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PETITIONER: S.B. PATWARDHAN & OTHERS ETC. ETC.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & OTHERS

DATE OF JUDGMENT04/05/1977

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR 2051            1977 SCR  (3) 775  1977 SCC  (3) 399  CITATOR INFO :  RF         1979 SC 228  (13,14,16)  R          1979 SC 979  (9,17)  RF         1979 SC1073  (11,13,15)  F          1979 SC1136  (3)  D          1980 SC  42  (8)  F          1980 SC1246  (2,7)  RF         1981 SC  41  (29,30)  F          1983 SC 769  (23)  F          1983 SC 881  (3,56)  RF         1984 SC 885  (26)  R          1984 SC1291  (19)  R          1984 SC1595  (34,70)  D          1985 SC 774  (21)  RF         1985 SC1558  (25)  F          1985 SC1605  (12)  RF         1986 SC 638  (12)  E&D        1987 SC 424  (12,13,24)  RF         1987 SC1676  (18)  RF         1988 SC 268  (18)  RF         1988 SC 654  (10,13)  R          1988 SC1673  (7)  R          1989 SC 278  (21)  F          1990 SC1607  (24,27,29)  RF         1991 SC1202  (26)

ACT:             Service matter--Promotees and direct recruits--Rule that         "the probationer recruited directly to the service of  Engi-         neer Class II cadre in any year shall, in a bunch, be placed         senior  to promotees confirmed during  that  year"--Validity         of--If  quota  rule applicable for  recruitments  should  be         applicable at the time of confirmation in the same cadre.

HEADNOTE:             In  exercise of the power conferred by s.  241(2)(b)  of         the  Government  of India Act, 1935 the Governor  of  Bombay         framed rules called Recruitment Rules of the Bombay  Service         of  Engineers (Class I and Class II 1939), Rule 2 laid  down         the  method  of  recruitment to Class I of  the  Service  by         direct recruitment and by promotion from the existing Bombay         Service of Engineers or from the Bombay Service of Engineers

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       Class  II.   Rule 10 provided that recruitment to  Class  II         service  shall be either by direct recruitment or by  promo-         tion  from  (i) the Bombay Subordinate  Engineering  Service         (ii)  permanent  or  temporary supervisors and (iii)  tempo-         rary engineers.             In  1941  the Government of.Bombay passed  a  resolution         directing  that  in the case of  direct  recruits  appointed         substantively  on probation, seniority should be  determined         with  reference  to the date of  appointment  on  probation,         while in the case of officers promoted to substantive vacan-         cies,  seniority should be determined with reference to  the         date of their promotion to the substantive vacancies provid-         ed  there had been no break in their service prior to  their         confirmation in these vacancies.             In 1949 the Chief Secretary to the Government of  Bombay         in  reply   to  a representation made by  the  Bombay  Civil         Service  Association regarding emergency recruitment to  the         I.A.S.  and "other matters"  stated  that   promotees  could         have  no  grievance  in the matter of  seniority  since  the         seniority   of   a  direct recruit to the  cadre  of  Deputy         Collector  vis a vis a promoted officer was  determined  not         according  to the date of confirmation but according to  the         principles laid down in the Rules of 1941, i.e., with refer-         ence  to the date of  first appointment on probation in  the         case of direct recruits and of continuous officiation in the         case of promoted officers.              In  April  1960, a resolution embodying  the  rules  of         recruitment to Bombay Service of Engineers Class I and Class         II  was  passed by the Government  and signed by  the  Under         Secretary to the Government "by order and in the name of the         Governor  of Bombay".  They provided for direct  recruitment         through  common  competitive examination  conducted  by  the         State Public Service Commission for both classes of  service         as  well as by promotion.  Direct  recruits were to be  con-         firmed  after  two. years in their respective  cadets.   The         rules also provided that the ratio of appointments by  nomi-         nation and promotion to both classes shall, as far as  prac-         ticable, be 75:25.  Rule 8(i) says that the various  catego-         ries  which  manned the Class II sub-divisional  posts  were         being  compiled  into two lists: (i) of  Bombay  Service  of         Engineers, Class 11 cadre of permanent Deputy Engineers  and         (ii)  of officiating Deputy Engineers.  The future  recruit-         ment  to Class II cadre was to be made by (a) nomination  of         candidates recruited directly by competitive examination and         (b) promotion from the list of officiating Deputy  Engineers         in  the  ratio of 2: 1.  Rule 8(ii)  provides  that  further         officiating  vacancies  would be manned from the  ranks   of         the  Subordinate Service of Engineers.  For this purpose  of         state-wise  Select  Seniority List was to be  maintained  of         members of the Subordinate Service of Engineers,  considered         fit  to hold sub-divisional charge.  For inclusion  in  this         list  graduates. diploma holders and  non-qualified  persons         had  to have to their credit service of not less than  3,  8         and 13 years respectively.  For confirmation as  a  Deputy         776         Engineer  the officer was expected to have put in  not  less         than  three  years’ service as officiating Deputy  Engineer.         Rule  8(iii) provides that the  probationers  recruited  di-         rectly to the Bombay Service of Engineers, Class II cadre in         any  year shall, in a bunch, be placed senior  to  promotees         confirmed during that year.          On  July 29, 1963 the Government of  Maharashtra  passed  a         resolution        superseding the 1941 rules and framing new         rules for determining inter se  seniority of direct recruits         and promotees.

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           On  December  19,  1970 the State  Government  passed  a         resolution  superseding the resolution of 1960.  Rule 33  of         the  1970 rules provides that the seniority list in  respect         of  each of Class I and Class II shall consist  of: Part   A         confirmed officers and Part B, not confirmed officers,  that         Part   A  shall  be arranged with reference to the  year  of         confirmation  and  confirmed officers shall  be  treated  as         senior  to  the  unconfirmed officers  in   the   respective         cadre  and Part B, names shall be arranged with reference to         the date of continuous officiation except where a  promotion         in an officiating capacity was by way of purely temporary or         local arrangement.             Immediately  after the 1960 rules  were  made   by   the         Government   of  Bombay the State of Bombay  was  bifurcated         into  the State of Maharashtra and Gujarat.  The  Government         of  Gujarat passed a resolution on May  1,   1960  providing         that  all rules, regulations, circulars etc., prevailing  in         the  former State of Bombay will continue to operate in  the         new State  of  Gujarat  until changed or modified.  In  1965         the  Government of Gujarat modified the 1960 rules in  exer-         cise of the powers conferred by the proviso to Art.  309  of         the Constitution and introduced a new clause 10 in the  1960         rules.             On  the  bifurcation certain  permanent  and   temporary         posts   of  Deputy Engineers were allocated to the State  of         Gujarat.   Some  of the promotee Deputy Engineers  from  the         lower ranks were also allocated to the State of Gujarat  and         several  of  them having completed three  years’  qualifying         service had become eligible for confirmation under r.  8(ii)         of the 1960 rules but were not confirmed.             The  two appellants who were recruited as  Overseers  in         1953  were  promoted temporarily as Deputy Engineers in 1959         and  1957  and were confirmed as Deputy Engineers  in  1970.         Respondents  Nos.  2 and 3, who were direct  recruits,  were         appointed  as  Deputy Engineers in 1963 and  1959  and  were         confirmed in 1965 and 1961.             The two appellants alleged that though they had been  in         continuous service as Deputy Engineers since 1959 and  1957,         respondents 2 and  3,  who  were appointed in 1963 and  1959         were  shown  as senior to them and that  their  (the  appel-         lants’)  seniority  should have been fixed  under  the  1941         rules.   In any case the 1960 rules could not take away  the         right  accrued to them under the rules existing at the  time         of  their promotion in 1959 and 1957 and that r.  8(iii)  of         the  1960 rules and r. 33 of the 1970 rules were ultra vires         Arts. 14 and 16 of the Constitution.             The respondents on the other hand contended that neither         the  1941 rules nor 1963 rules had any application  to  them         and  that  under the 1960 rules which  superseded  the  1939         rules, posts of Deputy Engineers were required to be  filled         in  by direct recruits and promotees in the ratio  of  75:25         and  the question of seniority of the appellants  could  not         arise  until they were confirmed and their  seniority  fixed         from  the date of confirmation in terms of r. 8(iii) of  the         1960 rules.             HELD:I  (a)  Except  the Bombay Rules of  1939  and  the         Gujarat  notification dated August 21, 1965 the rest of  the         rules  are in the nature of executive  instructions,  which,         unlike rules regulating recruitment and conditions of  serv-         ice framed under the proviso of Art. 309 of the Constitution         or s. 241(2)(b) of the Government of India Act, 1935  cannot         have  any  retrospective effect.  The rules of  1941,  1960,         1963, 1965 and 1970 were not framed by the State  Government         in  the exercise of constitutional or statutory power.   The         rules of 1960 and 1970 were issued "By order and in the name

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       of the Governor" but  that         777         does  not mean that the two sets of rules must be deemed  to         have  been  made under Art. 309 of  the  Constitution.   All         executive action of the Government of a State is required by         Art. 166 to be taken in the name of the Governor.         [790 B-E]             (b)  The  1939 rules have constitutional  authority  but         being  rules made "to regulate the methods  of  recruitment"         they  afford  no  assistance in finding a  solution  to  the         problem.  They neither fix a quota for recruitment from  the         two avenues nor do they provide in any other manner a  guide         line  for  fixation of seniority as between  appointees  re-         cruited from different sources.  Rule 10 is beside the point         because  the  crux of the promotees’ grievance is  not  that         they are denied opportunities of promotion but that they are         discriminated against in the matter of seniority in compari-         son with the direct recruits. [790 E-G]             (c)  The  departmental promotees are being  treated  un-         equally  in the matter of seniority because whereas,  promo-         tees rank for seniority from the date of their confirmation,         seniority  of direct recruits is reckoned from the  date  of         their initial appointment.  The disparity is so glaring that         though  direct recruits have to successfully complete a  two         year  probationary  period before  confirmation,  even  that         period  is not excluded while counting their  seniority.   A         promotee  ranks  below  the direct recruit even  if  be  has         officiated  continuously  as  a Deputy  Engineer  for  years         before  the  appointment of the direct recruit is  made  and         even if the promotees could have been confirmed in an avail-         able  substantive  vacancy  before the  appointment  of  the         direct recruit. [789 B-D]             2(a) The 1941 resolution expressly. governed the senior-         ity of direct recruits and promoted officers in all  provin-         cial services except the Bombay Service    Engineers,  Class         I.  Since Deputy Engineers do  not belong to  Class service,         their seniority was governed by the Resolution. [791 A]             (b)  The wording of the Resolution leaves no doubt  that         the  Government of Bombay applied  two different   standards         for fixing  inter se seniority of direct recruits and promo-         tees  appointed as Deputy Engineers,  The former were  enti-         tled to reckon their seniority with  effect from the date of         their  initial appointment on probation while the  seniority         of  the  latter had to be determined with reference  to  the         date of their promotion to substantive vacancies subject  to         the  further qualification that there was no break in  their         service  prior  to their confirmation  in  those  vacancies.         Thus,  for the purposes of seniority, the promotees  had  to         depend firstly on the availability of substantive  vacancies         and  secondly on the arbitrary discretion of the  Government         to  confirm or not to confirm them in those vacancies.   The         fact that a substantive vacancy had arisen and was available         did not proprio vigore, confer any right on the promotee  to         be confirmed in that vacancy.  The 1941 rules contained  the         real  germ  of discrimination because the promotees  had  to         depend  upon  the unguided pleasure of  the  Government  for         orders  of confirmation.  In the pre-Constitution era,  such         hostile treatment had to be suffered silently as a necessary         incident of government service. [791 B-D]             (c) It is difficult to uphold the claim of the promotees         that the 1941 rules were modified by the letter dated  Janu-         ary  11, 1949.  The Chief Secretary’s letter cannot  improve         the promotees’ case. [791 G]             (d)  The part of the letter on which the promotees  rely         deals exclusively with the case of Deputy Collectors   which

