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PETITIONER: DIRECT RECRUIT CLASS II ENGINEERING OFFICERS’ASSOCIATION AND

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT02/05/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMY, K. MUKHARJI, SABYASACHI (CJ) PANDIAN, S.R. (J) SAWANT, P.B.

CITATION:  1990 AIR 1607            1990 SCR  (2) 900  1990 SCC  (2) 715        JT 1990 (2)   264  1990 SCALE  (1)839  CITATOR INFO :  APL        1991 SC 235  (6)  F          1991 SC 284  (1,2,24,29)  F          1991 SC1134  (10,12)  D          1991 SC1406  (26)  RF         1991 SC1818  (5)  R          1992 SC 410  (10)  D          1992 SC 922  (16)  R          1992 SC1188  (7)  D          1992 SC2074  (7)

ACT:     Constitution  of  India,  1950:  Articles  14,  16   and 309--Rules  relating to seniority of Maharashtra Service  of Engineers----Validity of. Articles 32 and 226--Constructive Res judicata--Applicabili- ty of.     Labour  and Services: Reorganised Bombay State  Overseas and Deputy Engineers Seniority Lists Rules  1978/Maharashtra Service  Engineers (Regulation of Seniority and  Preparation and Revision of Seniority Lists for specified period) Rules, 1982/Executive  Engineers and Assistant Engineers  belonging to the Maharashtra Service of Engineers Class I and Class  H (Regulation   and   Revision  of  Seniority   Lists)   Rules 1983/1984--Whether  violative of Articles 14 and 16  of  the Constitution of India.     Seniority    and    promotion--Direct    recruits    and promotees--interse  seniority--To  be counted from  date  of appointment, not confirmation--Ad-hoc  appointment--Officia- tion in such post--Cannot be taken into account for  consid- ering seniority.     Quota rule--Absence of statutory rule--Can be prescribed by executive  instruction--To  be followed strictly--Consec- utive nonadherence--Effect of.     Civil  Procedure  Code, 1908:  Section  11,  Explanation IV--Res judicata--Applicability to writ cases.

HEADNOTE:     The  parties in these matters are Engineers in  the  em-

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ployment of the States of Maharashtra and Gujarat. In  1937, Government of Bombay created two new Provincial  Engineering Services  known  as the Bombay Engineering Service  Class  I consisting of posts of Chief Engineer, SUperintending  Engi- neers, ExecUtive Engineers and Assistant Engineers Class  I, and the Bombay Engineering Service Class II 901 having  officers  designated as Deputy  Engineers.  All  the posts were permanent.     In  1939, Rules were made for regulating the methods  of recruitment to the said services which directed the recruit- ment  to be made either by nomination from amongst the  stu- dents of the College of Engineering, Pune or by promotion of officers holding inferior posts. A resolution was passed  on 21.11.1941 for determination of the seniority of the  direct recruits  and  the promotee officers,  containing  only  two rules.  Rule  2 thereof was to the effect that  in  case  of officers  promoted to substantive vacancies,  the  seniority would  be  determined with reference to the  date  of  their promotion to the substantive vacancies.     In  1960, detailed rules for recruitment to Class I  and Class  1I Services were framed. In place of nomination  from the  successful students of College of Engineering, Pune  as direct  recruits, these Rules prescribed for  a  competitive examination to be held by the Public Service Commission, and introduced a quota system by fixing a ratio of  appointments of direct recruits and promotees. The Rules also made refer- ence  to  promotion, as Executive Engineers  on  officiating basis, and temporary Deputy Engineers and officiating Deputy Engineers.  By r. 8 the posts of Deputy Engineers  were  re- organised,  and by sub-rule (iii) it was provided  that  the direct  recruits  in  any year shall in a  bunch  be  placed senior to promotees confirmed during that year. A review  of these  Rules  was  later undertaken by  the  Government  and ultimately  in partial supersession thereof a fresh  set  or rules, were adopted in 1970.     In the meantime, however, a serious dispute in regard to the  interpretation  of one of the provisions  of  the  1960 Rules  arose which was settled by this Court in the case  of P.Y..Joshi  and Others v. The State of Maharashtra and  Oth- ers, [1970] 2 SCR 615.     During  the  period 1960-70 adequate  number  of  direct recruits  were not available, and a large number  of  promo- tees, therefore, had to be appointed to officiate as  Deputy Engineers on continuous basis. These appointments were  made after  following the procedure applicable to regular  promo- tions,  including consultation with the Public Service  Com- mission. The strength of the permanent Deputy Engineers  was fixed  at the total number of (a) the Deputy Engineers  con- firmed  up  to the date of commencement of  the  Rules,  (b) direct  recruits to the posts of Deputy Engineers  appointed till  the  date of commencement of the Rules,  and  (c)  the Deputy  Engineers officiating on 30.4.1960; and it was  pro- vided that no fresh appointments in future would be made to 902 this cadre and the vacancies arising would be transferred to the officers holding subordinate posts detailed in the  sub- rule  in proportions indicated. As per rule 33 of  the  1970 Rules, the seniority list in each cadre in Class I and Class II  was to be prepared in two parts  one for  the  confirmed officers  and  other for those who were not  confirmed;  and that  the confirmed officers would be treated as  senior  to the unconfirmed officers. Since the direct recruits were all appointed against the permanent posts, they were reckoned to be  senior to the officiating Deputy Engineers  irrespective

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of  the period for which they had been working  continuously on the Deputy Engineer’s posts. Though the Rules were amend- ed  in  1972, there was no departure from  the  main  scheme especially the principle governing seniority.     In  pursuance  of the 1970 Rules  seniority  lists  were prepared. The validity of r. 8(iii) of the 1960 Rules and of r. 33 of the 1970 Rules was successfully challenged as being violative  of Articles 14 and 16 of the  Constitution.  S.B. Patwardhan  and  Ors.  v. State of  Maharashtra  and  Ors.., [1977] 3 SCR 775.     In view of the judgment in Patwardhan’s case, it  became necessary  to  prepare  fresh seniority  lists.  Rules  were framed  under Article 309 of the Constitution read  with  s. 81(6)  of  the  Bombay Reorganisation Act,  1960,  and  were called  the Re-organised Bombay State Overseers  and  Deputy Engineers Seniority Lists Rules, 1978. In  1981  further  rules called  Re-organised  Bombay  State Assistant Engineers and Executive Engineers Seniority  Lists Rules,. 1981, were flamed laying down the rule of determina- tion of seniority of the Assistant Engineers and the  Execu- tive  Engineers for the period 1.11.1956 to  30.4.60.  These rules have been successfully challenged in the High Court.     The  main  Rules  which are the subject  matter  of  the present  cases were framed in 1982 under Article 309 of  the Constitution  laying down the principle for fixing the  sen- iority  for  the period dated 1.5.1960 to 20.12.70  and  are called  the Maharashtra Service of Engineers (Regulation  of Seniority  and Preparation and Revision of  Seniority  Lists for  Specified Period) Rules, 1982. These rules were  framed in  view  of the decision of the Bombay High Court  in  S.B. Patwardhan’s  case. By including two rules therein--Rules  4 and 9, deleted later--fixing rigid quota with  retrospective effect, attempt was made to neutralise the 903 decision and rob the promotees the benefit of their continu- ous officiation.     For  the  purpose of fixing the seniority  of  Executive Engineers and Assistant Engineers for the period  commencing from  21.12.1970, separate rules were framed  under  Article 309  of the Constitution and are called the Executive  Engi- neers  and Assistant Engineers belonging to the  Maharashtra Service of Engineers Class I and the Maharashtra Service  of Engineers Class II (Regulation of Seniority and  Preparation and Revision of Seniority Lists) Rules, 1983. As a result of a decision of the High Court striking down Sections 4 and  9 of the 1982 Rules, the 1984 Rules were framed by the Govern- ment.     The  present appeals, special leave petitions  and  Writ Petitions  challenge  the validity of the  Rules  framed  in 1978, 1982, 1983 and 1984. Dismissing all these matters, this Court,     HELD:  1.  The  period of continuous  officiation  by  a government  servant, after his appointment by following  the rules  applicable  for substantive appointments, has  to  be taken  into account for determining his seniority; and  sen- iority  cannot be determined on the sole ’test of  confirma- tion, for, confirmation is one of the inglorious  uncertain- ties  of government service depending neither on  efficiency of  the  incumbant nor on the  availability  of  substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by  Arti- cles 14 and 16. If an appointment is made by way of stop-gap arrangement,  without  considering  the claims  of  all  the eligible  available persons and without following the  rules of appointment, the experience on such appointment cannot be

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equated with the experience of a regular appointee,  because of the qualitative difference in the appointment. To  equate the two would be to treat two unequals as equal which  would violate the equality clause. But if the appointment is  made after considering the claims of all eligible candidates  and the appointee continues in the post uninterruptedly till the regularisation  of his service in accordance with the  rules made  for  regular  substantive appointments,  there  is  no reason  to  exclude the officiating service for  purpose  of seniority. Same will be the position if the initial appoint- ment itself is made in accordance with the rules  applicable to substantive appointments as in the present case. To  hold otherwise  will  be discriminatory and  arbitrary.  [914G-H; 915A-D] S.B. Patwardhan v. State of Maharashtra. [1977] 3 SCR 775; 904 Baleshwar  Das  v. State of U.P., [1981] 1  SCR  449;  Delhi Water  Supply  and Sewage Disposal Committee &  Ors.  v.R.K. Kashyap & Ors., [1989] Supp. 1 SCC 194 and Narender  Chaddha JUDGMENT:     2.1 It is incorrect to say that the 1970 Rules  indicate that the officiating posts were not included in the cadre of the  Deputy  Engineers.  It is true that  the  use  of  word "promotions"  in  r.  8(i) of the 1960 Rules  is  not  quite appropriate,  but that by itself cannot lead to the  conclu- sion  that the officiating Deputy Engineers formed  a  class inferior  to  that of the permanent  Engineers.  One  cannot attribute  fixed connotation to the  expression  ’promotion’ without  reference to the context. The expression  has  been used  in  the sense of confirmation. The  language  used  in several  other rules is inconsistent with two-cadre  theory, and by way of illustration r. 12(a) may be considered. Rules 5  and 24 of the 1970 Rules mention only 4 cadres  in  Class II--namely, those of Sub-Divisional Officers, Sub-Divisional Engineers, Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy  Engi- neers. Rule 12(a) of the 1970 Rules expressly includes  some of  the  officiating Deputy Engineers within  the  cadre  of Deputy Engineers, although it leaves behind the other  offi- ciating Deputy Engineers who started officiating later  than 30.4.1960.  Rule 13 speaks of officers "officiating  in  the erstwhile cadre of Deputy Engineers" and r. 27 of "officiat- ing promotions" which are inconsistent with two-cadre  theo- ry. In r. 33 of the 1970 Rules also two lists were  directed to  be prepared, not cadre-wise but in each  cadre,  clearly indicating that the lists were different from cadres. In  r. 8(1)  of the 1960 Rules also the different groups  were  not described  as  different cadres. They were  referred  to  as "categories" and what the re-organisation suggested was with reference to "lists" to be prepared. It will not, therefore, be  right to equate the lists with cadres. It is  true  that the  Rules  have  not in express language  stated  that  the officiating posts also will be in the cadre but if all their relevant  provisions are considered, they unmistakably  lead to the said conclusion. [918A-F]     2.2 Questions of vital importance affecting a very large number  of  officers in the departments concerned  and  many disputes  have  been settled by following  the  judgment  in Patwardhan’s  case. In such a situation it is not  expedient to depart from the decision lightly. It is highly  desirable that a decision, which concerns a large number of government servants  in a particular service and which has  been  given after  careful  consideration of the rival  contentions,  is respected rather than scrutinised for finding out any possi- ble error. It is not in the interest of

