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PETITIONER: A. JANARDHANA

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT26/04/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR  769            1983 SCR  (2) 936  1983 SCC  (3) 601        1983 SCALE  (1)443  CITATOR INFO :  F          1984 SC1291  (32)  C          1984 SC1595  (36,74,77,83)  D          1985 SC 774  (24)  D          1985 SC 781  (13)  F          1985 SC1019  (11,20,21)  F          1985 SC1558  (26,28)  F          1985 SC1605  (14,16)  RF         1986 SC 638  (12,15,20)  F          1987 SC 424  (24)  R          1987 SC 716  (13)  RF         1987 SC2359  (17)  D          1988 SC 268  (22)  R          1988 SC 394  (4)  APL        1989 SC 278  (17)  RF         1990 SC 428  (4,6,8,9,10,11,13,14)  RF         1990 SC1256  (14)  RF         1992 SC1277  (38,99)

ACT:      Service  Jurisprudence-Anomaly  in  recruitment  Rules- Inter-se-seniority of  Direct Recruits  and promotees in the Military Engineer  Services Class  1-C Seniority Lists drawn up in 1963 and 1967/68 on the principle of length of service Continuous officiation altered to one based on quota between direct  recruits   and  promotees   leading  to   rota   for confirmation treating  many earlier promotees as surplus and out of  the  list-Validity  of  the  revised  1974  inter-se Seniority List  and the  panel  of  promotion  prepared  and published  on  January  13,  1975,  based  thereon  Military Engineer  Services,   Class  r  (Recruitment  Promotion  and Seniority Rules 1949 which became statutory with effect from 11.1.2.69-Rules 3 and 4 read with Rule 23 of Pal t 111, para 3 of  appendix V  and Army  Instruction 241 of 1950 scope of Constitution of India, Article 14.

HEADNOTE:      Appellant joined service as suspension in the year 1953 in what  is styled  as Military Engineering Service. He came to be  promoted as  Assistant Executive Engineer in 1962. In the seniority  list of  AEE drawn up in the year 1963 he was shown at  serial no.  357. In the seniority list of 1967 the appellant’s name  was found  at serial  no. 234.  But  as  a

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result of  the decision  in Bachan  Singh’s case  the  Union Government set aside the seniority lists of 1963 and 1967/68 and drew  up a  Fresh list  on the  criteria drawn  from the decision in  Bachan Singh’s  case. In  the seniority list so drawn, the  appellant’s name  did not  find a  place at  all because he was pushed down, treating still as surplus, after applying the  quota from the date of the constitution of the service itself  in 1951,  applying the  ratio of 9:1 between the direct  recruits and  the promotes.  If he  were  to  be treated as  surplus in  this manner  the appellant cannot be adjusted and  treated as  a member till 1989 by which he may retire,  of  the  service  within  the  definition  of  that expression found  in the  Military Engineers  Services Rules (Recruitment, Promotion and Seniority) Rules 1949 as amended from time  to  time.  The  Union  of  India  understood  the decision in  Bachan Singh’s  case to  mean that  there was a quota for  recruitment in the cadre of AEE in MES Class I of 9 direct  recruits to one promotee (9:1) since 1951 and that the quota must lead to rota for confirmation and thus redraw the  seniority   list  with  the  startling  result  of  the appellant and  several others  similarly situated  unable to get a berth at all.      The appellant  therefore, filed  a  writ  petition  no. 4293/79 questioning the validity and legality of the revised seniority list Ex. ’D’ circulated with letter dated June 14, 1974 and  to cancel  the panel  af  promotion  prepared  and communicated in  E,E.C’s proceedings  no. 65020/EE/74/EIR/dt January 13.1975 937 drawn up  an the  basis of  the impugned  revised  seniority list. The writ petition having been dismissed, the appellant has come up in appeal by special leave. A      Allowing the appeal, the Court ^      HELD :1.  The seniority  lists of 1963 and 1967168 were quite legal  and valid  and hold  the field till 1969 having been drawn  up on the basis of the principle which satisfies the test  of Article  16. Their  revision  can  be  made  in respect of  members who  joined service  after 1969  and the period subsequent to 1969. [963 E-F]      2.1 The  seniority list  ’Ex. D"  circulated  with  the letter dated  June 4,  1974  and  the  panel  for  promotion included in  E-E-C’s proceedings  no. 65020/EE/74/EIR  dated January 13,1975  drawn up  on the  basis of  that  list  are incorrect   and    stem   from    a   misunderstanding   and misinterpretation or  the Supreme Court’s decision in Bachan Singh and  Anr. v. Union of India and Ors. [1972] 3 SCR 898. [965 H, 906 A]      2.2 ’There  was  no  justification  for  redrawing  the seniority  list   in  1974  affected  persons  recruited  or promoted prior  to 1969  when the  rules acquired  statutory character. No  doubt,  it  is  open  to  the  Government  to prescribe principles  for determining  inter-se seniority of persons belonging  to the  same service or cadre except that any such  principle must  meet the test of Article 16. It is equally open  to the  Government to  retrospectively  revise rules, if  the same does not adversely affect vested rights. But if  the rule  for  determining  inter  se  seniority  is revised  or   a  fresh   rule  is   framed,   it   must   be constitutionally valid. The criterion adopted is illegal and valid. It  overlooks the  character of the appointments made during the period 1959 to 1969. lt treats valid appointments as   doubtful  validity.  It  pushes  down  persons  validly appointed below  those who  were never  in service  and  for reasons unknown  with retrospective  effect i.e.  from 1951.

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1965 G-H, 966 B-C]      3. In  Bachhan Singhs  case, the  Supreme Court,  after reviewing the  History of  the MES  rules from  1949 to 1969 held as follows: F      (i) The  ’1949 Rules’  and  the  subsequent  amendments acquired statutory  character in 1969 because as a result of 1969 amendment,  the entire  body of rules of Class I became statutory rules  by incorporation  and till  then they  we e mere administrative instructions. [952 A]      (ii) Under  rules 3  and  4  of  the  1949  Rules,  the recruitment to  MES Class  I could  be made from two sources only, namely,  by competitive  examination held  in India in accordance with  Part II of the Rules, which makes extensive provisions for holding examination including the eligibility for admission  to the  same, and  by promotion in accordance with Part II of the Rules. [952 B]      (iii) During the years 1962, 1963 and 1964 particularly and until the year 1969, the Class l Service. Rules were not statutory in  character. The  Union Government  relaxed  the Rules both in regard to recruitment by interview 938 and in  regard to  the quotas  fixed by the Rules for direct recruitment and  A  recruitment  by  promotion  to  Class  I Service, the  quota rule  being 9:1 as per Rule 4. [953 A B, D]      (iv) In 1962, there was a state of emergency. Engineers were immediately  required to  fill the  temporary posts  in Class I  service. To meet the emergency the Union Government in consultation  with the  Union Public  Service Com mission decided to  directly recruit candidates by advertisement and selection by  interview only  by the  Union  Public  Service Commission. The  Government with  the aid  of selection  and interview by the UPSC directly recruited some respondents to Class I service in the years 1962,1963 and 1964. [953 D-E]      (v) In  respect of  the vacancies that occurred between 1951 and  1971, because of the emergency, the quota rule for filling them was ignored both for departmental promotees and direct recruitment; and [953 E-G]      (vi)  Therefore,   the  appointment   of  those  direct recruits who  were appointed  after interview  by the  Union Public Service Commission, that is by a method not permitted by the rules was valid and legal in as much as that was done in  relaxation   of  the   rules  both   as  to  competitive examination and the promotions were given after relaxing the quota rule.  ’I he  direct recruits  who were  appointed  by interview did fall within the class of direct recruits. [954 B-C]      (vii) Rule  24 which  was introduced  in 1967 conferred power on the Union Government for the reasons to be recorded in writing  and after  consultation with  the  Union  Public Service Commission  to relax  all or  any of  the rules with respect to  class or  category of persons posts. As the 1949 rules  were   non-statutory  in  character  till  1969,  the Government did make the recruitments from both sources after exercising the said power to relax the rules. [954 G, 955 A, B]      4.1 If Rule 3 of M.E.S. (R.P.S.) Rules provided methods of recruitment indicating the sources from which recruitment could be  made and  if rule confers discretion on Government to make  recruitment from either source because Rule 4 opens with a  limitation, namely,  that it  is subject  to Rule 3, now, if  as held in Bachan Singh’s case, "1949 Rules", while prescribing  the   quota  conferred   power  on   the  Union Government to  make recruitment  in relaxation of the rules, it  is  implicit  in  this  power  to  make  recruitment  in