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       makes  it  difficult to extend the benefit of what  is  said         therein to Deputy Engineers, working in an entirely  differ-         ent  branch  of  government service.   The  Association  had         addressed   its  letter, not to the Ministry  which  handled         problems  of  Engineering Services, but to the  Ministry  of         Home  and  Revenue,  the latter of which  was  concerned  to         consider  the grievance of Deputy Collectors.   The  opening         sentence   of  paragraph 2 of the  Chief  Secretary’s  reply         shows that he was referring to a class of service in which a         quota system was then operating, which did not apply  either         under the 1939 or under the 1941 rules to Engineering  Serv-         ices. [792 A-C]         778             3(a)  Clause  8(iii) is  highly  discriminatory  against         promotees  and  accords  preferential  treatment  to  direct         recruits and must be struck down as unconstitutional.             (b)  There  is  no Universal rule either  that  a  cadre         cannot consist of both permanent and temporary employees  or         that it must consist of both.  That is primarily a matter of         rules  and regulations governing the particular  service  in         relation to which the question regarding the composition  of         a cadre arises. [793 E]             Bishan Sarup Gupta v. Union  of  India, [1973] 3  S.C.C.         1  and A. K. Subraman v. Union of India, [1975] 2 S.C.R. 979         referred to.         Ganga  Ram  & Ors. v. Union of India, [1970]  3  S.C.R.  481         distinguished.             (c) It is difficult to  hold that the officiating Deputy         Engineers  do   not  belong to Class II of  the  Bombay  and         Gujarat Service of Engineers. [794 A]             (d) The contention that in view of cll. (i) and (ii)  of         r.  8 of the 1960 rules officiating Deputy Engineers do  not         belong  to Class Ii cadre of the Bombay and Gujarat  Service         of  Engineers must be rejected since the point is  concluded         by  the  decision of this Court in P.Y. Joshi  v.  State  of         Maharashtra  [1970]  2 SCR, 615.  It was held in  that  case         that  the list referred to in cl. (ii) of r. 8 is  the  same         list  which is referred to in the latter part of cl. (i)  of         that rule which speaks of "future recruitment".  Consequent-         ly  a promoted officiating Deputy Engineer, who belonged  to         Class  II  cadre,  was held entitled to  be  considered  for         promotion  under r. 7 to the post of  officiating  Executive         Engineer if he had put in 7 years’  qualifying service.  The         eligibility  for promotion did not require that the  offici-         ating  Deputy  Engineer must have put in  7  years’  service         after the date of confirmation. [795 B-E]             (e) It must necessarily follow that "promotion" with the         latter part of r. 8(i) relating to future recruitment speaks         of  means promotion as an officiating Deputy  Engineer  from         the   Select List prepared  under r.  8(ii).  A person  thus         promoted  from  the  Select List as  an  officiating  Deputy         Engineer  is as full and complete a member of the  Class  II         cadre  as a person directly appointed as a Deputy  Engineer.         In  this view of the matter, the prescription contained   in         the  closing sentence of r.  8(i)  that "the  number of such         promotions  shall  be about 1/3rd the number of  direct  re-         cruits  appointed in that year" would apply to  initial  ap-         pointments  and cannot govern the confirmation of those  who         have  already  been appointed to Class II cadre.   In  other         words, direct recruits and promotees have to be appointed in         the  proportion of 75: 25 to Class II cadre, the former  as,         Deputy Engineers and the latter as officiating Deputy  Engi-         neers, but once that is done, the quota rule would cease  to         apply  with  the result that confirmations in  the  post  of         Deputy Engineers are not required to be made in the  propor-

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       tion in which the initial appointments had to be made.  Thus         r.  8(i) only requires that for every three direct  recruits         appointed  as  Deputy. Engineers only one promotee  can   he         appointed  as officiating Deputy Engineer.  The rule  cannot         be  construed to mean that for every three confirmations  of         Deputy Engineers not more than one promotee can be confirmed         as Deputy Engineer. [795 F-H, 796 A]         A.  K. Subraman v. Union of India [1975] 2 S.C.R.  979  fol-         lowed.             (f) Though drawn from two different sources, the  direct         recruits  and  promotees constitute in the  instant  case  a         single  integrated cadre.   They discharge  identical  func-         tions,  bear similar responsibilities and acquire  an  equal         amount  of experience in their respective assignments.   Yet         clause  (iii) of r. 8 provides that  probationers  recruited         during  any  year shall in a bunch be treated as  senior  to         promotees confirmed in that year.  This formula gives to the         direct recruit even the benefit of his one year’s period  of         training  and  another year’s period of  probation  for  the         purposes of seniority and denies to promotees the benefit of         their  long  and  valuable experience.  If  there  was  some         intelligible  ground for this differentiation bearing  nexus         with  efficiency in public services, it might  perhaps  have         been possible to sustain such  a         779           classification.   Instead  of  adopting  an   intelligible         differentia,  r. 8 (iii) leaves  seniority to be  determined         on the sole touchstone of confirmation. Confirmation is  one         of  the inglorious uncertainties of government  service  de-         pending  neither.on efficiency of the incumbent nor  on  the         availability of substantive vacancies.           In the instant case officiating Deputy Engineers were  not         confirmed  even though substantive vacancies were  available         in which they could have been confirmed. [796 C-G]           (g) There is no substance in the plea that direct recruits         must be given  weightage on the ground that the  engineering         services  require  the infusion of new blood since it  is  a         highly  specialised  service.  Were it  so,  the  Government         would  not have itself reduced the proportional  representa-         tion  gradually  so  as   to tilt the scales  in  favour  of         promotees.  Besides, the plea that engineering   service  is         a  specialised service is made not by the Government but  by         recruits   who are interested in so contending.  Nor is  the         apprehension  justified that  the higher echelons  of  engi-         neering service will in course of time be manned    predomi-         nantly by promotees.  Those recruited directly as  Assistant         Engineers    in Class I can, under the rules,  officiate  as         Executive  Engineers  after  four  years’  service  and  are         eligible  for confirmation as Executive Engineers after    a         total  service of 9 years.  Promotees can hardly ever  match         with that class  in terms of seniority. [797 A-C]         B.S.  Gupta v. Union of India [1975] 1 S.C.R. 104  and  V.B.         Badami  v.   State  of Mysore [1976] 1  S.C.R.  815  distin-         guished.           In the instant case rule 8(ii) adopts seniority-cure-merit         test for preparing  the state-wise Select List of  seniority         and  yet cl. (iii) rejects the test  of   merit  altogether.         The vice of that clause is that it leaves the valuable right         of  seniority to depend upon the mere accident of  confirma-         tion.   That under  Arts. 14 and 16, is  impermissible  and,         therefore,  r. 8(iii) must be   struck  down as  unconstitu-         tional. [797 G-H]           4. The High Court was right in rejecting the contention of         the promotees  that the 1963 rules superseded the 1960 rules         by  implication and, that, therefore, the  State  Government

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       had no power or authority to apply the criterion of seniori-         ty  fixed under the 1960 rules, after their repeal  by  1963         rules.  The  quota system was the very essence of 1960 rules         and  if it was desired to   abrogate that system it  is  un-         likely that the 1963 rules will not even refer   to those of         1960.   The rules of 1941 having been  expressly  superseded         by   1963 rules, it is difficult to accept that  along  with         the  1941  rules the resolution of 1963 would not  have  re-         ferred to the 1960 rules also.  Secondly, the  resolution of         1970 of the Government of Maharashtra expressly  superseded-         the  1960  rules which shows that the latter were  in  force         until 1970 and were  not superseded by the 1963 rules.   The         resolution of 1970 refers to all previous resolutions except         the resolution of 1963 which shows that the latter  was  not         applicable to engineering services. [798 C-E]               5.  Rules 33 of the 1970 rules in so far as  it  makes         seniority   dependent  upon the fortuitous  circumstance  of         confirmation, is open to the same objection as r. 8(iii)  of         the 1960 rules and must be struck down for identical rea         sons. [800 A-B]              6. The circulars dated January 12, 1961, March 15, 1963         and October 18, 1968 which the promotees want to be enforced         were  issued  by  the Finance Department and  being  in  the         nature  of  inter-departmental  communications  they  cannot         confer any right on the promotees. [800 A-B]              7.  The  High Courts were right on the  view  that  the         rules  under consideration do not in any manner violate  the         provisions  of  the Bombay Reorganisation Act. 11  of  1966.         [800-B]              8.  The  argument in the Gujarat  Writ  Petitions  that         though  originally  the  1960 rules were in  the  nature  of         executive instructions they have acquired a statutory  force         and character by reason of their amendment by the rules of         780         1965  was  rightly rejected by the High Court,  because  all         that was done by the 1965 rules was to introduce a new rule,         r.  10, in the 1960 rules.  The rules of 1960  were  neither         reiterated  nor reenacted by the rules of 1965; and the  new         rule  introduced  into the rules of 1960 is not  of  such  a         character  as to compel the inference that  the  rule-making         authority  had applied its mind to the rules of 1960 with  a         view to adopting them. [798 G-H, 799 A]         Bachan  Singh v. Union of India, A.I.R. 1973 S.C. 441  inap-         plicable.