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905 the  service  to unsettle a settled position every  now  and then. [918G-H; 919A]     2.3  Even on an independent consideration of the  provi- sions of the Rules, and the relevant materials the temporary posts of Deputy Engineers against which promotees  officiat- ed, did not form a separate cadre and were additions to  the main cadre. These temporary posts were created in  pursuance of  several  resolutions  of the State  Government  and  the language used therein amply supports this view. [921A-E]     S.B.  Patwardhan v. State of Maharashtra, [1977]  3  SCR 775 and P.Y. Joshi v.State of Maharashtra, [1970] 2 SCR 615, followed.     State of Gujarat v.C.G. Desai & Ors., [1974] 2 SCR  255, distinguished.     Baleshwar  Dass  v. State of U.P. & Ors., [1981]  1  SCR 449, referred to.     3.1 The quota rule was for the first time introduced  by the  1960 Rules. These Rules were introduced through  execu- tive instructions issued by the State Government. The  ratio of  3:1 was fixed for the purpose of "appointment"  and  not for  the  strength in the service. It  permitted  the  State Government  to  exercise  its discretion  according  to  the demand of the exigencies, by using the expression "as far as practicable."  There is no reason to so restrict  the  scope and  meaning of the expression "as far as practicable".  The quota  rule must he held to be realistic and flexible,  true to life rather than abstractly absolute. [923C-H; 924A-B]     3.2 When recruitment is from more than one source, there is  no inherent invalidity in introducing quota system,  but the  unreasonable implementation of such a rule may  attract the frown of the equality clause. Further, if a rule  fixing the ratio for recruitment from different sources is  framed, it is meant to he respected and not violated at the whims of the  authority.  It ought to be strictly  followed  and  not arbitrarily  ignored. This, of course, may not  prevent  the Government from making slight deviations to meet the exigen- cies.  If it is discovered that the rule has  been  rendered impracticable,  it  should  be promptly  substituted  by  an appropriate rule according to the situation. [925A-C]     3.3 In the present cases direct recruits were not avail- able  in  adequate number for appointment,  and  appropriate candidates in the 906 subordinate  rank  capable of  efficiently  discharging  the duties of Deputy Engineers were waiting in their queue.  The development work of the State peremptorily required  experi- enced  and efficient hands. In the situation the State  Gov- ernment took a decision to frill up the vacancies by  promo- tion  in excess of the quota, but only after subjecting  the officers to the test prescribed by the rules. All the eligi- ble candidates were considered and the opinion of the Public Service Commission was obtained. [925D-E]     3.4  If appointments from one source are made in  excess of  the quota, but in a regular manner and  after  following the  prescribed procedure, there is no reason to  push  down the appointees below the recruits from the other source  who are inducted in the Service subsequently. The later appoint- ees  may  have been young students still  prosecuting  their studies  when  the appointments from the other  source  take place  and  it will be highly inequitable and  arbitrary  to treat  them  as senior. Further, in cases  where  the  rules themselves  permit  the Government to relax  the  provisions fixing  the ratio, the position for the appointees is  still better;  and a mere deviation therefrom would raise  a  pre-

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sumption  in favour of the exercise of the power of  relaxa- tion. There would he still a third consideration relevant in this  context:  namely, what is the conclusion to  he  drawn from  deliberate continuous refusal to follow  an  executive instruction fixing the quota The inference would be that the executive instruction has ceased to remain operative. In all these  cases,  the matter would however he  subject  to  the scrutiny of the Court on the ground of mala fide exercise of power. All the three circumstances mentioned above which are capable  of neutralising the rigours of the quota  rule  are present  in the cases, and the principle of seniority  being dependant  on continuous officiation cannot be held to  have been  defeated  by  reason of the ratio fixed  by  the  1960 Rules. 1926C-G]     P.C. Sethi v. Union of India, [1975] 3 SCR 201 and  N.K. Chauhan v. State of Gujart, [1977] 1 SCR 1037, relied on.     S.B.  Patwardhan v. State of Maharashtra, [1977]  3  SCR 775, affirmed.     P.S. Mahal v. Union of India, [1984] 3 SCR 847 and  V.B. Badami  etc.  v. State of Mysore & Ors., [1976] 1  SCR  815, distinguished. Paramjit Singh Sandhu v. Ram Rekha & Ors., [1979] 3 SCR 584; 907 A.K.  Subraman v. Union of India, [1975] 2 SCR  979;  Bishen Sarup Gupta v. Union of India, [1975] Supp. SCR 491 and S.G. Jaisinghani  v.  Union of India & Ors., [1967]  2  SCR  703, referred to.     4.  It  is not possible to hold that  the  principle  of seniority being dependant on continuous officiation will not apply  to  certain groups of the officers. The  reasons  for rejecting  the case of the appellants in  Patwardhan’s  case are equally applicable to all the promoted Deputy  Engineers including  those who were earlier  Sub-Divisional  Engineers and  Sub-Divisional  Officers, as well as all  the  directly recruited  Deputy Engineers. The suggested division  of  the two groups into further subcategories will result in illegal discrimination. [929F-G]     5.  Rules 4 and 9 of the 1982 Rules were rightly  struck down by the High Court and consequently the 1984 Rules  were correctly  framed and have to be upheld as legal and  valid. [930A-B]     6.  It  is well established that the principles  of  res judicata are applicable to Writ Petitions. A dispute  raised by  a petition under Article 32 of the Constitution must  be held  to be barred by principles of res  judicata  including the rule of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure, if the same has been earlier decided by a competent court by a  judgment which became final. [932E; 933D-E]     Daryao & Ors. v. State of U.P. & Ors., [1962] 1 SCR  574 and  Forward  Construction Co. v.  Prabhat  Mandal,  (Regd.) Andheri & Ors., [1986] 1 SCC 100, relied on.

&     CIVIL APPELLATE AND WRIT JURISDICTION: Civil Appeals No. 194-202 of 1986. etc.     Appeals by Certificates from the Judgment & Order  dated 9.12.85/17.12.85  of the Bombay High Court in Writ  Petition Nos.  620 of 1984, 2653 of 1984, 394 of 1985, 456  of  1985, 457  of 1985, 183 of 1985, 660 of 1984, 126 of 1985 and  154 of 1985     V.M.  Tarkunde,  M.C.  Bhandare,  R.N.  Sachthey,   S.B. Bhasme,  V.A. Bobde, D. Dave, R. Karanjawala, Ms.  Meenakshi

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Arora, Mrs. Manik Karanjawala, Jitender Sethy, S.V.  Tambwe- kar,  M.N. Shroff, A.S. Bhasme, A.M. Khanwilkar,  P.G.  Gok- hale,  B.R.  Aggarwala for the Appellants  and  J.H  Bhatia, Brambhate Petitioners in person. 908     K.K.  Singhvi, T.V.S.N. Chari, Miss Manjula  Gupta,  Ms. Kitty Kumarmangalam, Ms. A. Subhashini and V.J. Francis  for the Respondents. S.S. Patvardhan, Intervener in person. The Judgment of the Court was delivered by     SHARMA, J. The perpetual rivalry for seniority in  serv- ice  between the direct recruits and the promotees has  once more  engaged the attention of this Court for several  days. The dispute which was brought to Court by S.B. Patwardhan in 1972  by a writ petition in the Bombay High Court and  which was supposed to have been finally settled by the judgment of this Court reported in ( 1977) 3 SCR 775 has been kept alive by some direct recruits till this date. The events  relevant for  the case are spread over a long period and  the  issues joined  by  the parties have been described in  the  earlier judgments as involving ticklish and complicated questions of unrivalled  complexity with no earlier case comparable.  The position  as now stands is that the field of controversy  on legal  questions has been considerably narrowed down by  the earlier decisions of this Court, but the relevant facts  and the  issues to be settled have multiplied by further  events and subsequent rules framed under the Proviso to Article 309 of the Constitution.     2.  For  appreciating the controversy which  has  to  be resolved, a brief survey of several sets of rules is  neces- sary.  The  parties are Engineers in the employment  of  the State of Maharashtra excepting the petitioners in W.P.  Nos. 3947-48  of  1983 who are in Gujarat service.  Avoiding  the details, the position may be briefly stated by dividing  the entire period into 4 sub-periods and mentioning the scope of such of the provisions of the rules which have direct  bear- ing  on  the questions involved in the present cases.  By  a resolution of the year 1937 of the Government of Bombay, two new Provincial Engineering Services described as the  Bombay Engineering  Service  Class I consisting of posts  of  Chief Engineer, Superintending Engineers, Executive Engineers  and Assistant  Engineers  Class I, and  the  Bombay  Engineering Service  Class  II,  having officers  designated  as  Deputy Engineers,  were created. All the posts were  permanent.  In 1939, Rules were made for regulating the methods of recruit- ment to the said Services which directed the recruitment  to be  made either by nomination from amongst the  students  of the College of Engineering, Pune or by promotion of officers holding inferior posts. The next Rules to which the  parties in the present cases have made reference were those made by 909 the  resolution dated 21.11. 194 1 for determination of  the seniority of the direct recruits and the promoted  officers, containing  only two rules out of which r. 1  admittedly  is not  relevant for the present purpose. Rule 2 said  that  in case  of  officers promoted to  substantive  vacancies,  the seniority would be determined with reference to the date  of their  promotion  to  the substantive  vacancies.  In  1960. detailed  rules  for  recruitment to Class I  and  Class  II Services were framed by a Government resolution dated  29.4. 1960. Learned counsel for the parties have referred to these Rules  as the 1960 Rules and have made  elaborate  arguments with reference to some of the provisions. In place of  nomi- nation from the successful students of College of  Engineer- ing,  Pune as direct recruits, these Rules prescribed for  a