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relaxation of the quota rule and it is admitted that because of the  emergency and  because of the exigencies of service, recruitment was  made in  relaxation of  the rules,  in this case. It  is this  emergency and  the dire  need of urgently recruiting  engineers  which  led  the  Government  to  make recruitment in  relaxation of  quota rule  by foregoing  the competitive examination  and promoting  subordinate ranks to class I  service. Petitioners and similarly situated persons were thous  promoted to  meet the  dire need  of service  in felaxation of the quota rule. [955 F-G]      4.2 It  is  true  that  where  the  rule  provides  for recruitment from  two sources  and simultaneously prescribes quota,  unless   there  is  power  to  relax  the  rule  any recruitment in  excess of  the  quota  from  either  of  the sources could 939 be illegal  and the  excess recruits  unless they find their place by  adjustment in subsequent years in the quota, would not be members of the service. [955 G, H, 956 A]      S.G. Jaisinghani  v. Union of India [1967] 2 SCR 703 at p. 718;  B.S. Gupta  v. Union  of India  (1st Gupta’s case), Suppl. SCR  49; B.S.  Gupta v.  Union of  India (2nd Gupta’s case ) [1975] 1 SCR 104; referred to.      4.3 But,  when  recruitment  is  from  two  independent sources, subject  to prescribed  quota,  but  the  power  is conferred  on   the  Government   to  make   recruitment  in relaxation of  the rules,  any recruitment  made contrary to the quota  rules would  not be  invalid, unless  it is shown that the  power of  relaxation was exercised, malafide, that is not  the contention  in this  case nor  voiced in  Bachan Singh’s case. [957 C-E]      N.K. Chauhan  & Others  v. State of Gujarat and Others, [1977] 1 SCR 1037; referred to.      4.4 Now,  if recruitment  contrary to Rule 3, namely by interview by  the Union  Public Service Commission, which is not the  recognised mode  of recruitment,  is held  valid in Bachan Singh’s  case on  the ground  that the same emergency compelled the  Government to  recruit by promotion engineers to the  post of  AEE class  I in  excess  of  the  quota  by exercising the power of relaxation and such recruitment ipso facto would  be valid.  The promotees being validly promoted as the  quoted rule  was relaxed would become the members of the service. [957 G-H, 958 A]      4.5 The  1949 Rules  do not  throw  any  light  on  the composition  of  the  service,  except  the  fact  that  the expression "service"  has  been  defined  to  mean  Military Engineering Service,  Class I.  If the  recruitment is  made from either of the sources and is otherwise legal and valid, persons recruited  to temporary  posts would  nonetheless be members of  the service.  Keeping in  view the exigencies of service and the requirements of the State, unless it is made clear to  the contrary  that the  temporary posts  are fir a certain duration  or the appointments to temporary posts are of an  ad hoc nature till such time as recruitment according to rules  is made.  In the  absence of  any such  provision, persons holding  permanent and  temporary posts would become the members  of the  service provided the recruitment to the temporary posts  is legal and valid. Once the recruitment is legal and  valid, there is no difference between the holders of permanent  posts and  temporary posts  in so  far  as  it relates to all the members of the service. [958 B-D]      In the instant case, the question whether the vacancies were in  the permanent strength or in the temporary cadre is irrelevant  because   none  of  the  appellants  and  others

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similarly situated  is reverted  on the  ground that no more vacancy is available. [958 A]      S.B. Patwardhan  & Ors  v.  State  Maharashtra  &  Ors, [1977] 3 SCR 775 @ 795 followed. 940      5:1  It   is  well   recognised  principle  of  service jurisprudence that  any rule  A of  seniority has to satisfy the test  of equality  of opportunity  in public  service as enshrined in  Article 16.  Equally yet well recognised canon is  that  in  the  absence  of  any  other  valid  rule  for determining inter  se seniority  of members belonging to the same service  the rule  of continuous  uninterrupted service since the entry would be valid and would satisfy the test of Article  16.   Apart  from   this  general   principle   for determining inter se seniority in the instant case, there is a specific  rule namely  para 3(iii)  of Appendix  V of 1949 Rules, governing  inter se seniority between direct recruits and promotees  in MES,  Class I  Service and it was in force till 1974 when the impugned list was drawn up. [960 F-H]      5:2 In  para 3(iii) of Appendix V of 1949 Rules, it was provided that  a roster  shall be  maintained indicating the order in  which  appointments  are  to  be  made  by  direct recruitment and promotion in accordance with the percentages fixed for  each method  of recruitment  in  the  recruitment rules.  The  relative  seniority  of  promotees  and  direct recruits shall  be determined  by the  dates  on  which  the vacancies reserved  for the directs and the promotees occur. This rule’  was related  to the  quota of 9:1 between direct recruits and promotees prescribed in Rule 4. [951 A-C]      5:3 A  combined reading  of Rule  4 and  para 3(iii) of Appendix V  would clearly  show that  a  roster  has  to  be maintained consistent  with the  quota so  that the relative inter se  seniority of  promotees and  direct recruits to be deter mined  by the  date on  which vacancy occurred and the vacancy is  for the  direct recruit  or for the promotee. If quota prescribed by rule 4 was adhered to or was inviolable, the rule  of seniority enunciated in para 3(iii) of Appendix V .  will have  to be given full play and the seniorily list has to be drawn in accordance with it. But as quota rule was directly inter  related with the seniority rule and once the quota rule  gave way,  the seniority rule enunciated in para 3(iii) of  Appendix-V became  wholly otiose and ineffective. [961 C-E]      It is  well recognised  that where  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  In  the  instant case, therefore,  once time  quota rule  was wholly  relaxed between 1959 and 1969 to suit the requirement of service and the recruitment made in relaxation of the quota rule and the minimum qualification rule for direct recruits is held to be valid,  no  effect  can  be  given  to  the  seniority  rule enunciated in  para 3(iii),  Which was  wholly  inter-linked with the quota rule and cannot exist apart from ’J it on its own strength.  Further, this  position is impliedly accepted by the  Union Government  and is  implicit in  the seniority lists prepared  in 1963  and  1967-68  in  respect  of  AEES because  both   these  seniority  lists  were  drawn  up  in accordance with the rule of seniority enunciated in Annexure ’A’ to  Army Instruction  no. 241 of 1950 dated September 1, 1949 and  not in  compliance with para 3(iii) of Appendix V. [961 E-H, 962 A-B]      B. S. Gupta v. Union of India (1st Gupta’s case) [1975] Suppl. SCR 491 referred to. 941

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    5:4 The  principle  of  seniority  enunciated  in  Army Instruction 241  of 1950  is that  the rule  for determining inter se  seniority in  the cadre  of  Assistants  A  should generally be  taken as  the model  in framing  the rules  of seniority for  other services  and  in  respect  of  persons employed in  any particular  grade  seniority  should  as  a general rule  be determined  on the  basis of  the length of service in  that grade  as well  as service in an equivalent grade irrespective  of whether  the  latter  was  under  the Central or  provincial government in India or Pakistan. This was the  rule of  seniority which would be applicable in the absence of any other rule specifically enacted for MES class I service.  Even a  plausible contention  that the seniority rule enunciated  in para  3(iii) of Appendix V of 1949 Rules was the one specifically enacted for MES class I service and this special rule would prevail over the general rule issued in Army  Instruction 241  would be of no avail in as much as (1) the  rule in  para 3  (iii) gave way when the quota rule was relaxed  and (ii)  in all  the subsequent rules of 1953, 1961 and  1962, it  was clearly  stated that the "principles for determining  seniority are under consideration". [962 C- A]      6:1 The  two fundamental basic assumptions on which the impugned seniority  list was  drawn up  are wholly untenable and contrary  to the  relevant rules.  The first  assumption that there  was a  rigid quota rule and that the recruitment in excess  of the  quota would  be invalid  and  the  excess recruits from  either source  will have  to be  adjusted and regularised in  succeeding years,  was probably  due to  the authorities having  been influenced  by the  observations in Jai Singhani’s  case and  the two  successive B.  S. Gupta’s cases, all  of which have no application to the facts of the present case.  The  second  assumption  that  there  was  an inviolable quota  rule which could not be relaxed was due to overlooking the  position  that  once  the  quota  rule  was relaxed, the  rota  for  confirmation  disappeared.  In  the absence  of   any  other   rule  coupled   with   the   Army Instructions, upto  1968 continuous officiation would be the only available  rule for determining the inter se seniority. Further as  far as  the minimum educational qualification is concerned promisees  and direct  recruits are on par and the promotees cannot  be looked  upon as persons belonging to an inferior breed. [963 D-H, 964 A]      7. The  contention that  the individuals  likely to  be affected by  the decision  not  being  impleaded,  the  writ petition should  fail cannot  be accepted.  Factually it  is incorrect because  by order  of the  High  Court,  names  of respondents 3  to 419  were deleted and in the Supreme Court submissions were made by a counsel for them. In the petition as well  as in  the appeal the relief is claimed against the Union of  India and  the concerned  Ministry and not against any individual  nor  any  seniority  is  claimed  by  anyone individual against  G  another  particular  individual.  The contention  is  that  the  criteria  adopted  by  the  Union Government in  drawing up  the impugned  seniority list  are illegal and  invalid. Therefore,  even  if  technically  the direct recruits  were not  before the Court, the petition is not likely to fail on that ground. [966 G-H, 967 A-B] Vade Mecum      It  is   unfortunate  that   very  unjust,  unfair  and inequitable situation having a demoralising effect on public services probably ensuing from certain 942 rules framed  by the  Government and  the decisions  of this Court has  emerged. Even  where the recruitment to a service

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is from  more than  one source and a quota is fixed for each source yet  more often  the appointing authority to meet its exigencies of  service exceeds  the quota  from  the  easily available source  of promotees  because  the  procedure  for making recruitment  from the market by direct recruitment is long  prolix   and  time   consuming.  The   Government  for exigencies of  service, for needs of public services and for efficient administration,  promotee person  easily available because in  a hierarchical service one hopes to move upward. After the promotee is promoted, continuously renders service and  is   neither  found  wanting  nor  inefficient  and  is discharging his  duty to  the satisfaction  of all,  a fresh recruit from  the market  years after  promotee was inducted the service  comes and  challenges all the past recruitments made before  he was  born  in  service  and  some  decisions especially the  ratio in  Jai Singhani’s case as interpreted in two  B. S.  Gupta’s cases  gives him  an advantage to the extent of the promotee being preceded in seniority by direct recruit who  enters service  long  after  the  promotee  was promoted. When  the promotee  was promoted and was rendering service, the  direct recruit  may be  a schoolian or college going boy.  He emerges  from  the  educational  institution, appears at  a competitive examination and starts challenging everything that  had happened  during the period when he has had nothing  to do  with service.  A mandamus  issued in Jai Singhani’s case  led to  a situation  where promotees of the year 1962  has to yield place to direct recruits of 1966 and the position  worsened thereafter.  In  the  case  in  hand, appellant a  promotee of  September 27, 1962 is put below N. K. Prinza  who appeared  at competitive examination in April 1976 i.e.  One who came 14 years after the appellant, and it does  not   require  an  intelligent  exercise  to  reach  a conclusion that  14 years  prior to  1976 Mr.  Prinza who is shown to  be born  on July  20, 1950  must be  aged about 12 years and must have been studying in a primary school. Shorn of all  service jurisprudence  jargon one can bluntly notice the  situation  that  a  primary  school  student  when  the promotee was  a member of the service, barged in and claimed and got  seniority over  the promotee.  If this  has  not  a demoralising effect  on service  one fails to see what other inequitous approach would be more damaging. It is therefore, time to clearly initiate a proposition that a direct recruit who comes  into  service  after  the  promotee  was  already unconditionally and  without reservation  promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory  or non-statutory  rules  should  not  be permitted by an principle of seniority to score a march over a promotee  because that  itself being  arbitrary  would  be violative of Arts. 14 and 16.      [968 D-H, 959 A-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 360 of 1980.      From the  Judgment and  order dated  the 15th  and 17th May, 1979  of the  High Court  of Karnataka  at Bangalore in Civil Writ Petition No. 4293 of 1975.      G. L. Sanghi and A. K. Sanghi for the Appellant.      Abdul Khader, N. C. Talukdar and Miss A. Subhashini for Respondent Nos. 1 and 2. 943      P. R. Mridul and H.K. Puri for Respondent Nos. 3 to 11.      M. K. Ramamurthi and Jatindra Sharma for Respondent No.

