P.S. MAHAL & ORS. v. UNION OF INDIA & ORS.

23rd May, 1°984 B

Executive Engineets, CentrG/ Engineering and Central Electrical Engineering· Service (Group A) '(Regulation of Seniority) Rules, 1976, brought into force with retrospective eff~ct from 10th Dec.ember, 1974-Rules 2(ii) and 2.(iv)-Con~ stitutional validiiy of-Whether the· rules viol<;ite the provisions of Arlie/es 14 and c 16.(i) of the Constitution. -I lnter-se Senioriti of Executive Engineers promoted regularly within their respective quota from and afier 22nd December 1959 but before_ Jlth- December, 1974 .from the posts of Assistaht Executive Eagineers governed by the Central Engineering Service (Class-I) Recruitment Rules, 1954 and· Assistant Engineers D governed by Central Engineering Service (Class-II) Recruitment Rulq 1954, as • re.fixed by the seniority List dated August 14, .. 1975-Whether irreiular and con- trary to Jhe guidelineS indicated in the decisions reported as A.K. Subraman v. Union of India "=Qnota rule in Rule 4 of the Centra/. Engineering Service (Class-I) Rules,.1954 when applicable.

. In the Central Public Works Department of the Ministry of Works E and· Housing, ·Government· of India, the promotions to the posts of Executive Engineers are made from amongst.Assistant Executive Engineers .(Class-I ) who have rendered. more than ·fiv~ years of their service in their grade on the basis of Seniorit~-cum fitness and alio from Assistant Engineers (Class-II) who haVe rendered more than eight years Of service in their grade on the basis' Or ni~rit, the selection "being made through a F dep_artmental pro:notion comffiittee pres.ided over by a member of the Union Public· Service Commission, since for the latter the· P.P&t of ~ecutive · • Engineer is a selection post. For promotion to .the 'giade of Exective Engine::rs~ for the first time, on,4Sth August, 194·9, a quota in the ratio o.f 75% to 25% was prescribed by the Central Government. this was con.. tinuCJi right upto the Recruitment Rules 1954 were·~nacted for these two categories .. From Septenlber 7, 1955~ this quota was altered wjth reti'oseec .. G. tive effect to 66-2/3% and 33 1 /3% and it was again altered 'with effect from April I, 1.972 to SO: 5~ for a period of seven years.

However, at the time of promoti.ons not onJy the quota was not adhered to with the result that Assistant .Baginoers came to be promoted "H

p. 848 Copy page pinpoint

A with Executive .Engineers far in excess of th.eir quota, while there was .a shortfall in the promotions of As~istant 'Elt.ecutive Engineers, sO ra·r as their quota was concerned, but all of them were treated as officiating E;xecutive Engineers .

• was no statutofy ·rules _govcro'ine; inter.se seniority of Executive There B Engineers pro1J1oted fro~ these two grades. They wer~ th'.!refore, gov0raed by th,e Memorandum issued by the Home ·Mini-;try .on June 22nd, 1949 which laid down the general principles of seniority applicable to all depart- ~' ments of the· government. The Memorandum provided that "in respect Of I ' -persons employed in any part"iCu\ar grad~, seniority should, as a general rule, be determined on thC basis of length of service in th<lt grad~ as well as service in .ao ·equivaleilt gra4e irrespective whetb:;r the latter was under c Central or Provincial Governnient in Iildia or Pakistan.'·' The. length of con- tin'uous officiatiO!J in the- grade was thus take'1 as the yardstick for_ the purpose of deterniining seniority in all depatt!Il-ents pf the government and a· fortioraYi, in the grade of ExcctiVe Engineers. On the basis of this yardstick, Assistarit Engineers .promoted as officiating Exe~utiv¢ Ei1.giaeers within their quota ·would clearlY. ~e senior to Assistant· ExecutiV-e Engineers .. promoted Ia_ter as officiating. Executive Engineers. l- D RespondentS 1 t_o 3 issued a seniority list on Ist July, 1971 in which· Executiv~ Engineers promoted. from the grade of Assist<tnt Eng-ineers ia. r.Cgular manner on the basis of selection made by Departmental Promotion Committ~e and within their quota were shoW~ as junior to Several Executive Engineers promoted much later from the ~frade of Assistant Executive • Engineers ..Respondents 1 to 3, in making this seniority list proceed~d , on E the basis that the quota rule spedfied ia the last par~ of sub-rule ( i) of Rule 4 of the Recruitment Rules nece>Ssatily imi)Iied a system of rotation and it was required to be strictly applied at the stage of confirmation in the grade of Executive Engineers. In other wOrds, out of three vacancies in the grade of Bxecv_five Engineers, unless two reserved for promotion of Assistant Executive Bilgineer_s were filled up by confirmation of such promo.tees, the third O_oe for confirmation of ·an AssiStant Enginyer promotr.d as Executive F Engineer-could no~ be ti.fled. Consequently, all Assistant Engineers were treated a3 ad·hoc appointees without ~ny ·claim to seniority until .such ·-time as they were confirmed as Executive Engineers within their quota. The impact of this decision ·or Respondents Nos. 1 to 3 was disastrous for a large number of Ex~C.Utive Engineers promoted froi.p the grade of Assistant Engineers on officiating basis, since many of _them had to. retire ·without ._ G being confirmed and therefore, ~ithout any clRi.m of seniority in the g[ade of Executive Engineers and tbt? position continues to exist tiJJ date. There- fore the aggrieved -Assistant Engineers filed a writ petition b~fore the 1"!el~i High Couft .. The Full Bench of that Court dismissed, the said petitions. In the ap.J)eals .. by a common judgment reported as A. K. Subraman and Ors. H 'v. Union of India and Ors.· ; the Supreme Court acCepted the contention of the petifloners that the quota rule was t6 be applied at the stage of initial promotion ·in officiating capacity, to the grade of Executive Engineers and not at the stage of cOnfir~ation.and that it' did not necess<,1.rily imply the ro~ational system aod since the general principles

P. s. MAilAt v. UNION 849

for determining seniority laid down in the· Memorandum dated 22nd June, A 1949 were, on their plain tern1s, applicable, seniority in the grade of ExecQtive Engine.ers was liable tO be fixed on the b~tsis of length of continuous officiation ·in that grade as provided iii the Memorandum. The Court allowed the appeal after. summarising its conclusions i~ the form of folio.wing six propositions nemely :

• B (I) When Assist.ut Engineers {Class·Jl) are initially appointed in a regular manner iri accOrdance with the rules to-. officiate as Executive Er·gineers, their s~niority ia the service in Grade-I will· count from the date of their initial officiating appointment in Class I provided., their· initial o'fliciating appointment as Executive Engineers was within their Quota;

(2) Their seniority will not be reckoned ffom the date of their future c confirmation in Ciass·I. The above principle is, however, ·subjeC:t l_o one ·reservation, namely, if an Assistant Engineer, 6ef-0re his Confirmation in Class IC were appointed to officiate in Class I in the grade Or Exe.cutive Engineer; although within _bis quotii, his seniority will count only from· the date of bis confirmation 1.n Class II as permanent Assistant.Engineer not- _withstanding ~is earlier officiating appointme_nt as Executive Engineer; D (3) The quota rule will be enforced at the time of i_nitial ·recruitment, in an officiating capacity to the grade of Executiv~ Eag_ineC:r and not at the time oj confirmation;

l4) The quota rule will be enforced with reference to vacancies in all posts, w·bether permanent or ~emporary including in the sanctioned· Strength of the cadre (except such vacancies as are purely of a fortuitous or adventi- tious nature) and th6 operation of the quota rule will depend upon the avai· ]ability or non availabiii~ of Assii;tant Executive Engineels for appointment 0

as Executive Engineers. The non-availability of Assistant Executive Eo gicienrs for recruitment to the grade of Executive Engineer will not postpone the regular recruitment ?f the Assistant Executive Engineers within theit quota. F

(5) Once·tbe As.sistant Engineers ai-e reglllarly"·appoiuted to officiate ' ' as Executive Engineers w'ithin their quota tb~y _will b6 entitlei.:I to coaSidera- tion in their own rights as- Class I officers to fu"rther promotions. Their

. ' "bi.rtb rllarks'' in their earlier service- will ~e of no relevance once they. are regularly officiating in th~. grade of Executive Engineer within their quota. G

(6) U Assistant Engineers are recruited. as· Executive EQgineers in excess of thei~ quota in a particular year they wi!l be pushed dowll to later years for absorption when due within their quota." and directed the' respon· dents Nos .. I to 3 to amend and revise the" seniority list of 1st July 197; in. the Ji-ght of the directions give1,1 in.· the judgment and to give effect to the ff revised seniority list so prePared• • •

850 SUPREME COUR')" REPORTS ll 984] 3 s.c.R.

A Respqadents Nos. 1 to 3, ·thereafter, i&sued a seniority list on 14th ·August, 1975·.accompanied by a memon1ndum beadag the same date in which it was st~ted that the seniority list of Executive ErigiOeers· had been raised in the light of the judgment of tbe Supreme Court- dated 11th December, • 1974 in acCordanco With the principle set out In the memorandum. Poi the .purpose of determining the seniority in the grade of ·Executive Ellgineers from and after 22lld December-, 1959 resp"ondents Neis. 1 to 3 int_roduc-:-d t~e B carry forwArd principle and applied the r0tationa1 formula. The o'fficers who bad becD, with thl' concurrence of the Union Public Service CoffinlissiOn, . officiating as Executive Eogioi::ers prior to 25th August, 1949 ~nd continued to do so thereafter were shown en blqc.senior to the officers appOinte:d after 25th August, 1949 and so far as the period between 25th August 1949 and . ' · 21st December, 1959 was conCerned ·thd inter se Senior.ity .of persons promote~·· ~ during.that period from the grades of Assistant Engineers and A:;;sistant c Executive Engineers within- their respective quotas was determined in accor- dance with the length of their regular continuous service as Executive Engineers, subject to the q6aHfication that. in case of Assistant Engineers who were promoted as Executive.Engfoeers·.tbe iength of their regular con- tinuqlls seryice as Executiv_e Engineers for the· pu~pos"e of determining . .. ·p .. seniority would· be computed only _from the date when they were confirmed as-AssSist ant Engineer. ' · .- , But with effect from 22nd December 1959, a departure was made by respondent Nos. 1 to 3 ·from th~ principle of continuous officiation and ~·carry fOrward principle Was applied by prov.'iding that s'6 posts earmarked for promotiro of Assistant Executive Engineers to the g~ade 'of Exee;utive ·Engineers in accordance with their quota 9uring the period prior tO. 22rl(t December,· 19.S 9 which hid ·reaia'ine~ unfilled owing to noa.availabhity of ·. E Assistant Executive Engineers up to 22nd_ D'ecember 1959 shotJld,be-carried forward and. 86 Assistant_ Executive Engineers promoted after 22nd Dec~mber; 1959 should be adjusted against these posts and they should be assigned sCDioiity en-bloc imO'lediately below the last EXecutive Ei:igineer promoted regularly prior to.22nd December, 1959. The result was that the Assistant Engineers who had been promoted as Executive Engineers regula~ly wit bin thei!' qu"ota subsequent to 2 ?nd _December 19 59 became junior to the ,Ass.is- tant. EvecutivO Engineers promoted against these 86 carried forward posts, • even though they migh~ have been: _promoted as Executive Engineers long prior to tho promotion of such Assistant Executive Engineers. The Assistand ExecutiVe Engineers promoted and adjusted against these 86 Carried for"' wa~d posts were given seniority -~bove the ASsi$tant Engineers promQted rogUlarly within their quota after 220:d. December, 1959 irrespectiVe as to G w'hen such_ Assistant Executjve Engineers were actuallY promoted. These . posts were aajusted on the basis of the- order in 'which the vacancies in the respectiVe quotas of Assistant Executive EngineerS and Assistant Engineers for promotion· as Executive Engineers were allociited from time to ·time. The · seoioril)'.' lnter-se of Assistant Executiv·e · Enginee~s. and Assistant Engineers promoted r.egularly within ~heir respective quotas subsequent to _22nd December, 19:59 was thus determined by the application of the rotational H formula based on the quota pfevailing at tho relevant time. But ·since it had not been P:oS:sib.le ·to .fill all the poJts 'allocated to the Assistant E~ecutive · Engineers' qaota and son1~ p6_st~ ~emained unfil~ed, theyJwere shown Us vacilnt