JUDGMENT:         CIVIL APPELLATE JURISDICTION: C.A. No. 1113 of 1974.             (From  the Judgment and Order dated the  15/16/17-1-1974         of the Bombay High Court in S.C.A. No. 815 of 1972)         AND         CA No. 242 of 1974             (From the Judgment and order dated the 14-7-1973 of  the         Gujarat High Court in S.C.A. No. 1418 of 1971).         C. As. Nos. 285-287 of 1974.             (From  the  Judgment and Order dated  the  14-7-1973  of         the  Gujarat  High  Court in S.C.A. No.  1418/71,  422/70  &         1099/69 respectively).          K.  K Singhvi in CA 1113/74, ,4. K. Garg, S.C. Agarwal  and         V.J. Francis for the appellants in CAs 1113/and 242/74 & for         respondents Nos. 2, 3, 5, 6-13 in CA No. 285, Rr. 2-18 in CA         286 and for Rr. 3, 7, 16-23, 28 and 33, 35-39, 41-43 and  45         in CA 287/74.           M.C. Bhandare and M.N. Shroff, for respondent’s 1 and 2 in

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       CA 1113/74.             M.V.  Paranjpe,  M.K. Joshi, K. Rajendra  Choudhary  and         Mrs. Veena Devi, for respondent No. 3 in CA No. 1113/74.             M.K. Ramamurthi, Vimal Dave and Miss Kailash Mehta,  for         the appellants in CAs 285 to 287774 and for the  respondents         No. 2 and 3 in CA 242/74.             D.V.  Patel, in CA 285 to 287/74, P.H. Parekh  and  M.N.         Shroff  for the respondent No. 1 in CAs Nos. 242/74 and  285         to 287 of 1974.         The Judgment of the Court was delivered by             CHANDRACHUD,  J.--This is a group of five appeals,   one         from  Maharashtra  and  four from  Gujarat.    They  involve         substantially identical questions and since the appeal  from         the judgment of the Bombay High Court was argued as the main         appeal,  we  will  refer ’to the facts of  that  appeal  and         indicate  at  appropriate places if there  is  any  material         difference between those facts and the facts leading to  the         Gujarat appeals.   Civil Appeal No. 1113 of 1974 from  Maha-         rashtra  is    by certificate granted by the High  Court  of         Bombay  under  Art. 133(1) (a) & (b)  of  the  Constitution.         Civil Appeals Nos. 242 and 285-287 of 1974 from Gujarat  are         also by certificate granted by the Gujarat High Court  under         art. 133(1) of the Constitution.             Special  Civil  Application No. 815 of  1972  which  has         given rise to Civil Appeal No. 1113 of 1974 was disposed  of         by   a Division Bench of the Bombay High Court by its  judg-         ment  dated 15th,  16th and 17th January, 1974.    The  four         Gujarat appeals arise  out  of         781         Special  Civil Applications Nos. 1099 of 1969, 422  of  1970         and  1418    of 1971 which were disposed of by a Full  Bench         of  the  Gujarat High Court by its judgment dated  July  14,         1973.             The  complexity of the questions involved in  these  ap-         peals    has  been  expressed by the Bombay  High  Court  by         saying that the writ petitions before it involved  "ticklish         and complicated questions" and by the Gujarat High Court  by         saying that though it had many occasions to consider complex         problems  pertaining  to service laws, there  was  "no  case         comparable"  to  the writ petitions filed before it  in  the         instant case.  The learned Chief Justice (Bhagwati, J.)  who         delivered the judgment of the Full Bench obserVes that these         questions of "unrivailed complexity" had caused considerable         anxiety to the Court in reaching a satisfactory  conclusion.         We  share this anxiety which  is further heightened  by  the         diametrically  opposite  and  entirely  inconsistent  stands         taken by the State governments from time to time. Evidently,         the State governments did not know their own mind and  being         unable to take up a firm and consistent stand, they defended         the  various  Writ  petitions filed against  them  by  their         employees according to the mood of the passing moment.  That         must be deprecated.             The appeals raise the familiar question of seniority  in         service,  the  competing groups being promotees on  the  one         hand  and  direct  recruits on the other, to  the  posts  of         Deputy  Engineers.   The writ petitions were filed  and  de-         fended  by the rival groups in a representative capacity  so         that,  our decision will bind not only the  parties  thereto         but  all others whom, under the relevant provisions  of  the         Code of Civil Procedure, they were permitted to represent.             Taking the facts of the Maharashtra case, the two appel-         lants therein were. initially recruited as Overseers in 1953         and were promoted temporarily as Deputy Engineers, in  Janu-         ary  1959  and October 1957 respectively.   They  were  con-         firmed  as Deputy Engineers after     the coming into  force

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       of  certain  rules framed on February 19,  1970.    The  1st         respondent to the appeal is the State of Maharashtra.    The         2nd and 3rd respondents were appointed directly on probation         as Deputy Engineers.   They are Engineering Graduates but so         are the appellants. Respondents 2 and 3 qualified for direct         appointment after passing  a competitive examination in 1963         and  1959  respectively.    They were  confirmed  two  years         later, in 1965 and 1961 respectively.             The grievance of the appellants is that  notwithstanding         the  length of their continuous service as Deputy  Engineers         since  1959  and  1957, respondents 2 and 3  were  shown  as         senior to them in the Cadre  of Deputy Engineers though they         were appointed later in 1963   and 1959 respectively.   ’The         appellants claim that their seniority should have been fixed         under the rules framed by the then Government   of Bombay on         November  21,  1941 as clarified by the Chief  Secretary  to         that  Government  by  his letter  dated  January  11,  1949.         According  to  them,  the rules flamed  by  the  Maharashtra         Government  on  April 29, 1960 cannot take  away  the  right         which had accrued to them  under the rules existing fat  the         time  of their promotion in 1959 and  1957.  They  challenge         the validity of rule 8(iii) of the 1960 rules and   of  rule         33  of the 1970 rules aS being violative of Arts. 14 and  16         of the         782         Constitution.    They also challenge the 1970 rules  on  the         ground  that they lack approval of the  Central  Government,         thereby  violating  the proviso to s.81 (6)  of  the  Bombay         State  Reorganisation Act of 1960. According to  the  appel-         lants,  the  1960 rules were superseded by the  rules  dated         July  29, 1963 and still the State Government  continued  to         apply the defunct rules of 1960.   On these grounds,  broad-         ly, the appellants filed a writ petition in the Bombay  High         Court  on  behalf of themselves and all  those  promoted  as         Deputy Engineers in Class II of the Maharashtra  Engineering         Service.             Putting it as briefly as one may, the, sum and substance         of   the stand taken by respondents 2 and 3 is that  neither         the 1941 rules nor the 1963 rules are applicable to  employ-         ees  in  Maharashtra  Engineering Service.    The  posts  of         Deputy  Engineers,  according to them and according  to  the         State  of  Maharashtra,  were required to be  filled  in  by         direct   recruits   and   promotees  in   the   ratio     of         75 : 25 under   the   1960      rules   which  had    super-         seded    the earlier  rules  of  1939.   Therefore,      ac-         cording    to    them,   the question of  seniority  of  the         appellants  could  not possibly arise until they  were  con-         firmed,  and seniority has to be fixed from  the  respective         dates  of confirmation in terms of rule 8(iii) of  the  1960         rules.   The  Government of Maharashtra contended  that  the         confirmation  of   appellants depended  necessarily  on  the         availability of vacancies allotable to them within the quota         of  25% of the total vacancies, and delay in passing  orders         of  confirmation was inevitably caused by the fact that  the         number  of officiating Deputy Engineers was much too  large.         In  order to rectify the somewhat  unsatisfactory  position,         the  State Government, according to its  contention,  framed         the  1970 rules, altering the ratio of direct  recruits  and         promotees from 75: 25 to 34: 66, as a result of which sever-         al promotees were confirmed.   Even prior to that, according         to the State Government, whenever vacancies occurred in  the         substantive  posts which were required to be filled  is  ac-         cording  to the prescribed ratio, those vacancies were  duly         filled in from amongst the officiating Deputy Engineers  and         they were given anterior dates of, confirmation with  effect

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       from  the  dates when the vacancies had  actually  occurred.         The respondents disputed that rule 8(iii) of the  1960 rules         and rule 33 of 1970 rules were unconstitutional or otherwise         invalid.             Before  examining  the merits of these  contentions   it         would   be  necessary,  for a proper  understanding  of  the         issues involved in the case, to set out briefly the  history         of  the Engineering Service and the background in which  the         various rules came to be framed.             The Engineering Service in the then province ’of  Bombay         consisted,  prior  to 1937, of (i)  the  Indian  Engineering         Service  which  was an All India Service,  (ii)  the  Bombay         Subordinate  Service of  Engineers,  (iii)Supervisors,  both         permanent  and  temporary,  and  (iv)  temporary  Engineers,         appointed  annually.    The Bombay Subordinate   Service  of         Engineers consisted of non-gazetted Class III employees,  in         which  2 posts used to be filled in annually by  direct  re-         cruitment  on  the basis of the results of  the  examination         held for Diploma in Civil Engineering.   The remaining posts         used to be filled in by promotion from the         783         rank of temporary Overseers.   On March 22, 1937 the Govern-         ment  of  Bombay  in the Public Works  Department  passed  a         resolution  reorganizing  the  Engineering  Service.    This         resolution  contemplated the creation of two new  Provincial         Engineering Services to be designated as Bombay  Engineering         Service  Class  I and Bombay Engineering Service  Class  1I.         The cadre strength of Class I Service was fixed initially at         36 while that of Class II Service was fixed at 80.  Class  I         Service comprised the apex posts of Chief Engineer, Superin-         tending  Engineer  and Executive Engineer,  and  the  junior         posts of Assistant Engineers. Class II Service consisted  of         Deputy Engineers only.             On September 21, 1939 the Government of  Bombay   passed         a  resolution adopting rules for regulating the  methods  of         recruitment  to the posts of Assistant Engineers and  Execu-         tive  Engineers in Class I Service and the posts  of  Deputy         Engineers in Class II Service. These rules were made by  the         Governor of Bombay in exercise of the powers conferred by s.         241(2)  (b)  of the Government of India Act  1935  and  were         called:  "Recruitment Rules of the Bombay Service  of  Engi-         neers  (Class 1 and Class II)." The rules appear at Item  53         is  Section  V of A  endix C to the  Bombay  Civil  Services         Classification  and  Recruitment  Rules  under  the  heading         "Bombay Service of Engineers."             Rule  2  of the 1939 Rules laid down the method  of  re-         cruitment  to the Bombay Service. of Engineers, Class I,  by         providing that   such recruitment was to be made either  (a)         by  nomination under the guarantee given to the  College  of         Engineering,  Poona, or (b) by promotion from  the  existing         Bombay  Service of Engineers or from the Bombay  Service  of         Engineers  Class II.   Rule 3 provided that as  regards  the         recruitment from source (a), such number of appointments  as         may  be fixed by the Government from time to. time would  be         made  from amongst the students of the College of  Engineer-         ing, Poona, who had passed the examination for the Degree of         B.E. (Civil) in First Class. The candidates. so recruited by         nomination  were to be appointed   in the first instance  as         Assistant  Engineers  on  probation for two   years  and  on         completion  of  the  probationary period, they  Were  to  be         confirmed as Assistant Engineers.              Rule  10  of the 1939 Rules prescribed  the  method  of         recruitment  to  the Bombay Service of Engineers  Class  II.         It  provided  that recruitment of Class II service shall  be         made either (a) by nomination under rule 11 under the  guar-