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12.      Dr. Y. S. Chitale and A.K Sanghi for intervener.      The Judgment of the Court was delivered by B      DESAI, J.  Appellant A.  Janardhana filed Writ Petition No. 4293  of 1979  questioning the  validity and legality of the revised  seniority list  Ex.  ’D’  circulated  with  the letter dated  June 14,  1974 to  which the revised seniority list Ex.  ’C’ was annexed and as a consequence to cancel the panel of  promotion dated  January  13,  1975,  drawn-up  in respect of 102 officers. A mandamus was sought directing the respondents to give effect to the 1963 Seniority List drawn- up  on   the  principle   of  length  of  service-continuous officiation as  set out in the notification memorandum dated March 11,  1965. A cognate Writ Petition No. 4273 of 1979 by one Manjunatha  was also  heard and disposed of by the Court along with the writ petition filed by the appellant.      The factual  matrix in  juxtaposition with the relevant rules may  be set  out in details because the very narration of chronology  of events  would  illumine  the  contours  of controversy.      Appellant joined service as Supervisor in the year 1953 in what is styled as Military Engineering Services (MES’ for short). He  came  to  be  promoted  as  Assistant  Executive Engineer (AEE) in 1962. In the seniority list of ’AEE’ drawn up in  the year  1963 the  appellant was shown at Serial No. 357. In  the revised  seniority list  dated  June  14,  1974 impugned in the petition, the appellant did not find a place because consistent with the quota rule on the basis of which the impugned  revised seniority  list of  1974 was prepared, the appellant  was surplus  and could  not find his berth in the seniority  list. It  is necessary to note an intervening event. One  Bachan Singh  and Anr., the two promotees to the post of ’AEE’ in the years 1958 and 1959 respectively, filed a writ  petition in  the High Court of Delhi challenging the appointment of  several direct  recruits  to  ’MES’  on  the ground  that  their  appointment  was  contrary  to  and  in violation of  the rules  of recruitment  and they  were  not validly appointed  and, therefore;  could not become members of the  service. The writ petition was dismissed by the High Court of Delhi and the 944 matter was  carried in  appeal in  this Court.  The decision rendered A  by a  Constitution Bench of this Court in Bachan Singh &  Anr v.  Union of  India & ors(l) was interpreted by the first  respondent to  mean that  the direct recruitment, not by  competitive examination  but by  interview and  viva voce  test,   was  valid  and  such  appointments  being  in consonance with  the rules,  the confirmation of said direct recruits  was   within  the  quota  of  direct  recruits  in permanent  vacancies   and  was   hence  valid.   The  first respondent understood  the decision to mean that there was a quota for recruitment in the cadre of ’AEE’ in ’MES’ Class I of 9  direct recruits to 1 promotee (9:1) since 1951 and the quota must  lead to  rota for  confirmation and proceeded to redraw the  seniority list in 1974 with the startling result in respect  of the  appellant and  several persons similarly situated as  hereinabove set  out. The appellant in his writ petition  questioned  the  criteria  adopted  for  preparing revised seniority list of June 1974 on diverse grounds based on the  ratio  of  the  decision  in  Bachan  Singh’s  case. Criteria may  be extracted  from the  memoranda covering the seniority list dated June 14, 1974:      "(a) The  inter se  seniority of  direct  recruits  and           depart  mental   promotees  is   to  be  fixed  in           accordance with  the quota  laid down  in ME (RPS)

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         Rules 1951 from time to time. The same quota is to           apply both  in  the  matter  of  confirmation  and           fixation of seniority.      (b)  Seniority List of Assistant Executive Engineers is           to be  prepared upto  1968 and excess departmental           promotees who  cannot be  brought into  the  cadre           have to  be shown  separately and  brought in  the           cadre on  the basis of quota as and when vacancies           become available.      (c)   From 1.2.1969, the date on which the rules became           statutory, the  seniority of  excess  departmental           promotees (Approx  ’B’)  of  the  list  is  to  be           regulated as under:           (i)   The seniority  of departmental promotees who                are brought into cadre from 1969 onwards will                count along  with direct recruits of the year                in 945                which the  promotees  are  brought  into  the                cadre and  any service  for further promotion                to higher  posts. For  example a departmental                promotee of  1966, if brought on the incadred                list in  1970 will  count only the service in                the grade  of AEE after 1970 for seniority in                that grade for further promotion as EE.           (ii) All  excess promotees  who are holding higher                appointment    will     be    eligible    for                consideration  for   further   promotion   on                completion of  the  requisite  service  after                their adjustment in the cadre.      (d)  The revised  seniority list  based  on  the  above           decisions will  be subject  to the out-come of the           writ petition  pending in  the Andhra Pradesh High           Court and  any other  legal pronouncement that may           be made  in this  behalf. All  promotions based on           this  seniority  list  will  also  be  subject  to           revision on  the availability  of the  judgment in           the  writ   petition.  While   making   promotions           therefore,  it   may  be  made  clear  that  these           promotions will be subject to any further decision           of the Court."      It would  be advantageous  to mention that the criteria had the flavour emanating from the reading and understanding of the decision in Bachan Singh’s case. If the understanding or interpretation  of the  ratio Bachan  Singh’s decision is incorrect or  contrary to what is laid down, the unavoidable consequence would  be that  the seniority  list drawn  up on such incorrect  or misinterpreted  ratio would not only fall but it  would have  to be  quashed. Let  us therefore  first refer to  the various  stages through  which relevant  rules have moved  leading to  the decision in Bachan Singh’s case. There is a glut and mass of rules bearing on the subject and we may briefly weave through them.      By notification  dated September 17, 1949, the Ministry of 1  Defence published  Rules styled  as Military  Engineer Services, Class  I (Recruitment,  Promotion  and  Seniority) Rules (1949  Rules for short). ’Service’ was defined to mean Military Engineer Services. 946 Class I. Rules 3 and 4 have provided the cornerstone for all contentions canvassed in this appeal and may be extracted:           "3.  The   service  (other  than  the  Architect’s      Service and  the Barrack  and Stores  Service) shall be      recruited by the following methods:      (i)  By competitive examination held in India in accor-

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         dance with part II of these Rules.      (ii) By  promotion in accordance with Part III of these           Rules           4. Subject to the provisions of Rule 3, Government      shall determine  the method  or methods  to be employed      for the  purpose of filling any particular vacancies or      such vacancies  as may  require to be filled during any      particular period,  and the  number of candidates to be      recruited by each method provided that not more than 10      per cent,  of the  vacancies in  the service (not being      vacancies filled by promotion from one grade to another      within the  service) shall  be  filled  by  the  method      specified in clause (ii) of Rule 3 above.      The recruitment  was to be from two sources: (i) direct recruitment  by   competitive  examination;   and  (ii)   by promotion in  accordance with  Part III of the Rules. Rule 4 confers discretion  on the  Government circumscribed  by the provision of Rule 3 enabling the Government to determine the method or  methods to be employed for the purpose of filling in particular vacancies or such vacancies as may be required to be filled during any particular period, and the number of candidates to  be recruited  by  each  method.  There  is  a proviso  to   Rule  4  and  it  is  the  subject  matter  of acrimonious debate in the Court. One submission of Mr. P. R. Mridul, learned  counsel for  direct recruits  was that  the proviso is  the proviso  to sub-rule  (ii) of  Rule 3 and it fixes the  quota of  9 to  1  between  direct  recruits  and promotees. At  the other end of the spectrum, the submission was that it merely provides a. ceiling and not an inviolable quota rule.  We would  examine both the submissions a little while after.  Part II  of the Rules makes detailed provision for the  competitive examination  to be  held in  India  for selecting direct  recruits. Rule 21 to 23 in Part III of the 1949 Rules, prescribe qualification and method 947 for recruitment  by promotion. One worth noticing is Rule 23 which prescribes  that no  individual shall  be eligible for promotion to the A service unless, he would, but for age, be qualified for admission to the competitive examination under Part II.  This would  mean that  except for  age  all  other qualifications  including   educational  qualification   for direct recruits  and promotees  are the  same. There  are  S Appendices to  1949 Rules. Para 3 in Appendix V provides for inter se  seniority between  direct recruits  and promotees. Sub para (iii) of para 3 is relevant and may be extracted:      "(iii) A  roster shall  be  maintained  indicating  the           order in  which appointments  are to  be  made  by           recruitment and  promotion in  accordance with the           percentages fixed  for each  method of recruitment           in the  recruitment rules.  The relative seniority           of  promotees   and  direct   recruits  shall   be           determined by  the dates  on which  the  vacancies           reserved for the direct recruits and the promotees           occur..."      Though the  1949 Rules  were published on September 17, 1949, they  were brought into operation by a notification of the Ministry of Defence dated July 29, 1950 with effect from April 1st,  1951. 1949  Rules when  enacted were  admittedly non-statutory in character.      By the notification dated July 18, 1953 of the Ministry of Defence,  the Rules  styled as  Military Engineer Service Class I  Recruitment Rules  were promulgated.  Rules 3 and 4 are in  pari materia  with Rules  3 and 4 of the 1949 Rules. Part II  of the  Rules  makes  detailed  provision  for  the competitive examination  and the Rules in Part III deal with