• . P, S. MAHAL v. UNION 851

in the senio:ity·list prepafed according to the roste• based on'the rotationa.1 A formula so that as and when .Assistant Exceutive Engineers might be pro.mo .. ted as Executive Engineers regularly within their quota, they would occupy the,vaCant ·posts· e8.rmarked. for them in the seniority list. The disastrous· effect of th~ revised seniority list was that most of the Assistant Engineers prcunoted as Executive. Engineers r""egularly within their quota subscqµent to • 22nd December, 1959_lost a considerable nurnber of places in seniority and Wer~ Piaced in a much worse situati.on. than what they were in under the B' seniority list dltted Ist Jilly,_ ~971 which was quashed at their inst'anCe, in

. vl ' writ petitions. A contempt application against respondents Nos, .1 to 3 wus therefore.moved.but, befofe the Court could hear the objeCtioils agai.nst the seniority list on merits; the·ftrst respondent issue~ on .8th June, 1976· th~ Executive Engineers, Centfal Engineering and Central Electrical' Engineering . service (Group A) (Regulation of Seniority)' Rules _1976. These ruies were 'deemed to have cO·me into fotce with effect from 10th December, 197_4, c that is orie day before the delivery of Judgment., by 'this Court and they substantially enacted in statutory form the same pririciples which were se~ ·out iii the memorandum that aCcompanied the seniority list dated l 4tli · AUgust, 197S_aJid on which.that seni~rity list was based. ·

-j The petitioners, thereupon, filed the present writ petitions contending D thaf the Rules of 1916 wefe not applicable to the petitioners and other AsSist~nt Engineers pron1oted as Executive Engineers regularly within t'heir quota prior to 10th December 1974 and if these Rules were held to be applicable, they were unconstitutional and 'void. ,Th'e petitioners challenged the validity of the seniority list d:tted 14th Augusr,·1975 and the Rules of 1976 on t'be following grounds, namely; (_i)' th"t ·it was the case of .the petitioners and other· Executive Engineers promoted from the gr3-4e ·or E Assistant Engioeers regularly within their quota frOm · and after 22nd December 1959 but beforC 11th December 1 19$4 ·js covered by the decision of this Court in A. K. Subraman's. c;se; (ii) that they are entitled t9 claim seniority, on the basiS· of Ieng.th of conti'nrious officiation, over. Assistant Executive Engineers promoted as Executive Engineers later in .Point of tim'e; Gii) that the Assistallt Executive Engineers_ promoted and adjusted against 86 carried forwarp posts cannot be given seniority ·en bloc F over Assistant Engine~rs 9i'Ori1oted ·a·s Executive Engin~ers earlier; (iv) th'at the rotational formula cannot' be applied retrospectively so 'as to deprive AssiStant. ·Engineers promoted as Executive Engineers of their s~nio.rity on the basis of_ length of coritinuous officiation lri t)je grade of Executive ., Engineers; (v) that the Rules of 1976 are, 'to that extent, UoconStitutional and ·void as'. b(:ing outside the p~wer of _the Central Government; (vi) that since fhe Rules of-1976 have been b~ougbt_intO (orce with effect from 10t.h G December, 1974, they cannot affect the .Petitioners and· other. Assistant Engineers , promoted as Executive Engineers regularly within thei_r quota pti~r to that date and their St'.niority vis-a-vis Assistant Executive Engineers • promoted as Executive Engineers must _contiriue to be governed by the prjociple of length Of continued officiation in the- grade of Executive Engineers; and (vii) that if the Rules of 1976 are applicable for determining inteT se s~niority of Executive En.gineers promoted rfom 'the grades of H Assistant Engineers and Assistant ExecutiVe Engineers within their respective quotas from and after 22nd December, 1959, they are unconstitutional and

852 Stll'!IEME COURT REPORTS [1984] 3 s.c.lt.

A vOid as offiending Articles 14 a~d 1'6 of the Constitutton, since the::~niority rules enunciated in tbe H.ules of 1976 being closely. linked with. the quota rule continued massive departure from the quota rule over a long period of t.ime must resUlt ·in the break down or the seniority.rules apd to hpply lhe • seniority 1uh;s in such ·a situation would create gros$ inequality of oppor.. · tunity Of employment violative of Articles 14 and 16·.

F J.3 The rotational rule of stniority is inextricably linked up with the quota rule,. and -if the quota rule is not strictly imPiemented and there is large d·Cviation from it regularly from year tO year; it would grossly be indiscriminatory and unjust to givq effect to the rotatienal rllle of seniority. The rotational ·-rule .of sen'iority must Obviously br<.Jak down when there is such massive dcPJ..rture from the quota rule regularly from year to year ' . leading to contiOuOusIY )ncreasiog deficiency in promotions of Assistant G Executive Engineers and corresponding excess in promotions of Assistant " Engineers. [908C-D, 909D-E] . . •. T. Devdasan v. Union of India, AIR, [1964].S.C. 179; Mervin Contindo v. The tollector of Customs, Bombay [1966] ·3 SCR. 600; G.D. Kelkar v. Chief Collector of ~mports mid Exports [1967] 2 SCR 29; V.S. Badami v. H State of Mysore [!976] I SCR 815; N.K. Chauhan v. State of Gujarat, [1973] SCR 1037; A. Janardhan v .. Union of India AIR [1983] SC 769; Bishan Swarup Gupta v. Union of India [1975] ! SCR 104 referred to.

P. S. MAHAL v. UNION 853

2.1 Notwithstanding Rules 2(iii) and 2(iv) of the Rules of 1976, the A inter se seniOrity between Assistant Engineers.and Assistant Executive Engi- neers promoted regularly within theiit respective quota uptO 1 ltb December, 1974 must be determinrd on the basis of length of continuous officiation in the grade of Executive Engineers. subject of course to the length of conti- nuous offici~ion in the .case of Assistant Engineers being conlputed from the date of their confirmation as' Assistant Engineers in view of decision o.f .. the Supreme Couft in Su\>rainan•s case. ID. this view carrYing forward of B x eighty ·six .posts ·of Executive Engi.neers · a110cable to Assistant Execu:ive Engineers and giving u_p seniority en bloc to the AssisL nt, Executive 1

' 1 Eogin.eers promoted to the -~carry forward posts".by applying the rotatio1lal ··formula for the purpose of determining seniority amongst Assistant Engineers and Assistant Executive Engineers promoted to the subsequenc \'acancies i.s · ineffective quota Assistant Engineers and Assistant Executive Ertgineers promoted upto·ttth December 1974 and so far as these Assistant C Engineers'an.d Assistant Executive Engineers ar·e concerned, their i-.ter se seniority must"be held to be governed by the length of continuous officjation in the grade of Exe~utive Engineers. [888H, 889A·B]

2.2 Oil a plain reading of the .decision in Subraman's case, it is obvious· that the direction given by it in regird tO determination of inter se D seniJrity On thia. basiS·of length of continuous officiation was not limited to Executive Engineerl.' promoted from the grade .of Assistant ·Engineers.and Assistant Executive Engineers upto 2 ~nd December, 1959 .but \las on its plain terms. applicable. tc all Executive Engineers promoted from tht:: .grade of Assistant Erigineers an'd Assistant Executive Engineers with'in their respective quota right upto 11th December, 1974 being the date of the decision of the Court. But the ~evised se'niority list dated 14th. Aug·ust, 19?5 E issued by the Government Of India was plainly in defiance of this direction given by the Court. [872A·C, P·G)

~.3 When ,this Court in so many terms laid down that the inter se seniority of Executive Engineers promoted from the grades of Assistant : Engineers and Assistant' Executive Engineers upto December 1 J, 1974 must F ' be held to be_governed by the .rule of length of co~tinuous officiatioil and. th~ Government of India has b~en directed by a writ of the Court to amend and ..) . revise the seniority~ the effect cff this decision cannot be set at naught and the binding character of the writ issued 'a8ainst ·the Government of India c1D.· be abrogated by the mere prOmulgation of the Rules of · 19i6' with r'etros~ pective effect' from. 10th December 1974. It i• significant to note that the Explanatory Memorandum whi_ch was in the nature of statement of objects G and reasons for- the Rules of 1976 did not seek to override- the effect of the decision in ·subraman's case -but on the cOntrary affir'med that the principles of seniority set out in.those.rules were laid_down on.the baSis of the said . decision. Since the R~les of 1976 purports _merely to. carry oUt · the direc .. ·tion given in the said .de.cision they ·cannot have the effect of overriding that.. decision. and absolving the Govt, of India and the Goyernment of India, fnust: t therefore, amend and revise the seniority list of 1st July~ 1971. bf api)lyiog the 1ule of seoiority based on length of contlnuous officiation for d6terininiilg H

854 SUPREME COURT REPORTS • (1984) 3 S.C.R.

A seniority of Exe_cutive. Engineers prom"oted from the grades of Assis- i11t::r se taOt Engineers and Assistant Executive Engineers. tlp'to 11th December, 197 -t. The relative position of the Executive· Engneers in· ·regard to their inter se seniority having been crystailised in the ~deciion in Subraman's- case I.ind a · \Vrit havillg been isSued-by he ·court directing the inter. se seOiority of the Executive· Engineers to be fixed on the basis of 1ength of contl.nuous officia- tion the Executive Engineers pron1oted from .the grade of Assistant . Engineers B ... were entitled to.enf6rce the writ fo..r 'determining the inter se seniority with the Executive Engirieers in aCc.ordance with the rule of length of C'ontinuous officiation:. The right of the Executive Engin_eers · prorr.oied from the-grade of Assistant Engineers under the ·said decision could not be taken. away by anYthing contained in the Rules of 1976. The decis"ion in Sahara.man's caSe Continued to subsist and the GoverQment of_ India· Was. bound to a determine intet: .re senio.rity amongst Executive Engineers in accordance with the direc- c tion contained in that decision.: If by reasoo. of retrospective alteration pf ·-the rule of seniority the decision fa rendered erroneous, the· remedy may be by way of reyiew, but so long as the decision stand~ it. cannot be disregarded or igno_red <ind it must be .obeyed by the Government of fndia, despite Rule 2(iii) itnd 2(iv) so far as the Executive Engineers p,rornoted from the gr8de of Assistarit Bogin.eCI'.S and. Assistant Executive Engineers upto 11 t~ December,

D. 1974 are concerned. (8.73E·H, .874B·F, 877A-B]

Further, the rule of seniority sefout in par3.graphs 5(i~) and 6 of the M_emorandum of the Ministry of Home Affairs dated 22.12-1959 has no application to the instant case. ·[878E] • ' M.M. Pathak v. Unio1 of_India and Ors. [1978]. 3 SCR 346 Followed.