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competitive  examination  to be held by the  Public  Service Commission, and introduced a quota system by fixing a  ratio of appointments of direct recruits and promotees. The  Rules also made reference to promotion, as Executive Engineers  on officiating basis, and Temporary Deputy Engineers and  offi- ciating Deputy Engineers. By r. 8 the posts of Deputy  Engi- neers  were re-organised, and by sub-rule (iii).it was  pro- vided that the direct recruits in any year shall in a  bunch be placed senior to promotees confirmed during that year.  A review of these Rules was later undertaken by the Government and  ultimately in partial supersession thereof a fresh  set of  rules, described by the learned counsel in  the  present cases as the 1970 Rules, were adopted by another  Government resolution.  In the meantime, however, a serious dispute  in regard to the interpretation of one of the provisions of the 1960 Rules arose which was Settled by this Court in the case of  P.Y.  Joshi and others v. The State of  Maharashtra  and Others, [1970] 2 SCR 615. The judgment in this case has been the  subject  matter of considerable discussion  during  the hearing of present cases. By r. 5 of the 1970 Rules, Class I and  Class II Services were redefined and r. 12(a)  declared that the cadre of Deputy Engineers would consist of all  the direct  recruits,  the confirmed Deputy  Engineers  and  the other  officers who were officiating as Deputy Engineers  on 30.4. 1960.     3.  During the period 1960-70 adequate number of  direct recruits  were not available, and a large number  of  promo- tees, therefore, had to be appointed to officiate as  Deputy Engineers on continuous basis. These appointments were  made after  following the procedure applicable to regular  promo- tions,  including consultation with the Public Service  Com- mission.  By r. 12(b) the strength of the  permanent  Deputy Engineers  was fixed at the total number of (a)  the  Deputy Engineers  confirmed up to the date of commencement  of  the Rules, (b) direct recruits to the posts of Deputy  Engineers appointed till the 910 date of commencement of the Rules, and (c) the Deputy  Engi- neers officiating on 30.4.1960; and it was provided that  no fresh appointments in future would be made to this cadre and the  vacancies arising would be transferred to the  officers holding  subordinate posts detailed in the sub-rule in  pro- portions indicated. The learned counsel for the parties have referred  to this cadre as the ’frozen cadre’. The  question of  seniority was dealt with in several rules, out of  which r. 33 is important. It said that the seniority list in  each cadre  in  Class  I and Class II shall be  prepared  in  two parts--one  for the confirmed officers and other  for  those who  were  not confirmed; and that  the  confirmed  officers would  be  treated as senior to  the  unconfirmed  officers. Since  the  direct recruits were all appointed  against  the permanent  posts,  they were reckoned to be  senior  to  the officiating Deputy Engineers irrespective of the period  for which  they  had  been working continuously  on  the  Deputy Engineer’s  posts.  These Rules were amended  in  1972,  but there was no departure from the main scheme and the  princi- ple governing seniority.     4.  In pursuance of the 1970 Rules seniority lists  were prepared  leading to the filing of several cases which  were ultimately disposed of by this Court in S.B. Patwardhan  and others v. State of Maharashtra and others, [1977] 3 SCR 775. Patwardhan, the appellant in that case, was promoted  tempo- rarily  as Deputy Engineer in 1959 and was  confirmed  after the coming in force of the 1970 Rules. The respondents No. 2 and 3 who were directly appointed as Deputy Engineers  later

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were,  in view of the Rules, shown as senior to  Patwardhan. Patwardhan challenged the validity of r. 8(iii) of the  1960 Rules  and 33 of the 1970 Rules as being violative of  arti- cles 14 and 16 of the Constitution. The judgment in the case is  treated as a landmark in the service  jurisprudence  and has covered extensive grounds dealing with several important aspects  relevant in the case. The learned counsel  for  the parties  have in the course of their arguments read and  re- read the judgment and made elaborate comments on its  inter- pretation  and effect, which we will discuss later.  In  the result, Patwardhan succeeded and r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules were struck down.     5.  In  view of the judgment in  Patwardhan’s  case,  it became necessary to prepare fresh seniority lists, and since the re-organised states of Bombay and Gujarat were formed on 1.11. 1958 under the provisions of the State Re-organisation Act,  1956,  it was considered expedient to make  rules  for preparing seniority lists of Deputy Engineers in respect  of the period 1.11.1956 to 30.4.1960, that is, the 911 date immediately after coming into force of the 1960  Rules. Rules were framed under Article 309 of the Constitution read with  s. 81(6) of the Bombay Re-organisation Act, 1960,  and were  called  the  Reorganised Bombay  State  Overseers  and Deputy Engineers Seniority Lists Rules, 1978, and have  been referred to before us as the 1978 Rules. The seniority  list of  the  Deputy  Engineers as on 1.11.1956  which  had  been prepared  earlier was declared by these Rules as  valid  and final. This was consistent with the decision in Patwardhan’s case.  The further seniority lists were directed to be  pre- pared for the years 1957, 1958, 1959 and 1960 in  accordance with the judgment in Patwardhan’s case wherein the seniority of  the promotee Deputy Engineers was made dependant on  the continuous officiation subject to certain other conditions.     6.  Since  the preparation of the  seniority  lists  and reversion  of the direct recruits whose promotion was  ille- gal,  in  view of the decision in  Patwardhan’s  case,  were being delayed, one Bagayat Patil, a promotee Deputy Engineer officiating as Executive Engineer, filed a writ  application being W.P. No. 3483 of 1980 in the High Court for  implemen- tation  of the judgment, inter alia, on the ground  that  r. 6(iii)  of the 1960 Rules relating to Class I being  similar to the struck down r. 8(iii) was also illegal. Another  writ application  being  W.P. No. 672 of 1981 was  filed  by  the direct  recruits challenging the validity of the 1978  Rules mainly  on the ground that the Rules omitted to fix  propor- tionate quota for the direct recruits and the promotees. The two  cases were disposed of by a common  judgment  upholding the  validity of the 1978 Rules, striking down r. 6(iii)  of the  1960  Rules,  and issuing  appropriate  directions  for reversion of the illegally promoted direct recruits as  also for  preparation of seniority lists in accordance  with  the judgment  in Patwardhan’s case. Kulkarni, one of the  direct recruits,  in representative capacity, challenged the  judg- ment before this Court in S.L.P. No. 8064 of 198 1 which was dismissed on 29.10.1981. On the same date S.L.P. No. 9161 of 1981,  filed  by one Samtani was also  rejected.  A  special leave  petition by the State Government was  also  dismissed later.  One  of  the direct recruits J.H.  Bhatia,  who  was admittedly represented by the petitioner in S.L.P. No.  8064 of  1981, filed an application under Article 32 of the  Con- stitution before this Court on 1.2. 1982, that is, after the dismissal of S.L.P. No. 8064 of 1981, which has been  regis- tered  as W.P. No. 1327 of 1982 and is being disposed of  by the present judgment.

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   7.  In  1981 further rules  called  Re-organised  Bombay State Assistant Engineers and Executive Engineers  Seniority Lists Rules, 912 198  1, described by the ’parties as the 198 1  Rules,  were flamed laying down the rule of determination of seniority of the Assistant Engineers and the Executive Engineers for  the period 1.11.1956 to 30.4.1960. With respect to the  prepara- tion  of the seniority list of the Executive  Engineers,  r. 3(3)(a)  read with Explanation to r. 3(4) fixed  quota  with retrospective  effect  between the direct recruits  and  the promotees,  and these rules were successfully challenged  in the High Court in W.P. No. 362 of 1982. The ,judgment in the case  striking  down the above rules has not  been  directly questioned in this Court.     8.  The main Rules which are the subject matter  of  the present  cases were framed in 1982 under Article 309 of  the Constitution  laying down the principle for fixing the  sen- iority for the period dated 1.5.1960 to 20.12.1970, and  are called  the Maharashtra Service of Engineers (Regulation  of Seniority  and Preparation and Revision of  Seniority  Lists for  Specified Period) Rules, 1982, hereinafter referred  to as the 1982 Rules. The Preamble states that they were framed in  view of the decision of the Supreme Court in  S.B.  Pat- wardhan v. State of Maharashtra and of Bombay High Court  in W.P.  No. 3483 of 1980. On their face, they  are  consistent with  the  aforesaid judgments, but by including  two  rules therein--Rules  4 and 9, deleted later--fixing  rigid  quota with  retrospective effect, attempt was made  to  neutralise the  decision  and rob the promotees the ’benefit  of  their continuous  officiation.  Rule 9 (omitting  the  Explanation which  is  not  relevant for the present  purpose)  read  as follows: "9. Allocation of vacancies in cadre of Deputy Engineers for direct  recruits and promotees.--The number of vacancies  in the  cadre  of  Deputy Engineers in every  year  during  the specified period and in the fractional year shall be  deemed to  be equal to the number of vacancies actually  filled  in that  year or, as the case may be, fractional year, and  the first three-fourths of such vacancies in each year or in the fractional year shall be deemed to be allocated for  persons recruited  directly as Deputy Engineers and  the  subsequent remaining  vacancies in that year or in the fractional  year shall  be deemed to be allocated for filling  by  promotions from  amongst Overseers who may be eligible for such  promo- tions in accordance with rules or orders made by  Government from time to time during the specified period." Rule  4; .dealing with the promotion of Assistant  Engineers and Deputy 913 Engineers  in vacancies in the cadre of Executive  Engineers was in similar language. Section 2(h) defined  "fortuitously appointed" in the following terms: "fortuitously  appointed"  means appointed  in  any  vacancy which,  according to rule 4 or 9, is not allocated  for  the class  of  officers to which the person  appointed  in  that vacancy belongs;’’ These  rules were challenged in Writ Petitions No.  955  and 956 of 1983, filed respectively by promotee Deputy Engineers Dafle and Kamtkar, and by promoted Executive Engineers  Lele and Panse (hereinafter mentioned as Dafle-Lele case)  before the  Bombay High Court and were struck down as illegal.  The High Court further ordered the State to carry out the direc- tions given in Bagayat Patil’s case (W.P. No. 3483 of 1980). None  ’of  the  Engineers came to this  Court  against  this

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judgment, except the State Government in S.L.P. Nos.  16614- 15  of 1983 which also have been heard by us.  However,  the prayer for stay was rejected. The result is that the senior- ity  has to be reckoned on the basis of continuous  officia- tion. By an amendment in 1984 the rr. 4 and 9 were  formally deleted.     9. For the purpose of fixing the seniority of  Executive Engineers and Assistant Engineers for the period  commencing on 21.12.1970, separate rules were framed under Article  309 of  the Constitution and are called the Executive  Engineers and Assistant Engineers belonging to the Maharashtra Service of  Engineers Class I and the Maharashtra Service  of  Engi- neers Class II (Regulation of Seniority and Preparation  and Revision  of  Seniority Lists) Rules, 1983 and will  be  re- ferred to hereafter as the 1983 Rules. The validity of these Rules  has  been challenged in W.P. No. 1169 of  1986  filed under Article 32 in this Court.     10.  As stated earlier, J.H. Bhatia filed Writ  Petition No.  1327 of 1982 in person and obtained an ex  parte  rule. Another  application  under article 32 of  the  Constitution being  W.P.  No. 5 187 of 1983 was filed by  Srikant  Bharat Sohoni, a direct recruit to Class II, who, besides challeng- ing  the 1978 Rules, has also attacked the validity  of  the 1982  Rules, although he did not file an appeal against  the judgment  of the High Court on this point. According to  the learned  counsel  for the promotee respondents  he  was  not concerned  with the 1978 Rules at all but he  mentioned  the same in his application for the sole purpose of obtaining  a rule on the ground of admission of Bhatia’s writ petition. 914 Encouraged by these two cases, several other writ  petitions were  also  filed and have been heard along with  the  Civil Appeals.     11.  Although the claim of the promotees to  reckon  the seniority  according to the continuous officiation  was  ac- cepted by this Court in Patwardhan’s case in 1977, the State Government continued denying them the fruits of the  litiga- tion.  The High Court on a complaint made by Bagayat  Patil, took note of the delay and issued directions for implementa- tion  of the judgment. Still nothing was done till 1984  and an application for starting proceedings in contempt was made before the High Court. In the meantime a fresh writ petition being W.P. No. 660 of 1984 was filed by the direct  recruits before  the  Aurangabad Bench of the Bombay High  Court  and stay  was obtained. Thereafter a number of similar  applica- tions were filed one after another, either before the Nagpur Bench or the Aurangabad Bench of the Bombay High Court. When the promotees pointed out before this Court the game of  the direct  recruits, a direction was issued for hearing of  all the cases at Bombay. Accordingly aH the 15 writ applications were  transferred  and heard together at  Bombay.  The  High Court rejected the case of the direct recruits and dismissed the writ petitions. The petitioners in 9 of them have  chal- lenged the judgment in Civil Appeals No. 194-202 of 1986.     12.  The main argument on behalf of the direct  recruits has been addressed by Mr. V.M. Tarkunde, who represents  the appellants in the Civil Appeals and the writ petitioners  in W.P. No. 1169 of 1986. The learned advocates in some of  the other  writ cases and two of the writ petitioners in  person made  supplementary arguments. It has strenuously been  con- tended  that the 1978 Rules, 1982 Rules, 1983 Rules and  the 1984 Rules are invalid and must be struck down. The judgment in Dafle-Lele case has also been challenged. The cases  were earlier  heard  for sometime by a Division  Bench  when  the Bench referred the matter to be dealt with by a larger Bench