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       antee given to the College of Engineering, Poona, or (b)  by         promotion from any of the three prescribed sources.    Those         sources  were (1 ) the Bombay Subordinate Engineering  Serv-         ice,  (  2 ) Permanent or temporary Supervisors and  (  3  )         Temporary Engineers appointed on annual sanction.   Rule  11         provided   that such number of appointments as may be  fixed         by  the Government from time to time shall be made  annually         from  amongst the students   of the College of  Engineering,         Poona,  who  have passed the examination for the  Degree  of         B.E. (Civil).   Every such candidate recruited by nomination         was  required by rule 14 to serve intially as a  "candidate"         for  one  year  on the expiry of which period  he  would  be         appointed  as a Deputy Engineer on probation for  one  year.         On  the satisfactory completion of the probationary  period,         the candidate would be eligible for confirmation as a Deputy         Engineer.         784         The guarantee envisaged by rules 2(a) and 10(a) of the 1939         rules  was  given by the Government to the students  of  the         College of Engineering, Poona, under a resolution dated July         12,  1940.    The guarantee operated in  different  measures         until it was finally withdrawn by a resolution dated May 27,         1947.   The last batch of students who obtained the  benefit         of the guarantee were those that passed the examination  for         the Degree of B.E. (Civil) in 1949.         By  a resolution dated November 25, 1950 the  Government  of         Bombay appointed a Committee under the Chairmanship of Shri         Gurjar  to  examine the, question of future  recruitment  to         Engineering  Services,  Classes I and II.    That  Committee         submitted  its   recommendations  to  the  Government  after         prolonged deliberations but since the implementation of  the         recommendations  had to be deferred, the Government  started         making  appointments to both classes of services  by  direct         recruitment  through  the Public  Service  Commission.  Such         appointments were made from the year 1950.  As stated earli-         er, the cadre strength of Class I and Class II Services  was         fixed  initially at 36 and 80 permanent posts  respectively.         But  with  the launching of new  development  projects,  the         strength  of  both cadres had  to be expanded from  time  to         time by addition to the permanent posts. In    fact, for  an         early  and  effective achievement of the  target  it  became         necessary  to make appointments of several temporary  Execu-         tive  Engineers and Deputy Engineers.  On November  1,  1956         there  were  360  temporary posts  of  Deputy  Engineers  as         against 200 permanent posts. By April 29, 1960 these numbers         had risen respectively to 600 and 400. One of, the bones  of         contention  between the parties is whether  these  temporary         posts of Deputy Engineers were additions to Class II cadre,         even  if  temporary,  or whether the  temporary  posts  were         wholly  outside the cadre of Class II Service. It is  neces-         sary to mention at this stage that appointments as officiat-         ing  Deputy Engineers to such temporary posts were  made  by         promotion from amongst the members of the Bombay Subordinate         Service  of  Engineers as also from  amongst  permanent  and         temporary  Supervisors.    But no direct  appointments  were         made by the Government to these temporary posts of officiat-         ing  Deputy Engineers.   The direct appointments  were  made         only  to permanent posts because such appointees were  prom-         ised confirmation after two years from the date of  appoint-         ment,  during  which period they were expected  to  complete         their probation.            On April 29, 1960 the Government of Bombay in the  Public         Works  Department  passed a resolution  embodying  rules  of         recruitment    to  Bombay Service of Engineers Class  I  and         Class  II.  These rules continued the existing  division  of

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       Engineering  Services  into Class I and Class  II  and  they         provided that appointments to both classes of service should         be  made by nomination as well as by promotion.  As  regards         appointments by nomination it was provided that they  should         be  made through competitive examination held by the  Public         Service Commission and that for both the classes of  service         there should be a common examination.  Candidates  recruited         directly  were  to  be confirmed after two  years  in  their         respective cadres, if otherwise found fit. The resolution of         1960  was signed by Under Secretary to the  Government,  "By         order and in the name of the ’Governor of Bombay."         785             The rules regarding recruitment to Class I and Class  II         Engineering Service were set out in the Appendix to the 1960         Resolution. Rule 1 of those rules provided that appointments         to both classes of services shall be made either by  nomina-         tion  after  a competitive examination held  by  the  Public         Service Commission or by promotion from amongst the  members         of  the  lower cadres concerned, provided however  that  the         ratio of appointments by nomination and promotion shall,  as         far  as practicable, be 75: 25.  By rule 2,  candidates  ap-         pointed  to either of the services by nomination were to  be         on  probation  for two years.   They were to serve,  in  the         first  instance, as Trainees for a period not exceeding  one         year and thereafter they were to be placed in a probationary         capacity  in  charge of a sub-division for a period  of  not         less than one year.   On the expiry of the aforesaid  period         of  two years they were to be confirmed as  Assistant  Engi-         neers in Class I or as Deputy Engineers in Class II, as  the         case may be, if favourably reported upon by their superiors.         Rule  2  further  provided  that Assistant Engineer would be         confirmed  as  Executive  Engineer after  9  years’  service         unless  the  period was  extended by the  Government.  Under         rule 3, candidates  securing higher places in  the  competi-         tive  examinations were to be appointed in Class  I  service         according  to  the  number of vacancies  declared  for  such         recruitment in that cadre while candidates securing the next         higher  places were to be offered appointments to  Class  II         service.   Rule 6 of the 1960 Rules read thus:                       "6.  (i) The number of posts to be  filled  in                       the Bombay Service of Engineers,  Class I,  by                       promotion  of officers from the Bombay Service                       of  Engineers Class II shall be about  25  per                       cent of the total number of superior posts, in                       the  Bombay  Service  of  Engineers,  Class  I                       cadre.    This percentage ’should be aimed  at                       for  confirmations  made after  1st  November,                       1956, subject of course, to Class II  officers                       of the requisite fitness and length. of  serv-                       ice being available.                       (ii)  For absorption into Class I, a Class  II                       officer   must  be  in  the  permanent  Bombay                       Service  of Engineers, Class II cadre,  should                       have at least 15 years’ service to his  credit                       in  Class  II  in   temporary  and   permanent                       capacities, and should be holding an officiat-                       ing  divisional  rank,  at the  time  of  such                       absorption.    On such absorption,  the  Class                       II officer shall be confirmed as an  Executive                       Engineer.                       (iii)    The seniority of the Class II  promo-                       tees  shall  be fixed below the bunch  of  the                       Assistant  Engineers, any  one of whom is  duo                       for confirmation as Executive Engineer  during                       the  calendar year, provided that an Class  II

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                     promotee  shall be placed senior to  a  direct                       recruit  to Class  I  Assistant  Engineer  who                       has  been officiating as  Executive   Engineer                       from  a date earlier than the class II  promo-                       tee.   In the latter ease, the Class II promo-                       tee  though  holding  a post  and  lien  as  a                       confirmed  Executive Engineer  shall be                       786                       shown both under Permanent Executive Engineers                       and  also  along with the  directly  recruited                       Class  I Assistant Engineers, with a  suitable                       remark  under  the permanent  Executive  Engi-                       neers list.   This is also subject to  further                       conditions as in paragraph 7 below."         In  spite  of  the provisions contained in rules  2  and  6,         sufficient  number  of direct recruits ,to Class  I  service         were not available,  which caused the apprehension that  for         the next few years it may not be possible to fill 75% of the         superior posts from amongst direct recruits to Class I.   In         order  to  meet this. situation, it was provided by  rule  7         that,  as far as possible, promotions as officiating  Execu-         tive  Engineers  shall be so made that  the  promotee  under         consideration  from  Class II has to his credit at  least  6         years’  longer service than a promotee  under  consideration         from Class I,  subject, generally, to  the condition that  a         Class  I  officer shall not hold a divisional rank  at  less         than  4, and a Class II officer at less than 7 years’  serv-         ice.  Clause (iii) of rule 7 emphasised that if  any  promo-         tions  were  made from Class. II to Class I service  to  the         confirmed  posts  of Executive Engineers  beyond  the  quota         available  to Class II service personnel, there, would  have         to  be a consequent reduction in the promotion of  Class  II         employee.s to Class I appointments in the following years in         order  to work  up the overall percentage of 75:25.   Clause         (iv)  of  rule 7 provided that if any confirmation  is  made         from the bunch of temporary Executive Engineers. who had  no         lien  on  any  cadre,  such  confirmation  shah  be  counted         against the quota of 25% which was meant for the  non-direct         recruits to Class I service.             Since  the  challenge to the vires of  rule  8(iii)  has         occupied  the best part of the arguments and since the  High         Court  of Bombay and Gujarat have differed on that  question         it would be necessary to set out the whole of rule 8.                       "8.  (i)   The  Sub-Divisional  posts  in  the                       Department  are  at present manned  by  direct                       recruits.  to  Bombay  Service  of  Engineers,                       Class  II cadre, Deputy  Engineers   confirmed                       from  subordinate  Service  of Engineers,  the                       temporary  Deputy Engineers recruited  by  the                       Bombay Public Service Commission,  Officiating                       Deputy    Engineers    and    similar    other                       categories..    These various  categories  are                       being  compiled  into two lists  only,    viz.                       Bombay Service of Engineers Class 11 cadre  of                       permanent  Deputy  Engineers  and  a  list                       of  officiating Deputy Engineers.  The  future                       recruitment  to Bombay Service  of  Engineers,                       Class II cadre, shall be made by nomination of                       candidates  recruited  direct  by  competitive                       examination,  held by the Commission   and  by                       promotion from the list of officiating  Deputy                       Engineers.    The  number of  such  promotions                       shall be about one third the number of  direct                       recruits appointed in that year.                       (ii)   All  direct recruitment,  of  temporary