·E Shri Pri1hvi Cotton Mills l'd. v. Broach Borough Municipality [1970] I SCR 388 distinguished ..

Patel Go-,.dhandas Ha,govindas ".· Munic1"pal Com-ni!isioner, Ahmeda· bad {1964] 2 SCR 608 referred to.

F 3.1 If a vacancy arises on account of an incumbent ·going on leave or· for' training or on deputajOn for a sbort period, it would be a fortuitous or adv"eiititiOU<> vacancy and the quota ro'le would n )t be attracted in case of such a vac.lncy. But where a vacancy. arises o;;,i account of. the incumbent going on dt'putatiOn. for a l'.eaSonably·long perio:l and there is no reasonable likelihood of the person promoted -tO )ill su_cb vacancv having to revert; the,. ·vacancy woUld be subject to t~e:quota rule,. Qecau_se it would be a .regular G vacancy in the post of Executive Engineers and the person _promoted to fif( the vacancy would' be an officiating Execiltive Engiffeer would contiriue as sticb without reversion uutil confirmed and bts promotioD. would, therefore, be by way Or_ recruitment to.the·cadre-of Executive· Engineers. Or course, t-he vacancy which attracts the applicability of the quota ru!e,_is the vacancy in the posi -included i·a the sanctioned strength of the cadre of ·Executive ,Engineers and 'not the vacaDcy in the d.;:putation post. There. may be a H ~acn.ncy in a deputation post ip. anothe~ department or organisation and an Executive Engineer holding a pOst included in the sanctioned strength of tbe cadre of Executive Engineers may be sent to such deputation pOst, but the

P. S. MAHAL v. UNION &55

vacancy which Would call ·for the appl~cation of the quot!! rule in such a case A would be the vncancy arising in the post of Executive Engineer within the cadre by reason of the incumbent of Ihat post going· to the deputation_ post and not the vacancy in the deputation post which would be filled up by the ExeCutive Engineer_ going on. deputation: Therefore, what has to be consi- de'red for the applicability of the qu<,>ta rule is a vacancy in a poS:t included in the sanctioned strexigth of the cadre of Executive Engineers and the sa"n- ctioned strength whicJl. has to· be taken into account, is 'not merely the ll sanctioned strength of the Cadre ofEXecutive Engineers in the entire Central Eilgineering Service, Class I. The sanctioned strength of the 'cadre of ·Exe- cutive Engineers in the 'central Engineering Ser.vice, Ciass. I, maY jncludci not only.posts ·of Executive Engineers in the Central Publ.ic \Vorks Depart~ rnent ·but also Posts ·or Executive Engineers in "othef·departn1eilt.s and organisations. [890H, 89!A-G] ·c 5.2 Therefore, ~t cannot be said that promotion to the post of ·E·xecutive Engineer' contemplated. 1:1nder the Rules can be made" only where there is no lien of any officer on tba:t post because promotion acc:ording. to the· quota rule "is initial promotion in o·fficiating caPacitYttand not conCerned with confirmatiOn .. It is true that ·a confirmed ExeCutive Engineer who goes on deputation may re Vert to the. post 011 which he bas a lien and -so also an officiating Executive.Engineer who g_oes on deputation may revert back on termination of hiS-deputation and theoretically, in· either case, an Assistant Eiigineer or Assist-ant Executive El'lgineer ~ho is promoted to . flJI the vacancy arisiiig on account" of deputation .may have to revert, but in actual practice -and reality, not a single Assistant Engineer or 'Assistant Executive. -~ngineer promoted to fill a vacancy arising on account of.deput- ation, bas had to revert, because deputation is a normal feature- in this service and 20 to' 25 per cent of the Executive Engineers are conlinuosly on dePutation. Even, if one Executive Engineer comes back on termination of his deputation, another has to be sent in'1lis pl~ce and deputations thus go on rotating with the result that the vacancy in· the post ·of ExecutiVe Engineer arising on accorint of .deputation does not cease and the Assista:Dt Engineer of"Assistant Executive Ellgineer promoted as Executive. Ene:in.efil. to liU the vacancy does not ever have .to revert and consequently the vacancy filled by bi.in is really .and truly· a· perµianen.t and long term . vacancy which has to be filled according to the quota rule, In fact, if the quota rule· were not to be applied with reference to such a .vacancy°,. the position wo·uld be that Whenever an Exe.cutive Eogineer· goes od deputation for a· period whicb·~ay extelld anything· between three :to.fi.ve years, the Central Govern- ment would be entitled to promote a_n Assistant Engineer i.gaoring the claims of Assistant Executive_ Engineers and this would totalJy be arbitrary in a sit11ation where 20 to.- 25 per -·cent of Executive Engineers are on· .~eputation. For tbiS purpose the vacancies in tbe pas.ts of Executive :Engineers arisi11g on account of deputation of Executive Ellgineers to other departments, organi~ations and public Uiidertakings. for a period of one or more years were long term vaCancies. and they could not be regarded as fortu tious or adventitious in·· character . and hence they were subject to the qqqta role. [8910-H, 89SH, 896A, 897A-F, Gj H •

8,55 SUPREME COURT REPORTS {1984) 3 .s.C.R.

A 3'_ 3 However, the vacancy pro tempore filled irregularly by an Assis.. tant Engineer Would ·continue to beloag· to the quota of-Assistant Executive . Engineers and it can be filled only by the Assistant Executive Engineer, if the quota rul~ is to be strictly observed. The death or· retiremept of an .. ,irr~gular promotee to the ·vacancy cannot therefore give rise to a fresh vacancy : . it -is the same vacancy which continues until properly filled'by promotion of nn Assi5tant Executive Engineer-at a subsequent date. If in B such a case the death or retirement cf an irregular appointed ASsistant ·Fngineer were tq be treated as creating a fresh ~acancy; it _would lead to gross distortion. Simil:1rly while pushing down Executive Engineers prcmOted from the grade . of Assistant Engineers in eXcess oft heir quota in a subsequent yCar, the Government must treat them as absorbed from. the date when a vac·ancy .in that year ari~es in the quota of Assistant Engineers and not' on a national basis from 1st January of that year. c . . (900 C-G, 901 C·D] ' ORIGINAL JuRISDICfION Writ Peiition Nos. 157- I 62 of 1976 · (Under article 32 of the Constitution of India)'

M.C. Bh8ndare; A.K. Ganguli, D.P.-Mukherjee.and Miss. C.K. D Suchirata for the Petitioners .

.M.M. Abdul Khader, Girish Chandra and Miss A. Subhashini for Respondent. ·• • M.!e. Ramamurthi, J. Romamurthi and Mrs. R. Vaigai for • E Respondent.

Tiie Judgment. of the Court .was delivered by

BHAGWATI, J. This wlit. petition marks yet another round of :litigation between two groups of Executive Engineers in Central ·Public Works Department of the Ministry of Works and Housing, Government of India, one group consisting of promotees from the grade of Assistant Executive Engineers ·.and t)le other. consisting of promotees. from the grade of Assistant Engineers. The dispute between these two groups in regard to .seniority has been going on for quite some time and it has created considerable discord and bitterness G' between these two groups which must inevitably affect the efficiency of the Service. It is really a matter of regret that the Central Government should not have been able to bring these two groups together and evolve a: commonly agreed formula acceptable to both sides. We hope that our decision in this writ petition will finally ring the curtain down on this unfortunate controversy and both H groups of Executive Engineers wiH accept the decision ungrndgingly without any rancour pr resentment ~n'd wholeheartedly engage them- selves in the nation building task entrusted to thero.

• P.$. MAHAL v. UNION (Bhagwati, J.) 857

There is in the Central Public Works Department of Ministry A of Works and I:Iousing, Government of India a Service known as Central Engineering Service (Class I). This Service comi;>rises various grades; the highest gr!(de is that of Engineer-in-Chief and then in descending· hierarchical order ·are the grndes of Chief Engineer, Su,ierintending Engineer, Executive Engineer and Assistant Executive Engineer. The Central Governmenl has. made rules of recruitment B to this Service known as the Central Engineering Service (Class I) · 1 Recruitment Rules 1954 (hereinafter .referred to ~s 'Recruitment Rules') and they are issued undet SRO 1841 d'}.ted 21st May. 19.54. Part I of the Recruitment Rules contains tlie definition and Clause (c) of Rule 2 occurring in this Part defines "Service" as Centrnl Engi- neering Service Class I. Rules 3, 4. and 5 contained in Part II of the c Recruitment Rules lay down the modes of recruitment to various grades in this Service in the following terms : · ·

"3. Recruitment to .the service shall be made by any.of fae following methods ;- ' D (a) By competitive examination in India in accordance with • Part III of these rules. (b) By.promotion in accordance with Part IV of these rules.

(c) By transfer in accordance with Part V of these Rules. E

4Copy pinpoint4. (I) All appointments to the service. or to posts· borne upon • the cadre of the Service shall be made by Go•ernment, ·

(2) Subject to' the provisions of the rule 3 Go~ernment. sha,ll determine the method or methods of requirement (Sio) F . (recruit~ent ?) to be employed for. the ·· purpose of filling any parllcular vacancies in the Service or such vacancies therein '. as may be . required to be file'd during. any particular period and the number of candidates to be recruited by each method.

Provided that all recruitment by competitive examination G .(vide Part III of the rules) shall be to the grade of Assistant Executive Engineer, Class I only.