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for  examining the correctness of the decision  in  Patward- han’s case.     13. When the cases were taken up for hearing before  us, it  was  faintly suggested that the principle laid  down  in Patwardhan’s case was unsound and fit to be over-ruled,  but no attempt was made to substantiate the plea. We were  taken through the judgment by the learned counsel for the  parties more  than  once and we are in complete agreement  with  the ratio  decidendi, that the period of continuous  officiation by a government servant, after his appointment by  following the rules applicable for substantive appointments, has to be taken into account 915 for  determining  his  seniority; and  seniority  cannot  be determined  on  the sole test of confirmation, for,  as  was pointed  out, confirmation is one of the  inglorious  uncer- tainties  of government service depending neither  on  effi- ciency of the incumbant nor on the availability of  substan- tive vacancies. The principle for deciding inter se seniori- ty has to conform to the principles of equality spelt out by articles  14  and 16. If an appointment is made  by  way  of stop-gap arrangement, without considering the claims of  all the  eligible  available persons and without  following  the rules  of  appointment, the experience on  such  appointment cannot be equated with the experience of a regular  appoint- ee,  because of the qualitative difference in  the  appoint- ment.  To equate the two would be to treat two  unequals  as equal  which would violate the equality clause. But  if  the appointment  is  made after considering the  claims  of  all eligible candidates and the appointee continues in the  post uninterruptedly  till the regularisation of his  service  in accordance  with  the  rules made  for  regular  substantive appointments, there is no reason to exclude the  officiating service for purpose of seniority. Same will be the  position if the initial appointment itself is made in accordance with the  rules applicable to substantive appointments as in  the present  case. To hold otherwise will be discriminatory  and arbitrary.  This principle has been followed in  innumerable cases  and  has  been further elaborated by  this  Court  in several judgments including those in Baleshwar Dass v. State of U.P. and others, [1981] 1 SCR 449, and Delhi Water Supply and Sewage Disposal Committee and others v. R.K. Kashyap and others, [ 1989] Supp. 1 SCC 194, with which we are in agree- ment.  In Narender Chadha and others v. Union of  India  and others,  [ 1986] 1 SCR 211, the officers were  promoted  al- though without following the procedure prescribed under  the rules,  but  they continuously worked for  long  periods  of nearly 15-20 years on the posts without being reverted.  The period  of their continuous officiation was directed  to  be counted  for  seniority as it was held that any  other  view would  be  arbitrary and violative of Articles  14  and  16. There  is considerable force in this view also.  We,  there- fore,  confirm the principle of counting  towards  seniority the  period of continuous officiation following an  appoint- ment made in accordance with the rules prescribed for  regu- lar substantive appointments in the service.     14.  Mr. Tarkunde in the course of his argument made  it clear that he was not questioning the ratio in  Patwardhan’s case  but was challenging the judgment therein as  erroneous on  the ground that the posts of temporary Deputy  Engineers held  by the promotees were not in the cadre of  the  Deputy Engineers,  which  included only permanent posts,  and  this position was not correctly appreciated there. The argu- 916 ment  is that since the permanent posts held by  the  direct

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recruits  and the temporary posts which the  promotees  were allowed  to  officiate did not form a  single  cadre,  there could  not arise any question of interse  seniority  amongst them.  The finding to the contrary in Patwardhan’s  case  is said to have been inconnectly arrived at, mainly due to  the failure on the part of the State Government to place all the relevant materials before the Court. The stand of the appel- lants  is  that having regard to all the facts  and  circum- stances  leading to the present litigation, the  direct  re- cruits  cannot be held to be bound either by a rule  of  res judicata  or  otherwise and they are free to  challenge  the Patwardhan’s  decision as incorrect. It is claimed  that  if the relevant position is correctly appreciated, there is  no escape  but to hold that the 1960 Rules excepting r.  8(iii) and  the 1970 Rules except r. 33, were perfectly  legal  and the  declaration about their invalidity was  erroneous.  The learned counsel contended that since the fresh Rules.  which are now impugned, were flamed as a result of the said enone- ous judgment, they have to be struck down. The  observations in  the judgment in P.Y. Joshi’s case were characterised  as obiter  dicta  which cannot be held to be  binding  on  this Court  at a Subsequent stage, and the question  whether  the direct recruits and promotees were in the same cadre or held posts  in two separate and distinct cadres must be  answered in  accordance with the decision in State of Gujarat  v.C.G. Desai  and others, [1974] 2 SCR 255 in favour of the  appel- lants. Developing his argument Mr. Tarkunde said that  since the 1960 Rules and the 1970 Rules were perfectly valid, they clothed the direct recruits with right of seniority over the promotees  which could not be retrospectively taken away  in view of their fundamental rights under articles 14 and 16 of the  Constitution.  He  further urged that  the  quota  rule applicable  to the Service under the 1960 Rules was  binding on  all concerned and the High Court has in  the  Dafle-Lele case  erred in quashing rr. 4 and 9 of the 1982  Rules.  The plea of the respondents that the quota rule was not strictl- ly enforceable on account of the words "as far as  practica- ble" in r. 1(b) of the 1960 Rules or that it was relaxed  Or given  up  later  has been denied and it is  said  that  the appointments of the promotees in excess of the quota, there- fore, could not be treated as valid until the date when  the posts  became available in their share and consequently  the earlier  period  cannot be considered for  the  question  of theft seniority.     15.  The main thrust of Mr. Tarkunde’s argument is  that the  permanent Deputy Engineers and the  officiating  Deputy Engineers  were in two cadres and as the officiating  Deputy Engineers could not be treated to be included in the  perma- nent cadre having only perma- 917 nent  posts,  they  were not entitled to  compete  with  the direct recruits in the matter of seniority. It is true  that initially  the cadre consisted of only permanent posts.  The promotees,  however,  claim that the additional  posts  were subsequently added to the cadre and no new cadre was formed.     16.  Great  emphasis  was laid by Mr.  Tarkunde  on  the language of certain rules on the basis of which it was urged that the cadre of the permanent Engineers was higher in rank than  that of the officiating Engineers, who had to be  fur- ther  promoted for becoming members of the said cadre.  Rule 8(i)  of the 1960 Rules, which was relied on for  this  pur- pose, reads as follows: "8(i)  The  Sub-Divisional posts in the Department  are;  at present,  manned  by direct recruits to  Bombay  Service  of Engineers,  Class II cadre, Deputy Engineers confirmed  from

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subordinate  Service  of  Engineers,  the  temporary  Deputy Engineers recruited by the Bombay Public Service Commission, officiating  Deputy Engineers and similar other  categories. These  various categories are being compiled into two  fists only,  viz., Bombay Service of Engineers, Class II cadre  of permanent Deputy Engineers and a list of Officiating  Deputy Engineers.  The  future recruitments to  Bombay  Service  of Engineers,  Class  II cadre shall be made by  nomination  of candidates recruited direct by competitive examination, held by the Commission, and by promotions from the list of  offi- ciating  Deputy  Engineers. The number  of  such  promotions shall  be  about  one third the number  of  direct  recruits appointed in that year."     argument  is  that if the officiating  Deputy  Engineers could be "promoted" to Bombay Service of Engineers, Class II cadre,  how could they be treated as part of the said  cadre earlier. It was pointed out that the second sentence of  the above  rule  in express terms directs two lists to  be  pre- pared, one of the permanent Deputy Engineers, and the  other of officiating Deputy Engineers. Admittedly the  appointment of all the direct recruits was made as against the permanent vacant posts and on their successfully completing the proba- tionary period they were confirmed against those posts while the promotees were posted in the temporary posts as  offici- ating  Deputy Engineers. Rule 80), according to  the  appel- lants, therefore, makes a clear distinction between the  two groups,  which  could not be lumped together.  Reliance  was also placed on the language of rr. 5, 6, 12(a), 30 and 33 of the 1970 918 Rules.  We are not in a position to agree with  the  learned counsel  that the rules indicate that the officiating  posts were  not included in the cadre of the Deputy Engineers.  It is true that the use of word "promotions" in r. 8(i) of  the 1960  Rules  is not quite appropriate, but  that  by  itself cannot  lead to the conclusion that the  officiating  Deputy Engineers  formed a class inferior to that of the  permanent Engineers.  As was stated with reference to the  expressions like  ’substantive capacity’, ’service’ and ’cadre’  in  Ba- leshwar  Dass v. State of U.P. and others, [1981] 1 SCR  449 (at page 463 C-E), we cannot attribute fixed connotation  to the expression ’promotion’ without reference to the context. The expression, there has been used in the sense of  confir- mation.  The language used in several other rules is  incon- sistent with two-cadre theory, and by way of illustration r. 12(a)  may be considered. Rules 5 and 24 of the  1970  Rules mention  only  4 cadres in Class II--namely, those  of  Sub- Divisional  Officers,  Sub-Divisional  Engineers,  Assistant Engineers  Class  II and Deputy Engineers and there  was  no separate  cadre of officiating Deputy Engineers. Rule  12(a) of the 1970 Rules expressly includes some of the officiating Deputy  Engineers  within  the cadre  of  Deputy  Engineers, although  it  leaves  behind the  other  officiating  Deputy Engineers who started officiating later than 30.4.1960. Rule 13  speaks of officers "officiating in the earthwhile  cadre of  Deputy Engineers" and r. 27 of "officiating  promotions" which  are inconsistent with two-cadre theory. In r.  33  of the 1970 Rules also two lists were directed to be  prepared, not  cadrewise but in each cadre, clear indicating that  the lists  were  different from cadres. In r. 8(i) of  the  1960 Rules  also the different groups were not described as  dif- ferent  cadres.  They were referred to as  "categories"  and what  the  re-organisation suggested was with  reference  to "lists" to be prepared. It will not, therefore, be right  to equate the lists with cadres. It is true that the Rules have

