st July 1971, they would have no claim to seniority in  the grade  of Executive  Engineers  and  would become junior  even to  recent promotees  from the  grade of Assistant Executive Engineers.      The seniority  list dated 1st July 1971 was preceded by provisional seniority  lists which were prepared annually on the basis  of the  same formula  and some  of the  Executive Engineers promoted  from the  grade of  Assistant Engineers, therefore, without  waiting for the publication of the final seniority list  dated 1st July 1971 preferred writ petitions in the  Delhi High  Court challenging  the validity  of  the provisional seniority lists. There writ petitions were 861 referred to  a Full  Bench since  they involved questions of some importance  and the  Full Bench  by a  common  judgment dated  20th   May  1971  rejected  the  contentions  of  the petitioners  and   concurring  with  the  stand  adopted  by respondent Nos. 1 to 3, held that the quota rule applied not at the  stage of  initial promotion on officiating basis but at the  stage of confirmation and rotational formula for the purpose of  determining seniority  was implicit in the quota rule and on this view, the Full Bench upheld the provisional seniority lists which, as already pointed out above, were on the same  lines as  the final  seniority list dated 1st July 1971 and  which fixed  seniority in  the grade  of Executive Engineers according  to the  rotational formula based on the quota  rule.   The  petitioners   in  these  writ  petitions thereupon preferred  Civil Appeal  Nos. 1745, 1746 & 1747 of 1974 after  obtaining special  leave to  appeal against  the judgment of  the Delhi  High  Court.  Some  other  Executive Engineers promoted  from the  grade of  Assistant  Engineers also filed  a direct  writ petition in this Court being writ petition 489  of 1972, challenging the seniority list of 1st July 1971  on the  ground that  the seniority  worked out by applying the  quota rule  at the  stage of  confirmation and adopting the  rotational formula  was illegal  and that  the seniority ought to have been fixed on the basis of length of continuous officiation  in the grade of Executive Engineers. These three  civil appeals  and  writ  petition  were  heard together and  decided by  a common  judgment of  this  Court dated 11th  December 1974 vide: A.K. Subraman & Ors. etc. v. Union of  India & ors. This Court accepted contention of the petitioners that  the quota  rule was  to be  applied at the stage of  initial promotion  in officiating  capacity to the grade of  Executive  Engineers  and  not  at  the  stage  of confirmation and  that it  did  not  necessarily  imply  the

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rotational system  and  since  the  general  principles  for determining seniority laid down in the Memorandum dated 22nd June 1949  were, on their plain terms, applicable, seniority in the  grade of  Executive Engineers was liable to be fixed on the  basis of  length of  continuous officiation  in that grade as  provided in  the Memorandum  dated 22nd June 1949. Some of  the Executive  Engineers promoted from the grade of Assistant Executive  Engineers who  were respondents  in the writ petition  as also in the civil appeal tried to meet the contention of  the petitioner  by relying  on  a  subsequent Memorandum dated  22th December  1959 issued by the Ministry of  Home  Affairs,  Government  of  India  but  the  learned Solicitor General  appearing on behalf of the Union of India conceded that  the said Memorandum had no application to the case and  was irrelevant  and this  Court also  accepted the same view. This 862 Court  pointed   out  that  since  the  cadre  of  Executive Engineers consisted  both of  permanent as well as temporary posts, the vacancies referred to in the quota rule comprised vacancies not  only in  the permanent  posts but also in the temporary posts  included in  the sanctioned strength of the cadre, barring  only such  vacancies as  were  purely  of  a fortuitous or adventitious nature and the quota rule applied at  the   stage  when   Assistant  Engineers  and  Assistant Executive Engineers  were promoted  even  if  it  be  in  an officiating capacity,  irrespective of whether the vacancies were in  permanent posts  or in  temporary posts. This Court also observed  that for  the purpose  of applying  the quota rule, the  year must  be taken  as a unit and the quota rule must be applied in relation to the vacancies occuring in any particular year.  This  Court  also  held,  relying  on  the observations in  Bishan Swaroop  Gupta v.  Union of  India & Ors. (hereinafter  referred to  as the  1st  Bishan  Swaroop Gupta case)  that the  ratio of  promotions in  the grade of Executive Engineers in any particular year was not dependent upon whether  any persons  from one  class or the other were promoted or  not and  this  was  made  clear  by  giving  an illustration  that  if  there  were  three  vacancies  in  a particular  year,   two  would  go  to  Assistant  Executive Engineers while  one would go to the Assistant Engineers and even if there were no eligible Assistant Executive Engineers who could be promoted to fill in the two vacancies belonging to their  quota, one  vacancy would  have to  be  filled  by promotion of  an Assistant  Engineer. If  in  such  a  case, having  regard  to  the  exigencies  of  the  situation  two vacancies belonging  to the  quota  of  Assistant  Executive Engineers had  to be  filled in  by Assistant  Engineers for want  of   availability  of   eligible  Assistant  Executive Engineers, the appointment of Assistant Engineers to fill in such two  vacancies would be irregular because that would be outside their  quota but  in that event, observed the Court, they would  have to be pushed down to later years when their appointment could  be regularised  as a result of absorption in  their   lawful  quota   for  those  three  years.  These conclusions reached by the court were summarised in the form of following six propositions at the close of the judgment:      (1)  When Assistant  Engineers Class (II) are initially           appointed in  a regular  manner in accordance with           the rules  to officiate  as  Executive  Engineers,           their seniority  in service  in Grade I will count           from  the   date  of   their  initial  officiating           appointment in  Class  I  provided  their  initial           officiating appointment as Executive Engineers was           within their quota.

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863      (2)  Their seniority will not be reckoned from the date           of their future confirmation in Class 1.                The above  principle is,  however, subject to           one reservation,  namely, if an Assistant Engineer           before his confirmation in Class ll were appointed           to officiate  in Class I in the grade of Executive           Engineer, although within his quota, his seniority           will count  only from the date of his confirmation           in Class  II as  permanent Assistant  Engineer not           with standing  his earlier officiating appointment           as Executive Engineer.      (3)  The quota  rule will  be enforced  at the  time of           initial recruitment,  in an  officiating capacity,           to the  grade of Executive Engineer and not at the           time of confirmation.      (4)  The quota  rule will be enforced with reference to           vacancies  in  all  posts,  whether  permanent  or           temporary including  in the sanctioned strength of           the cadre  (except such vacancies as are purely of           a  fortuitous   or  adventious   nature)  and  the           operation of  the quota  rule will depend upon the           availability  or   non-availability  or  Assistant           Executive Engineers  for appointment  as Executive           Engineers.  The   non-availability  of   Assistant           Executive Engineers  for recruitment  to the grade           of  Executive   Engineer  will  not  postpone  the           regular recruitment  of  the  Assistant  Executive           Engineers within their quota.      (5)  Once  the   Assistant  Engineers   are   regularly           appointed  to  officiate  as  Executive  Engineers           within  their  quota  they  will  be  entitled  to           consideration in  their  own  rights  as  Class  I           officers  to   further  promotions.  Their  "birth           marks" in  their earlier  service will  be  of  no           relevance once  they are  regularly officiating in           the  grade  of  Executive  Engineer  within  their           quota.      (6)  If Assistant  Engineers are recruited as Executive           Engineers in excess of their quota in a particular           year they  will be  pushed down to later years for           absorption when due within their quota. This Court  accordingly allowed  the writ  petition and  the civil appeals  and directed  respondent Nos. 1 to 3 to amend and revise the 864 seniority list  of  Ist  July  1971  in  the  light  of  the directions given  in the  judgment and to give effect to the revised seniority list so prepared.      Though the  aforesaid directions  were  given  by  this Court for  preparation of  a revised  seniority list  as far back as  11th December  1974 respondents Nos. I to 3 delayed implementation of  those directions  for a  period  of  over three months  and hence  the petitioners  in  writ  petition No.489 of  1972 as also petitioner No. 3 in the present writ petition filed CMP No. 2563/75 on 18th April 1975 for taking action against respondent Nos. 1 to 3 for contempt of court. Respondent No.  1 however,  instead of  complying  with  the directions given  by this  Court and  purging itself  of the contempt alleged to have been committed by it, filed CMP No. 3911 of  1975 dated  18th July 1975 for clarification of the judgment on  the ground  that they  felt some  difficulty in implementing  the  directions  issued  by  the  Court.  This application for  clarification was  rejected by the Court on 21st July  1975 on  the ground that the principles laid down

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in the  judgment dated 11th December 1974 were clear and the Court did  not "see  need to  clarify them any further," and once again the Court ordered the first respondent to prepare and publish  a final  seniority list  in compliance with the directions given  on 11th  December 1974. The Court kept the application for  contempt pending  and adjourned  it to  1st September 1975.  Respondent Nos.  1 to 3 thereafter issued a revised seniority  list on  14th August 1975. This seniority list was  accompanied by a Memorandum also dated 14th August 1975 in  which it  was stated  that the  seniority  list  of Executive Engineers  had been  revised in  the light  of the judgment  of   this  Court   dated  11th  December  1974  in accordance with  the principles  set out in that Memorandum. We shall  discuss these  principles in  detail when  we deal with  the  various  arguments  advanced  on  behalf  of  the parties. We  may, however,  point out  at this  stage  that, broadly speaking,  for the  purpose of determining seniority in the  grade of  Executive Engineers  from and  after  22nd December 1959,  respondent Nos.  1 to 3 introduced the carry forward principle  and applied  the rotational  formula. The officers who  had been,  with the  concurrence of  the Union Public  Service   Commission,   officiating   as   Executive Engineers prior  to 25th  August 1949 and continued to do so there after  were shown  en  bloc  senior  to  the  officers appointed after  25th August  1949 and  so far as the period between  25th   August  1949  and  21st  December  1959  was concerned, the inter se seniority of persons promoted during that period  from the  grades  of  Assistant  Engineers  and Assistant Executive Engineers within their respective quotas was 865 determined in  accordance with  the length  of their regular continuous   service as  Executive Engineers, subject to the qualification that  in case  of Assistant Engineers who were promoted as  Executive Engineers prior to their confirmation in the  grade of  Assistant Engineers,  the length  of their regular continuous  service as  Executive Engineers  for the purpose of determining seniority would be computed only from the date when they were confirmed as Assistant Engineers. So far there was no dispute raised on behalf of the petitioners and it  was conceded  that  the  principle  for  determining seniority applied  by respondent  Nos. I to 3 for the period upto 21st  December 1959  was valid.  The  petitioners  also conceded  that   those  Assistant  Engineers  who  had  been promoted in  excess of  their quota were rightly pushed down and adjusted  within their  quota in subsequent years. Thus, for example,  Shri A.K.  Subraman, the  first petitioner  in writ  petition   No.  489   of  1972,   though  promoted  in officiating capacity  as Executive Engineer on 27th December 1956  with   the  approval  of  the  Departmental  Promotion Committee was  pushed down,  since  his  promotion  was  not within the  quota of Assistant Engineers at the time when he was promoted and his promotion was regularised on absorption within his  lawful quota  in a  subsequent  year.  But  with effect from  22nd December  1959 a  departure  was  made  by respondent Nos.  1 to  3 from  the principle  of  continuous officiation and  carry  forward  principle  was  applied  by providing that 86 posts earmarked for promotion of Assistant Executive Engineers  to the  grade of Executive Engineers in accordance with  their quota during the period prior to 22nd December 1959  which had  remained unfilled  owing  to  non- availability of  Assistant  Executive  Engineers  upto  22nd December 1959  should be  carried forward  and 86  Assistant Executive Engineers promoted after 22nd December 1959 should be adjusted  against these posts and they should be assigned

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seniority en  bloc  immediately  below  the  last  Executive Engineer promoted regularly prior to 22nd December 1959. The result  was  that  the  Assistant  Engineers  who  had  been promoted as Executive Engineers regularly within their quota subsequent to  22nd  December  1959  became  junior  to  the Assistant Executive  Engineers  promoted  against  these  86 carried forward  posts, even  though they  might  have  been promoted as  Executive Engineers long prior to the promotion of  such   Assistant  Executive   Engineers.  The  Assistant Executive Engineers  promoted and  adjusted against these 86 carried  forward   posts  were  given  seniority  above  the Assistant Engineers  promoted regularly  within their  quota after 22nd  December, 1959,  irrespective as  to  when  such Assistant Executive  Engineers were actually promoted. After the Assistant Executive Engineers promoted 866 as  Executive  Engineers  were  adjusted  against  these  86 carried forward  posts and  given seniority en bloc over all Assistant Engineers  promoted regularly  within their  quota subsequent to 22nd December 1959, the rotational formula was applied in respect of the posts for the period subsequent to 22nd December  1959 and  these posts  were adjusted  on  the basis of  the order in which the vacancies in the respective quotas  of   Assistant  Executive  Engineers  and  Assistant Engineers  for   promotion  as   Executive  Engineers   were allocated from  time to  time.  The  seniority  inter-se  of Assistant  Executive   Engineers  and   Assistant  Engineers promoted regularly within their respective quotas subsequent to 22nd December 1959 was thus determined by the application of the  rotational formula  based on the quota prevailing at the relevant  time. But  since it  had not  been possible to fill all  the posts  allocated to  the  Assistant  Executive Engineers’ quota and some posts remained unfilled, they were shown as  vacant in the seniority list prepared according to the roster  based on  the rotational formula, so that as and when Assistant  Executive Engineers  might  be  promoted  as Executive Engineers regularly within their quota, they would occupy the  vacant posts earmarked for them in the seniority list. The  disastrous effect of this seniority list was that most  of  the  Assistant  Engineers  promoted  as  Executive Engineers regularly  within their  quota subsequent  to 22nd December 1959  lost  a  considerable  number  of  places  in seniority and  were placed in much worse situation than what they were  in under  the seniority  list dated 1st July 1971 which was quashed at their instance in writ petition no. 489 of 1972.  The petitioners  in writ  petition no. 489 of 1972 therefore filed  an additional affidavit on 26th August 1975 pointing out that the seniority list dated 14th August 1975, though purporting  to be  in compliance  with the directions given by  this  court,  was  totally  in  defiance  of  such directions and  respondent Nos.  l to  3 should therefore be committed for  contempt of this court. It seems that some of the Assistant  Executive  Engineers  promoted  as  Executive Engineers were  also dissatisfied  with the  seniority  list dated 14th August 1975 since it took into account deputation vacancies in  the grade  of Executive  Engineers as  regular vacancies for  the purpose  of application of the quota rule and they  also therefore  filed  their  objections  to  this seniority  list.   The  parties   filed   their   respective affidavits in  answer to  the objections  raised against the seniority list and after the record was completed, the court was invited  to decide  the entire  controversy between  the parties on the basis of these objections and affidavits. But before the  court could  hear  the  objections  against  the seniority list on merits, the first respondent issued on 8th

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June, 1976 the Executive Engineers, Central 867 Engineering  and   Central  Electrical  Engineering  Service (Group A)  (Regulation of Seniority) Rules 1976 (hereinafter referred to  as the  Rules of 1976) in exercise of the power conferred  under   the  proviso   to  Article   309  of  the Constitution. These  Rules were  deemed to  have  come  into force with  effect from  10th December 1974, that is one day before the  delivery of  judgment  by  this  Court  in  writ petition no.  489 of  1972 and they substantially enacted in statutory form the same principles which were set out in the Memorandum that  accompanied the  seniority list  dated 14th August 1975  and on  which that  seniority list  was  based. Rules 2(iii) and 2(iv) which are the material rules provided inter alia as under:      "2(iii):  The  vacancies  in  the  grade  of  Executive                Engineer, which  were earmarked for promotion                from  the   grade  of   Assistant   Executive                Engineer in accordance with quotas prescribed                for them  during the period from 25th August,                1949 to 21st December, 1959, but could not be                filled would be carried forward and filled by                Assistant Executive  Engineers promoted on or                after 22.12.1959.  The inter  se seniority of                such officers will be determined in the order                of their  seniority in the grade of Assistant                Executive Engineer-those  who were considered                unfit for  promotion being  omitted and  they                will  rank   immediately   below   the   last                Executive   Engineer,   promoted   prior   to                (22.12.1959).           (iv) After all  the  vacancies  in  the  grade  of                Executive Engineer,  which were earmarked for                promotion  from   the  grade   of   Assistant                Executive Engineer  in  accordance  with  the                quotas prescribed  for them during the period                from 25th  August,  1949  to  21st  December,                1959, but  could not be filled, are filled by                Assistant Executive  Engineers promoted on or                after 22.12.1959  and such  officers assigned                seniority as  indicated in  (iii) above,  all                subsequent  vacancies   in   the   grade   of                Executive Engineer will be filled by rotation                of vacancies between the Assistant. Executive                Engineers  and  Assistant  Engineers  on  the                basis  of  quotas  prescribed  for  them  for                promotion as  Executive Engineer from time to                time. The  inter se  seniority  of  Assistant                Executive Engineers  and Assistant  Engineers                so  promoted   to  the   grade  of  Executive                Engineer, 868                will also  be determined on the basis of such                rotation of  quotas. For  this  purpose,  the                recruitment roster shall be drawn as under :-                (a)  When the reservation of the vacancies in                     the  grade  of  Executive  Engineer  for                     Assistant   Executive    Engineer    and                     Assistant Engineer  is 66-2/3%  and  33-                     1/3%   respectively   (that   is,   upto                     31.3.1972)                     1st Position )                                  ) Asstt. Executive Engineer                     2nd Position )                     3rd Position   Assistant Engineer