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                     Deputy Engineers having been stopped,  further                       officiating vacancies will be                       787                       manned  from  the  ranks  of  the  subordinate                       Service  of Engineers.   For this  purpose,  a                       State  wide  Select  Seniority  list  will  be                       maintained  of  members  of  the   Subordinate                       Service of Engineers cadre, considered fit  to                       hold sub-divisional charges. The list shall be                       compiled as on 30th June each year.                       For  inclusion in this list, a graduate  shall                       have to, his credit not less than 3, a Diploma                       holder  not less than 8, and  a  non-qualified                       person  not less   than 13 years’  service  as                       Overseer.                       For  confirmation  as a Deputy  Engineer,  the                       officer  would be expected to have put in  not                       less  than  3 years’  service  as  officiating                       Deputy Engineer.                       (iii).  The probationers recruited directly to                       the  Bombay  Service of  Engineers,  Class  II                       cadre in any year shall, in a bunch, be placed                       senior  to  promotees  confirmed  during  that                       year."             The Rules of 1960 were made by the Government of  Bombay         on  April 29, 1960 and within two days thereafter, that  is,         on  May  1, 1960 State of Bombay was  bifurcated  into   the         States of Maharashtra and Gujarat.   With a view to avoiding         any  administrative  difficulty, the Government  of  Gujarat         passed a resolution on May 1, 1960 providing that all rules,         regulations, circulars, etc. prevailing in the former  State         of  Bombay  will  continue to operate in the  new  State  of         Gujarat  until changed or modified by that Government.   The         Rules     of 1960 were amended by the Government of  Gujarat         by a notification dated August 21, 1965 issued in the  exer-         cise of powers conferred by the proviso to art.   309 of the         Constitution.   By  that  notification,  the  Government  of         Gujarat introduced a new clause, clause 10, in the Rules  of         1960 providing that candidates selected through the competi-         tive  examination  and  appointed to posts  in  the  Gujarat         Service  of  Engineers, Class I and Class II,  shall  if  so         required, be liable to serve in any Defence Service or  post         connected  with the defence of India, provided that  such  a         candidate shall not be required to serve as aforesaid  after         the expiry of ten years from the date of his appointment  or         after  attaining  the age of 40 years.   The terms  of  this         Gujarat amendment are not the subject of controversy but  it         became  necessary  to  refer to the amendment  since  it  is         argued  that even if the Rules of 1960, being in the  nature         of  executive  instructions, did not have  statutory  force,         those   rules  acquired  a  statutory  character  by   being         recognised  and  amended by the notification of  August  21,         1965 which was issued under the proviso to art,   309 of the         Constitution.             On the bifurcation of the State of Bombay, 181 permanent         and  220 temporary posts of Deputy Engineers were  allocated         to  the state of Gujarat.  In practice however, 99 permanent         posts of Deputy Engineers were vacant in the State of  Guja-         rat  against which confirmation had to be made by that  Gov-         ernment.  Some of the Deputy Engineers who were promoted  to         those  posts  from lower ranks were also  allocated  to  the         Stare of Gujarat and several of them having         788         completed three years’ qualifying service had become  eligi-         ble   for confirmation under rule 8(ii) of the  1960  Rules.

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       But  they  were denied confirmation in spite of  their  long         service and in spite of the existence of clear vacancies  in         substantive posts of Deputy Engineers. Since the quantum  of         pension also depended in those days on  the average substan-         tive pay, the denial of confirmations to the promotee Deputy         Engineers led to great dissatisfaction amongst them.   Some,         who had officiated in those appointments for several  years,         had  to retire without being confirmed.   On March 28,  1961         the  Government  of Gujarat passed  an  order  provisionally         confirming 37 officiating Deputy Engineers with effect  from         May  1, 1960.   On August 7 1968 it confirmed another  batch         of 26 officiating Deputy Engineers with retrospective effect         from May 1, 1960 and directed that the order of  provisional         confirmation dated March 28, 1961 shall be treated as         final.             In so far as the Gujarat appeals are concerned there are         no further rules or resolutions to be considered.   But  the         Government of Maharashtra issued two. resolutions after  the         bifurcation  of the State of Bombay.   On July 29,  1963  it         passed a resolution laying down principles of seniority  and         on December 19, 1970 it passed a resolution superseding  the         resolution  passed by the Government of Bombay on April  29,         1960.  Rule 33 of the 1970 rules provides:                       "Seniority                       33.  There shall be two parts of the seniority                       list  in  each cadre in Class I and  Class  11                       viz.   Part A of confirmed officers and Part B                       of those who are not confirmed.                       (a) In Part A the names shall be arranged with                       reference to the year of confirmation.                       (b) The confirmed officers shall be treated as                       senior  to  the unconfirmed  Officers  in  the                       respective cadre.                       (c)   In Part B of the seniority list  of  any                       cadre, the names shall be arranged with refer-                       ence  to  the date of  continuous  officiation                       except  where  a promotion in  an  officiating                       capacity  was  by way of purely  temporary  or                       local arrangement."         In Gujarat, there are no resolutions corresponding to, those         of  1963 and 1970 issued by the Maharashtra Government.             Civil  Appeal No. 1113 of 1974 by the  promotees  arises         court  of the judgment dated January 17, 1974 of the  Bombay         High Court dismissing SpeCial Civil Application No. 815,  of         1972  filed  by them against the State and  the  direct  re-         cruits.   Four Special Civil Applications were filed in  the         Gujarat High Court which were disposed of by it by a  common         judgment dated July14, 1973. S.C. As. Nos. 1099 of 1969. 422         of1970  and  957 of 1970 were filed by the  direct  recruits         while  S.C.A. No. 1480 of 1971 was filed by the  promotees.’         The promotees failed in the Bombay High Court but  succeeded         in the Gujarat High Court. Both the High Courts have granted         certificates of fitness for filing appeals in tiffs Court.         789             Before us, Mr. K.K. Singhvi and  Mr. R.K. Garg  appeared         for  the  promotees  while Mr. M.V. Paranjpe  and  Mr.  M.K.         Ramamurti  appeared  for  the direct  recruits.    Mr.  M.C.         Bhandare  appeared for    the State of Maharashtra  and  Mr.         D.V.  Patel for the State of Gujarat. Mr. Patel took a  non-         contentious attitude, which highlights how difficult it  was         for  the  State counsel to support any particular  cause  in         view  of the shifting stand taken up by both the State  Gov-         ernments from time to time.             Several points were raised be,fore us and a large number         of  decisions  were cited in support thereof, but  the  main

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       question for decision in these appeals is whether departmen-         tal promotees and direct recruits appointed as Deputy  Engi-         neers  in the Engineering  Services  of the  Governments  of         Maharashtra  and  Gujarat belong to the same class  so  that         they  must  be  treated with an even hand  or  whether  they         belong to different classes or categories and can  justifia-         bly be treated unequally. Concededly, they are being treated         unequally in the matter of seniority because whereas, promo-         tees rank for seniority from the date of their  confirmation         the  seniority of direct recruits is reckoned from the  date         of  their  initial appointment. The disparity is  indeed  so         glaring  that  though direct recruits have  to  successfully         complete  a two years’ probationary period before  confirma-         tion, even that period  is not excluded while counting their         seniority.   A promotee ranks below the direct recruit  even         if  he  has officiated continuously as Deputy  Engineer  for         years  before the appointment of the direct recruit is  made         and even if he, the promotee, could have been  confirmed  in         an  available  substantive vacancy before the appointment of         the direct recruit.             Learned  counsel  for the direct recruits  have  stoutly         defended  the  preferential treatment accorded to  them   by         contending,  inter  alia, that since the promotees  do.  not         belong  to Class II service until they are  confirmed,  they         have  no fight to. rank for seniority along with the  direct         recruits  who enter that class or cadre on the very date  of         their  initial appointment.   The fact that  the  Government         did not confirm a particular promotee even though a substan-         tive  vacancy  was  available in which he  could  have  been         confirmed cannot, according to the direct recruits, make any         difference to that position.             For facilitating a proper understanding of this  problem         it is necessary to take bird’s eye-view of the various rules         and  resolutions which were passed by the two State  Govern-         ments,  most of which we have already noticed. In  this  be-         half,  attention has to be called particularly to:  (1)  The         rules  framed by the Government of Bombay on  September  21,         1939  under  s. 241 (2)(b).of the Government of  India  Act,         1935;  (2) The rules framed by the Government of  Bombay  on         November  21, 1941 regarding fixation of seniority (3)   The         letter  dated January 11, 1949 written by the  Chief  Secra-         tary,  Government  of  Bombay, to  the  Honorary  Secretary,         Bombay Civil Service Association: (4) The Resolution of  the         Government  Of Bombay dated April 29, 1960 containing  Rules         regarding  recruitment of Class I and Class  II  Engineering         Services and regarding fixation of seniority; (5) The         790         Resolution  of the Government of Maharashtra dated July  29,         1963 laying down principles of seniority; (6)   The  Notifi-         cation   dated August 21, 1965 issued by the  Government  of         Gujarat  under  the proviso to. art.   309 of the  Constitu-         tion,  introducing clause 10 in the Rules of 1960;  (7)  The         Resolution  of the Government of Maharashtra dated  December         19,  1970 superseding the Resolution of April 29,  1950  and         framing  new  rules of seniority; and  (8)    The  Circulars         dated January 12, 1961, March 15, 1963 and October 18,  1968         issued  by the Government of Maharashtra, converting a  cer-         tain  number  of temporary posts into permanent  posts  from         time to time.             It  is common ground that except the Bombay Rules  dated         September 21, 1939 and the Gujarat Notification dated August         21,  1965 the rest of the rules are in the nature of  execu-         tive instructions.  The Rules of 1941, 1960, 1963, 1965  and         1970  were not framed by the State Government  concerned  in         the  exercise  of constitutional or statutory  power.    The

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       Rules of 1960 and 1970 were issued "By order and in the name         of  the  Governor," but that does not lend  support  to  the         construction  faintly  suggested  on behalf  of  the  direct         recruits  that the two sets of rules must be deemed to  have         been  made under art. 309 of the Constitution.   All  execu-         tive action of the Government of a Stale is required by art.         166  of  the  Constitution to be taken in the  name  of  the         Governor.   The appeals have therefore to be disposed of  on         the  basis that except for the Bombay rules dated  September         21, 1939 and the Gujarat Notification dated August 21,  1965         the remaining rules, whether of recruitment or of seniority,         are  in  the nature of executive instructions.    These  in-         structions, unlike rules  regulating recruitment and  condi-         tions of service framed under the proviso to art. 309 of the         Constitution  or s. 241(2)(b)  of  the Government  of  India         Act, 1936, cannot have any retrospective effect.             The  1939 rules called "Recruitment Rules of the  Bombay         Service of Engineers (Class I and Class II)" have  constitu-         tional  authority  but  being rules made  to   regulate  the         methods  of  recruitment",   they afford  no  assistance  in         finding a solution to the rival claims to seniority laid  by         the promotees and direct recruits.   The rules neither fix a         quota  for  recruitment from the two, avenues  nor  do  they         provide,  in any other manner, a guideline for  fixation  of         seniority  as  between appointees recruited  from  different         sources.   Rule 10 on which the promotees rely as  affording         to  them  a  guarantee in the matter of  promotion  is  also         beside the point because the crux of their grievance is  not         that  they  are denied opportunities of promotion  but  that         they are discriminated against in the matter of seniority in         comparison with the direct recruits.             By its resolution dated November 21, 1941 the Government         of Bombay, Political and services Department, directed  that         in  the case of direct recruits appointed  substantively  on         probation, the seniority should be determined with reference         to  the  date of appointment on probation   while   in   the         case   of  officers  promoted  to  "substantive  vacancies",         the  seniority  should be determined with reference  to  the         date  of their promotion to the substantive vacancies,  pro-         vided there  has  been  no  break  in  their  service  prior         to  their confirmation  in  those   vacancies.   This  Reso-         lution expressly         791         governed  the  seniority  of direct  recruits  and  promoted         officers in all provincial services except the Bombay  Serv-         ice  of  Engineers, Class I Since Deputy  Engineers  do  not         belong  to Class I Service, their seniority was governed  by         the  Resolution.   The wording of the Resolution  leaves  no         doubt  that the Government of Bombay applied: two  different         standards  for fixing inter se seniority of direct  recruits         and  promotees appointed as Deputy Engineers.    The  former         were  entitled  to reckon their seniority with  effect  from         the.  date of their initial appointment on  probation  while         the  seniority  of  the latter had to   be  determined  with         reference  to  the date of their promotion  to,  substantive         vacancies,  subject to the further qualification that  there         was no break in their service prior to their confirmation in         those vacancies. Thus, for purposes of seniority, the promo-         tees  had to depend firstly on the availability of  substan-         tive  vacancies and secondly on the arbitrary discretion  of         the Government to confirm or not to confirm them   in  those         vacancies.   The fact that a substantive vacancy had  arisen         and was available did not, proprio vigore, confer any  right         on the promotee to be confirmed in that vacancy.   The  1941         Rules contained the real germ of discrimination because  the