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appointment by  promotion. It was not made clear whether the 1953 Rules  superseded  the  1949  Rules.  They  are  almost identical save  and except  for a  provision in  Appendix V. Para 3  in Appendix  V of  1949 Rules  provided for inter se seniority of  direct recruits and promotees, while para 3 in Appendix V  of 1953  Rules recited  that ’the principles for determining  seniority  are  under  consideration.’  It  is, therefore, suggested that para 3 in Appendix V of 1949 Rules was abrogated and fresh principles for determining seniority were yet  to be  devised. The  contention arising from these two sets  of Rules  occupying the same field would in course of time  become worst  confounded by  what has  been done in 1969 but that would come later on. 948      Moving to  the next  stage, the  Ministry of Defence by its notification dated January 7, 1961 promulgated statutory Rules enacted  in exercise  of the  power conferred  by  the proviso to  Article 309.  These Rules  were to  regulate the recruitment to  the Military  Engineer  Services,  Class  I? (1961 Rules  for short).  These Rules  largely relate to the method to  be adopted  for direct recruitment, the manner of holding examination and the persons eligible for entrance to the examination.  In a  way 1961 Rules left rules 3 and 4 of 1949 Rules  and rules  3 and  4 of 1953 untouched, except to the extent  provided in  para 8 of appendix lV wherein it is stated that  promotions to  the Superior  and Administrative posts are  dependent  on  occurrence  of  vacancies  in  the sanctioned establishment and are made wholly by selection in consultation with  the Departmental  Promotion Committee and Commission as  laid  down  in  the  Home  Department  office memorandum No.  33/46-Ests(R) dated  June 17th,  1946;  mere seniority is  considered to  confer no  claim to  promotion. Though these  Rules are  styled as  Rules for recruitment to Military Engineer  Services, Class I, omits any reference to recruitment by  promotion is  wholly absent  yet Rule  3  in Appendix IV  restated the  position that  the principles for determining seniority are under consideration. 1961 Rules do not even  refer to  1949 Rules, but it may be mentioned that 1961 Rules were superseded by 1962 rules.      In 1962,  the Ministry  of Defence  by its notification dated April  27, 1962  in exercise of the power conferred by the proviso  to Article  309  framed  Rules  regulating  the recruitment to  the Military  Engineer Services  Class I  in supersession of  1961 Rules.  Both the  1961 and  1962 Rules neither refer  to Rule 3 and Rule 4 of 1949 Rules permitting recruitment  by  promotion  and  the  permissible  limit  of recruitment by  promotion. 1962  Rules restated in Rule 3 in Appendix IV  that the  principles for  determining seniority are under  consideration. Further  para 8 in Appendix IV was repeated at the same place as in 1961 Rules.      By the  notification of Ministry of Defence dated April 17, 1965  Rule 7  of 1962  Rules was  amended. But it has no relevance to  the point  under consideration.  Then comes  a noteworthy pro  vision. Rule  3 in Appendix IV of 1962 Rules which  provided   that  ’the   principles  for   determining seniority  were  under  consideration’  was  substituted  as under:      "3.  Relative  seniority   of  officers   appointed  to           service on  the basis  of the combined Engineering           Services 949           Examination or  otherwise will  be  determined  in           accordance with  the orders issued by Government A           from time to time."      By the  notification of  the Ministry  of Defence dated

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February 18,  1967, a  further amendment  was introduced  in 1962 Rules with regard to the eligibility of persons who can offer  themselves   as  candidates   for   the   competitive examination.      By the  Ministry of Defence notification dated February 25, 1967,  non-statutory in character sub-rule (h) was added to Rule  20 in  Part III of 1949 Rules providing reservation of 50%  of the  permanent vacancies  to  be  filled  through direct  recruitment   after  17th   May,  1963  of  graduate engineers who  are commissioned  in the  Armed Forces  on  a temporary basis  during the Emergency and are later released subject to certain conditions therein prescribed.      Then comes the land-mark change of 1969. On February 1, 1969, the  President in  exercise of  the power conferred by the proviso to Article 309 framed and promulgated amendments to 1949  Rules styled  as Military  Engineer Service Class I (Recruitment, Promotion and Seniority) Amendment Rules, 1969 which came  into force  on February  1,  1969.  Rule  4  was amended by  substituting ’25’  of the vacancies’ in place of ’10% of  the vacancies.’  In other  words, the quota between direct recruits and promotees was modified from 9:1 to 3:1.      We may  at this  stage notice  Army Instruction  241 of 1950. It  provided for  seniority of  civilian employees  in lower cadre.  The instruction  refers to the order contained in para  2 of  the Ministry of Defence office Memorandum No. 0240/6362/0-12 dated  1st September 1949 which was published as an  annexure to  the instruction. The instruction is that the  rule   for  determining  seniority  amongst  Assistants recently devised  must be followed as a model. The model was that in any particular grade seniority as a general rule, be determined on  the basis  of the  length of  service in that grade  -   as  well   as  service  in  an  equivalent  grade irrespective of  whether the letter was under the Central or Provincial Government in India or Pakistan.      Having journeyed through the maze of Rules, we may turn to the  primary contention  raised in this appeal. Before we do so, let 950 it be  remembered that the appellant is a promotee to AEE in MES cl.I of the year 1962 and by the impugned seniority list of June  14, 1974,  he  does  not  find  his  place  in  the seniority list  and is  still in  the  surplus  list  to  be accommodated at a future date and Mr. Sanghi learned counsel for the  appellant asserted  with  some  vehemence  that  he cannot come  into the  service till 1989 when it may be time for him  to retire  from the  service. In  other words after having rendered  service in  a post included in the class I, he is  hanging out side the service, without finding a berth in service, whereas direct recruits of 1976 have found their place and  berth in  the service. This is the situation that stares into  one’s face  while interpreting  the  quota-rota rule and  its impact  on the  service of  an individual. But avoiding any  humanitarian approach to the problem, we shall strictly go  by the  relevant rules  and precedents  and the impact of  the Rules  on the  members  of  the  service  and determine whether  the impugned  seniority list  is valid or not. But,  having done  that we  do propose  to examine  and expose an  extremely  undesirable,  unjust  and  inequitable situation  emerging   in  service   jurisprudence  from  the precedents namely,  that a  person already rendering service as a  promotee has  to go down below a person who comes into service decades  after the  promotee enters  the service and who may  be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time

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has come  to recast  service jurisprudence  on more just and equitable foundation  by examining  all  precedents  on  the subject to retrieve this situation.      The contentions  canvassed before the High Court at the time of  hearing this group of petitions are (i) what is the character of ’1949 Rules’ when they were enacted and whether and when they acquired statutory character ?; (ii) In making recruitment in  the manner  it was  done till  ’1949  Rules’ acquired statutory character, was there a violation of quota rule assuming  that there  was quota prescribed in Rule 4 of ’1949 rules’ ?, (iii) If Rule 4 of ’1949 Rules’ prescribed a quota of  9:1 between direct recruits and promotees, had the Government the  power to relax the quota rule when necessary or under  certain circumstances  ?; (iv) What if any, is the effect on  the status  of  the  promotees  promoted  to  the service in  relaxation of the quota rule ?; (v) whether such promotees became  the members  of the  service so  as to  be assigned a  place in  the seniority list ?; (vi) If prior to ’1949  Rules’   acquiring  statutory   character   in   1969 promotions were made in excess of the quota, which principle 951 governed determination of inter se seniority of later direct recruits with  earlier promotees  ?, (vii) If 1963 Seniority List when drawn up was according to the Rules then in force, could it  be rendered  ineffective by  a  revised  rule  for determining inter  se seniority  devised in  1974 and  given retrospective effect. These and the connected questions call for answer in this appeal.      We were  often reminded  in the  course of hearing that the Court  is not  scribbling on a clean slate and that some of the contentions canvassed in this appeal are concluded by a decision of the Constitution Bench of this Court in Bachan Singh &  Anr. v.  Union of  India  &  Ors.(1).  It  must  be confessed that in Bachan Singh’s case (supra), various rules to which  we have drawn attention in the earlier part of the judgment came  in  for  consideration  by  the  Constitution Bench. Therefore, both the sides extensively referred to the various  observations   and  conclusions   recorded  in  the decision and  it is  incontrovertible that  this decision is binding on  us  and  therefore,  the  contentions  canvassed before us  will have to be answered within the parameters of the decision  of the Constitution Bench. To steer clear of a possible unintended  transgression of this binding decision, it is  necessary to set out in some details the ratio of the decision of the Constitution Bench in that case ?      Bachan Singh  and Anr.  were promoted in the years 1958 and 1959  respectively to  AEE in  MES (Class  I Some of the respondents  in   that  case   were  appointed   by   direct recruitment after  they  had  appeared  in  the  competitive examination, but  all the  respondents were appointed to the service  in  the  years  1962,  1963  and  1964.  The  first contention raised  on behalf  of the promotee-appellants was that the  recruitment of some respondents as direct recruits not as  the result of competitive examination as provided in the Rules  but by mere interview by the Union Public Service Commission was  contrary to and in violation of the relevant Rules and  thus the  recruitment being  invalid they did not become members  of the service. It was said that if they are not members of the service, they cannot claim seniority over promotees  the   petitioners  in   that  case.   The  second contention  was  that  such  of  the  respondents  who  were recruited by  interview and  as a  result of the competitive examination after  the appellants  had been  promoted to the service, are not entitled to be confirmed in permanent posts before the appellants.