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                   4th Position )                                  ) Asstt. Executive Engineer                     5th Position )                     6th Position Assistant Engineer and so                                  on.                (b)  When the reservation of the vacancies in                     the  grade  of  Executive  Engineer  for                     Assistant   Executive   Engineers,   and                     Assistant Engineers,  is 50%  each (i.e.                     from 1.4.1972  and for  a  period  of  7                     years.)                     1st Position Asstt. Executive Engineers                     2nd Position Asstt. Engineer                     3rd Position Asstt. Executive Engineer                     4th Position Asstt. Engineer and so on."           The petitioners  thereupon filed  the present writ           petition contending  that the  Rules of  1976 were           not  applicable   to  the  petitioners  and  other           Assistant   Engineers    promoted   as   Executive           Engineers regularly  within their  quota prior  to           10th December 1974 and if these Rules were held to           be applicable  then they were unconstitutional and           void.  The   petitioners,  in  the  circumstances,           prayed in  the writ  petition that  the  seniority           list dated  14th August 1975 should be quashed and           a new  seniority list  should be  prepared on  the           basis of  length of  continuous officiation in the           grade of  Executive Engineers  so  that  Assistant           Engineers   promoted    as   executive   Engineers           regularly within their quota should have seniority           over Assistant  Executive Engineers promoted later           in point  of time.  The writ petition was admitted           and  rule  nisi  was  issued  upon  it  and  after           affidavits in  reply were  filed on  behalf of the           respondents, the writ 869           petition taken  up for  hearing by  this Court. In           the course  of the  hearing, we  made a  strenuous           effort to  bring about  settlement  of  this  long           standing dispute  between Assistant  Engineer  and           Assistant   Executive    Engineers   promoted   as           Executive Engineers  but our  effort proved futile           and  hence  we  are  now  proceeding  deliver  our           judgment.      The  petitioners   challenged  the   validity  of   the seniority list  dated 14th August 1975 and the Rules of 1976 on the following grounds:      (A)  The case  of the  petitioners and  other Executive           Engineers promoted  from the  grade  of  Assistant           Engineers regularly  within their  quota from  and           after 22nd  December 1959 but before 11th December           1974 is  covered by  the decision of this Court in           Writ Petition  No. 489  of 1972  and Civil  Appeal           Nos. 1745  to 1747  of 1974  and  hence  they  are           entitled to  claim  seniority,  on  the  basis  of           length of  continuous officiation,  over Assistant           Executive   Engineers    promoted   as   Executive           Engineers later in point of time and the Assistant           Executive Engineers  promoted and adjusted against           86 carried forward posts cannot be given seniority           en  bloc  over  Assistant  Engineers  promoted  as           Executive Engineers earlier nor can the rotational           formula  be   applied  retrospectively  so  as  to           deprive  Assistant  Engineers  promoted  Executive           Engineers of  their  seniority  on  the  basis  of

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         length of  continuous officiation  in the grade of           Executive Engineers  and the Rules of 1976 are, to           that extent,  unconstitutional and  void as  being           outside the power of the Central Government.      (B)  Since the  Rules of  1976 have  been brought  into           force with  effect from  10th December  1974, they           cannot affect  the petitioners and other Assistant           Engineers   promoted    as   Executive   Engineers           regularly within  their quota  prior to  that date           and their  seniority vis-a-vis Assistant Executive           Engineers promoted  as  Executive  Engineers  must           continue to be governed by the principle of length           of  continuous   officiation  in   the  grade   of           Executive Engineers.      (C)  If  the   Rules  of   1976  are   applicable   for           determining  inter   se  seniority   of  Executive           Engineers promoted  from the  grades of  Assistant           Engineers and Assistant Executive Engineers within           their  respective   quotas  from  and  after  22nd           December 1959, they are unconstitutional and void 870           as  offending   Articles  14   and   16   of   the           Constitution, since the seniority rules enunciated           in the Rules of 1976 being closely linked with the           quota rule  continued massive  departure from  the           quota rule  over a long period of time must result           in the  break down  of the  seniority rules and to           apply the  seniority rules  in  such  a  situation           would create  gross inequality  of opportunity  of           employment violative of Articles 14 and 16. These were the broad grounds of challenge urged on behalf of the petitioners  and we  shall now proceed to deal with them in the order in which we have set them out.      RE: GROUND  (A). This  ground is  based on the decision rendered by  this Court in writ Petition No. 489 of 1972 and Civil Appeals  Nos. 1745 to 1747 of 1974. It is necessary in order to appreciate this ground to know who were the parties in writ  petition No. 489 of 1972 and Civil Appeal Nos. 1745 to 1747  of 1974.  The  petitioners  in  writ  Petition  No. 489/1972 were  Assistant  Engineers  promoted  as  Executive Engineers between 27th December 1956 and 8th September, 1959 by a  properly constituted  Departmental Promotion Committee and barring one petitioner, all the others had been promoted to  the   grade  of   Executive  Engineers  prior  to  their confirmation as  Assistant Engineers.  The promotion of each of the  petitioners when  made was in excess of the quota of Assistant Engineers  and all of them were therefore required to be  pushed down  to later  years for  absorption in their lawful quota for those years and through this process, their promotions were regularised on different dates subsequent to 22nd  December   1959.  The   petitioners  were   thus   all officiating Executive  Engineers promoted  from the grade of Assistant Engineers  regularly within their quota after 22nd December 1959.  The contesting respondents Nos. 4 to 66 were Assistant  Executive   Engineers   promoted   as   Executive Engineers within  their quota  between 11th  March 1957  and 23rd February 1966 and obviously therefore some of them were Assistant Executive  Engineers promoted  on dates subsequent to 22nd  December 1959.  The contest between the petitioners and respondent  Nos. 4 to 66 was therefore not confined only to  those   Assistant  Engineers   and  Assistant  Executive Engineers who were promoted as Executive Engineers regularly within their  respective quota  prior to  22nd December 1959 but it extended also to Assistant Engineers and 871

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Assistant  Executive   Engineers   promoted   as   executive Engineers  subsequent   to  that  date.  The  same  position obtained  also   in  regard   to  the  contest  between  the appellants and  the respondents  in C.A.  Nos  1745-1747  of 1974. The  appellants in  these appeals  were all  Assistant Engineers promoted  as Executive  Engineers, and though some of them were promoted prior to 22nd December 1959, they were regularised in  their appointment by absorption within their legitimate quota  subsequent to 22nd December 1959, since at the  time  when  they  were  in  initially  promoted,  their promotions  were   in  excess  of  the  quota  of  Assistant Engineers and they were therefore required to be pushed down to later  years for absorption within their quota. The large majority of  the appellants, if not all, were thus Assistant Engineers promoted  as Executive  Engineer regularly  within their quota  after 22nd December 1959 and in C.A. Nos. 1745- 47 of  1974 preferred  by them,  they claimed seniority over the contesting  respondents  who  were  Assistant  Executive Engineers promoted later in point of time. This claim of the appellants  was   disputed  on   behalf  of  the  contesting respondents who  submitted that  they had been rightly given seniority over  the appellants  by adopting  the  rotational formula. This controversy as to seniority between two groups of Executive Engineers, on the one hand, the petitioners and the appellants,  a large number of whom were promoted within their quota  subsequent to  22nd December  1959 and  on  the other, the  contesting respondents  of whom  also a sizeable number were  promoted  as  Executive  Engineers  after  22nd December 1959,  was resolved  by this  Court by its decision dated 11th December 1974 and it was held that the quota rule has to  be applied  at the  time of  initial recruitment  in officiating capacities  to the  grade of Executive Engineers and  if  any  Assistant  Engineers  are  promoted  Executive Engineers in  excess of  their quota  in a  particular year, they would  have to  be  pushed  down  to  later  years  for absorption when due within their quota and more importantly, when  Assistant   Engineers  are   promoted  as  officiating Executive Engineers  regularly  within  their  quota,  their seniority in  the grade  of Executive  Engineer would  count from the  date of their regular promotion within their quota and on  the basis  of this  holding, the  Union of India was directed to  amend and revise the seniority list and to give effect to  the seniority  lists so  revised. It is therefore clear and  we do  not think  this position  can admit of any doubt whatsoever, that even in regard to Executive Engineers promoted  from   the  grades   of  Assistant  Engineers  and Assistant Executive  Engineers subsequent  to 22nd  December 1959, the  direction given  by  the  Court  was  that  their seniority inter  se should  be determined  on the  basis  of length of continuous officiation 872 in the grade of Executive Engineers counted from the date of their regular  promotion within  the respective quota. It is also obvious  on a  plain reading  of the  decision of  this Court  that   the  direction   given  by  it  in  regard  to determination of  inter se  seniority on the basis of length of continuous  officiation  was  not  limited  to  Executive Engineers promoted  from the  grades of  Assistant Engineers and Assistant  Executive Engineers  upto 22nd  December 1959 but was  on its  plain terms  applicable  to  all  Executive Engineers promoted  from the  grades of  Assistant Engineers and Assistant  Executive Engineers  within their  respective quota right  upto 11th  December 1974  being the date of the decision of  the Court.  Moreover, it may also be noted, and this is  a circumstance  of considerable weight, that in any

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event the  seniority list  which was  directed to be amended and revised  by following  the rule  of seniority  based  on length of  continuous officiation  was seniority list of 1st July 1971  which determined  inter se  seniority amongst the Executive Engineers  promoted from  the grades  of Assistant Engineers and Assistant Executive Engineers right upto June, 1971. It  is the  inter se seniority amongst these Executive Engineers covered  by the  seniority list  of 1st  July 1971 that was  directed to be amended and revised on the basis of length of  continuous officiation  in the grade of Executive Engineers. The  Government of  India was  therefore bound to revise the  seniority list  of Executive  Engineers  on  the basis that  the inter  se seniority  of Executive  Engineers drawn from  the grades  of Assistant Engineers and Assistant Executive Engineers  should be  determined on  the basis  of length of  continuous officiation  in service  after regular appointment within  their respective  quota irrespective  of whether such  regular promotion  within the respective quota was before  or after  22nd December  1959. But  the  revised seniority  list   dated  14th  August  1975  issued  by  the Government  of   India  was  plainly  in  defiance  of  this direction given  by the  Court and  what the  Government  of India did  was to  adjust the  first 86  Assistant Executive Engineers promoted  after  22nd  December  1959  against  86 carried forward posts and to give them seniority enable over all Assistant  Engineers  promoted  as  Executive  Engineers regularly within  their quota  subsequent to  22nd  December 1959 and  then to  apply the rotational formula in regard to the other  vacancies subsequent  to 22nd  December 1959. The result was  that most of the Assistant Engineers promoted as Executive  Engineers  lost  a  large  number  of  places  in seniority and  were reduced  to a  position much  worse than that in  which they were under the earlier seniority list of 1st July  1971. The  success which  the petitioners  and the appellants 873 had achieved  in writ  petition No.  489 of  1974 and  Civil Appeal Nos.  1745-47 of  1974 was  turned into  a defeat and they were  badly mauled in the ultimate result. The question is whether  despite the direction given by this Court in its decision dated  11th December  1974 and  in face  of it, the Government  of  India  was  justified  in  fixing  inter  se seniority  between   Assistant   Engineers   and   Assistant Executive Engineers  promoted regularly  within their  quota from and  after 22nd  December 1959  on the basis set out in the Memorandum dated 14th August 1975 and the Rules of 1976.      The Government  of India  sought to  avoid the  binding obligation of  the direction  given  by  the  Court  in  its decision dated  11th December  1974 by  making the  Rules of 1976 effective from 10th December 1974, one day prior to the date  of   the  decision.  The  assumption  underlying  this manoeuvre on the part of the Government of India was that if the Rules of 1976 were brought into force with effect from a date prior  to the  decision of the Court in A.K. Subraman’s case  (supra)   they  would   nullify  that   decision   and notwithstanding that  decision recognising and giving effect to a different rule of seniority, namely, the rule of length of continuous  officiation, the  Rules of 1976 would prevail and the  inter  se  seniority  between  Executive  Engineers promoted  form   the  grades   of  Assistant  Engineers  and Assistant Executive  Engineers subsequent  to 22nd  December 1959 would  be governed  by those Rules. This assumption, we are afraid,  is wholly unfounded and the argument based upon it cannot be sustained. When this Court has in so many terms laid down that the inter se seniority of Executive Engineers

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promoted  from   the  grades   of  Assistant  Engineers  and Assistant Executive  Engineers upto  11th December 1974 must be held  to be  governed by the rule of length of continuous officiation and the Government of India has been directed by a writ  of the Court to amend and revise, the seniority list of 1st  July 1971 on the basis of this rule of seniority, it is difficult  to see  how the effect of this decision can be set at  naught and  the binding character of the writ issued against the Government of India can be abrogated by the mere promulgation of  the Rules of 1976 with retrospective effect from 19th  December 1974. It is significant to note that the Explanatory Memorandum  which was in the nature of statement of objects and reasons for the Rules of 1976 did not seek to override the  effect of the decision in A.K. Subraman’s case (supra) but  on the contrary affirmed that the principles of seniority set out in those rules were laid down on the basis of the  decision in  A.K. Subraman’s case (supra). The Rules of 1976 were in no way intended to set at 874 naught the  decision in  A.K. Subraman’s  case (supra) in so far as it laid down the rule of seniority based on length of continuous officiation for Executive Engineers promoted from the grades  of Assistant  Engineers and  Assistant Executive Engineers, but  it was  claimed that  they were  made with a view to  giving effect  to the  direction contained  in that decision. That  is the  reason why  we do  not find any non- obstante clause  giving overriding  effect to  the rules  of seniority enunciated  in the  Rules of  1976 notwithstanding the decision  in A.K.  Subraman’s case  (supra).  Since  the Rules of  1976 purport  merely to  carry out  the  direction given in  the decision  in A.K. Subraman’s case (supra) they cannot have  the effect  of  overriding  that  decision  and absolving the  Government of  India from  the obligation  to implement this  direction and  the Government  of India must therefore amend  and revise  the seniority  list of 1st July 1971 by  applying the  rule of  seniority based on length of continuous officiation for determining inter se seniority of Executive Engineers  promoted from  the grades  of Assistant Engineers  and   Assistant  Executive  Engineers  upto  11th December  1974.  The  relative  position  of  the  Executive Engineers in  regard to their inter se seniority having been crystallised in the decision in A.K. Subarman’s case (supra) and a  writ having  been issued  by this Court directing the inter se seniority of the Executive Engineers to be fixed on the basis of length of continuous officiation, the Executive Engineers promoted  from the  grade of  Assistant  Engineers were entitled  to enforce  the writ  for  determining  their inter se  seniority with  the Executive  Engineers  promoted from  the   grade  of   Assistant  Executive   Engineers  in accordance  with   the  rule   of   length   of   continuous officiation. This  right of the Executive Engineers promoted from the  grade of Assistant Engineers under the decision in A.K. Subraman’s  case (supra)  could not  be taken  away  by anything contained  in the  Rules of  1976. The  decision in A.K. Subraman’s  case (supra)  continued to  subsist and the Government  of   India  was  bound  to  determine  inter  se seniority amongst the Executive Engineers in accordance with the direction contained in that decision.      The respondents  in answer  to this  contention of  the petitioners leaned  heavily on the decision of this Court in Shri  Prithvi   Cotton  Mills   Ltd.   v.   Broach   Borough Municipality and submitted that whatever might have been the rule of  seniority on  which the  decision of  this Court in A.K. Subraman’s case (supra) was based, the basis 875