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       promotees  had to depend upon the unguided pleasure  of  the         Government for orders of confirmation.   In the  pre-Consti-         tution  era, such hostile treatment had to be  suffered  si-         lently as a necessary incident of government service.             It  is  curious  that though the  1941  rules  expressly         recite  that  the  principles contained  therein  should  be         observed in determining the seniority of direct recruits and         promoted  officers   in the provincial Services  except  the         Class  I Bombay Service of Engineers, Shri  L.M.  Ajgaonkar,         Deputy Secretary to the Government  of  Maharashtra says  in         his affidavit dated July 25, 1973 that in practice the Rules         of  1941  were  never applied to Class II  officers  in  the         Engineering  Service  and that their seniority  used  to  be         determined by the same rules by which the seniority of Class         I  officers was determined.  It is difficult to accept  this         bare  statement  which  is not even supported  by  a  proper         verification.  Shri Ajgaonkar’s affidavit contains an  omni-         bus  and rolled-up clause of verification at the end,  which         detracts from the weight of his assertion.             Turning next to the letter dated January 11, 1949  writ-         ten  by  the Chief Secretary, Government of Bombay,  to  the         Honorary  Secretary,  Bombay Civil Service  Association,  we         find it difficult to uphold the claim of the _promotees that         the  Rules  of  1941 were modified by  that  letter.     The         letter  was written in answer to, the  representation  dated         July  28, 1948 made by the Bombay Civil Service  Association         to, the Government of Bombay regarding emergency recruitment         to  the Indian Administrative service and  "other  matters".         Paragraph  2 of  the letter says that promotees can have  no         grievance in the matter of seniority since the seniority  of         a direct recruit to the cadre of "Deputy Collectors"  vis-a-         vis  a promoted officer is determined not according  to  the         date  of confirmation but according to the  principles  laid         down  in the Rules of 1941, i.e. with reference to the  date         of  first  appointment on probation in the  case  of  direct         recruits  and of continious officiation in the ease of  pro-         moted officers.  In the first place,         792         this  part of the letter on which the promotees  rely  deals         expressly and exclusively with the case of Deputy Collectors         which  makes  it  difficult, without any  further  data,  to         extend  the benefit of what is said therein to Deputy  Engi-         neers,  working in an entirely different  branch of  govern-         ment  service.   The Chief Secretary’s letter is a reply  to         the  Association’s letter which the promotees did  not  pro-         duce.   The Association had addressed its letter not to  the         Ministry which handled problems of Engineering Services  but         to the Ministry of Home and Revenue, the latter of which was         concerned  to consider the grievance of  Deputy  Collectors.         Lastly  the  opening sentence of paragraph 2  of  the  Chief         Secretary’s reply shows that he was referring to a class  of         service in which a quota system was then operating.   Admit-         tedly,  the quota system properly so-called, did  not  apply         either under the 1939 or under the 1941 rules to Engineering         Services.    The Chief Secretary’s reply  cannot,  therefore         improve the promotees’ case.  But we disapprove that instead         of explaining the circumstances in which the reply was sent,         the State Government should merely say through Shri  Ajgaon-         kar’s affidavit that it craves "leave to refer" to the reply         for  its "true effect".   The Government could  surely  have         produced the letter of the Association which would have  set         this part of the controversy at rest.             That  takes us to the 1960 Rules which are the  meat  of         the  matter. We have already extracted rules 6 and  8  fully         but it will be necessary to recapitulate briefly the  scheme

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       of  the  1960 rules.   Under these rules, the,ratio  of  ap-         pointment  by nomination and promotion of both Class  I  and         Class II Engineering Services was fixed, as far as practica-         ble,  at 75: 25.   Candidates appointed by nomination,  i.e.         direct  recruits, were to be on probation for two years  out         of  which, normally, one year was to be spent  on  training.         On satisfactory completion of probation, the direct recruits         were to be confirmed as Assistant Engineers in Class I or as         Deputy  Engineers in Class II, as the case may be.  For  ab-         sorption  in  Class I, a Class II officer had to be  in  the         permanent Bombay Service of Engineers, Class II cadre.    He         was  further required to have at least 15 years’ service  to         his  credit in Class II in temporary and  permanent  capaci-         ties.    In addition to these qualifications, he has  to  be         holding, at the time of his absorption in Class 1, an  offi-         ciating  divisional rank.   On such absorption the Class  II         officer was to be confirmed as an Executive Engineer.    The         Rules of 1960 show that the seniority of Class II  promotees         was to be fixed below the bunch of Assistant Engineers,  any         one  of whom was due for confirmation as an Executive  Engi-         neer  during  the calendar year. But no Class  II   promotee         could be placed  above a direct  recruit recruited to  Class         I,  who  was officiating as Executive Engineer from  a  date         earlier than the Class II promotee,             Rule 8(1) says that the  various categories which manned         the  Class I sub-divisional posts were being compiled  into.         two lists: (i) One list of Bombay Service of Engineers Class         1I  cadre of permanent Deputy Engineers and (ii)  the  other         list of officiating Deputy Engineers.   The future  recruit-         ment  to Class II cadre was to be made by (a) nomination  of         candidates recruited directly by competitive examination and         (b) promotion from the list of officiating Deputy Engineers,         793         in the ratio of 2/3rd and 1/3rd respectively.   After recit-         ing  that direct recruitment of temporary  Deputy  Engineers         was  stopped, rule 8(ii) provides that  further  officiating         vacancies  would  be  manned from the ranks of the  Subordi-         nate  Service of Engineers.   For this purpose  a  statewise         Select Seniority List was to be maintained of members to the         Subordinate  Service  of Engineers, considered fit  to  hold         subdivisional charge.  For inclusion in this list graduates,         diploma  holders  and non-qualified persons had to  have  to         their  credit  Service of not less than 3, 8  and  13  years         respectively.    For confirmation as a Deputy  Engineer  the         officer  was  expected to have put in not  less  than  three         years’  service as officiating Deputy Engineer.  Then  comes         the much-debated clause (iii) of rule 8:                       "(iii) The probationers recruited directly  to                       the  Bombay  Service of  Engineers,  Class  II                       cadre in any year shall, in                       a  bunch, be placed senior to  promotees  con-                       firmed during that year.         It  is  patent  that this clause  is  highly  discriminatory         against  promotees and accords a preferential  treatment  to         direct recruits.  Its principal justification is said to  be         that  persons who are promoted as officiating  Deputy  Engi-         neers  do not belong to Class II cadre so long as  they  are         not  confirmed as Deputy Engineers, whereas direct  recruits         appointed on probation as Deputy Engineers enter that  class         or  cadre  on the very date of their appointment  since,  on         satisfactory  completion of probation, confirmation is  gua-         ranteed to them. This contention needs careful examination.             There  is no universal rule, either that a cadre  cannot         consist of both permanent and temporary employees or that it         must consist of both.’  That is primarily a matter of  rules

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       and regulations governing the particular service in relation         to  which the question regarding the composition of a  cadre         arises.    For  example, in Bishan Sarup Gupta v.  Union  of         India(1) the cadre of Income Tax officers Class I, Grade  II         was  held  by this Court to consist of  both  permanent  and         temporary pests.   Similarly, in A.K.  Subraman v. Union  of         India,  (2) while holding that the cadre of Executive  Engi-         neers in Class I Central Engineering Service consisted  both         of permanent and temporary posts, it was pointed out by this         Court  that a cadre may consist of permanent posts  only  or         "sometimes, as is quite common these days, also of temporary         posts".  Counsel for direct recruits relied upon a  decision         of this Court in Ganga Ram & Others v. Union of India(3) for         showing  that a cadre cannot consist of temporary posts  but         that  decision  rested on the finding, arising  out  of  the         rules contained in the Indian Railway Establishment  Manual,         that  direct   recruits and promotees  constitute  different         classes.    The question which we have to consider  at  this         stage is not whether direct recruits and promotees appointed         as  Deputy  Engineers in the Bombay and Gujarat  service  of         Engineers belong to different classes but Whether  officiat-         ing Deputy Engineers belong to class II cadre at all.           (1) [1973] 3 S.C.C. 1           (2) [1975] 2 S.C.R. 979            (3) [1970] 3 S.C.R. 481         794             On  the state of the record in the Bombay  and   Gujarat         appeals,  such as it is, we find it difficult to  hold  that         officiating Deputy Engineers do not belong to Class 1I cadre         of  the  Bombay and  Gujarat Service of Engineers.   In  the         Maharashtra  writ  petition,  815  of 1972, as many as  four         affidavits. were filed on  behalf of the State Government by         Shri  L.M. Ajgaonkar.  These are dated  July   25,  December         17, December 21,  1973 and  January 17, 1974.   The question         whether  officiating  Deputy Engineers belong  to  Class  II         cadre  was of the essence of the dispute in the  High  Court         and was squarely raised by the promotees.   Yet, in none  of         the  affidavits did the State Government say that  they  did         not  belong  to Class II cadre.   The last  affidavit  dated         January 17, 1974 was filed after the High Court had dictated         its judgment in open Court for three days, and even then the         affidavit  is  significantly silent on the  question.    The         only explanation of this can be that according to the  State         Government, officiating Deputy Engineers belong  to Class II         cadre.   The resolution dated November 8, 1962 issued by the         Government  of  Maharashtra.  Buildings  and  Communications         Department, shows unmistakably that even temporary posts  of         Deputy  Engineers  were treated as  temporary  additions  to         Class II cadre.   An additional Division with four  subdivi-         sions was sanctioned by that resolution for construction  of         a  section  of National Highway No. 8. Temporary  posts  had         therefore to be created for that project for a period of one         year.    The  resolution says that "The posts  of  Executive         Engineers  and Deputy Engineers should be treated as  tempo-         rary additions to their respective cadres."             In  so  far as the Gujarat appeals are  concerned,  Shri         N.S. Nagrani, Under Secretary to the Government of  Gujarat,         P.W.D.,  filed  an affidavit dated April 28, 1970 in one  of         the writ petitions, 422 of 1970.  He says in that  affidavit         that   "temporary   posts  are  to be treated  as  temporary         additions  to the  respective cadres of B.S.E. Class  I  and         Class  II", that "permanent posts are not created  anew  but         come into existence by the conversion of the existing tempo-         rary  posts into permanent posts" and that "both the  tempo-         rary  posts and permanent posts are two categories of  posts