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not  in express language stated that the  officiating  posts also  will be in the cadre but if all their relevant  provi- sions  are  considered, they unmistakably lead to  the  said conclusion. Excepting the use of the word "promotions" in r. 8(i)  of the 1960 Rules no other provision appears  to  help the appellants.     17. This question was considered in Patwardhan’s case at considerable  length, and a categorical finding against  the direct recruits was arrived at, which has been followed  for the  last more than a decade, in many cases arising  between members of Maharashtra and Gujarat Engineering Services. The question  is  of  vital importance affecting  a  very  large number  of  officers in the departments concerned  and  many disputes  have  been settled by following  the  judgment  in Patwardhan’s  case. In such a situation it is not  expedient to depart from the decision 919 lightly.  It  is  highly desirable that  a  decision,  which concerns a large number of government servants in a particu- lar Service and which has been given after careful consider- ation  of  the rival contentions, is respected  rather  than scrutinised for finding out any possible error. It is not in the  interest of the Service to unsettle a settled  position every  now  and then. Besides, the learned counsel  for  the parties  have  placed the rival arguments on  the  issue  in great detail with reference to every available material, and in our opinion the finding was correctly arrived at. We also agree that the interpretation given in P.Y. Joshi and Others v. The State of Maharashtra and Others, [1970] 2 SCR 615, by a Bench of 5 Judges on r. 8 of the 1960 Rules, which answers one of the main grounds of the direct recruits in support of two-cadre  theory, must be respected. Mr. Tarkunde  has  at- tempted to distinguish P.Y. Joshi’s case and has  challenged the  correctness  of  the observations at page  795  of  the judgment  in  Patwardhan’s case. We do not  agree  with  the learned counsel. The dispute in that case was in respect  of promotion of promotee Deputy Engineers to posts of officiat- ing  Executive Engineers. Rule 7(ii) of the 1960 Rules  pre- scribed, as a necessary condition for promotion, the minimum service of seven years as Deputy Engineer. The respondent in P.Y. Joshi’s case were elgible, provided their experience as officiating Deputy Engineers was allowed to be counted.  The petitioners  in that case were direct recruits to the  posts of Deputy Engineers and they challenged the promotion of the respondents  on the ground that they had not  completed  the seven  years’  period  after their  confirmation  as  Deputy Engineers and the period for which they had been officiating as  such  was not available to them for the  purpose.  Their contention  was "that under the rules in force the  respond- ents  who  were in substantive rank of Overseers  were  only officiating Deputy Engineers and that as they did not belong to  the cadre of Deputy Engineers they were not entitled  to promotion inasmuch as they had to put in after  confirmation as  Deputy Engineers 7 years of actual service before  being eligible for promotion as officiating Executive  Engineers". The arguments were addressed with reference to several rules including r. 8, and this Court while rejecting the stand  of the direct recruits observed thus: "In our view it is the list of such persons that is referred to in cl. (ii) of rule 8 and not that there should be a list of  persons  actually officiating as Engineers  for  further promotion  to the same post which will have little  meaning, for  there  cannot be a promotion of a person  in  the  same cadre  of  service  who is already promoted  whether  as  an officiating or temporary or permanent incumbant. If cl.  (i)

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of r. 8 920 provides that Class 11 cadre shall be recruited by  competi- tive  examination, the promotees also are promoted from  the list  of  persons  considered fit  to  hold  sub  divisional charge,  i.e., post of Deputy Engineers. If in the  case  of direct  recruits  the appointment is  without  reference  to confirmation,  it  cannot be any different in  the  case  of promotees." This interpretation of r. 8 is binding as a precedent. It is Urged  by Mr. Tarkunde that the ratio of the Division  Bench judgment in State of Gujarat v.C.G. Desai and Others, [1974] 2 SCR 255, supports his argument and should be followed.  We do not think so. The controversy, there, also related to the construction  of  r. 7(ii) of the 1960 Rules  requiring  the minimum  service  of 7 years for a Class II  officer  to  be promoted  as officiating Executive Engineer. The  respondent No. 1 C.G. Desai who was not considered eligible for  promo- tion  was  earlier officiating as Deputy Engineer  from  May 1955  to December 1959. Thereafter he successfully  competed at an examination for direct recruitment to Class II Service held  by the Public Service Commission and was appointed  as Permanent Deputy Engineer. For the purpose of his  promotion to  the  higher cadre he relied on his  officiating  service before he was selected as a direct recruit, which was denied by the Government. In a writ case his claim was accepted  as legitimate  by the High Court. This decision was  challenged before  this Court; and it was held by the judgment  in  the reported case that the respondent was not entitled to  count his  experience  as officiating Deputy Engineer  before  his selection as a direct entrant in the Service. It was,  inter alia,  observed that if a person like the respondent  leaves his  position in the long queue of officiating Deputy  Engi- neers  with a view to avoid the tortuous wait for  promotion and takes a short-cut, "he gives up once for all the  advan- tages  and  disadvantages" of continuing as  an  officiating Deputy  Engineer and accepts all the handicaps and  benefits which attached to the group of direct recruits. "He  cannot, after .his direct recruitment claim the benefit of his  pre- selection  service  and  thus  have the  best  of  both  the worlds." In this set up and for the purpose of construing r. 7 and considering the necessary qualification for  promotion as  an Executive Engineer, it was observed that  the  direct recruits  and  the  promotees in Class  II  constituted  two groups  or classes, and it was pointed out that  unless  the pre-selection  service  as officiating  Deputy  Engineer  of direct  recruits  was  excluded for reckoning  the  7  years experience,  it  would create two classes amongst  the  same group  of  direct  recruits  and  result  in  discrimination against those direct recruits who had no such  pre-selection service to their credit. The 921 decision  has  to be understood in this  background  and  it cannot be of any help to the present appellants.     18.  Even on an independent consideration of the  provi- sions of the Rules, the relevant materials and the arguments addressed on behalf of the parties, we are of the view  that the temporary posts of Deputy Engineers against which promo- tees  officiated,  did not form a separate  cadre  and  were additions  to  the main cadre. These  temporary  posts  were created  in  pursuance of several resolutions of  the  State Government  and an examination of their language is  helpful in resolving the controversy. The resolution No. ENH-1062-C, dated 8th November, 1962 (Ext. ’A’ at page 277 of Vol. V  of the paper book) after referring to the sanction accorded  by

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the Government for creation of the temporary posts stated, "The posts of Executive Engineer and Deputy Engineer  should be  treated  as  temporary  additions  to  their  respective cadres. ’ ’ (emphasis added) Similarly  the Resolution No. CDS 1170-F, dated the  3rd  of November  1970, dealing with the temporary posts created  in the  departments of Irrigation and Power stated as  follows: (pages  283-286,  at page 284 paragraph 3 of Vol. V  of  the paper book),           "The temporary posts in each Department be treated as temporary additions to the respective cadres." (emphasis added) Mr.  K.K.  Singhvi, the learned counsel  for  the  promotees relied upon these resolutions and several other documents in support  of the finding of this Court in P.Y.  Joshi’s  case and Patwardhan’s case comprising the single-cadre theory and contended  that these and other materials were available  to the  Court in Patwardhan’s case. Mr. Tarkunde, on the  other hand,  argued that some fresh materials have come  to  light since after the judgment in Patwardhan’s case, which had not been  made available by the State earlier. There is  serious controversy  as  to the interpretation  of  these  documents alleged to have been later discovered by the direct recruits and  in  our  opinion they do not furnish  any  evidence  of substantial nature to outweigh the materials produced by the State  in  Patwardhan’s case  including  the  aforementioned resolutions.  In  the circumstances, we do not  consider  it necessary to discuss this question any further and close the issue by holding that the 922 officiating Deputy Engineers were in the same cadre with the other Deputy Engineers in permanent posts.     19. It has been next contended that even if the decision in  Patwardhan’s case be held to be correct, and it  is  as- sumed  that  the posts of officiating Deputy  Engineers  are also  included in the cadre of permanent  Deputy  Engineers, rr. 4 and 9 of the 1982 Rules could not have been challenged as  illegal  and the decision of the Bombay  High  Court  in Dafle-Lele  case striking down these rules is erroneous  and fit to be over-ruled. It was pointed out that the 1984 Rules flamed  as  a result of the said decision  expressly  stated that  they were subject to the result in the  Special  Leave Petitions  No. 16614-15 of 1983 filed by the State of  Maha- rashtra  against the said decision, and if the  judgment  in Dafle Lele case is set aside then the 1984 Rules will  auto- matically disappear. Great emphasis was laid by Mr. Tarkunde on  the provision in the 1960 Rules fixing the ratio of  the direct  recruits and the promotees in the  Deputy  Engineers cadre; and it was urged that the question of seniority  must be  settled  with reference to the time  when  posts  became available to the promotees in accordance with the said quota rule. Merely for the reason that the promotees were  allowed to officiate on the temporary posts in excess of their quota they  cannot be permitted to steal a march over the  genuine claimants  to the posts namely, the  subsequently  appointed direct  recruits. Repelling the stand of the respondents  it was argued that the quota rule never collapsed and  remained operative and was confirmed by the decision in  Patwardhan’s case.  About the rule applying at the stage  of  appointment and  not  at the stage of confirmation, as was held  in  the said judgment, it was suggested that the observations cannot be  legitimately  interpreted  as  setting  the  officiating Deputy  Engineers free of the principle of quota. It  meant, according  to  the learned counsel, that if an  officer  was

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promoted within his quota, the rule would be applicable with reference  to  the  date of promotion and not  the  date  of confirmation,  but where his promotion was in excess of  the permissible  quota  his  seniority would  be  reckoned  with reference  to the date when a vacancy became  available  for him, and not on the basis of his continuous officiation.  He will be entitled to count his officiating experience only on a  vacancy  being available to him in  accordance  with  the quota rule. Reliance was placed on S.G. Jaisinghani v. Union of  India  and Others, [1967] 2 SCR 703; A.K.  Subraman  and Others v. Union of India and Others, [1975] 2 SCR 979;  V.B. Badami etc. v. State of Mysore and Others, [1976] 1 SCR 8 15 and  Paramjit Singh Sandhu and Others v. Ram Rakha and  Oth- ers,  [1979] 3 SCR 584. Alternatively it was contended  that assuming that the quota rule had collapsed as a 923 result  of  non-availability of direct recruits,  the  State Government was under a duty to change the ratio by allotting a larger share to the promotees, which was belatedly done in 1970.  So long the rule was not amended the same had  to  be respected.  On the strength of observations in Bishan  Sarup Gupta v. Union of India and others, [1975] Supp. SCR 491, it was urged that collapse of quota rule does not make seniori- ty  dependant on continuous officiation. It calls  upon  the Government to frame better rules to meet the requirements of the situation.     20. The quota rule was for the first time introduced  by the  1960  Rules.  As already mentioned,  these  Rules  were introduced  through  executive instructions  issued  by  the State Government. The statutory rules which were holding the field  earlier  did  not fix any ratio  between  the  direct recruits  and the promotees. Rule 1 of the 1960 Rules  which is relevant in this context is quoted below: "1. Appointment to the Bombay Service of Engineers, Class  I and Class II, shall be made either-- (a)  by nomination after a competitive examination  held  by the  Bombay Public Service Commission hereafter  called  the Commission in accordance with the rules appended, or (b)  by  promotion  from amongst the members  of  the  lower cadres concerned. Provided that the ratio of the appointment by nomination and by promotion shall, as far as practicable, be 75:25." It  will be noticed that the ratio of 3:1 was fixed for  the purpose  of "appointment", and not for the strength  in  the Service,  as was suggested on behalf of the appellants.  The other  important  feature was that the  Proviso  fixing  the ratio,  far from being imperative, permitted the State  Gov- ernment  to exercise its discretion according to the  demand of the exigencies, by using the expression "as far as  prac- ticable".  The case of the appellants is that the  said  ex- pression  was  inserted in the Proviso with  the  object  of avoiding fractions in arithmetical calculations of number of posts available to the two groups, and for no other purpose. We do not see any reason to so restrict the scope and  mean- ing  of  the expression "as far as practicable".  A  similar expression  in identical terms used in certain  other  rules came  up  for consideration in N.K. Chauhan  and  Others  v. State of Gujarat and 924 Others, [1977] 1 SCR 1037, and it was held that if it became nonfeasible  and impracticable for the State to fill up  the requisite  quota by direct recruits after making  a  serious effort to do so, it was free to fill the posts by  promotion of  suitable hands, if the filling up of the  vacancies  was administratively  necessary and could not wait.  Similar  is