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of that  decision was  fundamentally altered  in so  far  as inter se  seniority of Executive Engineers promoted from the grades  of   Assistant  Engineers  and  Assistant  Executive Engineers subsequent  to 22nd  December 1959  was concerned, because  Rules  2(iii)  and  2(iv)  of  the  Rules  of  1979 retrospectively provided  for a  different rule of seniority and that  rendered the  decision ineffective and not binding on the parties. We have carefully considered the decision of this Court  in Shri Prithvi Cotton Mills case (supra) but we do not  think that  this decision  lays down  any such  wide proposition  as   is  contended   for  on   behalf  of   the respondents. It  does not  say that  whenever any  actual or legal situation  is altered  by retrospective legislation, a judicial decision  rendered by  a Court on the basis of such factual or  legal situation  prior to  the alteration  would straight away   without  more, cease  to  be  effective  and binding on  the parties.  It is  true that there are certain observations in  this decision  which seem to suggest that a court decision  may cease  to be binding when the conditions on which  it is  based are so fundamentally altered that the decision  could   not  have   been  given   in  the  altered circumstances. But these observations have to be read in the light of  the he  question which  arose for consideration in that case.  There, the validity of the Gujarat imposition of Taxes by  Municipalities (Validation) Act, 1963 was assailed on behalf  of the  petitioners. The Validation Act had to be enacted  because   it  was  held  by  this  Court  in  Patel Gordhandas Hargovindas  v. Municipal Commissioner, Ahmedabad that since  section 73  of the  Bombay Municipality Boroughs Act, 1925  allowed the  Municipality to  levy  a  ’rate’  on buildings or  lands and  the term  ’rate’ was confined to an imposition on the basis of annualetting value, tax levied by the Municipality  on lands  and buildings  on the  basis  of capital value  was invalid.  Section 3 of the Validation Act provided that  notwithstanding any  thing contained  in  any judgment, decree  or order  of a  court or  tribunal or  any other authority,  no tax  assessed or purported to have been assessed by  a municipality on the basis of capital value of a building  or land  and imposed,  collected or recovered by the municipality  at any time before the commencement of the Validation Act  shall be  deemed to have invalidly assessed, imposed,  collected   or  recovered   and  the   imposition, collected or  recovery of the tax so assessed shall be valid and shall  be deemed to have always been valid and shall not be  called  in  question  merely  on  the  ground  that  the assessment of  the tax  on the basis of capital value of the building or land 876 was not  authorised  by  law  and  accordingly  any  tax  so assessed before  the commencement  of the validation Act and leviable for  a period  prior to  such commencement  but not collected or  recovered  before  such  commencement  may  be collected or  recovered  in  accordance  with  the  relevant municipal law.  It will  be seen  that by  section 3  of the impugned Act  the Legislature retrospectively imposed tax on building or  land on  the basis  of capital value and if the tax was already imposed, levied and collected on that basis, made the imposition levy, collection and recovery of the tax valid, notwithstanding  the declaration by the Court that as ’rate’,  the   levy  was   incompetent.  This   was  clearly permissible to  the Legislature  because in  doing  so,  the Legislature did  not seek  to reverse  the decision  of this Court  on   the  interpretation  of  the  word  ’rate’,  but retrospectively amended  the law by providing for imposition of tax on land or building on the basis of capital value and

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validated the  imposition, levy  collection and  recovery of tax on  that basis.  The decision  of this Court holding the levy of  tax to be incompetent on the basis of the unamended law, therefore, became irrelevant and could not stand in the way of  the tax  being assessed,  collected and recovered on the basis  of capital value under the law as retrospectively amended. That is why this Court held that the Validation Act was effective  to validate  imposition, levy, collection and recovery of  tax on land or building on the basis of capital value. It is difficult to see how this decision given in the context of  a validating  statute can  be of any help to the respondents. Here  the  decision  in  A.K.  Subraman’s  case (supra) which  is relied  upon by  the petitioners  is not a mere declaratory  judgment holding  an impost  or tax  to be invalid, so  that a validation statute can remove the defect pointing out  by that  judgement and validate such impost or tax. But  it is a decision giving effect to the right of the Executive Engineers  promoted from  the grade  of  Assistant Engineers to  have their  inter se  seniority with Executive Engineers promoted  from the  grade of  Assistant  Executive Engineers determined  on the  basis of  rule  of  length  of continuous officiation  by issue  of a  writ  directing  the Government of  India to  amend and revise the seniority list in accordance  with such rule of seniority: Rules 2(iii) and 2(iv) seek to substitute with retrospective effect a totally different rule  of seniority in place of that recognised and given effect by the decision in A.K Subraman’s case (supra). That obviously cannot be done. Rules 2(iii) and 2(iv) cannot by retrospective alteration of the rule of seniority nullify the decision  in A.K.  Subraman’s case  which has recognised and given effect to an existing rule of seniority and issued a writ against 877 the Government  of India  on that  basis. If  by  reason  of retrospective  alteration  of  the  rule  of  seniority  the decision is  rendered erroneous, the remedy may be by way of review, but  so long  as the  decision stands,  it cannot be disregarded  or  ignored  and  it  must  be  obeyed  by  the Government of India despite Rules 2(iii) and 2(iv) so far as the  Executive   Engineers  promoted   from  the  grades  of Assistant Engineers  and Assistant  Executive  Engineers  up to 11th  December 1974  are concerned. This view taken by us finds complete support from the judgment of one of us namely Bhagwati, J. in M.M. Pathak v. Union of India & Ors.      The respondents  also relied heavily on the decision of this  Court   in  Bishan  Sarup  Gupta  v.  Union  of  India (hereinafter referred  to as  the  2nd  Bishan  Sarup  Gupta case). It was contended on behalf of the respondents that in the 2nd  Bishan Sarup  Gupta case,  this  Court  upheld  the rotational rule  of  seniority  which  determines  seniority according to  a roster  of 1:1  amongst direct  recruits and promotees in  the Income-Tax  officers (Class  1) Service in the circumstances  closely resembling  the present  case and Rules 2(iii)  and 2(iv)  of the  Rules of  1976 in so far as they gave  seniority en  bloc  to  the  Assistant  Executive Engineers promoted  to  the  86  carried  forward  posts  of Executive Engineers  and applied  the rotational formula for the  purpose  of  determining  seniority  amongst  Assistant Engineers and  Assistant Executive Engineers promoted to the subsequent vacancies  in the  grade of  Executive Engineers, must therefore,  be upheld  by us  on analogical  reasoning. This contention,  plausible though  it may  seem, is, in our opinion, without  force and  must be rejected. The situation in  the  2nd  Bishan  Sarup  Gupta  case  was  fundamentally different from  that in  the present case. The Court, in the

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Ist Bishan  Sarup Gupta case, came to the conclusion that on 16th January,  1959 the  quota rule for filling up vacancies amongst Income-Tax officers (Class I) collapsed by reason of upgrading of  100 Class II posts and with that also went the seniority rule  set out  in Rule  1 (f)  (iii), because this rule of  seniority could be upheld as constitutionally valid only if  the quota  rule was  strictly observed,  with  only minor deviations  permitting, and  the question,  therefore, arose that  "if the  seniority rule 1 (f) (iii) ceased to be operative from  16th January,  1959’  how  is  the  inter-se seniority between  the direct  recruits and the promotees to be fixed thereafter ?" There was no 878 specific seniority  rule  to  determine  inter-se  seniority between the  direct recruits  and  the  promotees  appointed regularly within  their respective quota from and after 16th January, 1959  and though,  in the  absence of  any specific seniority rule,  the Court  could have applied the residuary rule based  on length  of continuous  officiation, the Court did not  do so  because it felt that since the old seniority rule had  ceased to operate by reason of the Infringement if the quota  rule, it would be for the Government to devise "a Just and  fair seniority rule as between the direct recruits and the  promotees for  being  given  effect  to  from  16th January, 1959."  It was  pursuant to this direction given by the Court  that the rotational rule of seniority impugned in the 2nd  Bishan Sarup Gupta case was made the Government and this seniority  rule did not seek to undo the effect of that decision. Now, in the present case also, by reason of clause 3 of  the Memorandum  dated 22nd December, 1959, the rule of seniority  based   on  length   of  continuous   officiation enunciated in  the Memorandum  dated 22nd June, 1949 came to an  end  and  thereafter  until  the  Rules  of  1976,  were formulated, there  was no  specific rule  of seniority which governed inter-se  seniority between Assistant Engineers and Assistant  Executive   Engineers   promoted   as   Executive Engineers regularly within their respective quota subsequent to 22nd  December, 1959. The Memorandum dated 22nd December, 1959 was  undoubtedly in  force, but  for reasons  which  we shall presently  state, neither Paragraph 5(ii) relied on by the petitioners nor paragraph 6 relied on by the respondents had any  application for  determining inter-se  seniority in the grade  of Executive  Engineers. The  Court  could  have, therefore, followed  the same  course as  in the  1st Bishan Sarup Gupta  case and  in the  absence of a specific rule of seniority to  determine inter se seniority amongst Assistant Engineers and  Assistant Executive Engineers promoted to the grade of  Executive Engineers  from and after 22nd December, 1959, the  Court could have directed the Government of India to evolve  a new  rule of  seniority. But  the Court instead chose to  adopt the  rule of  seniority based  on length  of continuous  officiation  and  directed  inter  se  seniority amongst  Assistant   Engineers   and   Assistant   Executive Engineers promoted  to  the  grade  of  Executive  Engineers regularly within their respective quota upto the date of its decision, to  be determined  on the application of this rule of seniority based on length of continuous officiation. This course, the Court was clearly entitled to adopt, because, as we shall presently point out, when there is no specific rule governing determination  of seniority in a grade, the normal rule applicable would be 879 to determine  seniority on the basis of length of continuous officiation in the grade and the Court could certainly adopt this residuary  rule and  direct inter  se seniority  in the

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grade to be fixed on the application of this seniority rule. It will  thus be  seen that  while in Ist Bishan Sarup Gupta case, the  Court left  it to  the Government  to decide what rule of seniority should be devised for determining inter se seniority between  the direct  recruits  and  the  promotees appointed from  and after  16th January,  1959, the Court in the present  case did  not leave  it to  the  Government  to evolve a  new Rule  of seniority  for determining  inter  se seniority  amongst   Assistant   Engineers   and   Assistant Executive Engineers promoted as Executive Engineers from and after 22nd  December, 1959  but itself  laid down  that such inter se seniority shall be determined on the application of the  rule   of  seniority  based  on  length  of  continuous officiation. This constituted a vital difference between the lst Bishan  Swarup Gupta  case and  the present case and the Government was not entitled, as in the case of Bishan Swarup Gupta and other Income-Tax officers, to evolve a new rule of seniority different from that recognised and given effect to by the  Court in  A.K Subraman’s  decision  for  determining seniority  amongst   Assistant   Engineers   and   Assistant Executive  Engineers   promoted   as   Executive   Engineers regularly with in their respective quota from and after 22nd December, 1959.  To permit  the Government to do so would be in plain defiance of the direction given by the Court in A.K Subraman’s case.      The petitioners  relied strongly on paragraph 5 (ii) of the Memorandum  dated 22nd December, 1959 and contended that the seniority  rule laid down in this Paragraph governed the determination  of   seniority  amongst  Executive  Engineers promoted  from   the  Grades   of  Assistant  Engineers  and Assistant Executive  Engineers from and after 22nd December, 1959  and  if  this  rule  of  seniority  was  applied,  the Assistant Engineers  promoted regularly  within their  quota after selection  by the  Departmental promotion Committee in any year  would rank  higher than  the  Assistant  Executive Engineers promoted,  in the  subsequent years  and  in  that view, the  seniority list  dated 14th  August, 1975  and the Rules of  1976 in  so far  as they give seniority en bloc to the Assistant Executive Engineers promoted to the 86 carried forward  posts   of  Executive   Engineers  and   apply  the rotational formula  for the purpose of determining seniority amongst  Assistant   Engineers  and     Assistant  Executive Engineers promoted to the subsequent vacan- 880 cies in  the Grade  of Executive Engineers, would clearly be unconstitutional and  void as  retrospectively affecting the seniority of  the  Executive  Engineers  promoted  from  the Grades  of   Assistant  Engineers  and  Assistant  Executive Engineers within  their respective quota from and after 22nd December, 1959.  This contention  was urged before us with a certain degree of plausibility but on close scrutiny we find that it  is not  well  founded.  There  are  two  formidable answers to  this contention and each answer is sufficient to warrant rejection of this contention.      In the  first place,  it may  be pointed  out that this contention is  no longer  open to the petitioners in view of the decision in A.K. Subraman’s case where the Court applied the  rule   of  seniority  based  on  length  of  continuous officiation  for   determining  inter-se  seniority  amongst Assistant  Engineers   and  Assistant   Executive  Engineers promoted  as  Executive  Engineers  regularly  within  their respective quota upto 11th December, 1974, being the date of the decision  and directed  such inter-se  seniority  to  be determined on  the application  of this seniority rule. Even if the  rule of  seniority set  out in  Paragraph 5(ii) were

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otherwise applicability must stand negatived by the decision in A.K.  Subraman’s case  which is  binding on  the parties. Moreover, it  may noted  that in A.K. Subraman’s case it was conceded on  behalf of  respondents Nos.  1 and  2 that this Memorandum was not relevant to the question of determination of seniority between the petitioners and the respondents. In that case  though the  promotion of  some of the petitioners was  regularised   by  absorption   in  their  lawful  quota subsequent  to   22nd  December,   1959,  and  some  of  the respondents were  also  promoted  as  officiating  Executive Engineers within  the  their  quota  after  that  date,  the learned counsel  appearing on  behalf of the petitioners did not contend  that Paragraph  5(ii) of  the Memorandum  dated 22nd December,  1959 was  applicable to  determine  inter-se seniority amongst such of the petitioners and respondents as were promoted  after 22nd December, 1959 and agreed with the concession made  on behalf  of respondents Nos. I and 2 that the Memorandum  dated 22nd  December 1959 was irrelevant and likewise no  discordant note  was struck also by the learned counsel appearing  on behalf  of  the  respondent  Assistant Executive Engineers and it was not contended on their behalf that so  far as the petitioners and the respondent Assistant Executive Engineers  promoted regularly  within their lawful quota subsequent  to 22nd  December,  1959  were  concerned, their seniority 881 was governed  by Paragraph  5(ii) or  any other paragraph of the Memorandum  dated 22nd December, 1959. Therefore, it was the common  case of  all the parties including the Assistant Engineers and  the Assistant  Executive  Engineers  and  the Assistant  Executive   Engineers   promoted   as   Executive Engineers that  neither the  rule of  seniority set  out  in paragraph 5(ii)  nor the seniority rule set out in any other paragraph of  the Memorandum  dated 22nd  December, 1959 was applicable.      But, since  the case has been argued fully before us we would consider  the applicability  of Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 on merits. There can be no doubt  that the  contention of  the petitioners  based on Paragraph 5(ii)  would have  had great  force if  on a  true interpretation of  that paragraph, the rule of seniority set out  in   that  provision   could  be  held  to  govern  the determination of  seniority amongst  the Executive Engineers promoted from  the Grades  of Assistant  Executive Engineers from and  after 22nd December, 1959 being the date when this rule of  seniority came  into force.  But we are of the view that the rule of seniority set out in Paragraph 5(ii) of the Memorandum  dated   22nd  December,   1959  could   have  no application in  case of  promotions made  to  the  Grade  of Executive Engineers  from the  Grades of Assistant Engineers and Assistant  Executive Engineers.  Paragraph 5(ii)  of the Memorandum dated 22nd December, 1959 read as follows :      "5(ii): Where  promotions to a grade are made from more      than one  grade, the eligible persons shall be arranged      in separate  lists  in  the  order  of  their  relative      seniority in  their respective  grades. Thereafter, the      Departmental Promotion  Committee shall  select persons      for promotion  from each list upto the prescribed quota      and arrange  all the candidates selected from different      lists in  a consolidated  order  of  merit  which  will      determine the  seniority of the persons on promotion to      the higher grade." and the  rule of  seniority set  out in  this provision  was explained  by   the  following   illustration  given  in  an Explanatory Note  attached  to  the  Memorandum  dated  22nd