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       belonging to the same cadre".  To the similar effect is  the         affidavit dated June 22, 1970 made in another writ petition,         1099  of1969,  by Shri A.R. Bhatt, Under Secretary  to,  the         Government of Gujarat, P.W.D.   He says therein that  "there         are no separate categories of permanent and temporary  posts         of Deputy  Engineers.   Temporary post  of Deputy  Engineers         are  treated as temporary additions to the G.S.E.  Class  II         cadre."  Pleading on behalf of the Gujarat Government,  Shri         Bhatt  stoutly  resisted the claim of direct  recruits  that         they had prior claim for consideration for promotion to  the         posts of Executive Engineers on the ground that they  belong         to the Class II cadre while the officiating Deputy Engineers         do not.             We cannot ignore these sworn assertions made solemnly by         officers  of the Maharashtra and Gujarat Governments.    The         fact  that the permanent strength of the. cadre  was  deter-         mined on the basis of permanent posts at any given time,  as         for example when the Bombay         795         Government  passed resolutions on March 22, 1937  and  April         13,  1945 cannot detract from the position that even  tempo-         rary  posts of Deputy Engineers were treated  as  additions,         though temporary, to Class II cadre.   The government  offi-         cers  who swore the affidavits knew of these resolutions and         yet  they  were instructed to state,  a position Which  they         contended  for  more  then  once,  that  officiating  Deputy         Engineers belonged to Class II cadre.             The  learned counsel for the direct recruits laid  great         emphasis on the lists referred to in clauses (i) and (ii) o[         rule 8 for showing that officiating Deputy  Engineers do not         belong  to  Class  11 cadre of Engineering  Service.    This         contention  has to be rejected since the point is  concluded         by  a  decision  of this Court in P.Y. Joshi  v.  State   of         Maharashtra. (1)  It was contended in that case  on   behalf         of  direct recruits that officiating Deputy Engineers  could         only be considered as promoted to the grade of Deputy  Engi-         neers on confirmation and therefore the 7 years’  qualifying         service  which they had to put in before being  promoted  as         officiating Executive Engineers must   be reckoned from the’         date of their confirmation as Deputy Engineers in support of         this  contention  reliance  was placed in   that   case   on         clause (ii) of rule 8 and it was argued that no person could         be  "promoted" as a Deputy Engineer unless he was first  put         in the list of officiating Deputy Engineers.  This  argument         was squarely dealt with and repelled by this Court by  hold-         ing  that the list referred to in clause (ii) of rule  8  is         the  same  list which is referred to in the latter  part  of         clause   (i)   of  that  rule  which   speaks   of   "future         recruitment".  Consequently,  a promoted officiating  Deputy         Engineer, who belonged to Class II cadre, was held  entitled         to be considered  for promotion under rule 7 to the post  of         officiating  Executive  Engineer if he had put in  7  years’         qualifying  service.   The eligiblity for promotion did  not         require  that the officiating Deputy Engineer must have  put         in 7 years’ service after the date of his confirmation.           It  must  necessarily follow that  "promotion"  which  the         latter  part  of rule 8(i) relating  to  future  recruitment         speaks of means promotion as an officiating Deputy  Engineer         from  the Select List prepared under clause (ii) of rule  8.         A person thus promoted from the Select List as an  officiat-         ing Deputy Engineer is as full and complete a member of  the         Class  II cadre as a person directly appointed as  a  Deputy         Engineer.    In tiffs view of the matter,  the  prescription         contained  in  the closing sentence of rule 8(i)  that  "the         number of such promotions shall be about 1/3rd the number of

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       direct  recruits  appointed  in that year"  would  apply  to         initial appointments and cannot govern  the confirmation  of         those  who  have already been appointed to Class  II  cadre.         In  other words, direct recruits and promotees have to.   be         appointed in the proportion of 75: 25 to Class II cadre, the         former  as  Deputy Engineers and the latter  as  officiating         Deputy  Engineers,  but once that is done,  the  quota  rule         would  cease to apply with the result that confirmations  in         the posts of Deputy Engineers are not required to be made in         the proportion in which the initial appointments had         (1) [1970] 2 S.C.R. 615         796         to  be  made.  Thus rule 8(i) only requires that  for  every         three direct recruits appointed as Deputy Engineers only one         promotee  can be appointed as officiating  Deputy  Engineer.         The  rule cannot be construed to mean that. for every  three         confirmations, of Deputy Engineers, not more than one promo-         tee can be confirmed as Deputy Engineer.  In A. K.  Subraman         (supra) it was held by this Court, while interpreting  rules         relating to Central Engineering Service Class I, that though         in  cases where recruitment is made from  different  sources         the quota system can be validly applied, the quota rule  was         to  be  enforced at the time of initial recruitment  to  the         posts of officiating Executive Engineers and not at the time         of  their  confirmation.  The Court  further  observed  that         there  was a well recognised distinction  between  promotion         and  confirmation and that the tests to be applied  for  the         purposes of promotion are entirely different from those that         had to be applied at the time of confirmation.             If officiating Deputy Engineers belong to Class II cadre         as much as direct recruits do and if the quota system cannot         operate upon their respective confirmation in that cadre, is         there  any valid basis for applying different  standards  to         the members of the two group for determining their  seniori-         ty?  Though  drawn from two different sources,   the  direct         recruits  and  promotees constitute in the  instant  case  a         single integrated cadre. They discharge identical functions,         bear similar responsibilities and acquire an equal amount of         experience  in their respective assignments. And yet  clause         (iii) of rule 8 provides that probationers recruited  during         any  year shall in a bunch be ’treated  as senior to  promo-         tees  confirmed in that year. The plain arithmetic  of  this         formula is that a direct recruit appointed on probation  say         in  1966, is to be regarded as senior to a promotee who  was         appointed  as  an officiating Deputy Engineer, say in  1956,         but was confirmed in 1966 after continuous officiation  till         then.  This  formula gives to the direct  recruit  even  the         benefit  of  his one year’s period of training  and  another         year’s period of probation for the purposes of seniority and         denies  to promotees the benefit of their long and  valuable         experience.  If there was some intelligible ground for  this         differentiation  bearing  nexus with  efficiency  in  public         services,  if  might perhaps have been possible  to  sustain         such  a  classification.  It is interesting  that  time  and         again the State Governments themselves found it difficult to         justify the hostile treatment accorded to the promotees.  In         various  affidavits filed on their behalf, entirely  contra-         dictory  contentions were taken, sometimes in favour of  the         promotees  and sometimes in favour of direct  recruits.  In-         stead of adopting an intelligible differentia, rule 8  (iii)         leaves seniority to be determined on the sole touchstone  of         confirmation  which Seems to us indefensible.   Confirmation         is one of the inglorious uncertainities of government  serv-         ice depending neither on efficiency. of the incumbent nor on         the  availability of substantive vacancies.  A  glaring  in-

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       stance widely known in a part of our country is of a distin-         guished  member  of  the judiciary who was  confirmed  as  a         District  Judge years after he was confirmed as a  Judge  of         the High Court.  It is on the record of these writ petitions         that  officiating Deputy Engineers were not  confirmed  even         though  substantive vacancies were available in  which  they         could have been confirmed.  It shows that confirmation  does         not have to conform to any set rules and whether an employee         should  be  confirmed or not depends on the sweet  will  and         pleasure of the government.         797             There  is no substance in the plea that direct  recruits         must  be given weightage on the ground that the  engineering         services  require  the infusion of new blood since it  is  a         highly  specialised  service.  Were it  so,  the  Government         would  not have itself reduced the proportional  representa-         tion gradually so as to tilt the scales in favour of  promo-         tees.  Besides, the plea that engineering service is a  spe-         cialised service is made not by the Government but by direct         recruits  who, obviously, are interested in  so  contending.         Nor  indeed  is the apprehension justified that  the  higher         echelons of engineering services will in course  of time  be         manned   predominantly   by   promotees.   Those   recruited         directly  as Assistant Engineers in Class I can,  under  the         rules,  officiate  as  Executive Engineers  after  4  years’         service  and  are  eligible for  confirmation  as  Executive         Engineers  after a total service of 9 years.  Promotees  can         hardly ever match with that class in terms of  seniority.             Learned counsel for direct recruits relied on the  deci-         sion of this Court in B.S. Gupta v. Union of India(1)  where         it  was observed that when recruitment is made from  several         sources,  it  may  be necessary in the  public  interest  to         depart from the normal rule of seniority and to provide that         dates  other  than the dates of appointment  will  determine         inter se seniority of officers.  These observations have  to         be  understood in the context which the Court itself  clari-         fied  by saying that the, problem before it was not of  dis-         crimination  in the matter of promotion from  an  integrated         service constituted from two sources but the problem was  of         integrating two sources in one service by adjusting inter se         seniority  (p.  115).  Besides, the rule of  seniority  pre-         scribed  in that case was not shown to suffer from  the  in-         firmity from which rule 8 (iii), suffers.             Reliance  was  also  placed by the  direct  recruits  on         another  decision of this Court in V.B. Badami v.  State  of         Mysore,(2)  in which it was held that in cases  where  rules         prescribe  a  quota between direct recruits  and  promotees,         confirmations  for substantive-appointments can  only     be         made in clear vacancies occurring in the permanent  strength         of  the cadre and that confirmed persons have to be  treated         as  senior  to those who are officiating. This  decision  is         distinguishable  because  it is based on  the  consideration         that  rule  9 of the Probation Rules of  1957  provided  for         confirmation of a probationer as a full member of the  serv-         ice  in any substantive vacancy in the permanent  cadre  and         that rule established the exclusion of temporary posts  from         the  cadre  (p.822). Since the cadre consisted of  permanent         posts  only,  confirmation  in permanent  posts  necessarily         determined the inter se seniority of officers.              Rule   8(ii)   in   the   instant   case   adopts   the         seniority-cum-merit  test for preparing the statewise Select         List of seniority.  And yet clause (iii) rejects the test of         merit altogether.  The vice of that clause is that it leaves         the  valuable  right of seniority to depend  upon  the  mere         accident  of confirmation. That, under Arts.   14 and 16  of