S~venty-fi~e per. cent of the vacancies in · the grade of Executive Engrneer, Clasfl, shall be filled by promotion of A~sistant Executive Engineers, Class I, the ~est of the vacancies ·H be!ng filled by promotion and/or by -transfer in accordance wtth Parts IV aJ]d V of the Rules ~espectively. '

' 858 SUPREME COURT REPORTS (1984] 3 S,C.R. '

5Copy pinpoint5. Appointment to the Service made otherwise than by promotion will be subject to ordelS issued from time to time by the Ministry of Home Affairs regarding . special representa- tion in the Services for specific sections of the people''.

Assistant Executive Engineers bi:long' to the !owes\ grade in this .. B service and they are recruited.only through a competitive examination in ·accordance with 'Part III of the Recruitment Rules. On their . initial recruitment, Assistant Executive Engineers are required to '

undergo a period of probation fcfr two. years and they are confirmed t

in the grade of Assist!lnt · Executive Engineers after successful completion of the.period of probation. ' c There is also another · Service in the Central .Public ,Works Department called . Central Engine~ring Service Class II. This Service consists only of.the grade of Assistant Engineers. The rules ofrecruitment to the 'grade of Assistani Engineers are to be found in the Central Engineering Service Class II R~cruitment Rules. There are D two modes of recruitment laid down in these Rules; one is by direct recruitment through the· fame competitive examination which is held for selection of Assistant Executive Engineers, the candidates lower down in rank than ihcise selected for the grade of Assistant Executiv.e Engineers·, being selected for the grade· of Assistant Engineers and the other is py process of selection from a subordinate " ' - Service called Class ·Ill SerVice. · Assistant Engineers . belong to -· Class II service, .unlike Assistant Executive Engineers who belong to Class I Service !tut the posts which they hold are interchangeable, each of them being in charge of a sub-division aud 'the nature of work, responsibilities, powers and dutie~ discharged by them all is F ,.identical. There is only a minor ·difference in the pay scales but. otherwise for all practical. purposes, there is no· difference between them so far as their functions 'ppwers and duties are con11erned. '

The next· higher grade ·above that of · Assistant Ei!;ecutive Engineers is "that of Excecutive Engineers. Recruitment to the grade of Executive Engineers is made by .promotion from two sources, namely Assistant Executive Engineers and Assistant Engineers. Assistant 'Executive Engineers are eligible . for . promotion to the 'grade of Executive Engineers after completion of five years of service and they are promoted on the basis of seniority-cum-fitness. Assistant Engineers on the other hand are eligible for promotion io · the grade of Executive Engineers only after eight years of Service in their grade and for them, the post of Executive Engineer is a selection post and ·they are selected

P.S. MAHAL v. UNION (Bhagwati, J.) 859

for promotion on the basis of merit; the selection being made .A · through a departmental promotion committee presided over by a member of the Union Public Service Commission. Prior to 25th August 1949, there was no quota for promotion to the grade of Executive Engineers from the grades of Assistant .Executive Engineers and Assistant Engineers but. for the first time on 25th August 1949, a quota· was. prescribed by the Central Government and i~ was B provided that the vacancies in the grade of Executive Engineers shall be filled by promotion from the grades of Assistant Executive f ' Engineers a~d Assistant Engineers in the ratio of 75% to 25%. ·this continued right up to the time the Recruitment Rules were enacted in 1954 and that is why the last part of clause (2) of Rule 4 of the Recruitment Rules provided that 75% of the vacancies in the grade c of Executive Engineers shall be filled by promotion of Assistant Executive Engineers, the · rest of ·the . vacancies being filled by promotion and or by transfer in accordance with Parts IV and V of the R~cruitment Rules. This quota was altered with retrospective - I effect from 7th September 1955 from 75 and 25 per cent to 66i and D 33! per .cent and it was again altered with effect from !st April 1972 to 50: 50 for a period of seven years. Itappears that whenever ,Assistant Executive Engineers a·nd Assistant Engineers were promoted to the grade of Executive Engineers, they were first appointed on officiating basis. The quota was however, for reas~ns which we shall present.ly discuss not adhered to at the time of such promotions with the result that Assistant Engineers· came to ·be promoted as officiating Executive Engineers far · in excess of their quota while there was a shortfall in. the promotions of Assistant Executive Engineers so far as their quota was concerned. Now there were no statutory rules governing inter se seniority of Executive Engineers promoted from the grades of Assistant Executive Engineers and Assistant Executive Engineers but there was a Memorandum issued by the·· 1'fome Ministry on 22nd June 1949 which laid down general principles ' ' of seniority applical;>le to all departments. This Memorandum provided that "in respect of versons employed in any particular grade, seniority should, as a general rule, be determined on the basis ·of length .of service in that grade as well a~ seJ1Vice in an equivalent grade irrespective ofwhether·the latter was under Central or Provin- · cial Government iu India or Pakistan." The length of continuous,

r officiation in the grade was thus taken as the yardstick for the purpose of determining seniority in all departments of the g v _ · d a ,r.· .. h oern meutan ort1orari; m t e grade of Executive Engineers o th · ba~is. of this yardstick, Assistant Engineers promoted as ~ffic~atin:

860 SUFREME COURT REPORTS [l 984) 3 S.C.R. I ~ A ' Executive Engineers within their _quota would . clearly be senior to . ' Assistant Executive Engineers promoted later as officiating Executive Engineers.

• However, Respondent No. I ·to 3 issued a seniority list on !st July 1971 in which Executive Engineers promoted from the grade of B Assistant Engineers in regular manner on the basis of selection made by Departmental Promotion Committee and within their quota were shown as junior to several Executive Engineers promott\d. much later from the grade of Assistant Engineers. Respondent No. I to 3 in .making ,this seniority list proceeded on the basis that the quota c rule specified in the last part of sub-rule (2) of Rule 4 of the Recruit- ment Rules necessarily implied a syst~m of rotation and it was required to be strictly applied at the stage of confirmation in the grade of Executive Engineers. In other words, out of three vacancies in the grade of Executive Engineers," unless two reserved for promo ti op of Assistant Executive Engineers were filled up . by confirmation of ·n such promotees, the third one for confirmation 'of Assistant \- Engineer promoted as· Executive Engineer could not .be filled. Consequently, all Assistant Engin~ers were treated as ad-hoc appoin- tees without any claim to seniority until such time as they were confirmed as Executive Engineers within their quota. The impact of this decision of Respondent No. l to 3 was disastrous for a large E number of Executive Engineers promoted from the grade of Assistant Engineers on officiating basis, .. since many of them had to retire without being confirmed and therefore, without any claim of seniority .in the grade of Executive Engineers and even tod.ay, according to the petitioners, there are. hul'ldreds of officiating Executive Engineers promoted .from the grade of Assistant Engineers who are working F .in the Central· Public Works Department for decades without confirmation and .according to the principle adopted in prnparing the seniority list of lst July 1971, they would have no claim to seniority iii the grade of Executive Engineer~ and woul.d become junior even to recent promotees from the grade of Assistant Executive G Engineers.

The senioriiy list dated !st July 1971 was preceded by provisional seniority lists which were prepared annually on the basis of the same formula and some of the Executive Engineers promoted from the grade of Assistant Engineers, therefore, without waiting for the publication .of .the final seniority Jist dated !st July 1971 preferred writ petitions in the Delhi High Court challenging the I> alidity of the provisional seniority lists. There writ petitionS" were

P.S. MAHA1. UNION (Bhagwati. J.) 861 • ' referred to a Full Bench since they involved questions of some importance and the Full Bench by a common judgment dated, 20th . · M:fy 1971 rejected the contentions of the~p~titioners and concurring . with the stand adopted by respondent Nos. 1 to 3, held that the quota rule applied not at the stage of initial promotion on officiating basis but at the stage of confirmation· and ·rotational formula for the purpose of determining seniority was implicit in the. quota rule and on this view, the Full Bench upheld the provisional seniority lists which, as already pointed out above, were on the same

.• lines as the final seniority list dated !st July 1971 and which fixed seniority in the ·grade of Executive Engineers according to the rotational formula ·based on the· quota rule. The petitioners in c th~se writ petitions thereupon preferred Civil Appeal Nos. 1745, 1746 & 1747 of 1974 after obtaining special leave to appeal against the judg- ment of the Delhi High Court. Some other Executive Engineers· promoted from the grade of Assistant Engineers also filed a direct writ petition in this Court being writ petition 489 of 1972, challenging the seniority list of !st July 1971 on the ground. that the seniority D worked out ·by applying the quota rule at the stage of confirmation and adopting the rotational formula was illegal and that the seniority ought to have been fixed on the basis of length of continuous· officia- tion in the grade of Executive Engineers. · These three civil appeals and writ petition were heard together and decided by_ a common judg- ment of this Court dated 11th December 1974 vidc : A.[(. Subraman E & Ors. etc. v. Union of India & ors~('). This Court accepted contention of the petitioners that the quota rule was to be applied at • the stage of initial promotion in officiating capacity to the 'grade of Exec11tive Engineers and not at the stage of confirmation and that it did not necessarily imply the rotational system and since the F . general principles for determining seniority laid down in the Memorandum dated 22nd June 1949 were, on their plain terms, applicable, seniority in the grade of Executive Engineers was liable . ; to be fixed on the basis of length of continuous officiation in that · grade as provided in the Memorandum dated 22nd June 1949. Some ·of the Executive Engineers promoted from the grade of Assistant G Execu.tive En.gi_neers who were respondents 'in the· writ petition as also 1~ the civil appeal tried to pieet the contention of the petitioner by relymg on a subsequent Memorandum dated 22th December 1959 issued by the Ministry of Home Affairs, Government -0r'rndia but the learned Solicitor General appearing on behalf of the Union of India 1 conceded that t.he said Memorandum had no application to the c d · 1 · an was me evant and this Court also acce!lted the same vie\j'. This ase H

(IJ (1975)2 S.C.R. 979

862 SUPREME COURT REPORTS (198~] 3 S.C.R ' A Court pointed out that since the cadre of. Executive Engineers . consisted both of permanent as. well as temporary 'posts, the vacancies referred to in the quota rule comprised vacancies not only in the permanent posts but also in the temporary posts included in the sanctioned strength of the cacfre, barring only such vacancies as were purely of a fortuitous or. adventitious nature and the quota rule B applied at the stage ·when Assistant Engineers and Assistant Execu- tive Engineers were promoted even if it be in an officiating capacity, irrespective of whether the vacancies .were in permanent posts or in temporary posts. This Court also observed that for the purpose of ·applying the quota· rule, .the year· must be taken as a unit and the c quota rule must be applied in relation to the vacancies occuring in any particular year. This Court also held, relying on the observations f in Bishan Swaroop Gupta v. Union of India & Ors('). (hereinafter referred to as the Ist Bishan Swaroop Gupta case) that the ratio of promotions in the grade of Executive Engineers in any particular year was not depend~nt upon whether any persons from one class or >- D the other .1ere promoted or not and this was made ch;ar by giving an Illustration that if there were three vacancies in a particular year, two would go to Assistant Executive Engineers while one· would go to the Assistant Engineers and even if there were no eligible Assistant Executive Engineers who could be promoted to fill in the two. vacancies belonging to their quota, one vacancy would ·have to be filled by promotion of an Assistant Eqgineer. If in such a case, having regard tcf the exigencies of the situation two vacancies belonging • to the quota of Assistant Executive Engineers had to be filled in by Assistant Engineers for want of availability of eligible Assistant Execu- tive Engineers, the appointment of Assistant Engineers to fill in such two vacancies would be irregular because that would be outside t.heir quota but in that event, .observed the Court; they would have to he pushed down to later years when their appointment could be regula- rised as a result· of absorption in their lawful quota for those three years. These conclusions reached by the court were summarised in the form of following six proposition·s at the close of the judgment: G (I) When Assistant Engineers Class (II) are initially appointed in a regular manner in accordance with the rules to officiate as Executive Engineers, their seniority in service in Grade I will count from the date of their initial officiating appointment in· Class I provided, their initial officiating appointment ·as Executive Engineers was withiv their quota. \ (1) (1975) Supp. S.C.R. 491

) h, P.S. MAHAL v. UNION (Bhagwati, J.)