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December, 1959 :           "Note :  If separate quotas for promotion have not      already been  prescribed in  the  relevant  recruitment      rules, the  Ministries/Departments may  do so,  now  in      consultation with the Commission wherever necessary." 882      This rule of seniority, on the plain terms of Paragraph 5(ii) applied  only in  a situation  "where promotions  to a Grade are made from more than one Grade" and the argument of respondents Nos. 4 to 190 was that when this provision spoke of promotions  to a  Grade from  more  than  one  Grade,  it referred to  promotions within  the same  service, that  is, where the  grades from which promotions are made as also the grades of  promotion are all grades within the same service, but where  one of  the grades from which promotions are made belongs to  a lower  service than the grade of promotion and the promotion  is therefore from a lower service to a higher service, the  rule of  seniority set  out in  this provision could have  no application. Respondents Nos. 4 to 190 in the circumstances submitted  that since  the grade  of Assistant Engineers was  in  Class  II  Service  while  the  grade  of Executive Engineers  was in  Class I  Service, the  rule  of seniority laid down in this provision was not applicable for determining seniority  in the  grade of Executive Engineers. We  do  not  think  this  argument  advanced  on  behalf  of respondents Nos. 4 to 190 is well-founded. The postulate for the applicability  of the  rule of seniority set out in this provision simply  reads: "Where  promotions to  a Grade  are made from more than one Grade" and it does not introduce any requirement that  the grades  from which  the promotions are made should  belong to  the same  service as  the  garde  of promotion. It  is no  doubt true that the illustration given in the Explanatory Note refers to promotions from the grades of Upper  Division Clerks  and store keepers to the grade of Head Clerk  and all these grades belong to Class III Service but it  would not be right to limit the applicability of the seniority rule  set out in this provision by reading into it a  limitation   which  is   not  there,  merely  because  an illustration   of the  applicability of  the seniority  rule given in  the Explanatory  Note relates  to a case where the grades are  all in  the same  service. If the interpretation contended for  on behalf  of respondents  Nos. 4 to 190 were correct, the  rule of  seniority set  out in  this provision would not  be applicable  where both  the grades, from which the promotions are made, belong to a lower service while the grade of  promotion belongs to a higher service and for such a case, there would be no rule of seniority laid down in the Memorandum  date   22nd  December,   1959  which   would  be applicable. We  are clearly  of the  view that  the rule  of seniority set  out in  Paragraph 5(ii) would be attracted in all cases  where promotions  to a  grade are  made from more than one  grade, irrespective as to whether these grades all belong to  the same  service  or  not  and,  therefore,  the applicability  of  this  rule  of  seniority  could  not  be repelled in the present case on 883 the ground  that the grade of Assistant Engineers belongs to Class II  Service while  the grade  of  Executive  Engineers belongs to Class I Service.      But, there is a more fundamental reason why the rule of seniority set out in paragraph 5(ii) of the Memorandum dated 22nd December,  1959 must  be held to be inapplicable in the case of  promotion to  the grade of Executive Engineers. The promotion from  the grade  of Assistant  Executive Engineers was by selection on merit while the promotion from the grade

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of Assistant  Engineers was  on the  basis of seniority cum- fitness. There  was no  element of selection on merit in the case of  Assistant Engineers  as in  the case  of  Assistant Executive Engineers  and the  entire basis of promotion from the two  grades  was  different.  Moreover,  this  provision postulated  the   existence  of   one  single   Departmental Promotion Committee  for the selecting persons the promotion from  the   grades  of  Assistant  Engineers  and  Assistant Executive Engineers  and it  was  this  single  Departmental Promotion  Committee,   which  was   to  "arrange   all  the candidates selected  from different  lists in a consolidated order of merit which will determine the seniority of persons on promotion"  to the  grade of  Executive  Engineers,  Now, there was  some controversy  between the  parties whether in the case  of promotions to the grade of Executive Engineers, there was  one single  Departmental Promotion  Committee for selecting person  from the grades of Assistant Engineers and Assistant  Executive   Engineers  or   there  were  separate Departmental Promotion Committees-one for selection from the grade of  Assistant Engineers  and the  other for  selection from the grade of Assistant Executive Engineers. Respondents Nos. 1  and 2  in the  counter affidavit  filed by  S.R. Roy Choudhury asserted  that in case of selection from the grade of Assistant  Engineers, the Union Public Service Commission was associated  with the  Departmental  Promotion  Committee while in  case of  selection from  the  grade  of  Assistant Executive Engineers, the Union Public Service Commission was not so  associated and  a combined  grouping of  the persons sought to  be promoted  from the  two groups was, therefore, not possible. The first petitioner however, in the rejoinder affidavit filed by him on behalf of the petitioners disputed the  correctness   of  this  avernment  made  on  behalf  of respondents Nos.  1 and 2 and submitted that it was wrong to suggest "that  the UPSC  is  not  associated  with  the  DPC because in all the selections concerned with the petitioners and the respondents, a Member of the UPSC 884 was on  both the  DPCS" and  in this connection he relied on rule 4  of Section   7  of Chapter  V at page 48 of the CPWD Manual, Volume I (1970 Edition). It is not necessary for the purpose of  determining the  applicability of  the  rule  of seniority in  Paragraph 5(ii)  of the  Memorandum dated 22nd December, 1959  to decide  whether a  Member  of  the  Union Public  Service   Commission   was   associated   with   the Departmental Promotion  Committee for selection of Assistant Executive Engineers  or not. It is implicit in the statement of the  first petitioner  in his  rejoinder  affidavit  that there were  two different  Departmental Promotion Committees for selecting  persons for  promotion  from  the  grades  of Assistant Engineers  and Assistant  Executive Engineers. The composition of  the Departmental  promotion Committees being different and  the criteria  for promotion  to the  grade of Executive Engineers  also being  different in  the  case  of Assistant Engineers and Assistant Executive Engineers, it is difficult to  conceive how  combined  merit  rating  on  the persons sought  to be  promoted from  the two  groups  could possibly be  made as  envisaged in  paragraph 5(ii)  of  the Memorandum dated  22nd December, 1959. It was suggested that a comparative assessment of the merits of the persons chosen from two  groups could  made on  the basis of still be as to which   Departmental   Promotion   Committee   would   their confidential reports,  but the question would still be as to which  Departmental   Promotion  Committee  would  make  the comparative  assessment   and  even   if  the   Departmental Promotion Committee  for selection of persons to be promoted

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from the  two groups  was  the  same,  it  is  difficult  to appreciate how  and comparative  assessment  of  the  merits could be  made on  the basis  of confidential  reports.  The confidential reports  of the  officers from  the two  groups would not be written by the same officer or even by officers of  equivalent  rank,  because  in  the  case  of  Assistant Engineers promoted  as officiating  Executive  Engineers  in excess of their quota and consequently pushed down for being absorbed  within   their  quota   in  later   years,   their confidential reports  for the preceding three years would be written in  respect  of  their  performance  as  officiating Executive Engineers  by the  Superintending Engineers, while in  the   case  of   Assistant  Executive  Engineers,  their confidential reports  for the preceding three years would be written  in   respect  of  their  performance  as  Assistant Executive Engineers  by the Executive Engineers. Thus at the point of  time when  in any particular year, the officers of the two  streams meet  for their  seniority in  the grade of Executive Engineers, their confidential reports would not be by the  same officers or even by officers of equivalent rank and it would be almost 885 impossible to  arrive at  a comparative  assessment of their respective  merits  for  the  purpose  of  working  out  the seniority rule  in Paragraph  5(ii) of  the Memorandum dated 22nd December,  1959. Moreover,  in fact this seniority rule was never  regarded as  applicable in  case of promotions to the grade  of Executive  Engineers and the procedure set out there was  not followed  at any time while making promotions from  the   grades  of  Assistant  Executive  Engineers  and Assistant Engineers  to the  grad of Executive Engineers. It is, therefore,  clear that  the seniority  rule set  out  in Paragraph 5(ii)  of Memorandum  dated  22nd  December,  1959 could not  be invoked  for determining  inter  se  seniority between Executive  Engineers from  the grades  of  Assistant Engineers  and   Assistant  Executive   Engineers  and   the petitioners could  not legitimately  found any argument upon that seniority  rule for  the purpose  of  invalidating  the seniority list  dated 14th  August, 1975  and the  Rules  of 1976.      It is  interesting to  note that  while the petitioners relied on  Paragraph 5(ii)  of  the  Memorandum  dated  22nd December  1959,  respondent  Nos.  4  to  190  rested  their argument on  Paragraph 6  of this Memorandum. They contended that  the   rotational  formula   adopted  for   determining seniority  amongst   Assistant   Engineers   and   Assistant Executive Engineers  promoted  to  the  grade  of  Executive Engineers from  and after  22nd December,  1959, subject  to precedence  being  given  en  bloc  to  Assistant  Executive Engineers promoted  to fill  in 86  carried forward posts of Executive Engineers,  was in  consonance with Paragraph 6 of the Memorandum  dated 22nd December, 1959 and did not in any way affect  retrospectively the  inter se  seniority of  the Executive Engineers  promoted from  the grades  of Assistant Engineers and  Assistant Executive  Engineers. We are afraid this contention  is not  open to respondent Nos. 4 to 190 in view of  the decision  of this Court in A K. Subraman’s case and moreover  as already  pointed out  by us while rejecting the contention  of the petitioners based on Paragraph 5(ii), it was  the common  case of  all the  parties including  the Assistant Engineers  and the  Assistant Executive  Engineers promoted as  Executive Engineers  that the  Memorandum dated 22nd December,  1959  was  irrelevant  for  the  purpose  of determining the  inter se  seniority amongst  the  Assistant Engineers and  Assistant Executive  Engineers promoted  from

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and after  22nd December 1959 and neither the seniority rule set out  in Paragraph  5(ii) nor that set out in Paragraph 6 was applicable.  But even  so since full arguments have been advanced before  us we propose to consider the applicability of Paragraph  6 on  merits. It  is  necessary  in  order  to appreciate the contention raised on behalf 886 of respondent  Nos. 4  to 190 to examine the scope and ambit of Paragraph  6 of  the Memorandum dated 22nd December, 1959 which reads as follows:      "6.  Relative   seniority  of   Direct   Recruits   and      Promotees:           The relative  seniority of  Direct recruits and of      promotees shall be determined according to the rotation      of vacancies  between  direct  recruits  and  promotees      which  shall  be  based  on  the  quotas  of  vacancies      reserved   for   direct   recruitment   and   promotion      respectively in the Recruitment Rules."      This paragraph  on its plain terms laid down a rule for determining the  relative seniority  of direct  recruits and promotees in a grade to which  appointments were required to be made  by direct  recruitment and promotion according to a certain fixed  quota. This rule of seniority obviously could have no  application for  determining inter  se seniority in the grade  of  Executive  Engineers,  since  both  Assistant Engineers and Assistant Executive Engineers were inducted in the grade  of Executive Engineers by promotion and Assistant Executive Engineers  appointed in  the  grade  of  Executive Engineers did  not bear the character of direct recruits. It is, of  course, true that Assistant Executive Engineers were initially taken  up as  direct  recruits  in  the  grade  of Assistant Executive  Engineers in  fact that was only method of entry into the grade of Assistant Executive Engineers-but when they entered the grade of Executive Engineers, they did so by  way of  promotion just  like the Assistant Engineers. There was,  therefore, in  the present  case, no question of determining relative  seniority between  direct recruits and promotees. Both  the Assistant,  Engineers as  well  as  the Assistant Executive Engineers were Promotees to the grade of Executive Engineers  and Paragraph 6 of the Memorandum dated 22nd December,  1959  had,  therefore,  no  application  for determining inter  se seniority between them in the grade of Executive Engineers.      We have  considered  the  applicability  of  Paragraphs 5(ii) and  6 of  the Memorandum dated 22nd December, 1959 on merits and come to the conclusion that the rule of seniority set out  in neither  of these  two paragraphs could have any application in  the present  case. But  at the same time, we cannot escape  the conclusion  that by reason of clause 3 of the Memorandum dated 22nd December, 887 1959, the  rule of  seniority prescribed  in the  Memorandum dated 22nd  June, 1949  stood repealed,  except in regard to determination of seniority of persons appointed to the grade of Executive  Engineers prior  to 22nd December, 1959. There was, therefore,  no  rule  of  seniority  laid  down  either statutorily or  by any  executive order  or instruction  for determining seniority  amongst Executive  Engineers promoted from  the   grades  of  Assistant  Engineers  and  Assistant Executive Engineers  regularly within their respective quota from and  after 22nd  December, 1959.  But it  is now  well- settled as  a result of several decisions of this Court that in the absence of any statutory rule or executive memorandum or order  laying down  a rule for determining seniority in a grade, the  normal rule  applicable would  be  to  determine

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seniority on  the basis  of length of continuous officiation in service.  Vide the  observations of  Palekar J.  in  B.S. Gupta v.  Union of  India. To  the some  effect we  find the observations Krishna  Iyer, J.,  speaking on  behalf of  the Court in Chauhan v. State of Gujarat where the learned Judge said at page 1057 of the report:           "Seniority, normally,  is measured  by  length  of      continuous officiating  service-The  actual  is  easily      accepted as the legal."      Chandrachud, J.,  as he  then was,  also reiterated the same principle  when he  said in S.B. Patwardhan v. State of Maharashtra that  "all other factors being equal, continuous 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." The  inter se  seniority of Executive Engineers  promoted from  the grades  of Assistant Engineers and Assistant Executive Engineers regularly within their respective  quota from  and after  22nd December, 1959 was, therefore,  determinable on  the  basis  of  length  of continuous officiation  in the  grade of Executive Engineers and the  Court was,  in the circumstances, justified in A.K. Subraman’s case  in holding in paragraph 1 of the summary of its conclusions  that "when  Assistant Engineers  (Class II) are initially  appointed in  a regular  manner in accordance with the  rules to  officiate as  Executive Engineer,  their senio- 888 rity in service in Grade I will count from the date of their initial officiating  appointment as  Executive Engineers was within their quota." It is undoubtedly true that in reaching this conclusion  the Court  proceeded on the assumption that ’the Memorandum dated 22nd June 1949 was clearly applicable" and equally  it must  be conceded  that this  assumption was erroneous in  so far as inter se seniority between Assistant Engineers and  Assistant Executive  Engineers promoted  from and after  22nd December, 1959 was concerned, since the rule of seniority  based  on  length  of  continuous  officiation enunciated in  the Memorandum  dated  22nd  June,  1959  was repealed by the Memorandum dated 22nd December, 1959. But it can hardly  be disputed  that the  conclusion reached by the Court was  correct in  law, because  in the  absence of  any specific rule of seniority governing determination of inter- se  seniority  between  Assistant  Engineers  and  Assistant Executive Engineers  promoted from  and after 22nd December, 1959, their  inter-se seniority  was clearly governed by the rule of seniority based on length of continuous officiation. We do  not think  it would be right to assume that the Court in  A.K.   Subraman’s  case  overlooked  that  the  rule  of seniority laid  down in the Memorandum dated 22nd June, 1949 was repealed by the Memorandum dated 22nd December, 1959 and it is,  therefore, quite  possible that  when the Court said that "the  Memorandum of  June 22, 1949 will clearly apply", what the Court meant was that the rule of seniority based on length of  continuous officiation  would clearly  apply  for determination  of   inter-se  seniority   between  Assistant Engineers and  Assistant Executive Engineers promoted to the grade of  Executive Engineers.  We may point out that in any event the  decision in   A.K.  Subhraman’s case holding that the  inter-se  seniority  between  Assistant  Engineers  and Assistant  Executive   Engineers   promoted   as   Executive Engineers should  be governed by the rule of seniority based on length  of continuous officiation and that their inter-se seniority should  be determined  on the  application of this