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952 These contentions  necessitated focussing  attention on  the character A  of ’  1949 Rules’.  After briefly reviewing the history of  the rules from 1949 to 1969, the first important conclusion of  the Court  is that  the ’1949 Rules’ acquired statutory character  in 1969  because as  a result  of  1969 amendment! the  entire body  of  rules  of  Class  I  became statutory rules by incorporation. The Court then referred to rules 3  and 4 of ’ 1949 Rules’ when they came into force in 1951 and  noticed that  the recruitment to MES Class I could be made  from  two  sources  only,  namely,  by  competitive examination held  in India in accordance with Part II of the Rules and  by promotion  in accordance  with Part III of the Rules. As  set out  in earlier portion of the Judgment, Part II  makes   extensive  provisions  for  holding  examination including the  eligibility for admission to the same. It was conceded in Bachan Singh’s case that some of the respondents were directly  recruited by  interview by  the Union  Public Service Com mission. In other words, some of the respondents in that  case had not appeared at competitive examination ar required  by  Rule  3.  The  rules  did  not  permit  direct recruitment by  mere interview  by the  Union Public Service Commission. The  question arose: What was the status of such direct recruits  recruited in  utter violation  of Rule  3 ? Promotee-petitioners contended that such direct recruits had not  become   members  of   the  service.   Repelling   this contention, the Constitution Bench held as under:           "The appointments  to Class I Service by interview      were made  by the  Government in  consultation with the      Union Public Service Commission. The selection was made      by  the   Union  Public   Service  Commission.  The  li      appointments by  competitive examination  proved  fruit      less. The country was in a state of emergency. Appoint-      ment and  selection by  interview was  the only  course      possible. It  could not  be said  that all appointments      should have  been made  by promotion. That would be not      in the  interest of the service. The service Rules were      administrative in character. The Government relaxed the      Rules. The  amendments of  the rules in 1967 recognised      the  reality   of  the   situation  of  appointment  by      interview. That  is why  the 1967  amendment recognised      that  50   per  cent   of  "the   direct  recruits   by      competitive! ad hoc appointment were to be reserved for      graduate engineers  who were  commissioned in the Armed      Forces on a temporary basis." 953 At an  earlier stage,  the Court  held that during the years 1962,1963 and 1964 particularly and until the year 1969, the Class I Service A Rules were not statutory in character. The Union  Government  relaxed  the  Rules  both  in  regard  to recruitment by  interview and  in regard to the quotas fixed by the  Rules for  direct  recruitment  and  recruitment  by promotion to Class I Service. Keeping in view the contention raised on  behalf of  the appellants  before us  that Rule 4 does not  prescribe a  quota to  be invariably followed, but merely a  ceiling and the contention of Mr. P. R. Mridul for some of  the direct  recruits  that  rule  4  prescribes  an invariable quota  any violation  of which  would render  the appointees in  excess of  quota invalid, we would proceed as held in  Bachan Singh’s  case that  rule  4  prescribes  the quota. If the contention was open to consideration by us, we have our own reservations about the same. However, as it has been held  in a binding decision that Rule 4 did prescribe a quota rule of 9: 1 between direct recruits and promotees, we would proceed  on that basis. The Court then noticed that in

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1962,  there  was  a  state  of  emergency.  Engineers  were immediately required  to fill the temporary posts in Class I Service. To  meet the  emergency  the  Union  Government  in consultation  with   the  Union  Public  Service  Commission decided to recruit candidates by advertisement and selection by interview  only by  the Union  Public Service Commission. The Government  with the  aid of  selection and interview by the Union  Public Service Commission directly recruited some respondents to  Class r  Service in the years 1962, 1963 and 1964.  The   candidates  were   selected   after   viva-voce examination.’  The   Court  then  proceeded  to  notice  the vacancies that  occurred between 1951 and 1971 and concluded that it  is because  of the conditions of emergency that the quota for  filling the  temporary posts was ignored both for departmental promotees  and direct recruitment. After taking this view,  the Court  proceeded to  answer  the  contention whether the  recruitment of  some of the respondents in that case by  a method not permitted by rules was legal and valid which necessitated  the Court  considering and answering the question as  to whether the Government had the power to make recruitment in relaxation of the Rules ? In this connection, the Court categorically concluded as under:           "It is  apparent that  during the  years  1959  to      1969, there was a relaxation in the observance of rules      in the  case of  appellants and  the other departmental      promotees. The Union Government all throughout acted in      consultation with  the Union Public Service Commission.      The 954      departmental promotees  gained considerable advantage A      by relaxation  of the  rules. The  direct recruits were      not shown  any preference  at all,  The  proportion  of      confirmation of  departmental promotees  and of  direct      recruits by interview was 1:1." The Court  then  upheld  the  appointment  of  those  direct recruits who  were appointed  after interview  by the  Union Public Service  Commission  by  holding  that  was  done  in relaxation of  the rules  both as to competitive examination and the promotions were given after relaxing the quota rule. The Court  held that  direct recruits  who were appointed by interview fall within the class of direct recruits.      What emerges  from the decision in Bachan Singh’s case? ’1949 Rules’  and the subsequent amendments thereto acquired statutory flavour  in 1969  and ’1949 Rules became statutory in character  by incorporation  only in  1969 and  till then they were  mere administrative instructions. Rule 3 of ’1949 Rules’ permitted  recruitment only  from two sources i.e. by competitive examination  and by  promotion. Rule 4 permitted the Government  to fill  in any particular vacancies or such vacancies as  may require to be filled during any particular period, the method or methods to be employed for the purpose of  filling   any  particular  vacancy  and  the  number  of candidates recruited by each method. Rule 3 provides for the sources  of  recruitment,  namely,  direct  recruitment  and promotion. Rule  4  confers  discretion  on  the  Government either to  fill the vacancies and from which service subject to the  proviso to  Rule 4  which prescribes,  according  to Bachan Singh’s case. a quota, Rule 4 which was introduced in 1967 conferred power on the Union Government for the reasons to be  recorded in  writing and  after consultation with the Union Public  Service Commission  to relax all or any of the rules with respect to class or category of persons/ - posts. As the  ’1949 Rules’  were non  statutory in  character till 1969 and  this Court  read power  of relaxation is in ’ 1949 Rules’ till  1969, the  power of  relaxation  was  exercised

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during 19611962-1963 because there was emergency during this period. The  Government was  in need  of  large  number-  of Engineers and therefore, had to make recruitment by a method not prescribed  by the rules in relaxation of the rules, and large  number  of  persons  had  to  be  given  departmental promotion with  the same  end in  view which would amount to relaxation of the quota rule. This Court in terms 955 held that  the Government  had the power to relax 1949 Rules till  they   acquired  statutory   character  in   1969  and Government did  make recruitment  from  both  sources  after exercising the  power to  relax rules.  This  ratio  of  the decision is binding on us.      Even apart from this, in the statement of case filed in this case  on behalf  of the  Union of India, it is conceded that in  view of  the exigencies of - service relaxation was made in  the matter  of promotion  to the cadre of Assistant Executive Engineers  between 1951  and 1963. Rule 24 enabled the Government to make recruitment in relaxation of the rule by making  an order  to that  effect in  writing  and  after consulting the  Union Public  Service  Commission.  Strictly speaking  Rule   24  is  hardly  helpful  as  the  rule  was introduced in  1967 and we are concerned with years 1959-61- 62-63. We  asked Mr.  Abdul Khader,  learned counsel for the Union of  India whether orders were made at the time of each recruitment for making recruitment by relaxing the rules and if such  orders were  made after consulting the Union Public Service  Commission   and  if   there  are  such  orders  in existence, same may be produced. Pursuant to this querry, an affidavit was  filed by  Lt. Col. S. C. Sethi, Staff officer Grade I  (Personnel) dated  December 7, 1982. This affidavit does not satisfy the query and hardly illumines. the blurred area. It  merely refers  to  the  variation  in  the  quota, namely, it  was raised  from 9:1 to 1:1 upto the end of 1963 and it  was  again  restored  to  9:1  after  1964  and  the statutory  rules   of  1969   revised  the  quota.  To  this Affidavit,  some  correspondence  is  annexed  which  hardly throws any light on the question raised by the Court.      If rule  3 provided  methods of  recruitment indicating the sources from which recruitment could be made and if rule confers discretion  on Government  to make  recruitment from either source  because  Rule  4  opens  with  a  limitation, namely, that  it is  subject to  Rule 3,  now if  as held in Bachan Singh’s  case 1949 Rules’ while prescribing the quota conferred power  on the Union Government to make recruitment in relaxation  of the rules, it is implicit in this power to G make  recruitment in  relaxation of the quota rules and it is admitted that because of the emergency and because of the exigencies of service, recruitment was made in relaxation of the rules. Now, where the rule provides for recruitment from two sources  and  simultaneously  prescribes  quota,  unless there is  power to  relax the  rule as  has been  held in  a catena decisions,  any recruitment  in excess  of the  quota from either  of the  sources would be illegal and the excess recruits unless  they find  their  place  by  adjustment  in subsequent 956 years in  the quota, would not be members of the service. In A  s.  G.  Jai  Singhani  v.  Union  of  India  &  ors(l)  a Constitution Bench of this Court held as under.           "We are  accordingly of the opinion that promotees      from Class  II, Grade  III, to class I Grade II Service      in excess  of the  prescribed quotas  for each  of  the      years 1951  to 1956  and onwards  have  been  illegally      promoted and the appellant is entitled to a writ in the