(2) Their seniority will not be reckoned from the ;late of their futur~ confirmation in Class L

The above principle is, however, subject to one reserva- . tion, namely, if an Assistant Engineer before his confirma- tion in Class JI were appointed to officiate in Class I in the grade of Executive Engineer, although within his quota, his seniority will count only from the date of his col)firina- tion in Class II as permanent Assistant Engineer notwith- standing his earlier officiating appointment ·as Executive Engineer.

(3) The quota rule will be enforced at the time of initial c . recruitment, in an officiating capacity, to the grade of ·Executive Enginter a:nd not at the time of confirmation.

(4) The quota rule will be enforced with reference to. vacancies in all posts, whether permanent or temporary D including in the sa.nctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventious nature) and the operation of the quota rule will depend upon ·the availability or non·availability or Assistant Executive Engineers for appointment as Executive Engineers. The non-availability of Assistant Executive· E Engineers for recruitment to the grade of Executive Eugineer will not postpone the regular recruitment of the Assistant Executive Engineers within their quota. ·

(5) On.ce the Assistant Engineers are regularly appointed to officiate as· Executive Engineers within their quota F they will.be entitled to consideration in their own rights as Class I Officers to further promotions. Their "birth matks" in their earlier servic.e will be .of no relevance once they are regularly· officiating in the grade of Executive Engineer within .their quota. G (6) Jf Assist;rnt Engineers are recruited as Executive Engineers· in excess of their quota in a particular year they will be pushed down to later years for absorption when due within their quota. H This Court accordingly allowed the writ petition and the civil ap;uals anj directed respondent Nos.·~ to 3 to· a111end a~d revise the

864 SUPREME couRT REPORTS [1984] 3 $.C.R.

A seniority list of !st July 1971 in the light of the directions given' in . the judgment and to give effect to the .revised seniority list so prepared.

Though the aforesaid directions were given by ·this Court for preparation of a revised seniority list as far back as 11th December B 1974 respondents Nos. · I to 3 delayed implementation of those 1 . . directions for a· period of over three months and hence the .petitioners in writ petition No. 489 of 19.72 as. also petitioner No. 3 iri the ; . present writ petition filed CMP No. 2563/75 on 18th April 1975 for taking action against respondent Nos. I to 3 for contempt of court. c Respondent No. I however, instead of complying with the directions given by this Court and purging itself of the contempt alleged to have been committed by it, filed CMP No. 3911 of 1975 dated 18th July 1975 for clarification of the judgment on. the ground that they felt 'some difficulty in implementing the directions issued by the Court. This application for clarification was rejected by the Cou'rt on 21st D July 1975 on the ground that the principles laid down in the judg- ment dated !I th December 1974 were clear and the Courtt.did not "see need to clarify them any further," and once again the Court. ordered the first respondent to prepare and publish a final seniority \ list in compliance with the directions given on !I th December 1974. The Court kept th_e application for contempt pending and adjourned E it to !st.September 1975. Respondent Nos. I to 3 thereafter issued a revised seniority list on 14th August 1975. This seniority list was accolnpanied by a Memorandum also dated 14th August 1975 in t which it was stated that the seniority list of Executive Engineers had been revised in the light of the judgment oLthis Court dated I Ith December 1974 . in acco'rdaoce with the principles set out in that F Memorandum. We shall discuss these principles in detail when we deal with the various arguments advanced on behalf of the parties. We may, however, point ·Out at this stage that, broadly. speaking, for the purpose of determining . seniority in the grade of Executive Engineers from and after 22nd December 1959, ·respondent Nos .• G I to 3 · introduced the carry forward' principle and applied the rotational formula. The officers who had been, with the concurrence of the Union Public Service Commission, officiating as Executive Engineers prior to 25th August 1949 and continued to do so there- after were shown en, bloc senior to the officers al\'ointed after 25th August 1949 and so far as the period between 25th August 1949 and H 21st December 1959 was concerned, the inter se seniority of persons \ ·,, promoted during that period from the grades of Assistant'Enginee~s and Assistant· Btecutive Engineers ·within their respective quotas was

1'.s. MAHAL v.. ONION (Bhagwati, J.) 86S

determined in accordance with the length of their regular continuonus A service as Executive Engineers, subject' to the qu tlilication that in case· of Assistant ·Engineeis wl10 wore promoted as Executive .Engineers prior to their confirmation in the grade of Assistant Engineers, the length of their regular continuous service as Executive Engineers for the purpose of determining seniority would .be compu- ted only from the date when they were confirmed as Assistant B Engineers. So far there was no dispute raised on behalf of the petitioners and it was conc~ded that the principle for determining •eniority applied by respondent Nos. I to 3 for the period upto · 21st Oecembel' 1959 was valid. The petitioners also conceded that those Assistant Engineers "who had been promoted in excess of the.ir quota were rightly pushed dowri and adjusted within their quota in c subsequent years. Thus, for example, Shri AK. Subraman, the first petitioner in writ petition No. 489 of I 912, though promoted in officiating capacity as Executive L1gineer on 27th December 1956. with the approval of the Departmental Promotion. Committee was pushed down, since his promotion was not within the quota of D Assistant Engineers at the time when h~ was promoted and his promotion was regularised on absorption within his lawful quota 1ll a subsequent year, But .with effect from 22nd December 1959 a departure was macte by respondent Nos. l to 3 ~rom the principle of continuous officiation and carry forward principle wa• applied by providing that 86 posts· earmarked for promotion of Assistant Executive Engineers to the grade of Executive Engineers in accor- dance with, their quota during the period prior to 22nd December 1959 which bad remained unfilled owing to non-availability of Assistant Executive -Engineers upto 22nd December 1959 should be carded forward and 86 Assistant Execuiive Engineers promoted after 22nd December 1959 should be adjusted against these posts and they should F be assigned seniority en· bloc immediately below the last Executive Engineer promoted regularly priof' to 22nd ·December 1959. The result was that the Assistant Engineers who.had beelf promoted as Executive Engineers regularly within their quota subsequent to 22nd December 1959 became junior to the Assistan.t .Executive Engineers G promoted against these 86 carried forward_ posts, even though they might have been promoted as Executive Engineers long pr.ior to the promotion of. such Assistant Executive Engineers. The Assistant Executive Engineers promoted and adjusted agiinst these 86 carried forward posts were given seniority above the Assistant E,pgineers promoted regularly within 'their quota after 22nd December 1959 . irrespective as to when such Assistant Executive Engineers were ' . H. actua\ly promoled. After the Assistant Executive. Engineers .promoted

8~6 $UPREME COURT REPpJ.tr$ [1984} 3 S.C.R • A • as Executive Engineers were adjusted against these 86 carried forward posts and given seniority en bloc over all Assistant· E~gineers promoted n;gularly within their quota subsequent to 22nd December 1959, th~ rotatioiful formula was applied in respect of the posts for the period subsequent to 22nd December 1959 and these posts were adjusted on the basis of. the order in which the vacancies in. the B respective quotas of Assistant· Exec'utive Engineers and Assistant Engineers for promotion as Executive Engineers were allocated from time (o time. The seniority inter-se of Assistant Executive Engineers and Assistant Engineers promoted regularly within their respective .. .

quotas. subsequent to 22nd December 1959 was thus. determined by the application of the rotational formula based on the quota c prevailing at .the relevant time. But since it had not been possible· to fill all the posts allocated to the Assist.mt Executive Engineers' quota and some posts remained unfilled, they· were shown as vacant .l in the senio_rity list prepared according to· the roster based on the rotational formula, so that as and when Assistant Executive Engineers \-

D mi~ht be promoted as Executive Engineers regularly within their · quota, they would occupy the vacant posts earmarked for them in the seniority list. The disastrous effect of this senip;ity list was that most· of t~e Assistant Engineers promoted as Executive Engineers regularly within their quota subsequent to 22nd December 1Y59 lost a considerable number of places in seniority and were placed in much E worse situation than what they were in under the seniorty list dated 1st July 1971 which was quashed at their instance in writ pettion no. 489 of 1972. The petitioners in writ petition no. 489 of 1972 therefore !lied an additional affidavit on 26th Augµst 1975 pointing out that the seniority list dated 14th August 1975, though purporting to be iu compliance with the directions given by this court, F .was. totally in defiance· of such directions and respondent Nos. I to 3 should therefore be committed for contempt of this court. It seems that some of the Assistant Ex;cutive Engineers promoted as .Executive Engineers were also dissatisfied with the seniority list ·dated 14th August 1975 since it took into account deputation vacancies in the grade of Executive Engineers as regular vacancies for the purpose of application of the quota rule and they also therefore filed their objections to this seniority list. ·The parties filed their respective affidavits in answer to the objections raised against the seniority. list and after the record was completed, 'the court was invited io decide the entire controversy between the parties. on the basis of these objections and affidavits. But . before the court could hear the objections against the seniority list on merits, the first respondent issued on 8th June, 1976 the Executive Engineers, Central

P.S. MAHAL v. UNION (Bhagwati, J.) 867 Engineering and Central Electrical Engineering Service (Group A) A (Regulation of Seniority) Rules 1976 (hereinafter referred to as the Rules of 1976) in exercise of the power conferred . under the proviso to Article 309 of the- Constitution. These Rules. were deemed to have.come into force with effect from 10th December 1974, that is one day bc;fore the delivery of judgment by this Court in writ petition • no. 489 of 1972 and . they substantially enacted in statutory form the B · same principles which were . set out in the Memo,randum that accompanied the seniority list dated 14th August 1975 and on which that seniority list was based. Rules ·2(iii) and 2(iv) which are the material rules provided inter alia as under :

"2(iii) :. The vacancies in the grade of Executive Engineer, c which were earmarked for promotion. from the grade of Assistant Executive Engineer in accordance with quotas prescribed for them during the period from 25th August, 1949 to 21st December, 1959, but could not be filled would be carried forward and filled by D Assistant Executive Engineers promoted ·on or after 22.12.1959. The inter se seniority of such officers will be determined in the order of their seniority in the grade of Assist~nt Executive Engineer-those who were considered unfit for promotion being omitted and. they will rank immediately below the.last Executive E ~ngineer, promoted prior to (12.12.1959).