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rule of  seniority, must  be  regarded  as  binding  on  the parties and  it is  not open  to the  petitioners or  to the respondents  to   raise  any  contention  contrary  to  this conclusion reached  by the  Court. This  conclusion, we  may repeat, was not limited to Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers prior to 22nd December, 1959 but also covered Assistant Engineers and Assistant Executive  Engineers promoted  subsequent to  that date right  upto the  date of  the decision of the Court. We must, therefore, hold that, notwithstanding Rules 2(iii) and 2(iv) of the 889 Rules of  1976, the  inter-se  seniority  between  Assistant Engineers  and   Assistant  Executive   Engineers   promoted regularly within  their respective quota upto 11th December, 1974 must be determined on the basis of length of continuous officiation in  the grade of Executive Engineers, subject of course to  the length  of continuous officiation in the case of Assistant Engineers being computed from the date of their confirmation as Assistant Engineers.      Before we  proceed to consider grounds B and C it would be conventions  at this  stage to  deal  with  some  of  the contentions advanced  by respondent  Nos. 4 to 190 on behalf of the  Assistant Executive  Engineers promoted as Executive Engineers against  the validity  of the seniority list dated 14th August  1975 in  so far  as  certain  aspects  of  that seniority list  are concerned.  Though  the  seniority  list dated 14th  August, 1975  was  substantially  in  favour  of Assistant  Executive   Engineers   promoted   as   Executive Engineers, they  were not  wholly satisfied with it and they attacked it  in three  respects. They  urged that respondent Nos. 1  to  3  had  egregiously  erred  in  formulating  the seniority list  dated 14th  August, 1975  in as  much as (1) respondents Nos.  1 to  3 had  treated vacancies  arising on account  of  deputation  of  Executive  Engineers  to  other organisation or  departments as vacancies to be filled up in accordance with  the quota  and so  also where  an Assistant Engineer or  Assistant Executive  Engineer was  promoted for being sent  on deputation  as Executive  Engineer in another organisation or  department, respondent  Nos.  1  to  3  had treated such  promotion as  filling up of vacancy subject to the quota rule; (2) respondent Nos. 1 to 3 had included, for the purpose  of allocation  of quota,  also those  vacancies which arose  on account  of death or retirement of Executive Engineers who  were promoted  from the  grade  of  Assistant Engineers in excess of their quota and whose promotions were not regularised  within their  quota prior to their death or retirement, as  if  those  vacancies  were  fresh  vacancies governed by  the quota  rule  and  (3)  while  pushing  down Executive Engineers  who were  promoted from  the  grade  of Assistant Engineers  in excess  of their quota and adjusting them within  their quota  in a  subsequent year,  respondent Nos. 1  to 3  had treated them as absorbed not from the date when the  vacancy arose  in their quota but from 1st January of that  year. This  three-fold grievance  made on behalf of respondent Nos.  4 to  190  cannot  be  said  to  be  wholly unjustified. We  find that  the second  and third  heads  of grievance are  well-founded while  the  first  is  not.  Our reasons for saving so are as follows. 890      So far as the first head of the grievance of respondent Nos. 4  to 190  is concerned,  their argument  was that on a true interpretation  of the  judgment of  this Court in A.K. Subraman’s case,  the quota  rule  was  applicable  only  to permanent vacancies  in  the  posts,  whether  permanent  or

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temporary, included  in the sanctioned strength of the cadre of Executive Engineers "except such vacancies as were purely of a  fortuitors or  adventitious character"  and since  the vacancies arising  on account  of  deputation  of  Executive Engineers to  other organisations or department could not be regarded  as  permanent  vacancies  but  were  vacancies  of fortuitous or  adventitious character, they were not subject to the  quota rule  and could  not be taken into account for applicability of  the quota  rule. This  argument, plausible though it  may seem  at first sight, cannot be sustained. It is, first  of all, necessary to clear the ground by pointing out that  according to  the judgment  of this  Court in A.K. Subraman’s case,  the quota  rule was to be applied not with reference to  the posts  in the cadre of Executive Engineers but with  reference to  vacancies in such posts. There might be more  than one  vacancy in a post in the course of a year or any  other unit of time and it was with reference to each such vacancy  that the  quota rule  had to be applied. Now a vacancy may  arise in a post on account of death, retirement or resignation  of the incumbent of the post or it may arise on account  of his dismissal, discharge a reversion from the post or  promotion to  a higher  post or  by reason  of  his deputation to  another department or organisation. Whenever, therefore, a  vacancy arises  in a  post,  whatever  be  the reason by  which the  vacancy is caused, it would have to be filled up  by promotion  of  an  Assistant  Engineer  or  an Assistant Executive  Engineer and the quota rule would apply so long  as the  vacancy is  a permanent vacancy, that is to say, in  the words  of Palekar  J. in  the 1st  Bishan Sarup Gupta’s case,  a vacancy  which is  not "for a few days or a few months"  or otherwise  adventitious". We  have in  these words of  Palekar, J., adopted wholly and completely in A.K. Subraman’s case,  a  negative  definition  of  what  may  be regarded  as   a  permanent   vacancy  for  the  purpose  of application of  the quota  rule and  it clearly shows that a vacancy which  is of  a short duration arising on account of fortuitous  or   adventitous  circumstances   would  not  be regarded as  permanent vacancy and in such a case, by reason of the  very nature  of  the  vacancy,  there  would  be  no question of  making recruitment  to the  cadre as to attract the applicability of the quota rule. It is therefore obvious that if a vacancy arises on account of an incumbent going on leave or  for training  or on deputation for a short period, it would be a fortui- 891 tous or adventitious vacancy and the quota rule would not be attracted in  case of  such a  vacancy. But  where a vacancy arises on account of the incumbent going on deputation for a reasonably long period and there is no reasonable likelihood of the  person promoted  to  fill  such  vacancy  having  to revert, the  vacancy would  be subject  to the  quota  rule, because it  would be  a  regular  vacancy  in  the  post  of Executive Engineer  and the  person  promoted  to  fill  the vacancy would be an officiating Executive Engineer who would continue as  such without  reversion until confirmed and his promotion would,  therefore, be by way of recruitment lo the cadre of  Executive Engineers.  Of course, it should be made clear that  the vacancy  which attracts the applicability of the quota  rule, is  the vacancy in the post included in the sanctioned strength  of the cadre of Executive Engineers and not the  vacancy in  the deputation  post. There  may  be  a vacancy in  a  deputation  post  in  another  department  or organisation  and  an  Executive  Engineer  holding  a  post included  in   the  sanctioned  strength  of  the  cadre  of Executive Engineers may be sent to such deputation post, but

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the vacancy  which would  call for  the application  of  the quota rule  in such  a case  would be the vacancy arising in the post of Executive Engineer within the cadre by reason of the incumbent  of that post going to the deputation post and not the vacancy in the deputation post which would be filled up by  the Executive  Engineer going  on deputation.  It is, therefore, apparent  that what  has to be considered for the applicability of  the quota  rule is  a vacancy  in  a  post included  in   the  sanctioned  strength  of  the  cadre  of Executive Engineers  and the  sanctioned strength, which has to be  taken into  account, is  not  merely  the  sanctioned strength of  the cadre of Executive Engineers in the Central Public Works  Department but  the sanctioned strength of the cadre  of   Executive  Engineers   in  the   entire  Central Engineering Service, Class I. The sanctioned strength of the cadre of  Executive Engineers  in  the  Central  Engineering Service, Class  I, may  include not  only posts of Executive Engineers in  the Central  Public Works  Department but also posts  of  Executive  Engineers  in  other  departments  and organisations.      Now, so  far as  the Central Engineering Service, Class I, is  concerned, the  deputation  of  officers  in  various grades including  the grade  of  Executive  Engineers  is  a normal feature  of the  Service. The  Central  Public  Works Department is  an agency of the Central Government operating throughout Country  for construction, maintenance and repair of all works and buildings financed from Civil 892 Works Budget  except for certain departments which had their own engineering  units or  which may  get their  Civil works executed through private agencies. The officers borne on the cadres of  Chief  Engineers,  Superintending  Engineers  and Executive Engineers  in  the  Central  Engineering  Service, Class  I,  are  therefore  sent  on  deputation  to  various departments and  organisations and  some of them are also on deputation with  the Government  of Bhutan,  Delhi Municipal Corporation, New Delhi Municipal Committee and various other public undertakings.  The normal duration of such deputation is one  to three  years and  it may  even be extended beyond three years.  The record  shows that  the  number  of  Chief Engineers, Superintending  Engineers and Executive Engineers on deputation  to  various  departments,  organisations  and public sector  undertakings has  always been substantial and by way  of illustration,  it may  be pointed  out that there were as  on 1st  January, 1975,  90 out of approximately 360 Executive Engineers,  33 out  of 80 Superintending Engineers and 8  out of  20  Chief  Engineers  on  deputation.  On  an average, about  25 to  40% of the Executive Engineers are on deputation to  various organisations, departments and public sector  undertakings   and  whenever   any  such   Executive Engineers are  sent on  deputation and  the vacancies in the posts arising on account of such deputation are filled up by Assistant  Engineers   or  Assistant   Executive   Engineers regularly selected through Departmental Promotion Committee, such  promotees  have  never  had  to  revert,  because  the deputations are for a minimum period of one year and in most cases for three years and they go on rotating. The vacancies arising in  the posts  of Executive  Engineers on account of deputation to  other departments,  organisations and  public sector undertakings  are, therefore, long term vacancies and cannot  be  characterised  as  vacancies  of  fortuitous  or adventitious character  and, consequently,  according to the judgment in  A.K. Subraman’s  case, the  quota rule  must be held to be applicable with reference to such vacancies. This has always  been the  view taken by the Government of India,

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as is  clear  from  the  letter  dated  19th  October,  1971 addressed by  the Ministry  of Works and Housing, Government of India  to the Secretary, Union Public Service Commission, where, we find the following observation:           "In accordance  with  the  recruitment  rules  the      posts at  the level  of Executive  Engineers are  to be      filled by  promotion of  Assistant Executive  Engineers      and Assistant Engineers in the ratio of 2:1. This ratio      is applicable to 893      both permanent  and temporary  Vacancies including  the      deputation vacancies". (Emphasis supplied)      It is significant to note that the view that deputation vacancies being  long term  vacancies should  be regarded as permanent vacancies  for the applicability of the quota rule prevailed with  the Government  of India as far back as 19th October 1971  long  before  the  present  controversy  arose between the  parties and  even prior  to  the  decisions  in Bishan Sarup Gupta’s cases and A.K. Subraman’s case. We find that this  view was reaffirmed by the Government of India in the Office  Memorandum dated  30th December.  1976 issued by the Department  of  Personnel  and  Administrative  Reforms, Cabinet Secretariat  where it  has been  stated  as  follows under the heading "Determination of Regular Vacancies":-           "It is  essential that  the number of vacancies in      respect of  which a panel is to be prepared by a D.P.C.      should be estimated as accurately as possible. For this      purpose the  vacancies to  be taken into account should      be the  clear vacancies  arising in post/ grade/service      due to  death, retirement,  resignation,  regular  long      term promotion,  of incumbents  of  one  post/grade  to      higher post/  grade and vacancies arising from creation      of additional  posts on  a long  term basis  and  these      arising out of deputation. As regards vacancies arising      out of  deputation it is clarified that for the purpose      of drawing  up a  select list  for promotion, vacancies      arising out  of deputation  for periods  more than  one      year should  be taken  into account,  due note  however      being kept  also of  the number  of the  deputationists      likely to  return to  the cadre  and  who  gave  to  be      provided for.  Purely short term vacancies arising as a      result of  officers proceeding  on leave, on deputation      for a  shorter period,  training etc.,  should  not  be      taken into  account for the purpose of preparation of a      panel".      The same  stand has  been  consistently  taken  by  the Government of  India in  the various affidavits filed on its behalf in  these proceedings  as also  in the  miscellaneous proceedings arising in A.K. Subraman’s case. We may usefully reproduce  the   following  paragraphs   from  the   Counter Affidavit filed  on behalf  of the  Government of  India  in C.M.P. No. 6689 of 1975 in A.K. Subraman’s case: 894           "8. With  reference to  paragraph 2(a),  I  submit      that this  Hon’ble Court, no doubt, stated that all the      vacancies except  fortuitous and  adventitious ones  in      the sanctioned  strength in  the cadre have to be taken      into account.  So far  as the  deputation vacancies are      concerned,  the  position  is  that  the  post  of  the      borrowing authority  to which  a deputation  is made is      certainly outside  the cadre of the Central Engineering      and   Electrical    Engineering   Service,    but   the      consequential vacancies  which  arise  because  of  the      deputation are  certainly vacancies  in the  cadre. The      deputations are  generally for  a period  of a year and

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    more and the consequential vacancies are also long term      vacancies,  which   cannot  be  called  fortuitious  or      adventitious". "15.  With reference  to paragraph 4 (8)      (1)  (a),   I  say  that  the  post  in  the  borrowing      department is  certainly a  post outside the sanctioned      strength of  the C.P.W.D.  However,  deputation  of  an      officer belonging  to the  C.P.W.D. to fill such a post      causes a  vacancy in  the C.P.W.D.  It is  this vacancy      which  has   been  added  and  not  then  post  on  the      borrower’s establishment. This has been done because in      our case,  the quota  allocation is linked to vacancies      and not  to post;  of course,  the vacancies must be in      posts in the cadre".      So also  the Union of India reiterated the same view in the Counter Affidavit filed on its behalf in C.M.P. No. 2663 of 1975 in A.K. Subraman’s case:           "Vacancies: The  quota system,  based on which the      date of  commencement of  the  regular  appointment  of      either side  had to  be fixed,  in accordance  with the      directives of the Hon’ble Court, had been introduced by      the Central Engineering Service (and Central Electrical      Engineering Service)  Recruitment Rules  promulgated on      25.8.1949. Hence  the vacancies  had to  be  identified      right from this date.           Vacancies in  the grade of Executive Engineers had      occurred not only due to death, retirement, resignation      etc. in  the grade  but also  because of  promotion (to      higher grade)  dismissal from  this or  higher  grades,      reversion to  lower  grades  and  deputation  to  other      organisations like  the  Delhi  Development  Authority,      undertaking, he  retains his  lien on  the post  in the      parent department and he has a 895      right to  come back  to that post which he can exercise      at any  time  and  hence  the  vacancy  caused  by  his      deputation cannot  be regarded  as a  permanent vacancy      liable to be filled by regular recruitment to the cadre      of Executive Engineers. It was urged that so long as an      Executive Engineer  who has  gone on deputation retains      his lien  on the  post in  the parent  department, that      post cannot be filled by promotion of another Assistant      Engineer or  Assistant Executive  Engineer  by  way  of      substantive  recruitment  to  the  cadre  of  Executive      Engineers, because  two officers  cannot hold a lien on      the same  post simultaneously.  We do  not  think  this      argument is  well-founded. There is here no question of      violation   of   the   basic   principle   of   service      jurisprudence that  two officers  cannot simultaneously      have a  lien on  the same  post. It  is significant  to      note, and  this was  common ground between the parties,      that the  vacancy which  attracts the  applicability of      the quota  rule is  not only  a vacancy  in a permanent      post but  also  a  vacancy  in  a  temporary  post  and      obviously no  Executive Engineer  can have  a lien on a      temporary post  and therefore, extinguishment of a lien      on a  post is  not necessary in order that there should      be an  available vacancy for the applicability of quota      rule. It  is now  settled as  a result  of the decision      A.K. Subraman’s  case that  the quota  rule  is  to  be      applied at  the time  of initial other Central or State      Government undertakings  or Departments, UN assignments      etc. none  of  which  could  be  called  fortuitous  or      adventitious  because   they   were   all   long   term      appointments covering  a period  of one to two years or      more.