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    nature of  mandamus commanding  respondents 1  to 3  to      adjust  the   seniority  of  the  appellant  and  other      officers similarly  placed like  him and  to prepare  a      fresh seniority  list  in  accordance  with  law  after      adjusting the  recruitment for  the period 1951 to 1956      and  onwards   in  accordance   with  the   quota  rule      prescribed .. ’      In reaching  this conclusion,  the Court  held that the absence of  arbitrary power  is the  first essential  of the rule of  law upon  which our  whole constitutional system is based. The Court observed that in a system, governed by rule of  law,   discretion,   when   conferred   upon   executive authorities, must be confined within clearly defined limits. The view  was to  some extent  re-affirmed in B. S. Gupta v. Union of  India & ors.(a) and B. S. Gupta etc. etc. v. Union of India & Ors. etc. etc.(3) But this result will not follow where  even   though  the   rules   prescribe   sources   of recruitment, methods  of recruitment  and quota, if the very rules simultaneously  confer power on the Government to make recruitment in  relaxation of  the rules,  unless mala fides are alleged  and  attributed.  Where  rules  thus  confer  a discretion on the Government to relax the rules to meet with the  exigencies   of  service,   any  recruitment   made  in relaxation of  the rules  would not  be invalid.  This is no more res integra in view of the decision of this Court in N. K. Chauhan  & ors.  v. State  of Gujarat  & ors.(1)  In that case, a  resolution of  the Government  of Bombay dated July 30, 1959  ’directing that, as far as practicable, 50 percent of the  substantive vacancies  occurring in  the cadre  with effect  from  1st  January  1959  should  be  filled  in  by nomination of  candidates to  be selected in accordance with the Rules appended 957 herewith, came  in for  consideration of  this  Court.  "The contention was  that the  Resolution prescribed  a quota and the Government  had no  discretion to  make  recruitment  in relaxation of  the quota and therefore, any recruitment made in  excess   of  the  quota  in  view  of  the  decision  in Jaisinghani’s  case  and  2  B.S.  Gupta’s  cases  would  be invalid. Repelling  this contention  and distinguishing both the decisions  in Jaisinghani’s  case  and  2  B.S.  Gupta’s cases, the Court observed that the sense of the rule is that as far  as possible  the quota system must be kept up and if not practicable  promotees in  place of  direct recruits  or direct recruits  in  place  of  promotees  may  be  inducted applying the  regular procedures without suffering the seats to lie  indefinitely vacant.’  After examining  the facts of the case,  the Court held that the State had tried as far as practicable to  fill 50%  of the  substantive vacancies from the open  market, but  failed during the years 1960-1962 and that therefore  it was  within its powers under the relevant rule to promote mamlatdars who, otherwise, complied with the requirement of  efficiency. It  thus becomes  crystal  clear that when  recruitment  is  from  two  independent  sources, subject to  prescribed quota,  but the power is conferred on the Government  to make  recruitment in  relaxation  of  the rules, any recruitment made contrary to quota rule would not be invalid  unless it  is shown that the power of relaxation was exercised  mala fide.  That is  not the contention here, nor any  such contention  was voiced in Bachan Singh’s case. In Bachan Singh’s case the Court has extensively referred to the emergency  situation in  the market  of  recruitment  of engineers between  1959 and 1969 and that fact situation not only was not controverted but conceded before us. It is this emergency  and   the  dire   need  of   urgently  recruiting

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engineers, which  led the  Government to make recruitment in relaxation of  quota  rule  by  fore-going  the  competitive examination and  promoting  subordinate  ranks  to  Class  I service. Petitioners  and similarly  situated  persons  were thus promoted to meet the dire need of service in relaxation of the quota rule.      Now if  recruitment contrary  to  Rule  3,  namely,  by interview by  the Union  Public Service Commission, which is not the  recognised mode  of recruitment,  is held  valid in Bachan Singh’s  case on  the ground  that  it  was  done  in relaxation of  the rules, it must follow as a corollary that the same  emergency compelled  the Government  to recruit by promotion engineers  to the post of AEE Class I in excess of the quota  by exercising  the power  of relaxation  and such recruitment ipso  facto would  be valid. The promotees being validly 958 promoted as  the quota  rule was  relaxed, would  become the members of  the service.  Whether the  vacancies were in the permanent strength  or in  the temporary cadre is irrelevant because none  of them is reverted on the ground that no more vacancy is available. Appellant and those similarly situated were recruited by promotion as provided in Rule 3(ii) and it must be  conceded that  the recruitment  by promotion during these years  was in  excess of the quota as provided in Rule 4. But  the recruitment  having been  done for  meeting  the exigencies of  service by  relaxing the  rules including the quota rule, the promotion in excess of quota would be valid. In this  connection, it  may be recalled that the expression ’service’ has  been defined  to  mean  Military  Engineering Service Class I. The rules are silent on the question of the strength of  the service.  Keeping in view the exigencies of service and  the requirements  of the State, temporary posts would be  a temporary addition to the strength of the cadre, unless it  is made  clear to the contrary that the temporary posts are  for a  certain duration  or the  appointments  to temporary posts  are of  an ad  hoc nature till such time as recruitment according  to rules  is made.  In the absence of any such  provision, persons  holding  permanent  posts  and temporary posts  would become  the members  of  the  service provided the recruitment to the temporary posts is legal and valid. Once  the recruitment is legal and valid, there is no difference  between  the  holders  of  permanent  posts  and temporary posts  in so  far as it relates to all the members of the  service. This  clearly follows  from the decision of this Court  in S. B. Patwardhan & ors. etc. etc. v. State of Maharashtra ors.,(’) that there is no universal rule, either that a  cadre cannot consist of both permanent and temporary employees or that it must consist of both. That is primarily a matter  of. rules and regulations governing the particular service in  relation to  which the  question  regarding  the composition of  a cadre  arises. ’1949 Rules’ throw no light on this  aspect and  therefore, if  the recruitment  is made from either of the sources and is otherwise legal and valid, persons recruited  to temporary.  posts would nonetheless be members of the service.      The High  Court  while  rendering  the  judgment  under appeal unfortunately did not examine this aspect even though vehemently argued,  with the  result that the petitions were again set  down for  decision on a memo filed by the learned counsel on behalf of the 959 present appellants in the High Court on the very next day of the judgment  informing the  Court  that  several  important contentions A urged by him during the course of arguments at

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the hearing  of the writ petitions, have not been noticed by the Court  in its  judgment dated  May 15,  1979.  One  such contention was  that Union of India In its statement of case had conceded  that as  direct recruits  were  not  available during  that   period,  even  though  the  qualification  of competitive examination  for direct  recruits was completely relaxed and  a mere  interview by  the Union  Public Service Commission  was   considered  sufficient,  large  number  of persons from subordinate ranks had to be given promotion but this aspect  was not  examined by  the Court. Repelling this submission, the High Court observed that the learned counsel was not  able to  point out  any express  admission to  that effect in the statement of objections filed on behalf of the Union Government  and the averment in Exhibit ’F’ that there has been a relaxation from time to time in the observance of the said  rules by the Government in consultation with Union Public Service  Commission to meet the emergent requirements of the  Service, was  not sufficient  to permit an inference sought to  be drawn  as desired by the learned counsel. With respect, the  High Court  was in  error in  approaching  the matter from  this angle.  In fact,  before  the  High  Court rendered its  decision, the  Judgment  of  the  Constitution Bench in Bachan Singh’s case was reported and as pointed out by us,  this Court  specifically held  that the  recruitment from both  the services  was made in relaxation of the rules And in the statement of case filed in this Court, there is a specific admission  to that  effect. We are therefore of the view that  the High  Court was  in error  in rejecting  this contention      The next  question is,  on what principle then in force inter  se   seniority  of   promotees  and  direct  recruits recruited to  service in  relaxation of 1949 Rules including the quota  rule was to be determined and how they were to be integrated in  the cadre of AEE for further promotion to the cadre of Executive Engineers.      The appellant  has impugned the seniority list prepared by the  Union Government  on June  14, 1974.  Prior  to  the impugned seniority  list, a  seniority list of AEE was drawn up in  the year  1963 in  which the  place  of  the  present appellant was at serial No. 357. There was another seniority list drawn  up in the year 1967 in which the appellant found his place  at serial  No. 234. Then came the decision of the Constitution Bench in Bachan Singh’s case whereupon 960 the  Union  Government  set  aside  the  two  aforementioned seniority A  list and  drew up  a fresh list on the criteria drawn from  the decision  in Bachan Singh’s ‘case as set out in the  earlier portion  of this Judgment. In this seniority list, appellant  did not find his place because he was still surplus in 1974 seniority list and he was hanging out of the service  (Trishanku)   because  he  was  pushed  down  after applying the  quota from the date of the constitution of the service  itself  in  1951.  The  traumatic  effect  of  this approach can  be gauged  by merely  pointing  out  that  the appellant who  was promoted  in the year 1962 as AEE and has held the post un-interruptedly till today would be junior to the direct recruits of 1976,1977 and 1978. If unfortunately, the law  is to  that effect,  nothing can be done. Could the law be  that unjust  ? Law  being no respector a person must take its  own course.  But is that the law ? or the approach overlooks a vital aspect which has a bearing on the point.      The contention  of the  Union Government  is  that  the earlier seniority  lists of  1963 and 1967/68 were not drawn up according  to any  particular principle. In para 4 of the statement of  the case of the Union Government it is averred

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that ’seniority list drawn before 1973 were not based on any set rules  but were  prepared provisionally  on the basis of the then  available rules  to regulate  the  functioning  of department.’  This   statement   apart   from   being   self contradictory to some extent, is misleading and would not be borne out by reference to the relevant rules on the subject.      It  is   a  well   recognised  principle   of   service jurisprudence that  any rule of seniority has to satisfy the test  of  equality  of  opportunity  in  public  service  as enshrined in  Article 16.  It is  an equally well recognised canon of  service jurisprudence  that in  the absence of any other valid  rule for  determining  inter  se  seniority  of members  belonging   to  the   same  service,  the  rule  of continuous officiation  or the length of service or the date of entering  in service and continuous uninterrupted service thereafter would  be valid  and would  satisfy the  tests of Art. 16.  However, as  we would  presently point out we need not fall  back upon  this general  principle for determining inter se  seniority because  in our view there is a specific rule governing  inter se  seniority between  direct recruits and promotees  in MES  Class I  Service, and it was in force till 1974 when the impugned seniority list was drawn up. 961      In the  ’1949 Rules’  which came into force on April 1, 1951,  a   provision  was  made  for  determining  inter  se seniority between  A direct  recruits and promotees. In para 3(iii) of  Appendix-V of ’1949 Rules’ it was provided that a roster shall  be maintained  indicating, the  order in which appointments are  to  be  made  by  direct  recruitment  and promotion in  accordance with the percentages fixed for each method of recruitment in the recruitment rules. The relative seniority  of   promotees  and   direct  recruits  shall  be determined by  the dates  on which the vacancies reserved by the direct recruits and the promotees occur. It would appear at a  glance that  this rule was related to the quota of 9:1 between direct  recruits and promotees prescribed in rule 4. A combined  reading of rule 4 and para 3(iii)) of Appendix V would clearly  show that  a  roster  has  to  be  maintained consistent with  the quota  so that  the relative  inter  se seniority of  promotees and  direct recruit be determined by the date  on which  vacancy occurred  and the vacancy is for the direct  recruit or for the promotee. If quota prescribed by rule  4 was  adhered to  or was  inviolable, the  rule of seniority enunciated  in para 3(iii) of Appendix V will have to be given full play and the seniority list has to be drawn in accordance  with it.  But as pointed out by this Court in Bachan  Singh’s   case  during  the  years  1959,  1969  and especially during  1962, 1963 and 1964 on account of adverse market  conditions   for  recruitment   of  engineers,   the Government had to be make recruitment in complete relaxation of rules 3 and 4 including the relaxation of the quota rule. As quota  rule was directly inter-related with the seniority rule, and  once the  quota rule gave way, the seniority rule enunciated in para 3(iii) of Appendix V became wholly otiose and ineffective.  It is  equally well  recognised that where 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,  inequitous  and improper. An  identical situation  was noticed by this Court in First  B.  S.  Gupta’s  case  wherein  this  Court  while rejecting the  contention of  the promotees  that the  quota rule and  the seniority  rule deserved  to be independent of each other  held that with the upgrading of the large number of posts  and the  appointments to  them of  promotees,  the quota rule  collapsed and with that the seniority rule also.