(iv) After all the vacancies in the grade of Executive Engineer, which were earm:rked. for promotion from the grade of. Assistant Executive Engineer in ·accor- F dance with the quotas prescribed for them during the perio·d· from 25th August, 1949 to 21st December, )959, but could not be filled, are filled by Assistant Executive Engineers prompted on or after 22. 12.1959 and such officers assigned seniority as indicated in (iii) above; all subsequent vacancies in the grade of G Executive Engineer will . be filled by rotation of vacancies beiween the Assistant. Executive Engineers · .and Assistant Engineers on the basis of quotas prescribe'.! for. them ll:ir promotion as Executive Engineer from 'time to time. The inter se seniority of H Assistant Executive Engineers and Assistant Engineers • so· promoted to . the grade of Executive Engineer,

-{ I 868 SUpREME COURT REpORTS [l 984] 3 s.c.R. • A will also be determined on the basis of such rotation of quotas. For this purpose, .the recruitment roster shall be drawn as under:- . (a) When the reservation of the vacancies in the grade of Executive Engineer for Assistant Executive · .B Engineer and· Assistant Engineer is 66-2/3% and 33-1/3% respectively (that is, upto 3i.3.1972) !st Position ) ' ) Asstt. Executive Engineer 2nd Position ) 3rd Position Assistant Engineer c 4th Position ) . · ) Assistant Executive Engineer 5th Position ) . 6th Position .Assistant Engineer and. so on. (b) Wherr the reservation of the. vacancies in the grade of Executive Engineer for Assistant Executive D Engineers, ·and Assistant Engineers, is 50% each • (i.e. from 1.4.1972 and for a period of 7 years:) !st Position Asst!. Executive Engineers · . 2nd Position Asstt. Engineer 3rd Position Asstt. Executive Engineer E 4th Position Asst!. . Engineer and so· on." The petitioners thereupon filed the present writ petition contending that the Rules of 1976 were not applicable to the. petitioners and- other Assistant Engineers . promoted as Executive Engineers regularly within their quota prior to 10th December 1974 and if these Rules · were held to ,. be applicable then they were unconstitutional and void. The petitioners, in the Circumstances, prai ed in th~ writ petition that \. . the seniority list dated 14th August 1975 should be, quashed and a new seniority list should· be prepared on the basis of length of continuous officiation in the · grade of Extcutive Engineers so that Assistant Engi- neers promoted as ilxecutive Engineers · regularly • within their quota should have seniority over Assistant Executive Engineers promoted later in point of time.. The writ petition . was admitted and rule ·nisi was issued upon it and after affidavits. in t~ply were flied on behalf of the respondents, the writ

)> P.S. MAHAL v. UNION (Bhagwati, J.) 869 petition taken up for 4earing by this Court. - In the ctmrse of the hearipg, we made a strenuous effort to bring about settlement of this long standing dispute between Assistant Engineer and Assistant Executive Engineers promoted as Executive Engineers but our .effort proved futile and . hence we are now proceeding deliver our judgment. B ~ ~ The peiitioners challenged the validity of the seniority list dated ' • 14th August 1975 and . the Rules of 1976 on the following . grounds: (A) The case of the petitioners apd other Executive Engineers promoted from the grade of Assistant Engineers regularly within their quota from and after 22nd December 1959 but c before I !th December 1974 is covered by the-decision of this Court in Writ Petition No. 489 of 1972 and Civil 1 Appeal Nos. 1745 to 1747 of l\74"and hence they' are •f entitled to claim seniority, on the basis of length of continu- ous officiation, over Assistant Executive Engineers promoted as Executive· Engineers later in point of li!J:\e and the Assis- D tant Executive Engineers promoted and adjusted against 86 carried forward posts cannot be_ given seniotity en bloc over Assistant Engineers promoted as_ Executive Engineers earlier nor can the rotational formula be applied retro- j, - spect1vely so as to deprive Assistant Engineers promoted E ~ Executive Engineers of their seniority on the basis of length of continuous officiation in the grade of Executive Engi- • neers and the Rules of 1976 are, tJ that -extent, uncons_ti- tutional and void as being outside the power Of the Central . Government. (B) Since the Rules of 1976. have been brought into force with .F effect from I 0th December 1'974, they cannot affect the ·- • JI petitioners · and other Assistant Eng inters promoted as Executive Engineers regularly within their quota prior to that date and their seniority vis-a-vis Assistant Executive ' Engineers promoted as Executive Engineers must continue G ,tq be governed by the principle of length of continuous officiation in the grade of Executive Engineers.

(C) If the Rules of 1976 are applicable for determining inter se seniority of Executive Engineers promoted from the .rf grades of_ A~sistant Engineers and Assistant Executive H Engineers within their· respective quotas from and after 22nd December 1959, they are unconstitutional and void

870 SUPREME COURT REPORTS [1984] 3 S.C.R.

A as offending Articles 14 and 16 of the ConstitutiQn, since the seniority rules en1r0ciated in the Rules of 1976 being closely linked· with the quota rule cor,tiµued maSj!ive departure from the quota rule over a long period of tirlie must result in the break down of the seniority rules and to

B apply the seniority rules in suc!La situation would create gross inequality of opportunity of employment violative of Artie,lt:s 14 and 16. ' .. These were the broad grounds of challenge urged on behal( of tire petitioners and we shall now proceed to deal with them in the order c in which we have set them out.

RE : GRouN~ (A). This ground i.s based on the .decision re11dered by this Court in writ Petition No. 489 pf 1972 and Civil. Appeals Nos. 1745 to 1747 of 1974. It is necessary in order to D, appreciate this .ground to know wholwere the partfos in writ peti- tion No. 489 of 1972 and Civil Appeal Nos. 1745 to 1747 of 1974. • The petitioners in writ pe!ition No. 489/1972 were Assistant Engineers promoted as Executive Engineers between 27th December • 1956 and 8th September, 1959 by a properly constituted Depart- mental Promotion Committee and barring one petitioner: all the E oihers had been promoted to the grade of Executive Engineers prior to their confirmation as Assistant •Engineers. The promotion of each of the petitioners when made was in excess of the quota of Assistant Engineers and all of them were therefore required. to be pushed down tp later years for absorption in their lawful quota for those years and through this process, their promot.ions were regu- larised on. different dates subsequent to 22nd Decem.ber. 1959. The petitioners were thus all officiating Executive Engineers promo- ted fromthe grade of Assistant Engineers regularly .within their quottrnfter 22nd December 1959.. The contesting respondents Nos. 4 to 66 were Assistant Executive Engineers promoted as Ex..:cutive G. Engineers within their quota between ! Ith March 1957 and 23rd February 1966 and obviously therefore some. of them were Assistant Executive Engineers promoted on dates subsequent to 22nd December

1959. · The contest between the petitioners and. respondent Nos. 4 to 66 was therefore not confined only to those Assistant. Engineers H and Assistant Executive Engineers who were promoted \IS Execntive Engineers regularly within their respective qupta prior to 22nd· December .1959. but it elltended also to Assistant Engineers and

P.S. MAl!A'.L ·v. UNION (Bhagwati, J.,) 871 Assistant Executive Engineers promoted as executive Engine'ers . subsequent to that date. The sanie position obtained also in regard A to the contest between the appellants and the respondents in C.A. Nos. 1745-1747of1974. The appellants in these appeals were all Assistant Engineers promoted as Executive Engineers, and though some of them were· promoted prior to 22nd December 1959, they were.regularised irt their appointment by. absorption wit.hin their B r • legitimate quota. subsequent to 22nd December 1959, since at the I time when they were in initially promoted, their promotions were in exce1?5 of the quota of Assistant Engineers and they were therefore required to be pushed down to later years for absorption within their quota. The large majority of the appellants, if uot all, were thus • Assistant Engineers promoted as Executive Engineer regularly with- c in thei.r quota after 22nd December 1959 and in C.A. N_os. 1745-47 of 1974 preferredjby them, they claimed seniority over the contesting respondents who were Assistant Executive Engineers promoted later in point of time. This claim of the appellants was disputed on be- half of the contesting respondents who submitted tnat they had been rightly given seniority over the appellants by adopting the rotational D formula. This controversy as to seniority between two groups of Execu- tive Engineers, on the one hand, the petitioners and the appellant!, a large number of whom w~re promoted within their quota subsequent to 22nd December 1959 and on the other, the contesting respon- dents of whom also a sizeable number were promoted as Executive E Engineers after 22nd December 1959, was resolved by this Court by its decision dated 11th December 1974 and it was held that the quota rule has . to be applied at the. time· of initial recruit- · · men! in offiiciating capacities to the gf!ide of Executive Enginerrs· and if any · Assistant Engineers are promoted Executive Engi- neers in excess of their quota in a particular year, they would F have to be pushed down to later. years for absorption when due withfo their quota and more importantly, when Assistant Engineers are promoted as officiating Executive Engineers regularly within their quota, their seniority in the grade of Executive Engineer would count from the date of their regular promotion within their quota and op 1he basis of thiiholding, the Uni~n of India was directed to G ·amend and revise the seniority list and to give effect to the seniority • iists so revised. It is therefore clear and we do not think this position can admit of any doubt whatsoever, that even in regard to Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers subsequent to 22nd ·December 1959, H the direction' given by th' Court was that their seniority inter se should be determined on the basis of len~th of continuous officiatioq

872 SUPREME COURT REPORTS [1984] 3 s.c.ll.

A in the grade of Executive Engineers counted from the date of their regular promotion witqin the r-espective quota. It is also obviOus on a plain reading of the decision of this Court that the direction given by it in regard• to determination of inter se seniority on the· basis of length of continuous officiation was not limited to Executive B Engineers promoted from the grades of Assistant Engineers and Assistant E'Xecutive Engineers upto 22nd December 1959 but was on its plain terms applieable to all Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers within their respective quota right upto !Ith December • 1974 being the date of the decision of theiCourt. Moreover, it may c also be noted, and this is .a circumstance of ·considerable weight, that in any event the seniority list which wasairected to be amen- ded and revised .by following the rule of seniority based on length . of .continuous officiation was seniority list of !st July 1971 which determinei;I inter sc seniority amongst the Executive Engineers promoted from th~ grades Of Assistant Engineers and Assistant D Executive Engineers righi up~o June, 1971. It is the inter se senio· rity amongst these Executive Engineers covered by the seniority ·list of !st July 1971 that was directed to be amended and revised on the basis of length of continuous officiation in the. grade of Exe· cutive Engineers. The Government of India· was therefore bound to revise the seniority list of Executive Engineers on .the basis that E the inter' se seniority of Executive Engineers!drawn from the grades . of Assistant Engineers and Assistant Executive Engineers should be determined on the basis oflength of continuous officiation in service after regular appointment within their respective. quota irrespective of whether such regular promotiol! within the respective quota was ' F before or after 22nd December 1959. But the revised seniority list dated 14th August 1975 issued by the Government oflndia was plainly in defiance 'or this din~ction given by the Court and what the Government of India did was to adjust the first 86 Assistant · Executive Engineers promoted after· 22nd December 1959 against -· 86 carried forward posts and to give them seniority en.bloc over all G Assistant Engineers promoted as Executive Engineers regujarly . within 'their quota subsequent io 22nd December 1959 and then to apply the rotational formula in regard to the other vacancies suJ>. • sequent to 22nd December 1959.- The result was that most of the Assistant Engineers promoted as Executive Engineers . lost a large H number of places in seniority and were reduced to a position much worse than that in which they were under the earlier seniority !ist of !st July 1971. The success which the petitioners and the appellants