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         Calculations of  all such vacancies with reference      to the  case and  circumstances as  called out from the      original papers  right from  25.9.1949 was  a herculean      task and  it was  difficult to  be sure  that there had      been no  errors or  omissions. Hence,  to be  sure, the      answering respondents  decided to  treat each long term      promotion to  the  grade  of  Executive  Engineer,  for      whatever reasons,  as a vacancy, on the assumption that      such a  promotion could  not have been made without the      existence of a vacancy".      It is  thus clear  that the  vacancies in  the posts of Executive Engineers  arising on  account  of  deputation  of Executive Engineers 896 to other  departments, organisations and public undertakings for a  period of  one or more years were long term vacancies and  they   could  not   be  regarded   as  fortutitous   or adventitious in character and hence they were subject to the quota rule.      But  the  answer  sought  to  be  given  on  behalf  of respondents Nos.  4 to 190 to repel this conclusion was that when an  Executive Engineers  goes on  deputation to another department, organisation  or public sector recruitment in an officiating capacity to the cadre of Executive Engineers and not at  the time  of confirmation.  It  is,  therefore,  not necessary that the lien of an officer on a post of Executive Engineer must  be extinguished  before any promotion to that post can  be made  in accordance  with the  quota rule. Even where a confirmed Executive Engineer is promoted to the post of Superintending  Engineer but  continuous to have his lien on  the   post  of   Executive  Engineer,  a  vacancy  would undoubtedly arise  in the  post  of  Executive  Engineer  by reason of  his promotion and such vacancy would clearly be a permanent vacancy liable to be filled according to the quota rule. So  also a vacancy attracting the applicability of the quota rule  would  arise  where  an  Assistant  Engineer  or Assistant Executive  Engineer regularly  promoted within his lawful  quota  dies  or  retires  before  confirmation.  The occurrence of  a vacancy  in the  post of Executive Engineer inviting the  application of  the quota rule has, therefore, nothing to  do with  the extinguishment of lien on the post. The argument  of respondents  Nos. 4  to 190 proceeds on the assumption that  promotion to the post of Executive Engineer contemplated under  the recruitment  rules can  be made only when there is no lien of any other officer on that post, for otherwise there will be two officers having lien on the same post. But  this assumption  is  wholly  fallacious,  because promotion according  to the  quota  rule  envisaged  in  the Recruitment Rules  is, as  pointed out  in  A.K.  Subraman’s case, initial  promotion in  an officiating capacity and has nothing  to   do  with   confirmation.  The   contention  of respondents Nos.  4 to 190 would have had considerable force if promotion  to  the  cadre  of  Executive  Engineers  were dependent on confirmation and the quota rule were applicable at the  stage of  confirmation.  But  this  position  stands completely negatived  by the  decision  in  A.K.  Subraman’s case. Therefore, Whenever there is a permanent vacancy, that is to  say, a  long term  vacancy in  a  post  of  Executive Engineer, it  would have to be filled according to the quota rule irrespective  of the  fact whether there is any officer having a lien on that post,. It 897 is true  that a  confirmed Executive  Engineer who  goes  on deputation may revert to the post on which he has a lien and so also  an  officiating  Executive  Engineer  who  goes  on

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deputation may  revert back on termination of his deputation and theoretically,  in either case, an Assistant Engineer or Assistant Executive  Engineer who  is promoted  to fill  the vacancy arising on account of deputation may have to revert, but in  actual practice  and reality, not a single Assistant Engineer  or   Assistant  Executive   Engineer  promoted  as Executive Engineer  to fill  a vacancy arising on account of deputation, has  had to  revert,  because  deputation  is  a normal feature  in this service and 20 to 25 per cent of the Executive Engineers  are continuously on deputation. Even if one Executive  Engineer comes  back on  termination  of  his deputation, another  has to  be sent  in his  place and  the deputations thus  go on  rotating with  the result  that the vacancy in the post of Executive Engineer arising on account of deputation  does not  cease and the Assistant Engineer or Assistant Executive  Engineer promoted as Executive Engineer to fill  the vacancy  does  not  ever  have  to  revert  and consequently, the  vacancy filled by him is really and truly a permanent  or long  term vacancy  which has  to be  filled according to the quota rule. In fact, if the quota rule were not to  be applied  with reference  to such  a vacancy,  the position would  be that  whenever an Executive Engineer goes on deputation  for a  period which  may extend  to  anything between three to five years, the Central Government would be entitled to  promote  an  Assistant  Engineer  ignoring  the claims of  Assistant Executive  Engineers and  this would be totally arbitrary in a situation, where, as mentioned above, 20 to 25 per cent of Executive Engineers are on deputation.      But then it was contended on behalf of respondents Nos. 4 to  190 that  even if  a vacancy  arising by  reason of an Executive Engineer  going on  deputation were  regarded as a permanent vacancy  attracting the applicability of the quota rule, the  position would  be different  where an  Assistant Engineer or  Assistant Executive  Engineer was  promoted for being posted  as Executive Engineer in a deputation post. To such a  promotion, it  was urged,  the quota  rule would not apply, because  the promotion in such a case would not be to fill a  post in  the sanctioned  strength of  the  cadre  of Executive Engineers  but would  be to fill a deputation post of Executive Engineer in another department, organisation or public sector  undertaking. This  argument, plausible though it  may   seem  at  first  sight,  is  in  our  opinion  not sustainable. When a 898 department,  organisation   or  public   sector  undertaking requests  the   Central  Public  Works  Department  to  make available  the   services  of   an  Executive   Engineer  on deputation, The  Central Public  Works  Department  has  two options  available  to  it:  either  to  send  an  Executive Engineer who  is occupying  a post in the cadre of Executive Engineers, whether  confirmed or  on officiating basis or to promote  an   Assistant  Engineer   or  Assistant  Executive Engineer as  Executive Engineer  and straightaway  send  him outside to  the deputation  post. Now  if the former mode of proceeding  could   lead  to   a  vacancy   attracting   the applicability of  the quota,  it is  difficult to appreciate how the  latter mode  of proceeding  should not  lead  to  a similar result.  In both cases, the ultimate result would be promotion of  an Assistant  Engineer or  Assistant Executive Engineer  as   Executive   Engineer   against   demand   for deputation.  Where   an  Assistant   Engineer  or  Assistant Executive Engineer  is promoted  as Executive  Engineer  and immediately sent to a deputation post in another department, organisation  or  public  sector  undertaking,  what  really happens is  that in  the eye  of law,  a post  is  temporary

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created in  the cadre  of Executive  Engineers to  which the Assistant  Engineer   or  Assistant  Executive  Engineer  is promoted  and   then  sent   on  deputation.  Obviously,  an Assistant Engineer or Assistant Executive Engineer cannot be promoted directly  to the  post  of  Executive  Engineer  in another   department,    organisation   or   public   sector undertaking: he  can be promoted only to a post of Executive Engineer in  Central Engineering  Service Class  I and  then asked to  go on deputation. Of course, an Assistant Engineer or Assistant  Executive Engineer  can be  directly  sent  on deputation to  the post  of Executive  Engineer  in  another department,  organisation   or  public   sector  undertaking without being  promoted as  Executive Engineer  in  his  own department and  in such  a case there will be no question of filling a vacancy according to the quota rule. The Assistant Engineer  or   Assistant  Executive  Engineer  who  goes  on deputation as  Executive  Engineer  in  another  department, organisation or  public sector  undertaking would  in such a case continue  to remain  an Assistant Engineer or Assistant Executive Engineer  in his  own  department,  but  would  be merely occupying the post of Executive Engineer in the other department, organisation  or public  sector undertaking as a deputationist and  on the  termination of his deputation, he would revert  as Assistant  Engineer or  Assistant Executive Engineer in  his own department. Such a deputation cannot be regarded as  filling of  a vacancy  in the post of Executive Engineer in the Central Engineering Service Class I so as to attract 899 the applicability  of the  quota rule. But when an Assistant Engineer or  Assistant Executive  Engineer  is  promoted  as Executive Engineer  in his own department and simultaneously with such  promotion, he  is sent  on deputation  to another department, organisation  or public  sector undertaking,  he goes on  such deputation  as Executive  Engineer, so that if for any reason his deputation comes to an end, he reverts to his  own   department  as  Executive  Engineer  and  not  as Assistant Engineer  or  Assistant  Executive  Engineer.  The petitioner filed  before us  several orders  of promotion of Assistant Engineers as Executive Engineers for being sent on deputation to  other departments  or organisations and these orders  clearly  showed  that  the  Assistant  Engineers  in respect of  whom these  orders were passed, were promoted as Executive Engineers and then, simultaneously, under the same orders,  sent   on  deputation   to  other   departments  or organisations.  Obviously,   in  cases  of  this  kind,  the promotion of  the Assistant  Engineer or Assistant Executive Engineer would  be to  a post  in  the  cadre  of  Executive Engineers and  it would  be subject  to the  quota rule. The present contention  of respondents  Nos. 4  to  190  seeking exclusion of  deputation vacancies from the applicability of the quota  rule must,  therefore, be  rejected, provided  of course the  promotion of the Assistant Engineer or Assistant Executive Engineer  to a  deputation vacancy  is  a  regular promotion, that  is, after  selection  by  the  Departmental Promotion Committee and is not an ad hoc promotion.      Respondent Nos.  4 to  190 are however on firmer ground in regard  to the  second head  of complaint  urged by  them against the  validity  of  the  seniority  list  dated  14th August, 1975 It is true that in preparing the seniority list dated 14th August, 1975 respondent Nos. 1 to 3 included, for the purpose  of allocation  of quota,  also those  vacancies which arose  on account  of death or retirement of Executive Engineers who  were promoted  from the  grade  of  Assistant Engineers in excess of their quota and whose promotions were

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not regularised  by absorption  within their  quota prior to their death  or retirement and treated these vacancies as if they were  fresh vacancies  governed by the quota rule. This was clearly  an error on the part of respondent Nos. 1 to 3. It is  difficult to  see  how  a  vacancy  in  the  post  of Executive Engineer  which, according  to the  quota rule, is allocable to  an Assistant  Executive Engineer  but which is filled up  by irregular appointment of an Assistant Engineer can be  treated  as  a  fresh  vacancy  when  the  Assistant Engineer irregularly promoted 900 dies or  retires from  service before  regularisation of his promotion by  absorption within  his quota.  So long  as the quota  rule   is  binding  and  enforceable,  the  Assistant Engineer who  is irregularly  promoted to fill in a vacancy. which belongs  to the quota of Assistant Executive Engineers is an  illegal occupant  of  the  vacancy  and  the  vacancy continues  to  be  a  vacancy  belonging  to  the  quota  of Assistant Executive  Engineers and  liable to  be filled  by promotion of  an Assistant  Executive Engineer. In fact, the promotion of  an Assistant  Engineer to the vacancy would be invalid as  being contrary to the quota rule, but in the 1st Bishan Sarup  Gupta case,  the Court,  in order  to  obviate undue hardship,  evolved the  theory of temporary invalidity of the promotion by holding that the promotion would only be irregular and  it could  be regularised by absorption within the quota  in later  years. The  vacancy though  pro  tempor filled irregularly  by an  Assistant Engineer would continue to belong  to the quota of Assistant Executive Engineers and it can  be filled only by an Assistant Executive Engineer if the quota  rule is  to be  strictly observed.  The death  or retirement of  an irregular  promotee to  the vacancy cannot therefore give  rise to  a fresh  vacancy: it  is  the  same vacancy which  continues until  properly filled by promotion of an  Assistant Executive Engineer at a subsequent date. If in such  a case  the death  or retirement  of an irregularly appointed Assistant  Engineer were to be treated as creating a fresh  vacancy, if  would lead to gross distortion. Let us take a  hypothetical case  where in  a particular  year  say 1956, there  are 12  vacancies in  the  posts  of  Executive Engineers out  of which  8 vacancies  belong to the quota of Assistant Executive  Engineer and  4 vacancies belong to the quota of  Assistant Engineer  but only 2 Assistant Executive Engineers are  available with  the result  that 6  Assistant Engineers are  irregularly appointed to fill the remaining 6 vacancies allocable  to the  Assistant Executive  Engineers. Now suppose in the next year 1957 there are no new allocable vacancies but 6 Assistant Engineers irregularly appointed in the earlier  year 1956  die  or  retire.  If  the  so-called vacancies arising  by reason  of the  death or retirement of these 6 irregularly appointed Assistant Engineers were to be treated as  fresh vacancies  4  out  of  them  would  go  to Assistant Executive  Engineers while 2 would go to Assistant Engineers The  result would  be that the Assistant Engineers would get 2 more vacancies which they would not have 901 got if  all the 8 vacancies allocable to Assistant Executive Engineers in  the year  1956 had been filled by promotion of Assistant  Executive   Engineers  and   there  had  been  no irregular promotion  of  6  Assistant  Engineers.  Thus  the Assistant Engineers  would gain  two more  vacancies  within their  quota   by  reason  of  irregular  appointment  of  6 Assistant  Executive   Engineers.  That  would  be  allowing Assistant Engineers  to profit  from irregular  appointments which result  can never be countenanced. We must, therefore,

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accept the  contention of respondent Nos. 4 to 190 under the second head of complaint.      The  third   head  of  complaint  urged  on  behalf  of respondent Nos.  4 to  190 must  also likewise be held to be well-founded.  Respondent   Nos.  4  to  190  are  right  in contending  that  while  pushing  down  Executive  Engineers promoted from  the grade of Assistant Engineers in excess of their quota  and adjusting  them within  their  quota  in  a subsequent year,  respondent Nos.  1 to 3 must treat them as absorbed from the date when a vacancy in that year arises in the quota of Assistant Engineers and not on a notional basis from 1st  January of  that year.  What the  decision in A.K. Subraman’s  case   requires  is   that  Assistant  Engineers promoted as  Executive Engineers  in excess  of their  quota must be  pushed down and their promotion must be regularised by absorption  when due  within their  quota in a subsequent year and  therefore they  can be  adjusted only in a vacancy which arises  in that  year and is allocable to the quota of Assistant Engineers.  There is  nothing in  the decision  in A.K. Subraman’s  case which  warrants  that  when  Assistant Engineers promoted  in excess of their quota are pushed down and absorbed  within their quota in a subsequent year, their absorption should be reckoned nationally from Ist January of that year. What respondent Nos. 1 to 3 have done is that all Assistant Engineers who had been promoted in excess of their quota and  who having  been pushed  down were entitled to be absorbed within  their  quota  in  a  particular  year,  are treated as absorbed from 1st January of that year and placed en bloc senior to the Assistant Executive Engineers promoted tn that  year within their quota. There can be no doubt that respondent Nos.  1 to  3  were  not  entitled  to  determine seniority on this basis. This Assistant Engineer promoted in excess  of   their  quota  and  therefore  pushed  down  for absorption within  their quota in a subsequent year could be absorbed  only  in  a  vacancy  arising  in  that  year  and allocable to the quota of Assistant Engineers. 902 Re: Ground B      This ground  of challenge  is clearly unsustainable and must be  rejected. It  is true  that the  Rules of 1976 have been brought into force with effect from 10th December, 1974 but in  rules 2(iii)  and 2  (iv) they  lay down  a rule  of seniority  affecting   Assistant  Engineers   and  Assistant Executive  Engineers   promoted   as   Executive   Engineers regularly within  their respective quota from and after 22nd December, 1959.  It is  therefore not  possible to  say as a matter of  plain grammatical  construction that the Rules of 1976 cannot  affect  the  petitioners  and  other  Assistant Engineers promoted  regularly within  there quota  prior  to 10th December,  1974.  The  question  would  however  remain whether Rules  2 (iii) and 2 (iv) of the Rules of 1976 in so far as  they lay down a rule of seniority different from the rule of  length  of  continuous  officiation  for  Executive Engineers promoted  from and  after 22nd December, 1959, are constitutionally valid.  This is the question which we shall proceed to consider under Ground C. Re: Ground C.      We have  already pointed  out that  though the Rules of 1976 have  been brought  into force  with effect  from  10th December 1974,  they do  not have  the effect of over-riding the  decision   in  A.K.   Subraman’s  case   directing  the Government to  amend and  revise the seniority list so as to fix inter  se  seniority  between  Assistant  Engineers  and Assistant  Executive  Engineers  promoted  regularly  within their respective quota up to 11th December 1974, by applying