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Therefore, once  the quota  rule was  wholly relaxed between 1959 and  1969 to  suit the  requirements of service and the recruitment made  in relaxation  of the  quota rule  and the minimum qualification rule for direct recruits is held to be valid,  no  effect  can  be  given  to  the  seniority  rule enunciated in para (iii), which was wholly inter-linked with the quota rule and cannot 962 exist apart  from it  on its own strength. This is impliedly accepted A  by the  Union Government  and is implicit in the seniority lists  prepared in  1963 and 1967-68 in respect of AEE. because  both those  seniority lists  were drawn  up in accordance with the rule of seniority enunciated in Annexure ’A’ to  Army Instruction  No. 241 of 1950 dated September 1, 1949, and not in compliance with para 3(iii) of Appendix v.      The Ministry of Defence issued Army Instruction No. 241 of 1950  styled as ’Seniority of civilian employees in lower formations’, which  provides that  in  accordance  with  the orders contained  in para  2 of  Ministry of Defence O.M.No. 0240/6362/D-12 dated  September 1,1949 published as Annexure ’A’ to  this instruction, seniority of persons employed in a particular grade  is to  be determined  as indicated herein. Annexure ’A’ reproduced the rule of seniority which was then followed as a model in the grade of Assistant which had been adopted  by  the  Ministry  of  Defence.  The  principle  of seniority  therein   enunciated  is   that  the   rule   for determining inter  se seniority  in the  cadre of Assistants should generally  been taken  as the  model in  framing  the rules of  seniority for  other services  and in  respect  of persons employed in any particular grade seniority should as a general  rule, be determined on the basis of the length of service in  that grade  as well  as service in an equivalent grade irrespective  of whether  the  latter  was  under  the Central or  Provincial Government in India or Pakistan. This was the  rule of  seniority which would be applicable in the absence of any other rule specifically enacted for MES class I service. It could have been urged with confidence that the seniority rule  enunciated in  part 3(iii)  of Appendix V of ’1949 Rules’  was the one specifically enacted for MES Class I service  and the  special  rule  would  prevail  over  the general rule  issued in  Army Instruction  No. A.I.  241  of 1950. But as pointed out earlier, the rule in para 3(iii) of Appendix V gave way when the quota rule was relaxed. This is recognised by  the Ministry  of Defence  when while enacting ’1953 Rules’,  a provision  was made in para 3 of Appendix v that the  principles for  determining  seniority  are  under consideration. Assuming  that the  rule of seniority of para 3(iii) of  Appendix V  of ’1949  Rules’ held  the field,  it appears to have been abrogated by the ’1953 Rules’ because a clear provision  is made  that  principles  for  determining seniority are  under  consideration.  Similar  situation  is recognised in  ’1961 Rules’  which to some extent imparted a statutory flavour  to ’1949 Rules’. In para 3 of Appendix IV of  ’1961   Rules’  it   was  stated   that  principles  for determining seniority of 963 members of  the service  meaning Military  Engineer Services Class  I   are  under   consideration.  This   position  was reiterated when  ’1962 A  Rules’ were enacted in relation to the service.  In Para 3 of Appendix IV of ’1962 Rules’ it is reiterated that the principles for determining seniority are under consideration.  It is  nowhere suggested that till the decision  in   Bachan  Singh’s  case,  any  other  rule  for determining inter se seniority was prescribed.      That takes  us to  the impugned seniority list of 1974.

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On June  14, 1974, seniority list of AEE was circulated. The preamble to  the seniority  list sets  out the  criteria  on which inter  se seniority  of members is determined. Amongst other things,  it states  that the  inter  se  seniority  of direct recruits and departmental promotees is to be fixed in accordance with  the quota  laid down  in ’1949 Rules’ which came into  force on  April 1,  1951. It further recites that the same  rule for  determining  seniority  list  is  to  be applied in  both the  matter of confirmation and fixation of seniority.  Therefore,   it  clearly   transpires  that  the seniority list  is drawn  up on  the basis of fixed quota as enunciated in rule 4, that is, 9:1 direct recruit, promotee, revised between  1959 and  1963 to 1:1 and again restored to 9:1 from  1964. The  1974 seniority  list would  be  without anything more invalid, as it proceeds on the assumption that there was  a rigid  quota rule  and that  the recruitment in excess of the quota would be invalid and the excess recruits from either  source will have to be adjusted and regularised in succeeding  years. Probably,  the  authorities  concerned while drawing  up the seniority list were influenced by some of the  observations  in  Jaisinghani’s  case  and  the  two successive B.  S. Guuta’s  cases, all  of which were clearly distinguishable and will have no application to the facts of the  present   case.  Another   error  that   has  crept  in prescribing  the   criteria  on   which  the  impugned  1974 seniority list  is founded, is the assumption that there was an inviolable  quota rule  which could  not be  relaxed. The second criterion  recites that  seniority list  of Assistant Executive Engineers  is to  be prepared upto 1968 and excess departmental promotees  who cannot be brought into the cadre have to  be shown  separately and  brought into the cadre on the basis  of quota  as and when vacancies become available. As clearly  brought out  hereinbefore, the  recruitment  was made in  relaxation of  the quota.  Once the  quota rule was relaxed, the  rota  for  confirmation  disappeared.  In  the absence of  any other rule coupled with the Army Instruction upto 1968 continuous officiation would be the only available rule for  determining the  inter se seniority. And it may be recalled that 964 both the  1963 and  1967 seniority  lists were  drawn up  in accordance A  with that  principle. Thus the two fundamental basic assumptions  on which  the impugned seniority list was drawn up  are wholly  invalid and  contrary to  the relevant rules, and  any seniority  list based thereon must fail. But this conclusion  alone would  leave the  matter again in the hands of  the first respondent with a fresh exercise.  It is therefore necessary to proceed further and determine on what basis the  seniority list  of AEE  was to  be drawn  up upto 1969, when  the ’1949  Rules’ became  statutory according to the decision in Bachan Singh’s case.      Between 1959  and 1969  and especially during the years 1962,  1963   and  1964   and  some  subsequent  years,  the Government consistent  with its  requirements and exigencies of  service   made  recruitment   including  recruitment  by promotion in  relaxation of  the ’1949  & subsequent  rules’ which the Government undoubtedly had the power to do. A good number of  persons were  so promoted.  The  direct  recruits enjoyed comparatively  greater benefit  in that they entered service avoiding  a competitive  examination, which  the  re required to  be held and through which alone direct recruits could enter  service.  Equally  a  good  number  of  persons entered MES  Class I  through  the  comparatively  easy  and highly subjective  test, namely,  interview.  Therefore,  it cannot be  gainsaid that  a considerable  number  of  direct

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recruits derived the advantage of the power of relaxation of rules exercised  by the  Union Government. In Bachan Singh’s case, this Court also has rightly observed that some depart- mental promotees  also obtained advantage of the same. It is not necessary  for us to consider comparative advantage. The supervening consideration  was the  exigencies of service of which the  best judge, as recognised in Bachan Singh’s case, is the  Government. It  may also  be  made  clear  that  the promotees were not less qualified then direct recruits. They have to  meet the  same rigorous test of qualifications save and  except  the  qualification  as  to  age.  This  becomes abundantly clear  from para  3 of  rule 23  of ’1949  Rules’ which  provided   for  appointment  by  promotion.  Rule  23 provided that ’no individual shall be eligible for promotion to the  service unless  he would,  but for age, be qualified for admission  to the  competitive examination under Part II of these  Rules, and  satisfies the Commission that he is in every respect suitable for appointment to the service.’ Part II contains  provisions prescribing eligibility criteria for taking  the  competitive  examination.  Amongst  others,  it provided minimum educational qualification of an Engineering degree. 965 Therefore, as  for as  the minimum educational qualification is concerned,  promotees and direct recruits are on par. One need not therefore, look upon promotees as persons belonging to an  inferior breed.  The promotees  were promoted  by the Government  to   man  its   services  keeping  in  view  the exigencies  of   service  and   non-availability  of  direct recruits as  held in  Bachan Singh’s  case and  as  admitted before us. And while giving promotion, it was not even for a moment suggested that the promotions are ad hoc or till such time as  direct recruits  are available  or  for  a  limited period. Therefore,  the promotions  were regular promotions, may be to the temporary posts which was a temporary addition to the  strength of  the service.  But to  all  intents  and purposes, the  promotion of the promotees during this period was a  regular promotion  and the  promotees have  held  the posts uninterruptedly  for all  these years  meaning thereby that it  could never  be said that posts were not available. Even then  by the  impugned seniority list, 1962 promotee is hanging, outside  the cadre and the list drawn up on such an illegal and  invalid criteria  has led  to such  a startling result that  is 1962  promotee does  not find  his berth  in service even in 1974.      The next  question is  whether 1963  seniority list and 1967 seniority list were valid when drawn up. As pointed out earlier, the  rule of  quota enunciated  by para  3(iii)  of Appendix V  of ’1949  Rules’ has  ceased to  be of any legal efficiency till  1969. The Army Instructions of September 1, 1949 directed  seniority list  to be  drawn up in accordance with the principle of continuous officiation. In the absence of any  other valid  principle, seniority  determined on the basis  of   continuous  officiation   is  valid  because  it satisfies the  test of  Art. 16. There is nothing to suggest that 1963  and 1967 seniority lists were provisional or were likely  to  be  re-drawn.  Therefore  till  the  1949  Rules acquired statutory character in 1969, the seniority lists of 1963 and  1967 in  respect of AEE were quite legal and valid and were  drawn up  on the  basis  of  the  principle  which satisfies the test of Article 16.      The question is whether a new principle for determining inter se  seniority evolved in 1974 could be retrospectively applied from  1951 thereby  setting at  naught all  previous seniority  lists  validly  drawn  up.  It  is  open  to  the