P.$. MAHAL v. UNION (Bhagwati, J.) 873

had achieved in writ petition No·. 489 of 1974 and Civil .Appeal A Nos. 1745-47 cif 1974 was turned into a defeat ano they were badly mauled in t)le ultimate.result. The question is whether despite the " direction given by this Court in its decision da(ed 11th December 1974 and in face of it, ihe Government of India was justified in fixing inter se seniority between .Assistant Engineers ·and Assistant Executive Engineers promoted regularly within their quota from and B .r after 22nd Thlcember 1959 on tl)e basis set out in the Memorandum I • dated 14th August . 1975 and the Rules of 1976. . ·

The Governmeut oflndia sought to avoid the binding obligation of the direction given by the Court in its decision dated 1 lth·December c 1974 by making'the Rules of 1976 effective from 10th Decemher 1974, one day prior _to the date of the decision. The· assumption underly- ing this menoeuvre on the part of the 'Gove'rnment of India was that .. ; if the Rules of 1976.were brought into force with effect from a date prior to the decision of the Court in A.K. Subraman's case (supra) they would,nullify'that decision and notwithstanding that decision D recognising and giving effect to a different rule 'of seniority, namely, the. rule of length of continuous officiation, the Rules of 1976 would prevail and the inter' sc. seniority between Executive Engineers pro- moted form the grades of Assistant Engineers and Assistant Exc.cutive Engineers subsequent to 22nd December 1959 would be governed by .E those Rules. This assumption, we are afraid, is wholly unfounded •'• and the argument base.d upon it camrot be sustained. When this Court has in so many terms'faid.down that the inter se seniority of Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers upto 11th December 1974 must be held to be governed by the rule of length of continuous officiation F and' the Government of India has been. directed by a writ of the Court to amend and revise, the seniority list of !st July 1971 on the basis of this rule of seniority, it is difficult to see how the effect of this decision can be set at naught. and. the binding character Of the writ issued against the Government of India can be • abrogated by the mere promulgation of the Rules of1976 with retros- ' pective effect from 19th December 1974. It is significant ~o note that the Explantory. Memorandum which was in the nature of statement · of objects and reasons for the Rules of 1976 did not seek to override. the effect of the decision in A.K. Subraman's case (supra) but on. th~ contrary affirmed thal the principles of seniority set out in those H rules were Jaid down on lhe basis of the decision in A,K. Subraman's case (supra), The Rules of 1976 were in no way intended to set at

874 SUPREME COURT Rlll'ORTS [1984] 3 s.G ....

A- ·naught the decision in" A.K.Sub"raman's case (supra) in so far as it laid down .the rule of seniority based on length of continuous . officiation for Executive Engineers promoted ·rrom the grades of . Assistant Engineers and Assistant Executive Engineers, but it was ciaimed that they were made with a view to giving effect to the . direction contained in that .d~cision. That is the reason why we do B. n"ot find any non-obstante clause giving overriding effect to the rules of seniority ·enunciated in tpe Rules of 19_76 notwithstanding the decision in A.K.. Subraman's case (supra). Since the Rules of 1976 • purport merely tc;> carry out the direction given in the decision irr A.K. Subraman's case (supra) they cannot have the effect of overrid-' ing that decision and absolving the Government of India from the c obli.gation to implement this direction and the Government of India must'therefore amend and revise the seniority list of !st July 1971 · by applying the rule of seniority based on length of contiflnous officiation for determining inter ·se seniority of Executive Engineers promoted from the grades of. Assistant · Engineers and Assistant D Executive Engineers upto 11th .December 1974. The relative position of the Exe((utive Engineers in regard to their inter se seniority having been 'Crystallised in the decision in A.K. Subarman's case (supra) and a writ having been issued by this Court directing the inter se seniority of the Executive Engineers to be fixed on the basis of leugth of continuous officiation, the Executive Engineers E promoted from the gn1d~ of Assistant Engineers were entitled to enforce the writ for determining their" inter se seniority with the Executive Engineers promoted from the grade of Assistant Executive Engineers in accordance with the rule. of length of continuous officiation. This right of the Executive Engineers . promoted from the grade of Assistant .Engineers under the decision F in A.K. Sub.raman's .case (supra) could not be taken away ·by any· thing contained in th~ Rules of 1976. The decision in A.K. • Subraman's case (supra) continued to subsist and the Government· of India was bound to determine inter se seniority amongst the Executive Engineers in accrodance with the direction contained in that' decision. G· The respondents in answer to this contention of the petitioners· ' ieaned heavily on tbe decisiop. of this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality(') and submitted that whatever might have been the rule of seniority on which the decision of this Court in A.K. Subraman' s case (supra) was based, the basis

(1) [1970) I SCRj388.

P.S. MAHAL v. UIBON (Bhagwati, J.) 875

of that decision was fundamentally altered in so far as inter se seniority of Executive Engineers promoted from the,-grades of Assistant Engineers and Assistant Executive Engineers ·subsequent ' to. 22nd Decemeber 1959 was concerned, because Rules 2(iii) and · 2(iv) of the Rules of 1979 retrospectively'provided for a different rule· of seniority and that rendere.d the decision ineffective. and not binding on the parties We have· carefully considered the decision of this B ~ t Court in Shri Prithvi Cotton Mills case (supra) but we do· not think . ;. _,." that this decisio!) lays down any such wide proposition .as is conten- .ded for on behalf of .the respondents. It does not say that when- ever any actual or legal situation is altered by retrospective legis- ·lation, a judicial decision rendered by a· Court on the basis of such · factual or legal situation prior to the alteration would straight. away c without more, cease to be effective an}! binding on the parties. It is true that there are certain observatio~s in this decision which seem to suggest that a court. decision may' cease to be binding when ... , i; the.conditions on which lt based are so fundmentally altered that the decision could not have been given in the altered circumstances. D But these observations have to be read in. the light of the he question which arose for consideration in that case. There, the validity of the Gujbrat imposition of Taxes by Municipaltities (Validation) Act, 1963 was assailed on behalf of the petitioners. The Validation Act had to be enacted because it was held by this Court in Patel Gordhandas. Hargovindas v. Municipal Commfrsioner, E Ahmedahad(l) that since section 73 of the Bombay Municipality Boroughs Act, 1925 allowed the Municipality to levy a 'rate' on · buildings or lands and the term 'rate' was confined to an imposition on the basis of annualetting value, tax levied by the MJJnicipality on land~ and buildings on the basis of capital value was invalid. Section 3 of the Validation Act provided that notwithstanding any thing contained in any judgment, decree or order of a court or tribunal . or any other, authority, no tax assessed· or purported to have been r ,, assessed by a municipality on the basis of capital value of a build- ing or land and imposed, collected or recovered by the municipality at any time before the commencement of the Validation Act shall be deemed to. have 'invalidly assessed, imposed, colle.cted or recover- ed and the imposition, collected or recovery of the tax so assessd shall be valid and shall be deemed to have ·-always been valid and' shall not be called in question merely on the ground that the assessment of the tax on the basis of capital value of the building or land H '

(I) [1964] 2 S.C.R. 608.

876 SUPREME COURT REPORTS (1984] 3 S.C.R.

A was not authorised by' 1aw and accordingly any tax so assessed be- for the com!llencement of the Validation·· Act and leviable for a ·~- ' period prior to such commencement but not collected or recovered before such commencement may be collected or recovered in accrodance with the relevant municipal law. .It will be seen that B by section 3 of the impugned Act the Legsilature retrospectively imposed tax oil' building or Ja11d on the basis of capital value and if the tax was already imposed,. levied and collected on that basis, made the imposition· levy, collection and recovery of the tax valid, notwithstanding the declaration by the Com:t that as 'rate', the levy c was incompetent: This was ~!early permissible to the Legislature be- cause in .doing so, the· Legislature did not seek to reverse the deci- sion of this Court on the interpretation of the word 'rate', but retrospectively amended ·the law by providing for imposition of tax on land or building on the basis of capital value and validated the imposition, levy collection and recovery of tax on that•basis. The D decision of this Court holding the levy of tax to be incompetent on the '"" basis of the unamended law, therefore, became irrelevant and could not stand in the way of fhe tax be.ing assessed, collected and recover· ed on the basis of capital value under the law as retro,speciively amended. That is why this Court held that the Validation Act was effective to validate imposition, levy, collection and recov~ry of tax on land or building on the basis of capital value. It is difficult to · see how this decision given in the context of a validating statute can 1~ , be of any help to the respondens. Here the decision in A.K. Subraman's case (supra) which is relied upon by the petitioners is not a ·mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute. can remove the defect pointing out by that judgment and validate such impost or tax. )3ut it is a . decision giving effect to the right of the Executiue Engineers promoted from the grade of Assistant -En"gineers.to have their inter se seniority with Executive Engineers promoted from the grade of Assistant Executive Engineers determined on the basis of rule oflength of continuous officiation by issue of a writ directing th.e Government of India to amend and revise the seniority list in accordance wirh such rule of seniority. Rules 2(iii) and 2(iv) seek to substitute with • retrospective effect a totally different rule. of seniority in place of • that recognised and given effect by the decision in A.K. Subraman's H case (supra). That o~viously cannot be done. Rules 2(iii) and 2(iv) · cannot by retrospective alter ation of the rule of seniority nullify the decision in A.K. Subraman's case which has recognised and . given effect to an existing' rule of seniority and issue\I a writ against .