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       the  Constitution,  is impermissible and  therefore  we.must         strike down rule g(iii) as being unconstitutional.         (1) [1975] 1 S.C.R. 104         (2) [1976]1 S.C.R. 815         798             On  July 29, 1963 the Government of Maharashtra  in  its         General Administration Department passed a resolution super-         seding the rules of November 21, 1941 and framing new  rules         for  determining the inter se seniority of  direct  recruits         and promotees.  Paragraph A of the 1963 resolution  provides         that the seniority of direct recruits and  promoted officers         should be determined according to the date of appointment on         probation  in the case of direct recruits and  according  to         the date of promotion to officiate continuously in the  case         of those appointed by promotion, irrespective of whether the         appointments   are made in temporary or in permanent  vacan-         cies.   Paragraph  B of the resolution says that a  list  of         services in respect of which special orders for fixation  of         seniority are in force and to which the resolution will  not         apply would be issued in due course.             It  is contended on behalf of the Maharashtra  promotees         that  the rules of 1963 superseded the 1960 rules by  neces-         sary  implication and therefore the State Government had  no         power or authority to apply the criterion of seniority fixed         under  the 1960 rules after their repeal by the 1963  rules.         This  contention has not only the merit of plausibility  but         is  apparently  supported by an observation in P.  Y.  Joshi         (supra) case. We are however satisfied that the Bombay  High         Court  was  right in rejecting the contention.    The  quota         system  was  the very essence of 1960 rules and  if  it  was         desired to abrogate that system it is unlikely that the 1963         rules  will  not even refer to those of 1960. The  rules  of         1941 having been expressly superseded by the 1963 rules,  it         is  difficult to accept that along with the 1941  rules  the         resolution of 1963 would not have referred to the 1960 rules         also.  Secondly,  the resolution dated December 19, 1970  of         the Government of Maharashtra expressly superseded the  1960         rules  which shows that the latter were in force until  1970         and  were  not superseded by the 1963 rules.  In  fact,  the         resolution of 1970 refers to all previous resolutions except         the  resolution of 1963 which shows that the latter was  not         applicable to engineering services.  It is true that in P.Y.         Joshi’s  case  (supra) it was observed that the  1963  rules         repealed  those of 1960 but that is a mere passing  observa-         tion.   The question in regard to such repeal did not  arise         for  decision in that case and it appears that  no  argument         whatsoever  was  addressed to the Court  on  this  question.         None  of  the  considerations mentioned by  us  were  placed         before the Court in that case.  We therefore agree with  the         High Court that the 1960 rules were not superseded by  those         of 1963. We have already indicated that in Gujarat there  is         no resolution corresponding to that of 1963.             In  the  Gujarat writ petitions it was argued  that  the         1960   rules, though originally in the nature  of  executive         instructions,  acquired a statutory force and  character  by         reason  of their amendment by the rules of 1965  which  were         made  by  the Governor of Gujarat in exercise of  the  power         under  the  proviso to Art. 309 of the  Constitution.   This         argument was rightly rejected by the High Court because  all         that  was done by the rules of 1965 was to introduce  a  new         rule,  rule 10, in the 1960 rules.  The rules of  1960  were         neither  reiterated nor re-enacted by the rules of 1965  and         the  new  rule introduced into the rules of 1960 is  not  of         such  a character as to compel the inference that the  rule-         making  authority had applied its mind to be rules  of  1960

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       with a view  to         799         adopting  them.   In Bachan Singh v. Union of  India(1),  on         which  the  direct recruits rely, the amendment  made  vital         changes  in the main fabric of the original rules which  led         this Court to the conclusion that the original rules  became         statutory  rules  by  incorporation. This  question  is  not         relevant in the Maharashtra appeal since there are no  rules         in Maharashtra corresponding to those of 1965 in Gujarat.             The challenge to rule 33 of the rules dated December 19,         1970  framed  by the Government of Maharashtra is  based  on         grounds  identical with those on which the validity of  rule         8(iii)  of the 1960 rules was assailed.  The rules of  1970,         which supersede the rules of 1960, were framed in order  (i)         to  alter  the ratio between direct recruits  and  promotees         which  was "causing hardship" to promotees; (ii) to  correct         the  manifest  error resulting from the fact that  "A  large         number of temporarily promoted officers both in Class I  and         Class II could not be confirmed in spite of permanent vacan-         cies being available"; and (iii) to ensure the efficiency of         the  engineering  services  as a whole.    Rule  6  provides         briefly  that  officers who are confirmed in or who  have  a         lien on a post will be members of the Maharashtra Service of         Engineers Class I or Class II as the case may be-  Those who         do  not have such a lien and who may be officiating  in  any         one of the cadres of Class I or Class II will be treated  as         temporary members of their respective cadres. Rules 7 to  11         deal  with  direct appointments to the  posts  of  Assistant         Engineers Class I and Assistant Engineers Class II.  By rule         11, such appointees are to be confirmed after a training  of         one  year and a further probation for a period of  not  less         than  one year in their  respective cadres.  Rules 12 to  23         deal  with  appointments by promotion to Class  11  service.         Rule  12(a)  as amended by the Government  resolution  dated         January 20, 1972 provides that the cadre of Deputy Engineers         will consist of (i) all officers confirmed upto the date  of         commencement  of  the  rules as  Deputy  Engineers,  whether         actually working in or only having a lien on the posts; (ii)         all direct recruits who have been appointed upto the date of         commencement  of  the rules on probation  against  permanent         posts of Deputy Engineers (iii) all officers who were  offi-         ciating  as Deputy Engineers on 30th April,  1960,  provided         their promotions prior to 30th April, 1960 are not deemed to         be fortuitous; and (iv) those who were not promoted prior to         30th  April, 1960, but who have been included in the  Select         Lists  for the period prior to 30th April 1900 of  Overseers         fit  to  be Deputy Engineers.  RuIe 12(c)  fixes  the  ratio         between  direct recruits and promotees at 34: 66 instead  of         75: 25 as under the 1960 rules.  Rule 33 called "Seniority",         which  we have extracted already, provides that there  shall         be two parts of the seniority list in each cadre in Class  I         and  Class  Ii, part A of confirmed officers and part  B  of         those who are not confirmed.  In part A the names are to  be         arranged  with reference to the year of confirmation.   Con-         firmed  officers are to be treated as senior to  the  uncon-         firmed  officers  in the respective cadres.  In part  B  the         names  are  to  be arranged with reference to  the  date  of         continuous officiation except where promotion in an  offici-         ating  capacity  is by way of a purely  temporary  or  local         arrangement.         (1) A.I.R. [1973] S.C. 441         800              Rule 33, in so far as it makes seniority dependent upon         the fortuitous circumstance of confirmation, is open to  the         same objection as rule 8(iii) of the 1960 rules and must  be

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       struck down for identical reasons.              The  circulars dated January 12, 1961, March  15,  1963         and October 18, 1969 which the promotees want to be enforced         are  issued  by   the Finance Department and  being  in  the         nature  of  inter-departmental communications,  they  cannot         confer any right on  the  promotees.   The Bombay High Court         was therefore right in not accepting this part of the promo-         tees’ case.              We also agree with the view taken by the High Courts of         Bombay and Gujarat, for the reasons mentioned by them,  that         the  rules under consideration do not in any manner  violate         the provisions of the Bombay Reorganisation Act, 11 of 1960.         The  proviso to s. 81 (6) of that Act says that  the  condi-         tions  of service applicable to any person allotted  to  the         States of Maharashtra or Gujarat shall not be varied to  his         disadvantage  except with the previous approval of the  Cen-         tral Government. Neither the rules of 1960 and much less the         rules  of  1970 alter the conditions of  service  of  Deputy         Engineers  to their disadvantage within the meaning  of  the         proviso.             We are not unmindful of the administrative  difficulties         in  evolving  a  code of seniority which  will  satisfy  all         conflicting  claims. But care ought to be taken to  avoid  a         clear transgression of the equality clauses of the Constitu-         tion.   The rules framed by the State Governments were  con-         stitutionally  so  vulnerable that  the  administration  was         compelled  to adopt inconsistent postures from time to  time         leaving the employees no option save to resort to courts for         vindication of their rights.  In this process, courts,  high         and  low, had to discharge functions which are best left  to         the expertise of the appropriate departments of the  Govern-         ment.  Having struck down certain rules, we do not  want  to         take upon ourselves the task of framing rules of  seniority.         That is not the function of this Court and frankly it  lacks         the expertise and the data to do so. We how. ever hope  that         the Government will bear in mind the basic principle that if         a cadre consists of both permanent and temporary  employees,         the  accident  of  confirmation cannot  be  an  intelligible         criterion  for determining seniority as between  direct  re-         cruits  and promotees.  All other factors being equal,  con-         tinuous  officiation  in a non-fortuitous vacancy  ought  to         receive due recognition in determining rules of seniority as         between persons recruited from different sources, so long as         they  belong to the same cadre, discharge similar  functions         and  bear similar responsibilities.  Saying anything  beyond         this will be trespassing on a field which does not belong to         the courts.             We would like to clarify that the list of seniority, for         the period till November 1, 1956, prepared by the  Maharash-         tra   Government by its resolution dated April 10, 1970  has         been  approved by the Government of India. That  list  would         therefore govern the seniority of direct recruits and promo-         tees  as  on  November 1, 1956.  Secondly, it  seems  to  us         difficult to uphold the direction given by the Gujarat  High         Court  that interim promotions made during the  pendency  of         writ petitions should not be disturbed until the  expiration         of one month from the date of the seniority as finally fixed         by the Government and intimated to the con-         801         cerned parties.  Interim promotions which do not comply with         the constitutional requirements and which under the judgment         of  the  Gujarat High Court are bad cannot be  permitted  to         stand.  We accordingly set aside that direction.             These then are our reasons in support of the order which         we passed on January 31, 1977.  That order reads thus:

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             "Civil Appeal No. 1113 of 1974 is filed by the  promo-         tees and it arises out of special Civil Application No.  815         of  1972  filed by them in the Bombay High  Court.   We  set         aside the judgment of the High Court and allow the appeal.               Civil  Appeal No. 286 of 1974 is filed by  direct  re-         cruits  and it arises out of Special Civil  Application  No.         1099 of 1969 filed by them in the High Court of Gujarat.  We         confirm  the  judgment  of the High Court  and  dismiss  the         appeal.               Civil  Appeal No. 287 of 1974 is filed by  direct  re-         cruits  and it arises out of Special Civil  Application  No.         422 of 1970 filed by them in the High Court of Gujarat.   We         confirm  the  judgment  of the High Court  and  dismiss  the         appeal.               Civil Appeal No. 242 of 1974 and Civil Appeal No.  285         of 1974 are cross appeals.  Both of these appeals arise  out         of  Special  Civil Application No. 1418 of  1971  which  was         field by the promotees in the High Court of Gujarat.   Civil         Appeal  No.  242 of 1974 is filed by the promotees  in  this         Court challenging the decision of the Gujarat High Court  to         the  extent to which they failed.  Civil Appeal No.  285  of         1974 is filed by the direct recruits challenging the  afore-         said decision to the extent to which the High Court  allowed         the reliefs claimed by the promotees.  We allow Civil Appeal         No.  242 of 1974 partly and dismiss Civil Appeal No. 285  of         1974.                The reasons in support of the conclusions to which we         have come in these appeals will be given later.  The  extent         to  which the appeals are allowed or dismissed  will  become         clear from those reasons.         There will be no order as to costs in any of the appeals."         P.B.R.         707SCI/77--2500-1-12-77--GIPF.         802         [1977] 3 S.C.R.