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the  position here, and the r. 1 of the 1960 Rules  must  be held to be realistic and flexible, true to life rather  than abstractly  absolute.  It was strenuously contended  by  Mr. Tarkunde  and  was reiterated by the other  learned  counsel that  the State Government erred in promoting  the  officers from the lower cadre far in excess of their legitimate share in the Service, and the promotees cannot be allowed to  take advantage of this wrong perpetuated from year to year. Reply of  the  respondents is that direct  recruits  suitable  for appointment were not available and if appointments had  been defined  on  that account the fast  developing  departments, entrusted  with  quick improvement in several  fields  would have been rendered crippled, leading to grave injury to  the industrial and other growths in the State. The public inter- est  demanded  that the improvement work did not  suffer  on account  of  non-availability  of  suitable  candidates  for nomination,  when  competent Engineers fit to  shoulder  the responsibility  were  available in abundant  number  in  the departments  themselves.  It will bear repetition  that  the promotees  were not appointed in a casual manner; the  Rules applicable  for substantive appointments  were  meticulously followed  and  eligible officers were subjected to  all  the tests  including scrutiny by the Public  Service  Commission before  they were promoted. The reason for not  adhering  to the  quota rule was admittedly the non-availability  of  the direct  recruits and was specifically mentioned in the  Gov- ernment’s  resolution of 1970 as a reason for replacing  the old rules by new ones. Mr. Singhvi, the learned counsel  for the  respondents, argued that having regard to the  relevant facts and circumstances, there is no escape from the conclu- sion that the quota rule spelt out by the executive instruc- tions in the 1960 Rules had in fact collapsed, and that this fact can be recognised even without issuing a formal  amend- ing  instruction. It is permissible to draw an inference  to that  effect  by the steps taken by  the  State  Government, repeatedly  and for a considerable period, in  disregard  of such  a rule, and specially so where the quota is not  fixed in imperative terms. Reliance was placed on the observations at page 209 of the judgment of this Court in P.C. Sethi  and Others v. Union of India and Others, as reported in [1975] 3 SCR  201. The quota of direct recruits in that case had  not been enforced "perhaps for good reasons as noted above,  the policy  of  the Government being different". In  this  back- ground  it was stated that administrative  instructions,  if not carried into effect for obvious and good reasons, cannot 925 confer a right upon entrants on later recruitment to enforce the same. The learned counsel appears to be right.     21. It has, however, been rightly suggested on behalf of the  appellants that when recruitment is from more than  one source, there is no inherent invalidity in introducing quota system, but as was observed in Subraman’s case (supra),  the unreasonable  implementation of such a rule may attract  the frown of the equality clause. Further, if a rule fixing  the ratio  for recruitment from different sources is framed,  it is  meant to be respected and not violated at the  whims  of the  authority.  It ought to be strictly  followed  and  not arbitrarily  ignored. This, of course, may not  prevent  the Government from making slight deviations to meet the exigen- cies. If it is discovered that the rule ’has been  -rendered impracticable,  it  should  be promptly  substituted  by  an appropraite  rule according to the situation. The  question, however,  is as to what is the conclusion if the quota  rule is  not followed at all continuously for a number of  years, after it becomes impossible to adhere to the same. Admitted-

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ly  in the present cases direct recruits were not  available in  adequate number for appointment, and appropriate  candi- dates  in the subordinate rank capable of  efficiently  dis- charging  the  duties of Deputy Engineers  were  waiting  in their queue. The development work of the State  peremptorily required  experienced and efficient hands. In the  situation the  State Government took a decision to fill up the  vacan- cies  by  promotion in excess of the quota, but  only  after subjecting the officers to the test prescribed by the rules. All the eligible candidates were considered and the  opinion of the Public Service Commission was obtained. The  appoint- ments  were  not  limited to a particular period  and  as  a matter of fact continued till 1970 when the fresh rules were introduced.     22.  The  stand of the appellants is that  whenever  ap- pointments  are  made in violation of a quota rule  the  ap- pointees will have to go down below the new entrants,  join- ing  the Service in accordance with their quota.  The  cases relied  upon by Mr. Tarkunde do discuss the general  princi- ples  about the enforceability of quota rule and the  effect of its violation, but do not profess to lay down the univer- sal rule applicable. to every case irrespective of the other relevant  circumstances arising therein. On the other  hand, the  decisions cited by Mr. Singhvi deal with  circumstances similar  to those in the present cases and are  illustrative of  situations where the general rule has to yield  to  just exceptions.  Indeed, Mr. Tarkunde himself attempted to  dis- tinguish them on the ground that the government had  relaxed the quota rule in those cases. The fallacy in the  argument, however,  is  that the present cases are also  of  the  same category. 926     23.  Mr.  Tarkunde is fight that the  rules  fixing  the quota  of  the appointees from two sources are meant  to  be followed.  But if it becomes impractical to act upon it,  it is  no use insisting that the authorities must  continue  to give effect to it. There is no sense in asking the  perform- ance  of something which has become impossible.  Of  course, the  Government, before departing from the rule,  must  make every  effort to respect it, and only when it ceases  to  be feasible  to  enforce  it, that it has to  be  ignored.  Mr. Tarkunde is fight when he says that in such a situation  the rule should be appropriately amended, so that the scope  for unnecessary  controversy is eliminated. But, merely for  the reason that this step is not taken promptly, the quota rule, the  performance  of  which has  been  rendered  impossible, cannot be treated to continue as operative and binding.  The unavoidable  situation brings about its natural demise,  and there  is no meaning in pretending that it is still  vibrant with  life.  In such a situation if  appointments  from  one source  are  made in excess of the quota, but in  a  regular manner  and after following the prescribed procedure,  there is no reason to push down the appointees below the  recruits from the other source who are inducted in the Service subse- quently.  The later appointees may have been young  students still  prosecuting their studies when the appointments  from the other source take place--and it is claimed on behalf  of the  respondents that this is the position with  respect  to many  of  the direct recruits in the present  case--and,  it will  be highly inequitable and arbitrary to treat  them  as senior. Further, in cases where the rules themselves  permit the Government to relax the provisions fixing the ratio, the position  for  the appointees is still better;  and  a  mere deviation  therefrom would raise a presumption in favour  of the  exercise  of the power of relaxation.  There  would  be

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still a third consideration relevant in this context:  name- ly,  what  is  the conclusion to be  drawn  from  deliberate continuous refusal to follow an executive instruction fixing the  quota.  The inference would be that the  executive  in- struction  has  ceased  to remain operative.  In  all  these cases,  the matter would however be subject to the  scrutiny of  the Court on the ground of mala fide exercise of  power. All the three circumstances mentioned above which are  capa- ble  of  neutralising  the rigours of  the  quota  rule  are present h: the cases before us, and the principle of senior- ity being dependant on continuous officiation cannot be held to  have been defeated by reason of the ratio fixed  by  the 1960 Rules.     24.  The decisions relied upon by Mr. Singhvi deal  with similar situation and are consistent with our opinion. 927     25.  The decisions relied upon by Mr.  Tarkunde  support his  argument  in general terms but are  distinguishable  on account  of the special features in the present  cases.  Mr. Singhvi contended that many important observations in  those cases  also  support  the respondents  on  several  relevant aspects, as for example, the statement at pages 990H991B  in the judgment in A.K. Subrman’s case as reported in [1975]  2 SCR 797 to the following effect:           "It is submitted by the respondents that one-third quota  cannot be filled unless the two-third quota  was  ex- hausted. This, in our view, will introduce sterility in  the quota  rule  so far as the promotees  are  concerned.  Their hopes and aspirations cannot be related to the  availability or non-availability of the direct recruits to fill the  two- third quota. Each quota will have to be worked independently on  its own force. The word "rest" in the quota rule  cannot be  pressed  into service to defeat the object of  the  rule coming  in aid of advancement of prospects of  promotees  in the hierarchy of the Service."     26.  Relying  on the observations at page  505H  of  the judgment  in Gupta’s case reported in [1975] Supp. SCR  491, Mr.  Tarkunde strenuously urged that even on the  assumption that  the  quota  rule in the present cases  had,  in  fact, broken down, it was imperative on the part of the Government to  have  framed fresh workable rules before  promoting  the respondents.  The learned counsel for the promotees  distin- guished  the  decision, and to our mind  correctly,  on  the ground  that there the manner and terms of the  appointments made in breach of the quota rule, were widely different from those in the present cases. The special facts as they appear from  the  other judgment in the Gupta’s  case  reported  in [1975] 1 SCR 104, were stated at page 113E-F thus: "It  is necessary to remember, however, in  this  connection that  all  these officers had been told when  promoted  that their  appointments were on an officiating or ad  hoc  basis and the question of their seniority had not been determined. It  was  thereby implied that orders about  seniority  could only  be  passed after the department was in a  position  to take  a decision with regard to the inter se  seniority  be- tween the promotees and the direct recruits. That being  the situation  of all these officers, they could hardly  contend that  the dates of appointments will not be altered for  the purposes of determining seniority." 928 The  decision was later considered in P.S. Mahal and  others v.  Union  of India and Others, [1984] 3 SCR  847,  and  the analysis given at pages 877E-880 clearly indicates that  the decision has to be understood in the background of the facts therein and cannot have a universal application irrespective