I ~ ' P.S. MAHAL v. UNION (Bhagwati, J) 877

the Government of lndia'on·that basis. If by reason of retrospeetive A .. ' .alteration of.the rule of seniority the decision is rendered erroneous, the remedy may be by way of review, but so long as the decision stands, it cannot be disregarded or ignored and "it must be obeyed by ·the Government of India despite Rules 2(iii) and 2(iv) so far as the ,.. ~ Executive "Engineers promoted from the grades of Assistant Engineers } and Assistant Executive Engineers;upto 11th December 1974·are con- B cerned. This view taken by us finds coq1plete snpport from the judg- ment of one of us namely Bhagwati, J. in M.M. Pathak v .. Union of India & Ors .(1) •

The respondents also relied heavily on 'the decision of this Court in Bishan Sarup Gupta v. Union'~{ India<.') (hereinafter referred to .as ihe 2nd Bishan Sar11p Gupta caJe). It was contended on be- ,.. ' half of the respondents that in the 2nd Bishan Sarup Gupta case, this Co.urt upheld the rotaticinal rule of seniority which determines · seniority according to a roster of 1:1 amongst direct recruits and D promotees in the Income-Tax Officer& (Class I) Service in the-circums- tances closely resembling the present case and Rules 2(iii) and 2(iv) · of the Rules of 1976 in so far as they gave sen~rity en bloc to the . Assistant Executive Engineers promoted to the 86 carried forward posts of Executive Engineers and applied the rotational formula for the purpose of determining seniority amongst Assistant Engineers and. Assistant Executive Engineers · promoted to the subsequent vacancies in the grade of Executive Engineers, must, therefore, be upheld by us on analogi·cal reasoning. This contention, plausible though it may seem, is, in our opinion, withouf force and must be, rejected. The situation in the 2nd Bishan Sarup G~pta case was F fundamentally oiffe"rent from that in the present case. The Court, in the Jst Bishan Sarup Gupta case, . came to the conclusion that on 16th January, 1959 the quota rule for filling up vacancies amongst" I nco!!Je-Tax Officers (Class I) collapsll!! by reason of upgrading of 100 Class II posts and with!that'also went. the seniority rule set out in Rule 1 (0 (iii), .because this'rule of seniority could be upheld as constitutionally valid only ifthe'rquota rule was strictly observed, with only minor deviations permitting, and the question, therefore, arose that "if the seniority_ rule 1 (fl (iii) ceased to be operative from 16th January, 1959' how. is the.inter-se seniority between the.direct recruits and the promotees to be fixed thereafter ?" There was no H (I) [1978] 3 SCR 346, (2) [!975) I SCR J04.

87!f SUPREME COURT REPORTS [1984) 3 S.C.R· A specific seniority rule to determine inter·s.e seniority between the direct recruits and the proinotces appointed regularly within their respective quota from and after 16th January, 1959 and though, in the absence of any specific seniority rule, the Court could 'have B applied the' residuary rule based on length of continuous officiation, the Court did not do so.because it felt that since the old seniority . Jiad ceased to operate by reason of the .Infringement if the . rule guota rule, it would be for the Government to devise "a Just and fair seniority rule as between the direct recruits and the promotees • for being given effect to from 16th January, 1959." It was pur- c suant to this direction given by the Court that the rotational rule. of seniority impugned in the 2nd. Bishan Sarup Gupta case was made the Government and this seniority rule did not seek to undo the · effect of that decision. Now, in the present case also,· by reason )- of clause 3 of the Memorandum dated 22nd December, 1959,' the rule of seniority based on length of continuous officiation enun· D ciated in the Memorandum dated 22nd June, 1949 came to ·an end and the(eafter until the Rules of 1976, were formulated, .there was no specific rule of seniority which governed inter-se seniority bet· ween Assistant Engileers arid Assistant Executive Engineers promo·

.E te.d as Executive Engineers regularly within their respective quota subsequent to 22nd Decemb!!r, 1959. The Memorandum dated 22nd December, 1959 was undoubtedly in force, but for reasons • which we shall ·presently state, neither Paragraph 5(ii) relied on by the petitioners nor paragraph 6 relied on by the respondents had any application for determining inter-s_e seniority in the grade of F Executjve Engineers. The Court could h~ve, therefore, followed the same course as in the I st Bishim Sarup Gupta case · and in the . absence of a spcific rule of seniority to determine icter se seniority amongst Assistant Engineers and Assistant ExecJ!tive Engineers · promoted to the grade of Executive Engineers from and . after 22nd December, 1959, the Court could have directed the Governmeq.\ of G In.dia to evo\~e a new rule of seniority. But the"'Court instead chbse to adopt the rule of seniority based on length of continuous officiation and directed inter se seniority amongst Assistant Engineers and Assistant Executive Engineers prom_oted to the grade of Executive Engineers regularly within their re speetive quota upto the date of its decision, to be determined on the· ,application· of H this rule of seniority based on length of continuous officiation. This course, the Court was clearly entiled to adopt, because, as we shall presently point out, when there is no specific rule governing deter- . . mination of seniority in a grade, the norll!al rule applfoable would be

p .s MAHAL •. UNION (Bhagwati, J.) ~ 879

to determine seniority on the basis of length of continuous officia- A tion in the grade and the Court could certainly adopt this residuary rule and direct inter se seniority in the 'grade to be fu\ed on the application of this seniority rule. It will .thus be seen that while in. Jst Bishan Sarup Gupta case, the Court left it to the Government to decide what rule of seniority should be dev.\sed for determining B .. inter se seniority .between !he· direct recruits and. the promotees appointed from and after 16th January, 1959, the Court in the pre- sent case did not 'leave .it to the Government to evolve a riew Rule of seniority for determining inter se seniority amongst Assistant Engineers and Assistant-Executive Engineers promoted as Executive c Engineers from and after .22nd December, 1959 but itself laid down that su,ch inter se se11iority shall be determined on the appli- cation of the rule of seniority based on length of continuous offi- ciation. This constituted a 'vital difference between the I st .Bishan

.. ; Swarup Gupta case and the present case and the government was not .entitled, as in the case .of Bishan Swamp Gupta and other Income-Tax Officers;to evolve a new rule of seniority different ·D

from that recognised and given efftct to by the Court in A.K. Subraman's decision for determining. seniority amongst Assistant· Engineers and Assistant Executive Engineers promoted as Executive Engineers regularly with in their respective quota from and after E 22nd December, 1959. To permit the Government to do so would be in plain defiance· of the direction given by the Court in A:K. Subraman's case. • The petitioners reiled strongly on paragraph 5 (ii) of the F Memorandum dated 22nd December, 1.959 and contended that the seniority rule laid down in th.is· Paragraph governed the determi- nation of seniority amongest f:xecutive Engineers promoted from the Grades of Assistant Engineers and Assistant Executive Engi- neers from and after 22nd December, 1959 and if this rule of G ' seniority ~as applied, the Assistant Engineers promoted regularly within their quota after selection by the Departmental promotion , Committee in any year would rank higher .than the Assistant Executive Engineers promoted;in the subsequent years and in that view, the seniority list dated 14th August, 1975 and the Rµles of 1976 in so far as they give seniority en bloc to the .Assistant Exe- • cutive EngineeI.s. promoted to the 86 carried forward posts of Executive Engineers and apply the rotational formula for the pur- II ' pose of determining seniority · amongst Assistant Engineers and Assistant Executive Engineers promoted to the subsequent vacau...

.. SUPREMi COURT REPORTS [1984] 3 s.c ..R.

cies in the Grade of Executive Engineers, would clearly be uncons- A titutional and void as retrospectively affecting the seniority o·f the Executive Engineers promoted .from the Grades of Assistant Engineers and Assistant Executive Engineers within their respective • qyota from and after 22nd December, 1959. This contention was urged before us with a certain degree of plausibility but 0:1 close B scrutiny we find th-at it is not well founded. There are two formi- dable answers to this contention and. each answer is sufficient to warrant rejection of this contention. • ' ·o In the first place, it may be pointed out that this contention i~ no longer open to the petitioners in view of the decision 1n · AK Subraman's case where the Court applied the rule of s~iority based on len.gth of continuous officiation for determining inter-se seniority amongst· Assistant' Engineers and Assistant Executive Engineers D promoted as Executive Engineers regularly within their respective quota upto 11th December, 1974, being the date of the decision and directed such inter•se seniority to· be determined on the application of this· seniority rule. · Even if the rule of seniority. set out in Paragraph S(ii) were otherwise applicability must stand negatived by the decision in A.K. Subraman's case which is binding on 'the parties. Moreover; it may noted that in A.K. Subraman's case it was conceded on behalf of respondents Nos. 1 and 2 that ·this Memo- randum was not relevant to the question of determination of )... • seniority between the petitioners and the respondents. In that cas~ though the promotion of some of the petitipners was regularised by absorption in their lawful quota subsequent to 22nd December, 1959 and some of the respondents were also promoted as officiating Executive Engineers within the - their quota after that date, the learned counsel appearing on b.ehalf of the petitioners did not contend that Paragraph 5(ii) of the Memorandum dated 22nd G December, 1959 was applicable to determine inter·se seniority amongst such of the petitioners and respondents as were promoted after 22nd December, 1959 and agreed with the concession made on behalf of fespondents Nos. 1 and 2 that the Memorandum dated 22nd December 1959 was irrelevant :and likewise no discordant notewas struck also by the learned counsel appearing ·on behalf of the e respondent Assistant Executive Engineers and it ,was not contended on their behalf that so far as the petitioners and the respondent Assistant · Executive EIJtineers promoted rcguh1rly within iheir lawful quc:ie subsequent to 22nd December, 195919Cre concerned, their senioriyt ' . .

P.s. MAHAL v. UN(ON (8hagwati, J.) 881

was governed by- Paragraph 5(ii) or any other paragragh of the A Memorandum dated 22nd December, 1959. Therefore, it was the common case of all the parties including the Assistant Engineers . and the Assistant Executive Engineers promoted as Executive Enginee~s that neither the rule of seniority set out in paragraph 5{ii) nor the seniority rule set out in any other paragraph of the Menw- randum dated 22nd December, 1959 ivas applicable. B I But; since the case has been argued fully before us we would ·consider the applicablity of Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 on merits. There can be no doubt that the contention of the petitioners 'based on Paragraph 5(ii) would c have had great force if on a true interpretatiol) of that paragraph, the rule of seniority set out in that provision could be held to govern , the. determination of seniority amongst the Executive Engineers

.. ·-'I ' promoted from the. Grades of A sistant E'ngineers and Assistant Executive Engineers from and after 22nd December, 1959 being th~ date when this rule of seniority came into force. But we are of the D view that' the rule of seniority set out in ·Paragraph 5(ii) of the Memorandum dated 22nd December, 1959 could have no application in case of promotio~s made to the Grade of Executive Engineers from the Grades of Assistant Engineers and Assistant Executive Engineers. Paragraph 5(ii) of the Memorandum dated 22nd .Deceinber, 1959·read.as follows: E

"5(ii) : . Where promotions to a grade are .made from more than one grade, the eligible persons shall be arranged in sep· erate lists in the order of their relative seniority in their resp- ective grades. Thereafter, the Departmental Promotion Com- F mittee shall select persons for promotion from each list upto.the prescribed quota and arrange .all the candidates selected from diffe~ent lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade." G and the rule of seniority set out in this provision was explained by the folfowin g illustration given in an Explanatory Note attached to the Memorandum dated 22nd Decemb~r, 1959 ;