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Government to  prescribe principles for determining inter se seniority of  persons belonging to the same service or cadre except that  any such  principle must  meet the test of Art. 16. It is equally open to the Government to retrospectively 966 revise service  rules, if the same does not adversely affect vested A  rights. But  if the  rule for determining inter se seniority is  revised or  a fresh rule is framed, it must be constitutionally valid. The criteria on which 1974 seniority list is  founded are  clearly illegal  and invalid  and this stems from  a misunderstanding  and misinterpretation of the decision of  this Court  in Bachan  Singh’s case.  It also g overlooks the  character of the appointments made during the period 1959  to 1969.  It treats  valid appointments  as  of doubtful validity.  It pushes down persons validly appointed below those  who were never in service and for reasons which we cannot  appreciate, it is being made effective from 1951. In our opinion, there was no justification for redrawing the seniority list affecting persons recruited or promoted prior to  1969   when  the  rules  acquired  statutory  character. Therefore, the  1974 seniority  list is liable to be quashed and the  two 1963  and 1967  seniority lists  must hold  the field.      At this stage, we must briefly deal with some technical contentions of minor importance.      It was  contended that  those members who have scored a march over  the appellant  in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellants. In  the writ  petition filed  in the High Court, there were  in all  418 respondents. Amongst them, first two were   Union    of   India   and   Engineer-in-Chief,   Army Headquarters, and  the rest  presumably must  be those shown senior to  the appellants.  By an  order made  by  the  High Court, the  names of respondents 3 to 418 were deleted since notices could  not be  served on  them on  account .  Of the difficulty in  ascertaining their present addresses on their transfers subsequent  to  the  filing  of  These  petitions. However, it clearly appears that some direct recruits led by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and had made  the submissions  on behalf of the directs. Further any application  was made to this Court by 9 direct recruits led by  Shri T.  Sudhakar for  being impleaded  as  parties, which application  was granted and Mr. P. R. Mridul, learned senior counsel  appeared for  them. Therefore,  the case  of direct  recruits   has  not   gone  unrepresented   and  the contention can  be negatived  on the  short ground. However, there is  a more  cogent reason why we would not countenance this contention.  In this  case, appellant  does  not  claim seniority over  particular individual  in the  background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopt- 967 ed by  the  Union  Government  in  drawing-up  the  impugned seniority list  are invalid  and illegal  and the  relief is claimed against  the Union  Government restraining  it  from upsetting or  quashing the  already drawn  up valid list and for quashing the impugned seniority list. Thus the relief is claimed against  the Union  Government and  not against  any particular individual.  In this  background, we  consider it unnecessary to  have all  direct recruits to be impleaded as respondents. We  may in  this connection  refer  to  General Manager, South  Central Railway, Secunderabad & Anr. etc. v. A.V.R. Sidhanti  and ors.  etc.(l) Repelling a contention on behalf of  the appellant  that the  writ petitioners did not implead about  120 employees  who were likely to be affected

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by the  decision in  this case, this Court observed that the respondents  (original   petitioners)  are   impeaching  the validity of  those policy  decisions on  the ground of their being violative  of Arts. 14 and 16 of the Constitution. The proceedings  are   analogous   to   those   in   which   the constitutionality  of   a  statutory   rule  regulating  the seniority  of  government  servants  is  assailed.  In  such proceedings, the necessary parties to be impleaded are these against whom  the relief  is sought, and in whose absence no effective decision can be rendered by the Court. Approaching the matter from this angle, it may be noticed that relief is sought only  against the  Union of  India and  the concerned Ministry and not against any individual nor any seniority is claimed by  anyone  individual  against  another  particular individual and  therefore, even  . if technically the direct recruits were  not before  the Court,  the petition  is  not likely to  fail  on  that  ground.  The  contention  of  the respondents  for   this  additional   reason  must  also  be negatived.      Appellant had also sought a discretion for quashing the penal for  promotion dated  January 13, 1975 of 102 officers included in F E-in-Cs Proceedings No. 65020/EE/74/EIR on the ground that the panel for promotion is drawn up on the basis of impugned  seniority list,  in  which  the  appellant  and several similarly  situated AEE  promoted way  back in  1962 onwards did  not find  their place  and were  therefore  not treated as  being within  the zone of selection. This relief must follow  as a  necessary  corollary  because  once  1974 seniority list  is quashed and consequently a declaration is being made that 1963 and 1967 seniority lists were valid and cannot  be   set  at   naught  by  principles  of  seniority determined in  1974, any  panel drawn up on the basis of the invalid seniority must fall and must be quashed. 968 Pursuant to  an integrated  reading of  Judgment  in  Bachan Singh’s case  and this case a fresh panel for promotion will have to  be drawn  up consistent  with the seniority list of 1963 &  1967 because it was not disputed that promotion from the cadre  of AEE  to Executive Engineer is on the principle of  seniority-cum-merit.   It  may  be  mentioned  that  the appellant had  sought interim  relief by  way of  injunction restraining the  respondents not  to promote  anyone on  the basis of the panel. This Court declined to grant such relief because exigencies  of service  do demand that the vacancies have to  be filled.  But in order to protect the interest of the appellant  and those  similarly situated,  it  was  made abundantly clear  that any promotion given subsequent to the date of the filing of the petition in the High Court must be temporary and  must abide  by the  decision in  this appeal. Therefore, consequent  upon the  relief being  given in this appeal, the  promotions will  have to  be readjusted and the case of  appellant and those similarly situated will have to be examined for being brought on the panel for promotion..      Before we conclude this judgment, we will have qualm of conscience if  we do  not draw  attention to  a very unjust, unfair  and  inequitable  situation  having  a  demoralising effect on  public services  probably  ensuing  from  certain rules framed  by the  Government and  the decisions  of this Court. Even  where the  recruitment to  a service  . is from more than  one source and a quota is fixed for each service, yet  more   often  the  appointing  authority  to  meet  its exigencies of  service exceeds  the quota  from  the  easily available source  of promotees  because  the  procedure  for making recruitment  from the market by direct recruitment is long  prolix   and  time   consuming.  The   Government  for

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exigencies of  service, for needs of public services and for efficient administration,  promotees person easily available because in  a hierarchical service one hopes to move upward. After the promotee is promoted, continuously renders service and  is   neither  found  wanting  nor  inefficient  and  is discharging his  duty to  the satisfaction  of all,  a fresh recruit from the market years after promotee was inducted in the service  comes and  challenges all the past recruitments made before  he was  born  in  service  and  some  decisions especially the  ratio in  Jaisinghani’s case as interpretted in two  B. S.  Gupta’s cases  gives him  an advantage to the extent of the promotee being preceded in seniority by direct recruit who  enters service  long  after  the  promotee  was promoted. When  the promotee  was promoted and was rendering service, the  direct recruit  may be  a schoolian or college going boy. He emerges from the educational insti- 969 tution, appears  at a  competitive  examination  and  starts challenging everything  that had  happened during the period when he  has had  nothing to  do with  service.  A  mandamus issued in  Jaisirlghani’s case  led  to  a  situation  where promotees of  the year  1962 had  to yield  place to  direct recruits of  1966 and  the position  worsoned thereafter. In the case in hand, appellant a promotee of September 27, 1962 is put  below N.  K.  Prinza  who  appeared  at  competitive examination in  April 1976  i.e. One who came 14 years after the appellant,  and  it  does  not  require  an  intelligent exercise to  reach a  conclusion that 14 years prior to 1976 Mr. Prinza  who is shown to be born on July 20, 1950 must be aged about 12 years and must have been studying in a primary school. Shorn  of all  service jurisprudence  jargon one can bluntly notice  the situation  that a primary school student when the promotee was a member of the service, barged in and claimed and got seniority over the promotee. If this has not a demoralising effect on service one fails to see what other inequitous approach would be more damaging. It is therefore, time to clearly initiate a proposition that a direct recruit who comes  into  service  after  the  promotee  was  already unconditionally and  without reservation  promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory  or non-statutory  rules  should  not  be permitted by  any principle  of seniority  to score  a march over a promotee because that itself being arbitrary would be violative of  Arts.  14  and  16.  Mr.  Ramamurthi,  learned counsel for  some of  the direct recruits in this connection urged that if at the time when the promotee was recruited by promotion,  his   appointment/promotion  was   irregular  or illegal  and  which  is  required  to  be  regularised,  any subsequent direct  recruits coming  in at  a later  date can seek relief  and score  a  march  over  such  irregular  and illegal entrant.  We find  it difficult to subscribe to this view. Though we have dwelt at some length on this aspect any enunciation of  general principle  on the lines indicated by us would  require a reconsideration of some of the decisions of this  Court. We  say no more save that we have solved the riddle in this case in accordance with the decisions of this Court and interpretation of relevant rules.      Accordingly, this  appeal must  succeed and  is  hereby allowed. The  judgment of  the High  Court dated  May IS/17, 1979 is  set aside  and  the  writ  petition  filed  by  the appellant in  the High  Court to the extent herein indicated is accepted. Let a writ of certiorari be issued quashing and setting aside  the seniority list dated June 14, 1974. It is further hereby declared that the seniority lists of 1963 and 970

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1967/68 were  valid and  hold the  field till 1969 and their revision can  be made  in  respect  of  members  who  joined service after  1969 and  the period subsequent to. 1969. The Panel for  promotion in  respect of 102 officers included in E-in-C’s proceedings  No. 65020/EE/741/EIR dated January 13, 1975 is  quashed and  set aside.  All the  promotions  given subsequent to  the filing  of the petition in the High Court are subject  to this  decision and  must  be  readjusted  by drawing up  a fresh  panel for promotion keeping in view the 1963 and  1967/68 seniority  list of AEE in the light of the observations contained in this judgment.      In the  circumstances of  the case,  there will  be  no order as to costs. S.R.      Appeal allowed. 971