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of  the situation. This judgment as well as the decision  in Badami’s case (supra) were rightly distinguished in Patward- han’s case at page 797.     27.  It has also been alternatively argued on behalf  of the  appellants  that by the statement in  the  judgment  in Patwardhan’s  case that the quota rule applied at the  stage of  appointment and not at the stage of  confirmation,  this Court did not mean to say that those who were promoted in an officiating capacity were not subject to the quota rule. The contention  is  that what was meant to be  conveyed  by  the aforesaid  observations  was  that if an  officer  had  been promoted  within his quota then it would be the date of  his promotion  and not the date of confirmation which  would  be relevant for the officer’s seniority, but where the  officer is promoted in excess of his quota his seniority would arise when  a  vacancy  in his quota  becomes  available.  We  are afraid, it is not possible to read the judgment as  suggest- ed.  The finding at pages 795F796A, in the  following  words does not leave any room for controversy; "In  this view of the matter, the prescription contained  in the  closing  sentence of r. 8(i) that "the number  of  such promotions  shall  be about 1/3rd the number of  direct  re- cruits  appointed in that year" would apply to  initial  ap- pointments  and cannot govern the confirmation of those  who have  already  been appointed to Class II  cadre.  In  other words, direct recruits and promotees have to be appointed in ,the  proportion of 75:25 to Class II cadre, the  former  as Deputy Engineers and the latter as officiating Deputy  Engi- neers, but once that is done, the quota rule would cease  to apply  with  the result that confirmations in  the  post  of Deputy Engineers are not required to be made in the  propor- tion in which the initial appointments had to be made.  Thus rule 8(i) only requires that for every three direct recruits appointed  as  Deputy  Engineers only one  promotee  can  be appointed as officiating Deputy Engineer. The rule cannot be construed  to  mean that for every  three  confirmations  of Deputy  Engineers,  not more than one promotee can  be  con- firmed as Deputy Engineer." Relying upon the observations in the Patwardhan’s case  that the quota 929 system  was an important feature of the 1960 Rules,  it  was contended by Mr. Tarkunde that it is not permissible to hold that the rule in this regard had been relaxed by the Govern- ment or that it had at any point of time broken down. We  do not  find  it permissible to construe the statement  in  the judgment,  referred to, to lead to such a  conclusion.  This argument,  as has been addressed before us on the  basis  of the  quota rule as an additional contention was not  pressed in  Patwardhan’s case and so there was no occasion for  this Court to deal with the same. The observations referred to by Mr. Tarkunde were made in a different context altogether. If it be assumed that this argument was constructively involved in the Patwardhan’s case, then it follows that the same must be  deemed  to  have been overruled. The  case  clearly,  in unambiguous terms, rejected the claim of the direct recruits for  seniority over the promotees. The appellants by  trying to interpret a part of the observation made in the  judgment in  a different context, in an artificial and  uncalled  for manner, are suggesting that the judgment is  self-contradic- tory,  but  we  do not find any justification  for  such  an inference.     28.  Still  another  point confined  against  a  certain category  of the officiating Deputy Engineers who  were  not included  in the frozen cadre under the 1970 Rules  was  at-

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tempted.  The  contention is that the expressions  "all  the promoted  Deputy  Engineers"  and  "all  directly  recruited Deputy Engineers" used in Patwardhan’s case should be  given restricted  meaning, so as not to include those  officiating Deputy  Engineers who were not included in the frozen  cadre within  the  group of "promoted Deputy Engineers";  and  the Assistant  Engineers Class II within the group of  "directly appointed Deputy Engineers". It is said that although in the judgment  it  was stated that the different  groups  in  the Service were there in representative capacity, these  groups were actually not represented. Even assuming that to be  so, it  is not possible to hold that the principle of  seniority being dependent on continuous officiation will not apply  to these groups of the officers. The reasons for rejecting  the case  of  the appellants are equally applicable to  all  the promoted  Deputy Engineers including those who were  earlier Sub-Divisional  Engineers  and Sub-Divisional  Officers,  as well  as  all the directly recruited Deputy  Engineers.  The suggested division of the two groups into further  sub-cate- gories will result in illegal discrimination.     29.  Mr.  Tarkunde also urged that as a  result  of  the judgment in Patwardhan’s case it was not necessary to  frame the  entire rules afresh, inasmuch as only r. 8(iii) of  the 1960 Rules and r. 33 of the 1970 Rules 930 had  been struck down. The grievance against the 1982  Rules is  that  it  has disturbed the order of  seniority  of  the parties  with  retrospective effect, which is  illegal.  The argument has to be rejected as it fails to take note of  the finding  that  the direct recruits who  joined  the  service later than the promotees were at no point of time senior.The 1982  Rules merely recognised this position and gave  effect to it. They have (excepting the arbitrary and discriminatory provisions  of rr. 4 and 9) undone the inequality,  inequity and  illegality  which were the products  of  the  offending provisions  of  the earlier Rules, and there  is  no  reason whatsoever to doubt their validity.     30. The judgment of the Bombay High Court striking  down rr. 4 and 9 of the 1982 Rules has been seriously  criticised on  behalf  of  the appellants. The  grounds  of  challenge, however,  are the same which have been  considered  earlier. Excepting the State of Maharashtra challenging this judgment in S.L.P. Nos. 16614-15 of 1983 no other party has  directly impugned it. So far Mr. A.S. Bhasme, who appeared on  behalf of  the State of Maharashtra, is concerned, he  faintly  de- fended  all the steps of the State taken from time to  time, and made certain statements which were criticised on  behalf of  the  appellants  in the Civil Appeals  as  amounting  to Unjustified concessions in favour of the promotees. Since we have  not gone by the stand taken on behalf of the State  of Maharashtra before us during the argument, and our  decision is  based on a consideration of the merits of the  different questions  argued by the parties and not on any  concession, we  do not consider it necessary to deal with  Mr.  Bhasme’s argument at any length. We hold that the rr. 4 and 9 of  the 1982  Rules  were tightly struck down and  consequently  the 1984  Rules were correctly framed and have to be  upheld  as legal and valid.     31.  Mr.  Tarkunde  took great pains  in  analysing  the practical  effect of the judgment in Patwardhan’s case  with which we agree and contended that the direct recruits  shall suffer  seriously if the present Civil Appeals,  Writ  Peti- tions  and the Special Leave Petitions are not allowed.  Mr. Singhvi  challenged the figures worked out on behalf of  the appellants. We do not consider it necessary to go into  this

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controversy  as  it  cannot be denied that as  a  result  of Patwardhan’s case and on dismissal of present cases a  large number  of  promotees have to be treated as  senior  to  the direct  recruits, and in that sense the direct  recruits  do suffer.  This, however, cannot be avoided. If their case  on merits  is not correct, it cannot be assumed that they  were at any point of time clothed with any right, which they  are being deprived of. If the decision in Patwardhan’s case  had been given effect to promptly, many 931 of  them would have been reverted to inferior posts  but  by their persistance, both before the higher authorities of the State  and  the Courts, they have sufficiently  delayed  the matter so as to avoid the reversion of any one of them.     32. Mr. Bhandare, appearing in W.P. No. 5187 of 1983 and W.P.  No. 8594 of 1983, generally adopted the  argument  ad- dressed  by Mr. Tarkunde and added by saying that the  offi- cers  should have been, on a proper classification,  divided into  3 classes. namely_, (i) Assistant Engineers  Class  I, (ii)  the Deputy Engineers directly recruited in  Class  II, and  (iii)  the officiating Deputy Engineers  promoted  from Class III, and quota should have been fixed separately for 3 classes right up to the top stage where appointments are  to be  made  by  promotion. He prayed for a  direction  to  the authorities  to  frame  fresh  rules  including  appropriate provisions  on  the lines suggested by him. In view  of  our finding that the 1982 Rules as amended by the 1984 Rules  do not  suffer  from any infirmity, there is  no  occasion  for issuing any further direction. So far the question of fixing the  ratio  of the appointments from  different  sources  is concerned,  it is a matter of policy for the Government  and it is not for us to offer our advice.     33. The petitioner in W.P. No. 5187 of 1983, S.B.  Soho- ni,  was  directly appointed as a Deputy Engineer  in  March 1961  and was confirmed in 1963. It was, therefore,  rightly pointed out by Mr. Sighvi that he was not concerned with the 1978 Rules at all. The writ petition, in absence of  grounds relating to the 1978 Rules, confirms this impression. He has of  course challenged the 1982 Rules, as they  stood  before the  amendment in 1984, but did not, after  1984  amendment, make  any prayer for modification of his writ  petition.  He also did not consider it necessary to file an appeal against the  High  Court  judgment. No additional  ground  has  been raised on his behalf to be dealt with separately.     34.  So far the petitioner in Writ Petition No. 8594  of 1983, J.T. Jangle is concerned, he was an earlier  appointee and  was  included in the seniority list of  November  1956. This list was confirmed by the decision in Patwardhan’s case (vide page 800G of the judgment as reported in [1977] 3  SCR 775). It has been stated in his petition that although  some junior officers were promoted as Executive Engineers  earli- er,  his  promotion was delayed and took  place  in  October 1973.  He  has not given the details in this regard  or  the names of the junior officers who superseded him. He was  not considered  eligible  for promotion  as  Executive  Engineer earlier as he had not completed 7 years’ service as required by the 1960 Rules. He has not impleaded those who 932 have superseded him and has not made any specific prayer  in this  regard.  Besides,  in view of  the  decision  in  P.Y. Joshi’s  case  (supra) he could not have  claimed  promotion before  completing  7 years of service. We do not  find  any merit  in either of the two writ petitions-W.P. No. 5187  of 1983 and W.P. No. 8594 of 1983--pressed by Mr. Bhandare.     35.  Writ Petition No. 1327 of 1982 was argued  by  J.H.

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Bhatia, the petitioner, in person. He was directly recruited as Deputy Engineer Class II in July 1959 and has  challenged the constitutional validity of the 1978 Rules. Mr.  Singhvi, the learned counsel for the respondents, took a  preliminary objection to the maintainability of the writ application  on the ground that his claim stands barred by principles of res judicata. Admittedly, he was represented in W.P. No. 672  of 1981, filed before the Bombay High Court which was dismissed on  7.9.  1981, upholding 1978 Rules. An  application  under article 136 of the Constitution being numbered as S.L.P. No. 8064 of 1981 was filed from this judgment in  representative capacity  and  was dismissed by this Court on  29.12.  1981. These facts were not denied by the petitioner before us, and it was therefore contended on behalf of the respondents that so far the validity of the 1978 Rules is concerned, it  must be held to be binding on the petitioner in respect of  iden- tical  relief now pressed by him in the present  writ  case. The objection appears to be well founded. It is well  estab- lished that the principles of res judicate are applicable to writ  petitions.  The  relief prayed for on  behalf  of  the petitioner in the present case is the same as he would have, in  the event of his success, obtained in the  earlier  writ petition  before  the High Court. The  petitioner  in  reply contended that since the special ’leave petition before this Court was dismissed in limine without giving any reason, the order cannot be relied upon for a plea of res judicata.  The answer is that it is not the order of this Court  dismissing the  special leave petition which is being relied upon;  the plea  of res judicata has been pressed on the basis  of  the High Court’s judgment which became final after the dismissal of  the special leave petition. In similar situation a  Con- stitution  Bench of this Court in Daryao and Others  v.  The State of U.P. and Others, [1962] 1 SCR 574, held that  where the  High Court dismisses a writ petition under article  226 of the Constitution after hearing the matter on the  merits, a subsequent petition in the Supreme Court under Article  32 on the same facts and for the same reliefs filed by the same parties  will  be  barred by the general  principle  of  res judicata.  The binding character of judgments of  courts  of competent  jurisdiction is in essence a part of the rule  of law  on which the administration of justice, so much  empha- sised by the Constitution, is 933 rounded  and a judgment of the High Court under article  226 passed  after a hearing on the merits must bind the  parties till set aside in appeal as provided by the Constitution and cannot  be permitted to be circumvented by a petition  under Article 32. An attempted change in the form of the  petition or  the grounds cannot be allowed to defeat the plea as  was observed at page 595 of the reported judgment, thus: "We  are  satisfied  that a change in  the  form  of  attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the  same statute  and  the grounds raised by the petitioner  in  that behalf are substantially the same." The decision in Forward Construction Co. and others v. Prab- hat  Mandal (Regd.), Andheri and Others, [1986] 1  SCC  100, further clarified the position by holding that an  adjudica- tion  is  conclusive  and final not only as  to  the  actual matter  determined  but as to every other matter  which  the parties  might  and  ought to have litigated  and  have  had decided  as  incidental  to or  essentially  connected  with subject  matter  of the litigation and every  matter  coming into  the legitimate purview of the original action both  in