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the  rule   of  seniority  based  on  length  of  continuous officiation. On  this view,  Rules 2(iii)  and 2(iv)  of the Rules of 1976, in so far as they provide for seniority being given en  bloc to the Assistant Executive Engineers promoted to the  86 carried  forward posts of Executive Engineers and apply the  rotational formula for the purpose of determining seniority  amongst   Assistant   Engineers   and   Assistant Executive Engineers  promoted to  the subsequent  vacancies, must be  held to  be ineffective  qua Assistant  Engineers & Assistant Executive  Engineers promoted  upto 11th December, 1974 and  so far  as these Assistant Engineers and Assistant Executive Engineers  are concerned, their inter se seniority must be  held to  be governed  by the  length of  continuous officiation in  the grade  of Executive  Engineers. But  the question would  still survive  whether  inter  se  seniority between  Assistant   Engineers   and   Assistant   Executive Engineers promoted  subsequent to  11th December, 1974 would have to be determined in accordance with the rotational rule of seniority set out in Rule 903 2(iv)   or    this   rotational   rule   of   seniority   is unconstitutional and void as offending Articles 14 and 16 of the  Constitution   It  may   also  be   considered  in  the alternative, on  the assumption  that Rules 2(iii) and 2(iv) of the  Rules of  1976 govern  the determination of inter se seniority  between   Assistant   Engineers   and   Assistant Executive Engineers  promoted from  and after 22nd December, 1959 despite  the decision  in A.K.  Subraman case,  whether these rules  can successfully  meet the challenge of Article 14 and  16 or  they  wold  be  liable  to  be  condemned  as constitutionally invalid.      We may  first consider  the constitutional  validity of Rules 2(iii)  and 2(iv)  of the  rules of  1976 in so far as they affect  the inter  se seniority  of Assistant Engineers and Assistant  Executive Engineers promoted regularly within their respective  quota from  and after 22nd December, 1959. Now the  position which  obtained on  22nd December 1959 was that there were 86 Assistant Engineers who had been promoted in excess  of their  quota  and  correspondingly  there  was short-fall  of  86  in  promotions  of  Assistant  Executive Engineers. We  are not  sure whether in the light of what we have said  above, the  excess  in  promotions  of  Assistant Engineers and  the deficiency  in  promotions  of  Assistant Executive Engineers  would stand reduced, but that would not make any  difference so  far  as  the  present  question  is concerned and we shall therefore proceed on the footing that the excess  in promotions  of Assistant  Engineers  and  the short-fall in  promotions of  Assistant Executive  Engineers was 86.  The question  is  whether,  consistently  with  the constitutional requirement  of Articles  14 and  16, en bloc seniority  could   be  given   to  the  Assistant  Executive Engineers promoted to fill the 86 vacancies allocable to the quota  of   Assistant  Executive   Engineers  and  remaining unfilled  by  them  up  to  22nd  December  1959.  These  86 vacancies were  under Rule  2(iii) directed  to  be  carried forward and filled by Assistant Executive Engineers promoted on or  after 22nd  December 1959 and the Assistant Executive Engineers no  promoted were  given seniority  en  bloc.  The petitioners objected  to this  provision in  Rule 2(iii) for carry forward of these 86 vacancies and contended that there could be  no carry  forward of  any vacancies which were not filled by Assistant Executive Engineers and so promotions of Assistant Executive  Engineers could  be made  to fill  such vacancies as from the date when they arose in any particular year. This  objection raised on behalf of the petitioners is

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partly sustainable and partly not. Where the quota rule is a statutory rule  which has  to be  scrupulously observed, the vacancy which  according to  the quota  rule is allocable to promotees 904 from one  source cannot be filled by a promotee from another source and  if, notwithstanding  the quota rule, the vacancy is filled  by  a  promotee  from  that  other  source,  such promotion would  be irregular  and as pointed out above, the vacancy would  continue to  remain a  vacancy liable  to  be filled by  a promotee  from the  first mentioned  source. It would not  be strictly  accurate to  say that in such a case the vacancy  is carried  forward in  the sense in which that expression has  been used  in T. Devdasan v. Union of India. It was  pointed out  by this Court in Mervin Coutinhs v. The Collector of  Customs, Bombay  : ".....in  the case  of  the carry forward  rule certain  quota is  fixed annually  for a certain class of persons and it is carried forward from year to year.  This is very different from a case where a service is divided  into two  parts and  there are  two  sources  of recruitment, one  of  promotion  and  the  other  by  direct recruitment. In  such a case the whole cadre of a particular service is  divided into  two parts and there is no question of carrying anything forward from year to year in the matter of annual  intake".  These  observations  were  quoted  with approval by  a Bench  of Five  Judges of  this Court in G.D. Kelkar v.  Chief Collector  of  Imports  and  Exports.  What therefore happens  in such  a case is that the vacancy which is pro  tempore irregularly  occupied  by  a  promotee  from another source  remains available  for  being  filled  by  a promotee from the source to which the vacancy belongs and in that sense,  it may  loosely be  said that  the  vacancy  is carried forward  from the  year  in  which  it  arose  to  a subsequent year in which it is properly filled by a promotee from the  right source.  This is  precisely what  Ray,  C.J. speaking on  behalf of the Court in V. S. Badami v. State of Mysore said at page 823 of the Report:           "........ if  promotions are  made to vacancies in      excess of the promotional quota, the promotions may not      be total  illegal but would be irregular. The promotees      cannot claim  any right  to hold  the promotional posts      unless  the  vacancies  fall  within  their  quota.  If      promotees occupy  any vacancies  which are  within  the      quota of  direct recruits when direct recruitment takes      place the  direct recruit  will  occupy  the  vacancies      within their  quota. Promotees  who were  occupying the      vacancies within the quota of direct recruits will 905      either be  reverted or  they will  be absorbed  in  the      vacancies  within   their  quota   in  the   facts  and      circumstances of a case."      We must therefore hold that Respondent Nos. 1 to 3 were right in proceeding on the basis that 86 vacancies allocable to the  quota  of  Assistant  Executive  Engineers  remained unfilled as  on 22nd  December, 1959  and were available for being filled  by Assistant Executive Engineers subsequent to that date.      But the question arises whether the Assistant Executive Engineers promoted to fill these 86 vacancies which were, to use the  expression in Rule 2(iii), carried forward from the period prior  to 22nd  December 1959 could be deemed to have been promoted  from the  dates when these 86 vacancies arose or they  could be  said to  have been promoted only from the dates of their actual appointment. Now obviously there could not be  any appointment  of Assistant Executive Engineers to

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these 86  vacancies with  retrospective effect and they must be taken  to have  been promoted  to these 86 vacancies only from the  dates of  their actual  appointment  and  from  no earlier dates.  If that be so, it is difficult to appreciate how, consistently  with the mandate of Articles 14 and 16 of the Constitution,  an Assistant Executive Engineer appointed to one  of these  86 vacancies  could under  Rule 2(iii)  be given seniority  as if  he were  promoted to that vacancy on 22nd December  1959, though  he  might  in  fact  have  been promoted years later and on this basis given precedence over Assistant Engineers  promoted regularly  within their  quota long  prior  to  the  actual  promotion  of  such  Assistant Executive Engineer. The consequence of giving effect to Rule 2(iii)  providing   en  bloc   seniority  to  the  Assistant Executive Engineers  promoted to  fill  these  86  vacancies would be  that a  large number of Assistant Engineers though promoted regularly  within  their  quota  years  before  the actual promotion of such Assistant Executive Engineers would become junior  to such  Assistant  Executive  Engineers  and their   promotional   opportunities   would   be   seriously prejudiced In  fact, they  would  have  to  wait  until  the Assistant Executive Engineers promoted to these 86 vacancies were promoted  further as  Superintending Engineers and then only they  would have  a  chance  of  being  considered  for further promotion  and even  such chance would recede and be reduced to  almost nil  if the  rotational rule of seniority were to  be applied  in respect  of promotions to subsequent vacancies as  set out in Rule 2(iv). This would become amply clear if  we look  at the  chart  Annexure  I  to  the  writ petition which  reproduces the  seniority  list  dated  14th August 1975 along with other particulars relating 906 to the Assistant Engineers and Assistant Executive Engineers promoted as  Executive Engineers.  The  Assistant  Executive Engineers promoted  to these  86 ’carried forward’ vacancies figure in  the seniority  list dated 14th August 1975 at Sr. Nos 100  to 185  and the particulars given in regard to them in the  chart Ex. I show that though the Assistant Executive Engineers at  Sr. Nos. 122 to 185 were promoted as Executive Engineers after  1962, they  were placed higher in seniority than petitioner No. 1 who was as Assistant Engineer promoted as Executive  Engineer and  absorbed within  his  legitimate quota in  1962 and so also the Assistant Executive Engineers at Sr. Nos. 173 to 185 though promoted after 1966 were given seniority above  petitioner  No.  2  who  was  an  Assistant Engineer promoted  as Executive Engineer and absorbed within his lawful  quota in 1966, Rule 2(iii) in so far as it gives en bloc  seniority  to  the  Assistant  Executive  Engineers promoted to these 86 vacancies irrespective of the date when they were  actually promoted  and pushes  down in  seniority Assistant Engineers  though promoted  regularly within their quota prior to the actual promotion of such Asstt. Executive Engineers, thereby prejudicially affecting their promotional opportunities, must  therefore be  held to  be violative  of Articles 14 and 16 of the Constitution.      We find  that rule  2(iv) also  suffers from  the  same infirmity. It  provides for  rotational  rule  of  seniority based on  the prevailing  quota  for  determining  inter  se seniority  between   Assistant   Engineers   and   Assistant Executive Engineers  promoted  to  the  grade  of  Executive Engineers from  and after  22nd December  1959 subject to en bloc  seniority  being  given  to  the  Assistant  Executive Engineers promoted  to the 86 ’carried forward’ vacancies as set out  in Rule 2(iii). Obviously, if Rule 2(iii) providing for en bloc seniority to be given to the Assistant Executive

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Engineers promoted  to the 86 ’carried forward’ vacancies is unconstitutional and  void as  held by  us in  the preceding paragraph of this judgment, it must follow that the inter se seniority  between   Assistant   Engineers   and   Assistant Executive Engineers  promoted from  and after  22nd December 1959 would  be governed  wholly by  the rotational  rule  of seniority set  out in  Rule 2(iv). Now there can be no doubt that a  rule of  seniority based  on rotation  of  vacancies according to  the quota  prevailing at  the  time  would  be constitutionally acceptable  if the quota rule were strictly implemented, barring minor deviations. It is well settled as a result  of several  decision of  this Court  that there is nothing inherently  wrong in  working out  the quota rule by adopting the  rotational rule  of seniority. But, as pointed out by this Court in 907 N.K Chauhan  v. State  of Gujarat  (supra) quota  is not ’so inter-locked with  rota that  where the  former is expressly prescribed, the  latter is  impliedly inscribed".  The quota rule does  not inevitably  invoke  the  application  of  the rotational  rule   of  seniority.  Even  where  a  quota  is prescribed for recruitment from different sources, there may be different  modes prescribed  for determining seniority of officers on  entry into  the cadre. In fact, right from 25th August, 1949  when the  quota rule  was introduced upto 22nd December, 1959,  the seniority  amongst Assistant  Engineers and Assistant  Executive  Engineers  promoted  as  Executive Engineers was governed not by the rotational rule by but the length of  continuous officiation.  It is  therefore obvious that even  where there is a quota rule governing recruitment to a  cadre from  different sources it is not necessary that there should  be  any  particular  rule  of  seniority.  The Government may  in its  wisdom adopt  an appropriate rule of seniority  which  may  be  based  on  length  of  continuous officiation or  may follow  a roster  arranged in conformity with the  quota rule  so that  seniority may  be  determined according to the rotation of vacancies under the quota rule. There may also be any other appropriate rule for determining seniority in  a cadre.  Indeed, as  pointed out  by  Krishna Iyer,  J.  in  N.K.  Chauhan’s  case,  myriad  ways  can  be conceived "for  determining seniority  of officers  on entry into a  cadre." But  whatever may  be the  rule of seniority adopted by  the Government,  it is well settled that it must satisfy the best of equality enshrined in Articles 14 and 16 of the  Constitution. The  question in  each case  would  be whether on the facts and circumstances of the case, the rule of  seniority   prescribed  by   the  Government  meets  the challenge  of   the  constitutional   provision  enacted  in Articles 14 and 16.      We have  already pointed  out that there is no inherent vice in the quota rule being operated through the rotational rule of seniority. Where the rotational rule of seniority is adopted, the  relative seniority of promotees from different sources has  to be  determined on  the  basis  of  a  roster maintained in  accordance with  the quota rule, so that when promotion of  an officer is regularly made within his quota, he is  fitted into  the vacancy  reserved for promotees from his source  and his seniority is reckoned from the date when such vacancy  arose. But  this rotational  rule of seniority can work only if the quota rule is strictly implemented from year to year. Some slight deviations from the quota rule may not be  material but  as pointed  out by  Palekar, J. in the Bishan Swarup Gupta’s case, "if there is enormous deviation, other considerations may arise". If the rota- 908

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tional rule  of seniority  is to  be applied for determining seniority amongst  officers promoted from different sources, the quota  rule must  be observed.  The application  of  the rotational rule  of seniority  when there is large deviation from the  quota rule in making promotions is bound to create hardship  and   injustice  and   result   in   impermissible discrimination. That  is why this court pointed out in A. K. Subarmans’s case  that "when  recruitment  is  from  two  or several sources,  it should  be observed  that there  is  no inherent invalidity  in introduction  of quota system and to work it  out by a rule of rotation. The existence of a quota and rotational  rule, by itself, will not violate Article 14 or Article  16 of  the Constitution  ............ It  is the unreasonable implementation  of the  same which  may,  in  a given case,  attract the  frown of the equality clause." The rotational rule  of seniority is inextricably linked up with the quota  rule and  if  the  quota  rule  is  not  strictly implemented and  there is  large deviation from it regularly from year  to year,  it would  be grossly discriminatory and unjust to  give effect  to the rotational rule of seniority. We agree wholly with the observation of D.A. Desai, J. in A. Janardhan v.  Union of  India that "the quota rule is linked with the  seniority rule;  if the  first breaks  down or  is illegally not  adhered to, giving effect to the second would be unjust,  iniquitous and improper". This was precisely the reason why  the Court in the first Bishan Sarup Gupta’s case held that  with the  collapse of the quota rule, the rule of seniority set out in Rule 1(f) (iii) also went.      Now in the present case the record shows that there has been  enormous   deviation  from   the  quota  rule  in  the promotions  of   Assistant  Executive   Engineers  and  such deviation has  continued from  year to year over a period of almost 25 years. We have in an earlier part of this judgment adverted to  the fact  that as  on 22nd December, 1959 there was a  short fall  in the  promotions of Assistant Executive Engineers to  the extent  of 86,  because the quota rule had not been properly implemented from 1953 up to 22nd December, 1959 and promotions of Assistant Executive Engineers had not been effected  according to the quota applicable to them. It is interesting  to note that even after 22nd December, 1959, the quota was consistently breached from year to year except for  four   or  five  years  and  there  was  massive  under recruitment of Assistant Executive Engineers with the result that as  on 31st  July, 1975,  the cumulative  shortfall  in promotions of  Assistant Executive  Engineers was  206 while there was corresponding excess in promotions of Assistant 909 Engineers to the extent of the same number. Though there was such large  deficiency in  promotions of Assistant Executive Engineers and  corresponding excess  in promotions of Asstt. Engineers upto  31st July,  1975, no attempt was made by the Government to  set right  this imbalance  by stepping up the recruitment  of   Assistant  Executive   Engineers  in   the subsequent years  so  as  to  restore  the  balance  in  the composition of  the cadre  of Executive  Engineers.  On  the contrary,  the  under  recruitment  of  Assistant  Executive Engineers continued uninterrupted and by the end of 1981 the short-fall  in   the  promotions   of  Assistant   Executive Engineers increased  to 247 with corresponding excess in the promotions of  Assistant Engineers.  This enormous deviation from the  quota rule on account of massive under recruitment of Assistant Executive Engineers has led to grave distortion and it  is difficult  to see  how, in  this  situation,  the rotational rule  of seniority  can be  applied  consistently with the  mandate of  equality enshrined  in Articles 14 and

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16. The  rotational rule  of seniority  must obviously break down when  there is  such massive  departure from  the quota rule regularly  from year  to year  leading to  continuously increasing deficiency  in promotions  of Assistant Executive Engineers  and   corresponding  excess   in  promotions   of Assistant Engineers.      It is  obvious that  by reason  of under-recruitment of Assistant  Executive   Engineers  and   over-recruitment  of Assistant Engineers  in breach  of the  quota  rule  over  a period of  almost 25  years, most of the Assistant Engineers having been  promoted in excess of their quota would have to be pushed  down to  subsequent  years  when  they  could  be absorbed within  their lawful  quota and  many of them would have to  wait for  7 to  12 years on an average before their promotions could  be regularised  by absorption within their quota. But, despite regularisation of their promotions after a wait  of seven to twelve years, they would not be entitled to  claim   seniority  over  Assistant  Executive  Engineers promoted later  in point  of time  because by  reason of the application of the rotational rule of seniority based on the roster maintained  in accordance  with the  quota rule,  the Assistant Executive  Engineers though  promoted subsequently would be  entitled to have their seniority reckoned from the date when  the vacancy  allocable to  their quota arose. The Assistant Executive Engineers though promoted long after the regularisation of  the promotion  of the Assistant Engineers would gain  seniority over such Assistant Engineers, because they would  be fitted  into the  vacancies kept reserved for them and artificial seniority would be given to them on 910 the fictional  hypothesis that such vacancies were filled by them at  the time  when they arose. The result would be that Assistant Executive  Engineers who were promoted years after the regularisation  of the promotions of Assistant Engineers by absorption  within their  quota which regularisation also would have  taken place  after  they  had  been  working  as Executive Engineers  for a  period of  about 7  to 12  years would become  senior to such Assistant Engineers even though at  the   time  when  they  were  promoted,  such  Assistant Engineers would  have already  been functioning as Executive Engineers for  a number  of years.  The Assistant  Executive Engineers promoted  later in point of time would shoot up in seniority irrespective of the length of their service in the grade of  Executive Engineers,  by reason  of the rotational rule  of   seniority  based  on  the  roster  maintained  in accordance with  the quota  rule. It  is obvious that giving such artificial  seniority to  Assistant Executive Engineers promoted years  after the  regular promotions  of  Assistant Engineers   would    completely   blight   the   promotional opportunities  of  such  Assistant  Engineers,  because  for promotion to  the higher  grade of Superintending Engineers, they would  have to  wait for  consideration of  their  case until  the  Assistant  Executive  Engineers  who  are  given artificial seniority  over them  are promoted,  even  though they would  have put  in a  much longer period of service as Executive Engineers than such Assistant Executive Engineers. The point  we are making would become obvious if we consider a few illustrative instances. Take, for example, the case of petitioner No.  1. He was promoted as Executive Engineers on 1st October,  1956 but  since his promotion was out side the quota of  Assistant Engineers,  he had to be pushed down and he was  ultimately absorbed  within his lawful quota in 1962 and though  he became  a regular  promotee within  his quota since 1962, he was placed at serial No. 273 in the seniority list dated  14th August  1975 while many Assistant Executive

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Engineers promoted  much later  in point  of time  than 1962 were placed  higher than  him in  seniority. The  result was that  he  never  got  a  chance  for  being  considered  for promotion  as  Superintending  Engineer  and  he  ultimately retired as  Executive Engineer  on 31st  January, 1978.  The case of  petitioner No. 1 may now be contrasted with that of J.P. Singhal,  who  was  recruited  as  Assistant  Executive Engineer on  1st February,  1967 and  who  was  promoted  as Executive  Engineer  on  14th  January,  1972.  Though  J.P. Singhal was  not even in service at the date when petitioner No. 1  became a  regular promotee Executive Engineer in 1962 and he  was promoted  as Executive Engineer almost ten years after  the   regular  promotion   of  petitioner  No.  1  by absorption within  his quota,  J.P. Singhal  was  placed  in seniority at Sr. No. 113 while, as pointed out 911 above, petitioner  No. 1  was placed  at Sr.  No. 273 in the seniority list  dated 14th August 1975, with the result that J.P. Singhal  came to be promoted as Superintending Engineer on 15th  February 1979  while petitioner  No. 1 did not even have a  chance  of  being  considered  for  such  promotion. Similarly we  may also contract the case of petitioner No. 2 with that  of R.A. Armugam. Petitioner No. 2 was promoted as Executive  Engineer   on  7th  April,  1959  but  since  his promotion was not within the quota of Assistant Engineer, he had to  be pushed down and he was ultimately absorbed within his quota  in 1966  and though  he was regularly promoted as Executive Engineer  within his  quota  since  1966,  he  was placed at  serial No.  396 in  the seniority list dated 14th August, 1975  while R.A.  Armugam who  was recruited for the first time  as Assistant  Executive Engineer on 20th January 1971 and  promoted as Executive Engineer only on 14th April, 1975 was placed higher in seniority at serial No. 260. Thus, the result  of the  application of  the rotational  rule  of seniority was  that R.A. Armugam who was not even in service at the  date  when  petitioner  No.  2  became  a  regularly promoted  Executive   Engineer  and   who  was  promoted  as Executive Engineer  9 years after petitioner No. 2, acquired several places  above petitioner  No. 2  in seniority. It is not necessary  for us  to multiply instances where Assistant Executive  Engineers   promoted  years   after  the  regular promotion of  Assistant Engineers  have shot up in seniority above  such   Assistant   Engineers   by   reason   of   the applicability of  the rotational  rule  of  seniority,  with devastating  effect  on  the  promotional  chances  of  such Assistant Engineers. Such instances are legion and, in fact, almost every  Assistant Engineer has in the process suffered loss of  seniority vis-a-vis  Assistant Executive  Engineers promoted years  later in  point of  time. The application of the rotational  rule of seniority has thus resulted in gross discrimination  against   Asstt.   Engineers   promoted   as Executive Engineers,  in so  far as  their opportunities for promotion to  the higher  grades are  concerned. The seed of discrimination attracting  the frown  of the equality clause has germinated  from the  fact of regular undue deviation in actual implementation  of the  quota rule  and obviously the deviation from  the quota rule, the greater and more intense is the  discrimination. We  have  already  pointed  out  the enormity of  the deviation from the deviation from the quota rule in  the present  case and this deviation continued from year to  year for a period of over 25 years has considerably aggravated  the   discrimination   against   the   Assistant Engineers. 912      Now it is obvious that if Assistant Executive Engineers

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recruited at  a young  age are  given  artificial  seniority several years above the Assistant Engineers who have already been pushed  down 7  to 12  years before  absorption  within their lawful quota, they would get chances of promotion much earlier than the Assistant Engineers and once promoted, they being young  in age  would occupy  the posts  in the  higher grades for  a much  longer period and that to a large extent block the  chances of  promotion of Assistant Engineers even when their  turn comes  for consideration  though at  a much belated point  of time.  If officers  from two  sources  are promoted according to quota, then officers from both sources get promotion  to posts  in the higher grade on the basis of continuous officiating  service in  the grade, reckoned from the initial date of appointment subject, of course, to merit and this  process goes  on continuously  due to  progressive retirement of  officers in  the higher grades, such officers being of  an appropriate higher age group. But if, as in the present case,  relatively younger  officers drawn  from  one source are  given artificial  seniority over  older officers promoted from the other source, such younger officers would, by the  reason of  the artificial  seniority given  to  them progressively occupy  most of the posts in the higher grades and because  they belong  to a younger age group, they would block the  promotional avenues  open to  the officers  drawn from  the   other  source.  This  disastrous  situation  has occurred here  because of  the rotational  rule of seniority and the  result is  that, as  at the end of 1981, out of 101 Superintending  Engineers   93  were   from  the  source  of Assistant Executive Engineers and so far as the higher cadre of  Chief   Engineers  is  concerned,  all  the  19th  Chief Engineers were  from  the  same  source,  namely,  Assistant Executive  Engineers,  though  in  the  grade  of  Executive Engineers, out  of a  total of  384 Executive Engineers, 103 only were  from the  source of Assistant Executive Engineers while 281 were from the source of Assistant Engineers. These statistics clearly  highlight how  discriminatory and unjust has been the application of the rotational rule of seniority to the Assistant Engineers.      It was  contended on behalf of respondent Nos. 4 to 190 that the  under recruitment of Assistant Executive Engineers during the  period from  1949 to  31st July, 1975 was due to the fact  that the Government took the view, which of course was found  erroneous by  the court  in A.K.  Subraman’s case that the  quota rule  was to be applied only at the stage of confirmation and  it was  because a different view was taken in A.K. Subraman’s case, namely, that the 913 quota rule  was applicable at the stage of initial promotion in  an  officiating  capacity  to  the  grade  of  Executive Engineers and  not at  the time  of confirmation  that  this imbalance  in  seniority  took  place.  This  contention  is clearly unfounded but even if it were not so, it is entirely immaterial,  because  the  constitutional  validity  of  the rotational rule  of seniority  cannot depend  upon what  the government thought  to be  the correct position in regard to the applicability  of the  quota rule.  The question whether the rotational  rule of  seniority is constitutionally valid or not  has got  to  be  determined  in  the  light  of  the interpretation placed  on the  application of the quota rule by the  decision in  A.K. Subraman’s case, because that must be accepted as the correct interpretation and in the context of that  interpretation, the  constitutional validity of the rotational rule of seniority must be judged. But, as pointed out above,  we do  not think this contention urged on behalf of respondent  Nos. 4 to 190 is correct. We are not inclined

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to accept  the submission  of respondent  Nos. 4 to 190 that under-recruitment  of  Assistant  Executive  Engineers  took place because the government thought that the quota rule was to be  applied only  at the  stage of confirmation. There is considerable material  placed before  the court to show that the government  rightly understood  the  quota  rule  to  be applicable at  the stage  of initial promotion but failed to strictly implement  it. Paragraph  4 of  the minutes  of the meeting held  on 14th  May, 1968  in the office room of Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly emphasizes this  position by  stating that  "the  intake  of Assistant  Executive   Engineers  should   be  increased  by considering 2/3rd  of all the temporary and deputation posts in the  grade  of  Executive  Engineers  and  above  in  the department as  permanent ones for the purpose of working out the strength  at the  junior  scale."  So  also  we  find  a categorical statement to the same effect in the letter dated 19th October,  1971 addressed  by Shri  Kartar Singh,  Joint Secretary to  the Government of India, Ministry of Works and Housing a  letter to which we have already referred earlier. The  Government  also  took  up  a  positive  stand  in  the affidavit in reply filed by P.B. Kulkarni in A.K. Subraman’s case where  it was  stated: "I submit that the quota rule is to be  applied  as  and  when  vacancies  in  the  grade  of Executive Engineers are required to be filled but as already stated earlier, it has not been possible to apply this quota rule rigidly  at  the  time  of  officiating  promotions  as promotions from  the grade  of Assistant Engineers have been in excess of their quota." (Emphasis supplied). It will thus be seen  that the government was under no illusion in regard to the  true position  relating to  the applicability of the quota rule.  But the government deliberately resorted to the policy of under- 914 recruitment of Assistant Executive Engineers because, as set out in  the Note  regarding  Cadre  Review  of  the  Central Engineers Service  Class I,  prepared and  submitted to  the Government in  June, 1978,  it was  felt  that  "it  is  not possible to  recruit enough officers in Class I junior scale to fill  up the  quota at  Executive Engineers  level as  it would worsen  the promotion  prospects of direct recruits to class I and make the service totally unattractive". The Note regarding Cadre Review also pointed out:           "A perusal  of form  VI would indicate that in the      next five  years the annual recruitment would be of the      order of  80 and  in the subsequent five years it would      be of the order of 40. According to the existing Rules,      the vacancies  in the  grade of Executive Engineers are      to be  filled up  by the  promotion of Asstt. Executive      Engineers (Group  A) and  Asstt. Engineers (Group B) in      the ratio  of 1  : 1  Since the annual intake of Asstt.      Executive  Engineers  is  to  be  co-related  with  the      vacancies that  would be  available  in  the  grade  of      Executive  Engineers,   the  annual  intake  of  Asstt.      Executive Engineers  (CES GROUP  A) would  be 40 in the      next five years and 20 in the subsequent five years. It      has been  already explained in para 2 : 3 : 6 that when      the annual  recruitment was  less than  10, the  direct      recruits were  able to  reach the Junior Administrative      grade in  10 to  11 years.  When this  was subsequently      increased  to   20  per  annum  the  period  taken  for      promotion has  increased to 14 years which is likely to      increase further  if the annual intake is maintained at      the same  level. For  this reason, it is not considered      desirable to  appoint direct recruits to C.E.S. Group A

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    in large  number. In  the Indian  Railways  Service  of      Engineers, the recruitment to the Junior Scale in Group      ’A’ is  related to  the number of posts at the level of      Chief Engineer  and above  and the  annual  intake  has      generally been  less than  the number of posts of Chief      Engineers. In  the CPWD  we have only 12 posts of Chief      Engineers and  it is,  therefore, recommended  that the      annual intake  to Junior  Scale Class  I  through  UPSC      competitive Examination  should  be  restricted  to  10      only." There can  be no doubt that the failure to recruit Assistant Executive Engineers  in sufficient  numbers,  so  that  when vacancies in  the grade  of Executive Engineers allocable to the quota  of Asstt.  Executive Engineers arose from year to year, there would be Asstt 915 Executive Engineers  available for  promotion to  fill  such vacancies, was  responsible for  the gross  distortion which took place  in the  cadre of  Executive Engineers  over  the years.      We must in the circumstances hold that Rules 2(iii) and 2(iv) of  the Rules of 1976 are violative of Articles 14 and 16 of  the Constitution  and they  must be  declared  to  be unconstitutional and void. It that be so, then obviously the seniority  between   Assistant   Engineers   and   Assistant Executive  Engineers   regularly   promoted   within   their respective  quota  must  be  determined  by  the  length  of continuous officiation  in service in the grade of Executive Engineers, subject  to the  qualification that  in  case  of Assistant Engineers  the length  of  continuous  officiation shall be  reckoned from  the date  when their  promotion  is regularised by absorption within their lawful quota.      We would  therefore allow  the writ  petition and quash and set  aside the  Memorandum and  the seniority list dated 14th August  1975 and the Rules of 1976. We would direct the government to  prepare a  new seniority  list  of  Executive Engineers in the light of the observations contained in this judgment. The  Government will  prepare such  seniority list within a period of two months from today. When the seniority in  the  grade  of  Executive  Engineers  is  rearranged  in accordance with  the directions  given in  the judgment, the cases of  Assistant Engineers  who would  have been  due for consideration for  promotion as Superintending Engineers and thereafter as  Chief Engineers on the basis of their revised seniority,  will   be  considered   by  a  duly  constituted Departmental Promotion  Committee as  on the  dates on which they would  have been  due for  such  consideration  if  the correct seniority  had been  given to  them, and  if on  the basis of their performance and record as on those dates they would have  been selected  for promotion, they must be given promotion with  retrospective effect  from such dates and if necessary,   supernumerary    posts   in   the   grades   of Superintending  Engineers   and  Chief  Engineers  shall  be created for  the  purpose  of  accommodating  them  and  all arrears of  salary and  allowances shall  be paid to them on the basis  of such  retrospective promotions. We may make it clear that those Assistant Executive Engineers who have been promoted as Superintending Engineers or Chief Engineers upto the date  of this  judgment shall not, on account of revised seniority in  the grade of Executive Engineers, be disturbed from the  positions which  they are occupying at present but their seniority in such higher grades will 916 have to  be rearranged  on the basis of the directions given in the judgment.

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    We hope  and  trust  that  this  judgment  will  put  a quietous to  the long  ranging controversy between Assistant Engineers  and   Assistant  Executive  Engineers.  The  writ petition will  stand disposed  of in the above terms with no order as to costs. S.R.      Petitions allowed. 917