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respect  of  the  matters of claim and  defence.  Thus,  the principle  of constructive res judicata underlying  Explana- tion IV of s. 11 of the Code of Civil Procedure was  applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.     36.  The petitioner, however, was permitted  during  the hearing,  to place his case on merits and he did so at  some length, and Mr. Singhvi replied thereto. We have  considered the arguments carefully and do not find any substance in the claim  of  the  petitioner and we proceed  to  indicate  our reasons briefly.     37.  The  petitioner J.H. Bhatia  was  appointed  Deputy Engineer  as  a direct recruit in 1959 and was  promoted  as Executive  Engineer in 1969. According to his case,  he  was governed by the 1941 Rules and was, therefore, entitled to a higher  position in the list of seniority. It has been  con- tended by him that he was entitled to the benefit of  either the  1941 Rules or the provision relating to quota  in  1960 Rules  and in either event he. would have been eligible  for promotion  to  the rank of Executive  Engineer  three  years earlier,  that is, in 1966. On account of this delay in  his promotion he seriously suffered by the further delay in  his next promotion as Superintending Engineer by a considerable 934 period.  With  reference to the criticism against  the  1941 Rules  in the judgment of Patwardhan’s case  the  petitioner urged  that the same should be treated as  passing  remarks. fit  to be ignored. Alternatively he has adopted  the  argu- ments addressed on behalf of the appellants challenging  the correctness of the decision in Patwardhan’s cast     38.  As has been stated earlier, the seniority  list  of the  Deputy  Engineers for the period up  to  1.11.1956  was confirmed  in the Patwardhan’s case. The question of  deter- mining  the  seniority for the subsequent  period  arose  in pursuance of the further decision in this judgment. The 1960 Rules were enforced with effect from 30.4.1960 which  intro- duced, for the first time, several new provisions  including the quota rule. The period from 1.11.1956 to 30.4.1960  was, therefore,  separately dealt with by framing the 1978  Rules under  Article 309 of the Constitution. In  accordance  with the decision in Patwardhan’s case the seniority list of  the Deputy Engineers as on 1.11.1956 was declared by these Rules as  valid,  final and binding, and  thereafter  the  further seniority  fists were directed to be prepared for the  years 1957, 1958, 1959 and 1960 on the basis of continuous offici- ation  in accordance with the judgment. The petitioner  con- tends  that  the  judgment in Patwardhan’s  case  cannot  be interpreted to have struck down the 1941 Rules and the claim of  the  direct recruits appointed prior to  the  coming  in force of the 1960 Rules must be upheld in view of the provi- sions  of r. 2 of the 1941 Rules. The 1941  Rules  contained only two rules which are quoted below: "1.  In the case of direct recruits appointed  substantively on probation, the seniority should be determined with refer- ence to the date of their appointment on probation. 2.  In the case of officers promoted to  substantive  vacan- cies,  the seniority should be determined with reference  to the  date  of their promotion to the  substantive  vacancies provided  there has been no break in service prior to  theft confirmation in those vacancies."     39.  Mr. Singhvi replied by saying that r. 2,  aforemen- tioned,  when properly understood, does not help  the  peti- tioner  at all, inasmuch as the rule refers  to  substantive vacancies  and not permanent appointments., and  substantive vacancies  can arise even in temporary posts.  Reliance  was

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placed  on the observations in Baleshwar Dass’ V.  [1981]  1 SCR  449. However, we do not consider it necessary  to  deal with  this  argument, as in our view the  petitioner  cannot succeed even 935 otherwise.  The  substance of the petitioner’s  argument  is again the same as has been contended on behalf of the appel- lants  in the Civil Appeals, namely, that the  principle  of seniority being dependent on continuous officiation as  laid down  in Patwardhan’s case should not be accepted. The  con- tention  is  that the seniority ought to  be  reckoned  with reference  to  the  dates of permanent  appointment  in  the cadre. This argument precisely was rejected in  Patwardhan’s case and we are in complete agreement with the same. We also do not accept the argument of the petitioner that the  judg- ment did not deal with the 194 1 Rules. The said Rules  were pointedly  considered  at pages 790G79 IE in  the  published report and it was, inter alia, held, "The  194 1 Rules contained the real germ of  discrimination because the promotees had to depend upon the unguided pleas- ure  of  the Government for orders of confirmation.  In  the pre-Constitution  era,  such hostile treatement  had  to  be suffered  silently  as a necessary  incident  of  government service. ’ ’ It  has to be remembered that the 1941 Rules, made under  an executive  instruction, do not stand on a  stronger  footing than  the provisions of the subsequent similar  Rules  which have  been struck down on the ground of illegal  discrimina- tion; and as in the case of the 1982 and the 1984 Rules, the 1978 Rules also were framed under Article 309 of the Consti- tution.  No  valid objection can be taken against  the  1978 Rules  made for undoing the wrong resulting from  arbitrari- ness  and  offensive discrimination which  had  visited  the promotees.     40.  Mr. Bhatia has, by his written argument,  belatedly alleged  mala fides on the part of the State  Government  on the  ground  that it failed to prepare  and  publish  select fists for a number of years and it attempted to mislead this Court  by not stating the correct position in regard to  the cadre of the Deputy Engineers and the 1941 Rules. We do  not find  any  justification  for the petitioner  or  any  other direct recruit to urge lack of bona fides on the part of the State.  We do not find any merit in any of  the  submissions addressed by the petitioner.     41. The retired Superintending Engineer, Shripad Shankar Patwardhan,  intervenor in Writ Petitions No. 1327 of  1982, 5187  of 1983 and 8594 of 1983, also made a few  submissions in  person and filed a note of his argument in the shape  of an  affidavit. He has not raised any additional ground,  and it is not necessary to discuss his case any further. 936     42. The two petitioners in Writ Petitions No. 3947-48 of 1983 are Executive Engineers in the Irrigation Department of the  Government of Gujarat. Although the case was  initially filed through advocates, at the hearing on a request by them the petitioner No. 1 was allowed to argue the case in person on  their behalf. Besides impleading the State  of  Gujarat, the  Government  of Maharashtra and the Union  of  India  as respondents No. 1, 2 and 3 respectively, H.N. Shah,  another officer  of  the same Department, was, made a party  as  re- spondent  No. 4 in the writ petition. The case of the  peti- tioners is that the respondent No. 4 was junior to them  and was erroneously treated as senior in the seniority lists for the  period  1.11.1956 to 30.4.1960 prepared  in  accordance with the 1978 Rules.

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   The  writ petition states that the petitioners  were  in Subordinate  Engineering  service  of the  former  State  of Bombay  when  they appeared at the  competitive  examination held for direct recruitment and were appointed Deputy  Engi- neers. At the same examination, H.N. Shah, respondent No. 4, who  was an officiating Deputy Engineer, also  appeared  and was appointed a Deputy Engineer as a direct recruit and  his name  appeared in the list below the petitioners. After  the bifurcation of the two States of Maharashtra and Gujarat  in 1960,  the petitioners as well as the respondent No. 4  were allocated  to the State of Gujarat. In 1969  the  petitioner No.  1 and the respondent No. 4 were promoted  as  Executive Engineers  and  the name of the respondent No. 4  was  again shown lower in the list. It is stated in paragraph 13 of the writ  petition  that the petitioner No.  2  was  temporarily dropped  in this promotion order on administrative  grounds. It  is  contended on behalf of the  petitioners  that  these lists correctly placed the respondent No. 4 below the  peti- tioners  but the subsequent lists prepared in  pursuance  of the 1978 Rules wrongly show him as senior.     A counter affidavit on behalf of the State of  Maharash- tra was filed inter alia denying several allegations in  the writ  petitions explaining certain circumstances  by  giving all  the relevant materials, and explaining  the  situation. S.B.  Patwardhan, the petitioner in the reported case,  also intervened  and  refuted the claim of the  petitioners.  The respondent  no.  4 has retired in the meantime and  has  not appeared in this case.     The  petitioner no. 1, after making a very  brief  argu- ment,  filed written submissions, but since in our view  the Patwardhan’s case was correctly decided, the State was under a duty to prepare fresh 937 seniority lists for the period 1.11, 1956 to 30.4.1960,  and this  was done after framing the 1978 Rules. We do not  find any  merit in the challenge to the 1978 Rules, as  indicated earlier, and in that view these writ petitions are fit to be rejected,  specially  as the respondent No.  4  has  already retired.     43.  The only other case which was separately argued  on behalf of the petitioners was Writ Petition No. 12570-72  of 1983.  Mr.’Vinod Arvind Bobde, the learned counsel  for  the petitioners,  in a brief submission adopted the argument  of Mr. Tarkunde and reiterated that the finding in the Patward- han’s  case about the temporary posts being included in  the main  cadre was erroneous. The point has already been  dealt with. 44. To sum up, we hold that:    (A) Once an incumbent is appointed to a post according to rule,  his seniority has to be counted from the date of  his appointment  and not according to the date of his  confirma- tion.           The corollary of the above rule is that where  the initial  appointment  is only ad hoc and  not  according  to rules and made as a stop-gap arrangement, the officiation in such  post cannot be taken into account for considering  the seniority.     (B) If the initial appointment is not made by  following the  procedure  laid  down by the rules  but  the  appointee continues  in the post uninterruptedly till the  regularisa- tion of his service in accordance with the rules, the period of officiating service will be counted.     (C)  When  appointments  are made  from  more  than  one source,  it is permissible to fix the ratio for  recruitment from the different sources, and if rules are framed in  this

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regard they must ordinarily be followed strictly.     (D)  If it becomes impossible to adhere to the  existing quota rule, it should be substituted by an appropriate  rule to  meet the needs of the situation. In case,  however,  the quota  rule  is not followed continuously for  a  number  of years  because it was impossible to do so the  inference  is irresistible that the quota rule had broken down. 938    (E) Where the quota rule has broken down and the appoint- ments  are made from one source in excess of the quota,  but are  made  after following the procedure prescribed  by  the rules  for  the appointment, the appointees  should  not  be pushed  down  below  the appointees from  the  other  source inducted in the service at a later date.    (F)  Where the rules permit the authorities to relax  the provisions  relating to the quota, ordinarily a  presumption should  be raised that there was such relaxation when  there is a deviation from the quota rule.    (G) The quota for recruitment from the different  sources may  be prescribed by executive instructions, if  the  rules are silent on the subject.    (H)  If  the  quota rule is prescribed  by  an  executive instruction,  and is not followed continuously for a  number of  years, the inference is that the  executive  instruction has ceased to remain operative.    (I)  The posts held by the permanent Deputy Engineers  as well as the officiating Deputy Engineers under the State  of Maharashtra  belonged  to the single cadre of  Deputy  Engi- neers.    (J)  The decision dealing with important  questions  con- cerning a particular service given after careful  considera- tion should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position. With  respect to Writ Petition No. 1327 of 1982, we  further hold: (K) That a dispute raised by an application under article 32 of the Constitution must be held to be barred by  principles of  res  judicata  including the rule  of  constructive  res judicata if the same has been earlier decided by a competent court by a judgment which became final. In view of the above and the other findings recorded  earli- er,  we do not find any merit in any of the  civil  appeals, writ petitions and special leave petitions which are accord- ingly  dismissed.  There will be, however, no  order  as  to costs. G  .N.                           Appeals and  Petitions  are dismissed. 939